Defense Unicorns License and Service Agreement

These terms and conditions (“Agreement”), together with any Order Form (as defined herein) referencing this Agreement are entered into by and between Defense Unicorns and the party identified in the Order Form (“Customer” or “You”) and contain the terms and conditions that govern the use and access by Customer to certain Defense Unicorns software and services, as described below. In consideration of the mutual promises and upon the terms and conditions herein, the parties agree as follows:

1. Order, Fees, and Payment

1.1        Orders. The parties and their Affiliates may enter into purchase transactions (“Orders”) by executing one or more Order Forms from time to time. When the parties enter into an Order Form, Customer agrees timely to pay to Defense Unicorns the applicable Fees, and Defense Unicorns agrees to provide the purchased Software and Services, in accordance with this Agreement and the applicable Order Form. Except as otherwise specified in this Agreement or in an Order Form: (i) Fees for Software packages or Subscriptions are based on the quantities purchased and not actual usage, (ii) orders and payment obligations are non-cancelable and Fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during any applicable License Term or Subscription Term.

1.2        Fees. The Fees shall be as specified in the applicable Order Form or, if not so specified, then as otherwise quoted by Defense Unicorns or, in the absence of a quote, then at Defense Unicorns’ standard prices and fees in effect at the time the order is placed.

1. If Customer provided a credit card number at the time of purchase, it will be charged upon fulfillment.
2. For all other Orders, Defense Unicorns will invoice Customer for applicable Fees under each Order Form upon Defense Unicorns’ full or partial provisioning of Software or Services, or delivery of the deliverables, as applicable.
3. Each Software or Service item identified by product code in an Order Form shall be deemed a separate sale and shall have its own delivery schedule, period of performance, and/or completion date. Defense Unicorns shall invoice Customer for applicable Software or Services Fees, subject to any discounts, upon provisioning.
4. Unless otherwise expressly set forth in the Order Form, all invoices are due and payable within thirty (30) days of the date of invoice. Unless otherwise specified in an applicable Order Form, all Fees are payable and charged (i) at the beginning of each License Term and Subscription Term, and (ii) at the time of each renewal thereof.

1.3        Recurring Payments. Defense Unicorns may charge interest for all undisputed amounts not paid when due at the lower of 1.5% interest rate per month or the highest rate permitted by law. Defense Unicorns may suspend or terminate access to any Software or Services if any undisputed invoices are past due, which shall not relieve Customer from its obligation to pay all amounts owed. Each License Term and Subscription Term is a continuous and non-divisible commitment to purchase the applicable Software package or Services for the full duration of the then-current License Term or Subscription Term, as applicable, regardless of any payment schedule. Defense Unicorns will invoice Customer, and Customer will reimburse Defense Unicorns, monthly for actual and reasonable travel and living expenses incurred in connection with Defense Unicorns’ provision of any Professional Services. If Defense Unicorns sends a past due account to collections, Customer will be responsible for any resulting collection and attorneys’ fees.

1.4        Taxes. Any Fees are exclusive of taxes or duties of any kind. Customer will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes) associated with this Agreement or Customer’s use of Software or Services, except for taxes based on Defense Unicorns’ net income.

2.  License. 

2.1        License. In accordance with the terms and conditions outlined in this Agreement, including the timely payment of all Fees by the Customer, Defense Unicorns hereby grants Customer a limited, non-exclusive, non-sublicensable, non-transferrable, and non-assignable license to the Customer for the duration of the License Term to (a) access and use the features and functionality of the licensed Software, as specified in the applicable Order Form, and (b) permit Authorized Users access to the licensed Software, provided they comply with the terms of use set forth in this Agreement. Additionally, the Customer is granted the right to use any provided documentation, as part of the licensed Software, solely for the purpose of accessing and using the licensed Software. Customer and Authorized Users shall reproduce in full any existing notices with respect to Defense Unicorns’ copyright ownership and reservation of rights on all tangible media containing copies of the Software and documentation.

2.2        Additional Terms. (a) Unless otherwise specified in the applicable Proof of Entitlement, each Software License is granted on a per Unique Environment basis and it may only be exercised with respect to the Unique Environment Configuration identified on the applicable Proof of Entitlement or, if the Proof of Entitlement does not specify such Unique Environment Configuration, then only with respect to one (1) Unique Environment Configuration (“Authorized Environment”); and (b) when a Software License is provisioned on a specific Authorized Environment (by activating, accessing, or using the Software on that Authorized Environment), such Software License, or any rights thereof, cannot be transferred to a different environment, unless Defense Unicorns authorizes such transfer by a written approval.

2.3        Restrictions. Customer shall not (and may not attempt) to: (a) modify, alter, tamper with, or otherwise create derivative works of the Software; (b) except to the extent such restriction is prohibited by applicable law, reverse engineer, disassemble, or decompile the Software or apply any other process or procedure to derive the source code included in the Software; (c) work around any technical limitations in the Software; (d) engage in any activity that materially interferes with or disrupts the Software; (e) resell or sublicense the Software to third parties; or (f) access or use the Software for any unlawful purpose. You will comply with all applicable law in connection with your access to or use of the Software.

2.4        Support. Unless stated otherwise in the Order Form, during the applicable License Term of the Software or the Subscription Term of the Service, Defense Unicorns shall provide technical support to Customer in accordance with Defense Unicorns’ Service Level Agreement (“SLA”), set forth in Exhibit A of this Agreement.

3. Terms of Use. Customer and Authorized Users agree to use Defense Unicorns Software and Services only in a manner that complies with all laws. Customer shall ensure that it and its Authorized Users operate any Software or Service in accordance with the information and warnings set forth in the published product materials, technical specifications, user manuals, maintenance guidelines, and support communications provided by Defense Unicorns from time to time. The Customer is responsible for procuring and managing all third-party software, hardware, and other necessary services and equipment at their own cost to implement and utilize the Software. The Customer must ensure that such equipment meet the requirements stated in the Order Form(s) or accompanying documentation.

4. Intellectual Property. Customer agrees that all worldwide patent, copyright, and other Intellectual Property Rights in the Software and documentation, and all copies of the Software however made are the exclusive property of Defense Unicorns and its suppliers. All Software is licensed to Customer, not sold. All rights not expressly granted to Customer in this Agreement are reserved by Defense Unicorns and its suppliers. There are no implied licenses under this Agreement.

5.  Service. During the Term, Customer may request Professional Services from Defense Unicorns for the implementation, configuration, and other related tasks for the Software. These Services may include deliverables and other assistance. The specific scope of the Services will be outlined in either the applicable Order Form or Statement of Work (“SOW”), both of which will be considered part of this Agreement. Each SOW will detail the Services to be performed, any accompanying materials or documentation to be provided by Defense Unicorns, and the expected delivery date(s) and associated Fees. The ownership of any Intellectual Property developed during the provision of Services by Defense Unicorns (alone or jointly with others) shall solely and exclusively belong to Defense Unicorns. Customer hereby assigns and agrees to assign to Defense Unicorns all rights, title, and interest in any such Intellectual Property developed during Services.

6. Third Party Software and Open Source Software. Software may include third party software, and open source software (“OSS”), and such software is provided under separate license terms. To the best of Defense Unicorns's information, knowledge and belief, the Software is free from third-party rights that would prevent Defense Unicorns from granting the license. Should third parties be entitled to and assert such rights, Defense Unicorns will, at its own expense, defend the Customer against the asserted third-party claims as set forth under Defense Unicorns’ indemnification obligations.

7. Feedback. Customer may provide Defense Unicorns with any suggestions, comments, or other feedback regarding Software or Services (“Feedback”). Customer’s decision to provide Feedback is entirely voluntary. By providing Feedback, Customer assigns to Defense Unicorns all right, title, and interest (including any Intellectual Property Rights) that Customer may have in such Feedback and acknowledges that Defense Unicorns may use (or not use) any such Feedback in any manner and for any purpose, without compensation to Customer and without implying or creating any interest on Customer’s part in any of Defense Unicorns’ Software or Services that may be based on such Feedback.

8. Publicity. Each party (“Grantor”) grants the other party (“Grantee”) a limited, revocable, non-exclusive, world-wide, fully paid-up, royalty free license to use, display, exhibit, distribute, broadcast, reproduce and copy the names and likeness of designated representatives, company name, company logo, trademark, or trade name provided by Grantor to Grantee solely for describing, promoting, publicizing, or marketing Customer’s use of the Software and Services under this Agreement.

9. Warranty. During the term of this Agreement, Defense Unicorns warrants that the Software shall perform substantially in accordance with the then-current applicable documentation for a period of ninety (90) days. Additionally, Defense Unicorns guarantees that all Services provided to Customer will be done so in a professional and competent manner, adhering to standard industry practices. In the event of a breach of this warranty, Customer's sole remedy shall be for Defense Unicorns to make commercially reasonable efforts to correct any non-conforming aspects of the Software at no additional cost to Customer. If, despite these efforts, Defense Unicorns is unable to rectify the issue, Defense Unicorns reserve the right to terminate this Agreement upon written notice to Customer. In such a case, any unused prepaid Fees paid by Customer for access to and use of the Software will be refunded following termination of the Agreement. This warranty is the exclusive remedy and sole liability of Defense Unicorns for any breach of the warranties set forth in this Agreement.

10. DISCLAIMER OF WARRANTY. EXCEPT AS SET FORTH IN THIS AGREEMENT AND THE EXTENT NOT PROHIBITED BY LAW, PRODUCTS AND SERVICES PROVIDED HEREUNDER ARE “AS IS” AND WITHOUT WARRANTY OF ANY KIND. DEFENSE UNICORNS HEREBY EXCLUDES AND DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING (WITHOUT LIMITATION) ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, TITLE, RESULTS, EFFORTS, OR QUIET ENJOYMENT. THERE IS NO WARRANTY THAT PRODUCTS OR SERVICES ARE ERROR-FREE OR WILL FUNCTION WITHOUT INTERRUPTION OR ACHIEVE ANY PARTICULAR RESULT. CUSTOMER ASSUMES THE ENTIRE RISK ARISING OUT OF THE PERFORMANCE OR USE OF PRODUCTS OR SERVICES AND ANY THIRD-PARTY TECHNOLOGY, INCLUDING RELIANCE ON ANY INFORMATION GENERATED THROUGH USE OF PRODUCTS OR SERVICES. TO THE EXTENT THAT DEFENSE UNICORNS MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF LAW, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

11. Term and Termination.

11.1        Term. This Agreement is effective upon the Customer’s purchase of Software or Services and shall continue until terminated pursuant to this Section (Term and Termination).

11.2          Termination for Cause. If Customer breaches this Agreement (including by failing to pay amounts owed when due) Defense Unicorns may, in addition to its other rights and remedies hereunder or at law: (i) terminate this Agreement for cause in its entirety, or (ii) terminate for cause one or more Order Forms, Subscriptions, Software packages, or Statements of Work related to the breach only. Customer may terminate this Agreement in its entirety for cause upon thirty (30) days written notice to Defense Unicorns of a material breach of this Agreement if such breach remains uncured at the expiration of such period.

11.3          Suspension. Defense Unicorns may suspend or limit Customer’s use of Software or Services as it deems reasonably necessary to prevent, investigate, or otherwise address any suspected breach of this Agreement.

11.4         Effect of Termination.

1. Upon expiration or termination of this Agreement for any reason: (i) all Order Forms, Subscriptions, Software packages subject to a License Term, and SOWs shall immediately terminate; (ii) Defense Unicorns will have no further obligation to provide Services; (iii) if Defense Unicorns terminates this Agreement for cause, then the licenses granted under this Agreement shall immediately terminate and Customer shall immediately stop using the applicable Software; (iv) Customer shall not under any circumstances be entitled to a refund of any Fees paid, except as otherwise expressly provided herein; and (v) any section of this Agreement which by its nature should survive termination shall so survive.

2. Upon expiration or termination of a Subscription for any reason, Defense Unicorns will have no further obligation to provide Services under the Subscription and Customer will promptly pay Fees and other charges accruing under the Subscription prior to expiration or termination. Customer acknowledges that some features of Software may not operate upon termination of any SaaS-based Services. Additionally, if Defense Unicorns terminates a Subscription for cause, then Customer must pay to Defense Unicorns all unpaid Fees that were to have been paid for the remainder of the Subscription Term had it not been terminated, in addition to Defense Unicorns’ other rights and remedies.

3. Upon expiration or termination of a Software License for any reason, (i) all rights and other licenses granted to Customer under that Software package shall terminate and Customer shall immediately stop using (and Defense Unicorns may disable) Software that was provisioned thereunder; and (ii) Customer will promptly pay all Fees and other charges accruing under the Software license prior to expiration or termination. Additionally, if Defense Unicorns terminates an Software License for cause, then Customer must pay to Defense Unicorns all unpaid Fees that were to have been paid for the remainder of the applicable License Term had it not terminated, in addition to Defense Unicorns’ other rights and remedies.

4. Upon expiration or termination of an SOW for any reason, Defense Unicorns will have no further obligation to provide Services under the SOW (including any delivery due after termination, whether or not such delivery is in process at the time of expiration or termination) and Customer shall promptly pay Defense Unicorns a portion of the Fees that would have been due upon future attainment of delivery or other milestones ("Goals") computed on a prorated basis equal to the number of days that Defense Unicorns worked towards the attainment of such Goals prior to termination relative to the number of days specified in the SOW for attainment of Goals.

11.5           Renewals. Unless otherwise specified on the Order Form, upon expiration of the initial period, the License Term or Subscription Term will automatically renew for successive one year renewal periods at (a) the Fees applicable to each such License Term or Subscription Term on the original Order Form (subject to an increase of up to 4% or the increase in the Consumer Price Index over the immediately preceding 12 months, at Defense Unicorns’ discretion), or (b) the revised annual list price, if such a revision is provided by Defense Unicorns no less than sixty (60) days prior to expiration of the applicable Term. Notwithstanding the foregoing, the Term shall not automatically renew if either party gives notice to the other of its intention not to renew at least thirty (30) days before the expiration of the applicable Term.

12.  Indemnification and Limitation of Liability.

12.1        Indemnification by Defense Unicorns. Defense Unicorns, at its expense, will defend and settle any claim to the extent alleging that Customer’s use Software or Services, as permitted under this Agreement, directly infringes any U.S. patent or U.S. copyright, and will pay any settlement or judgment to the extent based on such allegation, including payment of reasonable attorney fees and other costs of defense. In order to make a claim under this Section, Customer must: (i) promptly notify Defense Unicorns in writing of the claim; (ii) grant Defense Unicorns sole control of the defense and settlement of the claim; and (iii) provide Defense Unicorns with all assistance, information and authority reasonably required for the defense and settlement of the claim. If in Defense Unicorns’ reasonable judgment a claim appears likely, then Defense Unicorns may at its own election and expense: (i) procure for Customer the right to continue using the Software; (ii) modify Software or Services to avoid the claim, including by removing allegedly infringing functionality; or (iii) if procurement of the right of continued use or modifications to avoid infringement are not feasible without materially impairing the operation of Software or Services, either: (A) terminate any affected Subscription and refund on a pro rata basis Fees (if any) prepaid for same based on the portion of the License Term remaining at the time of such termination; and/or (B) terminate Customer’s right to use any affected Software and refund any unused prepaid Fees paid by Customer for access to and use of the Software. Defense Unicorns will have no obligation under this Section defend or settle any claim to the extent: (i) the alleged infringement is based upon the combination of Software and Services with third-party products, services, or data; (ii) based upon modifications of Software and Services made at the request of Customer or by a party other than Defense Unicorns; (iii) misuse of the Software and Services; or (iv) Customer’s failure to use the most recent version of Software provided by Defense Unicorns. THE REMEDY IN THIS SECTION IS DEFENSE UNICORNS’ SOLE OBLIGATION AND LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY RELATING TO ANY CLAIM OR ALLEGATION AGAINST CUSTOMER OR OTHERS ASSERTING INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.

12.2        LIMITATION OF LIABILITY. NEITHER PARTY NOR ANY OF ITS LICENSORS OR INFORMATION PROVIDERS AND OTHER SUPPLIERS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AFFILIATES, AND AGENTS SHALL HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY SPECIAL, PUNITIVE, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OR FOR LOSS OF PROFITS, REVENUE, USE, OR DATA, ARISING FROM OR RELATING TO THIS AGREEMENT OR CUSTOMER’S USE OF OR INABILITY TO USE PRODUCTS OR SERVICES, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE), OR ARISING UNDER ANY OTHER LEGAL THEORY, EVEN IF THE FIRST PARTY IS AWARE OF OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY SHALL HAVE ANY LIABILITY WHATSOEVER ARISING OUT OF OR RELATING TO THE OTHER PARTY’S USE OF ANY PRODUCTS OR SERVICES UNDER A TRIAL PERIOD OR ON ANY OTHER TRIAL OR EVALUATION BASIS, INCLUDING ANY BETA SERVICES OR FEATURES.

SUBJECT TO THE FOREGOING, BUT EXCLUDING EACH PARTY’S INDEMNITY OBLIGATIONS HEREUNDER, EACH PARTY’S AGGREGATE, CUMULATIVE LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY CLAIMING THROUGH THE OTHER PARTY FOR ANY AND ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE OTHER PARTY’S USE OF OR INABILITY TO USE PRODUCTS OR SERVICES, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE), OR ARISING UNDER ANY OTHER LEGAL THEORY, SHALL NOT EXCEED THE GREATER OF $100 OR THE AMOUNTS PAID BY CUSTOMER TO DEFENSE UNICORNS UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE FIRST EVENT THAT GIVES RISE TO LIABILITY FOR ANY DAMAGES CLAIMED BY EITHER PARTY. THE EXISTENCE OF MULTIPLE CLAIMS SHALL NOT EXPAND THESE LIMITS. CUSTOMER ACKNOWLEDGES THAT THE FEES CHARGED BY DEFENSE UNICORNS REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT DEFENSE UNICORNS WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. THE FOREGOING LIMITATIONS APPLY, EVEN IF THE REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

13.  Confidentiality.

13.1        Confidential Information. A party receiving Confidential Information (“Receiving Party”) from the other party (“Disclosing Party”) will: (a) protect the Disclosing Party's Confidential Information using the same degree of care, and in no event less that reasonable care, that it uses to protect its own Confidential Information, (b) use the Disclosing Party's Confidential Information for only for purposes consistent with this Agreement, and (c) limit access to Disclosing Party's Confidential Information to its employees, contractors, or agents who are involved in performing this Agreement, have a "need to know," and have signed a non-disclosure agreement with terms no less restrictive than those herein. Customer shall treat the terms of this Agreement as Confidential Information of Defense Unicorns.

13.2        Compelled Disclosure. If the Receiving Party is compelled to disclose by law, order issued by a court of competent jurisdiction, regulatory agency, or other governmental body (each, an "Order") any Confidential Information, the Receiving Party will, if legally permissible, promptly give the Disclosing Party written notice of the Order and reasonable assistance to the Disclosing Party prior to disclosure to provide the Disclosing Party with the opportunity to interpose any and all objections it may have to disclosure of the information required by the Order and seek a protective order or other appropriate relief.

13.3        Equitable Relief. Each Party recognizes that the Confidential Information is unique and that no adequate remedy at law exists for the breach of any provision of this Section. Any such breach would cause irreparable harm to the Disclosing Party, allowing the Receiving Party or third parties to unfairly compete. Therefore, in case of such breach or threat thereof, the Disclosing Party has the right to seek injunctive and other equitable relief, without the need to prove damages, in addition to any legal remedies available.

14.  General.

14.1        Choice of Law and Venue. This Agreement, the rights and obligations of the parties hereto, and any claims or disputes relating thereto, shall be governed by and construed in accordance with the laws of the State of Delaware without regard to its choice of law provisions. Each of the parties agrees that any dispute between the parties shall be resolved only in the courts of the State of Delaware or the United States District Court for the District of Delaware and the appellate courts having jurisdiction of appeals in such courts. The United Nations Convention for the International Sale of Goods shall not apply to this Agreement.

14.2        Modification. Except for any changes to the SLA, any modification to this Agreement must be in writing and signed by both parties.

14.3        Construction. In constructing the terms of this Agreement, no presumption shall operate in favor of or against any party because of its counsel’s role in drafting the terms and provisions hereof. In the case of a Separate Agreement being executed by the Customer with Defense Unicorns for the Software or Services, the following conditions will apply: (i) additional terms stated in the Separate Agreement will also be in effect, and (ii) in the event of any inconsistency between the terms of the Separate Agreement and this Agreement, the Separate Agreement will take precedence. The order of precedence in construction of this Agreement shall be (in order of most controlling to least controlling): (a) the applicable Order Form or SOW; (b) the main body of this Agreement and any amendments; and (c) Defense Unicorns Service Level Agreement.

14.4        Export Control. Both Parties must adhere to all relevant laws and regulations regarding the import, re-import, export, and re-export of goods, including but not limited to the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs enforced by the Office of Foreign Assets Control. It is the sole responsibility of Customer to ensure compliance with these laws and regulations, particularly in regards to the use of the Software and the transfer and processing of Customer's content, as well as providing such content to Authorized Users.

14.5        U.S. Government Rights. All software and any technical data contained in the Software or results of the Services 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 Software or results of the Services, 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.

14.6        Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any reasonable delay in fulfilling or performing any obligation under this Agreement (other than the obligation to pay money), where the delay or failure is directly caused by events beyond our reasonable control, including acts of God, epidemics or pandemics, quarantines, sanctions and other government actions, war, terrorism, natural disasters, extreme adverse weather, systemic electrical, telecommunications, or other utility failure; technology attacks, and labor disputes.

14.7        Notice. Except as expressly otherwise provided herein, all notices shall be in writing and deemed delivered the earlier of: (a) actual receipt; (b) upon delivery by a nationally recognized overnight courier (receipt requested) to the receiving party’s address as specified herein or updated by written notice; or (c) when received via electronic communications as evidenced by either party’s contemporaneously created computer records. The parties’ addresses for notice are set forth above. Either party may change its address of record by giving the other ten (10) days’ notice. Any notices given by Customer to Defense Unicorns under this Agreement shall be given in writing and shall be delivered to the following address and/or email:

Defense Unicorns, Inc.

Attention: Legal Dept.

555 E Pikes Peak Ave., Suite 114

Colorado Springs, CO 80903

legal@defenseunicorns.com 

 

14.8        Relationship Between the Parties. The parties are independent contractors. Neither party is the agent, partner, employee, fiduciary, or joint venturer of the other party under this Agreement. There are no third-party beneficiaries under this Agreement.

14.9        Remedies. Except as otherwise provided herein, the parties’ rights and remedies under this Agreement are cumulative and non-exclusive. No single right or remedy shall be exclusive of any other which is consistent with the former. Customer acknowledges that the Software and Services contain valuable trade secrets and proprietary information of Defense Unicorns and its suppliers, that any actual or threatened breach of this Agreement by Customer would constitute immediate, irreparable harm for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.

14.10        Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion shall not be deemed a waiver of any other provision or of such provision on any other occasion.

14.11        Severability. If any provision of this Agreement is held unenforceable by a court, such provision may be changed and interpreted by the court to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions shall continue in full force and effect.

14.12        Assignment. Defense Unicorns may assign this Agreement, without restriction, upon notice to the Customer. Except as otherwise provided herein, Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of Defense Unicorns; provided, however, Customer may assign this Agreement in its entirety, together with all rights and obligations hereunder, to any party that is not an embargoed party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this Agreement, and Customer shall provide Defense Unicorns with prior written notice of such assignment.

14.13        Entire Agreement. This Agreement constitutes the final and entire agreement between the parties regarding the subject of this Agreement and supersedes all prior or contemporaneous agreements, understandings, course of performance, and communications, whether written or oral. In no event shall any clauses, terms, or conditions of an Authorized User, such as U.S. Government, flow-down to Defense Unicorns, or into this Agreement, or otherwise be deemed to be included or apply to this Agreement, without Defense Unicorns’ prior and express written consent.

15. Definitions.

“Authorized Users” means (a) any individual or entity that directly or indirectly accesses or uses the Software through access authorized by Customer; or (b) employees and contractors working on behalf of and authorized by Customer.

“Confidential Information” means all nonpublic information disclosed by a party to the other party, whether orally or in writing, that is designated as “confidential” or that, given the nature of the information or circumstance surrounding its disclosure, should reasonably be understood to be confidential. Defense Unicorns’ Confidential Information includes nonpublic information relating to Defense Unicorns’ or its partners’ products or services, technology, customers, business plans, promotional or marketing activities, and financial information, third party information that Defense Unicorns is obligated to keep confidential, and the nature and content of any discussions or negotiations between the parties. Notwithstanding the foregoing, Confidential Information does not include any information that: (a) is or becomes generally known to the public without breach of any confidentiality obligation, (b) was known to the receiving party prior to its disclosure by the disclosing party without breach of any confidentiality obligation, (c) is received from a third party free from, and without breach of, any confidentiality obligation or (d) was independently developed by the receiving party without reference to disclosing party’s Confidential Information.

“Customer” includes any entity that is owned, operated, or controlled by Customer (each, a “Customer Affiliate”).

“Fees” means the fees paid by Customer for Software or Services specified in an Order Form.

“Intellectual Property” means embodiments of any Intellectual Property Rights, whether in electronic, written or other media, including (a) works of authorship, (b) inventions, discoveries and improvements, (c) technical data, (d) user interfaces, test reports, bills of material, building instructions, lab notebooks, samples, tools, materials, and apparatuses, and (e) recordings, graphs, drawings, reports, analyses and other writings.

“Intellectual Property Rights” means all worldwide intellectual property rights, including rights in and to (a) patents and other governmental grants for the protection of inventions or industrial designs, (b) copyrights and moral rights, (c) trade secrets and know-how, (d) trademarks, trade names and service marks, (e) domain names, web addresses and other universal resource locator (URL) registrations, (f) rights of publicity, and (g) database rights.

 

“License Term” means, with respect to a Software package, the Term of that Software package, including (if applicable) the initial term and any renewal terms.

“Order Form” means a written ordering document, physically or electronically signed by both Customer and Defense Unicorns, which specifies Software packages, Services, and other entitlements purchased by Customer.

“Professional Services” means consulting and other professional services provided by Defense Unicorns for the implementation, configuration, and other related tasks for the Software under this Agreement, as specified in an Order Form or SOW.

“Services” means Professional Services, Support Services, or Training Services, as applicable.

“Software” means the software specified in an Order Form relating to this Agreement.

“Subscription Term” means, with respect to a particular Subscription, the term of that Subscription, including the initial specified term and any renewal terms.

“Subscription” means a limited-time, renewable entitlement for Customer to receive one or more Services, as specified in an Order Form.

“Support Services” means the support services provided by Defense Unicorns under this Agreement, as specified in an Order Form or SOW.

“Training Services” means in-person or remote product related training services provided by Defense Unicorns under this Agreement, as specified in an Order Form.

“Unique Environment Configuration” means an isolated, self-contained computing environment customized to meet specific use cases, user requirements, security standards, and/or system constraints, where the environment configuration parameters include custom infrastructure as code development, specific Authorization To Operate (“ATO”) documentation, and/or other custom support to enable operation of the Software in the computing environment. Defense Unicorns’ characterization of Customer’s various computing environment and their respective uniqueness for the purposes of determining the Unique Environment Configurations(s) shall be dispositive.

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Exhibit A

Defense Unicorns Service Level Agreement

1. Definitions.

1. “ATO Documentation” means Security Controls Traceability Matrix (“SCTM”) for technical controls of UDS Core, Software Bill of Material (“SBOM”), list of services and containers, Grype scans, network diagram, and other technical documents pertaining to UDS Core.
2. “Deployment Paradigm” means a declarative configuration of specific infrastructure resources, including but not limited to the Kubernetes distribution for container orchestration.
3. “Infrastructure” means the resources required to deploy the Unicorn Delivery Service (“UDS”) Core platform, including a Kubernetes distribution for container orchestration and other dependencies such as databases, object storage, networking, caching, roles and virtualization.
4. “Privileged Access” means the requisite authorization and credentials for Defense Unicorns support personnel to gain access to the representative production environment and complete deployment, testing, and operations as required.
5. “Representative Production Environment” means a non-production environment that has architectural parity (to the extent technically possible) with the target production environment, where the representative environment may be owned by Defense Unicorns or the Customer.

2. General Support Services

1. Applicability; Scope.

During the License Term of a given Software, Defense Unicorns will respond to incidents, troubleshooting requests, questions and clarifications on features, documentation, deployments or otherwise provide assistance to the Customer with regard to such licensed Software (“General Support Services” or “GSS”).

2. Severity Level Definitions.

Defense Unicorns uses the following levels to classify issues:

1. Severity 1 | Critical: Software is unavailable or completely unusable. The situation halts Customer operations and no known workaround exists.
2. Severity 2 | High: Software is functioning, but use is highly degraded or reduced and causing significant impact to operations. Key features may be unavailable or extremely slowed, with no known acceptable workaround.
3. Severity 3 | Moderate: Software experiences non-critical disruption or loss of operational functionality. Functions are other than “normal,” but impact to Customer operations is manageable to low by using available workarounds.
4. Severity 4 | Low: General questions or clarifications on features, documentation, and/or deployments. There is little to no impact on the operation of Customer environment. Software is still unaffected and work is not impeded, including by using available workarounds.

3. Response Times and Coverage.

Impact	First Response Time (FRT) SLA*	Hours of Coverage**	How to Submit
Severity 4 | Low***	48 Hours	Business Hours	Email
Severity 3 | Moderate***	24 hours	Business Hours	Email
Severity 2 | High	4 hours	Business Hours	Email → Phone
Severity 1 | Critical	1 hour	24 hours, 7 days a week	Email → Phone

Business Hours.

        

Time zones	Days	Support Hours	Exclusions
Central Standard or Central Daylight Time (CST, CDT)	Monday - Friday	0700 - 1900	US Federal Holidays

* SLA times listed are time frames in which the Customer can expect the first response from Defense Unicorns. Time should not be construed as “time-to-resolution.”

** The support team is available during regular business hours to assist with any calls. Calls received outside of these hours will be redirected to a mobile phone. We will do our best to answer and address the calls received outside of our regular business hours within the applicable FRT.

*** For support requests at impact levels “Severity 3” and “Severity 4”, logged during non-business hours for, First Response Time commitments shall commence at the beginning of the next business day.

4. Customer Responsibilities.

Defense Unicorns’ support obligations are conditioned upon the following Customer Responsibilities:

1. Customer shall provide a description of the issue, steps taken by the Customer to resolve the issue, the Software being impacted, and Customer’s assessment of the Severity Level.
2. Customer shall respond to Defense Unicorns support communications in a timely manner.
3. The Customer shall limit the maximum number of individuals who can receive direct support from Defense Unicorns to five (5) individuals, and share the names and contact info of such identified individuals.

5. Contact Information.

Customer shall send an email to support@defenseunicorns.com with a severity level, in accordance with the definitions set forth in this section, in the email subject line along with the description of the issue and a contact phone number to initiate triaging of the issue. In the event a follow-up phone call is warranted due to the Severity Level, a support Engineer, with the appropriate clearance level, will contact Customer in accordance with the response times provided herein. The account manager(s) will be included in any response to Severity Level 1 or 2 support requests.

6. Severity Level Determination. 

Defense Unicorns and Customer will make a joint determination of the severity level; however, if the Parties are unable to reach a joint determination on the severity level, Defense Unicorns’ reasonable determination will apply.

7. Changes to Services.

Defense Unicorns reserves the right to modify the General Support Services at any time upon thirty (30) days written notice to Customer provided that Defense Unicorns shall not materially reduce or adversely diminish the service levels provided under this Agreement. Such notice may be provided by email or by posting the revised terms on Defense Unicorns’ website. Any change will be binding and effective thirty (30) days after publication of the change on Defense Unicorns’ website(s), or upon notification to Customer by email.

3. Vulnerability Mitigation Support Services

1. Applicability.

For Customers whose purchased entitlement, as set forth in the applicable Order Form, include Vulnerability Remediation Support Services (“VRSS”), this section outlines the applicable support services.  Each VRSS applies to specific instance of UDS software artifacts. Upon initial delivery of the UDS artifacts in a Customer’s private GitHub repository, the Customer will receive a Software Bill Of Materials (“SBOM”) and Common Vulnerabilities and Exposures (“CVE”) scan results with vulnerability attestations.

2. Scope of Service.

Defense Unicorns will make reasonable efforts to mitigate and remediate CVE that meet all the following criteria:

1. Defense Unicorns’ scanners identify a CVE affecting a UDS artifact and the CVE is “new,” meaning it is identified in a subsequent scan and not been identified in the initial CVE scan results provided at the time of delivery of the UDS artifact;
2. The CVE is scored critical or high according to the Common Vulnerability Scoring System (“CVSS”), Version 3;
3. The CVE is independently fixable of any other bugs; and
4. Either (x) there is an upstream release version available, which a credible and independent third party has verified fixes the CVE (i.e. the project maintainers have release notes or code commit message designating a fix to the CVE); or (y) an affected image can be rebuilt with updated compilers and/or libraries to remediate that CVE.

For new CVEs or major CVE events for which there is no upstream release version available that fixes the CVE, Defense Unicorns will make all reasonable efforts to produce and gain Customer concurrence on an acceptable mitigation plan.

Upon availability of an upstream fix/patch for a qualifying CVE, Defense Unicorns will make all reasonable efforts to patch the CVE and make updated UDS artifacts available within the below specified timeframes. Defense Unicorns has no obligation beyond good faith mitigations and workarounds until an upstream fix becomes available.

Defense Unicorns will make re-architecture and reconfiguration choices in good faith to limit dependencies at the platform layer, including by rebuilding images affected by CVEs to remediate where Defense Unicorns has largest configuration control.

3. Response Time; Time-to-Mitigate Timeline.

1. Severity Scoring.

Defense Unicorns will assign each CVE a severity score according to the Common Vulnerability Scoring System (“CVSS”) version 3, in accordance with the standards described at https://nvd.nist.gov/vuln-metrics/cvss.

CVSS Score	Notification Method	Hours of Coverage*	First Response Time (“FRT”)	Time-To-Mitigate (“TTM”)
9.0. - 10.0 (Critical)	RSS, Email, and/or Phone	24 hours, 7 days a week	24 Hours	15 Days
7.0 - 8.9 (High)	RSS, Email	24 hours, 7 days a week	36 Hours	60 days
6.9 - 0.0 (High)	RSS, Email	Business Hours	48 Hours	90 days

* The support team is available during regular working hours to assist with any calls. Calls received outside of these hours will be redirected to a mobile phone. We will do our best to answer and address the call.

From time to time, Customer may request mitigation or remediation of a specific vulnerability that is not identified with Defense Unicorns’ scanners. In such instance, Defense Unicorns will make all reasonable efforts to accommodate the Customer request, where any remediation or mitigation would be contingent on availability of an upstream fix/patch.

2. Scanning Frequency.

Defense Unicorns will provide Customer: (a) CVE results from new scans whenever a new UDS release is made available to Customer; and (b) updated UDS artifacts in the private repository of the Customer.

4. UDS Environment Setup Services

1. Applicability; Scope.

Defense Unicorns will create and deliver UDS artifacts, subject to the Customer obligations and deployment environment assumptions as set for in this section. Defense Unicorns will:

1. Deliver UDS Artifacts. Defense Unicorns will create secure and integrated UDS artifacts able to deploy the infrastructure, platform, and applications to the Customer’s mutually agreed upon target environment, where testing of such artifacts prior to production deployment will be undertaken in a Representative Production Environment if available.

2. Support. Defense Unicorns will provide Customer detailed ATO Documentation and other documentation for the use of the UDS artifacts. Defense Unicorns will further provide support for outages and other production-level incidents in environments using UDS artifacts for the length of the License Term in accordance with the GSS.

3. Vulnerability Management. Defense Unicorns will conduct vulnerability scanning, mitigation planning and implementation, and patching/remediation for the length of the License Term in accordance with services set forth in VRSS.

4. Dedicated Account Management. Defense Unicorns will provide Customer a single point of contact as dedicated support. The contact will facilitate initial deployment and support issue resolution in accordance with the applicable General Support Services and VRSS.

2. Customer Obligations.

Defense Unicorns’ ability and timeline to deliver UDS artifacts is contingent on the following Customer obligations and environment assumptions:

1. Customer shall review all materials shared by Defense Unicorns, including the environment assumptions outlined below, by its business stakeholders, subject matter experts, and/or IT personnel, in a timely manner for gathering and implementing functional requirements.

2. Customer is responsible for conducting any resource provisioning activities, as applicable, required for the creation of the UDS artifacts or initial deployment.

3. Customer and its vendors must provision infrastructure account access, and authorize any required storage solutions, databases, internal admin users, and external users.

4. Customer technical responsibilities may include providing (m) access to DNS server to configure domain entry; (n) TLS certs; (o) a sub domain and IP list; (p) identify and select a virtualization solution for object storage; (q) identify and select a database management solution; (r) acquire and make available custom resources such as GPUs (for AI workloads); (s) grant permissions for Defense Unicorns’ support engineers to access the Representative Production Environment; or grant authorization to Defense Unicorns to leverage an environment of its own; and (t) boundary routing and/or firewall rules.

5. Customer shall provide Defense Unicorns console access to a shared environment or approval for use of Defense Unicorns’ own environment to complete requisite testing prior to delivering the UDS artifacts and ATO Documentation.

6. Defense Unicorns shall provide Customer materials and assumptions prior to delivery of UDS artifacts. Customer acknowledges these materials and assumptions may require Customer action to implement or authorize necessary access. The provided materials and assumptions include: (l) resources (compute/store) usage estimates; (m) estimated supported user count per product (along with estimated scalability); (n) storage class requirements for the cluster; (o) required [AWS] permissions and roles; (p) list of required storage buckets; (q) list of required databases; and (r) high level (generic) architecture diagram showing which applications need to communicate with storage solutions, databases, internal admin users and external users.

5. Training.

Customer may purchase training services. The training includes the option of having at least one Defense Unicorns support engineer on-site for up to two days, with the possibility of remote training upon request. This support engineer can work alongside the Customer's technical team during training.

6. Additional Services.

The Company may require Customer to subscribe to additional service level support beyond the standard services outlined under GSS or VRSS should the Customer's environment require such support. The Customer must enter into a separate Service agreement for such additional service level support to maintain their support levels as set forth in this Agreement.

7. Out of Scope.

Applications deployed on UDS must have a container image and deployment manifest such as a Helm Chart. Application re-architecture shall not be considered part of any Application Environment Integration Software.