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Foundant Technologies Standard'Fernls and Conditions
<br />Software License and Services Agreement with Customer
<br />Software, Professional Services, Support Services, or Hosting Services from an
<br />authorized Foundant reseller, Customer shall make all payments due in
<br />connection therewith to the reseller, and not to Foundant. However, Foundant
<br />is under no obligation to carry out its obligations under this Agreement if
<br />Foumdant has not received payment in full fiern the reseller.
<br />13. WARRANTY DISCLAIMER
<br />EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 6 OR 9 OF THIS
<br />AGREEMENT OR IN THE HOSTING SERVICE LEVEL APPENDIX, THE
<br />SOFTWARE, SUPPORT SERVICES, WORKPRODUCT AND
<br />PROFESSIONAL SERVICES ARE PROVIDED WITH NO OTHER
<br />WARRANTIES OF ANY KIND, AND FOUNDANT DISCLAIMS ALL
<br />OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT
<br />LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS
<br />FOR A PARTICULAR PURPOSE. FOUNDANT DOES NOT WARRANT
<br />THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR
<br />ERROR -FREE.
<br />14. LIMITATION OF LIABILITY
<br />(a) NEITHER PARTY SHALL BE LIABLE UNDER THIS
<br />AGREEMENT TO THE OTHER OR ANY THIRD PARTY FOR
<br />ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR
<br />CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION
<br />DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE,
<br />COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED
<br />DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY),
<br />OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF
<br />LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY
<br />OR ANY OTHER THEORY), EVEN IF THE OTHER
<br />PARTY HAS BEEN INFORMED OF THE POSSIBILITY THEREOF,
<br />CUSTOMER ASSUMES ALL RESPONSIBILITY FOR THE SELECTION
<br />OF THE SOFTWARE AND DOCUMENTATION NECESSARY TO
<br />ACHIEVE CUSTOMER'S INTENDED RESULTS, AND FOR THE
<br />INSTALLATION, USE AND RESULTS OF THE
<br />SOFTWARE OR WORK PRODUCT.
<br />(b) EXCEPT AS PROVIDED HEREAFTER, EACH PARTY'S
<br />TOTAL LIABILITY FOR ANY LOSS, COST, CLAIM OR DAMAGES OF
<br />ANY KIND ARISING OUT OF OR RELATED TO A QUOTE FORM
<br />MADE UNDER THIS AGREEMENT SHALL NOT EXCEED THE
<br />AMOUNT OF THE FEES PAID OR PAYABLE BY CUSTOMER TO
<br />FOUNDANT UNDER SUCFI QUOTE FORM DURING THE TWENTY
<br />FOUR (24) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH
<br />LOSS, COST, CLAIM OR DAMAGES. THIS LIMITATION ON
<br />LIABILITY WAS AND IS AN EXPRESS PARTOF THE BARGAIN
<br />BETWEEN FOUNDANT AND CUSTOMER AND WAS A
<br />CONTROLLING FACTOR IN THE SETTING OF THE FEES PAYABLE
<br />TO FOUNDANT HEREUNDER. NOTHING IN THIS SECTION 14(B)
<br />SHALL APPLY TO LIMIT CUSTOMER'S LIABILITY TO FOUNDANT
<br />IN CONNECTION WITH AN INFRINGEMENT OF FOUNDANT'S
<br />INTELLECTUAL PROPERTY RIGHTS, OR TO LIMIT EITHER PARTY'S
<br />LIABILITY TO THE, OTHER IN CONNECTION WITH AN
<br />INFRINGEMENTOF SECTION 16 OF THIS AGREEMENT.
<br />15. CONFIDENTIALITY
<br />(a) Customer acknowledges that the Soltware, Documentation and
<br />Work Product contain valuable trade secrets which are the sole property of
<br />Foundant, and agrees to use reasonable care to prevent other parties from
<br />learning of these trade secrets. Customer will take all reasonable steps to
<br />prevent unauthorized access to or duplication of the Software, Documentation,
<br />and Work Product.
<br />(b) Foundant acknowledges that Customer's Giant Lifecycle Process(es)
<br />may contain valuable secrets which are the sole property of Customer. To
<br />the extent that Foundant becomes aware of the content of Grant Lifecycle
<br />Process(es), Foundant agrees to use reasonable care to prevent other parties firm
<br />learning of these secrets without prior written pennission of Customer.
<br />(c) Foundant acknowledges that Customer's data and files stored within
<br />the Software are the property of Customer and will be treated as confidential.
<br />Foundant agrees to use reasonable care to ensure the confidentiality of
<br />Customer's data.
<br />(d) The obligations of this Section 15 shall not extend to may
<br />information that (i) is now, or hereafter becomes, through no act or failure to act
<br />on the part of receiving party (the "Receiver"), generally known or available;
<br />(ii) is known by the Receiver at the time of receiving such information, as
<br />evidenced by the Receiver's records; (iii) is hereafter famished to the
<br />Receiver by a thud party, as a matter of right and without restriction on
<br />disclosure; or Iv) is required to be disclosed by law, provided that the party to
<br />whom the information belongs is given prior written notice of any such
<br />proposed disclosure.
<br />16. INDEMNIFICATION
<br />(a) Subject to Section 14(b), Foundant shall indemnify, defend and hold
<br />Customerhamrless from any damages awarded against Customer (including,
<br />without limitation, reasonable costs and legal fees thereby incurred by
<br />Customer) arising out of any third party suit, claim or other legal action
<br />alleging that the use of the Software by Customer as permitted hereunder
<br />infringes any copyright, trade secret or United States patent ("Legal Action").
<br />Notwithstanding the foregoing, Foundant shall have no indemnification
<br />obligations with regard to any Legal Action arising out of (i) combination of
<br />the Software with software or products not supplied, or approved in writing by
<br />Foundant; (ii) any repair, adjustment, modification or alteration to the Software
<br />by Customer or any [turd party, unless approved in writing by Foundant; (iii) any
<br />breach by Customer of its obligations under this Agreement; or (iv) any refusal
<br />by Customer to install and use a non -infringing version of the Software offered
<br />by Foundant under Section 6(b). Section 6(b) and this Section 16(a) state the
<br />entire liability of Foundant with respect to any intellectual property infringement
<br />by the Software.
<br />(b) Notice of Legal Action. Customer shall give prompt written
<br />notice to Foundant of any Legal Action within thirty (30) days of its first
<br />knowledge thereof and shall furnish copies to Foundant of all communications,
<br />notices and/or other actions relating to any Legal Action. Customer shall give
<br />Foundam the sole control of the defense of any Legal Action, shall act in
<br />accordance with the reasonable instructions of Foundant and shall give Foundant
<br />such assistance as Foundart reasonably requests to defend or settle such
<br />claim. Foundant shall conduct its defense at all times in a manner which is not
<br />adverse to Customer's interests. Customer may employ its own counsel to assist
<br />it with respect to any such chum. Customer shall bear all costs of engaging its
<br />own counsel, unless engagement of counsel is necessary because of a conflict
<br />of interest with Foundant or its counsel, or because Foundant fails to
<br />assume control of the defense. Customer shall not settle or compromise any
<br />Legal Action without Foundant's express written consent. Foundant cannot
<br />settle a Legal Action on Customer's behalf without Customer's prior
<br />consent, which shall not be unreasonably withheld. Customer's material
<br />failure to comply with this Section. 16(b) shall relieve Foundant of its
<br />indemnification obligation under Section 16(a).
<br />17. PUBLICITY
<br />(a) Foundant shall have the right to flet Customer as a customer on
<br />Foundant's website, on publicly available customer lists, or in media releases.
<br />(b) Customer, at its sole discretion, shall cooperate with any
<br />reasonable request by Foundant for assistance in the preparation of a case
<br />sandy documenting Customer's experience in using the Software. The final
<br />text of the case study shall be subject to Customer's written approvalbefore
<br />publication.
<br />18. VERIFICATION
<br />At Foundant's discretion, but no more frequently then three (3) tunes in any
<br />twelve (12) month period, Foundant shall have the right to audit Customer's
<br />implementation of the Software for verification of comphance with the terns
<br />set forth in the Quote Porto.
<br />19. MISCELLANEOUS
<br />(a) This Agreement, including any appendices, together with the
<br />Quote Form, represents the entire agreement of the parties, and supersedes any
<br />prior or conternpomneous understandings, whether written or oral. In the event
<br />of a conflict between the Agreement and the Quote Form, the Quote Form shall
<br />Prevail.
<br />(b) This Agreement may not be amended, waived or modified except as
<br />expressly provided herein or in writing by the parties.
<br />(c) 'Ibis Agreement will be governed by and construed in accordance
<br />with the laws of Montana (excluding its choice of law mles). The parties hereby
<br />consent to the exercise of exclusive imisdietion by the state or federal courts
<br />in the State of Montana for any claim relating to the enforcement of, or any
<br />rights under, this Agreement.
<br />(d) Customer may not assign or otherwise transfer any of its rights or
<br />obligations under this Agreement without the prior written consent of
<br />Foundant. Foundant may not withhold such consent in the case of an
<br />assignment by Customer of its rights and obligations to an entity that has
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