Subscription Terms and Conditions

Nucleus Cyber, Inc. Subscription Agreement

Terms and Conditions

1. DEFINITIONS

Authorized Users” means Customer’s employees and authorized independent contractors for whom Customer has purchased a license to use Customer’s subscription to the Nucleus Cyber Software, the number of which is as set forth in the Order Form.

Customer Data” means any data or information resulting from Customer’s use of the Nucleus Cyber Software.

Documentation” means Nucleus Cyber’s user manuals, handbooks and installation guides, if any, relating to the Nucleus Cyber Software made available by Nucleus Cyber to Customer.

Error” means a reproducible failure of the Nucleus Cyber Software to materially perform in accordance with the Documentation.

Major Improvements” means material feature changes or improvements that Nucleus Cyber offers its customers for additional fees.

Nucleus Cyber Software” means Nucleus Cyber’s AI-driven security software licensed in accordance with Section 2.1 of this Agreement, as ordered by Customer pursuant to the Order Form.

Usage Data” means usage data and statistics related to the Nucleus Cyber Software.

2. NUCLEUS CYBER SOFTWARE

2.1 License. Subject to the terms and conditions of this Agreement, including the payment by Customer of all fees pursuant the Order Form and Section 5 hereof, Nucleus Cyber hereby grants to Customer a limited, revocable, non-exclusive, non-sublicensable, non-transferable (except as provided in Section 12.12) license during the Subscription Period to use the Nucleus Cyber Software in connection with a subscription as designated on the Order Form, solely for its internal business purposes, and to use and make a reasonable number of copies of the Documentation solely for its internal business purposes in connection with Customer’s use of the Nucleus Cyber Software. As directed by Customer, Nucleus Cyber shall (a) deliver the Nucleus Cyber Software electronically, on tangible media, or by other means on a date agreed to by the Parties, for Customer to install the Nucleus Cyber Software into its infrastructure, or (b) install the Nucleus Cyber Software into Customer’s account in Microsoft Azure.

2.2 Restrictions on Usage. Customer shall not use the Nucleus Cyber Software or Documentation for any purposes beyond the scope of the license granted in this Agreement.  Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Customer shall not, and shall not permit any Authorized User or other party to, (a) reverse engineer, disassemble, or decompile any component of the Nucleus Cyber Software; (b) rent, lease, lend, sell, sublicense or otherwise distribute any Customer rights under this Agreement (except as expressly authorized hereunder) or otherwise use the Nucleus Cyber Software for or to operate a service bureau, application service provider service, or any software-as-a-service offering in any way related to this Agreement; (c) modify, copy or make derivative works based on any part of the Nucleus Cyber Software or Documentation; (d) use the Nucleus Cyber Software to build a competitive offering; (e) remove any proprietary notices from the Nucleus Cyber Software or Documentation; or (f) use the Nucleus Cyber Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

2.3 Open-Source Software. Certain software code incorporated into or distributed with the Nucleus Cyber Software may be licensed by third parties under various “open-source” or “public-source” software licenses (such as the GNU General Public License, the GNU Lesser General Public License, the Apache License, the Berkeley Software Distribution License, and the Sun Public License) (collectively, the “Open Source Software”).  Notwithstanding anything to the contrary in this Agreement, the Open Source Software is not licensed under Section 2.1, and instead is separately licensed pursuant to the terms and conditions of their respective open-source software licenses.  Customer agrees to comply with the terms and conditions of such open-source software license agreements.

2.4 Customer Data. Customer shall own all Customer Data. Customer may choose to log its Customer Data in its sole discretion.  Nucleus Cyber will not collect or store Customer Data, other than Usage Data.  Customer hereby grants to Nucleus Cyber a royalty-free, non-exclusive license, with the right to sublicense to its affiliates, to use the Usage Data related to Customer’s use of the Nucleus Cyber Software, in aggregate and anonymous format only, for any business or commercial purpose, including statistical analysis with respect to usage and traffic patterns, improving the Nucleus Cyber Software, in connection with the further development of the Nucleus Cyber Software, or for marketing purposes. NUCLEUS CYBER HAS NO LIABILITY UNDER THIS AGREEMENT FOR THE PROTECTION OF CUSTOMER DATA EXCEPT TO THE EXTENT RESULTING FROM Nucleus Cyber’S BREACH OF THIS SECTION 2.4.

2.5 Support Services. Subject to Customer’s compliance with this Agreement, Nucleus Cyber will provide Customer with the following support services:

A. Email Support. Nucleus Cyber will provide Authorized Users with email support (support@nucleuscyber.com) for use by Authorized Users for problem resolution assistance. Nucleus Cyber will respond to all support requests within one (1) business day.

B. Error Corrections. Nucleus Cyber will use commercially reasonable efforts to correct material Errors (as defined below) in the Nucleus Cyber Software reported by Customer in writing to Nucleus Cyber at support@nucleuscyber.com. Nucleus Cyber will use reasonable commercial efforts to diagnose and remediate bug fixes or workarounds to correct the Error. Nucleus Cyber may not issue Error Corrections for all Errors.

C. Enhancements.  During the Subscription Period, Nucleus Cyber will provide Customer with updates and enhancements that Nucleus Cyber generally offers to other subscribers of the Nucleus Cyber Software.  Major Improvements to the Nucleus Cyber Software that Nucleus Cyber offers for additional fees will not be automatically provided to Customer.

D. Support Exclusions. Nucleus Cyber will have no responsibility or liability of any kind, whether for breach of warranty or otherwise, arising or resulting from: (a) Customer’s or Authorized Users’ use of any version of the Nucleus Cyber Software other than the then-current unmodified version provided to Customer; (b) any problems which are not Errors; (c) problems caused by failed Internet connections or other hardware, software or equipment which is not owned, controlled or operated by Nucleus Cyber; (d) nonconformities resulting from abuse, negligence, or improper or unauthorized use of all or any part of the Nucleus Cyber Software; (e) problems or Errors caused by Customer’s, or other third parties’ products, services or equipment; or (f) material modification, amendment, revision, or change to the Nucleus Cyber Software by any party other than Nucleus Cyber or Nucleus Cyber-authorized representatives. Any use of or reliance on data or data output contained in the Nucleus Cyber Software is Customer’s sole responsibility.

3. CONFIDENTIALITY

From time to time during the Subscription Period, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic or other form or media, and] whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; (d) independently developed by the receiving Party; or (e) required to be disclosed under applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law. Notwithstanding the foregoing, if the receiving Party is required to disclose the disclosing Party’s Confidential Information pursuant to a duly authorized subpoena, court order or other government authority, the receiving Party will provide prompt written notice to the disclosing Party prior to such disclosure so that the disclosing Party may seek a protective order or other appropriate remedy. The Parties agree that the disclosing Party would be irreparably injured by a breach or threatened breach of this Agreement by the receiving Party and that the disclosing Party would not have an adequate remedy at law.  Therefore, in the event of a breach or threatened breach by the receiving Party of this Section 3, the disclosing Party shall be entitled, in addition to any and all other remedies, to seek injunctive relief and specific performance.  The receiving Party further agrees not to resist such application for relief on the basis that the disclosing Party has an adequate remedy at law and agrees to waive any requirement for the securing or posting of any bond in connection with such remedy.

4. AUTHORIZED USERS

On or as soon as reasonably practicable after the Effective Date, Nucleus Cyber will provide Customer the applicable Nucleus Cyber Software to allow Customer’s Authorized Users to use and access the Nucleus Cyber Software.  Customer agrees to limit the access to and use of the Nucleus Cyber Software to the maximum number of Authorized Users included in its subscription for Nucleus Cyber Software, and to ensure that all Authorized Users safeguard any usernames and passwords (“Credentials”) provided to them to use and access the Nucleus Cyber Software.  Customer agrees that it is responsible for all acts and omissions of Authorized Users and any activities conducted using their Credentials.  Customer will notify Nucleus Cyber promptly if it learns of any unauthorized use of any Credentials or any other known or suspected breach of security related to the Nucleus Cyber Software.  Customer is responsible for all activities that occur under its Authorized Users’ accounts, for Authorized Users’ compliance with the terms of this Agreement, and for all acts or omissions of such Authorized Users.  Customer and its Authorized Users will be fully and completely responsible for all changes to and deletions of Customer Data logged or maintained within the Nucleus Cyber Software, as well as for the security of all Credentials required to use and access the Nucleus Cyber Software. 

5. FEES, PAYMENT AND SUSPENSION OF SERVICES

All fees will be billed in advance, with payment due within thirty (30) days of receipt of invoice, unless otherwise agreed upon in the Order Form.  If Customer fails to make any payment when due, in addition to all other remedies that may be available: (i) Nucleus Cyber may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; and (ii) Nucleus Cyber may suspend Customer’s license to the Nucleus Cyber Software for any period during which any payment owed to Nucleus Cyber has not been made by Customer.

6. OWNERSHIP

Customer acknowledges and agrees that Nucleus Cyber retains all right, title and interest, including all intellectual property rights, in and to the Nucleus Cyber Software, Documentation and all associated materials.  Other than as expressly set forth in this Agreement, no licenses, subscriptions or other rights in the Nucleus Cyber Software are granted to Customer. Customer hereby grants Nucleus Cyber and its affiliates a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Nucleus Cyber Software any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Authorized Users relating to the Nucleus Cyber Software.

7. TERM AND TERMINATION

7.1 Term. This Agreement commences on the Effective Date and continues for the duration of the Subscription Period, unless earlier terminated in accordance with this Section 7.

7.2 Termination for Cause. Except for breach of payment terms as specified in Section 5, for which no notice period shall be necessary, either Party may terminate this Agreement for a material breach by the other Party of any of its terms and conditions upon a minimum of thirty (30) days written notice, provided the breach is not remedied during the notice period.  Termination of this Agreement for cause shall result in automatic termination of Customer’s right to use Nucleus Cyber Software.

7.3 Updated Nucleus Cyber Software Due to Deprecation of Software. In the event of any deprecation of any portion of the Nucleus Cyber Software, Nucleus Cyber will provide Customer with an updated version of the Nucleus Cyber Software with such portion deleted, and will notify Customer at least five (5) days in advance of providing such updated version.  Upon receipt of the updated version of the Nucleus Cyber Software from Nucleus Cyber, Customer shall immediately cease use of the prior version of the Nucleus Cyber Software and use only the updated version of the Nucleus Cyber Software for the remainder of the Subscription Period.

7.4 Effect of Termination. Upon any termination of this Agreement, Customer shall immediately discontinue all use of the Nucleus Cyber Software, and each Party shall (i) immediately discontinue all use of the other Party’s Confidential Information; (ii) delete the other Party’s Confidential Information from its computer storage or any other media, including, without limitation, Customer Data, as applicable, but excluding Usage Data; (iii) return to the other Party or destroy (with written certification), all copies of such other Party’s Confidential Information then in its possession; and (iv) promptly pay all amounts due and remaining payable hereunder.

8. WARRANTY; DISCLAIMER

8.1 Limited Warranties.

A. Each Party represents and warrants to the other Party that: (i) it has all necessary right, power and authority to enter into this Agreement and to perform its obligations hereunder, (ii) the execution and delivery of this Agreement, and the performance of its obligations hereunder, do not conflict with and will not result in a breach of any other agreement to which it is a party or by which its assets are bound, and (iii) this Agreement constitutes the legally valid and binding obligation of such Party, enforceable against it in accordance with its terms, except as such enforcement may be limited by applicable law.

B. Nucleus Cyber represents and warrants that the Nucleus Cyber Software will substantially conform to the Documentation for the ninety (90) days following the date that the Nucleus Cyber Software are made available to Customer for Customer’s use. This warranty does not apply if the Nucleus Cyber Software (i) has been altered, except by Nucleus Cyber or its authorized representative; (ii) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Nucleus Cyber; or (iii) has been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, or accident. In the event of a breach of this section, as Customer’s sole and exclusive remedy, Nucleus Cyber shall repair, replace or cause the refund of the fees paid for the non-conforming Nucleus Cyber Software.  This remedy is conditioned upon Customer reporting the non-conformance in writing within the warranty period.

C. Nucleus Cyber represents and warrants that prior to delivery of any Nucleus Cyber Software, Nucleus Cyber will use generally available commercial virus scanning technology to detect any known viruses contained within the Nucleus Cyber Software as delivered by Nucleus Cyber to Customer. Nucleus Cyber further represents, warrants and covenants that it will use commercially reasonable efforts to not introduce any virus into its products or services.  In the event a breach of this section, as Customer’s sole and exclusive remedy, Nucleus Cyber will use commercially reasonable efforts, at no charge to Customer, to assist Customer in eradicating and mitigating the effects of the virus; provided, however, Customer acknowledges and agrees that Nucleus Cyber makes no warranties with respect to its ability to eradicate or mitigate such effects of the virus.

8.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) THE Nucleus Cyber SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND (B) Nucleus Cyber EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT OR FROM A COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE IN TRADE.  Nucleus Cyber DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS, THAT THE Nucleus Cyber SERVICE AND DOCUMENTATION WILL BE ACCURATE, WITHOUT INTERRUPTION OR ERROR FREE.

 

9. INDEMNITY

9.1 By Nucleus Cyber. If any action is instituted by a third party against Customer based upon a claim that the Nucleus Cyber Software, as delivered without modification and used as specified in all applicable documentation, infringes any third party’s U.S. intellectual property rights, Nucleus Cyber shall defend such action at its own expense on Customer’s behalf and will pay all damages attributable to such claim which are finally awarded against Customer or paid in settlement, provided that Nucleus Cyber agrees in writing to such settlement.

9.2 Exceptions. Section 9.1 will not apply if the alleged claim arises, in whole or in part, from (a) a use or modification of the Nucleus Cyber Software by Customer in a manner inconsistent with any applicable documentation or outside the scope of any right granted or in breach of this Agreement, (b) a combination, operation or use of the Nucleus Cyber Software with other software, hardware or technology not specifically authorized by Nucleus Cyber, or (c) the Customer Data (the “Customer Indemnity Responsibilities”).

9.3 Infringement or Likely Infringement. If the Nucleus Cyber Software is enjoined or, in Nucleus Cyber’s determination is likely to be enjoined or otherwise infringing, Nucleus Cyber may, at its option and expense (a) procure for Customer the right to continue using the Nucleus Cyber Software, (b) replace or modify the Nucleus Cyber Software so that it they are no longer infringing but continue to provide comparable functionality, or (c) terminate Customer’s access to the Nucleus Cyber Software and refund any amounts previously paid for the Nucleus Cyber Software attributable to the remainder of the then-current term.  This section sets forth the entire obligation of Nucleus Cyber and Customer’s exclusive remedy against Nucleus Cyber for any claim that the Nucleus Cyber Software infringes a third party’s intellectual property right.

9.4 By Customer. If any action is instituted by a third party against Nucleus Cyber or its affiliates (collectively the “Nucleus Cyber Indemnitees”) relating to (i) Customer’s negligent or willful misconduct, (ii) Customer’s or Authorized Users’ use of the Nucleus Cyber Software or Documentation in a manner not authorized or contemplated by this Agreement, (iii) use of any version of the Nucleus Cyber Software other than the most current version of the Nucleus Cyber Software and Documentation delivered by Nucleus Cyber to Customer or (iv) Customer Indemnity Responsibilities, Customer will defend such action at Customer’s own expense on the Nucleus Cyber Indemnitees’ behalf and will pay all damages attributable to such claim which are finally awarded against the Nucleus Cyber Indemnitees or paid in settlement of such claim. This subsection will not apply to the extent that Nucleus Cyber has any indemnification obligation with respect to such claim pursuant to Section 9.1.

9.5 Procedure. Any Party that is seeking to be indemnified under the provision of this Section 9 (an “Indemnified Party”) must (a) promptly notify the other Party (the “Indemnifying Party”) of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim”) and (b) give the Indemnifying Party the sole control over the defense of such Claim. 

10. LIMITATION OF LIABILITY

10.1 IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR OTHER INDIRECT DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.2 THE CUMULATIVE LIABILITY OF EACH PARTY TO THE OTHER PARTY FOR ALL CLAIMS, INCLUDING NEGLIGENCE, ARISING FROM OR RELATING TO THIS AGREEMENT, AND INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED, THE TOTAL AMOUNT OF ALL FEES PAID BY CUSTOMER TO NUCLEUS CYBER UNDER THIS AGREEMENT DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS OF LIABILITY ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

10.3 Exclusions from Limitation on Liability. The limitations on liability in Sections 10.1 and 10.2 will not apply to any payment obligation under Section 5, misappropriation of the other Party’s intellectual property, a breach of a Party’s confidentiality obligations, or liability arising from a Party’s indemnification obligations.

10.4 Essential Basis of the Agreement. The limitations of liability set forth in sections 10.1, 10.2 and 10.3 are intended to apply without regard to whether other provisions of this Agreement have been breached or proven ineffective. The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the Parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including, without limitation, the economic terms, would be substantially different.

11. AUDIT RIGHT

During the Term and for a period of two (2) years thereafter, Nucleus Cyber may audit Customer’s facilities, records, and use of the Nucleus Cyber Software to determine Customer’s compliance with the terms and conditions of this Agreement.  Such audits will occur during regular business hours and must be conducted in a manner designed to limit disruption to Customer’s business.  In the event an audit reveals that Customer has underpaid any fees or charges owing to Nucleus Cyber (such as by exceeding the maximum number of Authorized Users), or that Customer is using the Nucleus Cyber Software in an unauthorized manner, Customer must immediately pay to Nucleus Cyber any amounts due, together with interest thereon at the lesser of the maximum amount chargeable by law or one and one-half percent (1-1/2%) per month commencing with the date payment was due, and Customer must reimburse Nucleus Cyber for all reasonable costs of conducting the audit.

12. GENERAL PROVISIONS

12. 1 Publicity. Except with Customer’s prior written consent, Nucleus Cyber may not use any name, trademark, logo, or trade name of Customer (or any contraction, abbreviation, adaptation, or other variant thereof), or the name or likeness of any of Customer employees or staff, in any news/press/publicity release, advertising, publication, promotional material, or other commercial communication.  Notwithstanding the foregoing, Nucleus Cyber may identify Customer as a customer of Nucleus Cyber, provided that Nucleus Cyber makes no statement that could reasonably be construed as an endorsement of Nucleus Cyber or the Nucleus Cyber Software by Customer. 

12. 2 Right to Subcontract. Customer agrees that Nucleus Cyber may subcontract any aspect of its obligations under this Agreement to qualified third parties; provided that any such subcontracting arrangement will not relieve Nucleus Cyber of any of its obligations hereunder.

12.3 Applicable Law and Venue. This Agreement and the rights and obligations of the Parties hereunder shall be construed in accordance with, and governed by, the laws of the state of Delaware, without giving effect to such jurisdiction’s rules regarding conflicts of laws.  The Parties expressly agree that the exclusive jurisdiction for any claim or dispute arising from this Agreement resides in the federal and state courts located in Delaware, and each Party consent to the personal jurisdiction thereof.

12.4 Independent Contractors. Customer and Nucleus Cyber acknowledge and agree that the relationship arising from this Agreement does not constitute or create any joint venture, partnership, employment relationship or franchise between them, and the Parties are acting as independent contractors in making and performing this Agreement.

12.5 Counterparts.  This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed to be an original, and electronically stored copies of such counterpart(s) will be deemed an original, so long as any such counterpart is in an unalterable format, such as a PDF file; all of which when taken together will constitute one Agreement.

12.6 Headings. The headings in this Agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this Agreement.

12.7 Entire Agreement. This Agreement sets forth the entire understanding between the Parties related its subject matter and supersedes all prior oral and written understandings between the Parties related thereto.  Neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for in this Agreement.  This Agreement will govern the relationship of the Parties.  Purchase orders provided by Customer including any additional or conflicting terms and conditions will be for administrative purposes only and will have no force or effect.  Only signed Order Forms will have binding effect on the Parties.  In the event of a conflict between these Terms and Conditions and the Order Form, the terms of the Order Form shall govern.

12.8 Modifications.  This Agreement contains the entire understanding and agreement of the Parties, and supersedes any and all previous and contemporaneous understandings. Only a writing signed by both Parties may modify this Agreement. 

12.9 Severability. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions will remain in full force and effect.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.  All waivers must be in writing.

12.10 Export Compliance. The Parties represent that, except as allowed under applicable U.S. Government export laws and regulations, no technical data, hardware, software, technology, or other information furnished under this Agreement by either Party shall be disclosed to any foreign person, firm, or country, including foreign persons employed by or associated with Customer.  Furthermore, both Parties shall not allow any re-export of any technical data, hardware, software, technology, or other information furnished, without first complying with all applicable U.S. Government export laws and regulations.  Prior to exporting any technical data, hardware, software, technology, or other information furnished hereunder, and receive the other Party advance written approval.  Each Party shall indemnify, defend, and hold the other Party harmless from and against any and all claims, demands, actions, suits, proceedings, losses, damages, penalties, obligations, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising directly or indirectly from breaches of this provision by the other Party.

12.11 Survival. The following Sections shall survive any termination of this Agreement:  2.2, 2.4, 3, 6, 7.4, 8.2, and 9-12.

12.12 Assignment. Neither Party may assign or transfer this Agreement without the other Party’s prior written approval, except that either Party may, upon written notice, assign this Agreement to an entity that acquires or is merged with the Party or that purchases all or substantially all of the assets of the Party, and with respect to Customer’s successor, such successor entity agrees to be bound by the terms of this Agreement.

12.13 Notice. All notices required by or relating to this Agreement will be in writing and will be sent by means of certified mail, postage prepaid, to Customer at the addresses set forth on the Order Form; if to Nucleus Cyber at: CEO, Nucleus Cyber, Inc., 177 Huntington Avenue, Ste 1703 #73999, Boston, MA 02115 USA, or addressed to such other address as the receiving Party may have given by written notice in accordance with this provision.

[End of Terms and Conditions]