ATTACHMENT 8 - LEXMARK END USER LICENSE AGREEMENT

IMPORTANT:  PLEASE READ THIS END USER SOFTWARE LICENSE AGREEMENT ("LICENSE AGREEMENT") CAREFULLY BEFORE INSTALLING OR USING THE ACCOMPANYING SOFTWARE AND ANY ACCOMPANYING USER DOCUMENTATION.  THE SOFTWARE AND ANY USER DOCUMENTATION ARE COPYRIGHTED AND LICENSED (NOT SOLD).  BY INSTALLING OR USING THE SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT.  IF YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT IN CONJUNCTION WITH YOUR EMPLOYMENT ON BEHALF OF YOUR EMPLOYER, A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH ENTITY TO THIS LICENSE AGREEMENT. IF YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR EMPLOYER, A COMPANY OR OTHER LEGAL ENTITY THAT WILL USE THE LICENSED SOFTWARE, DO NOT INSTALL THE LICENSED SOFTWARE OR ACCEPT AND AGREE TO THE TERMS OF THIS LICENSE AGREEMENT.  IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, DO NOT USE THE SOFTWARE, AND, IF YOU HAVE ALREADY INSTALLED THE SOFTWARE, PROMPTLY AND PERMANENTLY REMOVE IT FROM YOUR SYSTEM AND DESTROY ALL COPIES OF THE SOFTWARE AND USER DOCUMENTATION, RETURN TO LICENSOR ANY CDs AND OTHER MEDIA CONTAINING THE SOFTWARE AND THE USER DOCUMENTATION WITHIN A REASONABLE PERIOD OF TIME (NOT TO EXCEED THIRTY (30) DAYS), AND REQUEST A REFUND OF THE LICENSE FEES PAID BY YOU FOR THE LICENSES OF THE SOFTWARE.  EXCEPT TO THE EXTENT THE SOFTWARE IS SUBJECT TO A SEPARATE WRITTEN SOFTWARE LICENSE AGREEMENT BETWEEN YOU AND LICENSOR, THIS LICENSE AGREEMENT WILL SUPERSEDE ANY AND ALL LICENSE AGREEMENTS GOVERNING ANY LICENSES OF THE SOFTWARE PREVIOUSLY GRANTED BY LICENSOR (AND ITS PREDECESSORS IN INTEREST) TO YOU.  

FIRMWARE UPDATES
FIRMWARE UPDATES MAY MODIFY PRINTER SETTINGS AND CAUSE COUNTERFEIT AND/OR UNAUTHORIZED PRODUCTS, SUPPLIES, PARTS, MATERIALS (SUCH AS TONERS AND INKS), SOFTWARE, OR INTERFACES TO STOP WORKING.

RETURN PROGRAM AGREEMENT TERMS
Your Lexmark device is subject to the Lexmark Return Program agreement terms, which can be found at www.lexmark.com/printerlicense.

1.     SOFTWARE LICENSE GRANT 

        (a)  LICENSE GRANT.  Subject to the terms and conditions of this License Agreement, Lexmark International, Inc., Lexmark International Technology Sarl, or any related affiliate company of Lexmark International, Inc. or Lexmark International Technology Sarl ("Licensor") hereby grants to you, and you accept, nonexclusive and nontransferable licenses to use the software provided to you by Licensor or its authorized distributor with this License Agreement, in the original, unmodified, machine-readable, object code form only, including, without limitation, any data structures created by such programs, and all upgrades, enhancements and new version releases of any of the foregoing that may be provided by Licensor to you from time to time (collectively referred to as the "Licensed Software"), and any accompanying User Documentation (the "User Documentation"), only as authorized in Section 2 of this License Agreement and for the purposes contemplated by any User Documentation and, if provided in a written agreement between you and Licensor or its authorized distributor which sets forth the license fees for and other terms and conditions applicable to the Licensed Software (the "Sales Order"), installed and used only on a computer or device located at the geographic site specified in the Sales Order (the Licensed Software and User Documentation, if any, are collectively referred to herein as the "Licensed Products"). Your licenses of the Licensed Products are perpetual; provided, however, such licenses may be limited as designated in the Sales Order, including, without limitation, as transaction, subscription or term licenses.  Licensor retains the right to terminate the licenses for the Licensed Software, however, upon the terms provided in Section 12 below.

        (b)  THIRD PARTY SOFTWARE.  Notwithstanding the terms and conditions of this License Agreement, any portion of the Licensed Software that constitutes third party software, including software provided under a public license ("Third Party Software"), is licensed to you subject to the terms and conditions of the software license agreements accompanying such Third Party Software, whether in the form of a discrete agreement, shrink-wrap license, electronic license terms at the time of download or installation, or as set forth in the thirdpartylicenses.txt file accompanying the Licensed Software and/or attached to this License Agreement.  Use of the Third Party Software by you will be governed exclusively by the terms and conditions of such software license agreements.

2.     LICENSED RIGHTS

        (a)  SERVER LICENSING.  If your Sales Order indicates that you acquired the server component of the Licensed Software, the server component of the Licensed Software, including all data structures, data elements, and other data types, may be installed and used only on a single computer or device that you own, lease, or otherwise control (or in the event of the inoperability of a computer or device, on your backup computer or device only until such operability is restored), unless you purchase additional server licenses.  In addition, the licensed server components of the Licensed Software may be used only with the licensed components of the Licensed Software. 

        (b)  PER-SEAT/DEVICE CLIENT LICENSING.  Unless your Sales Order specifies otherwise, you have acquired client seat/device licenses of the Licensed Software, and the client component of the Licensed Software may be installed and used only on computers or devices that you own, lease or otherwise control (or in the event of the inoperability of a computer or device, on your backup computer or device only until such operability is restored) equal to the number of client seat licenses of the Licensed Software that you have purchased. If the Licensed Software includes a server component, then the licensed client component of the Licensed Software may be used only with the licensed server component of the Licensed Software. You may not use the Licensed Software on any additional computers or devices or in a local area network (LAN) or other network, either in a multi-launch or remote sharing environment, without purchasing additional license rights.

        (c)  CONCURRENT CLIENT LICENSING.  If your Sales Order indicates that you acquired concurrent client licenses of the Licensed Software, then you may install and use the client component of the Licensed Software on any computers or devices you own, lease or otherwise control (or in the event of the inoperability of a computer or device, on your backup computer or device only until such operability is restored).  However, the number of concurrent client licenses of the Licensed Software that you operate at any time with the licensed server component of the Licensed Software will not exceed the number of concurrent seat licenses that you have purchased as identified in the Sales Order.   

        (d)  TEST ENVIRONMENT LICENSES.  If your Sales Order indicates that you acquired test environment licenses of the Licensed Software, then you may utilize such test environment licenses to test the Licensed Software, including upgrades, enhancements and new releases of the Licensed Software, in a test environment to analyze the operation of the Licensed Software prior to making changes in your production environment.  You are prohibited from using test environment licenses in a live production environment for productive use or otherwise for use in excess of your licensed rights or in violation of the terms of this License Agreement.  Your right to use such test environment licenses is conditional upon your cooperation with Licensor in creating a hardware fingerprint profile of the server facilities upon which you create such test environment or implementing such other measures as Licensor reasonably may require, and your continuing obligation to update and correct such hardware fingerprint profile or modify such measures as changes to the backup server or server cluster node hardware occur. 

        (e)  FAILOVER LICENSE.  If your Sales Order indicates that you acquired failover licenses of the Licensed Software, then you may install the server component of the Licensed Software on a back-up server or server cluster node (the "Failover Copy") to ensure server or system failover of your Licensed Software environment in the event of the failure and non-availability for productive use of your Licensed Software environment (a "Failover Event"); provided that (i) you install the Licensed Software for server or system failover only on a backup server or server cluster node for system failover, (ii) the Failover Copy must remain dormant until the occurrence of a Failover Event, (iii) your use of the Failover copy must immediately cease upon the cessation of the Failover Event, and (iv) you may not use the Failover Copy in excess of your licensed rights or in violation of the terms of this License Agreement.  Your license and right to use the Licensed Software for system failover is conditioned upon your cooperation with Licensor in creating a hardware fingerprint profile of the backup server or server cluster node upon which you install the Failover Copy or implementing such other measures as Licensor reasonably may require, and your continuing obligation to update and correct such hardware fingerprint profile or modify such measures as changes to the backup server or cluster node hardware occur.  Your license and right to install and maintain the Licensed Software for system failover will expire upon the first to occur of (x) your modification of your Licensed Software environment such that you no longer need a copy of the Licensed Software for a Failover Event, (y) Licensor’s modification of the Licensed Software to permit failover operation of the Licensed Software absent the need for a Failover Copy, or (z) the termination of this License Agreement.

        (f)  TRANSACTION LICENSING.  If your Sales Order indicates that you acquired transaction licenses, then your rights to install and use the transaction component(s) of the Licensed Software will be limited to the duration of any purchased transaction period and/or to the number of transactions that you have purchased as identified in the Sales Order (e.g. your use of the Licensed Software is limited to a designated number of transactions per day, month or year during the term of the license, or the term of the license is determined with reference to a designated number of transactions), and you will not execute any transactions in excess of that number of transactions.  You may use the transaction component of the Licensed Software only with the licensed server component of the Licensed Software.  You may not use the transaction component(s) of the Licensed Software on any additional computers or devices or in a LAN or other network, either in a multi-launch or remote sharing environment without purchasing additional licenses of the Licensed Software.  

        (g)  SUBSCRIPTION OR TERM LICENSING.  If your Sales Order indicates that you acquired subscription or term licenses, then your rights to install and use the Licensed Software will be limited to the subscription or term of the licenses as identified in the Sales Order, and will be subject to the terms and conditions of the Sales Order.  Your rights will also depend upon your timely payment to Licensor of all subscription or license fees due for each subscription or term license.  If you fail to timely pay your subscription or license fees, this failure will constitute a breach of a material term of this License Agreement and will permit Licensor to terminate your rights to the Licensed Software and this License Agreement.  If Licensor hosts the central Licensed Software application environment and associated infrastructure for your use of the Licensed Software, you will be entitled to possession only of the licensed client component of the Licensed Software.  This License Agreement and your limited license to use the Licensed Software will expire at the end of your subscription or license term, unless this License Agreement is (a) renewed or (b) terminated prior to the end of the subscription or license term.   

        (h)  AGENT LICENSING.  If your Sales Order indicates that you acquired agent components of the Licensed Software, then you may install and use the agent components of the Licensed Software only with the licensed server component of the Licensed Software and on computers or devices you own, lease, or otherwise control (or in the event of the inoperability of a computer or device, on your backup computer or device only until such operability is restored) and will not exceed the number of agent licenses of the Licensed Software that you have purchased.  You may not use the agent components of the Licensed Software on any additional computers or devices or in a LAN or other network, either in a multi-launch or remote sharing environment without purchasing additional licenses of the Licensed Software.

        (i)  FEATURE LICENSING.  If your Sales Order indicates that you acquired feature components of the Licensed Software, then you may install and use the feature components of the Licensed Software only with the licensed server component of the Licensed Software and on computers or devices you own, lease, or otherwise control (or in the event of the inoperability of a computer or device, on your backup computer or device only until such operability is restored) and will not exceed the number of feature licenses of the Licensed Software that you have purchased.  You may not use the feature components of the Licensed Software on any additional computers or devices or in a LAN or other network, either in a multi-launch or remote sharing environment without purchasing additional licenses of the Licensed Software.  

        (j)  OVERDRAFT.  If your Sales Order indicates that you acquired the overdraft feature for use with the concurrent license model of the Licensed Software, you will pay Licensor an annual fee for the overdraft capability in the amount provided in the Sales Order, provide quarterly reports to Licensor within thirty (30) days following the last day of each calendar quarter detailing the number of times the overdraft feature was used within such quarter, and pay to Licensor with such quarterly reports the overdraft fees associated with such license overdrafts in the amount provided in the Sales Order.  If you fail to timely pay any overdraft fees to Licensor, Licensor will have the right to terminate this License Agreement.  
 
        (k)  RESTRICTED USE.  If your Sales Order indicates that you acquired licenses of the Licensed Software subject to restrictions or limitations upon your use of a portion of the functionality provided by such licenses, such restrictions or limitations as identified in the Sales Order, then you will neither use nor permit the use of any of the functionality of such Licensed Software subject of such restrictions or limitations.  If you use any such restricted or limited functionality, then you will pay to Licensor the license fees and maintenance and support fees which you would have paid to Licensor had you purchased such restricted or limited functionality. 
 
        (l)  OVERAGE.  If your Sales Order indicates that you acquired transaction licenses of the Licensed Software and Licensor permits your use of such transaction component(s) of such licenses in excess the number of transactions that you have purchased as identified in the Sales Order (e.g., a designated number of transactions), then you will pay to Licensor overage fees for such excess use in the amount provided in the Sales Order. If you fail to timely pay any overage fees to Licensor, Licensor will have the right to terminate this License Agreement.

        (m)  EVALUATION LICENSE.  If your Sales Order indicates that you acquired evaluation licenses of the Licensed Software, then you are prohibited from using the evaluation licenses in a live production environment for productive use or otherwise in excess of your licensed rights or in violation of the terms of this License Agreement or the Sales Order or other agreement setting forth the terms of use of such evaluation licenses, and you accept such evaluation licenses without any representations or warranty obligations by Licensor with respect to such evaluation licenses, including, without limitation, as provided in this License Agreement, all such representations and warranty obligations which are hereby expressly disclaimed by Licensor.  Your rights to install and use the Licensed Software subject to such evaluation licenses will be limited as specified in the Sales Order or other agreement granting such evaluation licenses, and will terminate on the date specified in such Sales Order or other agreement, and upon such termination you will immediately discontinue to use, remove from your system, and return to Licensor such Licensed Software and associated User Documentation as provided in Section 12(e) below.   

        (n)  U.S. GOVERNMENT ENTITIES.   If you are a U.S. Government entity, then your use, duplication or disclosure of the Licensed Software and User Documentation is subject to the following restricted rights clause:  The Licensed Software and User Documentation are "Commercial Items," as that term is defined in 48 C.F.R. §2.101, consisting of "commercial computer Licensed Software" and "computer software documentation," as such terms are used in 48 C.F.R. §252.227-7014(a)(1) and 48 C.F.R. §252.227-7014(a)(5), respectively, and used in 48 C.F.R. §12.212 and 48 C.F.R. §227.7202, as applicable, and all as amended from time to time.  Consistent with 48 C.F.R. §12.212 and 48 C.F.R. §227.7202-1 through 227.7202-4, and other relevant sections of the Code of Federal Regulations, as applicable, and all as amended from time to time, all U.S. Government entities license the Licensed Software and User Documentation (a) only as Commercial Items, and (b) with only the rights explicitly set forth in this License Agreement and the Sales Order.

3.     COPY OF LICENSED SOFTWARE.  Upon installing the Licensed Software as permitted herein, you may retain any installers and executables that Licensor has made available to you, but you may use them only for backup purposes.  You may make one copy of the Licensed Software in machine-readable form for the purpose of backup in the event the installers or executables are damaged or destroyed, and one copy of the User Documentation for backup purposes only; provided, that any backup copy of the Licensed Software and User Documentation must include all copyright, trademark, and other proprietary notices contained on the original.  You will account for and keep a record of the copy of the Licensed Software or User Documentation you make, including where the copy is located and the name of the custodian of the copy.  You must provide these records to Licensor upon Licensor's request.

4.     REPLACEMENT LICENSES.  If Licensor issues you replacement licenses of the Licensed Software pursuant to your transition of the Licensed Software to a new computer or device, then your use of the replacement Licensed Software will be subject to the terms of this License Agreement, and promptly upon the completion of such transition you will immediately discontinue to use, remove from your system, and return to Licensor such Licensed Software and associated User Documentation as provided in Section 12(e) below.    

5.     RESTRICTIONS  

        (a)  LICENSE RESTRICTIONS.  You will use the Licensed Software (i) only for your internal business purposes, only for your direct benefit, and not for the internal purposes of any third party nor for any timesharing, rental, Internet, or application service provider, commercial hosting services, or service bureau basis, and (ii) only to the extent it is licensed hereunder and provided you have paid all applicable license fees for the Licensed Software.  You will not without Licensor's prior written consent in each instance voluntarily or involuntarily in any form or manner assign, sublicense, transfer, pledge, lease, network, rent, loan or share the Licensed Products or any rights under this License Agreement to or with any other person or entity, including, without limitation, any assignment or transfer incident to your merger or consolidation with another entity, or any assignment or transfer by operation of law.    Any such assignment, sublicense, transfer, pledge, lease, network, rental, loan or sharing absent Licensor's prior written consent will be void and of no force or effect and will cause the immediate termination of this License Agreement.  Furthermore, you will not publish, disclose or otherwise display in writing, electronically or otherwise any part of the Licensed Products without Licensor's prior written consent in each such instance, any such publication, disclosure or display absent Licensor's prior written consent which will cause the immediate termination of this License Agreement.

        (b)  USE RESTRICTIONS.  You will use the Licensed Products only in their original form, and will not reverse engineer, decompile, disassemble, decrypt, re-engineer, reverse assemble, reverse compile or otherwise translate or create, attempt to create the source code of the Licensed Software or its structural framework (in whole or in part), or perform any process intended to determine the source code for the Licensed Software, or assist or otherwise facilitate others any of the foregoing. You will not modify, enhance or create derivative works based upon the Licensed Software (in whole or in part), including, without limitation, any derivative works based upon the database structures of the Licensed Software, or otherwise change the Licensed Software.  You agree that any modification, enhancement, derivative work or other improvement to the Licensed Software and/or the User Documentation developed by Licensor, you, your employees or your independent contractors, whether with or without the consent, advice and/or support of Licensor, will be the exclusive property of Licensor and subject to and governed under the terms and conditions of this License Agreement, and you hereby assign to Licensor all such rights, title and interest therein.

6.     INTELLECTUAL PROPERTY.  You acknowledge and agree that: (i) all Licensed Products are licensed and not sold; (ii) by accepting the licenses set forth in this License Agreement, you acquire only the right to use the Licensed Products in accordance with the terms of this License Agreement, and that Licensor, or its licensors, will retain all rights, title, interest, including all associated patent, copyright, trademark, trade dress, trade secret and other proprietary rights in and to the Licensed Products; and (iii) the Licensed Software, including the source and object codes, logic and structure, constitute valuable trade secrets of Licensor.  You agree to secure and protect the Licensed Products with the same degree of care which you employ to protect your own intellectual property of a similar nature, but in no event less than a reasonable standard of care.  This Section will survive any termination of this License Agreement.  

7.     LICENSOR WARRANTY

        (a)  PERFORMANCE WARRANTY.  Licensor warrants (the "Performance Warranty" to you for a period of ninety (90) days from the date of your acceptance of this License Agreement (the "Performance Warranty Period") that (i) the Licensed Software, under normal, proper and intended usage, will operate substantially in accordance with functional specifications in any User Documentation, and (ii) that the Licensed Software does not contain any computer worms or viruses.  To be eligible for a remedy under this Performance Warranty, at law or in equity, you must report all warranted problems to Licensor in writing within the Performance Warranty Period.  

        (b)  REMEDIES.  If during the Performance Warranty Period you notify Licensor in writing that the Licensed Software is noncompliant with the Performance Warranty, and Licensor determines the Licensed Software is noncompliant with the Performance Warranty, then your exclusive remedy and Licensor’s sole obligation with respect to the noncompliant Licensed Software will be, at Licensor’s option and expense: (i) use reasonable efforts to provide a correction or a workaround for any reproducible errors or other noncompliance; (ii) replace the Licensed Software; or if the foregoing two (2) options are not commercially reasonably viable (iii) terminate this License Agreement and refund the unamortized license fees paid to Licensor for the noncompliant Licensed Software. Upon such termination you will immediately discontinue to use, remove from your system, and return to Licensor such Licensed Products as provided in Section 12(e) below.  You agree to cooperate with Licensor in recreating the environment in which any noncompliance occurred and to supply any equipment and personnel Licensor reasonably deems necessary to diagnose and remedy such noncompliance.  The warranty and remedies provided in this License Agreement do not apply to any Licensed Software to the extent that such Licensed Software: (i) has been modified, enhanced or altered in any way, except by Licensor or as authorized in advance in writing by Licensor; (ii) has not been installed, operated, repaired or maintained in accordance with any documentation provided by Licensor; (iii) has been subjected to misuse, negligence, or accident; (iv) has been subjected to external forces, such as power failures or electrical power surges; or (v) cannot reasonably reproduce the error reported by you.

        (c)  DISCLAIMERS.  LICENSOR MAKES NO WARRANTY THAT THE LICENSED SOFTWARE WILL MEET YOUR NEEDS, PERFORM ERROR-FREE OR UNINTERRUPTED, OR THAT LICENSOR WILL CORRECT ALL ERRORS THAT MAY EXIST WITHIN THE LICENSED SOFTWARE.  EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED PRODUCTS ARE LICENSED “AS IS” AND LICENSOR EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY NON-INFRINGEMENT WARRANTY AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE.  ANY IMPLIED WARRANTIES THAT BY LAW CANNOT BE DISCLAIMED ARE LIMITED IN DURATION TO: (I) NINETY (90) DAYS FROM THE DATE OF YOUR ACCEPTANCE OF THIS LICENSE AGREEMENT; OR (B) THE SHORTEST PERIOD PERMITTED BY LAW, WHICHEVER IS GREATER.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION OR LIMITATIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

8.     INDEMNIFICATION  

        (a)  LICENSOR INDEMNIFICATION.  Licensor will hold harmless, indemnify and defend you and your officers, directors, agents and employees (collectively, "Licensee Parties") from and against any and all claims (including any and all liabilities, damages, losses, costs and expenses and reasonable attorneys’ fees arising therefrom) ("Claims") to the extent arising out of any action or proceeding brought by a third party against any one or more of the Licensee Parties: (i) alleging that the Licensed Products infringe a copyright or patent, or misappropriate a trade secret of a third party in the venue in which the Licensed Products are licensed under this License Agreement; or (ii) related to any act or omission by Licensor which is a breach by Licensor of any term of this License Agreement or of any of its obligations under this License Agreement; provided, however, that Licensor will have no liability to you with respect to any Claim that is based upon,  arises out of, or would not have occurred but for (A) any modification of the Licensed Products by you or any third party, (B) your combination, operation, or use of the Licensed Software with any software, hardware, product or apparatus installed in your application environment following the installation of the Licensed Software, (C) your use of any third party software other than in accordance with the license agreement for such third party software, or (D) any act or omission by you which is a breach by you of any of your obligations under this Agreement. If Licensor reasonably believes that the Licensed Products infringe a copyright or patent, or misappropriate a trade secret of a third party, then Licensor, within its sole and absolute discretion, may (i) acquire the right for you to continue to use the Licensed Products upon the terms of this License Agreement; (ii) modify the Licensed Products to avoid or correct the infringement; (iii) replace the Licensed Software; or (iv) terminate this License Agreement and refund to you an equitable portion of the license fees paid to Licensor for the infringing Licensed Software.  Upon such termination you will immediately discontinue to use, remove from your system, and return to Licensor such Licensed Software and associated User Documentation as provided in Section 12(e) below.
   
        (b)  RESERVED  

        (c)  EXCLUSIVE REMEDY.  This Section 8 sets forth your exclusive remedy with respect to any action or claim for an alleged violation of the intellectual property rights or other rights of third parties with respect to the Licensed Products.  

        (d)  CONDITIONS TO INDEMNIFICATION.  Licensor's indemnification obligations as provided above are conditioned upon the Licensee (i) giving prompt written notice to the Licensor of any claim, demand, or action for which indemnity is sought; (ii) fully cooperating in the defense or settlement of any such claim, demand or action; and (iii) giving Licensor sole control of the defense, investigation, and/or settlement of the claim, demand or action for which indemnification is sought, including, without limitation, the employment and engagement of attorneys of its choice to handle and defend the same.  In no event, however, will the Licensor admit liability on behalf of the Licensee without the prior written consent of Licensee, such consent which will not be unreasonably withheld, conditioned or delayed.  Subject to the foregoing, however, the Licensee, at its own expense, may participate, through its attorneys or otherwise, in the investigation, trial and defense of any such claim, demand or action and any appeal therefrom.

9.     LICENSEE WARRANTIES, COVENANTS AND AGREEMENTS (MEDICAL OR PROFESSIONAL SERVICES). If you use the Licensed Software in conjunction with rendering medical or other professional services, then you represent, warrant, covenant and otherwise acknowledge and agree that:

        (a)  PROFESSIONAL LIABILITY INSURANCE. You will obtain and maintain policies of insurance to provide reasonable and customary levels of professional liability coverage and general liability coverage for yourself and for any medical services practices associated with you for the period that this License Agreement is in effect.  You will ensure that all users of the Licensed Software and their employers are additional insureds under each such policy or that they are insured under policies of equal or better coverage.

        (b)  LEGAL REQUIREMENTS. You will be responsible for and will comply with all applicable legal and regulatory requirements associated with the use of the Licensed Software in rendering medical or other professional services, including, without limitation, any professional licensing requirements arising out of the transfer of any data over state or other jurisdictional lines and ensuring the use of such data solely by properly licensed professionals in each jurisdiction to which such data may be transferred.

        (c)  DISCLAIMERS.  You acknowledge that: (i) the Licensed Software does not offer medical interpretations of data, diagnose patients, or recommend therapy, the Licensed Software is designed solely as an information resource to be used by healthcare professionals using their sole judgment in the provision of medical services, and you are solely responsible for determining the applicability and confirming the accuracy of all data generated by the Software; (ii) Licensor has no control of or responsibility for your use of the Licensed Software or the data managed, processed, stored or otherwise handled by the Licensed Software, and Licensor has no knowledge of the specific or unique circumstances under which the Licensed Software or such data may be used by you; and (iii) neither Licensor nor its affiliates or their respective officers, directors, agents and employees assume any responsibility for any aspect of the medical or other professional services provided in conjunction with your use of the Licensed Software or the data managed, processed, stored or otherwise handled by the Licensed Software, or your regulatory compliance or professional service obligations. 

10.     LIMITATION OF LIABILITY. To the maximum extent permitted by law, in no event will either party be liable to the other party for loss of profits or other economic loss, special, consequential, exemplary, or incidental damages (including without limitation any loss of business, profits, revenue, goodwill, use, or data), even if such party has been apprised of the likelihood of such damages occurring.  These limitations apply to all causes of action in the aggregate, including without limitation causes of action arising out of termination of this LICENSE agreement, breach of contract, breach of warranty, negligence, strict liability, misrepresentation, product liability and any other torts.  Unless prohibited by law, the maximum aggregate cumulative amount for which either party may be liable under this agreement will be limited to the amounts actually paid or payable by YOU to LICENSOR for the affected LICENSED Product(s) under this LICENSE agreement during the eighteen (18) months preceding a Claim.  This section will not apply, however, to a party’s infliction of bodily injury (including death) or breach of confidentiality.   

11.     TRADEMARKS.  You recognize, as between you and Licensor, Licensor’s ownership in and title to all trademarks and/or service marks owned by Licensor and set forth in the Licensed Products, including any and all common law and registered rights throughout the world (hereinafter the "Trademarks").  No right, license or interest in or to any of the Trademarks is granted hereunder, and you agree that you will assert no such right, license or interest with respect to such Trademarks.  Furthermore, you will not contest the validity of any of the Trademarks, claim adversely to Licensor any right, title or interest in and to the Trademarks and will not use, register, apply to register or aid a third party in registering the Trademarks during the term of this License Agreement or any time thereafter.  If Licensor considers it advisable to record you as a licensee of the Trademarks, you agree to cooperate in such procedure and to execute any documents submitted to you for this purpose.

12.     TERM AND TERMINATION
  
        (a)  TERM.  The term of this License Agreement will commence as of the date of your acceptance of this License Agreement, and will continue until the termination or expiration of the term of all of the licenses of the Licensed Software, unless earlier terminated at the end of any timeframe specified in a Sales Order or as provided below.

        (b)  TERMINATION BY CUSTOMER.  You may terminate this License Agreement effective thirty (30) days after written notice to Licensor in the event that Licensor breaches any material provision of this License Agreement and has not cured such breach within such thirty (30) day period, or such longer period as reasonably necessary to cure such breach.

        (c)  TERMINATION BY LICENSOR.  Licensor may terminate this License Agreement: (i) at any time upon written notice if you breach any provision of Sections 2, 3, 4 or 5 of this License Agreement; or (ii) effective thirty (30) days after written notice to you in the event that you breach any other material provision of this License Agreement and you do not cure such breach within such thirty (30) day period, or such longer period as reasonably necessary to cure such breach.

        (d)  TERMINATION BY EITHER PARTY.  Either party may terminate this License Agreement if: (i) any distress or execution is levied on any of the other party's property or assets; (ii) the other party makes or offers to make any arrangement or composition with creditors; (iii) any resolution or petition to wind up the other party's business is passed or presented or if a receiver or administrative receiver of such party's undertaking, property or assets is appointed or a petition presented for the appointment of an administrator or, if an individual, such party has a bankruptcy order made against him or her; or (iv) the other party is subject to any proceedings, which are equivalent or substantially similar to any of the proceedings under sub-clause (i), (ii) or (iii) under any applicable jurisdiction.

        (e)  RIGHTS AND OBLIGATIONS UPON TERMINATION OR EXPIRATION.  Upon termination of this License Agreement, all rights granted to you hereunder will immediately cease and you will: (i) immediately discontinue all use of the Licensed Products; (ii) within thirty (30) days return to Licensor all copies and modifications of the Licensed Products, including any extracts therefrom (with the exception of your meta data and associated objects); (iii) permanently remove from your system and all storage devices and media all copies of the Licensed Products or any portion thereof; and (iv) give Licensor a written certification signed by an authorized officer that you have complied with all of your obligations under this Section.  Termination of this License Agreement for any reason will not excuse your obligation to pay in full any and all amounts due to Licensor, nor will termination by Licensor result in a refund of any fees paid by you to Licensor.  

        (f)  CONTINUING OBLIGATIONS.  The terms and conditions in this License Agreement that by their nature and context are intended to survive any termination of this License Agreement, including, without limitation, Sections 6 (Intellectual Property), 8 (Indemnification), 10 (Limitation of Liability), 11 (Trademarks), 12 (Term and Termination) and 14 (Miscellaneous), will survive such termination of this License Agreement for any reason and will be fully enforceable thereafter.  Termination of this License Agreement will not otherwise affect the party exercising such rights, remedies and protections hereunder.

13.     AUDIT.  Licensor, upon thirty (30) days written notice to you and not more than once during each calendar year during the term of this License Agreement and once during the one (1) year period following the termination of this License Agreement, may enter upon your premises during your regular business hours to audit your use of the Licensed Software. You agree to cooperate with Licensor's audit and provide reasonable assistance and access to your systems and information. If pursuant to any such audit, Licensor discovers any excess or unlicensed use of the Licensed Software, you agree to pay within thirty (30) days of written notification an amount equal to the sum of (i) the license fees and maintenance and support fees which Licensor would have received if your excess or unlicensed use of the Licensed Software had been licensed; and (ii) interest on such fees from the date such additional fees should have been paid at the rate of one percent (1%) per month, or the maximum interest rate permitted by law, whichever is lower. If you fail to pay such amounts within thirty (30) days of being invoiced for such amounts, Licensor may terminate your licenses of the Licensed Software and any maintenance and support of the Licensed Software. 

14.     MISCELLANEOUS 

        (a)  NOTICES.  Any notices, demands or other communications required or permitted under this License Agreement will be in writing and will be deemed effectively delivered to the party:  (i) by email using a method that positively establishes receipt of the email by the recipient; (ii) by personal, same or next day delivery; or (iii) by commercial overnight courier with written verification of delivery; in each case addressed to the party for whom it is intended at the address for such party as last provided to the other.  All notices so given will be deemed given upon the earlier of receipt or three (3) days after dispatch.

        (b)  GOVERNING LAW.  This License Agreement will be construed and governed in accordance with the laws of the Licensee, without regard to any rules of conflicts or choice of law provisions that would require the application of the laws of any other jurisdiction.  The parties hereto hereby submit to the exclusive jurisdiction and venue of the courts located in the county of the Licensee, for any action or legal proceeding related to or arising under this License Agreement and waive any objections based on forum non conveniens; provided, however, that if for any reason the courts of such domicile do not have jurisdiction over the matter or a party, then Licensor may elect to commence any such action or proceeding in any court having jurisdiction over you.  The foregoing notwithstanding, however, if you acquired the Licensed Software in a country which is a member of the European Union, the laws of that country will govern the interpretation of this License Agreement and any claims arising hereunder, regardless of choice of laws principles of any other jurisdiction.  In each case, this License Agreement will be construed and enforced without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act.  

        (c)  ATTORNEYS' FEES.  In any action to interpret or enforce this License Agreement, the prevailing party will be awarded all court costs and reasonable attorneys' fees and costs and expenses of investigation incurred.

        (d)  SEVERABILITY.  The provisions of this License Agreement are severable and if any one or more such provisions is determined to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of any of the remaining provisions or portions thereof will not be affected or impaired thereby and will nevertheless be binding between the parties.  In the event any provision of this License Agreement is found to be invalid, illegal, or unenforceable, the parties will endeavor to modify that provision in a manner that gives effect to the intent of the parties in entering into the License Agreement.

        (e)  WAIVER OR DELAY.  No failure to exercise or delay by a party in exercising any right, power, or remedy under this License Agreement operates as a waiver of such right, power, or remedy.  A single or partial exercise of any right, power, or remedy does not preclude any other or further exercise of that or any other right, power, or remedy.  A waiver is not valid or binding on the party granting the waiver unless made in writing.

        (f)  EXPORT LAWS.  The Licensed Products are subject to United States export control jurisdiction, and may not be shipped, transferred, re-exported to any country or recipient, or used for any purpose prohibited by any applicable international and national laws that apply to the Licensed Products, including the U.S. Export Administration Regulations as well as end-user, end-use, and destination restrictions issued by the United States and other governments. You will not export or re-export Licensed Products without first obtaining the appropriate U.S. or foreign government export licenses. 

        (g)  ENTIRE AGREEMENT.  This License Agreement constitutes the entire understanding and agreement between the parties with respect to the subject matter of this License Agreement and supersedes all previous agreements and communications between the parties concerning such subject matter.  No modifications may be made to this License Agreement except in writing, signed by both parties. 

        (h)  BENEFIT OF AGREEMENT.  This License Agreement will bind and inure to the benefit of the parties and their respective permitted successors and assigns.
  
        (i)  CUMULATIVE REMEDIES.  Except as otherwise provided in this License Agreement, all remedies of the parties hereunder are non-exclusive and are in addition to all other available legal and equitable remedies.

        (j)  FORCE MAJEURE.  Neither party will be liable or deemed to be in default for any delay or failure in performance under this License Agreement resulting, directly or indirectly, from acts of God, civil or military authority, acts of the public enemy, war, riots, civil disturbances, insurrections, accidents, fire, explosions, earthquakes, floods, the elements, strikes, labor disputes or any causes beyond its reasonable control; provided that the party failing to perform in any such event will promptly resume or remedy, as the case may be, the performance of its obligations hereunder as soon as practicable.

        (k)  CONSTRUCTION OF AGREEMENT.  Each party acknowledges that it has had the opportunity to review this License Agreement with legal counsel of its choice and agrees that in the event that this License Agreement or any other documents delivered in connection with the transactions contemplated by this License Agreement contain any ambiguity, such ambiguity will not be construed or interpreted against the drafting party.  The titles and headings herein are for reference purposes only and will not in any manner limit the construction of this License Agreement, which will be considered as a whole.
     
        (l)  CHOICE OF LANGUAGE.  The original of this Agreement has been written in English, which will be the controlling language in all respects.  Any translations into any other language are for reference only and will have no legal or other effect. 

        (m)  PERSONAL DATA; CONSENT TO PROCESS AND TRANSFER. You agree to comply with all applicable laws and regulations including, but not limited to, laws pertaining to the collection and use of personal data. You agree that Licensor, its affiliates, and agents may collect and process information (including any personal data) you provide or that is gathered or generated by the Software Program in relation to (i) any support services performed in connection with the Software Program and requested by you, (ii) enabling any functionality of the Software Program or services provided by Licensor, or (iii) enabling Licensor to perform any other services related to the Software Program as you and Licensor may agree. Licensor agrees to process the information only to the extent necessary to provide such services or enable the functionality of the Software Program. You represent that you have obtained or will obtain from individuals whose personal data Licensor is permitted to access under this Agreement any consents or authorizations related to processing of their personal data that are required by applicable law. You agree that Licensor may transfer your information to the United States or other countries for processing in accordance with this Section.

EU5-0125-EN-NASPO