Professional Services Terms & Conditions

THESE TERMS AND CONDITIONS (“TERMS”) APPLY TO ALL SALES MADE BY (“BLUE MANTIS”), A DELAWARE CORPORATION WITH OFFICES LOCATED AT 2 INTERNATIONAL DRIVE, SUITE 260, PORTSMOUTH, NH 03801 TO YOU (THE “CUSTOMER”).  IF BLUE MANTIS AND THE CUSTOMER HAVE ENTERED INTO A WRITTEN AGREEMENT THAT GOVERNS THE SALE OF SERVICES THEN THESE TERMS DO NOT APPLY TO SERVICES. IF BLUE MANTIS AND THE CUSTOMER HAVE ENTERED INTO A WRITTEN AGREEMENT THAT GOVERNS THE SALE OF PRODUCTS AND SERVICES THEN THESE TERMS DO NOT APPLY. THE CUSTOMER AND BLUE MANTIS ARE INDIVIDUALLY A “PARTY” AND TOGATHER THE “PARTIES” TO THESE TERMS.

1. ORDERS.   Blue Mantis may offer to sell Customer third party manufactured hardware or software licenses or Third-Party Maintenance (“Products”) and/or Services as identified in a Blue Mantis-issued quotation (“Quote”) or Statement of Work (“SOW,” as defined in Section 13).  Customer may accept Blue Mantis’s Quote by issuing a responsive purchase order or acceptance of Blue Mantis’ SOW by executing the SOW, and each constitutes an “Order.”  All Quotes, SOWs, and Orders are exclusively governed by these Terms, and any terms and conditions or other provisions on a Customer issued purchase order or other document(s) are considered material alterations to these Terms and are expressly rejected.   

2. PRICES; TAXES. Quotes and SOWs are void if Customer does not accept them within 30 days of issue date.  Prices in a Quote or SOW do not include applicable taxes, freight, or handling charges which shall be separately specified on each invoice as applicable.  Any Products or Services ordered in one country for delivery to another country may be subject to value added tax or similar indirect sales taxes that are incurred by Blue Mantis and for which Customer is responsible and agrees to reimburse Blue Mantis. 

3. PAYMENT; INVOICING. Customer agrees to pay Blue Mantis in full 30 days from date of invoice without offset or deduction.  Blue Mantis issues invoices (i) for Products upon shipment, (ii) for managed services and Third-Party Maintenance at the commencement of the Service period, and (iii) for all other Services at the time of performance or as otherwise specified in a SOW.  Undisputed past due invoices are subject to a finance charge of the lesser of 1.5% per month or the maximum allowed by law.  Blue Mantis may cease the performance of Services or delivery of Products if any undisputed invoice remains past due five (5) days after Blue Mantis notifies Customer.  Customer must notify Blue Mantis in writing within thirty (30) calendar days from the date of invoice of any disputed invoice amount.  The parties will promptly act in good faith to resolve the dispute.  In the event the parties are unable to resolve the dispute it will be submitted to arbitration as specified in these Terms.  The Customer shall pay any disputed amounts finally awarded by arbitration and all related out-of-pocket expenses incurred by Blue Mantis, together with simple interest thereon at the applicable prejudgment interest rate.  All such charges will be payable net ten (10) days from the invoice date following any related arbitration award.     

4. TERMINATION. Orders may not be cancelled or terminated without Blue Mantis’s consent; however, either Party may terminate any Order (i) if the other Party fails to cure a material breach within 30 days of receipt of written notice specifying the breach or (ii) by immediate written notice to the other Party upon the other Party becoming insolvent, or the initiation of any proceeding by or against it under bankruptcy or insolvency laws.  Termination of an Order or SOW will not limit either Party from pursuing any other remedies, including injunctive relief, nor will termination relieve Customer’s obligation to pay for all Products or Services delivered and/or any actual pre-approved, third-party costs Blue Mantis accrues on Customer’s behalf prior to the termination date.

5. REPRESENTATIONS AND WARRANTIES. The Parties agree to the following representations and warranties upon entering into these Terms or any Order thereunder:

• Each Party represents and warrants that (i) the Party has the necessary authority and approvals to enter into these Terms or an Order, as the case may be, and be bound thereby, and (ii) the Party is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation or organization, is qualified to do business and is in good standing as a foreign corporation or legal entity in each jurisdiction in which the conduct of its business or the ownership of its properties requires such qualification, and failure to have such would prevent such Party from performing its obligations under these Terms.
• For any Order for Products, Blue Mantis further represents and warrants, and Customer agrees, as follows: All Products are subject to applicable manufacturer warranties which Blue Mantis transfers to Customer as legally permissible.  All Product warranties are void if the Product is modified by any party other than Blue Mantis or its authorized agent or used in a manner that is contrary to the manufacturer instructions.  BLUE MANTIS MAKES NO WARRANTY AS TO THE PERFORMANCE OF ANY PRODUCTS.  CUSTOMER UNDERSTANDS AND AGREES THAT BLUE MANTIS IS NOT RESPONSIBLE FOR AND WILL HAVE NO LIABILITY FOR HARDWARE, SOFTWARE, OR OTHER ITEMS OR ANY SERVICES PROVIDED OR MANUFACTURED BY ANY PERSONS OTHER THAN BLUE MANTIS.  BLUE MANTIS FURTHER MAKES NO WARRANTY THAT PRODUCTS WILL DETECT OR PREVENT ANY SECURITY VULNERABILITIES AND/OR ATTACKS OR THAT THEY WILL MEET CUSTOMER’S SPECIFIC SECURITY REQUIREMENTS.  EXCEPT AS MAY BE OTHERWISE SET FORTH ELSEWHERE HEREIN, ALL PRODUCTS AND SERVICES ARE PROVIDED “AS IS” AND BLUE MANTIS DISCLAIMS ANY OTHER WARRANTIES AND REMEDIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, SUITABILITY, AND FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, AND NON-INFRINGEMENT.

• For any Order for Services, the Parties further represent and warrant as follows:
  • Each Party, for itself, that it complies and shall comply with relevant, applicable laws and regulations.
  • Customer, that (1) Customer is and will be in compliance with all applicable laws and regulations relating to the employment and work conditions of Staffing Personnel; if Customer provides or makes available software for Blue Mantis’s use in providing the Services, that Customer has and will secure any necessary rights or licenses to permit or allow Blue Mantis to use any such software.
  • Blue Mantis, that (1) any Services to be provided under an Order will be at a professional level of quality, in accordance with accepted industry standards applicable to information technology professions, in a non-negligent manner, and conforming to the specifications and service levels set forth in the applicable Order; (2) Blue Mantis shall secure and maintain all applicable licenses, permits, orders, consents, government or municipal approvals, and all other authorizations reasonably required to provide the Services; and (3) if Customer provides or makes available software for Blue Mantis’s use in providing the Services, Blue Mantis will use such software only in the performance of Services for Customer.

EXCEPT AS MAY BE OTHERWISE SET FORTH ELSEWHERE HEREIN, THE SERVICES SHALL BE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.  FURTHER, BLUE MANTIS DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS THAT ANY SOFTWARE DEVELOPED THROUGH THE PERFORMANCE OF THE SERVICES WILL BE FREE FROM BUGS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR-FREE OR MAKE ANY OTHER REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF SUCH SOFTWARE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.  CUSTOMER UNDERSTANDS AND AGREES THAT BLUE MANTIS IS NOT RESPONSIBLE FOR AND WILL HAVE NO LIABILITY FOR HARDWARE, SOFTWARE, OR OTHER ITEMS OR ANY SERVICES PROVIDED OR MANUFACTURED BY ANY PERSONS OTHER THAN BLUE MANTIS.

6. CONFIDENTIALITY. “Confidential Information” includes information that is labeled confidential or would reasonably be considered confidential, and does not include information that (a) is or becomes a part of the public domain through no act or omission of the receiving party; or (b) was in the receiving party’s lawful possession prior to the disclosure and not subject to nondisclosure requirements; or (c) was lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party.  Notwithstanding the foregoing, the parties agree that Blue Mantis’s Services and related specifications, both current and future, are all deemed to be Blue Mantis’s Confidential Information.  The parties further agree that all contents of Customer’s network data are deemed Customer’s Confidential Information.  Each Party agrees not to disclose Confidential Information to any third party or to use each other’s Confidential Information for any purpose other than the implementation of these Terms.  Both Parties also agree to use the same degree of care that each Party uses to protect its own confidential information.  All Confidential Information will be returned immediately to the disclosing party or certified as destroyed, after the receiving party’s need for it has expired or upon request of the disclosing party or termination or expiration of these Terms.  In addition, the receiving party may disclose such Confidential Information when required to do so by a court of competent jurisdiction, by any governmental agency having supervisory authority over the business of the receiving party and/or its affiliates, as the case may be, or by any administrative body or legislative body (including a committee thereof) with jurisdiction to order the receiving party to divulge, disclose, or make accessible such information; provided, further, that in the event that the receiving party is ordered by any such court or other government agency, administrative body, or legislative body to disclose any Confidential Information, the receiving party shall promptly notify the disclosing party of such order so the disclosing party may, at its own expense, seek an appropriate protective order; and further, the receiving party shall (i) at the written request of the disclosing party, seek to obtain, at the sole expense of the disclosing company, such confidential treatment as may be available under applicable laws for any information disclosed under such order, and (ii) reasonably cooperate with the disclosing party, at the disclosing party’s expense, if the disclosing party chooses to seek an appropriate protective order.

7. LIMITATION OF LIABILITY. EACH PARTY’S LIABILITY UNDER THESE TERMS OR OTHERWISE IS LIMITED TO THE AMOUNTS PAID OR COMMITTED TO BE PAID BY CUSTOMER UNDER THE ORDER COVERING THE SPECIFIC SERVICES, STAFFING PERSONNEL, AND/OR DELIVERABLES WHICH GIVE RISE TO SUCH DAMAGES, OR IN THE EVENT THERE IS NO OPEN ORDER, ONE THOUSAND DOLLARS (THE “ORDINARY CAP”); PROVIDED, HOWEVER, THAT IN CASES OF BREACH OF CONFIDENTIALITY (SECTION 6) OR INDEMNIFICATION (SECTION 19), THE LIMIT OF A PARTY’S LIABILITY SHALL INCREASE TO THE LESSER OF (i) THREE TIMES THE ORDINARY CAP AND (ii) FIVE HUNDRED THOUSAND DOLLARS (THE “SUPERCAP”).  IN NO EVENT WILL A PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGE, LOST PROFITS, OR LOST DATA, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STORAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF DATA OR INTERRUPTION OF DATA PROCESSING OR INFORMATION SYSTEMS, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES EVEN IF THE PARTY HAS BEEN INFORMED OF THAT POSSIBILITY.  THIS LIMITATION OF LIABILITY AND EXCLUSION OF INDIRECT DAMAGES WILL APPLY EVEN IF THE EXCLUSIVE REMEDY FAILS OF ITS ESSENTIAL PURPOSE.  SOME STATES MAY NOT RECOGNIZE A DISCLAIMER OR LIMITATION OF WARRANTIES AND/OR LIMITATION OF LIABILITY, SO THE ABOVE DISCLAIMERS MAY NOT APPLY.  CUSTOMER MAY ALSO HAVE DIFFERENT AND/OR ADDITIONAL RIGHTS AND REMEDIES THAT VARY FROM STATE TO STATE.

8. SOFTWARE LICENSING AND USE. Any third-party software, whether supplied as a Product or made available by Customer for use as a part of the Service, is subject to the license terms provided with it, and all software license terms are established directly between Customer and the software licensor.  Blue Mantis is not a party to any such software license and makes no warranties or representations related to the software.

9. SHIPPING; DELIVERY. Customer is responsible for all Product shipping and handling charges which will be separately specified on the invoice.  Delivery of Products to locations outside of the USA may be subject to additional fees specified on a Quote.  Risk of loss to Products passes to Customer upon delivery of the Product to the carrier.  Title to Products passes to Customer when Blue Mantis receives payment in full of the Product purchase price.  Customer acknowledges the applicable manufacturer or distributor controls shipment, and any shipment dates that Blue Mantis provides are estimates only.  Blue Mantis will not be liable for any delay in delivery or failure to give notice of such delay. Unless otherwise specified on an Order, the Customer will accept and pay for partial shipments of Products. 

10. RETURN POLICY. Customer will notify Blue Mantis of any discrepancy in shipment quantity or type within ten (10) days of receipt and Blue Mantis will promptly remedy any such issues at its cost.  Correctly delivered Products may not be returned unless Blue Mantis approves it and any such returns (i) are subject to the manufacturer’s restocking fees and related charges, (ii) must be in the original unopened shipping cartons, undamaged, unused, and unaltered, and (iii) specify a Return Material Authorization (“RMA”) number. Customer will comply with manufacturer’s RMA requirements.

11. THIRD-PARTY MAINTENANCE. “Third-Party Maintenance” is Product support service delivered by a third party that Blue Mantis resells to Customer.  Third-Party Maintenance is subject to the service descriptions, terms, and conditions identified by the applicable third-party provider.  Blue Mantis is not a party to any such third-party terms and conditions and is not responsible for delivery of Third-Party Maintenance.  For clarity, and the avoidance of doubt, Third-Party Maintenance is not a Service.

12. SERVICES DESCRIPTIONS. “Services” are those technology, consulting, staffing, and/or support services that Blue Mantis performs under these Terms.  The terms of Blue Mantis’s service description(s) as may be referenced in a SOW are incorporated by reference into these Terms.  Any Services provided and charged for based on labor time and materials supplied basis (a) carry a 4-hour minimum charge, (b) are estimated for budgeting purposes and not performed by a fixed deadline or for a set charge, and (c) are considered accepted at the time of delivery.  Blue Mantis will comply with Customer’s published and reasonable standard physical safety and physical security policies when performing Services on Customer’s premises.

13. STATEMENTS OF WORK. Services may require a SOW which is a contract signed by the parties, governed by these Terms and specifying the delivery and pricing details of a particular Service.

14. SOW DELIVERABLES. For any deliverables identified in a SOW and provided to Customer (or a corrected version of the same), Customer will have ten (10) business days from delivery to notify Blue Mantis in writing if a deliverable fails to comply with the applicable acceptance criteria specified in the SOW (“Acceptance Criteria”).  Customer’s written notice shall itemize how the deliverable fails to meet the Acceptance Criteria (“Failure”).  Blue Mantis will use commercially reasonable efforts to promptly remedy any Failure that is confirmed by Blue Mantis and provide a corrected deliverable to Customer; provided, however, that if any party other than Blue Mantis or it authorized agent  modifies a deliverable, such deliverable shall be deemed automatically accepted and any Blue Mantis efforts to correct the Failure will be on agreed terms.  A SOW may specify alternate acceptance period(s) or terms which will supersede these terms.  If no Acceptance Criteria are specified in a SOW, then the corresponding deliverable is deemed accepted at time of delivery.

15. STAFFING PERSONNEL. Blue Mantis may obtain and assign certain employees, consultants, or contractors with skills Customer requests to do work under Customer’s supervision (“Staffing Personnel“) as part of providing Services under an Order.  In such cases, Blue Mantis will ensure Staffing Personnel have no right to participate in any Customer employee benefit plans and that Services supplied by them will comply with these Terms.  Customer may use Staffing Personnel only in the capacities specified for them in the applicable Order.  At the Customer’s reasonable request, Blue Mantis will remove any Staffing Personnel from assignment.

16. SCREENING. Blue Mantis’s screening process for employees or contractors includes a criminal background check performed by a third party.  Screening procedures used by Blue Mantis include the following when allowed by applicable law:

• 7-Year Criminal History Search – County/ Statewide
• 7-Year Criminal History Search – Federal
• Social Security Validation
• Education Verification – highest degree/ most recent degree claimed
• Employment Verification – Last three (3) employers
• Consent Based Social Security Number Verification (CBSV)

Blue Mantis will reasonably comply with Customer’s specified screening criteria and will notify Customer if such compliance will cause Blue Mantis to incur added costs which Customer agrees to pay.

17. CUSTOMER OBLIGATIONS. Customer’s timely, complete, and accurate provision of, and access to, Customer’s equipment, services, facilities, personnel, third party software, and/or information may be necessary for Blue Mantis to perform Services.  Blue Mantis will inform the Customer of Customer’s failure to provide such goods or assistance, and any resulting inability to perform Services will be excused until Customer cures the failure.  Any such failure may also result in increased charges which Blue Mantis will confirm with the Customer.

18. DATA PRIVACY. Blue Mantis and Customer agree that, in order for Blue Mantis to provide the Services or for Customer to receive the Services, applicable law may require Blue Mantis and Customer to enter into a Data Privacy Addendum, data processing agreement, or similarly styled agreement necessary to govern a controller-processor or business-service provider relationship.  If the Parties have not previously entered into a data privacy addendum to these terms or a data processing agreement, then if either Party reasonably believes that such agreement is necessary, the Parties agree to negotiate in good faith to enter into such data privacy addendum or a data processing agreement.

19. INTELLECTUAL PROPERTY. Upon payment for the associated Services, Customer shall own all Works and the entire right, title, and interest therein, shall be exclusively vested in Customer as works made for hire and made in the course of the Services rendered.  As used herein, “Works” are any written or computer coded materials, systems design, disks, tapes, drawings, reports, specifications, notebooks, recommendations, data, and memoranda including any modifications to Customer’s existing techniques, software, processes, methodologies, or other intellectual property, any of which are first created specifically for Customer as a result of Services.  If title to any Works may not by operation of law vest in Customer, Blue Mantis hereby irrevocably assigns the sole right, title, and interest in such Works and its proprietary rights therein to Customer.  Blue Mantis agrees to execute papers which the Customer reasonably may require to secure and maintain Customer’s rights related to the Works.  Notwithstanding the foregoing, Blue Mantis retains exclusive and unrestricted ownership of any Blue Mantis IP relating to the Services and/or supplied with any Works, and Blue Mantis grants Customer a worldwide, perpetual, royalty-free, and non-exclusive right and license to use such Blue Mantis IP as part of the Works; provided, however, for subscription based Services, such license shall expire at the end of the applicable term.  “Blue Mantis IP” includes (i) “Prior Elements” which are pre-existing methodologies, tools, techniques, software, or intellectual property elements that Blue Mantis owns, (ii) “Enhancements” which are modifications to Prior Elements made while performing Services, and (iii) “Retained IP” which are methodologies, tools, techniques, software, or other intellectual property developed while performing Services and that Blue Mantis may use in the course of its business.  In no event will Enhancements or Retained IP contain any of Customer’s specific data, processes, or information.  This license grant is non-transferable unless Blue Mantis authorizes it in writing.  Customer agrees to protect Blue Mantis IP in the same manner Customer protects its own similar intellectual property which shall be no less than a reasonable standard of protection.  If any element of software owned or licensed by a third party is a part of any Works, then notwithstanding the foregoing terms, the usage and ownership rights related to such element are governed by the license applicable to such software.

20. INDEMNIFICATION. Each Party (the “Indemnifying Party”) will defend, indemnify, and hold harmless the other Party and its parents, subsidiaries, and affiliates, and the officers, directors, and employees, of the foregoing (an “Indemnified Party”) from and against any losses or expenses (including attorney’s fees) whatsoever arising out of or related to (i) the Indemnifying Party’s breach of its obligations under Section 6 (Confidentiality); (ii) a third party’s claim that information, design, specification, instruction, software, data, or material that the Indemnifying Party furnishes as part of the Service and used by an Indemnified Party in connection with the Services infringes an intellectual property right, copyright, or patent; (iii) a third party’s claim alleging such facts that, if true, would constitute a material breach of a representation in these Terms or a breach of obligations under Section 6 (Confidentiality) on the part of the Indemnifying Party (an “Indemnified Claim”).  Customer will defend and indemnify Blue Mantis against a claim that information, design, specification, instruction, software, data, or material that the Customer furnishes (“Customer Material”) and Blue Mantis uses in connection with the Services infringes an intellectual property right, copyright or patent. The above indemnifications apply provided that: (a) the Indemnified Party notifies the Indemnifying Party in writing within 30 days of the claim; (b) the Indemnifying Party has sole control of the defense or settlement of the claim; and (c) the Indemnified Party provides the Indemnifying Party with the assistance, information, and authority reasonably necessary to perform the above; reasonable out-of-pocket expenses incurred by the Indemnified Party in providing such assistance will be reimbursed by the Indemnifying Party. This foregoing shall not apply to any Claim alleging infringement of an intellectual property right, copyright, or patent if alleged infringement was the result of (x) an Indemnified Party’s use of a superseded or altered release of some or all of the information, design, specification, instruction, software, data, or material if infringement would have been avoided by the use of a subsequent unaltered release provided by the Indemnifying Party or (y) an Indemnified Party’s alteration, modification, or combination of some or all of the information, design, specification, instruction, software, data, or material that, if not so altered, modified, or combined would not have been infringing.  In the event of a Claim alleging infringement of an intellectual property right, copyright, or patent for which Blue Mantis is the Indemnifying Party, Blue Mantis may, at its expense, (a) modify the allegedly infringing information, design, specification, instruction, software, data, or material to be non-infringing or (b) obtain a license for the Indemnified Party to continue using the allegedly infringing information, design, specification, instruction, software, data, or material or (c) to require return of the infringing  Blue Mantis Material and grant Customer a refund of the fees paid for it.  Any such refunded fees will be as depreciated on a 60-month straight line basis from the date of delivery of the Blue Mantis Material.  If Customer has authorized Blue Mantis to use or has supplied Blue Mantis with Customer Material that is the subject of a claim then Blue Mantis may terminate the applicable SOW(s) upon written notice to Customer and Customer shall pay Blue Mantis for the Services rendered through the date of such termination and any early termination charges that may be specified in a SOW.   In the event of a Claim alleging a Product infringes an intellectual property right, copyright, or patent, Customer will coordinate directly with the Product’s manufacturer or licensor to resolve the Claim, and Customer agrees that Blue Mantis has no liability or responsibility related to any such claim.  In the event of any other Claim, the Indemnified Party must (i) provide the Indemnifying Party with written notice of the Claim promptly after the Indemnified Party becomes aware of such Claim; (ii) tender defense of the Claim, and cede complete control of defense of the Claim, to the Indemnifying Party; and (iii) reasonably cooperate in the Indemnifying Party’s defense of the Claim as the Indemnifying Party may request, at the Indemnifying Party’s expense.  The Indemnifying Party may not, without the Indemnified Party’s written consent (which shall not be unreasonably denied), settle, compromise, or resolve any Claim if such settlement, compromise, or resolution would require payment by an Indemnified Party, impose any ongoing obligation upon an Indemnified Party, or require an Indemnified Party to make any representation, warranty, or covenant in connection or as part of such settlement, resolution, or compromise.  If the Indemnified Party fails to comply with this section in connection with a Claim, then the Indemnified Party waives any right to defense or indemnification of the Claim.  Notwithstanding the foregoing, the Indemnified Party may participate in a Claim through a lawyer of its own choosing, and at its own expense, and not subject to indemnification or repayment by the Indemnifying Party.

21. NO SOLICITATION. During Blue Mantis’s performance of Services and for six (6) months thereafter, neither Party shall solicit for employment or retention as an independent contractor any employee or former employee or Staffing Personnel of the other who provided or received any Services.  “Solicit” shall not be deemed to include advertising in newspapers, Party sites, or trade publications available to the public. 

22. ASSIGNMENT. Customer may not assign these Terms nor any of its rights or obligations without Blue Mantis’s written consent; however, either Party may upon notice assign the Agreement to a wholly-owned subsidiary or surviving entity in a merger, acquisition, or consolidation.

23. WAIVER. Either Party’s delay or failure to exercise a right or remedy or to insist upon strict adherence to any term will not constitute a waiver thereof nor any such failure to so insist deprive that Party of the right thereafter to insist upon strict adherence to that term or any other term.

24. FORCE MAJEURE. Blue Mantis will not be in default or otherwise liable for any delay in or failure of its obligations or performance where such delay or failure arises by reason of any Act of God, or act of governmental body, acts of the common enemy, the elements, strikes or labor disputes, cybercrime; cyberattacks or hacking; malware, ransomware, or other virus-related incidents that circumvent then-current anti-virus or anti-malware software, or other causes beyond Blue Mantis’s reasonable control.

25. DISPUTES AND ARBITRATION. The Parties, the Parties agree to seek to resolve the dispute in good faith, and if they are unable to do so after thirty (30) days, either Party may seek to resolve it by arbitration.  Express as explicitly provided for in these Terms, the arbitrator is not authorized to award, nor shall any party be entitled to receive, punitive, incidental, consequential, exemplary, or special damages, including damages for lost profits.  Notwithstanding the foregoing obligation to arbitrate disputes, each party shall be entitled to seek temporary and/or permanent injunctive or other equitable relief at any time in or from a court of competent jurisdiction in the event that the party requires such protection to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights or to preserve the status quo ante.  In any circumstances where this Section permits either a Party to litigate any dispute in court (such as to seek injunctive or equitable relief as set forth in this Section or to confirm or vacate an arbitration awards), then the exclusive forum for any judicial proceeding shall be a state or federal court located in Delaware and waives any venue- or forum-based defense to the jurisdiction of those courts, including forum non conveniens and personal jurisdiction.

26. GOVERNING LAW. These Terms and all Orders will be governed by the laws of the state of Delaware specifically including its statutes of limitation and repose, without reading to any choice of law or conflict of laws provision or rules that may apply.

27. INSURANCE. Blue Mantis maintains: (i) Worker’s Compensation statutory coverage and employers’ liability; and (ii) Commercial General Liability insurance with the following limits: Bodily Injury and Property Damage $1,000,000 per occurrence and in aggregate.  Blue Mantis will provide a certificate of insurance upon Customer’s request.  Notwithstanding the foregoing, and except as set out in Section 22, Customer shall bear full responsibility and liability for any losses, damages, claims, fines, assessments, costs, and/or expenses associated with the action or inaction of Customer and/or its agents, contractors, employees, and representatives, or Customer’s breach of any of its obligations and responsibilities under these Terms.

28. FCPA; EXPORTS. With respect to any Order, Customer agrees to comply with (i) the U.S. Foreign Corrupt Practices Act (15 U.S.C. § 78(dd)(i) et seq.), and (ii) all relevant U.S. export and sanctions laws.

29. NOTICE. Except as may be provided otherwise herein, any notices provided hereunder will be in writing and delivered by (i) first class mail, postage prepaid, or (ii) overnight delivery by a courier service (providing, however, that proof of delivery is obtained).  Notices will be sent to the following addresses, or to such successor addresses as a Party may provide to the other in writing:

If to Customer:                    The name and address specified on the Order.

If to Blue Mantis:                Blue Mantis, Inc.
Attn:  Chief Financial Officer
Two International Drive, Suite 260
Portsmouth, NH 03801
United States of America

30. SURVIVAL. Any sections of these Terms, which by their nature are intended to extend beyond completion or termination of the Order, will remain in effect until fulfilled.

31. RELATIONSHIP. Blue Mantis is an independent contractor.  Nothing in these Terms creates a partnership, joint venture, employer and employee, or agency relationship between the Parties, and each Party will be solely responsible for payment of all compensation to its employees, federal and state income tax withholding, Social Security taxes, and unemployment insurance applicable to such personnel.

32. ORDER OF PRECEDENCE. In the event of any inconsistency or conflict between these Terms and the terms of a SOW the terms of the SOW will prevail.