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HomeMy WebLinkAboutAgreement with Promium for Lab Management SoftwareElement _IMS'" Laboratory Information Management Prepared for: City of Meridian Travis Kissire Prepared by: Rick Persichitte December 3, 2014 Promium, LLC 3350 Monte Villa Parkway, #220 Bothell, WA 98021-8963 1.877. PROMIUM www.promium.com PROMIUM PRbMIUM www.promium.com 1.877.PROMIUM PURCHASE/LEASE CONTRACT PoMI UM QUOTATION - Element LIMS' Proposal for: Effective: 3 -Dec -14 City of Meridian Prepared by: Travis Kissire Rick Persichitte SOFTWARE AND MAINTENANCE License: Purchase Qty Price Total ($US) BASE SOFTWARE Configuration: Advanced Application Components Concurrent Users 5 $ 6,499 $ 32,495 Project Management Included Sample Control Included Laboratory Analysis (including Data Tool) Included Quality Assurance Included Reporting (Basic reports) Included ClientConnect Reporting Application* Included Software Subtotal $ 32,495 MAINTENANCE First Year Annual Maintenance Included Subsequent annual maintenance estimate (not included in quote total) peruser $ 848 3rd PARTY HARDWARE AND SOFTWARE SAP Crystal Reports 1 $ 699 $ 699 IMPLEMENTATION SERVICES Qty Price I Total IMPLEMENTATION & TRAINING Advanced Dependent on requirements butgenerally4-6 on-site visits for setup $ 49,999 REPORTS AND EDDs EDDs and Reports 1 $ 5,760 Standard (Specialized) Report Packages 1 $ 9,800 » See attached list of Report/EDDs Estimate only; Specifications maybe required for custom work ADDITIONAL SERVICES Data Migration $ 15,000 TOTAL DUE $ 113,753 Quotation Terms& Conditions This pricing in this proposal remain effective for 90 days from date quoted. Some implementation and system configuration maybe performed off-site. Applicable sales tax will be charged if Promium has nexus. *Includes reporting functionalityonly. Sample submission capabilitybilled separately. —Estimates of any customization are subject to further analysis of requirements and may change. Confidential - For internal use only by: Rev: AML100614 City of Meridian Promium, LLC Element LI IVIS"' Contract Rev: AL041814 Promium, LLC 1.877.PROMIUM PRbMIUM www.promium.com 1.877.PROMIUM PROMI UM QUOTATION - Element LIMSe EDD Et REPORT LIST Proposal for: City of Meridian Travis Kissire Effective: 3 -Dec -14 Prepared by: Rick Persichitte EDD and REPORT LIST Price TOTAL EDDS AND REPORTS $ 5,760 Includes: Keuse Data Keport & Monthly Keport SPECIALIZED REPORT PACKAGES (SEE DETAILS ON PRICE LIST) Price Discharge Monitoring $ 9,800 TOTAL SPECIALIZED REPORT PACKAGES $ 9,800 Confidential - For internal use only by: Rev: AML100614 City of Meridian Promium, LLC Element LI MST',' Contract Rev: AL041814 Promium, LLC 1.877.PROMIUM Order AGREEMENT: License Purchase [ X ] Lease to Own[ ] Legal Name of Customer/Organization: City of Meridian Mailing Address City County State Zip 3401 N. Ten Mile Rd. Meridian Ada Idaho 83646 Shipping Address City County State Zip 3401 N. Ten Mile Rd. Meridian Ada Idaho 183646 CUSTOMER CONTACTS: Implementation: Name Travis Kissire Title Laboratory Supervisor Phone/Fax: (208) 888-2191 Email: tkissire@meridiancity.org Maintenance/Support: Name Title Phone/Fax: Email: Accounting: Name Keith Watts Title Purchasing Manager Phone/Fax: (208) 489-0417 Email: kwatts@meridiancity.org CUSTOMER AGREES TO THE PURCHASE OR LEASE OF SOFTWARE LICENSES FOR PROMIUM SOFTWARE AS DESCRIBED IN THIS ORDER FORM AND THE ATTACHED PROMIUM QUOTATION. THIS ORDER IS SUBJECT TO PROMIUM'S END-USER LICENSE AGREEMENT, MAINTENANCE AGREEMENT, AND FOR LICENSE PURCHASES ONLY, PAYMENT TERMS & CONDITIONS. COPIES OF THESE DOCUMENTS HAVE BEEN PROVIDED TO CUSTOMER WITH THIS ORDER FORM. BY SIGNING BELOW, CUSTOMER ACKNOWLEDGES THAT IT HAS RECEIVED A COPY OF SUCH DOCUMENTS, AND AGREES TO BE BOUND BY ALL OF THEIR TERMS & CONDITIONS. THE PERSON SIGNING BELOW WARRANTS THAT HE OR SHE IS AUTHORIZED TO EXECUTE THIS DOCUMENT ON BEHALF OF CUSTOMER. Purchase Order # (if applicable) GSA Status (If applicable) Authorized Agent Name ( rint) 4 0, 0.', Title Signature Date 3 �, f Promium, LLC Authorized Agent Name (print) Scot Cocanour Title Chief Executive Officer Signature 00 Date wu Page 4 of 23 Contract No. Promium for Element Data System PRbMIUM Payment Terms and Conditions Software Licenses and Initial Maintenance www.promium.com 1.877.PROMIUM Software license(s) and initial maintenance is invoiced upon shipment of software and payment is due upon receipt of invoice. Installation services will not be formally scheduled until payment for software licenses and initial maintenance are received by Promium or its agent. On-site Installation Services, Training and Consulting Charges for initial implementation and training are invoiced in five increments after payment for software has been received, per the schedule below unless otherwise defined in the proposal. Payment is due net thirty days. Delay in payments could result in discontinuation of services. Invoice 41: 25% Invoice 42: 25% Invoice #3: 25% Invoice #4: 15% Invoice 45: Balance To be invoiced after Invoiced thirty days Invoiced thirty days Invoiced thirty Invoiced thirty days software has been after Invoice 41. after Invoice 42. days after Invoice after Invoice 44. installed on the #3. designated server. Custom Development Services Custom development, custom Electronic Data Deliverable (EDD) generation, custom report creation, and other non-standard services are invoiced weekly. The seven day work week is defined as Sunday 12:00am local time, to Saturday 11:59pm local time. Payment for these invoices is due Net 30. Delay in payments could result in discontinuation of services. Annual Maintenance Agreement Renewal As provided in the Maintenance Agreement, renewal for maintenance is invoiced 45 days prior to the expiration of the maintenance period and is due net 30 days from invoice date. Prices are subject to change and payment is due in advance of the maintenance period. Past Due Accounts Services for customers whose account includes invoices 30 days past due may be suspended until written payment arrangements have been made and accepted by authorized Promium personnel. Payments not made on or before the payment deadline as stated in the invoice, shall be subject to a one -and -one-half percent (1%2%) monthly late fee. In the event that Customer fails to make timely payment under this Agreement, Promium reserves the right to terminate this Agreement by providing Customer written notice of its election to do so. Promium, LLC Element LI MS'" Contract Rev: AL041814 5 PRbMIU M www.pro Rom 1.877.PROMIOMIUM Element LIMS"' Software End -User License Agreement This End -User License Agreement ("EULA" or "Agreement") is a legal agreement between the customer listed on the Promium Order document ("you" or "Customer") and Promium, L.L.C. ("Promium") for Element LIMS`" (also called Element DataSystem°) computer software and associated media and printed materials provided to you by Promium (collectively, "Software"). The term Software shall also include "online" or electronic documentation that may be provided to you. By installing, copying, or using any part of the Software, you agree to be bound by the terms of this EULA. PROMIUM IS WILLING TO GRANT YOU A RIGHT TO USE ITS SOFTWARE ONLY IF YOU ACCEPT AND AGREE TO BE BOUND BY ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is licensed, not sold. 1. GRANT OF LICENSE. a. Unless otherwise specified in writing by Promium, you may use an unlimited number of copies of the Software on an unlimited number of computers; provided however, that they may be used by a single business or government entity only. The number of concurrent users of the Software shall be limited as described in your Promium Quotation form. Laboratory facilities connected by network and sharing a single Element LIMS Production Database may share a single license, as long as all such facilities are both owned and operated by a single business or government entity. The Software may not be loaned or shared with any other business or government entity, including any affiliated companies; any such entity would need to purchase its own license to use the Software. b. The Software is in "use" on a computer when it is loaded into temporary memory (i.e., RAM) or installed into permanent memory (e.g., hard disk, CD-ROM, or other storage device) of that computer. Subject to the other terms of this Agreement, installation on a network server for the sole purpose of internal distribution to one or more other computer(s) within a single physical facility shall not constitute "use" for which a separate license is required. c. Solely with respect to electronic documentation included with the Software, you may make an unlimited number of copies (either in hardcopy or electronic form), provided that such copies shall be used only for internal instructional purposes and are not republished or distributed to any third party. d. You may make one copy of the Software in machine-readable form solely for backup purposes. You must reproduce on any such copy all copyright notices and any other proprietary legends on the original copy of the Software. You may not sell or transfer any copy for the Software made for backup purposes. e. You may allow your laboratory clients to access appropriate data and reports via the Internet reporting features of the Software. Promium, LLC Element LIMST" Contract Rev: AL041814 PRbMIUM www.promium.com 1.877.PROMIUM f. You agree that Promium may audit and inspect your use of the Software for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the Software by you other than in full compliance with the terms of this Agreement, you shall reimburse Promium for all reasonable expenses related to such audit in addition to any other liabilities you may incur as a result of such non- compliance. g. If the Software was provided to you as a "Trial Version" or "Demonstration Version," then the Software may be used only for the time period specified by Promium at the time of delivery ("Trial Period" or "Demonstration Period"), unless you purchase a further license to the Software at the end of the Trial Period. "Trial Version" or "Demonstration Version" means a version of the Software, so identified, to be used only to review, demonstrate and evaluate the Software for a limited time period. The Trial or Demonstration Version may have limited features, may lack the ability for the end-user to save the end product, and will cease operating after a predetermined amount of time. 2. OWNERSHIP. a. Title. Promium retains all proprietary rights, including patent, copyright, trade secret, trademark and other proprietary rights, in and to the Software and any corrections, bug fixes, enhancements, updates or other modifications, including custom modifications, to the Software, whether made by Promium or any third party. You shall own all rights, title and interest to the information contained in any database created by you for use with the Software. You shall not, however, own any right, title or interest to the schema, structure or design of any databases developed for use with the Software by Promium and may not disclose such schemas, structures or designs to a third party without the expressed written consent of Promium. b. Validation. The Software will from time to time check to see if a valid license is active for that instance of the Software. During the validation check, the Software will send information about the Software and the device Internet protocol address of the device. Promium does not use the information to identify or contact you. By using the Software, you consent to the transmission of this information. If, after the validation check, the Software is found not to be properly licensed, the functionality of the Software may be affected. You may need to reactivate the Software, or receive reminders to obtain a properly licensed copy of the Software, or you may not be able to use some features of the Software, or you may not be able to obtain updates, upgrades or support from Promium. c. Confidentiality. You acknowledge that the Software contains confidential, proprietary information and trade secrets of Promium. You agree, and shall take all appropriate steps, to ensure that the Software, or any portion thereof, is not disclosed or made available by you or anyone in your organization to any other person, firm or organization without the prior written consent of Promium. You agree to properly restrict any persons permitted access to the Software so as to enable you to satisfy your obligations under this Agreement. 3. COPYRIGHT. All title and copyrights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, text, code libraries, sub -components and "applets" incorporated into the Software), the accompanying printed materials, and any copies of the Software are owned by Promium or its suppliers. You must refrain from copying the Software except that you may (a) make copies of the Software solely for backup or archival purposes and (b) copy the Software to a network server for the sole purpose of internal distribution to one or more other computer(s) within a single physical facility. You may copy the printed instructional materials such Promium, LLC Element LIMS'M Contract Rev: AL041814 PRIbMIUM www.promium.com 1.877.PROMIUM as tutorials and manuals accompanying the Software with permission from Promium only for the sole purpose of operating and maintaining Promium products within the restrictions of your license. 4. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS. a. Restrictions on Use. This Software is licensed, and not sold, to you for use only under the terms of this Agreement. Except as expressly licensed to you herein, Promium reserves the right, title and interest in the Software and all associated copyrights, trademarks, and other intellectual property rights therein. You agree to use the Software only for your own business or organization. You shall not (i) permit any parent, subsidiaries, affiliated entities or third parties to use the Software unless otherwise specifically agreed in writing by Promium, (ii) use the Software to process or permit to be processed the data of any other party, including any of your affiliates or related companies, (iii) use the Software in the operation of a service bureau or similar service, on the internet or otherwise, or (iv) allow access to the Software through any computers located outside of your main facility or your designated remote facilities (this does not preclude laboratory clients from accessing appropriate data and reports via the Internet features of the Software as discussed above). b. Limitations on Reverse Engineering, Decompilation, and Disassembly. You may not reverse engineer, decompile, or disassemble the Software. For purposes of this Agreement, "reverse engineering" shall mean the examination or analysis of the Software or Proprietary Information to determine its source code, sequence, structure, organization, internal design, algorithms or encryption devices, and "Proprietary Information" shall mean all data, material, text, software, scripts, processes, graphics, other information or materials or portions thereof that are built into the Software. c. Unauthorized Use. You may not distribute, rent, lease or sublicense the Software. d. Upgrades. If this copy of the Software is an upgrade from an earlier version of the Software, you must possess a valid full license to a copy of the Software used to upgrade to this copy. You may continue to use earlier versions of the Software to which this upgrade copy relates provided that: (i) the upgrade copy and the earlier version copy are installed and/or used only on the computers covered by this Agreement, and the earlier version copy is not installed and/or used on any other computers; (ii) you comply with the terms and conditions of the earlier version's end user license agreement with respect to the installation and/or use of such earlier version copy; (iii) the earlier version copy or any copies thereof are not transferred to any other party; and (iv) you acknowledge and agree that any obligation Promium may have to support for the earlier version of the Software may be ended upon availability of the upgrade. e. Non -Competition. In no event may you use the Software or Proprietary Information to provide services similar to the Software in competition with Promium. In order to protect Promium's confidential information and trade secrets, you may not develop, provide, sell, rent, or resell any product or service which competes with the Software, or create or implement any such product or service for the purpose of competing with the Software provided hereunder while this Agreement is in effect and for a period of one (1) year following termination of this Agreement. 5. RESPONSIBILITY FOR USE. a. You assume sole responsibility for the use of the Software and for any results obtained by you from the Software. You shall be solely responsible for necessary audit and verification of the sufficiency and accuracy of all reports, documents and other information prepared using the Software. Promium, LLC Element LIMS'M Contract Rev: AL041814 8 PROMIUM www.promium.com 1.877.PROMIUM b. You agree not to knowingly use the Software to violate any applicable local, state, national or international law or regulation. c. Customer shall indemnify and defend Promium and hold it harmless from and against any loss, damage, or expense, including reasonable attorneys' fees, arising out of: (i) claims by third parties relating to analytical results provided to third parties by Customer from Customer's use of the Software (unless such use is due to Promium's gross negligence and/or willful misconduct); (ii) unauthorized use of the Software by Customer as described in Sections 1 and 4; or (iii) the failure of Customer to meet any of it obligations as described in this Agreement. 6. LIMITED SOFTWARE PRODUCT WARRANTY. Promium warrants, for a period of ninety (90) days after access is first provided to you, that the Software will operate in conformance with the documentation supplied with the Software. Promium's sole obligation under this warranty is to, at Promium's sole option, correct or replace the Software so that it will perform as above warranted or refund a prorated portion of the related license fee. This warranty is void if any unauthorized modifications are made to the Software or if the Software is not used in compliance with its documentation. 7. DISCLAIMER OF WARRANTY AND LIMITATION OF REMEDIES AND LIABILITY. a. THE LIMITED WARRANTY PROVIDED HEREIN IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES. OTHER THAN THIS LIMITED WARRANTY, THE SOFTWARE AND ANY ASSOCIATED SERVICES ARE PROVIDED "AS IS" AND PROMIUM HEREBY SPECIFICALLY DISCLAIMS ALL WARRANTIES, CONDITIONS, AND/OR REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, THAT MAY ARISE EITHER BY THE PARTIES' AGREEMENTS OR BY OPERATION OF LAW, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. PROMIUM MAKES NO OTHER REPRESENTATIONS OR WARRANTIES INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS OR WARRANTIES THAT (A) THE SOFTWARE WILL MEET YOUR REQUIREMENTS, (B) THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR (C) ANY DEFECTS IN THE SOFTWARE WILL BE CORRECTED. This disclaimer shall not apply to the extent that it is prohibited by applicable law. b. We will not be liable for any loss or damage caused by delay in furnishing the Software or any other performance under this Agreement. c. Our entire liability and your exclusive remedies for our liability of any kind (including liability for negligence except liability for personal injury caused solely by our negligence) for the Software covered by this Agreement and all other performance or nonperformance by us under or related to this Agreement are limited to the remedies specified by this Agreement. REGARDLESS OF WHETHER ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE, THE LIABILITY OF PROMIUM SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNT OF THE LICENSE FEES PAID TO PROMIUM FOR THE SOFTWARE. IN NO EVENT SHALL PROMIUM BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR SIMILAR DAMAGES, INCLUDING PUNITIVE DAMAGES AND LOST PROFITS, RELATED TO THE SOFTWARE OR ANY ASSOCIATED SERVICES THAT PROMIUM MAY PROVIDE, EVEN IF PROMIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. d. Some states orjurisdictions do not allow the exclusion of implied warranties or limitation of liability for consequential or incidental damages, so the above exclusion may not apply to you. In such situations, Promium, LLC Element LI MST" Contract Rev: AL041814 PRC):MIUM www.promium.com 1.877.PROMIUM Promium's liability shall be limited to the extent permitted by law. This warranty gives you specific legal rights, and you may also have other rights which vary from state to state. 8. U.S. GOVERNMENT END-USERS. For U.S. government end-users, Promium's Software and its documentation constitute a "commercial item," 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 and 48 C.F.R. §227.7202. All U.S. government end-users acquire the Software with only those rights set forth herein, consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable. Manufacturer/contractor is Promium, L.L.C., 3350 Monte Villa Parkway, Suite 220, Bothell, Washington 98021. 9. TERMINATION. This Agreement shall continue until terminated. You may terminate this Agreement at any time by permanently discontinuing use of the Software and returning all copies of the Software to Promium. Without prejudice to any other rights, Promium may terminate this EULA if you fail to comply with the terms and conditions of this EULA by giving you written notice of such termination. After any termination of this Agreement, you must cease all use of the Software and return any copies of the Software in your possession or under your control to Promium. Your obligations in this Agreement shall survive this Agreement until such time as all copies of the Software have been returned to Promium. 10. MISCELLANEOUS This software is copyright © 1999-2014 Promium, L.L.C. All rights not specifically granted in this Agreement are reserved. In any suit, proceeding or action to enforce this Agreement, the substantially prevailing party shall be entitled to recover from the other party reasonable attorneys' fees and costs and expenses in connection with such suit, proceeding or action, including appeal. This Agreement shall be governed by and construed under the laws of the State of Washington without regard to its conflict of laws principles. The jurisdiction and venue for any suit or action between the parties shall be the state and federal courts of King County, Washington. Failure to enforce any rights granted herein shall not be deemed a waiver as to subsequent enforcement of such rights. If any part of this Agreement is found void and unenforceable, it shall be deemed severed from this Agreement and shall not affect the validity and enforceability of the balance of the Agreement. This Agreement is not assignable and the licenses granted hereunder may not be sublicensed, assigned or transferred in any manner without the prior written consent of Promium. Any such attempted sublicense, assignment or transfer shall be void. Promium, LLC Element LI MS- Contract Rev:AL041814 10 PRb�MIUM www.promium.com 1.877.PROMIUM This Agreement, together with its accompanying Quotation, Order, Maintenance Agreement and Payment Terms and Conditions, constitute the entire understanding and agreement of the parties with respect to its subject matter, and any and all prior agreements, understandings or representations with respect to its subject matter are merged herein. The terms and conditions of this Agreement prevail over the terms and conditions of any other order (such as a purchase order) submitted by Customer for the Software. This Agreement may be amended only by written instrument signed by both parties subsequent to the date hereof. Any terms of this Agreement which by their nature extend beyond the Agreement termination or expiration shall remain in effect until fulfilled. These include Sections 2, 3, 4, 5, and 7. Should you have any questions concerning this EULA, or if you desire to contact Promium for any reason, please contact: Promium, L.L.C. 3350 Monte Villa Parkway, Suite 220 Bothell, Washington 98021 425.286-9200 Phone 425-286-9201 Fax Promium, LLC Element LI MST" Contract Rev: AL041814 11 PR IU MM www.promium.com 1.877.PROMIUM Element LIMS' Maintenance Agreement This Maintenance Agreement (the "Agreement") is a legal agreement between the customer listed on the Promium Order document ("you" or "Customer") and Promium, LLC ("Promium") for maintenance and support services for the Element LIMS'" (also called Element DataSystem°) software (the "Software"). Maintenance and support are provided by Promium for the term of this Agreement. For license purchase customers, an initial one- year term is included as part of the Software license purchase. Thereafter, this Agreement shall automatically renew for subsequent one-year periods until terminated as described below. For lease customers, a Maintenance Agreement is in effect for the duration of the lease term. Services not explicitly described in this document are not covered by the Maintenance Agreement or provided by Promium unless otherwise specified. Such items include conflicts that may cause Software failure due to firmware or device drivers or micro code problems introduced by the manufacturer or other parties; issues arising from software programs from other vendors; computer equipment, network equipment, database software, or any other product that may malfunction unless the malfunction is directly caused by the Software. 1. Technical Support Services: a. Scope: Technical support services under this Agreement are limited to the two most recent major versions of the covered Software products and are available to customers who have a valid Maintenance Agreement. b. Services: Unless otherwise communicated, telephone support is available Monday through Friday, S:OOam to S:OOpm Pacific Time, not including holidays recognized by Promium. At other times, a telephone or email message may be left and Promium personnel will respond within one business day. Emergency technical assistance provided outside of normal business hours may incur additional charges. Online documentation and other support materials are available at www.promium.com/support. Promium website is available twenty-four hours per day, seven days per week unless undergoing maintenance or repair. Each Element LIMS customer requiring support must designate at least one primary contact person to manage technical support requests. Support requests should be directed to: Promium Customer Support (Help Desk) 425.286.9200 phone or toll free at 877-Promium (776-6486) 425.286.9201 fax support@promium.com Promium, LLC Element LIMS"' Contract Rev: AL041814 12 PR IU MM www.promium.com 1.877.PROMIUM 2. Software Updates: Software updates to the core system, including Software revisions, are provided at no additional charge to customers who have a valid Maintenance Agreement. Updated system components such as executables, libraries, controls, Basic report formats and supporting files for the covered Software products and its companion applications are available from the Promium downloads section of the web site at www. promium.com/support. No additional tangible goods will be provided with the renewal of the maintenance subscription. Updates to Standard and customized EDDs and reports are available at an additional charge. 3. Custom Programming Services Features, functions, reports, and other input or output not considered part of core Software or services by Promium is considered custom work. Deliverables including but not limited to, custom programming, custom reports, proprietary electronic deliverable programs, other special program functions on behalf of the user, and other custom services, outside the original purchase agreement, may incur additional charges as quoted by Promium. Up to eight hours of development resources will be provided to Contract Laboratory Program (CLP) labs for specialized support as part of standard maintenance coverage but additional charges will be incurred for work in excess of the eight hours. 4. Services Not Included Promium reserves the right to charge for support or programming services that are unrelated to the direct operation of its Software products. This includes conflicts that may cause Software failure due to firmware or device drivers or micro code problems introduced by the manufacturer or other parties. This also includes other Software programs that may interfere with its Software products. 5. Term Et Renewal This Agreement is effective for one year for license purchase customers. The effective (service start) date is within thirty (30) days of shipment of software unless otherwise specified. Upon the expiration of the initial one year term (and unless otherwise terminated), this Agreement shall automatically renew for successive one-year periods unless either party gives written notice of its intent to terminate the Agreement before the then -current term expires. For lease customers, this Agreement is effective for the period of the lease, and it shall continue automatically provided that lease payments are timely received by Promium. 6. Payment For license purchase customers, annual maintenance payments shall be paid in advance. Costs for each renewal term are generally invoiced to you 45 days prior to the expiration of the renewal term and are due net 30 days from invoice date. Prices are subject to change. Payment not received on or before the Payment Deadline shall be subject to a one -and -one-half percent (1%:%) monthly late fee. In the event that Customer fails to make timely payment under this Agreement, Promium reserves the right to terminate this Agreement and/or suspend the provision of services under it by providing Customer written notice of its election to do so. Maintenance for lease customers shall be paid in advance as provided in the Promium Software Lease Agreement. Promium, LLC Element Ll MS'" Contract Rev:AL041814 13 PRbMIU M www.promium.com 1.877.PROMIUM 7. Billing Any services not covered under this Agreement will be billed at a rate set by Promium in its course of business. Payment for services billed shall be made within thirty (30) days of the date of invoicing or shall be subject to a one -and -one-half percent (1%%) monthly late fee. 8. Warranty Disclaimer and Limitation of Liability a. THE PROMIUM MAINTENANCE SERVICES ARE PROVIDED "AS IS" AND PROMIUM HEREBY SPECIFICALLY DISCLAIMS ALL WARRANTIES, CONDITIONS, AND/OR REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, THAT MAY ARISE EITHER BY THE PARTIES' AGREEMENTS OR BY OPERATION OF LAW, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. PROMIUM MAKES NO OTHER REPRESENTATIONS OR WARRANTIES INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS OR WARRANTIES THAT (A) THE SOFTWARE WILL MEETYOUR REQUIREMENTS, (B) THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR (C) ANY DEFECTS IN THE SOFTWARE WILL BE CORRECTED. This disclaimer shall not apply to the extent that it is prohibited by applicable law. b. We will not be liable for any loss or damage caused by delay in furnishing the Software or any other performance under this Agreement. c. Our entire liability and your exclusive remedies for our liability of any kind (including liability for negligence except liability for personal injury caused solely by our negligence) for the Software covered by this Agreement and all other performance or nonperformance by us under or related to this Agreement are limited to the remedies specified by this Agreement. REGARDLESS OF WHETHER ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE, THE LIABILITY OF PROMIUM SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNT OF THE LICENSE FEES PAID TO PROMIUM FOR THE SOFTWARE. IN NO EVENT SHALL PROMIUM BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR SIMILAR DAMAGES, INCLUDING PUNITIVE DAMAGES AND LOST PROFITS, RELATED TO THE SOFTWARE OR ANY ASSOCIATED SERVICES THAT PROMIUM MAY PROVIDE, EVEN IF PROMIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. d. Some states orjurisdictions do not allow the exclusion of implied warranties or limitation of liability for consequential or incidental damages, so the above exclusion may not apply to you. In such situations, Promium's liability shall be limited to the extent permitted by law. This warranty gives you specific legal rights, and you may also have other rights which vary from state to state. 9. General If Customer breaches any of the terms of this Agreement, Promium, in addition to any other legal remedy it may have, may cancel this Agreement effective upon written notice to Customer. This Agreement or other proof thereof must be presented by Customer as valid Maintenance coverage upon request. In any suit, proceeding or action to enforce this Agreement, the substantially prevailing party shall be entitled to recover from the other party reasonable attorneys' fees and costs and expenses in connection with such suit, proceeding or action, including appeal. This Agreement shall be governed by and construed under the laws of the State of Washington without regard to its conflict of laws principles. The jurisdiction and venue for any suit or action between the parties shall be the state and federal courts of King County, Washington. Promium, LLC Element LIMST" Contract Rev: AL041814 14 PRbMIUM www.promium.com 1.877.PROMIUM Failure to enforce any rights granted herein shall not be deemed a waiver as to subsequent enforcement of such rights. If any part of this Agreement is found void and unenforceable, it shall be deemed severed from this Agreement and shall not affect the validity and enforceability of the balance of the Agreement. This Agreement is not assignable and the licenses granted hereunder may not be sublicensed, assigned or transferred in any manner without the prior written consent of Promium. Any such attempted sublicense, assignment or transfer shall be void. This Agreement, together with its accompanying Quotation, Order, Maintenance Agreement and Payment Terms and Conditions, constitute the entire understanding and agreement of the parties with respect to its subject matter, and any and all prior agreements, understandings or representations with respect to its subject matter are merged herein. The terms and conditions of this Agreement prevail over the terms and conditions of any other order (such as a purchase order) submitted by Customer for maintenance services. This Agreement may be amended only by written instrument signed by both parties subsequent to the date hereof. Any terms of this Agreement which by their nature extend beyond the Agreement termination or expiration shall remain in effect until fulfilled. These include Sections 7, 8 and 9. Promium, LLC Element LIMS'" Contract Rev:AL041814 15