IT-70 - Netbrain Technologies Inc. - GS35F235DA

GENERAL SERVICES ADMINISTRATION

FEDERAL SUPPLY SERVICE

AUTHORIZED FEDERAL SUPPLY SCHEDULE PRICE LIST

On-line access to contract ordering information, terms and conditions, up-to-date pricing, and the option to create an electronic delivery order are available through GSA Advantage!, a menu-driven database system. The Internet address for GSA Advantage! is: http://www.gsaadvantage.gov

WORLDWIDE FEDERAL SUPPLY SCHEDULE CONTRACT

SCHEDULE TITLE: GENERAL PURPOSE COMMERCIAL INFORMATION

TECHNOLOGY EQUIPMENT, SOFTWARE, AND SERVICES

FSC GROUP: 70

CONTRACT NUMBER:

GS-35F-235DA

PERIOD COVERED BY CONTRACT:

March 17, 2016 to March 16, 2021

NetBrain Technologies Inc.

15 Network Drive

Burlington, MA 01803 781-221-7199 www.netbraintech.com

Contractor Administrator:

Michael Passanisi

781-418-9890 michael.passanisi@netbraintech.com

General Services Administration

Management Services Center Acquisition Division

Business Size: Small

DUNS: 827406724

For more information on ordering from Federal Supply Schedules click on the FSS Schedules button at http://www.fss.gsa.gov.

1a. TABLE OF AWARDED SPECIAL ITEM NUMBERS (SINs)

SIN 132-33: Perpetual Software Licenses

1b. LOWEST PRICED MODEL NUMBER AND PRICE FOR EACH SIN: See attached Pricelist

2. MAXIMUM ORDER*:

SIN 132-33: $500,000

*If the “best value” selection places your order over this Maximum Order identified in this catalog/pricelist, you have an opportunity to obtain a better schedule contract price. Before placing your order, contact the aforementioned contractor for a better price. The contractor may

(1) offer a new price for this requirement; (2) offer the lowest price available under this contract;

or (3) decline the order. A delivery order that exceeds the maximum order may be placed under the Schedule contract in accordance with FAR 8.404

3. MIMINUM ORDER: $100

4. GEOGRAPHIC COVERAGE: Worldwide

5. POINT(S) OF PRODUCTION: NetBrain Technologies Inc. 15 Network Drive Burlington, MA 01803

6. DISCOUNT FROM LIST PRICES: Net GSA pricing is listed in the attached pricing table

7. QUANTITY DISCOUNT(S): See Quantity/Volume Discount Terms below

8. PROMPT PAYMENT TERMS: 0%, Net 30 Days

9a. Government purchase cards are accepted at or below the micro-purchase threshold

9b. Government purchase cards are accepted above the micro-purchase threshold

10. FOREIGN ITEMS: None

11a. TIME OF DELIVERY: To be negotiated at the task order level

11b. EXPEDITED DELIVERY: To be negotiated at the task order level

11c. OVERNIGHT AND 2-DAY DELIVERY: To be negotiated at the task order level

11d. URGENT REQUIREMENTS: Customers are encouraged to contact the contractor for the purpose of requesting accelerated delivery

12. FOB POINT: Destination

GSA AWARDED TERMS AND CONDITIONS

13a. ORDERING ADDRESS:

Burlington, MA 01803

13b. ORDERING PROCEDURES: For supplies and services, the ordering procedures, information on Blanket Purchase Agreements (BPA’s) are found in FAR 8.405-3

14. PAYMENT ADDRESS:

15. WARRANTY PROVISION: Refer to NetBrain Technologies Inc. Service Agreement

16. EXPORT PACKING CHARGES: N/A

17. TERMS AND CONDITIONS OF GOVERNMENT PURCHASE CARD ACCEPTANCE:

Accepted at, below, and above the micro-purchase threshold.

18. TERMS AND CONDITIONS OF RENTAL, MAINTENANCE, AND REPAIR (if applicable). N/A

19. TERMS AND CONDITIONS OF INSTALLATION (IF APPLICABLE): N/A

20. TERMS AND CONDITIONS OF REPAIR PARTS INDICATING DATE OF PARTS PRICE LISTS

AND ANY DISCOUNTS FROM LIST PRICES (IF AVAILABLE): N/A

20a. TERMS AND CONDITIONS FOR ANY OTHER SERVICES (IF APPLICABLE): N/A

21. LIST OF SERVICE AND DISTRIBUTION POINTS (IF APPLICABLE): N/A

22. LIST OF PARTICIPATING DEALERS (IF APPLICABLE): N/A

23. PREVENTIVE MAINTENANCE (IF APPLICABLE): N/A

24a. SPECIAL ATTRIBUITES SUCH AS ENVIRONMENTAL ATTRIBUTES (e.g. recycled content, energy efficiency, and/or reduced pollutants): N/A

24b. Section 508 Compliance for EIT: as applicable

25. DUNS NUMBER: 827406724

26. NOTIFICATION REGARDING REGISTRATION IN SYSTEM FOR AWARD MANAGEMENT

(SAM) DATABASE: Active, CAGE Code 5FHR3

1. INSPECTION/ACCEPTANCE

The Contractor shall only tender for acceptance those items that conform to the requirements of this contract. The ordering activity reserves the right to inspect or test any software that has been tendered for acceptance. The ordering activity may require repair or replacement of nonconforming software at no increase in contract price. The ordering activity must exercise its post acceptance rights (1) within a reasonable time after the defect was discovered or should have been discovered; and (2) before any substantial change occurs in the condition of the software, unless the change is due to the defect in the software.

2. ENTERPRISE USER LICENSE AGREEMENTS REQUIREMENTS (EULA)

The Contractor shall provide all Enterprise User License Agreements in an editable Microsoft Office (Word) format. The Contractor’s form of Software License and Maintenance Agreement is attached hereto.

3. GUARANTEE/WARRANTY

a. Unless specified otherwise in this contract, the Contractor’s standard commercial guarantee/warranty as stated in the contract’s commercial pricelist will apply to this contract.

Refer to NetBrain Technologies Inc. Services Agreement (End User License Agreement)

b. The Contractor warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in this contract.

c. Limitation of Liability. Except as otherwise provided by an express or implied warranty, the Contractor will not be liable to the ordering activity for consequential damages resulting from any defect or deficiencies in accepted items.

4. TECHNICAL SERVICES

For the purpose of providing user assistance and guidance in the implementation of the software, the technical support number is available at http://www.netbraintech.com/netbrain-support/ ……

5. UTILIZATION LIMITATIONS - (SIN 132-33)

a. Software acquisition is limited to commercial computer software defined in FAR Part 2.101.

b. When acquired by the ordering activity, commercial computer software and related documentation so legend shall be subject to the following:

(1) Title to and ownership of the software and documentation shall remain with the Contractor, unless otherwise specified.

TERMS AND CONDITIONS APPLICABLE TO PERPETUAL SOFTWARE LICENSES

(SPECIAL ITEM NUMBER 132-33)

(2) Software licenses are by site and by ordering activity. An ordering activity is defined as a cabinet level or independent ordering activity. The software may be used by any subdivision of the ordering activity (service, bureau, division, command, etc.) that has access to the site the software is placed at, even if the subdivision did not participate in the acquisition of the software. Further, the software may be used on a sharing basis where multiple agencies have joint projects that can be satisfied by the use of the software placed at one ordering activity's site. This would allow other agencies access to one ordering activity's database. For ordering activity public domain databases, user agencies and third parties may use the computer program to enter, retrieve, analyze and present data. The user ordering activity will take appropriate action by instruction, agreement, or otherwise, to protect the Contractor's proprietary property with any third parties that are permitted access to the computer programs and documentation in connection with the user ordering activity's permitted use of the computer programs and documentation. For purposes of this section, all such permitted third parties shall be deemed agents of the user ordering activity.

(3) Except as is provided in paragraph 8.b(2) above, the ordering activity shall not provide or otherwise make available the software or documentation, or any portion thereof, in any form, to any third party without the prior written approval of the Contractor. Third parties do not include prime Contractors, subcontractors and agents of the ordering activity who have the ordering activity's permission to use the licensed software and documentation at the facility, and who have agreed to use the licensed software and documentation only in accordance with these restrictions. This provision does not limit the right of the ordering activity to use software, documentation, or information therein, which the ordering activity may already have or obtains without restrictions.

(4) The ordering activity shall have the right to use the computer software and documentation with the computer for which it is acquired at any other facility to which that computer may be transferred, or in cases of Disaster Recovery, the ordering activity has the right to transfer the software to another site if the ordering activity site for which it is acquired is deemed to be unsafe for ordering activity personnel; to use the computer software and documentation with a backup computer when the primary computer is inoperative; to copy computer programs for safekeeping (archives) or backup purposes;

to transfer a copy of the software to another site for purposes of benchmarking new hardware and/or software; and to modify the software and documentation or combine it with other software, provided that the unmodified portions shall remain subject to these restrictions.

(5) "Commercial Computer Software" may be marked with the Contractor's standard commercial restricted rights legend, but the schedule contract and schedule pricelist, including this clause, "Utilization Limitations" are the only governing terms and conditions, and shall take precedence and supersede any different or additional terms and conditions included in the standard commercial legend.

7. SOFTWARE CONVERSIONS - (SIN 132-33)

Full monetary credit will be allowed to the ordering activity when conversion from one version of the software to another is made as the result of a change in operating system, or from one computer system to another. Under a perpetual license (132-33), the purchase price of the new software shall be reduced by the amount that was paid to purchase the earlier version.

8. DESCRIPTIONS AND EQUIPMENT COMPATIBILITY

A list of network devices supported by NetBrain’s current software release is available at: at http://www.netbraintech.com/netbrain-support/faq-1.php

9. RIGHT-TO-COPY PRICING

NetBrain Technologies does not offer right-to-copy licenses or pricing.

10. Awarded GSA Pricing

NETBRAIN GSA PRICING

SIN PRODUCT NAME PRODUCT DESCRIPTION UOI GSA PRICE

132-33 EE- Starter Package 1 floating EE seat with 100 server nodes and Doc-Module for 100 nodes, restricted for first purchase only and 1 unit per company per license

$7,869.92

132-33 NB-EE-Seat Enterprise Edition (EE) floating Seat

License per license

$7,939.95

132-33 NB-EE-Node Enterprise Server License by Nodes per node $45.34

132-33 EE-CM-Module Change Management Module for number of nodes purchased per node $10.08

132-33 EE-DOC-Module Document Automation Module for number of nodes purchased per node $0.00

132-33 Maintenance 1 Year Software Upgrade and

Technical Support per order

20% of total

GSA software price / .9925

132-33 Training-End User Instructor-led web-based Training, End User, 2hrs per class $0.00

132-33 Training-

Administrator

Instructor-led web-based Training, Administrator, 2hrs per class $0.00

Quantity/Volume Discount Terms

NB EE Seat Seats 0-4- GSA Rate, Seats 5-9- $7500 and Seats 10+- $7000

NB EE Node First 1000- GSA rate per node, $38 per node for the next 1000 and $28.50 for the next 1000 nodes and after

NETBRAIN TECHNOLOGIES, INC.

BEST VALUE BLANKET PURCHASE AGREEMENT FEDERAL SUPPLY SCHEDULE

(Insert Customer Name)

In the spirit of the Federal Acquisition Streamlining Act (ordering activity) and (Contractor) enter into a cooperative agreement to further reduce the administrative costs of acquiring commercial items from the General Services

Administration (GSA) Federal Supply Schedule Contract(s) ____________________.

Federal Supply Schedule contract BPAs eliminate contracting and open market costs such as: search for sources; the development of technical documents, solicitations and the evaluation of offers. Teaming Arrangements are permitted with Federal Supply Schedule Contractors in accordance with Federal Acquisition Regulation (FAR) 9.6.

This BPA will further decrease costs, reduce paperwork, and save time by eliminating the need for repetitive, individual purchases from the schedule contract. The end result is to create a purchasing mechanism for the ordering activity that works better and costs less.

Signatures

Ordering Activity Date Contractor Date

SOFTWARE LICENSE AND MAINTENANCE AGREEMENT

This Software License and Maintenance Agreement (this “Agreement”) is made and entered into this _____ day of _________, 20___ (the

“Effective Date”) by and between NetBrain Technologies, Inc., with its principal place of business at 15 Network Drive, Burlington MA 01803

(“NetBrain”), and ____________________________, with its principal address at ________________________________________ (“Customer”).

Customer and NetBrain hereby agree to the terms and conditions stated in this Agreement, including its schedules and any exhibits, addenda, appendices or amendments (collectively, the “Agreement”).

NetBrain shall provide Customer with the Programs and modules identified on Exhibit A hereto, at the fees set forth thereon, and subject to the service level commitments set forth on Exhibit B hereto and the general terms and conditions (“Terms and Conditions”) set forth on Exhibit C hereto. In addition, NetBrain or its Affiliates may from time to time provide Customer or Customer’s Affiliates with additional Programs and modules, as set forth on schedules, statements of work or other ordering documents (collectively “Orders”) issued by Customer or its Affiliates hereunder.

Each such Order shall constitute a separate agreement between NetBrain or the relevant NetBrain Affiliate and the entity issuing the Order, and all such Orders shall be such subject to the provisions of this Agreement. Notwithstanding anything set forth in this Agreement, the provision of

NetBrain’s IT Schedule 70 contract (“S70 Contract”) shall supersede any conflicting provisions of this Agreement and any Order. No click-through agreement or other end user license agreement applicable to the Programs shall be of any force or effect. The NetBrain entity entering into the

Order(s) shall constitute “NetBrain” hereunder for purposes of such Order(s).

The parties agree to the terms and conditions of this Software License and Maintenance Agreement as of the Effective Date.

Address for Notices Pursuant to Section 9.5:

Notices to NetBrain:

Attention:

With a required copy to:

Attention: Legal Department

Notices to Customer:

Attention:____________________________

With a required copy to:

Attention:_____________________________

EXHIBIT A

LICENSED PROGRAMS AND MODULES

Products Selected:

Enterprise Edition (EE) Concurrent Seat License

Enterprise Server (ES) License by Nodes

Consultant Edition (CE) Seat License

Consultant Edition (CE) Nodes License

Documentation Automation Module

Change Management Module

Starter Package (1 EE Concurrent Seat License; 100 ES Nodes; 1 Documentation Automation Module)

Training: Customer can access a wide range of resources to get the most out of NetBrain’s products at the ‘Support’ section of NetBrain’s website

(http://www.netbraintech.com/netbrain-support/index.php). Product manuals, video tutorials and sample configurations will be available for download free of charge. Customer can also join NetBrain online forums to gain access to expert guidance and learn how others are using NetBrain products. Any Training Services purchased in advance must be completed or commenced within one hundred eighty (180) days of purchase as designated by the date of any applicable purchase order or, if none is provided, the date of delivery of the Program(s) and Documentation. If Training

Services are not completed or commenced within such one hundred eighty (180) day period, Customer forfeits the right to use or schedule such

Training Services and will not receive any refund or credit.

EXHIBIT B

ESCALATION PROCEDURES AND PROCESSES FOR PROGRAMS ERROR RESOLUTION

Classification of Errors

All Errors reported by Customer to NetBrain shall be assigned a Severity Level by NetBrain. The point of contact throughout this initial Error reporting procedure shall be the applicable NetBrain support representative available to Customer under the terms of this Agreement. Reported Errors shall be classified as follows:

Severity Level Impact

Severity Level 1 Severity Level 1 implies that the Program(s) is/are not functioning as a whole or in material part.

Examples:

• Both workstation software and server software is down and could not restart.

• The appliance hardware is at fault and couldn’t start.

Severity Level 2 Severity Level 2 implies that the Program(s) is/are running but that Customer is unable to use a portion of the Program(s) that is critical to Customer’s operations, and no Bypass is available.

Examples:

• Production system is generating data corruption with no Bypass.

• Major functional component is unavailable with no Bypass.

Severity Level 3 Severity Level 3 implies that the Program(s) is/are operating close to normal, but there is a material Error for which an operational Bypass exists.

Severity Level 4 Severity Level 4 includes purely cosmetic Errors and Documentation anomalies.

Out-of-Scope A reported problem is out-of-scope when it is determined not to be related to the Program(s) and is beyond the bounds of NetBrain’s responsibility. Examples of such unrelated problems include, but are not limited to, Customer hosted applications or programs, Customer hardware and cabling, power or environmental conditions, and human error.

RESOLUTION OF ERRORS

Severity Level 1

Error Resolution Immediate steps shall be taken toward solving the Error. NetBrain shall work to resolve Severity Level 1 Errors continuously until the Error is resolved. If required, NetBrain staff shall be moved off of lower Severity Level Errors to service Severity Level 1 Errors.

Resource

Commitment

When a Severity Level 1 Error is reported, NetBrain shall assign all resources required to correct the Error. Work on the

Error shall be continuous until a Fix is found. If system access is required, Customer shall provide a contact available to

NetBrain and access to its system and Programs for the duration of the Error correction procedures, subject to applicable security clearance where necessary. Any issues that prevent access to the Programs due to security issues will be negotiated at the customer agency level.

Resolution Plan Within forty-eight (48) hours of receipt of the Error Report, NetBrain will begin development of a resolution plan designed to address the Error.

Escalation and Status

Thresholds

When a Severity Level 1 Error Report is opened, the following escalation and status procedures shall be followed.

Hour 1–Hour 24 1. The Error shall be resolved by NetBrain first line support; or

2. The Error will be referred to the maintenance engineering group. All log files and a description of the work done by NetBrain will be transferred to this group. The report will receive an Error Report number which will be entered into the case manager. The error will be passed to the maintenance engineering group via the SMS as well as by e-mail.

3. The Customer will be notified of the status of the Error.

Hour 24 1. The maintenance engineering point of contact will resolve the Error; or

2. It will be decided that more resources are required to work on the Error.

3. The Customer will be notified of the status of the Error.

Hour 48+ 1. Resolution Plan completed;

2. The maintenance engineering point of contact will resolve the Error; or

3. The maintenance engineer will continue working the Error until it is fixed.

4. A date will be estimated upon when this Error will be fixed.

5. The Customer will be notified of the status at this stage.

Severity Level 2

Error Resolution Severity Level 2 Errors will be analyzed in the order that they are reported. Severity Level 1 Errors will take priority over

Severity Level 2 Errors.

Appropriate technical resources will be assigned to Severity Level 2 issues as long as Severity Level 1 Errors are not open.

Resolution Plan Within seventy-two (72) hours of receipt of the Error Report, NetBrain will begin development of a resolution plan designed to address the Error.

Escalation and Status

Thresholds

When a Severity Level 2 Error Report is opened, the following escalation and status procedures will be followed.

Hour 1 – Hour 36 1. The Error shall be resolved by NetBrain; or

2. The maintenance point of contact person will be contacted. All log files and a description of the work done by

NetBrain will be transferred to this group. An Error Report number will be assigned and entered in the trouble tracking system.

3. The Customer will be notified of the status at this stage.

Hour 36 – Hour 72+ 1. Resolution Plan completed;

2. The maintenance engineering point of contact will resolve the Error; or

3. The maintenance engineer will continue working the Error until it is fixed.

4. A date will be estimated upon when this Error will be fixed.

5. The Customer will be notified of the status at this stage.

Severity Level 3

Error Resolution Severity Level 3 Errors shall be researched after Severity Level 1 and Severity Level 2 Errors. The majority of the Severity

Level 3 Errors shall be scheduled for correction and be resolved as part of the next two scheduled Updates.

The majority of the Severity Level 3 Fixes shall be included in the next two scheduled Updates.

Completion Goal The completion goal and objective shall be to correct Errors in the next scheduled Update.

Escalation and

Status Thresholds

The status of Severity Level 3 Errors shall be available on demand. Upon Customer’s request, a quarterly report will be distributed that will reference any uncorrected Errors that are over ninety (90) days old.

Severity Level 4

Error Resolution Severity Level 4 Errors shall be addressed at NetBrain’s discretion after Severity Level 1, Severity Level 2, and Severity Level

3 Errors are corrected. Severity Level 4 Errors shall be reviewed by NetBrain’s maintenance engineering team for correction in a future release of the Program(s).

Escalation and

Status Thresholds

The status of Severity Level 4 Errors shall be available on request.

EXHIBIT C

TERMS AND CONDITIONS

SECTION 1. DEFINITIONS.

Whenever used in this Agreement, the following terms will have the following specified meanings:

1.1. “Affiliate” means any entity directly or indirectly controlling, controlled by, or under common control with another entity, where

“control” means ownership of more than fifty percent (50%) of the voting stock or other equity interests of an entity, or the right to direct the management of such entity.

1.2. “Bypass” shall mean a procedure communicated by NetBrain to Customer, which permits Customer to avoid Error(s) by implementing such procedure when using the Program(s).

1.3. “Change of Control” means, with respect to any entity: (i) a transfer to a single entity or group of related entities (whether in a single transaction or a series of transactions) of more than fifty percent

(50%) of the stock, assets, or other equity interests in an entity; or (ii) a transfer of the right to direct the management of such entity. An initial public offering of an entity’s stock shall not constitute a Change of Control within the meaning of this Agreement.

1.4. A “Concurrent License” is a license allowing users to install the Program(s) on any number of machines, but the total number of concurrent users operating the Program(s) at any single moment may not exceed the total number that have been authorized under this

Agreement.

1.5. “Contracting Officer” shall have the meaning set forth in

FAR 2.101]

1.6. “Documentation” means collectively: (a) all user, technical, support, and other manuals and all other written, printed, electronic, or other format materials published or otherwise made available by

NetBrain that describe the functional, operational, and/or performance capabilities of the Program(s); and (b) any other deliverable that is not Program(s). Documentation shall not include source code.

1.7. “Enhancement(s)” shall mean a modification to the

Program(s) that alters the functionalities described in the

Documentation without materially degrading the functionalities or performance of the Program(s) prescribed by the Documentation.

1.8. “Error(s)” shall mean a reproducible failure of the Program(s) to conform to the Documentation for such Program(s).

1.9. “Error Report” shall mean the document generated by

NetBrain, pursuant to Section 3 hereof, each time that Customer reports an Error.

1.10. “Fix(es)” shall mean the document to be created by NetBrain to correct any Error(s).

1.11. “Hardware” means any third-party manufactured computer equipment that has been modified by the installation of NetBrain

Program(s) and sold to Customer hereunder.

1.12. “License(s)” shall mean any license or licenses granted by

NetBrain to Customer to use the Program(s) under this Agreement.

1.13. “Maintenance Services” shall mean the services to be provided under this Agreement.

1.14. “Object Code” shall mean the binary machine readable version of the Program(s).

1.15. “Programs” means all of the programs and modules listed on the initial pages of this Agreement, as they may be upgraded, enhanced, and/or modified by NetBrain, in machine-readable, Object

Code form only. Programs include NetBrain Qapps (as defined in

Section 7.5) and may also include any Third-Party Software products and related documentation.

1.16. “Server” means a single production database server.

1.17. “Severity Level” shall mean the level of severity assigned to a reported Error with the Program(s), in accordance with the Severity

Level definitions set forth in Exhibit B to this Agreement.

1.18. “Site” shall mean a Customer computer facility located in one specific geographic location.

1.19. “Third Party Software” means software of companies other than NetBrain that NetBrain has licensed to you under this Agreement.

1.20. “Third Party Software Provider” means a company, other than NetBrain, that has licensed Third Party Software to NetBrain, which NetBrain sublicenses to Customer under this Agreement.

1.21. “Update” shall mean a compendium of Fixes which NetBrain releases to the users of the Program(s) from time to time and which

NetBrain shall supply to Customer pursuant to the terms of this

Agreement.

1.22. “Upgrades” means all releases, Updates and corrections of the Program(s) licensed to Customer hereunder (when and if available), specifically only those features and modules specified on

Exhibit A to this Agreement as licensed to Customer hereunder, in

Object Code form, which are published and generally made commercially available by NetBrain to its licensees of the Program(s) with a change in the integer, tenths or hundredths digit of the version number (e.g., a change from version x.xx to y.xx or x.yx or x.xy).

SECTION 2. Programs DELIVERY AND LICENSE.

2.1. PROGRAMS DELIVERABLES. Upon execution of this

Agreement, NetBrain shall deliver to Customer the number of licenses as set forth in the Task/Delivery Order.

2.2. GRANT. Subject to the provisions of this Agreement as well as the payment of all applicable license fees for the term of such license, NetBrain hereby grants Customer a nonexclusive, nontransferable license to:

(a) Install and use the Program(s) ordered by

Customer hereunder for internal processing requirements of Customer on the number of Customer's servers and/or users then authorized under this Agreement. The number of servers and/or users initially authorized hereunder is set forth on Exhibit A.

(b) Any increase the number of authorized server nodes and/or users as may be requested by Customer from time to time (collectively “Order”) shall be at or below the awarded S70

Contract rates if agreed by the parties and may be effected only by a written contract modification authorized by the Contracting Officer.

(c) Reproduce the Documentation for the Program(s) ordered by Customer hereunder and/or incorporate all or any portion of the Documentation in training materials prepared by the Customer, in each case solely for the use of the Customer and provided that the copyright notices and other proprietary rights legends appearing in or on the Program(s) or the Documentation are included on each copy of the Documentation and such materials. Customer shall keep accurate records of the reproduction and location of each copy.

All rights not expressly granted are reserved by NetBrain.

2.3. ACCEPTANCE. The Program(s) and Documentation shall be

deemed accepted by Customer on delivery of the Program(s) and

Documentation to Customer.

2.4. EVALUATION LICENSE GRANT. Subject to the provisions of

this Agreement, NetBrain may, from time to time, offer to Customer demonstration versions of the Software at no additional charge, for evaluation purposes only (“Evaluation License”). The Evaluation

License may be offered to Customer with a limited license term, operability and/or functionality. Customer agrees and acknowledges that NetBrain provides the Evaluation License solely for demonstration purposes and not for long term use. Customer’s use of the Evaluation

License is subject to the terms provided in this Agreement, provided, however, notwithstanding any other provision of this Agreement, NetBrain offers no representations or warranties of any kind with respect to any Evaluation License. Notwithstanding the foregoing, NetBrain reserves the right to cancel, or otherwise terminate, such

Evaluation License in NetBrain’s sole discretion with, or without prior notice to Customer. The Evaluation License is deemed accepted upon installation of the Software. Customer may seek to convert such

Evaluation License to a paid license by issuing an Order for the licenses to NetBrain. Upon acceptance by NetBrain of the Order, with such modifications as the parties may agree, and upon payment of the applicable fee by Customer, NetBrain will provide a key or other mechanism to Customer to convert such Evaluation License to a paid license as granted in Section 2.2, above, and subject to the terms of this Agreement.

2.5. DEVOPS. NetBrain may offer Customer, at no charge, a

version of the Software for limited commercial use, known as

“DevOps” or “DE.” Customer’s use of DE is subject to the terms provided in this Agreement, including Section 7 hereof.

Notwithstanding any other provision of this Agreement, NetBrain offers no representations or warranties of any kind with respect to DE.

Customer’s use of DE is subject to the following additional provisions:

(a) DE is limited to ten (10) nodes;

(b) DE may be used only (i) on a home network; (ii) in a lab network; or (iii) in a production network for a period not exceeding thirty (30) days; and

(c) Customer acknowledges that NetBrain reserves the right to remotely monitor Customer’s use of DE to ensure compliance with this Agreement.

2.6. RESTRICTIONS. Customer shall use the Program(s) and

Documentation only for the purposes specified in Section 2.2 and in accordance with the following:

(a) Customer shall not modify or prepare derivative works of the Program(s) or Documentation except as expressly permitted in Section 2.2;

(b) Customer shall not reverse engineer, disassemble or decompile the Program(s) or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Program(s) by any means whatsoever;

(c) Customer shall not remove, obscure, or alter any notice of patent, copyright, trade secret, trademark, or other proprietary rights notices present on any Programs or Documentation;

(d) Customer shall not sublicense, sell, lend, rent, lease, distribute or otherwise transfer all or any portion of the

Program(s) or the Documentation to any third party; and

(e) Customer shall not use the Program(s) or the

Documentation to provide services to third parties, or otherwise use the same on a "service business" basis.

2.7. COMPLIANCE WITH LAWS. NetBrain and Customer shall each

comply with all applicable laws, regulations, rules, orders and other requirements, now or hereafter in effect, of any applicable governmental authority, in their performance of this Agreement.

2.8. PROPRIETARY RIGHTS. The Program(s) and Documentation

contain valuable patent, copyright, trade secret, trademark and other proprietary rights of NetBrain. Nothing contained herein, including, but not limited to, Section 9, shall be construed to convey to Customer any right, title or interest in or to the Program(s), Documentation, NetBrain Qapps or any NetBrain intellectual property. In addition, NetBrain shall be free to use without restriction, any and all suggestions, ideas, enhancement requests, feedback, or recommendations made by Customer, and all enhancements and modifications made to the Program(s), Documentation or other offerings of NetBrain shall continue to be owned solely and exclusively by NetBrain. Except for the license granted herein, NetBrain, and it’s

Third Party Software Providers (if any), reserves all rights in the

Program(s) and Documentation. No right, title or interest in or to, or ownership of any Program(s) or proprietary rights related to the

Program(s) or Documentation, is transferred to Customer under this

Agreement.

2.9. PROTECTION AGAINST UNAUTHORIZED USE. Customer shall

promptly notify NetBrain of any unauthorized use of the Program(s) or

Documentation licensed to the Customer hereunder which comes to

Customer's attention. In the event of any unauthorized use by any of

Customer's employees, agents or representatives, Customer shall immediately terminate or cause the termination of any such unauthorized use and shall retrieve any copy of the Program(s) or

Documentation in the possession or control of the person or entity engaging in such unauthorized use. NetBrain may, at its option and sole expense, monitor any such proceeding and, in such an event, Customer shall provide such information related to such proceeding as

NetBrain may reasonably request. NetBrain reserves the right to electronically verify Customer’s compliance with the license limitations set forth in this Agreement.

SECTION 3. MAINTENANCE SERVICES

3.1. MAINTENANCE SERVICES. Provided that Customer has paid

NetBrain the applicable Maintenance Fee specified on the first page(s) of this Agreement, NetBrain will provide Customer with the

Maintenance Services described in this Section 3, at the support levels provided in the Service Level Agreement (“SLA”) set forth on Exhibit B.

3.2. NetBrain will provide the following support:

(a) Email Support. First line support shall be provided via e-mail and can be obtained by submitting a support ticket to support@netbraintech.com. Customer may also submit a support ticket through NetBrain’s website at http://www.netbraintech.com/netbrain-support/submit-a-ticket.php.

NetBrain’s support engineer will be able to look up Customer’s license information based on Customer’s company name and email address.

Reported Errors will be investigated by NetBrain, and if a reported

Error relates to the Program(s), or is directly caused by the Program(s):

(a) an Error Report shall be opened; (b) the Error shall be assigned a

Severity Level as per the provisions of the SLA; and (c) the Error shall be resolved in accordance with the procedures and processes set forth in the SLA.

(b) Telephone Support. In emergency situations, NetBrain telephone support representative(s) will be available to receive Customer’s telephone calls between the hours of 9:00AM and

5:00PM EST, Monday through Friday, excluding NetBrain observed holidays. The telephone support line is set forth on www.netbraintech.com/netbrain-support/.

(c) Installation Assistance. NetBrain shall provide

Customer telephone assistance for the implementation or installation of Bypasses, Fixes, and Updates between the hours of 9:00AM and 5:00

PM EST, Monday through Friday, excluding NetBrain observed holidays.

(d) Bypasses. NetBrain shall provide Customer such

Bypasses as are necessary, on a when and if available basis, to ensure the resolution of Errors that can be resolved by a Bypass.

(e) Fixes. NetBrain shall provide Customer such Fixes as are necessary, on a when and if available basis to ensure the resolution of Errors that can be resolved by a Fix.

(f) Updates. NetBrain shall, on a when and if available basis, provide Customer such Updates as it provides to other users for the Program(s) without additional charge from time to time.

(g) Enhancements. NetBrain shall provide Customer such Enhancements as it provides to other users for the Program(s) without additional charge on a when and if available basis.

(h) Upgrades. Customer is entitled to free Upgrades to licensed Program(s), including major version Upgrades and device configuration Updates on a when and if available basis. Upgrades are subject to availability and are limited to only those features and modules which are licensed to Customer under this Agreement.

Upgrades shall not include any release, Update or correction that has been customized for Customer.

(i) Regular Activity Reports. Upon written request by

Customer, NetBrain shall provide: (i) a status report of Error resolution activities; and (ii) a status report of all outstanding Error Reports. Such status reports shall contain NetBrain’s tracking number, Error description, Error resolution status, estimated resolution time frame and release number for all Errors.

3.3. WARRANTY ON MAINTENANCE. All Maintenance Services

performed by NetBrain under this Agreement shall be performed by

NetBrain in a professional manner in accordance with industry standards. If NetBrain receives written notice of non-conforming

Maintenance Services, NetBrain shall re-perform said Maintenance

Services, which shall constitute Customer’s sole and exclusive remedy.

NetBrain does not warrant that the Maintenance Services or

Program(s) will be uninterrupted or error free.

3.4. LIMITATIONS ON MAINTENANCE SERVICES

(a) NetBrain shall not maintain or support any third party programs.

(b) NetBrain shall provide Maintenance Services only with respect to the two (2) most recent released Upgrades of the

Program(s).

(c) Any travel and expenses incurred in conjunction with out-of-scope maintenance and support shall be subject to applicable Federal travel regulations.

3.5. INTELLECTUAL PROPERTY RIGHTS. Title to all Bypasses, Fixes, Updates, Enhancements, and Upgrades shall remain solely and exclusively with NetBrain, and its Third Party Software Providers (if any). It is hereby acknowledged and agreed that the former shall be deemed to constitute Program(s) within the meaning of this

Agreement.

3.6. OTHER CONSULTING SERVICES. Other consulting services

may be available from NetBrain on the open market.

SECTION 4. COMPENSATION

4.1. LICENSE FEE. Customer will pay NetBrain the awarded S70

Contract rates. NetBrain acknowledges that Customer is a Federal government entity and is not responsible for any local, state or Federal taxes. In the event Customer has contracted with a reseller for receipt of the Program(s), Customer shall pay the reseller directly and the reseller shall be responsible for paying NetBrain the applicable fees.

4.2. FEES FOR MAINTENANCE SERVICES

(a) The fees for Maintenance Services shall be at the awarded S70 Contract rates. Customer may renew Maintenance

Services on an annual basis by payment of the awarded S70 Contract rate (or less if agreed by the parties) for Maintenance Services before the beginning of each new twelve (12) month period.

(b) Lapsed Maintenance Services may be reinstated upon payment of back maintenance fees at or below the awarded S70

Contract rate as agreed between the parties.

4.3. PAYMENT.

(a) All fees, charges and other sums payable to

NetBrain under this Agreement will be due and payable in accordance with applicable Federal Acquisition Regulations.

SECTION 5. TERM AND TERMINATION

5.1. The license granted herein shall remain in effect unless terminated in accordance with the provisions of this Agreement.

5.2. The initial maintenance term shall continue for a period of one (1) year accruing from the date of delivery of the Program(s) and

Documentation. Thereafter, Maintenance Services shall continue on a year-to-year basis at the then-applicable rate, until terminated by either party upon written notice of termination given to the other party at least ninety (90) days prior to the applicable anniversary date of the delivery of the Program(s) and Documentation.

5.3. DISPUTES. Disputes under this Agreement shall be subject to the dispute resolutions clauses set forth at FAR 52.233-1.

5.4. POST TERMINATION.

(a) Upon termination of this Agreement, Customer shall promptly cease the use of the Program(s) and Documentation, return any Hardware in its possession or control to NetBrain, and destroy (and in writing certify such destruction) or return to NetBrain all copies of the Program(s) and Documentation then in Customer's possession or control.

(b) All charges required under this Agreement incurred prior to the date of the termination shall be fully paid by

Customer.

SECTION 6. DISCLAIMER OF WARRANTY AND LIMITATION OF

LIABILITY

6.1. DISCLAIMER OF WARRANTIES. EXCEPT AS SET FORTH IN THIS

AGREEMENT AND ALL ATTACHMENTS REFERENCED HEREIN, NETBRAIN

MAKES NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR

STATUTORY REGARDING OR RELATING THE PROGRAMS OR THE

DOCUMENTATION OR ANY MATERIALS OR SERVICES FURNISHED OR

PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. WITHOUT

LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY SET FORTH HEREIN,

NETBRAIN DOES NOT GUARANTEE THE ADEQUACY, ACCURACY,

TIMELINESS OR COMPLETENESS OF THE PROGRAM(S),

DOCUMENTATION OR MAINTENANCE SERVICES OR THAT THEY WILL

OPERATE UNINTERRUPTED OR ERROR FREE. NOTHING SET FORTH

HEREIN SHALL BE CONSTRUED TO LIMIT ANY WARRANTIES REQUIRED

PER THE TERMS OF THE S70 CONTRACT.

6.2. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY

BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS

INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, COST TO

RECOVER, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR

CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR

ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE

PROGRAMS, DOCUMENTATION OR ANY MATERIALS OR SERVICES

PROVIDED HEREUNDER, WHETHER ALLEGED AS A BREACH OF

CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF

THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH

DAMAGES. NETBRAIN’S LIABILITY UNDER THIS AGREEMENT FOR

DAMAGES WILL NOT, IN ANY EVENT, EXCEED THE AGGREGATE

AMOUNT PAID BY THE CUSTOMER TO NETBRAIN UNDER THIS

AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY

PRECEDING THE TIME SUCH LIABILITY AROSE.

SECTION 7. QAPPs

7.1. The Program(s) and Documentation, including DE, may

permit Customer to query and parse information, including, but not limited to, device configurations, performance parameters, figures, statistics, and properties (“Network Data”) on Customer’s network by executing a “Qapp”. A Qapp, designated by the file extension .qapp, is a series of commands, statements, if-then conditionals, or any other language, and embodied in any form, including, but not limited to, programming language, simple text, instructions, functions, scripts, code, data, or other material (“Filters”) which is recognized by the

Program(s) to initiate a query, parse, and analyze Network Data.

(a) CUSTOMER QAPPS. A “Customer Qapp” is a Qapp that is created by Customer using an original Filter, or set of Filters, developed by Customer and which provides substantial functionality not contained in, or provided by, the Program(s) and Documentation, or any deliverable of the Program(s) and Documentation, including without limitation any data, enhancements, updates, upgrades, modifications, bypasses, or fixes (“Program Deliverable”). Customer acknowledges that the Programs and Documentation may be configured to permit Customer to develop Qapps with different levels of access control (“Distribution Models”): Open; Closed – Openly

Executable; or Closed – Closely Executable, as more particularly described below. Customer has sole responsibility for selecting the type of Distribution Model that will apply to the Qapps that Customer may develop. Subject to the provisions of this Agreement, Customer retains all right, title, and interest in Customer Qapps, and may use, distribute, license, sublicense, or resell Customer Qapps.

Distribution Models:

(i) Open. The Customer Qapp can be freely modified, used and distributed by any recipient of the Qapp in any manner the recipient chooses.

(ii) Closed - Openly Executable. The Customer Qapp cannot be modified by a recipient, but may be executed by any recipient that receives such Customer Qapp.

(iii) Closed - Closely Executable. The Customer Qapp cannot be modified by a recipient and may be executed solely by specifically identified recipients determined by Customer.

7.2. In the event Customer uploads Qapps to NetBrain’s Qapp

Exchange, unless the Qapp Exchange includes a facility for Customer to impose Customer’s own end user license terms on recipients of the

Qapps, Customer’s distribution of Qapps through the Qapp Exchange shall be governed by the then-applicable Qapp Exchange Terms of Use.

7.3. NetBrain makes no representations or warranties of any kind that the Qapps developed by Customer will operate in accordance with the anticipated parameters of any of the above distribution models. It shall be the sole responsibility of Customer to ensure that all Customer

Qapps operate as intended, and Customer hereby forever releases

NetBrain, its Affiliates and their respective officers, directors, employees, agents and representatives from any and all claims, liabilities or losses of every kind or nature arising out of or related to the failure of a Customer Qapp to operate as intended.

7.4. NetBrain accepts no responsibility or liability of any kind for any loss or damage caused by Customer Qapps, including, but not limited to, direct, indirect, special, incidental, punitive or consequential damages, loss of profits, loss of use, business interruption, loss of data, loss of goodwill, cost to recover, or infringement of a third party’s intellectual property rights.

7.5. NETBRAIN QAPPS. NetBrain may also generate and

distribute Qapps (“NetBrain Qapps”). A NetBrain Qapp includes, but is not limited to, any Qapp which (i) has been made generally available by NetBrain through the Program(s) and Documentation, an Evaluation

License, DE, any Program Deliverable or any other distribution method, or (ii) has been customized for Customer by NetBrain, in part or in whole. NetBrain retains all right, title, and interest in all NetBrain

Qapps.

SECTION 8. NetBrain CHANGE MANAGEMENT

8.1. The Program(s) and Documentation enable a Customer to

push automatic changes to a Customer network by using NetBrain

Change Management.

8.2. DISCLAIMER OF NETWORK CHANGES. The nature of NetBrain

Change Management is such that the Program(s) may make substantial changes that have the potential to negatively impact a Customer network. Any network changes derived from NetBrain Change

Management require the authorization of Customer, and therefore

Customer understands that any changes made to a Customer network are the sole responsibility of Customer, regardless of any contrary direction provided by NetBrain, or the Program(s) and Documentation.

NetBrain makes no warranties, either express or implied, with respect to the use and efficacy of NetBrain Change Management. Customer will hold harmless and indemnify NetBrain, its Affiliates and their respective officers, directors, employees, agents and representatives from and against any liability, loss, costs, expenses, or damages caused by or resulting from Customer’s use of NetBrain Change Management on a network sustained by Customer, its Affiliates, or any third party.

In the event of any failure of Customer’s network resulting from

NetBrain Change Management, NetBrain will endeavor to assist

Customer in rectifying the problem pursuant to Section 3 of the

Agreement, provided that Customer is currently subscribed to maintenance services with NetBrain.

SECTION 9. MISCELLANEOUS

9.1. CONFIDENTIALITY. Neither party shall use or disclose any information it receives from the other party in connection with this

Agreement, (“Confidential Information”) except where such information falls under the scope of mandatory public disclosure.

“Confidential Information shall not include information that: (i) is or becomes generally known to the public through no act or omission of the receiving party; (ii) was in the receiving party's lawful possession prior to the disclosure and had not been obtained by the other receiving party either directly or indirectly from the disclosing party;

(iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party's

Confidential Information.

9.2. EXPORT REGULATIONS. Customer and NetBrain

acknowledge that the Program(s), Document(s) and all related technical information, documents, and materials may be subject to export controls under the U.S. Export Administration Regulations and, to the extent applicable, Customer and NetBrain shall: (a) comply with all requirements set forth in such regulations; and (b) cooperate fully with each other in any official or unofficial audit or inspection that relates to such export requirements.

9.3. PUBLICITY. Customer permits NetBrain to use Customer’s

name, logo, or likeness (“Customer Trademark”) for marketing purposes, including, but not limited to use in NetBrain marketing materials or on NetBrain’s website. NetBrain agrees not to use the

Customer Trademark in any offensive manner or any manner likely to confuse, mislead, or deceive the public, or which is adverse to the best interests of Customer. NetBrain understands and agrees that the

Customer Trademark is proprietary to Customer, and Customer retains all rights, title, and interest thereto.

9.4. NON-SOLICITATION.