Software General Terms & Conditions

These General Terms and Conditions (“Terms”) set forth the terms under which MetroStar Systems, LLC, a Delaware Limited Liability Corporation authorized to conduct business in the State of Virginia with its principal place of business as 1856 Old Reston Avenue #100, Reston, VA 20190 (“MetroStar”) will provide Customer (as defined below) subscriptions to access and use of certain software and products identified in an Order Form (as defined below) (the “Licensed Software”).

Each Order Form, together with these Terms, forms a single agreement (the “Agreement”) that governs Customer’s access and use of the Licensed Software and any related services provided by or on behalf of MetroStar. MetroStar and Customer are each individually referred to herein as a “Party” and collectively as the “Parties”.

DEFINITIONS
In addition to terms otherwise defined herein, the following capitalized terms have the meanings set forth below:
1. “Affiliate” means with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the entity.
2. “Authorized User” means an employee of Customer who is authorized by Customer to access and use the Licensed Software on Customer’s behalf in accordance with the Agreement.
3. “Confidential Information” means all confidential and proprietary information of a Party, whether oral or in writing, that is designated at the time of disclosure as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure.
4. “Customer” means the named customer listed on the Order Form.
5. “Customer Data” means all data that is entered into, uploaded to or otherwise transmitted to the Licensed Software by or on behalf of Customer (including its Authorized Users).
6. “Documentation” means user guides, specifications, and other documentation relating to the Licensed Software that are provided or otherwise made available by MetroStar to Customer.
7. “Initial Subscription Term” means the initial subscription term for the Licensed Software that is listed in the Order Form.
8. “Intellectual Property” means data, notes, reports, specifications, designs, drawings, computer software including source code and object code, methods, processes, techniques, know-how, ideas, inventions, and discoveries.
9. “Intellectual Property Rights” means patents, patent applications, trade secrets, copyrights, trademarks, maskworks, database rights, industrial property rights, and other similar rights.
10. “Order Form” means an order form, statement of work, or other document pursuant to which Customer orders subscriptions to Licensed Software or Professional Services.
11. “Renewal Subscription Term” means a renewal to a subscription to the Licensed Software, which occurs pursuant to Section 5 of these Terms.
12. “Subscription Term” means the Initial Subscription Term and all Renewal Subscription Terms.
ACCESS AND USE OF THE LICENSED SOFTWARE
1. Subscription Right of Access and Use
  Subject to these Terms (as well as any terms and conditions in the Order Form), MetroStar grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Licensed Software during the Subscription Term solely for Customer’s internal business. Customer agrees that its purchase of a subscription to the Licensed Software is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written statements made with respect to future functionality or features. Customer understands that, unless otherwise set forth in an Order Form, it shall not have the right to download or to otherwise have access to copies of the Licensed Software, whether in object code or source code form.
2. Access to Licensed Software
  During the Subscription Term, MetroStar shall use commercially reasonable efforts to make the Licensed Software available for use by Customer pursuant to the service levels set forth at Exhibit 1.
3. Documentation
  Customer shall only provide or make the Documentation available to its Authorized Users. Customer may make a reasonable number of copies of the Documentation solely for its internal use.
4. Support Services
  During the Subscription Term, MetroStar will provide to Customer support services in accordance with MetroStar’s then-current support policy.
5. Authorized Users
  Only Authorized Users may access and use the Licensed Software. Customer will ensure that its Authorized Users have received a copy of the Agreement and comply with the terms of the Agreement. Customer will at all times be responsible for the acts and omissions of its Authorized Users (including all breaches of the Agreement by its Authorized Users). Without limiting the foregoing, Customer remains solely liable to MetroStar for all actions taken under an Authorized User’s account. Customer will promptly notify MetroStar of any suspected or alleged unauthorized access to or use of the Licensed Software. In the event the Order Form lists a specific number of permitted Authorized Users, Customer may not exceed such number without otherwise ordering more user subscriptions from MetroStar. MetroStar maintains reasonable and appropriate technical, organizational, and administrative safeguards designed to protect the Services and Customer Data. MetroStar may use security measures (including physical security measures, biometric access control, user identification, password control, and a firewall) to prevent the unauthorized access and use of the Licensed Software. Customer is responsible for maintaining the confidentiality of all Authorized User logins, passwords, and other credentials.
6. Customer Data
  Customer has exclusive control and responsibility for determining what Customer Data is submitted to the Licensed Software. Customer is solely responsible for obtaining all necessary consents and permissions for such submission of Customer Data to MetroStar and for MetroStar’s processing of Customer Data pursuant to the Agreement. Customer represents and warrants that it has obtained all such consents and permissions. Customer is solely responsible for the accuracy, quality, and legality of all Customer Data.
7. Third Party Offerings
  As part of using the Licensed Software, Customer may have access to products, services or websites provided by third parties (“Third Party Offerings”). Third Party Offerings are made available solely as a convenience to Customer, and Customer’s access and use of the same may be subject to additional or different terms and conditions provided by third parties. MetroStar DOES NOT PROVIDE, CONTROL OR ASSUME ANY RESPONSIBILITY FOR THE PROVISION OF THIRD PARTY OFFERINGS. METROSTAR IS NOT RESPONSIBLE FOR THE PRIVACY, SECURITY, AVAILABILITY, OR PRACTICES OF THIRD PARTY OFFERINGS, WHICH ARE GOVERNED BY THEIR OWN TERMS AND POLICIES. MetroStar MAKES NO, AND DISCLAIMS ALL, REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE THIRD PARTY OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MetroStar WILL NOT BE LIABLE TO CUSTOMER FOR DAMAGES OF ANY KIND ARISING FROM OR RELATING TO THIRD PARTY OFFERINGS, INCLUDING ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL, AND CONSEQUENTIAL DAMAGES.
8. Updates
  From time to time, MetroStar may (in its sole discretion) update, upgrade, modify, provide a new version of, rebrand, add/remove features of or otherwise change the Licensed Software, provided that in each instance, there will be no material downgrade in the functionality of the Licensed Software and the Licensed Software will continue to perform materially in accordance with the applicable Documentation.
9. Privacy Policy
  Use of the Licensed Software by Customer (including its Authorized Users) is subject to the MetroStar’s privacy policy, which is located at https://www.metrostar.com/privacy-policy/, and incorporated into these Terms by reference. The privacy policy describes how we collect, use, disclose, and otherwise process information relating to you and your use of the Services. To the extent the provision of Services involves the processing of personal data of individuals, the Parties shall comply with applicable data protection laws, as set forth in Schedule A.
10. Professional Services
  To the extent the Order Form specifically lists implementation, configuration or other professional services that MetroStar will provide to Customer related to the Licensed Software (collectively, “Professional Services”), then MetroStar warrants that it will provide all Professional Services in a good, professional, and workmanlike manner.
11. Communications
  MetroStar may send you service-related and other non-marketing communications, including technical notices, security alerts, administrative messages, and updates relating to the Services.
12. Suspension
  Without limiting its other rights under the Agreement, MetroStar may suspend Customer’s access to the Licensed Software in the event that Customer’s (including its Authorized Users’) use of the Licensed Software violates these Terms, threatens the security, integrity or availability of the Licensed Software or otherwise poses a risk to MetroStar’s business. Unless immediate suspension is reasonably necessary to protect MetroStar’s business interests, MetroStar will use commercially reasonable efforts to provide Customer with advance notice of any suspension and an opportunity to remedy the violation or threat prior to suspending Customer’s access to the Licensed Software.
CUSTOMER OBLIGATIONS AND RESTRICTIONS
1. Customer Obligations and Restrictions
  Customer’s access and use of the Licensed Software is subject to the following obligations and restrictions:
  1. Customer shall use the Licensed Software solely in accordance with the Documentation and only for purposes as expressly permitted in the Agreement.
  2. Customer shall not, directly or indirectly: (i) attempt to reproduce, distribute, alter, modify, create derivative works from, publicly display, or publicly perform the Licensed Software or Documentation; (ii) copy any features, functions or graphics of the Licensed Software; (iii) attempt to gain direct access to, or to decompile, disassemble, or reverse-engineer the Licensed Software; (iv) sublicense, rent, sell, lease, transfer, assign, distribute or otherwise grant or enable access to the Licensed Software in a manner that allows anyone other than Authorized Users to access or use the Licensed Software for the purposes set forth herein; (v) use the Licensed Software to send or store material that is defamatory, indecent, obscene, abusive, offensive, profane, discriminatory, misleading, unlawful, threatening, a violation of intellectual property, privacy or other rights, or otherwise objectionable.
  3. Customer shall not access or use the Licensed Software (i) in violation of applicable laws; (ii) to send or store material containing software viruses, worms, trojan horses or other harmful computer code, files, scripts, or agents; (iii) in a manner that interferes with or disrupts the integrity or performance of the Licensed Software (or the data contained therein); (iv) to gain unauthorized access to the Licensed Software (including unauthorized features and functionality) or its related systems or networks, or (v) for the purpose of developing its own software programs.
  4. Customer will promptly notify MetroStar of any known or suspected unauthorized use of the Licensed Software or any Authorized User access credentials.
  5. Customer shall ensure Authorized Users will comply with the Authorized User Policy
FEES
1. Fees
  Customer will pay all fees set forth on the Order Form. Except as otherwise specified herein, payment obligations are non-cancelable, and fees paid are non-refundable. Stated fees are based on the Licensed Software subscriptions and Professional Services purchased as set forth on an Order Form and not actual usage.
2. Invoicing; Payment
  Unless otherwise specified on the Order Form, all fees are invoiced and payable in U.S. dollars and are invoiced annually at the start of the Initial Subscription Term and in advance of each Renewal Subscription Term. All invoices issued by MetroStar will be due and payable within thirty (30) days of the start date of the applicable subscription term. For each Renewal Subscription Term, unless MetroStar provides notice of a different fee increase at least ninety (90) days before expiration of the then-current subscription term, MetroStar may increase the then-current fees for the subscription to the Licensed Software by the greater of eight percent (8%) or the percentage increase in the monthly Consumer Price Index, for All Items, U.S. City Average, All Urban Consumers (base year 1982-84 = 100), published by the United States Department of Labor, Bureau of Labor Statistics over the then-current subscription term (“CPI”). Fees set forth on the Order Form exclude all applicable sales, use, and other taxes. Any fees that are not paid when due are subject to interest at 1.5% per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. In the event of any dispute of an invoice, Customer must notify MetroStar in writing within thirty (30) days of receipt of the invoice of the disputed amount and the reason for the dispute, and the Parties agree to first attempt to negotiate promptly and in good faith a reasonable settlement of the disputed amount. Without limiting MetroStar’s other rights under these Terms, MetroStar reserves the right to suspend Customer’s right to access and use the Licensed Software in the event that Customer is delinquent on any undisputed (in good faith) late payment obligations for more than five (5) days following written notice of such late payment.
3. Taxes
  Customer will be responsible for, and will promptly pay, all taxes and duties of any kind (including sales, use, and withholding taxes), if any, associated with the Agreement or Customer’s access or use of the Licensed Software, except for taxes based on MetroStar’s income, employees, or property. If MetroStar is required to collect or pay any tax or duty for which Customer is responsible, MetroStar will invoice Customer and Customer will pay such taxes and duties directly to MetroStar unless Customer provides MetroStar with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer will defend MetroStar Indemnitees (as defined in Section 8.3) from and against all Claims (as defined in Section 8.1) and indemnify and hold harmless MetroStar Indemnitees from Losses (as defined in Section 8.1) resulting from Claims, but only to the extent the Claim arises from or relates to Customer’s failure to pay any tax or duty for which Customer is responsible.
TERM AND TERMINATION
1. Term
  The term of the Agreement will commence on the start date of the Initial Subscription Term and (unless otherwise terminated as set forth herein) will remain in effect for the Initial Subscription Term and all Renewal Subscription Terms.
2. Renewal
  At the conclusion of the Initial Subscription Term, the Order Form will automatically renew for successive Renewal Subscription Terms equal to one (1) year (or such different length as is set forth on the Order Form), unless one Party provides the other Party with written notice of non-renewal at least sixty (60) days prior to the end of the Initial Subscription Term or then-current Renewal Subscription Term. Fees for each Renewal Subscription Term shall be as set forth in Section 4.2 or as otherwise agreed in writing by the Parties. This provision shall be removed and automatically marked reserved for Government customers.
3. Termination for Cause
  Either Party may terminate the Agreement (including Customer’s right to access the Licensed Software pursuant to its subscription) immediately upon written notice to the other Party in the event: (a) the other Party materially breaches the Agreement and fails to cure such breach within thirty (30) days of receiving written notice thereof or (b) the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
4. Effects of Termination
  Upon expiration or termination of the Agreement for any reason all rights and licenses granted hereunder from MetroStar to Customer shall forthwith terminate, and Customer shall (a) cease all use of the Licensed Software and (b) permanently delete all copies of the Documentation. Upon expiration or termination of the Agreement, Customer will lose all access to Customer Data and MetroStar may permanently delete all copies such in its possession or control in accordance with its regular business practices. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to MetroStar prior to the effective date of termination. Upon any termination for cause by Customer pursuant to Section 5.3, MetroStar shall refund Customer any unused, prepaid fees covering the remainder of the subscription term after the date of termination. If the Agreement is terminated by MetroStar for cause, Customer shall remain responsible for any payments set forth on the outstanding Order Form, regardless of whether such amounts have been invoiced or are payable at the time of such termination.
5. Survival
  Any provision of the Agreement, which by its nature, should survive expiration or termination of the Agreement shall survive termination, including Sections 7, 8, 9, 10, and 11.
CONFIDENTIALITY
1. Protection of Confidential Information
  In connection with the Agreement, one Party (a “Disclosing Party”) may disclose or otherwise make available to the other Party (the “Receiving Party”) Confidential Information. For clarity, Confidential Information of MetroStar includes the Documentation, the terms of the Agreement, and all pricing information related to the Licensed Software and Professional Services. The Receiving Party agrees to use reasonable care to protect the confidentiality of the Disclosing Party’s Confidential Information. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement, unless it has received the Disclosing Party’s prior written permission. The Receiving Party may disclose the Disclosing Party’s Confidential Information to its Affiliates, service providers, and their respective employees, agents, and contractors on a need-to-know basis, provided that such recipients may only use such Confidential Information in connection with the Agreement. The Receiving Party agrees to use reasonable care to protect the confidentiality of the Disclosing Party’s Confidential Information.
2. Limitations
  A Receiving Party will not have any obligations under this Section 6 with respect to any information or materials that: (a) were in the public domain at the time it was disclosed to the Receiving Party; (b) entered the public domain subsequent to the time it was disclosed to the Receiving Party, through no fault of the Receiving Party; (c) was in the Receiving Party’s possession free of any obligation of confidence at the time it was disclosed to the Receiving Party; (d) were rightfully communicated to the Receiving Party free of any obligation of confidence subsequent to the time it was disclosed to the Receiving Party; or (e) were developed by or on behalf of the Receiving Party without access or use to any Confidential Information as evidenced by written records. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
3. Retention of Confidential Information
  Upon a Party’s written request, the other Party will destroy all copies of Confidential Information of the other Party. Notwithstanding the foregoing (a) a Party may retain one copy of the other Party’s Confidential Information for recordkeeping and legal compliance purposes and (b) a Party is not required to destroy those copies of Confidential Information residing on its backup or disaster recovery systems; provided, that any Confidential Information retained under this sentence shall remain subject to the applicable confidentiality provisions of the Agreement for as long as so retained.
INTELLECTUAL PROPERTY
1. Software and Documentation
  As between MetroStar and Customer (including its Authorized Users), MetroStar owns and will continue to own all right, title and interest (including all worldwide Intellectual Property Rights) in and to the Licensed Software, the Documentation, the Professional Services and any other services (including support services) provided by MetroStar (collectively, “Services”), and any other products, documents, materials, data or information provided by or on behalf MetroStar to Customer, and any Intellectual Property included in or derived from any of the foregoing (collectively, “MetroStar IP”). Other than the limited right to use the Licensed Software and Documentation pursuant to Section 2, Customer and Authorized Users obtain no right, title or interest in the Licensed Software, Documentation, or any other MetroStar IP.
2. Customer Data
  As between MetroStar and Customer, Customer owns all right, title and interest in and to the Customer Data. Customer hereby grants MetroStar, its Affiliates, and their applicable contractors or service providers a non-exclusive, royalty-free, fully paid-up, worldwide license to host, store, copy, process, transmit, modify, and display Customer Data as reasonably necessary for MetroStar to provide the Licensed Software and all Services in accordance with the Agreement.
3. Use of Aggregate Information
  MetroStar may collect and aggregate data derived from Customer Data and Customers’ operation of the Licensed Software (“Aggregated Data”), and MetroStar may use such Aggregated Data for any purpose relating to the conduct of MetroStar’s business, including monitoring the performance of the Licensed Software, as well as improving the Licensed Software and other software and service offerings of MetroStar, and training any artificial intelligence models licensed, owned, or otherwise developed by MetroStar. MetroStar’s use of Aggregated Data will not reveal any personally identifiable information of Customer’s personnel. As between MetroStar and Customer (including Authorized Users), MetroStar owns and will continue to own all right, title and interest, including all related Intellectual Property Rights, in and to the Aggregated Data. MetroStar’s rights under this Section 7.3 are irrevocable and shall survive any termination of the Agreement.
4. Open Source
  The Licensed Software may include third-party open source software components and libraries (“Open Source Components”). These Open Source Components are licensed under applicable free and open-source software licenses, including, without limitation, the Apache License 2.0 and GNU licenses. This notice is provided to satisfy applicable attribution and copyright notice requirements associated with such licenses.
  1. The Open Source Components are provided “AS IS,” without warranties or conditions of any kind, express or implied, including, without limitation, any warranties of merchantability, fitness for a particular purpose, title, or non-infringement. In no event shall the licensors or copyright holders of the Open Source Components be liable for any claim, damages, or other liability arising from, out of, or in connection with the Open Source Components or their use.
  2. Copies of the applicable open source licenses may be obtained at:
    Apache License 2.0: http://www.apache.org/licenses/LICENSE-2.0
    GNU Licenses: https://www.gnu.org/licenses/
5. Feedback
  Customer may, in its sole discretion, provide to MetroStar suggestions for modifications, improvements, enhancements or recommendations relating to the Licensed Software (all of the foregoing, “Feedback”). Customer shall have no obligation to provide the Feedback, and MetroStar shall have no obligation to use the Feedback. All Feedback shall be exclusively owned by MetroStar, and Customer hereby assigns to MetroStar all of its right, title, and interest in and to the Feedback (including any intellectual property rights therein). For clarity, MetroStar may freely use all Feedback (without payment of any amounts to Customer to upgrade, update, and improve the Licensed Software).
INDEMNIFICATION
1. Indemnification by MetroStar
  Subject to the terms and conditions of the Agreement, MetroStar will defend Customer, its Affiliates, and their respective officers, directors, employees, agents, and contractors (collectively, “Customer Indemnitees”) from any and all third party claims, actions, suits, proceedings, and demands (each, a “Claim”) and indemnify and hold harmless Customer Indemnitees from and against all damages, settlements, judgment, penalties, fines, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from Claims, but only to the extent the Claim arises from or relates to an allegation that the Licensed Software infringes any patent, copyright, or trademark or misappropriates any trade secret of any third party under United States law (each, an “Infringement Claim”). This Section 8.1 states MetroStar entire liability and the Customer’s exclusive remedy for any claims of infringement.
2. MetroStar’s Rights
  In the event of an Infringement Claim, MetroStar may, at its option: (a) obtain the right to permit Customer to continue using the Licensed Software; (b) modify or replace the relevant portion(s) of the Licensed Software with a non-infringing alternative having substantially equivalent performance, or (c) terminate the Agreement as to the infringing Licensed Software and provide a refund of any unused, prepaid fees for the infringing Licensed Software covering the remainder of the subscription term after the date of termination. Notwithstanding the foregoing, MetroStar will have no liability for any Infringement Claim of any kind to the extent it results from: (x) modifications to the Licensed Software made by a party other than MetroStar; (y) the combination of the Licensed Software with other products, processes, or technologies (where the infringement would have been avoided but for such combination), or (z) use of the Licensed Software other than as permitted by the Agreement (where the infringement would have been avoided but for such improper usage) (collectively, “Usage Exceptions”).
3. Indemnification by Customer
  Subject to the terms and conditions of the Agreement, Customer will defend MetroStar, its Affiliates, and their respective officers, directors, employees, agents, and contractors (collectively, “MetroStar Indemnitees”) from any and all Claims and indemnify and hold harmless MetroStar Indemnitees from and against all Losses resulting from Claims, but only to the extent the Claim arises from or relates to (a) Customer Data, including any allegations that the Customer Data infringes any intellectual property or privacy rights of any third party; (b) Customer’s unauthorized use of the Licensed Software; (c) Usage Exceptions; or (d) Customer’s violations of law. This provision shall be removed and automatically marked reserved for Government customers.
4. Procedure
  A Party seeking indemnification under this Section 8 shall: (a) promptly notify the indemnifying Party in writing of the Claim (provided that failure to give prompt notice will only relieve the indemnifying of its indemnification obligations to the extent prejudiced thereby); (b) give the indemnifying Party sole control of the settlement and defense of the Claim using counsel reasonably acceptable to the indemnified Party; and (c) cooperate with the indemnifying Party (at the indemnifying Party’s expense) in the defense of the Claim. The indemnifying Party may not settle any Claim without the indemnified Party’s written consent unless the settlement: (x) includes a release of all covered Claims pending against the indemnitees; (y) contains no admission of liability or wrongdoing by the indemnitees; and (z) imposes no obligations upon the indemnitees other than an obligation to stop using any infringing items or the payment of sums subject to the indemnifying Party’s obligations under this Section 8. For clarity, an indemnified Party may join in the defense and settlement of a Claim employing counsel of its choosing at its own expense.
DISCLAIMER OF WARRANTIES
1. General
  Each Party represents and warrants that: (a) it has the legal power and authority to enter into the Agreement; (b) the Agreement is entered into by an employee or agent of such Party with all necessary authority to bind such Party to the terms and conditions of the Agreement; (c) its execution of the Agreement does not violate any other agreement by which it is bound; and (d) it is a legal entity in good standing in the jurisdiction of its formation.
2. Performance Warranty
  MetroStar warrants that the Licensed Software will perform materially in accordance with the applicable Documentation. Customer’s sole and exclusive remedy and MetroStar’s sole obligation for a breach of the warranty in this Section 9.2 is for MetroStar, at its own expense, to use commercially reasonable efforts to correct the non-performing Licensed Software. Notwithstanding the foregoing, MetroStar is not obligated to correct any non-conformities caused by: (a) modifications to the Licensed Software made by a party other than MetroStar; (b) use of the Licensed Software other than as permitted in the Agreement; (c) non- MetroStar software; or (d) combining the Licensed Software with other products, processes, or technologies.
3. Disclaimer
  EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 9, THE LICENSED SOFTWARE, DOCUMENTATION, AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS. MetroStar MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, WHETHER, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE AGREEMENT, THE LICENSED SOFTWARE, THE DOCUMENTATION OR ANY SERVICES. MetroStar EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. MetroStar DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE LICENSED SOFTWARE OR ANY SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE OPERATION AND RESULTS OF THE LICENSED SOFTWARE OR ANY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED SOFTWARE OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OR ON BEHALF OF MetroStar SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY HEREIN.
LIMITATION OF LIABILITY
1. Limitation of Liability
  EXCEPT AS SET FORTH IN SECTION 10.3, NEITHER PARTY’S CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE AGREEMENT.
2. Disclaimer
  EXCEPT AS SET FORTH IN SECTION 10.3, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER (WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY), REGARDLESS OF WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING (a) ERROR OR INTERRUPTION OF USE, LOSS, ERASURE, UNAUTHORIZED USE, OR INACCURACY OR CORRUPTION OF DATA; (b) INABILITY TO ACCESS THE LICENSED SOFTWARE, INABILITY TO TRANSMIT OR RECEIVE DATA, OR DELAYS, NON-DELIVERY OR SERVICE INTERRUPTIONS DUE TO CIRCUMSTANCES NOT IN THE DIRECT CONTROL OF MetroStar, INCLUDING, SUPPLIER PROBLEMS, TELECOMMUNICATIONS FAILURES OR INTERNET SERVICE PROVIDER LIMITATIONS; (c) ERRORS, DEFECTS OR NON-CONFORMITIES IN THE LICENSED SOFTWARE OR SERVICES CAUSED, DIRECTLY OR INDIRECTLY, BY NETWORKS, COMPUTERS, SOFTWARE, TELECOMMUNICATIONS EQUIPMENT OR OTHER DEVICES USED BY CUSTOMER; (d) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR TECHNOLOGY, AND (e) LOSS OF REVENUES AND LOSS OF PROFITS.
3. Limitations
  The limitations set forth in Sections 10.1 and 10.2 shall not apply to: (a) the obligations set forth in Section 8; (b) the violation or misappropriation of a Party’s intellectual property rights; (c) damages arising from a breach by Customer of Sections 2.1, 2.5, and 3.1, and (d) damages arising from either Party’s fraud, gross negligence and willful misconduct.
MISCELLANEOUS
1. Entire Agreement
  The Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter of the Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
2. Amendment and Modification; Waiver
  No amendment to or modification of the Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by either Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in the Agreement: (a) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Agreement will operate or be construed as a waiver thereof, and (b) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
3. Choice of Law
  The Agreement will be governed by the laws of the state of Virginia, without giving effect to any conflict of laws principles. The Parties consent to the exclusive personal jurisdiction and venue in the state and Federal courts located within Virginia for the resolution of all disputes relating to the Agreement. The Parties expressly disclaim the applicability of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. This provision shall be removed and automatically marked reserved for Government customers.
4. Severability
  If any term, condition, or provision in the Agreement is found to be invalid, unlawful or unenforceable to any extent, the Parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in the Agreement. If the Parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
5. Relationship of the Parties
  No joint venture, partnership, employment, or agency relationship exists between MetroStar and Customer as a result of the Agreement or use of the Licensed Software.
6. Notices
  MetroStar may give notice by means of a notification to Customer via the Licensed Software, electronic mail to Customer’s e-mail address on record in MetroStar’s account information or by written communication sent by first class mail or pre-paid post to Customer’s in MetroStar’s account information. Customer may give notice to MetroStar at any time by letter sent by e-mail to contracts@metrostar.com or by letter delivered first class mail to MetroStar at 1856 Old Reston Avenue Suite 100, Reston, VA 20190. All notices shall be deemed to have been given five days after mailing (if sent by first class mail) or twenty-four (24) hours after sending by e-mail.
7. Use of Name and Logo
  Except as otherwise provided on an Order Form, MetroStar may identify Customer as a customer and may use Customer’s name and logo in customer lists and on MetroStar’s website.
8. U.S. Federal Government End Use Provisions
  If Customer is a federal government entity, MetroStar provides the Licensed Software, including related software and technology, for ultimate federal government end use solely in accordance with the following: Technical data and computer software rights related to the Licensed Software include only those rights customarily provided to the public as set forth in the Agreement. The license rights hereunder are provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If greater rights are needed, a mutually acceptable written addendum specifically conveying such rights must be included as part of the Agreement.
9. Export Compliance
  Each Party will comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Licensed Software. Each Party represents that it is not named on any U.S. or other applicable government list of persons or entities with which U.S. persons or persons in other applicable jurisdictions are prohibited from transacting, nor owned or controlled by or acting on behalf of any such persons or entities, and Customer will not, and will not permit any Authorized User to, access or use the Licensed Software in any manner that would cause any party to violate any U.S. or international embargo, export control law, or prohibition.
10. Equitable Relief
  The Parties acknowledge that the restrictions contained in Section 2 and Section 6 are necessary to protect the legitimate interests of the Parties, and that any violation of any provision of those sections will result in irreparable harm to the non-breaching Party for which monetary damages would not be an adequate remedy. The Parties hereby agree that in the event of a breach or a threatened breach by a Party of any such obligations, the non-breaching Party shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without the requirement of posting a bond or other security.
11. Force Majeure
  Except for Customer’s payment obligations, neither Party will be liable for any failure in performance due to circumstances beyond such Party’s reasonable control, including, acts of God; acts of government; flood; fire; earthquakes; civil unrest; acts of terror; strikes; or other labor problems (other than those involving such Party’s employees); computer, telecommunications, internet service provider, or hosting facility failures or delays involving hardware, software, or power systems not within such Party’s possession or reasonable control; and denial of service attacks.
12. Assignment
  The Agreement may not be assigned, sublicensed, or otherwise transferred by Customer without the prior written consent of MetroStar, which consent may be withheld, conditioned or delayed in MetroStar’s sole discretion. MetroStar may assign the Agreement, in whole or in part, within MetroStar’s sole discretion. This provision shall be removed and automatically marked reserved for Government customers.
13. Successors
  The Agreement will be binding upon and will inure to the benefit of the Parties and their respective representatives, successors and assigns except as otherwise provided herein.
14. Other Terms
  As used herein, “or” shall mean “and/or” and “including” shall mean “including without limitation”.
15. Electronic Signature; Counterparts
  The Agreement may be executed by e-mail exchange in .PDF format or other electronic transmission (e.g. DocuSign) with the same force and effect as an original signature in counterparts, which taken together shall form one legal instrument.

Schedule A
Data Processing Addendum

This Data Processing Addendum (“DPA”) forms part of the agreement between MetroStar and Customer, and entered into in connection with the Agreement and accordingly, is subject to and hereby incorporates by reference the terms and conditions set forth therein.

DEFINITIONS & INTERPRETATION
1. Definitions
  For purposes of this DPA, the following terms shall mean as follows:
  1. “Customer Personal Information” means Personal Information belonging to Customer that is processed by MetroStar in the course of providing the Licensed Software and Services under the Agreement.
  2. “Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Information.
  3. “Data Protection Laws” means any US state or federal law that applies to MetroStar’s processing of Customer Personal Information, including, but not limited to, the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq., and its implementing regulations (“CCPA”); and any corresponding or similar US state or US federal laws or regulations relating to the use or protection of data including any amendment, update, modification to or re-enactment of such laws.
  4. “Data Subject” means a natural person.
  5. “Personal Information” means any information relating to an identified or identifiable living individual or as otherwise defined by Data Protection Laws.
  6. “Process”, “Processing” or “Processed” means any operation or set of operations that are performed upon Personal Information, whether or not by automatic means, such as collecting, accessing, processing, using, recording, organizing, storing, adapting or altering, retrieving, consulting, disclosing, disseminating, transmitting, aligning or combining, blocking, erasing, destroying or otherwise using in a manner set forth in Data Protection Laws.
  7. “Processor” means an entity that processes information only on behalf of the Controller.
  8. “Sell” and “Share” shall have the meanings assigned to such terms in Data Protection Laws.
  9. “Service Provider” means an entity that processes information on behalf of a business and to which the business discloses a Data Subject’s Personal Information for a business purpose pursuant to a written contract.
  10. “Subprocessor” shall mean a MetroStar processor engaged by MetroStar to carry out specific processing activities on Customer Personal Information.
DATA PROTECTION OBLIGATIONS
1. Role of the Parties
  In order for MetroStar to provide the Licensed Software and Services to Customer, Customer may disclose Personal Information to MetroStar. Customer and MetroStar agree that MetroStar is acting as a Service Provider and Processor to provide the Licensed Software and Services to Customer as those terms are defined under Data Protection Laws. This DPA applies only to the extent MetroStar Processes Personal Information on behalf of Customer as a Service Provider and Processor in the course of providing the Licensed Software and Services pursuant to the Agreement.
2. Compliance with Data Protection Laws
  MetroStar shall comply with Data Protection Laws in connection with the Processing of Customer Personal Information and performance of the Licensed Software and Services. Customer shall comply with its respective obligation under applicable Data Protection Laws, including but not limited to obtaining consent from Data Subjects to permit MetroStar to Process Customer Personal Information.
3. Scope of Processing
  Customer instructs MetroStar to Process Customer Personal Information only in accordance with Data Protection Laws: (i) to provide the Licensed Software and Services; (ii) if applicable, as further specified via Customer’s or any Authorized User’s (including any Customer Members, where applicable) use of the Licensed Software and Services; (iii) as documented in the Agreement entered into under the Agreement, if applicable, including this DPA; and (iv) as further documented in any other written instructions given by Customer and acknowledged by MetroStar as constituting instructions for purposes of this DPA.
4. Customer Responsibility
  Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Information and the means by which Customer acquired Personal Information. Customer specifically acknowledges and agrees that its use of the Licensed Software and Services will not violate the rights of any Data Subject, including those that have opted-out from disclosures of Personal Information, to the extent applicable under Data Protection Laws. Nothing in this DPA or the Agreement relieves Customer of its own direct responsibilities and liabilities under the Data Protection Laws.
USE OF PERSONAL INFORMATION
MetroStar will not: (a) use Customer Personal Information other than as necessary for MetroStar to perform and provide the Licensed Software and Services and its obligations under this DPA, (b) Sell or Share any Customer Personal Information, or (c) merge Customer Personal Information with other data that it receives from or on behalf of another person or entity. If MetroStar is legally required by Data Protection Laws, or other applicable law, to Process Customer Personal Information otherwise than as instructed by Customer, MetroStar will notify Customer before such Processing occurs, unless the law requiring such Processing prohibits MetroStar from notifying Customer on an important ground of public interest, in which case MetroStar will notify Customer as soon as that law permits MetroStar to do so.
SECURITY
MetroStar will implement and maintain a comprehensive security program that contains administrative, technical, and physical safeguards appropriate to the complexity, nature, and scope of its activities.
METROSTAR EMPLOYEE CONFIDENTIALITY
MetroStar will ensure that personnel who have access to Customer Personal Information are both informed of the confidential nature of the Customer Personal Information and obliged to keep such Customer Personal Information confidential.
RIGHTS OF DATA SUBJECTS
1. Data Subject Requests
  MetroStar shall promptly notify Customer if it receives a request from a Data Subject to exercise the Data Subject’s rights under the applicable Data Protection Law (“Data Subject Request”). Taking into account the nature of the Processing, MetroStar will use commercially reasonable and appropriate technical and organizational measures to assist Customer with the fulfilment of its legal obligation(s) to respond to the Data Subject Request. To the extent legally permitted, Customer shall be responsible for any costs arising from MetroStar’s provision of such assistance.
2. Data Breach
  MetroStar shall (a) notify Customer of an actual data breach as soon as practicable after becoming aware of it; (b) investigate the data breach and provide Customer with information about the data breach as such information becomes known to MetroStar; and (c) take reasonable steps to mitigate the effects and to minimize any damage resulting from the data breach. MetroStar’s obligation to report or respond to an actual data breach under this paragraph is not and will not be construed as an acknowledgement by MetroStar of any fault or liability of MetroStar with respect to the data breach.
DELETION OR RETURN OF PERSONAL INFORMATION
MetroStar shall return or delete Customer Personal Information after termination of the Agreement (or, if later, the expiration of any confidentiality obligations). To the extent that deletion of Customer Personal Information is not permissible, MetroStar will maintain the Customer Personal Information in accordance with the terms of this DPA until at such time Customer Personal Information can be deleted.
SUBPROCESSORS
1. Subprocessor Engagement
  Customer acknowledges and agrees that MetroStar may engage one or more Subprocessor(s) to undertake any Processing of Customer Personal Information under the Agreement by and between Customer and MetroStar, and the Subprocessor(s) will be subject to a written agreement which imposes substantially equivalent obligations on the Subprocessor(s) as are imposed on MetroStar by Customer. MetroStar will notify Customer of its intent to engage a new Subprocessor and in the event Customer objects to such Subprocessor within thirty (30) days of such notice from MetroStar, Customer and MetroStar shall cooperate in good faith to make such adjustments as required to satisfy Customer’s concerns. If, within thirty (30) days after objection from Customer, Customer has not approved the Subprocessor, Customer or MetroStar shall have the right to terminate the applicable portion of the Agreement or the applicable Transaction Document, as applicable, with respect to those Products or Services that are not able to be provided without the use of the objected-to new Subprocessor.
2. MetroStar Responsibility for Subprocessors
  MetroStar is responsible and will be liable for the acts or omissions of its Subprocessors to whom it provides access to Customer Personal Information. MetroStar will give those parties access to Customer Personal Information only to the degree necessary for such parties to perform their legal obligations to MetroStar related to the Licensed Software and Services. MetroStar will ensure such parties are required to protect the Customer Personal Information in accordance with terms at least as restrictive as those contained in this DPA. MetroStar will be responsible for any unauthorized Processing of or access to Customer Personal Information in its or its Subprocessors’ possession or control.
AUDIT
1. Compliance
  MetroStar shall, on written request, make available to Customer information that is reasonably necessary to demonstrate compliance with MetroStar’s data protection obligations under this DPA and permit and contribute to audits, including inspections, no more than once annually, conducted by Customer or auditor mandated by Customer.
2. Inspection
  Customer agrees that any audit or inspection requested in accordance with Section 9.1 above shall be conducted upon not less than thirty (30) days’ prior written notice and MetroStar agrees to cooperate in good faith with the audit. Customer shall pay all reasonable costs and expenses in connection with the audit or inspection.
NEW TYPES OF PROCESSING & DATA PROTECTION IMPACT ASSESSMENT
MetroStar will notify and obtain approval from Customer prior to adopting any new type of processing in respect of Customer Personal Information. Upon Customer’ request at any time, MetroStar will assist Customer with a data protection assessment or data protection impact assessment in respect of the existing and any new type of processing proposed, in accordance with Data Protection Laws.
RETENTION
MetroStar may retain the Customer Personal Information in accordance with any retention period specified by the Customer and keep a written record of such retention period, which it must provide to Customer on request.

Software General Terms & Conditions

Schedule A Data Processing Addendum

Schedule A
Data Processing Addendum