SOFTWARE ACCESS AGREEMENT - STANDARD TERMS AND CONDITIONS

1.1  

Grant of Access. eScreen, Inc. (“eScreen”) grants to Client and its Authorized Users (defined below) a non-exclusive, non-transferable license to access and use the Software (defined below) through the web site(s) maintained by eScreen (the “Web Site”) solely for Client’s internal business purposes during the term of this Agreement. “Authorized Users” shall mean Client’s employees engaged in collecting, entering, reviewing or communicating donor or test data and, solely for purposes of retrieving test data, employees of Client’s customers for whom test data is obtained. This Agreement does not permit access by persons who are not Authorized Users, such as personnel of clinics that are not owned by Client. “Software” shall mean the eScreen 123 software consisting of: the donor information entry module; the electronic chain of custody and collection module; the result acquisition module; the medical review officer (MRO) module; and the myeScreen.com result reporting module, together with any documentation provided by eScreen, and any modifications, upgrades and new version provided to Client by eScreen.

1.2  

Devices and Laboratories. For quality control reasons, use of and access to the Software is permitted only with eScreen-approved devices and laboratories.

1.3  

Ownership. Access to the Software is licensed and not sold. Client shall not, by virtue of this Agreement or otherwise, acquire any rights whatsoever in the Software aside from the limited licenses granted herein, and Client hereby expressly disclaims any other rights therein. eScreen shall have and retain all right, title and interest in and to the Software and all Intellectual Property (defined below) comprising the Software as well as any modifications or enhancements made thereto, with the sole exception of any data provided by Client. For purposes of this Agreement, “Intellectual Property” includes, without limitation, all intangible legal rights or interests evidenced by or embodied in: (a) any idea, design, concept, technique, invention, discovery, enhancement or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; (b) any work of authorship, regardless of copyrightability, but including copyrights and any moral rights recognized by law; (c) any trademark, trade name or service mark; and (d) any other intellectual property, proprietary or similar rights, including all goodwill pertaining thereto and in each case, on a worldwide basis. Client hereby irrevocably assigns to eScreen ownership of any and all suggestions, modifications, enhancements, improvements, alterations, changes or revisions to the Software (collectively, “Modifications”) made or suggested by Client or its Authorized Users. Client will cooperate with eScreen, take any and all necessary actions, and provide any necessary documentation requested by eScreen to confirm such assignments and eScreen’s ownership of the Modifications.

1.4  

Prohibitions. Client may not copy, use, modify, display, rent, resell, sublicense or distribute the Software or access thereto without eScreen’s prior written approval. No identifying marks, Intellectual Property or other proprietary right notices of eScreen or other parties may be deleted from, altered or obscured on the Software or materials produced by or using the Software. Client may not translate, decompile, disassemble, reverse compile, reverse engineer, decrypt or otherwise seek to recreate the source code of the Software, adapt the Software in any way or use it to create a derivative work, or grant any other person or entity the right or access to do so, without the prior written approval of eScreen. eScreen is not responsible for providing any updates, enhancements, modifications, revisions, additions, replacements or conversions to the Software, or for otherwise maintaining the Software, except as otherwise expressly set forth in this Agreement.

1.5  

Reserved Rights. All rights not specifically granted to Client hereunder are reserved by eScreen. Nothing herein shall prevent eScreen or its licensors from promoting, selling, providing, licensing or sublicensing access to the Software to other parties in its sole discretion.

2.1  

Client Obligations. Client shall have the sole responsibility for acquiring, installing and maintaining its own technology environment and equipment necessary to properly access, operate and utilize the Software and devices and laboratories, if any, including, without limitation: servers, Internet access, LANs and WANs; for any communications or other costs incurred in operating, accessing and using the Software, devices and laboratories; and for any other expenses relating to the foregoing. Client shall be responsible for selecting and training adequate personnel with the requisite experience necessary to operate Client’s systems and who are familiar with Client’s records associated with the Software. Client shall establish adequate operational back-up systems and procedures to ensure recovery and continuity of its systems and operations in the event of a failure. Client shall be solely responsible for the security and confidentiality of any usernames or passwords granted to Client or its Authorized Users to access the Software, and shall limit disclosure of such usernames and passwords to its Authorized Users. Client shall be solely responsible for any authorized or unauthorized access to the Software using such usernames and passwords, and any actions taken thereunder. Client shall limit use of access to the Software solely to those of its Authorized Users whose duties require such use and access and shall undertake best efforts to ensure that eScreen’s Confidential Information and the eScreen Intellectual Property are kept secure. Client shall use its best efforts to ensure that all Authorized Users afforded access to the Software and any other information and materials produced or disclosed in connection therewith protect the same against unauthorized use, dissemination or disclosure.

2.2  

Regulatory Compliance. Client assumes sole and complete responsibility for ensuring that Authorized Users’ use of the Software and all related Client policies and procedures are in compliance with all applicable federal, state and local laws and regulations, including, without limitation: (a) federal laws and regulations relating to the Substance Abuse and Mental Health Services Administration, Department of Transportation, and Nuclear Regulatory Commission; (b) state laws and regulations requiring Client to obtain any license, authorization or other permit to provide or arrange for the provision of medical review officer services; (c) all other federal, state and local laws and regulations applicable to the provision of medical review officer services or payment for such services, including, without limitation, laws relating to confidentiality of patient-related information such as HIPAA; and (d) any other federal, state or local privacy or information security laws or regulations.

2.3  

Access; Availability. eScreen will use commercially reasonable efforts to make the core functions and features of the Software available to Client and its Authorized Users during normal business hours (8:00am – 6:00pm CST Monday through Friday excluding holidays). eScreen will use reasonable efforts to conduct routine maintenance at times that minimize disruption of use of the Software, but eScreen does not warrant or guarantee the continuous availability of the Software and reserves the right to perform maintenance at any time.

2.4  

eScreen Support and Maintenance Obligations. During the term of this Agreement, eScreen will provide Client with the following Software support services: (a) eScreen will maintain an inbound phone-based technical support queue and an electronic messaging system accessible via the Software from which Client’s Designated Contacts (defined below) may report problems and send questions about the Software, (b) eScreen personnel will monitor message requests for support on a regular (but not continuous) basis, and will use reasonable efforts to answer questions about use of the Software; and (c) eScreen will use reasonable efforts to correct verifiable and reproducible errors in the Software reported by Client’s Designated Contacts. As used in this Agreement, an “error” is any failure of the Software to function in substantial conformity with the applicable Software documentation provided by eScreen. eScreen may correct errors by making revisions to programming or by providing reasonable “work-around” solutions. eScreen reserves the right to modify any Software documentation if such documentation, in eScreen’s sole determination, incorrectly describes Software functions and may do so in order to resolve an error. eScreen retains sole discretion to determine whether and when to make new releases available and the terms on which they will be made available to Client. Support services provided under this Agreement do not include on-site consultation, systems administration, facilities management or customized programming support to resolve problems resulting from Client equipment used to access the Software, resulting from modifications to the Software not made or authorized by eScreen or resulting from the combination of or interface for the Software with other programming or equipment if the combination or interface has not been made by or approved by eScreen. In addition, support is not provided under this Agreement for third-party software, hardware, or networks. Any time spent by eScreen attempting to provide such support or services may be charged to Client at eScreen’s then standard hourly rates.

2.5  

Designated Contacts. Client will designate and identify from time to time a limited number of personnel who are authorized to contact eScreen to request support (“Designated Contacts”). The number of Designated Contacts may not exceed a number that eScreen, in its sole discretion, deems reasonable and specifies to Client. eScreen reserves the right to provide services under this Agreement only to and at the request of one of Client’s Designated Contacts. Client may change its Designated Contacts at any time by giving written notice of the change to eScreen.

3.1  

Acceptable Use. Client assumes sole and complete responsibility for ensuring that the Software is used only by Authorized Users, that any user of the Software has been trained and certified by eScreen or by eScreen-authorized trainers, and that Authorized Users do not make unauthorized use of the Software. Unauthorized use includes, without limitation: (a) use of the Software to access web sites other than the Web Site; (b) attempts to gain access to data about individuals other than for legitimate screening purposes; (c) alteration or modification of individual data or of any Software configuration values from the originally delivered values; (d) accessing the Software through any technology or means other than through the user account information provided to Client by eScreen; (e) if eScreen and Client have agreed that Client will use the Software from a dedicated computer, installation or use of other application software on the dedicated computer; and (f) any use of the Software or the information contained therein in violation of any applicable law or regulation. Additionally, Client will use best efforts to ensure that Authorized Users comply with the following requirements, and will be responsible for any noncompliance by Authorized Users: (i) Authorized Users must not enter or transmit any information using the Software that is unlawful, false, offensive, defamatory, or infringes the rights of any person; (ii) Authorized Users must not use the Software in a way that disrupts use of the Software by others; and (iii) Authorized Users must not use any information obtained through the Software except for the purpose for which the information was provided, and must not attempt to use the Software to gain unauthorized access to information.

3.2  

Suitability. Client shall be responsible for determining the suitability of the Software for its operations and whether the Software will achieve the results Client desires. The Software is provided as a tool for Client to use as Client sees fit in its business. As with manually kept records, records kept using the Software may contain errors, whether resulting from incorrect input or recording of information, software errors, or other causes. Client is solely responsible for understanding the limitations of the Software. Client shall be responsible for ensuring the accuracy of any data input into the Software, ensuring and confirming the accuracy of any output and results created by the Software prior to use or dissemination, and undertaking procedures to test, identify and correct any errors or omissions relating to the foregoing.

3.3  

Application. Client and Authorized Users, or their related parties, are solely responsible for any employment decisions made, advice or treatment rendered, or other actions taken based on information obtained using the Software. Client acknowledges that any information obtained through the use of the Software is only a single factor, among many, in any decision made by Client relating to employment decisions and that such decisions are instead based on the totality of the circumstances and not solely on the results obtained from the use of the Software.

4.1  

Term. This Agreement will remain in effect until terminated under this Section 4.

4.2  

Termination. This Agreement and Client’s license to use and access the Software will terminate immediately upon termination or expiration of the separate screening or clinic services agreement between eScreen and Client. In addition, this Agreement and Client’s license to use and access the Software shall terminate immediately and without action from eScreen in the event (a) Client materially breaches the terms of this Agreement; (b) eScreen gives Client notice of additional terms and conditions that will govern use of or access to the Software and Client does not accept the additional terms and conditions; (d) eScreen ceases providing access to the Software to its clients generally; or (d) Client is the subject of a voluntary or involuntary bankruptcy, reorganization or liquidation proceeding, is insolvent, makes an assignment for the benefit of creditors or admits in writing its inability to pay debts when due.

4.3  

Consequences Upon Termination. Upon the termination or expiration of this Agreement for any reason: (a) Client’s and its Authorized Users’ licenses to use the Software shall immediately and automatically terminate, (b) Client and its Authorized Users shall cease all access and use of the Software and any eScreen Intellectual Property related thereto; (c) Client shall immediately return to eScreen any eScreen Intellectual Property, documentation and any other eScreen property in Client’s possession; and (d) Client shall certify its compliance with this Section to eScreen in writing upon request. eScreen will retain data collected using the Software for any minimum period required by applicable law and regulations. Thereafter, eScreen may delete the data in accordance with eScreen’s data retention policy as then in effect and as modified from time to time. Notwithstanding the foregoing, eScreen shall have no obligation to provide or return data to Client upon termination unless Client makes arrangements for such return acceptable to eScreen prior to termination.

5.1  

Limited Warranty. eScreen warrants that the components of the Software are either owned by eScreen or used under license if owned by third parties, and that, to the best of eScreen’s knowledge, Client’s access and use of the Software as contemplated by this Agreement without modification and in accordance with the documentation will not infringe the Intellectual Property rights of any third party.

5.2  

Disclaimer. THE WARRANTIES SET FORTH IN SECTION 5.1 ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY eSCREEN. TO THE FULL EXTENT ALLOWED UNDER APPLICABLE LAW, eSCREEN EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. eSCREEN DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS THAT THE SOFTWARE WILL MEET CLIENT’S REQUIREMENTS, THAT ACCESS TO OR OPERATION OR USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS IN THE SOFTWARE, IF ANY, WILL BE CORRECTED, OR THAT RESULTS WILL BE TIMELY, ACCURATE, ADEQUATE OR COMPLETE. eSCREEN DOES NOT WARRANT OR REPRESENT THAT USE OF THE SOFTWARE WILL RESULT IN COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, AND CLIENT UNDERSTANDS THAT IT IS SOLELY RESPONSIBLE FOR ENSURING COMPLIANCE WITH ANY AND ALL APPLICABLE LAWS AND REGULATIONS.

5.3  

Limitation of Liability. eSCREEN SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR LOST PROFITS, LOSS OF DATA, WORK STOPPAGE, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULL EXTENT ALLOWED UNDER APPLICABLE LAW, THE AGGREGATE LIABILITY OF eSCREEN FOR ANY REASON AND UPON ANY CAUSE OF ACTION OR CLAIM SHALL BE LIMITED TO THE AMOUNT OF FEES PAID TO eSCREEN BY CLIENT. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE PARTIES UNDERSTAND THAT THE FOREGOING DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY ARE MATERIAL TERMS OF THIS AGREEMENT AND A REFLECTION OF THE RISKS ASSUMED BY THE PARTIES IN ORDER FOR eSCREEN TO PROVIDE AND CLIENT AND ITS AUTHORIZED USERS TO OBTAIN ACCESS TO THE SOFTWARE FOR THE SPECIFIED FEES, IF ANY.

5.4  

Indemnification by Client. Client will, at its own expense, indemnify and hold eScreen and its shareholders, members, directors, officers, employees and agents harmless from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs and expenses (including reasonable attorneys’ fees) to the extent that the foregoing result from or pertain to Client’s, its Authorized User’s or its employees’ or agents’ use, misuse and operation of the Software, breach of this Agreement or gross negligence or willful misconduct.

6.1  

Confidential Information. Either party (the “Disclosing Party”) may from time to time disclose to the other party (the “Recipient”) Confidential Information (as defined below). As used herein, “Confidential Information” means: (a) any nonpublic information regarding the Disclosing Party’s existing or proposed business, technology, products, services, internal structure and strategies of the Disclosing Party, specifically including, without limitation, the Software, documentation, end-user materials, Intellectual Property, proposals, designs, concepts, methodologies, inventions, source or object code, developments, research, programs, databases, referral sources, customers, prospective customers, inventions, developments, “know-how,” procedures, financial information or licensing and access policies; (b) any nonpublic information about Disclosing Party’s financial condition; (c) any nonpublic information regarding the terms of this Agreement; (d) any information of the Disclosing Party when presented in printed, written, graphic, photographic or other tangible form (including information received, stored or transmitted electronically) and marked “Confidential” or similarly by the Disclosing Party; (e) any information disclosed orally by the Disclosing Party, if the Disclosing Party states at the time of first disclosure that such information is of a confidential nature and the Disclosing Party confirms the confidentiality of such information with the Recipient in writing within ten (10) days after first disclosure; and (f) all such information that, by its nature, a reasonable party would consider to be confidential or proprietary. Without limiting the generality of the foregoing, all information pertaining to Client’s Authorized Users, customer list and other customer information provided to eScreen using the Software shall be deemed to be Confidential Information of Client. Confidential Information shall not include information that: (i) is or becomes publicly available through no fault of Recipient; (ii) is or has been received in good faith by Recipient without restriction on use or disclosure from a third party having no obligation of confidentiality to Disclosing Party; or (iii) is or has been independently developed by Recipient without reference to Confidential Information received from Disclosing Party, as evidenced by Recipient’s written records.

6.2

Confidentiality and Non-Use. Recipient will use reasonable efforts to avoid unauthorized disclosure of the Disclosing Party’s Confidential Information. Recipient will protect the Disclosing Party’s Confidential Information from unauthorized disclosure by taking at least those steps that Recipient uses to protect its own Confidential Information, but in no event less than reasonable efforts. Recipient will not use the Disclosing Party’s Confidential Information except for purposes of fulfilling its obligations under this Agreement. Recipient may disclose the Disclosing Party’s Confidential Information to its employees, agents, service providers and other persons who need to know such Confidential Information in connection with this Agreement. Before doing so, Recipient will take reasonable steps to ensure that such persons will comply with the restrictions imposed on Recipient by this Agreement. The obligation to protect Confidential Information will continue as long as Recipient possesses Confidential Information.

6.3  

Permitted Disclosure. Recipient may disclose Confidential Information as required by law or in compliance with any court or administrative order; provided that Recipient gives the Disclosing Party reasonable notice as permitted by law that such Confidential Information is being sought by a third party in order to afford the Disclosing Party the opportunity to limit or prevent such disclosure.

6.4  

Confidentiality of Information Under HIPAA. The parties acknowledge that eScreen may have access to patient identifiable protected health information (“PHI”) that may become subject to certain requirements of the federal Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). eScreen will maintain the confidentiality of all PHI that is within its possession, consistent with the requirements of such federal and state laws and regulations that are lawfully in effect and applicable to eScreen.

7.1  

Relationship of the Parties. The relationship of eScreen and Client established by this Agreement shall be solely that of independent contractors, and nothing herein shall create or imply any other relationship. eScreen does not grant Client or any of Client’s representatives the power or authority to make or give any agreement, statement, representation, warranty or other commitment on behalf of eScreen, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of eScreen, or to transfer, release or waive any right, title or interest of eScreen. eScreen shall have the right to determine the method, details, and means of performing any services pursuant to this Agreement.

7.2  

Assignment. Client may not assign, transfer or sell (voluntarily or by operation of law) its rights or obligations under this Agreement, or delegate its duties hereunder to any other person, without eScreen’s prior written consent. A transfer of a controlling interest or other change in control in Client shall constitute an assignment. Any purported assignment without eScreen’s consent will be void and will constitute a breach of this Agreement. eScreen may assign this Agreement or delegate or subcontract its obligations under this Agreement at any time.

7.3  

Entire Agreement; Modification. This Agreement, including any exhibits and schedules hereto and any separate screening or clinic services agreement between the parties, constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements, both oral and written, with respect to the subject matter hereof. Except as otherwise provided herein, no amendment or modification of this Agreement or any exhibit or schedule shall be effective unless in writing and signed by the party to be bound. In the event any provisions contained in a separate screening or clinic services agreement, exhibit or schedule hereto expressly conflict with any terms, conditions or clauses contained in this Agreement, the provisions of such separate agreement, exhibit or schedule shall govern to the extent such provisions expressly conflict. No use of trade or other regular practice or method of dealing between the parties shall be used to modify, interpret, supplement or alter in any manner the terms of this Agreement.

7.4  

Notices. Any notices must be given in writing directed to the current address of each party or to such other address as either party may provide by written notice to the other. Notices will be deemed given (a) when personally delivered; (b) if sent by recognized overnight national courier service, on the second business day after deposit with the courier, properly addressed and fee prepaid or billed to sender; or (c) when sent by fax or e-mail, upon receipt of proper confirmation of sending, provided a copy of the notice is concurrently sent by mail.

7.5  

Attorneys’ Fees. In the event of a breach of this Agreement, the breaching party will reimburse the non-breaching party for all costs and expenses reasonably incurred by the non-breaching party in connection with the breach, including, without limitation, attorneys’ fees. Additionally, in the event any suit or action is brought to enforce or interpret any of the terms of this Agreement, the prevailing party will be entitled to recover from the other party all reasonable attorney fees incurred at trial, on appeal, and on any petition for review, together with such other expenses, costs, and disbursements as may be allowed by law.

7.6  

Remedies. Client agrees that a breach of Sections 1.3, 1.4, 1.7, 3.1, 4.3 or 6.2 will cause eScreen irreparable injury and damage. The parties expressly agree that eScreen shall be entitled to injunctive and other equitable relief to prevent such a breach, in addition to any other remedy to which eScreen might be entitled. The parties waive the posting of any bond or surety prior to the issuance of an injunction hereunder. In the event a court refuses to honor the waiver of bond hereunder, the parties expressly agree to a bond in the amount of $100.00. All remedies for such a breach shall be cumulative and the pursuit of one remedy shall not be deemed to exclude any other remedy with respect to the subject matter hereof.

7.7  

Governing Law; Venue. This Agreement shall be governed by and construed, interpreted, and enforced in accordance with the laws of the State of Kansas, without reference to its conflicts or choice of law principles. The parties agree that the sole and exclusive jurisdiction and venue for any and all disputes arising under this Agreement shall be in any court located in or having jurisdiction over Johnson County, Kansas. Each of the parties hereby irrevocably submits and consents to the personal jurisdiction of such courts.

7.8  

Force Majeure. Neither party will be liable for any delay in performing its obligations (other than payment of money) if the delay is caused by any event beyond the reasonable control of the party, including, without limitation, acts of nature, war or insurrection, civil commotion, destruction of production facilities or materials by earthquake, fire, storm or flood, material or products shortages, labor disturbances, epidemic, disruption or slow speed of the Internet, break-downs of security or introduction of computer viruses (and the like) by third parties, any manufacturer or supplier delay in delivery or non-delivery, governmental action, terrorist attack or other similar event.

7.9  

Severability. If any term or provision of this Agreement shall be held to be invalid, illegal or unenforceable, the remaining terms and provisions of this Agreement shall remain in full force and effect, and such invalid, illegal or unenforceable term or provision shall be deemed not to be part of this Agreement.

7.10  

Third Parties; Waiver. Nothing in this Agreement, express or implied, shall create or confer upon any person or entity not a named party to this Agreement any legal or equitable rights, remedies, liabilities or claims with respect to this Agreement, except as expressly provided herein. Except as specifically provided in a written waiver signed by a duly authorized representative of the party seeking enforcement, the failure to enforce or the waiver of any term of this Agreement shall not constitute the waiver of such term at any time or in any circumstances and shall not give rise to any restriction on or condition to the prompt, full and strict enforcement of the terms of this Agreement.

7.11  

Publicity. Client grants eScreen the right to refer to the name of Client in eScreen’s customer listings, on its web sites, in marketing brochures, user profiles or press releases.

7.12  

Export Restrictions. Client and its Authorized Users shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Software. Without limiting the generality of the foregoing, Client represents that (a) Client and its Authorized Users are not named on any U.S. or other applicable government list of persons or entities prohibited from receiving exports, and (b) Client shall not permit its Authorized Users to access or use the Software in violation of any U.S. or other applicable countries’ export embargo, prohibition or restriction. Client recognizes and acknowledges that some countries (including, without limitation, Belgium, China (including Hong Kong), France, India, Indonesia, Israel, Russia, Saudi Arabia, Singapore and South Korea) have restrictions on the use of encryption within their borders or the import or export of encryption even if only for temporary personal or business use, and Client further acknowledges and agrees that it and its Authorized Users are ultimately responsible for complying with any and all government export and other applicable laws.

7.13  

Survival. The terms and provisions of Sections 1.3, 1.4, 1.5, 2.1, 2.2, 3.2, 4.3 and 5 – 7 inclusive shall survive any termination or expiration of this Agreement.