Facility Online ManagerTM (FOM) Software

Terms of Service and Software License Agreement

These license terms establish a binding agreement between FOM Networks (hereinafter referred to as "Licensor") and you (hereinafter referred to as "Customer" or "Licensee"). By clicking on the "accept" button and downloading the Facility Online Manager™ software, you agree to be bound by the terms and conditions of this Terms and Service and Software License Agreement (hereinafter referred to as "Agreement").

This Agreement incorporates the terms and conditions of the Quotation previously provided to you by FOM Networks, which identified the type of license you sought, the fees for your initial license, your annual renewal fee, and your cost for customization, installation and training services (hereinafter, "Quotation"). The terms and conditions set forth in the Quotation are hereby incorporated herein and made a part hereof into this Agreement.

BY DOWNLOADING AND/OR USING THE LICENSED MATERIALS, YOU ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THEM, DO NOT DOWNLOAD OR USE THE LICENSED MATERIALS.

1. OVERVIEW.

a. Definitions.

i. Licensed Software. Licensed Software (also known as Server Software) shall mean one copy of the Facility Online Manager™ program, described in Exhibit A, including server software. The Licensed Software includes standard software configuration for the Facility Online Manager™ program, as well as all versions of the software in which representatives of FOM Networks, Customer, or third parties have customized the standard configuration, or changed, modified or altered the source code to the standard Facility Online Manager™ program.

ii. Licensed Materials. Licensed Materials shall mean one (1) copy of the Licensed Software, including executable object code, any media on which you received the software (if any), and technical User Documentation for the Licensed Software that FOM Networks delivers to you to aid in your use of the software. This term also applies to any other updates, supplements, internet-based services and support services for the Licensed Software.

iii. Enterprise. An Enterprise is an Institution or a Company that operates as an individual business organization. An Enterprise may have many core facilities, research groups, and laboratories.

iv. Laboratory. A Laboratory is a separate research group that is directed by single Principal Investigator, or a core facility that, while it is a component of a larger Enterprise, conducts its own internal and external business operations.

v. Server. A Server is a computerized system capable of running the Server Software. There are two types of Servers, physical and virtual. A Physical Server may be a hardware partition or blade owned by the Customer. A Virtual Server may be hosted by third party and controlled by the Customer.

b. License Types. There are four (4) types of licenses offered by Licensor. In agreeing to the terms and conditions of this Agreement, you must acknowledge the type of license you have purchased, and agree to the specific terms and conditions relating to that specific license type. The four (4) licenses offered by Licensor include:

i. Enterprise License. An Enterprise License is issued to a single Enterprise. Customer may install Licensed Software on one Server only to manage unlimited number of facilities within the same Enterprise, subject to the terms and conditions set forth in Section 3 relating to the Enterprise License, and all other applicable sections of this Agreement;

ii. Standard License. A Standard License is issued to a single Laboratory, and may be installed on one Server only, subject to the terms and conditions set forth in Section 4 relating to the Standard License, and all other applicable sections of this Agreement. Customer must obtain a separate License for each Laboratory where Customer wishes to download or use the Licensed Software;

iii. Basic License. A Basic License is issued to a single Laboratory, and may be installed on one Server only, subject to the terms and conditions set forth in Section 5 relating to the Basic License, and all other applicable sections of this Agreement. Customer must obtain a separate License for each Laboratory where Customer wishes to download or use the Licensed Software. Basic License offers less features than Standard License;

iv. Online Service License. An Online Service License is issued to a single Laboratory. Customer use is limited to internet services ("Online Service") provided by FOM Networks, subject to the terms and conditions set forth in Section 6 relating to the Online Service License, and all other applicable sections of this Agreement. Customer must obtain a separate License for each Laboratory where Customer wishes to download or use the Licensed Software.

2. LIMITED SCOPE LICENSE.

a. Scope of License Defined. Subject to the terms and conditions of this Agreement, and in particular subject to the limitations on the different license types as set forth in Sections 3,4, 5 and 6 of this Agreement, upon acceptance of the full terms and conditions relating to this Agreement, Licensor hereby grants to Licensee for the term of this agreement, a limited, personal, revocable, non-exclusive, non-assignable and non-transferable right and license to use and modify the Licensed Materials in the Field of Use for the following Licensable Activities only (hereinafter "the License Grant"):

i. Internal Use of the executable object code of the Licensed Software and the Licensed Materials;

ii. Creation of up to three (3) copies of the Licensed Materials, solely for backup purposes but for no other purpose. When creating backup copies, Licensee may not remove, obscure, or deface any proprietary legend on the Licensed Materials relating to Proprietor's rights, or regarding any intellectual property rights.

b. All Other Rights Reserved to Licensor. Facility Online Manager™ is licensed under this Agreement, not sold. This Agreement only gives you limited rights to use the Licensed Software. FOM Networks reserves all other rights. Apart from the License Grant enumerated above, Licensor does not grant to Customer any ownership rights, title, interest, or security interest in the Licensed Materials, nor does Licensor grant to Customer any right to engage in any other activity involving or affecting the Licensed Materials or their use. No license under any patents, copyrights, trademarks, trade secrets or any other intellectual property rights, express or implied, is granted by Licensor to Customer under this Agreement.

c. Customer Obligations Under the Limited License. In addition to taking all precautions available to ensure compliance with the Scope of the License in this Section, and all other Terms and Conditions in this Agreement, Customer agrees and warrants that it shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer's use of the Licensed Software, Licensed Materials, and/or Online Service, including those related to data privacy, international communications, and the transmission of technical or personal data. Customer shall not, nor shall Customer allow its employees, agents, affiliates or any third parties who are allowed access to the Licensed Materials, to do any of the following:

i. publish the Licensed Materials for use or copying by third parties or others outside the Field of Use;

ii. access, copy or modify the source code for the Licensed Software;

iii. work around any technical limitations in the software;

iv. translate, reverse engineer, decompile, recompile, disassemble, update or modify all or any part of the Licensed Materials;

v. merge the Licensed Software into any other software;

vi. make more copies of the Licensed Materials than specified in this Agreement;

vii. rent, lease, lend, or resale the Licensed Materials; or

viii. use the Licensed Software for commercial software hosting services.

3. TERMS SPECIFIC TO THE ENTERPRISE LICENSE TYPE.

a. Field of Use. The Field of Use for an Enterprise License shall extend to one (1) single Licensee-owned computer server, and shall allow for the use of Licensed Materials by Licensee solely for research purposes and non-commercial use, strictly to support operation and facilities internal to and under control of the Customer's Enterprise. The Enterprise License allows use of the Licensed Software at any of the Enterprise's facilities, research groups or laboratories, including processing on multiple workstations and on multiple Servers, so long as they are all within the Field of Use.

b. Installation of Software. With an Enterprise License, you may install one (1) copy of the Licensed Software on one (1) Server within the Customer's Enterprise and may be used to manage unlimited number of facilities, so long as they are within the Field of Use. The instruments or resources managed by the Licensed Software are limited to the licensed Enterprise only. FOM Networks provides detailed instructions for self-installation in the User Manual.

c. Customization, Installation Service, and Training. In the event Customer desires further customization, installation service, or training of the Licensed Software, Customer will be charged the hourly rate for such services, as set forth in the Quotation previously provided to Customer, the terms and conditions of which are incorporated herein as part of this Agreement.

d. Initial License Fee. In consideration for the License Grant to Customer, as set forth in Section 2(a) under this Agreement, Customer shall pay to Licensor the Initial License Fee, as set forth in the Quotation previously provided to Customer, the terms and conditions of which are incorporated herein as part of this Agreement. Upon payment of the Initial License Fee, Customer shall be granted a one (1) year license to the Licensed Software.

e. Extensions of License Term. The License Term will be automatically extended for an additional period of one (1) year, and shall be renewed each year thereafter for an additional period of one (1) year, absent notice of non-extension as provided herein. Each extension shall require payment of an Annual License Renewal Fee, at the then-existing renewal fee in effect for FOM Networks. Either Party may decline to extend the License Term for any reason or no reason by providing the other Party with at least 60 days prior written notice of nonextension.

f. Telephone Support. With paid Initial License and Annual License Renewal, FOM Networks provides twelve (12) cumulative hours per year telephone support free of charge. Should total support hours extends twelve (12) hours, Customer shall pay the hourly rate for Customization, Installation and Training services, as set forth in the Quotation previously provided to Customer, the terms and conditions of which are incorporated herein as part of this Agreement.

4. TERMS SPECIFIC TO THE STANDARD LICENSE TYPE.

a. Field of Use. The Field of Use for a Standard License shall extend to one (1) Licensee-owned Server within one (1) Laboratory, and shall allow for the use of Licensed Materials by Licensee solely for research purposes and non-commercial use, strictly to support operation and facilities internal to and under control of the Customer's Laboratory. The Standard License allows use of the Licensed Software for all internal purposes, including processing on multiple workstations within the Customer's Laboratory, so long as they are all within the Field of Use.

b. Installation of Software. With a Standard License, you may install one (1) copy of the Licensed Software on one (1) Server within the Laboratory. The instruments or resources managed by the Software are limited to the licensed Laboratory only. FOM Networks provides detailed instructions for self-installation in the User Manual.

c. Customization, Installation Service, and Training. In the event Customer desires further customization, installation service, or training of the Licensed Software, Customer will be charged the hourly rate for such services, as set forth in the Quotation previously provided to Customer, the terms and conditions of which are incorporated herein as part of this Agreement.

d. Initial License Fee. In consideration for the License Grant to Customer, as set forth in Section 2(a) under this Agreement, Customer shall pay to Licensor the Initial License Fee, as set forth in the Quotation previously provided to Customer, the terms and conditions of which are incorporated herein as part of this Agreement. Upon payment of the Initial License Fee, Customer shall be granted a one (1) year license to the Licensed Software.

e. Extensions of License Term. The License Term will be automatically extended for an additional period of one (1) year, and shall be renewed each year thereafter for an additional period of one (1) year, absent notice of non-extension as provided herein. Each extension shall require payment of an Annual License Renewal Fee, at the then-existing renewal fee in effect for FOM Networks. Either Party may decline to extend the License Term for any reason or no reason by providing the other Party with at least 60 days prior written notice of nonextension.

f. Telephone Support. With paid Initial License and Annual License Renewal, FOM Networks provides twelve (12) cumulative hours per year telephone support free of charge. Should total support hours extends twelve (12) hours, Customer shall pay the hourly rate for Customization, Installation and Training services, as set forth in the Quotation previously provided to Customer, the terms and conditions of which are incorporated herein as part of this Agreement.

5. TERMS SPECIFIC TO THE BASIC LICENSE TYPE.

a. Field of Use. The Field of Use for a Basic License shall extend to one (1) Licensee-owned Server within one (1) Laboratory, and shall allow for the use of Licensed Materials by Licensee solely for research purposes and non-commercial use, strictly to support operation and facilities internal to and under control of the Customer's Laboratory. The Basic License allows use of the Licensed Software for all internal purposes, including processing on multiple workstations within the Customer's Laboratory, so long as they are all within the Field of Use.

b. Installation of Software. With Basic License, you may install one (1) instance of the Software on one (1) Server within the Laboratory. The instruments or resources managed by the Software are limited to the licensed Laboratory only. FOM Networks provides detailed instructions for self-installation in the User Manual.

c. Customization, Installation Service, and Training. In the event Customer desires further customization, installation service, or training of the Licensed Software, Customer will be charged the hourly rate for such services, as set forth in the Quotation previously provided to Customer, the terms and conditions of which are incorporated herein as part of this Agreement.

d. Initial License Fee. In consideration for the License Grant to Customer, as set forth in Section 2(a) under this Agreement, Customer shall pay to Licensor the Initial License Fee, as set forth in the Quotation previously provided to Customer, the terms and conditions of which are incorporated herein as part of this Agreement. Upon payment of the Initial License Fee, Customer shall be granted a one (1) year license to the Licensed Software.

e. Extensions of License Term. The License Term will be automatically extended for an additional period of one (1) year, and shall be renewed each year thereafter for an additional period of one (1) year, absent notice of non-extension as provided herein. Each extension shall require payment of an Annual License Renewal Fee, at the then-existing renewal fee in effect for FOM Networks. Either Party may decline to extend the License Term for any reason or no reason by providing the other Party with at least 60 days prior written notice of nonextension.

f. Telephone Support. With paid Initial License and Annual License Renewal, FOM Networks provides twelve (12) cumulative hours per year telephone support free of charge. Should total support hours extends twelve (12) hours, Customer shall pay the hourly rate for Customization, Installation and Training services, as set forth in the Quotation previously provided to Customer, the terms and conditions of which are incorporated herein as part of this Agreement.

6. TERMS SPECIFIC TO THE ONLINE SERVICE LICENSE TYPE.

a. Field of Use. The Field of Use for an Online Service License shall extend to one (1) single Laboratory. The Online Service License shall allow for use of the internet-based scheduler service of Facility Online Manager™ ("Online Service"), provided by FOM Networks, solely for research purposes and non-commercial use, strictly to support operation and facilities internal to and under control of the Customer's Laboratory. The Online Service License allows use of the Licensed Software for all internal purposes, including processing on multiple workstations within the Customer's Laboratory, so long as they are all within the Field of Use.

b. Online Configuration Only; No Downloading of Software Allowed. With Online Service License, Customer may only use the internet-based scheduler service of Facility Online Manager™ provided by FOM Networks. The instruments or resources managed by the FOM Online Service are limited to the licensed Laboratory only. FOM Networks provides detailed User Manual for online configuration.

c. License Fee. In consideration for the License Grant to Customer, as set forth in Section 2(a) under this Agreement, Customer shall pay to Licensor a non-refundable License Fee, as set forth in the Quotation previously provided to Customer, the terms and conditions of which are incorporated herein as part of this Agreement. The License shall continue for as long as FOM Networks offers the Online Service, or until the Online Service License is terminated in accordance with Section 9 of this Agreement (Termination), whichever comes first.

d. Account Information and Data. FOM Networks does not own any Customer Data which is entered by Customer onto the Online Service. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data.

e. Modification and Maintenance. FOM Networks will make reasonable efforts to maintain the online services, and such maintenance will be provided free of cost to Online Service License Customers. FOM Networks reserves the right to modify or discontinue the Online Service temporarily or permanently, with or without notice to Customer. FOM Networks will not be liable to Customer or any other entities or persons in the event that FOM Networks exercises its right to modify or discontinue the Online Service.

f. Internet Delays. ONLINE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. FOM NETWORKS IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

g. Statistical Reports. Online Service Customers may request statistical reports about the Customer's own Laboratory usage information. Statistical Reports are provided by FOM Networks with a per report fee as set forth in the Quotation previously provided to Customer, the terms and conditions of which are incorporated herein as part of this Agreement.

h. Advertisements. The Customer understands and agrees that FOM Online Service may include communications from advertisers or sponsors promoting their goods and/or services through the FOM Online Service web pages or elsewhere. FOM Networks will not share any of Customer's personal information to our advertisers or third parties, but Licensor's computers may analyze your Laboratory information in order to improve the relevance of the advertisements. Any activity by Customer in response to the advertisers or sponsors, and any terms, conditions, warranties, or representations associated with such activity, is solely between Customer and the applicable third party. FOM Networks shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between Customer and any such third party. FOM Network does not endorse any sites on the Internet that are linked through the Online Service. FOM Networks provides these links to Customer only as a matter of convenience, and in no event shall FOM Networks be responsible for any content, products, or other materials on or available from such sites.

7. NO TRANSFER OF LICENSE. Customer may not transfer Licensed Software or any Licensed Materials to a third party without Licensor's prior written consent.

8. BUG REPORTS. At any time during or after the License Period, Customer may provide Licensor with a report ("Bug Report") of any actual or potential defect ("Bug") in the Licensed Software, by notice or by other reasonable means. During the License Period, each Bug Report will include and Customer will continue to provide all information reasonably requested by Licensor from time to time to assist Licensor in identifying and correcting the Bug. If Customer regards or comes to regard a Bug as being potentially Material and/or a potential Breach of any Warranty, then Customer will use its best efforts to provide Licensor with a Bug Report within twenty-four (24) hours of first becoming aware of any Bug.

9. TERMINATION.

a. Termination by mutual consent. Either Customer or Licensor may terminate the License or any License Right by mutual consent upon such terms as they may agree in writing. Licensor is not obligated to return any License fees to Customer in the event of termination by mutual consent.

b. Unilateral Termination by Customer. Customer may unilaterally terminate the License at any time, effective immediately upon notice to Licensor in accordance herewith. Licensor is not obligated to return any license fees to Customer in the event of Customer's unilateral termination.

c. Termination for Breach. Licensor may terminate this Agreement in the event of a material breach of the terms of this Agreement by Customer, in the event Customer fails to remedy any such breach capable of being cured within fifteen (15) days after being provided written notice thereof. If the breach is not cured that period, the license shall automatically terminate. Customer will be deemed to have cured such Breach if within the cure period it takes steps reasonably adequate to alleviate any damage to the Licensor resulting from the Breach and to prevent a similar future Breach.

d. Other Terminations. The License shall terminate automatically, to the extent permitted by applicable law in the jurisdiction or jurisdictions in question (e.g., bankruptcy law), in any of the following events:

i. If Customer files a petition in bankruptcy (or is the subject of an involuntary petition in bankruptcy that is not dismissed within 60 days after the effective filing date thereof); or is or becomes insolvent; or admits of a general inability to pay its debts as they become due; then the License shall immediately terminate automatically and without notice.

ii. Either Party may terminate the License upon the de facto or de jure nationalization or expropriation of the other Party by governmental or military action, whether or not with valid authority.

10. ASSIGNMENT. Any Party may assign all of its rights indivisibly to a Parent Company or Subsidiary of that Party. The Parent Company or Subsidiary in question must agree in writing to comply with the Party's obligations under, and to be bound by, this Agreement. This clause does not in itself authorize the assigning Party to delegate its duties under this Agreement.

11. EXPORT RESTRICTIONS. Customer and Licensor acknowledge that the Software, Online Services and all related technical information, documents and materials may be subject to the export controls under the U.S. Export Administration Regulation, the U.S. Department of Treasury Office of Foreign Assets Control, and other U.S. agencies, as well as the export control regulations of foreign countries. Customer acknowledges and agrees that the Licensed Software, Licensed Materials and Online Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries to which the United State maintains an embargo, or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Licensed Software and/or Online Service, Customer represents and warrants that Customer is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. Customer agrees to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.

Customer will (i) comply strictly with all legal requirements established under these controls; (ii) cooperate fully with Licensor in any official or unofficial audit or inspection that relates to these controls; and (iii) not export, re-export, divert, transfer, or disclose, directly or indirectly, any Software or related technical information, document, or material or direct products thereof to any country so restricted by the U.S. Export Administration Regulations, as modified by time to time, or to any national or resident thereof, unless Customer has obtained the prior written authorization of Licensor and the U.S. Commerce Department and any relevant local governmental authority.

Licensor makes no representation that the Licensed Software, Licensed Materials or Online Service is appropriate or available for use in other locations. Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the content contrary to U.S. law is prohibited. None of the content, nor any information acquired through the use of the Licensed Software, Licensed Materials or Online Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the U.S. government for such purposes.

a. Disclaimer of UN Convention on Sale of Goods. PURSUANT TO ARTICLE 6 OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (UN CONVENTION), THE PARTIES AGREE THAT THE UN CONVENTION SHALL NOT APPLY TO THIS AGREEMENT.

b. English Language. The parties have required that this Agreement and all documents relating thereto be drawn up in English.

12. LIMITED WARRANTY.

a. General Warranties. Licensor warrants that it has the right to grant a sublicense to Customer to use the Licensed Software, that all Licensed Software shall substantially conform to the functional specifications, and that the Licensed Software and Online Services shall be free from material defects in workmanship and materials that prevent them from substantially meeting the aforementioned criteria ("the Physical Media Warranty").

Licensor further warrants for the term of the Agreement that no copy of the Licensed Software provided to Customer by Licensor contains or will contain any Self-Help Code or Unauthorized Code (including virus, Trojan horse, worm or program designed to disable, erase or otherwise harm software, hardware or data), defined to include any back door, time bomb, drop dead device, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of a person other than a licensee of the program ("No Surreptitious Code Warranty"). Self-Help Code does not include software routines in a computer program, if any, designed to permit Licensor or an owner of the program to obtain access to a licensee's computer system for purposes of maintenance or technical support.

Licensor further warrants that any Services provided by Licensor under this Agreement shall be performed in a workmanlike manner and in accordance with the prevailing professional standards of the software industry ("Service Warranty").

b. Warranty Claims. Any claim for breach of a warranty set forth in this Agreement must be made, in writing, to Licensor within thirty (30) days of the date Customer knew or had reason to know of the first event giving rise to the warranty.

c. Remedies. In the event of any breach of the warranties set forth in this Agreement, Licensor's sole and exclusive responsibility, and Customer's sole and exclusive remedy, shall be for Licensor to correct or replace, at no additional charge to Customer, any portion of the Software or Services found to be defective; provided, however, that if within a commercially reasonable period Licensor neither corrects such defects nor replaces the defective Software or Services, then Customer's sole and exclusive remedy shall be to receive direct damages not to exceed the license fees paid to Licensor for use of the defective Licensed Software or Services.

In the event of any breach of any provision of this Agreement other than the warranties set forth in this Agreement, Customer's sole and exclusive remedy shall be to receive direct damages not to exceed the amounts received by Licensor pursuant to this Agreement. For the avoidance of doubt, Customer's monetary remedies for any breaches of any provision of this Agreement (including, without limitation, the warranty provisions) shall not, in the aggregate, exceed an amount equal to the amounts actually received by Licensor from Customer.

d. Warranty Disclaimer Regarding Operation of Software. Licensor does not warrant that the operation of the Licensed Software or the operation of the Online Services will be uninterrupted or error free. Without limiting the generality of the exclusions set forth in this Section, Licensor's Warranties do not include any warranty:

i. that the functions performed by the Licensed Program(s) will meet Licensee's requirements or will operate in the combinations that may be selected for use by Licensee, nor

ii. that the operation of the Licensed Program(s) will be error free in all circumstances, nor

iii. that all defects in the Licensed Program(s) that are not Material with respect to the functionality thereof as set forth in the Licensed Documentation will be corrected, nor

iv. that the operation of the Licensed Program(s) will not be interrupted for short periods of time by reason of defect therein or by reason of fault on the part of Licensor.

e. Warranty Disclaimer. Without limiting the generality of the exclusions set forth in this Section, and except as otherwise provided in this Agreement, Licensee will be exclusively responsible as between the Parties for, AND LICENSOR MAKES NO WARRANTY OR REPRESENTATION WITH RESPECT TO:

i. determining whether the Licensed Software will achieve the results desired by Customer;

ii. selecting, procuring, installing, operating, and maintaining computer hardware to run the Licensed Software;

iii. training Customer's personnel in computer operations, other than such Licensor-provided training as is expressly set forth in this Agreement;

iv. ensuring the accuracy of any input data used with the Licensed Software;

v. establishing adequate data backup provisions for backing up Customer's data; and

vi. establishing adequate operational backup provisions (e.g., alternate manual operation plans) in the event of a defect or malfunction that impedes the anticipated operation of the Licensed Software.

f. DISCLAIMER OF ALL OTHER WARRANTIES AND REPRESENTATIONS. The express warranties and express representations set forth in this Agreement are in lieu of, and LICENSOR DISCLAIMS, ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE LICENSED SOFTWARE OR ANY PART THEREOF, INCLUDING ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT LICENSOR KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING. IN ADDITION, LICENSOR EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN LICENSEE WITH RESPECT TO THE LICENSED SOFTWARE OF ANY PART THEREOF.

13. LIMITATION OF LIABILITY. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL FOM NETWORKS (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS) BE LIABLE TO THE CUSTOMER (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY'S RIGHTS) FOR DIRECT, SPECIAL, INDIRECT, COLLATERAL, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, LOSS OF BUSINESS, ECONOMIC DAMAGE, INJURY TO PROPETY, LOST REVENUE, LOSS OF DATA, LOSS OF USE TO ANY TECHNOLOGIES, INTERRUPTION OF BUSINESS IN CONNECTION WITH ANY CLAIMS, LOSSES OR DAMAGES OR INJURIES ARISING OUT OF THIS AGREEMENT, OR RESULTING FROM OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE, OR THE PERFORMANCE OF THE LICENSED MATERIALS, OR ANY PORTION THEREOF OR ANY DERIVATIVE WORKS, (INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR PRODUCTS LIABILITY), REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.

14. Customer Indemnification of Licensor.Customer shall indemnify and hold FOM Networks, its owners, licensors, and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that Customer's use of the Licensed Software, Licensed Materials, or Customer-supplied data or intellectual property infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by Customer of Customer's representations and warranties; (iii) a claim arising from the breach by Customer or Customer's authorized users of this Agreement, or (iv) a claim arising from Customer's transaction of business through the use of FOM Networks web page or website, provided in any such case that Licensor (a) gives written notice of the claim promptly to Customer; (b) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle or defend any claim unless Customer unconditionally release Licensor of all liability and such settlement does not affect Licensor's business or Service); (c) provides to Customer all available information and assistance; and (d) has not compromised or settled such claim.

15. APPLICABLE LAW. This Agreement shall be governed by, interpreted and enforced in accordance with the law of the State of Illinois applicable to agreements made and performed entirely in that state by Persons domiciled therein, without regard to the choice or conflicts of law provisions of any jurisdiction. Any action arising from Customer's failure to pay the agreed-upon Licensing Fees or Service Fees in accordance with the Quotation, which is incorporated herein and made a part to this Agreement, shall be subject to the exclusive jurisdiction of the state and federal courts located in Illinois. Customer and Licensor agree to the selection of Illinois state and federal courts, to the exclusion of all other courts and venues, for the actions referenced in the previous sentence. All other matters shall be subject to binding Alternative Dispute Resolution, as set forth in the next Section.

16. DISPUTE RESOLUTION. The Parties agree to effect all reasonable efforts to resolve any and all disputes between them in connection with this Agreement in an amicable manner. Any dispute that arises in connection with this Agreement and which cannot be amicably resolved by the Parties shall be resolved by binding Alternative Dispute Resolution (ADR) with a single arbitrator to be chosen by agreement of the parties. ADR shall take place in Chicago, Illinois, and all costs incurred for a hearing room shall be shared equally between the Parties. The neutral shall be paid a reasonable fee plus expenses, which fees and expenses shall be shared equally by the Parties. The ruling shall be binding on the Parties and may be entered as an enforceable judgment by a state or federal court having jurisdiction over the Parties.

17. NO CONSTRUCTION AGAINST DRAFTER. Customer and Licensor agree that any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement shall not apply to the terms and conditions of this Agreement.

18. NOTICES. All notices, demands or other communications herein provided to be given or that may be given by any party to the other must be made in writing and in accordance with this Section. Licensor may give notice by means of a general notice on the FOM Networks Online Service (http://www.fomnetworks.com), email to Customer address on record in Licensor's account information, or by written communication sent by first class mail or pre-paid post to Customer address on record in Licensor's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting, or 12 hours after sending by e-mail. Any notices to be or that may be given to Licensor by Customer shall be deemed to have been given when received by Licensor. Customer may give notice by delivery in person, by a letter sent by nationally recognized overnight delivery service or first class postage prepaid mail to Licensor at the following address:

FOM Networks

Attention: Licensing Notices

604 Long Road

Glenview, IL 60025

19. ENTIRE AGREEMENT. This Agreement, and the Quotation previously provided to you by FOM Networks, are the entire Agreement for the Licensed Software, Support Services and Licensed Materials. No text or other information set forth on any other purchase order (whether provided by Customer or any other person or entity), preprinted form, or document shall add to or vary the terms and conditions of this Agreement. This Agreement, together with any applicable Quotation form, comprises the entire agreement between Customer and Licensor and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

20. GENERAL PROVISIONS. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment or agency relationship exists between Customer and Licensor as a result of this Agreement or use of the Licensed Software or Online Service. The failure of Licensor to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Licensor in writing. The headings contained in this Agreement are for reference purposes only and shall not in any way control the meaning or interpretation of this Agreement.


Exhibit A

Description of the Licensed Software, Facility Online Manager™

Facility Online Manager™ software (FOM) is an online (Internet) accounting system for multi-user service facilities. Authorized users can reserve and access equipment online. The software's security controls enable facility managers to limit equipment usage to authorized groups and individuals. Security controls apply rules to restrict equipment usage in accordance with the user's level of training for the procedure and equipment in question. FOM supports automated billing, maintains a real-time activity log, and provides numerous reports related to usage, billing and the like.

All functions are available online. FOM supports multiple rates by which customers are charged (including training rates), and supports multiple user types that include repair personnel, outside trainees, etc. Depending upon an individual's skill level and the procedure and equipment s/he will apply and use, some users are permitted 24 hour access, while others are permitted usage only during an 8 hour period. Facility Online Manager™ provides a host of additional features that include information related to equipment and users, warnings prior to user account expiration, tracking by user, the ability to charge for materials, links to online manuals, assistance request capability, activity reports for user groups, self service or service modes, quick view of status for all equipment, warning to users when equipment is down, reservation cancellation, etc.

FOM has been implemented using Java EE and Microsoft SQL database engine, and it can operate on MS Windows Server 2003 standard version or up. Information supplied by users through the Internet can be recorded in a database on a central server. As an optional function, FOM has the ability to control relay switches on multiple target instruments. (This optional function uses third-party Relay switches. FOM Networks is not responsible for the functionality or any damage induced by installation of the third-party relay switches). When users from the Internet give the server a command to logon/logoff, the server sends a corresponding signal to the hardware control relay switches, which can be dedicated to control access to the target instruments.

BY DOWNLOADING AND/OR USING THE LICENSED MATERIALS, YOU ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THEM, DO NOT DOWNLOAD OR USE THE LICENSED MATERIALS.

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