MTC

Legal

MASTER TERMS AND CONDITIONS

Updated: 11/13/2017

MASTER TERMS AND CONDITIONS

These Master Terms and Conditions (“MTC”) govern all acquisition and use of any and all products provided by BluVector (“BLUVECTOR”) by the entity entering into a Subscription and/or Purchase Agreement (such entity, “Customer”) (each a “Party, and collectively, the “Parties”).

  1.     DEFINITIONS

1.1.   “Documentation” means any user manuals, help files, specifications, supplemental materials, user data/information, and other related technical references provided to Customer to understand the Software features and functions, but not including marketing materials.  

1.2.   “Excluded Items” means any Product Solution that has (i) been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling or use contrary to any instructions issued by BLUVECTOR, (ii) been repaired or altered by persons other than BLUVECTOR except as provided for in writing by BLUVECTOR, (iii) not been installed, operated, repaired and maintained in accordance with BLUVECTOR’S Documentation or any instructions issued by BLUVECTOR,  (iv) been used or combined with any third party software or hardware which has not been previously approved in writing by BLUVECTOR, and (v) been provided on a test or evaluation basis.

1.3.   “Intellectual Property” means data, inventions, discoveries, works of authorship, software (including source code), drawings, and designs, prototypes, samples, formulas, processes, procedures, methods, compositions of matter, mask works, audio or audiovisual works, and test results.
1.4.   “Intellectual Property Right(s)” means any or all of the world-wide legal rights for Intellectual Property based on statute or common law and includes, by way of example, patents, trademarks, copyrights, mask works for semiconductor chip designs, and trade secrets.
1.5.    “Licensed Field” means malware detection in Customer’s network(s).

1.6.   “Product Solution” means collectively, the hardware, any and all version and variations of the Software or any other components supplied by BLUVECTOR to Customer and, if sold through a Reseller, to the Reseller and by Reseller to Customer.

1.7.   “Reseller” means a third-party reseller of the Product Solution, authorized by BluVector, from which Customer licenses or purchases the Product Solution, subject to the terms of this MTC.

1.8.   “Services” means the functionality whereby Customer may transmit events for analysis by BluVector or its designee. A report will then be generated and returned to Customer. An active internet connection is required.

1.9.   “Software” means licensed software designed to enable the Product Solution and any Updates or Upgrades thereto.

1.10. “Territory” means worldwide, except for the OFAC Excluded Countries.

1.11. “Third Party Software” means unmodified third-party content that is either (a) provided by BLUVECTOR or its Reseller to Customer in connection with the Product Solution; or (b) required by BLUVECTOR to be obtained by Customer in order for Customer to use the Product Solution.

1.12. “Unassociated Data” means any and all aggregated and anonymized Customer Data.

1.13. “Update” means a minor revision, modification or addition made to the Software, such as a bug fix, if any, that is provided by BLUVECTOR to Customer, whether directly or through the Reseller.

1.14. “Upgrade” means a major revision to the Software, as indicated by a different version number, if and when available and if any is provided by BLUVECTOR to Customer, whether directly or through the Reseller.

  1.     GRANT OF LICENSE TO SOFTWARE AND DOCUMENTATION; DELIVERY

2.1.   License Grant.  Subject to the terms of this MTC, BLUVECTOR hereby grants to Customer a personal, non-transferable, non-sublicensable, non-exclusive license to use the Software in the Licensed Field, solely (i) in machine-readable object code form, (ii) as embedded on the hardware or other medium delivered with the Software hereunder, (iii) in accordance with BLUVECTOR’s applicable Documentation, and (iv) during the Term and in the Territory.

2.2.   Right to Copy.  Customer shall not copy the Software for any purpose.  Customer may copy, print or reproduce the Documentation solely for the purpose of using of the Product Solution, provided that Customer agrees to include in any whole or partial reproduction of the Documentation all copyright and proprietary rights legends appearing in such material as furnished to Customer by BLUVECTOR. Customer may not sell or transfer any copy of the Documentation.

2.3.   Reservation of Rights. As between the Parties, BLUVECTOR retains all right, title, and interest, including without limitation, all Intellectual Property Rights to the Software and Documentation.  BLUVECTOR retains the right to exploit the Software and Documentation without restriction and grant others the right to do so throughout the world for any purpose. The Software and Documentation are licensed, not sold.  The Software is protected by the copyright laws of the United States and international copyright treaties.  This MTC does not give Customer any rights not expressly granted herein.  All rights not granted are reserved for BLUVECTOR.

2.4.   Delivery and Acceptance.  BLUVECTOR shall deliver the Software to Customer embedded on certain hardware or other medium, with delivery to the address Customer has provided in the Sales Order Form.  The Software will be shipped FOB INCOTERMS 2010.

  1.     CUSTOMER’S RESPONSIBILITIES

3.1.   Restrictions. Customer shall not (and will not allow any third party to): (i) reverse engineer, reverse compile, reverse assemble, translate or otherwise attempt to discover any source code or underlying ideas or algorithms of the Software; (ii) provide, lend, disclose, exploit circumvent, disable, or otherwise allow others to use the Product Solution for the benefit of any third party, except as expressly and specifically authorized in a signed writing by BLUVECTOR, (iii) sell, lease, share, distribute, or create derivative works of any Software or otherwise make available to third parties any Product Solution, (iv), remove, alter or deface any copyright or other proprietary notices, labels or marks from the Product Solution, (v) use any Update or Upgrade beyond those to which Customer is entitled or with any Software to which Customer does not have a valid, current license, (vi) use any Software on a time sharing, service bureau, application service provider (ASP), rental or other similar basis, (vii) use any Software other than with products provided by BLUVECTOR, (viii) circumvent or disable BLUVECTOR copyright protection mechanisms or license management mechanisms, (ix) use any Software in violation of any applicable Law or to support any illegal activity, (x) use any Software to violate any rights of any third party or (xi) attempt to use the Software on a standalone basis. BLUVECTOR expressly reserves the right to seek all available legal and equitable remedies to prevent any of the foregoing and to recover any lost profits, damages or costs resulting from any of the foregoing.

3.2.   Exceptions from Restrictions.  The prohibitions contained in Section 3.1 (“Restrictions”) shall apply to the extent that applicable law (including laws implementing 2009 24 EC Directive on the legal protection of computer programs) allows such prohibition to be enforced. Customer agrees it will bear the burden of proof in demonstrating that applicable law does not allow enforcement of any such prohibition.

3.3.   Feedback.  Customer may, regardless of whether or not formally requested to do, provide to BLUVECTOR reasonable suggestions, comments and feedback regarding the Software (collectively, “Feedback”).  Customer hereby grants BLUVECTOR the following worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up rights: (i) to make, use, copy, modify, sell, distribute, sub-license, and create derivative works of, such Feedback as part of any BLUVECTOR product, technology, service, specification or other documentation (individually and collectively, “BLUVECTOR Products”); (ii) to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease or lend copies of such Feedback (and derivative works thereof) as part of any BLUVECTOR Product; (iii) solely with respect to Customer’s copyright and trade secret rights, to sublicense to third parties the foregoing rights, including the right to sublicense to further third parties; and (iv) to sublicense to third parties any claims of any patents owned or licensable by Customer that are necessarily infringed by a third party product, technology or service that uses, interfaces, interoperates or communicates with the Feedback or portion thereof incorporated into a BLUVECTOR Product, technology or service.  Further, Customer warrants that its Feedback is not subject to any license terms that would purport to require BLUVECTOR to comply with any additional obligations with respect to any BLUVECTOR Products that incorporate any Feedback.    

  1.     REPRESENTATIONS AND WARRANTIES

4.1.   Representations. Each Party represents to the other Party that it has the corporate right, power, and authority to enter into this MTC and to perform its obligations under the terms of this MTC.

4.2.   Third Party Software.  BLUVECTOR engages in authorized and permitted use of Third-Party Software in the design, implementation, and operation of the Product Solution, including, but not limited to, its code base. As an end user of the Product Solution, Customer is also granted use of said Third-Party Software. Customer represents and warrants that Customer shall fully comply with the terms and conditions of all Third-Party Software license agreements.  A list of the applicable Third-Party Software, along with copies of the applicable license agreements is available to Customer upon written request to BLUVECTOR.

4.3.   Limited Warranty.  BLUVECTOR warrants that, as of the date on which the Product Solution is delivered to Customer and for ninety (90) days thereafter (“Warranty Period”), the Software will provide the features or functions generally described in the Documentation and that the hardware will be free from material defects in materials and workmanship.  BLUVECTOR’s entire liability and Customer’s sole remedy during the Warranty Period will be, at BLUVECTOR’s option, to attempt to correct or work around errors or to replace any defective hardware on which the Software is furnished.  

4.4.   Disclaimer.  EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN SECTION 4.3 (LIMITED WARRANTY), BLUVECTOR DOES NOT WARRANT OR MAKE ANY OTHER REPRESENTATIONS OF ANY KIND OR CHARACTER.  BLUVECTOR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONTENT, ACCURACY, SUFFICIENCY, SUITABILITY OF THE PRODUCT SOLUTION, INCLUDING THEW WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR FOR INTENDED USE, NON-INFRINGEMENT, SYSTEM INTEGRATION, QUIET ENJOYMENT, DATA ACCURACY OR IMPLIED WARRANTIES OF QUALITY, ALONG WITH ANY WARRANTIES THAT THE PRODUCT SOLUTION WILL BE ERROR FREE OR THAT ANY USE OF THE SOFTWARE WILL BE UNINTERRUPTED, ERROR FREE, ACCURATE OR COMPLETE, AND CUSTOMER BY ITS EXECUTION OF THIS AGREEMENT, ASSUMES ALL SUCH RESPONSIBILITY AND OBLIGATIONS IN THESE REGARDS.

  1.     PRODUCT SOLUTION OPERATION AND USE

5.1  USE OF PRODUCT SOLUTION.  CUSTOMER IS SOLELY RESPONSIBLE FOR THE OPERATION AND USE OF THE PRODUCT SOLUTION.  CUSTOMER ACKNOWLEDGES THAT THE PRODUCT SOLUTION IS DIRECTED AT DETECTING MALWARE AND THAT SUCH THREATS ARE RAPIDLY EVOLVING AND MAY NOT BE DETECTABLE; AS SUCH, THE USE OF THE PRODUCT SOLUTION IS SUBJECT TO SIGNIFICANT RISKS AND UNCERTAINTIES.  BLUVECTOR DOES NOT STATE OR OTHERWISE REPRESENT THAT THE OPERATION AND USE OF THE PRODUCT SOLUTION WILL PREVENT, OR WILL NOT CAUSE OR CONTRIBUTE TO, DATA LOSSES, FALSE POSITIVES, DELAYS, OR INTERRUPTIONS IN, INTERFERENCE WITH, OR DAMAGE TO COMMUNICATIONS ACCESS AND/OR SERVICES, INFORMATION TECHNOLOGY INFRASTRUCTURE OR BUSINESS OPERATIONS.  BLUVECTOR IS NOT OBLIGATED TO DIRECT, MANAGE OR CONTROL THE OPERATION OF THE PRODUCT SOLUTION OR OBLIGATED TO MONITOR TRAFFIC THROUGH CUSTOMER’S NETWORKS AND SYSTEMS.  CUSTOMER ACKNOWLEDGES AND AGREES THAT (I) THE PRODUCT SOLUTION IS INTENDED TO CONSTITUTE ONLY ONE PART OF A LARGER SYSTEM OF CYBERSECURITY AND ANTI-MALWARE PROTECTIONS FOR CUSTOMER AND (II) CUSTOMER SHOULD NOT RELY ON THE PRODUCT SOLUTION ALONE (IN AND OF ITSELF) TO ENSURE THAT NETWORKS, SYSTEMS, AND DATA REMAIN SAFE FROM CYBER INTRUSIONS, MALWARE AND OTHER THREATS TO SUCH NETWORKS, SYSTEMS, AND DATA. CUSTOMER FURTHER ACKNOWLEDGES THAT, UPON ITS ELECTION TO UTILIZE ANY OF BLUVECTOR’S SERVICE FEATURES, CUSTOMER SHALL ALLOW FOR BLUVECTOR TO USE AN INTERNET CONNECTION FOR THE TRANSMISSION OF MALICIOUS SUSPICIOUS FILES FROM ITS ENVIRONMENT TO BLUVECTOR’S DESIGNATED ENGINEERS FOR REVIEW AND ANALYSIS, AS WELL AS FOR THE RETURN OF THE REPORT OUTLINING SAID ANALYSIS.  BLUVECTOR ACKNOWLEDGES AND AGREES THAT BLUVECTOR SHALL UTILIZE THIS CONNECTION ONLY FOR THE STATED PURPOSE AND SHALL NOT SELL, DISTRIBUTE, LEASE, RENT, OR OTHERWISE CONVEY THE INFORMATION CONTAINED IN THE FILE OR REPORT TO ANY PERSON OR PARTY NOT INVOLVED IN THE ANALYSIS OF SAID FILES AND RELATED CONTENT.

5.2  Customer Data.  Customer’s use of the Product Solution does not generally require Customer to transmit or provide to BLUVECTOR data relating to Customer’s networks, systems, business, employees or customers (“Customer Data”).  However, to the extent that Customer transmits or provides BLUVECTOR with Customer Data in connection with a support request or provides Customer Data to BLUVECTOR inadvertently, Customer represents and warrants that Customer has the right to disclose such Customer Data under applicable law and regulation, Customer’s privacy policies and Customer’s obligations to third parties.  As between BLUVECTOR and Customer, Customer is the sole and exclusive owner of all right, title and interest in and to the Customer Data.  Customer grants BLUVECTOR the limited right and license to access and use such Customer Data solely to the extent necessary for BLUVECTOR to perform its obligations under this Agreement.

5.3   To the extent that any privacy or data protection law (including but not limited to any European Union (“EU”) data protection law, including but not limited to Data Protection Directive 95/46 EC, as implemented in the national laws of the relevant EU Member States (together, the “Directive”), applies to Customer Data, Customer shall not provide that data to BLUVECTOR without first identifying or describing it to BLUVECTOR, obtaining BLUVECTOR’S written consent to receive the data, and agreeing with BLUVECTOR in writing on instructions for the handling of the data.  For Customer Data to which the Directive applies and that BLUVECTOR consents to receive in accordance with the immediately preceding sentence, (i) BLUVECTOR shall act only as a data processor, within the meaning of the Directive, and Customer shall act as a data controller within the meaning of the Directive; and, (ii) BLUVECTOR shall only process Customer Data in accordance with Customer’s instructions, including the instructions set out in this Agreement. In the event that Customer provides BLUVECTOR with any Customer Data to which any data privacy or protection law applies without first obtaining consent and providing clear, written instructions to BLUVECTOR regarding the processing of that data, BLUVECTOR may delete such data upon receipt.

5.4 Customer Data may be transferred to, and stored and processed in, the United States or any other country in which BLUVECTOR or its affiliates in business maintain facilities. Customer hereby appoints BLUVECTOR to perform any such transfer of Customer Data to any such country and to store and process Customer Data, as necessary in connection with this MTC.  BLUVECTOR shall ensure that any such transfer of Customer Data is in full compliance with the Directive.

5.5  Unassociated Data. Notwithstanding the provisions of 5.3, above, Customer acknowledges and agreed that BLUVECTOR is authorized to use Unassociated Data for any purpose, including benchmarking and statistical analysis, and may share Unassociated Data with third parties for their use.  BLUVECTOR will not disclose any Unassociated Data or information that could identify Customer as being associated with said Unassociated Data.

  1. INDEMNIFICATION

6.1  BLUVECTOR Indemnification Obligations.  BLUVECTOR shall defend Customer, and Customer’s officers, directors and employees (the “Customer Indemnified Parties”), against any third party claim or action alleging that the Product Solution infringes a valid U.S. patent or copyright issued as of the date of delivery to Reseller or Customer, as applicable, and BLUVECTOR shall pay all settlements entered into, and all final judgments and costs (including reasonable attorneys’ fees) finally awarded against the Customer Indemnified Parties in connection with such claim or action defended by BLUVECTOR, excluding any claims or actions arising in whole or in part from the Excluded Items. If the Product Solution, or parts thereof, become, or in BLUVECTOR’s opinion may become, the subject of an indemnified infringement claim, BLUVECTOR may, at its sole option, (i) procure for Customer the right to continue using such Product Solution, (ii) modify or replace such Product Solution with substantially equivalent non-infringing products or software, or (iii) terminate this Agreement upon written notice to Customer and refund to Customer a portion of the license fees paid, pro-rated on a straight line basis for the number of years in the Term. The indemnification obligations of BLUVECTOR pursuant to this Section 6.1 shall be conditioned upon the Customer (a) notifying BLUVECTOR within twenty (20) days of receiving notice of any threat or claim in writing of such action, (b) giving BLUVECTOR exclusive control and authority over the defense or settlement of such action, (c) not entering into any settlement or compromise of any such action without BLUVECTOR’s prior written consent, (d) Customer’s prompt installation of any patches or bug fixes that BLUVECTOR may send Customer from time to time, whether or not such patches or bug fixes are provided in the form of an Update, and (e) providing all reasonable assistance requested by BLUVECTOR.  BLUVECTOR shall have no obligation to provide the foregoing indemnification to the extent Customer uses the Product Solution in an Office of Foreign Assets Control (“OFAC”) sanctioned country. THIS SECTION 6.1 STATES THE ENTIRE LIABILITY OF BLUVECTOR AND SOLE REMEDY FOR CUSTOMER FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

6.2  Customer Indemnification Obligations.  Customer shall indemnify, hold harmless and, at BLUVECTOR’s option, defend BLUVECTOR, its parent company and affiliates, BLUVECTOR’s licensors, suppliers and agents, and the respective officers, directors and employees for all of the foregoing (the “BLUVECTOR Indemnified Parties,” and, together with the Customer Indemnified Parties, the “Indemnified Parties”), against any third party claim or action, and Customer shall pay all settlements entered into, and all liabilities, losses, damages costs and expenses (including reasonable attorneys’ fees) incurred by or awarded against any of the BLUVECTOR Indemnified Parties in connection with such a claim or action, to the extent (a) alleging injuries to or death of persons or damage to tangible personal property caused by Customer or its agents or contractors; (b) alleging Customer’s violation of law or regulation or obligations to any third party; (c) arising from or relating to Customer’s operation or use of the Product Solution or any portion thereof, including without limitation any claim or action arising from or relating to, in whole or in part, defects, non-conformance, or other errors or flaws in the Product Solution, whether or not arising from actions of “hackers” or other persons or entities who illegally or improperly penetrate, exploit, use or misuse (or attempt to do any of the foregoing) Customer’s networks, systems or data, (d) arising from or relating to Customer’s failure to comply with the requirements of this MTC, or (e) arising from or relating to any of the Excluded Items.

  1.     LIMITATIONS OF LIABILITY

7.1  DISCLAIMER. BLUVECTOR AND ITS PARENT AND AFFILIATES, TOGETHER WITH THEIR RESPECTIVE SUPPLIERS, LICENSORS, SHAREHOLDERS, DIRECTORS, OFFICERS, MANAGERS, PARTNERS, AGENTS AND EMPLOYEES, SHALL NOT BE LIABLE TO CUSTOMER, ITS AFFILIATES, EMPLOYEES, AGENTS OR ANY OTHER THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO PROPERTY DAMAGE, PERSONAL INJURY, LOST PROFITS, INTERRUPTION OF BUSINESS, OR LOSS OF USE OR FOR ANY COSTS FOR THE PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES.  FURTHER, BLUVECTOR, BLUVECTOR’S SUPPLIERS OR BLUVECTOR’S LICENSORS SHALL NOT HAVE ANY LIABILITY TO CUSTOMER, ITS AFFILIATES, EMPLOYEES, AGENTS OR CLIENTS FOR ANY FAILURE OR DELAY DUE TO MATTERS BEYOND SUCH PARTY’S REASONABLE CONTROL OR FOR ANY ALLOCATION OF PRODUCTS OR SERVICES AMONG BLUVECTOR’S CUSTOMERS IN THE EVENT OF A SHORTAGE.  BLUVECTOR’S CUMULATIVE LIABILITY FOR DAMAGES OF ANY KIND OR NATURE ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT EQUIVALENT TO THE LICENSE FEES PAID BY CUSTOMER TO BLUVECTOR FOR THE PRODUCT SOLUTION.

  1.     TERMS AND TERMINATION

8.1 Term.  This MTC shall remain in force from the date of Customer’s receipt of an activation code from BLUVECTOR until (A) the end of the license term of the Software as set forth in the applicable schedule or quote for acquisition of the Product Solution (the “Term”), unless earlier terminated pursuant to Section 8.2.

8.2  Termination.  In the event that Customer breaches any of the terms in Sections 2 or 3, BLUVECTOR may, at its option, terminate this MTC immediately by delivering written notice to Customer stating the grounds for termination, with any such termination being effective immediately.  Any such termination by BLUVECTOR shall not be deemed as a waiver to any remedies otherwise available to BLUVECTOR at law or in equity. Customer agrees that upon any termination, it shall destroy all copies of the Software, together with all related Documentation and Customer shall return any and all leased hardware or other components of the Product Solution to BLUVECTOR. Customer agrees that BLUVECTOR may require it to show satisfactory proof that all copies of Software and the Product Solution have been returned or destroyed. For avoidance of doubt, upon termination or non-renewal of the use of the Product Solution, under no circumstances is Customer authorized or otherwise allowed to continue the use of any portion of the Product Solution.

8.3  Survival. Notwithstanding any termination of this MTC, Sections 1, 2.3, 4, 5.2, 5.3, 5.4, 6, 7, 8.2, 8.3, 9 and 10 will survive and remain in effect in accordance with their respective terms.

  1.     CONFIDENTIALITY

9.1. Each of the Parties agrees to maintain in confidence any non-public information of the other Party, whether written or otherwise, disclosed by the other Party in the course of performance of this Agreement that a Party knows or reasonably should know is considered confidential by the disclosing party (“Confidential Information”).  The Parties hereby agree that Confidential Information includes the terms and conditions of this Agreement, and any discussions related thereto as well as the Software. The receiving party shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the Parties’ respective rights therein, at all times exercising at least a reasonable level of care.  Each Party agrees to restrict access to the Confidential Information of the other Party to those employees or agents who require access in order to perform hereunder, and, except as otherwise provided, neither Party shall make Confidential Information available to any other person or entity without the prior written consent of the other Party.

9.2. Confidential Information shall not include any information that is (i) already known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; (iii) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the other Party hereto that rightfully acquired such information; or (iv) communicated to a third party by the receiving party with the express written consent of the other Party hereto.  A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process shall not be considered a breach of this Agreement; provided the receiving party provides prompt notice of any such subpoena, order, or the like to the other Party so that such Party will have the opportunity to obtain a protective order or otherwise oppose the disclosure.

9.3. Upon expiration or termination of this Agreement for any reason, each Party shall promptly return to the other Party, or destroy, as the Parties agree, all copies of the other Party’s Confidential Information.  All copies, notes or other derivative material relating to the Confidential Information shall be promptly retrieved or destroyed, as agreed, and no such material shall be retained or used by the receiving party in any form or for any reason.

  1.   MISCELLANEOUS

10.1. Force Majeure. Neither Party will be held liable for failure to perform any obligation of or delay in performance resulting from or contributed to any cause beyond the reasonable control of either Party from any act of God, act of civil or military authority, act of war whether declared or undeclared, act (including delay, failure to act, or priority) of any governmental authority, civil disturbance, insurrection or riot, sabotage, fire, severe weather conditions, earthquake, flood, strike, work stoppage or other labor difficulty, embargo, delay in transportation, or any other delay beyond either Party’s control.

10.2. No Waiver of Rights. The failure of either Party to enforce at any time the provisions of this MTC, or to require at any time the performance by the other Party of any such provisions, will in no way be construed to be a waiver of such provision, nor in any way to affect the validity of this MTC, or the right of either Party thereafter to enforce each and every provision.

10.3. Severability. Notwithstanding anything to the contrary in this MTC, each provision of this MTC is severable. Should any provision (in whole or in part) of this MTC be declared illegal, invalid or unenforceable by a court of competent jurisdiction, the remainder of this MTC will remain in full force and effect.

10.4. Modifications. No waiver, modification, or amendment of any of the provisions of this MTC will be binding unless it is in writing and signed by the duly authorized representatives of the Parties hereto.

10.5. Governing Law. This MTC shall be interpreted and construed, and its performance and any dispute arising under this MTC shall be governed in all respects by the substantive and procedural laws and judicial decisions of the Commonwealth of Virginia and the United States of America, without reference to Virginia’s choice of law provisions. The Parties agree that the exclusive venue for any action brought to enforce and/or interpret the provisions of this MTC shall lie in any court of competent jurisdiction in Virginia. In the event that this MTC is between BLUVECTOR and the United States Government, this MTC will be interpreted and construed, its performance and any dispute arising under this MTC will be governed by United States federal law.

10.6. Legal Costs. In the event of any dispute under this MTC, or if it is necessary for either Party to bring legal action to enforce its rights under this MTC, each Party in any such dispute or legal action or other proceeding will be fully responsible for its own costs, attorneys’ fees and expenses, including any legal fees and expert witness fees.

10.7. Notices. Any notices relating to this MTC or to the Product Solution will be sent to the other Party’s authorized representative via proper channels. A valid notice or other communication under this MTC will be effective when received by the Party to which it is addressed. Legal notices to BLUVECTOR should be sent to:

BluVector, Inc.

Attn:   Legal Department

4501 North Fairfax Drive, Suite 710

Arlington, VA 22203

10.8. Assignment. This MTC, the licenses granted in this MTC cannot be assigned, sublicensed or otherwise transferred in any manner by Customer without the prior written consent of BLUVECTOR. Any attempted assignment, transfer, or encumbrances of this MTC by Customer, or of any of the rights or licenses granted under this MTC without the express written consent of BLUVECTOR, will be void and without any legal force or effect. BLUVECTOR may assign this MTC, in whole or in part, without the prior consent of or notice to Customer.

10.9. Integration. This MTC, including any appendices or exhibits attached to, and any amendments made hereto, contains the entire agreement and understanding between the Parties as to the subject matter hereof, and merges and supersedes all prior agreements, commitments, representations, writings and discussions between them. Neither of the Parties will be bound by any prior obligations, conditions, warranties, or representations with respect to the subject matter of this MTC.

10.10. Export Controls. Customer agrees that the Software and Product Solution may be subject to export control regulations in countries where it may operate and Customer hereby agrees that it will not directly or indirectly export, import, transmit or use the Software or Product Solution contrary to the laws or regulations of any governmental entity that has jurisdiction over such export, import, transmission or use.  The Parties agree to cooperate with each other with respect to any application for required licenses and approvals; however, Customer acknowledges and agrees it is ultimately Customer’s responsibility to comply with any and all export laws.

10.11. Government Use.  If Customer is part of an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software or any related documentation is restricted in accordance with the Federal Acquisition Regulation 12.212 for civilian agencies and the Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies.  The Software and Documentation is a “commercial item”, “commercial computer software” and “commercial computer software documentation.”  The use of the Software and Documentation is further restricted in accordance with the terms of this Agreement, or any modifications thereto.