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immixTe~hnalogy, inc.
<br />asutrsid~aryot ~ ieninixGroup
<br />(5) "Commercial Computer Software" may be marked with the
<br />Contractor's standard commercial restricted rights legend, but the
<br />schedule contract and schedule pricelist, including this clause,
<br />"Utilization Limitations" are the only governing terms and
<br />conditions, and shall take precedence and supersede any
<br />different or additional terms and conditions included in the
<br />standard commercial legend.
<br />(6) The Software and Documentation hereunder is offered by
<br />the Contractor under licenses customarily provided to the public.
<br />The Contractor does not fumish technical information related to
<br />commercial computer Software (or commercial computer
<br />software Documentation) that is not customarily provided to the
<br />public. Further, the Contractor does not relinquish rights to use,
<br />modify, reproduce, release, perform, display, or disclose
<br />commercial computer Software (or commercial computer
<br />Software Documentation) except as mutually agreed to by the
<br />parties. See 48 CFR 12.212.
<br />(7) Nondisclosure. Ordering Activity may have access to
<br />information that is confidential to Contractor or its Manufacturers
<br />("Confidential Information"). Confidential Information shall include
<br />any information that is clearly identified in writing at the time of
<br />disclosure as confidential as well as any inforration that, based
<br />on the circumstances under which it was disclosed, a reasonable
<br />person would believe to be confidential. Contractor's Confidential
<br />Information shall include, but not be limited to, the Software,
<br />Documentation, all materials provided to Ordering Activity in the
<br />course of performing Maintenance Services hereunder, formulas,
<br />methods, know how, processes, designs, new products,
<br />developmental work, marketing requirements, marketing plans,
<br />customer names, prospective customer names, and the terms
<br />and pricing hereunder, regardless of whether such information is
<br />identified as confidential. Confidential Information includes all
<br />information received from third parties that Contractor is obligated
<br />to treat as confidential.
<br />Confidential Information shall not include information that (i) is or
<br />becomes a part of the public domain through no act or omission
<br />of the other party; (ii) was in the other party's lawful possession
<br />prior to the disclosure and had not been obtained by the other
<br />party either directly or indirectly from the disclosing party; (iii) is
<br />lawfully disclosed to the other party by a third party without
<br />restriction on disclosure; (iv) is independently developed by the
<br />other party without use of or reference to the other party's
<br />Confidential Information In addition, if Ordering Activity
<br />recommends to Contractor additional features, functionality, or
<br />performance or if Contractor retains generalized information
<br />hereunder that Contractor or its Manufacturer subsequently
<br />incorporates into its product or service offerings, then with
<br />respect to such recommendations and information, Ordering
<br />Activity hereby (a) grants Contractor a worldwide, non-exclusive,
<br />royalty-free, perpetual right and license to use and incorporate
<br />such recommendations and such information into such offerings,
<br />and (b) acknowledges that all right and title to such offerings
<br />incorporating such recommendations and information shall be the
<br />sole and exclusive property of Contractor or its Manufacturer and
<br />all such recommendations and information shall be free from any
<br />confidentiality restrictions that might otherwise be imposed upon
<br />Contractor pursuant to this section.
<br />Further, this section will not be construed to prohibit disclosure of
<br />Confidential Information to the extent that such disclosure is
<br />required by law or valid order of a court or other governmental
<br />authority.
<br />Ordering Activity shall not disclose the results of any performance
<br />tests of the Software to any third party without Contractors prior
<br />written approval. Ordering Activity agrees to hold Confidential
<br />Information in confidence and to take all reasonable steps to
<br />ensure that Confidential Information is not disclosed or distributed
<br />by its employees or agents in breach of these Terms and
<br />Conditions. Ordering Activity acknowledges and agrees that, due
<br />to the unique nature of Confidential Information, there can be no
<br />adequate remedy at law for breach of this section, and that such
<br />breach would cause irreparable harm to Contractor; therefore,
<br />Contractor shall be entitled to seek immediate injunctive relief, in
<br />addition to whatever remedies it might have at law or under these
<br />terms and conditions.
<br />(8) Verification. At Contractor's written request, but not more
<br />frequently than annually, Ordering Activity shall fumish Contractor
<br />with a document signed by Ordering Activity's authorized
<br />representative verifying that the Software is being used pursuant
<br />to the provisions of this contract. To the extent permitted by and
<br />subject to an Ordering Activity's security requirements (including,
<br />but not limited to, use of cleared personnel, badging and other
<br />requirements). Contractor reserves the right to audit Ordering
<br />Activity's use of the Software no more than once annually at
<br />Contractors expense. Contractor shall schedule any audit at
<br />least thirty (30) days in advance. Any such audit shall be
<br />conducted during regular business hour at Ordering Activity's
<br />facilities and shall not unreasonably interfere with Ordering
<br />Activity's business.
<br />(9) Intellectual Property Infringement. If a third party makes a
<br />claim against Ordering Activity that the Software directly infringes
<br />any patent, copyright, or trademark or misappropriate any trade
<br />secret ("IP Claim"); Contractor will (i) assist in defending Ordering
<br />Activity against the IP Claim at Contractors cost and expense,
<br />and (ii) pay all costs, damages and expenses (including
<br />reasonable legal fees) finally awarded against Ordering Activity
<br />by a court of competent jurisdiction or agreed to in a written
<br />settlement agreement signed by Contractor arising out of such IP
<br />Claim; provided that: (i) Ordering Activity promptly notifies
<br />Contractor in writing no later than sixty (60) days after Ordering
<br />Activity's receipt of notification of a potential claim and (ii)
<br />Ordering Activity provides Contractor, at Contractors request and
<br />expense, with the assistance, information and authority
<br />necessary to perform Contractors obligations under this Section.
<br />Notwithstanding the foregoing, Contractor shall have no liability
<br />for any claim of infringement based on (a) the use of a
<br />superseded or altered release of the Software if the infringement
<br />would have been avoided by the use of a current unaltered
<br />release of the Software, (b) the modification of the Software,
<br />(c) the use of the Software other than in accordance with the
<br />Documentation or this contract, or (d) any materials or
<br />information provided to Contractor by Ordering Activity, for which
<br />Ordering Activity shall be solely responsible.
<br />If the Software is held to infringe or are believed by Contractor to
<br />infringe, Contractor shall have the option, at its expense, to
<br />(a) replace or modify the Software to be non-infringing, or
<br />(b) obtain for Ordering Activity a license to continue using the
<br />Software. If it is not commercially reasonable to perform either of
<br />the foregoing options, then Contractor may terminate the
<br />Program license for the infringing Software and refund the license
<br />fees paid for the Software upon return of the Software by
<br />Ordering Activity. This section states Contractor's entire liability
<br />and Ordering Activity's exclusive remedy for any claim of
<br />infringement.
<br />(10) Delivery. All Software and Documentation provided by
<br />Contractor hereunder shall be deemed to be delivered by
<br />Contractor: 1) Upon physical delivery, or 2) Once the Software is
<br />made available to Ordering Activity via electronic download by
<br />provision of a license key, link to a website, FTP site or similar
<br />site from which the Ordering Activity can electronically download
<br />or otherwise access the Software and Documentation.
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