MSAB Terms & Conditions of Sales

Terms of Pricing and Payment

For the license to the Software for the defined period, Customer agrees to pay MSAB the fees as outlined in the applicable quotation, purchase order, or invoice. Payment is due prior to shipping unless other terms have been agreed and specified in the purchase order.

The license fee provided to use the Software shall also include the right to make use of the Hardware needed to access the Software as provided by MSAB.

Fees for installation and/or training courses are in addition to the license fee provided above and must be paid prior to execution of installation and/or attendance of training, as applicable.

All prices and payments shall be in the currency stipulated in the applicable quotation, purchase order, or invoice in immediately available funds and without any set-off or deduction.

All payments are to be made to MSAB by way of wire transfer, credit card or by check made payable to MSAB with reference to the corresponding quotation, purchase order, or invoice number.

All invoices shall be deemed accepted and approved unless an objection is made within 8 days from the invoice date. Any amount not paid when due shall accrue interest at a rate of the lesser of (i) 10% per annum; or (ii) the greatest amount allowed by applicable law. Customer shall also be responsible for reasonable administrative, legal, and court costs incurred by MSAB in collecting late payments and late payment charges.

All prices quoted or set forth in a purchase order or invoice exclude transportation, insurance, VAT, and other taxes or duties now in force or hereafter enacted. Customer agrees to pay, in addition to the prices quoted or invoiced, all taxes, fees, or charges of any nature whatsoever (including but not limited to withholding taxes and business taxes, imposed by any governmental authority on, or measured by, the transaction between buyer and MSAB) excluding taxes based on MSAB’s income. If MSAB is required to collect or withhold the foregoing, the buyer will pay such amounts unless the buyer has provided MSAB with a valid tax exemption certificate authorized by the appropriate taxing authority.

All quoted prices herein are confidential and shall remain valid for 30 days from the specified submission date. MSAB reserves the right to adjust prices after the expiry of such 30-day period.

Fees may be increased by MSAB after the Initial License Period, which is defined in the applicable quotation, invoice, or purchase order. Upon notice to the Customer, fees may be increased due to inflation or for any other reason in MSAB’s sole discretion.

MSAB Terms & Conditions for Training Courses

Open Training Courses

MSAB is passionate about training and that passion shows in the quality of our training courses and the student feedback we receive. These training terms and conditions apply to the training services we offer to you such as Open training courses, Onsite training courses, Online training courses (Instructor Led or On-demand training) and any customer specific training that you and/or your organization have registered for in MSAB Customer Portal or booked through contacts with us.

These training terms and conditions may be supplemented by additional terms, policies and instructions applicable for a particular training course as further described in the MSAB Customer Portal or otherwise notified by us. Supplemental terms may relate to prerequisites on onsite-venues, IT infrastructure, sanitizing equipment and participation rules to ensure a safe training environment for the students and the Instructor. Supplemental terms also apply for Train-the-Trainer packages that we offer.

By completing a registration or submitting a Purchase Order you agree to these training terms which will bind you and, if you purchase training services on behalf of your employer or principal organization (“Organization”), the Organization. You represent and warrant that you have the right, power and authority to act on behalf and bind your Organization to the terms of these Training Services.

Prior to attending a training course please make sure to regularly check the MSAB Customer Portal or any communication from us about changes or updates that apply to your training event.

Any material, documentation and instructions that we provide to you as part of the training services (“Training Material”) are intended for internal, non-commercial use only by you within your organization (the “Purpose”) and subject to compliance with these training terms and conditions you are granted a limited, revocable, non-exclusive, non-transferable right and license to use the Training Material strictly for the Purpose. The Training Material may not be copied, reproduced, amended, rented, distributed, published, displayed or transmitted without the prior consent of MSAB. MSAB shall retain ownership of all right, title and interest to the intellectual property rights, including copyright and any MSAB confidential and/or proprietary information, contained in the Training Material. Additional restrictions, notices and disclaimers may apply regarding the Training Material that you obtain as set out in the material.

As part of the training services we may provide you the option to access third party software and tools. You acknowledge and agree that MSAB shall have no liability whatsoever arising from or relating to your use of such third-party software and tools. Further, the training services are provided “AS IS” without warranties of any kind. To the maximum extent permitted by applicable law, MSAB shall not be liable for damages of any kind including without limitation direct, indirect or consequential damages that may result from the training services. In no event shall MSAB’s liability to you, your Organization or any other party exceed the fees paid for the training services.

Training Services are made subject to any applicable laws, regulations, orders or other restrictions on the export of products, technology or information which may be imposed from time to time. MSAB reserves the right to cancel registrations or attendance from persons not entitled to participate or deemed to be unsuitable due to lack of technical qualifications. Such determination will be made at MSAB’s sole discretion.

Open Training Courses

Open training courses are those training courses that you may reserve and attend.

Advance registration is required for all Open training courses and each training course is subject to a minimum number of students registered in order to proceed.

Please do NOT commit to any travel or accommodation plans until 30 days before the course is due to commence.

On the rare occasions we cannot secure the minimum student numbers, we aim to notify you at least 30 days before, if that course is cancelled. Thus, if you have not heard anything from us after that point, you can be confident that the course will take place and make your travel arrangements.

Payment for training must be made a minimum of 30 days before attending the course.

Cancellations of course bookings must be made in writing at least 14 days before the start of the course. If a cancellation is made less than 14 days before the start of the course, then no refund will be made. However, there is no charge if a substitute person from the same Organization wishes to replace the original named student.

Cancellation fees apply as follows to Open training courses:
– Within 8 weeks of the event    = 25% of fee paid
– Within 4 weeks of the event    = 50% of fee paid
– Within 3 weeks of the event    = 75% of fee paid

In the scenario when a student has to cancel due to circumstances outside the control of the student and his/her Organization, and such circumstances could not reasonably have been foreseen at the time of the registration, MSAB will, where possible, allow the student to re-schedule to an alternative course within a 12 month period without any cancellation fee or other penalty. Any such request by a student to re-schedule shall be made at least 14 days before the start of the course. If the re-scheduled class is not taken within 12 months, the booking is lost and no refund will be offered.

MSAB reserves the right to cancel an open training course at any time for any reason without liability. In these circumstances MSAB shall inform the student of such cancellation and offer the students an alternative date or a full refund.

Onsite Training Courses

Onsite training courses are those courses which may be booked by customers for dedicated training of their own staff as well as those courses which are not open to all customers.

As these courses are scheduled specifically for an organization, the terms and conditions vary from the Open training courses with regard to the following points:

Details of the training location, course content and the number of students to be trained must be agreed upon with MSAB.

A Purchase Order for the Onsite training course must be placed with MSAB a minimum of 30 days before the course is due to commence.

Once a date for delivery of the Onsite training course has been agreed and a Purchase Order has been accepted by MSAB such order shall be non-cancellable and non-refundable. In the circumstances where a customer within 30 days before the start of the Onsite training course requests to change or postpone a date for delivery of the course, MSAB reserves the right to refuse or alternatively request additional fees to be paid by the customer to cover for administration costs including rescheduling transportation, shipping and accommodation for the Instructor.

MSAB reserves the right to request payment in full in advance before the Onsite training course commences, depending on the location, customer and circumstances of the booking in MSAB’s sole discretion.

It is the responsibility of the customer to assist MSAB to enter the territory where the Onsite training course is being held, by providing the correct visa permissions and also to aid with customs clearance for MSAB technical equipment required for the course.

MSAB cannot be held responsible for any delays to the Onsite training course caused by customs and border issues beyond MSAB’s reasonable control which the customer had failed to advise MSAB about. In such circumstances, no refunds will be given.

If, on commencement of the Onsite training course, the Instructor finds that the classroom location is not suitable or the number of students is more than was expected to be trained, then MSAB reserves the right to refuse to deliver the training, until the matter is resolved to the satisfaction of the Instructor and MSAB.

MSAB shall not be liable for any loss or damage which may be suffered by the customer as a direct or indirect result of MSAB being prevented or delayed in the delivery of training by reason of any circumstances whatsoever outside the control of MSAB, including circumstances related governmental restrictions and instructions on travelling and/or the pandemic .

Travel costs and expenses for MSAB are included in the price. Any exception will be notified to you beforehand.

Online Training Courses

Online training courses are courses which you can access and complete online. There are many ways in which we offer Online training courses. Some courses are Instructor-led where you live online can interact with the Instructor remotely. Others are prerecorded On-demand training where you can complete the course at a time and place you choose. Some customer specific training may also be conducted as an Online training course.

You will typically receive MSAB Training Material and any associated equipment beforehand to be used during the course. For some Online training courses MSAB may provide a restricted possibility of downloading Training Material.

Internet access is needed to participate in Online training. Any additional technical requirements that apply for a particular Online training course are set out in the MSAB Customer Portal or otherwise notified by us.

Once the registration, booking or Purchase Order for Online training course is received, there are no refunds or cancellation rights.

Payment for Instructor-led Online training courses must be made a minimum of 30 days before attending the course.

Access to Online on-demand training will be provided typically 24 hours following payment. Access will last for the duration as detailed in the MSAB Customer Portal, Purchase Order or otherwise agreed.

Unless agreed by MSAB in advance, you may not allow anyone else to access the Online training courses. Please contact MSAB if a substitute person from the same organization wishes to replace the original named student.

END USER LICENSE AGREEMENT FOR MICRO SYSTEMATION FORENSIC PRODUCTS

IMPORTANT – READ CAREFULLY: MICRO SYSTEMATION AB (“MSAB”) IS WILLING TO LICENSE THE MSAB PRODUCT(S) TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS LICENSE AGREEMENT. PLEASE READ THE FOLLOWING TERMS CAREFULLY. DOWNLOADING, OPENING THE PACKAGE CONTAINING AN MSAB PRODUCT, INSTALLING, OR OTHERWISE USING THE PRODUCT WILL INDICATE YOUR ASSENT TO THE FOLLOWING TERMS AND CONDITIONS (“EULA”). IF YOU DO NOT AGREE TO THESE TERMS, THEN MSAB IS UNWILLING TO LICENSE THE PRODUCT TO YOU AND YOU MUST RETURN ALL MSAB SOFTWARE, HARDWARE, AND MATERIALS TO MSAB.

1. Grant of License

Your ability to agree to this EULA with MSAB and use the software, hardware, materials and accompanying documentation associated with one or more of the MSAB products listed on Appendix A (as may be amended from time-to-time by MSAB) (hereinafter the “Product”), is conditioned upon you agreeing to business terms with MSAB to acquire a right to use the Product and payment of all applicable fees associated with the Product. Except as otherwise expressly indicated herein, references to “you” or “user” mean the individual end user licensee of the Product and, if applicable, said licensee’s employer or principal organization on whose behalf said licensee purchases and/or uses the product (“Organization”). If you, the individual end user, purchase and/or use the Product on behalf of an Organization, such Organization shall be bound to this EULA and liable for any breach by you. You, the individual end user, represent and warrant that you have the right, power, and authority to act on behalf of and bind your Organization to the terms of this EULA. Subject to the foregoing, your use of the Product shall be subject to the terms and conditions of this EULA including the grant of license below.

Conditioned on your continued compliance with the terms and conditions of this EULA, MSAB grants you a personal, revocable, limited, non-exclusive, nontransferable license to use the Product only for the purposes for which MSAB has permitted, which use you must carry out at all times in compliance with all applicable laws, and only during the term of its license agreement with you. This Agreement grants a license to (a) use a single instance of the Product subject to the permissible number or copies corresponding to your payment of all applicable fees, on a non-sublicensable basis, (b) make a single copy of the user manual and phone manual for internal business use only, and (c) download, install, and use all Product upgrades provided to you by MSAB which shall be governed by the terms of this EULA.  Any rights granted hereby are licensed and not sold or otherwise transferred or assigned to you or any third party.  MSAB also reserves the right to change or modify the Product in its sole discretion. You are solely responsible at all times for ensuring that your use of the Product is in compliance with all applicable laws.

This EULA incorporates by reference as if fully set forth herein the final quotation, executed by you and MSAB, by which MSAB offered to sell you the Product at a specific price pursuant to specific terms (the “Quotation”). To the extent there is a conflict between this EULA and the Quotation the terms of the Quotation shall control.

You acknowledge that a breach by you of this EULA may cause MSAB irreparable harm, the extent of which is not readily calculable as money damages. Accordingly, in addition and without prejudice to any other remedies available to MSAB at law or in equity, MSAB shall be entitled to seek equitable relief in any jurisdiction against your actual or threatened breach of this EULA, including temporary or permanent injunctive relief, to protect its interest herein, without the necessity of posting a bond or other security.

2. Ownership

Ownership of the Product and any related intellectual property rights therein shall remain at all times with MSAB.  You have no ownership rights in the Product.  Rather, you have a license to use the Product as long as this EULA remains in full force and effect.  Other than as expressly set forth herein, nothing in this EULA shall be construed as granting any right or license to you under or with respect to any patent, copyright, trademark, trade secret or other intellectual property of MSAB.  Except as set forth herein, any other use of the Product by any other person or entity is strictly forbidden and is a violation of this Agreement. The Product contains material that is protected by copyright law, international agreements and other applicable laws.  You may not remove any proprietary notice of MSAB or any of its licensors from any copy of the Product. During your permitted use of the Product, you may voluntarily provide comments, suggestions, request, recommendations, or ideas for modification or improvement, or any other feedback relating to the Products (including without limitation regarding MSAB training for such Products) (collectively “Feedback”). You hereby irrevocably assign, and agree to assign, to MSAB all right, title, and interest in or to any and all such Feedback, together with all proprietary rights embodied therein and any and all rights to use, disclose, and otherwise exploit all such Feedback for any and all internal, public, commercial, and non-commercial purposes. Upon MSAB’s request, you shall reasonably cooperate with any effort by MSAB to evince, memorialize, perfect, or register the foregoing transfer of right and interest, including without limitation the execution and delivery of any documents reasonably required therefor.

3. Restrictions

Use of the Product (or supporting hardware) requires a copy protection key(s) given to you by MSAB (the “Copy Protection Key”).  The Copy Protection Key enables your use of the Product and is valid for one (1) copy of the Product.  You may only use the Copy Protection Key on the same device in which you use the Product and you may not make the Copy Protection Key or the Product accessible over a public or private network. You may not publish, display, disclose, sell, rent, lease, modify, store, loan, distribute, or modify or create derivative works of the Product, or any part thereof, or copy the Product onto any public or distributed network, or delete or change any proprietary notices appearing on the Product including the Copy Protection Key. You may not assign, sublicense, convey or otherwise transfer, pledge as security or otherwise encumber the rights and licenses granted hereunder.  You may not copy, reverse engineer, decompile, reverse compile, translate, adapt, or disassemble the Product, or any part thereof, nor shall you attempt to create source code from the object or executable code for the Product.  You may not market, co-brand, private label, or otherwise permit third parties to link to the Product, or any part thereof.  You may not use the Product, or any part thereof, for the benefit of any other person or entity (except that you may permit use by your contractors to whom you have outsourced your operations that relate to the use of the Product provided they only use the Product for your internal business purposes (on behalf of your business and not the business of another entity).  You may not modify, or create a derivative version of the Product.  Moreover, you may not merge the Product with another program, except as may be specifically described in the accompanying documentation.  Notwithstanding the foregoing, any and all modifications to or customizations, configurations, or derivative versions of the Product are subject to this EULA and MSAB’s ownership rights to and in the Product.  You may not use the Product apart from the devices on which the Product is embedded or made available to you by MSAB.

4. Proprietary Rights

The Product and any and all associated software, hardware, materials, and documentation are “Confidential Information” of MSAB. Unauthorized use by you of the Product, or its associated software, hardware, materials, and documentation will diminish the value of such information and its related rights and will constitute a material breach of this EULA.

The Product may contain Open Source Software. This license does not apply to Open Source Software contained in the Product. Rather, the terms and conditions in the applicable Open Source Software license shall apply to the Open Source Software. If and to the extent there is a conflict between this Agreement and the license terms for any Open Source Software, the Open Source Software license terms control as to the software covered by those terms. “Open Source Software” means any software that is distributed as “free software”, “open source software,” or under a similar licensing or distribution model, including without limitation the GNU General Public License (GPL) (including the GNU Affero GPL License), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), BSD licenses, the Artistic License, the Netscape Public License, the Sun Community Source License (SCSL), the Sun Industry Standards License (SISL), and the Apache License.

The Product may contain software that is otherwise licensed. The names of and terms governing such software are set forth in a text file in the Product titled “Product License Information.” If and to the extent there is a conflict between this Agreement and the license terms set forth in the Product License Information, the Product License Information shall control as to the software covered by those terms.

5. Representations and Warranties

You represent and warrant that: (a) you are authorized to enter into this EULA and perform its obligations; (b) you shall agree to abide by the terms and conditions of this EULA; and (c) the information, reports, and records provided you provide to MSAB in connection with your use of the Product are accurate.  EXCEPT AS SET FORTH IN THIS SECTION 5, TO THE MAXIMUM EXTENT PERMITTED BY LAW, MSAB DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, WARRANTIES OF TITLE, AGAINST INTERFERENCE WITH ENJOYMENT OF INFORMATION, OF NON-INFRINGEMENT, OF QUALITY AND FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY THAT THE INFORMATION IS ACCURATE OR COMPLETE.  MSAB DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PRODUCT WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT THE PRODUCT WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE PRODUCT WILL BE CORRECTED, OR THAT THE PRODUCT IS COMPATIBLE WITH ANY PARTICULAR PLATFORM.  THE ENTIRE RISK AS TO THE AVAILABILITY, QUALITY, AND PERFORMANCE OF THE PRODUCT IS WITH YOU. MSAB IS NOT RESPONSIBLE FOR THE PERFORMANCE OF ANY THIRD PARTY SERVICE OR COMPLIANCE WITH ANY THIRD PARTY CONTRACTS WITH REGARDS TO ANY PRODUCTS, SERVICES OR DATA ACCESSIBLE FROM A WIRELESS PHONE OR ANY OTHER ELECTRONIC DEVICE WITH WHICH THE PRODUCT MAY BE USED OR ACCESSED. FURTHER, MSAB IS NOT RESPONSIBLE FOR YOUR OR A THIRD PARTY´S USE OF ANY PROPRIETARY OR PERSONALLY IDENTIFIABLE INFORMATION OBTAINED OR ACCESSED FROM ANY SUCH DEVICE. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF IMPLIED WARRANTIES SO THEY MAY NOT APPLY TO YOU.  IF THIS EXCLUSION IS HELD TO BE UNENFORCEABLE BY A COURT OF COMPETENT JURISDICTION, THEN ALL EXPRESS AND IMPLIED WARRANTIES SHALL BE LIMITED IN DURATION TO A PERIOD OF THIRTY (30) DAYS FROM THE DATE OF PURCHASE OF THE PRODUCT, AND NO WARRANTIES SHALL APPLY AFTER THAT PERIOD.

6. Limitation of Liability

IN NO EVENT WILL MSAB OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF MSAB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  MSAB’S AGGREGATE LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS EULA OR OTHERWISE WITH RESPECT TO THE PRODUCT AND DOCUMENTATION OR OTHERWISE SHALL NOT EXCEED THE SUM PAID FOR THE PRODUCT AND THE OTHER MATERIAL.  BECAUSE SOME STATES/COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

7. Export Restrictions

THIS EULA IS EXPRESSLY MADE SUBJECT TO ANY APPLICABLE LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT OF THE PRODUCT OR INFORMATION ABOUT SUCH PRODUCT WHICH MAY BE IMPOSED FROM TIME TO TIME.  YOU SHALL NOT EXPORT THE PRODUCT OR INFORMATION ABOUT THE PRODUCT WITHOUT COMPLYING WITH SUCH LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS.  YOU AGREE TO INDEMNIFY MSAB AGAINST ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES, TO THE EXTENT SUCH CLAIMS ARISE OUT OF ANY BREACH OF THIS SECTION 7.

“ISP” IS THE SWEDISH AGENCY FOR NON-PROLIFERATION AND EXPORT CONTROLS, WHICH CONTROLS THE EXPORT OF PRODUCTS THAT MAY HAVE BOTH A CIVILIAN AND A MILITARY USE (“DUAL-USE PRODUCTS”). MANY OF MSAB’S PRODUCTS MAY BE DESIGNATED AS SUCH A DUAL-USE PRODUCT, THUS, MSAB IS OBLIGATED TO COMPLY WITH SUCH ISP REQUIREMENTS. MSAB RESERVES THE RIGHT TO REQUIRE CUSTOMERS WHO PURCHASE A DUAL-USE PRODUCT TO AGREE TO ADDITIONAL RESTRICTIONS ON EXPORT OUTSIDE OF THEIR ORIGINAL NATION STATE.

YOU UNDERSTAND THAT CERTAIN MSAB PRODUCTS MAY ALSO BE SUBJECT TO U.S. EXPORT CONTROLS, INCLUDING THE EXPORT ADMINISTRATION REGULATIONS (“EAR”), ADMINISTERED BY THE U.S. DEPARTMENT OF COMMERCE, BUREAU OF INDUSTRY AND SECURITY (“BIS”). IF YOU PURCHASE MSAB PRODUCTS SUBJECT TO U.S. EXPORT CONTROLS, YOU AGREE TO COMPLY WITH ALL APPLICABLE EAR RESTRICTIONS ON THE END-USE, END-USER, SALE, RESALE, EXPORT AND REEXPORT OF THE PRODUCTS. ACCORDINGLY, IF YOU ARE PURCHASING PRODUCTS SUBJECT TO U.S. EXPORT CONTROLS, YOU ALSO ARGREE THAT MSAB RESERVES THE RIGHT TO REQUIRE YOU TO AGREE TO ADDITIONAL RESTRICTIONS ON END-USE, END-USER, SALE, RESALE, EXPORT AND REEXPORT BEFORE TRANSFER OF THE PRODUCTS TO YOU. MSAB ALSO RESERVES THE RIGHT TO UNILATERALLY TERMINATE ANY PURCHASE AGREEMENT OR OTHER CONTRACT WITH YOU SHOULD MSAB LEARN THAT YOU ARE NOT COMPLYING WITH ANY U.S. EXPORT CONTROLS-RELATED RESTRICTIONS ON END-USE, END-USER, SALE, RESALE, EXPORT AND REEXPORT OF THE MSAB PRODUCTS, WHETHER OR NOT SUCH RESTRICTION WAS SPECIFICALLY REQUIRED BY MSAB.

8. Indemnification

You agree to defend, indemnify, and hold harmless MSAB and all of its affiliates, employees, agents, directors, officers, employees, shareholders, attorneys, successors, and assigns, from and against any and all third party claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and litigation expenses), relating to or arising from your breach of your respective obligations, (including without limitation your obligation to use the Product in compliance with applicable laws), representations, or warranties in the Agreement. You shall use reasonable efforts to cooperate with MSAB in defense of any claim, and You acknowledge and agree that MSAB reserves the exclusive right, in its sole discretion, to participate in any claim and assume, at Your sole expense or such other cost sharing arrangement agreeable to MSAB, the control, defense, and/or settlement of any matter otherwise subject to this indemnification obligation.

9. Termination

This EULA shall continue in effect for as long as you pay all applicable fees owed to MSAB for your use of the Product in a timely manner.  Any outstanding balances owed to MSAB for your use of the Product remaining more than 30 calendar days past due shall give rise to a material breach of the Agreement and MSAB may, in addition to any other remedies available at law or in equity, terminate immediately the right to use the Product.  Termination can be initiated by MSAB in accordance with the foregoing without further notice to you.

You may terminate this EULA at any time by destroying or returning to MSAB all copies of the Product in your possession or under your control including the Copy Protection Key. Your right to use the Product terminates automatically if you violate any part of this EULA.  Upon notification of termination, you agree to destroy or return to MSAB all copies of the Product, including the Copy Protection Key, and to certify in writing that all known copies, including backup copies, have been destroyed.  All provisions relating to proprietary rights shall survive the termination of this EULA.

10. Commercial Software

The Product and its accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, for purposes of Federal Acquisition Regulations (“FAR”) 12.212 and the Defense FAR Supplement (“DFARS”) 227.7202-1, 227.7202-3, and 227.7202-4, and the restrictions set forth in such regulations, and this Agreement shall be deemed to be the license described in such regulations.  Any use, modification, reproduction, release, performance, display, or disclosure of the Product or its accompanying documentation by any agency, department, or entity of the United States Government shall be governed solely by the terms of this Agreement and is prohibited except to the extent expressly permitted by the terms of this Agreement.  The Product and its accompanying documentation are also deemed to be “restricted computer software” for purposes of FAR 52.227-14(g)(3) (Alternate III (June 1987)) and FAR 52.227-19, which clauses are incorporated herein by reference subject to the express restrictions and prohibitions set forth above.

11. Audit and Records.

MSAB shall be permitted to audit compliance with this EULA. You shall keep and maintain for at least five (5) years following the Termination Date accurate books and records to demonstrate compliance with this EULA and make such books and records available as may be requested by MSAB.  MSAB shall have the right to review, upon fourteen (14) days’ notice, or earlier if MSAB has a good faith belief that this EULA has been, or will be breached in any manner, your books and records to verify compliance with this EULA.

12. Duty of Confidentiality.

12.1    Treatment of Confidential Information. MSAB and You may each disclose (the “Disclosing Party”) to the other (the Receiving Party”) business information, documentation, materials, technical data or any other information of a confidential and/or proprietary nature (“Confidential Information) in relation to this EULA. Any Confidential Information that is disclosed by a Disclosing Party to the Receiving Party under this EULA, regardless if the information is in writing, electronic, graphic or oral, and regardless if marked as confidential by the Disclosing Party, shall be protected and kept and maintained in strict confidence by the Receiving Party. The Receiving Party shall protect the Confidential Information from being disclosed to any unauthorized persons, firm or company, by taking all necessary actions and precautions that the Receiving Party takes to protect its own Confidential Information of a similar nature but not less than reasonable care. The Receiving Party undertakes to not disclose or use Confidential Information received by the Disclosing Party for any purpose, except as is strictly necessary for the proper performance of this EULA. The Receiving Party shall be responsible to the Disclosing Party for any failure by any of its officers, directors, employees or agents (collectively “Representatives”) to treat any Confidential Information in the same manner as the Receiving Party is obligated to treat such Confidential Information under the terms of this EULA.

12.2    Exceptions. The restrictions in this Section shall not apply to Confidential Information which; (a) was in the public domain as of the date you entered into this EULA or subsequently enters the public domain other than as a consequence of a breach by the Receiving Party or its Representatives of this EULA or any other agreement with the other Party; (b) is known to the Receiving Party prior to disclosure by the Disclosing Party as evidenced by the Receiving Party’s written records; (c) the Receiving Party receives from any third party lawfully in possession of the same and not under any obligation to the Receiving Party to keep such information confidential and not in breach of any agreement or any confidential relationship; (d) is independently developed by the Receiving Party without reliance upon or use of any portion of the Confidential Information of the Disclosing Party as evidenced by Receiving Party’s written records.

12.3    Compelled Disclosures. In the event that a Receiving Party receives a subpoena or other government process that purports to require the production of any Confidential Information of the Disclosing Party for use in an action or proceeding, the Receiving Party shall (a) promptly inform the party or entity issuing such subpoena or other government process of the existence of this EULA, (b) promptly inform the Disclosing Party of the receipt of such subpoena or other government process and (c) not oppose any effort by the Disclosing Party to quash any such subpoena or other government process. In the event that (i) the Disclosing Party fails to intervene to quash such subpoena or other government process after being given notice and a reasonable opportunity to do so or (ii) such intervention fails or is denied by a court of competent jurisdiction, such Confidential Information may be produced, notwithstanding anything in this EULA to the contrary. In the event that any Confidential Information is ordered produced in an action or proceeding, such Confidential Information shall not lose its confidential status through such use, and the Receiving Party shall take all reasonable and necessary steps to protect the confidentiality of such Confidential Information during such use.

12.4    Ownership. Each Disclosing Party retains all rights in and to its Confidential Information.

13. Privacy.

You are solely responsible for ensuring that you are operating in compliance with all applicable privacy and data security laws. You acknowledge and agree that your use of the Product does not make MSAB a Controller, Processor, Sub Processor, or Service Provider as those terms are defined by various laws that may be applicable to you. An agreement relating to data protection can be agreed separately if applicable. You are advised to seek independent legal counsel to understand your privacy, data security, and other legal obligations.

14. Trial Preparations.

Assistance of any MSAB personnel or representative relating to drafting of witness statements, participation in and/or testimony in preparation for or during a trial or any similar activity, requires a separate agreement between the Parties and is outside the scope of this EULA.

15. Support Package.

MSAB may offer certain support packages, which shall be described in further detail in the Customer Portal, to support the use of certain products including XEC Director (each a “Support Package”). Support Packages will incur additional fees. Details regarding the fees and scope of Support Packages will be included in the applicable Quotation.

16. Additional Terms.

Additional notices, terms, and conditions for Microsoft Windows apply to your use of the Products to the extent such Products contain Microsoft Windows.  Please review or visit such additional terms by visiting www.microsoft.com.  You agree to abide by such other notices, terms, and conditions, as applicable.  If there is a conflict between this EULA and the terms and conditions for Microsoft Windows, MSAB shall resolve any conflict in good faith in its sole discretion but the latter terms shall generally control with respect to your use of Microsoft Windows.

17. General

This EULA shall be construed, interpreted and governed by the laws of the Commonwealth of Virginia, U.S.A. without regard to its conflicts of laws provisions.  The exclusive forum for any dispute arising out of or relating to this EULA shall be the federal or state courts located in Virginia, U.S.A., including the Eastern District of Virginia, with each party agreeing that it is subject to personal jurisdiction in such forum.  This EULA along with any information submitted on the MSAB website related to the purchase of the Product shall constitute the entire agreement between the parties hereto.  If there is any conflict between the terms and conditions of this EULA and the information submitted on the MSAB website, the terms and conditions of this EULA shall control as it relates to use of the Product.  All other conflicts shall be resolved by MSAB in good faith.  This EULA, the rights granted hereunder, and Product shall not be assigned by you without the prior written consent of MSAB.  In the event of such approval, you agree to deliver all copies of the Product to the transferee along with this EULA, and the transferee must accept the terms and conditions of this EULA as a condition to any transfer, and your license to use the Product terminates upon transfer.   Any waiver or modification of this EULA shall only be effective if it is in writing and signed by both parties hereto.  If any part of this EULA is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this EULA shall be interpreted so as to reasonably affect the intention of the parties.  MSAB is not bound by any provision of any purchase order, receipt, acceptance, confirmation, correspondence, or otherwise, unless MSAB specifically agrees to the provision in writing.

Professional Services Terms & Conditions

The following terms and conditions (the or these “Terms”) apply to and govern the provision of Services (as defined below) by Micro Systemation AB and/or its affiliates (collectively, “MSAB”) to you (“Customer”). MSAB and Customer are each referred to herein as a “Party” and collectively, the “Parties”.

1. Services

1.1 Scope of Services. MSAB shall perform the consulting and/or other professional services specified and more fully described in the quote, purchase order, statement of work or other agreement (collectively, the “SOW”) between the Parties for the performance of services (the “Services”) that expressly references these Terms. The Parties acknowledge and agree that (i) the SOW shall be deemed to incorporate the terms and conditions of these Terms, (ii) the terms and conditions of these Terms shall prevail over any inconsistent terms and conditions set forth in the SOW, unless the SOW explicitly provides that a specific provision therein supersedes a specific provision of these Terms, and (iii) the termination of these Terms shall terminate the SOW.

1.2 Delivery and Acceptance. The Services, including any Deliverables (as defined below), shall conform in all material respects to the specifications set forth in the SOW. Customer shall evaluate each Deliverable within the time period specified for such Deliverable in the SOW, or if no such period is specified in the SOW then within fifteen (15) days after delivery by MSAB (in either such case, the “Acceptance Period”), and notify MSAB in writing within the Acceptance Period of any manner in which the Services or Deliverables do not meet the specifications set forth in the SOW. MSAB shall promptly correct any such deficiency which it deems valid and for which it receives written notice within the Acceptance Period. If Customer does not provide such notice within the Acceptance Period, the Services, and any Deliverables, will be deemed accepted.

1.3 Manner of Performance. The Services and all Deliverables relating thereto shall be performed and delivered by MSAB in a timely, professional and workmanlike manner and in accordance with the implementation milestones and work phases (if any) agreed to by the Parties and reflected in the SOW, which may be amended by mutual written agreement of the Parties. MSAB shall have the right to (a) control and direct the means, manner, and method by which the Services are performed, and (b) perform the Services at any place or location and at such time as MSAB may determine reasonable. Unless otherwise agreed to by the Parties, MSAB shall (i) observe the working hours, working rules, and policies of Customer, of which MSAB shall have been advised, while working on Customer’s premises, and (ii) be responsible for all equipment, software, hardware and other materials required by MSAB to provide the Services.

1.4 Customer Obligations. MSAB’s ability to deliver the Services will depend on Customer’s reasonable and timely cooperation and the accuracy and completeness of any information from Customer needed for MSAB to deliver the Services. Customer agrees to ensure access to and the availability of all necessary Customer resources as required by MSAB to perform the Services. Further, Customer agrees to fulfill any of its obligations designated in the SOW (the “Customer Obligations”). MSAB shall be excused from any delay in performance of the Services caused by Customer’s failure to timely complete a Customer Obligation, any act, error, omission or delay by Customer (or by a third party supplier independently hired by Customer) or any other event, act or omission outside of MSAB’s control.

2. Proprietary Rights

2.1 Deliverables. The term “Deliverables” means any projects, reports, analyses, installation, documentation, scripts, code, customizations or other work results that MSAB may conceive, develop, or create in the course or as a result of performing the Services and as specifically set forth in the SOW. MSAB and its licensors, as applicable, shall own all right, title and interest, including without limitation intellectual property rights, in and to (a) all original components of the Deliverables created or developed by or on behalf of MSAB pursuant to its performance of the Services; (b) pre-existing works, instructions, workflows (including sequence of operations described in writing, graphically or in any other form), inventions, technology, data, information and other material incorporated or used in connection with the Deliverables, or otherwise owned, used or possessed by MSAB prior to commencement of the Services; (c) all original works of authorship, inventions, discoveries, ideas, concepts, know-how, processes, instructions, workflows (including sequence of operations described in writing, graphically or in any other form), techniques and other work product developed or created by or on behalf of MSAB pursuant to its performance of the Services; and (d) all derivatives, improvements, enhancements or extensions of the Deliverables (collectively, the “MSAB Materials”). Upon payment of all fees due for the Services, MSAB shall grant to Customer a limited, irrevocable (unless these Terms and/or the SOW are terminated by MSAB for cause pursuant to Section 8.2), non-exclusive, non-sublicensable, non-transferable, worldwide, royalty-free and paid-up license to use the Deliverables, together with any (if any) MSAB Materials that are incorporated into the Deliverables, solely for Customer’s internal business purposes, provided that Customer will have no right to use such MSAB Materials apart from the Deliverables or in any other manner (there is for example no right for Customer to disclose, license, transfer or assign MSAB Materials (wholly or partly) to any third party); and further provided, however, that for any Deliverable for which there is a separate EULA that applies pursuant to Section 2.3, that EULA shall control over this Section 2.1. MSAB may include in the Deliverables appropriate proprietary rights legends which may not be removed by Customer. Nothing in these Terms shall convey to Customer any further rights, title, or interest in and to any MSAB Materials or any other MSAB interests, licenses, or rights not specifically granted herein, all of which are reserved by MSAB.

2.2 Customer Property. Customer hereby grants to MSAB a limited, revocable, non-exclusive, non-transferable, and non-sublicensable right and license to use specified Customer property, information, intellectual property rights, software, programming code (source and object), application programs interfaces (APIs), branding, designs, ideas, concepts, processes, methods, documentation, content or materials provided or made available by Customer and/or its suppliers (collectively, the “Customer Property”) in order to perform the Services. Nothing in these Terms shall convey to MSAB any further rights, title, or interest in and to any Customer Property or any other Customer interests, licenses, or rights not specifically granted herein. MSAB agrees that all Customer Property shall remain at all times the property of Customer and/or its suppliers, as applicable. Any use by MSAB of Customer’s trademarks, trade names, service marks, domain names, or logos shall only be with Customer’s prior written permission (which, for avoidance of doubt, may be provided by email or any of the other forms of communication permitted under Section 11.2 below) and in accordance with Customer’s then current trademark usage practices and any quality control measures that Customer has provided to MSAB in writing from time to time. The use of Customer’s trademarks by MSAB and all goodwill attendant thereto shall inure exclusively to the benefit of Customer.

2.3 License to MSAB Products. Customer accepts and agrees to be bound by the applicable license agreements to the MSAB products set forth at www.msab.com/terms or provided to Customer with such products (each a “EULA”) for all instances of such products included with the Deliverables under the SOW. Any acceptance of such EULAs shall be done on behalf of Customer and Customer shall be bound by, and at all times be responsible for maintaining compliance with the terms and conditions of, each such EULA.

3. Confidentiality. The term “Confidential Information” means any and all knowledge, information, materials or data of a Party, whether written or oral, and if written or on electronic media, however produced or reproduced, that is marked as “Confidential” and/or “Proprietary” or which is otherwise reasonably understood to be a valuable, special, or unique asset of a Party, the disclosure of which is or may be damaging or harmful to such Party or its business or interests. With respect to the other Party’s Confidential Information, each Party agrees that it will not, for a period of five (5) years after the date of last disclosure or for so long as such other Party considers information to be Confidential Information (as defined by these Terms), copy, reproduce, publish, sell, use, make any commercial use of, exploit, disclose, or divulge any Confidential Information of the other Party, directly or indirectly, to any other person or entity except: (i) to the extent reasonably necessary for the receiving Party to perform its obligations under these Terms and the SOW; (ii) at the written direction of the disclosing Party; (iii) to the extent necessary to comply with law or the valid order of a court or governmental agency of competent jurisdiction, in which event the receiving Party will promptly notify the disclosing Party (where permissible under law) and, at the disclosing Party’s request and expense, will reasonably assist the disclosing Party with seeking confidential treatment of such information; or (iv) to a Party’s accountants, financial advisors and/or attorneys as part of its normal reporting or review procedures or to enforce its rights pursuant to these Terms. With respect to the other Party’s Confidential Information, each Party further agrees that such Confidential Information will at all times remain the property of the disclosing Party (or its licensors, customers, or suppliers, as applicable) and agrees to take all necessary and appropriate procedures to avoid unauthorized disclosure of Confidential Information. Upon termination or expiration of these Terms and/or the SOW, each Party will destroy and return to the other Party all Confidential Information of such other Party in its possession or under its direct or indirect control and, upon request of the disclosing Party, will provide written confirmation of such destruction or return.

4. Books and Records. MSAB shall maintain reasonable books and records relating to the Services performed under these Terms while such Services are being performed, including, without limitation, records of the time (on an hourly basis) during which MSAB provides the Services and/or travels in connection with the Services in sufficient detail to enable Customer to determine accurately its payment obligations as described herein or in the SOW.

5. Compensation

5.1 Fees. Customer shall pay to MSAB the specified amounts and fees set forth in the SOW (the “Fees”) when due. If the Services are to be performed on a time and materials basis, MSAB shall set forth its rate schedule in the SOW. All Fees payable to MSAB are non-refundable.

5.2 Invoices. Unless otherwise agreed in the SOW, payments for any amounts and Fees owed to MSAB shall be made pursuant to the schedule for payment as identified in the SOW. If no schedule is identified in the SOW, then MSAB shall be paid on a monthly basis for the Services rendered in the prior month upon receipt by Customer of an invoice specifying the Services performed, any specific Fees applicable to such Services and any reimbursable expenses incurred in connection with these Terms in accordance with Section 5.3 below. Payments owed under these Terms will be made in the applicable currency of the location where MSAB performs the Services and, unless otherwise indicated in the SOW, shall be provided to MSAB within thirty (30) days of the receipt of each invoice by Customer. Any amount not paid when due will bear interest until paid at a rate of interest equal to the lesser of one and a half percent (1.5%) per month or the maximum rate of interest allowed by applicable law. Customer shall also be responsible for reasonable administrative, legal, and court costs incurred by MSAB in collecting late payments and late payment charges or in enforcing any of the other provisions of these Terms. All invoices shall be deemed accepted and approved unless disputed by Customer in writing within five (5) business days of Customer’s receipt of the invoice.

5.3 Expenses. MSAB shall be entitled to reimbursement of all out-of-pocket expenses incurred while performing the Services. MSAB shall invoice Customer as set forth herein for expenses incurred as a result of performing Services in accordance with these Terms. Such expenses shall be limited to reasonable out-of-pocket expenses necessarily and actually incurred by MSAB in the performance of the Services.

5.4 Taxes. Customer shall pay, indemnify and hold harmless MSAB from any sales, use, excise, import or export, value-added, or similar tax or duty, and any other tax or duty not based on MSAB’s net income, that is levied upon the Services and/or Deliverables or due to any payment to be made to MSAB pursuant to these Terms, and any penalties, interest, collection costs and withholding costs associated with any of the foregoing items. Taxes, fees and additional costs required to be paid by Customer pursuant to this Section are in addition to, and may not be claimed as a reduction or offset against, any payments otherwise due to MSAB under these Terms. If Customer is required by law to withhold or deduct any withholding taxes from or in respect of any amount payable to MSAB hereunder, then (i) the amount payable hereunder shall be increased to such amount which, after making all required withholdings or deductions of withholding taxes therefrom, will equal the amount payable hereunder had no such withholding taxes or deductions been required; (ii) Customer shall make such withholdings or deductions; (iii) Customer shall pay the full amount withheld or deducted to the appropriate authorities according to applicable laws; and (iv) Customer shall promptly deliver to MSAB a receipt or similar documentation from the appropriate governmental authority evidencing payment of such withholding taxes.

6. Representations and Warranties

6.1 Mutual Representations and Warranties. Each Party represents and warrants that it has the right to enter into these Terms and to perform its obligations hereunder and that each Party has not made and/or will not make any contractual or other commitments which would conflict with the performance of its obligations hereunder.

6.2 Customer Representations and Warranties. Customer represents and warrants that it has all the necessary rights and permissions under applicable law to make use of the Services and Deliverables provided by MSAB and that its use of the Deliverables shall at all times be in accordance with applicable law. Further, Customer represents and warrants that any mobile device or information from any mobile device that is provided to MSAB in order for MSAB to perform the Services hereunder has been obtained and is being provided to MSAB in compliance with all applicable laws of any jurisdiction including, without limitation, the EU Data Protection Directive 95/46/EC and the Fourth Amendment of the United States Constitution, as applicable.

7. Indemnification

7.1 Indemnification by MSAB. MSAB will defend, indemnify and hold harmless Customer, its successors, and permitted assigns, from and against any and all damages, liabilities, judgments, costs and expenses, including reasonable legal fees (“Claims”) arising from any third party claim brought against such persons alleging that the use of the Deliverables as permitted hereunder infringes or misappropriates the intellectual property rights of such third party; provided that Customer (a) promptly gives MSAB written notice of the Claim; (b) gives MSAB sole control of the defense and settlement of the Claim; and (c) provides to MSAB all reasonable cooperation and assistance in connection with the defense and settlement of such Claim, including undertaking actions aimed at the mitigation of damages. In the event of a Claim, or if MSAB reasonably believes any Deliverable may infringe or misappropriate, MSAB may, in its discretion and at no cost to Customer, (i) modify the Deliverable so that it no longer infringes or misappropriates, (ii) obtain a license for Customer’s continued use of the Deliverable in accordance with these Terms, or (iii) immediately terminate the SOW and refund to Customer any prepaid fees for Services not performed as of the effective date of termination.

7.2 Indemnification by Customer. Customer will defend, indemnify, and hold harmless MSAB and all of its affiliates, employees, agents, directors, officers, shareholders, attorneys, successors, and assigns, from and against any and all third party claims, and all damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and litigation expenses) pertaining thereto, relating to or arising from (i) Customer’s use of the Services or Deliverables, (ii) any claim (whether or not filed) that Customer has violated applicable law or infringed upon a third party’s right of privacy or (iii) a breach by Customer of these Terms, the SOW or any other agreement between MSAB and Customer. Customer will not settle any such claim without MSAB’s prior express written consent. MSAB may participate in the defense or settlement of any such claim, at its own expense, with counsel of its choice.

8. Term and Termination

8.1 Term. Unless terminated earlier as set forth herein or as otherwise agreed to by the Parties, the term of these Terms will commence as of the effective date of the applicable SOW and continue in full force and effect thereafter unless and until the SOW is terminated or expires in accordance with its provisions or, if no termination or expiration is provided for in the SOW, upon completion of the Services.

8.2 Termination. MSAB may terminate these Terms or the SOW for convenience or for cause at any time immediately upon written notice to Customer. Customer may terminate these Terms and the SOW only in the event that MSAB breaches a material term of these Terms and has not cured such breach within thirty (30) days of written notice of the breach by Customer (or such other commercially reasonable period agreed upon by the Parties).

8.3 Effect of Termination. Within thirty (30) days of the termination of these Terms or the SOW, Customer shall pay MSAB for all amounts due for Services or Deliverables completed and delivered and expenses incurred by MSAB as of the termination date and pro-rated Fees for Services or Deliverables in process but not yet completed or delivered as of the termination date. Upon MSAB’s receipt of a termination notice from Customer, MSAB shall cease all work under the SOW unless such notice requests that MSAB continue or complete any work in progress. Upon termination of these Terms or the SOW, each Party shall promptly return to the other Party all property of the other Party in its possession or under its control. Upon receipt by MSAB of all outstanding payments due from Customer in accordance with this Section 8.3, MSAB shall deliver to Customer all Deliverables in MSAB’s possession, including any work in progress towards such Deliverables.

8.4 Survival. The Sections of these Terms on Proprietary Rights (Section 2), Confidentiality (Section 3), Indemnification (Section 7), Effect of Termination (Section 8.3), Survival (Section 8.4), Disclaimer and Limitation of Liability (Section 9), Compliance (Section 10) and Miscellaneous (Section 11), as well as Customer’s payment obligations for Fees due and expenses incurred, shall survive the termination or expiration of these Terms.

9. Disclaimer and Limitation of Liability.

9.1 OTHER THAN AS EXPRESSLY SET FORTH HEREIN OR IN THE SOW, THE SERVICES AND DELIVERABLES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SYSTEM INTEGRATION, DATA ACCURACY AND QUIET ENJOYMENT, AS WELL AS ANY WARRANTY RELATED TO THE USE, OR THE RESULTS OF THE USE, OF THE SERVICES, DELIVERABLES OR WORK PRODUCT. MSAB SHALL NOT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR REVENUES, LOSS OF DATA, INTERRUPTION OF BUSINESS, LOSS OF BUSINESS OPPORTUNITY, LOSS OF EQUIPMENT OR SYSTEMS AND COST OF SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF THESE TERMS OR THE SOW, WHETHER OR NOT FORESEEABLE AND EVEN IF MSAB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, THE TOTAL LIABILITY OF MSAB FOR ALL CLAIMS ARISING OUT OF THESE TERMS SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER UNDER THE SOW FOR THE THREE (3) MONTHS PRIOR TO THE EVENT THAT GAVE RISE TO SUCH CLAIM.

10. Compliance. The Services and Deliverables provided hereunder are for Customer’s internal use and not for further commercialization. Customer shall comply with all applicable laws and regulations, including all applicable export control laws, regulations and embargoes, and is solely responsible for obtaining any required export or import authorizations. Each Party will comply with anti-bribery laws and regulations in the countries in which it conducts business under these Terms. Neither MSAB nor Customer will, directly or indirectly, offer or furnish to any foreign government official any bribe, kickback, gratuity, payment, compensation, service or anything else of value in connection with or related to any activity or payment under these Terms. MSAB may suspend its performance under these Terms at any time to the extent required by laws applicable to either Party.

11. Miscellaneous

11.1 Relationship of the Parties. Customer acknowledges that, pursuant to these Terms, MSAB has been retained to act solely as an independent contractor to Customer and will not be treated as an employee of Customer. MSAB will have no right, power or authority to create any contract or obligation, or incur any liability, on behalf of, or binding upon, Customer without Customer’s prior written consent. This Agreement is not intended, and will not be construed, to render Customer and MSAB as partners or joint venturers.

11.2 Notices. All notices required under these Terms shall be in writing and shall be considered given (i) when delivered personally, (ii) five (5) days after mailing, when sent certified mail, return receipt requested and postage prepaid, (iii) the business day after dispatch, when sent via a commercial overnight carrier, fees prepaid, (iv) upon delivery when sent by facsimile transmission confirmed by first class mail, or (v) upon receipt via email if receipt is expressly acknowledge by the receiving Party. All communications will be transmitted to the address of the respective Party set forth on the SOW. Either Party may change its address for notice by providing written notice to the other Party in accordance with this Section.

11.3 Governing Law. This Agreement will be governed by and construed under the laws of the Commonwealth of Virginia, USA, without regard to conflicts-of-laws principles that would require the application of any other law. The exclusive venue and forum for any dispute arising out of these Terms shall be in the state or federal courts located in the Commonwealth of Virginia, USA, and each Party expressly consents and agrees that it is subject to personal jurisdiction in such forum and that venue is proper in these courts in any such action or proceeding. The Party that prevails in any such dispute shall be entitled to an award of its reasonable attorney’s fees and expenses. The Parties expressly disclaim the applicability of, and waive any rights based upon, the Uniform Computer Information Transactions Act (as currently enacted or as may be codified or amended from time to time by any jurisdiction) and the United Nations Convention on Contracts for the International Sale of Goods.

11.4 Force Majeure. Neither Party shall be liable for any failure to perform, or any delay in performing its obligations (other than payment obligations) pursuant to these Terms that arises out of, is caused by or results from acts of God or other circumstances that are beyond its reasonable control. In the event that any such circumstances do arise, occur, or result, the affected Party shall promptly notify the other Party and shall use reasonable efforts to overcome them as promptly as practicable.

11.5 Severability; Waiver. If any provision of these Terms is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of these Terms will remain in full force and effect. Any provision of these Terms held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable. Neither any failure nor any delay by any Party in exercising any right, power or privilege under these Terms or any of the documents referred to in these Terms will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege.

11.6 Entire Agreement; Modification. These Terms, the SOW (including any addenda attached to the SOW) and any EULAs supersede all prior agreements, whether written or oral, between the Parties with respect to their subject matter and constitutes a complete and exclusive statement of the terms of the agreement between the Parties with respect to their subject matter. Neither Party may assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of the other Party. Subject to the preceding sentence, these Terms will apply to, be binding in all respects upon, and inure to the benefit of the successors and permitted assigns of the Parties. These Terms and the SOW may not be amended, supplemented, or otherwise modified except by a written agreement executed by both Parties.

11.7 Government End Users. To the extent that the Deliverables include any MSAB Materials that were conceived, created or developed prior to or independent of these Terms and/or the SOW (collectively, “Independent Materials”), such Independent Materials are developed entirely at private expense and are therefore provided to the United States of America and its respective instrumentalities, agencies, or offices, regardless of form (collectively, the “U.S. Government”) with RESTRICTED RIGHTS and/or LIMITED RIGHTS (as applicable). Use, modification, reproduction, release, performance, display, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (b)(2) of the Technical Data – Commercial Items clause at D.F.A.R.S. 252.227-7015, subparagraphs (b), (c)(2) and (g) of the Rights in Data – General clause at 48 C.F.R. 52.227-14, or subparagraphs (b)(1) and (2) of the Commercial Computer Software License at 48 C.F.R. 52.227-19, as applicable. The Independent Materials are commercial in nature and were not first produced in the performance of any U.S. Government contract. Accordingly, the Independent Materials are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. For any use of the Independent Materials that would require compliance by MSAB with a particular government requirement (whether of the U.S. Government or any other country, state, or other jurisdiction) not identified herein or that would affect MSAB’s rights, the applicable government entity, agency, or office must notify MSAB of said government requirement and obtain a waiver or exemption from such requirements for the benefit of MSAB before any government access to the Independent Materials.