TERMS AND CONDITIONS OF SALE

These Terms and Conditions of Sale (these “Terms”) apply to the order form or quote document to which they are attached (the “Order”), and set forth the legal terms governing the purchase of software and/or products set forth in said Order (each a “Product” and collectively, the “Products”) by the customer entity identified in the Order (“Customer”) from ECS Federal, LLC (“ECS”) (Customer and ECS each a “Party” and collectively the “Parties”). Once Customer executes the Order, these Terms and said Order together constitute a valid and binding legal contract between Customer and ECS (the “Agreement”), effective as of the date of execution (the “Effective Date”). The Parties agree as follows:

1. Licensed Software. If the Products include a license to software installed or accessed on hardware, network, or systems infrastructure owned and/or operated by Customer or a third party (“Licensed Software”), Customer agrees to abide by all of the terms and conditions of the license to such Licensed Software between Customer and the owner, operator, and/or developer of such Licensed Software (the “Licensor”), and any other documentation for the Licensed Software provided by Licensor. Such license terms may be set forth in a separate end user license agreement or similar agreement to be provided by Licensor with the Licensed Software. Customer acknowledges that ECS is not a party to any such separate license agreement, and that ECS shall have no liability or responsibility to Customer thereunder. Customer further acknowledges and agrees that ECS is only the reseller of licenses to Licensed Software, and not the owner, operator, or developer of Licensed Software, and therefore shall have no liability or responsibility whatsoever for the form, functionality, timeliness, specifications, quality, or performance of the Licensed Software, whether under this Agreement or any other theory of liability or cause of action.
2. Subscription Software.
   1. License and Restrictions. If the Products include a subscription license to access software hosted on hardware, network, or systems infrastructure owned and operated by ECS (“Subscription Software”), then subject to Customer’s compliance with the terms and conditions of this Agreement, ECS hereby grants to Customer a non-exclusive, limited, revocable, non-sublicensable, non-transferable license during the Term (defined below) to allow its authorized end-user personnel (“Permitted Users”) to access and use the Subscription Software solely for Customer’s internal, nonpublic business purposes. Customer may not provide access to the Subscription Software to any third party or any individual or entity who is not a Permitted User without first obtaining ECS’s prior written consent in each instance, to be granted or withheld in ECS’s sole discretion. In addition to and without limiting any license restrictions set forth in the Order, Customer may not, nor may Customer permit any third party to: (a) copy the Subscription Software or any component thereof; (b) modify, translate or otherwise create derivative works of the Subscription Software; (c) disassemble, decompile or reverse engineer the Subscription Software or any component thereof, including without limitation in object code or source code format; (d) bypass or breach any security device or protection used by the Subscription Software, or access the Subscription Software using any methods other than those permitted under this Agreement; (e) use or access the Subscription Software in any way or for any purpose which violates any applicable law or regulation; (f) damage, destroy, disrupt, disable, interfere with or otherwise impede or harm the Subscription Software or any of ECS’s systems or network infrastructure involved in the hosting and provision thereof; (g) remove, delete, alter, or obscure any trademarks, specifications, documentation, warranties, disclaimers, or intellectual property or proprietary rights notices from the Subscription Software; or (h) upload or otherwise introduce to the Subscription Software any virus, disabling device, or other harmful or malicious software code, tool, or application. Customer further acknowledges that the Subscription Software may be subject to separate license terms between Customer and the Licensor of Subscription Software, which may be set forth in a separate end user license agreement or similar agreement. Customer acknowledges that ECS is not a party to any such separate license agreement, and that ECS shall have no liability or responsibility to Customer thereunder.
   2. Suspension. ECS reserves the right to suspend or terminate Customer’s access to the Subscription Software: (a) immediately upon ECS’s determination of any actual or suspected breach of this Agreement or violation of any applicable law or regulation by Customer; or (b) upon written notice to Customer if ECS reasonably determines that its continued provision of such access would be in violation of any applicable law or regulation or otherwise expose either Party to the risk of liability from a third party claim brought in connection with such access.
   3. Systems Administration. Customer will take all actions as are reasonably necessary in order for it to maintain the confidentiality of, and prevent the unauthorized use of, all passwords and login information provided by ECS hereunder for the Subscription Software, using the same standard of care that it uses to protect its own passwords and login information, but in any event no less than a reasonable standard of care. Customer will immediately notify ECS in writing (email sufficient for this purpose) if Customer determines, or has reason to believe, that an unauthorized person or entity has gained access to a password or login to the Subscription Software. Customer acknowledges and agrees that ECS will be entitled to rely upon any information and/or instructions set forth in any data transmission or other input sent or received from any person or entity using valid login credentials for the Subscription Software, without making further investigation or inquiry, and regardless of the actual identity of the person or entity transmitting the same. As between the Parties, Customer shall be solely responsible for any use of the Subscription Software occurring through passwords or logins provided to Customer, as well as for any liability that arises from Customer’s failure to maintain the confidentiality of such passwords or logins.
3. Payment. The fees for the Products sold and licenses granted (the “Fees”) shall be invoiced and paid according to the amounts, schedule, and procedure set forth in the Order. Unless otherwise expressly indicated in the Order, all payments of Fees shall be due and payable by Customer within thirty (30) days of the date of the applicable invoice. Customer shall pay all applicable taxes or provide ECS with an exemption certificate or other sufficient evidence of an exemption. Except as otherwise expressly set forth hereunder, all Fees set forth in this Agreement are non-refundable. If Customer fails to pay any Fees when due under the schedule set forth in the Order, such Fees shall bear late charges calculated at the rate of one and one-half percent (1.5%) per month of the total outstanding amount. Customer shall be responsible for all collection costs (including without limitation reasonable attorney’s fees) arising from ECS’s efforts to collect past due Fees from Customer.
4. Proprietary Rights. Customer acknowledges and agrees that the applicable Licensor is the sole owner of all ownership rights, title, and interest, including without limitation any and all associated intellectual property rights, in and to any Licensed Software and/or Subscription Software that ECS provides, discloses, or makes available under this Agreement, including without limitation any updates, enhancements, customizations, modifications, and developments thereto or derivative works thereof. Nothing in this Agreement shall constitute or be construed as any sale, assignment, or other transfer of any proprietary interest in or to any Work Product, Licensed Software, or Subscription Software, and ECS and/or the applicable Licensor hereby reserves all rights in the Products not expressly granted hereunder. Customer acknowledges that, in the course of its receipt of licenses hereunder, Customer may provide remarks, suggestions, requests, recommendations, improvements, or comments regarding the Products or other of ECS’s business activities or proprietary materials (collectively, “Feedback”). Customer hereby irrevocably assigns, and agrees to assign, to ECS all right, title, and interest in or to any and all such Feedback, together with all proprietary rights embodied therein and any and all rights to use, disclose, and otherwise exploit all such Feedback for any and all internal, public, commercial, and non-commercial purposes. Upon ECS’s request, Customer shall reasonably cooperate with any effort by ECS to evince, memorialize, perfect, or register the foregoing transfer of right and interest, including without limitation the execution and delivery of any documents reasonably required therefor.
5. Term and Termination. This Agreement commences as of the Effective Date and continues for the period specified on the Order, unless earlier terminated pursuant to this Section (the “Term”). If a subscription license is purchased, the Subscription Start Date shall be the date of delivery of the subscription by the Original Equipment Manufacturer. Either Party may terminate this Agreement upon written notice to the other Party in the event of the other Party’s material breach of any of its representations, warranties, or obligations hereunder, said breach remaining uncured for thirty (30) days following the breaching Party’s receipt of notice regarding such breach from the non-breaching Party. ECS may terminate this Agreement immediately upon written notice to the Customer in the event that Customer becomes insolvent, files or has filed against it a petition for voluntary or involuntary bankruptcy, makes or seeks to make a general assignment for the benefit of its creditors, or applies for or has appointed a receiver, trustee, or custodian to take charge of or sell any material portion of its property or business. Upon the termination or expiration of this Agreement for any reason, all licenses granted hereunder shall immediately terminate. Customer shall be responsible to pay all Fees applicable to any license granted or Service rendered hereunder up to the effective date of termination or expiration.
6. Warranty. Each Party represents and warrants that: (i) it has all right, power, and authority to enter into this Agreement and to perform its obligations and duties set forth hereunder; and (ii) its execution, delivery, and performance of this Agreement does not and will not conflict with, violate, or result in a material breach of any other agreement, judgment, court order, stipulation, or decree by which such Party is bound.

7. Disclaimer.  EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 6 ABOVE, ECS MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WHETHER ARISING FROM STATUTE, CUSTOM, COURSE OF DEALING, OR TRADE USAGE, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION WITH RESPECT TO ANY PRODUCT OR SERVICE.  TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ECS SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS REGARDING ALL PRODUCTS, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, AND/OR FITNESS FOR A PARTICULAR PURPOSE.  WITHOUT LIMITING THE FOREGOING DISCLAIMER, ECS DOES NOT WARRANT THAT ANY PRODUCT WILL OPERATE UNINTERRUPTED, ERROR-FREE, OR VIRUS-FREE, OR THAT ANY PRODUCT WILL MEET CUSTOMER’S EXPECTATIONS, SPECIFICATIONS, OR REQUIREMENTS.  CUSTOMER ACKNOWLEDGES AND AGREES THAT EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 6 ABOVE, ALL PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR GUARANTEE OF ANY KIND, AND THAT ECS DOES NOT PASS THROUGH OR OTHERWISE PROVIDE ANY WARRANTY FROM ANY APPLICABLE LICENSOR OR OTHER THIRD PARTY BY MEANS OF THIS AGREEMENT.  ECS SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY RESULTS, INFORMATION, OR OTHER OUTPUT OBTAINED BY CUSTOMER FROM ANY PRODUCTS, OR ANY DECISIONS MADE OR ACTIONS TAKEN BY CUSTOMER IN RELIANCE THEREON.

8. Limitation of Liability.  ECS’S TOTAL AGGREGATE LIABILITY TO CUSTOMER UNDER ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO ECS UNDER THE APPLICABLE ORDER IN THE SIX (6) MONTHS PRECEDING THE DATE AT WHICH SAID CLAIM OR CAUSE OF ACTION FIRST ACCRUED.  ECS SHALL NOT BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, WHETHER BASED UPON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, RESULTING FROM OR IN CONNECTION WITH THE PERFORMANCE OF ITS RESPECTIVE OBLIGATIONS UNDER THIS AGREEMENT, WHETHER FORESEEABLE OR NOT, AND EVEN IF ECS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. Indemnification. Customer shall indemnify, defend, and hold harmless ECS, its Affiliates, and their respective personnel, employees, officers, executives, agents, successors, and assigns (each an “Indemnitee” and collectively the “Indemnitees”) from and against any and all losses, liabilities, damages, and claims, and all costs and expenses relating to such losses, liabilities, damages and claims (including without limitation reasonable attorney’s fees) (collectively, “Losses”) arising out of or relating to any claim, suit, action, or other legal proceeding (each an “Indemnifiable Claim”) brought in connection with: (i) Customer’s material breach of any of its representations, warranties, or obligations hereunder; (ii) Customer’s gross negligence, willful misconduct, or violation of law; or (iii) Customer’s or any Permitted User’s use of or access to any Product. Promptly after receipt by an Indemnitee of written notice of the commencement or threatened commencement of an Indemnifiable Claim, ECS shall convey written notice of such claim to Customer. However, no failure by ECS to so notify Customer will limit or reduce Customer’s indemnification obligations under this Agreement, except to the extent that Customer is materially prejudiced by such failure. Customer will obtain prior written approval from ECS in respect of any proposed settlement of any indemnified claims hereunder before entering into any settlement of such claims or otherwise ceasing to defend such claims. Customer’s indemnification obligations under this Section shall survive the termination or expiration of this Agreement for any reason. If Customer is unable or unwilling to participate in the defense of a claim covered by this Section, the Indemnitees will have the right to defend the claim in such manner as they may deem appropriate, at Customer’s cost and expense. In such event, Customer will promptly reimburse the Indemnitees for all such costs and expenses, demands for which may be made periodically.
10. Miscellaneous.
    1. Notices. All notices required under this Agreement must be in writing. Notice will be deemed effective upon: (a) actual delivery to the other Party, if delivered in person, or by national overnight courier with delivery confirmation; or (b) upon receipt after being sent by certified mail, signature required, postage prepaid. Notices to ECS shall be sent to: ECS Federal LLC, Attention: Contracts Department, 2750 Prosperity Avenue, Suite 600, Fairfax, Virginia 22031. Notices to Customer shall be sent to the contact address listed in the Order. A Party may change its notice address hereunder upon written notice to the other Party regarding such change.
    2. Independent Contractors. The Parties hereto are independent contractors, and nothing in this Agreement shall constitute or be construed as creating a joint venture, partnership, employment relationship, or agency relationship between the Parties.
    3. No Third Party Beneficiaries. This Agreement is for the benefit of the Parties and is not intended to confer any rights or benefits on any third party.
    4. Assignment. Customer may not assign or delegate any of its rights or responsibilities under this Agreement without first obtaining ECS’s prior written consent. Any assignment in violation of this provision shall be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns.
    5. Entire Agreement. This Agreement, including the Terms and the Order, constitutes the complete agreement between the Parties with respect to its subject matter, and supersedes any prior or contemporaneous communications, representations, or understandings between the Parties, whether oral or written. There are no terms, promises, or representations that have induced either Party to enter this Agreement, except those which are expressly and specifically set forth in the Agreement. The terms and conditions of this Agreement may only be modified by an amendment in writing, which references this Agreement and is signed by a duly authorized representative of each Party. Any purchase order, request for proposals, business summary, or other ordering document or proposal submitted by Customer with respect to the subject matter hereof shall be considered null, void, and of no legal effect, and any of its terms conflicting with these Terms shall be considered expressly rejected by ECS, unless expressly included in a mutually executed written amendment to this Agreement.
    6. Waiver and Severability. No failure or delay by any Party in exercising any right or remedy under this Agreement will operate or be deemed as a waiver of any such right or remedy. Any provision of this Agreement that is held to be unenforceable in any jurisdiction will be ineffective only as to that jurisdiction, and only to the extent of the unenforceability of such provision without invalidating the remaining provisions hereof.
    7. Survival. Sections 5, 6, 8, 9, 10, and 11 of the Terms, together with any payment obligations incurred pursuant to this Agreement and any other provisions of the Agreement which expressly or should by their nature survive termination or expiration, shall survive the termination or expiration of this Agreement for any reason.
    8. Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without reference to its principles of conflict of laws. The Parties agree that any claim, suit, dispute, or other legal proceeding arising under this Agreement shall be brought exclusively before the state and federal courts sitting in Fairfax County, Virginia, and the Parties hereby expressly and irrevocably submit to the jurisdiction thereof for the resolution of all such claims, suits, disputes, or proceedings.
    9. Injunctive Relief. Customer acknowledges that any material breach by Customer of its respective representations, warranties, or obligations hereunder may cause ECS irreparable harm, the extent of which may not be readily calculable as money damages. Accordingly, Customer acknowledges and agrees that in the event of its actual or threatened material breach of these Terms, ECS shall be entitled to seek preliminary and/or final injunctive relief against such breach, in addition and without prejudice to any other remedy available to ECS at law or in equity.
    10. Interpretation. The headings of this Agreement are for reference purposes only, and shall not in any way effect the interpretation or construction of any provision hereunder. The Parties acknowledge that each Party has had opportunity to consult with legal counsel of its choosing in the negotiation and formation of the Agreement, and accordingly agree that any principle of construction or rule of law that provides that a contract shall be construed against the drafter of said contract in the event of any inconsistency or ambiguity shall not apply to this Agreement.