These Terms and Conditions are part of the Software License Agreement by and between Invivoscribe, Inc., a California corporation (“Company”) and the company or entity (the “Customer”) described on the Order Summary for such Customer, and these Terms and Conditions and the Order Summary together constitute the Software License Agreement (the “Agreement’).

PLEASE READ THE BELOW TERMS AND CONDITIONS BEFORE USING THE COMPANY’S SOFTWARE PRODUCTS. BY ACCESSING OR USING COMPANY SOFTWARE PRODUCTS, YOU (“CUSTOMER”) SIGNIFY ACCEPTANCE OF AND AGREE TO THESE TERMS AND CONDITIONS.  IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT ACCESS OR USE THE PRODUCTS OR THE SERVICES.

1.  Background of the Agreement

Company has developed and owns all rights in the licensed software product described in the Agreement (the “Software”).  These Terms and Conditions are part of the Agreement under which Customer will be entitled to install and use the Software, including certain restrictions and limitations that apply to Customer’s use of such software.

2.  Definitions

2.1  “Annual License Fee” has the meaning ascribed to it in Section 6 below.

2.2  “Documentation” means, with respect to the SOFTWARE, any and all related specifications documents, user manuals and other related written materials, some of which may be made available online or otherwise in an electronic format.

2.3  “SOFTWARE” means the Company proprietary computer program  as shown in the Order Summary section of the Agreement (“Order Summary”).

2.4 “SOFTWARE Major Problem” means any error or problem with the SOFTWARE that causes a complete operational failure of the SOFTWARE, prevents Customer from accessing any material functionality of the SOFTWARE, or causes the SOFTWARE to return incorrect or inconsistent results.

2.5  “SOFTWARE Minor Error” means any non-material operational error or problem with the SOFTWARE, where the error or problem does not substantially interfere with Customer’s use of the SOFTWARE and does not cause the SOFTWARE to return incorrect or inconsistent results.

2.6  “Upgrades” means any bug fixes, error corrections, alterations, modifications, upgrades, improvements or other changes to the SOFTWARE that Company determines (in its sole discretion) to make generally available to users of the SOFTWARE at no additional charge, but excluding any new Versions.

2.7  “Version” means a major release of the SOFTWARE that incorporates new or additional functionality, new modules, or other substantial changes to the SOFTWARE as it existed prior to such release.

3.  Term and Termination

3.1  Term.  The term of the Agreement will commence on the Effective Date as shown in the Order Summary and will continue in effect for the License Term as shown in the Order Summary (“Initial Term”). The Agreement may be extended by mutual written agreement of the Parties. If the Order Summary indicates that the Parties have agreed to an annual autorenew, upon expiration of the Initial Term, this Agreement shall automatically renew for successive one (1) year periods (each, a “Renewal Term”) unless either Party provides written notice of its intent not to renew at least thirty (30) days prior to the end of the then-current term. The Initial Term and the Renewal Term are, together, the “Term”.

3.2  Termination.

(a)  Either Party may terminate the Agreement at the conclusion of the Initial Term or any Renewal Term for any reason upon thirty (30) days’ prior written notice to the other Party at least thirty (30) days prior to the expiration of the then-current term.

(b)  For Bankruptcy or Insolvency.  Either party may terminate this Agreement upon written notice to the other party if the other party is adjudicated bankrupt, files a voluntary petition of bankruptcy, or makes an assignment for the benefit of creditors or admits in writing that it is unable to meet its obligations in the normal course of business as they fall due.

(c)  For Breach.  Either party may terminate this Agreement upon written notice to the other party if the other party (a “defaulting party”) commits any material default in the performance of any of its obligations under this Agreement, and such default is not cured within thirty (30) days after the defaulting party receives written notice thereof from the other party specifying the nature of the default.

(c)  Discontinuation of SOFTWARE.  Company may terminate this Agreement upon not less than thirty (30) days written notice prior to the discontinuation of the SOFTWARE.

3.3  Effect of Termination.  In the event that a party terminates this Agreement under Section 3.2 (b) or (c) above, then Customer will be entitled to receive a pro-rata refund of the Annual License Fee that was prepaid to Company for the Term.  Except as expressly provided herein, Customer will not otherwise be entitled to any refund.  Upon termination or expiration of this Agreement, Customer’s license to the SOFTWARE will terminate immediately and Customer will promptly destroy all printed copies and delete all electronic copies of any Documentation, and will ensure that no copies of the SOFTWARE, whether in physical form (e.g. USB stick) or in electronic or digital form, including its screens, data, or other content remain archived or otherwise stored anywhere on Customer’s system or in Customer’s possession.

4.  License Grant and Ownership

4.1  License Grant.  Subject to the restrictions and limitations set forth in this Agreement, Company hereby grants to Customer a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable, fully-paid and royalty free right and license to use the SOFTWARE pursuant to the terms of this Agreement during the Term, as defined in Section 4.2 below.  Except as otherwise mutually agreed in a document signed by Company, the software license granted herein is limited to Customer’s internal use with the Assay identified in the Order Summary. This grant of rights is limited to Customer employees using the SOFTWARE for internal business purposes only (which includes performing work in house for Customer’s customers), and Customer will ensure that all users understand and agree to be bound by all applicable terms of this Agreement.  For avoidance of doubt, the SOFTWARE may be used on laptop computers outside of Customer’s offices, provided that such use is only by Customer’s employees and only for Customer’s internal business purposes.

4.2  Effect of Termination.  Upon termination of this Agreement by Customer for material breach or by Company due to discontinuation of the SOFTWARE, Customer will have a period of sixty (60) days after such termination (the “Transition Period”) in which to transition its use of the SOFTWARE and any related case data or results to new software.  WHEN SUCH TRANSITION PERIOD EXPIRES, CUSTOMER WILL HAVE NO FURTHER RIGHTS TO MAKE ANY USE OF THE SOFTWARE, AND THE SOFTWARE INCLUDES A TIME-OUT FEATURE THAT WILL PREVENT ALL USE OF THE SOFTWARE AFTER EXPIRATION OF THE TERM OR THE TRANSITION PERIOD.  CUSTOMER UNDERSTANDS AND AGREES THAT THIS TIME-OUT FEATURE IS INCLUDED IN THE SOFTWARE AND THAT ITS SOLE PURPOSE IS TO PREVENT USE OF THE SOFTWARE BEYOND THE EXPIRATION OF THE TERM OR SUCH TRANSITION PERIOD.

4.3  Ownership.  With the exception of any materials provided by or on behalf of Customer (for which Customer or its licensors will retain ownership), and subject to those rights expressly granted to Customer pursuant to this Agreement, Company (or, to the extent applicable, its licensors) owns and will retain all right, title and interest in and to the SOFTWARE and the Documentation (including any and all Upgrades, enhancements or other modifications to either of the foregoing made by Company), as well as to any other materials that Company provides or makes available for Customer’s use under this Agreement, and Customer and its users obtain only those limited use rights expressly set forth herein.

4.4  Restrictions.  To the maximum extent permitted by law, Customer and its users will not: (a) modify, reverse engineer, decompile, or disassemble the SOFTWARE, or otherwise make any attempt to discover the source code of the SOFTWARE; (b) rent, lease, loan, sell, sublicense, distribute, transmit or otherwise transfer the SOFTWARE to any third party; (c) make any copy of or otherwise reproduce the SOFTWARE or the Documentation except for a single working copy stored on a single personal computer and a single copy for backup purposes only; or  (d) use the SOFTWARE to provide service bureau or time-sharing services or any similar services to any third party.  For the avoidance of doubt, Customer shall have no right to modify or reproduce the SOFTWARE or any portion thereof, except to the extent that use of the SOFTWARE may create transitory copies that are incidental to such access and use and that are deleted or otherwise rendered inoperable or inaccessible upon the termination of any user’s use thereof, and Customer will only be entitled to reproduce the Documentation to the extent necessary to provide copies thereof to users authorized to use the SOFTWARE hereunder.

4.5  Disclaimer.  Customer acknowledges and agrees that the version of the SOFTWARE provided hereunder has not been approved or otherwise validated by the U.S. Food and Drug Administration or by any other regulatory agency or body for any specific use.  If approval or validation is required for Customer’s use of the SOFTWARE in connection with Customer’s business, obtaining such approval and/or validation is the sole and complete responsibility of Customer.

5.  Support Services

5.1  Error Correction.

(a)  SOFTWARE Minor Errors.  Company will make commercially reasonable efforts to address SOFTWARE Minor Errors within a commercially reasonable time after Company’s receipt of written notice of such SOFTWARE Minor Errors; provided, however, that Company does not commit to address SOFTWARE Minor Errors within any set period of time, and may elect (in its sole discretion) to postpone addressing any SOFTWARE Minor Error(s) until the next Version release.

(b)  SOFTWARE Major Problems.  Provided that Customer is current in its payment of the Annual License Fee and not otherwise in breach of this Agreement, Company will exercise commercially reasonable efforts to address all SOFTWARE Major Problems within a commercially reasonable time after receipt of written notice thereof.

5.2  Upgrades.  Customer will be entitled to receive free Upgrades during the Term, provided that Company determines (in its sole discretion) to make such Upgrades available.  Nothing contained herein will create any obligation on the part of Company to create or otherwise make available any Upgrades, and ownership of all Upgrades will remain solely with Company.  All Upgrades, upon delivery, will automatically become part of the SOFTWARE, subject to the terms of this Agreement.

5.3  Discontinued Versions.  Company shall have the right to discontinue any Version of the SOFTWARE at any time, provided, however, that Company will provide Customer with at least six (6) months prior written notice of Company’s decision to discontinue a Version.  Company will determine (in its sole discretion) whether to permit Customer to elect to continue to use the discontinued SOFTWARE. Where Customer continues to use the discontinued Version of the SOFTWARE, Company will no longer provide Upgrades for the discontinued Version and will cease providing the error correction services described in Section 5.1 for the discontinued Version.  Customer will remain obligated to continue to pay the Annual License Fee for the SOFTWARE, notwithstanding that Customer may be using a discontinued Version, and payment of the Annual License Fee will permit Customer to continue its use of the SOFTWARE. Where Customer does not continue to use the discontinued version, Company will refund to Customer the unused portion of any license fees allocable to the remainder of the Term.

6.  Fees and Payment Terms

Customer’s compensation to Company under this Agreement consists of the following (collectively, the “Fees”).  All pricing is quoted and payable in United States Dollars:

6.1  License Fee.  Use of the SOFTWARE requires payment of an annual license fee as shown in the Order Summary (the “License Fees”), payable as a single upfront payment for the Initial Term and, if applicable, for each subsequent Renewal Term, unless otherwise agreed to in writing by the Parties.  The License Fee payable for any Renewal Term may be increased by Licensor relative to the License Fee applicable during the previous Term. Such increase shall be communicated to Licensee in writing prior to the commencement of the Renewal Term and shall become effective upon renewal.

6.2  Payment Method.  All payments by Customer to Company will be made via credit card.

6.3  Taxes.  Customer will be responsible for paying all sales, use, property, customs, excise or other taxes (however designated and whether foreign or domestic) imposed on Customer, on the SOFTWARE or on any other services provided by Company hereunder, or that are otherwise required to be collected in connection with Customer’s payment to Company for Company’s products or services; provided, however, that Customer will not be responsible for any income taxes that are based solely upon Company’s revenues or net income.

7.  Confidentiality

Except as may be required by law, neither party will disclose to any third party any confidential or proprietary information or materials it obtains or learns about the business or products of the other party (including, without limitation, any business or technical information related thereto), and neither party will make any use of any such information, unless the use is specifically related to Customer’s use of  the SOFTWARE or receipt of any services from Company.  In addition, a party will only disclose the other party’s confidential information to such party’s employees who have a need to know such information in connection with their employment, and who are bound by written agreement to protect the confidentiality thereof.  Without limiting the foregoing, Company considers the SOFTWARE source code, documentation, and technical and functional specifications related thereto to be the proprietary and confidential information of Company, and Company takes all commercially reasonable measures to preserve their proprietary and confidential nature.

8.  Warranty; Disclaimer

8.1  Warranties.  Company warrants that, during the Term,  the SOFTWARE will perform in accordance with the Documentation.  If Customer notifies Company in writing that  the SOFTWARE fails to so perform during the Term, Company will correct such failure pursuant to Section 5 above.  For any failure not covered by Section 5 above, Company will use commercially reasonable efforts to correct or replace the failure after receiving Customer’s written notice thereof.  After expiration of the term of this Agreement, Company shall have no liability for or other obligations with respect to any questions or problems experienced by Customer relating to  the SOFTWARE.

8.2  DISCLAIMER.  THE FOREGOING IS THE SOLE AND EXCLUSIVE PRODUCT WARRANTY PROVIDED BY COMPANY WITH RESPECT TO  THE SOFTWARE, AND EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AS FURTHER DESCRIBED IN SECTION 10.3 BELOW.

9.  Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NEITHER PARTY HERETO WILL BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY LOSS OF PROFIT, INTERRUPTION OF SERVICE, OR LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF SUCH PARTY HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES.  IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF ANY FEES PAID TO COMPANY BY CUSTOMER FOR THE TWELVE MONTHS PRIOR TO THE OCCURRENCE THAT GAVE RISE TO A CLAIM FOR LIABILITY.

10.  Representations and Warranties

10.1  Mutual.  Each party represents, warrants, and covenants that (a) it has the right to enter into this Agreement and to fully perform its obligations hereunder; (b) by entering into this Agreement, it does not violate any agreement existing between it and any other person or entity; and, (c) it will comply with all applicable laws, rules, and regulations, and secure all necessary approvals and permissions, in the performance of its duties and the use of all materials provided by the other party hereunder.

10.2  By Customer.  Customer further represents, warrants, and covenants that it will install and operate  the SOFTWARE and any other materials provided by Company in accordance with this Agreement, in compliance with all applicable laws and regulations, and as directed by Company and in compliance with any Documentation or other information provided by Company, and it will provide all hardware, software, and communications capabilities required for such installation and operation of  the SOFTWARE, as well as any and all test data required for use with the SOFTWARE.

10.3  Disclaimer.  EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SOFTWARE, THE DOCUMENTATION AND ALL RELATED SERVICES AND MATERIALS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND COMPANY EXPRESSLY DISCLAIMS SUCH WARRANTIES. CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT COMPANY DOES NOT WARRANT THAT THE SOFTWARE WILL BE FREE OF ALL ERRORS OR OPERATE ON AN UNINTERRUPTED BASIS.

11.  Indemnification

11.1  Mutual Indemnification.  Except to the extent of the negligence or willful act or omission of the party who would otherwise be indemnified hereunder, each party (an “indemnifying party”) will defend, indemnify and hold harmless the other party (the “indemnified party”) and its directors, shareholders, officers, agents, employees, subcontractors, successors and assigns from and against any and all claims, demands, suits, actions, judgments, damages, costs, losses, expenses (including reasonable attorneys’ fees and costs), and other liabilities arising from, in connection with, or related in any way to: (a) any breach or alleged breach of any of the covenants, warranties or representations made by the indemnifying party under this Agreement; or (b) any willful or negligent act or omission of the indemnifying party or its directors, officers, employees or agents in connection with the performance of this Agreement.

11.2  By Customer.  In addition to any obligations that Customer may have under Section 11.1 above, Customer will defend, indemnify and hold harmless Company and its directors, shareholders, officers, agents, employees, subcontractors, successors and assigns from and against any and all claims, demands, suits, actions, judgments, damages, costs, losses, expenses (including reasonable attorneys’ fees and costs), and other liabilities arising from, in connection with, or related in any way to (i) any results or products that Customer may obtain or create through its use of  the SOFTWARE, (ii) any diagnosis, analysis or other patient evaluation related thereto; or (iii) any misuse or unauthorized use of  the SOFTWARE or the Documentation.

11.3  Notice.  In claiming indemnification hereunder, the indemnified party will promptly provide the indemnifying party with written notice of any claim that the indemnified party believes falls within the scope of this Section 11 and the indemnified party will cooperate with the indemnifying party as reasonably requested. The indemnified party may, at its own expense, assist in the defense if it so chooses, provided that the indemnifying party will control such defense and all negotiations relative to the settlement of any such claim, and further provided that any settlement intended to bind the indemnified party may not be entered into without the indemnified party’s prior written consent, which will not be unreasonably withheld or delayed.

12.  Force Majeure

Neither party will be held responsible for any delay or failure in performance of any part of this Agreement (with the exception of any obligation to make payments to the other party hereunder) to the extent such delay or failure is caused by fire, flood, explosion, pandemic, epidemic, war, strike, embargo, governmental action or failure to act, the act of any civil or military authority, act of God, inability to secure material or transportation facilities, acts or omissions of carriers, power outages, computer failures, or by any other causes beyond its control whether or not similar to the foregoing.

13.  Miscellaneous Terms

13.1  Notices.  Except where provided otherwise, notices hereunder will be in writing and will be deemed to have been fully given and received when delivered by hand, sent by nationally recognized overnight courier, by electronic mail with a signed PDF attachment and with written confirmation of receipt promptly after completion of the transmission, by electronic mail with a signed PDF attachment and with written confirmation of receipt promptly after completion of the transmission, on the day of transmission, or sent by registered or certified mail, return receipt requested, postage prepaid, and properly addressed to the offices of the respective parties at the addresses set forth by the parties’ in the Order Summary.

13.2  Relationship of the Parties.  The relationship of the parties under this Agreement is one of independent contractors, and no agency, partnership, employment joint venture or similar relationship is created hereby.  Except as specifically authorized, neither party will have any authority to assume or create obligations on the other party’s behalf, or to bind the other party in any way, and neither party will take any action that has the effect of creating the appearance of it having such authority.

13.3  Publicity and Press Releases.  Neither party shall issue any press release, public statement or other form of publicity relating to this Agreement or to the relationship of the parties hereunder without the prior written consent of the other party; provided, however, that Company shall be entitled to identify Customer as a customer of Company and to include Customer’s name and logo in its marketing materials, in connection with the identification by Company of Customer as a Company customer.

13.4  Backup of Data.  Customer is, and at all times during the Term hereof will be, solely responsible for maintaining current, backup copies of all Customer data and materials used in connection with the SOFTWARE.  Company will not be liable for or responsible for any lost Customer data, or for any services or materials that have been undertaken, created, modified or otherwise materially changed by Customer or by any party other than Company.

13.5  No Assignment.  Neither party may assign, transfer or delegate its obligations as set forth herein, or any claim or right hereunder, without the prior written consent of the other party, which may not be unreasonably withheld or delayed; provided, however, that Company will be entitled to use subcontractors and independent contractors in performance of its obligations hereunder.  In addition, notwithstanding the foregoing, Company will be entitled to assign this Agreement to an entity that acquires all or substantially all of Company’s assets or business relating to the subject matter of this Agreement.

13.6  Survival.  The provisions of paragraphs 6, 7, 8, 9, 11 and 13, as well as any other terms of this Agreement that expressly extend or by their nature should extend beyond termination or expiration of this Agreement, will survive and continue in full force and effect after any termination or expiration of this Agreement.

13.7  Governing Law.  The law of the State of California will govern this Agreement and the transactions it contemplates, without reference to rules regarding conflicts of law. Any dispute arising out of or relating to this Agreement shall be settled by binding arbitration in accordance with the commercial rules of JAMS (formerly the Judicial Arbitration and Mediation Services) by one arbitrator. Each party shall select one arbitrator, and such two arbitrators shall select a third independent arbitrator, which third arbitrator shall be the sole arbitrator in the matters.  Selection of arbitrators shall be made within 30 days after the date of the first notice of demand for arbitration.  The results of such arbitration proceedings shall be binding upon the parties hereto, and judgment upon the arbitration award may be entered in any court having jurisdiction thereof.  The cost of each arbitration proceeding and the arbitrator shall be borne equally by the parties.  The parties shall pay all of their own expenses of the arbitration, including but not limited to legal fees and costs.  The arbitrator shall also award the party that prevails substantially in the arbitration its reasonable attorneys’ fees and costs incurred in connection with the arbitration.  All arbitration proceedings shall be held in San Diego, California unless the parties agree otherwise. The arbitrator is empowered to render an award of general compensatory damages and equitable relief (including, without limitation, injunctive relief), but is not empowered to award punitive or presumptive damages. The parties hereto will maintain the substance of any proceedings hereunder in confidence and make disclosures to others only to the extent necessary to properly conduct the proceedings or as otherwise required by law. The parties shall instruct the arbitrator to render his/her decision no later than thirty (30) days after the submission of the dispute. Notwithstanding the foregoing, either party may seek interim injunctive relief from any court of competent jurisdiction.

13.8  Attorneys’ Fees.  In the event of any legal action, suit or other proceeding between the parties hereto seeking to enforce rights under this Agreement or arising from the interpretation or performance of this Agreement, then in addition to any other relief to which the prevailing party may be entitled, the prevailing party (as determined by the court in such action) shall be entitled to have and recover from the other party all costs and expenses of suit, including (without limitation) court costs and reasonable attorneys’ fees and costs incurred by the prevailing party.

13.9  Export Control.  Customer agrees to obey and comply with any and all applicable United States and foreign laws, rules, and regulations governing the export of software.

13.10  Severability.  If any provision of this Agreement is determined by any court of competent jurisdiction to be invalid or unenforceable, such provision will be interpreted to the maximum extent to which it is valid and enforceable, all as determined by such court in such action, and the remaining provisions of this Agreement will, nevertheless, continue in full force and effect without being impaired or invalidated in any way.

13.11  Entire Agreement.  This Agreement, along with any attachments or exhibits provided by the parties in connection herewith for incorporation herein contains the entire agreement and understanding of the parties hereto with respect to the subject matter hereof, and merges and supersedes all prior and contemporaneous agreements, discussions and writings with respect thereto.  No modification or alteration of this Agreement will be effective unless made in writing and signed by both Company and Customer.  The waiver, modification, or failure to insist by a party on any of the provisions of this Agreement will not void, waive, nor modify any of the other provisions nor be construed as a waiver or relinquishment of such party’s right to performance in the future of any such provision.  From time to time, each party hereto will execute and deliver such instruments as may be reasonably necessary to carry out the purposes and intent of this Agreement.  This Agreement may be executed in multiple counterparts, each of which will constitute an original and all of which, taken together, will constitute one and the same instrument.

END OF TERMS AND CONDITIONS