These Terms and Conditions of Quotation and Sale (“Terms and Conditions”) shall apply to any quotation issued by DIVERSIFIED TECHNICAL SYSTEMS, a California corporation (“DTS”), to which they are physically or electronically attached or in which they are incorporated by reference. All orders and sales of DTS products and services (“Goods”) are subject to final approval by DTS and shall be subject to these Terms and Conditions, which shall take precedence over and to the exclusion of any additional or different terms and conditions from the buyer (“Buyer”).

1. Prices. Unless otherwise stated in a quotation, prices quoted are valid for a period of ninety (90) days after which DTS shall have the right to adjust quoted prices upon written notice to Buyer. All quoted prices are in U.S. Dollar (USD) unless otherwise stated. Quoted prices do not include any applicable local, state, federal or foreign taxes and any such taxes, including sales and excise taxes, levied on the Goods shall be added to the specified prices for Goods paid by Buyer and shall remain the sole responsibility of Buyer.

2. Quotation. DTS’s acceptance of any order for Goods delivered by Buyer is conditioned upon Buyer’s acceptance of these Terms and Conditions. All quotations issued by, and all sales of Goods made by, DTS shall be subject to these Terms and Conditions. These Terms and Conditions shall not be modified other than in writing signed by DTS and Buyer and shall become a part of any further or additional order or agreement between the parties regarding the sale of the Goods. Verbal agreements shall not be binding upon DTS unless they have been agreed to in writing.

3. Limitation of Liability. In no event shall DTS be liable to Buyer or to any third party for consequential, incidental or special damages, or for lost profits, resulting from or in any manner related to the Goods, any performance or non-performance by DTS, or the design, use or any inability to use the Goods, whether such damages are claimed under contract, tort or any other legal theory. Buyer understands and agrees that Buyer’s sole and exclusive remedy, and DTS’s limit of liability, for any and all loss or damage resulting from defective Goods or the breach by DTS of any provision or term set forth herein or otherwise, in each case, shall be limited to the purchase price of the particular Goods with respect to which such loss or damage is claimed, plus any transportation charges actually paid by Buyer. This limitation of liability shall survive the termination, expiration or cancellation of any agreement or order with respect to the sale of Goods. Except as otherwise described herein or expressly provided by DTS, there are no other warranties or guaranties, either express or implied, written, oral or arising under custom or trade, including, without limitation, the warranty of title, against liens, infringement, the warranty of merchantability and the warranty of fitness for a particular purpose. No warranties or representations at any time made by any representative of DTS shall be effective to vary or expand the above referenced express warranty or any terms set forth in these Terms and Conditions. Buyer undertakes to include all requirements and specifications relating to the Goods ordered in a quotation.

4. Delay in Performance. DTS shall not be responsible or liable for any delays or failures in performance with respect to any quotation or order for Goods due to any cause or condition beyond the control of DTS, including, without limitation, strikes or labor difficulties, fires, floods and other actions of the elements, inability to secure transportation, shortage of materials or equipment, riots or other civil commotions and acts of God and war. DTS’s liability for real and proven damages shall, regardless the gravity of the failure, be limited to the price of the Goods directly related to the claim.

5. Inspection. Buyer shall inspect all supplied Goods and verify conformity with the quotation promptly upon delivery and before use of such Goods. Goods must not be returned without DTS’s prior written authorization. Goods shall be deemed to have been accepted in the event no written notice specifying in detail any shortages, damages or other claims has been received by DTS within ten (10) days following delivery of the Goods. DTS shall not be liable for any damage, warranty or remedy, and back charges will not be accepted, without prior notification, an opportunity to view and repair, replace or otherwise cure, and approval by DTS. A restocking charge in the amount of 15% of the purchase price of the Goods will be charged on Goods approved for credit. No refunds will be authorized. In the event that Buyer omits to exercise control of the Goods or elects to use nonconforming Goods, Buyer thereby releases and dismisses DTS from any and all liability for the possible consequences of the usage of such Goods.

6. Term of Delivery. All dates and schedules specified by DTS for the performance or delivery of Goods by DTS have been stated only as an estimate from the date of such quotation, and are contingent upon, among other things, the timely receipt of complete specifications, designs, samples and other information reasonably requested by DTS to be provided by Buyer. DTS shall not incur any liability, either direct or indirect, nor shall any quotation or purchase order be cancelled as a result of any delays in meeting such dates or schedules. DTS shall not be responsible for any delays caused by third parties utilized by DTS or the inability of such third parties to provide or deliver their goods or services to DTS. Buyer hereby agrees and acknowledges that DTS’s quote may be based on a quote from a third party and DTS shall not be bound by its own quote if any third party fails to provide its goods or services as promised or agreed. Unless otherwise expressly agreed to in writing, shipment of Goods will be FCA DTS’s location, at which time title and risk of loss shall transfer to buyer at time of shipment. Payment of all shipping and freight charges, along with all customs, duties, costs, taxes, insurance premiums, and other expenses related to the transportation of Goods, shall be the sole responsibility of Buyer. Shipping and freight charges incurred by DTS on behalf of the buyer will be added to the invoice.

7. Cancellation or Change Orders; Default. No orders may be withdrawn or canceled by Buyer, nor may they be deferred when ready, unless DTS shall have previously approved such withdrawal, cancellation or deferral in writing and DTS shall have been paid a withdrawal, cancellation or deferral charge of a reasonable amount acceptable to DTS not to exceed its cost plus anticipated profit. In the event that Buyer shall request changes in any order that has been submitted to DTS, Buyer shall be responsible for all charges and expenses reasonably incurred by DTS with respect to such changes. Buyer shall not have the right by change orders to specify any products or services that are not generally made available by DTS to its customers. In the event of Buyer’s default hereunder, DTS shall have the right to immediately cancel any order, stop work, refuse to ship or stop delivery of any Goods, and DTS shall be entitled to recover any losses or damages incurred by DTS as a result of such default and to seek any other remedy provided by law. Buyer’s default means (i) Buyer’s insolvency or the filing or institution of a proceeding under any bankruptcy, reorganization or similar law, by or against Buyer, (ii) an assignment for the benefit of creditors by Buyer, (iii) the appointment of a receiver, trustee or custodian for any of the property or assets of Buyer, and (iv) Buyer otherwise being in default of any obligation to DTS hereunder or otherwise. By submitting an order to DTS, Buyer warrants, represents and covenants that it is solvent now and will be solvent at shipment and agrees to notify DTS immediately in writing upon the occurrence of any of the events set forth in this paragraph.

8. Conditions of payment. Unless otherwise provided in a quotation, all payments are due thirty (30) days after the date of invoice (net 30 days). Payment must be made in USD unless otherwise indicated. DTS reserves the right to supply certain high value products cash on delivery only, without any deduction. Any possible protest must be communicated within 10 days after the date of invoice. Late payment will cause, ipso jure and without notice, a late payment charge of 10% per annum. Buyer shall also be responsible for any and all costs, including attorneys’ fees, necessary to collect past due accounts. Offsetting against any kind of non-approved counter-claims as well as execution of right of retention of Goods shall be excluded unless established in court or agreed to by DTS. DTS shall remain the sole owner of delivered Goods, and title to Goods shall not pass to Buyer, until such time as DTS receives payment in full for such Goods, including transport costs and taxes and DTS reserves the right to invoice separate parts of a quote separately. DTS reserves the right to refrain from execution of further components of a quote or order, or of any subsequent quote or order, or to terminate a delivery, until such time as any outstanding issued invoices shall have been paid in full.

9. Export Compliance. DTS’s products, technologies and services are subject to the U.S. export laws and regulations. Buyer shall also comply with all applicable export laws and regulations. It is Buyer’s responsibility to determine the appropriate licensing requirements for any proposed retransfer, resale, or reexport of the merchandise subject to this order, and to obtain any necessary authorization(s) from the appropriate U.S. and/or other government authorities exercising jurisdiction over the proposed activity. Buyer will not, unless properly authorized, import, export, reexport, resell, transfer or disclose (directly or indirectly) any DTS products or technical data, or the direct product of any DTS products or technical data: (a) to any person or entity designated on a U.S. restricted parties list or a similar list maintained by other countries having jurisdiction over the Buyer; (a) to any country subject to an applicable embargo or economic sanctions program; or, (a) for any prohibited end-use (i.e., nuclear, missile, chemical/biological weapon proliferation).

10. Indemnification. Buyer shall indemnify and hold harmless DTS and its officers, employees and agents against all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable attorney’s fees) on account of any damaged property or injury or death of persons (including, without limitation, Buyer’s employees) arising out of Buyer’s storage, handling, use, implementation or disposal of Goods purchased from DTS. Buyer shall also hold DTS and its officers, employees and agents harmless from any liability arising from Buyer’s failure to comply with any applicable export laws and regulations. This indemnity obligation shall survive the expiration, termination or cancellation of any agreement or order with respect to the sale of Goods.

11. Proprietary Rights. Any of DTS’s data and its Goods furnished or acquired by Buyer providing confidential or proprietary information concerning DTS’s trade secrets, such as, but not limited to, any formula, design, engineering drawings, device or compilation of information, including DTS’s manufacturing methods or processes, treatment and chemical composition of materials and tooling shall be kept confidential by Buyer, and not disclosed to third parties without DTS’s express written permission. And, Buyer shall not use such data, in whole or I part, or the Goods, to copy, redesign, reverse engineer, replicate or manufacture (or enable manufacture by itself or any third party) the Goods, products similar thereto or products derived therefrom without DTS’s express written permission. The price for the Goods does not include any such data and information.

12. Patent Data. DTS warrants that the use or sale of its Goods will not infringe the claims or any United States patent governing the Goods themselves for a period of twelve months after the Goods are delivered to Buyer. DTS does not warrant against patent infringement by reason of the use of its Goods in combination with others or in the operation of any process. Buyer assumes liability for patent and copyright infringement when goods are made to Buyer’s specifications. Buyer shall indemnify and hold harmless from all damages and costs related to such infringement. All technical advice, specification data, recommendations and services are rendered by DTS free of charge and while based on data believed to be reliable, they are intended for use by skilled persons at their own risk. DTS assumes no responsibility to Buyer for events resulting or damages incurred from improper use. They are not to be taken as a license to operate under or intended to suggest infringement of any existing patent.

13. Warranty. DTS warrants all Goods to be furnished under a purchase order issued by the Buyer to be free from defects due to faulty workmanship or material for the period of [twelve (12) months] from the date of delivery to the Buyer. DTS neither expressly nor impliedly warrants against defects in design, workmanship and materials of parts or materials supplied by others and utilized by DTS in such Goods. DTS shall give the Buyer (insofar as it is assignable) the benefits of any express written warranties given to DTS by such manufacturer or other vendors. DTS shall have no obligation to process any warranty claim against such manufacturer and supplier for the benefit of the Buyer. DTS neither expressly nor impliedly warrants, or makes any representation whatsoever, as to service life of such Goods since conditions of usage and experienced service life are neither within the control of nor knowledge of DTS.
This warranty will apply only on the condition that:
(1) Buyer delivers written notice of its claim under this clause to DTS within such warranty period, but not    later than fifteen (15) days after discovery of the defect which is the basis for its claim;
(2) Buyer delivers such Goods to DTS at its plant, FOB or EX WORKS, as applicable, to Seal Beach, CA,    USA within thirty (30) days after such written notice;
(3) DTS determines (in its sole discretion) that such Goods are defective and have not been subject to    accident, abuse or misuse, and have been operated and maintained in accordance with the    manufacturer’s recommendations and specifications; and
(4) The Goods have not been the subject of a replication (i.e., reverse engineering) program, either formal    or informal, sponsored or supported by the U.S. Government or any other entity.The obligations and liabilities of DTS under this Warranty are expressly limited to the replacement or the repair by DTS of such Goods, and shall not include any removal, disassembly, failure analyzing fault isolation, inspection, retrofit or reinstallation costs incident to such correction or replacement. Buyer may effect warranty repairs of the Goods at its facility only with the DTS’s prior written approval. DTS will reimburse Buyer for such repair at labor rates to be mutually agreed upon, but not exceeding DTS’s own rates.

 

THE WARRANTY PROVIDED IN THIS ARTICLE 12, AND THE OBLIGATIONS AND LIABILITIES OF DTS AND THE RIGHTS AND REMIDIES OF BUYER HEREUNDER, ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND DTS HEREBY DISCLAIMS, AND BUYER HEREBY WAIVES, ALL WARRANTIES AND LIABILITIES OF DTS AND ALL CLAIMS AND REMIDIES OF THE BUYER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY DEFECT IN ANY GOODS, INCLUDING WITHOUT LIMITATION, ANY (A) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR USE OR FOR A PARTICULAR PURPOSE, (B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE, (C) RECOVERY BASED UPON TORT, WHETHER OR NOT ARISING FROM DTS’S NEGLIGENCE, AND (D) ANY RECOVERY BASED UPON DAMAGED PROPERTY, OR OTHERWISE BASED UPON LOSS OF USE OR PROFIT OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES. THIS WARRANTY SHALL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY DTS AND BUYER. IN THE EVENT THAT ANY PROVISIONS HEREOF SHOULD FOR ANY REASON BE HELD INEFFECTIVE, THE REMAINDER OF THIS WARRANTY SHALL REMAIN IN FULL FORCE AND EFFECT.

14. Credit Report. Buyer hereby authorizes DTS from time to time to obtain Business and Consumer Credit Reports on Buyer or any principals of Buyer or to obtain credit and funding information from any other source. DTS shall have no obligation to commence or continue performance until adequate credit and funding information has been provided, at any time upon the request of DTS. DTS may stop the manufacture or supply of any Goods when it, in its sole discretion, determines that Buyer is in breach of this Agreement or any other contract with DTS, or DTS reasonably believes that Buyer may be unable to make timely payments with respect to any ordered Goods, until such time as payment has been made and any such payment insecurity has been resolved.

15. Governing Law and Jurisdiction; Attorney’s Fees. This Agreement shall be deemed to have been made under, and shall be construed and interpreted in accordance with the laws of the State of California, without regard to any choice of law principles. Buyer and DTS hereby agree to submit to the jurisdiction of the state and federal courts for the State of California, Orange County, and such courts shall have exclusive jurisdiction and venue to adjudicate the rights and obligations of the parties relating in any manner hereto. The parties hereby waive any argument relating to the convenience of forum. In the event of litigation relating to the subject matter hereto, the substantially prevailing party shall be entitled to recover from the non-prevailing party all reasonable attorney’s fees and costs relating to such litigation.

16. General. These Terms and Conditions shall govern the entire relationship between DTS and Buyer. The parties agree that there are no other understandings between the parties concerning the subject matter hereof, whether verbal or written. By acceptance of the quotation, Buyer agrees that any additional terms and conditions of a purchase order or change order shall not be applicable unless expressly agreed to by DTS in writing and DTS specifically objects to the inclusion of any different or additional terms or conditions by Buyer in confirming or accepting any quotation. Delivery of a purchase order by Buyer pursuant to this quotation shall be deemed to be an acceptance by Buyer of these Terms and Conditions. In the event Buyer includes different or additional terms and conditions in its purchase order, acceptance, confirmation or other written form sent in response to any quotation, neither DTS’s delivery of all or part of the Goods, nor any other action except a written notice from DTS, shall constitute acceptance of such additional or different terms, but instead these Terms and Conditions shall apply.

17. Severability. If any provision of these Terms and Conditions is held by any court to be invalid or unenforceable, such provision shall be deemed to be modified or deleted, but only to the extent necessary to enable that and the remaining provisions of this Agreement to be valid and enforceable.

THIS SOFTWARE LICENSE AGREEMENT GOVERNS YOUR ACCESS AND USE OF OUR SOFTWARE AND CREATES A LEGALLY BINDING CONTRACT BETWEEN Diversified Technical Systems,, Inc. (“WE”, “US”, “OUR” OR “DTS”) AND THE COMPANY OR BUSINESS ENTITY ON WHOSE BEHALF YOU ARE ENTERING HEREIN (“YOU” OR “YOUR”).

BY USING OUR SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. AS YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER BUSINESS ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT.

AS USED HEREIN, THE TERM “AGREEMENT” INCLUDES THE SOFTWARE LICENSE AGREEMENT, ANY DOCUMENTS OR MATERIALS EXPRESSLY INCORPORATED OR LINKED TO HEREIN, AND ANY AMENDMENTS WHICH ARE MUTUALLY ENTERED INTO BETWEEN THE PARTIES.).

1. Applicability of this Agreement

a. This Agreement governs Your rights of use of certain proprietary software program(s) which We are licensing to You for use in Your computing environment (the “Software”) The particular Software which We are licensing to you hereunder is that Software which is specified in an   ordering document which is submitted by You, accepted by Us, and which references this Agreement (in each case, an “Order”).    As used herein, the “Agreement” includes the terms and conditions hereof, along with any documents or materials expressly incorporated herein, along with any amendment hereto which is mutually entered into by the parties.

2. Access To and Use of the Software

a. Rights of Use. During the Term and subject to the terms and restrictions of this Agreement (including Section 2(c)below), We grant You a non-exclusive, non-transferable, limited, time-bounded, license to access and use the Software on the Equipment (defined in Section 2(c) below. The Software to which You are provided a license hereunder shall be the version of such Software which is first made available to You by Us (via a CD, electronic download or as We otherwise make it available to You in Our sole discretion), along with such bug fixes and updates which we make available to You pursuant to Section 2(h) below.

b. Use by Authorized Employees and Consultants. You may only allow the Software to be installed and used by (subject to the limitations of this Agreement) Your employees, employees of Your Affiliates (where an “Affiliate” is an entity which is controlled by, controlling or under common control with You, with “control” meaning the ownership of more than fifty percent (50%) of the voting interests of an entity, but only for so long as such control exists) and third party contractors who You authorize to use the Software in support of Your business operations (and not theirs) and who, if a third party, are bound in a legally enforceable manner by the confidentiality and limited use provisions of this Agreement (collectively, “Authorized Users”). You shall be responsible to ensure that each such Authorized User complies with the terms of this Agreement.

 c. Scope of Use and Related Authorizations.  Subject to the terms and restrictions in the Order (including, for example, any usage limitations specified therein) and in this Agreement , You may use the Software solely: (i) in conjunction with Your use of DTS hardware which You separately purchased from Us and with which the Software is designed to interact (the “DTS Hardware”); (ii) for the purpose of reviewing and examining data produced by such DTS hardware;  (iii) for the purposes described in Our published product documentation We make available as part of the Software (the “Documentation”); and  on a hardware and a system software configuration: (a)  which is on Your premises or otherwise under Your control; and (b) which is then-supported by DTS for use of the Software  (the “Equipment”) .  At all times, Your rights of Use in the Software shall be solely in support of Your internal business operations.

d. Reservation of Rights. Any rights that We do not expressly grant to You in this Agreement are expressly reserved by Us.

e. Additional Restrictions. Unless otherwise expressly permitted in this Agreement, You will not, and shall ensure that Your Authorized Users do not: (i) permit any third-party to access, use or copy all or any portion of the Software; (ii) modify, reverse engineer, decompile, disassemble, distribute, create derivative works based on, copy or otherwise exploit all or any portion of the Software; (iii) sell, sublicense, rent, lease, or otherwise transfer rights to all or any portion of the Software; (vi) use the Software to operate in or as a time-sharing, outsourcing or service bureau environment or in any manner which supports the business or operations of a third party; or (v) use the Software in any manner which: (a) poses a security risk; (b) violates any applicable law or regulation or any acceptable use policy or other terms of use which are posted on Our website (c) introduces offensive, pornographic, infringing or other inappropriate content; or (d) poses a liability risk to Us.

f. Intellectual Property Rights. The Software is licensed, not sold.  Except for the rights of use expressly granted herein, DTS solely and exclusively retains all right, title and interest in and to the Software, and in and to the associated documentation and materials, and all related intellectual property, modifications and derivative works (such as bug fixes and updates), including all know-how, methods and processes, as well as all related technology and all content (other than Your Data).  Similarly, any work product or intellectual property developed by DTS will belong solely and exclusively to DTS.

g. Your Data.  “Your Data” is all data or information provided by You to Us in connection with Your use of the Software.  All of Your Data shall remain Your property or the property of Your licensors (as applicable).

h. Support and Services.  We will make available telephone and email support to You in accordance with our then-current standard support hours and policies.  In addition, We will make available for download and installation by You those bug fixes and updates to the Software which we generally make available at no additional fee for Our clients at-large who are then licensees of Your licensed version of the Software.     You agree to promptly install such bug fixes and updates. No professional services are included under this Agreement.

i. Third Party Items.  Websites, products, services, content or technology owned by third parties (“Third Party Items”) may be utilized by You in concert with the Software, and the Software may enable you to interact with certain Third Party Items.  Unless otherwise expressly provided in this Agreement or an Order Form, We are not responsible for any Third Party Items and You bear all risks associated with the access and use of such Third Party Items and any terms associated therewith. Third Party Items include open source software programs which are identified at (www.dtsweb.com), which may be subject to terms and conditions which are described at the above URL (including via a link), are presented with the open source software or are otherwise readily accessible. You shall be responsible review and abide by all such terms prior to any use of the corresponding open source software programs.

3. Term and Termination

a. Initial Term and Renewals. The term of this Agreement (the “Term”) shall extend for as long as You are using the DTS Hardware with which the Software is designed to interact.   If this Agreement is terminated prior to the expiration of its Term as authorized hereunder, then the Term shall be deemed reduced accordingly.

b. Termination; Suspension.  Either party may terminate this Agreement upon written notice if the other party breaches any material provision of this Agreement and fails, within thirty (30) days after receipt of written notice of such breach, to correct the breach.    In addition, We may terminate this Agreement, and Your right to continue use of the Software, immediately (without notice) if You are in breach of a separate agreement with Us involving hardware (including the DTS Hardware) or services which are provided or used in connection or in association with the Software.  Without limiting the above, We may immediately terminate (upon written notice) this Agreement, and Your rights of use in, or any Authorized User’s rights of use in, the Software if We determine that You (or any Authorized User) have misused the Software in violation of any material term hereof or Your (or Your Authorized User’s) use of the Software presents an imminent security, operational or liability risk.

c. Effect of Termination.  Upon termination, all rights and obligations under this Agreement will automatically terminate except as otherwise provided below. In addition, You will return any of our proprietary materials (including all copies of the Software), information and documents, along with any of our Confidential Information and immediately cease all access to, and use of, the Software.  The terms of Sections 2(f), 2(g), 3(c), 4, 5(c), 6, and 7 hereof shall expressly survive expiration or termination of this Agreement.

4. Financial Terms.  The fees for the license to the Software, and associated payment terms, shall be as set forth in the Order. Invoiced amounts not paid by their due date shall be subject to a one percent (1%) per month interest fee, or the maximum amount permitted by applicable law, whichever is less. Prices do not include, and You shall promptly pay, all applicable taxes in connection with the Software, or any payments made, under this Agreement.

5. WARRANTY, DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY.  

a. We warrant, for the Term hereof, and conditioned on Your use of the Software in compliance herewith, that We will use commercially reasonable efforts to enable the Software to perform in all material respects in accordance with the applicable descriptions set forth in Our applicable Documentation. If You provide written notice to Us of the non-conformity and We can confirm such non-conformity, We will exert commercially reasonable efforts to remedy the non-conformity (by making available any associated remedy to You for Your download and installation) such that the Software performs in material compliance with the Documentation.  If We are unable to remedy the non-conformity within a commercially reasonable period of time, then Your sole and exclusive remedy will be to terminate this Agreement, and Your rights of use of the Software, upon written notice to Us.

b. DTS MAKES NO OTHER WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, AND EXPLICITLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE.  DTS EXPRESSLY DOES NOT WARRANT THAT THE SOFTWARE, IN WHOLE OR IN PART, WILL BE ERROR FREE OR WILL OPERATE WITHOUT INTERRUPTION. DTS FURTHER DISCLAIMS ANY WARRANTY FOR ANY THIRD PARTY ITEM OR IN CONNECTION WITH THE RESULTS OBTAINED FROM THE USE OF THE SOFTWARE.

c. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL DTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST PROFITS, LOST REVENUE, LOST DATA, OR BUSINESS INTERRUPTION ARISING OUT OF THE USE, OR INABILITY TO USE, THE SOFTWARE OR OTHERWISE ARISING IN CONNECTION WITH THIS AGREEMENT.  TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL THE LIABILITY OF DTS UNDER THIS AGREEMENT EXCEED THE LESSER OF THE FEES WHICH YOU PAID FOR THE LICENSE TO THE SOFTWARE DURING THE INITIAL TWELVE (12) MONTHS OF THE APPLICABLE ORDER (I.E., THE ORDER UNDER WHICH THE LIABILITY ARISES). . THE REMEDIES AND LIMITATIONS PROVIDED IN THIS AGREEMENT ARE EXCLUSIVE, SHALL APPLY TO ALL CAUSES OF ACTION (INCLUDING NEGLIGENCE) AND SHALL APPLY REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSES OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.

6. Indemnities.

a. Intellectual Property Indemnity by US.  We will defend, indemnify and hold You harmless from and against any damages, losses, and costs that You incur as a direct result of a claim brought by a third party which alleges that the Software provided by Us hereunder (in the unmodified form which We provide it to You and as used for its intended purposes) infringe a third party’s United States intellectual property right.  As a condition of Our indemnity obligation, You must promptly notify Us of any such claim; grant Us sole control of the defense and settlement of any such claim; and cooperate with Us to facilitate Our ability to settle or defend the claim. In the event of a covered infringement claim, We may choose to obtain for You the right to continue using the Software; or to replace or modify the Software so that it is not infringing and materially similar.  If these alternatives are not commercially reasonable, We may terminate Your license to use the Software.  We shall have no indemnity obligations to You if the infringement claim is caused by your misuse of the Software, or Your use of the Software in combination with unauthorized products or services. THESE ARE OUR EXCLUSIVE OBLIGATIONS WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

b. Indemnities from You In Favor of Us.  You will defend, indemnify, hold Us and Our agents, employees, officers and directors (collectively and individually “We” or “Us” for purposes of this Section) harmless from and against any loss, cost and expenses arising from or in connection with: (i) any use of the Software  in a manner contrary to or in violation of the terms and conditions (including the license/usage restrictions) of this Agreement or contrary to applicable law, (ii) gross negligence or willful misconduct, or (iii)  any claim that Your Data, or any other product, technology, content or other intellectual property of Yours, infringes any rights of any third party.  As a condition of Your indemnity obligations, We must promptly notify You of any such claim, grant You sole control of the defense of any such claim and of all negotiations for its settlement or compromise; and cooperate with You to facilitate the settlement or defense of the claim.

7. Miscellaneous. 

a. Confidentiality.  “Confidential Information” is non-public information of a party which is provided to the other party hereunder and which is either designated as confidential or of a type which should be recognized by a commercially reasonable party as confidential. Confidential Information of DTS includes the applicable Software and its related documentation and materials, along with the terms and conditions of this Agreement. Unless otherwise required by applicable law or regulation, the party receiving Confidential Information may use it only for the purposes for which it was provided and may not disclose it to any third party unless such third party is providing services or performing obligations hereunder and is bound in writing by confidentiality restrictions substantially similar to those required hereunder. The obligations to maintain the Confidential Information as confidential shall remain in place for so long as the applicable information is maintained as confidential. The limitations on disclosure or use of Confidential information shall not apply to information which (i) is rightfully obtained by the recipient without breach of any confidentiality obligation; (ii) is or becomes known to the public through no act or omission of the recipient; (iii) the recipient develops independently without using Confidential Information of the other party; or (iv) is disclosed in response to a valid court or governmental order, if the recipient has given the other party prior written notice and provides reasonable assistance.

b. Our Use of Your Data.  You grant Us a license to use, reproduce, perform, display and share Your Data as is reasonably necessary in order to provide the Software and associated support, and to otherwise perform Our obligations contemplated hereunder, including by sharing Your Data with third parties that support the performance of Our obligations to You hereunder. In addition, We may utilize Your Data and the data collected or derived about You and Your Authorized Users in connection with the use of the Software (including related support) to determine usage trends, optimize support, perform analytics, create analyses, improve and promote the Software, facilitate research and development, promote and market the effectiveness of the Software (including to clients and prospects),  and for any other business or commercial purpose (collectively, “Analytic Data”); provided that such Analytic Data shall be de-identified (such that it does not contain any personally identifiable information or any information which may reasonably allow for the identification, or re-identification, of any individual) and aggregated. Subject to the above conditions, the Analytic Data shall be treated as Our intellectual property.

c. Right to Use Name and Logo. You hereby grant Us the right to use and display Your company or organization’s name, trademarks and logos to identify it as a user of the Software and for Our marketing and public relations purposes, including marketing materials, advertisements, customer lists, press releases, presentations, and publications during the Term hereof and, further, including on Our websites. We shall obtain Your prior written consent for any other uses of Your company or organization’s name, logos, and trademarks.

d. Independent Contractor Relationship; No Third-Party Beneficiaries. The parties are independent contractors and nothing contained in this Agreement will be construed to create an association, trust, partnership, agency or joint venture between the parties.  This Agreement does not and is not intended to confer any rights or remedies, express or implied, upon any person other than the parties hereto.

e. Assignment.  You may not assign or transfer any part of this Agreement without the prior written consent of DTS.  We may: (i) assign this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Our assets or a controlling interest in Our stock, and (ii) assign any or all of our rights and obligations hereunder to a third party, but will endeavor in each case to provide notice of such assignment as soon as practicable after it occurs.

f. Force Majeure. Neither party will be liable to the other for any failure to perform any of its obligations under this Agreement during any period in which performance is delayed by circumstances not within such party’s reasonable control, such as a natural disaster, act of war or terrorism, government action, labor disruption, internet outages or interruptions or power outages or interruptions, (a “Force Majeure”).

g. Compliance with Laws (Including Export Laws). Each of Us shall abide by all applicable laws and regulations of the United States of America and any applicable foreign country regarding our performance of obligations under this Agreement, and You shall abide by all such laws and regulations in connection with your use of the Software.  Without limiting the above, You shall comply with all applicable import, re-import, export and re-export control laws, orders and regulations of the United States of America and any relevant foreign country.

h. Audit. Upon reasonable notice, We (or Our designated third party auditor) shall have the right to audit, at Our expense, Your use of the Software to ensure past and ongoing compliance with this Agreement.

i. Entire Agreement; Severability; Waiver. This Agreement is the entire agreement between You and DTS with respect to its subject matter and supersedes all prior oral and written understandings, communications or agreements between you and DTS regarding that subject matter. No amendment to or modification of this Agreement will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any provision of this Agreement is found to be void or unenforceable, the provision will be stricken or modified and the remainder of this Agreement will remain in full force and will not be terminated. A waiver of any default is not a waiver of any subsequent default. All waivers must be in writing to be effective.

j. Governing Law and Jurisdiction.   The laws of the State of California shall govern the interpretation and enforcement of this Agreement and any dispute arising out of or related hereto, without regard to its conflict of laws principles.  The parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in Orange County, California with respect to any dispute arising out of or relating to this Agreement.

k. Contract for Services. The parties agree that the provisions of the Uniform Commercial Code (UCC) and the Uniform Computer Information Transaction Act (UCITA) shall not apply hereto.  If You are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply hereto.

l. Notices.  All notices must be in writing and shall be sent by first class U.S. mail or a nationally known express or overnight courier (such as FedEx, UPS or the U.S. Postal Service).  Notices to Us shall be sent to Our main address as listed on Our website and, for each notice, a copy shall also be sent to Our CFO. Notice to You may be sent to Your address set forth in the Order or to an address listed on Your website.  Notices shall be deemed given upon receipt thereof. Without limitation, notices delivered by courier shall be deemed received on the date shown on the courier’s confirmation of delivery.

m. Government. The Software may not be used by, for, or on behalf of any governmental agency or body absent Our express consent in the applicable Order. The Software and any related Documentation are “Commercial Items”, as that term is defined in 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable.  Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through §227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.  Unpublished rights are reserved under the copyright laws of the United States.

n. Data Security Laws. In the event that, in the course of performing obligations or exercising rights hereunder, a party processes, handles, stores, transfers or accesses any data which is protected or regulated by applicable data security or data privacy laws (collectively, “Applicable Data Laws”), then each party shall comply with each Applicable Data Law to the extent it applies to such party.  In addition, to the extent so required by an Applicable Data Law, the parties agree to negotiate in good faith to timely enter into additional terms or documents which are required in order to comply therewith.  If the parties are unable to comply with any such Applicable Data Law, or if the parties cannot agree to enter into required terms or documents, within the necessary time frame for compliance, then each applicable Order (i.e., each Order with respect to which one or both parties would be in non-compliance with an Applicable Data Law) shall be terminated by the parties.

You agree to implement practices and policies designed to limit the provision of data which is protected or regulated by any Applicable Data Law to those instances (if any) where such data is necessary for You to effectively exercise the rights granted to You hereunder and, in such instances, You shall ensure that such data is transmitted or made available by You to Us in a form or manner which complies with the Applicable Data Laws.