Software Terms & Conditions

YOUR USE OF VIRSCIDIAN’S SOFTWARE IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS SUBSCRIPTION LICENSE AGREEMENT (THE “SLA”). PLEASE REVIEW THE TERMS OF THIS SLA CAREFULLY PRIOR TO ACCESSING AND USING THE SOFTWARE. AND SIGN THE ORDER FORM TO INDICATE YOUR ACCEPTANCE OF THE SLA BEFORE YOU START USING THE SOFTWARE. THE TERMS AND CONDITIONS OF THIS AGREEMENT MAY BE ACCEPTED BY: (1) BY THE PARTIES EXECUTING THIS AGREEMENT OR A SEPARATE DOCUMENT THAT INCORPORATES THESE TERMS AND CONDITIONS; OR (2) BY ACCESSING OR USING ANY OF PART OF VIRSCIDIAN OFFERINGS. IF YOU ARE ACCEPTING ON BEHALF OF ANOTHER PERSON OR ENTITY, THEN YOU REPRESENT AND WARRANTY THAT YOU HAVE THE AUTHORITY TO BIND THAT PERSON OR ENTITY, YOU HAVE READ AND UNDERSTOOD THE TERMS AND CONDITIONS, AND YOU AGREE ON BEHALF OF THAT PERSON OR ENTITY TO THIS AGREEMENT.

1. License Subscription.
   1. Effects of Conversion to Subscription Model on Perpetual Licensees. If you currently hold a perpetual license to the Software (as defined below), the applicable Order Form must specify that Your order is a Conversion order. In that event, any perpetual licenses you now hold shall remain in full force and effect and shall not terminate except as specified in your original licensing agreement, despite the fact that you are converting your agreement with us to this subscription model. All other terms and conditions of your current licensing agreement with us which do not directly relate to the perpetual nature of your current license(s), however, shall be null, void and replaced with the terms of this Agreement to which you hereby agree to be bound. Any and all new or additional Seats (as that term is defined hereinbelow) of the Software which you order shall be subject to the terms of this Agreement.
   2. Grant of License. Subject to all of the terms and conditions of this Agreement, Virscidian LLC (“Virscidian”) grants to Customer a personal, non-transferable, non-sublicensable, non-exclusive license during the applicable Subscription Term (as defined below) to use the object code form of the software products specified in an Order Form (“Software”) internally and at its Affiliates (subject to Section 1.4), but only in accordance with (a) the technical specification documentation generally made available by Virscidian to its customers with regard to the specific Software (collectively the “Documentation”), (b) this Agreement, (c) the Active Seat limitations set forth in the Order Form and (d) any other restrictions set forth in the applicable Order Form. “Software” shall also include any Documentation and any new releases of the Software which are purchased by the Customer and included in the Software Products and Active Seats portion of the Order Form. Customer acknowledges that Virscidian offers subscription-based products and that, in order to provide improved customer experience, Virscidian may make changes to the Software or Documentation. In such event, Virscidian will update the Documentation accordingly.
   3. Active Seats. Customer may install unlimited copies of the Software, but may only activate copies of the Software on its computers equal to the number of specified Active Seats in the applicable Order Form. “Active Seats” means each instance of the Software activated or running concurrently on a physical or virtual computer (server or client) of Customer. For the avoidance of any doubt, all copies and instances of the Software used in testing or production are subject to the terms and conditions of this Agreement. No copy or instance of the Software may be used without paying all applicable license fees.
   4. Subscription Terms and Renewals. The Software is licensed on a subscription basis (the “Subscription”). The initial term of any Subscription shall be twelve (12) months commencing on the date specified on the applicable Order Form (the “Initial Subscription Term.”) If no Subscription Start Date is specified on the applicable Order Form, the Start Date shall be the date when Virscidian delivers to Customer the final license key for the Software. Unless terminated earlier in accordance with Section 4, each Initial Subscription Term will automatically renew upon expiration of the Initial Subscription Term for additional successive one (1) year terms (each, a “Renewal Term” and together with the Initial Subscription Term, the “Subscription Term”) unless either party provides prior written notice of its intent not to renew at least thirty (30) days prior to expiration of the Initial Subscription Term or the then-current Renewal Term. Unless otherwise specified in the Order Form, the rates for any Annual Subscription Fee during a Renewal Term shall be Virscidian’s then-current Subscription rates. In the event timely payment of all Annual Subscription Fee payments are not received by Virscidian in accordance within the net payment terms specified in the Order Form, then in addition to collecting late fees as described in Section 3.1.4 herein below, Virscidian may also terminate this Agreement immediately upon written notice to Customer  and all licenses granted to Software subject to Subscription hereunder shall thereupon be immediately revoked and automatically revert back to Virscidian as of the date of such notice of termination. Upon such termination, Virscidian shall have the right to remotely deactivate any such Software subject to Subscription hereunder. Customer shall be responsible for payment of licensing fees, and any applicable late fees.  
   5. Use by Affiliates. Subject to the terms and conditions of this Agreement, Customer’s Affiliates may use the licenses granted to Customer, provided that: (a) such use is only for Customer’s or such Affiliate’s benefit; (b) Customer shall remain responsible for each such Affiliate’s compliance with the terms and conditions of this Agreement and shall be liable for any Affiliate’s breach of this Agreement as if Customer had committed the breach itself; and (c) upon request, Customer will identify each such Affiliate to Virscidian in writing. Use of the Software by the Customer and its Affiliates in the aggregate must be within the Active Seat restrictions in the applicable Order Form. “Affiliate” means any entity under the control of Customer where “control” means ownership of or the right to control greater than 50% of the voting interest of such entity.
   6. License Restrictions. Customer shall not (and shall not allow any third party to):
      1. decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever;
      2. distribute, sell, sublicense, rent, lease or use the Software (or any portion thereof) for time sharing, hosting, service provider or like purposes;
      3. remove any product identification, proprietary, copyright or other notices contained in the Software;
      4. modify any part of the Software, create a derivative work of any part of the Software, or incorporate the Software into or with other software, except to the extent expressly authorized in writing by Virscidian;
      5. publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software unless approved in writing by Virscidian; 
      6. You may not use the Software in medical diagnosis or treatment, or in applications or systems where the Software’s failure to perform can reasonably be expected to result in significant physical injury, property damage, or loss of life; or
      7. make any use of the Software beyond the scope of the license granted herein above.

2. Ownership
   1. Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, Virscidian and its suppliers, if any, have and will retain all rights, title and interest in and to the Software (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) and all copies, modifications and derivative works thereof. Customer acknowledges that it is obtaining only a limited license right to the Software and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to Customer under this Agreement or otherwise. Except to the extent such constitutes improvements, or modifications to, or derivative works of, the Software or any future builds or versions thereof, Virscidian does not claim any ownership in the results, reports, draft or final documents created by Customer or its Affiliates in connection with Customer’s or its Affiliates’ use of the Software, whether or not having patent copyright, trade secret or other associated statutory rights associated therewith (“Customer Results”).
   2. Customer may provide Feedback from time to time during the term of the Agreement. All such Feedback are provided “AS IS.” Customer hereby grants to Virscidian a non-exclusive, royalty-free, perpetual, irrevocable license under all Feedback and all intellectual property rights therein, to copy, use and modify such Feedback and to make, have made, use, import, offer to sell and sell products and services incorporating such Feedback. “Feedback” means suggestions or recommendations for improvements, modifications or enhancements to the Software or related Services.

3. Payment, Acceptance & Delivery.
   1. Payment. All payments are non-refundable and shall be made in the currency identified in the Order Form. Virscidian shall provide a quote for all Fees due hereunder payable thirty (30) days from the invoice date, which is expressed in calendar days. The due date for all payments shall be calculated from the date each invoice is provided by Virscidian hereunder. 
      1. Non-Refundable Initialization Fee. This non-refundable fee will be quoted contemporaneously with the execution of the Order Form.
      2. Initial Subscription License Fee.  The Initial Subscription License Fee shall be quoted on the Start Date indicated on your Order Form. Your use of the Software in production, or your payment of the Initial Subscription License Fee, whichever occurs first, constitutes your acceptance of the Software.
         1. Annual Support Subscription Fees for Renewal Terms. Virscidian will send a renewal notice and quote for Annual Support Subscription Fees due for any upcoming Renewal Term no sooner than one-hundred and twenty (120) days prior to the expiration of the then-current Subscription Term.
         2. Failure to Timely Pay Annual License and Support Subscription Fee. If you fail to make timely payment of the Annual License and Support Subscription Fee, Virscidian shall have the right to immediately suspend or terminate your Subscription and cease providing Enhanced Support and Maintenance. 
      3. Taxes & Late Fees. Customer shall be responsible for all taxes, withholdings, duties and levies arising from the order. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
   2. Customer may reasonably and in good faith dispute an invoiced amount by providing written notice to Dotmatics within thirty (30) days after the invoice date, provided that Customer shall promptly pay the undisputed portion of the invoice pursuant to Section 3.1 and may only withhold payment of the disputed portion until the dispute is resolved. The Parties shall negotiate in good faith to resolve any payment dispute within forty-five (45) days.
   3. All Software and Documentation shall be delivered by electronic means unless otherwise specified on the applicable Order Form.

4. Term and Termination
   1. Term. This Agreement is effective as of the Effective Date and expires on the day that the Subscription Term for the applicable Software licensed hereunder has expired. 
   2. Termination. Either party may terminate this Agreement (including all related Order Forms) if the other party: (a) fails to timely pay all fees in accordance with the provisions of Section 1.4 hereof; (b) fails to cure any material breach of this Agreement not covered by the Limited Warranty provisions hereinbelow within thirty (30) days after written notice of such breach; (c) ceases operation without a successor; or (d) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
   3. Effects of Termination. Upon any expiration or termination of this Agreement, all licenses subject to Subscription hereunder shall immediately terminate and revert back to Virscidian. Customer shall lose access to, and cease any and all use of, any Software subject to Subscription. Customer shall destroy all copies thereof and so certify to Virscidian in writing upon request. 
   4. Survival. Sections 1.7 (License Restrictions), 2 (Ownership), 3 (Payment and Delivery), 4 (Term of Agreement), 5.3 (Disclaimer), 8 (Limitation of Remedies and Damages), 10 (Confidential Information), 12 (General), and Customer’s right to Work Product and ownership of Customer Content described in Section 7 shall survive any termination or expiration of this Agreement.

5. Limited Warranty and Disclaimer.
   1. Limited Warranty. Virscidian warrants to Customer that from the Effective Date the Software shall operate in substantial conformity with the Documentation. Virscidian does not warrant that Customer’s use of the Software will be uninterrupted or error-free, will not result in data loss, or that any security mechanisms implemented by the Software will not have inherent limitations. Virscidian’s sole liability (and Customer’s exclusive remedy) for any breach of this warranty shall be, in Virscidian’s sole discretion, to use commercially reasonable efforts to provide Customer with an error-correction or work-around which corrects the reported non-conformity, to replace the non-conforming Software with conforming Software, or if Virscidian determines such remedies to be impracticable within a reasonable period of time, to terminate the applicable Subscription Term and refund the Annual Subscription Fee paid for the non-conforming Software on a pro-rata basis from the date of termination.
   2. Exclusions. The above warranty shall not apply: (a) if the Software is used with hardware or software not specified in the Documentation; (b) if any modifications are made to the Software by Customer or any third party; (c) to defects in the Software due to accident, abuse or improper use by Customer; (d) to items provided on a no charge or evaluation basis; or (e) versions of the Software that are more than three years old, calculated from the initial release date of same, or versions of the Software that are more than three (3) versions behind the most current version available from Virscidian, whichever may be older. 
   3. Disclaimer. THIS SECTION 5 CONTAINS A LIMITED WARRANTY AND EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 5 THE SOFTWARE AND ALL SERVICES ARE PROVIDED “AS IS.” NEITHER VIRSCIDIAN NOR ANY OF ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. CUSTOMER ASSUMES RESPONSIBILITY FOR SELECTING VIRSCIDIAN SOFTWARE TO ACHIEVE ITS INTENDED RESULTS, AND FOR THE USE OF, AND RESULTS OBTAINED FROM, THE SOFTWARE. WITHOUT LIMITING THE FOREGOING PROVISION, VIRSCIDIAN DOES NOT WARRANT THAT THE DOTMATICS OFFERINGS WILL BE ERROR-FREE OR THAT USE OF, OR ACCESS TO, SUCH SOFTWARE WILL BE UNINTERRUPTED, THAT DOTMATICS WILL CORRECT ALL SOFTWARE DEFECTS, OR THAT THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS. NO WARRANTIES ARE MADE ON THE BASIS OF COURSE OF PERFORMANCE, COURSE OR DEALING, OR TRADE USAGE. FURTHER, CUSTOMER SHALL BE SOLELY AND EXCLUSIVELY RESPONSIBLE FOR ANY AND ALL LIABILITY, DAMAGES, CLAIMS, OR LOSSES ARISING FROM CUSTOMER’S FAILURE TO INSTALL OR ACCEPT UPDATES AS VIRSCIDIAN MAKES THEM AVAILABLE.

6. Support & Maintenance. Virscidian shall provide the support and maintenance services set forth on Exhibit “A” (“Enhanced Software Service and Support”) for each Subscription and Renewal Term.

7. Additional Professional Services. Virscidian shall provide additional professional consulting services (“Additional Professional Services”) purchased in the applicable Order Form in addition to those services provided under Virscidian’s Enhanced Software Service and Support program. The parties acknowledge that the scope of the Additional Professional Services provided hereunder consists solely of either or both of: (a) assistance with Software installation, deployment, and usage that falls outside the scope of the Enhanced Software Service and Support provided under this Agreement; or (b) development or delivery of additional related Virscidian copyrighted software or code. Virscidian shall retain all right, title and interest in and to any such work product, code or software and any derivative, enhancement or modification thereof created by Virscidian (or its agents) (“Work Product.”)  Unless otherwise specified in the applicable Order Form, Customer’s right to use such Work Product shall terminate if the Perpetual License(s) granted hereunder terminate. Additional Professional Services may be ordered by Customer pursuant to a Statement of Work (“SOW”) referenced in and attached to the Order Form describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information. Each SOW must be signed by both parties before Virscidian shall commence work under any such SOW. If the parties do not execute a separate Statement of Work, the Services shall be provided as stated on the Order Form. In any event, each such SOW shall be subject to the terms and conditions of this Agreement and where any conflict exists between the terms of this Agreement and an SOW, the terms of this Agreement shall control. Fees for Additional Professional Services will be quoted at the time the applicable SOW for same is executed by Virscidian. Unless otherwise specified in the Order Form or an applicable SOW, Customer will reimburse Virscidian for reasonable travel expenses as incurred. Customer hereby grants Virscidian a limited right to use any Customer data or other materials provided to Virscidian in connection with the Additional Professional Services (the “Customer Content”) solely for the purpose of performing the Additional Professional Services for Customer.  Customer owns and will retain ownership (including all intellectual property rights) in the Customer Content.

8. Limitation of Remedies and Damages.
   1. NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
   2. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, VIRSICDIAN’S ENTIRE LIABILITY TO CUSTOMER SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO VIRSCIDIAN UNDER  THE APPLICABLE ORDER FORM IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVEN GIVING RISE TO LIABILITY.
   3. THE LIMITATIONS IN SECTION 8.2 SHALL NOT APPLY TO (A) THIRD PARTY CLAIMS THAT ARE SUBJECT TO INDEMNIFICATION UNDER SECTION 9; (B) A PARTY’S FRAUD OR WILLFUL MISCONDUCT; (C) AN INDIVIDUAL’S DEATH OR BODILY INJURY THAT IS RELATED TO A PARTY’S GROSS NEGLIGENCE; OR (D) CUSTOMER’S OBLIGATION TO PAY ALL FEES DUE UNDER THIS AGREEMENT.
   4. THE FEES CHARGED UNDER THIS AGREEMENT REFLECT THE OVERALL ALLOCATION OF RISK BETWEEN THE PARTIES, INCLUDING BY MEANS OF THE LIMITATION OF LIABILITY AND EXCLUSIVE REMEDIES DESCRIBED IN THIS AGREEMENT. THESE PROVISIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND A MODIFICATION OF THESE PROVISIONS WOULD AFFECT SUBSTANTIALLY THE FEES CHARGED BY DOTMATICS. IN CONSIDERATION OF THESE FEES, CUSTOMER AGREES TO THIS ALLOCATION OF RISK AND HEREBY IRREVOCABLY WAIVES ANY RIGHT, THROUGH EQUITABLE RELIEF OR OTHERWISE, TO SUBSEQUENTLY SEEK A MODIFICATION OF THESE PROVISIONS OR ALLOCATION OF RISK.

9. Indemnification.
   1. By Virscidian. Virscidian shall defend, indemnify and hold harmless Customer from and against any claim of infringement of a U.S. patent, U.S. copyright, or U.S. trademark asserted against Customer by a third party based upon Customer’s use of the Software in accordance with the terms of this Agreement, provided that Virscidian shall have received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for Virscidian to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer’s use of any of the Software is, or in Virscidian’s opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, Virscidian may, in its sole discretion: (a) substitute for the Software substantially functionally similar programs and documentation; (b) procure for Customer the right to continue using the Software; or if (a) and (b) are commercially impracticable, (c) terminate the Agreement and refund to Customer the pro-rata portion of the fees paid by Customer. The foregoing indemnification obligation of Virscidian shall not apply: (1) if the Software is modified by any person other than Virscidian; (2) if the Software is combined with other non-Virscidian products or processes not authorized by Virscidian; (3) to any unauthorized use of the Software; or (4) to any unsupported release of the Software. THIS SECTION 9 SETS FORTH VIRSCIDIAN’S AND ITS SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT. 
   2. By Customer. With respect to third-party claims that do not arise out of any claim that Customer’s use of the Software in accordance with the terms of this Agreement infringes the intellectual property rights of a third party, Customer shall indemnify and hold Virscidian harmless from and against any costs, claims, demands, expenses and damages of whatsoever nature incurred by Virscidian arising out of same.

10. Confidential Information. 
    1. Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any software, documentation or technical information provided by Virscidian (or its agents), performance information relating to the Software, types of results produced by Virscidian’s product(s), sample meta-data constructs, message protocols, batch processing framework(s), Virscidian’s Express database scheme, Virscidian’s solution architecture and design, Virscidian platform components, and the terms of this Agreement shall be deemed Confidential Information of Virscidian without any marking or further designation. 
    2. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use (except as authorized herein), disclose, reverse engineer, decompile or disassemble any Confidential Information. In addition, the Receiving Party shall not remove, alter, inhibit or circumvent any copy protection or licensing management tools contained within Software or any other Confidential Information of Virscidian. The Receiving Party also shall not (a) make or permit any other person to make copies or other reproductions of Confidential Information; (b)  use any Confidential Information in competition with Disclosing Party; (c) file any documents in any country relating to the intellectual property rights for any Confidential Information, including but not limited to patent, trademark, and copyright applications, oppositions, and/or invalidations; (d) incorporate any Confidential Information in its own products or services or the marketing thereof; (e) sell or offer to sell any products or services incorporating Confidential Information to any of the Disclosing Party’s customers; (f) use the Disclosing Party’s name or trademarks to sell any products or services; or (g) absent the Disclosing Party’s express permission, contact any of the Disclosing Party’s customers for any reason. 
    3. The Receiving Party’s obligations under this Section shall not apply to information which the Receiving Party can demonstrate: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no breach by the Receiving Party of its confidentiality obligations under this agreement; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Receiving Party without access or use of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with adequate advance notice to the Disclosing Party so as to enable the Disclosing Party to oppose such disclosure). 
    4. The Receiving Party further acknowledges that misuse of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such misuse by the Receiving Party the Disclosing Party, in addition to whatever other remedies it might have at law, shall be entitled to seek appropriate equitable relief, including injunctive relief, without the necessity of proving actual damages or posting bond.
    5. Upon expiration or termination of this Agreement, the Receiving Party shall, at the Receiving Party’s option, destroy or return to the Disclosing Party, all tangible representations of the Disclosing Party’s Confidential Information and cease all use of the Disclosing Party’s Confidential Information, except that the Receiving Party may retain copies of the Disclosing Party’s Confidential Information (other than object or source code of Virscidian) as reasonably necessary to (a) demonstrate compliance with the terms of this Agreement and (b) comply with applicable law,  known or reasonably anticipated subpoena or government order. Notwithstanding the destruction or return of the Disclosing Party’s Confidential Information, the Receiving Party will continue to be bound by its obligations under this Agreement.

11. No Public Disclosure. Virscidian will not publicly disclose Customer as a customer of Virscidian absent Customer’s prior written consent.

12.  General.
    1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party shall assign this Agreement (or any part thereof) without the advance written consent of the other party, except that Virscidian may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of its assets or voting interests. Additionally, Virscidian may subcontract the provision of the Software under this Agreement in whole or in party to a Virscidian affiliate. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 12.1 will be null and void.
    2. Severability. The Parties acknowledge that this Agreement has been mutually drafted and prepared by the Parties hereto and shall not be construed against any party on the basis of or the extent to which that party participated in its drafting. If any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future laws effective during the term of this Agreement, the legality, validity, and enforceability of the remaining provisions of this Agreement shall not be affected thereby, and in lieu of each such illegal, invalid, or unenforceable provision there shall be automatically added, as part of this Agreement, a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable. In agreeing to this provision, neither Party implies that any portion of the Agreement is not legal, valid and fully enforceable.
    3. Governing Law; Jurisdiction, Venue & Bench Trial. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be state courts of the Commonwealth of Massachusetts located in Boson, Massachusetts or the Federal District Court for the Massachusetts District Court, and both parties hereby submit to the personal jurisdiction of such courts. The parties further, independently and expressly, waive any right they may have to sue or be sued in any court other than nation-state, jurisdiction and venue identified in the Order Form. For purpose of enforcement of this Agreement, Customer hereby and irrevocably submits to the jurisdiction of the nation-state identified in the Order Form.  WHERE A TRIAL BY JURY IS AVAILABLE TO THE PARTIES, THE PARTIES HEREBY EXPRESSLY WAIVE THEIR RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY CONTROVERSY OR DISPUTE HEREUNDER. IN THE EVENT THAT ANY CONTROVERSY OR DISPUTE HEREUNDER, NOTWITHSTANDING THE OTHER PROVISIONS HEREOF, PROCEEDS IN A COURT OF LAW, THE PARTIES HEREBY EXPRESSLY CONSENT TO A BENCH TRIAL WHENEVER AVAILABLE WITH A JUDGE, OR THE APPLICABLE JURISDICTION’S FUNCTIONAL EQUIVALENT THERETO, ACTING AS TRIER OF FACT.
    4. Notices. Any notice hereunder shall be in writing to the notice address set forth below and shall be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if sent by certified or registered U.S. mail (return receipt requested); (c) three (3) days after it is received if sent by next day delivery, signature required, by a major commercial delivery service; or (d) for email, on the date of the device from which the sender sent the email provided that the sender did not receive an automated response indicating the email was not delivered. Virscidian LLC, 225 Franklin Street, 26 Floor, Boston, MA 02110, Attention: Legal Department 
    5.  Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
    6. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that Virscidian offers software-based products and that, in order to provide improved customer experience, Virscidian may make changes to the Software or Documentation. In such event, Virscidian will update the Documentation accordingly. All pre-printed or standard terms of any Customer purchase order or other business processing document are hereby rejected and will have no force or effect, regardless of the date it is delivered or processed.
    7. Audit Rights. Upon Virscidian’s written request, Customer shall certify in a signed writing that Customer’s use of the Software is in full compliance with the terms of this Agreement (including any seat and user limitations). With prior reasonable notice of at least ten (10) calendar days, Virscidian may audit the copies of the Software in use by Customer provided such audit is during Virscidian’s business hours (9am-5pm EST); Customer is responsible for such audit costs only in the event the audit reveals that Customer’s use is not in accordance with the licensed scope of use and authorized number of Seats.
    8. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
    9. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any pandemic, strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency.
    10. Foreign Taxes and Fees. Customer shall pay Virscidian the full amounts stated on the Order Form, net of any taxes or fees. Customer shall be solely responsible for any taxes or fees imposed by Japan, or any other non-U.S. authority with respect to the amounts owed under the Order Form.
    11. Export Compliance. Customer acknowledges that the Software is subject to export restrictions by the United States government and import restrictions by certain foreign governments. Customer shall not and shall not allow any third-party to remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list.
    12. U.S. Government Restricted Rights. The Software is a “commercial item” comprised of “commercial computer software” and “commercial computer software documentation,” as those terms are defined in 48 C.F.R. § 2.101 and 48 C.F.R. § 227.7202, and any use, duplication, or disclosure by the United States federal government is subject to the restrictions applicable to commercial computer software, commercial computer software documentation and commercial items generally in 48 C.F.R. § 12.212 and 48 C.F.R. § 227.7202, as applicable. For purposes of use, duplication, or disclosure by the United States federal government, the “Contractor” and author of the Software is Virscidian LLC.

[END OF STANDARD TERMS AND CONDITIONS]

EXHIBIT “A”

ENHANCED SOFTWARE SERVICE AND SUPPORT

A. Overview

This Enhanced Software Service and Support policy (the “Policy”) describes the policies and procedures under which Virscidian provides support and maintenance services (“Support”) for its (“Software.”) Support is provided for the Software pursuant to the Master Subscription License Agreement under which Customer has subscribed to the Software and Support services. All Support provided hereunder is subject to the terms and conditions of that separate agreement and the terms of this Policy. Support is provided for the Subscription Term specified in the Order Form or for the period otherwise prescribed in the Master Subscription License Agreement. Support under this Policy shall end when the subscription term ends or the Master Subscription License Agreement is terminated. This Support Policy sets forth expectations for Support between the Customer organization and Virscidian, including:

1. What types of issues are supported;

2. Who is may submit issues;

3. How to submit issues; and

4. How and when Virscidian responds to and resolves issues.

B. Scope of Support.

1. What Support Includes.

Virscidian shall provide Customer with Support for the Software identified on the Order Form only. Support services described hereunder are applicable to versions of the Software which are included in the Software Products and Active Seats portion of the Order Form only, and consist of the following: 

1. Telephone, electronic mail, remote support and in-person/on-site support as Virscidian may, at its discretion and expense, deem necessary to address matters that fall within the scope of Support provided under this Policy;
2. All new releases, new builds and upgrades of the Software as they become available to all of Virscidian’s subscribed customers;
3. The provision of expert level guidance, bug fixes and troubleshooting to Customer in connection with questions and issues arising from the following Customer activities with respect to the Software:
   • Installation and Downloads: Support for installation includes providing guidance and troubleshooting in connection with Customer’s installation of the Software or installation of updates to the Software;
   • Basic Configuration Issues: Support for configuration includes troubleshooting Customer’s configuration settings for existing installations on Supported Platforms (as defined below) to ensure proper operation and connectivity;
   • Usage Issues: Software experts will answer your “how to” questions related to standard and intended product usage, including help and advice in optimizing the Software for best performance, backup and disaster recovery;
   • Detailed optimization of software products, including expressions logics;
   • Performance tuning;
   • Remote web-based product training regarding product usage and know-how;
   • Assistance with New Releases. Software experts will assist you with specific issues encountered when you update from one supported release of the Software to another supported release; and
   • Access to Knowledge Base Articles on Virscidian’s support portal.

2. What Support Excludes.

The following are excluded from Virscidian’s Support obligations:

• Software that is used on or in conjunction with hardware or software other than as specified in the applicable Documentation; 
• Altered or modified Software, unless altered or modified by Virscidian; 
• Defects in the Software due to accident, hardware malfunction, abuse or improper use;
• Support for versions of the Software that are more than three years old, calculated from the initial release date of same, or more than three (3) versions behind the most current version available from Virscidian, whichever may be older; 
• Software provided at no charge; 
• System disaster recovery;
• Installation services to reinstall or move the Software to new hardware, or to new environments or platforms;
• Assistance with moving hardware or network infrastructure to new locations;
• Any customization and integration issues, including development services to create modifications and extensions to the Software, or integration services between the Software and your informatics infrastructure;
• Any code modules created by you;
• Consultation services related to business and laboratory workflows; and
• Any other matters that Virscidian advises youfall outside the scope of Support. Virscidian reserves the right at any time toimpose a hard cap on the number of man-hours of Support (excluding bug fixes).Virscidian shall provide at least 30 days’ written notice of the imposition ormodification of any such cap.

3. Software Versions Covered.
   • Supported Versions: The only versions of the Software that are eligible for Support under this Policy are versions of the Software included in the Software Products and Active Seats portion of the Order Form which are also i) less than three years old, calculated from the initial release date of same, or ii) less than three (3) versions behind the most current version available from Virscidian, whichever may be older.
   • Platforms Supported: Virscidian only supports use of the Software on the platforms specified in the Documentation.

C. Incident Submission and Resolution

Customer shall obtain Support by reporting individual issues to Virscidian via submitting a ticket on Virscidian’s support portal at https://support.virscidian.com. Each individual issue reported to Virscidian shall be tracked from initial report through final resolution (each such issue, an “Incident.”) Customer is entitled to Support as specified in the Support Matrix.

1. Submitting Incidents.
   • Who May Submit Incidents. Support is intended to provide assistance for issues and questions beyond what is covered in documentation and introductory material. Each such individual is referred to herein as a “Contact.” Customer is responsible for designating at least one authorized Contact at time of purchase. That individual may designate a list of authorized support Contacts.

2. How to Submit Incidents.
   • Incidents may be submitted to Virscidian by any representative of Customer or its Affiliate(s).

3. How to Report an Incident. In order to expedite the resolution of Incidents, Customer will make every attempt possible to:
   • Verify that the Incident is reproducible on the Supported Platforms for the Software (as applicable);
   • Provide information necessary to help Virscidian track, prioritize, reproduce or investigate the Incident, such as: the Contact’s name, contact information, the location at which the Incident occurs, the version and build of the applicable Software, etc.;
   • A full description of the issue and expected results;
   • Category of issues: general question, defect, enhancement request, etc;
   • Steps to reproduce the issue and relevant data;
   • Any applicable log files or console output;
   • Exact wording of all issue related error messages;
   • Any special circumstances surrounding the discovery of the issue, i.e. first occurrence or occurred after what specific event, Customer’s business impact of problem and suggested priority for resolution;
   • Identifying issue or support ticket number in any ongoing communications with Virscidian on an existing issue.
   • Incidents must be submitted using the support portal at https://support.virscidian.com

2. Support Response and Incident Resolution
   • Software Incident Response.

For each Incident reported by Customer in accordance with these procedures, Virscidian shall:

1. Confirm receipt of the reported Incident within the acknowledgement time specified in the Support Matrix;
2. Set a Priority Level for the Incident in accordance with the terms below;
3. Have a support representative review the report and respond to the Incident within the response time specified in the Support Matrix;
4. Analyze the Incident and, as applicable, verify the existence of the problem(s) resulting in the Incident, which may include requesting that Customer provide additional information, logs and re-execution of commands to help identify the root cause and dependencies of the reported issue;
5. Give Customer direction and assistance in resolving the Incident;
6. Keep a record of ongoing communications with Customer; and
7. Use reasonable commercial efforts to resolve the Incident in accordance with the target resolution times set forth in the Support Matrix;
8. Inform the Customer as soon as is reasonably practicable if a resolution will not be available within the target resolution times set forth in the Support Matrix and provide a revised estimate as to when a resolution is expected.

2. Priority Levels.

Virscidian will prioritize Incidents according to the following criteria:

P1 = Issues which make the Software completely inaccessible or the majority of its functionality unusable for Customer;

P2 = means an issue that significantly degrades performance of the Software or materially restricts Customer’s use of or the functionality of the Software;

P3 = means an issue that causes only a minor impact on Customer’s use of the Software;

P4 = means any other request for guidance or information.

3. Resolution and Closure of Incidents.

Incidents shall be closed in the following manner:

1. For solvable issues, depending on the nature of the issue, the resolution may take the form of an explanation, recommendation, usage instructions, workaround instructions, or advising Customer of an available software fix;
2. For unsolvable issues, Virscidian undertakes to provide an explanation why the issue is not solvable, and provide the reporting Customer suggestions for a work-around or other ways to mitigate the issue;
3. In the event that custom or unsupported plug-ins or modules are used, Virscidian may ask, in the course of attempting to resolve the issue, that the Customer remove any unsupported plug-ins or modules. If the problem disappears upon removal of an unsupported plug-in or module, then Virscidian may consider the issue to be resolved;
4. For issues outside of scope of Support, Virscidian may also close issues by identifying the Incident as outside the scope of the Support or arising from a version, platform or usage case which is excluded from the Support Policy. Virscidian may, but is not obligated to, offer support outside the scope of the Support provided under this Policy. Additional fees may apply.

4. Software Support Matrix: