End User License Agreement

SUBX, INC

QUANTRIX SOFTWARE END-USER SUBSCRIPTION LICENSE AGREEMENT

IMPORTANT – READ CAREFULLY

THIS END-USER SUBSCRIPTION LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL CONTRACT BETWEEN YOU (“CUSTOMER”) AND SUBX INC. D/B/A QUANTRIX (“QUANTRIX”) FOR QUANTRIX SOFTWARE PRODUCTS (“SOFTWARE”).

CUSTOMER ACKNOWLEDGES THAT THEY HAVE READ AND UNDERSTAND THIS AGREEMENT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS, AND THE PERSON ACCEPTING THIS AGREEMENT IS AUTHORIZED TO DO SO. IF THE PERSON ACCEPTING THIS AGREEMENT AS CUSTOMER IS DOING SO ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH PERSON REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

IF THE PERSON ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY AS DESCRIBED ABOVE, OR DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN SUCH PERSON MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT INSTALL OR USE THE SOFTWARE.

BY CLICKING THE “I ACCEPT” ICON BELOW, OR BY INSTALLING OR OTHERWISE USING THE SOFTWARE, CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT IN ITS ENTIRETY.

IF CUSTOMER HAS REGISTERED FOR A FREE TRIAL OF THE SOFTWARE, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.

TERMS AND CONDITIONS

1. DEFINITIONS

Affiliate any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, shall mean the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting stock, by contract or otherwise;
Customer Data all electronic data and information submitted by or for Customer to the Software or collected and processed by or for Customer using the Software;
Data Controller a natural or legal person, public authority, agency or any other body who alone or jointly with others determines the purposes and means of the processing of Personal Data;
Data Processor a natural or legal person, public authority, agency or any other body who processes Personal Data on behalf of the Data Controller;
Data Protection Laws and Regulations All applicable laws and regulations for a particular country/jurisdiction regarding the processing of Personal Data as may be revised or updated from time to time;
Documentation explanatory and informational materials, technical literature and specifications, user guides, general product documentation, and help and training materials, as updated from time to time, accessible or supplied with the Software, in printed and/or electronic format;
Electronic Communications any transfer of text, images, files, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Software by Customer;
Fault a problem or defect resulting from an incorrect functioning of the Software or an incorrect or incomplete statement or diagram in Documentation;
Fees the fees and charges contained in the Order Form that are payable by Customer to QUANTRIX for the grant of access and use of the Software under this Agreement;
Good Industry Practice means the exercise of the degree of skill, care, prudence, foresight and operating practice which would reasonably and ordinarily be expected from a well-managed, skilled and experienced software provider, engaged in the same type of business as QUANTRIX and operating under the same or similar circumstances;
Harmful Code means any software, hardware or other technologies, devices or means, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner, any (i) computer, software, firmware, hardware, system or network, or (ii) any application or function of any of the foregoing or the integrity, use or operation of any data processed thereby; or (b) prevent Customer or any User from accessing or using the Software as intended by this Agreement, and includes any virus, bug, Trojan horse, worm, backdoor or other malicious computer code;
Intellectual Property patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world;
Installation Site a physical location owned, controlled and/or contracted by Customer, where the Software is licensed for installation by Customer, and/or for use by Users.
Non-QUANTRIX Applications Online and offline software applications that are provided by entities or individuals other than QUANTRIX that interoperate with the Software;
Order Form a QUANTRIX proposal, renewal notification, or ordering document in the name of and executed by Customer and accepted by QUANTRIX which specifies the Software to be provided by QUANTRIX under this Agreement and which Order Form is incorporated herein by reference;
Party in the singular, either Customer or QUANTRIX as the context may dictate, or in the plural (“Parties“), both Customer and QUANTRIX;
Personal Data Customer Data relating to an identified or identifiable natural person;
Software the QUANTRIX software products that are ordered by Customer in the Order Form and made available by QUANTRIX to Customer, including Updates, associated modules and plug-ins, as the context requires;
Supported Interfaces the QUANTRIX graphical user interfaces (GUI) and/or application programmatic interfaces (API) included in QUANTRIX software products that are ordered by Customer in the Order Form;
Technical Support the provision of technical support, for query and problem resolution, in relation to the Software;
Updates versions of the Software or components thereof released by QUANTRIX to its customers from time to time under QUANTRIX’ support/update/development plans, which may remedy or provide a workaround to a Fault, or provide a general improvement or enhancement to the Software;
User a natural person who is authorized by Customer to use the Software and to whom Customer (or QUANTRIX at Customer request) have supplied a unique user identification to access the Software. Users may include, for example, Customer’s employees, consultants, contractors and agents, and third parties with which Customer transacts business, but may not be a competitor of QUANTRIX.

1.1. The headings in this Agreement do not affect its interpretation. Except where the context otherwise requires, references to clauses and schedules are to clauses and schedules of this Agreement.

1.2. In the case of conflict or ambiguity between any provision contained in the body of this Agreement and any provision contained in the schedules or appendices, the provision in the body of this Agreement shall take precedence.

2. GRANT OF LICENSE

2.1 Grant of License. Pursuant to the terms and conditions of this Agreement, QUANTRIX grants to Customer a non-exclusive and non-transferable (except as expressly permitted by this Agreement) license to install the Software within the Installation Site(s) and provide a certain number of its Users access to the Software. Software is licensed, not sold, to Customer as a subscription for a User to access and use the Software (“User Subscription“) for a defined period of time (” Subscription Term“). Fees for User Subscriptions are due annually within the Subscription Term. Additional User Subscriptions for the Software may be added during a Subscription Term either at the then current QUANTRIX list prices or as otherwise agreed to by the Parties in the Order Form. User Subscriptions added during a Subscription Term will be billable upon receipt of an Order Form, for a full 12-month period, or pro rata if in the final year of a Subscription Term, and will terminate on the same date as the termination date of the current Subscription Term. One year from the initial start date of the Subscription Term, and then annually thereafter until the end of the Subscription Term, all User Subscriptions purchased during the previous year will be rolled up and the annual User Subscription fee due for the current year adjusted accordingly.

2.2 Customer Decision to Purchase the Software. Customer accepts that the Software is not designed and produced to Customer’s individual requirements and that it is solely responsible for selection and purchase of the Software hereunder. QUANTRIX makes no representations whatsoever as to the fitness for purpose of the Software and any decision as to the fitness for purpose of the Software for Customer’s requirements are made at the sole discretion of Customer.

3. CUSTOMER RESPONSIBILITIES

3.1 Usage Limits. Customer understands that the Software is subject to usage limits. The Software may not be accessed by more Users than the number of User Subscriptions specified for the Software in the Order Form. Each User given access to the Software by Customer will be identified by either (a) a unique activation code; (b) a unique username and password; or (c) some other unique identification method, as the Software dictates. User Subscriptions are strictly for individually designated Users only and may not be shared. User Subscriptions may, however, only as expressly permitted by QUANTRIX, be reassigned to a new User to replace an existing User who no longer requires use of, or access to, the Software. Customer will (a) ensure that at all times the Software is not used or accessed by more Users than the number of User Subscriptions specified for the Software in the Order Form; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Software, (c) notify QUANTRIX promptly of any such unauthorized access or use, and (d) use the Software solely for its business as contemplated by this Agreement, in accordance with the Documentation and applicable laws, and government regulations.

3.2 Strictly Prohibited Uses. Customer shall not (a) modify, reverse compile, reverse engineer, disassemble or attempt to discover the structure or sequence of the source code, or any underlying ideas and programming of interoperability and interfaces of the Software; (b) adapt the whole or any part of the Software (c) license, sublicense, sell, resell, distribute, rent or lease, transfer, assign, time share or otherwise commercially exploit the Software; (d) make the Software available to any third party other than Users (e) attempt to gain unauthorized access to the Software, (f) permit direct or indirect access to or use of the Software in a way that circumvents a contractual usage limit; (g) access the Software by any means other than QUANTRIX’ publicly Supported Interfaces; (h) use the Software to store or send infringing, libelous, obscene, threatening or otherwise unlawful or tortious material, including materials that are harmful to children or violates third party privacy rights; (i) use the Software to store or send Malicious Code; (j) subject to 3.3 below, copy the Software or any part, feature, function or user interface thereof; or (k) access the Software in order to build a competitive product or service.

3.3 Backups. Customer may make backup copies of the Software as may be necessary for its lawful use. Customer shall record the number and location of all copies of the Software and take steps to prevent unauthorized copying.

3.4 Customer Responsibilities Regarding Customer Data. By submitting Customer Data to the Software, Customer acts as Data Controller under applicable Data Protection Laws and Regulations. Customer shall have sole responsibility for the accuracy, quality, legality, reliability and appropriateness of all Customer Data, and the means by which Customer Data was acquired, and ensure that any data processing instructions given to its employees or QUANTRIX comply with applicable Data Protection Laws and Regulations.

3.5 Administration of Customer Installation. Customer may specify one or more administrators (each an “Administrator”) to manage its installation of the Software. Administrators have the ability to access, monitor, use, export and disclose all content posted to the Software by Users. Customer is responsible for: (i) the selection of its Administrator(s); (ii) maintaining the confidentiality of User usernames and passwords, and Administrator accounts; (iii) managing access to Administrator accounts; and (iv) ensuring that each Administrator’s use of the Software complies with this Agreement. QUANTRIX shall not be held liable for any actions on the part of Customer’s Administrator(s). Customer Administrator shall be responsible for issuing of individual usernames and passwords to Users, and for granting Users certain administrative rights to use and access the Software. Customer acknowledges that it is solely responsible for maintaining the status of its User base and for maintaining the integrity of its usernames and passwords. Customer understands that usernames and passwords are assigned for use only by Users and are strictly prohibited from being shared with other entities or individuals, except as expressly allowed by this Agreement. Unauthorized sharing of assigned usernames or passwords by Customer, or a User, shall result in immediate suspension of Customers license to use the Software, upon which QUANTRIX reserves the right to terminate this Agreement without issuing a refund of any kind to Customer.

3.6 Customer User Conduct; Compliance. Customer agrees that it is solely responsible for its Users use of the Software and for their compliance with this Agreement. Customer is also responsible for providing any notice and obtaining any consents and authorizations necessary to allow the Administrator to access, monitor, use and disclose the content posted by the Users in the Software. QUANTRIX may request that Customer suspends the account of any User who violates this Agreement;

3.7 Right to Audit. At any time during the Subscription Term, QUANTRIX may (but are not required to) monitor or, upon reasonable notice, audit Customer’s use of the Software (which may include an audit at your premises during normal business hours) as reasonably necessary to confirm your compliance with this Agreement. QUANTRIX may use a third-party organization to assist in conducting such an audit. Customer agrees to cooperate with QUANTRIX and/or such third-party organization, in connection with an audit and will promptly make available all information and materials reasonably required to conduct such an audit. In the event that an audit reveals that Customer is not in full compliance with the terms and conditions of this Agreement, Customer shall reimburse QUANTRIX for all reasonable expenses related to the audit in addition to any other liabilities Customer may incur as a result of such non-compliance.

4. SUPPORT AND UPDATES

4.1 Technical Support. Standard Technical Support for query and problem resolution in relation to the Software will be provided to Customer, and/or upgraded Technical Support if purchased. Details regarding the Technical Support provided by QUANTRIX can be found in the “Customer Support Charter”, which includes information on (a) Telephone and on-line HelpDesk availability; (b) the process for reporting Faults; (c) the prioritization of Faults, escalation procedures, and target Fault resolution times.

4.2 Problem Resolution. Customer will promptly report to QUANTRIX any problems arising in the Software or Documentation and will provide assistance or information as may reasonably be required by QUANTRIX in relation to the diagnosis of such problems. Customer agrees that failure to provide such assistance or information may prohibit effective action by QUANTRIX and render QUANTRIX unable to proceed and in such circumstances QUANTRIX shall be under no liability for failure to perform its Technical Support obligations under this Agreement. When a problem is considered to be a Fault it will be rated with a priority level in accordance with the ” Customer Support Charter” and responded to in accordance with the time scales and with the resources allocated for the assigned priority level. Subject to the provisions hereunder and the QUANTRIX Customer Support Charter, QUANTRIX reserve the right to determine whether reported problems are Faults or improvement requests, and to determine when Faults are to be corrected and when Updates of the Software to correct Faults, are issued. QUANTRIX shall have no obligation to provide Technical Support where Faults arise from: (a) misuse or incorrect use of the Software, (b) failure to maintain the necessary environmental conditions for use of the Software; (c) use of the Software in combination with any equipment or product not provided by QUANTRIX or not designated by QUANTRIX for use with the Software, or any fault in any such equipment or product; (d) Customers failure to install an Update of the Software that rectifies the Fault where Customer has been notified of, and provided with such Update; (e) any breach of the Customer’s obligations under this agreement howsoever arising, or (f) User error.

4.3 Software Updates. QUANTRIX may, from time to time, during the Subscription Term, provide an Update to the Software, and make this available to Customer. QUANTRIX shall inform Customer of an Update as it becomes available. Customer is responsible for the installation of Updates.

4.4 Non-QUANTRIX Applications. QUANTRIX does not warrant support for Non-QUANTRIX Applications, whether or not they are designated by QUANTRIX as “Certified” or otherwise, except as specified in the Order Form. If Customer installs or enables a Non-QUANTRIX Application to interoperate with the Software then QUANTRIX is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by a Non-QUANTRIX Application to Customer Data. The Software may contain features designed to interoperate with Non-QUANTRIX Applications but QUANTRIX reserves the right to cease providing such features in its sole discretion, without entitling Customer to any refund, credit, or other compensation.

4.5 Limited License to Use Customer Data. In order to provide Technical Support QUANTRIX may require access to Customer Data. Customer hereby grants to QUANTRIX a limited, non-exclusive and non-transferable (except in connection with the sale or transfer of its business) license to access, use, copy, reproduce, process, transmit and display Customer Data submitted to the Software by Users, for the limited purpose of providing Customer with Technical Support. QUANTRIX will (a) only process and use Customer Data in accordance with this Agreement (b) maintain appropriate safeguards for the security, confidentiality and integrity of Customer Data; (c) restrict access, use, modification or disclosure of Customer Data by QUANTRIX personnel and third parties except to provide Technical Support; (d) not disclose Customer Data except as compelled by law, or as Customer expressly permits in writing; and (e) to the extent that Customer Data comprises Personal Data, adhere to QUANTRIX’ Privacy Policy, and applicable Data Protection Laws and Regulations, in which case Customer agrees that QUANTRIX and/or its Affiliates are acting as individual Data Processors on behalf of Customer.

4.6 Transmission of Data. Customer understands that the technical processing and transmission of Customer’s Electronic Communications by QUANTRIX is fundamentally necessary to provide Technical Support. Customer expressly consents to QUANTRIX’ interception and storage of Electronic Communications and Customer understands that Customer’s Electronic Communications will involve transmission over the Internet, and over various networks, only in part of which may be owned and/or operated by QUANTRIX. Customer further understands that Customer’s Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities or other electronic means. QUANTRIX is not responsible for any Electronic Communications and/or Customer Data which is delayed, lost, altered, intercepted or stored during the transmission of data whatsoever across networks not owned and/or operated by QUANTRIX, including, but not limited to, the Internet and Customer’s local network.

5. FEES AND PAYMENT

5.1 Fees. Customer shall pay all Fees specified in the Order Form that forms part of this Agreement. Customer acknowledges that (a) Fees are based on Software licenses purchased and not actual usage, (b) payment obligations are non-cancellable, (c) any Fees paid are non-refundable, and (d) the number of User Subscriptions purchased in the Order Form cannot be decreased during the Subscription Term.

5.2 Invoicing and Payment. Customer is responsible for providing QUANTRIX with complete and accurate invoicing and contact information, and notifying QUANTRIX promptly of any changes to such information. All non-disputed invoices issued by QUANTRIX to Customer are due 30 days from the date the invoice is received by Customer. All levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes (collectively, “Taxes”) due on Fees will be applied to a Customer invoice as required by law.

5.3 Overdue Amounts. If any invoiced amount is not received by QUANTRIX by the due date, then without limiting its rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) QUANTRIX may condition future subscription renewals and Order Form on payment terms shorter than those specified above.

5.4 Suspension of Services. If any amount owing by Customer under this Agreement is 30 or more days overdue QUANTRIX may, without limiting its other rights and remedies, accelerate your unpaid fee obligations under the Agreement so that all such obligations become immediately due and payable, and suspend Customers license to use the Software until such amounts are paid in full. QUANTRIX will give at least 10 days’ prior notice of overdue amounts.

5.5 Payment Disputes. QUANTRIX will not exercise its rights under Section 5.3 and 5.4 above if Customer is disputing the applicable charges reasonably and in good faith, and Customer is cooperating diligently with QUANTRIX to resolve the dispute.

6. PROPRIETARY RIGHTS

6.1 QUANTRIX Rights in the Software. Subject to the limited license rights expressly granted in Section 2 of this Agreement, QUANTRIX and its licensors retain all rights, title and interest in and to the Software and Documentation, including all related Intellectual Property rights. No rights are granted to Customer hereunder other than the limited license rights expressly set forth in Section 2 above.

6.2 Customer Rights in Customer Data. Subject to the limited license rights expressly granted in Section 4 of this Agreement, Customer retains all rights, title and interest in and to Customer Data, including all related Intellectual Property rights. No rights are granted to QUANTRIX hereunder other than the limited license rights expressly set forth in Section 4 above.

6.3 Right to Ideas. QUANTRIX shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Software any suggestions, ideas, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the operation and use of the Software.

7. CONFIDENTIALITY

7.1 Confidential Information. For the purposes of this Agreement, ” Confidential Information” means all information disclosed by a Party or its Affiliates (“Disclosing Party“) to the other Party (“Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without restriction and without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information. Notwithstanding anything to the contrary set forth herein, Customer Data is deemed the Confidential Information of Customer.

7.2 Protection of Confidentiality. Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information, using at least reasonable care. Receiving Party shall not disclose or use any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except with Disclosing Party’s prior written permission. Notwithstanding the foregoing, each Party shall have the right to disclose the other Party’s Confidential Information to such of its Affiliates, Interested Third Parties (defined below), directors, officers, employees, consultants, accountants, financial advisors, outside counsel, collaborators and other representatives with a bona fide need to know the Confidential Information (each a “Representative“) for the purpose of this Agreement. Prior to any such disclosure to a Representative, the Recipient Party will have informed the Representative of the requirements of this Agreement and shall have obtained from such Representative an agreement requiring the Representative to protect the Confidential Information under terms and conditions substantially similar to those contained herein. In addition, each Party shall be responsible for any breach of this Agreement by its Representatives. Further, neither Party will disclose the terms of this Agreement or Order Form to any third party other than on a need-to-know basis, and under substantially similar terms of confidentiality, its Affiliates, Interested Third Parties, legal counsel and accountants, without the other Party’s prior written consent. In this Agreement “Interested Third Parties” includes any bona fide potential or actual investor, stockholder, investment banker, acquirer, merger partner or other potential or actual financial partner of a Party or a Party’s Affiliate. Neither Party waives any rights to pursue claims of patent, copyright, database rights or trademark infringement or breach of other Intellectual Property rights by reason of the foregoing.

7.3 Forced Disclosure. Receiving Party may disclose Confidential Information of Disclosing Party to the extent compelled by law, regulation, regulatory authority, or order of a governmental agency, or court of competent jurisdiction to do so, and as required for the purposes of regulatory filings, prosecuting or defending litigation, or complying with applicable law (including regulations promulgated by securities exchanges), provided Receiving Party gives Disclosing Party prior notice of such disclosure (to the extent legally permitted).

8. WARRANTIES AND DISCLAIMERS

8.1 Mutual Warranties. Each party represents that it has validly entered into this Agreement and has the legal power to do so.

8.2 QUANTRIX Warranties. QUANTRIX warrants that (a) it will provide the Software and Technical Services in a manner consistent with Good Industry Practice reasonably applicable to the provision thereof, (b) the Software shall perform materially in accordance with the Documentation, (c) it owns or otherwise has sufficient rights in the Software to grant Customer the rights to use the Software license granted herein; (d) it will use generally available detection and antidote software, and other inspection methods complying with Good Industry Practice, available to it during the Subscription Term to ensure that to the best of its knowledge the Software is free of Harmful Code; and (e) the Software Services and Work Products do not infringe any Intellectual Property rights of any third party.

8.3 Mutual Disclaimer. Except as expressly provided herein, neither party makes any warranty, representation or other commitment of any kind, whether express or implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including (without limitation) any warranties, representations or other commitments of merchantability or fitness for a particular purpose or of satisfactory quality, to the maximum extent permitted by applicable law.

9. MUTUAL INDEMNIFICATION

9.1 Indemnification by QUANTRIX. Subject to this Agreement, QUANTRIX will defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, suits, or proceedings (“Claims”) (i) made or brought against Customer or any Affiliate thereof by a third party alleging that the use of the Software as contemplated hereunder infringes the Intellectual Property rights of a third party; (ii) alleging a breach of confidentiality obligations; or (iii) alleging a violation of law or failure to comply with law; provided that, in each case, Customer (a) promptly gives written notice of the Claim to QUANTRIX , (b) gives QUANTRIX sole control over the defense and settlement of the Claim (provided that QUANTRIX may not settle or defend any Claim unless it unconditionally releases Customer of all liability), and (c) provides to QUANTRIX, at QUANTRIX’ cost, all reasonable assistance.

9.2 Indemnification by Customer. Subject to this Agreement, Customer will defend, indemnify and hold QUANTRIX harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with Claims (i) made or brought against QUANTRIX by a third party alleging that the Customer Data or Customer’s use of the Software in violation of this Agreement, infringes the Intellectual Property rights of, or has otherwise harmed, a third party; (ii) alleging a breach of confidentiality obligations; or (iii) alleging a violation of law or failure to comply with law; provided that, in each case, QUANTRIX (a) promptly gives written notice of the Claim to Customer, (b) gives Customer sole control over the defense and settlement of the Claim (provided that Customer may not settle or defend any claim unless it unconditionally releases QUANTRIX of all liability), and (c) provides to Customer, at Customer’s cost, all reasonable assistance.

9.3 Remedy. QUANTRIX may, at its expense, attempt to resolve any Claim described in Section 9.1 (i) by: (a) modifying the Software to avoid the alleged infringement, without any negative effect on performance or features; (b) obtaining a license to permit Customer’s use of the Software as contemplated by this Agreement; or (c) terminate the license grant set forth in this Agreement with respect to the Software and entitle Customer to receive a refund for any amounts paid in advance that are attributable to the unused portion of the term of the Subscription Term. Customer will cooperate reasonably with QUANTRIX in the implementation of any above-described resolution.

10. LIMITATION OF LIABILITY

10.1 Limitation of Liability. Except for a party’s gross negligence or willful misconduct or from a party’s breach of its confidentiality obligations hereunder, neither party’s liability with respect to any single incident arising out of or related to this Agreement will exceed the amount paid by the Customer in Fees in the 12 months preceding the incident, provided that in no event will either party’s aggregate liability arising out of or related to the Agreement exceed the total amount of Fees paid by Customer. The above limitations will apply whether an action is in contract or tort and regardless of the theory of liability. However, the above limitations will not limit Customers payment obligations in section 5 (Fees and Payment).

10.2 Exclusions. Except for a party’s gross negligence or willful misconduct or from a party’s breach of its confidentiality obligations hereunder, in no event will either party have any liability to the other party for any loss of profits, revenues or indirect, special, incidental, consequential, cover or punitive damages, whether an action is in contract or tort and regardless of the theory of liability, even if a party has been advised of the possibility of such damages, the foregoing disclaimer will not apply to the extent prohibited by law.

11. TERM AND TERMINATION

11.1 Term of Agreement. This Agreement commences on the date that it is accepted by Customer and continues until all User Subscriptions granted in accordance with this Agreement have expired or have been terminated. Neither party may terminate this Agreement without cause.

11.2 Term of User Subscriptions. User Subscriptions start on the date specified in the Order Form and continue for the Subscription Term specified therein. Unless otherwise specified in the Order Form, at the end of the initial Subscription Term User Subscriptions shall automatically renew annually thereafter for additional periods equal to one (1) year, unless either party gives the other notice of non-renewal at least 30 days prior to the end of the then current Subscription Term. The per unit User Subscription pricing for automatic renewal will be the same as the prior Subscription Term, subject to an inflationary increase of CPI (Consumer Price Index) unless QUANTRIX has given Customer formal notice of a pricing increase at least 30 days before the end of a renewal of a Subscription Term in which case this pricing increase will take precedence over any other pricing and be effective upon renewal and thereafter. Once User Subscriptions have expired, Customer will immediately cease using the Software and delete all copies of the Software under its control, and notify QUANTRIX in writing that it has done so.

11.3 Termination for Cause. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

11.4 Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 11.3 above, QUANTRIX will refund Customer any prepaid Fees covering the remainder of the Subscription Term of the Order Form after the date of termination. If this Agreement is terminated by QUANTRIX in accordance with Section 11.3, Customer will pay any unpaid Fees covering the remainder of the Subscription Term of the Order Form. In no event will termination relieve Customer of its obligation to pay any Fees payable to QUANTRIX for the period prior to the date of termination.

11.5 Survival. The following provisions shall survive any termination or expiration of this Agreement: Sections 6,7,8,9,10,12.

12. GENERAL

12.1 Waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy

12.2 Entire agreement. This Agreement, the Order Form and the documents annexed as appendices to this Agreement or otherwise referred to herein, contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter. Each party acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this Agreement or not) other than as expressly set out in this Agreement.

12.3 Variation. No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorized representatives).

12.4 Severance. If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.

12.5 Assignment. This Agreement is not assignable by either Party, whether by operation of law or otherwise, without the prior written consent of the other Party (which shall not be unreasonably withheld); provided, however, that either Party may assign this Agreement as part of a transfer of all or substantially all of the assets of the transferring Party to any Party (including by operation of a merger, acquisition, or other combination), by providing written notice of any such assignment to the other Party. Any purported assignment in violation of this provision shall be void and of no effect.

12.6 Third-party rights. The Parties confirm their intent not to confer any rights on any third parties by virtue of this Agreement.

12.7 No partnership or agency. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorize any party to make or enter into any commitments for or on behalf of any other party.

12.8 Force majeure. Each party shall be excused performance of its obligations under or pursuant to this Agreement if and to the extent that its performance is delayed, hindered or prevented by any circumstances beyond its reasonable control including (but not limited to) war, riots, fire, explosion, government action, seriously adverse weather conditions, accident, breakdown of plant or machinery (save as a result of failure to maintain such plant and machinery in accordance with good industrial practice), unavailability of transport or acts of the other party or any third party. Should the event of Force Majeure endure for longer than three (3) months this Agreement shall automatically terminate.

12.9 Notices. All Notices shall be in writing and shall be sent to the other Party marked for the attention of the person at the address of this Agreement or as otherwise notified in writing from time to time. Any notice or other document correctly addressed shall be deemed delivered three Business Days following the date of dispatch by first-class mail or 9 am on the next Business Day after (i) signature of the recipient for special or signed for delivery; (ii) transmission by email or fax provided it was followed up by first-class mail or special or signed for delivery; or (iv) by hand.

12.10 Governing law and jurisdiction. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the appropriate governing law indicated below, and the parties irrevocably agree that the corresponding courts also indicated below shall have exclusive jurisdiction to settle any dispute or claim.

If Customer is domiciled in: The governing law is: The courts having exclusive jurisdiction are:
The UK, a country in Europe, the Middle East, Africa, Japan, or a country in Asia or the Pacific region. England England, UK
Canada, The United States of America, Mexico or a country in Central or South America or the Caribbean. Delaware and controlling United States federal law Delaware, USA