DYNDRITE CORPORATION

“Acceptance” means Licensee’s execution of an Order Form, which includes and indicates Licensee’s consent to and agreement with the terms and conditions of this Agreement and any additional specialized terms and conditions on the Order Form.

“Authorized Persons” means trained technical employees and contractors of Licensee, for whom Licensee is responsible and liable, who (a) are using the Products under Licensee’s supervision and pursuant to Licensee’s License, and (b) are subject to a written agreement with Licensee that includes Use and confidentiality restrictions that are at least as protective as those set forth in this Agreement.

“Confidential Information” means all non-public information disclosed in written, oral or visual form by either party to the other. Confidential Information may include, but is not limited to, projects, developments, plans, research data, financial data, personal data, computer programs, source code and object code, names and expertise of employees and consultants, know-how, and other technical, business, financial and product development information, business plans, marketing plans, customer and client lists, prospective customer and client lists, vendor and supplier lists, and all other information that would appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or used. “Confidential Information” does not include any information that the receiving party can demonstrate by its written records (1) was rightfully known to it without obligation of confidentiality prior to its disclosure hereunder by the disclosing party; (2) is or becomes publicly known through no wrongful act of the receiving party; (3) has been rightfully received without obligation of confidentiality from a third party authorized to make such a disclosure; or (4) is independently developed by the receiving party without reference to confidential information disclosed hereunder.

“Delivery Method” means the means by which Dyndrite chooses to deliver the Products to Licensee, including, but not limited to, on-prem installation, download, or some form of temporary download of online software.  The Delivery Method and access for Licensee’s License will be delineated on the Order Form.

“Documentation” means any administration guides, installation and user guides, and release notes that are provided by Dyndrite to Licensee with the Products, as delineated on an Order Form.

“Effective Date” means the calendar date on which Licensee’s License goes into effect or becomes operable, as determined by Dyndrite via its execution of the Order Form, and accordingly as delineated on Licensee’s Order Form.

“Intellectual Property” means any created or developed technology, patentable subject matter, invention, process, form of matter, device, machine, software, source or object code, copyrightable work, document, written work, drawing, graphical work, created work in an electronic medium, symbol, logo, slogan, design, trademark, service mark, trade name, trade dress, trade secret, know-how, proprietary and confidential information, or any other form of creativity which takes form in a tangible medium of expression and is protected and enforceable under any Intellectual Property Rights (defined below) recognized in any jurisdiction throughout the world.

“Intellectual Property Rights” means all rights of ownership or enforcement in any Intellectual Property now held or hereafter created or acquired by a party, regardless of whether arising under the laws of the United States, under the laws of any other jurisdiction throughout the world, or under any international treaty for (i) all classes or types of patents, including, without limitation, utility models, utility patents and design patents, patent applications and disclosures, and any extensions in any jurisdiction throughout the world; (ii) all copyrights, all ancillary and sub-rights of copyright, and all moral rights in both published and unpublished works, and all corresponding registrations and applications therefor in any jurisdiction throughout the world; (iii) all trademarks and service marks and trade names, and all corresponding registrations and applications therefor in any jurisdiction throughout the world; and (iv) all know-how, trade secrets, and confidential, technical and non-technical information created or acquired by a party.

“License” means the specific license granted to Licensee as delineated on an Order Form, for specific Products, for a designated duration, for a specific territory, and for a designated number of Authorized Users.

“Licensee Data” means information owned by Licensee and provided to Dyndrite by Licensee through the Use of the Products by Licensee and its Authorized Users.

“Open Source Software” means software delivered to Licensee hereunder that is subject to the provisions of any open source license agreement.

“Order Form” means the document that delineates the specific details of Licensee’s License, including, but not limited to, the type of License; a list and/or description of the Products; the number of Authorized Users allowed under the License and/or the number of computers on which the Products may be installed and/or downloaded and/or accessed; the duration of the License; the territory in which the License can be exercised; and any additional specialized terms and conditions applicable to Licensee’s License. Licensee acknowledges and agrees that an Order Form shall be incorporated into this Agreement and become binding upon Licensee when it is signed by an authorized signatory of Licensee.

“Products” means the specific software products licensed to Licensee pursuant to Licensee’s License as delineated on an Order Form and governed by this Agreement, all as developed by Dyndrite and Delivered to Licensee hereunder, which may include, but are not limited to, software-as-a-service applications, installed and other on-prem software products, downloadable software products, mobile apps (if any), and all Updates to Products. For the avoidance of doubt, the definition of Products shall exclude any Third-Party Software and Open Source Software.

“Third-Party Software” means certain software Dyndrite licenses from third parties (if any) and provides to Licensee with the Products, which may include Open Source Software.

“Update” means a revision of a Product that Dyndrite makes available to Licensee at no additional cost. The Update includes, if and when applicable and available, bug fix patches, maintenance release, minor release, or new major releases. Updates are limited only to the Products licensed by Licensee as part of Licensee’s License, and specifically exclude new product offerings, features, options or functionality of the Products which Dyndrite may choose to license separately, or for an additional fee.

“Use” means to use, access, install, download, or activate the Products in any manner.

License Grant. Subject to Licensee’s compliance with the terms and conditions of this Agreement, including all of the following subsections in this Section 2 and any additional restrictions on Licensee’s Use of the Products in any additional terms and conditions set forth in Licensee’s Order Form, Dyndrite grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited term license to Use the Products as Delivered, in object code form only, solely for Licensee’s Use, for the term delineated in the Order Form, unless terminated in accordance with the termination provisions of this Agreement (“License,” and as defined in 1.9 above).

Updates. Licensee acknowledges and agrees that Dyndrite shall have the right to prepare and release Updates to the Products at any time and in its sole discretion. In addition, Licensee acknowledges and agrees (i) that Dyndrite shall have the right, as part of any Update, to change or remove certain Product functionality, provided that such changes do not affect the core functionality of the Products which are the subject of Licensee’s License; and (ii) that an Update may be subject to new or additional terms which may be delineated on an amendment to Licensee’s Order Form, and Licensee shall comply with such new or additional terms if Licensee uses such Update. Further, Licensee acknowledges and agrees (iii) that Dyndrite retains the right to cease support and maintenance for certain older versions of its software, and that if such an event occurs, Dyndrite shall give Licensee reasonable advance notice; and (iv) that, to continue to use the Products, Licensee shall be required to upgrade to a newer (or the newest) version which Dyndrite does support.

License Restrictions. Except to the extent permitted under this Agreement, Licensee will not nor will Licensee allow any third party to: (i) copy, modify, adapt, translate or otherwise create derivative works of the Products or the Documentation unless such rights to make derivative works and/or other changes are explicitly stated as being part of the License in Licensee’s Order Form; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the underlying ideas, algorithms, source code of the Products; (iii) use the Products and/or the Documentation for any gambling-related activities or products; (iv) use the Products and/or the Documentation for the operation of nuclear facilities, aircraft navigation, aircraft communication systems or air traffic control machines, or for military use in connection with live combat; (v) use the Products and/or the Documentation in connection with the production or use of nuclear, biological, or chemical weapons or materials; (vi) rent, lease, sell, assign or otherwise transfer rights in or to the Products or Documentation; (vii) remove any proprietary notices or labels from the Products or Documentation; (viii) publicly disseminate or distribute performance information (including, without limitation, benchmarks) or analysis relating to the Products; or (ix) use the Products and/or the Documentation in support of a claim, whether brought by Licensee or by a third party, alleging that the Products and/or the Documentation infringes a patent or other Intellectual Property Rights owned by Licensee or by a third party. Licensee will comply with all applicable laws and regulations in Licensee’s Use of and access to the Products and Documentation.

Responsibility for Use. The Products and Documentation may be Used only by Licensee’s Authorized Users and in conformance with this Agreement. Licensee shall be responsible for the proper Use of the Products and Documentation and is responsible for: (i) managing, supervising, and controlling its Authorized Users’ Use of the Products and the Licensee Data generated or obtained from using the Products; (ii) using the Products in accordance with the Documentation and within the operating environment specified in the Documentation; (iii) establishing and maintaining such recovery and data protection and security procedures as are necessary for Licensee’s Use of the Products and/or as may be specified by Dyndrite from time to time. In addition, Licensee shall: (iv) have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Licensee Data; (v) use commercially reasonable efforts to prevent unauthorized access to, or Use of, the Products by its Authorized Users and/or by any other employees, consultants, affiliates, representatives or agents of Licensee, and shall notify Dyndrite promptly of any such unauthorized access or Use of the Products; and (vi) comply with all applicable laws in accessing and using the Products and undertaking activities in furtherance of this Agreement.

Behavior of Licensee and its Authorized Users. Licensee hereby understands, acknowledges, and agrees that Licensee and its Authorized Users will not do any of the following: alter, modify, edit, amend, abridge, add to, delete from, adapt, repackage, or change any of the Products in whole or in part; and/or remove any proprietary notices of copyright or trademark ownership, any watermarking, or any other proprietary notices or language referring to Dyndrite’s ownership of the Products; and/or copy, reproduce, publish, distribute, or redistribute any of the Products, in whole or in part, to any person who is not authorized to Use the Products pursuant to this Agreement; and/or attempt to sell, resell, lend, lease, license, sublicense, assign, or otherwise transfer or attempt to transfer the Products, any rights granted under this Agreement, or any Intellectual Property or Intellectual Property Rights owned by Dyndrite, to any other person or entity; and/or provide any other person or entity access to the Products by means of Licensee’s username and/or Licensee’s password; and/or attempt to lend, lease, license, sublicense, transfer, assign, sell, or resell Licensee’s username(s) and password(s) to any other person or entity; and/or decompile, disassemble, translate or reverse engineer any portion of the Products, or otherwise discover or duplicate any technology, routines, computer code, algorithms, methods or underlying ideas or designs or user interface techniques included in any portion of the Products; and/or monitor, gather, copy, or distribute any content or data included in the Products by using any robot, rover, “bot,” spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; and/or insert any code or product to manipulate the Products in any way; and/or make or attempt to make any commercial use or exploitation of the Products; and/or circumvent, disable or otherwise interfere with the security features of the Products, or any features that prevent or restrict Use or copying of any portion of the Products; and/or Use the Products to collect or harvest any personally identifiable information (“PII”), including usernames and passwords of others; and/or Use the Products to create multiple accounts under false or fraudulent pretenses; and/or Use the Products to create or transmit unsolicited electronic communications; and/or Use the Products to transmit any harmful code sequence or routines; and/or Use the Products to violate the security of any computer network, to crack passwords or security encryption codes, or to transfer or store illegal material; and/or claim the Products or the Documentation as Licensee’s property, Licensee’s creation, or Licensee’s work of authorship, in whole or in part; and/or contest or dispute Dyndrite’s ownership of the Products, all Intellectual Property inherent in the Products, and all Intellectual Property Rights invoked by or applicable to the Products in any jurisdiction in the world; and/or Use the Products after the termination date of this Agreement; and/or Use the Products, in whole or in part, in any manner not authorized by this Agreement. LICENSEE HEREBY UNDERSTANDS, ACKNOWLEDGES, AND AGREES THAT ANY VIOLATION OR SUSPECTED VIOLATION OF THE FOREGOING LICENSE RESTRICTIONS BY LICENSEE OR ONE OF ITS AUTHORIZED USERS MAY CONSTITUTE GROUNDS ON WHICH DYNDRITE MAY, IN ITS SOLE DISCRETION, SUSPEND OR TERMINATE LICENSEE’S LICENSE TO USE THE PRODUCTS, IN ADDITION TO ALL OTHER REMEDIES AVAILABLE TO DYNDRITE AT LAW OR EQUITY.

Fees. As further delineated in Section 7 below, Licensee’s access to and Use of the Products is conditioned upon Licensee’s timely payment of all fees agreed to by Licensee and delineated in Licensee’s Order Form, in order to keep Licensee’s License current and valid.

Audit Rights. Licensee acknowledges and agrees that Dyndrite may, at its expense, audit Licensee’s Use of the Products. Any such audit shall either be conducted, after reasonable advance notice to Licensee, by means of remote access from a Dyndrite location or on-site during regular business hours at Licensee’s facilities, and shall not unreasonably interfere with Licensee’s business activities. In addition, any such audit shall be conducted no more than once in any calendar year, unless an audit indicates Licensee’s non-compliance with this Agreement, in which circumstances Licensee acknowledges and agrees that Dyndrite shall reserve the right to conduct multiple audits within the same calendar year, as necessary to ensure compliance with this Agreement.

Licensee Data and PII. Licensee acknowledges and agrees that if Licensee discloses PII as part of Licensee Data, Dyndrite shall use such PII in accordance with Dyndrite’s Privacy Policy, which can be accessed here: https://www.dyndrite.com/privacy. Dyndrite acknowledges and agrees that Dyndrite will comply with all applicable laws relating to Licensee PII (including California’s CPRA and the EU’s GDPR, if applicable) and with instructions from Licensee in regard to removal of any disclosed PII, but Dyndrite will notify Licensee if Dyndrite believes that Licensee’s instructions concerning PII violate any applicable laws. Dyndrite shall: (i) not use or modify the Licensee Data except as otherwise set forth in this Agreement; (ii) use commercially reasonable efforts consistent with industry standards to maintain the security and integrity of Licensee Data; (iii) process and store Licensee Data with the understanding that License is responsible for the archiving and preservation of Licensee Data submitted to the Dyndrite under this Agreement. In the event of a security breach involving Licensee Data for which Dyndrite is responsible, Dyndrite will: (i) promptly notify Licensee; (ii) confer with Licensee in good faith regarding the corrective steps that Dyndrite will take and undertake to remedy or mitigate the effects of the Data breach; (iii) update Licensee on developments relating to the Data breach and its correction; and (iv) promptly restore to the last available backup any recoverable Licensee PII lost, damaged or destroyed as a consequence of the Data breach. Dyndrite will promptly return to Licensee or, if instructed, securely destroy all Licensee PII upon the termination of this Agreement.

United States Government Users. The Products licensed under this Agreement is “commercial computer software” as that term is described in DFAR 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms and this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulations (“FAR”) and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement and its successors.

Licensee shall be entitled to any support specified in Licensee’s Order Form. If applicable, support is provided only for the current version of the Products (i.e. with all Updates and Upgrades installed), unless otherwise agreed in writing by Dyndrite.

Term. The term of this Agreement shall have the same duration as Licensee’s License as stated on the Order Form unless it is terminated earlier in accordance with the termination provisions of this Agreement or the applicable Order Form (the “Term”). The Term shall begin on the date on which Licensee applies the License activation key provided by Dyndrite to the installed Products. Only in the event that Licensee fails to apply or is delayed in applying the License activation key to the installed Products, the Term shall begin ninety (90) days after the execution of the Order Form by Licensee.

Renewal Terms. An annual (12 month) License, as set forth on the Order Form,  will automatically renew for successive twelve (12) month periods on the anniversary of the Effective Date, unless such License is terminated by either Dyndrite or Licensee by providing written notice of termination at least three (3) months in advance of the anniversary of the Effective Date.  Other License types (e.g., Monthly / Custom Term / Pay-per-Use Licenses) will automatically renew for successive equivalent periods of time unless such License is terminated by either Dyndrite or Licensee by providing written notice of termination before the beginning of the next renewal period. Some License types will require an explicit renewal action from the Licensee prior to the end of the initial term, as shall be set forth in the applicable Order Form, and Licensee acknowledges and agrees that Dyndrite may charge a reasonable administrative fee per user if Licensee desires to renew such License but fails to do so within the initial term..

Termination for Cause. Either party may immediately terminate this Agreement and the licenses granted hereunder if the other party (1) becomes insolvent and becomes unwilling or unable to meet its obligations under this Agreement, (2) files a petition in bankruptcy, (3) is subject to the filing of an involuntary petition for bankruptcy which is not rescinded within a period of forty-five (45) days, (4) fails to cure a material breach of any material term or condition of this Agreement within thirty (30) days of receipt of written notice specifying such breach, or (5) materially breaches its obligations of confidentiality hereunder. In addition to the foregoing termination rights, Licensee acknowledges and agrees that Dyndrite may suspend or terminate Licensee’s License at any time upon written notice in the event that Licensee violates Sections 2 (License Grant and Restrictions), 6 (Confidentiality), or 7 (Fees).

Termination for Convenience. Dyndrite shall have the right to terminate any Order Form and/or Licensee’s License for convenience at any time by providing Licensee with written notice of termination at least sixty (60) days in advance of the desired termination date.

Effects of Termination. Upon expiration or termination of this Agreement for any reason, (i) any amounts owed to Dyndrite under this Agreement will be immediately due and payable; (ii) all licensed rights granted in this Agreement will immediately cease; and (iii) Licensee will promptly discontinue all Use of the Products and Documentation and destroy all copies of the Product, Documentation any other Dyndrite Confidential Information in Licensee’s possession or control.

Survival. The following Sections of this Agreement will remain in effect following the expiration or termination of these General Terms for any reason: 4.3 (Effects of Termination), 4.4 (Survival), 5 (Third Party and Open Source Software), 6 (Confidentiality), 9 (Ownership), 10.2 (Third-Party Software), 10.3 (Warranty Disclaimer), 11 (Limitations of Liability), 12 (Export) and 13 (General)

Certain Third-Party Software or Open Source Software (Dyndrite can provide a list upon request) that may be provided with the Products may be subject to various other terms and conditions imposed by the licensors of such Third-Party Software or Open Source Software. The terms of Licensee’s use of the Third-Party Software or Open Source Software is subject to and governed by this Agreement and the respective Third-Party Software and Open Source licenses. To the extent applicable to Licensee’s use of such Third-Party Software and Open Source, Licensee agrees to comply with the terms and conditions contained in all such Third-Party Software and Open Source licenses.

Dyndrite’s Confidential Information means any and all information related to Dyndrite’s business that is labeled or identified as “confidential” or “proprietary”; or otherwise is of such a type or disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary. Without limiting the foregoing, the Products and Documentation are Confidential Information of Dyndrite. Licensee, as a receiving party, agrees (i) to hold in confidence and protect Dyndrite’s Confidential Information from dissemination to, and use by, any third party by using the same degree of care, but no less than a reasonable degree of care, as the receiving party uses to protect its own Confidential Information of a like nature against unauthorized dissemination and use, (ii) not to disclose such Confidential Information to any third parties, except as described herein and (iii) not to use any Confidential Information except for the purposes of this Agreement. With the advance written permission of Dyndrite, Licensee may disclose Dyndrite’s Confidential Information to its responsible employees and contractors with a bona fide need to know, but only to the extent necessary to carry out the purposes of this Agreement, and only if such employees and contractors are subject to a nondisclosure agreement sufficient to protect Dyndrite’s Confidential Information hereunder. The parties agree that a breach of this section may cause Dyndrite irreparable damage which money cannot satisfactorily remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, Dyndrite shall be entitled to seek injunctive relief for any threatened or actual unauthorized disclosure.

Fees for Licensee’s License shall be set forth in Licensee’s Order Form. Payment shall be due net thirty (30) days from the date of each invoice provided to Licensee. Payment is due and owing to Dyndrite regardless of whether Licensee bills and/or receives payment from Licensee’s clients. Except to the extent required by law, all payments are non-refundable under all circumstances, regardless of whether or not this Agreement has been terminated. Licensee’s execution of an Order Form constitutes Licensee’s representation and warranty that Licensee can pay for the License in accordance with the terms on the Order Form. Disputes regarding invoiced amounts must be communicated to Dyndrite within thirty (30) days of issuance date, and any invoice item which is not disputed within thirty (30) days shall be deemed to have been accepted by Licensee. All amounts not paid when due under this Agreement will accrue interest daily at a rate of 0.8% per month or the rate permissible under California law, whichever is lower, until the balance is paid in full. Licensee acknowledges and agrees that Dyndrite shall have the right to outsource invoice processing and issuance to a third-party service provider contracted to Dyndrite. License fees are exclusive of taxes. Licensee will pay all taxes and other government-imposed fees or assessments arising out of or related to Licensee’s Use of the Products.

Licensee acknowledges and agrees that Dyndrite may collect, accumulate, and aggregate certain usage statistics and data (“Analytics”) in order to analyze usage of the Products and make improvements; to develop new products; to prevent and detect any unlicensed or unlawful use of the Products; to analyze, evaluate, and enhance customer experiences with the Products; and to make pricing determinations. Dyndrite may use Analytics for any purpose that Dyndrite, in its own discretion and judgment, may consider appropriate

As between Dyndrite and Licensee, all right, title and interest in the Products, the Documentation, and any other Dyndrite materials furnished or made available hereunder, all Updates and modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Licensee regarding the Products and Documentation, including all copyright rights, patent rights and other Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Dyndrite or Dyndrite’s licensors and providers, as applicable. Licensee hereby does and will irrevocably assign, transfer, and convey to Dyndrite all evaluations, ideas, feedback and suggestions made by Licensee to Dyndrite regarding the Products and Documentation (collectively, “Feedback”) and all Intellectual Property Rights in and to the Feedback. Except as expressly provided herein, no other licenses of any kind are granted hereunder, whether by implication, estoppel, or otherwise, and all rights not explicitly licensed herein are reserved to Dyndrite.

Limited Warranty. Dyndrite warrants (i) that it will provide the Products in a manner consistent with general industry standards reasonably applicable to providing the Products; (ii) that the Products will be Delivered and will perform materially in accordance with the Documentation under normal Use and circumstances; and (iii) that Dyndrite owns or otherwise has sufficient rights in the Products to grant to Licensee the License to Use the Products granted herein.  Licensee’s exclusive remedy for a breach of this Section 10.1 is that Dyndrite shall, at its option, use commercially reasonable efforts to correct or replace the Products, or refund all or the affected portion of the fees paid by Licensee for its License. Dyndrite, in its sole discretion, may revise this limited warranty from time to time.

Third-Party Software. Except as expressly set forth in this Agreement, Third-Party Software (including any Open Source Software) is provided on an “as-is” basis at the sole risk of Licensee. Notwithstanding any language to the contrary in this Agreement, Dyndrite makes no express or implied warranties of any kind with respect to Third-Party Software provided to Licensee and shall not be liable for any damages regarding the Use or operation of the Third-Party Software furnished under this Agreement. Any and all express or implied warranties, if any, arising from the license of Third-Party Software shall be those warranties running from the third-party manufacturer or licensor to Licensee.

Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE, DYNDRITE AND ITS SUPPLIERS MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE PRODUCTS AND DOCUMENTATION. DYNDRITE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. DYNDRITE AND ITS SUPPLIERS AND LICENSORS DO NOT WARRANT OR REPRESENT THAT THE PRODUCTS WILL BE FREE FROM BUGS,THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE PRODUCTS WILL FULFILL ALL OF LICENSEE’S EXPECTATIONS AND NEEDS. THIS DISCLAIMER SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. EXCEPT AS STATED ABOVE, DYNDRITE AND ITS SUPPLIERS PROVIDE THE PRODUCTS ON AN “AS IS” BASIS. DYNDRITE PROVIDES NO WARRANTIES WITH RESPECT TO THIRD PARTY SOFTWARE AND OPEN SOURCE SOFTWARE.

EXCLUSION OF CERTAIN DAMAGES. EXCEPT FOR BREACHES OF SECTION 6 (CONFIDENTIALITY) OR SECTION 9 (OWNERSHIP), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR RELIANCE DAMAGES, INCLUDING ANY LOST DATA, LOSS OF USE AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT, THE PRODUCTS OR DOCUMENTATION, EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF, OR COULD REASONABLY HAVE PREVENTED, SUCH DAMAGES.

LIMITATION OF DAMAGES. DYNDRITE’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT OR THE PRODUCTS AND DOCUMENTATION PROVIDED BY DYNDRITE WILL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY LICENSEE FOR THE LICENSE GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTHS FOLLOWING THE EFFECTIVE DATE OF LICENSEE’S LICENSE. LICENSEE AGREES THAT DYNDRITE’S SUPPLIERS AND LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER OR AS A RESULT OF THIS AGREEMENT.

Licensee’s Indemnification Obligation. Licensee shall indemnify and hold harmless Dyndrite, its officers, directors, employees, agents, representatives, and licensors from, and, at Licensee’s expense, shall defend Dyndrite against, any loss, damage or expense (including reasonable and directly related legal costs) that Dyndrite incurs or becomes liable for as a result of any breach by Licensee, by any of its Authorized Users, or by its agents, representatives, or others for whom Licensee is responsible, of any of the terms of this Agreement; any negligent, reckless or willful act or omission by Licensee or by any of its Authorized Users or by its agents or others for whom Licensee is responsible; any failure by Licensee or by any of its Authorized Users or by its agents or others for whom Licensee is responsible to comply with applicable laws in performing under this Agreement; any misuse by Licensee or by any of its Authorized Users or by its agents or others for whom Licensee is responsible of the Products or of the Documentation; or, any claim made against Dyndrite by any third party for which Dyndrite is not liable under this Agreement, and which arises as a consequence of Use of the Products by Licensee or by any of its Authorized Users or by its agents or others for whom Licensee is responsible. Licensee shall reimburse Dyndrite for its expenses under this Section as they are incurred. Dyndrite shall have the right, at its own expense, to participate in the defense of any claim, action or proceeding against which it is indemnified hereunder. Licensee, in the defense of any such claim, action, or proceeding arising under this Section shall not, except with the written consent of Dyndrite obtained in advance, enter into any settlement which requires Dyndrite to make any admissions against its interests, which adversely affects any of Dyndrite’s rights, or which does not include, as an unconditional term, a release granted to Dyndrite of all liabilities in respect of such claim, action or proceeding.

THIRD PARTY SOFTWARE. NOTWITHSTANDING ANY LANGUAGE TO THE CONTRARY IN THIS AGREEMENT, DYNDRITE SHALL NOT BE LIABLE FOR ANY DAMAGES REGARDING THE USE OR OPERATION OF ANY THIRD-PARTY SOFTWARE FURNISHED UNDER THIS AGREEMENT.

LIMITATION OF ACTIONS. IN NO EVENT MAY LICENSEE BRING ANY CAUSE OF ACTION RELATED TO THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO THE LIABILITY.

The Products, Documentation and related technical data may be subject to U.S.  export control laws, including without limitation the U.S.  Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries.  Licensee shall comply with all such regulations and agrees to obtain all necessary licenses to export, re-export, or import the Products, Documentation and related technical data.

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No Agency. Dyndrite and Licensee each acknowledge and agree that the relationship established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to: (1) give either party the power to direct or control the day-to-day activities of the other; (2) deem the parties to be acting as partners, joint venturers, co-owners or otherwise as participants in a joint undertaking; or (3) permit either party or any of either party’s officers, directors, employees, agents or representatives to create or assume any obligation on behalf of or for the account of the other party for any purpose whatsoever.

Compliance with Laws. Each party agrees to comply with all applicable laws, regulations, and ordinances relating to their performance hereunder. Without limiting the foregoing, Licensee warrants and covenants that it will comply with all then current laws and regulations of the United States and other jurisdictions relating or applicable to Licensee’s Use of the Software and Documentation including, without limitation, those concerning Intellectual Property Rights, invasion of privacy, defamation, and the import and export of Software and Documentation.

Force Majeure. Except for the duty to pay money, neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, riots, fires, flood, storm, explosions, acts of God, acts of terrorism, war, governmental action, earthquakes, or any other cause which is beyond the reasonable control of such party.

Governing Law; Venue and Jurisdiction. This Agreement shall be interpreted according to the laws of the State of California without regard to or application of choice-of-law rules or principles. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Santa Clara County, California and the parties hereby consent to the personal jurisdiction and venue therein.

Injunctive Relief. The parties agree that monetary damages would not be an adequate remedy for the breach of certain provisions of this Agreement, including, without limitation, all provisions concerning infringement, confidentiality and nondisclosure, or limitation on permitted Use of the Products or Documentation. The parties further agree that, in the event of such breach, injunctive relief would be necessary to prevent irreparable injury. Accordingly, in the event of a breach, or if a reasonable basis exists for a belief that a breach is imminent, either party shall have the right to seek injunctive relief or similar equitable remedies to enforce such party‘s rights under the pertinent provisions of this Agreement, without limiting its right to pursue any other legal remedies available to it.

Entire Agreement and Waiver. This Agreement and any exhibits hereto shall constitute the entire agreement and contains all terms and conditions between Dyndrite and Licensee with respect to the subject matter hereof and all prior agreements, representations, and statements with respect to such subject matter are superseded hereby. This Agreement may be changed or amended only by a written agreement signed by authorized signatories of both Dyndrite and Licensee. No failure of either party to exercise or enforce any of its rights under this Agreement shall act as a waiver of subsequent breaches; and the waiver of any breach shall not act as a waiver of subsequent breaches.

Severability. In the event any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law and the other provisions of this Agreement will remain in full force and effect. The parties further agree that in the event such provision is an essential part of this Agreement, they will begin negotiations for a suitable replacement provision.

Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the respective parties hereto, their respective successors and permitted assigns.

Assignment. Licensee may not assign this Agreement, in whole or in part, without the advance written permission of Dyndrite and any attempt to do so shall be a material default of this Agreement and shall be void. Dyndrite may assign its rights and benefits and delegate its duties and obligations under this Agreement freely and at any time.