MAS - Norseman Inc. - GS35F334DA

Authorized Federal Supply Schedule FSS Pricelist

GS-35F-334DA

Period Covered by Contract: June 2, 2016 through June 1, 2026

AUTHORIZED FEDERAL SUPPLY SCHEDULE FSS PRICELIST

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 GSA Advantage!® is: GSAAdvantage.gov

Multiple Award Schedule

FSC Class: Information Technology

Norseman, Inc.

(DBA) Norseman Defense Technologies 8172 Lark Brown Road, Suite 201 Elkridge, MD 21075

(410) 579-8600 Fax (410) 579-8610 www.norseman.com

Contract Number: GS-35F-334DA

Period Covered by Contract: June 2, 2016 through June 1, 2021

General Services Administration Federal Acquisition Service

Pricelist current through Modification PS-0165, December 15, 2025

For more information on ordering, go to the following website: https://www.gsa.gov/schedules

Prices Shown Herein are Net (discount deducted)

CUSTOMER INFORMATION

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

SIN

Description

33411RC

Purchase of Equipment

811212RC

Equipment Maintenance

511210RC

Software Licenses

54151RC

Software Maintenance

54151SRC

Information Technology (IT) Professional Services

OLMRC

Order Level Materials

1b. LOWEST PRICED MODEL NUMBER AND PRICE FOR EACH SIN

See GSA Advantage!

1c. HOURLY RATES

See Professional Services Descriptions and Pricing

2. MAXIMUM ORDER

The Maximum Order (MO) for the following Special Item Numbers (SINs) is:

3. MINIMUM ORDER

The minimum dollar of orders to be issued is $100.00.

4. GEOGRAPHIC COVERAGE

The Geographic Scope of Contract will be domestic delivery.

5. POINT(S) OF PRODUCTION

Norseman, Inc.

8172 Lark Brown Road, Suite 201 Elkridge, MD 21075

For a full listing of Points of Production for a specific Manufacturer product, which varies per Manufacturer and part, please Country of Origin information by Manufacturer part number at. www.gsa.gov/advantage.

6. DISCOUNT FROM LIST PRICES

All prices shown herein are Net GSA prices (basic discounts deducted) unless otherwise indicated.

7. QUANTITY DISCOUNT

None unless otherwise specified in the pricelist

8. PROMPT PAYMENT TERMS

0.5% net 15 days and 0% net 30 days from receipt of invoice or date of acceptance, whichever is later.

9. FOREIGN ITEMS

None.

10a. TIME OF DELIVERY

811212

511210

54151

54151S

OLM

10b. EXPEDITED DELIVERY

Contact Contractor

10c. OVERNIGHT AND 2-DAY DELIVERY

Contact Contractor

10d. URGENT REQUIREMENTS

Contact Contractor

11. FOB POINT

Destination.

12a. ORDERING ADDRESS

Norseman, Inc.

8172 Lark Brown Road, Suite 201

12b. ORDERING PROCEDURES

See Federal Acquisition Regulation (FAR) 8.405-3.

13. PAYMENT ADDRESS

Norseman, Inc.

8172 Lark Brown Road, Suite 201

14. WARRANTY PROVISION

Standard Commercial Warranty Terms and Conditions

15. EXPORT PACKING CHARGES

Not Applicable

16. TERMS AND CONDITIONS OF RENTAL, MAINTENANCE, AND REPAIR

Rental and repair is not applicable under the scope of this contract. Maintenance is addressed in the SIN specific terms that follow as well as the terms in Attachment A.

17. TERMS AND CONDITIONS OF INSTALLATION

Not Applicable

18a. TERMS AND CONDITIONS OF REPAIR PARTS INDICATING DATE OF PARTS PRICE LISTS AND ANY DISCOUNTS FROM LIST PRICES

Not Applicable

18b. TERMS AND CONDITIONS FOR ANY OTHER SERVICES

Not Applicable

19. LIST OF SERVICE AND DISTRIBUTION POINTS

For current information on Authorized Service and Distribution points by Manufacturer contact the Contractor.

20. LIST OF PARTICIPATING DEALERS

Not Applicable

21. PREVENTIVE MAINTENANCE

Not Applicable

22a. SPECIAL ATTRIBUTES SUCH AS ENVIRONMENTAL ATTRIBUTES (e.g. recycled content, energy efficiency, and/or reduced pollutants)

Not Applicable

22b. Section 508 Compliance for EIT

Not Applicable

23. UEI NUMBER

G8LCAVK5AVW7

24. NOTIFICATION REGARDING REGISTRATION IN SYSTEM FOR AWARD MANAGEMENT (SAM) DATABASE

The Contractor registration is valid.

DESCRIPTION OF IT PROFESSIONAL SERVICES

GS-35F-334DA www.norseman.com Page 2

MANUFACTURER LISTING

See Attachment A to view Contractor Supplemental Pricelist Information and Terms by Manufacturer.

Manufacturer Name

HPE

Norseman

ATTACHMENT A

CONTRACTOR SUPPLEMENTAL PRICELIST INFORMATION AND TERMS

DEFINITIONS

1. “Affiliate” means any entity controlling, controlled by or under common control with either party. "Control" shall mean or indirect the direct ownership of more than fifty per cent (50%) of the voting rights or income interest in a company or other business entity or such other relationship as, in fact, constitutes actual control.

2. "Change" means any alteration or any extra work, delay or other circumstance which results in an adjustment to any of the cost, delivery schedule, and/or any other aspect of the Product or Services.

3. “Cost” means the charges, prices, and fees for the Product and Services.

4. “Commissioning” means on site Start-up and testing of the Products, in accordance with Company’s standards.

5. "Documentation" means the Company user guides, operating manuals, education materials, reports generated by the Company Configurator, product descriptions and specifications, technical manuals, supporting materials, and other information relating to the Products or used in conjunction with the Services, whether made available in print, magnetic, electronic, or video format, in effect as of the date (i) the applicable Product is shipped to Customer, or (ii) the applicable Service is provided to Customer.

6. “Entitlement or Entitlements” means the document that memorializes the scope of the Services.

7. “End User” means the third party, final user of the Product or Service.

8. "Equipment" means any and all third party sourced finished goods including spare parts relating thereto. Equipment does not include any Company branded products.

9. "Products" means (individually or collectively as appropriate) such Company hardware, Software, Documentation, supplies, accessories, and other commodities, that have been provided or will be provided by Company pursuant to this AGREEMENT. “Products” does not include Equipment.

10. “Purchase Order” means a written or electronic order from Customer for the purchase of Products, Equipment or Services.

11. “Quotation” means the applicable authorized Company quotation in effect when Company accepts Customer’s order.

12. Services" means the Start-up, Commissioning, repair, and/or maintenance activities provided by Company.

13. “Statement of Work or SOW” means the document used by Company to describe customized Services. A SOW may (i) describe the attributes of the customized Services to be provided, and Company’s and Customer’s responsibilities relating to such Services; (ii) specify the price for such Services; and (iii) include technical and administrative requirements associated with such Services.

14. “Software” means computer programs and program objects of any kind (including source code and object code), program set-up and customization parameters, tools, and data and the tangible media on which any of the foregoing are recorded (and copies thereof), including middleware and firmware and related updates and upgrades.

15. “Specifications” means Company’s published specifications for the Products or Services.

16. “Start-up” means installation of the Product at the End User’s site and verification by Company that the Product is in substantial conformance with the Specifications.

17. “Substantial Completion” means the point in time at which the Products have been installed such that Commissioning and Start-up of the Products may thereafter commence, as further defined herein.

18. “Trademarks” means all applicable trademarks, and service marks legally registered to and claimed or used by Company and its Affiliates.

19. "Vendor" means the manufacturer of Equipment.

20. “Version” or “Release” means a release of Software that contains new features, enhancements, and/or maintenance updates, or for certain Software, a collection of revisions packaged into a single entity and, as such, made available by Company to its customers.

PROVISION OF PRODUCTS AND SERVICES

1. If installation is provided for, Company shall install the Product in good working order at the designated location in accordance with the standards agreed to between the parties. Company shall not be liable for any differing, subsurface, latent or concealed conditions encountered in the performance of any Services. The existence of such differing, subsurface, latent or concealed conditions shall constitute a Change.

2. Site Preparation. Any specific environmental conditions which are required for the provision of the Services shall be the responsibility of Customer unless otherwise agreed to in writing by Company. Company shall be entitled to rely on the sufficiency and accuracy of any documentation or data, whether written or oral, provided by Customer to Company regarding site conditions and site preparation requirements.

3. Health and Safety. If the Customer is subject to health and safety laws or regulations which are more stringent than the health and safety standards governing Company, or if Customer elects to operate under more stringent health and safety standards than those to which Company is subject, and Customer requires Company to comply with those higher standards, Company shall be entitled to charge the Customer any extra costs incurred in so complying. Furthermore, Company may refuse, without any liability to Customer whatsoever, to perform in whole or in part the Services if the site presents unhealthy or unsafe conditions.

4. Relocation. If Customer relocates any of the Products which are subject to the terms of a Entitlement without Company agreeing to perform maintenance work as provided under that Entitlement at the new site, Company shall have the right, without any liability to Customer, to terminate the portion of the Entitlement that relates to the new site without any liability to Customer. Any such termination shall not relieve Customer of any maintenance fees to be paid or invoices due under the Entitlement.

5. Site Access. Company shall have reasonable access to the sites and the Products. Company will be entitled to charge the Customer at its normal rates for the time lost by Company’s employees as a result of delays from the Customer in granting access to the site. Furthermore, Company will not be required to perform any Service beyond the term of the Entitlement or Entitlement if Customer does not provide reasonable and timely site access.

6. Third Party Providers. If a party other than Company services the Products and if in Company’s reasonable opinion, corrective action is required to return the affected Products to their normal operating condition, Company will offer to perform such work at the service rates and spare part prices in force at the time of the offer. Company will not be obliged to perform maintenance work until all remedial work has been done.

7. Regulatory Requirements. When required by national regulations or safety rules, an employee or representative of the Customer shall be present in the room where the maintenance work takes place. If no employee or representative of the Customer is present, Company shall have the right to stop its work and to invoice the Customer at its normal labor rate.

8. By-Pass Switch. If no installation by-pass switch has been installed by Customer prior to the performance of any Service, it may be necessary to power down all equipment which depends on electricity from the circuit on which work is being performed. Customer must make time available during regular business hours for the shut-down to take place and for the services to be performed. Customer is reminded that where there is an installation by-pass switch and it is engaged, or where the product is inoperative, the product does not provide any protection against interruptions or irregularities in, or loss of, electrical power.

9. Replacement Parts. If an Company authorized engineer installs a replacement part, the removed part becomes property of Company as soon as it is detached from the Customer product. Company authorized engineers are authorized to install only replacement parts specified by Company. Company will take possession of defective parts (excluding batteries) for which it has provided replacements and will properly dispose of them at no additional cost to Customer.

WARRANTIES

1. Limited Hardware Warranty. Company warrants that the Company’s hardware Products delivered to Customer will be free from defects in workmanship and materials under normal use for the length of time outlined in the hardware Product manual for the relevant hardware Product, current as of the date on which the Product is ordered.

1. Limited Software Warranty. Company warrants that during the Software Warranty Period (i) the Software licensed hereunder will perform in substantial conformance to the program specifications; and (ii) the magnetic media on which the Software is furnished will be free from defects in material and workmanship when given normal, proper and intended usage. The warranty period applicable to the Software is sixty (60) days (“Software Warranty Period”). The Software Warranty Period commences on the date of shipment of such Software by Company. No Software updates are provided under this Agreement. Licensor does not warrant that the operation of the Software will be uninterrupted or error-free, or that Software will operate in hardware and software combinations other than as expressly provided for in the Product Specifications or that Software will meet requirements specified by Customer. Equipment Warranties. No warranty is made with respect to Equipment, and no recommendation of such Equipment shall imply or constitute any warranty with respect thereto. Warranties associated with Equipment are passed “as is” from the applicable vendors, and any enforcement of such Equipment warranties shall be between Customer and Vendor.

2. Service Warranties. Company warrants that the Services to be performed hereunder shall be performed in accordance with recognized professional standards customary in the industry in which the Services are being performed. Should the Services fail to comply with such standards, Company agrees to re-perform such deficient Services at no cost to Customer provided that Company has received written notification within thirty (30) days following the completion of the specific Services giving rise to the claim. FURTHERMORE, CUSTOMER AGREES TO HOLD Company HARMLESS FROM ANY DAMAGES THAT ARISE FROM SERVICES PERFORMED IN STRICT ACCORDANCE WITH THE CUSTOMER’S SPECIFICATIONS OR DIRECTIONS WHICH ARE CONTRARY TO THE COMPANY’S STANDARD PRACTICES. Exclusive Warranties.

3. THE FOREGOING WARRANTIES AND REMEDIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY’S WARRANTIES CONTAINED HEREIN RUN ONLY TO CUSTOMER, AND ARE NOT EXTENDED TO ANY THIRD PARTIES. Exclusions. Company shall not warrant, nor is Company required to provide, any Service on any Product defects (i) resulting from (a) the Product being modified by any person other than Company, (b) incorrect use of the Product (c) unsuitable environmental conditions, or (d) causes not attributable to the Product; or (ii) which were not apparent at the time of the Service visit. Company will submit to the Customer an estimate of the additional repair work required to correct any such defects. Said estimate will be based on Company labor and spare parts price list in force when the estimate is issued. Company will not perform any additional Services without having obtained the Customer’s written approval. The opinion of Company as to whether or not the work is additional maintenance work and therefore not covered under an Entitlement shall be conclusive. Furthermore, Company is not responsible for any software, firmware, information or memory data of Customer or End Users contained in, stored on, or integrated with any Products returned to Company for repair, whether under warranty or not. Company also makes no warranty or representation that its Software will work in combination with any hardware or applications software products provided by third parties, that the operation of the Software will be uninterrupted or error-free, or that all defects in the Software will be corrected.

SOFTWARE LICENSE AGREEMENT

1. OWNERSHIP. This Software License confers no title or ownership and is not a sale of any rights in the Software. All rights not expressly granted to Customer are reserved solely to Company or its suppliers.

2. ACCEPTANCE. Customer accepts Software upon delivery.

3. UPGRADES. Software Versions or maintenance updates, if available, may be ordered separately or may be available through Software support. Company reserves the right to require additional licenses and fees for Software Versions or separately purchased maintenance updates for Use of the Software in conjunction with upgraded Hardware or Software. When Customer obtains a license for a new Software Version, Customer's Software License for the earlier Version shall terminate. Software Versions are subject to the license terms in effect on the date that Company delivers or makes the Version available to Customer.

4. LICENSE RESTRICTIONS. Customer may not exceed the number of licenses, agents, tiers, nodes, seats, or other Use restrictions or authorizations agreed to or provided to Customer pursuant to this Agreement. Some Software may require license keys or contain other technical protection measures.

5. COPY AND ADAPTATION. Unless otherwise explicitly permitted by Company in writing, one copy of the object code may be reproduced by Customer, at no additional charge, only for back-up or archival purposes. If Customer makes a copy for backup purposes and installs such copy on a backup device, Customer may not operate such backup installation of the Software without paying an additional license fee, except in cases where the original device becomes inoperable. If a copy is activated on a backup device in response to failure of the original device, the Use on the backup device must be discontinued when the original or replacement device becomes operable. Customer may not copy the Software onto or otherwise Use or make it available on, to, or through any public or external distributed network. Licenses that allow Use over Customer's intranet require restricted access by authorized users only.

6. REPRODUCTION OF DOCUMENTATION. Customer may, at no additional charge, reproduce (solely for its own internal use) all Documentation furnished by Company pursuant to this Agreement regardless of whether such Documentation is copyrighted by Company. All copies of Documentation made by Customer shall include any proprietary notice or stamp that has been affixed by Company.

7. DESIGNATED SYSTEM. Notwithstanding anything to the contrary herein, the Software License for certain Software is non-transferable and for use only on a computer system owned, controlled, or operated by, or solely on behalf of, Customer and may be further identified by Company by the combination of a unique number and a specific system type (“Designated System”), and such license will terminate in the event of a change in either the system number or system type, an unauthorized relocation, or if the Designated System ceases to be within the possession or control of Customer.

8. REVERSE ENGINEERING. Customer shall not and shall not permit its Affiliates or any third party to modify, reverse engineer, disassemble, decrypt, decompile, recompile, update, or in any way extract or attempt to make derivative works of all or any part of the Software

9. USE FOR SERVICE PROVISION. Extending the Use of Software to any person or entity other than Customer as a function of providing services, (i.e. making the Software available through a commercial timesharing or service bureau) must be authorized in writing by Company prior to such action and may require additional licenses and fees.

10. TERM AND TERMINATION. Unless otherwise specified the Software License granted Customer will be perpetual. Immediately upon termination of any individual limited term license, Customer will destroy the Software and all copies of the Software or return same to Company. Customer shall remove and destroy or return to Company any copies of the Software that are merged into adaptations, except for individual pieces of data in Customer's database. Customer may retain one copy of the Software subsequent to termination solely for archival purposes. At Company's request, Customer will certify in writing to Company that Customer has complied with these requirements.

11. LICENSE TRANSFER. Customer may not sublicense, assign, transfer, rent, or lease the Software or the Software License to any other party.

12. U.S. FEDERAL GOVERNMENT USE. If the Software is licensed for use in the performance of a U.S. Government prime contract or subcontract, Customer agrees that, consistent with FAR 12.211 and 12.212, commercial computer Software, computer Software documentation and technical data for commercial items are licensed under Company’s standard commercial license.

13. COMPLIANCE. Customer agrees that Company may audit Customer's compliance with the Software License terms. If an audit reveals underpayments then Customer will immediately pay Company such underpayments in compliance with this sub-section.

14. EXCLUSIVE REMEDIES. If notified of a valid warranty claim during the warranty period, Company will, at its option, correct the warranty defect for Company Software, or replace all or any part of such Software that it deems to be defective. If Company is unable, within a reasonable time, to complete the correction, or replace such Software, Customer will be entitled to a refund of the license fees paid to Company for use of the defective Software, upon prompt return of such Software to Company. This sub-section states Company's entire liability for warranty claims. EXCEPT AS SET FORTH IN THIS SECTION 14, Company MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SOFTWARE OR SERVICES OR THEIR CONDITION, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR USE BY CUSTOMER. Company FURNISHES THE ABOVE WARRANTIES IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

15. IMPLIED LICENSE. There are no implied licenses.

16. FREEWARE AND OPEN SOURCE. Notwithstanding other statements in this Software License, Software licensed without fee or charge also referred to as Freeware and/or Open Source is provided “AS IS” without any warranties or indemnities of any kind. Software provided under any open source licensing model is governed solely by such open source licensing terms which will prevail over this Agreement.

17. NO WARRANTY UNDER HAZARDOUS, HIGH-RISK, OR LIFE-THREATENING CONDITIONS. The Software is not fault-tolerant and is not designed, manufactured or intended for use as control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage. Accordingly, Company and its suppliers specifically disclaim any express or implied warranty of fitness for such hazardous, high-risk, or life threatening activities.

19. USE OF GOVERNMENT TERMS. Use of terms in this Software License Agreement is restricted to purchase of software by ordering activities authorized by the U.S. Federal government to purchase products under a GSA FSS Group 70 Schedule Contract. Terms herein are not for commercial use.

All references to Bivio Networks in these Terms and Conditions should be read as “Contractor (Norseman, Inc.), acting by and through its supplier, Bivio Networks.

TIME OF DELIVERY

Standard delivery for equipment (SIN 33411) is 90 or 120 days ARO depending on the product. Ordering Activities are instructed to contact the Contractor for requirement of expedited delivery.

TERMS AND CONDITIONS FOR BIVIO NETWORKS, INC. PRODUCTS AND SERVICES

1. Applicability. The following terms and conditions of sale apply to all quotations or purchase orders for any equipment, parts, or other products (“Products”) sold by Bivio Networks, Inc. (“Bivio”) to Buyer. Bivio’s acceptance of any Buyer purchase order is expressly conditioned on Buyer’s assent to these terms and conditions.

2. Delivery. Shipment of the Products will be made FOB Bivio’s manufacturing facility, freight collect, and Buyer will bear all shipping, insurance, delivery and related transportation charges. Title to the Products will pass to Buyer on the delivery date, subject to Bivio’s security interest therein. Buyer bears the risk of loss or damage to the Products in transit and the responsibility to insure against loss or damage and to make a claim against the freight carrier.

3. Inspection/Acceptance. The Contactor (Norseman, Inc.) can only, and shall only tender for acceptance those items that substantially conform to the manufacture’s (Bivio Networks, Inc.) published specifications. Therefore, items delivered shall be considered accepted upon delivery. The Government reserves the right to inspect or test any supplies or services that have been delivered. The Government may require repair or replacement of nonconforming supplies or re-performance of nonconforming services at no increase in contract price. If repair/replacement or re-performance will not correct the defects or is not possible, the Government may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. The Government must exercise its post-acceptance rights – (1) Within the warranty period; and (2) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item.

4. Ownership. The products are offered for sale and sold by Bivio subject in every case to the condition that such sale does not convey any ownership or license (except as set forth under Section 6 (License of Software)), expressly or by implication, estoppel or otherwise, of any of Bivio's intellectual property rights, including any patents, trade secrets or copyrights. Bivio expressly retains for itself all proprietary rights in and to all discoveries, inventions, patent rights, trade secrets, works of authorship, and all other intellectual property rights in the Products, including the Licensed Software, or arising out of work done in connection with the quote attached to these terms.

5. Confidential Information. “Confidential Information” means any proprietary information, technical data, trade secrets or know-how of Bivio, including data and information for the proper installation, testing, operation, and maintenance of Bivio's Products, that is designated as confidential or proprietary or which reasonably appears to be confidential or proprietary. Buyer shall not disclose the Confidential Information to anyone other than those employees and consultants of the Buyer who need such information in connection with their use of the Products. Buyer shall take all reasonable measures to avoid and prevent the disclosure, dissemination, or unauthorized use of the Confidential Information, including at a minimum those measures Buyer takes to protect its own confidential information.

6. License of Software. The Products incorporate or use some proprietary and/or custom software (the “Licensed Software”). The Buyer acknowledges that the Licensed Software is not sold to Buyer and is licensed pursuant to the terms and conditions herein.

7. Warranties. Bivio warrants the Products against defective material and workmanship under normal use and service for a period of one (1) year commencing from the delivery date of such Product (the “Warranty Period”). Bivio does not warrant that the use of the Licensed Software will be error-free and uninterrupted. Bivio will, at its own expense and as its sole obligation, and as Buyer’s exclusive remedy, for any breach of this warranty reported to Bivio in writing during the Warranty Period, at its option, either replace the Product with a new Product or repair the Product. Any such repair or replacement by Bivio will not extend the original warranty period. The warranty set forth above does not apply to damage resulting from misuse, abuse or neglect, and becomes null and void upon any modification, movement or improper service performed on any Products by or at the direction of Buyer or any third party. This warranty is applicable to the original Buyer only and may not be asserted by Buyer's customers or users of Buyer's products.

THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.

8. Indemnification.

a. Indemnification of Buyer. Subject to the limitations set forth in Section 9 (Limitations of Liability), Bivio will, at its own expense, defend all third party suits or proceedings instituted against Buyer and pay any damages finally awarded against Buyer in such suits or proceedings, to the extent that the same are based on and attributable to claims that any Product or any part thereof furnished, in its unmodified form, constitutes an infringement of any patent of the United States issued as of the date of Buyer’s purchase order.

b. Conditions. Bivio’s obligations in subsection (a) above will apply only if (i) Buyer has provided written notice to Bivio of the institution of the claim, suit or proceedings within ten (10) calendar days after the date on which Buyer first receives any written or oral notice that such claims may be asserted against Buyer; (ii) Bivio has sole control of the defense and settlement of any such claims, with counsel of Bivio’s choice, to the extent permitted by applicable law; and (iii) Buyer gives Bivio all needed information, assistance, and authority to enable Bivio to defend or settle any such claims. Bivio will have the right to refuse to settle or comprise any such claims or, in its sole judgment and at Bivio’s expense, to defend Buyer against any lawsuit. Bivio will not be bound by any judgments or settlement agreements to which it has not been a party or to which it has not consented in writing. In the event of any modification or alteration to a Product by Buyer or any third party, Bivio will have no indemnification obligations to Buyer under subsection (a) or otherwise. If any Product is subject to a claim of infringement or its use is enjoined, Bivio may, at its option, either secure for Buyer the right to continue using the Product, modify the Product to be non-infringing, or replace it with a noninfringing Product, or, if neither of these alternatives is commercially reasonable, terminate Buyer's rights to use the Product and refund the purchase price paid to Bivio therefore, as depreciated on a straight-line basis over 5 years.

c. imitation. Bivio will not be responsible for infringement claims based on combination patents or process patents covering the use of Products in combination with other equipment or materials not furnished by Bivio. THIS SECTION 12 STATES THE ENTIRE OBLIGATION OF BIVIO AND THE REMEDY OF BUYER WITH RESPECT TO ANY ALLEGED PATENT, COPYRIGHT OR OTHER INTELLECTUAL PROPERTY INFRINGEMENT BY ANY PRODUCT.

9. Limitations of Liability. IN NO EVENT WILL BIVIO BE LIABLE, UNDER ANY LEGAL THEORY, FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS) RESULTING FROM OR RELATING TO THE USE OR INABILITY TO USE, OR THE MALFUNCTION OF OR ANY DEFECTS IN, ANY PRODUCTS DELIVERED BY BIVIO TO BUYER, OR OTHERWISE ARISING FROM OR RELATING TO THESE PROVISIONS, WHETHER OR NOT BIVIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL BIVIO’S TOTAL CUMULATIVE LIABILITY TO BUYER, FOR ANY AND ALL CLAIMS (WHETHER IN CONTRACT, IN TORT, OR OTHERWISE), ARISING FROM OR RELATING TO THE PRODUCTS OR THESE PROVISIONS, EXCEED THE AMOUNT OF COMPENSATION ACTUALLY RECEIVED BY BIVIO PURSUANT TO THESE PROVISIONS, REGARDLESS OF THE FAILURE OF ANY OTHER REMEDIES IN THESE PROVISIONS. ALL PAYMENTS BY BIVIO WILL COUNT TOWARD SATISFACTION OF THE LIMIT, AND THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT.

10. Miscellaneous.

a. Force Majeure. Bivio will not be liable for for any loss, damage, or penalty for delay in performance of (or failure to perform) its obligations hereunder, whether direct or consequential, due to any cause beyond Bivio’s control, including, without limitation, an act of God, act of Buyer, fire, earthquake, flood, theft, accident, slow-down, strike, labor dispute, riot, embargo, government act, changes in laws or regulations, delays of common carriers, delay in delivery or performance by Bivio’s vendors, and inability to obtain necessary labor, materials or manufacturing facilities.

b. Export. Regardless of any disclosure made by Buyer to Bivio of of an ultimate destination of Products, Buyer warrants that Buyer will not export or re-export, directly or indirectly, any Product without first obtaining any and all necessary licenses and approvals from the U.S. Department of Commerce or any other agency or department of the United States Government, or any foreign government, as required.

c. Assignment. Buyer may not assign, delegate, or transfer, by operation of law or otherwise, any of its rights or obligations under these provisions (including with respect to Licensed Software) to any third party without the prior written approval of Bivio; provided that Buyer shall have the right to assign these provisions to any successor to substantially all of its business or assets, whether by merger, sale of assets, sale of stock, reorganization or otherwise, provided that such assignee assumes all obligations hereunder. Subject to the foregoing, these provisions will bind and inure to the benefit of the parties and their respective successors and permitted assigns.

d. Waiver. No failure of Bivio to insist upon compliance by Buyer with any of these terms and conditions, or to promptly exercise any right accruing from any default by Buyer, will impair Bivio’s rights or remedies with respect to that breach or default or any subsequent breach or default. All waivers must be in writing and signed by the party to be charged. Waiver of any breach or failure to enforce any term herein will not be deemed a waiver of any other breach or right to enforce that may thereafter occur.

e. Severability. If a court or arbitrator finds any provisions herein to be invalid, illegal, or unenforceable, such provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under applicable law and the unaffected provisions of this Agreement will remain in full force and effect.

f. Notices. All notices, consents, or reports permitted or required under these provisions must be in writing and must be delivered by personal delivery, private courier, or certified or registered mail, return receipt requested, and will be effective upon receipt. Notices to Bivio must be sent to Bivio Networks, Inc., 4457 Willow Road, Suite 240, Pleasanton, CA 94588, Attn: Chief Financial Officer, or such other address as Bivio may specify in writing.

BIVIO LICENSE TERMS

1. The Parties. The parties to this Agreement are Bivio Networks, Inc. and its subsidiaries (collectively “Bivio”), and the person or organization that originally purchased from Bivio or an authorized Bivio reseller the applicable license(s) for use of the Software (“Customer”) (collectively, the “Parties”).

2. The Software. In this Agreement, “Software” means the program modules and features of the Bivio or Bivio-supplied software, and updates and releases of such software, for which Customer has paid the applicable license or support fees to Bivio or an authorized Bivio reseller.

3. License Grant. Subject to payment of the applicable fees and the limitations and restrictions set forth herein, Bivio grants to Customer a non-exclusive and non-transferable license, without right to sublicense, to use the Software, in executable form only, subject to the following use restrictions:

a. Customer shall use the Software solely as embedded in, and for execution on, Bivio equipment originally purchased by Customer from Bivio or an authorized Bivio reseller, unless the applicable Bivio documentation expressly permits installation on non-Bivio equipment.

b. Customer shall use the Software on a single hardware chassis having a single processing unit, or as many chassis or processing units for which Customer has paid the applicable license fees.

c. Other Bivio documentation for the Software (such as product purchase documents, documents accompanying the product, the Software user manual(s), Bivio’s website for the Software, or messages displayed by the Software) may specify limits to Customer’s use of the Software. Such limits may restrict use to a maximum number of seats, concurrent users, sessions, subscribers, nodes, or transactions, or require the purchase of separate licenses to use particular features, functionalities, or capabilities, or provide temporal or geographical limits. Customer’s use of the Software shall be subject to all such limitations and purchase of all applicable licenses.

The foregoing license is not transferable or assignable by Customer. No license is granted herein to any user who did not originally purchase the applicable license(s) for the Software from Bivio or an authorized Bivio reseller.

4. Use Prohibitions. Notwithstanding the foregoing, the license provided herein does not permit the Customer to, and Customer agrees not to and shall not: (a) modify, unbundle, reverse engineer, or create derivative works based on the Software; (b) make unauthorized copies of the Software (except as necessary for backup purposes); (c) rent, transfer, or grant any rights in and to any copy of the Software, in any form, to any third party; (d) remove any proprietary notices, labels, or marks on or in any copy of the Software; (e) distribute any copy of the Software to any third party, including as may be embedded in Bivio equipment sold in the secondhand market; (f) use any ‘locked’ or key-restricted feature, function, or capability without first purchasing the applicable license(s) and obtaining a valid key from Bivio, even if such feature, function, or capability is enabled without a key; (g) distribute any key for the Software provided by Bivio to any third party; (h) use the Software in any manner that extends or is broader than the uses purchased by Customer from Bivio or an authorized Bivio reseller; (i) use the Software on non-Bivio equipment where the Bivio documentation does not expressly permit installation on non-Bivio equipment; (j) use the Software (or make it available for use) on Bivio equipment that the Customer did not originally purchase from Bivio or an authorized Bivio reseller; or (k) use the Software in any manner other than as expressly provided herein.

5. No Reverse Engineering. CUSTOMER SHALL NOT REVERSE ENGINEER, DECOMPILE, DISASSEMBLE OR OTHERWISE ATTEMPT TO DISCOVER THE SOURCE CODE OF THE SOFTWARE OR SCHEMATICS OF THE HARDWARE.

6. Audit. Customer shall maintain accurate records as necessary to verify compliance with this Agreement. Upon request by Bivio, Customer shall furnish such records to Bivio and certify its compliance with these terms.

7. Confidentiality. The Parties agree that aspects of the Software and associated documentation are the confidential information of Bivio. As such, Customer shall exercise all reasonable commercial efforts to maintain the Software and associated documentation in confidence, which at a minimum includes restricting access to the Software to Customer employees and contractors having a need to use the Software.

8. Ownership. The Software is protected by United States and international copyright laws and other intellectual property laws and international treaties and trade regulations. Bivio and Bivio’s licensors, respectively, retain ownership of all right, title, and interest (including copyright) in and to the Software, associated documentation, and all copies of the Software. Nothing in this Agreement constitutes a transfer or conveyance of any ownership interest in the Software or associated documentation, or a sale of the Software, associated documentation, or copies of the Software.

9. Warranty, Limitation of Liability, Disclaimer of…