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SCIENOMICS END USER LICENSE AGREEMENT
Last updated: 12 April 2022
THE TERMS OF THIS END USER LICENSE AGREEMENT (“EULA”) GOVERN YOUR USE OF THE SOFTWARE.
BY DOWNLOADING, DEPLOYING, OR USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MUST NOT DOWNLOAD, DEPLOY, OR USE THE SOFTWARE, AND YOU MUST DELETE THE UNUSED SOFTWARE.
EVALUATION LICENSE. If you license the Software for evaluation purposes (an “Evaluation License”), your use of the Software is only permitted for a period of fifteen (15) days (unless we specify otherwise), and you may not use the Software with production data. Notwithstanding any other provision in this EULA, an Evaluation License of the Software is provided “AS IS” without indemnification, support, or warranty of any kind, express or implied. The Evaluation License is offered to you with no need to have any Order issued by you to us.
1. LICENSE GRANT.
1.1. General License Grant. We grant you a non-exclusive, non-transferable license to deploy the Software within the Territory and to use the Software and the Documentation during the term of the license, solely for your internal business operations. Unless otherwise set forth in the Order, licenses granted to you will be for use of object code only and will commence on Delivery.
1.2. Users. Under the License granted to you in Section 1.1 (General License Grant), you may permit your Users to use the Software. You will be responsible for your Users’ compliance with this EULA, and any breach of this EULA by a User will be deemed to be a breach by you.
2. RESTRICTIONS; OWNERSHIP.
2.1. License Restrictions. Without our prior written consent, you must not, and must not allow any third party to: (a) use the Software in an application services provider, service bureau, hosted IT services, or similar capacity for third parties; (b) make available the Software in any form to any third parties, except as specified in Section 1.2 (Users); (c) transfer or sublicense the Software or Documentation to an Affiliate or any third party, except as expressly permitted in Section 12.1 (Transfers; Assignment); (d) use the Software in conflict with the terms and restrictions of the Software’s licensing model and other requirements and/or the applicable Order; (e) except to the extent permitted by applicable mandatory law, modify, translate, enhance, or create derivative works from the Software, or reverse engineer, decompile, or otherwise attempt to derive source code from the Software; (f) remove any copyright or other proprietary notices on or in any copies of the Software; or (g) violate or circumvent any technological restrictions within the Software or specified in this EULA, such as via software or services.
2.2. Ownership. The Software and Documentation (including all copies and portions), all improvements, enhancements, modifications and derivative works of the Software or Documentation, and all Intellectual Property Rights in the Software and Documentation, are and will remain the sole and exclusive property of SCIENOMICS and its licensors. Your rights to deploy and use the Software and Documentation are limited to those expressly granted in this EULA and any applicable Order. No other rights are implied with respect to the Software, Documentation, or any related Intellectual Property Rights. You are not authorized to use (and must not permit any third party to use) the Software or Documentation except as expressly authorized by this EULA or the applicable Order. We reserve all rights not expressly granted to you. We do not transfer any ownership rights in any Software or Documentation.
3. ORDER. Your Order is subject to this EULA. No Orders are binding on us until we accept them, and all Orders must expressly incorporate this EULA. Orders for Software are deemed accepted upon Delivery of the Software included in the Order. Purchase orders issued to us do not have to be signed by you to be valid and enforceable unless required by applicable law. All Orders are non-refundable and non-cancellable except as expressly provided in this EULA. All Orders are exclusive of local, state, or federal use, excise, personal property, sales or other similar taxes or duties which may be imposed as a result of the transactions subsequent to the Order. You shall be responsible for all such taxes and duties, except for taxes on SCIENOMICS’ net income. Your Order concerns only the Current Version of the Software and
4. RECORDS AND AUDIT. You must maintain accurate records of your use of the Software sufficient to show compliance with the terms of this EULA. We have the right to audit those records and your use of the Software, at our own expense, to confirm compliance with the terms of this EULA. That audit is subject to reasonable prior notice and will not unreasonably interfere with your business activities. We may conduct no more than one (1) audit in any twelve (12) month period, and only during normal business hours. Neither we nor any third-party auditor shall have physical access to your computing devices in connection with any such audit without your prior written consent. You must reasonably cooperate with us and any third-party auditor. We reserve the right to seek recovery of any underpayments revealed by the audit. No payment obligation shall arise on your behalf until the conclusion of the dispute process. If an audit necessitates access to classified information, then the audit will be conducted by auditor(s) possessing a personal security clearance (“PCL”) at the appropriate level. In those cases, SCIENOMICS and any third-party auditor will disclose Classified Information only to person(s) who both possess a PCL and have a need to know.
5. SUPPORT SERVICES. Support services for the Software (“Support Services”) is only for Software installed on computer platforms that SCIENOMICS commercially supports. Support Services include (a) commercially reasonable telephone, web-based and electronic mail assistance (firstname.lastname@example.org) to assist you in resolving problems with the use of the Software, including the installation (exclusively on hardware and operating systems supported by SCIENOMICS), verification, diagnosis, and correction of material errors and defects in the Software; (b) the right to use updates, upgrades or extensions or enhancements to the Software to the Software and related documentation that are made by SCIENOMICS during the applicable Support Services period as specified in the Order. In the case of a Subscription Software the Support Services period is the same as the Subscription Term. In the case of a Perpetual License the first year Support Services are included in the offer. Support Services for subsequent years can be purchased separately on the anniversary date of the initial Order. Additional charges apply to reinstate Support Services for Software that has not been under continuous Support Services since the initial Order. In the case of Perpetual License your Perpetual License is updated to the Current Version of the Software. In all cases Support Services fees are payable in advance. Support Services do not include new products sold separately by SCIENOMICS, and such products must be separately licensed by you. Support Services cover are provided for the Current Version of the Software and for all other versions released within the last twelve (12) months prior to the Current Version of the Software.
6.1. Software Warranty: Duration and Remedy. We warrant that the Software will, for a period of twelve (12) months following notice of availability for electronic download or delivery (“Warranty Period”), substantially conform to the applicable Documentation, provided that the Software: (a) has been properly installed and used at all times in accordance with the applicable Documentation; and (b) has not been modified or added to by persons other than us or our authorized representative. We will, at our own expense and as our sole obligation and your exclusive remedy for any breach of this warranty, either replace the Software or correct any reproducible error in the Software reported by you in writing during the Warranty Period. If we determine that we are unable to correct the error or replace the Software, we will refund the fees paid for that Software, and the License for that Software will terminate.
6.2. Disclaimer of Warranty. OTHER THAN THE LIMITED WARRANTY IN SECTION 6.1, TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE, FOR OURSELVES AND ON BEHALF OF OUR SUPPLIERS, DISCLAIM ALL WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, RELATING TO THE SOFTWARE AND DOCUMENTATION. NEITHER WE NOR OUR SUPPLIERS WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED, THAT IT WILL BE FREE FROM DEFECTS OR ERRORS, OR THAT IT WILL MEET (OR IS DESIGNED TO MEET) YOUR BUSINESS REQUIREMENTS.
7. INTELLECTUAL PROPERTY INDEMNIFICATION.
7.1. Defense and Indemnification. Subject to the remainder of this Section 7, we will: (a) defend you against any Infringement Claim; and (b) indemnify you from all fines, damages, and costs finally awarded against you by a court of competent jurisdiction or a government agency, or agreed to in a settlement, with regard to any Infringement Claim. These obligations are applicable only if you: (i) provide us with notice of the Infringement Claim within a reasonable period after learning of the claim (provided that any delay in providing the notice will relieve us of our indemnification obligations only to the extent that the delay prejudices us); (ii) allow us sole control over the defense and settlement of the Infringement Claim; and (iii) reasonably cooperate in response to our requests for assistance with regard to the Infringement Claim. We will not, without your prior written consent, which may not be unreasonably withheld, conditioned, or delayed, enter into any settlement of any Infringement Claim that obligates you to admit any liability or to pay any unreimbursed amounts to the claimant. You may not settle or compromise any Infringement Claim without our prior written consent.
7.2. Remedies. If the Software becomes, or in our opinion is likely to become, the subject of an Infringement Claim, we will, at our option and expense: (a) procure the rights necessary for you to keep using the Software; or (b) modify or replace the Software to make it non-infringing. If we determine that the foregoing alternatives are not reasonably available, then you agree to terminate the License to the affected Software and discontinue the related Support Services upon our written request, and, upon your certified deletion of the affected Software, we will refund: (i) for a Perpetual License, the fees paid for the License to the affected Software, less straight-line depreciation over a three (3) year useful life beginning on the date of Delivery of the Software and any unused, prepaid fees for Support Services, or (ii) for Subscription Software, any prepaid fees, prorated for the remaining portion of the then-current Subscription Term. Nothing in this Section 7.2 (Remedies) will limit our obligations under Section 7.1 (Defense and Indemnification), provided that you replace the allegedly infringing Software upon our making alternate Software available to you, or that you discontinue using the allegedly infringing Software upon receiving SCIENOMICS’s written request to terminate the affected License. In the event of continued use, you agree to notify us in writing and undertake at your expense the defense of any Infringement Claim against you, and we shall have no further indemnification obligation; however, we may participate at our own expense in the defense of any Infringement Claim if the claim is against us.
7.3. Exclusions. We will have no obligation under this Section 7 or otherwise with respect to any Infringement Claim based on: (a) combination of the Software with non-SCIENOMICS products or content; (b) use for a purpose or in a manner for which the Software was not designed; (c) use of any older version of the Software when use of a newer version would have avoided the infringement; (d) any modification to the Software other than those made by us or with our express written approval; (e) any claim that relates to open source software or freeware technology or any derivative or other adaptations thereof that is not provided by us with the Software; or (f) any Software provided on a no charge, beta, or evaluation basis.
7.4. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THIS SECTION 7 STATES YOUR SOLE AND EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY FOR ANY INFRINGEMENT CLAIMS.
8. LIMITATION OF LIABILITY.
8.1. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, LOSS OF CONTENT OR DATA FOR ANY REASON (INCLUDING POWER OUTAGES, SYSTEM FAILURES, OR OTHER INTERRUPTIONS), LOSS OF REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. THIS LIMITATION WILL APPLY REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE FOREGOING LIMITATION MAY NOT APPLY.
8.2. Cap on Monetary Liability. OUR LIABILITY FOR ANY CLAIM UNDER THIS EULA WILL NOT EXCEED THE TOTAL LICENSE FEES YOU PAID FOR THE SOFTWARE AND REPORTED IN THE LATEST ORDER.
8.3. Exclusions. THE LIMITATION OF LIABILITY IN SECTIONS 8.1 AND 8.2 WILL NOT APPLY TO (i) OUR INDEMNIFICATION OBLIGATIONS UNDER SECTION 7 OF THIS EULA OR (ii) ANY LIABILITY WHICH MAY NOT BE EXCLUDED BY LAW.
8.4. Further Limitations. Our suppliers have no liability of any kind under this EULA. You may not bring a claim directly against any of them under this EULA. Our liability with respect to any third-party software provided with the Software is subject to this Section 8. You may not bring a claim under this EULA more than twelve (12) months after the cause of action arises.
9.1. EULA Term. The term of this EULA begins on Delivery of the Software and continues until this EULA is terminated in accordance with this Section 9.
9.2. Termination for Cause. We may terminate this EULA effective immediately upon written notice to you if: (a) any payment due under this EULA is not received within ten (10) days after receiving our written notice that payment is past due; (b) you materially breach any other provision of this EULA and fail to cure within thirty (30) days after receipt of our written notice of the breach; (c) you materially breach any provision of this EULA in a manner that cannot be cured; or (d) you terminate or suspend your business.
9.3. Termination for Insolvency. We may terminate this EULA effective immediately upon written notice to you if you become insolvent, admit in writing your inability to pay your debts as they mature, make an assignment for the benefit of creditors, become subject to control of a trustee, receiver or similar authority, or become subject to any bankruptcy or insolvency proceeding.
9.4. Effect of Termination. Upon termination of this EULA: (a) all Licenses to the Software granted to you under this EULA will immediately end; (b) you must stop all use of the Software and return to us or certify destruction of the Software and License Files (including copies), and (c) you must return or, if we request, destroy, any of our or our suppliers’ Confidential Information in your possession or under your control (other than information that must be retained pursuant to law). Any provision that, by its nature and context is intended to survive termination or expiration of the EULA, will survive, including Sections 2 (Restrictions; Ownership), 4 (Records and Audit), 6.2 (Software Disclaimer of Warranty), 8 (Limitation of Liability), 9 (Termination), 10 (Confidential Information), 12 (General), 13 (Definitions), and 14 (Terms Applicable to U.S. Federal End Users). Except as otherwise expressly provided in this EULA or as required by applicable law or regulation, termination of this EULA will not entitle you to any refunds, credits, or exchanges.
10. CONFIDENTIAL INFORMATION.
10.1. Protection. Either party may use Confidential Information of the other party disclosed to it in connection with this EULA to exercise its rights and perform its obligations under this EULA or as otherwise permitted by this EULA. The Recipient will disclose the Discloser’s Confidential Information only to the Recipient’s employees or contractors who have a need to know the Confidential Information for purposes of this EULA and who are under a duty of confidentiality no less restrictive than as specified in this Section 10. Recipient will protect the Discloser’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Recipient protects its own confidential or proprietary information of a similar nature but with no less than reasonable care.
10.2. Exceptions. The Recipient’s obligations under Section 10.1 with respect to any of the Discloser’s Confidential Information will terminate if the Recipient can demonstrate that the information: (a) was already rightfully known to the Recipient at the time of disclosure by the Discloser without any obligation of confidentiality; (b) was disclosed to the Recipient by a third party who had the right to make that disclosure without any confidentiality restrictions; (c) is, or through no fault of the Recipient has become, generally available to the public; or (d) was independently developed by Recipient without access to or use of Discloser’s Confidential Information. In addition, the Recipient will be allowed to disclose Confidential Information to the extent that disclosure is required by law or by order of a court or similar judicial or administrative body of competent jurisdiction, provided that the Recipient notifies the Discloser of the required disclosure promptly and in writing and cooperates with the Discloser, at the Discloser’s request and expense, in any lawful action to contest or limit the scope of the required disclosure.
10.3. Injunctive Relief. Nothing in this EULA limits either party’s ability to seek equitable relief.
12.1. Transfers; Assignment. Except to the extent transfer may not legally be restricted you must not assign this EULA, any Order, or any right or obligation pursuant to this EULA, or delegate any performance under this EULA, without our prior written consent, which consent will not be unreasonably withheld, conditioned, or delayed. Any other attempted assignment or transfer by you will be void. We may use our Affiliates or other suppliers to provide services to you, provided that we remain responsible to you for the performance of the services.
12.2. Notices. Any notice by us to you under this EULA will be given: (a) by email to the email address associated with your account; or (b) by regular mail to the address you have provided. You must direct legal notices or other correspondence to SCIENOMICS SAS, 16, rue de l’Arcade, 75008 Paris, France: Legal Department.
12.3. Waiver. Waiver of a breach of any provision of this EULA will not constitute a waiver of any later breach of that provision, or waiver of a breach of any other provision.
12.4. Severability. If any part of this EULA is held to be invalid or unenforceable, all remaining provisions will remain in force to the extent feasible to effectuate the intent of the parties.
12.5. Compliance with Laws. Each party must comply with all laws applicable to the actions contemplated by this EULA.
12.6. Export Control; Government Regulations. You acknowledge that the Software is provided subject to the French Export Regulations, may be subject to the export control laws of the applicable territory, and that diversion contrary to applicable export control laws is prohibited. You represent that (1) you are not, and are not acting on behalf of any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which France has prohibited export transactions and (2) you will not permit the Software to be used for, any purposes prohibited by law, including, any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons. The Software and Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”. Any use, modification, reproduction, release, performing, displaying or disclosing of the Software and Documentation shall be governed solely by the terms and conditions of this EULA.
12.7. Construction. The headings of sections of this EULA are for convenience and are not to be used in interpreting this EULA. As used in this EULA, the word “including” means “including but not limited to”.
12.8. Language. This EULA is in English for convenience, and the English language version governs any conflict with a translation into any other language.
12.9. Governing Law. If your billing address is in the United States, this EULA is governed by the laws of the State of Georgia and the federal laws of the United States. If your billing address is outside the United States, this EULA is governed by the laws of France. Conflict of law rules are expressly disclaimed. The U.N. Convention on Contracts for the International Sale of Goods does not apply.
12.10. Third-Party Rights. Other than as expressly provided in this EULA, this EULA does not create any rights for any person who is not a party to it, and only persons who are parties to this EULA may enforce any of its terms or rely on any exclusion or limitation contained in it.
12.11. Order of Precedence. In the event of conflict or inconsistency among this EULA and the Order the EULA supersedes any conflicting or additional terms and conditions of any purchase order, acknowledgement or confirmation, or other document issued by you for or regarding the Software.
12.12. Entire Agreement. This EULA, together with all accepted Orders contains the entire agreement of the parties with respect to the subject matter of this EULA and supersedes all previous or contemporaneous communications, representations, proposals, commitments, understandings and agreements, whether written or oral, between the parties regarding its subject matter. This EULA may be amended only in a writing signed by authorized representatives of both parties.
13.1. “Affiliate” means, with respect to a party at a given time, an entity that is directly or indirectly controlled by, is under common control with, or controls that party, where “control” means an ownership, voting, or similar interest representing fifty percent (50%) or more of the total interests outstanding of that entity.
13.2. “Confidential Information” means information or materials provided by one party (“Discloser”) to the other party (“Recipient”) which is in tangible form and labelled “confidential” or the like, or information which a reasonable person knew or should have known to be confidential. The following information is considered our Confidential Information whether or not marked or identified as such: (a) License Files; (b) information regarding our pricing, product roadmaps or strategic marketing plans; and (c) non-public materials relating to the Software.
13.3. “Current Version” means the version of the Software commercially available on the day your Order is issued by you to us.
13.4. “Delivery” means either delivery of the physical media (if applicable) or the date you are notified of availability for electronic download.
13.5. “Documentation” means that documentation that we generally provide with the Software, as revised by us from time to time, and which may include end user manuals, operation instructions, installation guides, release notes, and on-line help files regarding the use of the Software.
13.6. “Infringement Claim” means any claim by a third party that the Software infringes any patent, trademark or copyright of that third party, or misappropriates a trade secret (but only to the extent that the misappropriation is not a result of your actions) under the laws of: (a) the United States; (b) Canada; (c) the European Economic Area; (d) the United Kingdom; (e) Australia; (f) New Zealand; (g) Japan; or (h) the People’s Republic of China, to the extent that those countries are part of the Territory for the License.
13.7. “Intellectual Property Rights” means all worldwide intellectual property rights, including copyrights, trademarks, service marks, trade secrets, know how, inventions, patents, patent applications, moral rights, and all other proprietary rights, whether registered or unregistered.
13.8. “License” means a license granted under Section 1.1 (General License Grant).
13.9. “License File” means a file that enables you to activate the Software.
13.10. “License Term” means the duration of a License as specified in the Order.
13.11. “Order” means a purchase order, enterprise license agreement, or other ordering document for Software governed by this EULA, issued by you to us, based on our commercial offer made to you, and is accepted by us as set forth in Section 3 (Order).
13.12. “Perpetual License” means a License to the Current Version of the Software with a term of ninety-nine (99) years.
13.13. “Software” means the Current Version of the SCIENOMICS computer programs listed on our commercial price list to which you acquire a license under an Order.
13.14. “Subscription Software” means Software that is licensed for a specific term (“Subscription Term”).
13.15. “Territory” means the country or countries in which you have been invoiced. If the Territory for your Software includes any European Economic Area member states or the United Kingdom, you may deploy that Software throughout the European Economic Area and the United Kingdom.
13.16. “U.S. Federal End User” means any of the following agencies or establishments of the U.S. Federal Government: (a) executive departments as defined by 5 U.S.C. 101, (b) military departments as defined by 5 U.S.C. 102, (c) government corporations as defined by 5 U.S.C. 103, (d) independent establishments as defined by 5 U.S.C. 104, and (e) any establishment in the legislative or judicial branch of the U.S. Federal Government (except the Senate, the House of Representatives, the Architect of the Capitol, and any activities under the Architect’s direction).
13.17. “User” means an employee or contractor that you have authorized to use the Software as permitted under this EULA.
13.18. “SCIENOMICS”, “We”, or “Us” means SCIENOMICS SAS, a company organized and existing under the law of France, if the billing address for your Order is not in the United States otherwise it means SCIENOMIC/S LLC a company organized and existing under the law of Georgia.
13.19. "You" means you individually or the legal entity that you represent. If you are entering into the EULA for an entity, you represent that you have the authority to bind that entity.
14. TERMS APPLICABLE TO U.S. FEDERAL END USERS. If you are a U.S. Federal End User, the following terms and conditions supersede or modify the referenced provisions of this EULA.
14.1. Replace the second paragraph of the preamble with the following:
“BY PURCHASING THE SOFTWARE UNDER A CONTRACT OR ORDER THAT INCORPORATES THIS EULA, YOU (THE U.S. FEDERAL END USER) AGREE TO BE BOUND BY THE TERMS OF THIS EULA.”
14.2. Replace the first sentence of Section 1.1 (“General License Grant”) with the following:
“We grant you a non-exclusive, non-transferable (except as set forth in Section 12.1 (Transfers; Assignment)), commercial item license to deploy the Software within the Territory and to use the Software and the Documentation during the term of the license, solely for your internal business operations.”
14.3. Replace Section 4 (“Records and Audit”) with the following:
“You must maintain accurate records of your use of the Software sufficient to show compliance with the terms of this EULA. We have the right to audit those records and your use of the Software, at our own expense, to confirm compliance with the terms of this EULA. That audit is subject to reasonable prior notice and will not unreasonably interfere with your business activities. We may conduct no more than one (1) audit in any twelve (12) month period, and only during normal business hours. Neither we nor any third-party auditor shall have physical access to your computing devices in connection with any such audit without your prior written consent. You must reasonably cooperate with us and any third-party auditor. We reserve the right to seek recovery of any underpayments revealed by the audit in accordance with 41 U.S.C. chapter 71 (Contract Disputes) and FAR 52.233-1 (Disputes) or other applicable agency supplement. No payment obligation shall arise on your behalf until the conclusion of the dispute process. If an audit necessitates access to classified information, as that term is defined in the National Industrial Security Program Operating Manual (NISPOM), then the audit will be conducted by auditor(s) possessing a personal security clearance as defined in the NISPOM (“PCL”) at the appropriate level. In those cases, SCIENOMICS and any third-party auditor will disclose Classified Information only to person(s) who both possess a PCL and have a need to know.”
14.4. Replace Section 7.1 (“Defense and Indemnification”) with the following:
“Subject to the remainder of this Section 7 and 28 U.S.C. 516, we will (a) defend you against an Infringement Claim; and (b) indemnify you from costs and damages finally awarded against you by a court of competent jurisdiction or a government agency or agreed to in a settlement approved by us. These obligations are applicable only if you: (i) provide us with notice of any Infringement Claim within a reasonable period after learning of the claim (provided that any delay in providing the notice will relieve us of our indemnification obligations only to the extent that the delay prejudices us); (ii) allow us the opportunity to participate in the claim’s defense and settlement as provided in applicable laws, rules, or regulations; and (iii) reasonably cooperate in response to our requests for assistance with regard to the Infringement Claim. You must make every effort to permit us to participate fully in the defense or settlement of any Infringement Claim; however, we acknowledge that such participation will be under the control of the U.S. Department of Justice.
14.5. Replace Section 7.2 (“Remedies”) with the following:
“If the Software becomes, or in our opinion is likely to become, the subject of an Infringement Claim, we will, at our option and expense: (a) procure the rights necessary for you to keep using the Software; or (b) modify or replace the Software to make it non-infringing. If we determine that the foregoing alternatives are not reasonably available, then you agree to terminate the License to the affected Software and discontinue the related Support Services upon our written request, and, upon your certified deletion of the affected Software, we will refund: (i) for a Perpetual License, the fees paid for the License to the affected Software, less straight-line depreciation over a three (3) year useful life beginning on the date of Delivery of the Software and any unused, prepaid fees for Support Services, or (ii) for Subscription Software, any prepaid fees, prorated for the remaining portion of the then-current Subscription Term. Nothing in this Section 7.2 (Remedies) will limit our obligations under Section 7.1 (Defense and Indemnification), provided that you replace the allegedly infringing Software upon our making alternate Software available to you, or that you discontinue using the allegedly infringing Software upon receiving SCIENOMICS’s written request to terminate the affected License. The foregoing is subject to the U.S. Federal Government’s right to require continued use of the Software pursuant to 28 U.S.C. 1498. In the event of such continued use, you agree to notify us in writing and undertake at your expense the defense of any Infringement Claim against you, and we shall have no further indemnification obligation; however, we may participate at our own expense in the defense of any Infringement Claim if the claim is against us.
14.6. Replace the last sentence of Section 8.4 (“Further Limitations”) with the following:
“You may not bring a claim under this EULA more than twelve (12) months after the cause of action arises or such longer period as is mandated by 41 U.S.C. chapter 71 (Contract Disputes). Nothing in this Section 8 will impair the U.S. Federal Government’s right to recover for fraud or crimes arising out of this EULA as permitted under any applicable federal fraud statute, including the False Claims Act (31 U.S.C. 3729-3733).”
14.7. Add the following to the beginning of Section 9.2 (“Termination for Cause”):
“Subject to, and to the extent not prohibited by, 41 U.S.C. chapter 71 (Contract Disputes) and FAR 52.233-1 (Disputes),”
14.8. Replace Section 9.3 (“Termination for Insolvency”) with the following:
“9.3. Termination by You. You may terminate this EULA in accordance with FAR 52.212-4(l) or FAR 52.212-4(m), if applicable.”
14.9. Replace Section 12.9 (“Governing Law”) with the following:
“This EULA is governed by the applicable federal laws of the United States. The U.N. Convention on Contracts for the International Sale of Goods does not apply.”
14.10. Replace Section 13.1 (“Affiliate”) with “Reserved.”
14.11. Replace Section 13.12 (“Order”) with the following:
“‘Order’ means a purchase order, enterprise license agreement, or other ordering document issued by you to us or to your VMware channel partner that references and incorporates this EULA and is accepted by us as set forth in Section 3 (Order).”
14.12. Replace Section 13.16 (“Territory”) with the following:
“‘Territory’ means the United States of America, including U.S. Federal Government Facilities located outside of the United States of America. For purposes of this section, “U.S. Federal Government Facilities” means buildings that are both 100% owned and controlled by the U.S. Federal Government and includes land, bases, installations, vessels, craft, and ships that are both 100% owned and controlled by the U.S. Federal Government. In the foregoing sentence, “owned” also includes leased throughout the entire term of the Order.”
14.13. Replace Section 13.19 (“SCIENOMICS,” “We,” or “Us”) with the following:
“‘SCIENOMICS,’ ‘We,’ or ‘Us’ means SCIENOMICS LLC, a Georgia corporation.”