June 23, 2010
Penny Leavy-Hoglund
President
HBGary, Inc.
3604 Fair Oaks Blvd. Suite #250
Sacramento, CA 95864
Re:
Assistance with network security assessments and other related services
Dear Ms. Leavy-Hoglund:
This letter (“Engagement Letter”) sets forth the agreement between General Dynamics Advanced
Information Systems, Inc., a Delaware corporation having a place of business at 12450 Fair Lakes Circle,
Fairfax, VA 22033 ("Contractor"), and HBGary Corporation, a California Company having a principal
place of business at 3604 Fair Oaks Blvd. Suite #250 Sacramento, CA 95864 ("Customer"). Customer and
Contractor hereafter may be referred to individually as a "Party" or collectively as the "Parties." The
Engagement Letter and the Terms and Conditions for Services attached as Exhibit A hereto are collectively
referred to herein as the “Agreement.”
For good and valuable consideration, the legal adequacy and receipt of which are hereby acknowledged, the
Parties agree as follows:
1. Scope of Work. Contractor’s work hereunder may include the following cyber security and digital
forensic services (the "Services"):
Digital Forensics Services:
1. Forensic collection of certain computer systems
2. Collection of firewall and other logs to support analysis of the incident
3. Forensic analysis of systems and system logs to:
a. Understand and characterize the nature of the intrusion
i. When was the intrusion initiated?
ii. When was malware placed on the system?
iii. When was the malware activated or executed?
iv. How did the intruder(s) access the system?
v. Was data exfiltrated?
vi. How was the data exfiltrated?
vii. During what periods of time was data accessed by the intruders?
viii. What systems or internal networks were compromised by the intruders?
b. Identify and characterize data at risk
c. Determine sensitive data that may have been accessed and exfiltrated
Malware Analysis Services:
1. Analyze malware found on Customer’s systems to assess functionality
12450 Fair Lakes Circle
Fairfax, VA 22033
703-251-7379
HBGary, Inc.
June 23, 2010
Page 2
2. Test malware in controlled test environment to confirm functionality and viability
Incident Response Services:
1. Integrated analysis
2. Coordination calls and meetings with the Customer
3. Preparation of briefing materials to characterize the intrusion
4. Response to queries from the Customer and Counsel
5. Interaction with law enforcement, federal regulators, the credit card companies, etc., when directed
by Counsel as needed
6. Preparation of final report, as directed by the Customer or counsel
7. Establishment of security monitoring services
8. Network traffic monitoring
9. Network data collection
2.
Services to be performed on an Hourly Basis
All Services will be performed on an hourly basis and the actual work to be performed as part of the
Services will be as determined by Contractor in consultation with Customer. There is no obligation
hereunder for Contractor to undertake or complete any particular tasks or activities, or to produce any
particular results, or to devote any minimum number of hours to the performance of the Services. All
Services will end upon expiration or termination of this Agreement for any reason.
3.
Prices and Payment.
3.1
Prices. Customer shall pay Contractor for the Services pursuant to the following rates for actual
labor hours worked:
Description
Hourly Rate
Director
$489
Senior Manager
$361
Manager
$319
Senior Associate
$255
Associate
$191
Administrative Support $125
Table 1 - GDAIS 2010 Fee Schedule
The scope of our services, as well as the complexity and duration of this Engagement, can vary greatly due
to circumstances which may not be anticipated. Our fees and expenses are not contingent upon the final
resolution of the matters that are the subject of this Engagement.
3.2
Materials. Contractor may purchase equipment, materials, software, and other non-labor items in
connection with providing Services under this Agreement (hereinafter, "Materials"). Customer shall
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June 23, 2010
Page 3
reimburse Contractor for the cost of all Materials.The cost of any non-labor materials under this section that
exceeds $500.00 shall not be obtained by Contractor without prior approval Customer.
3.3
Travel. Customer shall reimburse Contractor for all travel expenses incurred in connection with
the provision of the Services, including reasonable food and lodging expenses.
3.4
Invoices. Contractor shall submit original invoices to Customer no more than once monthly at the
following address:
HBGary, Inc.
3604 Fair Oaks Blvd. Suite #250
Sacramento, CA 95864
3.5
Payment. Customer shall pay each invoice within thirty (30) days after the date of such invoice in
accordance with the payment instructions on such invoice. Contractor may charge a late fee equal to the
prime rate (as published in the Wall Street Journal from time to time) plus 2% on all amounts not paid
when due.
3.6
Taxes. The pricing set forth herein otherwise provided by Contractor under this Agreement for
Services does not include applicable federal and state sales and use taxes (collectively "Taxes"). Customer
will pay all Taxes, which Contractor will include as a separate line item on its invoices.
4. Term. The term of this Agreement shall begin on June 23, 2010 and end on August 1, 2010 unless
terminated earlier in accordance with Section 5 (the "Term"). The Parties may extend the Term only by
mutual written agreement.
5.
Termination
5.1
For Convenience. Either Party may terminate this Agreement for convenience at any time prior to
the last day of the Term, by providing the other Party with thirty (30) calendar days prior written notice.
5.2
Material Breach. Either Party may terminate this Agreement where the other Party has materially
breached this Agreement, provided that the non-breaching Party provides written notice to the other Party
of that breach and the breach is not cured within thirty (30) calendar days of said notice.
5.3
Insolvency. Either Party may terminate this Agreement immediately if: (a) the other Party's
interest in this Agreement is taken in execution or by other process of law; (b) a proceeding under any
arrangement of debt, insolvency, readjustment of debt, or receivership law or statute is filed by or against
the other Party by a third party and is not challenged by that Party within the time permitted by law or is
not dismissed within sixty (60) calendar days; or (c) the other Party makes an assignment for the benefit of
creditors or otherwise ceases to exist.
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June 23, 2010
Page 4
5.4
Effect of Termination. In the event of expiration or termination of this Agreement for any reason,
and in accordance with Article 3 of this Engagement Letter, Customer shall be liable for payment to
Contractor for Services performed prior to the effective date of the termination, plus (a) all reasonable costs
incurred by Contractor in complying with the termination notice; and (b) all reasonable costs continuing
after termination that Contractor committed to incurring prior to the date of termination. In the event of
expiration or termination of this Agreement for any reason, regardless of any dispute between the Parties,
all property, materials, documents, and/or equipment owned exclusively by Customer or Contractor in the
other Party's possession, and in any way pertaining to this Agreement, shall be delivered to the originating
Party within thirty (30) calendar days of the notice of termination.
6.
Incorporation of Terms and Conditions. This engagement is subject to the Terms and Conditions
for Services attached as Exhibit A hereto, which are incorporated in this Agreement by this reference as if
fully set forth herein.
7.
Authorization to Perform Services. Customer hereby authorizes Contractor to perform all Services
under this Agreement.
Customer's representative signing this Agreement represents and warrants that he/she has the
authority to grant this permission for all Services hereunder.
If you agree to the terms of this letter and the attached Exhibit A, please sign the enclosed copy of this
letter in the space provided and return it to me. If you have any questions, please call me at (210) 4424207. We appreciate the opportunity to work with you on this matter.
By: GENERAL DYNAMICS ADVANCED INFORMATION SYSTEMS, INC.
Name: ___________________________________
Accepted by:
By:
_______________________
Name: _______________________
Title:
Date:
_______________________
_______________________
HBGary, Inc.
June 23, 2010
Page 5
Exhibit A – Terms and Conditions of Services
1. Independent Contractor; Employees. Contractor's relationship to Customer in the performance of this
Agreement is that of an independent contractor and all work performed by Contractor pursuant to this
Agreement will be subject to mutual written agreement of the Parties. Personnel assigned by Contractor
(hereinafter "Contractor's employee(s)") to perform Services hereunder shall at all times remain employees
of Contractor and not employees of Customer. Contractor shall pay all wages, salaries and other amounts
due Contractor's employee(s) and shall be responsible for Contractor's employee obligations relating to
FICA, income tax withholdings and unemployment compensation. If a cognizant government authority
finally determines that Contractor or Contractor's employee(s) are employees of Customer with respect to
Services performed hereunder, Contractor agrees to indemnify and hold harmless Customer and its
Affiliates from all obligations relating to FICA, income tax withholdings, unemployment compensation,
and similar payments Contractor regularly makes on behalf of its employees ("Employee Payments") that
Customer incurs through the expiration or termination date of this Agreement to the extent resulting from
such a determination, provided that Customer (a) gives Contractor prompt notice of any claims, demands,
lawsuits, or other actions ("Claims") for Employee Payments; (b) permits Contractor to control the defense,
resolution, and other handling of all Claims; and (c) cooperates with Contractor in the defense, resolution,
or other handling of all Claims.
2. No Partnership or Agency. Nothing contained in this Agreement shall be deemed or construed as
creating a joint venture or partnership between Contractor and Customer. No Party is by virtue of this
Agreement authorized as an agent, employee or legal representative of the other Party. Each Party agrees
that it does not have, nor shall it hold itself out as having, any right, power, or authority to create any
contract obligation, express or implied, on behalf of, in the name of, or binding upon the other and agrees
not to undertake any action which would tend to mislead anyone in this regard. Nothing herein shall be
construed as providing for the sharing of profits or losses arising out of the efforts of either Party.
3. Assignment. This Agreement shall be binding on and inure to the benefit of the Parties and their
respective permitted successors and assigns. No Party may assign or transfer its rights or obligations under
this Agreement without the prior written consent of the other; provided, however, that any Party may,
without consent, assign this Agreement as a result of a merger or a sale of all or substantially all of the
assets to which this Agreement relates or stock of that Party or to an Affiliate as part of any internal
reorganization.
4. Subcontractors. Contractor may perform its obligations hereunder using one or more subcontractors,
provided that Contractor remains responsible for the performance of such obligations in accordance with
this Agreement.
5.
Confidential Information.
5.1
General. During the course of providing Services under this Agreement, each Party may receive,
have access to, and/or become acquainted with information of a confidential, proprietary or secret nature
which concerns the personal, financial, technical or other confidential or proprietary affairs of the other
Party or that Party's Affiliates or customers (hereinafter "Confidential Information"). Confidential
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June 23, 2010
Page 6
Information includes customer lists, processes employed or developed in a Party's business, compilations of
information, records, specifications and information concerning customers or vendors, and information
about the special needs or objectives of customers or employees. Orally disclosed information shall become
Confidential Information only if it is identified as Confidential Information at the time of disclosure and
summarized in writing by the disclosing Party and sent to the receiving Party within thirty (30) calendar
days of that disclosure. Confidential Information shall at all times remain the property of the disclosing
Party and shall not be used for any purpose other than performance under or related to this Agreement. The
Parties shall use a reasonable degree of care to avoid disclosing Confidential Information of another Party
to anyone other than employees, subcontractors, and agents of the receiving Party who have a need to know
the information and who are subject to nondisclosure obligations no less stringent than those herein. The
obligations of this Section 5.1 do not apply to information that: (a) is or becomes publicly known through
no wrongful act of the receiving Party; (b) is already known to the receiving Party as evidenced by
competent proof thereof; (c) is approved for release by the prior approval of the disclosing Party, (d) is
rightfully received by the receiving Party from a third party without restriction and without breach of this
Section; (e) is disclosed by the disclosing Party to a third party without a similar restriction on the rights of
such third party, or (f) is independently developed by the receiving Party without the use of the
Confidential Information.
5.2
Irreparable Harm. The Parties acknowledge that the Confidential Information under this
Agreement may constitute unique, valuable and special trade secret and business information of the
disclosing Party, and that disclosure thereof may cause irreparable injury to the disclosing Party.
Accordingly, the Parties acknowledge and agree that monetary damages may not be adequate in the event
of a default of this Article 5 by the receiving Party and, therefore, that the disclosing Party may be entitled
to injunctive or other affirmative relief and/or to terminate this Agreement, without such constituting an
election of remedies.
5.3
Return of Confidential Information. The receiving Party shall return all Confidential Information
and any copies thereof to the disclosing Party upon expiration or termination of this Agreement for any
reason or at such earlier date as the disclosing Party may request at any time.
6.
Customer Acknowledgment.
Customer acknowledges and agrees that, due to the nature of the Services, the provision of Services may
cause disruptions of and/or damage to the Customer’s or third party’s information systems and the
information and data contained therein, including without limitation:






Loss or corruption of data
Denial of service resulting in downtime or loss of network connectivity in or at stores and other
Customer facilities, servers, workstations, network appliances, web applications, and web sites
Server or workstation operating system corruption potentially requiring reload, with potential loss
of data
Access to corporate user accounts
Viewing of data on network including email traffic, web traffic, and file transfer traffic
Possible impact to production systems resulting in transaction loss
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June 23, 2010
Page 7


Transfer of data from Canada to the U.S.
Potential compromise of system, making system vulnerable to attack
Customer is solely responsible for understanding the steps that will be performed as part of the Services,
and for arranging alternative means of operation should disruptions or failures occur and for all damage
caused by the Services.
7.
LIMITED WARRANTY; EXCLUSIVE REMEDY
7.1
Services. Contractor warrants that it will perform the Services in a reasonable manner consistent
with its policies and procedures for providing such Services.
7.2
Exclusive Remedy. If Contractor fails to perform the Services in accordance with Section 7.1,
then if requested by Customer to remedy such failure, Contractor will, in its discretion, either (a) reperform the applicable Services in accordance with Section 7.1, or (b) refund to Customer the price paid by
Customer for the Services not performed in accordance with Section 7.1, subject to Article 15. Any such
request by Customer must be made within ninety (90) days after the earlier to occur of: (y) Customer's
discovery of such failure, or (z) the expiration or termination of this Agreement for any reason. Contractor
may choose to refund such price paid even if Contractor has already begun to re-perform the applicable
Services or if it has not completed re-performing such Services in accordance with Section 7.1. This
Section 7.2 sets forth Customer's sole and exclusive remedy for Contractor's performance of the Services
or failure to perform the Services as required hereunder (or any breach by it of Section 7.1), and Customer
hereby waives all other remedies. In no event shall this Section 7.2 be deemed to have failed of its
essential purpose, and Customer shall not allege or claim the foregoing.
8.
DISCLAIMER OF WARRANTIES; WAIVER
EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 7.1, CONTRACTOR
HEREBY DISCLAIMS, AND CUSTOMER HEREBY WAIVES, ANY AND ALL WARRANTIES OF
ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. WITHOUT LIMITING THE GENERALITY OR APPLICABILITY OF THE
FOREGOING, CONTRACTOR DOES NOT REPRESENT, WARRANT, OR COVENANT THAT THE
SERVICES PERFORMED UNDER THIS AGREEMENT WILL: (A) DETECT OR IDENTIFY ANY OR
ALL SECURITY OR NETWORK THREATS TO, OR VULNERABILITIES OF, CUSTOMER'S
NETWORKS OR OTHER FACILITIES, ASSETS, OR OPERATIONS; (B) PREVENT INTRUSIONS
INTO OR ANY DAMAGE TO CUSTOMER'S NETWORKS OR OTHER FACILITIES, ASSETS, OR
OPERATIONS; OR (C) MEET OR HELP CUSTOMER MEET ANY INDUSTRY STANDARD OR
ANY OTHER REQUIREMENTS, INCLUDING THE PAYMENT CARD INDUSTRY DATA
SECURITY STANDARD.
HBGary, Inc.
June 23, 2010
Page 8
9.
INTELLECTUAL PROPERTY RIGHTS
9.1
Intellectual Property. Any and all reports, documents, lists, data and/or other work product or
materials ("IP") developed by Contractor while providing Services hereunder or provided by Contractor to
Customer in connection with this Agreement ("Contractor IP") are the sole and exclusive property of
Contractor, together with all intellectual property rights therein. Notwithstanding the foregoing, Customer
shall retain sole and exclusive ownership of any Materials that are provided to Contractor by Customer ("IP
Materials"), even if such Customer IP is incorporated into any Contractor Materials. Contractor hereby
grants to Customer a perpetual, non-exclusive, royalty-free license to use only for its internal business
purposes all Contractor IP delivered by Contractor to Customer’s possession hereunder. Customer hereby
grants to Contractor a non-exclusive, royalty-free license to use only for purposes of providing the Services
hereunder all Customer IP.
9.2
Trademarks. Neither Party shall use any service mark or trademark of the other Party or refer to
the other Party in connection with any product, equipment, promotion, or publication without the prior
written consent of the first Party.
10.
NON-EXCLUSIVITY
Each Party reserves the right to contract with other firms, companies, partnerships, individuals, or any other
entities during the Term of this Agreement to provide or procure services of any kind, including services
similar to the Services performed by Contractor hereunder.
11.
INDEMNIFICATION
11.1
General. Customer shall indemnify and hold harmless Contractor and its Affiliates, and its and
their directors, officers, employees, shareholders, vendors, subcontractors, representatives and agents, from
and against any and all claims, losses, damages, liabilities, obligations or expenses, including reasonable
attorneys' fees and expenses (collectively, “Losses”), to the extent arising or resulting from claims or other
causes of action by any third party arising under or in connection with this Agreement, including (a) with
respect to Contractor's provision of the Services, (b) Customer’s failure to obtain any third-party consent or
authorization required to be obtained hereunder, or (c) Customer's provision of (including by providing or
authorizing access to), or Contractor's handling of or access to, any Customer Materials or Customer Data,
including any loss or damage to Customer Data resulting from the foregoing, including Losses due to
claims arising from the Health Insurance Portability and Accountability Act of 1996, the Gramm-LeachBliley Act, the USA Patriot Act, the Drivers Privacy Protection Act, the Fair Credit Reporting Act, the
Privacy Act, and related state laws. For purposes of this Agreement, the term "Affiliate" means, with
respect to a Party, any other legal entity that, directly or indirectly, controls, is under common control with,
or is controlled by, such Party. Contractor shall control the defense against any Losses using counsel of its
own choice.
11.2
Customer Data. Customer retains responsibility for compliance with all laws, regulations, or other
authorities governing any data, information, materials, software, or other items of any nature provided by
Customer to Contractor in connection with this Agreement, or to which Customer provides access or
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June 23, 2010
Page 9
authorizes Contractor to access in connection with this Agreement (collectively, "Customer Data").
Customer represents and warrants that Customer has obtained legally sufficient consent, from all persons or
entities whose Customer Data may be accessed as a result of the Services, for Contractor to access and use
Customer Data to the extent required to perform the Services under this Agreement. Without limiting the
generality or applicability of Section 11.1, Customer shall, under Section 11.1, indemnify and hold
harmless Contractor and its Affiliates, and its and their directors, officers, employees, shareholders,
vendors, subcontractors, representatives and agents, from and against any and all Losses arising from
Customer’s failure to obtain such consent for Contractor to access or use Customer Data
12.
DISPUTES
12.1
Negotiations. Except for the right of either Party to apply to a court of competent jurisdiction for a
temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or
prevent irreparable harm, all disputes, controversies or claims between the Parties arising under or in
relation to this Agreement (a "Dispute") shall be settled, to the extent possible, by good faith negotiations
within thirty (30) calendar days following a request by a Party for resolution of a Dispute.
12.2
Arbitration. Any Dispute, including any Dispute regarding the enforceability of any provision,
which cannot be resolved through good faith negotiations within the period set forth in Section 12.1, or
such longer period of time as may be mutually agreed between the Parties, shall be submitted to conclusive
and binding arbitration before a panel of three arbitrators in Virginia in accordance with the rules of
Commercial Arbitration of the American Arbitration Association. Each Party shall appoint one arbitrator
and the two chosen arbitrators shall select and agree upon the third arbitrator. The arbitration panel will, as
soon as practicable, render a final and binding decision in accordance with the terms and conditions of this
Agreement. The powers of the arbitration panel will include the power to award monetary damages,
declaratory judgments, specific performance and injunctive and other equitable relief. The arbitration panel
will not have the power to modify or amend in any respect the provisions of this Agreement or to award
punitive, exemplary, consequential, indirect, incidental or other special damages or to award any damages
in excess of the limits set forth in this Agreement. The decision of such arbitration panel shall be final for
all purposes and may be enforced in an appropriate court in accordance with Virginia law.
13.
FORCE MAJEURE
Neither Party shall be liable for any delay or failure in performing its obligations hereunder (other than
payment obligations) that is due to circumstances beyond such Party's reasonable control, including acts of
God or the public enemy, actions or decrees of governmental entities, civil unrest, acts or threats of
terrorism, riots, war, fire, floods, unusually severe weather, earthquakes, volcanoes, explosions, strikes by
subcontractors or vendors other than those of Contractor, or other concerted acts of labor ("Force Majeure
Event"). Upon the occurrence of a Force Majeure Event, the affected Party shall give prompt notice to the
other Party of the nature of the Force Majeure Event and the extent of the anticipated delay resulting from
the Force Majeure Event. The affected Party will use commercially reasonable efforts to resume
performance hereunder promptly after such Force Majeure Event is removed or ceases. If the period of
nonperformance due to a Force Majeure Event exceeds thirty (30) calendar days from receipt of the notice
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June 23, 2010
Page 10
of the Force Majeure Event, then the non-affected Party may terminate this Agreement immediately upon
written notice to the affected Party.
14.
EXCLUSION OF CONSEQUENTIAL DAMAGES
IN NO EVENT SHALL EITHER PARTY OR THEIR AFFILIATES, OR ITS OR THEIR DIRECTORS,
OFFICERS, EMPLOYEES, SHAREHOLDERS, VENDORS, SUBCONTRACTORS,
REPRESENTATIVES AND AGENTS, BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT,
INCIDENTAL OR OTHER SPECIAL DAMAGES OF ANY KIND ARISING UNDER OR IN
RELATION TO THIS AGREEMENT, HOWEVER CAUSED, INCLUDING LOSS OF PROFITS OR
REVENUE, LOSS OF DATA, WORK INTERRUPTION, INCREASED COST OF WORK, OR ANY
CLAIMS OR DEMANDS AGAINST IT BY ANY OTHER ENTITY, REGARDLESS OF WHETHER
ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR
OTHERWISE, AND REGARDLESS OF WHETHER SUCH PARTY KNEW, HAD REASON TO
KNOW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall
this Article 14 be deemed to have failed of its essential purpose, and neither Party shall allege or claim the
foregoing.
15.
LIMITATION OF LIABILITY
15.1
Contractor Limitation. IN NO EVENT SHALL CONTRACTOR'S AGGREGATE LIABILITY
(INCLUDING ANY LIABILITY OF ITS AFFILIATES, OR ITS OR THEIR DIRECTORS, OFFICERS,
EMPLOYEES, SHAREHOLDERS, VENDORS, SUBCONTRACTORS, REPRESENTATIVES AND
AGENTS) FOR DAMAGES ARISING UNDER OR IN RELATION TO THIS AGREEMENT EXCEED
TWENTY PERCENT (20%) OF THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER UNDER
THIS AGREEMENT, HOWEVER CAUSED, REGARDLESS OF WHETHER ARISING UNDER
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND
REGARDLESS OF WHETHER SUCH PARTY KNEW, HAD REASON TO KNOW OR SHOULD
HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE
GENERALITY OR APPLICABILITY OF THE FOREGOING, CUSTOMER SHALL NOT SEEK, AND
CONTRACTOR SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM OR IN
RELATION TO ANY ACTUAL OR ALLEGED FAILURE BY CONTRACTOR TO: (A) DETECT OR
IDENTIFY ANY SECURITY OR NETWORK THREATS TO OR VULNERABILITIES OF
CUSTOMER'S NETWORKS OR OTHER FACILITIES, ASSETS, OR OPERATIONS; (B) PREVENT
INTRUSIONS INTO OR ANY DAMAGE TO CUSTOMER'S NETWORKS OR OTHER FACILITIES,
ASSETS, OR OPERATIONS; OR (C) MEET OR HELP CUSTOMER MEET ANY INDUSTRY
STANDARD OR ANY OTHER REQUIREMENTS, INCLUDING THE PAYMENT CARD INDUSTRY
DATA SECURITY STANDARD. In no event shall this Section 15.1 be deemed to have failed of its
essential purpose, and Customer shall not allege or claim the foregoing.
15.2
Customer Limitation. EXCEPT FOR INDEMNIFICATION OBLIGATIONS IN THIS
AGREEMENT, IN NO EVENT SHALL CUSTOMER'S AGGREGATE LIABILITY (INCLUDING ANY
LIABILITY OF ITS AFFILIATES, OR ITS OR THEIR DIRECTORS, OFFICERS, EMPLOYEES,
SHAREHOLDERS, VENDORS, SUBCONTRACTORS, REPRESENTATIVES AND AGENTS) FOR
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June 23, 2010
Page 11
DAMAGES ARISING UNDER OR IN RELATION TO THIS AGREEMENT EXCEED THE TOTAL
AMOUNT PAYABLE BY CUSTOMER UNDER THIS AGREEMENT, HOWEVER CAUSED,
REGARDLESS OF WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE),
STRICT LIABILITY OR OTHERWISE, AND REGARDLESS OF WHETHER SUCH PARTY KNEW,
HAD REASON TO KNOW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH
DAMAGES. In no event shall this Section 15.2 be deemed to have failed of its essential purpose, and
Contractor shall not allege or claim the foregoing.
16.
COOPERATION
Customer agrees to comply with all reasonable requests of Contractor and to provide access to all
documents and other information reasonably necessary for Contractor to perform its duties under this
Agreement. Contractor shall be entitled to rely upon any instructions by Customer regarding this
Agreement or the Services. Contractor agrees to comply with reasonable requests of Customer in order for
Customer to perform its duties under this Agreement.
17.
ENTIRE AGREEMENT; MODIFICATIONS
This Agreement, along with any exhibits attached hereto and incorporated herein by reference, contains the
entire understanding and agreement between the Parties relating to the Services or the subject matter
hereof, and supersedes all prior and collateral understandings, and agreements, if any, between the Parties
(in any form, including written or oral). Each Party acknowledges and agrees that no representations,
inducements, promises, understandings or agreements, orally or otherwise, have been made by either Party,
or anyone acting on behalf of either Party, that is not contained in this Agreement, and that no other
representation, inducement, promise, understanding or agreement not contained in this Agreement will be
valid or binding. This Agreement is not subject to change or modification except by written agreement
signed by both Parties.
18.
APPLICABLE LAW; EXCLUSIVE JURISDICTION
This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of
Virginia and the laws applicable therein, without reference to its principles of conflict of laws; provided
that the Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement. The
exclusive jurisdiction for any legal proceeding arising under or in relation to this Agreement shall be the
state or federal courts in the Commonwealth of Virginia. Each Party hereby irrevocably (a) submits to the
exclusive jurisdiction of such courts for any such legal proceedings, (b) agrees that all claims in respect of
such legal proceedings may be heard and determined only in any such courts, (c) waives any claim of
inconvenient forum or other challenge to venue in such courts, and (d) agrees not to bring any legal
proceedings arising out of or in relation to this Agreement in any other court.
19.
PUBLICITY
Any publicity or advertising in connection with the subject matter of this Agreement proposed by either
Party shall be subject to the prior written approval of the other Party.
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June 23, 2010
Page 12
20.
SEVERABILITY
Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Agreement shall, to any extent, be determined
by a court of competent jurisdiction to be invalid, void, or unenforceable, such provision shall be
ineffective only to the extent of such invalidity or unenforceable, and the remaining provisions of this
Agreement shall not be affected thereby, and each such remaining provision of this Agreement will
continue in full force and effect without being impaired or invalidated in any way.
21.
NON-WAIVER
The failure of either Party to insist on strict compliance with any of the terms, covenants, or conditions of
this Agreement by the other Party shall not be deemed a waiver of that term, covenant, or condition.
22.
SURVIVAL; TIME LIMIT FOR CLAIMS
The following Articles of this Agreement will survive the expiration or termination of this Agreement for
any reason:
1 (Independent Contractor; Employees)
2 (No Partnership or Agency)
3 (Assignment)
6 (Customer Acknowledgment)
8 (DISCLAIMER OF WARRANTIES; WAIVER)
5 (CONFIDENTIAL INFORMATION)
9 (INTELLECTUAL PROPERTY RIGHTS)
11 (INDEMNIFICATION)
12 (DISPUTES)
14 (EXCLUSION OF CONSEQUENTIAL DAMAGES)
15 (LIMITATION OF LIABILITY)
16 (COOPERATION)
17 (ENTIRE AGREEMENT; MODIFICATIONS)
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June 23, 2010
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18 (APPLICABLE LAW; EXCLUSIVE JURISDICTION)
19 (PUBLICITY)
20 (SEVERABILITY)
21 (NON-WAIVER)
22 (SURVIVAL; TIME LIMIT FOR CLAIMS)
23 (NO THIRD-PARTY BENEFICIARIES)
24 (NOTICES)
25 (INTERPRETATION)
26 (COUNTERPARTS)
The following Sections of this Agreement will survive the expiration or termination of this Agreement for
any reason:
5.4 (Effect of Termination)
7.2 (Exclusive Remedy)
All claims or causes of action arising under or in relation to this Agreement must be brought within one (1)
year after the last day of the Term; provided that the foregoing does not extend any statutes of limitation or
other deadlines that are otherwise applicable.
23.
NO THIRD-PARTY BENEFICIARIES
The provisions of this Agreement are for the benefit of the Parties and not for any other person. Nothing
herein shall create a contractual relationship with or cause of action in favor of a third party against
Customer or Contractor.
24.
NOTICES
Any notices required to be given under this Agreement by either Party to the other shall be in writing and
shall be sent as follows (and shall be deemed to have been duly given as indicated in parenthesis in the
following): (a) personally served (at the time of delivery); (b) pre-paid nationally recognized overnight
courier service with evidence of receipt required for delivery (upon receipt as indicated by such evidence of
HBGary, Inc.
June 23, 2010
Page 14
receipt); (c) registered or certified mail, return receipt requested, postage prepaid (upon receipt, as indicated
by such return receipt); or (c) e-mail or facsimile with evidence of receipt and followed by delivery of a
copy of the notice by first class mail (upon receipt); in all such cases addressed to the Parties at the
addresses set forth below. Either Party may change its address to which said notice shall be delivered by
giving written notice of such change to the other Party, as herein provided.
Notices to Customer shall be sent to:
[insert notice information]
Facsimile No.: [___]
Email address: [___]
Notices to Contractor shall be sent to:
General Dynamics Advanced Information Systems, Inc.
1100 N.W. Loop 410
Suite 600
San Antonio, TX 78213
Attention: Contracts Department
Russell Wenthold
Facsimile No.: 210.377.3092
Email address: [email protected]
With a copy to:
General Dynamics Advanced Information Systems, Inc.
12450 Fair Lakes Circle
Fairfax, VA 22033
Attention: General Counsel
Facsimile No.: 703-251-7377
Email address: [email protected]
25.
INTERPRETATION
The headings of each section are for reference only and shall not be construed as part of this Agreement.
The words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation,
but rather shall be deemed to be followed by the words “without limitation.” The terms “hereof,”
“hereunder,” “herein” and words of similar import shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. Each Party hereto has participated in the drafting of this
Agreement, which each Party acknowledges is the result of extensive negotiations between the Parties, and
consequently this Agreement shall be interpreted without reference to any rule or precept of law to the
effect that any ambiguity in a document be construed against the drafter.
HBGary, Inc.
June 23, 2010
Page 15
26.
COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original,
but all such counterparts taken together shall constitute one and the same agreement.
*
*
*
*
*
AGREED:
GENERAL DYNAMICS ADVANCED INFORMATION SYSTEMS, INC.
By:
Name:
Title:
HBGARY, INC.
By:
Name:
Title: