TERMS AND CONDITIONS FOR EVALUATION OF ONETOUCH® DataLink® and SureStep® PRODUCTS

Thank you for your interest in evaluating LifeScan, Inc.’s OneTouch® DataLink® and SureStep® Products.  Evaluation of the OneTouch® DataLink® and SureStep® Products is subject to compliance with the following terms and conditions (“Terms and Conditions”):

1.     Definitions

a.     Evaluator means a healthcare institution that (1) LifeScan has approved for evaluation of OneTouch® DataLink® and SureStep® Products and (2) has signed a letter agreeing to be bound by these Terms and Conditions for the purpose of evaluating OneTouch® DataLink® and SureStep® Products.

b.     Documentation means the instructional end user documentation and labeling accompanying the Evaluation Materials.

c.     Evaluation Materials means any and all meters, laptops, software, strips, solutions, and other devices and materials provided to Evaluator by LifeScan for evaluation.

d.     OneTouch® DataLink® Software means LifeScan’s data management software for monitoring the status of LifeScan’s glucose meters on a computer workstation, for configuring such meters from a computer workstation, and for generating reports on a computer workstation based on data received from such meters.

e.     Term shall mean the period starting from the date of delivery of the Evaluation Materials to Evaluator and ending sixty (60) days thereafter (unless terminated earlier). In the event additional time is needed for evaluation, an authorized representative of LifeScan may, at LifeScan’s sole discretion, extend the Term up to an additional thirty (30) days by providing notice of the extension to Evaluator in a letter.

2.     License Grant

a.     License.  Subject to the Terms and Conditions, LifeScan grants Evaluator a personal, nontransferable, nonexclusive, non-sublicensable license to use the Evaluation Materials and the Documentation during the Term at an Evaluator-operated healthcare facility solely for the purpose of evaluating the Evaluation Materials for Evaluator’s internal use. Installation and use of the Evaluation Materials must be in accordance with the Documentation and applicable federal and state laws including, but not limited to, the Federal Food, Drug, and Cosmetic Act. There are no implied licenses under these Terms and Conditions, and any rights not expressly granted to Evaluator hereunder are reserved by LifeScan.

b.     Software Restrictions.  If LifeScan provides Evaluator with a CD (or other applicable portable electronic medium on which the software is stored) with OneTouch® DataLink® Software for workstations stored thereon, Evaluator may install and use the software on the CD on only one workstation. If LifeScan provides Evaluator with a laptop with OneTouch® DataLink® Software installed thereon, Evaluator may use such software on only such laptop. For OneTouch® DataLink® Software for servers (e.g., OneTouch® DataLink® v3.4/Web 3.0), Evaluator may install the OneTouch® DataLink® Software on only one server, and only one client computer at a time may access such software on such server. Evaluator is solely responsible for operating and maintaining its computers and networks and for ensuring that the Evaluation Materials are compatible with Evaluator’s computers and networks.

c.        General Restrictions  Evaluator shall not: (i) permit any third party to use the Evaluation Materials or Documentation; (ii) modify or change the Evaluation Materials or Documentation (except to configure meters in accordance with the Documentation); (iii) decompile, disassemble or otherwise reverse engineer any components of the Evaluation Materials; (iv) copy the Evaluation Materials or Documentation; or (v) submit any claims for the use of the Evaluation Materials during the evaluation period to any third party payor.

3.     Title to Evaluation Materials.  The Evaluation Materials and Documentation are proprietary to LifeScan and title thereto remains with LifeScan. Evaluator will not delete or in any manner alter the copyright, trademark, and other proprietary notices of LifeScan and its licensors appearing in the Evaluation Materials and Documentation as delivered to Evaluator. All rights to patents, copyrights, trademarks and trade secrets in the Evaluation Materials, or in any modifications thereto made at Evaluator's request, are and shall remain with LifeScan or, as applicable, with LifeScan’s licensors.

4.     Confidentiality.

a.     Obligations.  Evaluator will not disclose the Evaluation Materials or Documentation to a third party, and Evaluator will use the Evaluation Materials and Documentation only as expressly permitted herein. Evaluator will take all reasonable measures to maintain the confidentiality of the Evaluation Materials and Documentation. Evaluator shall be liable for any unauthorized disclosure of the Evaluation Materials and Documentation by its employees or consultants.

b.     Injunctive Relief.  Evaluator acknowledges that the Evaluation Materials and Documentation include LifeScan trade secrets, the disclosure of which would cause substantial harm to LifeScan that could not be remedied by the payment of damages alone. Accordingly, LifeScan will be entitled to injunctive relief and other equitable relief for any breach of this Section 4.

5.     No Warranty.

BECAUSE THE EVALUATION MATERIALS ARE PROVIDED TO EVALUATOR SOLELY FOR EVALUATION PURPOSES, THE EVALUATION MATERIALS AND DOCUMENTATION ARE PROVIDED “AS IS.” LIFESCAN MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE EVALUATION MATERIALS AND DOCUMENTATION, AND LIFESCAN EXPRESSLY EXCLUDES ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

6.     Limitation of Liability/Indemnity
THE EVALUATION MATERIALS ARE PROVIDED TO EVALUATOR SOLELY FOR EVALUATION PURPOSES, AND IN NO EVENT SHALL LIFESCAN AND ITS AFFILIATES BE LIABLE TO EVALUATOR FOR LOSS OF PROFIT, LOSS OF USE, DAMAGE TO PERSON OR PROPERTY, OR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING IN ANYWAY IN CONNECTION WITH THE EVALUATION OF THE EVALUATION MATERIALS, EVEN IF LIFESCAN OR ITS AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EVALUATOR SHALL INDEMNIFY AND HOLD LIFESCAN AND ITS AFFILIATES HARMLESS FOR ANY THIRD PARTY CLAIMS ARISING FROM (I) EVALUATOR’S FAILURE TO COMPLY WITH ITS OBLIGATIONS UNDER THESE TERMS AND CONDITIONS AND/OR (II) EVALUATOR’S IMPROPER USE OR HANDLING OF THE EVALUATION MATERIALS (WHERE LIFESCAN SHALL PROVIDE EVALUATOR WITH PROMPT NOTICE OF ANY SUCH CLAIM AND ALLOW EVALUATOR TO CONTROL THE DEFENSE OF SUCH CLAIM).

7.     Termination and Survival

a.     Survival.  Sections 1, 2c, 3, 4, 5, 6, 7, 8c, and 9 shall survive termination or expiration of the Term.

b.     Termination.  Notwithstanding anything to the contrary, LifeScan may immediately terminate the evaluation rights granted hereunder (including Section 2a) upon notice to Evaluator. Furthermore, all licenses granted hereunder will automatically terminate upon the insolvency or bankruptcy by Evaluator. Termination under this provision 7(b) is in addition to any other remedies available at law or in equity. Termination under this provision 7(b) shall not relieve either party of any of its obligations existing as of the date of termination, or operate as a waiver of any breaches of this Agreement.

c.     Return of Evaluation Materials.  Upon completion of the evaluation of the Evaluation Materials, or upon termination of the evaluation by LifeScan, whichever is sooner, Evaluator shall promptly cease use of the Evaluation Materials and Documentation. By no later than seven (7) days after such completion or termination, Evaluator shall return to LifeScan all Evaluation Materials and Documentation provided to Evaluator (except for open test strips boxes and open liquid solutions). With respect to the OneTouch® DataLink® Software (and any other software provided to Evaluator by LifeScan), returning the software to LifeScan means that Evaluator will return any and all laptops Evaluator received with the software installed thereon and any and all CDs of the software (or other applicable portable electronic medium on which the software is stored), and, with respect to any copies of the software installed on Evaluator’s computers, Evaluator shall irretrievably delete the software and related documentation from all of Evaluator’s computer hardware. LifeScan may irretrievably delete such software and related documentation from all of Evaluator’s computer hardware if Evaluator has failed to comply with the foregoing requirement. When returning Evaluation Materials, Evaluator shall comply with all requirements of the Health Insurance Portability and Accountability Act (HIPAA) and any other applicable privacy laws and shall not disclose any personally identifiable patient information to LifeScan. Prior to returning meters to LifeScan, Evaluator shall disinfect and clean the meters in accordance with instructions in LifeScan’s operator’s guide for the meters. At LifeScan’s request, an officer of Evaluator shall certify in writing that Evaluator has performed all of the foregoing.

8.     Evaluation of the OneTouch® DataLink® Software

a.     This Section 8(a) pertains to Evaluators who receive CDs with the OneTouch® DataLink® Software for a workstation or the OneTouch® DataLink® Software for a server. Such Evaluators need to supply Microsoft® SQL Server® database software applications before they can evaluate the OneTouch® DataLink® Software. Specifically, OneTouch® DataLink® v3.4 for a computer and OneTouch® DataLink® v3.4/Web 3.0 each requires Evaluator to supply either Microsoft® SQL Server® 2005, SQL Server® 2008, or SQL Server® Express. (If Evaluator is evaluating another version of the OneTouch® DataLink® Software, contact your LifeScan representative for further information.) Evaluator is solely responsible for selecting and obtaining a version of the necessary Microsoft® software, and for complying with the applicable Microsoft® license terms and OneTouch® DataLink® software technical requirements.

b.  If Evaluator receives a laptop from LifeScan with the OneTouch® DataLink® Software installed thereon instead of a CD as described in Section 8a above, then for purposes of the evaluation Evaluator does not need to supply Microsoft® SQL Server® 2005, SQL Server® 2008, or SQL Server® Express. Evaluator acknowledges that an older version of the OneTouch® DataLink® Software is installed on such laptop, and that Microsoft® SQL Server® software and Symantec Corporation’s pcAnywhereTM software are integrated within the older version of the OneTouch® DataLink® Software installed on such laptop. Evaluator may use the SymantecTM and Microsoft® software integrated within the OneTouch® DataLink® Software installed on such evaluation laptop only with the OneTouch® DataLink® Software and solely during the Term. Any uses not associated with the evaluation of the OneTouch® DataLink® Software are prohibited. Evaluator agrees that it will not modify, copy, distribute to any third party, reverse engineer, decompile, or disassemble any third-party software (or any portion of it) integrated within the OneTouch® DataLink® Software. LifeScan is the primary contact for any issues related to the OneTouch® DataLink® Software (including any integrated third-party software).

c.     LifeScan is not an agent or representative of Microsoft or Symantec. LifeScan has no authority to make any representations or commitments on behalf of Microsoft or Symantec.

* Microsoft and SQL Server are registered trademarks of Microsoft Corporation in the United States and/or other countries. Symantec and pcAnywhere are trademarks or registered trademarks of Symantec Corporation or its affiliates in the U.S. and other countries.

9.     Miscellaneous

a.  Miscellaneous. All notices provided under these Terms and Conditions will be in writing. Without the prior express written consent of LifeScan, Evaluator may not assign or sublicense, its rights, duties or obligations under these Terms and Conditions to any person or entity, in whole or in part. The waiver or failure of any party to exercise in any respect any right provided for in these Terms and Conditions shall not be deemed a waiver of any further right under these Terms and Conditions. If any provision of these Terms and Conditions is invalid, illegal or unenforceable under any applicable statute or law, it is to that extent to be deemed omitted, and the remainder of these Terms and Conditions shall be valid and enforceable to the maximum extent possible. LifeScan shall have the right, upon reasonable notice and during regular business hours, to audit Evaluator to determine compliance with these Terms and Conditions. The rights and obligations of the parties under these Terms and Conditions shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. These Terms and Conditions are to be construed in accordance with the substantive law of the State of New Jersey, without regard to conflict of laws principles. Venue as to any action arising out of the subject matter hereof shall be in any court of competent jurisdiction in New Jersey.

b.  U.S. Government Restricted Rights. Any and all software provided under these Terms and Conditions is a “commercial item” as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Software will be provided to the U.S. Government only as an end user in accordance with 48 C.F.R. 12.212 and 48 C.F.R 227.7202 and only pursuant to these Terms and Conditions.

c.  Dispute Resolution. In the event of any controversy or claim arising out of or relating to the evaluation of the Evaluation Materials or these Terms and Conditions, the parties shall first attempt to mediate the dispute using a professional mediator from the American Arbitration Association (“AAA”) or a like organization selected by mutual agreement or, absent mutual agreement, through selection procedures administered by the AAA. Any dispute not settled through mediation shall be resolved by arbitration before a single arbitrator in accordance with the AAA Commercial Arbitration Rules then pertaining (available at www.adr.org). If those rules conflict with this provision, this provision controls. Any court with jurisdiction shall enforce this clause and enter judgment on any award. The arbitration shall be held in New Jersey and the arbitrator shall apply the substantive law of New Jersey, except that the interpretation and enforcement of this arbitration provision shall be governed by the Federal Arbitration Act. THE ARBITRATOR SHALL BE BOUND BY SECTION 6 (LIMITATION OF LIABILITY) AND ALSO SHALL NOT AWARD ATTORNEYS’ FEES OR COSTS. CUSTOMER IRREVOCABLY WAIVES ANY RIGHT TO SEEK DAMAGES EXCLUDED IN SECTION 6 IN ARBITRATION OR JUDICIAL PROCEEDINGS. EACH PARTY IRREVOCABLY WAIVES ITS RIGHT TO TRIAL OF ANY ISSUE BY JURY. Each party has the right to pursue provisional relief from any court in New Jersey, such as preliminary injunction to avoid irreparable harm, maintain the status quo, or preserve the subject matter of the arbitration, even though mediation has not been commenced or completed.

d.  Complete Agreement, Amendment. These Terms and Conditions sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof. These Terms and Conditions shall be an agreement between LifeScan and Evaluator upon Evaluator executing a signed letter from LifeScan relating to the evaluation of the OneTouch products, where such letter states that Evaluator agrees to be bound by these Terms and Conditions. Any amendment to these Terms and Conditions must be in writing and signed by both parties.