All services provided by Werfen and/or its affiliates (collectively, “Werfen”) are subject to the following terms and conditions. Customer’s acceptance of the services (the “Services”) described in any Werfen service agreement, quotation, sales order acknowledgment, invoice or other contract documentation provided by Werfen to which these terms and conditions are attached or incorporated by reference (collectively, the “Quote”) shall constitute Customer’s agreement and acknowledgment that the Quote together with these terms and conditions constitute a binding agreement (this “Agreement”) between Customer and Werfen exclusively governing the terms of the provision of such Services. Except as expressly agreed by an authorized representative of Werfen in writing, no other terms and conditions, including any terms and conditions attached to, or contained within, Customer’s request for quotation, acknowledgment, purchase order or other contract documentation shall apply, and the terms of this Agreement shall supersede any such terms and conditions.

1. TERM, TERMINATION AND PAYMENT

The effective date, contract period, and annual contract price of the Agreement are as indicated on the Werfen Quote. Werfen shall issue an invoice within 30 days of the effective date indicated on the Quote and all payments are due in full within 30 days from the invoice date. Werfen may terminate this Agreement in the event Customer materially breaches this Agreement. Customer may terminate this Agreement at any time upon 30 days’ written notice. If Customer terminates before the end of the contract period, a prorated refund or credit, based on the last day of the month or partial month following notice, of the most recent prepaid annual fee will be returned to Customer, minus the cost of actual Services rendered at Werfen’s current service rates, including but not limited to any preventative maintenance performed.

2. SERVICE PLANS

FIELD SERVICE (Hemostasis, Autoimmune, ROTEM, Capture Workstation, GEM Premier Instruments (most locations))

TOTAL SERVICE AGREEMENT PLAN: If a Total Service Agreement Plan is specified for equipment in the Quote, Werfen will provide, at the installation site, all necessary labor and parts (new or remanufactured as determined by Werfen) necessary to restore the covered equipment to operation in accordance with its specifications during the term of the Total Service Agreement Plan. Parts which are considered by Werfen as expendables or consumables are not included. Any equipment parts replaced by Werfen will become property of Werfen.  Werfen will respond to Customer (including by telephone) within 24 hours of Customer’s repair service request. All on-site service is provided during normal business hours, Monday through Friday excluding holidays, from 8am to 5pm unless otherwise agreed by Werfen. Depending on the model of equipment, Werfen will perform preventative maintenance calls, which include all necessary parts and labor. As part of the preventative maintenance, Werfen will evaluate performance of the equipment as compared to its specifications.

TOTAL SERVICE & ACCESSORIES PLAN: (Werfen Hemostasis and Transfusion instruments only) If a Total Service & Accessories Plan is specified in the Quote, this option shall be available and shall,  in addition to the Services included in the Total Service Agreement Plan, include a maximum of one replacement per year for any uninterruptible power system (“UPS”) and printer that shipped with equipment covered by the Total Service Agreement Plan during the term of the Total Service Agreement Plan.

DEPOT SERVICE (applicable to GEM Premier (remote locations only), HemoChron, VerifyNow and Avoximeter Instruments only (collectively “Depot Instruments”)) Customer shall return the instruments covered by Depot Service to Werfen and Werfen will provide all necessary labor and parts to restore the covered equipment to operation in accordance with its specifications during the term of the Depot Service Agreement. Any parts replaced by Werfen will become property of Werfen. Werfen will verify performance of the equipment to its specifications before returning the equipment to Customer. Werfen will issue a Return Goods Authorization (RGA) number before shipment of the equipment to Werfen and provide a prepaid label for the return of the equipment. Werfen is not responsible for damages or losses that may occur during shipment to Werfen. Where applicable and subject to signing a Loaner Agreement, a loaner instrument may be provided for Customer’s use while the covered equipment is under repair at Werfen’s facilities.

3. SOFTWARE SERVICE PLANS (GEMWeb Live, GEMWeb Plus, Synapse Link, HemoHub, QUANTA Link, ROTEM Live, ImmuLINK)

SILVER MAINTENANCE:

• Remote delivery preventative maintenance (includes operating system patching/updating; application software updates (not upgrades); third party application patching; and server health check) (each service may be completed no more than once per contract period as indicated in the Quote)
• Interconnecting additional Werfen devices
• Remote troubleshooting (24/7 Basic and Advanced support; 8x5 Complex support; and remote password recovery)
• IT Workflow configuration changes

GOLD MAINTENANCE:

• Remote delivery preventative maintenance (includes operating system patching/updating; application software updates (not upgrades); third party application patching; and server health check) (each service may be completed no more than four times per contract period as indicated in the Quote)
• Interconnecting additional Werfen devices
• Remote troubleshooting (24/7 Basic and Advanced support; 8x5 Complex support; and remote password recovery)
• IT Workflow configuration changes
• On-site technical support (limited to twice per contract period as indicated in the Quote)
• Custom reporting and data extraction
• Data recovery

4. CUSTOMER’S REPRESENTATIONS, WARRANTIES AND OBLIGATIONS

If applicable, Customer must make the equipment and/or software covered under this Agreement available for servicing at the time of each scheduled preventative maintenance or emergency service call for onsite service. Werfen will contact Customer to set a mutually agreeable date and time for each service visit.

Customer must, and expressly agrees to, perform routine maintenance recommended in Werfen instruction manuals for the equipment covered by an Instrument Service Plan, and use only the expendables, consumables and reagents with the equipment that are set forth in the manuals for the covered equipment.  Customer understands that failure to comply with these requirements may result in a voiding of the equipment’s warranty and a termination of the Services. Customer warrants that any equipment covered under this Agreement that is not under its original equipment warranty is in normal operating condition performing in accordance with its specifications and not in need of overhaul or immediate repair prior to acceptance of this Agreement by Customer.

Customer further agrees to furnish (or reimburse Werfen for) parts and services, which are required as a result of the following in connection with equipment or software covered by the Services (collectively, the “Excluded Causes”):

1. Customer neglect, misuse, or improper operation of the covered equipment;
2. Accident, fire, water, vandalism, electrical power failure or other casualty;
3. Service delays caused exclusively by Customer;
4. The action of any persons other than a Werfen authorized Service Representative;
5. Customer’s failure to perform routine maintenance;
6. Modification of the equipment covered by this Agreement without the prior written approval of Werfen;
7. Unsuitable environmental conditions as detailed in Werfen documentation;
8. The use of expendables, consumables or reagents that are not included in the equipment manuals;
9. The installation of third-party software or updates without the prior written approval of Werfen; or
10. Customer’s failure to implement any software updates, patches, or other preventative maintenance measures recommended by Werfen.

Customer agrees that Werfen shall not be responsible for any costs incurred by Customer as a result of any Excluded Causes, including, without limitation, costs associated with remedial measures or work performed by third parties.

Customer agrees that it will, to the extent possible, avoid disclosing or providing access to any protected health information (“PHI”), as that term is defined in 45 CFR Part 160, to Werfen in connection with Werfen’s provision of any Services under this Agreement.  To the extent the provision of Services does require Werfen’s access or use of Customer PHI, the parties will abide by the terms of any applicable Business Associate Agreement.

Customer acknowledges and agrees that any software covered by a Software Service Plan is being licensed, not sold and all rights, title and interest therein shall remain with Werfen and/or its third-party licensors.  Use of the software shall be in accordance with the applicable software license delivered with the product.

Werfen may require Customers to update software in order to perform Services under this Agreement. Werfen reserves the right to provide Customer an end-of-life announcement with respect to its software.  In the event the Customer does not update the software in accordance with Werfen request, Werfen may, at its option, (i) cancel this Agreement or (ii) remove any affected software from coverage under this Agreement, with a corresponding pro-rated adjustment of the annual Agreement price. Werfen will use commercially reasonable efforts to provide Service or parts on a time and materials basis only, at Werfen’s current rates, for any software subject to an end-of-life announcement.

5. RESTRICTIONS AND EXCLUSIONS

Any instrument or software covered by this Agreement must have been purchased directly from Werfen or through an authorized Werfen distributor. Unless otherwise expressly agreed to in writing by Werfen, Werfen will not repair or service instruments or software purchased through the internet, bankruptcy sales, or any other means. Werfen reserves the right to deem an instrument unrepairable. In this event, any remaining term under this Agreement may be transferred to a new serial number of the same model instrument.

The following are not covered Services: (1) parts and services other than those described in Sections 2 and 3; (2) consumables, reagents or expendable parts; (3) the moving, decontamination, de-install or re-install of equipment covered by this Agreement; (4), UPS and printers unless covered by a Total Service & Accessories Plan; or (5) Service on national holidays.

All services and parts furnished by Werfen outside the scope of this Agreement will be billed at Werfen’s then current charges for such services and parts. If at any time after arrival at Customer’s facility, Werfen’s service representative is unable to proceed with repair service due to delay or causes by Customer, Werfen will charge Customer for such delays or causes at Werfen’s then current charges. Service for accessories (UPS or printers) or other existing equipment may be added to the Services covered by this Agreement by mutual written consent of the parties in writing, subject to additional charges mutually agreed upon by the parties.

6. WERFEN’S REPRESENTATIONS AND WARRANTIES

Werfen represents and warrants that all Services under this Agreement will be performed in a professional and workman-like manner by personnel that have been trained to perform the Services, and as described in any applicable Quote. The sole obligation of Werfen shall be to repair or replace any non-conforming equipment or part covered by an Instrument Service Plan during the term of the Agreement as indicated in the Quote. For software covered by a Software Service Plan, Werfen’s sole obligation shall be to restore the functionality of the software in accordance with applicable technical specifications during the term of the Agreement as indicated in the Quote. This warranty shall not be deemed to have failed of its essential purpose as long as Werfen is willing and able to repair or replace any non-conforming equipment, software, or part covered by the Agreement. In the event that equipment covered by the Agreement cannot be repaired, Werfen reserves the right to provide to the Customer: (a) a prorated refund or credit of the purchase price of the equipment, or (b) prorated credit towards the purchase of replacement equipment.

Werfen represents and warrants that, as of the date of this Quote neither it nor any of its officers, directors or employees are (i) excluded, (ii) debarred, (iii) suspended, (iv) proposed for exclusion, debarment, or suspension, or (iv) otherwise declared ineligible by any public (federal, state, or local) department or agency from participation in any federal or state medical reimbursement or licensing program. Werfen further represents and warrants that, as of the date of this Quote it is not under indictment or otherwise subject to a criminally or civilly charged by a government entity (federal, state, or local) for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, State, or local) transaction. Werfen shall notify Customer promptly, in writing, of any change in this warranty during the term of this Agreement. A breach of this provision shall constitute cause by the Customer to immediately terminate this Agreement, without cost or penalty, notwithstanding anything to the contrary in this Agreement.

In its provision of Services under this Agreement, Werfen will comply with the requirements of the Federal Anti-Kickback statute and Physician Payments Sunshine Act, as applicable.

Remote troubleshooting/support provided under a Software Service Plan shall be provided via a secure connection that conforms to generally recognized industry data security standards.

EXCEPT AS EXPRESSLY STATED HEREIN, WERFEN MAKES NO OTHER WARRANTY OF ANY KIND WITH RESPECT TO ANY SERVICE RENDERED OR EQUIPMENT, SOFTWARE, PRODUCTS OR PARTS SOLD OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. WERFEN EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  WERFEN DOES NOT WARRANT THAT ANY SOFTWARE OR SOFTWARE RELATED SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.

7. INSURANCE AND WORKER’S COMPENSATION

Werfen shall maintain general liability, auto and Worker’s Compensation insurance coverages in amounts generally appropriate for providing the Service under this Agreement.

8. LIABILITY

To the extent permitted by law, in no event shall either party be liable to the other party or any third party for any special, punitive, indirect, incidental or consequential damages of any kind (whether arising in contract, tort, including negligence for any act or omission, strict liability, warranty or otherwise), including, without limitation any anticipated or unanticipated lost production, downtime, loss of profits or goodwill. Without limiting the foregoing, in no event shall Werfen be liable because of delay in Werfen’s service representative in making any instrument or software repair service call.  Except in the event of either (1) damage to property or personal injury caused directly by a Werfen representative’s negligence or willful misconduct in connection with performing Services; or (2) Werfen’s gross negligence or willful misconduct in performing the Services (in both cases, as determined by a final non-appealable judicial order), Werfen’s total liability for any claim arising from or related to the Services or this Agreement, whether arising in contract, tort, or otherwise, shall not exceed the amounts paid to Werfen for the Services by Customer under the Agreement.

9. NO PRINCIPAL/AGENT RELATIONSHIP CREATED

This Agreement does not create the relationship of principal and agent or employer and employee between the Customer and Werfen and under no circumstances is either party to be considered the agent of the other.  Werfen shall have no authority to assume or create any obligation whatsoever, express or implied, in the name of or on behalf of the Customer.

10. ASSIGNMENT

Neither this Agreement nor any portion of this Agreement may be assigned or delegated by Customer without the prior written consent of Werfen. Any purported assignment or delegation in violation of this section by Customer is void. This Agreement binds and benefits the parties and their permitted successors and assigns.

11. WORKPLACE POLICIES

Werfen shall maintain the cleanliness of Customer’s premises and will comply with all written Customer policies and procedures applicable to third party vendors when providing the Services onsite.  For remote troubleshooting services provided under a Software Service Plan, Werfen shall comply with Customer policies and procedures relating to third-party access to Customer’s systems and networks.

12. MISCELLANEOUS

1. This Agreement together with any Quote constitutes the entire agreement of the parties and supersedes all prior written or oral agreements, communications, and understandings between the parties with respect to the subject matter hereof.
2. No waiver, alteration or modification of any of the provisions of this Agreement shall be binding unless signed by an authorized representative of both parties.
3. The remedies provided in this Agreement are cumulative and not exclusive of any remedies provided by law.
4. This Agreement shall be governed by, construed under and interpreted in accordance with the laws of the state, commonwealth or province of the Customer on the agreement, without regard to its conflicts of law principles.

This End User License Agreement, including the order form, quotation, invoice, service agreement, or other contract documentation (“Order Form”) which by this reference is incorporated herein (collectively, this "Agreement"), is a binding agreement between Werfen USA LLC (“Werfen” or "Licensor") and the person or entity identified on the Order Form ("Customer" or “Licensee”).

LICENSOR PROVIDES THE SOFTWARE (AS DEFINED BELOW) SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY EXECUTING AND/OR ACCEPTING THE ORDER FORM YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT DOWNLOAD/INSTALL THE SOFTWARE.

Customer has acquired Werfen's GEM Premier instruments (the “Equipment”) which includes software (the “Software”). Use of the Software is subject to the terms and conditions of this Agreement.

Customer agrees as follows:

1. Upon the terms set forth in this Agreement, Werfen grants to Customer, and Customer accepts from Werfen, a nonexclusive, nontransferable, limited license to install, access and use the executable form of the Software solely for the purpose of operating the Equipment and for Customer’s internal operations.

    

2. Customer acknowledges and agrees that a certain component of the Software includes the following programs from Oracle Corporation (“Oracle”) - the Java™ software products in binary code form owned by Oracle (including, but not limited to, libraries, source files, header files, and data files), software documentation, and any software updates acquired through technical support - and are subject to the license and restrictions set forth herein. Such programs may only be used in connection with the Software. Some Oracle programs may include source code that Oracle may provide as part of its standard shipment of such programs. Such source code shall be governed by the terms of this Agreement, and, unless expressly licensed for other purposes, is provided solely for reference purposes. As used herein the term “Software” includes the Oracle programs.

    

3. No title to or ownership in the Software is transferred to Customer. Title to and all applicable rights in patents, copyrights and trade secrets in the Software and copies thereof will remain in Werfen or its licensors.

    

4. Without limitation, the following uses of the Software are expressly forbidden: the removal or modification of any Software markings or any notice of Werfen or its licensors’ proprietary rights; and Customer may not (i) make more copies of the Software than as is reasonably required in conjunction with Customer's permitted use under this Agreement (including one (1) copy of the media for the Software); (ii) assign, give, pledge, or transfer the Software or an interest therein to another party; (iii) reverse engineer (unless required by law for interoperability), disassemble or decompile the Software (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs); and (iv) create, modify, or change the behavior of classes, interfaces, or subpackages that are in any way identified as "Java", "Javax", "Sun" or similar convention as specified by Oracle in any naming convention designation.

    

5. Customer acknowledges that Oracle owns the Java trademark and all Java-related trademarks, logos and icons including the Coffee Cup and Duke ("Java Marks") and agrees to: (a) comply with the Java Trademark Guidelines (available at https://www.oracle.com/legal/trademarks.html); (b) not do anything harmful to or inconsistent with Oracle's rights in the Java Marks; and (c) assist Oracle in protecting those rights, including assigning to Oracle any rights acquired by Customer in any Java Mark.

    

6. Werfen may audit Customer’s use of the Software and records for the purpose of confirming Customer’s compliance with this Agreement. Customer shall provide reasonable assistance and access to information in connection therewith and Werfen may report audit results to Oracle or assign its audit right to Oracle.

    

7. Third party technology may be appropriate or necessary for use with some Oracle programs, as specified in the documentation accompanying the Software or as otherwise communicated to Customer. Such third party technology is licensed to the Customer only for use with the Software and copyright notices and license terms applicable to portions of such third party technology is set forth in the THIRDPARTYLICENSEREADME.txt file.

This End User License Agreement, including the order form, quotation, invoice, service agreement, or other contract documentation (“Order Form”) which by this reference is incorporated herein (collectively, this "Agreement"), is a binding agreement between Werfen USA LLC ("Licensor") and the person or entity identified on the Order Form as the licensee of the Software ("Licensee").

LICENSOR PROVIDES THE SOFTWARE (AS DEFINED BELOW) SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY EXECUTING AND/OR ACCEPTING THE ORDER FORM YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT DOWNLOAD/INSTALL THE SOFTWARE.

The parties hereto agree as follows:

1. License Grant

   Upon the terms set forth in this Agreement, Licensor grants to Licensee, and Licensee accepts from Licensor, a nonexclusive, nontransferable, limited license to install, access and use the executable form of the software identified in Appendix A attached hereto (the “Software”) solely for the purpose described in Appendix A and solely on the equipment as provided and/or specified by the Licensor.

2. Oracle Software Included

   Licensee acknowledges and agrees that certain of the Software includes programs from Oracle Corporation (“Oracle”) as identified in Appendix A. Licensee agrees that the Oracle programs are subject to the license granted herein and restrictions set forth herein. Such programs may only be used in connection with the Software and may not be modified. Some Oracle programs may include source code that Oracle may provide as part of its standard shipment of such programs which shall be governed by the terms of this Agreement.

3. Ownership of Software Remains with Licensor and/or Oracle

   No title to or ownership in the Software is transferred to Licensee. Title to and all applicable rights in patents, copyrights and trade secrets in the Software will remain in Licensor or Oracle or its licensors. Licensor reserves all rights in the Software not explicitly granted herein.

4. Software Proprietary to Licensor and/or Oracle

   The Software, specifications, customizations, drawings, instruction books and manuals supplied by Licensor constitute and contain valuable trade secrets and confidential business information of Licensor and/or its third-party suppliers. Licensee will hold such information in confidence and take the precautions necessary to safeguard the confidentiality of such information. The obligations of confidentiality and nondisclosure set forth in this paragraph will survive any termination of this Agreement. Licensee will limit use of the Software to Authorized Users (defined below) solely for processing the data of Licensee's own internal business, but excluding processing the data of or for any other third parties.

5. Prohibited Uses

   Without limitation, the following uses of the Software are expressly forbidden (each a "Remarketing of Software"): (a) use of the Software for rental, timesharing, subscription service, hosting, or outsourcing; (b) the removal or modification of any Software markings or any notice of Licensor, Oracle’s or its licensors’ proprietary rights; and (c) making the Software available in any manner to any third party for use in the third party’s business operations. Licensee may not (i) transfer the Software except for temporary transfer in the event of computer malfunction; (ii) assign, give, pledge, or transfer the Software and/or any services ordered or an interest in them to another individual or entity; (iii) reverse engineer (unless required by law for interoperability), disassemble or decompile the Software(the foregoing prohibitions includes but are not limited to review of data structures or similar materials produced by programs); and (iv) publish the results of any benchmark tests run on the Software.

6. Authorized Users

   The term “Authorized Users” means the employees, consultants, agents and contractors of Licensee who are subject to use restrictions and obligations of confidentiality and nondisclosure no less stringent than those set forth herein. Licensee shall be responsible for use of the Software by its Authorized Users and any breach of this Agreement by its Authorized Users. Licensee agrees that Licensor's third-party suppliers may enforce this Agreement as it relates to their Software directly against Licensee.

7. Copies

   Licensee may copy the Software as reasonably required in conjunction with Licensee's permitted use under this Agreement and make one copy of any Software media. As between Licensee and Licensor, the original and all complete and partial copies of the Software, including the Licensor underlying intellectual property, will remain the sole property of Licensor and will be subject to the terms and conditions of this Agreement, including specifically, but without limitation, the prohibition on Remarketing of Software.

8. No Representations or Warranties; Limitation of Liability

   All Software is provided “AS IS”. Licensor makes no express representations or warranties with regard to the Software except as stated herein. TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY  OR FITNESS FOR A PARTICULAR PURPOSE.TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL LICENSOR, ORACLE OR ANY THIRD-PARTY LICENSORS BE LIABLE FOR   ANY LOST REVENUE OR PROFIT, DATA USE OR LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER OR SYSTEM FAILURE, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF LICENSOR, ORACLE OR ANY THIRD-PARTY LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL LICENSOR’S LIABILITY TO LICENSEE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT PAID BY LICENSEE FOR THE SOFTWARE UNDER THIS AGREEMENT. IN NO EVENT WILL ORACLE HAVE ANY LIABILITY TO LICENSEE FOR ANY DIRECT DAMAGES ARISING FROM USE OF THE SOFTWARE.

9. Termination

   This Agreement is effective until terminated. Licensee may terminate this Agreement at any time by destroying all copies of the Software. This Agreement will terminate immediately without notice from Licensor if Licensee fails to comply with any provision of this Agreement. Upon termination of this Agreement, Licensee must discontinue use and destroy or return to Licensor all copies of the Software and documentation.

10. Audit

    Licensor may audit Licensee’s use of the Software and audit records solely for the purpose of confirming Licensee’s compliance with this Agreement. Licensee shall provide reasonable assistance and access to information in the course of such audit and permit Licensor to report the audit results to Oracle or to assign its right to audit the Licensee’s use of the Software to Oracle. In the case of such assignment, Oracle shall not be responsible for any of Licensee’s costs incurred in cooperating with the audit. Licensee agrees that Oracle is intended to be third party beneficiaries of this Agreement. Oracle may bring direct action against Licensee for the breach of the terms hereof that relate to the Oracle programs.

11. Third Party Technology

    Third party technology that may be appropriate or necessary for use with some Oracle programs, is specified in the documentation accompanying the Software or as otherwise communicated to Licensee. Such third party technology is licensed to the Licensee only for use with the Software under the terms of the third party license agreement specified in the applicable documentation or as otherwise communicated to Licensee and not under the terms of this Agreement.

12. Miscellaneous Provisions

    The Software is subject to U.S. export control laws and may be subject to export or import regulations in other countries. Licensee shall comply fully with all relevant export laws and regulations of the United States and other applicable export and import laws to assure that neither the Software, nor any direct product thereof, are exported, directly or indirectly, in violation of applicable laws.

    This Agreement will be interpreted and construed in accordance with the laws of the Commonwealth of Massachusetts, exclusive of its rules governing conflict of laws and choice of laws. The parties consent to the exclusive jurisdiction of the state or federal courts of the County of Middlesex, Commonwealth of Massachusetts. The Uniform Computer Information Transactions Act shall not apply to this Agreement regardless of when and howsoever adopted, enacted and further amended under the laws of the Commonwealth of Massachusetts.

    If any provision of this Agreement is held to be unenforceable, this Agreement will remain in effect with such unenforceable provision omitted, unless omission would frustrate the intent of the Parties, in which case this Agreement will immediately terminate. The failure of either Party to this Agreement to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder shall not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. This Agreement is the entire agreement between Licensor and Licensee relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter during the term of this Agreement. No modification of this Agreement will be binding, unless in writing and signed by an authorized representative of each Party.