Software Terms and Conditions

These Software Terms and Conditions govern the provision of certain Kahler Automation software (“Work”). This Agreement is made between you as our customer and licensed user (“Licensee”) of the Work, and Kahler Automation (“Kahler Automation”). Licensee is deemed to have accepted the Agreement by ordering, or using, or paying for the Work (“Acceptance”). This Agreement includes the terms and conditions below, plus any specific elements of the Work including pricing, described in the information made available to you when placing and confirming your order. All use of the Software is subject to Licensee’s compliance with these Software Terms and Conditions (available at www.kahlerautomation.com/software-terms or upon request) and may be updated from time to time at Kahler Automation’s discretion.

1. Terms and Conditions Incorporated. Kahler Automation Terms and Conditions of Purchase and Sale shall be incorporated into this Agreement. In the event of any express conflict or inconsistency between this Agreement and Kahler Automation Terms and Conditions of Purchase and Sale (available at www.kahlerautomation.com/terms or upon request) this Agreement shall apply.

2. Price and Duration of Agreement. Licensee will pay the annual price quoted for the Work, for the term of service quoted. If the quote specifies a renewal invoice month, the first year of service will be prorated as commencing on the initial license activation date and ending on the last day of the month stated. Otherwise, the first year of service will commence from the initial license activation date and end on the last day of the twelfth consecutive whole month following activation.

3. Additions. Licensee may add newly quoted annual software subscription(s) to the Work under this Agreement. Additions will be invoiced and prorated for service commencing from the order date of the addition and ending on the last day of year of service defined in section 2. Thereafter the annual price of the addition will be incorporated into the Agreement.

4. Renewal and Subtractions. At the end of the original term of service this Agreement will renew annually at then-current price until either party notifies the other of a desire to terminate the Agreement. Licensee may request the addition or subtraction of services to the Work to be put into effect at renewal. The renewal price will be provided by Kahler Automation to Licensee a minimum of one month in advance of renewal for review and Acceptance by Licensee.

5. Proprietary Software Licensed by Kahler Automation. The Work provided by Kahler Automation may include third party software as well as proprietary software developed and owned by Kahler Automation. “Software” means Kahler Automation developed software products specifically listed in the Work or other license documents which refer to this Agreement, in object code form only, as well as any associated written or electronic documentation and any updates, upgrades, modifications or later versions thereof, which are received or used at any time by Licensee.

6. License Agreement. Kahler Automation and Licensee agree that any and all Software included in any Work is not sold and that this is not a work made for hire agreement. Except for the number of Software licenses supplied to Licensee as a part of the Work, any and all terms and conditions included in such forms do not apply to Software. Kahler Automation grants to Licensee a non-exclusive, non-transferable license within the contiguous States in the United States of America or the Provinces of Canada, to install and run each instance of Software as installed as a part of the Work. Licensee agrees not to copy any portion of any Software, transfer any portion of the Software to anyone (other than Kahler Automation), lend, rent, lease or disclose, reverse engineer, allow disassembly or reverse compile the Software or create derivative works of the Software except as expressly outlined within this Agreement or as authorized by Kahler Automation in writing. The license rights granted to Licensee by this Agreement will extend for as long as Licensee abides by all terms of this Agreement.

Licensee acknowledges that the Software constitutes valuable trade secret information and copyrighted material which is owned exclusively by Kahler Automation (or licensed to Kahler Automation) and that any violation of this Agreement will cause irreparable harm to Kahler Automation, excepting as it pertains to payments which are in dispute between the parties. However, this license granted to Licensee extends to each affiliate of Licensee in the United States or Canada and Licensee’s and such affiliates employees, agents and contractors performing work for Licensee or such affiliates.

a. This license granted to Licensee includes access to the manuals, training materials and other documentation which Kahler Automation delivers with the Software and the Work (the “Documentation”). The scope of the license to Licensee for the Documentation is the same as the scope of the license to Licensee for the Software.

b. This license granted to Licensee includes access to the Kahler Automation Support Team in accordance with the Service Level Agreement.

c. Licensee may make copies of the Software and Documentation where the Software is regularly used for its disaster recovery planning purposes, back-up purposes and archival purposes. Licensee may make the necessary number of copies for the transfer, migration, distribution and/or movement of the Software between Licensee’s hardware that the software is designed to be installed and/or run upon. Only one instance of the software will run at any given time.

d. To the extent provided by Kahler Automation, the Software license granted to Licensee applies to all Upgrades and Updates to the Software released.

e. Kahler Automation represents and warrants to Licensee that from and after the date of this Agreement until the Work is completed and during the Term, there will be no material changes to the Software except for Upgrades and Updates.

f. Except as otherwise expressly stated in this Agreement, there is no additional license fee for Licensee’s use of the Software or the Documentation.

g. Kahler Automation is not responsible for maintaining any backups or other data of Licensee as used in the Software, and Licensee is solely responsible and liable for making necessary backups of its data residing in the Software.

7. Service Level Agreement (SLA): During the term of this Agreement and for so long as Licensee is entitled to receive service hereunder, Kahler Automation will provide the following support services (collectively, the “Support Services”) through its Support Center, for the eligible Work listed in the software subscription quote or service contract:

a. The Support Center phone system will be the primary point of contact for all Kahler provided software and hardware product support inquiries. The Support Center may be contacted via phone at 507-235-6648 or email at support@kahlerautomation.com

b. The Support Center will be staffed with qualified support technicians who have experience with the Software and are familiar with the environments they operate in. The Support Center will endeavor to rectify the Software errors that impact Licensee’s use and operation of the Software as set forth in this section. However, Kahler Automation does not warrant that the Software will be error free, will work in combination with third party software not provided by Kahler Automation, or will perform in an uninterrupted manner.

c. For as long as this Agreement remains in effect, Licensee will have telephone, email, and where applicable, remote access support for eligible Software and unmodified Hardware that was provided by Kahler, during the hours of operation of the Support Center. Excluding Kahler recognized holidays in the respective geography, support will be available during normal business hours from 7am CST to 5pm CST, Monday through Friday.

d. After hours and holiday support is available and will be billable. The billing rate will be disclosed to Licensee at the time the request for service call is placed. In instances where root cause is determined by Kahler Automation to be that of Kahler Automation, charges will be waived.

e. Support inquiries, whether initiated by email, telephone, or otherwise, will be recorded by Kahler Automation in a tracking system and assigned a tracking number that will be used to communicate with the Customer and to track progress the inquiry.

f. The Work may include software that can now or may in the future be configured to automatically report error statuses and causal routines to Kahler Automation for multiple purposes including product reliability improvement. Automatic reporting of errors does not constitute a support inquiry.

g. Callback/Resolution Times: Kahler Automation guarantees a response to request for support within a 24-hours, resolution time will be dependent upon the root cause found which is variant case by case.

h. Classroom software training: During the first year of this Agreement, not to include renewal years, Licensee will have the option to reserve at no charge two seats from among available seats in regularly scheduled classroom software training conducted at Kahler Automation in Fairmont, MN. Seats reserved but not filled, whether due to cancellation by Licensee or no-show, may be subject to billing.

i. The following services are excluded from this Agreement and from Support Services and may be subject to additional billing:

i. Support for software that is not part of the Work quoted and subject to this agreement

ii. User training to be conducted in classroom or on-site, other than what is expressly provided above

iii. After hours support

iv. On-site service repair or support

v. Travel to site and necessary expenses associated for On-site service repair or support

vi. Update, upgrade, modification, or later version of any Work identified as custom or support only

vii. Support related to ransomware, virus, or any other threat actor breach of the Licensee’s computers or network not caused by the Work

viii. Support for network or computer failure, upgrade, or replacement, including reinstallation on replacement or upgraded computers

ix. API consultation services

8. Security and Notifications. Licensee must keep usernames and passwords confidential and agree not to share them with any third parties. Licensee is solely responsible for ensuring that Licensee’s networks and systems are adequately secured against unauthorized intrusion or attack and for regularly backing up Licensee Data and files in accordance with good computing practices. Licensee must notify Kahler Automation promptly about any possible misuse of its accounts or authentication credentials or any security incident related to the Work.

If Kahler Automation becomes aware of a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Licensee Data while processed by Kahler Automation (each a “Security Incident”), Kahler Automation will promptly notify Licensee of the Security Incident; investigate the Security Incident and provide Licensee with detailed information about the Security Incident; and take reasonable steps to mitigate the effects and to minimize any damage resulting from the Security Incident. Notification(s) of Security Incidents will be delivered to Licensee by any means Kahler Automation selects, including via email. It is Licensee’s sole responsibility to ensure Licensee maintains accurate contact information with Kahler Automation. Kahler Automation’s notification of or response to a Security Incident is not an acknowledgement by Kahler Automation of any fault or liability with respect to the Security Incident.

Licensee is solely responsible for complying with its obligations under incident notification laws applicable to Licensee and fulfilling any third-party notification obligations related to any Security Incident. Kahler Automation will make reasonable efforts to assist Licensee in fulfilling Licensee’s obligation under applicable law or regulation to notify the relevant supervisory authority and data subjects about such Security Incident.

9. ALL WARRANTIES PROVIDED BY KAHLER AUTOMATION TO LICENSEE SHALL BE IMMEDIATELY VOID IF ANY SOFTWARE IS MODIFIED BY LICENSEE, ITS EMPLOYEES, AGENTS OR ANY OTHER ENTITY OTHER THAN KAHLER AUTOMATION. Warranty of non-infringement. Kahler Automation warrants that the Software (including updates and upgrades) and the sale and/or use thereof (before or after incorporation into products during manufacture) do not and will not infringe, misappropriate, or violate any Intellectual Property Rights and any Intellectual Property Rights of third parties. “Intellectual Property Rights” means all rights arising under U.S. or foreign law relating to patent, trademark, copyrights, moral rights, industrial design right, proprietary information and trade secrets, or other intellectual property rights.

Should any aspect of Kahler Automation’s Software become the subject of an infringement claim, action, or proceeding, Kahler Automation shall, at its sole expense and at Licensee’s option, (i) obtain a license that would permit Licensee to exercise those rights granted to them under this Agreement or, (ii) modify the allegedly infringing products to render them non-infringing. In addition, notwithstanding anything to the contrary in this Agreement, Kahler Automation shall indemnify, defend, and hold Licensee and its officers, directors, employees, and agents harmless from and against any claim by a third party that the Software furnished to Licensee under this Agreement infringes on any patent, trademark, copyright, or other proprietary right of any third party or becomes the subject of an injunction or settlement prohibiting the use of the Software.

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