FIREWALL ASSESSMENT LICENSE AGREEMENT

FIREMON, LLC (HEREINAFTER “FIREMON) PROVIDES THE LICENSED PROGRAMS SOLELY ON THE
TERMS AND CONDITIONS SET FORTH IN THIS FIREWALL ASSESSMENT LICENSE AGREEMENT (THE “AGREEMENT”) AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON OR BY INSTALLING, DOWNLOADING, ACCESSING OR OTHERWISE USING THE SOFTWARE, YOU AGREE AS THE “LICENSEE” TO BE BOUND BY THIS AGREEMENT. YOU HEREBY (A) ACCEPTS THIS AGREEMENT AND AGREES THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY ON BEHALF OF LICENSEE TO ENTER INTO THIS AGREEMENT AND BIND LICENSEE TO ITS TERMS. IF YOU LACK AUTHORITY OR LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, FIREMON WILL NOT AND DOES NOT LICENSE THE LICENSED PROGRAMS TO LICENSEE AND LICENSEE MUST NOT INSTALL OR USE THE LICENSED PROGRAMS.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT WITHOUT EXECUTION OF A BINDING PURCHASE ORDER, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF FIREMON’S LICENSED PROGRAMS.

1. DEFINITIONS

a. “Assessment Services” means any professional service offerings under which Licensee uses the Licensed Programs to perform short term firewall assessment services for End Clients.

b. “Devices” means network devices and/or security devices which are supported by the Licensed Program.

c. “End Client(s)” means subscribers of Assessment Services.

d. “Licensed Programs” means the software subscription and associated software support identified in a Purchase Order.

e. “License Keys” means unique software code necessary for the deployment and operation of certain Licensed Programs which will be time limited to the applicable Subscription Term.

f. “Purchase Order” means an ordering document from Licensee based on a quote generated by FireMon which is submitted by Licensee and accepted by FireMon for the applicable Licensed Program.

g. “Subscription Fees” means the dollar amounts set forth in applicable Purchase Order.

h. “Subscription Term” means the duration each Licensed Program (purchased under pursuant to a Purchase
Order) is authorized by FireMon to be used by Licensee to provide Assessment Services to an End Client. The Subscription Term shall be thirty (30) days if not expressly stated otherwise in a Purchase Order

i. “Territory” means worldwide other than any country to which the U.S. has embargoed or restricted the export of goods or services, or to any national of any such country, wherever located, or to any entity who intends to transfer or transport or provide access to the Licensed Programs to any embargoed or restricted in violation of US law.

2. LICENSES

2.1. Licensed Programs. In consideration for Licensee’s payment obligations herein, and during the applicable Subscription Term for each Licensed Program, FireMon hereby grants Licensee a limited, non-exclusive, nontransferable, non-assignable and non-sublicensable (except in accordance with this Agreement) license and right within the Territory to install and use the License Programs to deliver Assessment Services to End Clients.

2.2 Limitations on License. Device licenses are one-time use and once assigned to a Device, may not be reassigned. Other than as expressly permitted herein, Licensee shall not shall not (a) modify, disassemble, reverse engineer, make error corrections, create derivative works of or decompile the Licensed Programs or License Keys, or attempt to do any of the foregoing; (b) attempt to access or use portions of the program code, Licensed Programs or License Keys for which Licensee has not acquired a license, (c) circumvent or disable any features or technological protection measures in the Licensed Programs or License Keys; (d) except as specifically authorized herein, distribute or transfer the Licensed Programs or License Keys; (e) host, offer or otherwise use the Licensed Programs for ongoing managed services; (j) post or publish any portion of the Licensed Program onto any public (i.e. nonprivate) software code sharing web sites or similar, including, but not limited to, the following: GitHub, BitBucket, Google Code, Pastebin, Codeplex, LaunchPad, Unfuddle, JSFiddle, JSBin;; or (m) use the Licensed Programs or any part or aspect of them for any unlawful purpose or (n) permit or assist any third party to do any of (a) through (m).

3. OWNERSHIP.

3.1 FireMon Ownership The Licensed Programs and License Keys (collectively “FireMon Intellectual
Property”) are licensed, not sold, by FireMon to Licensee, and nothing herein will be interpreted or construed as a sale or purchase of the FireMon Intellectual Property. Licensee will not have any rights in or to the FireMon Intellectual Property except as expressly granted in this Agreement. FireMon and/or its licensors reserve to itself all rights to the FireMon Intellectual Property not specifically granted to Licensee under this Agreement. FireMon and/or its licensors retain all copyright, trademark, patent, and other intellectual property rights in and to FireMon Intellectual Property.

3.2 Ownership of Licensee Data. Licensee data shall be the sole and exclusive property of Licensee. Licensee hereby grants FireMon a limited, non-exclusive, royalty-free, non-transferable license to copy, use, manipulate or display such data solely as needed to deliver and support the Licensed Programs.

4. CONFIDENTIALITY AND PROPERTY RIGHTS

4.1. Confidential Information. Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party’s business, plans, customers, technology, and products, including the terms and conditions of this Agreement (“Confidential Information”). Confidential Information will include, but not be limited to, each party’s proprietary software and customer information, and in the case of FireMon will include, without limitation, the FireMon Intellectual Property, information about the functions and features of the Licensed Programs and related technology, and all non-public information that either party provides to the other party or to which the other party obtains or has access by reason of this Agreement. The disclosing party’s Confidential Information will be used only as needed for performance of the receiving party’s obligations under this Agreement. Each party agrees that it will not use in any way, for its own account or the account of any third party nor disclose to any third party (except as expressly permitted by this Agreement, as required by law, regulation or judicial order (provided that the receiving party is so required to disclose the disclosing party’s Confidential Information, the receiving party will, to the extent legally permissible, give the disclosing party prior written notice and the opportunity to contest the requirement and, if such disclosure is so required, the receiving party shall limit the disclosure to only the specifically required Confidential Information) or to the receiving party’s attorneys, accountants and other advisors as reasonably necessary if such third parties are bound by confidentiality and non-use obligations at least as strict as this Agreement), any of the disclosing party’s Confidential Information and will take precautions commensurate with those it uses to protect its own confidential information, but not less than reasonable precautions, to protect the confidentiality of such information. The duties and obligations to protect Confidential Information will survive expiration or termination of this Agreement for a period of three (3) years thereafter.

4.2. Exceptions. Information will not be deemed Confidential Information hereunder if such information: (a) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (b) becomes known (independently of disclosure by the disclosing party or as a result of this Agreement) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (c) is or becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (d) is independently developed by the receiving party without access, indirect or direct, or reference to the Confidential Information provided by the disclosing party and such independent development can be proven through documentary evidence.

4.3. FireMon Property Rights. Licensee and FireMon each acknowledge that FireMon may disclose to Licensee certain Confidential Information relating specifically to the Licensed Programs, including, without limitation, the reports and information about the current and/or future functions/features of the Licensed Programs and related technology. Licensee hereby acknowledges and agrees that all business information, software, technology, processes, know how, FireMon’s Confidential Information and all other materials and techniques supplied and/or utilized by FireMon constitute and contain valuable proprietary products and trade secrets of FireMon and its licensors (collectively, “FireMon Property”), embodying substantial creative efforts and confidential information, ideas, and expressions. Accordingly, Licensee agrees to treat (and take precautions to ensure that their employees, agents and contractors treat) all FireMon Property as Confidential Information, subject to the exceptions in Section 4.2. All FireMon Property is the exclusive property of FireMon and its licensors including all reports, all copyrights, patents, derivative works, compilations, collective works, trademarks, trade secret and other intellectual property rights therein. Licensee shall not, and shall ensure that its employees, agents and contractors shall not, remove, overprint or deface any notice of confidentiality, copyright, trademark, logo, legend or other notices of ownership, proprietary rights, or confidentiality from any originals or copies of Confidential Information. No license or other rights to the FireMon Property or any intellectual property rights therein are granted to Licensee except for those expressly set forth in this Agreement.

4.4 Equitable Relief. If either party breaches any of its obligations set forth in Section 2, Section 3 or this Section 4, the disclosing party shall be entitled to seek equitable relief to protect its interests therein, including, but not limited to, preliminary and permanent injunctive relief, without the posting of a bond.

5. CHARGES AND PAYMENTS

5.1 Subscription Fees. Subscription Fees are defined and set forth in the Purchase Order for each applicable Licensed Program. Licensee agrees and acknowledges that Subscription Fees are due and payable in advance.

5.2 Payment Terms. Following the acceptance of a Purchase Order, FireMon shall issue the invoice Licensee for the applicable Subscription Fees. Licensee agrees to pay FireMon within thirty (30) days from invoice date. Licensee’s obligation to pay FireMon shall not be dependent or contingent upon Licensee’s receipt of payment from End Clients or actual usage of the Licensed Programs purchased by Licensee.

5.3 Late Payment. Delinquent amounts shall bear interest at a rate equal to the lesser of one and one-half percent (1.5%) per month (eighteen percent 18% per year) or the maximum rate permitted by law, whichever is less. In addition to all other rights that FireMon may have under the law or at equity, in the event that Licensee fails to pay FireMon any undisputed Subscription Fees within five (5) business days of delivery by FireMon of written notice of non-payment, (i) FireMon may terminate this Agreement and/or cease to perform its obligations under this Agreement and (ii) Licensee will immediately cease using the Licensed Programs.

5.4 Taxes and other Fees. Except as otherwise stated in this Agreement, all amounts under this Agreement are non-refundable and are stated and are to be paid in U.S. dollars and are excusive of value-added taxes or other indirect taxes. If FireMon is required to pay any sales, value-added, use, goods and services, or other taxes in connection with and applicable to its provision of Licensed Programs to Licensee under this Agreement, other than taxes based on FireMon’s income, gross receipts, franchise and privilege taxes, property or employees, such taxes will be billed by FireMon as a separate line item to Licensee and paid by Licensee to FireMon. FireMon shall pay all collected taxes to the appropriate taxing authority. If Licensee has tax-exempt status, Licensee shall provide written evidence of such status to FireMon to sustain exemption from such taxes.

6. MAINTENANCE SERVICES

6.1. During the Subscription Term for each Licensed Program, FireMon shall provide to Licensee the software support service as set forth in Schedule 1 (“Maintenance Services”).

6.2. FireMon will provide the Maintenance Services only to Licensee and will not be responsible to provide any maintenance or support services to End Clients or any other third parties. Licensee shall prohibit End Clients from contacting FireMon directly.

7. WARRANTY AND DISCLAIMER OF WARRANTIES

7.1. FireMon and Licensee each warrant (i) that it has full authority and sufficient rights to perform all of its obligations under this Agreement; (ii) that execution of this Agreement does not breach any other agreement or obligation to which it is or was a party; and (iii) that it shall comply with all applicable laws, rules and regulations within the Territory with respect to its performance of this Agreement. Licensee represents and warrants that it will not make any representation or warranty (which is not authorized by FireMon in writing), whether written or oral, to any third party, including but not limited to an End Client, relating to the Licensed Programs.

7.2 The warranties set forth in Section 7 do not apply to the extent the Licensed Programs (a) have been altered, by any party other than FireMon, or (b) have not been installed, operated, repaired, or maintained in accordance with written instructions supplied by FireMon to Licensee.

7.3 Disclaimer of Warranties. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY FIREMON OR ITS LICENSORS INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, IN CONNECTION WITH THE LICENSED PROGRAMS.

8. INDEMNIFICATION

8.1 Indemnification by Licensee. Licensee shall, at its expense, indemnify, defend and hold harmless FireMon and affiliates, and each of their respective directors, officers, and employees from and against any losses, claims, demands, or causes of action arising from, relating to, or in connection with (a) any loss of or damage to any real property or injury or death of any person caused by Licensee or any End Client, directors, officers, and employees, agents or representatives of Licensee (collectively, the “Licensee Parties”) (b) negligent act or omission or willful misconduct of any of the Licensee Parties, (c) use of the Licensed Programs by Licensee Parties except in accordance with this Agreement, or (d) any breach or alleged breach of Section 14.4 or 14.5. Licensee shall, at its expense, indemnify, defend and hold harmless FireMon and affiliates, and each of their respective directors, officers, and employees from and against any losses, claims, demands, or causes of action made by one or more End Clients arising from, relating to, or in connection with the Assessment Services. With respect to any such claims or causes of action, Licensee shall have control over defense and/or settlement thereof, subject to the following: (i) FireMon shall have the right to participate in any such claims or causes of action as its option and its own expense and (ii) Licensee shall not settle any such claim or cause of action without FireMon’s written consent if such settlement includes (directly or indirectly) any admission of or stipulation to any guilt, fault, or wrongdoing by FireMon, or impose any obligation (monetary or otherwise) on FireMon,.

8.2. Indemnification by FireMon. FireMon shall, at its expense, indemnify, defend, and hold harmless Licensee, its directors, officers, and employees (collectively, the “Licensee Indemnified Parties”) from and against any third party (specifically excluding End Client(s)) losses, claims, demands, or causes of action incurred/suffered by Licensee Indemnified Parties arising from or in connection with (a) any action brought against any Licensee Indemnified Party based upon a claim that any Licensed Program infringes any patent, copyright, trademark, or any other intellectual property or proprietary right of any third party within the United States; and/or (b) any negligent act or omission or willful misconduct of FireMon. Licensee acknowledges and agrees that, notwithstanding anything to the contrary in this Agreement, End Clients will not have the right to seek any indemnification directly from FireMon, and only Licensee may make indemnification claims against FireMon pursuant to this Agreement. With respect to any such claims or causes of action, FireMon shall have control over defense and/or settlement thereof, subject to the following: (i) Licensee shall have the right to participate in any such claims or causes of action as its option and its own expense and (ii) FireMon shall not settle any such claim or cause of action without Licensee’s written consent if such settlement imposes any liability on Licensee specifically. The foregoing obligations of FireMon shall not apply to the extent such third party claims arise out of, relate to or result from (i) a breach of any term or condition of this Agreement by Licensee or any of its directors, officers, or employees or End Clients or (ii) any grossly negligent act or omission or willful misconduct of Licensee or any of its directors, officers, or employees or End Clients.

8.3 Process. The indemnifying party’s obligations under this section shall be contingent upon (a) the indemnified party promptly notifying the indemnifying party in writing of any notice of claim or of threatened or actual suit, (b) the indemnifying party having sole control over defense and/or settlement of any such action, provided that the indemnifying party may not settle any claim or admit liability on the part of the indemnified party without the indemnified party’s prior written consent, which consent must not be unreasonably withheld, and provided that the indemnified party has the right to participate in the defense of such claim at its expense and through counsel of its choosing, and (c) at the indemnifying party’s request and expense, the indemnified party providing reasonable cooperation and assistance in the defense of the claim.

8.4 Remedies. In addition to its obligations under this section, FireMon may, at its option, upon having knowledge that the Licensed Program actually or may infringe or misappropriate any person’s intellectual property right or following notice of a claim or of a threatened or actual suit, procure for Licensee the right to continue to use the Licensed Programs as furnished or may replace or modify the same to make it non-infringing, at FireMon’s expense. If the foregoing options are unavailable, FireMon may, upon at least thirty (30) days prior written notice to Licensee, terminate this Agreement, without cause or liability, by providing written notice to Licensee. Upon termination, Licensee shall return and FireMon shall accept the return of the infringing Licensed Program and FireMon shall promptly refund to Licensee the remaining unused portion of any prepayment of Subscription Fees for the infringing Licensed Program. This Section 8 sets forth Licensee’s sole and exclusive remedy, and FireMon’s sole and exclusive liability, under this Agreement related to intellectual property infringement claims against Licensee.

9. LIMITATION OF LIABILITY

9.1. Disclaimer. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST REVENUE, PROFIT, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER, WHETHER ARISING UNDER CONTRACT, WARRANTY, OR TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, EVEN IF THE POSSIBILITY OF DAMAGES WAS DISCLOSED TO THE OTHER PARTY OR COULD HAVE BEEN REASONABLY FORESEEN BY SUCH PARTY;

9.2. Monetary Cap. IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF SUBSCRIPTION FEES PAID AND PAYABLE BY LICENSEE TO FIREMON UNDER THE SPECIFIED PURCHASE ORDER(S) FOR THE LICENSED PROGRAMS GIVING RISE TO A CLAIM FOR LIABILITY.

9.3 THE FOREGOING LIMITATION OF LIABILITY SET FORTH IN 9.1 AND 9.2 ABOVE SHALL NOT APPLY TO (a) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT; (b) BREACH BY A PARTY OF ITS OBLIGATIONS PURSUANT TO SECTIONS 2, 3, 4, 11 OR 13.3; (c) ANY CLAIM OR LOSS RESULTING FROM THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR VIOLATION OF LAW OF OR BY A PARTY, ITS EMPLOYEES, AGENTS, OR CONTRACTORS; (d) ANY CLAIM OR LOSS RELATED TO PROPERTY DAMAGE, PERSONAL INJURY OR DEATH; OR (e) PAYMENT OBLIGATIONS UNDER THIS AGREEMENT.

9.4 The limitations of liability reflect the allocation of risk between the parties. The limitations specified in this Section 9 will survive and apply even if any limited remedy specified herein is found to have failed of its essential purpose.

10. TERM AND TERMINATION

10.1. Term. This Agreement will take effect on the date a Purchase Order is accepted by FireMon and shall have a term that runs concurrent with the Subscription Term for such Purchase Order. For the avoidance of doubt, each Purchase Order accepted by FireMon shall be separately governed by this Agreement on an individual basis, each Purchase Order forming a separate and unique contract between FireMon and Licensee.

10.2 Effect of Termination. Following expiration or termination of this Agreement, (a) all rights granted to Licensee under this Agreement immediately revert to FireMon; (b) Licensee shall immediately cease all use of the
FireMon Intellectual Property authorized under this Agreement, (c) Licensee shall destroy or return to FireMon all copies of the Licensed Programs and License Keys provided under this Agreement in their possession or control, and provide FireMon written confirmation thereof, within not more than 10 days; and (d) Licensee shall remit payment to FireMon within three (3) business days of the expiration or termination date for any unpaid Subscription Fees.

1034. Survival of Obligations. The following will survive expiration or termination of this Agreement for any reason: (a) obligations relating to nondisclosure of confidential information; (b) obligations relating to indemnification and limitation of liability; (c) obligations to make payments of all undisputed amounts due; (d) obligations related to audits after the Subscription Term; (e) all obligations relating to the ownership of intellectual property and (f) all other rights and obligations which by their nature survive this Agreement. Termination or expiration of this Agreement will not relieve either party of any obligations arising out of this Agreement prior to or upon the date of such termination or expiration.

11. EXPORT. Licensee agrees to, and shall cause End Clients to comply strictly with all applicable law, including, but not limited to all export control laws and regulations applicable to it. Licensee will not request or make any regulatory certifications or applications on behalf of FireMon.

12. FIREMON OBLIGATIONS

12.1 License Key Generation. Provided Licensee is in full compliance with the terms of this Agreement, FireMon will generate all necessary License Keys for each Purchase Order. The Subscription Term for each Licensed Program commences on the date the License Key for such Licensed Program is made available to Licensee.

12.2 Manner of Performance. FireMon shall (a) conduct business in a professional manner; (b) avoid deceptive, misleading, or unethical practices that are or might be detrimental to Licensee or to the public in general. If FireMon uses any subcontractor, FireMon shall be and remain responsible and liable for (i) all acts, errors, and omissions of any such subcontractor and (ii) compliance by any such subcontractor with the terms of this Agreement. All Documentation and support services will be provided in English only.

12.3 Insurance. FireMon shall maintain workers compensation insurance as required by law; employer’s liability, commercial general liability and automobile liability insurance each with coverage of $1 million per occurrence and in the aggregate; and professional liability insurance with coverage of $1 million; and upon request will furnish insurance certificates to Licensee.

13. LICENSEE OBLIGATIONS

13.1 Intentionally left blank

13.2 Manner of Performance. Licensee shall (a) conduct business in a competent and professional manner; (b) avoid deceptive, misleading, or unethical practices that are or might be detrimental to FireMon, its licensors, and/or the Licensed Program, or to the public in general; (c) not make any false or misleading representations, warranties, or guarantees with regard to FireMon, its licensors or the Licensed Program; (d) use the Licensed Program in accordance with the then published documentation and specification in this Agreement and (e) not disparage, criticize, or otherwise call into question the Licensed Program, or FireMon and its licensors. If Licensee uses any subcontractor for purposes of fulfilling their obligations under this Agreement, Licensee shall be and remain responsible and liable for (i) all acts, errors, and omissions of any such subcontractor and (ii) compliance by any such subcontractor with the terms of this Agreement.

13.3 Audit. During the term of this Agreement and for three (3) years thereafter, Licensee shall retain all records that contain data reasonably required to verify Licensee’s compliance with this Agreement. FireMon shall (at its own cost) have the right to inspect and audit such records of Licensee during normal business hours no more than once quarterly and with reasonable notice. If material discrepancies are identified due to Licensee’s breach of its obligations under this agreement, Licensee shall pay any underpayments identified and FireMon’s costs and expenses of the audit within fifteen (15) days of being so notified. In addition to and not in limitation of the foregoing, FireMon or its designee may conduct one audit at any time after termination or expiration of this Agreement to confirm compliance, including regarding post-termination obligations, provided that such audit will be conducted in accordance with the preceding terms of this Section 13.3.

13.4 Insurance. Licensee shall maintain workers compensation insurance as required by law; employer’s liability, commercial general liability and automobile liability insurance each with coverage of $1 million per occurrence and in the aggregate; and professional liability insurance with coverage of $1 million; and upon request will furnish insurance certificates to FireMon.;.

14. GENERAL TERMS

14.1. Notices. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party indicated on the signature page of this Agreement, or at such other address as may hereafter be furnished in writing by either party hereto to the other. Notices will be deemed given when delivered to the other party.

14.2. Assignment. Licensee shall not assign, subcontract, delegate or otherwise transfer, directly or by operation of law, any of its rights or obligations under this Agreement without the prior written consent of FireMon, such consent not to be unreasonably withheld, delayed or conditioned. FireMon may assign the Agreement, without consent, to any successor to all or substantially all its business or assets to which the Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise.. Any attempt to transfer, assign or delegate rights or obligations under this Agreement in a prohibited manner shall be treated as (i) a non-remedial material breach of this Agreement and (ii) void without effect. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.

14.3. Waiver. The failure of a party to prosecute its rights with respect to a default or breach hereunder shall not constitute a waiver of the right to enforce its rights with respect to the same or any other breach. No waiver of any provision of this Agreement, or any rights or obligations of either party under this Agreement, will be effective, except pursuant to a written instrument signed by the party waiving compliance, and any such waiver will be effective only in the specific instance and for the specific purpose stated in such writing.

14.4. Anti-Bribery. Licensee represents and warrants that (a) it is aware of, understands and will comply with the provisions of the U.S. Foreign Corrupt Practices Act (the “FCPA”) and the U.K. Bribery Act, as applicable (collectively, the “Acts”); (b) it will not take any action that might be a violation of either of these Acts or other applicable anti-corruption laws that prohibit the same type of conduct (including, but not limited to, the making of corrupt payments); (c) it has, and will have, policies in place sufficient to ensure compliance with the provisions of the FCPA and U.K. Bribery Act, as applicable; (d) Licensee, in the exercise of its rights and the performance of their obligations under this Agreement, or in connection with any transaction contemplated or authorized by this Agreement, have not, and shall not, pay or give, offer or promise to pay or give, or authorize any third party to pay or give, any money or any other thing of value directly or indirectly for the purpose of unfairly obtaining or retaining any business or securing any other unfair advantage to: (i) any government official or government employee (including any official or employee of a state-owned commercial enterprise or public international organization; (ii) any political party or officer or employee of any political party; (iii) any candidate for political office; (iv) any officer or employee of any customer or potential customer; or (v) any other person, firm, corporation or other entity at the suggestion, request or direction of, or for the benefit of, any of the foregoing persons or entities; (e) any and all amounts paid to Licensee by FireMon hereunder, including, but not limited to, any discounts or credits furnished by FireMon, if any, shall not be paid or given to any other person, firm, corporation or other entity, except in payment for a bona fide business purposes authorized by this Agreement and incurred in connection with the performance of services hereunder in accordance with applicable law. Licensee acknowledges that any violation of this Section, or any formal allegation brought by a government agency charged with enforcement of anti-corruption laws that Licensee is involved in a violation of any applicable anti-corruption law involving or related to this Agreement, would be a non-remedial material breach of this Agreement, giving FireMon the right to terminate the Agreement immediately upon written notice to Licensee without any liability owed by FireMon.

14.5. Trade Compliance. Licensee understands that Licensed Program are subject to import, export, re-export, economic sanctions, foreign trade control, antiboycott, and anti-corruption laws and regulations of the United States and other applicable jurisdictions (collectively, “International Trade Laws”), which may include but not be limited to the Export Administration Regulations (“EAR”), the International Traffic in Arms Regulations (“ITAR”), sanctions regulations administered by the U.S. Treasury Department’s Office of Foreign Assets Controls (“OFAC”), U.S. Arms Export Control Act, U.S. Export Administration Act, regulations relating to imports administered or enforced by U.S. Customs and Border Protection, and the U.S. Foreign Corrupt Practices Act. Licensee agrees, warrants, and represents that (i) Licensee, its shareholders, subsidiaries, affiliates, and their respective directors, officers, employees do not appear on or are subject to any Restricted Party List of an agency of the U.S. Government, an applicable non-U.S. Government, or international organization; and (ii) Licensee will not export, re-export, transfer, or offer the Licensed Programs and/or technology subject of this Agreement to any prospective customer or End Client in violation of applicable International Trade Laws. Prior to providing any prospective customer or End Client with access to the Licensed Programs and/or technology subject to this Agreement, Licensee shall conduct trade compliance screening of each entity to ensure compliance with the provisions of this Section 14.5. Licensee acknowledges that any violation of this Section 14.5, or any formal allegation brought by a government agency charged with that Licensee is involved in a violation of any applicable International Trade Law involving or related to this Agreement, would be a nonremedial material breach of this Agreement, giving FireMon the right to terminate the Agreement immediately upon written notice to Licensee without any liability owed by FireMon.

14.6 Governing Law. This Agreement will be governed under the laws of the State of Kansas, USA, as such laws are applied to agreements between two Kansas residents entered into and to be wholly performed within Kansas. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

14.7. Force Majeure. Neither party shall be responsible for any reasonable delay in its performance, for instance due to acts of God, war, insurrection, extreme weather, fire, flood or other similar causes, provided that the nonperforming party gives prompt written notice of such condition and resumes its performance as soon as possible. Notwithstanding the foregoing, this Section 14.7 shall not apply to requirements to make payments under this Agreement.

14.8. Severability. If any of the provisions of this Agreement are held to be void or unenforceable, the parties agree that such determination will not result in the nullity or unenforceability of the remaining portions of this Agreement. The parties further agree to replace such void or unenforceable provisions of this Agreement with valid and enforceable provisions, which will achieve, to the extent legally permissible, the economic, business and other purposes of the void or unenforceable provisions.

14.9. Ambiguities. Each party and its counsel have participated fully in the review and revision of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Agreement.

14.10. Remedies Cumulative. Except as otherwise set forth in this Agreement (a) the rights and remedies of the parties under this Agreement are cumulative and not exclusive of any rights or remedies to which the parties are entitled by law and (b) the exercise by either party of any right or remedy under this Agreement or under applicable law will not preclude such party from exercising any other right or remedy under this Agreement or to which such party is entitled by law.

14.11. Independent Contractors. The parties agree that nothing in this Agreement shall in any way be construed to create a partnership, joint venture or employer-employee relationship between FireMon and Licensee.

14.12. Venue. Any legal action, suit or proceeding arising out of or with respect to the Agreement shall be brought solely and exclusively in the courts of the State of Kansas or of the United States District Court for Kansas, and, by execution and delivery of the Agreement, each party hereby irrevocably accepts the exclusive jurisdiction of the aforesaid courts.

14.13. Entire Agreement. This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous discussions, representations, purchase orders, quotations and proposals, written or oral, with respect to the subject matters discussed herein. Licensee acknowledges that it has not entered into this Agreement in reliance on any warranty, representation or statement, other than those expressly set out in this Agreement and that the only remedy available to it in respect of such warranty, representation or statement shall be for breach of contract under this Agreement, provided that nothing in this section will limit or exclude any liability for fraud. No modification of this Agreement will be effective unless contained in a writing executed by an authorized representative of each party.

Schedule 1 – Support Services Description For FireMon Security Manager

This Service Description describes the support and maintenance services offered in connection with the purchase by of Licensed Programs for Assessment Services (the “Service”).

All capitalized terms not defined herein have the meaning ascribed in the applicable Agreement referenced above.

Software
• FireMon Security Manager

Support Priority Rating Definitions.
The following ratings are used to determine the severity rating of an issue.

1. Support Ticket Process.
Licensee can notify FireMon of an issue by sending an email to [email protected]
([email protected] for Lumeta issues), submitting a ticket in the User Center or by calling FireMon Support. All methods result in the creation of a support ticket.

• Telephone: +1 (913) 730-1130. Lumeta Telephone: +1 (844) 267-0864
• User Center: Accessible at https://usercenter.firemon.com. A User Center account was created and the first-time login procedure was provided with the order confirmation email. Recipients of that email message can create additional users for their account in the User Center. Once logged in, go to Support>Create a Support Ticket to submit a ticket.

2. Software Upgrades, Patches and Other Downloads
As part of this Service, from time to time, FireMon may make Upgrades and Patches for the Software available to Licensee.

Upgrade – Maintenance Release: A Maintenance Release usually provides software bug fixes or product operational corrections due to specific Licensee environments.

Upgrade – Feature Release: A Feature Release is a scheduled release which provides new or updated features and/or functionality, as well as incorporates fixes to previously identified bugs.
Patch: A Patch typically provides corrections or fixes for specific issues within the Software. However, the complexity of a correction or fix for a specific issue may require an Upgrade to be issued.

In most cases, the correction or fix released in a Patch will be included in the next Maintenance Release and/or Feature Release of the product.

3. Data Collection
To troubleshoot or diagnose Licensee’s issue, FireMon often require supplemental information or files, including screenshots, error messages, and log files from Licensee’s Software. For some Software such as Security Manager, these requests may require administrator or higher permissions on Licensee’s Software or network device, and root permissions on Licensee’s Security Manager server.

4. Configurations
For some issues, FireMon may ask for a device configuration from Security Manager, Risk Analyzer or Lumeta to attempt to reproduce the issue in our test lab. Being able to reproduce the issue dramatically decreases time spent in the diagnosis and fix phases. However, due to Licensee’s IT security policies, Licensee may be prohibited from providing a device configuration. Please note that without a configuration, FireMon may be unable to determine the root cause of the issue and provide the resulting fix.

5. Diagnostic Packages or Physical Access
If FireMon is troubleshooting hardware (where applicable), or OS- or BIOS-level issues, FireMon may request Licensee to run diagnostic commands or to physically alter the OS configuration or hardware (e.g., hard drive replacement). This will require root access and physical access, respectively, by the parties responsible for maintaining the FireMon hardware.

6. Screen Sharing
Often during onscreen calls, the FireMon Support Engineer may ask for “control” of the screen so that he or she may more quickly troubleshoot or resolve an issue. The FireMon Support Engineer can explain step-by-step, what is occurring during the call if Licensee is concerned about granting FireMon access to Licensee’s systems. However, due to Licensee’s IT security policies, Licensee may be prohibited from transferring control. Please note that declining to transfer control may limit the efficiency and effectiveness of troubleshooting.

Licensee Obligations

Licensee End Client Support.
Licensee Support Representatives shall provide tier 1 and 2 technical support, training and other professional services to the End Client. Licensee shall not permit End Clients to contact FireMon directly.

Licensee Technical Staff
To maintain an effective level of communication during the Service process, the Licensee Support
Representative for any issue must be knowledgeable about Licensee’s environment and has a full understanding of and can procure access to the impacted systems.

Availability
Software provided by FireMon is for on-premises installation. As such, FireMon cannot access or troubleshoot the Software without support of the Licensee. The Licensee Support Representative for a support ticket must be available to dedicate the required time and resources to work with FireMon Support Team to resolve the ticket.

Software Support Escalation Guidelines

If Licensee does not believe that adequate progress is being made on a ticket or that the quality of this Service is unsatisfactory, Licensee should escalate within the ticket or via email, or phone the to the appropriate level of management on the FireMon Support Team by asking for the support manager, Director of Global Support or SVP Global Services.

Service Limitations
The FireMon Support Team will not make changes to any network or security device in Licensee’s environment. Any changes that must be made to a network or security device, including those required to allow communication to or installation of the Software or changes that are required to resolve network or security device-related issues in the Software will be performed by the Licensee Support Representative or another qualified employee of Licensee.

FireMon is not responsible for overall management and operation of the Software on behalf of Licensee. Licensee shall have a security team in place working with assigned the FireMon Support Team.

FireMon will not be given credentials to any network or security device or its administration system, or credentials to any user authentication system such as Active Directory, beyond the credentials required for the Data Collector to retrieve data from Licensee devices and systems.

Response time is defined as the time from when an issue has been reported to FireMon (in accordance with this Service Description) creating a ticket in FireMon’s trouble-ticket management system to the time when a FireMon Support Engineer attempts to make initial contact with the Licensee Support Representative that has initiated the support ticket. FireMon will use commercially reasonable efforts to resolve all errors based on their severity rating.