DATA3SIXTY ANALYZE SOFTWARE LICENSE & MAINTENANCE AGREEMENT ('SLMA') THIS SLMA, THE DOCUMENTATION (AS DEFINED BELOW), AND THE OTHER ITEMS INCORPORATED BY REFERENCE HEREIN AND THEREIN (COLLECTIVELY, THIS 'AGREEMENT') IS MADE BY AND BETWEEN THE INFOGIX ENTITY THAT ACCEPTS THE QUOTATION OR ORDER FORM FOR THE APPLICABLE SOFTWARE OR SERVICE ('INFOGIX') AND THE INDIVIDUAL OR LEGAL ENTITY DOWLOADING, COPYING, INSTALLING, ORDERING, RECEIVING OR USING INFOGIX OR INFOGIX-SUPPLIED SOFTWARE OR SERVICES, OR THAT ACCEPTS THE QUOTE OR CLICKS THE 'ACCEPT' BUTTON AS PART OF THE PROCUREMENT, COPY, INSTALLATION, UPGRADE, OR UPDATE PROCESS ('LICENSEE'). INFOGIX IS WILLING TO LICENSE THE INFOGIX OR INFOGIX-SUPPLIED SOFTWARE ('SOFTWARE') AND/OR PROVIDE THE INFOGIX OR INFOGIX-SUPPLIED SERVICES ('SERVICES') TO LICENSEE ONLY UPON THE CONDITION THAT THE LICENSEE ACCEPTS ALL THE TERMS CONTAINED IN THIS AGREEMENT. BY DOWNLOADING, COPYING, INSTALLING, ORDERING, RECEIVING, OR OTHERWISE USING THE SOFTWARE OR SERVICES, OR BY ACCEPTING A QUOTE OR CLICKING THE 'ACCEPT' BUTTON AS PART OF THE PROCUREMENT, COPY, INSTALLATION, UPGRADE OR UPDATE PROCESS, THE LICENSEE ACCEPTS AND AGREED TO BE BOUND BY THIS AGREEMENT. THE LICENSEE REPRESENTS THAT HE/SHE HAS READ AND UNDERSTANDS ALL OF THE PROVISIONS OF THIS AGREEMENT AND THAT, IF APPLICABLE, HE/SHE HAS THE AUTHORITY TO BIND THE COMPANY WHICH HE/SHE REPRESENTS. INFOGIX OFFERS SOFTWARE AND SERVICES ONLY SUBJECT TO THIS AGREEMENT AND THEREFORE THE LICENSEE MUST ACCEPT THIS AGREEMENT BEFORE DOWNLOADING, COPYING, INSTALLING, UPGRADING, UPDATING, ORDERING, RECEIVING OR OTHERWISE USING INFOGIX OR INFOGIX-SUPPLIED SOFTWARE OR SERVICES. 1. Definitions and Interpretation 1.1. Definitions. In this Agreement and any related Exhibits, unless the context otherwise requires: 'Additional Charges' means any charges, other than those specifically set forth in an Order Form, that may be invoiced by INFOGIX to Licensee in connection with this Agreement (whether by virtue of a specific provision or otherwise) which will be calculated, as applicable, in accordance with INFOGIX's then-current standard prices or rates and/or on a time and materials basis. 'Annual Maintenance Fees' means the fees paid by Licensee for a Perpetual License under this Agreement annually after the Initial Maintenance Fee for the delivery of Maintenance Services for one or more 12-month periods. 'Annual Software Renewal Fees' means the fees paid by Licensee under this Agreement annually for the License Renewal Term. 'Base Instance' means the Instance of the Licensed Software purchased by Licensee when Licensee licenses one or more Instances of server Software, for Pre-Production and Production use. 'Customer' means any customer, client, third party, partner or end user of Licensee for whom or to whom the Licensee is providing Services using INFOGIX software. 'Delivery Date' means the date on which INFOGIX delivers the Software or Services to Licensee. 'Documentation' means those published user manuals and other technical specifications and documents supplied to Licensee by INFOGIX relating to the Software. Documentation also includes this SLMA and applicable Order Forms. 'Effective Date' means the date on which Licensee procures the Software or Services via an Order Form. 'Failover Instance' means the Instance of the Licensed Software purchased by Licensee in addition to a Base Instance and/or a Production Instance for use in connection with a Failover Event. 'Fees' means the Software License Fees, Initial Maintenance Fees, Annual Maintenance Fees, Annual Software Renewal Fees, Services Fees, plus any Additional Charges that may be applicable. 'Functionality' means all of the functionality of the Software, which enables Licensee to perform in accordance with the license rights granted herein, as applicable to the Software as may be further described in the Documentation. 'Initial License Term' means, with respect to a Term License(s), the period that begins on the Effective Date and ends on the applicable anniversary of the Effective Date, or such other date specified in the Order Form. 'Initial Maintenance Fee' means the fee paid by Licensee or the delivery of Maintenance Services during the Initial Maintenance Period. 'Intellectual Property Rights' means all (i) copyrights (including, without limitation, the exclusive right to reproduce, distribute copies of, display and perform the copyrighted work and to prepare derivative works), copyright registrations and applications, trademark rights (including, without limitation, registrations and applications), patent rights, trade names, mask-work rights, trade secrets, moral rights, author's rights, algorithms, data, rights in packaging, goodwill and other intellectual property rights, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of any other domestic or foreign jurisdiction; (ii) intangible legal rights or interests evidenced by or embodied in any idea, design, concept, technique, invention, discovery, enhancement or improvement, regardless of patentability, but including patents, patent applications, trade secrets and know-how; and (iii) all derivatives of any of the foregoing, relating to the Software (including source code), Specifications, Documentation and any other proprietary information belonging to INFOGIX. 'Instance' means an installation and activation of Licensed Software. 'INFOGIX Services' means, collectively, Maintenance Services, Training, Professional Services and other services provided by INFOGIX. 'L-CPU' or 'Licensed CPU' means a single core CPU. For servers with multi-core CPUs (two or more cores per CPU), an L-CPU is defined as the product of 0.5 times the combined total number of cores across all processing units on the server in which the server-based Software is installed and/or running. 'Licensee' means the party identified as such above. 'License Renewal Term' means, with respect to a Software Term License(s), the period that begins on the applicable anniversary of the Effective Date or the most recent License Renewal Term and continues for or more twelve (12) month periods. 'License Term' means the period of time during which Licensee is authorized to use the Software or Services under this Agreement, inclusive of any applicable Initial License Term or License Renewal Term. 'Named User' means an individual employee or Permitted Subcontractor of Licensee and shall be identified by name to INFOGIX, initially and as such users may change from time-to-time. The designated personnel for Named Users may be changed or updated from time to time by Licensee upon written notice to INFOGIX in the event personnel are no longer employed by Licensee or the job description of designated personnel no longer includes usage of the Software. 'Order Form' means a quotation, order form or other means by which Licensee procures Software and/or Services from INFOGIX (including an online order), which may specify, among other things, the number or amount of Software Licenses and Services purchased, the applicable fees, the applicable License Term and other items, each such Order Form to be incorporated into and become a part of this Agreement. 'Permitted Subcontractor' means any third party engaged by Licensee to interact with or otherwise perform services with respect to the Software and/or Documentation, provided that such third party (i) is subject to a written agreement with Licensee in which such third party acknowledges INFOGIX's Intellectual Property Rights in and to the Software and Documentation and which contains obligations of confidentiality with respect to Confidential Information that are no less restrictive than those contained in Section 9. Licensee is responsible for the actions and or omissions of its Permitted Subcontractors. 'Perpetual License' means a perpetual license to the Software, subject to the terms and conditions of this Agreement. 'Pre-Production Use' means use of the Licensed Software by authorized Named User(s) to build, test, debug, optimize, and manually execute processes that acquire, profile, transform, combine, analyze, and publish data ('Data3Sixty Analyze Data Flows'). 'Production Instance' means the Instance of the Licensed Software purchased by Licensee in addition to a Base Instance for use as a dedicated server for Production Use. 'Production Use' means use of the Software to execute automatically the Data3Sixty Analyze Data Flows created by Pre-Production Use and administration of the server. 'Site' means the address for the delivery of the Software. 'Software' or 'Licensed Software' means the computer software, in object code form only, licensed by INFOGIX to Licensee. 'Software License' means the license(s) granted by INFOGIX to Licensee to use the Software in accordance with the Documentation and subject to the terms and conditions of this Agreement. Software Licenses are term or perpetual. 'Software License Fees' means the fees paid by Licensee under this Agreement for the Software License. 'Specifications' means the functional specifications of the Software as set forth in the Documentation. 'Term License' means the right to access the Software or Services for the License Term, subject to the terms and conditions of this Agreement. 'Territory' means the countries or regions set forth in an Order Form. 1.2. Other Definitions. Additional definitions appear throughout this Agreement and the Exhibits. 1.3. Construction. Words importing the singular include the plural, words importing any gender include every gender and words importing persons include entities, corporate and otherwise; and (in each case) vice versa. 1.4. Headings. The section headings are for ease of reference only and shall not affect the interpretation or construction of this Agreement. 1.5. Inclusion. Whenever the terms 'including' or 'include' are used in this Agreement in connection with a single item or a list of items within a particular classification (whether or not the term is followed by the phrase 'but not limited to' or words of similar effect) that reference shall be interpreted to be illustrative only, and shall not be interpreted as a limitation on, or an exclusive enumeration of the items within that classification. 1.6. References. Any reference to a Section or Exhibit is a reference to a section or exhibit in this Agreement and a reference to this Agreement includes all Sections and Exhibits. 2. Software 2.1. License. Subject to the terms and conditions of this Agreement (including all Exhibits) INFOGIX hereby grants to Licensee (a) in the case of a Perpetual License, a perpetual license, or (b) in the case of a Term License, a license for the License Term, a non-exclusive, non-transferable, license to the Software, in object code only, in the Territory, for Licensee's internal business purposes only: (i) to use, maintain, modify (provided that, with respect to any such maintenance and modification, as permitted by the Software) on one machine for each Named User and at any one or more locations; and (ii) to use by employees, consultants, contractors or agents of Licensee, provided that any such consultant, contractor or agent is a Permitted Subcontractor. For purposes of this License grant, Software must be installed on a Licensee computer and may not be installed by a Customer or vendor of Licensee or be out of Licensee's control at a Customer's site. 2.2. Licensee may use the Software through remote or local access as necessary to achieve the purposes set forth in Section 2.1, provided however that in no circumstance will Licensee permit a greater number of users to access any Software than the total number of Named Users indicated for such Software in an Order Form. 2.3. The following restrictions apply to each Software License option. a) For Software Licenses identified as desktop software, server client software or optional node software, the total count of Named Users enabled to use such Software must not exceed the applicable number of Named Users. For each such Software License, Licensee may install, via a license key, one copy of such Software. Subject to the above restriction, in certain circumstances, INFOGIX at its discretion may permit remote desktop access. b) For Software identified as Server Software, the license granted hereunder is subject to Core-based restrictions. Core-based Software Licenses permit installation of the Software within a hosting environment, with a maximum core count as specified in Section 1. For non-virtual environments, this count is defined as the total number of physical Cores across all of the CPUs on every machine upon which the software is installed. For virtualized environments, this count is defined as the total number of virtual Cores allocated to the virtual machine which hosts the software installation. 'Core' means the processor or execution core contained in the same integrated circuit within a computer's central processing unit, whether such Cores are virtual or physical. Base Instance Software may be used for Pre-Production or Production Use. c) For Software identified as Failover Instances, Licensee may install the server component of such Failover Instance on a back-up server or server cluster node to ensure server or system failover of Licensee's Software environment in the event of the failure and non-availability for productive use of the Software environment (a 'Failover Event'); provided that the Failover Instance: (i) is installed only on a backup server or server cluster node for system failover, (ii) remains dormant until the occurrence of a Failover Event, (iii) use immediately ceases upon the cessation of the Failover Event, and (iv) may not be used in excess of the rights licensed hereunder or in violation of the terms of this Agreement. This license and right to install and maintain the Failover Instance will expire upon the first to occur of (x) modification of Licensee's Software environment such that it no longer needs a copy of the Software for a Failover Event, (y) INFOGIX's modification of the Software to permit failover operation of the Software absent the need for a Failover Instance, or (z) the termination of this Agreement. d) INFOGIX may issue New Releases of the Software from time to time as set forth in Exhibit A. Subject to all the restrictions stated in this Agreement, INFOGIX grants to Licensee an additional license to test such New Releases in a test environment to analyze the operation of the New Release prior to making changes in Licensee's production environment. Such temporary testing license is not to exceed thirty days, shall not be used for Production Use or any other purpose. 2.4. Copying Rights. Subject to the terms and conditions of this Agreement, INFOGIX hereby grants to Licensee a non-exclusive, non-transferable license to make a reasonable number of copies of the Software and Documentation in the Territory for the purposes set forth in Section 2.1, provided that Licensee shall copy or reproduce all proprietary markings, trademark and copyright notices onto all copies of the Software and Documentation. 2.5. Proprietary Rights. Licensee acknowledges that any and all Intellectual Property Rights embodied in, relating to or used in connection with the Software (including source code), Specifications and Documentation, including without limitation any and all text, applets, sub-routines, modules, codes, data, interfaces, are and shall remain INFOGIX's sole and exclusive property or the property of INFOGIX's licensors. All rights not expressly granted under this Agreement are expressly reserved by INFOGIX. Copyright notices and other proprietary rights notices in the Software or Documentation shall not be deleted or modified. This Agreement does not transfer any ownership rights. 2.6. Third-Party Access. Licensee shall not permit any third party to access or otherwise interact with the Software or Documentation without INFOGIX's prior written consent. 2.7. Restrictions. Except as expressly provided to the contrary in this Agreement, Licensee may not itself, or assist or permit any third party to: a) copy, modify, reverse engineer, decompile or disassemble the Software or create the source code; b) sell, sublicense, distribute, rent, lease or lend the Software, act as a service bureau, or engage in any other form of commercial exploitation of the Software (other than in accordance with the license rights set forth in Section 2.1 of this Agreement) or use the Software and/or the Functionality outside of the scope of the Software License granted hereunder; c) remove any proprietary notice of INFOGIX or any third party so identified on the Software and Documentation, or any copy thereof; or d) give access to the Software in any form to any third party other than as set forth herein, or transfer the Software in any form to any third party, other than to the extent such access is approved by INFOGIX and strictly required by Licensee. 3. Licensee's Obligations 3.1. General Requirement. Licensee agrees to pay INFOGIX when due the applicable amounts in accordance with the Documentation. Licensee agrees to be responsible for the payment of all Fees for the entire Term, regardless of whether such Software or Services are actively used. Except as otherwise set forth in this Agreement, all payment obligations are non-cancelable and all amounts paid are non-refundable. 3.2. Fees and Expenses. All Fees and expenses shall be in the currency set forth in the Order Form(s), and are due and payable by Licensee in accordance with the Order Form(s); if the Order Form does not contain payment terms, Fees and expenses will be due within thirty (30) days of the invoice date. Undisputed overdue payments shall bear interest at a rate of one and one-half percent (1.5%) per month or the maximum rate allowed by applicable law, whichever is less. All travel expenses charged to Licensee shall be reasonable and necessary for INFOGIX to perform obligations on behalf of Licensee and upon Licensee's request. INFOGIX shall provide written documentation to support the expenses. Licensee agrees to indemnify INFOGIX for all costs of collection, including reasonable attorney's fees, relating to late payment or non-payment of Fees and expenses. INFOGIX reserves the right to suspend the license rights granted herein in the event payment for any Fees and expenses is more than ten (10) days overdue. Licensee is responsible for all taxes relating to the Software and the INFOGIX Services (including VAT), excluding taxes relating to INFOGIX's net income or employees. INFOGIX may withhold the provision of Software and/or Maintenance Services in the event of any overdue payments. 3.3. Hardware and Third Party Software. Licensee shall be responsible for providing and installing all required hardware and third party software in versions specified by INFOGIX in order to exercise the rights granted hereunder. 3.4. Data Conversion. INFOGIX assumes no responsibility under this Agreement for converting any of Licensee's or Customer's data files for use with the Software. 3.5. Platform Transfer. Licensee may transfer the Software to another operating system supported by INFOGIX ('Transfer Platform') so long as: (a) Licensee, at the time of transfer has a current license to the Software; (b) the scope of the license grant to the Software is authorized under this Agreement; (c) Licensee is, at the time of transfer, currently covered by Maintenance Services and is current in its payment of Maintenance Fees; and (d) Licensee agrees to immediately remove and discontinue any use of the prior Software upon successful installation to the Transfer Platform, but for each such transfer in no case shall the Software be operated on more than one (1) operating system for more than sixty (60) days. In the event Licensee requires additional INFOGIX Services to assist in the installation or to implement the Transfer Platform, such INFOGIX Services shall be performed at INFOGIX's then-current prices. Licensee accepts full responsibility for any differences in Functionality as a result of changing to a different operating system. 3.6. Audit. Upon reasonable advance written notice, Licensor shall have the right to have a quarterly audit of Licensee’s use of the Software to verify Licensee’s compliance with this Agreement. Licensee shall make its systems and all applicable books, records and transaction logs available for such inspection during normal business hours at Licensee’s principal place of business. 4. Documentation and Training 4.1. Documentation. INFOGIX shall supply or make available via web link one (1) set of Documentation for the Software to Licensee on the Delivery Date, in electronic format. 4.2. Training. INFOGIX shall provide the training services purchased by Licensee. If Licensee requires any additional training with respect of the Software, INFOGIX shall provide such training based on its then-current charges and its standard training policies, terms and conditions. In connection with any training, Licensee will reimburse to INFOGIX any travel, and other out-of-pocket expenses reasonably incurred by INFOGIX. 5. Warranty 5.1. Limited Warranty. INFOGIX warrants that, for a period of ninety (90) days after the Delivery Date of the Software (the 'Warranty Period'): (a) the media on which the Software is furnished will be free of defects in materials and workmanship and (b) the Software will operate substantially in accordance with the Specifications when installed and used in accordance with the Documentation. For any breach of this warranty reported to INFOGIX within the Warranty Period, INFOGIX will, at its sole option, either promptly repair or replace any defective media or Software which fails to comply with such warranty or refund the amounts paid for such Software. The above is Licensee's sole and exclusive remedy and INFOGIX's sole and exclusive obligation and liability for breach of the warranty contained in this Section 5.2. 5.2. Exclusions. The above warranty shall not apply if the nonconformity relates to (a) any hardware or other equipment or programs used in conjunction with the Software or to any other reason external to the Software, (b) the acts or omissions of any third party, or (c) any version or release of the Software other than the Supported Release (as defined in Exhibit A). 5.3. Disclaimer. EXCEPT AS SET FORTH IN THIS AGREEMENT, INFOGIX EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AS TO ANY ASPECTS OF THE SOFTWARE OR TO ANY INFOGIX SERVICES RENDERED, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. INFOGIX DOES NOT WARRANT THAT THE SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. ANY WARRANTIES GRANTED HEREIN ARE PROVIDED SOLELY TO LICENSEE, AND INFOGIX MAKES NO WARRANTY OF ANY KIND TO LICENSEE'S CUSTOMERS OR ANY OTHER THIRD PARTIES. 6. Limitation of Liability EXCEPT IN CONNECTION WITH (i) EACH PARTY'S INDEMNIFICATION OBLIGATIONS IN SECTION 7 OR (ii) LICENSEE'S VIOLATION OF THE PROVISIONS OF SECTIONS 2.1 OR 2.7, NEITHER PARTY'S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL EXCEED THE FEES PAID OR PAYABLE BY LICENSEE TO INFOGIX FOR THE SOFTWARE OR THE SERVICES AS TO WHICH THE CLAIM AROSE. EXCEPT IN CONNECTION WITH A BREACH OF SECTION 9, OR LICENSEE'S VIOLATION OF THE PROVISIONS OF SECTIONS 2.1 OR 2.7, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST DATA OR LOST PROFITS, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES AGREE TO THE ALLOCATION OF LIABILITY RISK, WHICH IS SET FORTH IN THIS SECTION. 7. Indemnity 7.1. Indemnification. INFOGIX agrees, at its own expense, to indemnify and defend Licensee for all costs and damages finally awarded, including reasonable attorneys' fees, arising out of any claim or action ('Claim' brought against Licensee by a third party alleging that the unmodified Software, used in accordance with the terms of this Agreement (including the Documentation) infringes any U.S. patent or copyright of a third party, provided that INFOGIX is: (a) notified promptly in writing of any such Claim related thereto; (b) given the right to control and direct the investigation, preparation, defense and settlement of the Claim; and (c) given Licensee's assistance, authority and full cooperation for the defense of the Claim. 7.2. Settlement Approval. INFOGIX will not be responsible for any settlement it has not approved in writing. 7.3. Remedy. In the event that the Software is held to infringe or Licensee's use is enjoined, INFOGIX shall have, at its option and expense, the right to do any of the following: a) procure for Licensee the right to continue to use the Software; b) replace the Software with other, substantially similar software, reasonably suitable to Licensee; c) modify the Software to make it non-infringing; or d) if none of the foregoing remedies is commercially feasible, terminate the Software License for the infringing Software and, upon its return, refund the portion of the Software License Fees actually paid by Licensee for such Software prorated over a three (3) year term from the Effective Date. 7.4. Exclusions. In no event will INFOGIX have any obligations under this Section 7 or any liability for any Claim if the Claim is caused by or results from: a) the combination or use of the Software with software, products or data not provided by INFOGIX; b) the modification or alteration of the Software other than by INFOGIX; c) the continued allegedly infringing activity after being provided modifications or an updated version of the Software that would have avoided the alleged infringement; or d) the use of the Software in a manner not strictly in accordance with this Agreement and the Documentation. Licensee shall indemnify, defend and hold harmless INFOGIX in accordance with this Section 7 in connection with any claims brought against INFOGIX arising from this Section 7.4. 7.5. Sole Remedy. THE ABOVE STATES LICENSEE'S SOLE AND EXCLUSIVE REMEDY AND INFOGIX'S SOLE AND EXCLUSIVE OBLIGATION WITH RESPECT TO THE INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. 8. Term and Termination 8.1. Term. In the event Licensee has purchased a Perpetual License, this Agreement and the rights granted herein shall remain effective in perpetuity unless terminated as set forth in this Agreement. In the event Licensee has purchased a Term License, the Initial Term shall be as set forth in the Order Form. If the Order Form does not set forth an Initial Term, then the Initial Term shall be twelve (12) months. Upon the expiration of the Initial Term, the Term License will automatically renew for successive Renewal Terms equal in duration to the Initial Term at INFOGIX's then-current fees. Either party may terminate any Term License, effective only upon the expiration of the then current term, by notifying the other party in writing at least forty-five (45) days prior to the expiration date of the current term.' 8.2. Lapsing of License Term. In the event Licensee has purchased a Term License, if Licensee does not pay the Annual Software Renewal Fees for any term Software License on or prior to the commencement of the applicable License Renewal Term, no license key shall issue and the applicable term Software License shall automatically terminate. Following termination or expiration of the License Term, Licensee may reinstate a Term License upon its payment to INFOGIX of the then-current applicable Term License Fees for the period during which the License Term had lapsed. Reinstatement of a lapsed Software License shall commence on the next anniversary of the Effective Date, or shall be prorated to that date. 8.3. Material Breach. Either party may terminate this Agreement immediately upon written notice to the other party in the event that such other party commits any material breach of any term of this Agreement and fails to cure such breach within thirty (30) days after the receipt of written notice specifying the breach. Termination pursuant to this Section 8.5 shall not relieve Licensee of its obligation to pay any unpaid Fees, which accrued prior to the effective date of termination. 8.4. Termination by INFOGIX. INFOGIX may immediately terminate this Agreement upon written notice in the event that Licensee fails to pay any Fees specified in this Agreement in accordance with the terms hereof, and fails to remedy such failure within ten (10) days following the date that such Fees are due and payable. 8.5. Effects of Termination. In the event that this Agreement or a Software License is terminated for any reason, Licensee shall: (a) immediately cease any and all use of such Software and Documentation, (b) return to INFOGIX all physical copies or parts thereof, (c) destroy the magnetic media on which they have been stored, (d) cause the Software to be erased from all hardware and (e) certify in writing to INFOGIX that all of the foregoing has been completed. 8.6. Survival. Sections that by their nature survive expiration or termination shall survive any expiration or termination of this Agreement. 9. Confidentiality 9.1. Definition. 'Confidential Information' means any and all information, documents, data and know-how, which either party may disclose to the other party pursuant to or in connection with this Agreement relating to its business, customers, prices and requirements. For the avoidance of doubt, the Specifications, Documentation and Software (including source code), as well as the terms and conditions of this Agreement shall be deemed the Confidential Information of INFOGIX. 9.2. Obligations. The party in receipt of the Confidential Information (the 'Receiving Party') of the other party (the 'Disclosing Party') agrees that it shall use such Confidential Information solely for the purposes of this Agreement and that it shall not, at any time during or after the term of this Agreement disclose such Confidential Information, directly or indirectly, to any third party (other than employees and Permitted Subcontractors and, in either such case, only on a 'need to know' basis), or otherwise use such Confidential Information, without the Disclosing Party's prior written consent. 9.3. Exclusions. 'Confidential Information' does not include that which: (i) is legally in the Receiving Party's possession at the time of disclosure without the obligation of confidentiality; (ii) is or becomes part of the public knowledge or literature, not as a result of any action or inaction of the Receiving Party; (iii) is approved for release by written authorization of the Disclosing Party or (iv) is independently developed by the Receiving Party without access or reference to the Confidential Information. In the event the Receiving Party is required to disclose Confidential Information pursuant to a judicial or governmental order, or valid subpoena, such party will promptly notify the Disclosing Party to allow intervention in response to such order. 9.4. Survival. For avoidance of doubt, this Section 9 shall survive the expiration or termination of this Agreement. 9.5. Existence of Agreement. Notwithstanding the foregoing, INFOGIX reserves the right to disclose to any third party the existence of this Agreement. 10. Notices Any notice under or in connection with this Agreement shall be in writing and shall be sent by overnight mail, courier, certified mail (return receipt requested) or facsimile (followed by confirmation copy by mail) to the addresses set forth on the Software License Agreement or to such other address which the recipient may have previously notified the other party in writing. Notice shall be deemed received upon personal delivery when sent by overnight mail, courier, and certified mail, or upon receipt of confirmation copy when a facsimile is sent. 11. Export Compliance Licensee will comply with all applicable laws and regulations in its use of the Software. Licensee may not export, re-export or otherwise transfer the Software to any territory outside of the Territory except in full compliance with the provisions of applicable laws and regulations. 12. Government Uses If Licensee is an agency of the U.S. Government, the following will apply: The Software has been developed entirely at private expense, is regularly used for non-governmental purposes and has been licensed to the public. The Software is a 'commercial item' as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of 'commercial computer software' and 'commercial computer software documentation' as those terms are used in 48 C.F.R. 12.212 (Sept. 1995) or as 'commercial computer software' as that term is defined in 48 C.F.R. 252.227-7014 (June 1995) or any equivalent agency regulation or contract clause, whichever is applicable. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government agencies acquire only those rights to the Software as are expressly set forth herein. Contractor/manufacturer is the INFOGIX entity named on the first page of this Agreement. 13. Publicity Neither party shall issue any press releases regarding this Agreement or the relationship of the parties without the written consent of the other party. Upon Licensee's consent, INFOGIX may include Licensee's name in marketing materials, use Licensee as a reference, or include forms of Licensee testimonials or case studies in INFOGIX's promotional materials, provided that no such disclosure shall result in the breach by INFOGIX of its obligations under Section 9. 14. Waiver No failure, on the part of either party to exercise any right under this Agreement shall operate as a waiver of such right. 15. Invalidity of Any Provision If any of the provisions of this Agreement becomes or is held to be invalid, illegal or unenforceable in any respect under applicable law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 16. Force Majeure 16.1. Excusable Delay. Other than payment obligations, neither party shall be liable for any delay or failure to perform its obligations if such failure or delay is due to acts or circumstances beyond such party's control, including without limitation, war or terrorism, national or local states of emergency, power outages and natural disasters (each a 'Force Majeure'). 16.2. Notification. Each party shall notify the other, as soon as practicable of any anticipated delay or failure due to Force Majeure. The performance of such party's obligations (as well as affected or dependent obligations of the other party) under this Agreement shall be suspended for the period of the delay. 17. Assignment Except pursuant to a merger, acquisition or business combination, neither party may assign or transfer this Agreement, by operation of law or otherwise without the prior written consent of the other, such consent not to be unreasonably withheld. Notwithstanding the foregoing, Licensee may not assign this Agreement, under any circumstances, to a competitor of INFOGIX. This Agreement will be binding upon the successors and permitted assigns of both parties. 18. Entire Agreement This Agreement supersedes all prior agreements, arrangements and understandings between the parties and, except for the Order Form or other documents referenced in this Agreement, constitutes the entire agreement between the parties relating to the subject matter hereof. No addition to or modification of any provision of this Agreement shall be binding upon the parties unless made by a written instrument signed by a duly authorized representative of each of the parties. For the avoidance of doubt neither (a) any correspondence (electronic or otherwise) that does not expressly reference this Agreement and the intent of such correspondence to amend this Agreement and otherwise comply with this Section 19; nor (b) any course of conduct, shall operate to amend this Agreement. 19. Exclusion of United Nations Convention Both parties hereby exclude the application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement. 20. Governing Law and Jurisdiction 20.1. Controlling Law. This Agreement is governed by and shall be construed in accordance with the laws of the Commonwealth of Massachusetts, without reference to its conflicts of laws rules. 20.2. Venue. The parties submit to the non-exclusive personal jurisdiction of the federal and state courts located in or having jurisdiction over Boston, Massachusetts. EXHIBIT A MAINTENANCE SERVICE 1. Definitions and Interpretation 1.1. Definitions. The following definitions are in addition to those contained in the General Terms and Conditions and other Exhibits of this Agreement: 'Critical Error' means an Error that: (1) renders the Software inoperative; or (2) has a direct and critical impact on Licensee's operations. 'Current Release' means the Major Release, Minor Release or Maintenance Release most recently delivered to Licensee. 'Error' shall mean a replicable, material failure of the Software to conform to the Specifications. Errors do not include, and INFOGIX will have no responsibility for, any of the following circumstances which adversely impact the operation of the Software or the ability of INFOGIX to provide Maintenance Services: (i) the Software has been modified or damaged in any manner by any person or entity other than INFOGIX; (ii) the Software has been used outside the scope of the Software License; (iii) any failure of the computer hardware, the computer operating system and/or other software utilized by Licensee, or use of such hardware, operating system or other software in versions or with specifications other than those specified by INFOGIX; (iv) the Software has been installed or operated other than in accordance with the Documentation, including without limitation, on computer hardware, or operating systems other than for which that Software Release was designed; or (v) Licensee has failed to install a Current Release made available to Licensee and INFOGIX affirms to Licensee that the Error in question has been corrected in such Current Release. 'Fix' means, in INFOGIX's discretion, either a Maintenance Release designed to correct an Error, or a temporary work-around, patch, bypass, modification, correction, addition, enhancement, update or other change made by INFOGIX or temporary implementation by Licensee of a data input or operational procedure in order to diminish or avoid the effect of an Error. 'Initial Maintenance Period' means at least one (1) period of twelve months, commencing from the Effective Date. 'Licensee Technical Representative' means up to two (2) system administrators or software engineers of Licensee who: (i) serve as a contact with INFOGIX on all Maintenance Services matters; (ii) are responsible for administration of the Software; and (iii) are knowledgeable in the operation of the Software and have attended INFOGIX's System Administrator Training program. 'Maintenance Fees' means the fees for the provision of the Maintenance Service in this Agreement, including the Initial Maintenance Fees and the Annual Maintenance Fees 'Maintenance Hours' means the standard hours during which the Maintenance Service will be provided pursuant to Section 4.5 of this Exhibit A (each hour within such Maintenance Hours, a 'Maintenance Hour'). 'Maintenance Period' means the period commencing from the Effective Date and continuing for the Initial Maintenance Period and any Maintenance Renewal Periods. 'Maintenance Release' means an interim release version of the Software in which one or more previously identified Errors have been corrected. A new Maintenance Release typically will be indicated by the addition of one (1) to the third digit of the release number (e.g. v.X.X.2 would be the next Interim Release after v.X.X.1). 'Maintenance Renewal Period' means each subsequent and consecutive period which commences immediately upon the expiration of the Initial Maintenance Period, or the previous Maintenance Renewal Period (as the case may be), provided that no termination of the Maintenance Period has occurred pursuant to Section 8 of this Exhibit A or Section 8 of the General Terms and Conditions. 'Maintenance Services' means the maintenance services described in Section 4 of this Exhibit A. 'Minor Release' means an updated version of the Software with a limited number of new or enhanced functions and/or features. A Minor Release typically will be indicated by the addition of one (1) to the second digit of the release number (e.g. v.X.2.X would be the New Release after v.X.1.X). 'Major Release' means a release of the Software which contains functions and/or features that, in INFOGIX's sole discretion, represent substantially new or different functions and/or features relative to the functions and/or features of the then most current Minor Release of the Software. A Major Release typically will be indicated by the addition of one (1) to the first digit of the release number (e.g. v.2.X.X would be the next Major Release after v.1.X.X). 'Major Error' means an Error that materially degrades performance of the Software or materially impairs substantial functions of the Software, but is not a Critical Error. 'Minor Error' means an Error that disables specific non-essential functions of the Software and/or an Error for which Licensee has determined a work-around. 'Request' shall mean a request by Licensee for enhancement of the Software not related to an Error. 'Software Release' includes a Maintenance Release, a Minor Release, or a Major Release. 'Supported Release' means the Current Release and the previous Major Release and the two most recent Minor Releases s of such Major Release; for example, if the current release is V2.1 and the last release of V1 was V1.7, INFOGIX would support V2.1, V2.0, V1.7 and V1.6. 2. Services (General)/Payment Terms 2.1. Maintenance Services. In consideration of the Licensee's payment of the Maintenance Fees INFOGIX agrees to provide the Maintenance Services subject to the terms and conditions of this Exhibit and the applicable terms and conditions of this Agreement. 2.2. Service Periods and Hours. Subject to the terms and conditions of this Exhibit and the applicable terms and conditions of this Agreement, INFOGIX shall provide the Maintenance Services for the Initial Maintenance Period and any Maintenance Renewal Period. The Maintenance Services will be provided during the Maintenance Hours. In the event that, at the request of Licensee, service is provided outside of the Maintenance Hours, Licensee will be invoiced and will pay INFOGIX Additional Charges applying to special service hours. 2.3. Provision of Services. All Maintenance Services will be provided remotely via secure remote access to Licensee's applicable systems. In the event that Licensee requests on-site services, INFOGIX will provide such support, subject to Licensee's payment of Additional Charges. The necessity and timing for providing such on-site support will be mutually determined and agreed to by the respective management teams of INFOGIX and Licensee. 2.4. Expenses; Out of Scope Services. The Maintenance Fees are exclusive of (i) any travel, and other out-of-pocket expenses incurred by INFOGIX as a result of any on-site support provided pursuant to Section 2.3 of this Exhibit A and (ii) other INFOGIX Services provided in connection the Maintenance Services which are outside the scope of INFOGIX's responsibilities under this Agreement, including without limitation, those described in Section 5.2 of this Exhibit A. Such expenses shall be deemed Additional Charges and shall be reimbursed to INFOGIX in the manner set out in Section 2.5 of this Exhibit A below. 2.5. Invoicing of Expenses. All Additional Charges and expenses will be invoiced and be payable in accordance with Section 3.2 of the General Terms and Conditions. Licensee acknowledges that all amounts paid under this Exhibit A are not refundable. 3. Licensee's Responsibilities 3.1. Responsibilities. During the Maintenance Period, Licensee will: a) use only the Current Release; b) ensure that the Current Release and the associated hardware are used in a proper manner and accessed only by competent trained employees or by persons under their supervision; c) notify INFOGIX promptly of any Error in any manner set forth in Section 4.6 of this Exhibit A; d) not permit any person or entity other than INFOGIX to provide any maintenance services in respect of the Software without the prior written consent of INFOGIX; e) have a Licensee Technical Representative attempt to correct any suspected Errors and contact INFOGIX only after such attempts have proven unsuccessful; f) co-operate with INFOGIX's personnel in the diagnosis, investigation and correction of any Error; g) make available to INFOGIX, at Licensee's expense, all information, facilities and services reasonably required by INFOGIX to enable INFOGIX to perform the Maintenance Services, including a listing of output and any other data, including databases and backup systems, that INFOGIX may reasonably request in order to reproduce operating conditions similar to those under which the Error occurred; h) provide, at Licensee's expense, secure remote access facilities reasonably required by INFOGIX for remote testing and diagnostic purposes; i) provide access to Licensee's staff, the Software and the associated hardware at the Site during the Maintenance Hours and at such other times as INFOGIX may request on reasonable prior notice; and keep full backup copies of the Current Release and of the Licensee's databases and computer records in accordance with good computing practice. 3.2. Accommodations. If any employees or contractors of INFOGIX perform any INFOGIX Services on Licensee's premises, Licensee will ensure that such employees or contractors are provided with suitable office accommodation and services, including telephone, facsimile, Internet access and photocopying facilities. Such accommodation and services will be readily accessible to any required computing facilities including the Software and associated hardware. 3.3. Licensee Materials. Licensee will supply INFOGIX, without charge throughout the Maintenance Period, with a complete copy of the relevant issues of all documentation and other material communicated by INFOGIX from time to time as being necessary for INFOGIX to perform its obligations under this Agreement including without limitation third party software documentation (collectively referred to as ''Materials'). Licensee warrants that it has or will obtain at its own expense all necessary permissions required to allow INFOGIX throughout the Maintenance Period to receive and use the Materials and provide Fixes and Licensee shall indemnify, defend and hold harmless INFOGIX against any liability arising from any breach of this warranty. 4. Maintenance Services INFOGIX undertakes to provide to the Licensee the following maintenance and support services in respect of the Supported Releases of the Software: 4.1. Technical Advice; Reporting. a) During the Maintenance Hours, INFOGIX will provide Licensee with the ability to ask technical questions relating to the function of the Software and non-technical questions relating to the Maintenance Services (each, a, 'Question'), to report Errors and to make Requests via email and telephone. b) Maintenance Services will be provided by suitably qualified personnel during the Maintenance Hours. c) Licensee shall make available its Licensee Technical Representatives as deemed necessary by INFOGIX to provide maintenance and support services. 4.2. Error Correction a) INFOGIX will respond to and exercise all commercially reasonable efforts to correct any Error reported by Licensee in accordance with the procedures and the targeted response times set forth in the table attached hereto as Attachment A-1. INFOGIX will reasonably determine the priority classification of any Error. b) INFOGIX shall initiate the efforts set forth in Section 4.2(a) of this Exhibit A above and Attachment A-1 within the time periods corresponding to the priority level of the Error set forth in Attachment A-1, which time period shall begin or continue upon the commencement of Maintenance Hours in the event that an Error is reported to INFOGIX outside of Maintenance Hours, or the expiration of Maintenance Hours interrupts such time period. c) Notwithstanding any other provision herein contained, in the event INFOGIX must rely on the maintenance services of a third-party software provider in order to adequately correct any Error, the time periods prescribed by such third-party provider for responding to such Error shall supersede those set forth herein and shall govern the response of INFOGIX to such Error. 4.3. Software Releases a) During the Maintenance Period, whenever INFOGIX makes a Software Release applicable to the most recent version of the Software in use by Licensee generally available to licensees of INFOGIX that have subscribed to receive Maintenance Services, INFOGIX will provide a copy of such Software Release to Licensee, provided that Licensee is, as of the date of the release of such Software Release, subscribed to receive Maintenance Services and is not in breach of this Exhibit A or any applicable terms or conditions of this Agreement. Upon delivery to Licensee, any Software Release or Fix will be considered 'Software' under this Agreement. The timing, frequency and designation of any release of any Software or Software Release by INFOGIX shall be at the sole discretion of INFOGIX. b) Licensee is responsible for all costs associated with the installation of any Software Release. Upon Licensee's request and Licensee's sole cost and expense, INFOGIX will provide installation assistance services to Licensee, subject to Licensee's payment of Additional Charges. 4.4. Additional Services. Upon the execution of a separate written agreement between INFOGIX and Licensee, INFOGIX shall perform customization, enhancement, consulting, training or other services, as designated in such separate agreement, on such terms and conditions as set forth therein. 4.5. Maintenance Hours and Contact Information. Support is available 24 hours a day Monday - Friday. For more information and contact details please see our Product Support Lifecycle at https://support.infogix.com/hc/en-us/articles/360025885934-Data3Sixty-Analyze-Product-Support-Lifecycle. 5. Exclusions 5.1. Out of Scope. Without limitation, Maintenance Services do not include the provision of services with respect to any Error or Question: a) relating to any version or release of the Software other than the Supported Release; b) in or attributable to any hardware or other equipment and programs used in conjunction with the Software or to any other reason external to the Software; c) resulting from the failure of any hardware; d) resulting from the act or omissions of any third party; or e) reported or submitted other than by a Licensee Technical Representative 5.2. Out of Scope Services. If at, the request of Licensee, INFOGIX agrees to provide any corrective or other services relating to Errors or Questions arising out of any of the exclusions set forth in Section 5.1 of this Exhibit A (once it is confirmed that INFOGIX is under no obligation to do so) INFOGIX will undertake such services as soon as reasonably practicable, subject to Licensee's payment of Additional Charges. In the event that efforts previously undertaken by INFOGIX have been determined to have been caused by any of the exclusions set forth in Section 5.1 of this Exhibit A or any other cause outside of the scope of this Exhibit A, INFOGIX will charge Licensee, and Licensee shall pay to INFOGIX, Additional Charges. 6. Warranty INFOGIX warrants that the Maintenance Service will be performed by competent persons and will be carried out with reasonable care and skill. 7. Ownership The Intellectual Property Rights in all materials developed under this Agreement in connection with the Maintenance Services, including without limitation, all Fixes, will remain the sole and exclusive property of INFOGIX. In the event that the ownership of any such Intellectual Property Rights does not vest, solely and exclusively in INFOGIX, Licensee hereby agrees to assign and expressly and automatically assigns all Intellectual Property Rights in and to such materials to INFOGIX. Licensee shall render all reasonably required assistance to INFOGIX as may reasonably be required for the purpose of preserving or perfecting such rights. 8. Term/Termination 8.1. Renewal. The Maintenance Period shall automatically renew, for successive Maintenance Renewal Periods upon the expiration of the Initial Maintenance Period and each prior Maintenance Renewal Period, unless such renewal shall be cancelled by Licensee in writing no later than ten (10) days prior to the commencement of the applicable Renewal Period. Licensee shall receive an invoice for the Maintenance Fees for each Maintenance Renewal Period no less than thirty (30) days prior to the expiration of the Initial Maintenance Period or then-current Maintenance Renewal Period, as applicable. INFOGIX shall have the right to increase the Maintenance Fees payable for any Maintenance Renewal Period. 8.2. Lapsing of Services. If the Maintenance Fees shall not be paid in full by Licensee on or prior to the commencement of the applicable Maintenance Renewal Period, then the Maintenance Period shall automatically terminate, and the parties' respective obligations and duties pursuant to this Exhibit A shall cease; provided, however, that notwithstanding such termination, Licensee shall remain liable for any outstanding balance of the Maintenance Fees or other costs and expenses and Additional Charges incurred hereunder. Following termination or expiration of the Maintenance Period, Licensee may reinstate Maintenance Services upon its payment to INFOGIX of the (i) then-current applicable Maintenance Fees for the period during which the Maintenance Period had lapsed plus (ii) INFOGIX's then-current reinstatement fee. 8.3. Termination for Convenience. Licensee may terminate the Maintenance Period at any time upon written notice to INFOGIX, provided, however, Licensee shall not be entitled to a refund of the Maintenance Fees or any portion thereof 8.4. Material Breach. Either Party may terminate the Maintenance Period immediately upon written notice to the other party in the event that such other party commits any material breach of any term of this Agreement and fails to cure such breach within thirty (30) days after the receipt of written notice specifying the breach. Termination pursuant to this Section 8.4 shall not relieve Licensee of its obligation to pay any unpaid Fees which accrued prior to the effective date of termination, nor entitle Licensee to any refund of Fees paid, provided, however, that in the event that any Maintenance Renewal Period is terminated by Licensee pursuant to this Section 8.4, INFOGIX shall refund to Licensee the pro-rata portion of Maintenance Fees actually paid by Licensee attributable to the portion of such Maintenance Renewal Period following the effective date of such termination 8.5. Termination by INFOGIX. INFOGIX may terminate the Maintenance Period immediately upon written notice in the event that Licensee fails to pay any undisputed sums becoming due to INFOGIX pursuant to this Exhibit A, and fails to remedy such failure within ten (10) days following the date that such Maintenance Fees or sums are due and payable. 8.6. End of Life. The Software licensed hereunder is subject to INFOGIX's published End of Life Policy. ATTACHMENT A-1 RESPONSE TIMES AND ESCALATION For Support Service Level Agreements please refer to the Technical Support section of the Lavastorm Support Portal at https://support.infogix.com/hc/en-us/articles/360025885934-Data3Sixty-Analyze-Product-Support-Lifecycle. EXHIBIT B ORACLE SOFTWARE TERMS The following additional terms apply to the Oracle programs contained within the Software (the 'Programs'): Restrictions; Ownership Licensee may not: (a) remove or modify any Program markings or any notice of Oracle's or a licensor's proprietary rights; (b) use the Programs to provide third party training; (c) assign this Agreement or distribute, give, or transfer the Programs or an interest in them to any third party, except as expressly permitted in this Agreement; (d) cause or permit reverse engineering (unless required by law for interoperability), disassembly or decompilation of the Programs; (e) disclose results of any Program benchmark tests without Oracle's prior consent; or (f) redistribute the Programs. The Programs may contain source code that, unless expressly licensed in this Agreement for other purposes (for example, licensed under an open source license), is provided solely for reference purposes pursuant to the terms of this Agreement and may not be modified. Oracle or its licensors retain all ownership and intellectual property rights to the Programs. All rights not expressly granted in this Agreement are reserved by Oracle. If Licensee want to use the Programs or Licensee application for any purpose other than as expressly permitted under this Agreement, Licensee must obtain from Oracle or an Oracle reseller a valid Programs license under a separate agreement permitting such use. However, Licensee acknowledges that the Programs may not be intended for production use and/or Oracle may not make a version of the Programs available for production or other purposes; any development or other work Licensee undertake with the Programs is at Licensee's sole risk. Export Controls Licensee confirms: (a) Licensee will not download, provide, make available or otherwise export or re-export the Programs, directly or indirectly, to countries prohibited by applicable laws and regulations nor to citizens, nationals or residents of those countries; (b) Licensee is not listed on the United States Department of Treasury lists of Specially Designated Nationals and Blocked Persons, Specially Designated Terrorists, and Specially Designated Narcotic Traffickers, nor are Licensee listed on the United States Department of Commerce Table of Denial Orders; (c) Licensee will not download or otherwise export or re-export the Programs, directly or indirectly, to persons on the above mentioned lists; and (d) Licensee will not use the Programs for, and will not allow the Programs to be used for, any purposes prohibited by applicable law, including, without limitation, for the development, design, manufacture or production of nuclear, chemical or biological weapons of mass destruction. Disclaimer of Warranties; Limitation of Liability THE PROGRAMS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. ORACLE FURTHER DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT . IN NO EVENT WILL ORACLE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, INCURRED BY LICENSEE OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF ORACLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ORACLE'S ENTIRE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED ONE THOUSAND DOLLARS (U.S. $1,000). No Technical Support Oracle's technical support organization will not provide technical support, phone support, or updates to Licensee for the Programs provided under this Agreement. Relationship Between the Parties Oracle is an independent contractor, and the parties agree that no partnership, joint venture, or agency relationship exists between them. Oracle is a third-party beneficiary of this Agreement. Nothing in this agreement shall be construed to limit either party's right to independently develop or distribute software that is functionally similar to the other party's products, so long as proprietary information of the other party is not included in such software.