TERMS AND CONDITIONS

Singularity IT

E3S OFFER OUTLINE – COMMERCIAL TERMS

It is our understanding that the End To End Enterprise Solutions, LLC (E3S) Singularity solution will be deployed either as an on-premise solution or an externally (i.e., Cloud) hosted environment. The terms of this Agreement, unless otherwise stated in writing, do not include any cost for the procurement of the required hardware, hosting services, etc. related to the production or deployment environment of the E3S Singularity software environment.

 E3S Pricing for Singularity

 E3S’s pricing for the Singularity Perpetual License or Singularity Subscription (“SaaS”) purchase detailed in the Customer Order Form is for the volume of ingested data specified herein and for a single global instance of the software, unless otherwise agreed to in writing. In the case of a Subscription purchase, the Subscription may be renewed by exercising an option, or by both parties executing a new purchase order in writing. In the case of a Perpetual License, the annual maintenance and support fees may be renewed by both parties exercising an option, or by both parties executing a new purchase order in writing.

 In the case of the Singularity Subscription, the subscription fee includes software maintenance and support for the term of the Agreement.

 In the case of a Perpetual License Agreement, the software maintenance and support fees are invoiced separately from the License fees at a rate specified in the Price list upon execution of this Agreement and subsequently on each anniversary date of the Agreement.

 Singularity maintenance and support include periodic system and version updates, bug fixes, etc., as well as usage metering of the environment. It does not include services contracted separately via a Scope of Work document or a Manages Services agreement for services such as system set-up, configuration or other services that are intended to be provided directly by E3S or an E3S Partner.

 Commercial terms:

  1. Acceptance of this E3S Singularity Terms and Conditions of Use / Master Services Agreement, Customer Engagement or similar document is required.
  1. E3S shall fully retain all intellectual property rights acquired as a result of E3S or E3S Partner delivering services to Customer such as set-up, configuration or other services defined in Scope of Work as they pertain to the Singularity software.
  1. Reserved 
  1. Payments for license, annual support and maintenance or subscription fees are due in full, in US Dollars, via electronic transfer or other means acceptable to E3S or E3S Partner, upon 15 days of receipt of invoice by E3S or E3S Partner, or within other appropriate timeframe detailed separately in writing.
  1. Unless otherwise detailed elsewhere in writing, Professional Services delivered by E3S or E3S Partner detailed in a Scope of Work document (for example, set-up, configuration, system integration, etc.) are not included in License, Annual Maintenance and Support or Subscription fees. Payments for these Professional Services are due in full, in US Dollars, via electronic transfer or other means acceptable to E3S or E3S Partner, upon 15 days of receipt of invoice by E3S or E3S Partner, or within timeframe detailed elsewhere in writing.
  1. Changes in data volume ingested during the course of the Agreement may require update(s) or modification(s)to Customer’s operating environment for the Singularity software based on metering data and recommendations by E3S or E3S Partner, such as number of servers, CPU’s, memory, etc.
  1. Hardware procurement charges, hosting fees or other similar infrastructure-related fees are not included in this Agreement and are the entire responsibility of the Customer, unless otherwise agreed upon elsewhere in writing. In case of an externally hosted (i.e., Cloud) deployment of the E3S Singularity software environment, unless otherwise agreed upon in writing, the responsibility for the selection of, and contracting with, the hosting entity lies entirely with Customer unless otherwise agreed to in writing. In all cases, E3S or E3S Partner shall bear no responsibility related to the performance of the operating or hosting environment, the selection and procurement of hardware, etc.
  1. Unless License or Subscription is associated with Unlimited Usage, customer is entitled to purchase additional Terabytes (TBs) of data at any time at the unit price, including applicable annual support and maintenance, detailed in the attached Order Form in accordance with the Pricelist and Contract Economic Price Adjustment Clause.
  1. In the case of a Perpetual License Agreement, on the third anniversary of the effective date of this Agreement and every three years thereafter, Annual Support and Maintenance fees associated with a Perpetual License may be subject a price increase in accordance with the Pricelist and Contract Economic Price Adjustment Clause. If applicable, in the case of the purchase of additional TB of data, on the third anniversary of the effective date of the purchase of additional TB of data and every three years thereafter, Annual Support and Maintenance fees associated with said purchase may also be subject to a price increase in accordance with the Pricelist and Contract Economic Price Adjustment Clause.
  1. In the case of a Subscription (SaaS) License purchase, the first and subsequent renewals of this Agreement may be subject to a price increase in accordance with the Pricelist and Contract Economic Price Adjustment.
  1. In the event that customer exceeds data volume covered by Subscription or License Customer Order Form, reported either directly by the Customer or validated by a E3S audit performed on Customer’s Singularity environment as described in Section 23.7 herein, Customer will be required to immediately purchase additional TB’s of data as well as, if applicable, annual Maintenance and Support fees (which may be pro-rated) in order to bring Subscription or license back into compliance. If the Ordering Activity exceeds the use amount, both parties will work together to either prevent such overages in the future or will execute a new agreement in writing that encompasses the higher use amount.
  1. Pre-approved travel expenses for E3S or E3S Partner Professional Services personnel, if required, are not included and will be billed at cost and in accordance with Federal Travel Regulation (FTR)/Joint Travel Regulations (JTR), as applicable, Ordering Activity shall only be liable for such travel expenses as approved by Ordering Activity and funded under the applicable ordering document.
  1. Unless otherwise agreed upon by all parties in writing, it is expected that, whenever possible, Customer will provide secure remote access to the Singularity environment (whether internally hosted by Customer or externally hosted via Third-Party cloud provider like AWS, Azure, etc.) to authorized E3S or E3S Partner personnel and resources for the purposes of services delivery (for example set-up, configuration, support, maintenance, etc.) and usage metering.

 

TERMS AND CONDITIONS OF USE

BY ACCEPTING THIS AGREEMENT THROUGH AN ORDERING DOCUMENT THAT INCORPORATES THIS TERMS AND CONDITIONS OF USE DOCUMENT, CUSTOMER AGREES TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF CUSTOMER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, CUSTOMER REPRESENTS THAT IT HAS THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “CUSTOMER” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF CUSTOMER DOES NOT HAVE SUCH AUTHORITY, OR IF CUSTOMER OR SUCH ENTITY DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, CUSTOMER MAY NOT USE THE SERVICES.

This Terms and Conditions of Use Agreement (this “Agreement”) is between End To End Enterprise Solutions, LLC, (“E3S”) headquartered at 1800 Diagonal Rd, Suite 600, Alexandria, VA 22314 and the Ordering Activity in the Purchase Order, Statement of Work, or similar document  (Hereinafter referred to as “Customer”).

This Terms and Conditions of Use sets forth the terms and conditions that govern orders placed by Customer for Singularity software offering and/or Professional Services under this Agreement. 

  1. AGREEMENT DEFINITIONS

1.1.   “Ancillary Program” means any software agent or tool owned or licensed by E3S that E3S makes available to Customer for download or implementation as part of the Singularity offering for purposes of facilitating Customer access to, operation of, and/or use with, the Singularity Software offering. The term “Ancillary Program” does not include Separately Licensed Third-Party Technology.

1.2.    Reserved.

1.3.    “Data Center Region” refers to the geographic region in which the Singularity Software offering is physically located. The Data Center Region applicable to the Singularity installation is set forth in Customer’s order.

 

1.4.   “E3S Programs” refers to the Singularity software or other products owned or licensed by E3S to which E3S grants Customer access to, including Program Documentation, and any program updates provided as part of Singularity. The term “E3S Programs” does not include Separately Licensed Third-Party Technology.

 

1.5.    “Professional Services” means, collectively, the consulting and other Professional Services which Customer ordered either directly or via the Certified E3S Partner. Professional Services include any deliverables described in Customer’s order and delivered by E3S or Partner to Customer under the order. The term “Professional Services” does not include the Singularity software offering.

1.6.    “Separate Terms” refer to separate license terms between Customer and a Third-Party licensor that are specified in the Program Documentation, Service Specifications, readme or notice files and that apply to Separately Licensed Third-Party Technology. “Separately Licensed Third-Party Technology” refers to Third-Party technology that is licensed under Separate Terms and not under the terms of this Agreement.

1.7.    “Services Environment” – In the case of either Singularity Subscription (“SaaS”) or Perpetual License offering deployed via Third-Party Cloud Hosting Services (for example, AWS or other), refers to the combination of hardware and software components owned, licensed or managed by hosting provider to which hosting provider grants Customer access as part of the Singularity offering which Customer ordered. In the case of either Singularity Subscription (“SaaS”) or Perpetual License offering being deployed on premise, refers to the combination of software and hardware components owned, licensed or managed by Customer to which E3S grants Customer access for use of the Singularity software as part of the Singularity Software offering which Customer ordered. Subject to the terms of this Agreement and Customer’s order, the Singularity Software, and applicable E3S ancillary Programs, Third-Party Content, Customer Content and Customer Applications may be hosted by a third-party hosting provider or, within Customer own environment.

 

1.8.   “Service Specifications” means the descriptions specified by E3S, that are applicable to the Singularity Perpetual License or Singularity SaaS offering under Customer’s order, including any Program Documentation, hosting, support and security policies, and other descriptions referenced or incorporated in such descriptions of Customer’s order.

 

1.9.   “Services Period” refers to the period or term of service for which Customer has ordered the Singularity Perpetual License (perpetual term) or Singularity SaaS offering as specified in Customer’s order.

 

1.10.   “Third-Party Content” means all text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content and material, in any format, that are obtained or derived from Third-Party sources outside of the Singularity Software offering and made available to Customer through, within, or in conjunction with Customer use of, Singularity Software offering. Examples of Third-Party Content include data feeds from social network services, RSS feeds from blog posts, and data libraries and dictionaries. Third-Party Content does not include Separately Licensed Third-Party Technology.

 

1.11.   “Users” means those employees, contractors, and end users, as applicable, authorized by Customer or on Customer behalf to use or access the Singularity Software offering in accordance with this Agreement and Customer’s order. For Singularity Software offering implementations that are specifically designed to allow Customer’s own customers, suppliers or other third parties to access the Singularity offering to interact with Customer, such third parties will be considered “Users” subject to the terms of this Agreement and Customer’s order.

 

1.12.   “Customer” refers to the Ordering Activity under contracts identified in the Purchase Order, Statement of Work, or similar document.

 

1.13.  “Customer Applications” means all software programs, including any source code for such programs, that Customer or Customer Users provide and load onto, or create using, the Singularity Software offering instance or instances. The Singularity Software offering under this Agreement, including all E3S intellectual property, and all derivative works thereof, do not fall within the meaning of the term “Customer Applications.”

 

1.14.   “Customer Content” means all text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content and material (other than Customer Applications), in any format, provided by Customer or Customer Users that reside in, or run on or through, the Singularity Software offering operating environment.

 

  1. TERM OF AGREEMENT

 

2.1.     In the case of an Singularity Subscription or SaaS offering, this Agreement is valid for a period indicated in the purchase order and entered as of the date set forth in the Purchase Order, Statement of Work, or similar document.

 

2.2.     In the case of a Perpetual License Agreement, this Agreement’ is effective as of the date set forth in the Purchase Order, Statement of Work, or similar document and will remain valid as long as the Annual Maintenance and Support fees are paid in full for the then current service period.

 

2.3.     Agreement may also be referenced for any purchase that increases the quantity of the original Services ordered (e.g., Terabytes (TB) of data ingested), for any Singularity options offered by E3S for the original Services ordered, and for any renewal or of the Services Period of the original order.

 

  1. RIGHTS GRANTED

 

3.1.   For the duration of the Services Period described in item 2 of this Agreement and subject to Customer payment obligations, and except as otherwise set forth in this Agreement or Customer’s order, Customer have the non-exclusive, non-assignable, royalty free, worldwide limited right to access and use the Singularity Software offering that Customer ordered, including anything developed by E3S and delivered to Customer as part of the Singularity Software offering, solely for Customer internal business operations and subject to the terms of this Agreement and Customer’s order, including the Service Specifications. Customer may allow Customer Users to use the Singularity Software offering for this purpose and Customer is responsible for Customer Users’ compliance with this Agreement and the order. Customer does not acquire under this Agreement any right or license to use the Singularity Software offering, in excess of the scope and/or duration of the Singularity Software offering stated in Customer’s order. In the case of a Subscription (SaaS) license, upon the end of the Service Period ordered for the Singularity SaaS offerings, Customer’s right to access and use the Singularity Software will terminate unless applicable Subscription is renewed.

 

3.2.   If Customer Applications environment include Third-Party programs that must interface or integrate with the Singularity Software offering, Customer acknowledge that E3S may allow providers of those Third-Party programs to access the Singularity Software offering environment, including Customer Content and Customer Applications via connector, API or other means, as required for the interoperation of such Third-Party programs with the Singularity Software E3S will not be responsible for any use, disclosure, modification or deletion of Customer Content or Customer Applications resulting from any such access by Third-Party program providers or for the interoperability of such Third-Party programs with the Singularity Software.

 

3.3.   Except as otherwise expressly set forth in Customer’s order for E3S Singularity Software offering, Customer acknowledge that E3S has no physical delivery obligation of media (ex. CD) for E3S Singularity Software and will not ship copies of such programs to Customer as part of the Services.

 

3.4.   The Singularity Software offering may contain or require the use of Separately Licensed Third- Party Technology. Customer is responsible for complying with the Separate Terms specified by E3S that govern Customer use of Separately Licensed Third-Party Technology, if required. E3S may provide certain notices to Customer in the specifications, Program Documentation, readme or notice files in connection with such Separately Licensed Third- Party Technology. The Third-Party owner, author or provider of such Separately Licensed Third- Party Technology retains all ownership and intellectual property rights in and to such Separately Licensed Third-Party Technology.  Nothing herein shall bind the Ordering Activity to any Third-Party terms unless the terms are provided for review and agreed to in writing by all parties.

 

3.5.   As part of the Singularity offering, E3S may provide Customer with access to Third-Party Content that is embedded within the Singularity Software offering. The type and scope of any Third-Party Content is defined in the Service Specifications applicable to Customer’s order. The Third-Party owner, author or provider of such Third-Party Content retains all ownership and intellectual property rights in and to that content, and Customer rights to use such Third-Party Content are subject to, and governed by, the terms applicable to such content as specified by such Third-Party owner, author or provider.

 

  1. OWNERSHIP AND RESTRICTIONS

 

4.1.   Customer retains all ownership and intellectual property rights in and to Customer Content and Customer Applications. E3S or its licensors retain all ownership and intellectual property rights to the Singularity Software offering, including E3S Ancillary Programs and to anything developed or delivered by or on behalf of E3S under this Agreement for the Customer.  Ownership of derivative works should be as set forth in the copyright statute, 17 U.S.C. § 103 and the FAR clause at 52.227-14, but at a minimum, the Ordering Activity shall receive unlimited rights to use such derivative works at no further cost. 

 

4.2.   Customer may not, and may not cause or permit others to:

 

  1. a) remove or modify any program markings or any notice of E3S’s or its licensors’ proprietary rights;
  2. b) make the programs or materials resulting from the Services (excluding Customer Content and Customer Applications) available in any manner to any Third-Party for use in the Third- Party’s business operations (unless such access is expressly permitted for the specific Services Customer have acquired);
  3. c) modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, distribute, republish or download any part of the Services (the foregoing prohibitions include but are not limited to review of data structures or similar materials produced by programs), or access or use the Services in order to build or support, and/or assist a Third- Party in building or supporting, products or Services competitive to E3S;
  4. d) perform or disclose any benchmark or performance tests of the Singularity software;
  5. e) perform or disclose any of the following security testing of the Singularity software or associated infrastructure: network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing; and
  6. f) license, sell, rent, lease, transfer, assign, distribute, host, outsource, permit timesharing or service bureau use, or otherwise commercially exploit or make available the Singularity software, Ancillary Programs, or E3S materials to any Third-Party, other than as expressly permitted under the terms of the applicable order.

 

  1. SINGULARITY SUBSCRIPTION (SaaS) AND SINGULARITY PERPETUAL LICENSE SPECIFICATIONS

 

5.1.    The Singularity Software offering is subject to and governed by Service Specifications applicable to Customer’s order. Service Specifications may define provisioning and management processes applicable to the Services (such as capacity planning), types and quantities of system resources (such as storage allotments), functional and technical aspects of the Singularity Software, as well as any deliverables. Customer acknowledges that use of the Singularity Software in a manner not consistent with the Service Specifications may adversely affect performance and/or may result in additional fees. If the Services permit Customer to exceed the ordered quantity (e.g., volume of data ingested), then Customer, upon notification by E3S, is responsible for promptly purchasing additional quantity of Terabytes(TB)to account for Customer excess usage and bring back license into compliance. In the case of Perpetual Licenses, the Annual Maintenance and Support fees will also be adjusted accordingly.

 

5.2.    E3S may recommend changes or updates to the Singularity software operating specifications (such as infrastructure, security, technical configurations, application features, etc.) during the Services Period, including to reflect changes in technology, industry practices, patterns of system use, and availability of Third-Party Content. The Singularity software specifications are subject to change at E3S’s discretion; however, E3S changes to the Singularity software specifications will not result in a material reduction in the level of performance or availability of the applicable Singularity software provided to Customer for the duration of the services period.

 

5.3.    For each instance of the Singularity license, whether Perpetual or Subscription, Customer’s order will specify the Data Center Region(s) in which Customer’s Singularity software will reside. As described in the Singularity software specifications and to the extent applicable to the Singularity software offering that Customer has ordered, E3S will provide, as required by customer, production, and development environments in the Data Center Region stated in Customer’s order. E3S and its affiliates may perform certain services associated with the provisioning of the Singularity software offering, such as service administration and support, as well as other Services (including Professional Services and disaster recovery), from remote locations and/or through use of subcontractors, worldwide.

 

  1. USE OF THE SERVICES

 

6.1.    Customer is responsible for approving access by authorized Users to the Singularity software offering, for controlling against unauthorized access by Users, and for maintaining the confidentiality of usernames, passwords, and account information. Customer is responsible for all activities that occur under Customer and Customer Users’ usernames, passwords, or accounts or as a result of Customer or Customer Users’ access to the Services and agree to notify E3S immediately of any unauthorized use. Customer agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Singularity SaaS offering.

 

6.2.    Customer agrees not to use or permit use of the Singularity software offering, including by uploading, emailing, posting, publishing or otherwise transmitting any material, including Customer Content, Customer Applications and Third-Party Content, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to E3S under this Agreement, E3S reserves the right, but has no obligation, to take remedial action if any material violates the restrictions in the foregoing sentence (the “Acceptable Use Policy”), including the removal or disablement of access to such material. E3S shall have no liability to Customer in the event that E3S takes such action. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and ownership of all of Customer Content and Customer Applications.

 

6.3.    Customer is required to accept all patches, bug fixes, updates, maintenance and service packs (collectively, “Patches”) necessary for the proper function and security of the Singularity software offering, as such Patches are generally released by E3S as described in the Service Specifications. E3S is not responsible for performance or security issues encountered with the Singularity software offering that result from Customer failure to accept the application of Patches that are necessary for the proper function and security of the Singularity software offering. Except for emergency or security related maintenance activities, E3S will coordinate with Customer the scheduling of application of Patches, where possible, based on E3S’s next available standard maintenance window.

 

  1. SINGULARITY EVALUATION AND PILOT

 

E3S may make available certain Singularity software offering instances for trial or other non- production evaluation purposes. An evaluation of the Singularity software offering must be ordered under a separate agreement. Note that hosting costs may be applicable and may be charged by E3S.

 

  1. FEES AND TAXES

 

8.1.    All fees payable to the Contractor on behalf of E3S are due in full within 30 days of the receipt of the invoice, unless otherwise agreed upon elsewhere in writing.  Vendor shall state separately on invoices taxes excluded from the fees, and the Customer agrees either to pay the amount of the taxes (based on the current value of the equipment) or provide evidence necessary to sustain an exemption, in accordance with FAR 52.229-1 and FAR 52.229-3.Ordering Activity Licensee agrees to pay any travel expenses in accordance with Federal Travel Regulation (FTR)/Joint Travel Regulations (JTR), as applicable, Ordering Activity shall only be liable for such travel expenses as approved by Ordering Activity and funded under the applicable ordering document.

 

8.2.    Customer understands that it may receive multiple invoices for the Singularity software offering and Professional Services Customer’s ordered. Invoices will be submitted to Customer pursuant to E3S’s Standard Invoicing Policy described in 8.1.

 

8.3.    Customer agrees and acknowledges that it has not relied on the future availability of any services, programs or updates in entering into the payment obligations in Customer’s order; however, the preceding does not relieve E3S of its obligation during the Services Period to deliver said Singularity software offering that Customer has ordered per the terms of this Agreement.

 

  1. SERVICES PERIOD; END OF SERVICES

 

9.1.    Singularity software offering provided under this Agreement shall be provided for the Services Period defined in Customer’s order, unless either suspended or terminated in accordance with this Agreement or the order. If stated in the Services Specifications, the Singularity software offering that is ordered, including applicable Annual Support and Maintenance fees, may be Renewed for additional Services by exercising an option, or by both parties executing a new purchase order in writing.

 

9.2.    Upon the end of an Singularity SaaS subscription, Customer no longer has rights to access or use the Services, including the associated E3S Programs and Services Environments; however, at Customer request, and for a period of up to 60 days after the end of the applicable Services Period, E3S will make available Customer Content and Customer Applications then in the Singularity Software environment for the purpose of retrieval by Customer. At the end of this 60-day period, and except as may be required by law, E3S will delete or otherwise render inaccessible any of Customer Content and Customer Applications that remain in the Singularity offering environment.

 

9.3.    Upon the end of an annual maintenance and support services period associated with an Singularity Perpetual License Agreement, the responsibility of E3S to continue support and maintenance of the Singularity offering purchased by Customer will end unless said support and maintenance is renewed and payment is received in full from Customer following receipt of invoice provided by E3S for continued support and maintenance of the Singularity software.

 

9.4.    E3S may temporarily suspend Customer password, account, and access to or use of the Singularity Software offering if in E3S’s reasonable judgment the Singularity Software offering or any component thereof are about to suffer a significant threat to security or functionality. E3S will strive to provide advance notice to Customer of any such suspension in E3S’s reasonable discretion based on the nature of the circumstances giving rise to the suspension. E3S will use reasonable efforts to re-establish the affected Singularity Software offering promptly after E3S determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured; however, during any suspension period, E3S will make available to Customer Content and Customer Applications as existing in the Singularity Software offering environment on the date of suspension. E3S may terminate the Singularity Software offering subscription or License under an order if any of the foregoing causes of suspension are not cured within 30 days after E3S’s initial notice thereof. Any suspension or termination by E3S under this paragraph shall not excuse Customer from Customer obligation to make payment(s) under this Agreement.

 

9.5.    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 brought as a dispute under the contract Disputes Clause (Contract Disputes Act). During any dispute under the Disputes Clause, E3S shall proceed diligently with performance of this Agreement, pending final resolution of any request for relief, claim, appeal, or action arising under the Agreement, and comply with any decision of the Contracting Officer. If E3S terminates the order as specified in the preceding sentence, Customer must pay within 30 days of the invoice receipt date all amounts that have accrued prior to such termination. Except for nonpayment of fees, the non-breaching party may agree in its sole discretion to extend the 30-day period for so long as the breaching party continues reasonable efforts to cure the breach.

 

9.6.    Provisions that survive termination or expiration of this Agreement are those relating to limitation of liability, indemnification, payment, and others which by their nature are intended to survive.

 

  1. NONDISCLOSURE

 

10.1.   By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). Each Party agrees to disclose only information that is required for the performance of obligations under this Agreement. Confidential information shall be limited to the Customer Content and Customer Applications residing in the Singularity software operating environment, and all information clearly identified as confidential at the time of disclosure.

 

10.2.   A party’s Confidential Information shall not include information that:(a)is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a Third-Party without restriction on the disclosure; or (d) is independently developed by the other party.  E3S recognizes that Federal agencies are subject to the Freedom of Information Act, 5 U.S.C. 552, which may require that certain information be released, despite being characterized as “confidential” by the vendor.

 

10.3.   Each Party agrees not to disclose each other’s Confidential Information to any Third-Party other than as set forth in the following sentence for a period of three years from the date of the disclosing party’s disclosure of the Confidential Information to the receiving party; however, E3S will hold Customer Confidential Information that resides within the Singularity SaaS offering environment in confidence for as long as such information resides in the Services Environment. We each may disclose Confidential Information only to those employees, agents or subcontractors who are required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement. E3S will protect the confidentiality of Customer Content or Customer Applications residing in the Services Environment in accordance with the E3S security practices defined as part of the Service Specifications applicable to Customer’s order. In addition, Customer Personal Data will be treated in accordance with the terms of Section 11 below. Nothing shall prevent either party from disclosing the terms or pricing under this Agreement or orders placed under this Agreement in any legal proceeding arising from or in connection with this Agreement or from disclosing the Confidential Information to a governmental entity as required by law.

 

 

  1. DATA PROTECTION

 

11.1.   In performing Professional Services ordered, E3S will comply with recognized Industry Best Practices. The application of such practices is subject to change at E3S’s discretion; however, E3S policy changes will not result in a material reduction in the level of protection provided for Customer Personal Data provided as part of Customer Content during the Services Period of Customer’s order.

 

11.2.   The Singularity software offering specifications applicable to Customer’s order define the administrative, physical, technical, and other safeguards applied to Customer Content residing in the Singularity software offering environment and describe other aspects of system management applicable to the Singularity software offering. Customer is responsible for any security vulnerabilities and the consequences of such vulnerabilities arising from Customer Content and Customer Applications including any viruses, Trojan horses, worms or other programming routines contained in Customer Content or Customer Applications that could limit or harm the functionality of a computer or that could damage, intercept or expropriate data.

 

  1. WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES

 

12.1.   If applicable, E3S warrants that it will perform (i) Professional Services in a professional manner in accordance with the Service Specifications. If the Professional Services provided by E3S to Customer were not performed as warranted, Customer must promptly provide written notice to E3S that describes the deficiency in the Professional Services (including, as applicable, the service request number notifying E3S of the deficiency in the Professional Services).

 

12.2.   E3S DOES NOT GUARANTEE THAT (A) SINGULARITY SOFTWARE OFFERING WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT E3S WILL CORRECT ALL SINGULARITY SOFTWARE OFFERING ERRORS, (B) THE SINGULARITY SOFTWARE OFFERING WILL OPERATE IN COMBINATION WITH CUSTOMER CONTENT OR CUSTOMER APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS, SERVICES OR DATA NOT PROVIDED BY E3S, AND (C) THE SINGULARITY SOFTWARE OFFERING WILL MEET CUSTOMER REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS. CUSTOMER ACKNOWLEDGE THAT E3S DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. E3S IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. E3S IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SINGULARITY SOFTWARE OFFERING THAT ARISE FROM CUSTOMER CONTENT, CUSTOMER APPLICATIONS OR THIRD-PARTY CONTENT. E3S DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE RELIABILITY, ACCURACY, COMPLETENESS, CORRECTNESS, OR USEFULNESS OF THIRD-PARTY CONTENT OR SERVICES, AND DISCLAIMS ALL LIABILITIES ARISING FROM OR RELATED TO THIRD PARTY CONTENT OR SERVICES.

 

12.3.   FOR ANY BREACH OF THE SINGULARITY SOFTWARE OFFERING WARRANTY, CUSTOMER EXCLUSIVE REMEDY AND E3S’S ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENCIES THAT CAUSED THE BREACH OF WARRANTY, OR, IF E3S CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY(OR DEFICIENCIES) IN A COMMERCIALLY REASONABLE MANNER, CUSTOMER MAY END THE DEFICIENT SERVICES AND, IN THE UNIQUE CASE OF A E3S SINGULARITY SOFTWARE-AS-A-SERVICE OFFERING, E3S MAY REFUND TO CUSTOMER THE FEES FOR THE TERMINATED SERVICES THAT CUSTOMER PRE-PAID TO E3S FOR THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION.

 

12.4.   TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.

 

  1. LIMITATION OF LIABILITY

 

NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT), DATA, OR DATA USE. E3S’S AGGREGATE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR CUSTOMER’S ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL BE LIMITED TO THE TOTAL AMOUNTS ACTUALLY PAID TO E3S FOR THE SERVICES UNDER THE ORDER GIVING RISE TO THE LIABILITY.

 

  1. INDEMNIFICATION

 

14.1.   Subject to the terms of this Section14 (Indemnification), if a Third-Party makes a claim against Customer (“Recipient”), that any information, design, specification, instruction, software, service, data, hardware, or material (collectively, “Material”) furnished by either E3S (“Provider”) and used by the Recipient infringes the Third-Party’s intellectual property rights, the Provider, at the Provider’s sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the Third-Party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:

 

  1. a) notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law);
  2. b) gives the Provider control of the defense and any settlement negotiations; and
  3. c) gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim. 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.

 

14.2.   If the Provider believes or it is determined that any of the Material may have violated a Third- Party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material. If such return materially affects E3S’s ability to meet its obligations under the relevant order, then E3S may, at its option and upon 30 days prior written notice, terminate the order.

 

14.3.   The Provider will not indemnify the Recipient if the Recipient (a) alters the Material or uses it outside the scope of use identified in the Provider’s user or program documentation or Service Specifications, (b) uses a version of the Material which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was made available to the Recipient, or (c) continues to use the applicable

Material after the end of the license to use that Material. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon any information, design, specification, instruction, software, service, data, hardware or material not furnished by the Provider. E3S will not indemnify Customer for any portion of an infringement claim that is based upon the combination of any Material with any products or Services not provided by E3S. E3S will not indemnify Customer to the extent that an infringement claim is based on Third-Party Content or any Material from a Third-Party portal or other external source that is accessible to Customer within or from the Services (e.g., a social media post from a Third-Party blog or forum, a Third-Party Web page accessed via a hyperlink, etc.). E3S will not indemnify Customer for infringement caused by Customer actions against any Third-Party if the Services as delivered to Customer and used in accordance with the terms of this Agreement would not otherwise infringe any Third-Party intellectual property rights. E3S will not indemnify Customer for any intellectual property infringement claim(s) known to Customer at the time Services rights are obtained.

 

14.4.   The term “Material” defined above does not include Separately Licensed Third-Party Technology. Solely with respect to Separately Licensed Third-Party Technology that is part of or is required to use Singularity and that is used: (a) in unmodified form; (b) as part of or as required to use the Singularity software offering; and (c) in accordance with the usage grant for the relevant Singularity software offering and all other terms and conditions of this Agreement, E3S will indemnify Customer for infringement claims for Separately Licensed Third-Party Technology to the same extent as E3S is required to provide infringement indemnification for Materials under the terms of the Agreement.

 

14.5.   This Section 14 provides the parties’ exclusive remedy for any infringement claims or damages.

 

  1. THIRD PARTY WEB SITES, CONTENT, PRODUCTS AND SERVICES

 

15.1.   The Singularity software offering may enable Customer to link to, transmit Customer Content to, or otherwise access, other Web sites, content, products, services, and information of third parties. E3S does not control and is not responsible for such Web sites or any such content, products, services and information accessible from or provided through the Singularity software offering, and Customer bear all risks associated with access to and use of such Web sites and Third-Party content, products, services and information. Any Third-Party Content made accessible by E3S in or through the Singularity software offering environment is provided on an “as-is” and “as available” basis without any warranty of any kind. Third-Party Content may be indecent, offensive, inaccurate, infringing or otherwise objectionable or unlawful, and Customer acknowledge that E3S is not responsible for and under no obligation to control, monitor or correct Third-Party Content; however, E3S reserves the right to take remedial action if any such content violates applicable restrictions under Section 6.2 of this Agreement, including the removal of, or disablement of access to, such content.

 

15.2.   Customer acknowledge that: (i) the nature, type, quality and availability of Third-Party Content may change at any time during the Services Period, and (ii) features of the Singularity software offering that interoperate with third parties depend on the continuing availability of such third parties’ respective application programming interfaces (APIs) for use with the Singularity software offering. E3S may update, change, or modify the Singularity software offering under this Agreement as a result of a change in, or unavailability of, such Third-Party Content or Third-Party APIs. If any Third-Party ceases to make its Third-Party Content or APIs available on reasonable terms for the Singularity software offering, as determined by E3S in its sole discretion, E3S may cease providing access to the affected Third-Party Content or Third-Party API’s without any liability to Customer. In the event that E3S ceases providing access to the affected Third-Party Content or Third-Party API’s that Ordering Activity has contracted for, Ordering Activity shall be entitled to a pro rata refund for any fees paid not used.

 

  1. SERVICES TOOLS AND ANCILLARY PROGRAMS

 

16.1.   E3S may use tools, scripts, software, and utilities (collectively, the “Tools”) to monitor and administer the Singularity software offering and to help resolve E3S service requests. The Tools will not collect or store any of Customer Content or Customer Applications residing in the Singularity software offering environment, except as necessary to provide the Singularity software offering or troubleshoot service requests or other problems in the Singularity software offering. Information collected by the Tools (excluding Customer Content and Customer Applications) may also be used to assist in managing E3S’s product and service portfolio, to help E3S address deficiencies in its Singularity software offering, and for license and Services management.

 

16.2.   As part of the Singularity software offering, E3S may provide Customer with on-line access to download certain Ancillary Programs for use with the Singularity software offering. If E3S does not specify separate terms for such Ancillary Programs, then, subject to Customer payment obligations, Customer has the non-exclusive, non-assignable, royalty free, worldwide limited right to use such Ancillary Programs solely to facilitate Customer access to, operation of, and/or use of the Singularity software offering environment, subject to the terms of this Agreement and Customer’s order, including the Singularity software offering Specifications. Customer’s right to use such Ancillary Programs will terminate upon the earlier of E3S’s notice, the end of the Singularity software offering associated with the Ancillary Programs, or the date on which the license to use the Ancillary Programs ends under the Separate Terms specified for such programs.

 

  1. SERVICE ANALYSES

 

E3S may (i) compile statistical and/or other information related to the performance, operation and use of the E3S Singularity software offering, and (ii) use data from the E3S Singularity software offering environment in aggregated form for the security, operations, and management in order to create any statistical analyses, and for research and development purposes (clauses (i) and (ii) are collectively referred to as “Service Analyses”). E3S may make Service Analyses publicly available; however, Service Analyses will not incorporate Customer Content or Confidential Information in a form that could serve to identify Customer or any individual, and Service Analyses do not constitute Personal Data. E3S retains all intellectual property rights in Service Analyses.

 

  1. EXPORT

 

Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Singularity software offering.

 

18.1.   Customer agrees that such export laws govern Customer use of the software offering (including technical data) and any Singularity software offering deliverables provided under this Agreement, and Customer agrees to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations).

 

18.2.   Customer agrees that no data, information, software programs and/or materials resulting from Singularity software offering (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.

 

18.3.   Customer acknowledges that the Singularity software offering is designed with capabilities for Customer to access the Singularity software offering environment without regard to geographic location and to transfer or otherwise move Customer Content and Customer Applications between the Singularity software offering environment and other locations such as Enterprise Content Management (“ECM”) environments.

 

18.4.   Customers are solely responsible for the authorization and management of export control and geographic transfer of Customer Content and Customer Applications.

 

  1. FORCE MAJEURE

Force Majeure: Neither party shall be liable for any failure of or delay in performance of its obligations under this Agreement to the extent such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of God, acts of a public enemy, pandemics, fires, floods, wars, civil disturbances, sabotage, accidents, insurrections, terrorism, blockades, embargoes, storms, explosions, labor disputes (whether or not the employees’ demands are reasonable and within the party’s power to satisfy), acts of any governmental body, failure or delay of third parties or governmental bodies from whom approvals, authorizations, licenses, franchises or permits must be obtained, or inability to obtain labor, materials, equipment, or transportation or illness of MSP’s technical staff (collectively referred to herein as “Force Majeure”). Each party shall use reasonable efforts to minimize the duration and consequences of any failure of or delay in performance resulting from a Force Majeure event.

Excusable delays shall be governed by FAR 52.212-4(f).

 

  1. GOVERNING LAW AND JURISDICTION

 

Unless agreed upon elsewhere in writing, this Agreement shall be governed by the substantive and procedural Federal laws of the United States. The Uniform Computer Information Transactions Act does not apply to this Agreement or to orders placed under it.

 

  1. NOTICE

 

21.1.   Any notice required under this Agreement shall be provided to the other party in writing. If Customer has a dispute with E3S or if Customer wishes to provide a notice under the Indemnification Section of this Agreement, or if Customer become subject to insolvency or other similar legal proceedings, Customer will promptly send written notice to End To End Enterprise Solutions, LLC., 1800 Diagonal Road, Suite 600, Alexandria, VA 22314, Attention: General Counsel.

 

21.2.   Specific to an Singularity Subscription (SaaS)environment, to request a termination of the Singularity SaaS offering environment at the end of the contractual term and in accordance with this Agreement, Customer must submit a service request to E3S at the address specified in Customer’s order or the Service Specifications. Such cancellation will not relieve customer of any existing or remaining financial obligations associated with this Agreement.

 

21.3.   E3S may give notices applicable to E3S’s Singularity customer base by means of a general notice on the E3S web site or other means, and notices specific to Customer by electronic mail to Customer e-mail address on record or by written communication sent by first class mail or pre-paid post to Customer address on record in E3S’s account information.

 

  1. ASSIGNMENT

 

Customer may not assign this Agreement or give or transfer the Singularity software offering or an interest in it to another individual or entity. If Customer grant a security interest in any portion of the Singularity software offering, the secured party has no right to use or transfer the Singularity software offering or any deliverables. The foregoing shall not be construed to limit the rights Customer may otherwise have with respect to Separately Licensed Third-Party Technology licensed under open source or similar license terms.

 

  1. OTHER

 

23.1.   E3S is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between E3S and Customer. We each will be responsible for paying our own employees, including employment related taxes and insurance. Customer understands that E3S’s business partners and other third parties, including any Third-Party firms retained by Customer to provide consulting or implementation services or applications that interact with the Singularity software offering environment, are independent of E3S and are not E3S’s agents. E3S is not liable for, bound by, or responsible for any problems with the Singularity software offering arising due to, any acts of any such business partner or Third-Party, unless the business partner or Third- Party is providing Services as an E3S subcontractor on an engagement ordered under this Agreement and, if so, then only to the same extent as E3S would be responsible for E3S resources under this Agreement.

 

23.2.   If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with another term consistent with the purpose and intent of this Agreement.

 

23.3.   Except for actions for nonpayment or breach of E3S’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than six years after the cause of action has accrued.

 

23.4.   Customer shall obtain at Customer’s sole expense any rights and consents from third parties necessary for Customer Content, Customer Applications, and Third-Party Content, as well as other vendor’s products provided by Customer that Customer use with the Singularity software offering, including such rights and consents as necessary for E3S to perform the services under this Agreement.

 

23.5.   Customer agrees to provide E3S with all information, access and full good faith cooperation reasonably necessary to enable E3S or its partners or subcontractors to provide the services required as well as deploy the Singularity software offering and Customer will perform the actions identified in Customer’s order as Customer responsibilities.

 

23.6.   Customer remains solely responsible for Customer’s regulatory compliance in connection with Customer’s use of the Singularity software offering. Customer is responsible for making E3S aware of any technical requirements that result from Customer’s regulatory obligations prior to entering into an order governed by this Agreement. E3S will cooperate with Customer’s efforts to determine whether use of the standard Singularity software offering is consistent with those requirements. Additional fees may apply to any additional work performed by E3S or changes to the Singularity software offering.

 

23.7.   E3S reserves the right to audit Customer’s use of the Singularity software offering (e.g., through use of software tools), following a fourteen days advance notice, to assess whether Customer use of the Singularity software offering is in accordance with Customer’s order and the terms of this Agreement. Customer agrees to cooperate with E3S’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Customer’s normal business operations and shall be in accordance with Customer’s security requirements. Customer agree to pay within 30 days of written notification any fees applicable to Customer’s use of the Singularity software offering in excess of Customer rights. Customer agree that E3S shall not be responsible for any of Customer costs incurred in cooperating with the audit.

 

23.8.   The purchase of the Singularity software offering, E3S Professional Services, or other service offerings, programs or products are all separate offers and separate from any other order. Customer understands that Customer may purchase Singularity software offering, E3S Professional Services, or other service offerings, programs, or products independently of any other order. Customer’s obligation to pay under any order is not contingent on performance of any other service offerings or delivery of programs or products.

 

  1. ENTIRE AGREEMENT

 

If purchases are made through a reseller, this Agreement is the complete and exclusive statement of the mutual understanding of Licensor and Customer as it relates to the licensing of the software and supersedes and cancels all previous written and oral agreements and communications between Licensor and Customer relating to the subject matter of this Agreement. Nothing in this Agreement modifies any terms and conditions between the Customer and any prime contractor under which the Licensor’s Products were ordered.  If purchases are made directly with the original manufacturer, this Agreement, together with the underlying, Schedule Pricelist, and Purchase Order(s), sets forth the entire agreement and understanding of the Parties relating to the object hereof and merges all prior discussions and agreements of the matter hereof between them.

 

It is expressly agreed that the terms of this Agreement and any E3S order shall supersede the terms in any procurement internet portal, or other similar non-E3S document and no terms included in any such portal, or other non-E3S document shall apply to the Singularity software offering and any E3S Professional Services ordered. In the event of any inconsistencies between the terms of an order and the Agreement, the order shall take precedence; however, unless expressly stated otherwise in an order, the terms of the Data Processing Agreement shall take precedence over any inconsistent terms in an order. Except as otherwise permitted in Section 5 (Service Specifications), Section 11 (Data Protection) and Section 15 with respect to the Singularity software offering, this Agreement and orders hereunder may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted by authorized representatives of Customer and of E3S. No third-party beneficiary relationships are created by this Agreement.