OASIS SOFTWARE LICENCE

This Software Licence Agreement (the "Agreement") is made between EMPOWER OPERATIONS CORP., a Canadian corporation with its principal place of business in Surrey, British Columbia, Canada ("Empower"), and individuals or entities (the "Customer") that acquire a right to use the Software (as defined below). This Agreement establishes the terms under which Empower will license the Software to Customer.

By clicking on the applicable "I agree" button, downloading, copying, installing, activating or otherwise using the Software, Customer does so with the intent to electronically "execute" and agree to be bound by this Agreement. IF CUSTOMER DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, Customer has no right to use the Software and Customer should return, delete or disable the Software.

1. Definitions

In this Agreement, unless expressed to the contrary:

• "Confidential Information" means all information designated in writing as confidential by each party, or which under the circumstances of disclosure reasonably ought to be considered as confidential or the nature of which is such that it would generally be considered confidential in the industry in which the disclosing party operates. Without limiting the foregoing, Empower's Confidential Information also includes the Software, including all source and object code, Documentation, and the terms and conditions of this Agreement.
• "Device" means the single, specifically identified computing device or virtual machine on which Customer installs the Software.
• "Documentation" means the user and system administrator guides, codes and manuals relating to the Software created and supplied by Empower.
• "Effective Date" is the date specified as such in a Purchase Order or the date of the initial installation of the Software in the case of use of the Software under the Trial Licence.
• "Fees" means the fees payable by Customer to Empower for the number and type of Licences (including any Modules) specified in the Purchase Order.
• "Floating Licence" means a licence for the Software that is installed on a network server and can be used by different computers or computing devices concurrently up to the number of concurrent user licences purchased.
• "Licence Type" means a Node-Locked Licence, Floating Licence, or Trial Licence (as applicable).
• "Modules" means the computer programs (if any) specified in a Purchase Order that are purchased by Customer as optional additions forming part of the Software.
• "Node-Locked Licence" means a licence for the Software that is bound to a Device and will only function on that specified Device.
• "Purchase Order" means a purchase order approved and accepted by Empower governing Customer's purchase of rights to use the Software.
• "Software" means the software marketed by Empower as "Optimization Assisted System Integration Software" and marketed under the trade-mark OASIS, including any Modules.
• "Subscription Licence" means a Node-Locked Licence or Floating Licence payable in monthly or annual subscription installments.
• "Term" means, in the case of a Node-Locked Licence and/or Floating Licence, the period as specified in the Purchase Order, or in the case of a Trial Licence, the Trial Period, both commencing on the Effective Date.
• "Trial Licence" means the licence to use a trial version of the Software when Customer downloads, installs, or otherwise uses such Software on a trial basis.
• "Trial Period" means a period of 30 days, measured from the exact time and date of the initial installation of the Software.
• "Updates" means periodically released versions of the Software and Documentation, which include updates, bug-fixes, modifications, and corrections to the Software and Documentation.
• "Upgrades" means periodically released versions of the Software and Documentation, which include significant function and feature enhancements to the Software and Documentation.
• "User" means any employee, agent, contractor or other representative of Customer, or any other person, that has been granted access by Customer to use the Software.

Other terms defined elsewhere in the text of this Agreement will have such meaning throughout the Agreement.

2. Licence Grant

• (a) Subject to the terms of this Agreement, Empower grants to Customer a non-exclusive and non-transferable licence to:
  • (i) install and use the object code of the Software as permitted by the Licence Type, including as specified in the Purchase Order or a Trial Licence, as applicable, and the restrictions applicable to such Licence Type;
  • (ii) use the Documentation in conjunction with the use of the Software; and
  • (iii) allow Users to exercise the foregoing rights (collectively, the "Licence").
• (b) Customer will not permit any subsidiaries or affiliated entities to use the Software unless such entities or individuals enter into licence agreements with Empower governing use of the Software.

3. Restrictions on Use

• (a) Customer will not, and will ensure that Users do not:

  • (i) reverse assemble, reverse engineer, decompile or otherwise attempt to derive source code from the Software or any component thereof;
  • (ii) copy (except as provided herein), reproduce, translate, sell, lease, sublicense, use in a service bureau, market, modify, create derivative works from, or commercially exploit in any way the Software or any component thereof;
  • (iii) use, or permit the use of, the Software or any component thereof to perform information processing or any other function whatsoever for any other person, entity or business including, without limitation, providing information processing for a third party in any service bureau, time sharing, lease, distribution, resale, rental, platform provider agreement or any other arrangement; or
  • (iv) distribute, transfer possession of, or otherwise make available the Software or Documentation to any third party (other than Users).

• (b) Without limiting the generality of Section 3(a) above:

  • (i) where the Licence Type selected by Customer on the Purchase Order is a Node-Locked Licence, Customer will only install and use the Software on the number of Devices specified in the Purchase Order and for which Fees have been paid to Empower;
  • (ii) where the Licence Type selected by Customer on the Purchase Order is a Floating Licence, Customer will only: (1) install the Software on a network Device that allows Users to access the Software via Customer's network; and (2) allow use of the Software by the number of concurrent users specified in the Purchase Order and for which applicable Fees have been paid to Empower; and
  • (iii) where Customer has selected a Trial Licence, Customer will, during the Trial Period, (1) only install and use the Software on a Device solely for the purpose of evaluating the Software for purchase; (2) not use the Software for any commercial purpose, including the development of products or services; (3) not install the Software on more than one Device; and (4) not request, download, install or use an additional copy of the Software using a different name or username.

4. Terms Specific to Trial Licence

Where Customer elects to license the Software under the Trial Licence, Empower provides the Software to Customer on a royalty-free basis. Upon the expiry of the Trial Period, the Software will automatically cease operation, including any processes or simulations being run by the Software at such time. If Customer wishes to continue to use the Software (including accessing or using any data saved by Customer or Modules available for the Software) after the expiry of the Trial Period, Customer must:

• (A) save any work in progress prior to the expiry of the Trial Period; and
• (B) purchase rights to use the Software from Empower through execution of a Purchase Order.

Customer acknowledges and agrees that it will not be able to access or use any data saved by Customer using the Software during the Trial Period if itfails to purchase a Licence from Empower after expiration of the Trial Period.

5. Payment and Invoicing

• (a) In consideration for any Licence other than a Trial Licence, Customer will pay Empower the Fees specified in the Purchase Order. If Customer wishes to acquire additional rights to use the Software beyond those specified in a Purchase Order, Customer must enter into other agreements with Customer to purchase additional rights from Empower prior to exercising such additional rights to the Software.

• (b) Upon receipt of a Purchase Order from Customer, Empower will issue to Customer an invoice for the Fees payable in respect of the Licence Type selected by Customer.

• (c) Customer will pay all Fees specified in an invoice rendered by Empower within thirty (30) days of the date of issuance of Empower's invoice.

6. Additional Services

If Customer requires installation, support, maintenance, training or other services relating to the Software, Customer may enter into separate agreements with Empower, and such agreements will govern Empower's provision of such services to Customer.

7. Customer Acknowledgments and Obligations

• (a) Customer will install, use, and operate the Software in accordance with the Documentation and any requirements specified by Empower.

• (b) Customer acknowledges and agrees that no rights in or to the source code of the Software are granted or provided to Customer under this Agreement, including under the Licence.

• (c) Customer acknowledges and agrees that:

  • (i) the Software will automatically create and store log files ("Log Files") that are related to use of the Software on the relevant Device; and

  • (ii) Log Files may contain Customer's Confidential Information or other sensitive information about Customer's business inputted by Users into the Software.

  Log Files will not be accessible to Empower unless access to Log Files is provided to Empower by Customer. If Customer provides Empower with access to Log Files, in association with delivery of support services to Customer or otherwise, Customer is solely responsible for removing or redacting any Confidential Information or other sensitive business information contained in Log Files prior to providing any Log Files to Empower.

• (d) Customer is solely responsible for the purchase or licensing of all equipment and software (other than the Software) necessary to install and properly operate and use the Software as detailed in the Documentation.

• (e) Customer will be responsible for all acts or omissions of Users contrary to the terms and conditions of this Agreement.

8. Ownership and Copies

• (a) All rights, title and interests, including all intellectual property rights, in and to:

  • (i) the Software and Documentation;
  • (ii) the media on which the Software and Documentation are provided to Customer; and
  • (iii) any ideas or know-how developed by Empower through the provision of support or other services to Customer belong exclusively to Empower or its licensors (collectively, the "Assets").

  Customer acknowledges that, except as specifically provided under this Agreement, no right, title or interest in or to the Assets is transferred or otherwise granted by the Licence. All rights not expressly granted under this Agreement are reserved.

• (b) Customer will not at any time, whether before or after the termination of this Agreement, contest or aid others in contesting or doing anything that otherwise impairs the validity of any proprietary or intellectual property rights, title or interest of Empower in and to the Software or Documentation.

• (c) Customer is permitted to make:

  • (i) copies of the Documentation for each User; and
  • (ii) one (1) copy of the Software solely for back-up or archival purposes.

  Such authorized copies of the Software will contain all proprietary markings or legends specified by Empower.

9. Confidentiality

• (a) Except as reasonably required to exercise its rights under this Agreement, Customer agrees to prevent any unauthorized copying, use, distribution, installation or transfer of possession of Empower's Confidential Information. At a minimum, Customer will maintain at least the same procedures regarding Empower's Confidential Information that Customer maintains with respect to its own Confidential Information of a similar type. Customer will not acquire any interest in any Confidential Information received from Empower by reason of this Agreement. Nothing in this Agreement will restrict Empower's use or disclosure of its own Confidential Information. Confidential Information does not include any information that:

  • (i) becomes part of the public domain through no act or omission of Customer;
  • (ii) is lawfully acquired by Customer from a third party without any breach of confidentiality;
  • (iii) is independently developed without reference to the Confidential Information of Empower; or
  • (iv) is disclosed in accordance with judicial or other governmental order or timely disclosure requirements imposed by law or stock exchange policies.

  Notwithstanding the foregoing, Customer will be permitted to disclose the terms and conditions of this Agreement when required by law or regulation. Without limiting the generality of the foregoing, Customer will take reasonable steps to prevent any personnel or User from removing any proprietary or other legend or restrictive notice contained or included in any material provided by Empower to Customer.

• (b) Customer acknowledges that any use or disclosure of Empower's Confidential Information in a manner inconsistent with the provisions of this Agreement may cause Empower irreparable damage for which remedies other than injunctive relief may be inadequate. Customer further agrees that Empower will be entitled to attempt to receive from a court of competent jurisdiction injunctive or other equitable relief to restrain such use or disclosure in addition to other appropriate remedies.

• (c) The obligations under this Section 9 will apply to employees, contractors and agents of Customer and any others, including any Users, using the Software under Customer's Licence.

10. Updates and Upgrades

• (a) Empower may, from time to time, make available to Customer, at an additional charge and according to separate terms and conditions, Updates or Upgrades.

• (b) Use of any Update or Upgrade with or in place of the Software is subject to the terms of this Agreement. Any portion of the Software replaced by an Update or Upgrade (except archival copies) must be destroyed by Customer or returned to Empower on request.

11. Warranty

• (a) Except where Customer elects to license the Software under the Trial Licence, Empower warrants that the Software will perform substantially in accordance with the specifications set forth in the then current Documentation for a period of ninety (90) days (the "Warranty Period") from the date it is installed by Customer or delivered to Customer, whichever is earlier. This warranty does not cover, however, any copy of the Software that has been altered or changed in any way by Customer or any User.

• (b) Empower does not warrant that the functions contained in the Software will meet the requirements of Customer or Users or that the operation of the Software will be uninterrupted or error-free. Empower is not responsible for problems caused by changes in, or modifications to, the operating characteristics of any computer hardware or operating system for which the Software is procured, nor is Empower responsible for problems that result from the use of the Software in conjunction with software of third parties or with hardware that is incompatible with the operating system for which Software is being procured.

12. Warranty Disclaimer

THE WARRANTIES MADE IN SECTION 11 ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESSED, STATUTORY OR IMPLIED, AND EMPOWER DISCLAIMS AND, TO THE EXTENT PERMITTED AT LAW, CUSTOMER WAIVES ALL OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OR CONDITION OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE, UPDATES, UPGRADES, AND ANY OTHER ITEMS OR SERVICES PROVIDED BY EMPOWER HEREUNDER.

13. Limitation of Remedies

• (a) The entire liability of Empower and its licensors, and Customer's sole and exclusive remedy for the breach of the warranty obligations in Section 11 with respect to Software will be the following: provided Customer provides written notice to Empower of such breach within the Warranty Period, Empower or its representatives will, at Empower's option, use commercially reasonable efforts to provide maintenance modifications or fixes with respect to any error in the Software, replace the Software or refund to Customer the amount it paid in licence fees for the Software that gave rise to such claim. Empower, however, will not be obligated to correct, cure or otherwise remedy any error or defect in the Software resulting from any (i) modification of the Software made by Customer or Users; (ii) misuse or damage of the Software by Customer or Users; (iii) failure of Customer to notify Empower of the existence and nature of such nonconformity or defect promptly upon its discovery and within the Warranty Period; or (iv) use of the Software in an operating environment not compatible with the specifications in the Documentation.

• (b) TO THE MAXIMUM EXTENT PERMITTED BY LAW, EMPOWER, ON BEHALF OF ITSELF AND ITS SUPPLIERS, DISCLAIMS ANY AND ALL LIABILITY FOR (I) SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS); AND (II) PUNITIVE AND EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT OR WITH RESPECT TO OR IN CONNECTION WITH THE INSTALLATION, IMPLEMENTATION, USE, OPERATION, OR SUPPORT OF THE SOFTWARE AND DOCUMENTATION, EVEN IF EMPOWER OR ITS SUPPLIERS HAVE BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES.

• (c) To the maximum extent permissible under applicable law, and except as provided in Section 13(a) of this Agreement, Customer agrees that any liability on the part of Empower, arising out of this Agreement or with respect to the installation, implementation, customization, use, operation or support of the Software, Modules, Updates, and Upgrades will not exceed the amounts paid by Customer to Empower for the Software, Modules, Updates, and Upgrades which gave rise to such claim over the twelve (12) months immediately preceding the event giving rise to such liability.

• (d) THE LIMITATIONS OF THIS SECTION 13 WILL APPLY TO ALL CAUSES OF ACTION, WHETHER BASED ON BREACH OF WARRANTY, BREACH OF CONDITION, BREACH OF CONTRACT, FUNDAMENTAL BREACH OR BREACHES, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, NEGLIGENCE, OTHER TORT CLAIMS, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY.

• (e) THIS SECTION WILL SURVIVE TERMINATION OF THIS AGREEMENT AND WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

• (f) CUSTOMER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS AGREEMENT CONSTITUTE AN ESSENTIAL ELEMENT OF THIS AGREEMENT IN THE ABSENCE OF WHICH: (A) THE TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT; AND (B) EMPOWER'S ABILITY TO OFFER AND CUSTOMER'S ABILITY TO ACCESS AND USE THE SOFTWARE UNDER THIS AGREEMENT WOULD BE IMPAIRED.

14. Indemnity

Customer will indemnify, defend and hold harmless Empower and its directors, officers, employees and agents from and against any third-party claims, actions, demands, loss, liability (including amounts paid in settlement) or costs or expenses (including legal fees on a solicitor and client basis) arising out of or in connection with: (a) any modifications, changes, adaptations, extensions or uses of the Software by Customer or its Users that infringe, violate or misappropriate any proprietary or other right of any third party, including any intellectual property rights; and (b) any breach by Customer of this Agreement, including breach of Section 9.

15. Termination

• (a) This Agreement will terminate automatically upon the expiry of the Term, unless terminated earlier in accordance with this Agreement.

• (b) Empower may terminate this Agreement by written notice to Customer where:

  • (i) Customer breaches any term of this Agreement and fails to cure such breach within fifteen (15) days of Customer being notified of such breach;
  • (ii) Customer breaches any term of this Agreement and such breach is not capable of being cured;
  • (iii) a receiver, trustee, administrator, or administrative receiver is appointed for Customer or its property; Customer makes an assignment for the benefit of creditors; or any proceedings are commenced against Customer under any bankruptcy, insolvency, or debtor's relief law, and such proceedings are not vacated or set aside within fifteen (15) days from the date of commencement thereof; or
  • (iv) Customer is liquidated or dissolved.

• (c) Notwithstanding any other provision of this Agreement, where Customer is using the Software under a Trial Licence, Empower may for any reason, and without liability or obligation to Customer, immediately terminate this Agreement by providing notice in writing to Customer.

• (d) Upon termination of this Agreement, regardless of the cause, any licence granted under this Agreement, including the Licence, is immediately revoked. Within ten (10) business days after such termination, Customer will:

  • (i) return to Empower or delete and destroy all copies of the Software and Documentation in Customer's possession; and
  • (ii) upon request by Empower, deliver a certificate of an officer of Customer certifying that the same has been completed.

  Termination of this Agreement will be in addition to, and not in lieu of, any other remedies available to either party.

16. Audit Rights

During the Term and for a period of twelve (12) months after expiry of such Term, Empower, at its own expense, may audit, or may appoint a third party mutually agreed upon by the parties to audit, Customer's use of the Software and Customer's compliance with the terms of this Agreement (each an "Audit"). Upon reasonable notice from Empower, Customer will provide Empower and/or the agreed-upon third party with access to Customer's facilities, systems, and records, during Customer's regular business hours, to allow Empower to conduct the Audit. Empower acknowledges and agrees that any Audit will not unreasonably interfere with Customer's business activities. If an Audit reveals that Customer has failed to pay any required fees due to Empower or has otherwise exceeded the number of permitted Users, Customer will be invoiced for such unpaid fees at Empower's then-current list prices. Empower will bear the cost of the Audit, provided however that, in the event that the Audit reveals that the fees payable to Empower for the audited period deviate by ten percent (10%) or more from the fees actually paid by Customer for such period, Customer will bear the cost of the Audit.

17. Miscellaneous

• (a) Each party acknowledges that it has read and understands this Agreement and further agrees that it is the complete and exclusive statement of the agreement between the parties, which supersedes and merges with all prior proposals, understandings, and all other agreements, oral and written, between the parties relating to the subject matter of this Agreement.
• (b) This Agreement may not be modified or altered except by written instrument duly executed by both parties. Any terms and conditions of any purchase order or other instrument issued by Customer in connection with this Agreement that are in addition to or inconsistent with the terms and conditions of this Agreement are not binding on Empower.
• (c) Any notice or other communication required or permitted by this Agreement will be in writing and will be deemed to have been duly given on the day of service if served personally or by facsimile transmission with confirmation, the day of receipt by the recipient if served via e-mail, or three (3) days after mailing if mailed by registered or certified mail, postage prepaid, and addressed to the respective parties at their respective corporate headquarters.
• (d) This Agreement and performance under this Agreement will be governed by the laws of the Province of British Columbia, Canada, and the federal laws of Canada applicable therein, without regard to conflicts of law principles that would apply a different body of law. The United Nations Convention on Contracts for the International Sale of Goods and any local implementation of such convention, including the International Sale of Goods Act (British Columbia), will not apply in any way to this Agreement or to the transactions contemplated by this Agreement or otherwise to create any rights or to impose any duties or obligations on any party to this Agreement. The parties irrevocably submit to and accept generally and unconditionally the exclusive jurisdiction of the courts of the Province of British Columbia with respect to any legal action or proceeding that may be brought at any time relating in any way to this Agreement.
• (e) If any provision of this Agreement is held invalid or unenforceable, the remaining provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be replaced with a provision that is valid and enforceable and that comes closest to the Parties' intention underlying the invalid or unenforceable provision.
• (f) Customer may not assign or sublicense, without the prior written consent of Empower, any of its rights, duties, or obligations under this Agreement to any person or entity, in whole or in part.
• (g) The waiver or failure of either party to exercise in any respect any right provided for in this Agreement will not be deemed a waiver of any further right under this Agreement.
• (h) Both parties will comply with all export and re-export restrictions and regulations imposed by the government of Canada or the United States, or corresponding or similar laws of other countries where Customer is using the Software.
• (i) Nothing in this Agreement will be construed to create an agency, joint venture, partnership, or other relationship between the parties. No agent, employee, or representative of either party has the authority to bind the other party in any manner. The parties are independent contractors with respect to each other under this Agreement.
• (j) Neither party will be responsible for failure to perform in a timely manner under this Agreement when its failure results from any of the following causes: Acts of God or public enemies, civil war, insurrection or riot, fire, flood, explosion, earthquake or serious accident, strike, labour trouble or work interruption or any cause beyond its reasonable control. This section will not apply to excuse any failure to make any payment when due.
• (k) The terms of Sections 1, 3, 7(b), 7(e), 8, 9, 11, 12, 13, 15(d), 16 and 0 will survive termination of this Agreement.
• (l) Subject to the restrictions on transfer contained in this Agreement, this Agreement will enure to the benefit of and be binding on the parties and their respective successors and assigns.