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This Agreement (the “Agreement”) is between Hyperic, Inc. (“Hyperic”) and any purchaser or user of the Hyperic products and services that accepts the terms of this Agreement (“Customer” or “You”). PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PURCHASING OR USING HYPERIC PRODUCTS AND SERVICES. BY USING OR PURCHASING HYPERIC PRODUCTS OR SERVICES, YOU SIGNIFY YOUR ASSENT TO THIS AGREEMENT. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU MUST NOT USE OR PURCHASE HYPERIC PRODUCTS OR SERVICES.

The “Effective Date” of this Agreement is the earlier of the date that Customer accepts this Agreement or the date that Customer uses the Hyperic products or services.

Whereas Hyperic and Customer desire to establish certain terms and conditions under which Customer will, from time to time, license software and obtain services from Hyperic;

Now, therefore, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Customer and Hyperic agree as follows:

1. Definitions

Capitalized terms used in this Agreement are defined in this Section 1 or the Section in which they are first used:

1.1 “Documentation” means the standard end-user technical documentation and specifications that Hyperic supplies with the Software. Advertising and marketing materials are not Documentation.

1.2 “Error” means a reproducible failure of the Software to perform in substantial conformity with its Documentation.

1.3 “Evaluation Use” means use of the Software in a non-production environment solely for evaluation and trial purposes.

1.4 “Evaluation Period” means the time period of Customer’s Evaluation Use as specified in the License Key.

1.5 “HQ Agent” means the software that allows the HQ Server to communicate with the HQ Plugin(s).

1.6 “HQ Plugin” means the plugin(s) that enables the HQ Agent to control, inventory or monitor specific software or hardware infrastructure.

1.7 “HQ Server” means the software that interacts with the HQ Agent and presents data to the Customer.

1.8 “License Key” means a file evidencing a grant of one or more Licenses by Hyperic to Customer for the Evaluation Period or the Term, as included in the Subscription purchased by Customer.

1.9 “License” means a license granted, in accordance with a Subscription, by Hyperic to Customer to allow installation and use of the Software.

1.10 “Order Form” means an order form provided by Hyperic to Customer, in written or electronic form, evidencing Customer’s purchase of a Subscription.

1.11 “Platform” means a computer with one (1) or two (2) processors. In the event the computer has more than two (2) processors, every additional two (2) processors are equal to one (1) platform. For purposes of this definition, only physical processors are counted, not logical processors such as Intel Hyper-Threaded processors and VMware virtual processors.

1.12 “Production Use” means use of the Software in a production environment for Customer’s internal business purposes only.

1.13 “Software” means the HQ Agent, HQ Server, HQ Plugin(s) (in object code format), and Source Code (if any) provided by Hyperic to Customer as downloaded by Customer, and/or as specified in the Order Form, including any Documentation incorporated therein, and error corrections, updates, upgrades or other modifications to such software (if any) that Hyperic may provide to Customer from time to time; Software shall be considered Confidential Information under Section 7.

1.14 “Source Code” means, as specified in the Order Form, those statements in a computer language which, when processed by a compiler, assembler or interpreter, become executable by a computer and includes, without limitation, all comments, notes, flow charts, decision tables, argument lists and other human readable references relating to the operation, purpose, compilation, assembly or interpretation thereof; Source Code shall be considered Confidential Information under Section 7.

1.15 “Subscription” means the Software and Support Services ordered and paid for by Customer and provided by Hyperic during Production Use as specified on the Order Form.

1.16 “Support Services” means the support services provided by Hyperic to Customer as part of the Subscription and as further defined in Section 2.5 and/or as may be specified on the applicable Order Form.

1.17 “Term” means the period of time for the Evaluation Period or Subscription as specified in the License Key.

2. General Terms

2.1 Scope of Agreement. This Agreement governs all transactions between the parties with respect to the Software (for Evaluation and Production Use) and Support Services provided hereunder.

2.2 Acceptance of Orders. Hyperic may accept orders for Subscriptions in its sole discretion by sending to Customer an Order Form confirming the particulars of the order.

2.3 Delivery. Delivery of the Software will be via the download section of Hyperic’s Web site (www.hyperic.net). The Term is specified in the License Key, which will be separately delivered to the Customer. The Software will be deemed accepted by Customer upon download from Hyperic’s Web site and delivery of the License Key.

2.4 Installation Services. Customer will be responsible for installing the Software on its computers as permitted under this Agreement. Installation services may be purchased on at time-and-materials basis at Hyperic’s then-current rates as specified on the applicable Order Form.

2.5 Support Services. For Software in Production Use, Hyperic will provide Support Services in accordance with Sections 2.5 through 2.8. Hyperic will provide Customer Support Services for the Software during the hours of 8 a.m. to 8 p.m., Pacific Standard Time (excluding holidays). Support Services consist of: (a) answering questions regarding the installation and operation of the Software; (b) attempting to identify causes of suspected Errors occurring in the Software; and (c) addressing confirmed Errors in the Software. Hyperic may be reached by phone at 1-888-4HYPERIC or by sending an email describing an Error to http://jira.hyperic.com (using the provided username and password for Customer). Unless otherwise mutually agreed in writing, Hyperic will have no obligation to provide on-site support services at Customer’s location.

2.6 Exclusions. Hyperic will have no obligation to correct Errors caused by: (a) improper installation of the Software; (b) altered or modified Software, unless altered or modified by Hyperic; (c) use of the Software in a manner inconsistent with its Documentation or this Agreement; (d) any combination of the Software with hardware or software not specified in the Documentation; or (e) defects in the Software due to accident, hardware malfunction, abuse or improper use.

2.7 Additional Services. Should Customer request that Hyperic provide services in connection with problems (a) caused by the factors listed in Section 2.6 or (b) that are otherwise beyond the scope of the Support Services or this Agreement, Customer will pay for such services Hyperic agrees to perform on a time-and-materials basis at Hyperic’s then-current rates.

2.8 Customer Obligations. As a condition to Hyperic’s provision of the Support Services, Customer must assist Hyperic in identifying and correcting any Errors, including executing reasonable diagnostic routines in accordance with any instructions provided by Hyperic.

3. Licenses

3.1 Evaluation Use Grant. For the Evaluation Period, Hyperic grants Customer a license to use the Software in accordance with Sections 3.2 through 3.4 solely for its internal, non-production evaluation and testing of the Software. Customer acknowledges that the Software under the Evaluation Period may not function fully upon installation and further testing, modification and development may be necessary to make such fully functional.

3.2 Production Use Grant. For each Subscription that Customer purchases, Hyperic grants Customer a limited, non-exclusive, non-sublicensable License under the Subscription for the Term to:

1. use, install and execute the HQ Server licensed hereunder (in object code format) on any computers solely for Customer’s own business purposes
;
2. use, install the HQ Plugin(s) licensed hereunder (in object code format) in combination with the number of Platforms, as designated in the License Key, solely for Customer’s own business purposes;
3. use, install and execute the HQ Agent on Platforms supported by Hyperic in combination with the number of Platforms, as designated in the License Key, solely for Customer’s own business purposes; and
4. install and execute the Source Code in conjunction with the HQ Plugin(s).

Each License, including that for the Source Code, is subject to the terms and conditions of this Agreement, including the restrictions set forth in this Section 3 and will be contingent upon Customer’s timely payment of Hyperic’s applicable Subscription fee and issuance by Hyperic of the License Key. The License granted herein is solely to the entity specified as “Customer” and not, by implication or otherwise, to any parent, subsidiary or affiliate of such entity.

3.3 Copies. Customer may make one copy of the Software licensed hereunder for archival, backup, installation or disaster recovery purposes only. Customer will include in any such copy all copyright, trademark, or other proprietary rights notices as included in or affixed to the original Software.

3.4 Restrictions. Notwithstanding the grant in Section 3.1, Customer agrees not to, and shall not allow any third party to, use the Software except as expressly authorized under this Agreement. Customer shall not: (a) install, execute or otherwise use the Software except pursuant to a License as expressly allowed under Sections 3.1 through 3.3 above; (b) modify, adapt, alter, publicly display, publicly perform, translate, or create derivative works from the Software; (d) sublicense, lease, rent, loan, distribute or otherwise transfer the Software to any third party or use such for the benefit of any third party; (e) reverse engineer, de-compile, disassemble, or otherwise attempt to derive the source code for the Software; (f) remove, alter or obscure any proprietary notices on the Software or Documentation; or (g) use the Software in any manner other than as descried in the Documentation or this Agreement.

4. License Fees and Payment

4.1 Subscription Fees. No fees are due for Evaluation Use. For Production Use, Customer shall pay all fees for each Subscription as specified in the Order Form.

4.2 Billing and Renewal. Hyperic charges and collects in advance for the Subscription. Hyperic will automatically renew and issue an invoice each billing period on the subsequent anniversary of the Subscription. The renewal charge will be equal to the then-current number of Platforms times the then-current Subscription fee in effect at the time of renewal. Fees for any other services will be charged on an as-quoted basis. Payments are due at the beginning of the billing period consistent with the initial Term or upon delivery of the Software. All payments must be made in U.S. Dollars. Late payments will accrue interest at the rate of one and one half percent (1½%) per month, or, if lower, the maximum rate permitted under applicable law.

4.3 Taxes. The amounts payable to Hyperic under this Agreement do not include any taxes, levies, or similar governmental charges, however designated, including any related penalties and interest. Customer will pay (or reimburse Hyperic for the payment of) for the foregoing except taxes on Hyperic’s net income.

4.4 Audit Rights. During the term of this Agreement and for twelve (12) months thereafter, Hyperic (or a third party auditor designated by Hyperic and reasonably acceptable to Customer) may audit Customer’s facilities to ensure Customer’s installation and use of the Software is in compliance with this Agreement. Any such audit will be conducted only upon reasonable, written notice by Hyperic, during normal business hours or at other times mutually agreed upon by Customer and Hyperic.

5. Term and Termination

5.1 Term. The Term of this Agreement will begin on the Effective Date and will continue for the period of time designated in the License Key.

5.2 Termination for Cause. Either party may terminate this Agreement for cause if the other party materially breaches, but only by giving the breaching party written notice of termination and specifying in such notice the alleged material breach. The breaching party will have a grace period of thirty (30) days after such notice is served to cure the breach described therein. If the breach is not cured within the foregoing time period, this Agreement will automatically terminate upon the conclusion of such period. Notwithstanding the foregoing, Hyperic, in its sole discretion, may terminate this Agreement if Customer violates its obligations under Sections 3, 4 or 7.

5.3 Effects of Termination. Upon termination of this Agreement for any reason: (a) any amounts owed to Hyperic under this Agreement before such termination will be immediately due and payable; (b) all rights to use the Software granted in this Agreement and any Order Form will immediately terminate; (c) Customer must promptly stop all use of the Software; (d) Customer must erase all copies of the Software from Customer’s computers, and destroy all copies of the Software and Documentation on tangible media in Customer’s possession or control or return such copies to Hyperic; and (e)�Customer will return to Hyperic all Hyperic Confidential Information that it obtained during the course of this Agreement. Sections 1, 4.3, 4.4, 5.3, 6, 7, 8.2, 9 and 11 will survive expiration or termination of this Agreement for any reason.

6. Proprietary Rights. As between the parties, Customer acknowledges and agrees the Software, including its sequence, structure, organization, and Source Code constitute certain valuable intellectual property rights including copyrights, trademarks, service marks, trade secrets, patents, patent applications, contractual rights of non-disclosure or any other intellectual property or proprietary right, however arising of Hyperic and its suppliers. The Software is licensed and not sold to Customer, and no title or ownership to the Software or the intellectual property rights embodied therein passes as a result of this Agreement or any act pursuant to this Agreement. The Software and Documentation are the exclusive property of Hyperic and its suppliers, and all rights, title and interest in and to such not expressly granted to Customer in this Agreement are reserved. Hyperic owns all copies of the Software, however made. Nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license under any of Hyperic’s existing or future patents (or the existing or future patents of its suppliers).

7. Confidential Information. The term “Confidential Information” shall mean the terms of this Agreement and any information disclosed by Hyperic to Customer in connec�tion with this Agreement or the Software. Customer shall treat as confidential all Confidential Information received from the Hyperic, shall not use such Confidential Information except as expressly permitted under this Agreement, and shall not disclose such Confidential Information to any third party without Hyperic’s prior written consent; provided, however, Customer may disclose Confidential Information to its contractors who have an agreement with Customer that would protect Hyperic to the same extent and which restricts disclosure of the Confidential Information in the same manner as this Agreement. Customer shall use the same measures to protect the Confidential Information that it takes with its own most confidential information, but in no event less than reasonable measures, to prevent the disclosure and unauthorized use of Confidential Information. Notwithstanding the above, the restrictions of this Section shall not apply to information that: (a) was independently developed by Customer without any use of the Confidential Information of Hyperic; (b) becomes known to Customer, without restriction, from a third party without breach of this Agreement and who had a right to disclose it; (c) was in the public domain at the time it was dis�closed or becomes in the public domain through no act or omission of Customer; (d) was rightfully known to Customer, without restric�tion, at the time of disclosure; or (e) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; pro�vided, however, that Customer shall provide prompt notice thereof to Hyperic and shall use its best efforts to obtain a protective order or otherwise prevent public disclosure of such information. Neither party will disclose any terms of this Agreement to anyone other than: (i) its attorneys, accountants and other professional advisors under a duty of confidentiality; (ii) to interested parties in connection with a proposed merger, any debt or equity financing or any public offering of shares or sale of such party’s business under a duty of confidentiality; or (iii) in connection with a mutually agreed upon press release.

8. Warranties

8.1 Performance. For Production Use, Hyperic warrants to Customer that, for a period of ninety (90) days from the Effective Date (“Warranty Period”), the Software, when used as permitted under this Agreement and in accordance with its Documentation, will operate in substantial conformity with its Documentation. Hyperic’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, in Hyperic’s sole discretion, to replace the non-conforming Software or use commercially reasonable efforts to correct the non-conformity; provided that Hyperic is notified in writing of such non-conformity within the Warranty Period. This warranty shall not apply if: (i) the Software is used outside the scope of this Agreement or used inconsistently with its Documentation; (ii) the Software is modified or altered in any way except by Hyperic; or (iii)�damages are due to negligence or misuse or abuse of the Software. Any replacement or error correction will not extend the original Warranty Period. 8.2 Disclaimer. EXCEPT AS PROVIDED IN SECTION 8.1, FOR EVALUATION AND PRODUCTION USE, THE SOFTWARE AND ANY SUPPORT SERVICES PROVIDED HEREUNDER ARE PROVIDED “as is.” EXCEPT FOR the EXPRESS WARRANTY PROVIDED IN SECTION 8.1, HYPERIC MAKES NO OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE, SUPPORT SERVICES OR ANY OTHER MATERIAL, INFORMATION OR SERVICES PROVIDED HEREUNDER. Hyperic hereby disclaims all other warranties, whether express, implied or statutory, including the implied warranties of merchantability, fitness for a particular purpose, accuracy, result, effort, title and non-infringement. HYPERIC DOES NOT warrant that any Software OR ANY SERVICES will be PROVIDED error free, will operate without interruption or will fulfill any of Customer’s particular purposes or needs. Customer acknowledges THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES SET FORTH IN SECTION 8.1 AND THAT NO WARRANTIES ARE MADE BY ANY OF HYPERIC’S SUPPLIERS OR DISTRIBUTORS. CUSTOMER ACKNOWLEDGES and agrees that the prices offered under this Agreement reflect these negotiated warranty provisions. To the extent that Hyperic cannot disclaim any such warranty as a matter of applicable law, the scope and duration of such warranty will be the minimum permitted under such law.

9. Limitation of Liability.

9.1 For Evaluation Use. EVALUATION USE OF THE SOFTWARE IS PROVIDED GRATUITOUSLY, AND THEREFORE, HYPERIC SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES UNDER ANY THEORY OF LIAIBLITY WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE EVEN IF HYPERIC HAS BEEN ADVISED OF, KNOWS OF, OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES.

9.2 For Production Use. IN NO EVENT will HYPERIC be liable to any other party for any indirect, incidental, special, consequential or exemplary damages arising out of or related to this Agreement under any legal theory, including but not limited to (I) lost profits, lost data or business interruption, even if such party has been advised of, knows of, or should know of the possibility of such damages, AND (II) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS OR OTHER INACCURACIES IN OR DESTRUCTIVE PROPERTIES OF THE SOFTWARE or any services. Regardless of the cause of action, whether in contract, tort or otherwise, HYPERIC’S Total cumulative liability arising out of or related to this Agreement will NOT exceed the total amount of subscription fees that Customer has paid for the software or SERVICES GIVING rise to such liability. The parties acknowledge that this Section 9 reflects the allocation of risk between the parties UNDER THIS AGREEMENT. This Limitation of Liability will apply notwithstanding the failure of essential purpose of any limited remedy set forth herein.

10. Indemnification

10.1 Hyperic’s Obligation. In accordance with Customer’s Production Use and subject to Sections 10.2 and 10.3, Hyperic will defend and/or settle at its own expense any action brought against Customer by a third party, to the extent that such action is based upon a claim that the Software licensed hereunder infringes any U.S. copyrights registered or issued as of the Effective Date or misappropriates any trade secret rights as recognized under the California Uniform Trade Secrets Act. Hyperic will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim, or those costs and damages agreed to in a monetary settlement of such claim. The foregoing obligations are conditioned on Customer: (a)�notifying Hyperic promptly in writing of such action; (b)�giving Hyperic sole control of the defense thereof and any related settlement negotiations; and (c)�cooperating and, at Hyperic’s request and expense, assisting in such defense. Hyperic will not reimburse Customer for any expenses incurred by Customer without the prior written approval of Hyperic. Customer may also participate in the defense at its own expense.

10.2 Cure. If the Software becomes, or in Hyperic’s opinion is likely to become, the subject of an infringement claim that Hyperic is required to defend pursuant to Section 10.1, then Hyperic may (at its option and expense) either (a) procure for Customer the right to continue using the affected Software or (b) replace or modify the affected Software so that it becomes non-infringing. If neither of the foregoing options is reasonably available, as determined in Hyperic’s sole discretion, then Hyperic may terminate Customer’s rights to use the affected Software and return a pro rata portion of the Subscription fees Customer has paid for such Software based on the number of months in the Term. SECTIONS 10.1 AND 10.2 STATE HYPERIC’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR CLAIMS AND ACTIONS RELATED TO INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF ANY INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS.

10.3 Exclusions. Notwithstanding the foregoing, Hyperic will have no obligation under this Section 10 or otherwise with respect to any infringement claim based upon: (a)�any use of the Software not in accordance with this Agreement or its Documentation; (b)�any use of the Software in combination with other products, equipment, software or data not provided by or approved of by Hyperic; (c)�any use of any release of the Software other than the most current release made available to Customer; (d)�any modification of the Software by any person other than Hyperic or its authorized agents or subcontractors; or (e)�any use of the Software after Hyperic has either provided Customer a release that would have overcome the infringement or has terminated Customer’s right to use the Software pursuant to Section 10.2. In the event that a claim is filed against Hyperic based on one of the above exclusions, Customer will defend, indemnify and hold harmless Hyperic against all liability, damages and costs (including reasonable attorneys’ fees) resulting from or related to such a claim.

11. General

11.1 Notices. All notices under this Agreement must be delivered in writing in person, by courier, by facsimile or by certified or registered mail (postage prepaid and return receipt requested) to the other party at the address set forth on the Order Form and will be effective upon receipt or three (3) business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address by giving written notice of the new address to the other party.

11.2 Relationship of the Parties. The parties hereto are independent contractors. Nothing in this Agreement shall be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the parties. Neither party has the power or authority as agent, employee or in any other capacity to represent, act for, bind or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever. There are no third party beneficiaries to this Agreement.

11.3 Compliance with Export Control Laws. Customer acknowledges and agrees that it will comply with all applicable export and import control laws and regulations of the United States and the foreign jurisdiction in which the Software is used and, in particular, Customer will not export or re-export the Software without all required United States and foreign government licenses. Customer will defend, indemnify, and hold harmless Hyperic from any breach of the foregoing.

11.4 Assignments. Customer may not assign or transfer, by operation of law or otherwise, any of its rights or delegate any of its duties under this Agreement (including its licenses with respect to the Software) to any third party without Hyperic’s prior written consent. Any attempted assignment or transfer by Customer in violation of the foregoing will be void.

11.5 U.S. Government End Users. The Software and any other software covered under this Agreement are “commercial items” as that term is defined at 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. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software and any other software and documentation covered under this Agreement with only those rights set forth therein.

11.6 Governing Law and Venue. This Agreement will be governed by the laws of the State of California in the United States of America, as such laws apply to contracts between California residents entered into and performed entirely within California. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought exclusively in a federal court in the Northern District of California or in state court in San Francisco County, California. The parties hereto have expressly agreed that this Agreement will be written and construed in the English language.

11.7 Marketing Activities. Customer agrees that Hyperic may from time to time identify Customer (with its name, logo and/or trademark) as a Hyperic customer in or on its Web site, sales and marketing materials or press releases. Hyperic may not use the Customer’s name, logo or trademark for any other purpose without obtaining Customer’s prior written consent.

11.8 Remedies. Except as specifically provided otherwise in this Agreement, the parties’ rights and remedies under this Agreement are cumulative. Customer acknowledges that the Software contains valuable trade secrets and proprietary information of Hyperic and that any actual or threatened disclosure or misapplication of such Software or Confidential Information will constitute immediate and irreparable harm to Hyperic for which monetary damages would be an inadequate remedy and for which Hyperic will be entitled to seek injunctive relief. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.

11.9 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

11.10 Severability. If any provision of this Agreement is adjudicated to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, Customer agrees that Section 9 will remain in effect notwithstanding the unenforceability of any provision in Section 8.2.

11.11 Force Majeure. Except for Customer’s obligations to pay Hyperic hereunder, neither party shall be liable to the other party for any failure or delay in performance caused by reasons beyond its reasonable control to the extent the occurrence is caused by fires, floods, epidemics, famines, earthquakes, hurricanes and other natural disasters or acts of God; regulation or acts of any civilian or military authority or act of any self-regulatory authority; wars, terrorism, riots, civil unrest, sabotage, theft or other criminal acts of third parties.

11.12 Entire Agreement. This Agreement (including the Order Form) constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings and communications, whether written or oral. This Agreement may be amended only by a written document signed by both parties. The terms of this Agreement will control over any conflicting provisions in an Order Form. The standard terms and conditions on any purchase order or similar document submitted by Customer to Hyperic will have no effect.

Copyright © 2008 Hyperic, Inc. All rights reserved.