IMPORTANT—READ THIS AGREEMENT CAREFULLY: This End-User License Agreement (“EULA”) is a legal contract between you (either an individual or a single entity) (“You, Your, or LICENSEE”) and Simio LLC. ("SIMIO”) for the software product or products that SIMIO licenses to You, which includes computer software and may include associated media (“Software”). SIMIO may also license to You printed materials, and “online” or electronic documentation ("Documentation"). An amendment or addendum to this EULA may accompany the Software. SIMIO IS WILLING TO LICENSE THE SOFTWARE AND DOCUMENTATION TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT. YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE SOFTWARE, AND PROMPTLY RETURN THE SOFTWARE WITH ALL ACCOMPANYING ITEMS TO YOUR PLACE OF PURCHASE FOR A FULL REFUND. IF YOU DOWNLOADED THE PROGRAM, CONTACT THE PARTY FROM WHOM YOU ACQUIRED IT. This Software is licensed to You -- not sold. Your rights to use the Software are only those rights specified in this EULA. GRANT OF LICENSE Provided You comply with all the terms and conditions of this EULA, SIMIO and its third party licensors grant You a non-exclusive license to install and use the Software on a single computer, a network server, or on multiple computers owned or leased by the LICENSEE provided the number of installations and users is not greater than the number of valid software activations purchased. In the case of a Site License, use of the license is authorized only to those devices owned by the site for which the license is granted. Use of the Site License at other company locations is prohibited without prior written permission. This License does not grant You the right to provide or utilize the Software as an application service provider or the like. Use of Software on a virtual machine is supported but the performance may be limited by network legacy, graphics support, and other related hardware issues. Any sublicense, rental, sale, lease, or commercial hosting of the Software is prohibited. However, You may transfer rights to use the Software on a permanent basis, provided: (1) You transfer this EULA, the Software, and all accompanying written materials and retain no copies; (2) the recipient agrees to the terms of this EULA; (3) the recipient agrees to follow the software activation process; and (4) You first notify SIMIO in writing of the date of transfer and the recipient’s full name and address. If this Software is an upgrade or update to a previous version of a SIMIO product, You may not transfer the prior version to another user. If an additional activation is provided to support an upgrade or transfer between machines, You agree to permanently delete the replaced activation and ensure that it is no longer used. This EULA supersedes any prior license with respect to Your use of the Software. This Software is protected under applicable patent and copyright laws. The Documentation is copyrighted. Unauthorized copying, reverse assembly, reverse engineering, decompilation, and creating derivative works based on the Software are prohibited. You may make a copy of the Software provided that any such copy is only for archival purposes to internally back-up the Software, or is created as an essential step in the internal installation of Software within your organization. You may not make any other copies of the Software. LIMITED WARRANTY The Software is warranted for ninety (90) days after its initial delivery to You that it will substantially conform to its Documentation supplied by SIMIO at the time of initial delivery of the Software. This warranty shall be void if You attempt to modify the Software in any way. SIMIO makes no representation or warranty, express or implied, that the operation of the Software will be uninterrupted or error free, or that the functions contained in the Software will meet or satisfy Your intended use or requirements; You assume complete responsibility for decisions made or actions taken based on information obtained using the Software. TO THE MAXIMUM EXTENT PERMITTED BY LAW THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND SIMIO DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY OF TITLE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY UNDER UCITA. SOME COUNTRIES AND STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM COUNTRY TO COUNTRY OR STATE TO STATE. LIMITATION OF REMEDIES SIMIO’s entire liability and Your exclusive remedy for breach of the Limited Warranty shall be: 1. The replacement of the Software not meeting the Limited Warranty specified above which is returned with proof of purchase; or 2. If SIMIO is unable to deliver replacement Software which meets the Limited Warranty specified above, You may terminate this EULA by returning or destroying the Software as provided herein, and SIMIO or its reseller will refund Your purchase price; or 3. For any reason you determine, you may terminate this EULA within the ninety (90) Day Warranty Period by returning or destroying the Software as provided herein, and SIMIO or its reseller will refund your purchase price. MUTUAL LIMITATION OF LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SIMIO, THE LICENSEE OR ITS THIRD PARTY LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR LOST SAVINGS, FOR LOSS OF PRIVACY, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF SIMIO OR ITS RESELLER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITED LIABILITY DOES NOT APPLY TO BREACH OF THIRD PARTY IP RIGHTS. SOME COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. SIMIO'S MAXIMUM CUMULATIVE LIABILITY RELATIVE TO ALL CLAIMS AND LIABILITIES, INCLUDING THAT WITH RESPECT TO DIRECT DAMAGES AND OBLIGATIONS UNDER ANY INDEMNITY, WHETHER OR NOT INSURED, WILL NOT EXCEED THE COST OF THE SOFTWARE GIVING RISE TO THE CLAIM OR LIABILITY. ALL OF THESE DISCLAIMERS AND LIMITATIONS OF REMEDIES AND/OR LIABILITY WILL APPLY REGARDLESS OF ANY OTHER CONTRARY PROVISION OF THIS EULA OR ANY OTHER AGREEMENT BETWEEN YOU AND SIMIO AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, AND FURTHER WILL EXTEND TO THE BENEFIT OF SIMIO’S VENDORS, APPOINTED DISTRIBUTORS AND OTHER AUTHORIZED RESELLERS AS THIRD-PARTY BENEFICIARIES. TERM AND TERMINATION The Software may be licensed on either a Perpetual or Subscription basis. In the case of a Perpetual license, the license remains in force indefinitely unless otherwise terminated. In the case of a Subscription license (or any license with a stated expiration date), the license remains in force until the specified expiration date, at which time the license is automatically terminated unless it is renewed on or before the expiration date. The license will automatically terminate if You fail to comply with any term or condition of this EULA. You agree on termination of this EULA, within thirty (30) days written notice from Simio of an EULA breach, to either i) correct the breach or ii) either return to SIMIO or destroy all copies of the Software, Activation, and Documentation in Your possession. SUPPORT AND SERVICE LEVEL AGREEMENT SIMIO maintains a toll-free telephone support line for technical assistance twenty-four hours a day, seven days a week (24x7). The support line is available for live communication during normal working hours and is backed up by a voice mail system that will record requests for assistance. An on-line technical support site is also available 24x7 with two primary components: 1) An on-line searchable knowledgebase that provides instant solutions for many common problems. 2) On-line logging of suggestions and support issues that includes support for user attachments and screen shots that are often useful in resolving problems. In addition, Simio includes features to support optional automatic reporting of certain issues to streamline the issue reporting and problem resolution process. SIMIO strives to respond to every request within one business day. SIMIO provides new releases as frequently as every third week to make new features and any required bug fixes available as expeditiously as possible. In addition, for critical issues, interim releases or work-arounds may be made available when appropriate. SIMIO allows updates to any software released within the paid up annual fee maintenance period. For example, annual maintenance agreements expiring August 30, 2020, customers can download and run software that is compiled on or before that date. Attempts to use software compiled on September 1st, 2020 will receive a message that the activation will not support running that software and they will be put into evaluation mode (a.k.a. “Personal Edition”). The customer may uninstall that version, and reinstall the previous version, and can continue running that version without limitation. Aside from the above, activation is not affected by new releases. Customers do not need to make any changes to their activation to update to a new release, even a major release. ACADEMIC USE If this Software was obtained for academic or research use by a student or educational institution, it may be used for teaching and research purposes only. Commercial use of the Software is prohibited if the software was intended for educational use. Only the instructor/professor registered to the Software is eligible to contact SIMIO for technical support and product updates. You have the right to make copies of the Software (the media excluding activation) solely for academic, teaching and research purposes. PREPRODUCTION RELEASES As an accommodation to LICENSEE, SIMIO may provide LICENSEE with a preproduction release of the Software (often labeled a “beta release”). These releases are not suitable for production use. SUCH RELEASES ARE PROVIDED ON AN “AS IS” BASIS. SIMIO DOES NOT WARRANT PRE-PRODUCTION RELEASES. SAMPLES The Software may contain samples that are provided as an accommodation to You (“Sample Project Files”). These Sample Project files are intended to be used for example only. The Sample Project Files may be contained in the Software, Documentation or downloaded from the SIMIO website. SIMIO and its third party licensors make no representations or warranties regarding Your use of the Sample Project files and related Documentation. All such Sample Project Files are provided "as is". SIMIO disclaims all warranties with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. GOVERNMENT RESTRICTED RIGHTS If You are a branch or agency of the United States Government, the following provision applies. The Software and Documentation are comprised of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212 (SEPT 1995) and are provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 (JUN 1995) and 227.7202-3 (JUN 1995). EXPORT CONTROLS You acknowledge that the Software is subject to the export control laws and regulations of the United States and any amendments thereof. You agree that You will not directly or indirectly transfer or use the Software except in compliance with applicable U.S. export laws and regulations. OWNERSHIP The Software and Documentation are protected by patent, copyright and other intellectual property laws and treaties. SIMIO or its licensors own the title, copyright, and other intellectual property rights in the Software and Documentation. The Software and Documentation is licensed, not sold. Nothing in this EULA constitutes a waiver of our rights under U.S. or international patent or copyright law or any other law. MISCELLANEOUS This EULA shall be governed by the laws of the State of Pennsylvania, without regard to any conflict of laws provisions. The United Nations Convention on the International Sale of Goods will not apply. You agree to bring any action in connection with this EULA or the Software exclusively in the state or federal courts of Pennsylvania, and You further agree to the jurisdiction of the state and federal courts of Pennsylvania for any action that SIMIO brings against You. This EULA, and any amendment or addendum to this EULA that accompanies the Software is the complete and exclusive agreement between SIMIO and You, and supersedes all prior agreements, whether written or oral, relating to the Software provided and the Documentation. This EULA may not be changed or modified except by an instrument in writing signed by a duly authorized representative of SIMIO. If for any reason a court of competent jurisdiction finds any provision of this EULA or portion thereof, to be unenforceable, that provision of the EULA shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this EULA shall continue in full force and effect. The parties acknowledge that they have required the EULA to be drafted in English. In the event of a conflict between the English and other language versions, the English version will prevail. INFRINGEMENT 1. Indemnity. Simio shall defend, indemnify, and hold harmless all Indemnitees from and against all Claims and Losses, to the extent such Claims and Losses arise out of the infringement of any patent, copyright or similar right (e.g., moral rights) by the Software or involve the misappropriation or wrongful use of any trade secret or confidential information. Licensee shall give Simio notice of all Claims made against an Indemnitee and shall cooperate with Simio (at Simio's expense) in the defense or settlement of such Claims. In no event shall Simio's obligations hereunder be limited to the extent of any insurance available to or provided by Simio. 2. Exclusions. The paragraph entitled "Indemnity" of this clause does not apply to any Claim arising out of the unauthorized modification, combination, operation, or use of the Software by Licensee, to the extent the Claim would not have arisen had such modification, combination, operation, or use not occurred. 3. Cure. As soon as Simio or Licensee has reason to believe a Claim is likely to be made against Licensee, Simio shall, promptly and at its sole expense, use its best efforts to settle, avoid, or otherwise cure the Claim by one of the following procedures: a. Obtain a license for Licensee to continue using the Software giving rise to the Claim in accordance with this Agreement. b. Modify such Software to make them noninfringing while maintaining the equivalent or better functionality, features, and performance. c. Replace such Software with a noninfringing product, either from Simio or another Seller, having the equivalent or better functionality, features and performance. 4. The procedures are set forth above in order of precedence. Simio shall pursue each of these procedures in the order stated until the cure is accomplished. Licensee reserves the right, however, to direct Simio to attempt these procedures in a different order in the interest of minimizing the adverse impact of the cure on Licensee operations. These obligations are in addition to, not in lieu of, Simio's obligations under the paragraph entitled "Indemnity" of this clause and any other remedy provided at law or in equity. 5. Cancellation of License. If, despite its best efforts to do so, Simio is unable to effect a cure under the paragraph entitled "Cure" of this clause, and a permanent injunction ordering Licensee to cease further use of the Software is issued by a court of competent jurisdiction, either party may cancel the Contract under which the Software was ordered, either in whole or in part, whereupon Licensee may return all or any portion of the Software to Simio for a full refund of all fees (including license, support and maintenance). Any license granted under this Agreement with respect to the returned Software will terminate as of the effective date of the cancellation. This remedy is in addition to, not in lieu of, Simio's obligations under the paragraph entitled "Indemnity" of this clause and any other remedy provided at law or equity. AVAILABILITY OF SOURCE CODE 1) Failure to do Business in Ordinary Course. If Licensee determines that Simio is no longer continuing to do business in the ordinary course, then Simio agrees to grant Licensee a license upon reasonable terms and conditions covering the source code corresponding to the Licensed Software. This obligation to license the source code under this paragraph (1) shall only apply if: a) Licensee makes a written request for such a license from Simio; and b) Simio, at the time of the request, had a support and/or maintenance obligation to Licensee, as described in the clause entitled “Support Services” herein, that it was unable or unwilling to fulfill. Any license granted pursuant to this paragraph (1) will be subject to the following terms: a) Any source code license shall be limited to use by Licensee on Licensee's central processing units to support and/or maintain the Licensed Software; and b) This license includes the right to authorize employees or agents of Licensee’s suppliers or subcontractors who are performing work for Licensee on Licensee premises to perform any of the activities described above. 2) Bankruptcy, Insolvency, Reorganization, Liquidation, Winding-up or Dissolution. In addition to any license that may be granted to Licensee pursuant to paragraph (1) above, in the event any proceeding, voluntary or involuntary, is commenced relative to Simio pursuant to a statute relating to bankruptcy, insolvency, reorganization of debts, liquidation, winding-up or dissolution, Simio agrees to grant Licensee a license upon reasonable terms and conditions covering the source code corresponding to the Licensed Software. This obligation to license the source code under this paragraph e.(2) shall only apply if: a) Licensee makes a written request for such a license from Simio; b) Simio, at the time of the request, had a support and/or maintenance obligation to Licensee, as described in the clause entitled “Support Services” herein, that it was unable or unwilling to fulfill; c) Simio is unable to obtain the services of a third party to fulfill Simio’s support and/or maintenance obligation; and d) Simio, after reasonable inquiry and effort, is unable to fulfill the support and/or maintenance obligations through a third party. 3) In the case of a voluntary or involuntary bankruptcy, to the extent the court allows such a license, the following terms will apply: a) Any source code license shall be limited to use by Licensee on Licensee's central processing units to support and/or maintain the Licensed Software. b) The costs of any license procured for Licensee shall be born solely by Licensee. Licensee shall also reimburse any costs incurred by Simio in assisting Licensee in obtaining such license. c) This license includes the right to authorize employees or agents of Licensee’s suppliers or subcontractors who are performing work for Licensee on Licensee premises to perform any of the activities described above