MASTER PRODUCTS AND SERVICES END USER LICENSE AGREEMENT (“EULA”).

This Agreement (the “Agreement”) is made by and between Plexos Software S.A.S. a Colombian corporation, located at Bogotá - Colombia (“Plexos SAS”) and User, (“User”) (referred to collectively herein as “the Parties”) and contains the terms and conditions governing User’s procurement of Plexos Project. This Agreement shall become binding when User downloads and installs Plexos Project.

GENERAL TERMS AND CONDITIONS

1. DEFINITIONS. 

• “Plexos Project” is an application designed under the Lean Construction principles for a collaborative and multidisciplinary BIM workflow, available for download by User. This includes all fixes and new releases provided by Plexos SAS (or its authorized representative) to User, as well as all copies thereof. 

• “Trial Version” A version of Plexos Project, to be used as a trial of Plexos Project for one User for a 30-day period. The Trial Version has limited features when the trial period is expired.

• “Purchased Version” A version of Plexos Project that includes all features, upgrades, updates, support and operates itself by default.

• “License period” Period of time in which the User can use the Purchased Version. 

• “Beta Version” A version of Plexos Project, to be used only to review and debug the software for a limited period of time. 

• “Academic Version” A total functionality version of the Plexos Project, to be used in an academic setting for educational purposes only. 

• “Professional Version” The User may purchase any of the offered Version types for Plexos Project which may be changed or amended by Plexos SAS without prior announcement to User or further potential customers. 

• “New Release” Any enhanced or modified version of Plexos Project issued by Plexos SAS or its authorized partners. 

• “Days” or “day(s)” shall mean calendar days. 

• “Documentation” means the Plexos Project published or online user manuals that Plexos makes available for the Products. 

• “Computer” hardware, servers, networks on which Plexos Project shall be downloaded, operate regardless of whether the Computer is operated by User or by a third party. 

• “Service(s)” Maintenance Support Services, Professional Services as defined below, all as hereinafter defined, provided to User in the Territory. 

• “Schedule” means a Territory-specific, Product-specific or Service-specific attachment to this Agreement, as set forth in Section 11 or, subsequent to the Effective Date of this Agreement, which is mutually executed by the Parties. 

• “Support Policies” means current maintenance and support policies and procedures, which may be updated by Plexos SAS available online to Plexos Project Users that have procured Maintenance Support Services. 

• “Territory” means the countries listed on the applicable Schedule. 

• “Use or Download” Means the benefit from using/downloading the functionality of the Plexos Project in accordance with this EULA.

• “Upgrade License” Allows the users who have purchased Plexos Project license to upgrade Plexos Project to its newer free versions during the period of validity of the license. Once the license period expires, the Users can upgrade to newer versions of Plexos Project only if they purchase an Upgrade License for the expired initial Plexos Project license.

2. SOFTWARE LICENSE.

(a)   License Grant.  Plexos SAS hereby grants to User, and User hereby accepts from Plexos SAS, a restricted, non-exclusive, non-transferable, and non-assignable right to use the licenses of  Plexos Project in accordance with the version purchased or downloaded by the User for User’s own internal business operations consistent with the limitations and conditions set forth in this Agreement. The versions of Plexos Project may be modified or amended by Plexos SAS without announcing the User or further potential customers. User is authorized to: i) use all releases while subscription is active (Software support is not available when the License Period is expired); ii) use all releases and Maintenance Support Services while the Purchased Version is active.

(b)  License Restrictions.  Subject to the terms set forth herein, User may use Plexos Project on its Computer up to the number of licenses specified on the downloaded version, within the Territory, solely for its own internal business use. User shall not re-sell, transfer, publish, disclose, display, modify, copy, decompile, in whole or in part in any way, or remove any trade or other marks of the software or otherwise make available to others any source code, object code or executive, documentation, or other material relating to the software without expressed written approval by Plexos SAS or unless arranged to do it so under the terms and conditions of this Agreement. User shall not rent, lease, or sublicense the software to any third party; except User’s agent(s) and/or Affiliate(s) that may access the software installed at User’s site solely in furtherance of User’s business and provided that User remains liable for the acts and omissions of any such agent(s) and/or Affiliate(s) and for ensuring their compliance with the License and confidentiality terms set forth herein. User shall not, and shall not permit any third party to distribute, make available to the public, transfer, install, or otherwise make use of the software outside the Territory. User shall not at any time remove, modify, obscure, or otherwise alter in full or in part any trademark, slogan, claim, trade dress, copyright or other proprietary notice(s) of Plexos SAS or a third party. Plexos SAS may terminate the License by written notice with immediate effect (i) if User infringes or misappropriates any Plexos SAS Intellectual Property rights (as defined in Section 7 hereof), (ii) as provided in Section 5(b) and Section 6(b) herein; or (iii) if User fails to cure any other material breach of this Agreement within thirty (30) days after receipt of written notice from Plexos SAS. In the event of a License termination, User shall immediately return or destroy Plexos Project and all copies thereof as directed by Plexos SAS and, upon request of Plexos SAS, a duly authorized officer of User shall certify in writing to Plexos SAS as to the destruction or return of the software and all copies thereof. User shall indemnify, defend, and hold Plexos SAS harmless, from and against any claim, loss, cost, or other expense resulting from User’s non-compliance with the license restrictions set forth in this section, including but not limited to violation of any applicable export and intellectual property laws.

(c)  Usage Verification.  Plexos SAS reserves the right to conduct an audit of User’s records and operations related to Plexos Project solely for purposes of ensuring User’s compliance with this Agreement. Any audit shall be conducted at a mutually agreed upon date and time during User’s standard business hours. If Plexos SAS discovers through the results of an audit performed hereunder or through any other means that User is using more licenses of the software than it has procured hereunder, User shall immediately pay Plexos SAS the then-current list License fee, including reasonably estimated arrears for Maintenance Support Services fees, for any such additional unauthorized licenses. The limitation of liability set forth in Section 10 shall not apply to User’s unauthorized use or misappropriation of the software. In the event such an audit results in the determination that the User’s usage exceeds 5% more than User’s licensed usage rights, then User shall be required to reimburse Plexos SAS for the reasonable fees associated with the performance of such audit.

3.   PURCHASE AND PAYMENT

(a) Purchase.  For each of User’s purchases of any version, services or license hereunder, including, without limitation, for each renewal of Maintenance Support Services under Section 4 hereof, User shall execute the required information and accept the terms of this Agreement.

(b) Currency.  All Product or Service fees or other charges payable by User hereunder shall be paid in USD Dollars.

(c) Taxes.  All fees and other charges quoted or provided pursuant to this Agreement shall be exclusive of any sales, use, value-added, or other taxes, fees, or costs which may be imposed, levied, or assessed against the sale, licensing, configuration, delivery, or use of Plexos Project. User shall pay all taxes that may become due as a result of this Agreement, excepting only Plexos SAS income and payroll related taxes. 

(d) Refund Policy. Once User has purchased Plexos Project, whichever version chose, User will receive an e-mail with a purchase code to activate the software. Once User receives this activation code, no refunds will be accepted by Plexos SAS.

 
4. PLEXOS SAS SERVICES

(a) Maintenance Support Services.

If purchased by User in accordance with Section 3 of this Agreement, Plexos SAS standard Maintenance Support Services (“MSS”) for Plexos Project shall be rendered in accordance with this Section 4.  No support or maintenance of the software, including, without limitation, technical support, telephone inquiries, upgrades, or code fixes, is available to User unless User has procured Maintenance Support Services from Plexos SAS. In accordance with Support Policies, Maintenance Support Services consists of: i) undertaking commercially reasonable efforts to resolve problems or bugs of the purchased software in a period of time depending on the severity of the case and determining by Plexos SAS. ii) Providing new releases of the software for which User has procured Licenses hereunder, which releases may contain code fixes, improvements or enhancements. Plexos SAS will not provide MSS if User has failed to: i) use the software in accordance to the Documents, ii) has modified or attempted to modify the software, or iii) has failed to upgrade the purchased software when recommended by Plexos SAS.

5. WARRANTIES AND REMEDIES.

(a) Limited Warranty.  Plexos SAS warrants (“Warranty”) that (i) the software shall be free from defects in material and workmanship and the software shall perform substan­tially as described in the accompanying Documenta­tion, for a period of (1) year period from the date of installation of the software. Any supplements, updates or replacement software that User may receive from Plexos SAS during that year are also covered, but only for the remainder of that (1) year period or for  thirty (30) days, whichever is longer (“Product Warranty”) and (ii) all services provided to User by or on behalf of Plexos SAS shall be performed in a good and workmanlike manner in accordance with applicable industry standards (“Services Warranty”).

(b) Remedies.  For a breach of the Product Warranty, which is reported to Plexos SAS to the e-mail address support@plexosproject.com during the Warranty period, Plexos SAS shall correct or replace the defective software or, if such is not practical in Plexos SAS reasonable judgment, Plexos SAS shall refund to User the amount actually paid to Plexos SAS therefor with respect to any such returned Product(s).  For a breach of Services Warranty, Plexos SAS shall promptly re-perform the defective service at no additional charge, or if such is not practical in Plexos SAS judgment, provide to User a refund of the amount actually paid to Plexos SAS for such defective service, provided that User has reported such breach no later than sixty (60) days following Plexos SAS performance of such service.  Each Product Warranty or Services Warranty breach shall be reported to Plexos SAS in writing. User shall allow Plexos SAS reasonable remote and local access to the Computer to perform Warranty support in accordance with Plexos SAS remote access requirements.  User hereby waives any other rights that it might otherwise have in connection with the foregoing. THIS SECTION SETS FORTH PLEXOS SAS SOLE LIABILITY AND USER’S SOLE REMEDY FOR BREACH OF WARRANTY.

(c) Disclaimer.  EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 5(a), PLEXOS SAS, ITS  AUTHORIZED LICENSORS, DISTRIBUTORS, AUTHORIZED REPRESENTATIVES AND RELATED PERSONS DISCLAIM ALL OTHER WARRANTIES, REPRESENTATIONS, AND GUARANTEES, HOWEVER ARISING, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, AS TO PLEXOS SAS PRODUCTS AND SERVICES, INCLUDING BUT NOT LIMITED TO THE USE, SUFFICIENCY, OR ACCURACY OF THE PRODUCTS OR OF ANY TELEPHONE NUMBER/TIME ZONE DATA PROVIDED WITH THE SOFTWARE, AND EXPRESSLY EXCLUDE ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY OF NON-INFRINGEMENT, OR ANY WARRANTY THAT OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE. NO PLEXOS SAS EMPLOYEE, AUTHORIZED LICENSEE OR DISTRIBUTOR, IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS OR ADDITIONS TO THESE WARRANTY PROVISIONS OR TO THIS AGREEMENT.

(d) Warranty Exclusions.  Plexos SAS will have no obligations under this Section 5 if the breach is caused by (i) abuse, misuse, alteration, neglect, accidental damage, unauthorized repair or installation of a software; (ii) User’s hardware, software, networks, or systems; (iii) User’s failure to use Plexos Project in accordance with the applicable Documentation, or (iv) Software(s) or Services not purchased directly to Plexos SAS or its Licensors.

6. INDEMNITY.

(a) Indemnity.  Subject to the provisions of this Section 6, if an action is brought against User claiming that Plexos Project when used in accordance with the Documentation and as permitted under this Agreement in the Territory, infringes a valid patent or a trademark registered before, Plexos SAS shall defend User at Plexos SAS expense and pay the damages and costs finally awarded against User in relation to the infringement or misappropriation action, but only if (i) User notifies Plexos SAS promptly upon learning that an action has been or might be asserted, (ii) Plexos SAS has sole control over the defense of the action and any negotiation for its settlement or compromise, and (iii) User fully cooperates in Plexos SAS defense of such action. Plexos SAS shall have no obligation or liability under this Section 6 if the action results from (i) a modification of Plexos Project not performed by Plexos SAS or its authorized representatives, or any such modifications performed by Plexos SAS or otherwise at User’s request, (ii) the failure to promptly install a new maintenance release or version of the software that would have eliminated the actual or alleged infringement or misappropriation, (iii) the use of any non-Plexos product, information, design, specification, instruction, trademark, slogan, copyright, software, data, trade secret, confidential information, material or Intellectual Property Right, in combination with Plexos Project where such infringement would not have arisen but for such combination, (iv) Plexos SAS or its authorized representative’s compliance with instructions, designs, plans or specifications furnished by or on behalf of User, or (v) any copyrights or patent infringement claims alleging infringement by User-specific processes or methods created by or on behalf of User using Plexos Project, but for such User-specific method or process, the patent infringement claim would not have arisen.

(b) Opportunity to Cure.  If a covered claim described in Section 6(a) may be or has been asserted, User shall permit Plexos SAS, at Plexos SAS option and expense, to (i) secure the right for User to continue using Plexos Project, (ii) replace, modify, or create a workaround for Plexos Project to eliminate the infringement or misappropriation while providing func­tionally equivalent performance, or (iii) terminate the applicable License and, upon User’s return of the infringing software, refund to User the amount actually paid to Plexos SAS for such software, less depreciation based on a five (5) year straight-line depreciation schedule.

(c)  THIS SECTION 6 SETS FORTH PLEXOS’ SOLE LIABILITY AND USER’S SOLE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM.

 
7. OWNERSHIP.

All rights, title or interest to any intellectual property with respect to any patent, copyright (including, without limitation, any derivative works), trademark, service mark, trade name, slogan, claim, trade secret, inventions, work processes, reports, drawings or other rights in any confidential or non-public information owned or legally held by Plexos SAS, its affiliates, or third-party licensors which are present in or associated with Plexos SAS’ Software, Documentation, or other Plexos SAS information and proprietary materials, including, without limitation, all computer programs, algorithms, program listings, programming tools, procedures, reports, and drawings (except to the extent that such reports or drawings contain User specific data or information) (Plexos’ Intellectual Property”) is and shall remain the exclusive property of Plexos SAS, its affiliates, and/or its third party licensors. User is not permitted to create derivative works from Plexos SAS’ Intellectual Property without Plexos SAS prior written authorization in the form of an amendment to this Agreement signed by an authorized representative of each party. User’s limited right to use such Plexos SAS’ Intellectual Property shall be governed by the licensing and confidentiality provisions of this Agreement which relate to, govern, and/or protect the software or other deliverables to which such Plexos SAS’ Intellectual Property is associated. Notwithstanding anything to the contrary contained in this Agreement, Plexos SAS reserves the right to seek all legal and equitable rights and remedies available to Plexos SAS against User for any use by User of any Plexos SAS’ Intellectual Property in violation of this Agreement.

 
8. CONFIDENTIAL INFORMATION.

(a)  Confidentiality.  Each party acknowledges that (i) this Agreement, any Quotation, and the Products and Services to be provided hereunder incorporate confidential and proprietary information developed or acquired by Plexos SAS and (ii) each party may receive or have access to other proprietary or confidential information disclosed and marked as confidential by the disclosing party (collectively, the "Confidential Information"). Notwithstanding the foregoing statement, Confidential Information shall automatically include (without obligation for written notification as set forth above) (i) with respect to Plexos SAS: Products, Documentation, financial data, and the results of any benchmark tests performed by User in connection with the Product(s); and (ii) with respect to User: personally identifiable or otherwise sensitive information regarding User’s User(s) which Plexos SAS may receive from or through User, in the course of either party performing its respective obligations hereunder, provided however that User shall use commercially reasonable efforts to prevent or minimize disclosure to Plexos SAS of any such personally identifiable or User-sensitive Confidential Information, except to the extent such disclosure is reasonably necessary in order for Plexos SAS to perform its obligations hereunder. The receiving party shall use the disclosing party's Confidential Information solely to perform its obligations under this Agreement. The receiving party shall take all reasonable precautions necessary to safeguard the confidentiality of the disclosing party's Confidential Information, including without limitation, (i) those taken by the receiving party to protect its own confidential information and (ii) those which the disclosing party may reasonably request from time to time.

(b) Disclosure.  The receiving party shall not disclose, in whole or in part, the disclosing party's Confidential Information to any person, except to the receiving party's employees and independent contractors who (i) shall access and utilize the disclosing party’s Confidential Information for no purpose or benefit other than to exercise the receiving party’s rights and obligations as expressly set forth in this Agreement; and (ii) are under an obligation of confidentiality which is no less restrictive than the provisions contained herein.

(c)  Unauthorized Use or Disclosure. The parties acknowledge that any unauthorized use or disclosure of the disclosing party's Confidential Information may cause irreparable damage to the disclosing party.  If an unauthorized use or disclosure is discovered, the receiving party shall promptly notify the disclosing party and, at the receiving party’s expense, take all steps reasonably necessary to recover the disclosing party's Confidential Information and to prevent its subsequent unauthorized use, disclosure, or dissemination, including availing itself of actions for seizure and injunctive relief.  If the receiving party fails to take these steps in a timely and adequate manner, the disclosing party may take them at the receiving party's expense, and the receiving party shall provide the disclosing party with such reasonable cooperation in such actions as the disclosing party may request.

(d) Limitation.  The receiving party shall have no confidentiality obligation with respect to any portion of the disclosing party's Confidential Information that (i) is independently developed by the receiving party without breach of this Agreement and such independent development can be demonstrated to the reasonable satisfaction of the other party, (ii) the receiving party lawfully obtained from a third party under no obligation of confidentiality, (iii) is or becomes generally available to the public other than as a result of an act or omission of the receiving party or its agents or representatives, or (iv) the receiving party is compelled to disclose pursuant to legal process provided by a court of competent jurisdiction provided that the receiving party shall notify the disclosing party promptly upon learning that it shall be so compelled and, concurrent with such required disclosure, takes such actions as the disclosing party may reasonably request to protect the confidential or proprietary nature of such Confidential Information in such proceedings. Notwithstanding anything to the contrary herein, Plexos Project shall not be deemed to have been placed in the public domain by Plexos SAS for purposes of this Section 8.

9. LIABILITY.

(A) UNDER NO CIRCUMSTANCES SHALL PLEXOS SAS, ITS LICENSORS, OR ITS RELATED PERSONS AND USER OR ITS RELATED PERSONS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, OR LOST PROFITS (UNLESS SUCH DAMAGES RESULT FROM THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE PARTY AT FAULT), WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON THE OTHER PARTY’S CLAIMS OR THE CLAIMS OF ANY THIRD PARTY (INCLUDING WITHOUT LIMITATION CLAIMS FOR BUSINESS INTERRUPTION, LOSS OF DATA OR INFORMATION OF ANY KIND, GOODWILL, USE OF MONEY OR USE OF THE PRODUCTS, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY OR REMEDY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, THE FAILURE OF ANY REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE OR OTHERWISE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR THE PERFORMANCE OF ANY OF THE PRODUCTS OR SERVICES.

(B) UNLESS OTHERWISE REQUIRED BY LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY THAT PLEXOS SAS, ITS LICENSORS OR ITS RELATED PERSONS AND USER OR ITS RELATED PERSONS MAY INCUR IN ANY ACTION OR PROCEEDING, ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY OR REMEDY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR THE PERFORMANCE OF ANY OF THE PRODUCTS OR SERVICES, EXCEED THE TOTAL AMOUNT THAT USER ACTUALLY PAID FOR THE SPECIFIC PRODUCT OR SERVICE THAT CAUSED  THE DAMAGE OR THAT  IS THE SUBJECT OF ANY SUCH ACTION OR PROCEEDING, PROVIDED, HOWEVER, THE LIMITATIONS IN THIS SECTION SHALL NOT APPLY TO EITHER PARTY’S MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY OR  RELIEVE USER OF ITS OBLIGATION TO MAKE FULL PAYMENT ON ALL AMOUNTS DUE IN ACCORDANCE WITH THE TERMS SET FORTH IN THIS AGREEMENT.

(C) USER IS REQUIRED TO TAKE ALL REASONABLE MEASURES TO AVOID AND REDUCE DAMAGES, IN PARTICULAR, TO MAKE BACKUP COPIES OF THE PRODUCT(S), SUBJECT TO THE PROVISIONS SET FORTH IN SECTION 3 OF THIS AGREEMENT.

10. MISCELLANEOUS.

(a) No Agency.  The Parties are independent contractors and shall have no right or authority to bind or commit the other party in any way without the other party’s express written authorization.  Nothing contained herein shall be deemed or construed to create for any purpose an employer/employee, joint venture, partnership, or agency relationship between the Parties.

(b) Force Majeure.    Neither party shall be considered in breach of its obligations under this Agreement due to any failure to perform such obligations arising out of causes beyond the reasonable control, and without the fault or negligence, of such party. Such causes shall include, without limitation: acts of God; acts or omissions of any governmental authority, laws or regulations; fires, unusually severe weather, floods or other natural disasters; transportation stoppages or slowdowns or the inability to procure parts or materials; acts of terrorism, strikes or labor unrest; civil or military unrest; riots; degradation of telecommunications services; or where compliance with a condition herein would result in government-imposed penalty or violation of applicable law. These causes will not excuse User from paying accrued amounts due to Plexos SAS through any available lawful means acceptable to Plexos SAS. If any of these causes continue to prevent or delay performance for more than 180 days, Plexos SAS may terminate this Agreement, effective immediately upon notice to User.

(c) Notice.  All notices or approvals required or permitted under this Agreement must be given in writing and signed by the authorized representatives of the Parties hereto.  All such notices shall be hand-delivered or sent by international courier service to the Parties’ respective addresses first set forth above or to such other address as either party may specify by written notice to the other. No failure or delay by either party to exercise any right or remedy specified herein shall be construed as a current or future waiver of such remedy or right unless said waiver is in writing.

(d) Amendments. This Agreement may be superseded or modified solely by written agreement signed by the authorized representatives of both parties hereto, which specifically acknowledges the existence of this Agreement and that it is being superseded or modified by the terms of such subsequent written agreement.

(e) Governing Law. This Agreement shall be governed by the Laws of the Republic of Colombia.

(f) Dispute Resolution:  The Parties can utilize alternative methods for dispute resolution such as conciliation and mediation to facilitate settlement negotiations.  Discussions and correspondence among the Parties for purposes of these negotiations shall be treated as Confidential Information and shall not be submitted as evidence.

The Parties agree to attempt to resolve promptly and in good faith any controversy or claim arising out of or relating to this Agreement or the breach thereof; provided, however, that this clause shall not restrict either party’s rights to seek judicial relief at any time in order to protect its exclusive proprietary or intellectual property rights or confidential information disclosed hereunder. If the Parties fail to resolve such controversy or claim within the thirty (30) days after the other party’s written notice, the parties shall follow the arbitration process set forth in Section (g). This term can be amended with the mutual consent of the Parties.

(g) Arbitration: Any controversy or claim arising out or related to this Agreement, or the breach thereof, shall be definitively resolved through arbitration according to the rules in force of the arbitration and conciliation center of the Chamber of Commerce of Bogotá. The arbitration tribunal will be comprised of a single arbitrator that will be mutually selected by the Parties. The arbitrator shall be knowledgeable of intellectual property licensing and software distribution issues and possess considerable arbitration experience.  If the Parties fail to mutually select the arbitrator within thirty (30) days after the date in which a party requests that the other one to conduct its selection or from the date that the arbitration center summons the parties to conduct such selection, the arbitrator will be selected by the arbitration and conciliation center of the Chamber of Commerce of Bogotá, upon the request of any of the parties. The arbitration tribunal will have its head office in Bogotá, D.C., Colombia. The arbitration procedure will be conducted in Spanish. The arbitration tribunal shall apply the Laws of the Republic of Colombia.

(h) Agreement Construction and Interpretation.   Plexos SAS and User have required that this Agreement and all documents relating thereto be drawn up in the English language. Headings are included in this Agreement for reference purposes only and shall not be used to interpret or construe this Agreement.

(i) Assignment.  User may not assign any of its obligations, rights or remedies hereunder, in whole or in part, without the express written approval of Plexos SAS; provided, however, that User shall have the right, upon written notice to Plexos SAS, to assign this Agreement in its entirety to an Affiliate or such other corporate entity which may result from the merger with, consolidation of, or sale of substantially all of User’s assets, provided such Affiliate or entity is located within the Territory, is not a direct competitor of Plexos SAS, and agrees in writing (with a copy provided to Plexos SAS) to assume any outstanding User obligations which may have been incurred hereunder prior to such transfer and to be bound by the provisions of this Agreement.  The specific named assignee shall be deemed to be the “User” hereunder as of the effective date of any such authorized assignment.

(j) Publicity.  Plexos SAS may use User’s name in a press release, product brochures, and other marketing materials solely to indicate that User is a User of Plexos Project, provided however, Plexos SAS shall not use User’s trademarks, service marks, logos, slogans or claims, trade dress, or branding without User’s express written permission and further provided that User may direct Plexos SAS, at any time, to discontinue such use by providing Plexos SAS with written notice and a reasonable period of time to permit Plexos SAS to alter its materials and comply with the request.

(k) Severability.  If any court of competent jurisdiction determines that any provision of this Agreement is illegal, invalid, or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.

(l) Entire Agreement.  The terms set forth herein and in the applicable Quotation constitute the entire agreement between the Parties with respect to User’s use of Plexos Project within the scope of the License(s) granted herein.  This Agreement shall override and replace all terms contained in any User purchase order accepted by Plexos SAS.  These terms supersede and exclude all prior or contemporaneous proposals, understandings, agreements, negotiations, and representations, whether oral or written, with respect to the subject matter of this Agreement. 

11. SCHEDULES.

The following attached Schedule is incorporated by reference into and made a part of this Agreement:

SCHEDULE TERRITORY

Worldwide

Unless set forth in a Schedule, the terms and conditions of this Agreement shall apply to User’s procurement of Products and Services.  For purchases made by User after the Effective Date of this Agreement, and where a Schedule is required by Plexos SAS for any Territory-specific, Product-specific or Service-specific terms, Plexos SAS shall provide User with the applicable Schedules in that specific Territory.

Plexos Software SAS.