This Master Subscription Agreement for Risk Manager (this “Agreement”) is between Fugue, Inc. and the individual or entity identified in the Order Form that references this Agreement who places an order to subscribe to Fugue Risk Manager. Once executed by the parties, each Order Form will become a part of this Agreement.

 

BACKGROUND

 

Fugue makes available to its customers via the Internet a service known as Risk Manager that enforces security and policy compliance and enforcement for cloud infrastructure (the “Service”); and

A. Customer desires to obtain a right to access and use Risk Manager subject to the term and conditions of this Agreement.

In consideration of the mutual promises and covenants contained herein, the parties agree to the following terms and conditions, which set forth the rights, duties and obligations of the parties:  

 

  1. GRANT OF RIGHTS

     


    1.1 Access Right
    .  Subject to the terms and conditions of this Agreement and the applicable quote issued by Fugue in connection with this Agreement and accepted by Customer (the “Order Form”) Fugue hereby permits Customer and its employees, contractors, or agents authorized by Customer (“Users”) to access and use the Service during the time period identified in an Order Form (the “Subscription Term”) solely for Customer’s internal business purposes in accordance with the such manuals, documentation and any other supporting materials relating to the Service currently maintained by Fugue and provided to Customer in connection with this Agreement (the “Documentation”).  The Service may only be accessed through User accounts.  Except as provided in this Agreement or in an Order Form, no other right or license of any kind is granted by Fugue to Customer with respect to the Service.


    1.2 Order Forms
    .  The parties shall execute an initial Order Form in connection with this Agreement, and may execute additional Order Forms from time to time during the Term.  Each Order Form shall be incorporated by reference into this Agreement upon execution by the parties. Each Order Form shall describe the commercial terms applicable to the Service subscription purchased by Customer and may identify other terms and conditions applicable to the Service subscription.


    1.3 Third Party Products
    .  It is Customer’s responsibility to obtain the right to use any software or services made available by a party other than Fugue that may be used in connection with the Service that are necessary or advisable in order for Customer to exploit the functionality of any part of the Service (“Third Party Products”) that may be necessary to access or use the Service.  Customer shall be responsible for all fees charged by providers of such Third Party Products (“Third Party Providers”) and for complying with the terms and conditions of all agreements between Customer and Third Party Providers.

     


    1.4 Access; Limitations
    .  Customer shall create User accounts to be used by Users to access and use the Service.  User accounts may only be created for individuals (e.g., team or departmental accounts are prohibited).  Each User must provide his or her full legal name, a valid email address, and any other information requested during the account sign-up process in order to obtain User credentials.  Access to and use of the Service by Users is subject to the service limitations described in this Agreement. Customer and Users shall keep all information associated with each User account complete and accurate and keep the credential details confidential and not share them with third parties.  Customer shall promptly notify Fugue if there is any unauthorized disclosure or misuse of any User credentials, or any unauthorized access to or use of the Service. Customer shall be solely responsible for all activities that occur using the User credentials.


    1.5 Restrictions
    .  Customer shall not: (a) assign, market, sell, lease, rent, distribute, convey, or otherwise make the Service available to any third party (other than Users); (b) access or use the Service for any purposes other than as set forth in this Agreement; (c) adapt, alter, modify, translate, or create derivative works of the Service or any Documentation; (d) access or use the Service in any manner not in compliance with applicable laws; (e) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code of the Service; (f) interfere with or disrupt (or attempt to interfere with or disrupt) the integrity or performance of the Service or the data contained therein; (g) access or use the Service for volume, stress, security, or performance testing activities without prior written permission from Fugue; (h) access or use the Service to develop a similar or competitive product or service; or (i) access or use the Service to permit or enable third parties to circumvent or exceed Service account limitations or requirements.


    1.6 Retained Rights
    .  Except for the rights granted to Customer in this Agreement, Fugue retains all right, title and interest in and to the Service and the Documentation.

  2. SUPPORT


    2.1 Support; Updates
    .  Fugue shall provide support to Customer and Users in connection with the Service through Fugue’s generally available online ticketing and support system (“Support Services”) in accordance with the specific support terms set forth for Risk Manager available at https://www.fugue.co/support-terms.  Except as set forth under Fugue’s standard support terms available at https://www.fugue.co/support-terms, Fugue shall have no obligation to support the Service in any way, nor to provide any modifications, error corrections, bug fixes, new releases or other updates to the Service (each, an “Update”).  In the event that Fugue, in its sole discretion, makes an Update available to Customer under this Agreement, such Update shall be deemed to be part of the Service for the purposes of this Agreement and shall be subject to the terms and conditions of this Agreement.  For the avoidance of doubt, Fugue shall have no duty to provide any support for any Third Party Products.

  3. ONBOARDING; PROFESSIONAL SERVICES

       3.1  Onboarding Services.  Fugue may perform certain professional services in connection with onboarding Customer to the Service as set forth           in the Order Form (collectively, the “Onboarding Services”).  Except as otherwise provided in an Order Form, the terms and conditions governing         Fugue’s provision of the Onboarding Services are set forth in this Agreement.

       3.2  Additional Services.  From time to time, Customer may require certain professional services related to the Service that are beyond the scope         of the Onboarding Services (“Additional Services” and, collectively with Onboarding Services, the “Professional Services”). Prior to Fugue                     providing such Additional Services, Customer shall execute a Fugue Professional Services Agreement including a Statement of Work that sets               forth the terms and conditions relevant to the performance of the Additional Services.  Each Statement of Work shall, to the extent applicable,               contain: (a) a description of the Additional Services to be performed; (b) any applicable assumptions, milestones, deliverables, and timelines for         delivery; (c) applicable fees and payment terms; and (d) other terms applicable to such Additional Services.

 

4.    FEES; TAXES

 

4.1 Fees.  The initial order for a Service subscription and for Onboarding Services (if any) is set forth in the initial Order Form that references this Agreement.  Additional orders for Service subscriptions and Professional Services shall be set forth in subsequently issued Order Forms that reference this Agreement.  Customer shall make non-refundable payments to Fugue for Service subscriptions and Professional Services in accordance with the Order Forms. Customer shall reimburse Fugue for all reasonable travel, lodging, communications, shipping charges and other out-of-pocket expenses incurred by Fugue in connection with the provision of the Professional Services.  Customer shall pay all fees (including expense reimbursements) payable under this Agreement for which an invoice is issued by Fugue within thirty (30) days of the date of the invoice. For all amounts not paid within thirty (30) days from the date of the invoice, Customer agrees to pay interest at the rate of one and one-half percent (1.5%) per month (or the maximum rate permitted by applicable law, whichever is less).  All fees payable under this Agreement shall be made without recoupment or set-off.


4.2 
Taxes.  In addition to all fees payable pursuant to this Agreement, Customer shall pay or reimburse Fugue for all federal, state, local, or other taxes, including sales, use, excise and property taxes, or amounts levied in lieu thereof, based on charges set forth in this Agreement; provided, however, that Customer shall have no responsibility for taxes imposed on Fugue’s net income by any taxing authority

 

5.    DATA AND COMPLIANCE WITH LAWS

 5.1 Data.  The Service collects data about Customer’s and Users’ interaction with the Service, data about Customer’s cloud infrastructure and the configuration thereof, as well as certain other information (including personally identifiable information) about Customer and Users (collectively, “Data”).  Customer hereby grants to Fugue a non-exclusive and non-transferable right and license to reproduce, distribute, transmit, display, reformat, modify, create derivative works of, and otherwise use the Data during the Term in order to operate the Service and to create Aggregated Data.  The parties agree that (a) Customer owns all Data, and (b) Fugue owns all Aggregated Data. “Aggregated Data” means Data in aggregated and de-identified form that does not allow a third party to identify Customer or Users based on such data.  The Service enables Customers to configure the Service settings, and provides information about best practices, designed to prevent collection of Customer’s personally identifiable information by Fugue.  Fugue shall have no liability to Customer or any third party for the transfer or provision of such personally identifiable information to Fugue in connection with the Service.

 5.2 Export Control.  Customer’s and Users’ access to and use of the Service is subject to export laws, regulations, orders, or other restrictions imposed by the U.S. government (including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the U.S. Department of State).  Customer represents, warrants, and covenants that (a) Customer and Users are not located in, and shall not access or use the Service from, any country sanctioned by OFAC, and (b) Customer and Users are not denied parties as specified in the regulations listed above.  Customer shall comply with all applicable export and re-export control laws and regulations, including the EAR, trade and economic sanctions maintained by OFAC, and the ITAR.  Notwithstanding any other provision of this Agreement to the contrary, Customer shall not import, export or re-export, sell, transfer, divert, or otherwise dispose of, directly or indirectly, the Service or related information to any country, other destination, or person to which such import, export, or re-export is restricted or prohibited, or as to which any such government or any agency thereof requires an export license or other governmental approval at the time of such import, export, or re-export without first obtaining such license or governmental approval.

5.3 Regulated Data.  Customer agrees that: (a) Fugue is not acting on Customer’s behalf as a Business Associate or subcontractor; (b) the Service may not be used to store, maintain, process or transmit protected health information (“PHI”); and (c) the Service shall not be used in any manner that would require Fugue or the Service to be compliant with the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA”), payment card industry data security standards (“PCI DSS”) requirements, or other law or regulations governing personal information or sensitive data.  In the preceding sentence, the terms “Business Associate,” “subcontractor,” “protected health information” and “PHI” have the meanings ascribed to them in HIPAA.  The Service is not directed to children under 13 years of age and Fugue does not knowingly collect data from individuals under the age of 13.

 

5.4 Security.  Fugue shall maintain reasonable administrative, physical, and technical measures designed to maintain the security, confidentiality and integrity of the Data stored in the Service.

 

5.5 Compliance with Laws.  Fugue shall comply with all laws and regulations applicable to Fugue’s provision of the Service.  Customer is solely responsible for its and Users’ compliance with applicable laws and regulations governing Customer’s and Users’ access to or use of the Service.

 
6.    PROPRIETARY RIGHTS

 6.1 Ownership.  As between Customer and Fugue, Fugue or its licensors own all right, title, and interest in and to the Service and Documentation.  All enhancements, improvements, and modifications to and derivative works of the Service and Documentation, and all work product (including all inventions, discoveries, and other intellectual property) created, developed, or conceived by or on behalf of Fugue in connection with its performance of the Professional Services, shall be the sole and exclusive property of Fugue, and Customer hereby assigns to Fugue all of its rights in such enhancements, improvements, modifications and derivative works and work product.


6.2 Feedback
.  All comments, ideas and/or reports provided or otherwise made available by Customer or Users to Fugue regarding the Service (including regarding installation, product experience, functionality, performance, accuracy, consistency and ease of use of the Service) or Fugue’s other products or services (“Feedback”) shall be Fugue’s proprietary and confidential information, and Customer hereby irrevocably transfers and assigns to Fugue all intellectual property rights embodied in or arising in connection with such Feedback, and any other rights or claims that Customer may have with respect to any such Feedback.  Fugue, in its sole discretion, may freely utilize all Feedback, whether written or oral, furnished by Customer to Fugue, without attribution or compensation of any kind.


6.3 
Publicity; References: During the term of this Agreement, Customer hereby authorizes Fugue to list and display Customer’s name and logo on Fugue’s website and to use Customer’s name and logo in Fugue’s customer lists provided to other potential customers, vendors, investors, or other third parties designated by Fugue. Upon reasonable notice from Fugue, Customer agrees to serve as a reference to potential customers, vendors, investors, or other third parties designated by Fugue. Any other use by Fugue of Customer’s name, logo or trademarks including use in case studies or white papers, requires the prior written consent of Customer.

 
7.    LIMITED WARRANTIES; DISCLAIMER

 7.1 Limited Warranties.  Fugue warrants that during the Term, the Service shall perform substantially in accordance with the Documentation therefor.  In the event of a breach of the foregoing warranty, Fugue’s sole obligation, and Customer’s sole and exclusive remedy, shall be for Fugue to make commercially reasonable efforts to promptly correct the non-conforming functionality of the Service without additional charge to Customer.

 
7.2
 Disclaimer.

 
7.2.1 EXCEPT AS SET FORTH IN SECTION 7.1, THE SERVICE, SUPPORT SERVICES, PROFESSIONAL SERVICES, AND DOCUMENTATION ARE PROVIDED “AS IS” AND FUGUE DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, RELATING THERETO, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE.  UNDER NO CIRCUMSTANCES SHALL FUGUE BE RESPONSIBLE OR LIABLE FOR ANY ACTIONS OR OMISSIONS OF ANY CLOUD SERVICE PROVIDER (FOR EXAMPLE, MICROSOFT AZURE OR AMAZON WEB SERVICES) IN CONNECTION WITH THE SERVICE OR FUGUE'S PERFORMANCE OF THE SUPPORT SERVICES OR PROFESSIONAL SERVICES.

 

 7.2.2 FUGUE MAKES NO WARRANTIES OR REPRESENTATIONS AND SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY THIRD PARTY PRODUCTS.  FUGUE DOES NOT REPRESENT OR IMPLY THAT IT ENDORSES ANY THIRD PARTY PRODUCTS, OR THAT IT BELIEVES THE OPERATION OF ANY THIRD PARTY PRODUCTS SHALL BE ACCURATE, USEFUL, OR NON-HARMFUL.  THIRD PARTY PRODUCTS MAY HAVE TECHNICAL INACCURACIES, MAY CAUSE MISTAKES OR ERRORS, AND MAY TRANSMIT, STORE, OR OTHERWISE MANIPULATE DATA IN A MANNER THAT IS OBJECTIONABLE TO CUSTOMER.  CUSTOMER IS SOLELY RESPONSIBLE FOR TAKING PRECAUTIONS TO PROTECT ITSELF AND USERS (IF APPLICABLE) IN CONNECTION WITH THE USE OF THIRD PARTY PRODUCTS.


7.2.3 
No Professional Advice.  All information, materials, content and/or advice provided by Fugue through the Service, Documentation, Support Services, or Professional Services is for informational purposes only and is not intended to replace or substitute for (a) any professional advice, or (b) Customer’s independent obligation to comply with applicable laws and regulations.  Fugue expressly disclaims, and Customer expressly releases Fugue from, any and all liability concerning any diagnosis, treatment, or action arising or learned from the information offered or provided within or through the Service.

 
8. LIMITATION OF LIABILITY

 

TO THE EXTENT ALLOWED BY APPLICABLE LAW AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY: (A) IN NO EVENT SHALL FUGUE OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES FOR LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, INADVERTENT DISCLOSURE OF DATA, OR INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR OTHER ECONOMIC LOSS ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY ORDER FORM OR STATEMENT OF WORK, EVEN IF FUGUE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, HOWEVER CAUSED, AND (B) FUGUE’S ENTIRE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY ORDER FORM OR STATEMENT OF WORK, UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT, INDEMNITY OR OTHERWISE) SHALL NOT EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO FUGUE DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM (OR FOR A CLAIM ARISING BEFORE TWELVE (12) MONTHS AFTER THE EFFECTIVE DATE, THE AGGREGATE FEES PAID BY CUSTOMER TO FUGUE DURING THE FIRST TWELVE (12) MONTHS OF THE TERM).

 

9. TERM; TERMINATION

 9.1 Term.  This Agreement shall commence on the Effective Date and, unless sooner terminated pursuant to the terms hereof, shall continue in full force and effect for one (1) year (the “Initial Term”).  Thereafter, this Agreement shall automatically renew for successive one (1) year periods (together with the Initial Term, the “Term”), unless either party provides the other party with written notice of its intent not to renew at least thirty (30) days prior to the end of the then-current term, in which case this Agreement shall expire after the conclusion of the then-current Subscription Term.

 9.2 Termination by Either Party.  Either party may terminate this Agreement upon written notice to the other party if the other party materially breaches a provision of this Agreement and fails to cure such breach within thirty (30) days following receipt of written notice from the non-breaching party.  In addition, either party may immediately terminate this Agreement if the other party: (a) is dissolved or liquidated or takes any corporate action for such purpose; (b) is adjudicated to be insolvent; (c) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency law; (d) makes or seeks to make a general assignment for the benefit of its creditors; or (e) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.


9.3
 Effect of Termination.  Upon any termination or expiration of this Agreement, (a) all Order Forms and Statements of Work issued in connection with this Agreement shall immediately terminate, (b) the rights granted to Customer under this Agreement, all Order Forms, and all Statements of Work issued in connection with this Agreement shall immediately terminate, and (c) Customer shall cease all use of the Service and Documentation.  Sections 1.5, 4, 6, 7.2, 8, 9.3, 10, and 13 shall survive any expiration or any termination of this Agreement. Termination of this Agreement by either party shall not act as a waiver of any breach of this Agreement and shall not act as a release of either party from any liability for breach of such party’s obligations under this Agreement. Neither party shall be liable to the other for damages of any kind solely as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement by a party shall be without prejudice to any other right or remedy of such party under this Agreement or applicable law.

 
10. CONFIDENTIALITY


During the Term, either party may obtain information from the other party which the receiving party knows or has reason to know is of a confidential and/or proprietary nature to the disclosing party (“
Confidential Information”).  Without limiting the above (a) the Service, the Documentation, the Feedback, the Aggregated Data, and any product roadmap relating to the Service is Fugue’s Confidential Information, and (b) Data is Customer’s Confidential Information.  Except as expressly stated in this Agreement, during the Term and at all times thereafter, neither party may disclose any such Confidential Information to any third party, nor may either party use such Confidential Information of the other party for any purpose, other than as permitted herein.  The receiving party shall take the same degree of care that it uses to protect its own confidential and proprietary information and materials of similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid unauthorized use or disclosure of Confidential Information of the disclosing party.  Confidential Information shall not include any information which: (a) is or becomes readily available to the trade or public through no fault of the receiving party; (b) is subsequently lawfully and in good faith obtained by the receiving party from an independent third party without breach of this Agreement; (c) the receiving party can establish that the information was in its possession prior to the date of disclosure of such Confidential Information by the disclosing party; or (d) is developed independently by the receiving party without reference to any Confidential Information of the disclosing party.  Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent such disclosure is required by applicable law, a court of competent jurisdiction, or a governmental agency.


11. INDEMNIFICATION

 11.1 Fugue Infringement Indemnity.  Fugue shall indemnify Customer from and against any damages that are finally awarded by a court of component jurisdiction in connection with a claim brought by any third party against Customer alleging that the use of the Service as contemplated under this Agreement infringes a copyright or U.S. patent issued as of the Effective Date; provided that Fugue shall not be required to indemnify Customer to the extent that any such claim arose out of or resulted from (a) the use of the Service by Customer or Users in a manner inconsistent with the Documentation or this Agreement, (b) the continuation of the allegedly infringing activities by Customer or Users after being provided with a modification by Fugue that would have avoided the alleged infringement, or (c) the use of the Service by Customer or Users in combination with any other product or service not authorized by Fugue.  If the Service becomes (or in Fugue’s reasonable opinion is likely to become) the subject of an infringement claim, Fugue shall have the right, at its sole option, to obtain for Customer the right to continue use of the Service, or to replace or modify the Service so that it is no longer infringing. If Fugue determines, in its reasonable discretion, that neither of the foregoing options is commercially reasonable, then Fugue may elect to terminate this Agreement, and Fugue’s sole liability shall be to refund to Customer any prepaid fees for the Service applicable for the period after the effective date of termination.

11.2 Customer Indemnity.  Customer shall indemnify Fugue from and against any damages that are finally awarded by a court of component jurisdiction in connection with a claim brought by any third party against Fugue related to, resulting from, or arising out of (a) any breach of this Agreement by Customer or Users, or (b) any violation by Customer or Users of any applicable laws (including national, international, federal, provincial, state or common laws) or regulations concerning publicity, data security or privacy.


11.3 
General Indemnification Procedure Terms. The indemnified party shall (a) promptly notify the indemnifying party in writing of a claim for which indemnification is sought, (b) give the indemnifying party sole control of the defense and settlement of such claim (provided that such indemnifying party may not settle any such claim unless such settlement unconditionally releases the indemnified party of all liability in connection with such claim), and (c) provide to the indemnifying party, at the indemnifying party’s cost, all reasonable assistance and cooperation in defense of such claim.  The indemnified party may participate, at its own expense, in the defense of any such claim through counsel of its own choosing.

 

 12. FORCE MAJEURE
Fugue shall not be responsible for any delay or failure in performance to the extent that such delay or failure is caused by fires, strikes, embargoes, explosions, earthquakes, floods, wars, labor disputes, government requirements, civil or military authorities, acts of God or by the public enemy, inability to secure raw materials or transportation facilities, acts or omissions of carriers or suppliers, or other causes beyond its reasonable control (each, a “Force Majeure Event”).


13. GENERAL

13.1 Entire Agreement.  This Agreement constitutes the complete and exclusive agreement between Customer and Fugue in connection with the subject matter hereof.  Any other preprinted terms and conditions included in any acknowledgments, purchase orders, invoices, or other similar documents issued in connection with this Agreement shall not be incorporated into nor construed to amend the terms of this Agreement. Except as expressly set forth herein, this Agreement shall not be modified unless both Customer and a Fugue authorized representative execute a separate written instrument modifying the Agreement.

 

13.2 Relationship of the Parties.  Nothing contained in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency, employment, or fiduciary relationship between the parties.  Neither party nor its agents have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times shall continue to be, that of independent contractors

 

13.3 Severability.  If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability of such provision under other circumstances and in other jurisdictions, or of the remaining provisions under all circumstances.  Any delay or failure by either party to this Agreement to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights.

 

14.4 Assignment.  This Agreement, including all Order Forms and Statements of Work, may not be assigned, in whole or part, whether voluntarily, in connection with a merger or acquisition, by operation of law, or otherwise, by Customer without the prior written consent of Fugue.  Subject to the preceding sentence, the rights and liabilities of the parties hereto shall bind, and inure to the benefit of, their respective assignees and successors and is binding on the parties and their successors and assigns. Any attempted assignment other than in accordance with this Section shall be null and void.

 

14.5 Governing Law.  This Agreement is to be construed in accordance with and governed by the internal laws of the State of Maryland (but expressly excluding the Uniform Computer Information Transactions Act (“UCITA”) as enacted in Maryland) without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Maryland (excluding UCITA) to the rights and duties of the parties.  The United Nations Convention for the International Sale of Goods shall not apply to this Agreement. Any dispute arising out of this Agreement or the subject matter thereof shall be submitted to exclusive personal jurisdiction and venue of the United States District Court for the District of Maryland, or, if there is no jurisdiction in such court, to the state courts having jurisdiction over Fredrick County, Maryland.  

 

14.6 Restricted Rights.  All software and any technical data contained in the Service and the Documentation are “commercial items,” as defined in 48 C.F.R. §2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. §12.212.  The use, duplication, reproduction, release, modification, disclosure or transfer of the Service and the Documentation, and any data relating thereto or derived therefrom, is restricted in accordance with 48 C.F.R. §12.211, 48 C.F.R. §12.212, 48 C.F.R. §227.7102-2, and 48 C.F.R. §227.7202, as applicable.  This is in lieu of, and supersedes, any Federal Acquisition Regulations (“FAR”), the Defense FAR Supplement (“DFARS”), or other agency supplemental clause or provision that addresses government rights in computer software or technical data.

 

14.7 No Third Party Beneficiary.  This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.

 

14.8 Waiver.  The waiver by either party of a breach of or a default under any provision of this Agreement, shall be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.  

 

14.9 Communications.  Customer (a) consents to receive communications from Fugue in an electronic form, and (b) agrees that all terms and conditions, agreements, notices, documents, disclosures, and other communications (“Communications”) that Fugue provides to Customer electronically satisfy any legal requirement that such Communications would satisfy if it were in writing.  Customer’s consent to receive Communications and do business electronically applies to all of Customer’s interactions and transactions with Fugue.  If Customer has any questions or comments about this Agreement, please contact Fugue at privacy@fugue.co.