Online Terms and Conditions

Last Updated: January 24, 2025
Version 3.1

Blackwell Security, Inc. (“Blackwell”) | Services Agreement Online Terms and Conditions

CAREFULLY READ THESE SERVICES ONLINE TERMS AND CONDITIONS WHICH GOVERNS (A) CUSTOMER’S ACCESS TO BLACKWELL’S SERVICES, WHICH MAY INCLUDE BLACKWELL’S PULSE PLATFORM AND/OR BLACKWELL’S SUPPORT SERVICES (COLLECTIVELY “SERVICES”) FOR INTERNAL USE BY THE CUSTOMER.  CUSTOMER’S USE AND ACCESS TO THE SERVICES ARE PROVIDED TO THE CUSTOMER UNDER THESE TERMS AND CONDITIONS, ANY ORDER FORM SUBMITTED BY CUSTOMER, BLACKWELL’S ACCOMPANYING DOCUMENTATION (THE “DOCUMENTATION”), BLACKWELL’S SUPPORT TERMS AND CONDITIONS (THE “SUPPORT SERVICES”) LOCATED AT https://blackwellsecurity.com/terms (COLLECTIVELY, THE “AGREEMENT”).  CUSTOMER’S REPRESENTS AND WARRANTS THAT THE INDIVIDUAL DOWNLOADING, INSTALLING, USING OR OTHERWISE ACCESSING THE SERVICES IS AN AUTHORIZED REPRESENTATIVE OF CUSTOMER WITH THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT.  CUSTOMER AND BLACKWELL MAY EACH ALSO BE REFERRED TO AS A “PARTY” AND TOGETHER, THE “PARTIES”.

BY ACCEPTING AN ORDER FORM OR OTHERWISE ACCESSING THE SERVICES, CUSTOMER AGREES TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT, AND CUSTOMER REPRESENT THAT (A) IT HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT, (B) CUSTOMER’S AUTHORIZED REPRESENTATIVE IS OF LEGAL AGE TO FORM A BINDING CONTRACT WITH BLACKWELL ON BEHALF OF CUSTOMER, AND (C) CUSTOMER HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO BE BOUND BY ITS TERMS AND CONDITIONS.  IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MAY NOT DOWNLOAD, INSTALL, ACCESS, OR USE THE SERVICES.

THIS AGREEMENT REQUIRES THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

1 SCOPE; DEFINITIONS. Unless otherwise defined in this Section 1, the capitalized terms used in this Agreement shall be defined in the context in which they are used. The following terms shall have the following meanings:

1.1 “Access Term” means the period of time during which the Customer is permitted to receive, access and Use the Blackwell Services as particularly described in an Order Form.

1.2 “Applicable Data Protection Laws” means as applicable: European Data Protection Laws, US Privacy Laws, and any other laws or regulations applicable to Blackwell’s processing of Customer Data under this Agreement; in each case as may be amended, superseded, or replaced.

1.3 “Authorized Users” means Customer’s employees, contractors (including third party coaches engaged by Customer), who are authorized to use the Services and for whom Customer has purchased rights to access and use the Services in accordance with the terms and conditions of this Agreement.

1.4 “Blackwell Helix” means Blackwell’s proprietary exposure analysis and enrichment processes applied to certain security threats and vulnerabilities, incorporating threat intelligence data and analysis of malicious software and executables used to increase the accuracy of threat detection and response provided to the Customer as part of Service under the terms of this Agreement and an Order Form.

1.5 “Blackwell Products” means the object code version of Blackwell’s proprietary software applications including all updates, upgrades, bug fixes and components.

1.6 “Confidential Information” means: any information or data (including information or data received by the disclosing party from a third party and as to which the disclosing party has confidentiality obligations) provided or disclosed by disclosing party or its agents to receiving party that is: (i) fixed in a tangible medium and marked as the confidential or proprietary information of the disclosing party; (ii) otherwise provided or disclosed by or on behalf of the disclosing party marked as proprietary at the time the information is provided; or (iii) not falling within any of the prior clauses of this sentence, but which, a reasonable person would conclude is of a confidential nature given the facts and circumstances of such disclosure or (iv) the Blackwell Products, the Services and the Documentation. The terms of this Agreement shall constitute the Confidential Information of both Parties.

1.7 “Customer Data” means (a) all data, information, content and other materials pertaining to any and all users of the Services and (b) all data, information, content (structured and unstructured) and other materials uploaded or copied to the Services by an Authorized User or any data generated from the use of, concerning or contained in, or otherwise transmitted by or through, the Services or otherwise provided by Customer or an Authorized User.

1.8 “Documentation” means Blackwell’s release notes or other similar instructions in hard copy or machine readable form supplied by Blackwell generally to its customers that describes the Blackwell Helix provided hereunder.

1.9 “European Data Protection Laws” means: (i) Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (“GDPR”); (ii) Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector, as amended by Directive 2009/136/EC (“e-Privacy Directive”); (iii) any applicable national implementations of (i) and (ii); (iv) the Swiss Federal Data Protection Act of 19 June 1992 and its Ordinance (“Swiss DPA”); and (v) in respect of the United Kingdom (“UK”), the Data Protection Act 2018 and the GDPR as saved into UK law by virtue of section 3 of the UK’s European Union (Withdrawal) Act 2018 (the “UK GDPR”) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 as they continue to have effect by virtue of section 2 of the UK’s European Union (Withdrawal) Act 2018 ; in each case as may be amended, superseded or replaced.

1.10 “Marks” means all proprietary indicia, trademarks, trade names, symbols, logos and/or brand names Blackwell may adopt from time to time to identify Blackwell, the Services, the Blackwell Helix or any related parties or materials.

1.11 “Reports” means the output, results, numerical tables, evaluations, reports, summaries, graphs, charts, and analyses or other content generated by Blackwell as part of the Services.

1.12 “Services” means the access to and use of (a) Blackwell’s cloud-based software platform (the “Blackwell Pulse Platform”), and (b) the limited online data processing and analysis functionality of the Blackwell Pulse Platform and all related features ordered by Customer, operated by Blackwell and made available to Customer via the Blackwell web sites (Pulse portal), including without limitation, the Blackwell Helix.

1.13 “US Privacy Laws” means, as applicable: the California Consumer Privacy Act of 2018 (California Civil Code §§ 1798.100 et seq. (2018) as amended by the California Privacy Rights Act of 2020 (“CPRA”) (together the “CCPA”), the Virginia Consumer Data Protection Act (“VCDPA”), as of July 1, 2023, the Connecticut Data Privacy Act (“CTDPA”), the Colorado Privacy Act (“CPA”), and as of December 31, 2023, the Utah Consumer Privacy Act (“UCPA”).

1.14 “Use” means collectively all of the following: (i) Customer’s internal operations and internal purposes; (ii) internal non-production testing; (iii) validation of the existence of a particular vulnerability.

2 GRANT OF ACCESS.

2.1 Grant. Subject to the terms and conditions of this Agreement, including Customer’s payment obligations, Blackwell grants to Customer and its Authorized Users a non-exclusive, non-transferable right to (i) upload Customer Data to the Blackwell Pulse Platform and (ii) access and use the Services solely in accordance with applicable Documentation and solely for the internal business purposes of Customer as agreed to in the applicable Order Form. Blackwell reserves the right to modify the software underlying the Services at any time and agrees to use commercially reasonable efforts to notify Customer of any such modifications to the extent that such modifications materially degrade functionality. Customer understands that this Agreement grants certain rights of access only, and that nothing in this Agreement may be interpreted to require delivery of a copy of any of the Blackwell Products to Customer or installation of a copy of such Blackwell Products upon any computers or systems under Customer’s control. The parties agree and understand that this Agreement does not contemplate any customized services, work for hire, or code developed for Customer.

2.2 Procedures and Technical Protocols. Blackwell will provide Customer procedures according to which Customer may establish and obtain access to and use the features and functions of the Services, including, without limitation, provision of any access codes, passwords, technical specifications, connectivity standards or protocols, or any other relevant procedures, to the limited extent any of the foregoing may be necessary to enable Customer to obtain access to the Services via the Internet (together with relevant portions of the Documentation, the “Access Protocols”).

2.3 Documentation License. Subject to the terms and conditions of the Agreement, Blackwell hereby grants to Customer a non-exclusive, non-transferable, non-sublicenseable right and license during the Access Term to use and make copies of the Documentation, solely for use by Customer in connection with the exercise of rights granted in Section 2.1. Customer acknowledges that no right is granted to modify, adapt, translate, publicly display, publish or create derivative works of the Documentation. Customer acknowledges that the Documentation is Blackwell’s Confidential Information, and hereby agrees to maintain and not remove any copyright notices, trademark notices, and confidentiality notices.

2.4 Authorized Users.

(a) Selecting Authorized Users. Customer agrees to obtain separate credentials (e.g., user IDs and passwords) via the Services for each Authorized User and may not permit the sharing of Authorized User credentials.

(b) Customer’s Responsibilities Regarding Authorized Users. Customer hereby agrees to take full responsibility for all acts and omissions of an Authorized Users and any act or omissions of Authorized Users that, if undertaken by Customer, would constitute a breach of this Agreement shall be deemed a breach of this Agreement by Customer. Customer shall at all times be responsible for all use of the Services under an Authorized User’s account (including for the payment of Service Fees related to such use), whether such action was taken by an Authorized User or by another party, and whether or not such action was authorized by an Authorized User. This responsibility includes the security of each Authorized User’s credentials, and Customer agrees not to share (and will instruct each Authorized User not to share) such credentials with any other person or entity, or otherwise permit any other person or entity to access or use the Services.

2.5 Restrictions. Customer recognizes and agrees that the Services, the Blackwell Pulse Platform, the Blackwell Helix, the Blackwell Products and the Documentation (collectively, the “Blackwell Materials”) are the property of Blackwell, contain valuable assets and proprietary information and property of Blackwell, and are provided to Customer under the terms and conditions of this Agreement. Notwithstanding anything to the contrary in this Agreement, Customer agrees that it shall not, and shall ensure that no Authorized Users, do any of the following: (a) download, use, install, deploy, perform, modify, license, display, reproduce, distribute or disclose the Blackwell Materials (even if merged with other materials as a compilation) other than as allowed under Section 2.1 of this Agreement; (b) sell, license, transfer, rent, loan, pledge, or allow any third party access to the Blackwell Materials (in whole or in part and whether done independently or as part of a compilation); (c) modify, translate, reverse engineer (except to the limited extent permitted by law), decompile, disassemble, create derivative works based on, sublicense or distribute any Blackwell Materials; (d) rent or lease any rights in any Blackwell Materials in any form to any person; (e) use any Blackwell Materials for the benefit of any third parties (e.g., in an ASP, outsourcing or service bureau relationship) or in any way other than in its intended manner; (f) remove, alter or obscure any copyright notice, proprietary notice, labels or Marks on the Blackwell Materials; (g) disable or circumvent any access control or related device, process or procedure established with respect to any Blackwell Materials or any other part thereof; (h) create, translate or otherwise prepare derivative works based upon the Services, Documentation or Blackwell Materials; (i) “crawl” or “scrape”, whether manually or by automated means, (including bots, scrapers, and spiders), to view, access or collect any data or information within the Services; (j) post or make generally available any Blackwell Materials (in whole or in part) to individuals or a group of individuals who have not agreed to the terms and conditions of this Agreement; and (k) share any user authentication information and/or password provided to Customer by Blackwell with any third party to allow such party to access Blackwell portal account or to otherwise access the Blackwell Materials. Customer is responsible for all use (including the use by any of Customer’s employees or agents) of any Blackwell Materials and for compliance with this Agreement and any applicable third party software license agreement.

2.6 Designated Contacts. Each party will designate in each Order Form one or more individuals who will serve as the point(s) of contact between the parties for all matters relating to Services to be performed thereunder. A party may designate new contacts by written notice to the other party.

3 RIGHTS IN INTELLECTUAL PROPERTY.

3.1 Blackwell Intellectual Property. Except as expressly set forth in this Agreement, Blackwell, and its licensors, retain all right, title, and interest in and to the Service, the Blackwell Helix, the Blackwell Materials and all other Blackwell Intellectual Property and all intellectual property rights therein. This Agreement does not transfer to Customer any title or any ownership right or interest in any Blackwell Materials or in any intellectual property rights in the Blackwell Materials. Blackwell shall also own and retain all right, title and interest in and to the following: (a) the Blackwell Materials; (b) content, reports and templates developed by Blackwell including, without limitation, the Blackwell resources available in shared libraries; (c) all developments, enhancements, organization, features, modifications relating in or to the Services; and (d) aggregated and de-personalized data and metrics relating to the use, operation and performance of the Services. Any rights in the Blackwell Materials not granted herein are expressly reserved by Blackwell or its licensors. Customer does not acquire any rights, express or implied, other than those expressly granted in this Agreement.

3.2 Customer Intellectual Property. Customer hereby grants to Blackwell a limited, non-exclusive, non-transferable license to store and use the Customer Data to the extent necessary for Blackwell to perform its obligations hereunder. Customer shall own all Customer Data provided by Customer or its Authorized Users that is uploaded to the Service. Except as is necessary in the performance of its obligations under this Agreement, Blackwell shall have no legal or equitable interest in, or claim to, such data and information; provided, however, that Blackwell may run and use metrics on the foregoing data and information for the purpose of maintaining, marketing and improving Blackwell’s products and services. Customer shall reasonably comply with Blackwell’s requests for access to the foregoing data to be used as stated above.

3.3 Suggestions, Ideas and Feedback. Customer may provide suggestions, comments or other feedback (collectively, “Feedback”) to Blackwell with respect to the Services provided, however, that under no circumstance shall Feedback include any intellectual property rights of the Customer. Feedback is voluntary and Blackwell is not required to hold it in confidence. Blackwell may use Feedback for any purpose without obligation or restrictions of any kind. To the extent a license is required under Customer’s intellectual property rights to make use of the Feedback, Customer hereby grants Blackwell an irrevocable, non-exclusive, perpetual, royalty-free license to use the Feedback in connection with Blackwell’s business, including for the enhancement of the Blackwell products and related services.

3.4 Representations and Warranties Regarding Customer Data. If, in the process of using the Services, the Customer uploads, records or otherwise transmits any Customer Data to a Blackwell web server, then the Customer represents and warrants to Blackwell that the Customer: (a) is the owner or authorized user of the Customer Data; (b) is solely responsible for the Customer Data; and (c) acknowledges and agrees that Blackwell neither controls nor guarantees the accuracy, integrity, or quality of the Customer Data. The Customer will not use the Services or upload, record or otherwise transmit any Customer Data that: (i) infringes any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; or (ii) violates any law, statute, ordinance or regulation; is defamatory, trade libelous, threatening, harassing, obscene, harmful, or pornographic. The Customer understands that by using the Services its Authorized Users may be exposed to Customer Data that is improper, offensive or a violation law, and therefore under no circumstances will Blackwell be liable to any person or entity for any alleged damages sustained by the distribution of the Customer Data to any authorized user. Upon termination of this Agreement, the Customer agrees that any Customer Data uploaded to the Blackwell portal will not be returned to the Customer. Should the Customer or its Authorized User submit technical support questions or comments to Blackwell, then the Customer agrees that Blackwell may edit and post those questions or comments with the response, (without revealing personal information), on Blackwell’s support web site and that all such questions or comments shall be Blackwell’s property.

3.5 Data Back-Up. Customer agrees and understands that it alone is responsible for protecting and backing-up the data created, used, stored and/or transmitted in connection with the use of the Services, and the parties further understand that Blackwell shall have no liability whatsoever for any loss of, or failure to recover, such data, or any loss or disruption caused by failure to properly back-up the data and/or the Services on a periodic basis.

4 SUPPORT SERVICES. Support will be provided pursuant to Blackwell’s standard Service Level Agreement located at https://blackwellsecurity.com/sla (the “Support Services”).

5 PAYMENT.

5.1 Fees. Except as otherwise set forth on an Order Form, Fees shall be paid on an annual basis, in advance, within thirty (30) days of receipt of Blackwell’s invoice without any deduction or set-off (except for any amount disputed promptly and in writing by Customer in good faith). Customer also agrees to pay all other Blackwell invoices, within thirty (30) days of receipt of Blackwell’s invoice, for actual service usage quantities beyond agreed-to amounts in the applicable Order Form (“Overages”), fees for any Surge (as defined in the applicable Support Services), and other ad hoc Services at any time. If any invoiced amount is not received by Blackwell by the due date, then without limiting Blackwell’s rights or remedies, (i) those unpaid amounts shall be subject to interest at the lesser of one and one-half percent (1.5%) per month or the maximum permitted by law, plus all collection costs, and (ii) Blackwell may suspend Services with five (5) days’ written notice, and may terminate Services with ten (10) days’ written notice.

5.2 Expenses. Customer agrees to pay or reimburse Blackwell for any and all necessary expenses incurred by Blackwell in connection with the performance of its obligations under this Agreement, including without limitation, all reasonable and necessary travel expenses.

5.3 Taxes. The fees and charges covered by this Agreement are exclusive of any taxes imposed or levied, currently or in the future based on applicable legislation, on the Services. Unless otherwise agreed between the parties, Customer will be liable for compliance with reporting and payment of such sales and use taxes in its tax jurisdiction. Blackwell shall include the sales and use taxes its invoice to Customer and remit such sales and use taxes collected to the relevant authority if required by applicable law. For the avoidance of doubt, Blackwell will be responsible for direct taxes imposed on Blackwell’s net income or gross receipts in its tax jurisdiction.

5.4 Renewal Access Terms. The Fees payable by Customer for each renewal Access Term will be equal to the Fees for the prior Access Term, plus a price increase. The Fees for each renewal Access Term shall not exceed the then-current list price as of the start date of such renewal Access Term.

6 CONFIDENTIAL INFORMATION; PERSONAL INFORMATION.

6.1 Confidential Information. Both parties acknowledge that, in the course of performing this Agreement, they may obtain information relating to products (such as goods, services, and software) of the other party, or relating to the parties themselves, which is of a confidential and proprietary nature. “Confidential Information” shall mean any non-public information of the other party that is designated as confidential, or that the receiving Party knew or reasonably should have known, under the circumstance surrounding the disclosure, was confidential or proprietary. Confidential Information includes, without limitations, the terms of this Agreement, each party’s Materials, business and marketing strategies, employee and customer lists, customer profiles, project plans, design documents, pricing data, research, advertising plans, leads and sources of supply, development activities, in each case, whether such information is presented in oral, printed, written, graphic or photographic or other tangible form (including information received, stored or transmitted electronically). Confidential Information also includes any notes, summaries, analyses of the foregoing that are prepared by the receiving party. Without limiting the generality of the foregoing, Customer’s Confidential Information shall include all Customer Data and information regarding Customer’s customers, information gathered by coaches in connection with coaching engagements, sales, marketing, personnel matters, or means of doing business; Blackwell’s Confidential Information shall include Blackwell’s Intellectual Property and Blackwell Materials.

6.2 Non-use and Non-disclosure. The receiving party may only use the disclosing party’s Confidential Information to fulfill the purposes of this Agreement. The receiving party will protect the disclosing party’s Confidential Information by using at least the same degree of care as the receiving party uses to protect its own Confidential Information of a like nature (but no less than a reasonable degree of care) to prevent the unauthorized use, dissemination, disclosure or publication of such Confidential Information. Notwithstanding the foregoing, the receiving party may disclose Confidential Information to its (and its Affiliates) employees, advisors, consultants, and agents on a need-to-know basis and provided that such party is bound by obligations of confidentiality substantially similar to those contained herein. Upon the request of a disclosing party, the receiving party shall promptly destroy any and all Confidential Information of the disclosing party in its possession or under its control, and any copies made thereof.

6.3 Exclusions. Information will not be deemed Confidential Information if it: (a) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (b) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (d) is independently developed by the receiving party without use of or reliance upon the disclosing party’s Confidential Information, and the receiving party can provide evidence to that effect. The receiving party may disclose Confidential Information pursuant to the requirements of a court, governmental agency or by operation of law but shall (to the extent permissible by law) limit such disclosure to only the information requested and give the disclosing party prior written notice sufficient to permit the disclosing party to contest such disclosure.

6.4 Security and Processing of Customer Data.

(a) Customer Data. As between Blackwell and Customer, Customer is solely responsible for: (i) the content, quality and accuracy of Customer Data as made available by Customer and by Authorized Users; (ii) providing notice to Authorized Users with regards to how Customer Data will be collected and used for the purpose of the Blackwell Services; (iii) ensuring Customer and Blackwell have a valid legal basis for processing Customer Data and for sharing Customer Data with Blackwell (to the extent applicable); and (iv) ensuring that the Customer Data as made available by Customer complies with applicable laws and regulations including Applicable Data Protection Laws.

(b) Data Protection Laws. The parties shall comply with their respective obligations under the Applicable Data Protection Laws.

6.5 Security of Customer Data. Blackwell shall: (a) ensure that it has in place appropriate administrative, physical and technical measures designed to protect the security and confidentiality of Customer Data against any accidental or illicit destruction, alteration or unauthorized access or disclosure to third parties; (b) have measures in place designed to protect the security and confidentiality of Customer Data; and (c) access and use the Customer Data solely to perform its obligations in accordance with the terms of this Agreement, and as otherwise expressly permitted in this Agreement. Blackwell shall not materially diminish its security controls with respect to Customer Data during a particular Blackwell Services term.

6.6 Data; Aggregation. Notwithstanding anything in this Agreement to the contrary, Blackwell shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Blackwell will be free (during and after the Term hereof) to (i) use such information and data to improve and enhance the Blackwell Products and for other development, diagnostic and corrective purposes in connection with the Blackwell Products and other Blackwell offerings, and (ii) disclose such data solely in aggregated or other de-identified form in connection with its business. To the extent a license is required under Customer’s intellectual property rights for Blackwell to perform any of its rights under this Section 6.6, Customer hereby grants Blackwell an irrevocable, non-exclusive, perpetual, royalty-free license to do so, in connection with Blackwell’s business, including for the enhancement and improvements of the Blackwell Products and related services. Notwithstanding anything to the contrary herein, Blackwell shall own all rights, title and interest in and to all derivative works and aggregated data prepared or created by Blackwell in connection with this Agreement, including all intellectual property rights therein, provided such data is in de-identified form. Customer will ensure its End Users agree to Blackwell’s use of Customer Data in accordance with this Section 6.6. All Customer Data shall remain owned by Customer and Blackwell shall have no rights to, and shall not, use, disclose or exploit the Customer Data except for the benefit for Customer as set forth herein.

7 WARRANTY AND DISCLAIMER.

7.1 Blackwell represents and warrants that, during the Access Term, the Services function in material conformance with the functionality described in Blackwell’s Documentation or Order Form relating to the applicable Services, provided, Customer has complied with all instructions and other requirements necessary to access and use the Services. In addition, Blackwell agrees to use commercially reasonable efforts to test the Blackwell Products included in the Services for the presence of viruses and/or malware and to remove and destroy and viruses and/or malware found.

7.2 Remedy. In the event of the breach of the warranty in Section 7.1, Customer’s sole and exclusive remedy shall be for Blackwell, at its election and expense, to use commercially reasonable efforts to repair or replace the non-conforming services, provided that Blackwell is notified in writing of all warranty problems within thirty (30) days of the occurrence of such failure or defect.

7.3 EXCEPT AS SPECIFICALLY WARRANTED IN THIS SECTION 7, THE SERVICES, BLACKWELL PRODUCTS AND ALL DOCUMENTATION, MATERIALS PROVIDED BY BLACKWELL HEREUNDER ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND BLACKWELL EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF OPERABILITY, CONDITION, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA, OR QUALITY, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, WORKMANSHIP, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. NO WARRANTY IS MADE BY BLACKWELL ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE. BLACKWELL DOES NOT WARRANT THAT THE SERVICES, THE BLACKWELL HELIX OR THE DOCUMENTATION PROVIDED UNDER THIS AGREEMENT WILL MEET THE CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. CUSTOMER ACKNOWLEDGES THAT BLACKWELL’S OBLIGATIONS UNDER THIS AGREEMENT ARE FOR ITS BENEFIT ONLY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ALL OPEN SOURCE PROGRAMS ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. THE WARRANTY MADE BY BLACKWELL MAY BE VOIDED BY ABUSE OR MISUSE.

8 INDEMNIFICATION. Each party (an “Indemnifying Party”) will defend, at its expense, any action brought against the other party (an “Indemnified Party”) by a third party to the extent that it is based upon a claim for bodily injury, personal injury (including death) to any person, or damage to tangible property resulting from the negligent acts or willful misconduct of the Indemnifying Party or its personnel, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded in final judgment against the Indemnified Party (or are payable in settlement by the Indemnified Party); provided that the Indemnified Party: (i) promptly notifies the Indemnifying Party in writing of the claim; (ii) grants the Indemnifying Party sole control of the defense and settlement of the claim; and (iii) provides the Indemnifying Party, at the Indemnifying Party’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. The Indemnifying Party will have no obligation under this Section to the extent any claim is based on the negligent acts or willful misconduct of the Indemnified Party or its personnel.

9 LIMITATION OF LIABILITY.

9.1 UNLESS OTHERWISE EXPRESSLY STATED HEREUNDER, UNDER NO CIRCUMSTANCES SHALL BLACKWELL OR ANY OF ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY OF THE FOLLOWING: (I) THIRD PARTY CLAIMS; (II) LOSS OR DAMAGE TO ANY SYSTEMS, RECORDS OR DATA OR (III) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR COVER DAMAGES (INCLUDING LOST PROFITS AND LOST SAVINGS), IN EACH CASE EVEN IF BLACKWELL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.2 IN NO EVENT WILL BLACKWELL’S AGGREGATE LIABILITY (INCLUDING, BUT NOT LIMITED TO, LIABILITY FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION AND OTHER CONTRACT OR TORT CLAIMS) ARISING FROM OR RELATED TO THIS AGREEMENT, OR THE USE OF THE BLACKWELL HELIX, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO BLACKWELL OVER THE LAST 12 MONTHS FOR THE SERVICES THAT GIVES RISE TO SUCH LIABILITY.

9.3 CUSTOMER IS SOLELY RESPONSIBLE AND LIABLE FOR THE USE OF THE SERVICES, THE BLACKWELL HELIX AND FOR VERIFYING THE SECURITY, ACCURACY AND ADEQUACY OF ANY OUTPUT FROM THE SERVICES, THE BLACKWELL HELIX, AND FOR ANY RELIANCE THEREON. THE LIMITATIONS OF LIABILITY IN THE ABOVE PARAGRAPHS OF THIS SECTION 9 ARE EACH INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

9.4 Essential Basis. The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including, without limitation, the economic terms, would be substantially different.

10 VERIFICATION. Customer agrees that Blackwell or its designee shall have the right to periodically conduct on-site audits of Customer’s use of the Blackwell Helix. These audits will be conducted during regular business hours, and Blackwell will make reasonable efforts to minimize interference with Customer’s regular business activities. Alternatively, Blackwell may request that Customer complete a self-audit questionnaire in a form provided by Blackwell. If an audit or such questionnaire reveals unlicensed use of the Blackwell Helix, Customer agrees to promptly order and pay for sufficient licenses to permit all usage disclosed.

11 TERM AND TERMINATION

11.1 Term of Agreement. The parties intend for this Agreement to become legally enforceable starting on the Effective Date and shall remain in effect for the later of a period of one (1) year or such longer period of time specified on an Order Form, unless either party terminates it in one of the situations permitting termination as described below. If the Agreement has not been terminated prior to the end of that initial period, the duration of the Agreement will be extended one (1) year at a time, successively, unless either party delivers a notice to the other party at least thirty (30) days prior to commencement of the next extension, stating that it does not wish to extend the duration of this Agreement any longer, or unless during an extension period either party terminates the Agreement in one of the situations permitting termination as described below.

11.2 Termination for Convenience. Customer may not terminate this Agreement or any outstanding Order Form for its convenience.

11.3 Termination for Breach. Either party may terminate this Agreement immediately by providing a notice to the other party if the notified party has failed to perform any material obligation and has not fully cured the failure within thirty (30) days after it has been given an initial notice specifying the breach. Notwithstanding the foregoing, in the event of Customer breach for non-payment, Blackwell may suspend the Services with five (5) days’ written notice, and may terminate the Services with ten (10) days’ written notice. Upon termination by Customer solely due to Blackwell’s material breach, Blackwell will refund to Customer the pro-rata amount of the unused Fees paid for the Services prior to such termination.

11.4 Termination Upon Bankruptcy or Insolvency. Either party may also have the right to terminate this Agreement in the event the other party (i) becomes insolvent, (ii) becomes subject to a petition in bankruptcy filed by or against it that is not dismissed within thirty days of the filing of such petition, (iii) is placed under the control of a receiver, liquidator or committee of creditors, or (iv) dissolves, ceases to function as a going concern or to conduct its business in the normal course.

11.5 General consequences of termination. Effective immediately upon expiration or termination of this Agreement, all access rights and licenses granted under this Agreement will become void, and neither party will have continuing rights to use any Confidential Information of the other party or to exercise any intellectual property rights having been licensed under this Agreement. As soon as can reasonably be accomplished after this Agreement expires or is terminated, or soon at either party’s request, each party will discontinue its use and will return to the other party its Confidential Information. If Customer has payment obligations that have accrued but remain unpaid at the time of expiration or termination, Customer will make payment in full within ten (10) days after the expiration or termination.

11.6 Continuing Force of Certain Provisions. Even if this Agreement expires or is terminated, the Parties agree to remain bound by the provisions of Sections 1, 3, 5, 6, 7.3, 8, 9, 11.5, 11.6, 12 and all warranty disclaimers and use restrictions. The rights and duties created by those provisions will not expire or terminate, but will remain in effect for so long as the provisions themselves expressly state. Each party will retain any claims accrued prior to expiration or termination, such as accrued rights to receive payments from the other party.

12 GENERAL PROVISIONS.

12.1 Legal Compliance; Restricted Rights. Customer shall be responsible for, and agrees to comply with, all applicable laws, statutes, ordinances, regulations and other types of government authority (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, false advertising, privacy and data protection, and publicity) (“Laws”). Without limiting the foregoing, Customer agrees to comply with all U.S. export Laws and applicable export Laws of Customer’s locality (if Customer are not in the United States), and Customer further agrees not to export the Blackwell Helix or other materials provided by Blackwell without first obtaining all required authorizations or licenses. The Services and Documentation are “commercial computer software” and “commercial computer software documentation”, and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction and disclosure of the Services and the Documentation are governed by the terms of this Agreement.

12.2 Relationship of the Parties. Blackwell is performing Services as an independent contractor and nothing in this Agreement will be construed as establishing an employment, agency, partnership or joint venture relationship between Customer and Blackwell or any Blackwell personnel. Blackwell has no authority to bind Customer by contract or otherwise. Blackwell acknowledges and agrees that its personnel are not eligible for or entitled to receive any compensation, benefits or other incidents of employment that Customer makes available to its employees. Blackwell is solely responsible for all taxes, expenses, withholdings and other similar statutory obligations arising out of the relationship between Blackwell and its personnel and the performance of Services by such personnel.

12.3 No Election of Remedies. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will not be deemed an election of remedies and will be without prejudice to its other remedies under this Agreement or available at law or in equity or otherwise.

12.4 Governing Law.

(a) Governing Law; Venue. This Agreement, and any claim, dispute or controversy of whatever nature arising out of or relating to this Agreement, will be governed by the laws of the Commonwealth of Virginia, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding arising from this Agreement must be brought in the state or federal courts located in Fairfax County, Virginia. Each Party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding. Customer expressly agrees with Blackwell that this Agreement shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods.

(b) Equitable Relief. A breach or threatened breach, by either party of Section 6 may cause irreparable harm for which damages at law may not provide adequate relief, and therefore the non-breaching party shall be entitled to seek injunctive relief without being required to post a bond.

12.5 Arbitration.

(a) The parties will try in good faith to settle any dispute within 30 days after the dispute arises. If the dispute is not resolved within 30 days, it must be resolved by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (“Rules”).

(b) The parties will mutually select one arbitrator. The arbitration will be conducted in English in Fairfax County, Virginia, USA.

(c) Either party may apply to any competent court for injunctive relief necessary to protect its rights pending resolution of the arbitration. The arbitrator may order equitable or injunctive relief consistent with the remedies and limitations in the Agreement.

(d) The arbitral award will be final and binding on the parties and its execution may be presented in any competent court, including any court with jurisdiction over either party or any of its property.

(e) Any arbitration proceeding conducted in accordance with this Section 12.5 (Arbitration) will be considered Confidential Information under Section 6 (Confidential Information), including: (i) the existence of, (ii) any information disclosed during, and (iii) any oral communications or documents related to, the arbitration proceedings.

(f) The parties will pay the arbitrator’s fees, the arbitrator’s appointed experts’ fees and expenses, and the arbitration center’s administrative expenses in accordance with the Rules. In its final decision, the arbitrator will determine the non-prevailing party’s obligation to reimburse the amount paid in advance by the prevailing party for these fees.

(g) Each party will bear its own lawyers’ and experts’ fees and expenses, regardless of the arbitrator’s final decision regarding the dispute.

(h) Each party hereto waives its right to trial of any issue by jury.

12.6 Severability. If any provision of this Agreement is held to be illegal or unenforceable for any reason, then such provision shall be deemed to be restated so as to be enforceable to the maximum extent permissible under law, and the remainder of this Agreement shall remain in full force and effect.

12.7 Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for the payment of money) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action.

12.8 Notices. Any notices under this Agreement to Blackwell will be personally delivered or sent by certified or registered mail, return receipt requested, or by nationally recognized overnight express courier, to the address specified herein or such other address as Blackwell may specify in writing. Such notices will be effective upon receipt, which may be shown by confirmation of delivery. All notices to Blackwell shall be sent to the attention of General Counsel (unless otherwise specified by Blackwell)

12.9 Assignment. Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party, provided that no such consent will be required to assign this Agreement in its entirety to a successor in interest in connection with a merger, acquisition or sale of all or substantially all of the assigning party’s assets, provided further, that notwithstanding the foregoing, neither party may assign this Agreement in connection with a merger, acquisition or sale of all or substantially all of the assigning party’s assets or by operation of law if as a result of such merger, acquisition or sale of all or substantially all of the assigning party’s assets, the successor in interest or the assignee is a competitor of the non-assigning party. Any assignment in violation of this Section 12.9 shall be void, ab initio, and of no effect. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by, the parties and their respective permitted successors and assigns

12.10 Further Assurances. Customer agrees, at Blackwell’s request and reasonable expense, to provide reasonable assistance and cooperation to Blackwell and its designees, and to give testimony and execute documents and to take such further acts reasonably requested by Blackwell to acquire, transfer, maintain, perfect, and enforce Blackwell’s intellectual property rights as described in this Agreement.

12.11 Third Party Claims. This Agreement is for the benefit of Blackwell and Customer, and is not intended to confer upon any other person or entity, including without limitation, any current or future reseller, any rights or remedies hereunder. Customer agrees that Customer shall not make any claim, demand, or take any action, or threaten to do the same, against any third party, including without limitation, any of Blackwell’s resellers or distributors, for any actual or alleged breach of this Agreement, and Customer agrees to defend, indemnify and hold harmless Blackwell and its officers, directors, employees, agents, resellers, distributors and subcontractors from any losses, damages, costs, liabilities or expenses attributable to Customer’s breach of this Agreement, including reasonable attorneys fees and costs.

12.12 Entire Agreement. This Agreement, together with all Order Forms, constitutes the complete and exclusive agreement of the parties with respect to its subject matter and supersedes all prior understandings and agreements, whether written or oral, with respect to its subject matter. In the event of a conflict, the terms and conditions of the Order Form will take precedence over the terms and conditions of the Agreement. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties hereto. Amendments or changes to this Agreement must be in mutually executed writings to be effective.

*********