Lenstar Order T&C Acceptance

Application of Terms. These terms and conditions apply to any sale or delivery by Haag-Streit USA, Inc. (“Haag-Streit”) of Lenstar® or Octopus® products and services. Any additional or conflicting term from those in these terms and conditions in an offer or acceptance by Buyer is expressly objected to by Haag-Streit and shall not be deemed accepted by Haag-Streit or to be part of any contract with Haag-Streit unless Haag-Streit, in a duly executed writing, specifically accepts such additional or conflicting term.

Acceptance; Agreement to Buy. Any order for a Lenstar® or Octopus® product or service is subject to acceptance by Haag-Streit and may be cancelled by either party within three (3) days of the date on which the Quote/Sales Order (“Order”) is signed on behalf of Buyer. Haag-Streit will not accept an Order for a Lenstar® product unless the order is made by a physician. Buyer may only cancel an Order by notifying Haag-Streit in writing at the address shown on the Order during that three-day period. After that, any Order shall constitute a firm and binding agreement of Buyer to buy the products and software licenses in the quantities and at the prices listed in the Order. Prices listed in the Order are valid only for the period specified in the Order. If no period is specified, the prices are valid only for 30 days. Except as set forth herein, Haag-Streit reserves the right to make changes at any time without notice in prices, design, models or specifications, and to discontinue products.

Assignment. Buyer shall not assign the Order or any interest therein without the prior written consent of Haag-Streit. Any such actual or attempted assignment without Haag-Streit’s prior written consent shall be invalid and ineffective and shall entitle Haag-Streit to cancel the Order upon notice to Buyer.

Payment. A 10% deposit will be collected at time of Order entry and will be applied to total purchase price. Payment is due at the time of installation unless otherwise specified in the Order. Late payments are subject to interest at a rate of 1½% per month or the highest rate permitted by applicable law. Haag-Streit retains the right to maintain a security interest in the products listed in the Order until such time as Buyer has fully paid for the Order. Until Buyer has fully paid for the Order, Buyer will keep the products and software covered by the Order free from any lien or other encumbrance except with the consent of Haag-Streit. In the event of non-payment, Buyer agrees to pay all collection expenses, including court costs, legal and administrative expenses and attorneys’ and other fees paid or incurred by Haag-Streit.

Delivery/Risk of Loss. Unless otherwise stated in the Order or otherwise agreed to in writing, all goods are delivered F.O.B. Mason, Ohio. Risk of loss and title (excepting title to software) shall pass to Buyer upon Haag-Streit’s delivery to the carrier. Unless otherwise specified, all orders are shipped, freight prepaid, via the most economical surface method, with shipping charges added to the invoice. Risk of loss passes to the Buyer upon delivery of the products to the carrier. Transportation shall be at Buyer’s sole risk and expense, and any claim for loss or damage in transit shall be against the carrier only. Insurance may be procured by Buyer at its discretion. Any shipping dates are estimated. Failure to deliver within the time estimated shall not be a breach of contract on Haag-Streit’s part and in no event will Haag-Streit be responsible for, or Buyer be entitled to, any direct or indirect, incidental, exemplary, or consequential damages, including, but not limited to, claims for labor or loss of profits arising out of or relating to any delay in delivery. If failure to deliver or perform by Haag-Streit is due to an act of God, war, riot, embargo, act of civil or military authority, fire, flood, quarantine, storm, strike, labor dispute, delay in transport or supply, shortage of fuel, labor or material, or other cause beyond the reasonable control of Haag-Streit, Haag-Streit may, at its option, extend the delivery time or cancel the Order, in whole or in part.

Software License. Any software listed in the Order is licensed, not sold, to Buyer. Any software listed in the Order proprietary to a third party supplier is provided to Buyer subject to the terms and conditions established by the third party supplier. The following license terms apply to any software listed in the Order that is proprietary to Haag-Streit, except for the Eyesuite® Software, which is subject to its own License Agreement (found on page 6):

(a) Haag-Streit grants Buyer a non-exclusive license to use any Haag-Streit software product listed in the Order on the number of individual workstations or view-stations identified in the “Quantity” column on the Order. If Buyer intends to install Haag-Streit software on a LAN or other system such that it may be accessed by multiple workstations or view-stations, Buyer must have acquire licenses in a quantity equal to the number of workstations or view-stations connected to the LAN or other system. Buyer shall not make any copies of the software, other than back-up or archival copies. Buyer shall not modify, alter, adapt, merge, decompile, disassemble or reverse engineer the software.

(b) No transfer of the license to use Haag-Streit software is permitted without the written consent of Haag-Streit. In no event is Buyer permitted to grant any sublicense to use Haag-Streit software to a third party or otherwise make Haag-Streit software or the use of Haag-Streit software available to any other person without the written consent of Haag-Streit.

(c) All licenses to use Haag-Streit software are perpetual, except that Haag-Streit reserves the right to terminate any license if Buyer breaches the license terms described in this Order.

(d) Haag-Streit provides limited warranty support for its software as described below. Haag-Streit assumes no obligation to provide any updates or upgrades to its software.

Installation and Training. If installation and/or training services are listed in the Order, these services will be scheduled at the mutual convenience of Buyer and Haag-Streit as soon as possible after Buyer has received the products. Installation services are the services that in Haag-Streit’s experience are sufficient to install the Haag-Streit products and software in an environment complying with the requirements described below under “Limited Warranty.”

Limited Warranty. Haag-Streit warrants to the Buyer that the products and Haag-Streit proprietary software listed in the Order will be free from material defects in materials and workmanship for a twelve month period starting on the date of Buyer’s receipt of the products and/or software (the “limited warranty period”). During the limited warranty period, Haag-Streit will, at its discretion, either at an authorized Service Center or on site, repair or replace the necessary components, parts or subassemblies necessary to correct material defects in materials and workmanship in the products and/or software or, if for any reason Haag-Streit determines that it is unable to correct any such defect, accept the return of the products and/or software covered by this Order and refund the purchase price paid by Buyer. This limited warranty does not apply to damages caused by the following: accidents, acts of God, misuse, alterations, repairs or modifications not performed by an authorized Haag-Streit representative, the failure to maintain a suitable installation environment (including electrical power, humidity control, temperature control, space, and computer platform and capacity), relocation, the use of supplies, materials or third party software not meeting Haag-Streit specifications or the use of the products and/or Haag-Streit proprietary software for purposes other than those for which they were specifically designed. In addition, this limited warranty does not apply to any software product that is proprietary to a third party supplier. (The limited warranty with respect to any such software product, if any, is the limited warranty provided by the third party provider of that product.) This limited warranty does not cover consumable parts and supplies (i.e., paper, light bulbs, printer ribbons, ink cartridges, storage media, fuses, etc.) used with the products and software. THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF, AND HAAG-STREIT HEREBY DISCLAIMS AND THERE SHALL BE EXCLUDED FROM THE RELATIONSHIP BETWEEN BUYER AND HAAG-STREIT, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. This limited warranty does not constitute a warranty that procedures performed using the products and software covered by the Order will be subject to reimbursement by any insurance carrier. Buyer is responsible for the protection and integrity of all patient data and Haag-Streit will not be liable for any loss or compromise of patient data.

If Buyer needs limited warranty service, Haag-Streit will assist Buyer with the necessary arrangements to have the equipment shipped to an authorized service center. Shipping will be paid for by Haag-Streit. For limited warranty service or technical support, call Haag-Streit at (888) 848-8923, 8:00 am to 5:00 EST. Haag-Streit provides post-limited warranty period service of its instruments pursuant to a separate “Instrument Service Agreement.”

Returned Goods. No goods or equipment may be returned to Haag-Streit without prior written authorization by Haag-Streit. Upon receipt of a “Return Goods Authorization” form from Haag-Streit, returns must be shipped and prepaid to Haag-Streit at the address in the Order. A 20% restocking fee will be applied for returns within 30 days of installation date. Merchandise held longer than thirty (30) days from the installation date, special order items and discontinued products may not be returned.

Exclusive Remedy. Buyer’s remedies for the failure of any products and software listed in the Order are exclusively set forth below in the “Limited Warranty” section. Such remedies shall not be deemed to have failed of their essential purpose so long as Haag-Streit is willing and able to repair or replace the products and/or software or refund the purchase price paid by Buyer on a reasonably prompt basis. HAAG-STREIT WILL NOT UNDER ANY CIRCUMSTANCES BE RESPONSIBLE FOR ANY OTHER DAMAGE, INCLUDING ANY DIRECT OR CONSEQUENTIAL DAMAGE OR LOSS, ARISING FROM CONTRACT OR OTHERWISE, INCLUDING WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, INJURY TO PERSONS, DAMAGE TO TANGIBLE PROPERTY OR DAMAGES RESULTING FROM ANY INABILITY TO USE ANY HAAG-STREIT PRODUCT OR SOFTWARE.

Integration. The Order embodies the entire agreement and understanding between the parties with respect to the products, software and services covered by the Order, and supersedes all prior agreements and understandings relating to the subject matter hereof, whether oral or written. The product provided to Buyer is in its complete and finished form. No future changes, additions or enhancements can be provided without a written agreement signed by an authorized representative of Haag-Streit. These terms and conditions will not be amended, modified or rescinded except by written agreement signed by an authorized representative of each party expressly referring hereto. If any provision of these terms and conditions shall be held by a court of competent jurisdiction to be contrary to any law, the remaining provisions shall remain in full force and effect with such contrary or unenforceable provision limited or excluded to the minimum extent required under applicable law.

Governing Law/Jurisdiction/Jury Waiver. These terms and conditions and the Order shall be governed by, and construed in accordance with, the laws of the State of Ohio, without application of the conflict of law principles thereof. Any claim or dispute arising from the Order or these terms and conditions may only be brought in a court with jurisdiction over claims arising in Warren County, Ohio, and Buyer expressly waives any objection to such venue.

BUYER VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER BASED ON CONTRACT, TORT OR OTHERWISE, BETWEEN OR AMONG BUYER AND HAAG-STREIT, ARISING OUT OF OR IN ANY WAY RELATED TO ORDER, OR ANY PRODUCTS, SERVICES OR SOFTWARE LISTED IN THE ORDER.

Non-Waiver. Any failure by Haag-Streit to exercise any of its rights shall not constitute or be deemed a waiver or forfeiture of such rights or any other rights.

Limitations. Any cause of action arising from the arrangement between Haag-Streit and Buyer or any breach of Haag-Streit’s obligations to Buyer must be commenced within one year after the event giving rise to the cause of action has occurred or it shall be deemed irrevocably waived and time-barred.

THIS LIMITED WARRANTY AND SOFTWARE LICENSE APPLIES TO YOUR PURCHASE OF ANY LENSTAR® OR OCTOPUS® PRODUCT AND ACCOMPANYING SOFTWARE AND EQUIPMENT (“PRODUCT”). THIS DOCUMENT IS A LEGAL AGREEMENT BETWEEN YOU (“CUSTOMER”) AND HAAG-STREIT USA, INC. (“HAAG-STREIT”). BY ENTERING INTO A PURCHASE AGREEMENT FOR THE PRODUCT AND ACKNOWLEDGING RECEIPT OF THIS DOCUMENT, YOU ACCEPT AND AGREE TO THE TERMS OF THIS LIMITED WARRANTY AND SOFTWARE LICENSE. THIS LIMITED WARRANTY AND SOFTWARE LICENSE MAY NOT BE MODIFIED EXCEPT IN WRITING BY HAAG-STREIT.

Any software included with the Product is licensed, not sold, to Customer. Any software proprietary to a third party supplier included with the Product is provided to Customer subject to the terms and conditions established by the third party supplier. The following license terms apply to any software proprietary to Haag-Streit included with the Product:

(a) Haag-Streit grants Customer a non-exclusive license to use any Haag-Streit software included with the Product only on one individual workstation or view-station. If Customer intends to install Haag-Streit software on a LAN or other system such that it may be accessed by multiple workstations or view-stations, Customer must acquire licenses in a quantity equal to the number of workstations or view-stations connected to the LAN or other system. Customer shall not make any copies of the software, other than back-up or archival copies. Customer shall not modify, alter, adapt, merge, decompile, disassemble or reverse engineer the software. Additional licenses may be purchased by contacting Haag-Streit at (888) 848-8923.

(b) No transfer of the license to use Haag-Streit software is permitted without the written consent of Haag-Streit. In no event is Customer permitted to grant any sublicense to use Haag-Streit software to a third party or otherwise make Haag-Streit software or the use of Haag-Streit software available to any other person without the written consent of Haag-Streit.

(c) All licenses to use Haag-Streit software are perpetual, except that Haag-Streit reserves the right to terminate any license if Customer breaches any license term.

(d) Haag-Streit provides limited warranty support for its software as described below. Haag-Streit assumes no obligation to provide any updates or upgrades to its software.

Haag-Streit warrants to Customer that the Product and any Haag-Streit proprietary software that may be included with the Product will be free from material defects in materials and workmanship for a period of one year starting on the date of Customer’s receipt of the Product (the “limited warranty period”). During the limited warranty period, Haag-Streit will, at its discretion, either at an authorized Service Center or on site, repair or replace the necessary components, parts or subassemblies necessary to correct material defects in materials and workmanship in the products and/or software or, if for any reason Haag-Streit determines that it is unable to correct any such defect, accept the return of the Product and refund the purchase price paid by Customer. This limited warranty does not apply to damages caused by the following: accidents, acts of God, misuse, alterations, repairs or modifications not performed by an authorized Haag-Streit representative, the failure to maintain a suitable installation environment (including electrical power, humidity control, temperature control, space, and computer platform and capacity), relocation, the use of supplies, materials or third party software not meeting Haag-Streit specifications or the use of the Product and/or any included Haag-Streit proprietary software for purposes other than those for which they were specifically designed. In addition, this limited warranty does not apply to any software product that is proprietary to a third party supplier. (The limited warranty with respect to any such software product, if any, is the limited warranty provided by the third party provider of that product.) This limited warranty does not cover consumable parts and supplies used with the Product. THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF, AND HAAG-STREIT HEREBY DISCLAIMS AND THERE SHALL BE EXCLUDED FROM THE RELATIONSHIP BETWEEN CUSTOMER AND HAAG-STREIT, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. This limited warranty does not constitute a warranty that procedures performed using the Product will be subject to reimbursement by any insurance carrier. Customer is responsible for the protection and integrity of all patient data. Haag-Streit will not be liable for any loss or compromise of patient data. If Customer needs limited warranty service, Haag-Streit will assist Customer with the necessary arrangements to have the Product shipped to an authorized service center. Shipping will be paid for by Haag-Streit. For limited warranty service or technical support, call Haag-Streit at (888) 848-8923, 8:00 am to 5:00 EST.

Customer’s remedies for the failure of the Product and any software included with the Product are exclusively set forth above in the preceding section. Such remedies shall not be deemed to have failed of their essential purpose so long as Haag-Streit is willing and able to repair or replace the Product and/or software or refund the purchase price paid by Customer on a reasonably prompt basis. HAAG-STREIT WILL NOT UNDER ANY CIRCUMSTANCES BE RESPONSIBLE FOR ANY OTHER DAMAGE, INCLUDING ANY DIRECT OR CONSEQUENTIAL DAMAGE OR LOSS, ARISING FROM CONTRACT OR OTHERWISE, INCLUDING WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, INJURY TO PERSONS, DAMAGE TO TANGIBLE PROPERTY OR DAMAGES RESULTING FROM ANY INABILITY TO USE THE PRODUCT OR ANY SOFTWARE INCLUDED WITH THE PRODUCT.

In the event of a breach by Haag-Streit of any of the terms, provisions, or warranties, the sole and exclusive liability of Haag-Streit, and Customer’s sole and exclusive remedy, shall be limited, at the option of Haag-Streit, to either (a) the repair or replacement of any goods which are the subject of any such breach, default or violation or (b) refund amounts paid by the Customer for the Product upon Customer’s return to Haag-Streit of the Product if requested by Haag-Streit. IN NO EVENT SHALL HAAG-STREIT BE LIABLE FOR LOST PROFITS, INJURY TO GOODWILL OR ANY OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.

This Limited Warranty and Software License will be governed by and construed according to the laws of the State of Ohio without respect to its conflicts of law principles.

THIS EYESUITE® SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) APPLIES TO THE EYESUITE® PROPRIETARY SOFTWARE (“SOFTWARE”) ACCOMPANYING YOUR PURCHASE FROM HAAG-STREIT OR ITS AUTHORIZED DEALER OF A NEW, UNUSED LENSTAR® OR OCTOPUS® PRODUCT. THIS DOCUMENT IS A LEGAL AGREEMENT BETWEEN THE ORIGINAL PURCHASER OF THE LENSTAR® OR OCTOPUS® INSTRUMENT (“CUSTOMER”) AND HAAG-STREIT USA, INC. (“HAAG-STREIT”). BY USING ANY OF THE SOFTWARE, CUSTOMER ACCEPTS AND AGREES TO THE TERMS OF THIS AGREEMENT.

1. The Software is licensed, not sold, to Customer. Any other software proprietary to a third party supplier included with a Lenstar® or Octopus® product (the “Product”) is not licensed under this Agreement, is not included within the capitalized term “Software”, and is provided to Customer subject to the terms and conditions established by the third party supplier, as further set forth in Section 3 below. The Product is covered exclusively by a separate Limited Warranty.

(a) Haag-Streit Software is required on a computer physically attached to the Product (the “control computer”) in order to utilize the Product. The Software is also capable of being installed on compatible personal computers (provided by Customer) other than the control computer, for the purpose of viewing and analyzing data collected by the control computer (each such additional computer being referred to as a "view station").The control computer is provided with pre-installed Software by Haag-Streit and is installed together with the Product. Haag-Streit grants to Customer a non-exclusive, non-transferable license to use the Software on the control computer and on as many view stations as desired (solely for its internal use in connection with Product -generated data), provided that the number of initial view station installations is reported at time of installation. Customer shall restrict use of the Product and the Software to its employed or on-staff, properly trained medical personnel. No subsequent control computer or view station installations of Software are permitted without obtaining additional licensing from Haag-Streit (fees may apply). Customer shall not make any copies of the Software except for authorized view station installations and a reasonable number of back-up or archival copies, and the copyright and other proprietary notices included in the Software shall be included in all copies. Customer shall not modify, alter, adapt, merge, decompile, disassemble or reverse engineer the Software. If after purchase, Customer decides to use the Software at any additional view station, please contact Haag-Streit at (888) 849-8923 for additional licensing.

(b) No transfer of the license to use Haag-Streit Software is permitted without the written consent of Haag-Streit. In no event is Customer permitted to grant any sublicense to use Haag-Streit Software to a third party or otherwise make Haag-Streit Software or the use of Haag-Streit Software available to any other person without the written consent of Haag-Streit.

(c) All licenses to use Haag-Streit Software are perpetual, except that Haag-Streit reserves the right to terminate any license if Customer breaches any license term.

(d) Haag-Streit provides limited warranty support for its Software as described below, which may include issuance of Software updates at no additional charge; otherwise, Haag-Streit assumes no obligation to provide any updates to its Software. During or after the warranty period, Haag-Streit may issue optional Software upgrades that contain new or enhanced functionality, and additional fees may apply if Customer elects to install such upgrades. The term "Software" as used in this Agreement includes all updates and upgrades properly obtained and installed by Customer.

2. Haag-Streit warrants to Customer that the Haag-Streit proprietary Software included with the Lenstar® or Octopus® instrument will perform substantially in accordance with applicable documentation for a period of one year (three years if Customer has purchased the optional two-year warranty extension) starting on the date of Customer’s receipt of the Product (the “limited warranty period”). During the limited warranty period, Haag-Streit will use commercially-reasonable efforts to correct any reproducible defect in the Software or, if for any reason Haag-Streit determines that it is unable to correct any such defect which has a material adverse effect on use of the Product, accept the return of the Product and refund the purchase price paid by Customer. This limited warranty does not apply to damages caused by the following: accidents, acts of God, misuse, alterations, repairs or modifications not performed by an authorized Haag-Streit representative, the failure to maintain a suitable installation environment (including electrical power, humidity control, temperature control, space, and computer platform and capacity), relocation, the use of supplies, materials or third party software not meeting Haag-Streit specifications or the use of the Product or Software for purposes other than those for which they were specifically designed. In addition, this limited warranty does not apply to any software product that is proprietary to a third party supplier, as further set forth in Section 3 below. (The limited warranty with respect to any such software product, if any, is the limited warranty provided by the third party provider of that product.) HAAG-STREIT HEREBY DISCLAIMS AND THERE SHALL BE EXCLUDED FROM THE RELATIONSHIP BETWEEN CUSTOMER AND HAAG-STREIT, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. THE FOREGOING WARRANTY IS EXCLUSIVE AND HAAG-STREIT SHALL NOT UNDER ANY CIRCUMSTANCES BE RESPONSIBLE FOR ANY OTHER DAMAGES, WHETHER DIRECT, CONSEQUENTIAL, PUNITIVE OR OTHERWISE, INCLUDING WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LOST PROFITS, DAMAGE TO REPUTATION OR GOODWILL, INJURY TO PERSONS, DAMAGE TO TANGIBLE PROPERTY, OR DAMAGES RESULTING FROM ANY INABILITY TO USE THE SOFTWARE. The foregoing remedies shall not be deemed to have failed of their essential purpose so long as Haag-Streit is willing and able to replace the Software or refund the purchase price of the Product paid by Customer on a reasonably prompt basis. Haag-Streit makes no representation or warranty that procedures performed using the Product or Software will be subject to reimbursement by any government program or insurance carrier. Customer is solely responsible for the protection and integrity of all patient data. Haag-Streit will not be liable for any loss or compromise of patient data, even if caused by a Software error. For limited warranty service or technical support, call Haag-Streit at (888) 848-8923, 8:00 a.m. to 5:00 p.m. Eastern time.

3. Haag-Streit may install software applications owned by third parties ("Third Party Software") along with the Haag-Streit proprietary Software (Eyesuite®) on the computer system that the Customer has designated. In such a case, Third-Party Software is licensed to Customer by the applicable manufacturer or distributor, and not by Haag-Streit. Upon request, Haag-Streit will provide to Customer copies of applicable license agreements for Third Party Software, or the Internet addresses from which they can be obtained. Customer authorizes Haag-Streit to accept the applicable third-party license agreements on Customer’s behalf by clicking "Accept" or other appropriate means at the time of installing the Third-Party Software on Customer’s computer, and Customer agrees to comply with all third-party license terms. Haag-Streit does not provide configuration, training, software updates or any other services for Third Party Software beyond the initial setup for connectivity to Eyesuite®, if required. HAAG-STREIT HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THIRD PARTY SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. HAAG-STREIT SHALL NOT BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, CONSEQUENTIAL, PUNITIVE OR OTHERWISE, RESULTING FROM CUSTOMER’S USE OF OR INABILITY TO USE THE THIRD-PARTY SOFTWARE, OR ANY DEFECT THEREIN.

4. If a third party makes a claim against Customer alleging that Software furnished by Haag-Streit (excluding any Third-Party Software) infringes the third party’s patents, copyrights, or other intellectual property rights enforceable in the United States, Haag-Streit agrees to defend against the claim and indemnify the Customer from any damages awarded by the court to the third party based on infringement by the Software, and the cost of any settlement agreed to by Haag-Streit, but only if the Recipient notifies Haag-Streit promptly in writing, not later than 10 days after the Customer receives notice of the claim, gives Haag-Streit sole control of the defense and any settlement negotiations, and fully cooperates with Haag-Streit and provides all information, authority, and assistance that Haag-Streit reasonably requests to defend against or settle the claim. If Haag-Streit believes or it is determined that any of the Software may have violated a third party's intellectual property rights, Haag-Streit may choose to modify the Software to be non-infringing and in that case Customer agrees to immediately install any replacement Software provided by Haag-Streit. Haag-Streit will not be obligated to defend or indemnify the Customer if the Customer alters the Software or uses it in a manner not intended or contrary to user documentation, or if the Customer uses a version of the Software which has been superseded if the infringement claim could have been avoided by using an unaltered current version of the Software which was provided to the Recipient, or if an infringement claim is based upon any special designs or instructions furnished to Haag-Streit by the Customer, or if an infringement claim is based upon the combination of any Software with any products or services not provided by Haag-Streit. This Section provides Customer’s exclusive remedy and Haag-Streit’s exclusive obligation related to any infringement claims or damages.

5. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Ohio, without application of the conflict of law principles thereof. Venue of any litigation against Haag-Streit related to this Agreement or the Software may only be brought in a court with jurisdiction over claims arising in Warren County, Ohio, and Customer expressly waives any objection to such venue. CUSTOMER VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER BASED ON CONTRACT, TORT OR OTHERWISE, BETWEEN OR AMONG CUSTOMER AND HAAG-STREIT, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE SOFTWARE.

6. This Agreement contains the entire agreement of the parties as to the subject matter and any previous representations or negotiations are excluded unless set forth herein. This Agreement may be modified only with the written consent of an authorized officer of Haag-Streit. This Agreement is for the benefit of the original purchaser of new, unused Product only, and is not assignable.

7. If the Customer is an agency of the United States Government, notice is hereby given that the Software is a commercial product, not developed at Government expense, provided with RESTRICTED RIGHTS and use, duplication and disclosure by the Government are limited as set forth under DFARS 252.227-7013 or FAR 52.227-19, or any successor provisions, as applicable.