Licensed Application End User License Agreement

The RadPhysics Services LLC (RadPhysics) computer software (collectively, “Computer Software Products”) made available through RadPhysics via phone order or other means of purchase to RadPhysics are licensed, not sold, to you.

Your license to Computer Software Products that you obtain through  RadPhysics  is subject to your acceptance of the Licensed Application End User License Agreement (“Agreement”), and you agree that the terms of this Agreement will apply to RadPhysics Computer Software Products that you license through RadPhysics.

YOUR LICENSE TO COMPUTER SOFTWARE PRODUCTS THAT YOU OBTAIN BY PHONE ORDER OR OTHER MEANS OF PURCHASE THROUGH RADPHYSICS IS SUBJECT TO YOUR ACCEPTANCE OF THE AGREEMENT, AND YOU AGREE THAT THE TERMS OF THIS AGREEMENT WILL APPLY TO RADPHYSICS COMPUTER SOFTWARE THAT YOU LICENSE THROUGH THE RADPHYSICS VIA PHONE ORDER OR OTHER MEANS OF PURCHASE. PURCHASE OF MERP COMPUTER SOFTWARE PRODUCTS REQUIRES A SEPARATE SOFTWARE LICENSE AGREEMENT (MERP AGREEMENT) BETWEEN RADPHYSICS AND THE END USER.

DETAILS OF AGREEMENT

THIS AGREEMENT IS ENTERED INTO EFFECTIVE THE DATE AND TIME THE PHONE ORDER OR OTHER MEANS OF PURCHASE IS PLACED (THE “EFFECTIVE DATE”), BY AND BETWEEN RADPHYSICS SERVICES LLC, A NEW MEXICO LIMITED LIABILITY COMPANY HAVING OFFICES AT 5405 HIGH DESERT PLACE NE, ALBUQUERQUE, NM 87111 (“RADPHYSICS”), AND END USER (“LICENSEE”).

WHEREAS, RADPHYSICS OWNS OR HAS THE RIGHT TO LICENSE CERTAIN PROPRIETARY COMPUTER SOFTWARE PRODUCTS AND AS DEFINED HEREIN AND IS WILLING TO ALLOW LICENSEE TO USE SUCH COMPUTER SOFTWARE PRODUCTS ON A NON-EXCLUSIVE BASIS IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT; AND

WHEREAS, LICENSEE DESIRES TO OBTAIN FROM RADPHYSICS A NON-EXCLUSIVE LICENSE FOR THE COMPUTER SOFTWARE PRODUCTS DEFINED HEREIN IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT.

NOW, THEREFORE, IN CONSIDERATION OF THE FORGOING AND THE MUTUAL COVENANTS, PROMISES, AND OBLIGATIONS SET FORTH HEREIN, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, RADPHYSICS AND LICENSEE, INTENDING TO BE LEGALLY BOUND, HEREBY AGREE AS FOLLOWS:

1. DEFINITIONS.

THE PARTIES ACKNOWLEDGE AND AGREE THAT THE FOLLOWING DEFINITIONS ARE NOT EXHAUSTIVE OF ALL DEFINED TERMS IN THIS AGREEMENT, THAT ELSEWHERE IN THIS AGREEMENT OTHER TERMS MAY ALSO BE DEFINED, AND THAT THOSE OTHER TERMS SHALL HAVE THE MEANINGS AS MAY BE SPECIFIED OR ASSIGNED TO THEM ELSEWHERE IN THIS AGREEMENT.

1.1 “AFFILIATE” MEANS ANY CORPORATION OR OTHER ENTITY WHICH, DIRECTLY OR INDIRECTLY, CONTROLS OR IS CONTROLLED BY OR IS UNDER COMMON CONTROL WITH LICENSEE. FOR THIS PURPOSE, “CONTROL” MEANS THE POSSESSION, DIRECTLY OR INDIRECTLY, OF THE POWER TO DIRECT OR CAUSE THE DIRECTION OF THE MANAGEMENT AND POLICIES OF SUCH CORPORATION OR OTHER ENTITY, WHETHER THROUGH THE OWNERSHIP OF VOTING SECURITIES OR BY CONTRACT OR OTHERWISE, BUT SUCH CORPORATION OR OTHER ENTITY SHALL BE DEEMED TO BE AN AFFILIATE ONLY AS LONG AS SUCH OWNERSHIP OR CONTROL EXISTS.

1.2 “AUTHORIZED LOCATION” LICENSEE LOCATION(S) SPECIFIED IN EXHIBIT “A” ATTACHED HERETO AS MAY BE AMENDED FROM TIME TO TIME.

1.3 “CONFIDENTIAL INFORMATION” MEANS THE LICENSED MATERIALS AND ANY AND ALL (A) TECHNICAL INFORMATION OF A PARTY TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, PATENTS, TECHNIQUES, SKETCHES, DRAWINGS, MODELS, INVENTIONS, KNOW-HOW, PROCESSES, APPARATUS, EQUIPMENT, ALGORITHMS, SYSTEMS INFORMATION, SOFTWARE PROGRAMS, SOFTWARE SOURCE DOCUMENTS, FORMULAE RELATED TO SUCH PARTY’S CURRENT, FUTURE, AND PROPOSED PRODUCTS AND SERVICES, AND INFORMATION CONCERNING RESEARCH, EXPERIMENTAL WORK, DEVELOPMENT, DESIGN DETAILS AND SPECIFICATIONS, AND ENGINEERING; (B) NON-TECHNICAL INFORMATION REGARDING THE BUSINESS AND AFFAIRS OF A PARTY, INCLUDING, WITHOUT LIMITATION, COMMERCIAL, OPERATIONAL, AND FINANCIAL INFORMATION, BUSINESS FORECASTS AND DEVELOPMENT LEADS, MARKETING STRATEGIES, PLANS, AND RELATED INFORMATION, PROCUREMENT REQUIREMENTS, PURCHASING AND MANUFACTURING INFORMATION, RATES AND PRICING INFORMATION, SALES AND MERCHANDISING INFORMATION, LICENSEE LISTS, LICENSEE CONTRACT TERMS, SUPPLIER/VENDOR CONTRACT TERMS, CARRIER CONTRACT TERMS, SCHEDULES OF INVENTORY AND ACCOUNTS RECEIVABLE, AND FACILITY BLUE PRINTS; (C) OTHER TRADE SECRETS AND PROPRIETARY INFORMATION OF A PARTY; AND (D) NOTES, ANALYSES, SCHEDULES, COMPILATIONS, STUDIES OR OTHER MATERIAL PREPARED BY A PARTY, WHETHER IN WRITTEN FORM OR RECORDED ELECTRONICALLY OR OTHERWISE, CONTAINING OR BASED IN WHOLE OR IN PART ON THOSE ITEMS DESCRIBED IN (A), (B), OR (C) ABOVE.

1.4 “HARDWARE” MEANS THE COMPUTERS, HARDWARE PLATFORMS, PERIPHERALS AND ANY ACCESSORIES CONNECTED THERETO THAT ARE REQUIRED TO OPERATE THE LICENSED SOFTWARE PRODUCTS.

1.5 “LICENSED DOCUMENTATION” MEANS THE USER MANUALS, TRAINING MATERIALS, GUIDES, LISTINGS, SPECIFICATIONS, AND OTHER MATERIALS AVAILABLE FROM RADPHYSICS FOR USE IN CONJUNCTION WITH THE PRODUCTS OR PROVIDED BY RADPHYSICS AS DESCRIBED MORE FULLY IN EXHIBIT “A” ATTACHED HERETO.

1.6 “LICENSED MATERIALS” MEANS THE LICENSED DOCUMENTATION, LICENSED SOFTWARE PRODUCTS AND ANY MATERIALS RELATED THERETO PROVIDED BY RADPHYSICS AS DESCRIBED MORE FULLY IN EXHIBIT “A” ATTACHED HERETO.

1.7 “LICENSED SOFTWARE PODUCTS” MEANS THE COMPUTER SOFTWARE PRODUCTS PROVIDED BY RADPHYSICS AS DESCRIBED MORE FULLY IN EXHIBIT “A” ATTACHED HERETO. THE LICENSED SOFTWARE PRODUCTS INCLUDES ITS MACHINE READABLE OBJECT CODE FORM AND ALL RELEVANT EXPLANATIONS AND DOCUMENTATION OF THE OBJECT CODE. THE LICENSED SOFTWARE PRODUCTS MAY ALSO INCLUDE UPDATES; BUT DOES NOT INCLUDE NEW PRODUCTS.

1.8 “MAXIMUM NUMBER OF USERS” MEANS COLLECTIVELY THE DESIGNATED TOTAL NUMBER OF USERS SPECIFIED IN EXHIBIT “A” ATTACHED HERETO WHICH IS UNLIMITED PER AUTHORIZED LOCATION, THAT ARE ALLOWED TO USE THE LICENSED SOFTWARE AT THE AUTHORIZED LOCATION(S).

1.9 “NEW PRODUCTS” MEANS: (A) NEW OR DIFFERENT COMPUTER PROGRAMS WHICH USE ALL OR PART OF THE LICENSED SOFTWARE PRODUCTS AND WHICH PERFORM ALL OR PART OF THE FUNCTIONS PERFORMED BY THE LICENSED SOFTWARE PRODUCTS; OR (B) NEW MODULES OR ADD-ON MODULES TO THE LICENSED SOFTWARE PRODUCTS WHICH PERFORM SUBSTANTIALLY DIFFERENT FUNCTIONS IN SUBSTANTIALLY DIFFERENT WAYS AND WHICH IN RADPHYSICS’ REASONABLE COMMERCIAL JUDGMENT CONTAIN SUCH ADDED FUNCTIONALITY THAT AN ADDITIONAL FEE FOR SUCH MODULES IS WARRANTED. NOTHING CONTAINED IN THIS AGREEMENT GIVES LICENSEE ANY RIGHTS WITH RESPECT TO SUCH NEW PRODUCTS.

1.10 “OTHER PRODUCTS” MEANS HARDWARE, SOFTWARE AND SERVICES PROVIDED BY THIRD PARTIES TO LICENSEE.

1.11 “UPDATES” SHALL MEAN ANY REVISIONS, UPDATES, UPGRADES, RELEASES, MODIFICATIONS, “BUG” FIXES OR CORRECTIONS OF THE LICENSED SOFTWARE PRODUCTS, LICENSED DOCUMENTATION OR ANY COMPONENT THEREOF, MADE BY RADPHYSICS OR ITS DESIGNEE, WHICH SHALL BE MADE ON A WHEN AND IF AVAILABLE BASIS TO LICENSEE BY RADPHYSICS UNDER THE TERMS AND CONDITIONS OF THIS AGREEMENT. UPDATES DO NOT INCLUDE NEW PRODUCTS.

2. TERM AND TERM EXTENSION.

2.1 TERM. THE TERM OF THIS AGREEMENT (“LICENSE TERM”) SHALL BEGIN ON THE EFFECTIVE DATE AND SHALL CONTINUE INDEFINITELY UNLESS OTHERWISE TERMINATED IN ACCORDANCE WITH THIS AGREEMENT. AS USED HEREIN, THE LICENSE TERM INCLUDES ALL RENEWALS AND EXTENSIONS WHEN APPLICABLE.

2.2 AUTOMATIC RENEWAL. IF THE LICENSE TERM IS NOT PERPETUAL, THE LICENSE TERM SHALL BE AUTOMATICALLY RENEWED FOR SUCCESSIVE ONE (1) YEAR TERMS ON THE ANNIVERSARY DATES OF THE EFFECTIVE DATE, UNLESS EITHER RADPHYSICS OR LICENSEE HAS GIVEN THE OTHER AT LEAST THIRTY (30) DAYS PRIOR WRITTEN NOTICE CANCELING RADPHYSICS’ MAINTENANCE AND SUPPORT. IF THERE IS AN INCREASE IN ANNUAL MAINTENANCE AND SUPPORT FEES OVER THE PRECEDING YEAR, LICENSEE MAY ALSO PREVENT SUCH AUTOMATIC RENEWAL BY GIVING RADPHYSICS WRITTEN NOTICE OF CANCELLATION WITHIN FIFTEEN (15) DAYS OF RECEIPT OF RADPHYSICS’ INVOICE SHOWING SUCH INCREASE.

3. LICENSE GRANT AND RESTRICTIONS.

3.1 GRANT OF LICENSE. RADPHYSICS HEREBY GRANTS TO LICENSEE ONLY AND NOT TO ANY AFFILIATE, AND LICENSEE HEREBY ACCEPTS FROM RADPHYSICS, A NON-EXCLUSIVE, NON-SUBLICENSABLE, NON TRANSFERABLE, NONASSIGNABLE LIMITED LICENSE TO USE THE LICENSED MATERIALS AT EACH AUTHORIZED LOCATION BY THE MAXIMUM NUMBER OF USERS FOR INTERNAL PURPOSES ONLY IN ACCORDANCE WITH THIS AGREEMENT DURING THE LICENSE TERM.

3.2 AUTHORIZED USE. LICENSEE IS AUTHORIZED TO USE THE LICENSED MATERIALS ONLY BY THE MAXIMUM NUMBER OF USERS AT THE AUTHORIZED LOCATION(S). LICENSEE ACKNOWLEDGES AND AGREES THAT IT WILL NOT USE OR PERMIT THE LICENSED MATERIALS TO BE USED IN ANY MANNER, WHETHER DIRECTLY OR INDIRECTLY, THAT WOULD ENABLE LICENSEE’S EMPLOYEES, OR ANY OTHER PERSON OR ENTITY TO USE THE LICENSED MATERIALS WHILE EXCEEDING THE MAXIMUM NUMBER OF USERS AT THE AUTHORIZED LOCATION(S). LICENSEE WILL TAKE COMMERCIALLY REASONABLE STEPS TO PROTECT THE SECURITY AND CONFIDENTIALITY OF THE LICENSED MATERIALS AND ALL DATA, INFORMATIONAL PROGRAMS, SYSTEMS, MATERIALS, TECHNIQUES, OR PROCEDURES WHICH ARE DELIVERED TO LICENSEE BY RADPHYSICS.

3.3 PROPRIETARY MARKINGS. LICENSEE ACKNOWLEDGES AND AGREES NOT TO REMOVE OR DESTROY ANY TRADEMARKS, PROPRIETARY OR COPYRIGHT MARKINGS, PATENTS, OR CONFIDENTIAL LEGENDS PLACED UPON OR CONTAINED WITHIN THE LICENSED MATERIALS OR ANY RELATED MATERIAL AND DOCUMENTATION. FURTHER, LICENSEE AGREES TO INCLUDE RADPHYSICS COPYRIGHT NOTICE ON ALL COPIES, IN WHOLE OR IN PART, OF THE LICENSED MATERIALS, IN ANY FORM INCLUDING MACHINE READABLE FORM, MADE BY LICENSEE IN ACCORDANCE WITH THIS AGREEMENT.

3.4 COPIES. LICENSEE ACKNOWLEDGES AND AGREES THAT WHILE THIS AGREEMENT IS IN EFFECT OR WHILE LICENSEE HAS CUSTODY OR POSSESSION OF THE LICENSED MATERIALS, LICENSEE SHALL NOT COPY OR DUPLICATE, OR PERMIT ANYONE ELSE TO COPY OR DUPLICATE, ANY PHYSICAL, MAGNETIC, OR OTHER VERSION OF THE LICENSED SOFTWARE PRODUCTS, DOCUMENTATION OR INFORMATION FURNISHED BY RADPHYSICS IN MACHINE-READABLE FORM OTHER THAN ONE (1) COPY OF THE LICENSED MATERIALS FOR BACK-UP OR ARCHIVAL PURPOSES ONLY. NOTWITHSTANDING THE FOREGOING, LICENSEE MAY COPY FOR ITS OWN USE AND AT ITS OWN EXPENSE THE LICENSED DOCUMENTATION PROVIDED BY RADPHYSICS. ALL SUCH COPIES SHALL CONTAIN RADPHYSICS’ COPYRIGHT NOTICE AND OWNERSHIP DECLARATION.

3.5 RESTRICTIONS. LICENSEE ACKNOWLEDGES AND AGREES THAT THE FOLLOWING RESTRICTIONS ARE AN ONGOING CONDITION TO THE LICENSE GRANTED TO LICENSEE UNDER THIS AGREEMENT AND ANY VIOLATION OF THESE RESTRICTIONS IS A MATERIAL BREACH OF THE AGREEMENT. LICENSEE: (A) SHALL NOT PUBLISH, DISPLAY, PROVIDE, MARKET, SUBLICENSE, TRANSFER, ASSIGN, DISTRIBUTE, PERMIT TIMESHARE, OR ALLOW ACCESS TO THE LICENSED MATERIALS, OR ANY PORTION THEREOF, TO ANY THIRD PARTY; AND (B) EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, SHALL NOT DISCLOSE THE LICENSED MATERIALS, OR ANY OTHER CONFIDENTIAL INFORMATION PROVIDED BY RADPHYSICS PURSUANT TO THIS AGREEMENT TO ANY PERSON OTHER THAN LICENSEE’S AND AUTHORIZED LOCATIONS’ OFFICERS, EMPLOYEES AND CONSULTANTS/PROFESSIONALS/CONTRACTORS/STAFF WHOSE JOB PERFORMANCE DIRECTLY REQUIRES ACCESS IN ORDER TO PERFORM LICENSEE’S OBLIGATIONS UNDER THIS AGREEMENT AND WHO ARE BOUND BY THE RESTRICTIONS SET FORTH HEREIN BY EMPLOYMENT AGREEMENT OR OTHERWISE. ANY FAILURE BY LICENSEE TO IMPLEMENT ANY IMPROVEMENTS OR UPDATES TO THE LICENSED MATERIALS AS SUPPLIED BY RADPHYSICS SHALL VOID ANY AND ALL OF RADPHYSICS’ OBLIGATIONS UNDER THIS AGREEMENT WHETHER EXPRESSED IN THIS AGREEMENT OR IMPLIED BY LAW.

3.6 PERMISSION. LICENSEE ACKNOWLEDGES AND AGREES THAT THE FOLLOWING PERMISSION IS AN ONGOING CONDITION TO THE LICENSE GRANTED TO LICENSEE UNDER THIS AGREEMENT AND ANY VIOLATION OF THIS PERMISSION IS A MATERIAL BREACH OF THE AGREEMENT. LICENSEE: (A) IS GRANTED PERMISSION, IN ACCORDANCE WITH SUBSECTION 3.3, TO MAKE EDITS OF THE LICENSED MATERIALS WITHOUT THE EXPRESS WRITTEN AUTHORIZATION OF RADPHYSICS; AND (B) LICENSEE AGREES TO INCLUDE RADPHYSICS COPYRIGHT NOTICE ON ALL EDITS AND COPIES, IN WHOLE OR IN PART, OF THE LICENSED MATERIALS, IN ANY FORM INCLUDING MACHINE READABLE FORM, MADE BY LICENSEE IN ACCORDANCE WITH THIS AGREEMENT. ANY FAILURE BY LICENSEE TO COMPLY WITH SUBSECTION 3.3 SHALL VOID ANY AND ALL OF RADPHYSICS’ OBLIGATIONS UNDER THIS AGREEMENT WHETHER EXPRESSED IN THIS AGREEMENT OR IMPLIED BY LAW.

4. INTELLECTUAL PROPERTY RIGHTS.

4.1 TITLE. LICENSEE ACKNOWLEDGES AND AGREES THAT TITLE TO THE LICENSED MATERIALS, INCLUDING ALL COPIES THEREOF, SHALL BE IN AND REMAIN WITH RADPHYSICS. THE PARTIES AGREE THAT ALL INVENTIONS, PRODUCT IMPROVEMENTS, AND MODIFICATIONS TO THE LICENSED MATERIALS CONCEIVED OF OR MADE BY RADPHYSICS THAT ARE BASED, EITHER IN WHOLE OR IN PART, ON LICENSEE’S FEEDBACK, SUGGESTIONS, OR RECOMMENDED IMPROVEMENTS, ARE THE EXCLUSIVE PROPERTY OF RADPHYSICS, AND ALL RIGHTS, TITLE AND INTEREST IN AND TO ANY SUCH INVENTION, PRODUCT IMPROVEMENT, OR MODIFICATION TO THE LICENSED MATERIALS WILL VEST SOLELY IN RADPHYSICS.

4.2 RESERVATION OF RIGHTS. RADPHYSICS CLAIMS AND RESERVES ALL RIGHTS AND BENEFITS AFFORDED UNDER FEDERAL AND INTERNATIONAL COPYRIGHT LAWS. MOREOVER, RADPHYSICS CLAIMS AND RESERVES THE RIGHT TO LICENSE THE LICENSED MATERIALS TO ANY THIRD PARTY IN ITS SOLE DISCRETION WITHOUT ANY NOTICE OR OBLIGATION TO LICENSEE. ANY INTELLECTUAL PROPERTY RIGHTS NOT EXPRESSLY GRANTED TO LICENSEE BY THIS AGREEMENT ARE HEREBY EXPRESSLY RESERVED BY RADPHYSICS.

5. CONFIDENTIALITY.

5.1 MARKING. INFORMATION DISCLOSED BY THE PARTY THAT DISCLOSES INFORMATION TO THE OTHER PARTY (THE “DISCLOSER”) SHALL BE CONSIDERED CONFIDENTIAL INFORMATION BY THE PARTY THAT RECEIVES INFORMATION FROM THE DISCLOSER (THE “RECIPIENT”): (A) IF PROVIDED IN WRITTEN, ELECTRONIC, OR OTHER TANGIBLE FORM,SUCH INFORMATION IS CONSPICUOUSLY DESIGNATED AS “CONFIDENTIAL” OR “PROPRIETARY”; OR (B) IF PROVIDED ORALLY, IS DESIGNATED TO BE CONFIDENTIAL INFORMATION AT THE TIME OF DISCLOSURE OR IN WRITING WITHIN FIVE (5) DAYS OF THE DISCLOSURE, OR WHICH UNDER THE CIRCUMSTANCES SURROUNDING DISCLOSURE REASONABLY INDICATE THAT THEY SHOULD BE TREATED AS CONFIDENTIAL INFORMATION. NOTWITHSTANDING THE FOREGOING, THE LICENSED MATERIALS SHALL BE CONSIDERED CONFIDENTIAL INFORMATION WHETHER OR NOT THEY ARE CONSPICUOUSLY DESIGNATED AS “CONFIDENTIAL” OR “PROPRIETARY”.

5.2 NONDISCLOSURE OBLIGATION. EACH RECIPIENT ACKNOWLEDGES AND AGREES THAT IT SHALL NOT, WITHOUT THE DISCLOSER’S PRIOR WRITTEN CONSENT, DIRECTLY OR INDIRECTLY, THROUGH ITS EMPLOYEES, REPRESENTATIVES, AGENTS OR OTHERWISE: (A) DISCLOSE THE CONFIDENTIAL INFORMATION OF DISCLOSER TO ANY OTHER PERSON; (B) COPY, PHOTOGRAPH, PHOTOCOPY, REDUCE TO WRITING, RECORD OR STORE IN ANY ELECTRONIC FORMAT, OR OTHERWISE REPRODUCE OR DUPLICATE THE DISCLOSER’S CONFIDENTIAL INFORMATION, EXCEPT AS REASONABLY NECESSARY FOR RECIPIENT TO PERFORM IN ACCORDANCE WITH THIS AGREEMENT; OR (C) TAKE ANY OTHER ACTIONS IN CONNECTION WITH THE DISCLOSER’S CONFIDENTIAL INFORMATION THAT WOULD BE DETRIMENTAL THERETO. EACH RECIPIENT ACKNOWLEDGES AND AGREES THAT IT SHALL TREAT THE CONFIDENTIAL INFORMATION OF DISCLOSER WITH AT LEAST THE SAME DEGREE OF CARE AS IT ACCORDS TO ITS OWN CONFIDENTIAL INFORMATION, WHICH IN NO CASE SHALL BE LESS THAN REASONABLE CARE. EACH PARTY ACKNOWLEDGES AND AGREES THAT IT SHALL DISCLOSE CONFIDENTIAL INFORMATION OF THE OTHER PARTY ONLY TO THOSE OF ITS EMPLOYEES, REPRESENTATIVES, AND AGENTS WHO NEED TO RECEIVE SUCH INFORMATION IN THE PERFORMANCE OF THEIR WORK DUTIES AND CERTIFIES THAT SUCH EMPLOYEES, REPRESENTATIVES, AND AGENTS HAVE PREVIOUSLY AGREED, EITHER AS A CONDITION TO EMPLOYMENT OR IN ORDER TO RECEIVE THE CONFIDENTIAL INFORMATION, TO BE BOUND BY TERMS AND CONDITIONS SUBSTANTIALLY SIMILAR TO THOSE OF THIS AGREEMENT.

5.3 NOTICE OF UNAUTHORIZED USE OR DISCLOSURE. THE RECIPIENT SHALL GIVE WRITTEN NOTICE TO THE DISCLOSER OF ANY UNAUTHORIZED USE OR DISCLOSURE BY THE RECIPIENT OF THE DISCLOSER’S CONFIDENTIAL INFORMATION IMMEDIATELY AFTER DISCOVERY OF SUCH USE OR DISCLOSURE AND FURTHER AGREES TO EXERT ITS REASONABLY BEST EFFORTS TO ASSIST THE DISCLOSER IN REMEDYING ANY SUCH UNAUTHORIZED USE OR DISCLOSURE OF THE DISCLOSER’S CONFIDENTIAL INFORMATION. IF THE RECIPIENT IS REQUESTED TO DISCLOSE THE DISCLOSER’S CONFIDENTIAL INFORMATION IN VIOLATION OF THE TERMS OF THIS AGREEMENT, WHETHER BY A THIRD PARTY OR IN RESPONSE TO A VALID ORDER BY A COURT OR OTHER GOVERNMENTAL BODY OR OTHERWISE REQUIRED BY LAW, THE RECIPIENT SHALL IMMEDIATELY GIVE WRITTEN NOTICE AS SOON AS REASONABLY POSSIBLE TO THE DISCLOSER OF SUCH REQUEST AND PROVIDE THE RECIPIENT A REASONABLE PERIOD OF TIME, IF POSSIBLE TO DETERMINE A COURSE OF ACTION PRIOR TO AGREEING TO SUCH DISCLOSURE. IN ADDITION, THE RECIPIENT SHALL REASONABLY COOPERATE WITH AND PROVIDE REASONABLE ASSISTANCE TO THE DISCLOSER, AT THE EXPENSE OF DISCLOSER, IN THE EVENT DISCLOSER DECIDES TO RESIST THE REQUEST TO DISCLOSE THE DISCLOSER’S CONFIDENTIAL INFORMATION.

5.4 EXCLUSIONS FROM NONDISCLOSURE OBLIGATIONS. THE NONDISCLOSURE OBLIGATIONS OF THIS AGREEMENT SHALL NOT APPLY TO ANY PORTION OF THE DISCLOSER’S CONFIDENTIAL INFORMATION IN WHICH THE RECIPIENT CAN REASONABLY ESTABLISH IN WRITING THAT: (A) THE CONFIDENTIAL INFORMATION IS PART OF THE PUBLIC DOMAIN THROUGH NO FAULT OF THE RECIPIENT; (B) THE CONFIDENTIAL INFORMATION WAS LAWFULLY IN THE RECIPIENT’S POSSESSION FREE OF ANY OBLIGATION OF CONFIDENTIALITY AT OR SUBSEQUENT TO THE TIME IT WAS COMMUNICATED TO THE RECIPIENT BY THE DISCLOSER; (C) THE CONFIDENTIAL INFORMATION WAS DEVELOPED BY EMPLOYEES, REPRESENTATIVES, OR AGENTS OF THE RECIPIENT INDEPENDENTLY OF AND WITHOUT REFERENCE TO ANY INFORMATION COMMUNICATED TO THE RECIPIENT BY THE DISCLOSER; (D) THE CONFIDENTIAL INFORMATION WAS COMMUNICATED BY THE DISCLOSER TO AN UNAFFILIATED THIRD PARTY WITHOUT ANY OBLIGATION OF CONFIDENTIALITY; OR (E) SUBJECT TO SUBSECTION 5.3, THE DISCLOSURE OF THE CONFIDENTIAL INFORMATION WAS IN RESPONSE TO A VALID ORDER BY A COURT OR OTHER GOVERNMENTAL BODY OR WAS OTHERWISE REQUIRED BY LAW.

5.5 DISCLOSURE OF THIRD PARTY INFORMATION. NEITHER PARTY SHALL DISCLOSE TO THE OTHER ANY INFORMATION RECEIVED FROM A THIRD PARTY IF SUCH DISCLOSURE CONSTITUTES A VIOLATION OF THE PROPRIETARY RIGHTS OF THE THIRD PARTY.

5.6 DURATION. NOTWITHSTANDING THE EARLIER TERMINATION OF THIS AGREEMENT, THE OBLIGATIONS RELATING TO CONFIDENTIALITY ARE TO REMAIN IN EFFECT FOR A PERIOD OF TEN (10) YEARS AFTER THE EXPIRATION OR TERMINATION OF THIS AGREEMENT.

5.7 INJUNCTIVE RELIEF. THE PARTIES ACKNOWLEDGE AND AGREE THAT THEIR OBLIGATIONS UNDER SECTIONS 3 AND 5 ARE NECESSARY AND REASONABLE IN ORDER TO PROTECT THEIR RESPECTIVE BUSINESS, AND THAT MONETARY DAMAGES WOULD BE INADEQUATE TO COMPENSATE FOR ANY BREACH OF THESE SECTIONS. ACCORDINGLY, EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY SUCH BREACH OR THREATENED BREACH OF THESE SECTIONS MAY CAUSE IRREPARABLE INJURY AND THAT, IN ADDITION TO ANY OTHER REMEDIES THAT MAY BE AVAILABLE, IN LAW, EQUITY OR OTHERWISE, THE OTHER PARTY SHALL BE ENTITLED TO SEEK INJUNCTIVE RELIEF (PRELIMINARY OR OTHERWISE) IN THE EVENT OF AN ACTUAL OR THREATENED BREACH OF THIS AGREEMENT OR THE CONTINUATION OF ANY SUCH BREACH, WITHOUT THE NECESSITY OF POSTING A BOND.

6. FEES, PAYMENT AND DELIVERY.

6.1 FEES. LICENSEE SHALL PAY RADPHYSICS THE LICENSE FEES (“LICENSE FEES”) AND, WHEN APPLICABLE, SUBSCRIPTION FEES (“LICENSE SUBSCRIPTION FEES”) IN THE MANNER AND TIME SPECIFIED IN EXHIBIT “A” ATTACHED HERETO. FAILURE TO TIMELY PAY THE LICENSE FEES OR LICENSE SUBSCRIPTION FEES IS A MATERIAL BREACH OF THIS AGREEMENT. WHENEVER THE LICENSE TERM SPECIFIED IN EXHIBIT “A” IS NOT PERPETUAL, FAILURE TO TIMELY PAY THE LICENSE SUBSCRIPTION FEES IS A MATERIAL BREACH OF THIS AGREEMENT.

6.2 RELEASE OF MATERIALS. RADPHYSICS AUTHORIZES PURCHASES OF LICENSED MATERIALS USING PHONE OR OTHER MEANS OF PURCHASES OF LICENSED MATERIALS BY CALLING RADPHYSICS. LICENSEE SHALL NOT MORTGAGE, PLEDGE OR ENCUMBER THE LICENSED MATERIALS IN ANY WAY.

6.3 UPDATES. SUBJECT TO THE PAYMENT OF THE LICENSE FEES, RADPHYSICS WILL PROVIDE UPDATES TO THE LICENSED MATERIALS DURING THE LICENSE TERM. SUCH UPDATES ARE LICENSED MATERIALS SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

6.4 PAYMENTS AND INTEREST. UNLESS OTHERWISE SPECIFIED IN EXHIBIT “A” ATTACHED HERETO, PURCHASE OF LICENSED MATERIALS OVER-THE-PHONE, OR BY CHECK OR MONEY ORDER, OR BY OTHER MEANS OF PURCHASE, IF PAYMENT IS NOT MADE AT TIME OF PURCHASE, THEN RADPHYSICS WILL INVOICE LICENSEE FOR THE LICENSE FEES AND, IF APPLICABLE, FOR ALL LICENSE MATERIALS. ALL INVOICE PAYMENTS SHALL BE DUE AND PAYABLE ON LICENSEE’S RECEIPT OF THE INVOICE FROM RADPHYSICS. ALL PAYMENTS SHALL BE MADE IN U.S. DOLLARS. RADPHYSICS RESERVES THE RIGHT TO IMPOSE AN INTEREST CHARGE NOT EXCEEDING TWO AND ONE-HALF PERCENT (2-1/2%) PER MONTH, OR FRACTION THEREOF, FOR FAILURE TO MAKE A PAYMENT WITHIN THIRTY (30) DAYS OF INVOICE DATE. LICENSEE’S OBLIGATION TO PAY ALL ACCRUED CHARGES SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT.

6.5 TAXES AND OTHER CHARGES. IN ADDITION TO ALL CHARGES SPECIFIED IN THIS AGREEMENT, LICENSEE SHALL PAY OR REIMBURSE RADPHYSICS FOR ALL FEDERAL, STATE, LOCAL OR OTHER TAXES NOT BASED ON RADPHYSICS’ NET INCOME OR NET WORTH INCLUDING, BUT NOT LIMITED TO, SALES, USE, OCCUPATIONAL AND PROPERTY TAXES, GROSS RECEIPTS TAX, OR AMOUNTS LEVIED IN LIEU THEREOF, BASED ON CHARGES PAYABLE UNDER THIS AGREEMENT OR BASED ON THE RADPHYSICS PRODUCTS, ITS USE OR ANY SERVICES PERFORMED HEREUNDER, WHETHER SUCH TAXES ARE NOW OR HEREAFTER IMPOSED UNDER AUTHORITY OF ANY FEDERAL, STATE, MUNICIPAL, OR OTHER TAXING JURISDICTION.

7. COOPERATION, MAINTENANCE AND SUPPORT.

7.1 FEES AND UPDATES. UNLESS OTHERWISE SPECIFIED IN EXHIBIT “A” ATTACHED HERETO, PAYMENT OF THE ANNUAL SUPPORT AND MAINTENANCE FEES IS REQUIRED TO RECEIVE UPDATES (SECTION 6.3) AND SERVICES (SECTION 7.1) DURING THE YEAR. WHENEVER THE LICENSE TERM SPECIFIED IN EXHIBIT “A” IS PERPETUAL, FAILURE TO TIMELY PAY THE LICENSE SUBSCRIPTION FEES FOR ANY GIVEN YEAR SHALL WITHOUT FURTHER NOTICE IMMEDIATELY TERMINATE RADPHYSICS’ OBLIGATIONS UNDER SECTIONS 6.3 AND 7.1. THEREAFTER, LICENSEE MAY REQUEST REINSTATEMENT OF THE UPDATES (SECTION 6.3) AND SERVICES (SECTION 7.1) FOR THE LICENSED MATERIALS. RADPHYSICS MAY APPROVE OR DENY SUCH A REQUEST IN ITS SOLE DISCRETION. IF RADPHYSICS APPROVES THE REQUEST AND LICENSEE PROMPTLY PAYS THE LICENSE SUPPORT AND MAINTENANCE FEES FOR ALL UNPAID YEARS AND THE CURRENT YEAR, RADPHYSICS’ OBLIGATIONS UNDER SECTION 6.3 AND 7.1 SHALL RESUME ON THE DATE RADPHYSICS RECEIVES SUCH PAYMENT. WHENEVER THE LICENSE TERM SPECIFIED IN EXHIBIT “A” IS NOT PERPETUAL, FAILURE TO TIMELY PAY THE LICENSE SUPPORT AND MAINTENANCE FEES FOR ANY GIVEN YEAR SHALL WITHOUT FURTHER NOTICE TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 10.1.

7.2 TRAINING. RADPHYSICS WILL PROVIDE REMOTE TRAINING SERVICES SPECIFIED IN EXHIBIT “A” ATTACHED HERETO. THE TRAINING WILL BE PERFORMED IN ACCORDANCE WITH RADPHYSICS’ STANDARD PROCEDURES AND PRACTICES, AND ANY MATERIALS WILL BE PRESENTED IN RADPHYSICS’ STANDARD FORMAT, OR SUCH OTHER FORMAT AS RADPHYSICS DETERMINES TO BE APPROPRIATE UNDER THE CIRCUMSTANCES. UNLESS OTHERWISE SPECIFIED IN EXHIBIT “A” ATTACHED HERETO, FOR ONSITE TRAINING, LICENSEE ACKNOWLEDGES AND AGREES TO PAY AIRFARE, HOTEL, RENTAL CAR, MEALS AND REASONABLE OUT-OF-POCKET EXPENSES FOR THE DURATION OF ONSITE TRAINING. ADDITIONAL APPLICATIONS TRAINING NECESSARY TO ACCOMMODATE UPGRADES OF THE LICENSED MATERIALS MUST BE PURCHASED SEPARATELY.

7.3 LICENSEE’S OBLIGATIONS. LICENSEE SHALL: (A) PROMPTLY INSTALL UPDATES AS REQUESTED BY RADPHYSICS; AND (B) DESIGNATE A LICENSEE CONTACT OR REPRESENTATIVE WHO SHALL HAVE FULL AUTHORITY, INDIVIDUALLY, TO ACT FOR LICENSEE UNDER AND WITH RESPECT TO THIS AGREEMENT.

7.4 THIRD PARTY SUPPLIERS. IN THE EVENT THIRD PARTY SUPPLIERS FAIL TO MAINTAIN OR SUPPORT OTHER PRODUCTS, RADPHYSICS SHALL HAVE NO RESPONSIBILITY OR LIABILITY BY REASON OF SUCH FAILURE.

8. REPORT, INVESTIGATION, AND REMEDIATION OF PRIVACY, SECURITY, OR CONFIDENTIALITY BREACH.

EACH PARTY SHALL IMMEDIATELY REPORT TO THE OTHER ANY BREACH OF PRIVACY, SECURITY, OR CONFIDENTIALITY OF WHICH THAT PARTY BECOMES AWARE IN CONNECTION WITH THE LICENSED MATERIALS OR THIS AGREEMENT. THE PARTIES SHALL WORK COOPERATIVELY TO INVESTIGATE AND REMEDIATE ANY SUCH BREACH; PROVIDED, HOWEVER, THAT IF THE BREACH INVOLVES THE PRIVACY, SECURITY OR CONFIDENTIALITY OF INFORMATION BELONGING OR PERTAINING TO LICENSEE’S PATIENTS, LICENSEE SHALL DIRECT THE INVESTIGATION AND REMEDIATION OF SUCH BREACH, INCLUDING NOTIFICATION TO PATIENTS, AND TO THE EXTENT REQUESTED BY LICENSEE, RADPHYSICS SHALL COOPERATE AND ASSIST LICENSEE WITH SUCH INVESTIGATION, REMEDIATION AND NOTIFICATION.

9. RECORDS AND AUDIT RIGHTS.

9.1 RECORDS. LICENSEE SHALL KEEP FULL, COMPLETE, CLEAR AND ACCURATE RECORDS WITH RESPECT TO LICENSEE’S INTERNAL USE OF THE LICENSED MATERIALS IN ACCORDANCE WITH LICENSEE’S DOCUMENT RETENTION POLICY.

9.2 AUDIT RIGHTS. AT RADPHYSICS’ REQUEST (NO MORE THAN ONCE EACH CALENDAR YEAR) AND WITHIN THIRTY (30) DAYS AFTER RECEIVING WRITTEN NOTICE, LICENSEE SHALL EITHER: (A) SUBJECT TO APPLICABLE LAWS, PERMIT A RADPHYSICS REPRESENTATIVE OR AN INDEPENDENT AUDITOR MUTUALLY AGREED TO BY THE PARTIES TO HAVE ACCESS DURING LICENSEE’S REGULAR BUSINESS HOURS, TO ALL EQUIPMENT, RECORDS, AND DOCUMENTS OF LICENSEE THAT MAY REASONABLY CONTAIN INFORMATION BEARING UPON LICENSEE’S USE OF THE LICENSED MATERIALS UNDER THE TERMS OF THIS AGREEMENT; OR (B) PROVIDE RADPHYSICS WITH A WRITTEN STATEMENT SIGNED BY AN OFFICER OF LICENSEE THAT LICENSEE’S PAST AND CURRENT USE OF THE LICENSED MATERIALS DOES NOT VIOLATE ANY PROVISION OF THIS AGREEMENT. RADPHYSICS’ AUDIT RIGHTS SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT.

10. TERMINATION.

10.1 TERMINATION BY RADPHYSICS. RADPHYSICS SHALL HAVE THE RIGHT WITHOUT FURTHER NOTICE TO IMMEDIATELY TERMINATE THIS AGREEMENT, WITHOUT FURTHER OBLIGATION OR LIABILITY TO LICENSEE, IF ANY OF THE FOLLOWING EVENTS OR CONDITIONS OCCUR: (A) LICENSEE IS DELINQUENT IN MAKING PAYMENTS OF ANY SUM DUE UNDER THIS AGREEMENT (EXCEPT UNDER SECTION 2.2 WHEN THE LICENSE TERM SPECIFIED IN EXHIBIT “A” IS PERPETUAL) AND CONTINUES TO BE DELINQUENT FOR A PERIOD OF THIRTY (30) DAYS AFTER THE LAST DAY ON WHICH SUCH PAYMENT IS DUE; OR (B) LICENSEE COMMITS ANY MATERIAL BREACH OF THIS AGREEMENT AND FAILS TO REMEDY SUCH BREACH WITHIN THIRTY (30) DAYS AFTER WRITTEN NOTICE BY LICENSEE OF SUCH BREACH AS LONG AS SUCH NOTICE PROVIDES RADPHYSICS WITH SUFFICIENT DETAILS TO REASONABLE IDENTIFY AND REMEDY SUCH BREACH; OR (C) LICENSEE TERMINATES ITS BUSINESS ACTIVITIES OR BECOMES INSOLVENT, ADMITS IN WRITING ITS INABILITY TO PAY ITS DEBTS AS THEY MATURE, MAKES AN ASSIGNMENT FOR THE BENEFIT OF CREDITORS, OR BECOMES SUBJECT TO DIRECT CONTROL OF A TRUSTEE, RECEIVER OR SIMILAR AUTHORITY.

10.2 TERMINATION BY LICENSEE. LICENSEE SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT IF ANY OF THE FOLLOWING EVENTS OR CONDITIONS OCCUR: (A) RADPHYSICS MATERIALLY BREACHES THIS AGREEMENT AND FAILS TO REMEDY SUCH BREACH WITHIN THIRTY (30) DAYS AFTER WRITTEN NOTICE BY LICENSEE OF SUCH BREACH AS LONG AS SUCH NOTICE PROVIDES RADPHYSICS WITH SUFFICIENT DETAILS TO REASONABLE IDENTIFY AND REMEDY SUCH BREACH; OR (B) AFTER THE FIRST ANNIVERSARY OF THE EFFECTIVE DATE, UPON THIRTY (30) DAYS’ PRIOR WRITTEN NOTICE FOR ANY REASONS IF THE LICENSE TERM IS PERPETUAL.

10.3 LICENSED MATERIALS. UPON THE TERMINATION OF THIS AGREEMENT FOR ANY REASON, THE LICENSE AND ALL OTHER RIGHTS GRANTED TO THE LICENSEE HEREUNDER FOR THE LICENSED MATERIALS SHALL IMMEDIATELY CEASE, AND LICENSEE SHALL IMMEDIATELY: (A) RETURN THE LICENSED MATERIALS TO RADPHYSICS TOGETHER WITH ALL REPRODUCTIONS AND MODIFICATIONS OF THE LICENSED MATERIALS AND ALL COPIES OF ANY DOCUMENTATION, NOTES, AND OTHER MATERIALS RESPECTING THE LICENSED MATERIALS; (B) PURGE ALL COPIES OF THE LICENSED MATERIALS OR ANY PORTION THEREOF FROM ALL SERVERS AND CPUS AND FROM ANY COMPUTER STORAGE DEVICE OR MEDIUM ON WHICH LICENSEE HAS PLACED OR HAS PERMITTED OTHERS TO PLACE LICENSED MATERIALS; AND (C) GIVE RADPHYSICS A WRITTEN CERTIFICATION THAT LICENSEE HAS COMPLIED WITH ALL OF ITS OBLIGATIONS UNDER THIS SECTION. RADPHYSICS’ TERMINATION OF THIS AGREEMENT AND REPOSSESSION OF THE LICENSED MATERIALS SHALL BE WITHOUT PREJUDICE TO ANY OTHER REMEDIES RADPHYSICS MAY LAWFULLY HAVE.

10.4 SURVIVAL. THE PARTIES ACKNOWLEDGE AND AGREE THAT NOTWITHSTANDING ANY OTHER LANGUAGE IN THIS AGREEMENT, UPON EXPIRATION OR TERMINATION OF THIS AGREEMENT, THE OBLIGATIONS, PROMISES OR COVENANTS IN THIS AGREEMENT WHICH ARE INTENDED TO SURVIVE BEYOND SUCH TERMINATION OR EXPIRATION SHALL SURVIVE INCLUDING, WITHOUT LIMITATION, THOSE OBLIGATIONS, PROMISES OR COVENANTS WHEREIN SURVIVAL IS EXPRESSLY STATED AND SECTIONS 3, 4, 5, 6, 9, 10, 11, 12, 13 AND 14.

11. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS.

11.1 GENERAL. EACH PARTY REPRESENTS AND WARRANTS THAT THIS AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED BY, AND CONSTITUTES LEGAL, VALID AND BINDING OBLIGATIONS OF THE PARTY, ENFORCEABLE AGAINST THE PARTY IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH ENFORCEABILITY MAY BE LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM, PREFERENCE AND OTHER LAWS RELATING TO OR AFFECTING ENFORCEMENT OF CREDITORS’ RIGHTS GENERALLY.

11.2 WARRANTIES BY RADPHYSICS. RADPHYSICS REPRESENTS AND WARRANTS THAT: (A) RADPHYSICS OWNS ALL RIGHT, TITLE AND INTEREST TO THE LICENSED MATERIALS OR OTHERWISE HAS THE RIGHT TO LICENSE THE LICENSED MATERIALS; AND (B) RADPHYSICS IS UNAWARE OF ANY ALLEGATIONS THAT THE LICENSED MATERIALS INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. RADPHYSICS IS UNABLE TO ACCEPT SOFTWARE RETURNS.

11.3 REFUNDS BY RADPHYSICS.

11.3.1 COMPUTER SOFTWARE PRODUCTS DOWNLOADED. COMPUTER SOFTWARE PRODUCTS DOWNLOADED AND PURCHASED THROUGH RADPHYSICS ARE CONSIDERED OPENED AT THE TIME THE PAYMENT IS RECEIVED AND THE LICENSED MATERIALS HAVE BEEN TRANSFERRED TO THE LICENSEE. DOWNLOADED COMPUTER SOFTWARE PRODUCTS INCLUDE SOFTWARE THAT HAS BEEN TRANSFERRED OR COPIED TO A COMPUTER, OR SYSTEM, A LINK CABLE (SUCH AS A USB CABLE), OR ANY OTHER METHOD. REFUNDS FOR SOFTWARE DOWNLOADED OR FILES DISTRIBUTED ARE NOT AVAILABLE ONCE THE PURCHASE PROCESS HAS BEEN COMPLETED. ALL PURCHASES OF COMPUTER SOFTWARE PRODUCTS ARE FINAL AND REFUNDS ARE PROVIDED ONLY FOR ACCIDENTAL DUPLICATE ORDERS IN ACCORDANCE WITH SUBSECTION 11.3.3.

11.3.2 COMPUTER SOFTWARE PRODUCTS BY PHONE. COMPUTER SOFTWARE PRODUCTS PURCHASED OVER THE PHONE OR OTHER MEANS OF PURCHASE FROM RADPHYSICS AND DISTRIBUTED WILL NOT BE REFUNDED ONCE THE PURCHASE PROCESS HAS BEEN COMPLETED.

11.3.3 EXCEPTIONS. IN CIRCUMSTANCES WHERE DUPLICATE ORDERS OF COMPUTER SOFTWARE PRODUCTS ARE MISTAKENLY MADE (WHETHER BY DOWNLOAD OR PHONE), REFUNDS ARE PROVIDED. REFUNDS WILL ONLY BE MADE TO THE PAYPAL, GOOGLE, OR CREDIT CARD ACCOUNT THROUGH WHICH THE ORIGINAL PURCHASE WAS MADE. AN ADMINISTRATION FEE MAY APPLY IN SUCH CASES TO COVER PROCESSING COSTS AND THIRD-PARTY COMMISSIONS. IN RARE INSTANCES AND ONLY WITHIN THIRTY (30) DAYS OF PURCHASE, IF DUE TO PLATFORM INCOMPATIBILITIES THE LICENSED SOFTWARE PRODUCTS WILL NOT FUNCTION, RADPHYSICS MAY, AT ITS DISCRETION, ISSUE A REFUND. IN SUCH INSTANCES, AN LOD (LETTER OF DESTRUCTION) ON COMPANY LETTERHEAD IS REQUIRED TO PROCESS THE REFUND. THE LOD MUST BE SIGNED BY AN APPROPRIATELY AUTHORIZED OFFICIAL OF THE LICENSEE’S ORGANIZATION CONFIRMING THAT THE DOWNLOAD OF THE LICENSED SOFTWARE PRODUCTS HAS EITHER NEVER BEEN INSTALLED OR HAS BEEN COMPLETELY REMOVED. RADPHYSICS MUST ALSO ASSIGN A RETURN AUTHORIZATION NUMBER.

11.3.4 LICENSE MAINTENANCE AND SUPPORT SERVICES. CANCELLATION OF LICENSE MAINTENANCE AND SUPPORT SERVICES DURING THE MAINTENANCE AND SUPPORT PERIOD IS AT RADPHYSICS’ ABSOLUTE DISCRETION AND WILL ONLY BE CONSIDERED IN THE MOST EXCEPTIONAL CIRCUMSTANCES.

11.3.5 TRAINING. CANCELLATIONS FOR TRAINING RECEIVED IN WRITING MORE THAN SIXTY (60) DAYS BEFORE THE COURSE DATE WILL INCUR NO CHARGE. ANY FEE PAID MAY BE USED AGAINST FUTURE TRAINING OR WILL BE REFUNDED.

CANCELLATIONS RECEIVED IN WRITING BETWEEN THIRTY (30) AND SIXTY (60) DAYS OF THE COURSE DATE WILL BE CHARGED AT 50% OF THE AGREED COST OF TRAINING. THE BALANCE OF ANY FEE PAID MAY BE USED AGAINST FUTURE TRAINING OR WILL BE REFUNDED.

CANCELLATIONS RECEIVED IN WRITING LESS THAN THIRTY (30) DAYS BEFORE THE COURSE DATE WILL BE CHARGED IN FULL.

IN CASE YOU PARTICIPATE IN A TRAINING PROGRAM AT THE BEGINNING AND FAIL TO APPEAR LATER ON OR VICE VERSA, NO REFUNDS WILL BE MADE.

RADPHYSICS RESERVES THE RIGHT TO ALTER OR CANCEL TRAINING COURSES DUE TO UNFORESEEN CIRCUMSTANCES. IF A TRAINING PROGRAM IS CANCELED EITHER FULLY OR PARTIALLY BY RADPHYSICS DUE TO UNFORESEEN CIRCUMSTANCES OR OUR OWN CAUSES, RADPHYSICS WILL REQUEST YOU TO CONSIDER ANOTHER TIME PERIOD FOR THE TRAINING. RADPHYSICS WILL REFUND YOUR FULL PAYMENT IN CASE YOU ARE UNABLE TO ATTEND SUCH A RESCHEDULED TRAINING PROGRAM.

ANY REFUNDS WILL BE MADE ACCORDING TO THE ORIGINAL PAYMENT METHOD OF THE CUSTOMER.

11.4 DISCLAIMERS. CUSTOMER ACCEPTS THE LICENSED MATERIALS “AS IS” AT THE AUTHORIZED LOCATIONS. RADPHYSICS DOES NOT WARRANT THAT THE LICENSED MATERIALS WILL MEET LICENSEE’S REQUIREMENTS, OR THE OPERATION OF THE LICENSED SOFTWARE SHALL BE UNINTERRUPTED OR ERROR-FREE.

11.5 REMEDIES. RADPHYSICS’ EXCLUSIVE LIABILITY AND LICENSEE’S EXCLUSIVE REMEDY FOR ANY BREACH OF THE WARRANTY PURSUANT TO THIS SECTION SHALL BE CORRECTION OF THE ERRORS OR DEFICIENCIES THAT CAUSE THE BREACH OF THE WARRANTY, WITHIN TEN (10) DAYS OR LONGER IF MUTUALLY AGREED UPON BY THE PARTIES. IF RADPHYSICS FAILS TO CORRECT THE ERRORS OR DEFICIENCIES WITHIN TEN (10) DAYS OR LONGER IF MUTUALLY AGREED UPON BY THE PARTIES, RADPHYSICS SHALL REFUND ANY AND ALL MONIES RECEIVED BY RADPHYSICS TO DATE FROM LICENSEE UNDER THIS AGREEMENT.

11.6 OTHER PRODUCTS. RADPHYSICS IS NOT RESPONSIBLE FOR THE OPERATION AND FUNCTIONALITY OF LICENSEE’S HARDWARE OR OTHER PRODUCTS THAT SERVE AS A PLATFORM, OPERATING SYSTEM, OR OTHER SOFTWARE PROGRAM USED TO SUPPORT THE OPERATION OF THE LICENSED MATERIALS. THE PURCHASE AND LICENSE OF SUCH HARDWARE OR OTHER PRODUCTS PROVIDED BY A THIRD PARTY SUPPLIER SHALL BE THE RESPONSIBILITY OF THE CUSTOMER. CUSTOMER ACKNOWLEDGES AND AGREES THAT RADPHYSICS IS NOT RESPONSIBILE FOR THE PERFORMANCE OR USE OF ANY HARDWARE OR OTHER PRODUCTS SUPPLIED BY THIRD PARTY SUPPLIERS AND USED TO SUPPORT THE OPERATION OF THE LICENSED MATERIALS. RADPHYSICS HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATION, WARRANTY OR COVENANT, EXPRESSED OR IMPLIED WITH RESPECT TO THE DESIGN, CONDITION, DURABILITY, SUITABILITY, FITNESS FOR USE OR MERCHANTABILITY OF ANY HARDWARE OR OTHER PRODUCTS IN ANY RESPECT.

11.7 NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, LICENSOR MAKES NO WARRANTIES, GUARANTEES OR REPRESENTIONS OF ANY KIND HEREUNDER, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY APPLICABLE OR CREATED BY OPERATION OF LAW, CUSTOM, TRADE USAGE OR COURSE OF DEALING.

12. LIMITATION OF LIABILITY.

12.1 IN NO EVENT SHALL ANY PARTY BE LIABLE TO ANY OTHER PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, REGARDLESS OF HOW ARISING, REGARDLESS OF THE CAUSE OF ACTION, IN TORT, CONTRACT OR OTHERWISE, AND REGARDLESS OF WHETHER ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. THESE EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, COST OF REMOVAL OR REINSTALLATION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OUTSIDE COMPUTER TIME, LABOR COSTS, LOSS OF DATA, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF USE, OR INTERRUPTION OF BUSINESS, OR OTHER ECONOMIC LOSS.

12.2 EXCEPT FOR INDEMNIFICATION OBLIGATIONS UNDER SECTION 13.1, RADPHYSICS’ AGGREGATE LIABILITY AND LICENSEE’S EXCLUSIVE REMEDY UNDER THIS AGREEMENT, FOR ANY CLAIM, WHETHER IN CONTRACT (INCLUDING BREACH OF WARRANTY) OR IN TORT (INCLUDING NEGLIGENCE) SHALL BE LIMITED TO 100% OF THE AMOUNT PAID BY LICENSEE TO RADPHYSICS UNDER THIS AGREEMENT. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE OR EXTEND THESE LIMITS.

13. INDEMNIFICATION.

13.1 INTELLECTUAL PROPERTY INDEMNIFICATION. RADPHYSICS ACKNOWLEDGES AND AGREES TO INDEMNIFY LICENSEE AND TO HOLD IT HARMLESS FROM ALL DAMAGES AWARDED AGAINST LICENSEE AND ALL REASONABLE EXPENSES INCURRED BY LICENSEE AS THE RESULT OF ANY CLAIM (ACTUAL OR THREATENED) OF TRADE SECRET, PATENT OR COPYRIGHT INFRINGEMENT ASSERTED AGAINST LICENSEE BY VIRTUE OF LICENSEE’S USE OF THE LICENSED MATERIALS AS DELIVERED BY RADPHYSICS. LICENSEE SHALL PROVIDE RADPHYSICS PROMPT NOTICE OF ANY SUCH CLAIMS AND THE RIGHT TO CONTROL AND DIRECT THE INVESTIGATION, PREPARATION, DEFENSE, AND SETTLEMENT OF EACH SUCH CLAIM WITH COUNSEL REASONABLY ACCEPTABLE TO LICENSEE. LICENSEE SHALL REASONABLY COOPERATE WITH RADPHYSICS IN CONNECTION WITH THE FOREGOING. ANY SUCH SETTLEMENT SHALL NOT BE MADE WITHOUT THE PRIOR WRITTEN CONSENT OF LICENSEE, WHICH SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED. SHOULD THE LICENSED MATERIALS AS DELIVERED BY RADPHYSICS BECOME OR, IN RADPHYSICS’ OPINION, BE LIKELY TO BECOME, THE SUBJECT OF A CLAIM OF INFRINGEMENT OF A TRADE SECRET PATENT OR COPYRIGHT, RADPHYSICS MAY AT ITS OPTION AND EXPENSE EITHER (A) PROCURE FOR LICENSEE THE RIGHT TO CONTINUE TO USE THE LICENSED MATERIALS AS CONTEMPLATED HEREUNDER, OR (B) REPLACE OR MODIFY THE LICENSED MATERIALS OR MODIFY ITS USE TO MAKE ITS USE HEREUNDER NON-INFRINGING. IF NEITHER OPTION IS REASONABLY AVAILABLE TO RADPHYSICS, THEN THIS AGREEMENT MAY BE TERMINATED WITH RESPECT TO THE LICENSED MATERIALS AT THE OPTION OF EITHER PARTY HERETO WITHOUT FURTHER OBLIGATION OR LIABILITY EXCEPT AS PROVIDED IN SECTION 10.3 HEREOF. RADPHYSICS SHALL HAVE NO LIABILITY FOR ANY CLAIM (ACTUAL OR THREATENED) OF TRADE SECRET, PATENT OR COPYRIGHT INFRINGEMENT UNDER THIS SECTION, AND LICENSEE SHALL INDEMNIFY RADPHYSICS AND HOLD IT HARMLESS FROM ALL DAMAGES AWARDED AGAINST RADPHYSICS AND ALL REASONABLE EXPENSES INCURRED BY RADPHYSICS RELATED TO ANY SUCH CLAIM BASED ON: (A) LICENSEE’S USE OR COMBINATION OF THE LICENSED MATERIALS WITH OTHER PRODUCTS OR DATA NOT SUPPLIED BY RADPHYSICS AS PART OF THE LICENSED MATERIALS; (B) ANY ALTERATION OR MODIFICATION OF ANY LICENSED MATERIALS BY A PARTY OTHER THAN RADPHYSICS; OR (C) LICENSEE’S FAILURE TO INSTALL CHANGES OR UPDATES AS INSTRUCTED BY RADPHYSICS.

13.2 MUTUAL INDEMNIFICATION. EACH PARTY “INDEMNIFYING PARTY” ACKNOWLEDGES AND AGREES TO INDEMNIFY THE OTHER PARTY “INDEMNIFIED PARTY” AND TO HOLD IT HARMLESS FROM AND AGAINST ALL LIABILITY, DEMANDS, CLAIMS, SUITS, LOSSES, DAMAGES, CAUSES OF ACTION, FINES, OR JUDGMENTS INCLUDING COSTS, ATTORNEYS’ AND WITNESSES’ FEES AND EXPENSES INCIDENT THERETO FOR INJURIES (INCLUDING DEATH) TO PERSONS OR PROPERTY ARISING OUT OF OR IN CONNECTION WITH INDEMNIFYING PARTY’S FAULTY OR NEGLIGENT PERFORMANCE OF ITS DUTIES HEREUNDER, EXCEPT TO THE EXTENT CAUSED BY THE NEGLIGENCE OF THE INDEMNIFIED PARTY. THE INDEMNIFIED PARTY SHALL GIVE THE INDEMNIFYING PARTY PROMPT WRITTEN NOTICE OF ANY SUCH DEMAND, CLAIM, OR SUIT AGAINST INDEMNIFIED PARTY BY ANY THIRD PARTY OF WHICH INDEMNIFIED PARTY BECOMES AWARE AND INDEMNIFYING PARTY SHALL HAVE THE RIGHT TO DEFEND THE SAME.

14. MISCELLANEOUS.

14.1 RELATIONSHIP OF PARTIES. THE RELATIONSHIP ESTABLISHED BY THIS AGREEMENT BETWEEN RADPHYSICS AND LICENSEE SHALL BE THAT OF LICENSOR AND LICENSEE. NOTHING CONTAINED IN THIS AGREEMENT SHALL CONSTITUTE LICENSEE AS A PARTNER, JOINT VENTURE, BROKER, EMPLOYEE, SERVANT, OR AGENT OF OR FOR RADPHYSICS. LICENSEE AND ITS EMPLOYEES, AGENTS, OR REPRESENTATIVES WILL NOT MAKE ANY REPRESENTATIONS THAT RADPHYSICS IS IN ANY WAY RESPONSIBLE FOR THE ACTS OR OMISSIONS OF LICENSEE OR ITS EMPLOYEES, AGENTS, OR REPRESENTATIVES. LICENSEE OR LICENSEE’S EMPLOYEES, AGENTS, OR REPRESENTATIVES WILL NOT MAKE ANY WRITTEN OR ORAL AGREEMENTS OR COMMITMENTS ON BEHALF OF RADPHYSICS OTHER THAN IN ACCORDANCE WITH THIS AGREEMENT.

14.2 FURTHER ASSURANCES. EACH PARTY HEREBY COVENANTS AND AGREES THAT IT WILL EXECUTE AND DELIVER SUCH INSTRUMENTS AND OTHER DOCUMENTS AND TAKE OR CAUSE TO BE TAKEN SUCH OTHER ACTIONS AS MAY BE REASONABLY NECESSARY OR APPROPRIATE TO IMPLEMENT ANY OF THE PROVISIONS OF THIS AGREEMENT.

14.3 ENTIRE AGREEMENT. THE TERMS AND CONDITIONS OF THIS AGREEMENT, TOGETHER WITH THE EXHIBITS ATTACHED HERETO, CONSTITUTE THE ENTIRE AND EXCLUSIVE AGREEMENT BETWEEN THE PARTIES PERTAINING TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR AGREEMENTS, PROPOSALS, MARKETING LITERATURE, UNDERSTANDINGS, NEGOTIATIONS, DISCUSSIONS AND COMMUNICATIONS BETWEEN THE PARTIES.

14.4 NO AMENDMENTS. NO AMENDMENTS OR MODIFICATIONS TO THIS AGREEMENT SHALL BE EFFECTIVE UNLESS IN WRITING AND SIGNED BY THE AUTHORIZED REPRESENTATIVES OF BOTH PARTIES. THESE TERMS AND CONDITIONS WILL PREVAIL NOTWITHSTANDING ANY DIFFERENT, CONFLICTING OR ADDITIONAL TERMS AND CONDITIONS THAT MAY APPEAR ON ANY PURCHASE ORDER, ACKNOWLEDGMENT OR OTHER WRITING NOT EXPRESSLY INCORPORATED INTO THIS AGREEMENT.

14.5 NO ASSIGNMENT. NEITHER PARTY MAY SELL, ASSIGN, SUBLICENSE, TRANSFER, DELEGATE, CONVEY OR OTHERWISE DISPOSE OF THIS AGREEMENT OR ANY OF ITS RIGHTS OR DUTIES UNDER THIS AGREEMENT, WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER PARTY. THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES HERETO, THEIR SUCCESSORS AND PERMITTED ASSIGNS. ANY ATTEMPTED ASSIGNMENT OR OTHER ACTION IN VIOLATION OF THIS SECTION BY A PARTY WILL BE NULL AND VOID.

14.6 NO THIRD PARTY BENEFICIARIES. THIS AGREEMENT IS NOT INTENDED TO CREATE AND DOES NOT CREATE ANY ENFORCEABLE OR LEGAL RIGHTS IN, OR BENEFITS TO, ANY THIRD PARTY.

14.7 NO WAIVER. NO PROVISIONS OF THIS AGREEMENT SHALL BE DEEMED WAIVED AND NO BREACH EXCUSED, UNLESS SUCH WAIVER OR CONSENT EXCUSING THE BREACH SHALL BE IN WRITING AND SIGNED BY THE PARTY TO BE CHARGED WITH SUCH WAIVER OR CONSENT. A WAIVER BY A PARTY OF ANY PROVISION OF THIS AGREEMENT SHALL NOT BE CONSTRUED AS A WAIVER OF A FURTHER BREACH OF THE SAME COVENANT OR CONDITION.

14.8 NOTICES. ALL NOTICES AND OTHER COMMUNICATIONS REQUIRED OR PERMITTED UNDER THIS AGREEMENT SHALL BE GIVEN TO THE RESPECTIVE PARTIES IN WRITING AND DELIVERED BY EMAIL WITH CONFIRMATION OF RECEIPT, IN PERSON WITH A SIGNED RECEIPT OR ELECTRONIC SIGNATURE, OR BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, POSTAGE PREPAID, TO THE ADDRESS SPECIFIED IN EXHIBIT “A” ATTACHED HERETO OR ADDRESSES AS RADPHYSICS AND LICENSEE MAY PROVIDE BY NOTICE TO THE OTHER IN ACCORDANCE WITH THE REQUIREMENTS OF THIS SECTION. THE NOTICE OR OTHER COMMUNICATION SHALL BE DEEMED RECEIVED ON THE DATE OF DELIVERY IF DELIVERED BY EMAIL OR IN PERSON, OR THREE (3) DAYS AFTER MAILING IF DELIVERED BY CERTIFIED MAIL.

14.9 FORCE MAJEURE. NEITHER PARTY SHALL BE LIABLE FOR THE NONPERFORMANCE OR DELAYS CAUSED BY EVENTS BEYOND SUCH PARTY’S REASONABLE CONTROL INCLUDING LABOR DIFFICULTIES, FIRE CASUALTY OR ACCIDENTS, ACTS OF GOD, CIVIL DISORDER, GOVERNMENTAL ACTION, TERRORIST ACTS, TRANSPORTATION DIFFICULTIES, SHORTAGE OF FUEL LABOR OR MATERIAL OR UNAVAILABILITY OF A SERVICE THAT COULD NOT HAVE BEEN AVOIDED BY SUCH PARTY BY THE EXERCISE OF DUE DILIGENCE. THE PERFORMANCE OF SUCH PARTY SHALL BE EXCUSED FOR SUCH REASONABLE TIME AS MAY BE REQUIRED TO RESUME PERFORMANCE FOLLOWING CESSATION OF SUCH CAUSE.

14.10 CLICK-WRAP TERMS. PURSUANT TO AN ORDER, FROM TIME TO TIME, RADPHYSICS MAY MAKE AVAILABLE TO LICENSEE VARIOUS PRODUCTS, AND SERVICES WHICH LICENSEE CAN ACCESS OR ACQUIRE VIA A RADPHYSICS WEBSITE OR A SECURE REMOTE ACCESS PLATFORM, INCLUDING TRIAL PRODUCTS, FREE PRODUCTS, UPDATES TO OR REPLACEMENTS OF LICENSED SOFTWARE OR LICENSED DOCUMENTATION, PROBLEM SUBMISSIONS, BUG FIXES, NEW FEATURES, NEW MODULES, AND OTHER MATERIALS, AND OPERATIONAL ADVICE. IF ACCESS TO OR USE OF SUCH PRODUCTS OR SERVICES REQUIRES LICENSEE OR USER TO “ACCEPT” VARIOUS TERMS AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, “CLICK-WRAP,” “CLICK-THROUGH,” “BROWSE-WRAP,” OR “SHRINK-WRAP,” SUCH TERMS AND CONDITIONS MAY BE “ACCEPTED” BY LICENSEE OR USER OR THEIR DESIGNEE IN ORDER TO ACCESS OR USE THE PRODUCTS, MAINTENANCE, SERVICES, OR ANY FREEWARE, HOWEVER, THE TERMS AND CONDITIONS SHALL BE OF NO FORCE OR EFFECT AND THE TERMS AND CONDITIONS OF THIS AGREEMENT SHALL CONTINUE TO GOVERN.

14.11 COMMERCIAL TRANSACTION. LICENSEE ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT CONSTITUTES A COMMERCIAL TRANSACTION AND LICENSEE WAIVES ANY AND ALL RIGHTS AND REMEDIES WHICH LICENSEE MAY OTHERWISE HAVE ARISING OUT OF ANY FEDERAL OR STATE TRUTH-IN-LENDING, CONSUMER PROTECTION, CONSUMER CREDIT DISCLOSURE, OR OTHER SIMILAR LAW OR REGULATION.

14.12 CAPTIONS. HEADINGS, TITLES OR CAPTIONS OF SECTIONS CONTAINED IN THIS AGREEMENT ARE INSERTED ONLY FOR CONVENIENCE OF REFERENCE AND ARE NOT INTENDED TO BE A PART OF OR TO AFFECT THE MEANING OR INTERPRETATION OF THIS AGREEMENT.

14.13 EXHIBITS. ALL EXHIBITS REFERRED TO, IN, OR ATTACHED TO THIS AGREEMENT ARE INTEGRAL PARTS OF THIS AGREEMENT AS IF FULLY SET FORTH HEREIN.

14.14 SEVERABILITY. IN THE EVENT ANY PROVISION, CLAUSE, SENTENCE, PHRASE OR WORD OF THIS AGREEMENT, OR THE APPLICATION THEREOF IN ANY CIRCUMSTANCES, IS HELD TO BE INVALID, ILLEGAL OR UNENFORCEABLE, SUCH INVALIDITY, ILLEGALITY OR UNENFORCEABILITY SHALL NOT AFFECT THE VALIDITY, LEGALITY OR ENFORCEABILITY OF THE REMAINDER OF THIS AGREEMENT, OR OF THE APPLICATION OF ANY SUCH PROVISION, SENTENCE, CLAUSE, PHRASE OR WORD IN ANY OTHER CIRCUMSTANCES. THE PARTIES AGREE TO REPLACE SUCH INVALID, ILLEGAL OR UNENFORCEABLE PROVISION, CLAUSE, SENTENCE, PHRASE OR WORD WITH A VALID AND ENFORCEABLE PROVISION, CLAUSE, SENTENCE, PHRASE OR WORD WHICH WILL ACHIEVE, TO THE EXTENT POSSIBLE, THE ECONOMIC, BUSINESS, AND OTHER PURPOSES OF THE INVALID, ILLEGAL, OR UNENFORCEABLE PROVISION.

14.15 COMPLIANCE WITH APPLICABLE LAWS. EACH PARTY ACKNOWLEDGES AND AGREES THAT IT WILL COMPLY WITH ALL FEDERAL, STATE AND LOCAL LAWS AND REGULATIONS IN PERFORMING UNDER OR IN CONNECTION WITH THIS AGREEMENT. THIS AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER SUCH RESTRICTIONS ON THE EXPORT FROM THE UNITED STATES OF AMERICA OF THE LICENSED SOFTWARE, OR OF INFORMATION ABOUT SUCH LICENSED SOFTWARE WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA. NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, LICENSEE SHALL NOT EXPORT OR REEXPORT, DIRECTLY OR INDIRECTLY, ANY LICENSED SOFTWARE, OR INFORMATION PERTAINING THERETO TO ANY COUNTRY OR DESTINATION OR PERMIT ITS TRANSSHIPMENT TO ANY COUNTRY OR DESTINATION FOR WHICH SUCH GOVERNMENTAL APPROVAL IS REQUIRED AT THE TIME OF EXPORT WITHOUT FIRST OBTAINING SUCH LICENSES OR APPROVAL.

14.16 GOVERNING LAW AND LANGUAGE. THE LAWS OF THE STATE OF NEW MEXICO, WITHOUT REGARD TO ITS CONFLICT-OF-LAWS PRINCIPLES, SHALL GOVERN ANY CLAIM ARISING UNDER OR RELATING TO THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, OR BY THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT (“UCITA”). ANY CONSTRUCTION OR INTERPRETATION OF THIS AGREEMENT SHALL USE THE ENGLISH LANGUAGE AS SPOKEN IN THE UNITED STATES. IF THIS AGREEMENT IS TRANSLATED INTO ANOTHER LANGUAGE, THE VERSION IN ENGLISH SHALL CONTROL OVER SUCH TRANSLATION.

14.17 DISPUTE RESOLUTION. IF A DISPUTE ARISES AS TO INTERPRETATION, BREACH OR ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT, OTHER THAN ENFORCEMENT OF ANY PROVISION WHICH WOULD ENTITLE EITHER PARTY TO INJUNCTIVE RELIEF, SPECIFIC PERFORMANCE OR OTHER EQUITABLE RELIEF, THE PARTIES AGREE TO USE THE FOLLOWING PROCEDURES TO RESOLVE THE DIFFERENCES IN GOOD FAITH AND WITHOUT RESORTING TO LITIGATION: (A) THE PARTY SEEKING TO INITIATE THE PROCEDURE SHALL GIVE WRITTEN NOTICE TO THE OTHER PARTY BRIEFLY DESCRIBING THE NATURE OF THE DISPUTE (“NOTICE”); (B) A MEETING OR SERIES OF MEETINGS SHALL BE HELD PROMPTLY AMONG DESIGNATED REPRESENTATIVES OF THE PARTIES, WHO SHALL HAVE AUTHORITY TO RESOLVE THE DISPUTE, IN AN ATTEMPT IN GOOD FAITH TO NEGOTIATE A RESOLUTION OF THE DISPUTE; AND (C) IF, WITHIN THIRTY (30) DAYS AFTER DELIVERY OF THE NOTICE, THE PARTIES TO THE DISPUTE HAVE NOT SETTLED OR NEGOTIATED A RESOLUTION OF THE DISPUTE, THE PARTIES SHALL BE ENTITLED TO PURSUE SUCH OTHER REMEDIES AS MAY BE PROVIDED AT LAW.

14.18 REMEDIES CUMULATIVE. THE REMEDIES OF THE PARTIES UNDER THIS AGREEMENT ARE CUMULATIVE AND WILL NOT EXCLUDE ANY OTHER REMEDIES TO WHICH THE PARTIES MAY BE LAWFULLY ENTITLED.

14.19 ATTORNEYS’ FEES. IN ANY ACTION OR SUIT TO ENFORCE ANY RIGHT OR REMEDY UNDER THIS AGREEMENT OR TO INTERPRET ANY PROVISION OF THIS AGREEMENT, THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER ITS COSTS OF COLLECTION AND/OR ENFORCEMENT, INCLUDING REASONABLE ATTORNEYS’ FEES.

14.20 MULTIPLE ORIGINALS. THIS AGREEMENT MAY BE EXECUTED IN MULTIPLE ORIGINALS, EACH OF WHICH WILL FOR ALL PURPOSES CONSTITUTE ONE AGREEMENT, BINDING ON THE PARTIES, AND EACH PARTY HEREBY COVENANTS AND AGREES TO EXECUTE ALL DUPLICATES OR REPLACEMENT ORIGINALS OF THIS AGREEMENT AS MAY BE REQUIRED.

14.21 INDEPENDENT JUDGMENT. RADPHYSICS AND LICENSEE ACKNOWLEDGE THAT: (A) THEY HAVE READ THIS AGREEMENT; (B) THEY UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT; (C) THEY HAVE HAD THE OPPORTUNITY TO SEEK LEGAL COUNSEL AND ADVICE; AND (D) THEY HAVE RELIED ON THEIR OWN JUDGMENT IN ENTERING INTO THIS AGREEMENT.
RADPHYSICS AND LICENSOR HAVE MADE THIS AGREEMENT EFFECTIVE AS OF THE EFFECTIVE DATE.

———————————————————————————————————————————————————————-
EXHIBIT A – LICENSE DETAILS

LICENSED MATERIALS: ANY LICENSED DOCUMENTATION, LICENSED SOFTWARE PRODUCTS, AND ANY MATERIALS RELATED THERETO PROVIDED BY RADPHYSICS.

LICENSED MATERIALS: ANY LICENSED DOCUMENTATION, LICENSED SOFTWARE PRODUCTS, AND ANY MATERIALS
RELATED THERETO PROVIDED BY RADPHYSICS.

AUTHORIZED LOCATION: LICENSEE LOCATION(S) WHERE THE LICENSED MATERIALS ARE DOWNLOADED OR RECEIVED
FOR AUTHORIZED USE.

MAXIMUM NUMBER OF USERS: UNLIMITED PER AUTHORIZED LOCATION

LICENSE TERM: ONE (1) YEAR AND PERPETUAL THEREAFTER

EXCLUSIVITY PERIOD: SEE BELOW

LICENSE FEES: COST OF LICENSED MATERIALS PER AUTHORIZED LOCATION PLUS APPLICABLE FEDERAL, STATE,
AND/OR LOCAL OR OTHER TAXES.

SUPPORT & MAINTENANCE FEES: COST OF ANNUAL SUPPORT & MAINTENANCE FEES PLUS APPLICABLE FEDERAL,
STATE, AND/OR LOCAL OR OTHER TAXES.

NOTICES TO RADPHYSICS:
RADPHYSICS SERVICES LLC
5405 HIGH DESERT PLACE NE
ALBUQUERQUE, NM 87111

NOTICES TO LICENSEE:
NAME AND ADDRESS OF LICENSEE

TRAINING SERVICES: SIX (6) HOURS OF REMOTE TRAINING (ASRT CATEGORY A CE CREDIT) FOR PHYSICIANS AND TECHNICAL STAFF. ONSITE APPLICATIONS TRAINING IS AVAILABLE AND CAN BE PURCHASED SEPARATELY. TRAVELRELATED EXPENSES SPECIFIC TO LOCATIONS OUTSIDE THE CONTINENTAL U.S. ARE NOT INCLUDED IN THE ONSITE APPLICATIONS TRAINING.

OTHER TERMS AND CONDITIONS: PAYMENT OF THE SUPPORT & MAINTENANCE FEES IS REQUIRED TO RECEIVE UPDATES AND SUPPORT AND MAINTENANCE SERVICES DURING THE YEAR. WHENEVER THE LICENSE TERM IS PERPETUAL, FAILURE TO TIMELY PAY (SUBJECT TO A REASONABLE CURE PERIOD) THE SUPPORT & MAINTENANCE FEES FOR ANY GIVEN YEAR SHALL WITHOUT FURTHER NOTICE IMMEDIATELY TERMINATE RADPHYSICS’S OBLIGATIONS TO PROVIDE FUTURE UPDATES AND SUPPORT AND MAINTENANCE SERVICES. THEREAFTER, LICENSEE MAY REQUEST REINSTATEMENT OF THE UPDATES AND SUPPORT AND MAINTENANCE SERVICES FOR THE LICENSED MATERIALS. RPS MAY APPROVE OR DENY SUCH A REQUEST IN ITS SOLE DISCRETION. IF RADPHYSICS APPROVES THE REQUEST AND LICENSEE PROMPTLY PAYS THE SUPPORT & MAINTENANCE FEES FOR ALL UNPAID YEARS AND THE CURRENT YEAR, RADPHYSICS’S OBLIGATIONS TO PROVIDE UPDATES AND SUPPORT AND MAINTENANCE SERVICES SHALL RESUME ON THE DATE RADPHYSICS RECEIVES SUCH PAYMENT. WHENEVER THE LICENSE TERM IS NOT PERPETUAL, FAILURE TO TIMELY PAY THE SUPPORT & MAINTENANCE FEES FOR ANY GIVEN YEAR SHALL WITHOUT FURTHER NOTICE TERMINATE THE LICENSE AND ANY RIGHTS TO CONTINUED USE OF THE LICENSED MATERIALS. THE EXCLUSIVITY PERIOD FOR EACH AUTHORIZED LOCATION SHALL BE THE PERIOD OF TIME THE LICENSE IS IN EFFECT AND FOR WHICH SUPPORT AND MAINTENANCE FEES HAVE BEEN PURCHASED OR PROVIDED AT NO CHARGE. DURING THE EXCLUSIVITY PERIOD FOR EACH APPLICABLE AUTHORIZED LOCATION, LICENSEE WILL NOT DEVELOP, INVEST IN OR DIRECTLY PURCHASE COMPETING PRODUCTS OF THE LICENSED MATERIALS FOR SUCH APPLICABLE AUTHORIZED LOCATION. OTHER PRODUCTS PROVIDED BY LICENSEE FROM THIRD PARTY SUPPLIERS AND USED AS A PLATFORM TO OPERATE MERP SHOULD MEET THE FOLLOWING SPECIFICATIONS:

VIRTUAL SERVER

2 CORES 2.1GHZ; OR BETTER
4 GB RAM MINIMUM; 8 GB RAM RECOMMENDED
100 GB HARD DRIVE
NETWORK INTERFACE 1 NIC 100/1000MBPS, COMPATIBLE WITH THE NETWORK OPERATING SYSTEM AND CABLING
MICROSOFT® WINDOWS® OS ARCHITECTURE 64 BIT
NT FILE SYSTEM (NTFS)
MICROSOFT® WINDOWS® SERVER 2016 (STANDARD)
MICROSOFT® SQL SERVER EXPRESS 2019

PHYSICAL SIDE

(DUAL) INTEL® DUAL CORE XEON® 5130 2.1GHZ OR HIGHER, 4MB CACHE 1333MHZ FSB; OR BETTER
MICROSOFT®.NET FRAMEWORK (.NET 4.7.2 AND LATER)
4 GB RAM MINIMUM, 8 GB RAM RECOMMENDED
BUS TYPE PCI-E
100 GB HARD DRIVE
DRIVE CONTROLLER – THE EQUIVALENT OF DUAL CHANNEL SAS 3.0GB/S RAID CONTROLLER WITH ≥ 256 MB CACHE
NETWORK INTERFACE 1 NIC 100/1000MBPS, COMPATIBLE WITH THE NETWORK OPERATING SYSTEM AND CABLING
WINDOWS® OS ARCHITECTURE 64 BIT
SEPARATE MICROSOFT® WINDOWS® COMPATIBLE BACKUP SOLUTION
NETWORK CARD
MICROSOFT® WINDOWS® SERVER 2016 (STANDARD)
NT FILE SYSTEM (NTFS)
WINDOWS® 2012 (UPDATED WITH LATEST SERVICE PACK); OR BETTER
MICROSOFT® SQL SERVER 2019 EXPRESS

CLIENT SIDE

(SINGLE) INTEL® CORE™ 2 DUO® AT 2.13 GHZ WITH 2 MB L2 CACHE; OR BETTER
≥4GB RAM
BUS TYPE PCI-E
ENOUGH HARD DRIVE SPACE FOR APPLICATION, TYPICALLY 30 MB OF FREE SPACE
DRIVE CONTROLLER SATA-II
NETWORK INTERFACE 1GBPS, COMPATIBLE WITH THE NETWORK OPERATING SYSTEM AND CABLING
MICROSOFT®.NET FRAMEWORK (.NET 4.7.2 AND LATER)
17” LCD MONITOR CAPABLE OF 1280 X 1024 AT 60 HZ
MICROSOFT® WINDOWS®-COMPATIBLE 101-KEY KEYBOARD
MICROSOFT® WINDOWS®-COMPATIBLE 2-BUTTON SCROLL MOUSE
MICROSOFT WINDOWS® 10 EDITIONS
MICROSOFT® WINDOWS® INSTALLER 3.1; OR BETTER
NT FILE SYSTEM (NTFS)
WINDOWS® OS ARCHITECTURE 64 BIT
MICROSOFT® WORD 2016 OR WORD 2019
PDF PRINTER

LAST UPDATED ON 2/1/2023