IBERON SOLUTIONS END USER LICENSE AGREEMENT

THIS IBERON SOLUTIONS END USER LICENSE AGREEMENT (THE “AGREEMENT” ) APPLIES TO THE USE OF ANY SOFTWARE, APPLICATIONS, OR HARDWARE PROVIDED DIRECTLY OR INDIRECTLY BY IBERON LLC, A NEVADA LIMITED LIABILITY COMPANY ( “IBERON” ), WITH A PLACE OF BUSINESS AT 10333 RICHMOND AVE SUITE 500 HOUSTON, TX, 77042. THIS AGREEMENT SHALL BE ATTACHED AND/OR MADE PART OF ANY CONTRACT AND BE APPLICABLE TO ANY CUSTOMER PURCHASE ORDER, WITH SUCH IBERON CUSTOMER REFERRED TO HEREIN AS “CUSTOMER” OR “LICENSEE”.

  1. Solutions – Ordering.
    1. Solutions. Iberon licenses its products on a subscription basis. Such products (individually referred to as “Solution” , collectively as “Solutions” , and as further defined below) include:
      1. NCITE Vetting Service – Includes a web service that facilitates performing electronic identity verification and criminal background check inquires using state and federal law enforcement and department of motor vehicle databases.
      2. NCITE Mobile Detective – A mobile device application for running criminal justice inquiries using state and federal law enforcement databases.
      3. NCITE Visitor Management Solution – Combines the use of self-registration kiosks that provide background vetting and issuance of visitor passes, with a website that allows visitor pre-registration and special event registration.
    2. Order Process. Orders for Iberon’s Solutions may be made online or through written Customer Purchase Orders placed directly with Iberon. A Customer Purchase Order becomes part of the contract to which this Agreement applies upon acceptance by Iberon (the accepted order referred to as the “Order” ). The terms of this Agreement regarding the contractual obligations between the Customer and Iberon are not modified by any prime contract. Prime contract commitments are between the Customer and the prime contractor.

    3. Delivery. For downloadable Iberon Solutions, Customer may download the software application from a link provided by Iberon, including from an App Store. For virtual Iberon Solutions, access shall be provided through a password-protected web interface (for example a pre-registration website and ACOP portal as part of the NCITE Visitor Management Solution). For certificate-based software Solutions, Iberon will send the Customer the applicable software libraries, components, object code, and certificates to install (such as is delivered with the NCITE Vetting Service). For leased physical appliances, including the kiosk for the NCITE Visitor Management Solution, Iberon will ship the appropriate hardware with the software pre-installed to the designated installation(s). Delivery occurs when such access to the respective Solution is made available to the installation. Acceptance occurs upon delivery.
  2. Definitions.

    Unless otherwise specified, capitalized terms used in this Agreement will have the meanings attributed to them in this Section 2.

    “Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term "control" (including the terms "controlled by" and "under common control with") means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

    “Claim” means any claim, suit, action or proceeding.

    “Client Software” means the object code versions of the virtual, web-portal, desktop, mobile device, or kiosk-based client software for the licensed Iberon Solution.

    “Designated User” means the number of users for whom Customer has purchased rights to use the Iberon Solution, as set forth on the applicable Order. Designated Users may consist of: (i) Customer’s Personnel, and (ii) individual representatives of vendors and/or service providers of Customer. Designated Users would apply to Iberon’s NCITE Mobile Detective application.

    “Designated Site” means the number of sites for whom Customer has purchased rights to use the Iberon Solution, as set forth on the applicable Order. Designated Sites may consist of a Department of Defense site, or any federal facility. Designated Sites would apply to Iberon’s NCITE Vetting Service.

    “Designated Hardware Device” means the number of hardware devices for whom Customer has purchased subscription-based rights to use the Iberon Solution, as set forth on the applicable Order. Designated Hardware Devices may consist of a kiosk or a server. Designated Hardware Device would apply to Iberon’s NCITE Visitor Management Solution kiosks.

    “Documentation” means Iberon’s standard written materials and specifications for the Iberon Solution licensed by Customer.

    “Effective Date” means the date that Iberon accepts the Order.

    “Government” shall mean the United States of America or any department or agency thereof.

    “Hardware” means computer equipment, if any, leased from Iberon by Customer. For purposes of this Agreement, the kiosks provided as part of Iberon’s NCITE Visitor Management Solution are considered Hardware.

    “Hosted Services” means the remote access and use of an Iberon Solution hosted on Iberon’s servers located in Iberon’s data center and/or one of Nlets’ data centers.

    “Intellectual Property” means all intellectual property and other proprietary rights in any jurisdiction worldwide, whether registered or unregistered, including such rights in and to: (i) trademarks, trade dress, service marks, certification marks, logos, slogans, trade names, brand names, corporate names, assumed names, business names and all other indicia of origin, including the goodwill of the business symbolized thereby; (ii) issued patents and pending patent applications, and any and all divisions, continuations, continuations in part, reissues, continuing patent applications, reexaminations, and extensions thereof, any counterparts claiming priority therefrom, utility models, patents of importation/confirmation, certificates of invention, certificates of registration and like rights; (iii) inventions, invention disclosures, discoveries and improvements, whether or not patentable; (iv) rights in published and unpublished works of authorship, whether copyrightable or not (including databases and other compilation information), copyrights therein and thereto, and registrations and applications therefor, and all renewals, extensions, restorations and reversions thereof; (v) trade secrets (including those trade secrets defined in the United States Uniform Trade Secrets Act and under corresponding foreign Law), processes, techniques, know-how, and confidential and proprietary information (including customer and other personal information) and rights to limit the use or disclosure thereof by any Person; (vi) rights in computer software, including data files, source and object code, application programming, user interfaces, manuals, databases and other software related specifications and documentation; (vii) domain names; (viii) all physical embodiments of any of the foregoing; (ix) all intellectual property rights associated with any of the foregoing; and (x) the right to sue and collect damages for past, present and future infringement of any of the foregoing.

    “License Term” means the subscription period for use of the Iberon Solution, as identified on the applicable Order. Each renewal is a separate License Term, subject to the execution of a new Order.

    “Maintenance Support Services” means the support services provided by Iberon or Iberon designated third-party support provider to Customer in accordance with the applicable Maintenance Support Policy as described in Section 4.

    "Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.

    “Release” means a version of the Iberon Solution for which Iberon charges a separate fee and which shall require the execution of a new or modified Customer Purchase Order.

    “Server Software” means the object code server software versions of the Iberon Solution, as identified on the applicable Order.

    “Solution” means the object code versions of the Iberon product identified on an Order and includes related Server Software, Client Software, Updates, and Documentation.

    “Update” means additions, upgrades, or modifications to the Iberon Solution. Updates do not include Releases.

  3. License Terms.
    1. License Grant. Subject to the terms and conditions of this Agreement, Iberon hereby grants to Customer during the License Term, a non-exclusive, non-transferable and non-sublicenseable license to: (a) use and access the Client Software on supported environments for up to the number of Designated Users, Designated Sites, or Designated Hardware Devices (as applicable); and (b) use, access, and (for Iberon Solutions not hosted by Iberon) copy the Server Software on supported environments for up to the number of copies identified on the Order for Customer’s internal Government purposes.

    2. Hosting.
      1. By Iberon. Hosted Services are provided pursuant to the terms of Exhibit A.
      2. By Customer’s Outsourced Provider. For implementation of the NCITE Vetting Service, if Customer elects to engage its own outsourcing provider (each an “Outsourced Provider” ), then: (i) Customer may sublicense to Outsourced Provider the right to install and operate the NCITE Vetting Service in the form as provided by Iberon, solely for the benefit of Customer and subject to the terms and conditions of this Agreement upon written acceptance from Iberon; (ii) Customer shall be liable for any acts or omissions of Outsourced Provider in violation of this Agreement; and (iii) Customer shall identify in writing to Iberon a single point of contact at Outsourced Provider for any maintenance and technical support matters.
    3. License Restrictions.
      1. Customer shall not directly or indirectly copy, reproduce, modify, translate, reverse-engineer, disassemble, or decompile any Iberon Solution.
      2. Customer shall not directly or indirectly transfer, sell, license, sublicense, outsource (except to an Outsourced Provider as provided in 3.2(b) above), rent or lease the Iberon Solution other than as specified in this Agreement or applicable Order.
      3. Customer is solely responsible and liable for the use of and access to the Iberon Solution by its users and for all files and data transmitted, shared, or stored using the Iberon Solution.
      4. Customer acknowledges and agrees that the licenses granted herein are neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Iberon with respect to future functionality or features.
    4. Ownership. All right, title, and interest, including without limitation to all Intellectual Property rights, in and to the Iberon Solution are the sole and exclusive property of Iberon and, as specifically pertains to software licensed by Iberon and incorporated into Iberon Solutions, its third-party software licensors. Customer shall not remove, and shall reproduce on any permitted copies, all proprietary, copyright, trademark and trade secret notices contained in or placed upon the Iberon Solution. Customer will take reasonable precautions (including the precautions used for Customer's own confidential information) to prevent the unauthorized use or disclosure of the Iberon Solution, the Documentation, or the results of any performance or benchmark tests of the Iberon Solution. Customer will not allow the Solutions or any performance or benchmark test results to be made available to any third party (except for Customer’s third-party Personnel with a need to know) unless Iberon approves that disclosure.

    5. Other Intellectual Property Rights. Intellectual Property conceived or created by one or more employees of Iberon before or during the term of this Agreement (whether or not made in conjunction with employees of Customer or one or more third parties, so long as not based in whole or material part on the Intellectual Property of the other party) shall be the sole property of Iberon and subject to any agreement between Iberon and any third parties involved. There shall be no transfer, assignment or license of any of the Intellectual Property of Iberon without a separately executed written consent or agreement of Iberon ( “Intellectual Property Transfer Agreement” ). Any such Intellectual Property Transfer Agreement must contain the header INTELLECTUAL PROPERTY TRANSFER at the top of each page and be executed by an authorized representative of Iberon and notarized.

      1. Nothing contained in this Agreement shall grant Customer or the Government any license to use the intellectual property developed by Iberon unless it has fully paid the required fees referenced in any Order.
      2. Iberon grants no right or license to use any patent or pending patent other than in conjunction with use of the software licensed under this Agreement.
      3. Other than a license to use software developed by Iberon, no right or title to the Intellectual Property developed, used, copyrighted, or patented by Iberon is conveyed by Iberon to Customer or the Government.
      4. The Government or Customer may periodically make recommendations or suggestions for enhancements or changes to the intellectual property created by Iberon. Any subsequent enhancements Iberon makes based on such suggestions are the sole property of Iberon and no rights of ownership are granted to either Customer or the Government for making such recommendations or suggestions for enhancement in future versions or future products.
    6. Additional Provisions.
      1. For NCITE Vetting Service, software licenses and software libraries provided by Iberon do not include any third party (non-Iberon owned) software licenses required (such as operating system licenses, database system licenses, etc.).
      2. Software provided under this Agreement is RESTRICTED SOFTWARE that was developed at private expense and either is a trade secret, is commercial or financial, and confidential or privileged, or is published and copyrighted. Software, software libraries, and software documentation delivered under this Agreement are all IBERON PROPRIETARY and IBERON CONFIDENTIAL. Third-party software is proprietary and confidential to the company from which it is licensed.
      3. Solutions include access to the Iberon provided vetting engine at the Nlets data center. Certain States may assess connectivity fees, integration fees, or transaction fees to the installation. Iberon is not responsible for payment of these fees or any third-party fees that may be assessed in connection with the use of the vetting engine.
      4. Customer represents that the account information provided upon registration ( “Account Info” ) is accurate, current and complete and that it will maintain Account Info current at all times. Customer is solely liable for use of and access to the account, and Iberon shall not have any liability to Customer for unauthorized access or use of the account. If an employee, agent, consultant and/or independent contractor (collectively referred to as “Personnel,” hereinafter) of Customer sets up an account using an email address with an email domain of an Iberon Solution licensee (e.g. where such agent consultant and/or independent contractor’s employer is already an Iberon Solutions’ licensee), then Customer consents to Iberon’s disclosure of Customer’s usage information to such party.
  4. Maintenance Support Services. The Iberon Solution is provided with standard maintenance under the terms set forth in Exhibit B. As part of Maintenance Support Services, Iberon will make available to Customer all Updates to the supported Iberon Solution that Iberon makes generally available to its other Customers. Subject to Government security requirements, Customer shall provide Iberon access to the Iberon Solution to install such Updates if required by Iberon.

  5. Payment.
    1. 5.1 Automated Reporting for Billing Purposes. Subject to security restrictions requested by Customer and implemented by Iberon, the Server Software and Client Software may be configured to periodically transmit technical data to Iberon. The transmitted information contains aggregate non-personal usage information for each day the Iberon Solution is in use, including but not limited to: (i) the number of and type of messaging senders and recipients, (ii) account usage information, (iii) technical data about messaging transmissions and management; and (iv) the type of Iberon Solution features used and related data. Customer will not in any way attempt to prevent the transmission or delivery of such usage data. Iberon uses such data only for Iberon’s own internal business purposes.

    2. Payment Terms. Unless otherwise agreed to in writing, payment must be received within 30 days of Iberon Solution delivery or the annual renewal date, or authorization/access to use the related software, hardware, or services will be revoked. Iberon does not issue complete or partial refunds of any type, regardless of the cause. All payments are final and non-refundable. Additionally, payments are non-transferrable to other contracts.

  6. Confidentiality.
    1. Confidential Information. Each Party agrees not to use the Confidential Information of the other Party for any purpose other than strictly for the purpose of performing its obligations or exercising its rights under this Agreement. Additionally, except as authorized below, each Party agrees to maintain in confidence and not disclose any Confidential Information acquired directly or indirectly from the other Party. “Confidential Information” shall include, but is not limited to, matters of a technical, financial, commercial, business, or other proprietary nature. The results of any performance, penetration and/or benchmark tests of the Iberon Solution shall be the Confidential Information of Iberon. Confidential Information does not include any information which (a) is or becomes publicly known other than through a breach of this Agreement by the receiving party; or (b) is already known to the receiving party at the time of disclosure as evidenced by the receiving party’s written documentation, provided that it was not previously obtained directly or indirectly by the receiving party from the disclosing party; (c) is lawfully received by the receiving party from a third party having no obligation of confidentiality with respect thereto; or (d) based on documentary evidence is proven by receiving party to have been independently developed by employees of the receiving party who have not had direct or indirect access to, or directly or indirectly received any, Confidential Information under this Agreement; or (e) is authorized in writing by the disclosing party to be released from the confidentiality obligations herein. The Customer may retain such Confidential Information as required by law, regulation or its bona fide document retention procedures for legal, regulatory or compliance purposes; provided however, that such retained Confidential Information will continue to be subject to the confidentiality obligations of this Agreement.

    2. Customer Protected Data. Customer acknowledges that Iberon may need to access files or attachments stored or transmitted with the Iberon Solution as well as other personally identifiable information about any Customer Personnel or persons or entities with whom it conducts business (collectively, “Protected Data” ). By using an Iberon Solution ordered under this Agreement, Customer consents to such use of Protected Data.

  7. Limited Warranties and Disclaimer.
    1. Limited Iberon Solution and Hardware Performance Warranty.
      1. Warranty. Iberon warrants to Customer that during the License Term the Iberon Solution furnished, under normal use, will be free from material damage and defects in materials and workmanship and will operate in substantial conformance with the Documentation provided.
      2. Remedy. Any warranty claim must be made by written notice to Iberon within the applicable warranty period. Iberon’s entire liability and Customer’s exclusive remedy under the warranty in subsection (a) above shall be replacement or repair of the defective Iberon Solution that does not meet Iberon’s limited warranty. Warranties are void if failures are caused in whole or in part by accident, abuse, misuse, or modifications not authorized in writing by Iberon.
    2. Limited Services Warranty. Iberon warrants that for a period of thirty (30) days following installation or other professional services, such services will be provided by Iberon or other third-party service provider in a professional and workmanlike manner consistent with generally accepted industry standards. As Customer’s sole and exclusive remedy, Iberon will, at its sole option and expense, re-perform the services. Iberon’s provision of such remedy is contingent upon Customer’s notice of any alleged breach prior to the expiration of the warranty period.

    3. 7.3 Disclaimer. EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH IN THIS SECTION 7, THE IBERON SOLUTION IS PROVIDED TO THE CUSTOMER “AS IS” AND WITH ALL FAULTS AND DEFECTS OF ANY KIND. THE EXPRESS LIMITED WARRANTIES IN THIS SECTION ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS EXPRESS OR IMPLIED, CONTRACTUAL OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IBERON DOES NOT WARRANT THAT THE USE OF THE IBERON SOLUTION WILL MEET THE CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICE, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, BE UNINTERRUPTED OR ERROR FREE OR THAT ALL NONMATERIAL DEFICIENCIES OR ERRORS ARE CAPABLE OF BEING CORRECTED. IBERON MAKES NO REPRESENTATIONS OR WARRANTIES CONCERNING OTHER PRODUCTS OR SERVICES PROVIDED BY ANY THIRD PARTIES, INCLUDING ANY HOSTED SERVICES PROVIDERS, AND IBERON SHALL HAVE NO LIABILITY WITH RESPECT TO ANY ACT OR OMISSION OF ANY THIRD PARTY SUPPORT PROVIDER OR HOSTED SERVICES PROVIDER. NO HOSTED SERVICES PROVIDER SHALL HAVE ANY AUTHORITY TO BIND IBERON TO ANY TERMS OR CONDITIONS OTHER THAN THOSE EXPRESSLY SET FORTH HEREIN.
  8. Indemnification.
    1. Iberon Indemnity. Iberon will defend Customer from and against any and all third party Claims (other than an Affiliate of Customer) against Customer to the extent that such third party Claim alleges that the Iberon Solution infringes such third-party’s U.S. patent or foreign equivalent existing as of the Effective Date of the applicable Order, or any copyright, or misappropriates any trade secret. Subject to the provision of Section 8.3 hereof, Iberon will pay any costs (including reasonable attorney’s fees) and damages finally awarded or paid in settlement of the Claim provided that Customer will give Iberon: (i) prompt written notice of such Claim, (ii) afford Iberon the opportunity to intervene in any litigation, at its own expense, through counsel of its choosing; and (iii) Iberon shall provide all cooperation and assistance reasonably requested by the Government in the defense of the Claim, at its own expense. Nothing contained herein shall be construed in derogation of the U.S. Department of Justice’s right to defend any claim or action brought against the U.S., pursuant to its jurisdictional statute 28 U.S.C. §516.

    2. Exclusions. Iberon will have no liability for a Claim to the extent it results from: (a) modification of the Iberon Solution made by a party other than Iberon, if the Claim would not have arisen but for the modification; (b) the combination, operation or use of the Iberon Solution with third party data, software, equipment or devices, if such Claim would not have arisen but for such combination, operation or use; (c) Customer’s failure to use updated or modified software provided by Iberon, if use of such updated or modified software or hardware would have resolved the Claim; or (d) compliance by Iberon with designs, plans or specifications furnished by Customer or on Customer’s behalf, if the Claim would not have arisen but for such designs, plans, or specifications.

    3. Remedies. If the Iberon Solution is held or is likely to be held as infringing, then Iberon may (i) replace the Iberon Solution, without additional charge, with a non-infringing product that is at least functionally equivalent; (ii) modify the Iberon Solution to avoid the infringement; (iii) work with the Government to obtain a license for Customer to continue use of the Iberon Solution: or (iv) if none of the foregoing are commercially reasonable, terminate the license for the infringing Iberon Solution and refund a pro rata portion of all fees received by Iberon for the Iberon Solution as depreciated according to U.S. Department of Treasury regulations. Upon such termination, Customer shall uninstall and destroy the nonconforming Iberon Solution and certify in writing that it has done the same.

      THIS SECTION 8 SHALL CONSTITUTE IBERON’S SOLE AND EXCLUSIVE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR A CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.

  9. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE PRODUCTS OR SERVICES SUPPLIED HEREUNDER, WHETHER IN AN ACTION IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. WITHOUT LIMITING THE FOREGOING IN THIS SECTION 9 , IBERON’S AGGREGATE LIABILITY FOR DAMAGES SHALL IN NO EVENT EXCEED THE TOTAL FEES RECEIVED FROM THE LICENSES GRANTED TO CUSTOMER UNDER THIS AGREEMENT IN THE PREVIOUS TWELVE MONTHS FOR THE APPLICABLE IBERON SOLUTION. THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE PRICES AND TERMS OF THIS AGREEMENT WERE MADE IN RELIANCE UPON THE LIMITATION OF LIABILITY SPECIFIED HEREIN, WHICH ALLOCATE THE RISK BETWEEN IBERON AND CUSTOMER.
  10. Term and Termination.
    1. Term. This Agreement commences on the Effective Date and shall continue for the License Term in the applicable Order, unless terminated earlier as provided in this Agreement, the FAR, or the underlying Contract and/or the applicable Order.

    2. Termination for Breach of Agreement. When the end user is an instrumentality of the U.S., recourse against the United States for any alleged breach of this Agreement must be made as a dispute under the contract Disputes Clause (Contract Disputes Act). During any dispute under the Disputes Clause, Iberon shall proceed diligently with performance of this contract, pending final resolution of any request for relief, claim, appeal, or action arising under the contract, and comply with any decision of the Contracting Officer.

    3. Consequences of Termination. Upon termination or expiration of this Agreement, for any reason, all rights granted under this Agreement shall end and Customer will promptly return to Iberon or, at Iberon’s request, destroy, the applicable Iberon Solution and provide Iberon with written certification by an officer of Customer certifying compliance with the foregoing.

  11. Miscellaneous.
    1. Notice. Notices under this Agreement shall be made in writing and delivered via electronic mail, facsimile (with confirmation of receipt), in person, by overnight courier, or by prepaid certified or registered mail, return receipt requested, to a Party at its address set forth on the Order. Notice by mail shall be deemed received five (5) days after deposit in the U.S. mail system, with other notices deemed effective upon receipt.

    2. Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party, provided that either Party may transfer or assign this Agreement without such consent, whether by operation of law or otherwise, pursuant to a merger or other corporate reorganization or the sale of all or substantially all of the assets to which this Agreement relates. Any other purported assignment by Customer shall be null and void. If Iberon becomes a prime contractor with Customer, assignment by Iberon will be subject to FAR 52.232-23 “Assignment of Claims” (Jan. 1986) and FAR subpart 42.12 “Novation and Change-of-Name Agreements” (Sep. 2013). This Agreement shall bind the Parties and their permitted successors and assigns.

    3. Modification, Waiver, and Remedies. No modification, alteration, amendment or addition shall be effective unless made in writing, dated, and signed by a duly authorized representative of each Party. No waiver of any breach hereof shall be held to be a waiver of any other or subsequent breach. Each party’s rights and remedies are in addition to any other rights and remedies provided by law. No choice of any remedy shall constitute an election of remedies.

    4. Force Majeure. Pursuant to FAR 52.212 -4(f), neither Party shall be liable to the other for delays or failures in performance resulting from causes beyond the reasonable control of that Party, including, but not limited to, acts of God, or the public enemy, acts of Government in its sovereign or contractual capacity, fires, floods, epidemics/pandemics, quarantine restrictions, strikes, unusually severe weather and delays of common carriers.

    5. Export. Customer acknowledges that the Iberon Solution is subject to United States laws governing import, export, distribution and use. Customer is responsible for its compliance and the Customer’s Personnel’s compliance with United States laws and regulations and shall not export, use or transmit the Iberon Solution: (i) in violation of any export control laws of the United States, (ii) to any country requiring as a condition of import the disclosure of source code, or (iii) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.

    6. Government Licensing. If the Iberon Solution is accessed or used by any agency or other part of the U.S. Government, the U.S. Government acknowledges that (i) the Iberon Solution and accompanying materials are commercial items as defined in FAR 2.101. Pursuant to FAR 12.211, Technical Data, and FAR 12.212, Computer Software, the Government obtains only the usage rights specifically granted in this Agreement.

    7. Governing Law. This Agreement shall be governed by the laws of the State of Texas, without reference to conflict of laws principles. The parties agree that the Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods will not apply to this Agreement. Only a court of competent jurisdiction can resolve disputes related to this Agreement, and that no employee of either Party will have final interpretive rights with respect to this Agreement. Venue for any dispute hereunder, whether arising in tort or by contract, shall lie exclusively in the state or federal courts of Harris County, Texas.

    8. Severability. If any provision of this Agreement is finally determined to be contrary to, prohibited by, or invalid under federal laws or regulations, the remaining provisions of this Agreement shall remain in full force and effect.

    9. Entire Agreement; Construction. This Agreement constitutes the complete and exclusive agreement between the Parties and supersedes any and all prior communications, representations and understandings, whether written or oral. There are no third-party beneficiaries of either Party. Section headings are for convenience only and shall not affect interpretation of the relevant section.



EXHIBIT A
HOSTING SERVICE LEVEL AGREEMENT

(Applies only if Customer has ordered Hosted Services from Iberon)

  1. Hosting Services Requirements. Customer acknowledges and agrees that it and its Designated Users, Personnel, and other users with access to shared folders and/or workspaces: (i) will not use the Hosted Services to knowingly transmit or store any communications or files that contain malware, constitute spam, are obscene, abusive, harassing, threatening, racist, malicious, illegal, fraudulent, defamatory, libelous, harmful to minors, that violate or infringe the rights of third parties; and (ii) will comply with acceptable use policies no less strict than implemented in Customer’s internal network. Customer represents and warrants to Iberon and its hosting providers that Customer, Designated Users, Personnel, and other users with access to shared folders and/or workspaces have all necessary rights (as may be required by law or policy) to any data and information stored on or sent with the Hosted Services ( “Customer Data” ) and that use of Customer Data as contemplated herein does not knowingly violate any third-party rights. Customer hereby grants Iberon and its hosting providers, subject to Government security requirements, the right to use, copy, cache and transmit Customer Data in conjunction with Customer’s use of the Hosted Services.

  2. Hosting Provider Capabilities. Iberon utilizes secure data centers provided by Nlets. Nlets continually manages risk and undergoes recurring assessments to ensure compliance with industry standards.

  3. Up-Time Commitment. If Customer has elected to utilize Hosting Services from Iberon, then Iberon agrees that Hosting Services will be available 99% of the time, seven (7) days per week, subject to the exclusions below (the “Up-Time Commitment” ).

    Up-Time Commitment shall exclude unavailability of the Hosted Services caused by any of the following

    1. Scheduled, announced downtime for maintenance or unscheduled downtime for emergency maintenance;
    2. Failures of the Internet or failure of other items that are outside Iberon’s reasonable control;
    3. Hardware, communication lines, or application problems (e.g., Internet, Wifi, cellular, ISDN, DSL, etc.) of Customer that prevent/disrupt access;
    4. Customer’s violation of hosting provider acceptable use policies; or
    5. Any downtime the Parties agree was caused by the action or inaction of Customer


EXHIBIT B
MAINTENANCE AND SUPPORT

(Iberon's Maintenance Support Policy applies solely with respect to the Iberon Solution)

Iberon (directly or indirectly through its designated third-party support providers) shall provide support solely to technical contacts of Licensee. Licensee's technical contacts shall not exceed five (5) at any one time. Licensee's designated technical contacts shall be knowledgeable about the Iberon Solution.

Support shall be provided by e-mail and by telephone Monday through Friday 8 AM to 5 PM CST. Support contact information for the particular Solution ordered will be provided with delivery of the Client Software. Licensee's submission of error reports shall include material information necessary for Iberon's reproduction of the error.

  1. Support Prioritization and Response

    Support to Licensee shall be provided in accordance with the following tiered approach:

    Severity Level Definition Business Procedures
    Level 1 Critical An error on a properly configured environment that is reproducible and resulting in material functionality being unavailable or material loss of data.

    Support staff shall be assigned to review and create work-arounds for critical errors on a priority basis.

    Resolution: The support team shall use reasonable efforts to resolve the critical error and/or provide a work around within seventy-two (72) hours from initial report of problem. Periodic reports will be provided to Licensee with status updates on problem resolution.

    Level 2 High An error on a properly configured environment, that is reproducible and resulting in severely restricted functionality.

    The support team shall assign individuals to review and create work-arounds for high-level errors on a priority basis, subject to availability of individuals not deployed in resolving critical-level errors.

    Resolution: The support team shall use reasonable efforts to resolve the critical error and/or provide a work around within seventy-two (72) hours from initial report of problem. Periodic reports will be provided to Licensee with status updates on problem resolution

    Level 3 Medium An error on a properly configured environment, that is reproducible and resulting in impact on non-material functionality or having a minor impact on material functionality.

    Appropriate resources will be assigned during regular business hours to investigate the problem and resolution.

    Resolution: Delivery of the resolution may be provided in a scheduled release.

  2. Severity Level Determination

    The impact and severity level of a reported problem will be discussed with Licensee. Iberon’s support team shall determine the priority level and severity of all reported problems.

    Iberon may modify problem logs with respect to severity level according to the on-going diagnosis by the designated support analyst.

  3. Access to Appliance, Remote, and On-Site Assistance

    In order to receive maintenance and support, Customer agrees, subject to Government security requirements, to provide Iberon’s support team or designated support provider with full and timely access to the Iberon Hardware (when applicable) at reasonable times. On-site assistance will be provided to resolve a problem if Iberon reasonably determines that such on-site assistance is required to resolve a problem after the above stated efforts have failed to resolve the problem remotely. In the event that Licensee consents to such on-site assistance to resolve such problem, Licensee shall reimburse Iberon for all travel and living expenses associated with the provision of such on-site assistance in accordance with applicable Federal travel regulations and in accordance with any Order. In the event that Licensee declines to receive on-site assistance, or denies Iberon any reasonably required remote access to the Iberon Solution, Iberon shall be deemed to have fulfilled its support obligations under the Agreement with respect to such Iberon Solution.

    Licensee shall provide Iberon with reasonable information and assistance to aid Iberon in providing support hereunder.

  4. Updates

    Iberon shall provide Licensee with Updates to the Iberon Solution, on a reasonable, periodic basis, as such are provided by Iberon to its Licensees generally.

  5. Training

    Iberon will provide remote training and training documentation (as applicable). The goal of the training sessions is to help Licensee understand the Iberon Solution to help enable Licensee Personnel to troubleshoot the majority of issues on their own. For on-site training, Licensee shall reimburse Iberon for all travel, living, and incidental expenses incurred in the course of providing training in accordance with applicable Federal travel regulations and in accordance with any Order.