ADD-ON SOFTWARE LICENSE AGREEMENT

This Add-on Software License Agreement, including all integrated exhibits (collectively, the “Agreement”) is between your company (the “End User”) and Balas Technologies Co., Ltd, a company organized and existing under the laws of Vietnam having a place of business at Vietnam (the “Company”) and governs your use of the Add-on Software offered by Company through AppSource Marketplace or any other methods. Company and End User are each a “Party” and together the “Parties”. This Agreement applies to all Product Order Terms entered into under this Agreement.

1.        Definitions

The terms under this Agreement shall have the meaning ascribed next to them:

1.1.        “Add-on Software” means copy of an object code of a proprietary software component which is developed by the Company, that adds feature(s) to Microsoft Dynamics 365 Business Central as specified in the Product Order Terms, together with any accompanying manuals and other documentation, if available (the “Documentation”), and all enhancements, upgrades, and extensions thereto that may be provided by the Company to its clients from time to time.

1.2.        “Effective Date” means the start date of the Add-on Software License, as specified in the Product Order Terms.

1.3.        “Failure” means a defect, bug, fault, deficiency or non-suitability of the Add-on Software to the Documentation.

1.4.        “Microsoft Dynamics 365 Business Central” means a SaaS cloud based ERP system from Microsoft Corporation, which delivers integrated functionality for certain business features. 

1.5.        “Product Order Terms” means the documents that provides information about the specific Add-on Software offered by the Company, including Software license Term, Subscription Fees, payment terms and Company’s maintenance and support services and SLA. 

1.6.        “Third Party Software” means software programs provided by their providers, which may be contained and/or otherwise embedded in the Add-on Software.  Third Party Software exclude Microsoft Dynamics 365 Business Central.

1.7.        “User” means End User’s employees who are authorized by the End User to access and use the Add-on Software.

2.        Grant of License; Restriction of Use

2.1.        Subject to the terms of this Agreement, Company grants End User a non-exclusive, revocable, non-sub licensable, non-transferable, worldwide, limited license to use the Add-on Software during the Term, solely for the End-User’s lawful and internal business purposes.

2.2.        End User will not (and shall ensure that any User will not): 

2.2.1.        License, sublicense, sell, resell, transfer, assign, distribute, copy,  outsource, or otherwise commercially exploit or make the Add-on Software available to any third party in any way; 

2.2.2.        Attempt to gain or gain unauthorized access to the Add-on Software, permit any third party (including an affiliate or contractor) to use the Add-on Software or maintain or operate the Add-on Software on End User’s behalf; 

2.2.3.        Use the Add-on Software for the benefit of any third party, including to process the data of any third party; 

2.2.4.        Work around any technical limitations in the Add-on Software , disassemble, reverse engineer, or reverse compile the Add-on Software in whole or in part except to the extent permitted by applicable law; 

2.2.5.        Modify, adapt, alter, or create derivative works from the Add-on Software; 

2.2.6.        Merge the Add-on Software with other add-on(s) or other computer software; 

2.2.7.        Remove any proprietary notices from the Add-on Software or Documentation; or 

2.2.8.        Use the Add-on Software other than as described in the Documentation.

3.        End User’s Representations & Warranties

By using the Add-on Software , End User acknowledges, confirms, represents and warrants as follows: 

3.1.        The End User has the legal power and authority to accept this Agreement, and it is solely responsible for all activity occurring under the End User’s account;

3.2.        The End User shall abide by all applicable local, national and foreign laws, treaties and regulations in connection with the End User’s (and the User’s) use of the Add-on Software , including those related to data privacy, international communications and the transmission of technical or personal data; 

3.3.        The End User shall maintain the confidentiality of any authentication credentials associated with the End User’s use of the Add-on Software . 

3.4.        End User dully purchased license(s) to use the Microsoft Dynamics 365 Business Central, and uses such licenses according to Microsoft’s terms of use.

4.        Intellectual Property Rights

4.1.        All right, title, and interest in and to the Add-on Software including: (i) any and all patents, copyrights, trade secrets, inventions or know-how (whether patentable or not); and (ii) all proprietary rights in or related to any update, amendments, enhancements, alterations, developments, modifications, customization or implementation in the Add-on Software, which are made by the Company; and (iii) any other documents or materials that the Company provides to the End User under or in connection with this Agreement, are now and shall remain always the exclusive property of the Company, whether or not specifically recognized or perfected any applicable law. 

4.2.        The Add-on may be protected under international copyright, trademark and trade secret and patent laws. The license granted herein does not constitute a sale of the Add-on or any portion or copy of it, nor does it constitute a transfer or assignment by Company of any ownership right in and to the Add-on, and Company reserves all rights not expressly granted under this Agreement. No express or implied license or right of any kind in relation to the foregoing Add-on or intellectual property rights are granted to the End User, except the limited use of the Add-on and the Third Party Software (if any) as envisaged under this Agreement and/or the Main Agreement. 

4.3.        The End User hereby expressly and irrevocably waives any such rights as it may possess in and to the Company’s intellectual property rights described in section ‎4.1 above. 

5.        Support Services

5.1.        In case End User experiences any Failure in the Add-on Software during the Term of this Agreement, End User may contact the Company, providing a detailed description of the Failure and the Company will make reasonable commercial efforts to fix such Failure, in order to allow End User to continue using the Add-on Software. 

5.2.        In order to provide support services, the End User shall allow remote electronic access with persistent connectivity to the relevant End User’s systems with the best throughput and bandwidth available to perform all necessary functions

5.3.        Company’s maintenance and support services and SLA (during the entire Term) shall be according to the scope and terms that are specified in the Product Order Terms. 

6.        Subscription Fee and Payment Terms. 

6.1.        During the Add-on Software license Term, annual license and support fees (“Subscription Fees”) will be paid to the Company by End User, according to the terms, tariffs and payment terms set for in the Product Order Terms. 

7.        Third Party Software

7.1.        The Add-on Software may contain certain Third Party Software, including open source codes. End User’s possession and use of any such Third-Party Software shall be governed by their provider’s standard license agreement (when applicable, list of such third-party Software will be added as an appendix to the Product Order Terms). 

7.2.        For the avoidance of doubt, it is hereby clarified that Company shall not have any kind of liability with respect to the Third Party Software and/or the use thereof. The Third Party Software is provided “AS IS”, with all faults, subject to the applicable license term, and the Company disclaims any warranties or conditions, express or implied, oral or written, contractual or statutory, pertaining to the Third Party Software, including but not limited to, any implied warranties or conditions of merchantability, fitness for a particular purpose or non-infringement. The Company does not provide updates, upgrades or support services for Third Party Software.

8.        Confidentiality

8.1.        Neither Party (the “Recipient”) shall (i) disclose to any third party, any of the party’s (the “Discloser’s”) Confidential Information (whether in written, oral, electronic or other form), which is obtained from the Discloser or otherwise prepared or discovered in the performance of this Agreement or (ii) use the Discloser’s Confidential Information for any purpose other than as strictly necessary for the performance of this Agreement. As used herein, the term “Confidential Information” includes all information or data concerning or related to the business activity of either party, including without limitation the discovery, invention, research, improvement, development, manufacture, or sale of software, processes, and general business operations (including sales costs, profits, pricing methods, organization, and employee lists), which, if not otherwise described above, is of such a nature that a reasonable person would believe it to be confidential or proprietary. The Add-on Software (including the Documentation) are Confidential Information of the Company.  

8.2.        The foregoing does not apply to Confidential Information which the Recipient can demonstrate that: (a) is or becomes a matter of public knowledge through no fault of the Recipient; (b) independently developed by the Recipient; (c) rightfully received by Recipient from third party; (d) required to be disclosed by law or competent authority.  

8.3.        The Recipient agrees that with respect to the Confidential Information, during the term of this Agreement, it shall, at all times maintain its confidentiality using the same degree of care that it uses to protect its own proprietary information but not less than reasonable care. 

8.4.        Each Party agrees to: (i) use Confidential Information only for the purposes of this Agreement; (ii) hold Confidential Information in confidence and protect it from dissemination to, and use by, any third party; (iii) not to create any derivative work from Confidential Information; (iv) restrict access to Confidential Information to its personnel, affiliates, agents, and contractors who need access to such Confidential Information and who have agreed in writing to treat such Confidential Information in accordance with this Agreement; and (v) return or destroy all Confidential Information of the other Party upon termination or expiration of this Agreement. If the Recipient is required by law or valid legal order to disclose Confidential Information, the Recipient will, unless prohibited by law, give reasonable notice of such demand to allow the disclosing Party to seek a protective order or other remedy.

9.        Limited Warranty, Warranty Disclaimers and Limitation of Liability 

9.1.        THE ADD-ON SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE COMPANY SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE ADD-ON SOFTWARE WILL NOT INTERFERE WITH THE FUNCTIONS OF EQUIPMENT OR OTHER PROGRAMS. COMPANY DOES NOT WARRANT THE QUALITY, ACCURACY OR COMPLETENESS OF THE INFORMATION ACCESSED BY THE ADD-ON SOFTWARE OR THE ADD-ON SOFTWARE’S OUTPUT IN ANY MANNER

9.2.        THIS AGREEMENT IS NOT INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT THE ADD-ON  SOFTWARE WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE. END USER ACCEPTS THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE ADD-ON SOFTWARE. IN ADDITION, THE COMPANY SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY FOR ANY THIRD PARTY SOFTWARE AND/OR THE MICROSOFT DYNAMICS 365 BUSINESS CENTRAL (INCLUING, WITHOUT LIMITATION, END USER’S USE OR INABLITY TO USE THE MICROSOFT DYNAMICS 365 BUSINESS CENTRAL, AND ANY RESULTS OF SUCH USE.

9.3.        The Company’s entire and exclusive liability and End User exclusive remedy for breach of the limited warranty under this Agreement shall be, at Company’s option, either: (i) return of the price paid to Company for the Add-on Software, resulting in the termination of this Agreement; or (ii) replacement or correction of any defects necessary to materially conform to the above limited warranty. However, the Company shall have no obligations under this limited warranty if: (a) the End User alters, modifies or misuses the Add-on Software or violates the terms of this Agreement; or (b) for any bug, malfunction and/or other failure in or to the Third Party Software and/or Microsoft Dynamics 365 Business Central.  

9.4.        End-User is solely responsible for adequate protection and backup of the data and equipment used in connection with the Add-on Software.

9.5.        Notwithstanding anything to the contrary in this Agreement or applicable law, in no event will the Company be liable towards the End User or any other third party for any special, indirect, incidental, punitive, or consequential damages of any kind, including without limitation loss of profits, loss of business, business interruption, loss of revenue or the use of money, loss of goodwill or use, work stoppage, loss of contracts, loss of data and/or undertaking the restoration of data or costs of procurement of substitute goods or services and/or loss of turnover, arising out of this Agreement, whether based on breach of contract, tort, statute, or regulation, and even if those damages were foreseeable or the Company has been advised of the possibility of such damage or potential liability.

In no event will Company’s total, accumulative liability for damages arising out of this Agreement from all causes of action of any kind, including tort, contract, and breach of warranty exceed the Subscription Fee paid to the Company  within 3 months preceding such claim. 

10.        Indemnification

10.1.        The Company will defend, and hold the End User harmless from and against any claim brought by a third party against the End User, claiming that the use of the Add-on Software under this Agreement infringes such third party’s Intellectual Property Rights; provided the End User: (1) promptly notifies the Company in writing of such claim or demand, and gives the Company reasonable information and assistance at Company’s expense; (2) the Company retains sole and exclusive control of the defense.  Subject to the above, the Company shall pay actual damages finally awarded against End User by a conclusive court ruling of a competent court. 

10.2.        The foregoing indemnities shall not apply to the extent that: (1) such claim or suit arises from End User’s (a) use of the Add-on Software outside the scope of use which is identified in the Company’s Documentation or as otherwise permitted under this Agreement or the Main Agreement; or (b) modifications and/or changes in the Add-on Software, or from combinations of the Add-on Software with products or other software which were not supplied by the Company; or (2) to the extent that an infringement claim is based upon any information, design, specification, instruction, software, data, or material not furnished by the Company; or (3) to the extent that an infringement claim relates, directly or indirectly, to Third Party Software and/or Microsoft Dynamics 365 Business Central.  

10.3.        If Company determines that the Add-on Software is likely to be the subject of a claim of infringement, Company may, in its sole discretion: (i) replace or modify the Add-on Software; (ii) procure the right for End User to continue using the Add-on Software; or (iii) terminate the license to the Add-on Software and refund to End User a pro-rated portion of the applicable unused Subscription Fee (if any). 

10.4.        THIS SECTION ‎10 STATES COMPANY’S EXCLUSIVE LIABILITY AND END USER’S EXCLUSIVE REMEDY REGARDING ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT BY THE ADD-ON SOFTWARE OR ANY MATERIALS OR SERVICES PROVIDED UNDER THIS AGREEMENT.

11.        Term and Termination

11.1.        This Agreement shall be effective as of the Effective Date, and shall remain in force until termination or expiration of the Add-on license term for any reason (the “Initial Term”). Should End User wishes to purchase support services from the Company upon termination of the Add-on license term, it shall notify the Company at least 60 days prior to termination of the Initial Term or the relevant extend period, and this Agreement shall be extended for a period of 12 months each time (the “Extended Term”). The Initial Term and the Extended Term shall be referred to, collectively, as the “Term” or the “Add-on license Term”. 

11.2.        End User shall not be entitled to terminate the Agreement for convenience. Notwithstanding the foregoing: (a)Company shall be entitled to notify the End User about its intention to terminate this Agreement for convenience, at any time, by providing the the End User at least 60 days prior written notice; (b) Company may terminate this Agreement for cause: (i) in case End User breaches its obligations herein and does not cure such breach within 14 days, or (ii) if a receiver is appointed for End User or its property, End User makes an assignment for the benefit of its creditors, any proceedings are commenced by, for or against End User under any bankruptcy, insolvency or debtor’s relief law, or End User is liquidated or dissolved, which proceedings were not stayed or dismissed within sixty (60) days.

11.3.        Effect of termination. Upon any termination or expiration of this Agreement, for any reason: (a) all amounts owed to Company under this Agreement are immediately due and payable. For the avoidance of doubt, the Subscription Fee is not refundable, and termination of this Agreement shall not entitle End User for a refund of any Subscription Fee paid to the Company under this Agreement; (b) All license rights immediately cease to exist, and End User will discontinue all use of the Add-on. End User will de-install and delete the Add-on and all copies and related materials no later than 30 days after the date of termination (and, upon request, certify such destruction to Company). The provisions of this section and sections ‘Intellectual Property Rights, ‘Confidentiality’, ‘Indemnification’, ‘Limitation of Liability’, and ‘Governing Law’ will remain in full force and effect, notwithstanding any termination or expiration of this Agreement or any license granted under this Agreement.

12.        General

12.1.        This Agreement constitutes the entire agreement between the Parties, and supersedes all prior written and oral agreements and communications related to the subject matter of this Agreement.

12.2.        Company may audit End User’s use of the Add-on no more than once per calendar year. No later than 10 business days from Company’s request, End User will confirm to Company in writing that End User’s use of the Add-on complies with the Agreement and provide sufficient detail, as reasonably requested by Company, to enable Company to assess such compliance. 

12.3.        End User may not assign, transfer, delegate, or sublicense any of End User’s rights or obligations under this Agreement without Company’s prior written consent. Any assignment, transfer, delegation, or grant of sublicense without Company’s consent is null and void.

12.4.        End User may not download, provide access to, and otherwise export or re-export the Add-on, in whole or in part, except as explicitly allowed in this Agreement and in compliance with all applicable laws, regulations and restrictions (whether international, federal, state, local, or provincial). Company reserves the right to not perform any obligation under the Agreement if prohibited by such export control laws, regulations or restrictions. 

12.5.        Neither Party is liable for failing to perform an obligation under this Agreement if such failure is due to any act or condition beyond that Party’s reasonable control.

12.6.        This Agreement and all matters relating to the interpretation and effect of this Agreement will be governed exclusively by and construed in accordance with the laws of the State of Israel without giving effect to its conflicts-of-laws provisions and exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The parties consent and submit to exclusive personal jurisdiction, procedure and venue for legal disputes arising from or connected with this Agreement to the court of Ho Chi Minh City, Vietnam.

12.7.        Any modifications to this Agreement must be in writing and signed by the duly authorized representatives of the Parties. 

12.8.        Any waiver under this Agreement must be in writing and signed by the Party granting the waiver. A waiver granted under this Agreement will not be deemed to be a waiver of any subsequent breach of the same or any other provision of this Agreement. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right. 

12.9.        If any provision of this Agreement is held invalid or unenforceable, the provision will be limited to the minimum effect necessary and the remaining provisions of this Agreement will remain binding and enforceable. 

12.10.        All notices, demands, or other communications by any party to the other shall be deemed to have been duly given when: (i) made in writing and delivered in person with signed receipt, or (ii) sent via a nationally recognized, traceable, overnight delivery carrier, to the address detailed in the Product Order Terms, or to such address as the parties may provide to each other in writing from time to time. Notice will be effective upon delivery.

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