XFactor End User License Agreement – MM10, LLC.

MASTER SOFTWARE LICENSE, MAINTENANCE & PROFESSIONAL SERVICES AGREEMENT, rev 8/27/2020

This Agreement (“Agreement”) describes the terms and conditions that will apply to licenses for XFactor, a product by MM10, LLC., and maintenance services and professional services and training from MM10, LLC relating to those licenses. This Agreement consists of specific terms and conditions relating to Licenses, Maintenance and Professional Services and Training, general terms and conditions relating to the relationship between the parties, the defined terms specified on Exhibit A, and the terms and conditions in any License Schedule.

MM10, LLC’s products include XFactor, a computing tool designed to enable people to gain access to data about contracting opportunities. XFactor is an aggregation of data for current and potential federal contractors and consultants.

Subscription Services and License Terms

1. Subscription Services; Software License

(a) Per the Licensing Schedule in Exhibit B and Customer’s individual contract, MM10, LLC, will provide Customer with user access to data and the ability to create a profile. Customer will be responsible for any third-party products or images that are installed and/or used by or on behalf of Customer in connection with the Subscription Services.

(b) The Customer’s subscription-based licensing (Individual, Bronze, Silver, Gold, or Enterprise) will determine the number of users included in the license. See the MM10, LLC, web site for more information. Subscription services are provided through cloud services, accessible through an industry-standard web browser.

(c) MM10, LLC, will provide services to Customers as detailed in Exhibit C and on the MM10, LLC website.

(d) During the Term, Customer grants to MM10, LCC, a worldwide license to host, copy, use, execute, transmit and display Customer’s data, Customer Applications and any third-party products, as necessary to provide the Subscription Services. Customer agrees to allow MM10, LLC, to use anonymized information about Customer’s use of the Subscription Services and Software to improve XFactor. MM10, LLC, will not acquire any right, title or interest from Customer in or to Customer’s data or third-party products.

2. Restrictions.

(a) Customer’s use of the Subscription Services and/or Software will comply with the terms of this Agreement.
Customer’s use of the Subscription Services will comply with the Subscription Documentation, and Acceptable Use Policy. Customer agrees not to sell, resell, rent, outsource, timeshare, lease or sublicense the Subscription Services and/or Software to any third party or otherwise use it except as permitted under this Agreement and the applicable Schedule. Customer will not use shared User IDs to avoid or reduce the counting of individuals that use the Subscription Services and/or Software.

(b) Customer’s use of the Subscription Services and/or Software will be in object code. Unless specifically authorized by law, Customer may not reverse engineer, decompile, disassemble or otherwise attempt to determine source code or protocols from the Subscription Services and/or Software.

(c) MM10, LLC, retains all right, title and interest to the Subscription Services, Software and Background Materials. The Software will contain MM10, LLC’s copyright notice, and Customer will reproduce such notice in any permitted copy made by Customer.

General Terms and Conditions

1. Representations and Warranties.

a. Each party represents and warrants the following: (i) entering into and carrying out the terms and conditions of this Agreement will not violate any obligation binding upon it; (ii) each party will comply with all applicable laws in connection with its performance under this Agreement; and (iii) the executing persons have the authority to bind their respective parties.

b. MM10 warrants that (i) the Subscription Services and/or Software will operate substantially in accordance with its Documentation, (ii) no disruptive or corrupting software that would damage, disable or compromise the security of a Customer Application will be intentionally or knowingly introduced into the Subscription Services and/or Software by MM10, LLC, or its employees, and (iii) all Professional Services provided under this Agreement will be performed in a good and workmanlike manner, consistent with applicable industry standards. MM10, LLC, will, at its election, promptly repair the Software or Subscription Services to resolve any failure of the warranties described in (i) and (ii) above, which can be replicated or verified, or replace the Software or Subscription Services with alternative software that provides substantially the same functionality. These remedies will be Customer’s exclusive remedy for any failures of these warranties. In order for Customer to invoke these remedies, Customer must provide written notice to MM10, LLC, within the warranty period, expressly outlining the nature of the alleged failure or breach.

c. The foregoing warranties will be void to the extent that any failure of such warranties is caused by anyone other than a MM10, LLC, employee or agent modifying the Subscription Services or Software (unless MM10, LLC, authorizes the specific change in writing).

d. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 6, MM10, LLC, MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.

2. Confidentiality.

a. “Confidential Information” means all non-public information provided by or on behalf of a party to the other party unique to the disclosing party’s business, including but not limited to Subscription Services, Software, Software Documentation and Subscription Documentation. For the avoidance of doubt, Confidential Information also includes any information that is protected as confidential by applicable law, statute or regulation, including the Health Insurance Portability and Accountability Act and the Gramm-Leach Bliley Act.

b. Each party agrees that any Confidential Information it receives from the other is the exclusive proprietary property of the disclosing party or its licensors and may include trade secrets and other highly confidential information.

c. Subject to the Freedom of Information Act, 5 U.S.C. § 552, each party agrees to receive and hold any Confidential Information supplied by the other party in confidence and agrees:
i. not to disclose or publish any such Confidential Information to third parties;
ii. not to use any such Confidential Information except for those purposes specifically authorized by the disclosing party;
iii. to disclose such Confidential Information only to those of its officers, directors, agents and employees who have a need to know, have been advised of the confidential nature of the Confidential Information, and who are under obligations of confidentiality to the receiving party; and
iv. iv. to follow the other party’s reasonable on-site security procedures.

d. The above confidentiality provisions will not apply to information that:
i. is in the public domain at the time of its disclosure;
ii. is disclosed to a third party who is under no obligation to maintain the confidentiality of the information with the prior written consent of the disclosing party;
iii. becomes known to the receiving party from a source other than the disclosing party, provided such source is legally entitled to have and disclose the information; or
iv. is independently developed by a receiving party without use of the Confidential Information of the disclosing party, as demonstrated by written records of such receiving party; or

e. In the event that a receiving party is required by a court of law or by a governmental, regulatory or administrative agency, body or tribunal to disclose any of the Confidential Information of a disclosing party, the receiving party shall (i) provide the disclosing party with prompt prior written notice of such requirement so that the disclosing party may seek appropriate relief to prevent or limit such disclosure, and (ii) furnish only that portion of the Confidential Information which is legally required to be furnished or disclosed.

f. If, in connection with the Subscription Services and/or Software, Customer communicates suggestions for improvements to the Subscription Services and/or Software, Customer assigns to MM10, LLC, all of its right, title and interest (including all intellectual property rights) in such suggestions for improvements and MM10, LLC, will own all right, title, and interest in and to the same and shall be entitled use the same without restriction.

3. Data Protection.

a. If and insofar within the scope of this Agreement Personal Data is Processed by MM10, LLC, on behalf of Customer, MM10, LLC, shall: (i) Process the Personal Data only in accordance with instructions from the Customer (which may be specific instructions as are notified by the Customer to MM10, LLC, during the Term or instructions of a general nature as are set out in this Agreement); (ii) implement appropriate technical and organizational measures to protect the Personal Data against unauthorized or unlawful Processing and against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the harm and/or reputational damage which might result from any unauthorized or unlawful Processing, accidental loss, destruction or damage to the Personal Data and having regard to the nature of the Personal Data and comply with the obligations in this sub-clause; (iii) take reasonable steps to ensure that all MM10, LLC, staff required to access the Personal Data are informed of the confidential nature of the Personal Data and comply with the obligations set out in this sub-clause; and (iv) not publish, disclose or divulge any of the Personal Data to any third party except as described below or unless directed in writing to do so by the Customer.

b. MM10, LLC, will notify Customer in writing if it becomes aware of any breach of Personal Data or any claims in connection with such breach. MM10, LLC, shall inform Customer of all actions and measures taken to address such breach and/or claims.

c. MM10, LLC, will only transfer or provide direct access to Personal Data to MM10, LLC’s affiliates and subcontractor that (i) have agreed in writing to process the Personal Data consistent with the terms of this Agreement and (ii) (A) are located in a jurisdiction subject to Data Protection Legislation or with privacy laws considered to be adequate by the European Commission or (B) have entered into the EU standard contractual clauses for transfers of Personal Data to non-EU data processors, set out in European Commission Decision 2010/87/EC of 5 February 2010, to the extent necessary for MM10, LLC, to fulfill its obligations to Customer pursuant to this Agreement, unless and until MM10, LLC, has in place an alternative valid mechanism which is suitable for this purpose, including but not limited to binding corporate rules for Processors.

4. Indemnification.

a. Subject to 28 U.S.C. § 516, MM10, LLC, will indemnify Customer from, and defend Customer against, any third-party claim that the Subscription Services, Software, or a Deliverable infringe upon a United States, Australian, Canadian or European Union trademark, copyright, trade secret or patent (“IPR”). In the event that the Subscription Services, Software, or a Deliverable is found to be infringing or if MM10, LLC, deems it advisable as the result of a claim or threatened claim, MM10, LLC, will, in its reasonable discretion:
i. procure for Customer the right to continue using the Subscription Services, Software, or applicable Deliverable;
ii. replace or modify the Subscription Services, Software or applicable Deliverable so that it becomes non-infringing; or
iii. in the event that MM10, LLC, cannot reasonably do either of the foregoing in its discretion, terminate the particular Schedule to which the IPR infringement claim relates.
These remedies will be Customer’s sole remedy for any IPR infringement claim.

b. MM10, LLC, will not indemnify Customer when the alleged infringement results from (i) content provided by Customer or developed for Customer as a Deliverable pursuant to written specifications or instructions provided by Customer; (ii) modifications made to the Subscription Services, Software, or applicable Deliverable by Customer or a third party; or (iii) any Customer Application created by Customer or a third party.

c. Subject to 28 U.S.C. § 516, MM10, LLC, shall indemnify Customer and defend Customer against any third party claim to the extent that it is attributable to bodily injury or to death of any person or to damage to or destruction of any property, resulting from the willful or grossly negligent acts of MM10, LLC, its agents or employees.

d. Reserved.

e. In asserting any claim for indemnification, the relevant party must provide prompt written notice describing the claim, and cooperate fully with the indemnifying party. The indemnifying party will be entitled to control any proceedings or litigation for which it is indemnifying the other party, except that the indemnifying party will not, without the other party’s prior written consent (not to be unreasonably withheld), enter into any settlement that would require the other party to take any action, or refrain from taking any action, other than permitting the indemnifying party to pay money damages on its behalf.

f. Nothing contained herein shall be construed in derogation of the U.S. Department of Justice’s right to defend any claim or suit brought against the U.S. pursuant to its jurisdictional statute 28 U.S.C.§ 516.

5. Limitation of Liability.

This clause shall not impair the U.S. Government’s right to recover for fraud or crimes arising out of or related to this Contract under any federal fraud statute, including the False Claims Act, 31. U.S.C. §§ 37293733.

Recourse against the United States for any alleged breach of this agreement for non-intellectual property claims must be made under the terms of the Federal Tort Claims Act or as a dispute under the contract disputes clause (Contract Disputes Act) as applicable. The Contractor shall proceed diligently with performance of this contract, pending final resolution of any request for relief, claim, appeal, or action arising under the contract.

All damages arising under, or related to, this Agreement (regardless of the type of damages, and whether for breach of contract, breach of warranty, tort or otherwise) will be limited to the amount of fees received by MM10, LLC, from Customer in connection with the Schedule(s) under which such damages arose, or to which such damages relate (except any claim by MM10, LLC, for payments owed by Customer will be limited to the amount owed plus any additional amounts owed for use that exceeds the Scope of Use).

6. Outsourcing.

Customer will be permitted to allow a third party service provider to use the Software as part of a technology outsourcing arrangement, provided that: (a) such use is solely for the benefit of Customer and subject to the terms and conditions of this Agreement; and (b) Customer informs MM10, LLC, in writing and provides reasonable assurances that the requirements of this Section have been satisfied.

7. Inspection/Acceptance.

The Contractor/reseller can only, and shall only tender for acceptance those items that substantially conform to the software manufacturer’s (“MM10, LLC.”) 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 within the warranty period; and before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item.

8. Insurance.

During the Term of any applicable Schedule, MM10, LLC, will maintain the following, or similar, insurance coverage:
a. Business Owner’s Policy (Hartford)
b. Excess Liability Policy (Hartford)
c. Cyber and Technology Policy (Hartford)

9. Additional Terms and Conditions.

a. Posts and Discussions.
Certain data, materials and content available within XFactor’s uploaded customer content and discussions may be owned and provided by MM10, LLCs, customers, planners, sponsors or third parties. Customer agrees not to copy, distribute or make any use whatsoever of the content except as reasonably necessary for use of the Application in accordance with this Agreement.

b. Assignment or Delegation.
Assignments are subject to FAR clause 52.232-23, Assignment of Claims (JAN 1986) and FAR 42.12 Novation and Change-of-Name Agreements. Notwithstanding the foregoing, neither party may assign or delegate any rights or obligations under this Agreement or any Schedule without the other party’s prior written consent, except that, subject to Section 14(c), either party may assign the entirety of its rights and obligations under this Agreement (i) to its parent company or an Affiliate, or (ii) in connection with a merger or sale of a business unit or majority stock ownership provided that the successor party assumes the rights and obligations in writing and has adequate resources to meet its obligations and Customer notifies MM10, LLC, in writing prior to the assignment.

c. Customer Combinations.
In the event that Customer should merge with, acquire, or be acquired by another entity (collectively, a “Combination”), the resulting combined entity may only use the Subscription Services and the Software within the scope of the Customer’s operations at the time immediately prior to the Combination. In addition, the parties will negotiate in good faith a proportionate adjustment to the scope of use and the fees due under the applicable Schedule as a result of the Combination.

d. Non-Solicitation.
Neither party will hire or contract with, either as an employee or an independent contractor
(either directly or through a third party), any Covered Personnel of the other party. The term “Covered Personnel” of a party will mean that party’s employees or any contractors retained by that party who are professional services personnel or who were involved in the performance of this Agreement within the preceding six-month period, or any person who would have been considered Covered Personnel but for having terminated employment or contractual relationship within the past six months. Breach of this paragraph will constitute a material breach of this Agreement and will be resolved in accordance with the Contract Disputes Act. Notwithstanding the foregoing, either party shall have the right to hire employees of the other that answer a general advertisement, respond to the posting of positions on the Internet, respond to any other general solicitation, or are referred by an employment agency that does not specifically target the employees of the other, provided that the hiring party did not actively solicit such employee in any other way.

e. Export Compliance.
The export and re-export of the Software and any MM10, LLC, technology is subject to export controls under the laws and regulations of the United States, including but not limited to the Export Administration Regulations, 15 C.F.R. Parts 730-774, and the Foreign Assets Control Regulations, 31 C.F.R. Parts 500-598. The export and re-export of the Software and any MM10, LLC, technology may also be subject

f. U.S. Government Contracts.
This subsection applies when any Software is acquired directly or indirectly by or on behalf of the United States Government: The Software is a commercial product, licensed on the open market; developed entirely at private expense; and without the use of any U.S. Government funds. Use, duplication or disclosure by the U.S. Government is subject to restrictions as set forth in the clause at FAR 52.227-14.

g. Anti-Corruption.
MM10, LLC, and Customer each represent and warrant to the other: (i) that it is aware of all anti-corruption legislation that applies to this Agreement and in particular the US Foreign Corrupt Practices Act 1977; (ii) it has implemented rules and procedures that enable it to comply with this legislation and adapt to any future amendments thereto; (iii) it has implemented appropriate rules, systems, procedures and controls for preventing the commission of Corrupt Acts, either by itself or its staff, and for ensuring that any evidence or suspicion of the commission of a Corrupt Act will be thoroughly investigated and unless prohibited by confidentiality or law, reported to the other party; (iv) its records relating to its business, including accounting documents, are maintained and kept so as to ensure their accuracy and integrity; and (v) it has not made or offered or received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of the other party’s employees or agents in connection with this Agreement (reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction). If a party learns of any violation of the above restriction, it will use reasonable efforts to promptly notify the other party at the address for notices above.

h. Reserved.
(i) Cooperation; Usage Validation.
Subject to Customer’s security policy and procedures, MM10, LLC, and Customer agree that each will execute and deliver documents, including confirmations to MM10, LLC, auditors, and take such other actions as may reasonably be requested to effect the transactions contemplated by this Agreement. MM10, LLC, reserves the right, upon reasonable prior notice, to validate Customer’s usage of the Software and its compliance under this Agreement. Customer will provide usage logs generated by the Software in connection with this usage validation.

(j) Force Majeure.
Excusable delays shall be governed by FAR 52.212-4(f).

(k) No Waiver.
Neither a failure of a party to exercise any power or right under this Agreement, nor a custom or practice of the parties with regard to the terms or performance under this Agreement, will constitute a waiver of the rights of such party to demand full compliance with the terms of the Agreement.

(l) Counterparts.
This Agreement may be signed in counterparts, including facsimile or PDF counterparts or electronic signatures, each of which will be a legally binding method of execution of the Agreement.

(m) Entire Understanding.
This Agreement and its Schedules, together with the underlying GSA Schedule Contract, Schedule Pricelist, Purchase Order(s), constitute the entire understanding of the parties with respect to the Software and supersedes all previous agreements, statements and understandings from or between the parties regarding the subject matter of this Agreement. This Agreement also supersedes any conflicting language contained in any applicable past or future purchase order regarding the subject matter of this Agreement except as agreed in a negotiated Government Purchase Order signed on the Purchase Order document by both parties. In the event of any conflict between the terms of this Agreement and the terms of any Schedule, the terms of the applicable Schedule will control. This Agreement will not be modified except in a writing signed by an authorized representative of each party.

(n) Enforceability.
If any portion of this Agreement is declared by a court of competent jurisdiction to be overbroad or unenforceable, the remainder of this Agreement will be valid and enforceable to the fullest extent permitted.

EXHIBIT A: DEFINITIONS

For the purposes of the Agreement and any Schedule, the following definitions will apply, unless otherwise expressly stated:

“Acceptable Use Policy” means the policy as published from time to time on the XFactor website. MM10, LLC, will not modify the Acceptable Use Policy in a manner that would materially and adversely impact the Customer’s use of the Subscription Services without giving the Customer prior written notice of such proposed modifications.

“Affiliates” are those entities that control, are controlled by, or are under common control with a party to the Agreement. Affiliates may be entitled, subject to the terms of this Agreement and the applicable Schedule, to use the Subscription Services, Software, or purchase maintenance services or Professional Services. For the purpose of any Schedule to which an Affiliate is a party, the Affiliate will be additionally considered the Customer for purposes of the Agreement and such Schedule.

“Background Materials” means processes, methods, software (including but not limited to the Software), related documentation, designs and know-how which MM10, LLC, creates independently of the services for Customer. Background Materials also include all tangible and intangible materials created by MM10, LLC, that generally apply to other MM10, LLC, customers, products or services and which do not include any Customer Confidential Information.

“Cloud Data Storage” means the storage of business data and rules data in the MM10, LLC, database that is available for the Production Environment only.

“Cloud File Storage” means the storage of files associated with features such as archive/purge, large attachment handling and file transfer services that is available across all Environments.

“Corrupt Act” means any act of seeking, authorizing, offering, promising or granting a financial or other benefit (including a payment, loan, gift or transfer of anything of value) for the purpose of inducing a private person or public official to perform his or her duties dishonestly or in breach of his or her professional, legal or contractual obligations and/or to obtain or retain business for MM10, LLC, and or Customer in an undue or dishonest manner.

“Customer Application” means a unique collection of processes that are created using the Software and that provide specific business function for the Customer.

“Customer Data” means any information received by or on behalf of Customer from its end customers or any personally identifiable information about Customer’s employees or agents that is stored, transferred, or processed by the Subscription Services.

“Customer Managed Cloud” means use of the Software in Customer or third party owned and controlled environments that are run within private clouds or running on infrastructure-as-a-service (IaaS) offerings delivered by third party providers.

“Customer Support Handbook” means the terms for MM10, LLC’s provided support and updates located on the XFactor website, as may be periodically updated. MM10, LLC, will not modify the Customer Support Handbook in a manner that would materially and adversely impact the Customer’s use of the Software without giving the Customer prior written notice of such proposed modifications.

“Data Security Obligations” means the cloud security standards provided by the cloud provider for XFactor. MM10, LLC will not modify the Data Security Obligations in a manner that would materially and adversely impact the Customer’s use of the Software without giving the Customer prior written notice of such proposed modifications.

“Deliverable” means documents and other tangible work product that are produced by MM10, LLC for Customer during the course of the performance of Professional Services under a Statement of Work, excluding any Background Materials.

“Documentation” means, as applicable, the Subscription Documentation or Software Documentation.

“Professional Services” means professional services provided by MM10, LLC, pursuant to a Statement of Work for consulting, installation support, and access to training courses.

“Scope of Use” means the purpose, metric and volume of use for the Subscription Services and the Software, in each case, as specified in the applicable Schedule.

“Service” means an integration facility that permits applications to call the Software for data or processing.

“Schedule” or “Statement of Work” means, respectively, an agreement signed by both parties for Customer to receive Subscription Services, Software, or purchase professional services from MM10, LLC. Schedules and Statement of Works are referred to collectively as “Schedules”. Each Schedule will be non-cancelable and nonrefundable for the applicable term, except to the extent expressly provided in this Agreement or such Schedule or under applicable law. If a scenario arises where a Schedule is terminated and refundable in accordance with this Agreement, a schedule, or under applicable law prior to the completion of the applicable term, MM10, LLC, shall refund the Ordering Activity a pro rata portion of the pre-paid fees for the amount of time/fees unused.

“Software” means the software listed in the applicable Schedule, including enhancements, updates, upgrades, modifications or other releases provided to Customer. Software may be managed by MM10, LLC, as part of the Subscription Services or deployed in a Customer Managed Cloud pursuant to the applicable Schedule.

“Software Documentation” consists of user manuals for the Software, which are provided to Customer in electronic form at the time of delivery of the Software.

“Subscription Documentation” means the service catalog, product help files, operating guides, acceptable use policies, rights and responsibilities, support services, service level agreement and security policies related to MikeMarker10 as published from time to time on the MM10, LLC website. MM10, LLC, will not modify the Subscription Documentation in a manner that would materially and adversely impact the Customer’s use of the Subscription Services without giving the Customer prior written notice of such proposed modifications.

“Subscription Services” means the MM10, LLC, Software which is made available to Customer for use in XFactor within the Scope of Use, including any enhancements, updates, upgrades, modifications, releases, Environments, data storage, or other services pursuant to an applicable Schedule.

“Term” is as defined in the applicable Schedule.

“User” is a person who uses the Software in a particular month.

EXHIBIT B: LICENSING SCHEDULE

User Access Pricing
# Users Package Cost Per Month Description
1 (with limited access) Introductory Limited to 7 days Access to
opportunity data
for potential federal
contractors and consultants
1 Individual See contract
5
(with 1 super-user)
Bronze See contract
10
(with 1 super-user)
Silver See contract
20
(with 1 super-user)
Gold See contract
20+ Enterprise See contract

EXHIBIT C: PROBLEM RESOLUTION

XFactor will have two problem resolution methodologies:

1. Frequently Asked Questions (FAQ) – Customers may view the postings on the MM10, LLC web site for answers to commonly asked questions.

2. Ticketing process – XFactor will have a ticketing process for issue resolution. Customers may submit tickets as needed. Please see the MM10, LLC web site for more information.