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Agreement #ZO02306005
<br />GOODWILL, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR (iii) ANY LOSSES, COSTS OR DAMAGES ASSOCIATED
<br />WITH CUSTOMER'S PRODUCTS OR OTHER ELEMENTS INCORPORATED OR USED THEREWITH WHICH WERE NOT PROVIDED BY LESSOR
<br />OR WITH RESPECT TO ANY MODIFICATIONS MADE TO THE SOFTWARE OR SERVICES OR MISUSE OF THE SOFTWARE OR SERVICES.
<br />LESSOR'S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR
<br />OTHERWISE, WILL NOT EXCEED THE PRO -RATED PORTION AMOUNT PAID TO LESSOR BY CUSTOMER FOR THE SOFTWARE AND
<br />SERVICES PROVIDED UNDER THIS ASP AGREEMENT DURING THE 12-MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH
<br />LIABILITY. Lessee acknowledges that these limitations reflect the allocation of risk set forth in this ASP Agreement and that Lessor would not enter into this
<br />ASP Agreement without these limitations on its liability. Lessee agrees that these limitations shall apply notwithstanding any failure of essential purpose of
<br />any limited remedy. The remedies in this ASP Agreement are Lessee's sole and exclusive remedies. In addition, Lessor disclaims all liability of any kind of
<br />Lessor's licensors and suppliers, for third party products or services, and for the actions or omissions of Lessee's representatives.
<br />9. Ownership. All right, title and interest, including but not limited to all existing or future copyrights, trademarks, service marks, trade secrets, patents,
<br />patent applications, know how, moral rights, contract rights, and proprietary rights, and all registrations, applications, renewals, extensions, and combinations
<br />of the foregoing, in and to the following are the exclusive property of Lessor (or, as the case may be, its subsidiaries, licensors and suppliers): (i) ASP Services,
<br />Software, Documentation, and all proprietary technology used by Lessor to perform its obligations under this ASP Agreement; (ii) all software, tools, routines,
<br />programs, designs, technology, ideas, know-how, processes, techniques and inventions that Lessor makes, develops, conceives or reduces to practice, whether
<br />alone or jointly with others, in the course of performing the Services; (iii) the fully compiled version of any of the foregoing software programs that can be
<br />executed by a computer and used without further compilation (the "Executable Code"); (iv) the human readable version of any of the foregoing software
<br />programs that can be compiled into Executable Code (the "Source Code"); and (v) all enhancements, modifications, improvements and derivative works of
<br />each and any of the foregoing (the "Lessor Property"). If any derivative work is created by Lessee from the Software or Services, Lessor shall own all right,
<br />title and interest in and to such derivative work. Any rights not expressly granted to Lessee hereunder are reserved by Lessor.
<br />10. Term and Termination.
<br />10.1. Term. The term of this ASP Agreement ("Term") begins on the effective date of the associated Schedule incorporating this ASP Agreement and continues
<br />until it is terminated. The term of each associated Schedule begins on the effective date of such Schedule and continues until it expires or is terminated.
<br />10.2. Termination. Either party may terminate this ASP Agreement without cause upon thirty (30) days' prior written notice to the other party. Either party
<br />may terminate this ASP Agreement if the other party materially defaults in the performance of any of its obligations hereunder and fails to cure such default
<br />within twenty (20) days after written notice from the non -defaulting party. This ASP Agreement may not extend beyond the term of the associated Schedule.
<br />10.3. Effects of Termination. Upon expiration or termination of this ASP Agreement for any reason: (a) all amounts, if any, owed to Lessor for ASP Service
<br />or the associated Schedule that has expired or been terminated (the "Expired or Terminated Document") before such termination or expiration will become
<br />immediately due and payable; (b) Lessee's right to access the ASP Services, and all licensed rights granted, in the Expired or Terminated Document will
<br />immediately terminate and cease to exist; and (c) Lessee must (i) promptly discontinue all use of any ASP Services provided under the Expired or Terminated
<br />Document (ii) erase all copies of Access Software, if any, from Lessee's computers and the computers of its customers and return to Lessor or destroy all copies
<br />of such Access Software and related Documentation on tangible media in Lessee's possession and (iii) return or destroy all copies of the Documentation in
<br />Lessee's possession or control; (d) each party shall promptly discontinue all use of the other party's Confidential Information disclosed in connection with the
<br />Expired or Terminated Document and return to the other party or, at the other party's option, destroy, all copies of any such Confidential Information in tangible
<br />or electronic form.
<br />11. General Provisions.
<br />11.1. Compliance with Laws. Lessee shall comply with all applicable laws and regulations, and obtain required authorizations, concerning its use of the ASP
<br />Services, including without limitation if applicable all export and import control laws and regulations. Lessee will not use any ASP Services for any purpose
<br />in violation of any applicable laws. Lessor may suspend performance if Lessee violated applicable laws or regulations.
<br />11.2. Audits and Inspections. Upon written request from Lessor, Lessee shall furnish Lessor with a certificate signed by, at least, Vice President level executive
<br />of Lessee stating that the ASP Services are being used strictly in accordance with the terms and conditions of this ASP Agreement. During the Term and fora
<br />period of six months following the termination or expiration of this ASP Agreement, upon prior written notice, Lessor will have the right, during normal
<br />business hours, to inspect, or have an independent audit firm inspect, Lessee's records relating to Lessee's use of the ASP Services to ensure it is in compliance
<br />with the terms of this ASP Agreement.
<br />11.3. Assignments. Assignment terms are set forth in the Master Agreement and shall also apply to this ASP Agreement.
<br />11.4. U.S. Government End Users. If Lessee is a branch or agency of the United States Government, the following provision applies. The Software and
<br />Documentation are composed of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R.
<br />12.212 (SEPT 1995) and are (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (ii) for acquisition
<br />by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202 1 (JUN 1995) and 227.7202 3 (JUN 1995).
<br />11.5. Notices. All notices, consents, and approvals under this ASP Agreement shall be the same terms as set forth in the Master Agreement.
<br />11.6. Governing Law and Venue; Waiver of Jury Trial. This ASP Agreement will be governed by and interpreted in accordance with the laws of the
<br />Commonwealth of Massachusetts without reference to its choice of law rules. The United Nations Convention on Contracts for the International Sale of Goods
<br />does not apply to this ASP Agreement. Any action or proceeding arising from or relating to this ASP Agreement shall be brought in a federal or state court in
<br />the Commonwealth of Massachusetts, and each parry irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
<br />Each party hereby knowingly, voluntarily, and intentionally waives any right it may have to a trial by jury in respect of any litigation arising out of or in
<br />connection with this agreement.
<br />11.7. Remedies. Except as otherwise expressly provided in this ASP Agreement, the parties' rights and remedies under this ASP Agreement are cumulative.
<br />Lessee acknowledges that the Software and Services are built on valuable trade secrets and proprietary information of Lessor, that any actual or threatened
<br />breach hereof will constitute immediate, irreparable harm to Lessor for which monetary damages would be an inadequate remedy, and that Lessor will be
<br />entitled to injunctive relief for such breach or threatened breach. Lessee further agrees to waive and hereby waives any requirement for the security or the
<br />posting of any bond in connection with such remedies. Such remedies shall not be considered to be the exclusive remedies for any such breach or threatened
<br />breach but shall be in addition to all other remedies available at law or equity to Lessor.
<br />11.8. Waivers. Any waiver or failure to enforce any provision of this ASP Agreement on one occasion will not be deemed a waiver of any other provision or
<br />of such provision on any other occasion.
<br />11.9. Severability. If any provision of this ASP Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be changed
<br />and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this ASP
<br />Agreement will continue in full force and effect. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this
<br />ASP Agreement, and this ASP Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or
<br />had been modified as above provided, as the case may be.
<br />11.10. Independent Contractors. The parties are entering into, and will perform, this ASP Agreement as independent contractors. Nothing in this ASP
<br />Agreement will be construed to make either party the agent of the other for any purpose whatsoever, to authorize either parry to enter into any contract or
<br />assume any obligation on behalf of the other or to establish a partnership, franchise or joint venture between the parties.
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