SOFTWARE SUBSCRIPTION AND APPLIANCE SERVICE AGREEMENT

 

 

THIS SOFTWARE SUBSCRIPTION AND APPLIANCE SERVICE AGREEMENT (“Agreement”) is entered into as of the ____ day of ________________, 201__ ("Effective Date"), by and between BARRIER1, LLC, a Minnesota limited liability company (“BARRIER1”), and the customer identified below (“Customer”).  BARRIER1 and Customer may be referred to in this Agreement, individually, as “Party” and, collectively, as “Parties.”

 

WHEREAS, BARRIER1 has developed a proprietary network security solution known as “BARRIER1®” which it proposes to license to Customer pursuant to this Agreement; and

 

WHEREAS, Customer has requested use of BARRIER1 Solution (defined below), through an Application Server (defined below) provided by BARRIER1, all in accordance with the terms and conditions hereof.

 

NOW, THEREFORE, in consideration of the foregoing, and in reliance on the mutual agreements contained herein, the Parties agree as follows:

 

1.                  General.  The terms and conditions of this Agreement apply to the purchase of the products (Products) and services set forth in the quote submitted by Barrier1, or it authorized resellers and accepted by Customer through submission of a corresponding purchase order.  No terms, provisions, conditions, rights, obligations of either party shall have any rights, duties, or obligations to modify this agreement without written and mutual consent regardless of any failure of either party to object to such terms, provision, or conditions after the passing of the product title.

 

2.                  Customer Information.  The customer executing this Agreement must identify an individual from inside its organization to serve as primary contact.  This primary contact will receive all notices related to this Agreement unless BARRIER1 is provided written notice of a change. This contact will receive electronic contractual notices unless “NO” is selected in the following form.

 

 

 

           

Customer Name:

 

Business Identification Number:

 

Address:

 

 

Telephone:

 

Alternative Telephone:

 

Facsimile:

 

Website:

 

Primary Contact &

E-Mail:

 

Electronic Notice Authorization:

 

YES _____          NO _____

 

3.                  Definitions.  All uppercase terms shall have the meanings ascribed below or elsewhere in this Agreement:

3.1.            Appliance” means the computer server and/or other hardware provided by BARRIER1 for the purpose of hosting the Software for use at the Installation Address.

3.2.            BARRIER1 Solution” means the Application Server and the Software.

3.3.            Business Hours” means 9:00 a.m. to 5:00 p.m. CST Monday through Friday, excluding holidays recognized by BARRIER1.

3.4.            Documentation” means all written information relating to the operation and functionality of the BARRIER1 Solution that is in existence or that shall be provided to and/or made available by BARRIER1 to Customer in printed and/or electronic form including, but not limited to, any user manuals, technical manuals, specifications modifications, Updates or bug fixes.

3.5.            Effective Date” means the date on which the BARRIER1 Solution is Invoiced to the purchasing end user.

3.6.            Installed means when the BARRIER1 appliance has been set up by The Barrier Group’s authorized agent and is monitoring the Customer’s computer network.

3.7.            Installation Address” means Customer’s principal place of business.

3.8.             “Software means the BARRIER1 software program(s) as described in the Documentation any Updates which may be provided by BARRIER1 from time to time.

3.9.            Proprietary Rights means any and all proprietary right, title, interest, and benefit (by whatever name or term known or designated), including, without limitation, patents (including without limitation originals, divisional, continuations, continuations-in-part, extensions, foreign applications, domestic applications, utility models and re-issues) and the rights to make, use, sell, practice, and offer for sale and import under patent law, copyrights and the rights to publish, copy, adapt, distribute, transmit, display, and perform under copyright law, moral rights, trade secrets and the rights to use and disclose under trade secret law, trademarks, and similar rights of any type under the laws of any governmental authority, or unfair competition law domestic or foreign, whether now known or hereafter developed.

3.10.        Purchase Order” means a written document, mutually agreed upon and executed by the Parties, as a part of, and per the terms of this Agreement.

3.11.        Support Period means the time period from the Installed date during which Customer has contracted for Support Services under this Agreement, and use of the Software is permitted and BARRIER1 guarantees the accuracy or function of BARRIER1 Solution and provides support for any documented error fixes at no additional cost to Customer.

3.12.        Support Services” means, if purchased by Customer, the services described in Section ‎11.

3.13.        Updates” means any update, modification or new release of the Appliance and/or Documentation that BARRIER1 makes generally available to its customers at no additional cost.

4.                  Title and Risk.  All sales are made F.O.B. Barrier1’s designated manufacturing facility and are final.  Barrier1 title to the Products and the risk of loss of or damage to the Products ordered by the Customer shall pass to customer at time of Barrier1’s delivery of Product to the carrier.

5.                  Software Access/License GrantSubject to the terms and conditions of this Agreement, BARRIER1 grants Customer, on an application server provider/subscription/object code-only basis during the Term (defined below) of this Agreement a non-transferable, non-sublicense able, non-assignable, non-exclusive license to access and use the Software and Documentation at the Installation Address and only for the Authorized Ports and Customer’s internal business purposes (collectively, the “License Rights”).  All rights not expressly granted to Customer herein are expressly reserved by BARRIER1.  Customer’s access to the Software will be subject to the security processes and procedures implemented by BARRIER1 from time to time during the Term of this Agreement, as well as any applicable terms of use, privacy, and security statements as they may be modified from time to time.  SUPPORT SERVICES ARE REQUIRED FOR USE OF THE SOFTWARE.

 

 

6.                  Additional Hardware, Software and Internet Access.  Except as provided herein (i.e., purchase of Appliance), Customer is responsible for any and all telecom services, internet access, hardware and software necessary or helpful for Customer to use the BARRIER1 Solution. BARRIER1 will provide its recommended hardware and software configurations upon request.

7.                  Use of the BARRIER1 Solution.  Customer will only use the BARRIER1 Solution for its lawful, internal business purposes and not for the benefit of any other person or entity, such as providing outsourcing, training or service bureau services.  Customer will not: (a) post or transmit on or through the BARRIER1 Solution any libelous, obscene or otherwise unlawful information of any kind; (b) interfere with, disable, modify, decompile, or reverse engineer the Software in any way; (c) engage in any conduct involving BARRIER1 Solution that would constitute a criminal offense or give rise to civil liability under or violate any local, state, federal or other law or regulation; (d) upload, post, reproduce or distribute to or through the Software any material protected by copyright, privacy, confidentiality, law or otherwise or any other proprietary right without first obtaining written permission from the owner thereof; (e) access unauthorized areas of BARRIER1’s systems; or (f) engage in any hacking, reverse engineering, security breaches or other activity on BARRIER1’s systems.  Customer will cooperate with BARRIER1 in BARRIER1’s investigation and remediation of any security, unauthorized use or misuse issues arising from or related to Customer’s use of the BARRIER1 Solution.  BARRIER1 may terminate Customer’s access to the Software at any time in the event that Customer (i) violates this Agreement, or any applicable BARRIER1 security policy or procedure, or (ii) uses the BARRIER1 Solution for any other purpose than the internal business of the Customer.  BARRIER1 will use its reasonable efforts to notify Customer of any such termination of access. All rights not expressly granted to Customer are reserved by BARRIER1 and its licensors.

8.                  Fees.  

8.1.            Fees Generally.  Customer shall pay to BARRIER1 the server Appliance purchase fee, annual fees, and other amounts, all as set forth in this Agreement.   BARRIER1 shall have the right to increase the License Fee to be paid in any Renewal Term (defined below) upon providing Customer with a written notice setting forth any such increase at least sixty (60) days prior to the commencement of any such Renewal Term.

8.2.            Invoice Disputes.  If Customer disputes the accuracy of any invoice issued by BARRIER1 or its obligation to pay the full amount of any such invoice, Customer will notify BARRIER1 in writing within twenty (15) days after the date of receipt of the invoice, stating in detail the basis of the dispute.  If Customer fails to provide such notification, the invoice will be conclusive evidence of the delivery of goods and/or performance of the services covered by the invoice, Customer's acceptance of such goods and/or services and the obligation of Customer to pay the amount of the invoice in full.

8.3.            Indemnity.   Barrier1 or The Barrier Group shall have no indemnification obligations with respect to any action arising out of the use of any components, products, and or connections to or from Barrier1, or any part thereof. 

8.4.            Late Fees.  Customer will pay BARRIER1 any initial Fees upon execution of this Agreement.  Late payments will bear interest at a rate equal to the lesser of 1.5% per month or the highest legal rate permitted under applicable law.  Customer will reimburse BARRIER1 for all reasonable costs incurred by BARRIER1 in the collection of any payments due under this Agreement, including reasonable attorneys’ fees and costs.

8.5.            Taxes.  In addition to all Fees, expenses or sums due BARRIER1 under this Agreement, Customer will be responsible for paying any assessments, duties, charges, penalties, interest, withholdings or taxes (whether sales, use, excise, personal property or otherwise, but excluding taxes on BARRIER1’s income) payable or required to be collected or paid by BARRIER1 or Customer, which may result from this Agreement.

9.                  Term.  Unless otherwise agreed to by the Parties in writing, the term of this Agreement shall commence on the Effective Date known as “Date of Invoice” and shall terminate on the 1st anniversary thereof, unless terminated earlier as provided in this Agreement (the “Initial Term”).  This Agreement shall thereafter automatically renew for successive periods of one (1) year each (each such period a “Renewal Term”), unless prior written notice is provided by either Party to the other not less than sixty (60) days prior to the termination of the Initial Term or any renewal term.  “Term” means any Initial Term and Renewal Term.

10.              Implementation Plan and Delivery.  Within thirty (30) days after the Effective Date of this Agreement, or as soon as otherwise reasonably practicable, and upon payment of applicable Fees, BARRIER1 shall deliver and install the BARRIER1 Solution at the Installation Address.

8.1       Barrier1 shall have no indemnification obligations with respect to installation requiring more than 20 days due to Act of God, Customer schedule, or Barrier1 schedule.

11.              Support Services.  During the Support Period, BARRIER1 shall provide Customer with:

11.1.        Telephone support, via a toll-free number, for information and problem calls during Business Hours.  Telephone Support Services shall include, but are not limited to, assistance in the ordinary use of the BARRIER1 Solution;

11.2.        BARRIER1 shall provide Software fixes, monitoring, maintenance and all Updates at no additional cost to Customer; and

11.3.        (a) support and assist Customer in the use of the BARRIER1 Solution and to maintain the Appliance to support all updated, new, replacement, follow-on, or next generation operating system versions and releases; (b) provide all labor, parts and Support Services necessary to keep the Appliance in good working order and free from defects in material and workmanship; and (c) provide all labor, parts and Support Services necessary to keep the Appliance in conformance with the Documentation.

12.              Exclusions to Support Services.  The Support Services do not include:

12.1.        Service for any portion of the Appliance or Software that has been modified by someone other than BARRIER1.

12.2.        The correction of any problems caused by the Customer, its agents or independent contractors.

12.3.        Training of the Customer or the correction of any problems caused by the Customer through Customer’s failure to use the Appliance or Software in accordance with its intended and documented design. 

13.              Reinstatement of Lapsed Support Services.  If the Support Services expire or are terminated, and Customer subsequently seeks to reinstate Support Services, Customer shall pay: (a) the cumulative Support Services Fees applicable for the period during which Support Services lapsed; (b) the annual support Fees for the current period; and (c) the then-current reinstatement fee, if any.

14.              Additional Responsibilities of Customer and License Restrictions.  Customer acknowledges that as a condition to the successful implementation of the Appliance and the ongoing functioning of the BARRIER1 Solution in a manner consistent with its intended design, Customer agrees as follows:

14.1.        Customer shall have available the equipment and internet connection described in materials furnished by BARRIER1.

14.2.        Customer shall have and or arranged for available access, testing, and technical support services available for all internet connections. In the event network visibility is not provided, available, or not meeting Barrier1 requirements, Barrier1 and or The Barrier Group shall have no indemnification obligations to return any or all portions of Purchase Order/payment.

14.3.        Customer shall provide BARRIER1 full, free, secure and an “always on” Internet access to the Appliance.  Customer will, at its own expense, provide such Internet access facilities as are reasonably required by BARRIER1 to provide effective Support Services.

14.4.        For services provided on-site the Customer shall provide facilities in which BARRIER1 authorized service personnel shall be able to reasonably and safely perform such on-site services.

14.5.        Customer shall designate one or more of its employees as its principal contact for communicating with BARRIER1 regarding technical issues hereunder.  Customer may change its technical contact(s) from time to time by written notice to BARRIER1.

14.6.        Customer shall not reverse engineer, decompile, disassemble, modify, translate or make any attempt to discover the source code of the Software.

14.7.        Customer shall not rent, lease, sublicense, transfer, distribute, copy or modify the Appliance or any component thereof.

14.8.        Customer shall not have the right to sublicense or sell rights to access or use all or any part of the Software or to transfer or assign rights to access or use the Software, except as expressly provided herein. 

15.              Service Level Standards.

15.1.        BARRIER1 shall cause the Appliance to be accessible to Customer, as specified in the Documentation, except for scheduled maintenance and required repairs and except for any interruption due to causes beyond the reasonable control of, or not reasonably foreseeable by, BARRIER1, including, but not limited to, any Force Majeure Event (as defined in Subsection ‎24.12 below).

15.2.        BARRIER1 may, from time to time, will in its sole discretion install Updates, or modify the Software or any component thereof provided that such Updates shall perform and contain functionality that is equal to or better than the current version of the Software.  In the advent the Update is “Customer Specific” said customer will be notified of such changes.

16.              Cooperation.  Customer acknowledges: (a) that certain services or obligations of BARRIER1 hereunder may be dependent on Customer providing certain data, information, or assistance to BARRIER1 from time to time (collectively, “Cooperation”); and (b) that such Cooperation may be essential to the performance of services by BARRIER1.  The Parties agree that any delay or failure by BARRIER1 to provide services hereunder which is caused by Customer’s failure to provide timely Cooperation reasonably requested by BARRIER1 shall not be deemed to be a breach of BARRIER1’s performance obligations under this Agreement.

 

 

17.              Ownership.

17.1.        Upon payment of applicable Fees, BARRIER1 shall convey good title, free from any claim or encumbrance, to all Appliances to be delivered by BARRIER1 under this Agreement. 

17.2.        Title to the Proprietary Rights embodied in the Software and/or the Documentation shall remain the sole and exclusive property of BARRIER1 and, if applicable, its licensors.  Customer shall not alter, change or remove any proprietary notices or confidentiality legends placed on or contained within the Appliance and/or the Documentation.

17.3.        Trademarks.  Customer acknowledges that the names and marks THE BARRIER GROUP®, BARRIER1®, and INTELLIGENT THREAT MANAGEMENT®, and any other names or marks used by BARRIER1 are trade names, trademarks or service marks of BARRIER1, whether registered or not.  Nothing in this Agreement will give Customer any rights in or to such names and marks, nor any rights to use such names and marks.  Customer will not undertake any actions that may reduce, diminish, eliminate, jeopardize or affect the enforceability or ownership interest of BARRIER1 in such names and marks.

 

18.              Confidentiality

18.1.        Each Party acknowledges that it may have access to information that is confidential to one another during the term of this Agreement.  “Confidential Information” shall mean all information provided by one Party (“Discloser”) to a receiving Party (“Recipient”) pursuant to this Agreement, whether or not marked as confidential, including without limitation: (a) the terms and pricing under this Agreement; (b) technical information not included in publicly distributed user documentation relating to the Appliance; (c) all trade secrets; and (d) non-public information relating to a Party’s employees, finances, costs, services, development plans, customer lists, financial information and any other information disclosed hereunder whether oral or in written, graphic, machine readable or other tangible form which by nature should be deemed confidential.  Confidential Information shall not include information that is: (i) in the public domain at the time of disclosure, or enters the public domain without breach of this Agreement; (ii) known to the Recipient prior to the disclosure, or independently developed by the Recipient; or (iii) obtained by the Recipient in good faith from a third party not under obligation of secrecy to the Discloser.  If Confidential Information is required by subpoena, court order or government requirement to be disclosed, the Recipient shall give the Discloser prompt written notice of such subpoena, court order or government requirement so as to allow the Discloser to have an opportunity to obtain a protective order or prohibit or restrict such disclosure.

18.2.        Each Party agrees, for the term of this Agreement and thereafter, to use the same care and discretion to avoid disclosure, publication or dissemination of the other Party’s Confidential Information as it uses with its own Confidential Information, which shall not be less than a reasonable degree of care.  Each Party will use the Confidential Information of the other Party solely for the purposes for which it was disclosed or otherwise for the sole benefit of Discloser and shall disclose the other Party’s Confidential Information to its employees and agents in a “need to know” basis and will inform such employees and agents by way of policy or agreement that they are bound by confidentiality obligations.

18.3.        The Parties acknowledge and agree that a breach of its obligations under this Section will cause harm to the other Party for which monetary damages are not a sufficient remedy.  In such event of a breach of the obligations under this Section, the Parties understand and agree that the non-defaulting Party shall be entitled to seek from a court of appropriate jurisdiction immediate injunctive or other equitable relief to which it may be entitled under the circumstances in addition to other remedies allowed under this Agreement.

19.              Limited Warranty

19.1.        During the Warranty Period and/or Support Period of this Agreement, BARRIER1 warrants that the BARRIER1 Solution shall operate in a manner consistent with the functional description described in the Documentation.  CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND BARRIER1’S SOLE AND EXCLUSIVE LIABILITY FOR BREACH OF THIS WARRANTY SHALL BE THE REPLACEMENT OF A NON-FUNCTIONING APPLIANCE WITH A FUNCTIONAL APPLIANCE (such replacement Appliance may be A remanufactured Appliance or manufactured using remanufactured components at BARRIER1’s option; Repaired or replaced ProductS will be covered by the same Limited Warranty), THE CORRECTION OF MATERIAL DEFECTS IN THE SOFTWARE WHICH IMPAIR ITS FUNCTIONALITY, OR, SUBJECT TO SECTION ‎21 BELOW, AT BARRIER1’S OPTION, THE REFUND OF FEES PAID BY CUSTOMER.

19.2.        In the event of lapse or termination of Support Services, BARRIER1 warrants to Customer that the Appliances purchased shall be free from defects in materials, design, workmanship and processing for a period of one (1) year from the delivery date. 

20.              Warranty Disclaimers.  EXCEPT FOR THE LIMITED EXPRESS WARRANTY PROVIDED ABOVE, BARRIER1 MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND BARRIER1 SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  Customer acknowledges that no representations other than those contained in this Agreement have been made respecting the BARRIER1 Solution, or services or hardware to be provided hereunder, and that Customer has not relied on any representation not expressly set out in this Agreement.

21.              Indemnification

21.1.        BARRIER1 represents and warrants that BARRIER1 has the authority to grant the License Rights to Customer hereunder.  BARRIER1 shall defend, indemnify, and hold Customer harmless from claims or damages arising out of: (a) the lack of right or authority to license the Software or convey title to the Appliance; and/or (b) infringement of any U.S. copyright, trade secret, or patent known to BARRIER1 as a result of the use of a current, unmodified copy of the Software.  Should the Software become, or in BARRIER1’s opinion be likely to become, the subject of a claim for infringement, then BARRIER1 may, at its option, either (i) procure for Customer the right to continue use, (ii) modify it so that it becomes non-infringing, or (iii) replace the same with a non-infringing replacement of the Software.  If none of the remedies above is reasonably available to BARRIER1, then BARRIER1 will remove the functionality of the Software that is the subject of the claim and shall reimburse Customer for an equitable portion of the license Fees paid to BARRIER1 in connection with that aspect of the Software which is no longer available through this Agreement.  The foregoing is exclusive and states the entire liability of BARRIER1 with respect to infringement claims or claims regarding the misappropriation or violation of any proprietary rights or other rights of third parties.

21.2.        Customer shall defend, indemnify, and hold BARRIER1 harmless from claims or damages arising out of: (a) Customer’s access to or use of all or part of the BARRIER1 Solution which use is unauthorized under this Agreement; and/or (b) the breach of any warranty, representation or agreement made or undertaken by Customer in this Agreement.

21.3.        A Party seeking indemnification hereunder (an “Indemnified Party”) shall give the Party from whom indemnification is sought (the “Indemnifying Party”): (a) reasonably prompt written notice of the relevant claim; (b) reasonable cooperation, at the Indemnifying Party’s expense, in the defense of such claim; and (c) the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle or dispose of any claims if such settlement or disposition arises from or is part of any criminal action, suit or proceeding or contains a stipulation to or admission or acknowledgement of, any liability or wrongdoing (whether in contract, tort or otherwise) on the part of the Indemnified Party, or otherwise materially and adversely affects the Indemnified Party’s rights or interest.  The Indemnified Party shall have the right to participate in the defense at its own expense.

22.              Limitation of Damages; Disclaimer of Incidental and Consequential DamagesBARRIER1’s entire, cumulative liability for money damages arising out of this Agreement and/or the sale the Appliance and/or licensing of the Software shall be limited to Fees paid by Customer under this Agreement for the six (6) months prior to the breach of this Agreement alleged by Customer.  EXCEPT FOR INDEMNITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY THEORY INCLUDING CONTRACT AND TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCTS LIABILITY) FOR ANY INDIRECT, SPECIAL OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF THE PARTY CAUSING SUCH DAMAGES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

23.              Termination.  This Agreement may be terminated prior to the expiration of its Term pursuant to any of the following provisions:

23.1.        Breach of Agreement.  Either Party may terminate this Agreement by delivery of written notice to the other Party if the other Party breaches any of the terms and conditions of this Agreement; provided, however, if the breach is curable such notice shall not be effective unless and until such breach remains uncured for a period of thirty (30) days after delivery of such notice and ten (10) days in the event of non-payment of Fees).

23.2.        Insolvency.  Either Party may terminate this Agreement effective immediately upon delivery of written notice to the other Party, if the other Party: (a) ceases to actively conduct its business; (b) files a voluntary petition for bankruptcy or has filed against it an involuntary petition for bankruptcy; (c)  makes a general assignment for the benefit of its creditors; or (d) applies for the appointment of a receiver or trustee for substantially all of its property or assets or permits the appointment of any such receiver or trustee who is not discharged within thirty (30) days of such appointment.

23.3.        Effect of Termination; Return of Materials.  Within ten (10) days of the expiration or termination of any Software license granted to Customer, Customer shall return to BARRIER1 any materials provided by BARRIER1 including, without limitation, the Documentation, excluding any Appliances for which Customer has purchased.  In the event this Agreement is terminated by either Party for any reason whatsoever, and upon the request of the Discloser, each Recipient will return or irretrievably destroy all Confidential Information of the Discloser, that it has in its possession, including any information stored on its own equipment, and upon request, provide the Discloser with an officer’s certificate attesting thereto.  Customer will remain obligated to pay for all undisputed Fees and expenses incurred prior to the effective date of termination and early termination fees, if any.   Upon termination of this Agreement to the License Rights for any reason, Customer will immediately terminate access to all Software and/or BARRIER1’s computer systems or networks to which Customer has access.  During the term hereof, and upon termination of this Agreement, each Party agrees not to intentionally act, or cause a third party to act, in any way that it will disparage or otherwise damage the reputation or goodwill of the other Party, or the other Party’s products and services.

24.              Miscellaneous.

24.1.        NoticesAll notices hereunder shall be in writing and mailed to the following address:

If to BARRIER1:                   BARRIER1, LLC

1400 Sunfish Lake Blvd. N.W.

Suite 201

Ramsey, MN 55303

FAX: (763) 421-6454

 

If to Customer:                       ________________________

                                                ________________________

                                                ________________________

                                                FAX:___________________

 

Such notice shall be mailed postage prepaid, registered or certified mail, return receipt requested.  Any notice shall be deemed to be received on the date of its mailing.  References to “writing” or “written” in this Agreement will be deemed to include an electronic mail message that is sent to the primary contact e-mail address indicated in this Agreement using standard internet protocols and whose receipt is confirmed by the recipient to the sender.

24.2.        Promotion.  Customer and BARRIER1 each agree to submit to the other party for review and approval prior to issuance, publication, or dissemination any publications, advertisements, press releases or other materials that may use or display the trade names or trademarks of the other party or otherwise identify the other party, and no such publication, advertisements, press releases or other materials will be issued, published, or disseminated without prior review and written approval.  Notwithstanding the foregoing, BARRIER1 will have the right to identify Customer as a user of the Software in its promotional and marketing materials.

24.3.        Export.  Customer will not export the Software from the United States without the prior written authorization of BARRIER1 and compliance with applicable export laws.

24.4.        U.S. GOVERNMENT RIGHTS. The Software licensed under this License Agreement is "commercial computer software" as the term is described in 48 C.F.R. 252.227-7014(a)(1).  If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 48 C.F.R. 12.211 (Technical Data) of the Federal Acquisition Regulations ("FAR") and its successors. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement ("DFAR") and its successors.

24.5.        Assignment.  Customer shall not assign this Agreement or any right or interest under this Agreement, nor delegate any obligation to be performed under this Agreement, without BARRIER1’s prior written consent, which consent shall not be unreasonably withheld.  BARRIER1 may assign this Agreement, or any rights or interest hereunder, to any purchaser of all or any substantial part of BARRIER1’s business or assets (by merger, sale of assets, acquisition of stock or otherwise) without the consent of the Customer, and this Agreement may otherwise be assigned by BARRIER1 only upon thirty (30) days’ notice to Customer.  Any attempted assignment or delegation in contravention of this Section shall be void and ineffective.

24.6.        Survival.  The terms of Sections 5, 6.3, 6.4, 11, 15 - 20, 21.3 and 22 and other Sections which by their nature are intended to extend beyond termination shall survive expiration or termination of this Agreement.

24.7.        Validity.  If any part of this Agreement shall be determined to be invalid or unenforceable by a court of competent jurisdiction or by any other legal constituted body having the jurisdiction to make such determination, the remainder of this Agreement shall remain in full force and effect.

24.8.        Governing Law and Jurisdiction.  This Agreement shall be deemed to have been made in the State of Minnesota and shall be governed by, construed and interpreted in accordance with the laws of the State of Minnesota, without giving effect to conflict of laws provisions.  With respect to any dispute, controversy or claim arising out of or relating to this Agreement or the relationship between the Parties, the Parties agree and consent to jurisdiction of and exclusive venue in a court of competent jurisdiction in Hennepin County, Minnesota.

24.9.        Attorney Fees; Remedies Upon Breach.  In all disputes and matters whatsoever arising under, in connection with, or incident to this Agreement, the Parties agree that the prevailing Party will be entitled to recover its reasonable attorneys’ fees, court costs and other legal expenses from the other Party.  In the event of breach by either Party under this Agreement, the aggrieved Party will be entitled to exercise any and all rights and remedies as will be available to it at law or in equity.  The aggrieved Party may exercise remedies concurrently or separately, and the exercise of one remedy will not be deemed either an election of such remedy or a preclusion of the right to exercise any other remedy.

24.10.    Entire Agreement.  The Parties agree that the terms and conditions of this Agreement are the result of negotiations between the Parties and that this Agreement shall not be construed in favor of or against any Party.  Any pre-printed terms and conditions on any document that Customer regularly uses with its other vendors will be null and void and of no consequence whatsoever in interpreting the Parties' legal rights and responsibilities as they pertain to any of the contemplated goods and/or services provided hereunder.  Article and Section headings are provided for convenience only and are not to be used to construe or interpret this Agreement.  The words "include" or "including" used in this Agreement, whether capitalized or not, will be deemed to be followed by the words "without limitation."  This Agreement includes any properly executed attachments, including, but not limited to, exhibits, addenda, schedules, or statement(s) of work now or hereafter attached hereto.  Further, the Parties agree that the recitals contained herein are specifically incorporated into this Agreement by the reference herein. In addition, this Agreement constitutes the exclusive and entire agreement between the Parties with respect to its subject matter and as of its date supersedes all prior or contemporaneous agreements, negotiations, representations and proposals, written or oral, relating to its subject matter.  Neither Party will be bound or liable to the other Party for any representation, promise or inducement made by any agent or person in the other’s employ that is not embodied in this Agreement. 

24.11.    Modification and Waiver.  No purported amendment, modification or waiver of any provision hereof shall be binding unless set forth in a writing signed by both Parties (in the case of amendments and modifications) or by the party to be charged thereby (in the case of waivers).  Any waiver shall be limited to the circumstance or event specifically referenced in the written waiver document and shall not be deemed a waiver of any other term of this Agreement or of the same circumstance or event upon any recurrence thereof. Any terms contained in an exhibit, attachment, or mutually executed addenda hereto, that may be contrary to, inconsistent with, or in addition to the terms and conditions contained in this Agreement, will be governed, interpreted, and construed by the terms of the applicable exhibit, attachment, or amendment solely with respect to the subject matter of such exhibit, attachment, or amendment.  

24.12.    Force MajeureBARRIER1 shall not be liable to Customer for any delay or failure of delivery or other performance caused in whole or in part by any event, occurrence or contingency beyond BARRIER1’s reasonable control, including without limitation, acts of God, acts of any government or any agency or subdivision thereof or shortage or inability to secure labor, fuel, energy, raw materials, supplies or machinery at reasonable prices from regular sources (each a “Force Majeure Event”).

24.13.    No Third-Party Beneficiaries.  Customer and BARRIER1 intend that this Agreement will not benefit or create any right or cause of action in or on behalf of any person or entity other than the Parties.

24.14.    Consents.  Except as expressly agreed by the parties, or as otherwise provided in this Agreement, wherever this Agreement requires either Party’s approval, consent or satisfaction, such approval, consent or satisfaction may not be unreasonably or arbitrarily withheld or delayed.

24.15.    Corporate Authority.  The persons executing this Agreement on behalf of the Parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said Parties and that by so executing this Agreement the Parties hereto are formally bound to the provisions of this Agreement.

24.16.    Counterparts.  This Agreement may be executed in counterparts each of which shall be deemed an original but all of which shall constitute one and the same instrument.

 

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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.

 

 

BARRIER1, LLC

 

 

By: _______________________________

Its:________________________________

 

 

 

CUSTOMER

 

 

By:________________________________

Its:________________________________

 

 

 

#802676_3

 

EXHIBIT A

 

Fees and Other Payment Terms

 

[STAPLE/ATTACH]