Software And Professional Services Clickwrap Agreement

The terms and conditions of this Software and Professional Services Clickwrap Agreement govern your (either as an individual or the entity you represent, together (“Customer”)) downloading, installation, access to, and use of Booz Allen Hamilton, Inc. (“BAH”) Products and Services (“Agreement”). If you do not agree to the terms of this Agreement, then do not download, install, access or use the Products of Services. If Customer has previously entered into an agreement with BAH governing its use of the Products or Services that is still in effect, that agreement takes precedence over this Agreement. By downloading, installing, accessing, or using the Products or Services, Customer acknowledges that it has read all of the terms and conditions of this Agreement, it understands them, and Customer agree to be legally bound by them. For purposes of this Agreement, the Effective Date shall be the earliest date when Customer either downloads, installs, accesses, or uses the BAH Products or Services.

Products and Services

BAH shall provide Products and perform Services hereunder pursuant to one or more Work Order, each as subsequently incorporated into and governed by the terms and conditions of this Agreement.

Invoices

Customer will be invoiced according to the terms of a Work Order. All fees due to BAH shall be payable in full thirty (30) days from the date of the invoice. All amounts payable are exclusive of sales, use, service, value added or like taxes or customs duties, and Customer expressly agrees that it will be responsible for applicable value added taxes (VAT) or other indirect taxes in the country in which the services are performed or invoiced and that such payments will be self-assessed using the reverse charge mechanism. Such taxes and duties, when applicable, will be added to Booz Allen’s invoices

Invoice Disputes

Any dispute to an invoice must be raised within thirty (30) days from the date of invoice or the invoice shall be deemed correct. If any undisputed invoice remains unpaid for thirty (30) or more days after it is due, BAH may, without limiting its other rights, accelerate all unpaid fee obligations under such Work Orders so that all amounts payable by Customer become immediately due. In addition, any amounts which remain unpaid after the due date shall be subject to a late charge equal to one and one-half percent (1.5%) per month or the highest rate allowable by law, whichever is lower, from the due date until such amount is paid.

Expenses

Customer shall reimburse BAH for pre-approved reasonable expenses incurred by BAH personnel.

Taxes

All fees are net of any taxes, which shall be Customer’s responsibility, except for taxes on BAH’s income.

Confidentiality

Each Party shall keep confidential and shall not use or disclose (except in connection with a Party’s performance) any information disclosed to it by the other Party that is marked as “confidential” or should reasonably be understood to be confidential (“Confidential Information”), subject to clauses (i) and (ii) below. The following shall not constitute “Confidential Information” of Customer or BAH: (i) information that was publicly available or generally in the possession of the non-disclosing Party at the time of disclosure to such Party, and (ii) information that subsequently becomes publicly available through no fault of the non-disclosing Party.

Security

Customer will implement and maintain reasonable security measures with respect to the Products in Customer’s possession that restrict access to the Products only to authorized users. In no event shall such security be less restrictive than those Customer employs to safeguard its own confidential information.

Mutual Warranty

Each Party represents and warrants that it has the power to enter into this Agreement and that the execution of this Agreement has been duly authorized.

Product Warranty

Unless otherwise noted in a Work Order, BAH warrants to Customer that the Products will perform in material accordance with the Documentation (as defined in an applicable Work Order) for a period of sixty (60) days from the Effective Date (the “Warranty Period”). If the Products do not perform as warranted during the Warranty Period, BAH shall undertake to correct the Products, or if the correction of the Products is not reasonably possible, at BAH’s option, replace such Products with a conforming Product. If neither of the foregoing is commercially practicable, BAH shall terminate the applicable Work Order with respect to the non-conforming Product and refund the monies paid by Customer attributable to such non-conforming Product. The foregoing are Customer’s sole and exclusive remedies for breach of a Product warranty. The warranty set forth above is made to and for the benefit of Customer and will be enforceable against BAH only if the Products have been properly downloaded, configured, and installed and has been accessed and used at all times in accordance with the Documentation and this Agreement.

Services Warranty

BAH warrants that, as of the date of performance of the Services, the Services have been performed in a professional and workmanlike manner in material conformance to Work Order. BAH’s sole obligation and Customer’s exclusive remedy for any breach of this warranty is limited to (i) re-performance of the Services by BAH, or (ii) in the event that BAH is unable, in its sole discretion, to re-perform the specific non-conforming Services after using its commercially reasonable efforts, a payment by BAH of an amount equal to a proportional amount of the fees paid to BAH by Customer for such non-conforming Services. BAH shall only be required to provide such remedies during the term noted in an applicable Work Order.

Disclaimer of Warranty

BAH and its suppliers expressly disclaim all warranties, representations, and guarantees, whether oral or written, implied or statutory, with regard to the Products and Services, including without limitation all warranties of merchantability, fitness for a particular purpose, title, non-infringement, non-interference, and warranties arising from course of dealing or usage of trade, to the maximum extent permitted by applicable law. BAH does not warrant that (i) the Products or Services will meet Customer’s needs; (ii) the licensed Products and Services will be error-free or accessible at all times; or (iii) the use or the results of the use of the Products and Services will be correct, accurate, timely, or otherwise reliable.

Recommendations

Customer should not view any conclusion or recommendation by BAH or Products or Services as a direct or indirect guarantee or opinion with respect to any future events or future outcomes. BAH undertakes no obligation to update any conclusions or recommendations to reflect anticipated or unanticipated events or circumstances by using its Products or Services. Customer acknowledges that any reliance on the Products or Services is at Customer’s sole risk and discretion. BAH and its suppliers are not liable or responsible for any results generated from Customer’s reliance on the Products or Services.

Customer Suggestions

Customer hereby grants to BAH a non-exclusive, royalty-free, worldwide, irrevocable, perpetual, sub-licensable, transferable license to use or incorporate into the Products or any other Services any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer relating to the operation of the Products.

Compliance with Law

Each party agrees, in connection with the performance of services hereunder, to comply with all applicable federal, state or local laws and regulations.

Preexisting Intellectual Property

Unless the parties agree otherwise in an applicable Work Order, each party shall retain all copyrights, patent rights, and other intellectual property rights to its preexisting intellectual property.

IP Indemnification

BAH shall defend any third party action brought against Customer to the extent it is based on a third party claim that the Products directly infringe on any valid United States patent or copyright issued as of the Effective Date, and BAH shall pay the resulting costs and damages to the extent agreed to by BAH in a settlement or if finally judicially determined by a court of competent jurisdiction to have directly resulted from BAH’s infringement as set forth above; provided, however, that the foregoing indemnity is not available unless: (i) Customer promptly notifies BAH in writing of any such claim; (ii) BAH has sole control of the defense and all settlement negotiations related to such claim; and (iii) Customer cooperates with BAH, at BAH’s request and expense, in defending or settling such claim. If the Products are found to be infringing or if BAH believes that there is a material risk that the Products will be found to be infringing, BAH will, at its option, (i) obtain the right for Customer to continue using the Products; (ii) replace or modify the Products so that it becomes non-infringing; or (iii) refund the Fee(s) paid by Customer for the Products, depreciated on a straight line basis amortized over the three (3) year period from the Effective Date hereunder. Notwithstanding the foregoing, BAH has no obligation or liability for any infringement claim or lawsuit arising out of or relating to: (i) a modification created by or at the direction of Customer; (ii) downloading, installing, accessing, or using the Products other than in accordance with the Documentation and the terms of this Agreement; (iii) Customer’s failure to update or delay in updating the Products with any such updates provided by BAH; or (iv) use of the Products in combination with any hardware, other software, or other materials where absent such combination, the Products would not be the subject of the infringement claim. This Section states the entire liability of BAH and the sole and exclusive remedy of Customer with respect to infringement of any intellectual property rights, regardless of the theory of liability, whether warranty, indemnity, or otherwise. For the avoidance of doubt, the indemnity in this paragraph is not subject to the Limitation of Liability provision in this Agreement.

Indemnification by h3tomer

Customer shall defend any action brought against BAH to the extent it is based on a third party claim arising from Customer’s business, and Customer shall pay resulting third party costs and damages in a settlement or if finally judicially determined by a court of competent jurisdiction to have directly resulted from such claims; provided, however, that the foregoing indemnity is not available unless: (i) BAH promptly notifies Customer in writing of any such claim, (ii) Customer has sole control of the defense and all settlement negotiations related to such claim and (iii) BAH cooperates with Customer, at Customer’s request and expense, in defending or settling such claim. Nothing herein shall restrict the right of BAH to participate in a claim, action or proceeding through its own counsel and at its own expense. For the avoidance of doubt, the indemnity in this paragraph is not subject to the Limitation of Liability provision in this Agreement.

Limitation of Liability

EXCEPT FOR each party’s indemnification obligations, The cumulative aggregate liability of each party to the other party related to this Agreement and all associated work orders shall not exceed the amount of the fees paid or payable to BAH UNDER THIS AGREEMENT in the six (6) months prior to THE FIRST claim MADE BY Customer UNDER THIS AGREEMENT. In no event shall either party be liable for any indirect, special, incidental, consequential, or exemplary damages, whether in contract, tort, or otherwise, even if a party has been advised of the possibility of such damages and even if an agreed remedy fails of its essential purpose or is held unenforceable for any other reason. EACH PARTY WILL HAVE A DUTY TO MITIGATE DAMAGES FOR WHICH THE OTHER IS RESPONSIBLE.

Term

This Agreement shall commence on the Effective Date and will govern the relationship of the Parties while BAH is providing Products or Services to Customer.

Termination

Unless otherwise noted in a Work Order, either party may terminate this Agreement and/or any Work Order for (i) breach of the other Party, effective either immediately or thirty (30) days after the delivery of notice of termination specifying such breach, unless the breaching Party cures such breach within such thirty (30) day period, at the non-breaching Party’s option, (ii) a force majeure event that continues for fifteen (15) days, or (iii) if the performance of this Agreement would violate any applicable law. BAH may terminate this Agreement and any associated Work Order if Customer (i) fails to may any payment when due for the Products or Services that is not disputed and is not cured within (10) days after receiving written notice from BAH regarding the same, (ii) assigns this Agreement to any third party, or (iii) BAH in its sole discretion decides to no longer offer the product or Service as a generally available commercial product.

Effect of Termination

Upon expiration or termination of this Agreement for any reason, BAH shall be entitled to payment for the Products and Services rendered and for expenses and obligations incurred in connection with this Agreement prior to the effective date of termination. All fees shall be non-refundable. Termination of this Agreement will not affect the rights of the parties which may have accrued prior to termination or expiration.

Assignment

This Agreement, and each right, license and obligation under this Agreement, may not be assigned or transferred by Customer, including by operation of law, without BAH’s prior written approval.

Equal Opportunity

BAH agrees that it will not discriminate against any employee or applicant for employment on account of race, color, religion, sex, sexual orientation, disability or national origin. BAH certifies that it has developed and presently has in full force and effect a written affirmative action compliance program in accordance with the requirements set forth in 41 C.F.R. Section 60–1.40.

U.S. Government End Users

The Product is a “commercial item,” as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R 227.7202, as applicable. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227-7202-1 through 227.7202-4, as applicable, all United States Government end-users acquire rights to use the Product hereunder only as a “commercial item” and only with those rights that are granted to all other end-users pursuant to the terms and conditions of the Agreement. The Product is delivered with “restricted rights,” and “limited rights,” respectively, as set forth in FAR 52.227-19, FAR 52.227-14, and DFARS 252.227.7015.

Export Control

The Products and Services are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Customer agrees to strictly comply with all such laws and regulations and acknowledges that Customer is responsible for obtaining such licenses to export, re-export, or import as may be required. Customer will indemnify and hold BAH harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney's fees) arising from or relating to any breach by Customer of its obligations under this Section.

Force Majeure

Neither party shall be liable to the other for any delay or failure to perform any of the obligations (other than Customer’s payment obligations) set forth in this Agreement due to a cause beyond its reasonable control. Performance times shall be considered extended for the period required to make up the work lost because of such cause.

Governing Law

This Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Virginia. Each Party consents to the exclusive jurisdiction of the state and federal courts of the Commonwealth of Virginia with respect to any actions for enforcement of or breach of this Agreement.

Independent Acts

Each party is an independent contractor, and neither party is, nor shall represent itself to be, an agent, partner, fiduciary, joint venturer, co-owner or representative of the other.

Non-Solicitation

During the term of this Agreement and for twelve (12) months thereafter, neither party shall solicit or retain the services of any person who is an employee of the other party and who was materially involved in the engagement. The foregoing shall not prohibit a party from hiring an employee of the other party who has responded to a general solicitation of employment not specifically directed at that employee.

Promotion

BAH may make reference to the existence of this Agreement and disclose that Customer is a customer of BAH with respect to the Products and Services.

Headers

The section headings of this Agreement and associated Work Orders are inserted for convenience only and are not intended to affect the meaning or interpretation of this Agreement.

Severability

If any term or provision of this Agreement is found to be invalid under any applicable statute, ordinance, regulation, or rule of law, then, that provision notwithstanding, this Agreement shall remain in full force and effect and such provision shall be deleted.

Third Party Beneficiaries

The parties agree that this Agreement is intended to be solely for the benefit of the Parties hereto and that no third parties shall obtain any direct or indirect benefits from the Agreement, or have any claim or be entitled to any remedy under this Agreement.

Counterparts

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of such together shall constitute one and the same instrument. An electronic copy of the signatures to this Agreement, including without limitation a .PDF or other image of the original signature, shall be as binding as the original itself.

Entire Agreement

This Agreement, together with any Work Order and/or Exhibits, constitutes the entire agreement and understanding among the Parties hereto with respect to the subject hereof and merges and supersedes all prior discussions and writings with respect hereto. No modification, alteration or amendment of this Agreement shall be effective unless set forth in writing and signed by the Parties.