1. SERVICES AND DELIVERABLES DXFactor shall provide to Client Services and Deliverables as set forth in statements of work (“Statement of Work” OR “SOW”). “Services” means the services which DXFactor shall provide to Client under the SOW. “Deliverables” means any and all properties and other materials created, developed or delivered pursuant to the SOW. Client and DXFactor may, but are not required to, enter into separate SOW with respect to the provisions of Services and Deliverables. Each SOW shall be deemed an offer by DXFactor to perform, and by Client to purchase, the Services and Deliverables set forth in the SOW and when signed by DXFactor shall constitute a contract in accordance with the terms and conditions of the SOW and the Terms and Conditions of this Agreement. In the event of any conflict between this Agreement and any SOW, the terms and conditions of the SOW shall govern.

3. PAYMENT. DXFactor shall invoice the Client according to the pricing terms set forth in the SOW. Payment obligations are non-cancellable, and all fees are non-refundable in all aspects. Client shall reimburse DXFactor for all reasonable expenses incurred in accordance with any SOW, so long as such expenses are preapproved by the Client.

3. TAXES. The Client shall pay all fees, charges, taxes, duties and similar items levied by any governmental authority (excluding taxes on DXFactor’s net income generally) in connection with the performance of the Services, Deliverables and this Agreement., except to the extent a valid tax exemption certificate or other written documentation acceptable is provided by Client to DXFactor. The Parties shall negotiate in good faith payment of any disputed amount.

4. CLIENT REPRESENTATIONS AND WARRANTIES. As a prerequisite to DXFactor’s delivery of Services, the Client represents and warrants that (i) it has all the power, authority and rights to enter into this Agreement; (ii) ensure that all assumptions stated in this Agreement are accurate; (iii) provide DXFactor with reliable, accurate and complete information as required by this Agreement; (iv) make timely decisions and obtain all such approvals, licenses and consents required for the consummation of the transactions contemplated by this Agreement; and (vi) cause all levels of Client’s personnel to cooperate fully and timely with DXFactor.

5. NON-SOLICITATION. During the term of this Agreement, and until one (1) year after the expiration or termination thereof, neither DXFactor nor Client shall, without the prior written consent of the affected party, solicit, recruit, induce, counsel or hire or attempt to solicit, recruit or hire any personnel who are or have been assigned to perform any work or services under this Agreement or otherwise assist in its If, during the term of this Agreement, DXFactor or Client hire any personnel who are or have been assigned to perform any work or services or otherwise assist in its implementation, that party shall pay the affected party an amount equal to one hundred percent (100%) of the total compensation paid to such personnel by the affected party during the year immediately preceding such hiring.

6.OWNERSHIP, RIGHTS, AND/OR LICENSE; USE OF DELIVERABLES. Upon Client’s payment of all fees owed to DXFactor, DXFactor agrees that all Deliverables described in this Agreement that are created for Client by DXFactor and provided to Client pursuant to this Agreement, shall be the property of Client. To the extent such Deliverables comprise or contain subject matter protectable under applicable intellectual property laws, including patent, trademark, copyright, and tradesecret laws (“Protectable Subject Matter”), upon Client’s payment of all fees owed to DXFactor, DXFactor (i) agrees that such Protectable Subject Matter shall be the sole property of Client; ii) hereby assigns to Client all right, title and interest to all intellectual property rights for such Protectable Subject Matter; (iii) agrees that such Protectable Subject Matter shall be considered a “work made for hire” and Client shall be deemed the author thereof; and, (iv) to the extent any applicable law or treaty prohibits the transfer or assignment of any moral rights or rights of restraint DXFactor has in such Protectable Subject Matter, hereby waives those rights as to Client.

7. TERM; TERMINATION
a. This Agreement shall be effective as of the Effective Date set forth in the applicable Statement of Work, unless earlier terminated in accordance with this Agreement. DXFactor may terminate an ongoing Statement of work without cause by providing thirty (30) days written notice to the Client.
b. Either Party may terminate this Agreement if there has been a breach, material inaccuracy in or failure to perform any representation, warranty, or obligation (each individually a “Breach”) and either the Breach cannot be cured or, if the Breach can be cured, it is not cured by the breaching Party within thirty (30) days after receipt of a written notice of Breach.
c. Upon the termination or expiration of this Agreement, DXFactor and Client shall each return to the other all papers, materials, confidential information, and other properties of such other party held by each for purposes of performance of this Agreement, and shall have an officer certify such return

8. LIMITATION OF DAMAGES. EXCEPT AS STATED IN THE FOLLOWING SENTENCE, DXFACTOR’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER, WILL BE LIMITED TO AND SHALL NOT EXCEED THE AMOUNT DXFACTOR HAS ACTUALLY RECEIVED FROM CLIENT UNDER THE APPLICABLE SOW IN THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS STATED IN THE PRECEDING SENTENCE DO NOT APPLY TO DXFACTOR’S GROSS NEGLIGENCE OR MALICIOUS MISCONDUCT. IN NO EVENT SHALL DXFACTOR BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST OR ANTICIPATED REVENUE, PROFITS OR LOSS OR USE OF DATA OR INFORMATION OF ANY KIND) ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, EQUITY, TORT (INCLUDING ANY FORM OF NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, AND WHETHER OR NOT DXFACTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THESE LIMITATIONS SHALL APPLY DESPITE ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION, THEN DXFACTOR’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT POSSIBLE.

9.  DISCLAIMER OF WARRANTY.
a. DXFACTOR IS NOT RESPONSIBLE FOR, AND MAKES NO REPRESENTATION OR WARRANTY AND EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES AND ANY LIABILITY WITH RESPECT TO, ANY THIRD-PARTY HARDWARE, SOFTWARE, PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY CONTENT CONTAINED THEREIN, ANY ERRORS OR OMISSIONS CONTAINED THEREIN, MANUFACTURING, MATERIAL, PERFORMANCE, DESIGN DEFECTS, LIBEL, INFRINGEMENT OR MISAPPROPRIATION OF RIGHTS OF PUBLICITY, PRIVACY, INTELLECTUAL PROPERTY RIGHTS, MORAL RIGHTS, OR OTHER PROPRIETARY RIGHTS, OR THE DISCLOSURE OF CONFIDENTIAL CLIENT’S SOLE AND EXCLUSIVE RIGHTS AND REMEDIES WITH RESPECT TO ANY THIRD-PARTY HARDWARE, SOFTWARE, PRODUCTS OR SERVICES ARE AGAINST THE THIRD-PARTY VENDOR AND NOT AGAINST DXFACTOR.

b. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, DXFACTOR DOES NOT MAKE ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), INCLUDING ANY IMPLIED  WARRANTIES  OF MERCHANTABILITY, NON- INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OR STATUTORY, AS TO ANY MATTER ALL OTHER EXPRESS OR IMPLIED CONDITIONS

REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. NEITHER PARTY WILL HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION AND WARRANTY ON BEHALF OF THE OTHER
PARTY TO ANY THIRD-PARTY. Client acknowledges and agrees that no other representations or warranties were made to or relied upon by Client.

10. INDEMNIFICATION.
a. Client shall indemnify DXFactor and DXFactor’s shareholders, directors, officers, employees, agents, successors and assigns (each, a “DXFactor Indemnitee”) from and against all claims of third parties, and shall pay all damages, losses, liabilities, costs and expenses, including attorneys’ fees, incurred by each DXFactor Indemnitee with respect to such third party claims, arising out of or relating to: (i) the gross negligence or malicious acts or omissions of Client or Client’s employees, agents or representatives; and (ii) any misuse or modification by Client or Client’s employees, agents or representatives of the Deliverables, the Services, or both, after delivery by DXFactor.

b. DXFactor shall indemnify Client and Client’s shareholders, directors, officers, employees, agents, successors and assigns (each, a “Client Indemnitee”) from and against all claims of third parties, and shall pay all direct damages, losses, liabilities, costs and expenses, including attorneys’ fees, incurred by each Client Indemnities with respect to such third party claims, arising out of the bodily injury or death of any person or damage to real or tangible personal property incurred while DXFactor is performing the Services, but in every instance only to the extent such is directly caused by the gross negligence or malicious acts or omissions of DXFactor’s personnel or agents in performing the Services.

11.NOTICES. All notices required by or relating to this Agreement shall be in writing and shall be sent by means of certified mail, postage prepaid, to the parties to the Agreement and addressed as set forth above, or addressed to a party’s other address as such party may have given by written notice in accordance with this provision. All notices required by or relating to this Agreement may also be communicated by facsimile, provided that the sender receives and retains confirmation of successful transmittal to the recipient. Such notices shall  be effective on the  date. indicated in such confirmation.

12. INDEPENDENT CONTRACTOR DXFactor will be considered, for all purposes, an independent contractor. Nothing in this Agreement will be construed to make DXFactor (or any of its shareholders, directors, employees and agents and other personnel) an agent, employee, joint venture, partner or legal representative of Client.

13. AMENDMENTS; MODIFICATIONS. This Agreement or any SOW may not be amended or modified except in a writing duly executed by both parties.

14. ASSIGNMENT; DELEGATION. Neither party may assign any of its rights or delegate any of its duties hereunder without the prior written consent of the other party, and, absent such consent, any attempted assignment or delegation shall be null, void and of no effect. Notwithstanding the foregoing, Client is entitled to assign the Agreement, in whole or in part, to any affiliate or to any entity to which it sells, transfers, conveys, assigns, or leases all or substantially all of its rights and assets and DXFactor hereby consents to such assignment.

15. SEVERABILITY. If any provision of this Agreement or SOW is invalid or unenforceable for any reason in any jurisdiction, such provision shall be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement or SOW shall not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever

16. WAIVER No waiver under this Agreement shall be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of such waiver is sought. Any such waiver shall constitute a waiver only with respect to the specific matter described therein and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time. Any delay or forbearance by either party in exercising any right hereunder shall not be deemed a waiver of that right.

17. FORCE MAJEURE No failure, delay or default in performance of any obligation of a party to this Agreement shall constitute an event of default or breach of the Agreement to the extent that such failure to perform, delay or default arises out of a cause existing or future, that is beyond the reasonable control of such party, including without limitation, action or inaction of a governmental agency , civil or military authority, pandemic or epidemic event, fire, strike, lockout or other labor dispute, inability to obtain labor or materials on time, flood, war, riot, theft, earthquake or other natural disaster (“Force Majeure Event”). The party affected by such Force Majeure Event shall take all reasonable actions to minimize the consequence of any Force Majeure Event. Despite the preceding sentence, a Force Majeure Event does not exclude any obligation by either the performing party or the non-performing party to make any payment required under this Agreement.

18. GOVERNING LAW. This Agreement shall be governed by and interpreted in accordance with the laws of the commonwealth of Virginia, without regard to conflicts of law principles thereof. For purposes of all claims brought under this Agreement, each of the parties hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts of the commonwealth of Virginia located in Fairfax county.

19. DISPUTE  RESOLUTION The parties agree that, prior to initiating any formal dispute resolution, they will attempt to resolve any dispute informally by having a senior executive from each party work together to address any issues and escalate any issues as necessary within their respective companies as reasonably required. The prevailing party in any proceeding or lawsuit shall be entitled to recover its costs and expenses incurred in such proceeding, including without limitation, reasonable attorneys’ fees, expert witness fees, and court or arbitration costs.

20. ENTIRE AGREEMENT. This Agreement and the Statement(s) of Work submitted hereunder constitute the entire agreement between the parties and supersede any prior or contemporaneous communications, representations or agreements between the parties, whether oral or written, regarding the subject matter of this Agreement. The terms and conditions of this Agreement may not be changed except by an amendment

21. 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.

22. COUNTERPARTS. This Agreement may be signed in counterparts which may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act or other applicable law) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.