This License and Services Agreement (the “License Agreement” and together with the Exhibits hereto and the Order Form(s) entered into hereunder and any addenda signed by the parties referencing this License Agreement, the “Agreement”) is entered into by and between SixMap, Inc., a Delaware corporation (“SixMap”), and the customer named in the applicable Order Form (“Customer”). As used herein, “Order Form” means an ordering document (including any quotation, purchase order, confirmation or similar documentation) that is entered into by the Customer for SixMap Products and/or services, either directly with SixMap or through a Reseller (as defined in Section 4.2 below). All Order Forms are subject to acceptance by SixMap and shall be deemed incorporated in the Agreement, whether such Order Form references this License Agreement or otherwise. 

By executing an Order Form that references this Agreement or by indicating acceptance of this Agreement via click-to-accept, electronic signature or other electronic means offered by SixMap, Customer agrees to be bound by the terms and conditions of this Agreement as of the date of the first such Order Form (the “Effective Date”). Any individual accepting this Agreement on behalf of an organization or other entity represents and warrants that he or she has the authority to bind Customer to this Agreement. IF CUSTOMER DOES NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, CUSTOMER IS NOT PERMITTED TO USE THE SIXMAP MATERIALS OR SERVICES.

1. SCOPE

1.1 SixMap Materials. SixMap offers several proprietary products that leverage computational mapping to support enterprise-level automated network management and defense, each as described more fully in one or more Order Forms. As part of offering such products, SixMap collects and delivers data observed by SixMap regarding a Customer’s enterprise, network, and host (collectively, “Observed Data”), along with targeted analysis and insights generated by SixMap (collectively, “SixMap Insights”) to assist Customers in understanding their network vulnerabilities and identifying actionable remediation strategies (each, a “Product”). Customers may access and use certain Products via SixMap’s proprietary online dashboard (the “Portal”) and/or via one or more application programming interfaces, as offered by SixMap (each, an “API”). The Products, including the Observed Data and Six Map Insights, as well as the Portal and the APIs, are referred to collectively herein as “SixMap Materials”.  

1.2 Services. In addition, an Order Form may identify Services that SixMap will provide under this Agreement. As used herein, “Services” means, to the extent described in an applicable Order Form, (a) the support services that SixMap may make available with respect to the SixMap Materials, if requested (“Support Services”), and (b) any other consulting or other professional services (collectively, “Professional Services”) identified in an Order Form entered into by the parties hereto. 

1.3 Usage Parameters. Order Forms hereunder may contain certain usage parameters for particular Products or Services, including, as applicable, the subscription period during which SixMap will provide access to the Products or Services (the “Subscription Period”), and/or limitations on the numbers of scans, network(s) and/or asset(s) for which Customer may use the Products or Services (collectively, “Usage Parameters”). Customer will ensure that its (and, if applicable, its Affiliates’) use of the Products and/or Services will not exceed the Usage Parameters. 

1.4 Affiliates. Unless otherwise noted on an Order Form, the SixMap Materials and Services provided by SixMap hereunder will be for the benefit of both Customer and its Affiliates. As used herein, “Affiliate” means any entity controlling, controlled by, or under common control with, a party to this Agreement.  For the purposes of this Agreement, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any entity, means the possession, directly or indirectly, of the power to direct or exercise a controlling influence over the management or policies of such entity, whether through the ownership of a majority of voting securities, by contract or otherwise.  An entity shall be deemed to be an “Affiliate” only so long as such relationship with the applicable party exists.

1.5 Users. Customer (and, if applicable, its Affiliates) may authorize certain of its or their respective employees or contractors (collectively, “Users”) to access and use the Portal and APIs, as applicable, and/or to use the Observed Data and SixMap Insights provided by SixMap hereunder, provided that all such use by Users will be solely for Customer’s and its Affiliates’ internal business purposes and is otherwise subject to the terms and conditions of this Agreement. Customer will be responsible for all use of the SixMap Materials and/or the Services by its Affiliates and its Users and will be liable for any breach of this Agreement by such Affiliates and/or Users.

2. SIXMAP RESPONSIBILITIES

2.1 Access to Products and Services.  Subject to this Agreement, SixMap will, as specified in an applicable Order Form: (a) make the applicable Products available to Customer and/or its Affiliates, (b) provide the Support Services, if requested, and (c) perform any other Professional Services agreed in an Order Form. 

2.2 License to Observed Data and SixMap Insights.  Subject to compliance with the terms and conditions of this Agreement, SixMap grants to Customer and its Affiliates a fully paid-up, perpetual, transferable (solely in connection with Section 11.2 below), non-sublicenseable (except to Users in accordance with Section 1.5 above) right and license to use and copy the Observed Data and SixMap Insights delivered in connection with the Products, solely for Customer’s and its Affiliates’ internal business purposes; provided, that Customer and its Affiliates replicate all copyright and other proprietary rights notices contained therein. 

2.3 Changes and Updates. From time-to-time during the Term, SixMap may change or update the features, functionality or other aspects of the SixMap Materials or the Services, including to reflect changes in technology, industry practices, patterns of system use, and availability of third-party software or other dependent items. SixMap will use reasonable efforts to provide notice to Customer in advance of any material changes or updates to the SixMap Materials or the Services that may reduce the functionality thereof.  SixMap will make available to Customer any updates or improvements to the Products to which Customer is currently subscribed that SixMap makes generally available to its other customers of the same Products.

2.4 Availability. SixMap will use commercially reasonable efforts to make the Portal and any APIs available 24 hours a day, 7 days a week, except for temporary downtime or disruptions that may occur at SixMap’s sole option and discretion. SixMap will have no liability for any downtime or disruption resulting from any system or technology not in SixMap’s control, including without limitation any problem associated with the Internet, a telecommunications service provider, applications, equipment or facilities hosted off SixMap’s premises, or any third-party interface that the SixMap Materials rely upon. Customer and its Affiliates acknowledge that such temporary downtime or disruptions may occur. SixMap will use commercially reasonable efforts to provide Customer prior notice of any planned downtime or disruptions to the Portal or any APIs.

2.5 Customer Data. SixMap’s Products are designed to operate with minimal data received from Customer or its Affiliates. If Customer elects to use SixMap’s mapping and discovery services to map Customer’s network, then no data (other than User authentication information) is required from Customer in order to access the Products and receive associated Observed Data and SixMap Insights. Customer may also elect (a) to provide SixMap with a map of its own network or otherwise with a list of assets from which SixMap will collect Observed Data and for which SixMap will provide SixMap Insights, and/or (b) to provide SixMap with other Customer data, such as in connection with a request for Support Services (all such data provided by Customer or its Affiliates to SixMap, “Customer Data”). SixMap will process such Customer Data solely in accordance with this Agreement. 

2.6 Safeguards. During the Subscription Period, SixMap will maintain commercially reasonable administrative, physical and technical safeguards designed to protect Customer Data, consistent with any law or regulation applicable to SixMap and its performance of this Agreement and consistent with SixMap’s then-current practices and procedures. SixMap will promptly report to Customer any compromise of security that it becomes aware of with regard to Customer Data.

3. CUSTOMER RESPONSIBILITIES

3.1 Use of the SixMap Materials and the Services. Customer and its Affiliates will use all SixMap Materials and Services solely in accordance with the terms and conditions of this Agreement, and in accordance with all applicable laws. Without limiting the foregoing, Customer and its Affiliates will not, and will not permit its and their Users to: (a) sublicense, lease, rent, loan or otherwise transfer to any third party any rights of Customer or its Affiliates hereunder, (b) make the SixMap Materials or Services available for the benefit of any third party, (c) attempt to circumvent any controls to limit Customer’s or its Affiliates’ use of SixMap Materials or Services to the Usage Parameters, (d) modify, adapt, alter, translate, or create derivative works from the SixMap Materials or Services, (e) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code or algorithms for the SixMap Materials, (f) perform or disclose any benchmark or performance tests of the SixMap Materials, (g) perform or disclose any security testing of the  SixMap Materials or associated infrastructure, (h) remove or modify any program markings or any notice of SixMap’s or its licensors’ proprietary rights, or (i) use any unauthorized automated process or service to access and/or use the Products. Access to and use of the SixMap Materials or Services may be further subject to compliance with reasonable policies maintained by SixMap, each as may be set forth on its website and each as may be updated and amended from time-to-time.  

3.2 Credentials; Accounts.  SixMap will provide Customer with access to the Products via a password-protected Portal. Each User password authorizes a single User to access the Portal and use the applicable Products and/or Services, Users’ passwords may not be shared with any other individual(s), and each User access account and password may be used on only one machine at a time. SixMap may also provide Customer with additional credentials for any applicable APIs (i.e. API keys, etc.) (collectively all User passwords and any other credentials provided by SixMap, “Credentials”). Customer is solely responsible for identifying and authenticating all Users, approving access by such Users to the SixMap Materials and/or Services, controlling against unauthorized access by Users or third parties, maintaining the confidentiality of all Credentials, and for all activities that occur under Customer’s and Users’ Credentials or accounts. Customer and its Affiliates will notify SixMap immediately of any unauthorized use that comes to Customer’s or such Affiliates’ attention and will take all steps necessary to remediate such issue. SixMap may revoke or require Customer or its Affiliates to replace Credentials in SixMap’s discretion.  

3.3 Customer Data; Instructions; Decisions. Customer shall have sole responsibility for determining what Customer Data, if any, to share with SixMap and for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of any such Customer Data. Customer is further solely responsible for any and all instructions Customer provides to SixMap and for any and all decisions made or actions taken by Customer or any third-party based on any use of the SixMap Materials or Services or otherwise based on any information provided by SixMap to Customer. 

3.4 Third-Party Data; Resources. Portions of the SixMap Materials may contain materials from a supplier of data, information or other materials that are part of or otherwise used in connection with such SixMap Materials (“Third-Party Data”). Customer and its Affiliates agree that access to and use of Third-Party Data may be subject to additional terms and conditions, which shall be communicated to Customer if applicable. In addition, Customer and its Affiliates will obtain and maintain, at its sole cost and expense, any devices, hardware, or other resources necessary for Customer to use the SixMap Materials or Services, including as may be specified in the applicable documentation. SixMap shall not be responsible for, and shall have no liability with respect to, any Third-Party Data, or other third-party products, services, or materials, or the contents of any linked external web sites.

3.5 Account Suspension. SixMap may suspend or limit access to the SixMap Materials and/or Services at any time (a) if SixMap determines that (i) the SixMap Material and/or Services are being used by Customer, its Affiliates or Users in an unauthorized or fraudulent manner or otherwise in breach of the Agreement, or Customer has submitted fraudulent or inaccurate information to SixMap, or (ii) Customer’s use of the SixMap Materials or the Services adversely affects the Services or the tools used by SixMap to provide such Services, (b) SixMap is prohibited by an order of a court or other governmental agency from providing the SixMap Materials or the Services, or (c) Customer fails to pay any Fees owed to SixMap hereunder within 10 days of the date on which payment is due.  SixMap will have no liability for any damages, liabilities or losses as a result of any suspension or limitation of Customer’s use of the SixMap Materials or Services in accordance with this Section.

3.6 Pre-Release Materials. Customer and its Affiliates may have the opportunity to receive access to certain “pre-release”, “beta” or other materials or Product features prior to their full commercial release (“Pre-Release Materials”), at SixMap’s option. Customer’s and its Affiliates’ use of any Pre-Release Materials may be conditioned on acceptance of additional terms and, in any event, is subject to the confidentiality obligations in Section 6 below. ALL PRE-RELEASE MATERIALS ARE PROVIDED TO CUSTOMER AND ITS AFFILIATES “AS-IS” WITHOUT ANY WARRANTY AND SIXMAP SHALL HAVE NO LIABILITY FOR THE USE OF SUCH PRE-RELEASE MATERIALS, INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH ANY OF SUCH PRE-RELEASE MATERIALS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. THIS SECTION SUPERSEDES ANY CONFLICTING PROVISION OF THIS AGREEMENT.

 4. FEES 

4.1 Invoicing and Payment.  All fees associated with this Agreement are in US Dollars.  Customer will pay all undisputed fees, as set forth in each Order Form (“Fees”), either to SixMap or to a Reseller, according to the terms and conditions set forth in such Order Form or, if no payment terms are identified in the applicable Order Form, within thirty (30) days of the date of each invoice.

4.2 Resellers. From time-to-time, SixMap may offer sales of Products and Services through one or more of its authorized reseller partners (each, a “Reseller”). If Customer purchases Products or Services through a Reseller, Customer shall pay the Fees set forth in the applicable Order Form to the applicable Reseller in accordance with the terms and conditions set forth in the applicable Order Form. All Fees are due and payable by Customer to its Reseller. Any disputes related to the Fees or invoicing shall be handled directly between Customer and the Reseller. In no event will SixMap be liable for the acts or omissions of a Reseller. No Resellers are authorized to modify the terms of this Agreement. 

4.3 Taxes.  The Fees and all other amounts payable pursuant to this Agreement are exclusive of all national, state, local, municipal or other governmental taxes, fees, assessments, and/or duties, now in force or enacted in the future, including, for example, value-added, sales, use, and withholding taxes (“Taxes”). All such Taxes associated with the transactions under this Agreement shall be paid by Customer; provided, however, that Customer shall not be responsible for taxes assessed against SixMap based on its income, property, or employees.  If Customer is legally obligated to withhold any Taxes from any Fees payable to SixMap under this Agreement, Customer will gross up the amounts paid to SixMap such that SixMap is paid the full Fees due. If SixMap has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, SixMap will invoice Customer for such Taxes and Customer shall pay that amount unless Customer obtains and provides to SixMap any certificate of exemption or similar document required to exempt transactions under this Agreement from such Taxes.

 5. TERM AND TERMINATION 

5.1 Term. The term of this Agreement (“Term”) will commence as of the Effective Date hereof and continue until terminated hereunder. 

5.2 Termination by Customer. Customer may terminate an Order Form and/or this License Agreement (a) for cause at any time if SixMap breaches any material provision of this License Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from Customer, or (b) for convenience upon notice to SixMap if there are no active Order Forms hereunder.  If Customer terminates all Order Forms and this License Agreement due to an uncured breach of SixMap, then Customer’s sole and exclusive remedy is a pro-rata refund of any Fees pre-paid to SixMap in advance of such termination that are applicable to the remainder of the applicable Subscription Period.

5.3 Termination by SixMap. SixMap may terminate an Order Form and/or this Agreement (a) for cause at any time if Customer, an Affiliate, or any User breaches any material provision of this Agreement or the Order Form and does not cure the breach within thirty (30) days after receiving written notice thereof from SixMap, or (b) for convenience upon notice to Customer if there are no active Order Forms hereunder.  If SixMap terminates an Order Form and/or this Agreement due to an uncured breach of Customer, an Affiliate, or any User, SixMap will have no obligation to refund Customer any Fees already paid to SixMap and all invoiced Fees not yet paid by Customer will remain payable in accordance with such invoice(s).

5.4 Effect of Expiration or Termination. Upon expiration or termination of an Order Form and/or this Agreement for any reason, (a) Customer, its Affiliates, and the Users will immediately cease using the applicable SixMap Materials and Services, except as otherwise permitted herein with respect to Observed Data and SixMap Insights, (b) SixMap will not be obligated to retain any stored data and/or settings associated with Customer’s account, and (c) each party will comply with their obligations pursuant to Section 6.5 hereof.  In addition, any terms of this Agreement that, by their nature, are intended by the parties hereto to survive, shall survive the expiration or earlier termination of this Agreement for any reason, including, without limitation, Sections 2.2, 3.1, 3.3, 3.4, 4.3, 5.4, and 6 – 11.

 6. CONFIDENTIALITY

6.1 Confidential Information.  “Confidential Information” means all non-public data and other information disclosed by one party or its Affiliates (the “Disclosing Party”) to another party or its Affiliates (the “Receiving Party”) in connection with this Agreement, that (a) is marked “confidential” or “proprietary,” (b) the Disclosing Party orally or in writing has advised the Receiving Party is confidential, or (c) based on the nature of the material or the circumstances under which it was disclosed, a reasonable person would believe to be confidential at the time of disclosure. “Confidential Information” includes but is not limited to pricing information, computer programs, names and expertise of employees and consultants, know-how, business proposals, business processes, plans and operations, and other technical, business, customer, financial, operating, and product development information of Disclosing Party.  Without limiting the generality of the foregoing, the terms of this Agreement (including pricing), the SixMap Materials, and the Services are Confidential Information of SixMap, and the Customer Data is Confidential Information of Customer.  Confidential Information does not include any information that: (i) is in the Receiving Party’s possession at the time of disclosure without obligation of confidentiality as demonstrated by its written records, (ii) before or after it has been disclosed to the Receiving Party, enters the public domain through no wrongful act of the Receiving Party, (iii) is approved for release by written authorization of the Disclosing Party, (iv) is disclosed to the Receiving Party by a third party not in violation of any obligation of confidentiality, or (v) is independently developed by the Receiving Party without reference to Confidential Information of the Disclosing Party.

6.2 Protection of Confidential Information.  The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose other than performing its obligations or exercising its rights under this Agreement, and will disclose the Confidential Information of the Disclosing Party only to Receiving Party’s or its Affiliates’ employees, agents, contractors, and/or other Users on a “need to know” basis, provided such persons are under an obligation with the Receiving Party to maintain the confidentiality of such Confidential Information, which obligation is consistent with, and no less protective of Confidential Information, than the terms of this Section. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. The Receiving Party shall be responsible for any breach of this Agreement by any party to whom the Receiving Party has disclosed Confidential Information.  Each party shall use all reasonable efforts to assist the other party in identifying and preventing any unauthorized use or disclosure of any Confidential Information.  The Receiving Party shall advise the Disclosing Party immediately in the event the Receiving Party learns or has reason to believe that any person who has had access to the Disclosing Party’s Confidential Information has violated or intends to violate the terms of this Agreement and each party will cooperate with the other party in seeking injunctive or other equitable relief against any such person.  

6.3 Disclosure Required by Law.  Notwithstanding the foregoing, Confidential Information may be disclosed as required by law or by order of a court of competent jurisdiction.  In such event and if reasonably possible under the circumstances, the Receiving Party will provide the Disclosing Party with prompt notice of such obligation and permit the Disclosing Party an opportunity to take legal action to prevent or limit the scope of such disclosure. The Receiving Party will furnish only that portion of the Disclosing Party’s Confidential Information which the Receiving Party is advised by counsel is legally required and the Receiving Party will exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded the Disclosing Party’s Confidential Information.  

6.4 Remedies.  Unauthorized disclosure or use of the Disclosing Party’s Confidential Information may cause irreparable harm to the Disclosing Party for which recovery of money damages would be inadequate; consequently, the Disclosing Party shall be entitled to seek timely injunctive relief to protect its rights under this Section 6, in addition to any and all remedies available at law or in equity. 

6.5 Return of Confidential Information.  Promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information (except as permitted by Section 2.2).  At the Disclosing Party’s request, the Receiving Party will certify in writing that it has fully complied with its obligations under this Section.  Notwithstanding the foregoing, the Receiving Party may retain reasonable copies of the Disclosing Party’s Confidential Information received by it for compliance purposes.  This Section constitutes the entire understanding of the parties and supersedes all prior or contemporaneous agreements, representations or negotiations, whether oral or written, with respect to Confidential Information. 

 7. INTELLECTUAL PROPERTY

7.1 Ownership by SixMap.  SixMap owns and retains all right, title, and interest in and to the SixMap Materials and the Services, the documentation therefore, any businesses processes, software, or technology utilized, created or reduced to practice in the provision of the SixMap Materials or the Services, and all intellectual property rights contained therein or related thereto, including without limitation all copies, translations, adaptations, modifications, derivations, updates, and enhancements thereof (the “SixMap IP”). Customer and its Affiliates acknowledge that (a) no right or interest in the SixMap IP is conveyed other than the limited licenses granted herein, (b) the SixMap IP is protected by copyright and other intellectual property laws, and (c) the SixMap IP embodies valuable confidential and secret information of SixMap or its licensors, the development of which required the expenditure of considerable time and money. Customer and its Affiliates will have no right to possess the Portal or any Products either in object code or source code form. Customer and its Affiliates will not take or encourage any action during or after the Term that will in any way impair the rights of SixMap in and to the SixMap IP, any proprietary software or technology of SixMap, or any intellectual property rights in and to any of the foregoing.

7.2 Customer Data; Service Analyses. Customer and its Affiliates own and retain all right, title, and interest in and to any Customer Data provided to SixMap by Customer. No right, title, or interest in and to the Customer Data is transferred to SixMap.  Customer and its Affiliates consent to SixMap’s use of and access to the Customer Data to (a) provide the SixMap Materials and Services to Customer and its Affiliates, and (b) create and improve SixMap products, processes and/or services. In addition, Customer and its Affiliates agree that SixMap may compile statistical and other information related to the performance, operation and use of the SixMap Materials and Services and use data from the Products, including the Portal and any APIs, or any Services in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (collectively, “Service Analyses”); provided, however, that Service Analyses will not incorporate Customer Data or Customer Confidential Information in a form that could serve to identify Customer, an Affiliate, or any individual. SixMap retains all intellectual property rights in Service Analyses.

7.3 Customer Feedback. Customer and its Affiliates hereby grants SixMap a worldwide, perpetual, irrevocable, fully paid-up, royalty-free, sublicenseable right and license to use any suggestions, enhancement requests, ideas, inventions, information, processes, know-how, techniques or other feedback provided by Customer, its Affiliates, or any User relating to the SixMap Materials or Services (collectively, “Customer Feedback”), including the right to make, have made, sell, have sold, offer for sale, import, have imported and lease products and services which practice and/or embody Customer Feedback.  SixMap shall have no obligation to incorporate any Customer Feedback into any products or services.

 8. INDEMNIFICATION 

8.1 By SixMap. SixMap will indemnify, defend and hold harmless Customer, its Affiliates, and their respective directors, officers, managers, agents, representatives, employees, successors and assigns (collectively, “Customer Indemnified Parties”) from and against any and all costs, damages, claims, suits, actions, liabilities, losses and judgments  (collectively, “Indemnifiable Losses”) arising from or in connection with any third party claim that any part of the Products or Services, as used in accordance with the terms of this Agreement, infringes or misappropriates the rights of a third party in or to any copyright, trademark, U.S. patent, or trade secrets. If the Products or Services become, or in SixMap’s opinion are likely to become, the subject of such an infringement claim, SixMap may, at its option and expense, either (a) procure the right to continue using the Products or Services, (b) replace or modify the Products or Services so that they becomes non-infringing, or, (c) if neither (a) nor (b) above is reasonably practicable, terminate this Agreement, accept return of the Products and Services and give Customer a prorated refund of the Fees paid by Customer for the remainder of the applicable Subscription Period. Notwithstanding the foregoing, SixMap will have no obligation under this Section or otherwise with respect to any infringement claim to the extent such infringement claim is based upon any use of the Products or Services (i) not in accordance with this Agreement, (ii) in combination with other products, equipment, or software not supplied by or authorized in writing by SixMap, if such infringement would not have occurred but for such combination, or (iii) any modification of the Products or Services by any person other than SixMap or its authorized agents or subcontractors. 

8.2 By Customer. Customer will indemnify, defend and hold harmless SixMap and its Affiliates, and their respective directors, officers, managers, agents, representatives, employees, successors and assigns (collectively, “SixMap Indemnified Parties”) from and against any and all Indemnifiable Losses arising from or in connection with any third party claim arising out of or alleged to have arisen out of (a) SixMap’s use of any Customer Data, (b) SixMap’s provision of any Products or Services in accordance with Customer’s instructions, or (c) any decisions made by, or acts or omissions undertaken by Customer, an Affiliate, any third-party, or any User as a result of use of the SixMap Materials or Services, including any Observed Data or any SixMap Insights, or (d) Customer’s, an Affiliate’s, or any User’s fraud, gross negligence or willful misconduct. 

8.3 Procedure. If any claim or action (a “Claim”) is commenced against a party entitled to indemnification under this Section, the party seeking indemnity hereunder (the “Indemnified Party”) will promptly notify the other party (the “Indemnifying Party”) in writing of such (provided that failure to provide such prompt notice will not preclude indemnification except to the extent the Indemnifying Party is unduly prejudiced thereby).  If the Indemnifying Party is obligated under this Section to defend the Indemnified Party against such Claim, then the Indemnified Party will grant the Indemnifying Party sole control of the defense and investigation of the Claim and the Indemnifying Party will assume such control. The Indemnified Party will cooperate in all reasonable respects in the investigation and defense of the Claim at the expense of the Indemnifying Party and may participate in the defense with counsel of its choosing, at its own expense.  The Indemnifying Party will not settle any Claim without the Indemnified Party’s prior written consent, which will not be unreasonably withheld, conditioned or delayed. The Indemnified Party will have the right, at its own expense, to participate in the defense and related settlement negotiations of any indemnifiable Claim with counsel of its own selection. THE FOREGOING STATES CUSTOMER’S AND ITS AFFILIATES’ SOLE AND EXCLUSIVE REMEDIES WITH RESPECT TO CLAIMS BY THIRD PARTIES REQUIRING INDEMNIFICATION UNDER THIS AGREEMENT. 

 9. REPRESENTATIONS AND WARRANTIES; DISCLAIMER

9.1 Mutual Representations.  Each of Customer (and its Affiliates) and SixMap represents and warrants to the other party that (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms, and (b) the execution, delivery and performance of this Agreement does not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.

9.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, SIXMAP MAKES THE SIXMAP MATERIALS AND SERVICES AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND SIXMAP HEREBY SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SIXMAP MATERIALS, THE SERVICES, OR OTHER MATTERS UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF USE OR FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, ACCURACY OR LOSS OF DATA, ANY WARRANTY THAT THE USE OF THE SIXMAP MATERIALS OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND ANY WARRANTIES ARISING BY COURSE OF PERFORMANCE OR TRADE USAGE.  TO THE EXTENT THAT SIXMAP MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE THE MINIMUM PERMITTED PURSUANT TO SUCH LAW.

 10. LIMITATION ON LIABILITY

10.1 IN NO EVENT WILL SIXMAP BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA, OR LOSS OF GOODWILL) ARISING OUT OF THE BREACH OF THIS AGREEMENT OR USE OF OR INABILITY TO USE THE SIXMAP MATERIALS OR THE SERVICES, EVEN IF SIXMAP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.  

10.2 SIXMAP’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE SIXMAP MATERIALS, AND THE SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER (WHETHER TO SIXMAP DIRECTLY OR VIA A RESELLER) FOR THE PRODUCTS AND SERVICES UNDER THE APPLICABLE ORDER FORM GIVING RISE TO SUCH LIABILITY IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.