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immixTechnalagy, [nc.
<br />aaubsidraryot-•~ knmixGr~ip
<br />TERMS AND CONDITIONS APPLICABLE TO TERM
<br />SOFTWARE LICENSES (SPECIAL ITEM NUMBER
<br />132-32), PERPETUAL SOFTWARE LICENSES
<br />(SPECIAL ITEM NUMBER I32-33) AND
<br />MAINTENANCE AS A SERVICE (SPECIAL ITEM
<br />NUMBER 132-34) OF GENERAL PURPOSE
<br />COMMERCIAL INFORMATION TECHNOLOGY
<br />SOFTWARE
<br />1. GLOSSARY OF DEFINITIONS
<br />a. "Documentation" shall mean Manufacturer's then current
<br />help guides, and manuals issued by Manufacturer and made
<br />generally available by Manufacturer for the Software whether on-
<br />line or in hard copy. Documentation shall include any updated
<br />Documentation that Manufacturer provides with any updates.
<br />b. "Maintenance Services" shall mean the Software
<br />maintenance and support services provided by Contractor
<br />through an applicable Manufacturer under this contract in
<br />accordance with the Manufacturer's then current Maintenance
<br />Services Policy.
<br />c. "Maintenance Services Policy" shall mean the
<br />commercial terms describing a Manufacturer's standard Software
<br />maintenance and support offerings, policies and procedures, a
<br />copy of which is located on Attachment A to this schedule
<br />pricelist.
<br />d. "Software" shall mean (i) the version of the computer
<br />program identified on Attachment B and (ii) updates to such
<br />programs.
<br />2. INS PECTION/ACCEPTANCE
<br />The Contractor shall only deliver those items ordered that
<br />substantially conforrn to the requirements of this contract and the
<br />Software's Documentation. Therefore, items delivered shall be
<br />deemed accepted upon delivery. The Ordering Activity reserves
<br />the right to inspect or test any Software that has been delivered.
<br />The Ordering Activity may require repair or replacement of
<br />nonconforming Software at no increase in contract price. The
<br />Ordering Activity must exercise its post-acceptance rights (1)
<br />within the warranty period as set forth below; and (2) before any
<br />substantial change occurs in the condition of the Software, unless
<br />the change is due to the defect in the Software.
<br />3. GUARANTEE/WARRANTY
<br />a. Unless specified otherwise in this contract, the
<br />warranties extended to the Ordering Activity for Software and
<br />Documentation, and the exclusions and disclaimers applicable to
<br />such warranties, shall be as set forth on Attachment A to this
<br />schedule pricelist (Contractor Supplemental Pricelist Information
<br />and Incorporated Terms). Notwithstanding anything to the
<br />contrary that may be marked on or provided with the Software or
<br />Documentation, the parties understand and agree that such
<br />warranties, exGusions and disclaimers follow the applicable
<br />Manufacturer's standard commercial warranties, exclusions and
<br />disclaimers but are provided to the Ordering Activity by the
<br />Contractor, who will be responsible to the Ordering Activity for all
<br />compliance, service and remedies thereunder.
<br />PROFITS, DATA OR USE, INCURRED BY EITHER PARTY OR
<br />ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT
<br />OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED
<br />OF THE POSSIBILITY OF SUCH DAMAGES provided however,
<br />that in the event Ordering Activity makes unauthorized copies of
<br />the Software, Contractor shall be entitled to recover the full
<br />amount of any license fees that would relate to such copies.
<br />ii) Limitation of Direct Damages. Except for a) a claim of IP
<br />Infringement hereunder, orb) as provided in (c)(iii) below, the
<br />aggregate and cumulative liability of Contractor and licensors for
<br />damages hereunder shall in no event exceed the amount of fees
<br />paid by Ordering Activity under the order giving rise to such
<br />liability, and if such damages relate to particular Software or
<br />Maintenance Services, such liability shall be limited to fees paid
<br />for the relevant Software or Maintenance Services giving rise to
<br />the liability.
<br />iii) Non-Applicability to Statutory or Regulatory Rights. Nothing
<br />herein shall operate to impair or prejudice the U.S. Government's
<br />right (a) to recover for fraud or crimes arising out of or relating to
<br />this contract under any Federal fraud statute, including without
<br />limitation the False Claims Act (31 USC §§3729 through 3733), or
<br />(b) to express remedies provided under any FAR, GSAR or
<br />Schedule 70 solicitation clauses incorporated into this contract,
<br />including without limitation the GSAR 552.215-72 Price
<br />Adjustment -Failure to Provide Accurate Information (August
<br />1997) or GSAR 552.238-75 Price Reductions (May 2004)
<br />Alternate I (May 2003).
<br />4. TECHNICAL SERVICES
<br />A hot line technical support number for the purpose of providing
<br />user assistance and guidance to the Ordering Activity in the
<br />implementation of the Software may be provided as part of
<br />Maintenance Services.
<br />5. SOFTWARE MAINTENANCE
<br />a. Software maintenance as it is defined:
<br />1. Software Maintenance as a Product (SIN 132-32 or SIN 132-
<br />33)
<br />Software maintenance as a product includes the publishing of
<br />bug/defect fixes via patches and updates/upgrades in function
<br />and technology to maintain the operability and usability of the
<br />software product. It may also include other no charge support
<br />that is included in the purchase price of the product in the
<br />commercial marketplace. No charge support includes items such
<br />as user blogs, discussion forums, on-line help libraries and FAQs
<br />(Frequently Asked Questions), hosted chat rooms, and limited
<br />telephone, email and/or web-based general technical support for
<br />user's self diagnostics.
<br />Software maintenance as a product does NOT include the
<br />creation, design, implementation, integration, etc. of a software
<br />package. These examples are considered software maintenance
<br />as a service.
<br />Software Maintenance as a product is billed at the time of
<br />purchase.
<br />2. Software Maintenance as a Service (SIN 132-34)
<br />Limitation of Liability.
<br />i) Exclusion of Consequential Damages. EXCEPT FOR A) A
<br />CLAIM OF IP INFRINGMENT HEREUNDER, OR B) AS
<br />PROVIDED IN (c)(iii) BELOW, IN NO EVENT SHALL
<br />CONTRACTOR BE LIABLE FOR ANY INDIRECT,
<br />INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES,
<br />INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF
<br />Software maintenance as a service creates, designs,
<br />implements, and/or integrates customized changes to software
<br />that solve one or more problems and is not included with the
<br />price of the software. Software maintenance as a service includes
<br />person-to-person communications regardless of the medium
<br />used to communicate: telephone support, on-line technical
<br />support, customized support, and/or technical expertise which are
<br />GS-35F-0265X www.immixtechnoloov corn Page 11
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