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**3. VENDOR OBLIGATIONS; WARRANTIES AND REPRESENTATIONS**     3.1 Vendor represents and warrants to immixTechnology the following: A. The Products will perform substantially in accordance with the Documentation andother specifications published by Vendor.  B. Vendor is the owner of the Products or otherwise has the unencumbered right toconvey to immixTechnology the rights granted under this Agreement and to perform itsother obligations hereunder.  C. Vendor shall at all times during the term of this Agreement comply with theFederal Acquisition Regulation (FAR) clauses required of all federal governmentpurchases of commercial products enumerated in this Agreement. The following FARclauses are hereby incorporated by reference, with the same force and effect as if theywere given in full: (i) 52.222-26, Equal Opportunity; (ii) 52.222-35, Equal Opportunityfor Special Disabled Veterans, Veterans of the Vietnam Era and Other Eligible Veterans;(iii) 52.222-36, Affirmative Action for Workers with Disabilities; (iv) 52.225-5 TradeAgreements Act; (v) 52.249-2, Termination for Convenience of the Government(Fixed-Price); and (vi) 52.249-8, Default (Fixed-Price Supply and Service). With therespect to the FAR clauses incorporated in this Agreement, the term “contract” shall bereplaced with “this Agreement”, the term “Contractor” shall be replaced with “Vendor”,and the terms “Government” and “Contracting Officer” shall be replaced with“immixTechnology.” Notwithstanding the foregoing, immixTechnology may terminate acontract or order for Products for convenience only to the extent that the GovernmentCustomer has lawfully terminated or cancelled its contract or order for Products.  D. Vendor shall provide information about Product features to address theaccessibility standards defined in Section 508 of the Rehabilitation Act, as amended,and all regulations issued in connection with Section 508.  E. EXCEPT FOR THE WARRANTIES PROVIDED IN THIS AGREEMENT AND THE APPLICABLE END USERLICENSE AGREEMENT OF VENDOR , VENDOR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS ANDIMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OFMERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, CUSTOM,TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, OR ANY WARRANTIES ARISINGUNDER ANY STATUTE, COURSE OF DEALING OR OTHERWISE.**4. LICENSE GRANTS AND INTELLECTUAL PROPERTY**     4.1 Subject to the terms and conditions of this Agreement, Vendor grants to immixTechnology anon-exclusive license during the term of this Agreement to use Vendor’s logos and trademarksassociated with the Products (“Trademarks”) to promote and market the Products to GovernmentCustomers, provided that immixTechnology’s use of the Trademarks is in accordance with Vendor’sthen-current trademark usage guidelines. immixTechnology acknowledges and agrees that Vendor ownsthe Trademarks and that any and all goodwill derived from the use of the Trademarks byimmixTechnology hereunder inures solely to the benefit of Vendor. immixTechnology hereby assignsto Vendor all right, title and interest in the Trademarks, together with the goodwill attachingthereto, that may inure to it in connection with this Agreement or from its use of the Trademarkshereunder. immixTechnology will at no time contest or aid in contesting the validity or ownershipof any Trademark or take any action in derogation of Vendor’s rights therein, including withoutlimitation applying to register any trademark, trade name, service mark or other designation thatis confusingly similar to any Trademark. immixTechnology agrees not to attach any additionaltrademarks, trade names, logos or designations to any Product.     4.2 immixTechnology acknowledges and agrees that the Products contain open source programs andother software that is proprietary to Vendor and/or its licensors, and that immixTechnology’sappointment hereunder only grants immixTechnology a limited right and license to sublicense suchsoftware as part of the Products and does not transfer any right, title or interest in or to anysoftware, or any intellectual property rights therein, to immixTechnology, Government Customers orany other third party. Vendor owns all right, title and interest in all
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software that is includedin the Products, excluding the open source programs and the software of its licensors. Allreferences in this Agreement to the “purchase” of software shall mean the obtaining of a license touse software, and all references to “sale” or “selling” of software shall mean the granting of alicense to use software. Any rights in software not granted herein are hereby expressly reservedby Vendor.     4.3 Except for the open source programs included in the Products, immixTechnology acknowledgesthat the Products, including the structure, organization and design of hardware, firmware andsoftware included as part of the Products constitute proprietary and valuable trade secrets (andother moral rights and intellectual property rights) of Vendor or its licensors. immixTechnologywill not attempt, and will use best efforts to prevent Government Customers, employees andcontractors from attempting to: (i) modify, translate, reverse engineer (except to the limitedextent permitted by law), decompile, disassemble, create, derivative works based on, sublicense, ordistribute the software, hardware or firmware or the accompanying documentation; (ii) rent or leaseany rights in the software, hardware or firmware or accompanying documentation in any form to anyperson; or (iii) remove any proprietary notice, labels, or marks on the software or firmware,documentation, and containers. immixTechnology acknowledges and agrees that Vendor providessufficient information including access on its website to source code for the original open sourceprograms included in the Products.     4.4 immixTechnology agrees to comply with the open source requirements in this Agreement andto the open source license applicable to each open source program that is included in a Product.immixTechnology further agrees and acknowledges that rights attached to the open source programsare separate from and do not depend on the open source programs being part of a Product. The opensource programs are distributed under the open source license applicable to such open sourceprograms and only such license, with no additional license conditions. Copies of the applicableopen source license must be included in the packaging for the Product so that Government Customersare aware of their rights to use, copy, modify and distribute the open source programs.     4.5 All Products will be shipped to Government Customers with all proprietary notices,warranties and disclaimers and license agreements intact as shipped from Vendor, including withoutlimitation, all end user purchase and license agreements and the open source licenses for the opensource programs included in the Products.**5. ORDER PROCEDURE; SHIPMENT**     5.1 There shall be no minimum quantity for Orders, nor shall there be a minimum or requiredproduct mix. There shall be no initial stocking order required.     5.2 Vendor shall accept all Orders that are issued by immixTechnology in accordance with theterms and conditions of this Agreement. An Order shall be deemed accepted when delivered unlessthe Order does not conform to the terms and conditions of this Agreement and Vendor so notifiesimmixTechnology in writing within two Business Days of receipt of such Order and indicates thedeficiency.     5.3 Unless immixTechnology expressly agrees in writing, the terms and conditions of thisAgreement and of the applicable immixTechnology written Order shall apply to each Order accepted orshipped by Vendor hereunder. immixTechnology may cancel without penalty or cost any Order forwhich the underlying order by the Government Customer has been canceled and immixTechnology mayreturn for a full refund and without penalty any Products received by immixTechnology in connectionwith such Order where the Government Customer has exercised its unilateral right to terminate anycontract or order for convenience. Vendor shall be entitled to any associated termination forconvenience charges to the extent recovered from the Government Customer.     5.4 Vendor reserves the right to cancel any Orders, or to refuse or delay shipment thereof, ifimmixTechnology: (i) fails to make any payment as provided herein or under such other terms ofpayment as the parties may agree upon, except for disputed items, as provided in Section 7.4herein; or (ii) is in material breach of this Agreement.     5.5 Vendor shall ship all Products F.O.B. Vendor’s manufacturing plant to designated customerdelivery point. Risk of loss shall pass to immixTechnology upon Vendor’s delivery of theProducts to Vendor’s designated carrier.     5.6 Vendor shall notify immixTechnology of Vendor’s good faith estimate of the date on whichOrders will be delivered. In the event Vendor is unable to deliver immixTechnology’s entire Orderaccording to the delivery schedule, immixTechnology may, at its sole option, (i) cancel the Orderwithout penalty, or (ii) accept partial delivery, in which event such delivery shall be separatelyinvoiced and paid for. If immixTechnology accepts partial delivery, it may cancel the remainder ofits Order at any time at least five days prior to Vendor’s shipment of the remaining portion.
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**6. UPGRADES; DISCONTINUED PRODUCTS; DEFECTIVE PRODUCTS**     6.1 Vendor shall notify immixTechnology not less than 30 days prior to the first commercialshipment of any new product or upgrade or update of an existing Product (an “Upgrade”). Uponcommercial availability of such new product or Upgrade, it shall be deemed added to Exhibit A andit shall be deemed a Product for all purposes of this Agreement. Vendor shall use commerciallyreasonable efforts to provide immixTechnology with sufficient information and training to enableimmixTechnology to Sell such Upgrade to Government Customer immediately upon its commercialavailability.     6.2 Vendor shall notify immixTechnology not less than 30 days prior to the discontinuation ofany existing Product. For purposes of this Section 6.2, a discontinuation of a Product versionshall take place at the time of release of any corresponding Upgrade or at such time as Vendor’smanagement makes the decision that an existing Product will no longer be sold or licensed and thatthere will not be a upgrade for such Product. The discontinued Product shall be deemed deletedfrom Exhibit A and, in the case of Upgrades, the latter shall automatically replace any suchcorresponding discontinued Product.     6.3 immixTechnology may return to Vendor at Vendor’s expense and Vendor shall accept anydefective or damaged Product units returned by Government Customers within the terms of Vendor’swarranty. Any such return need not be accompanied by an Order.     6.4 With respect to all Products returned to Vendor in accordance with this Section 6: (i)immixTechnology agrees to comply with Vendor’s reasonable policies concerning return authorizationprocedures, including, if necessary, obtaining a return authorization number from Vendor’s shippingdepartment prior to returning the Product; and (ii) Vendor agrees to use commercially reasonableefforts to promptly approve and effectuate any such Product returns and, in each case, to take nomore than 15 days to effectuate same.**7. PRICE AND PAYMENT**     7.1 Products will be sold to immixTechnology by Vendor, and resold to Government Customers byimmixTechnology pursuant to the terms of this Agreement. The prices for the Products purchased byimmixTechnology will be as set forth in Vendor’s then-current price list, less the immixTechnologydiscount set forth on Exhibit A. Vendors agrees that each Product will be sold to immixTechnologyat no higher Price than the Price set forth in Exhibit A and at no less discount that the discountset forth on Exhibit A during the first 12 months each Product is available on the immixTechnologyGSA Schedule contract.     7.2 If Vendor provides a quote to immixTechnology for a specific sales opportunity, such quoteshall be honored by Vendor for a minimum of 60 days from the date such quote is received byimmixTechnology.     7.3 Due to the customarily long Government Customer payment cycle, payment terms shall be net60 days from Vendor’s invoice date. Vendor shall not invoice immixTechnology prior to shipmentof the Products.     7.4 Vendor has in place a number of Agreements with Partners (“Partner Agreements”).immixTechnology agrees to facilitate sales of Vendor’s products and services through theimmixTechnology GSA Schedule contract with Vendor’s Partners. immixTechnology and Vendor haveagreed to a contribution schedule to compensate Vendor’s Partners when involved in transactionsunder this Agreement in accordance with the attached Schedule ‘B’. Schedule ‘B’ may be updated ormodified by mutual agreement of immixTechnology and Vendor.**8. MOST FAVORED CUSTOMER; PRICE PROTECTION**     8.1 Vendor represents and warrants that the Price, discounts, terms and conditions of thisAgreement are the most favorable offered by Vendor to a similarly situated reseller, and that ifduring the term of this Agreement Vendor offers more favorable Price, discounts, terms andconditions to a similarly situated reseller, such Price, discounts, terms and conditions shall bedeemed to apply to immixTechnology automatically, and retroactive to the date on which such Price,discounts, terms and conditions became effective for such other reseller. For purposes of thisSection 8, the phrase “similarly situated reseller” shall only apply to those third parties thatVendor has granted a contractual right to resell Products to Government Customers.     8.2 In the event that Vendor decreases the Price of any Product, the decrease shall apply toall units of the Product on open Orders or in immixTechnology’s inventory as of the effective dateof the Price decrease. Vendor, upon receipt of supporting Documentation from immixTechnology,shall credit immixTechnology’s account in an amount equal to the difference between the Price paidby ImmixTechnology for each such unit and the current reduced Price within 30 days of receiving thesupporting Documentation.
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**9. TERM AND TERMINATION**     9.1 This Agreement shall commence on the Effective Date and shall continue for 12 calendarmonths. This Agreement shall be automatically renewed for successive one-year terms unless eitherparty gives notice to the other party not less than 90 days prior to expiration of the initial termor any renewal term that it does not intend to renew this Agreement, or unless this Agreement isotherwise terminated in accordance with this Section.     9.2This Agreement may be terminated, with or without cause, by either party upon 30 dayswritten notice to the other party.     9.3 This Agreement may be terminated by either party for cause at any time, without limitingany party’s other rights or remedies, upon written notice identifying with specificity the causeand providing the period to cure as set forth:          (a) by either party if the other (non-terminating) party commits a material breach of thisAgreement, and such breach continues unremedied for a period of 30 days after receipt by the otherparty of written notice thereof; or          (b) by either party if the other (non-terminating) party: (i) has a receiver appointed foritself or its property; (ii) makes an assignment for the benefit of its creditors; (iii) anyproceedings are commenced by, for or against the non-terminating party under any bankruptcy,insolvency or debtor’s relief law seeking a reorganization of such party’s debts and suchproceedings are not dismissed within 90 days of their commencement; or (iv) the non- terminatingparty is liquidated or dissolved.     9.4 Neither party to this Agreement shall be liable to the other by reason of termination ofthis Agreement in accordance with its terms for compensation, reimbursement or damages on accountof any loss of prospective profits on anticipated sales or on account of expenditures, investments,leases or other commitments relating to the business or goodwill of either party, notwithstandingany law to the contrary. No termination of this Agreement shall release either party from itsobligation to pay the other party any amounts which accrued prior to such termination or whichshall accrue after such termination.     9. 5 In the event either party terminates this Agreement or it expires without being renewed,Vendor shall honor all Orders placed prior to the date on which any termination or expirationbecomes effective (the “Termination Date”).**10. INDEMNITY; LIMITATIONS OF LIABILITY; EXCLUSION OF CONSEQUENTIAL DAMAGES**     10.1 Vendor shall, at its sole expense, indemnify, defend and hold harmless immixTechnologyand its affiliates, shareholders, directors, officers, employees, contractors, agents and customersfrom any and all damages, losses, costs and claims based upon (i) an allegation that any Product orportion thereof infringes or constitutes wrongful use of any U.S. patent, copyright, trademark,trade secret or other proprietary right of any third party; and/or (ii) an allegation that anyProduct is in any way defective or does not conform to Vendor’s published specifications, warranty,Documentation, advertisements or trade representations, provided that (i) immixTechnology shallprovide Vendor notice of any such claim which is brought to the immixTechnology’s attention; (ii)Vendor shall have control over the defense and settlement of such claim; and (iii) immixTechnologyshall provide reasonable assistance to Vendor, at Vendor’s request and expense. Vendor shall allowimmixTechnology reasonable participation in the claims, at immixTechnology’s cost.     10.2 NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL,INDIRECT OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, EVEN IF SUCH PARTY HAS BEENAPPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.**11. CHOICE OF LAW; DISPUTES**     This Agreement shall be governed by and interpreted in accordance with the laws of theCommonwealth of Virginia, without regards to the conflicts of law principles thereof. Any and allclaims, controversies or disputes arising out of or in connection with this Agreement shall beresolved in accordance with this Section. Virginia law shall apply unless the issue relates toFederal procurement regulations or statutes and in such case Federal procurement law as interpretedby the United States Boards of Contract Appeals and the United States Court of Federal Claims shallapply. Both parties’ obligations under this Section survive termination or expiration of thisAgreement. The prevailing party in any action shall be entitled to recover its costs and attorneys’fees. For any claims by Vendor that relate to acts or omissions of a Government Customer,immixTechnology agrees to sponsor such claim pursuant to the disputes provision of its GSASchedule, and to cooperate with Vendor to the fullest extent of the law in the pursuit of theresolution of any such claim.
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**12. MISCELLANEOUS**     12.1 Assignment and Subcontracting. Neither party may assign this Agreement or any ofits rights or obligations hereunder (including without limitation rights and duties of performance)to any third party or entity, and this Agreement may not be involuntarily assigned or assigned byoperation of law, without the prior written consent of the non-assigning party, which consent maybe given or withheld by such non-assigning party in the sole exercise of its discretion, exceptthat either party may assign this Agreement as part of: (i) any transfer of 50% or more of itsvoting capital stock; or (ii) any transfer of all or substantially all of the assets of such partyin a single transaction.     12.2 Relationship of Parties. Vendor and immixTechnology perform this Agreement asindependent contractors. Each party has the sole obligations to supervise, manage, contract,direct, procure, perform or cause to be performed its obligations set forth in this Agreement,except as otherwise agreed upon in writing by the parties. Nothing set forth in this Agreementshall be construed to create the relationship of principal and agent between Vendor andimmixTechnology. Neither party shall act or attempt to act or represent itself, directly or byimplications, as an agent of the other or its affiliates or in any manner assume or create, orattempt to assume or create, any obligation on behalf of, or in the name of, the other party or itsaffiliates.     12.3 Confidentiality. Each party agrees not to use any confidential information of theother party (whether oral or written) except in performance of this Agreement and not to disclosesuch information to third parties (other than, as determined by the receiving party in good faith,those persons with a genuine “need to know” and who will similarly limit the use and disclosure ofthe information, such as attorneys and accountants). With respect to both parties hereto, for thepurposes hereof, confidential information shall not include any information that: (1) is now orbecomes in the public domain through no breach of this Agreement; (2) is in the possession of thereceiving party as of the date of execution hereof; (3) is independently learned by the receivingparty from a third party without breach of this Agreement; (4) is required by law or order of acourt (in which case the other party shall be promptly notified before disclosure), administrativeagency or other governmental body to be disclosed by the receiving party; or (5) is disclosed bythe receiving party more than three years after that party’s receipt of such information.     Either party shall have the right in its good faith discretion to make such public pressreleases, announcements or other communications as it reasonably believes are necessary to complywith applicable federal and state securities or other laws and the regulations promulgated by theNational Association of Securities Dealers (“NASD”) and/or appropriate securities exchanges, as thecase may be, but only to the extent of not divulging any confidential proprietary information ofthe other party.     12.4 Compliance with Laws. In the performance of this Agreement, each party shallcomply with the requirements of all applicable laws, ordinances, and regulations of the UnitedStates of America and any state, country, or other governmental entity.12.5 Notices. All notices, orders, directives, request or other written communicationsrequired or permitted to be given or sent by this Agreement, shall be deemed given if mailed firstclass, postage paid or sent by facsimile, and if addressed as follows:   Vendor: immixTechnology  8444 Westpark Drive, Suite 120   McLean,VA 22102   Attn:Arthur A. Richer   FaxNumber: 703-752-0610   TelephoneNumber: 703-752-0613   Either party may, by a notice given in accordance with the foregoing, change its address ordesignated recipient for notices. Any notice given as aforesaid shall be deemed to have beenreceived on the date of the overnight mail receipt, on the date imprinted by the facsimile machine,or five Business Days after deposit in the mail (first class, postage paid), whichever isapplicable, unless the addressee party is able to establish conclusively that such notice was notreceived by it.     12.6 Severability. If any term, provision, covenant, or condition of this Agreementis held by a court or board of competent jurisdiction to be invalid, illegal or unenforceable forany reason, the remainder of the provisions of this Agreement shall continue in full force andeffect as if this Agreement had been executed with the invalid portion(s) eliminated.     12.7 Entire Agreement. This Agreement, including the exhibits, constitutes the entireunderstanding and agreement of and between the parties with respect to the subject matter hereofand supersedes all prior and contemporaneous representations and agreements with respect to thesubject matter hereof. It shall not be varied by any oral agreements or representations orotherwise except by an instrument in writing of subsequent date hereto duly
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executed by authorizedrepresentatives of the parties. The article and paragraph headings herein are for convenience onlyand shall not limit in any way the scope of any provisions of this Agreement.     12.8 Nonwaiver of Rights. The failure of either party to insist upon strictperformance of any of the terms and conditions of this Agreement or to exercise any rights orremedies shall not be construed as a waiver of its right to assert any of the same or to rely onany such terms and conditions at any time thereafter.     12.9 Force Majeure. Neither Vendor nor immixTechnology shall be deemed in default ifits performance of obligations hereunder is delayed or becomes impossible or impractical by reasonof any act of God, war, fire, earthquake, strike, epidemic, terrorist attack, or any other causebeyond such party’s reasonable control.     12.10 Counterparts. This Agreement may be executed in two or more counterparts, eachof which shall be deemed an original, but all of which together shall constitute one and the sameinstrument.     12.11Vendor Audit Rights. immixTechnology agrees to make, and maintain until three(3) years after the last payment under this Agreement is due and paid, complete books, records andaccounts with respect to immixTechnology’s purchase and sale of the Products. Vendor shall havethe right, upon reasonable notice to immixTechnology, to inspect the books and records ofimmixTechnology with respect immixTechnology’s compliance with its obligations set forth in thisAgreement.     12.12 Survival. The definitions, representations, warranties and obligations setforth in Sections 1, 3, 5.3, 5.6, 6, 7.2, 7.3, 9, 10 11 and 12 shall survive any termination ofthis Agreement for any reason whatsoever.**IN WITNESS WHEREOF**, each Vendor and immixTechnology has caused this Agreement to be signed anddelivered by its duly authorized representatives as of the date first above-written.         **immixTechnology** **Vendor:**             By:/s/ Arthur A. Richer By:/s/ E. Wayne Jackson         Print Name: Arthur A. Richer Name: E. Wayne Jackson           Print Title: Vice President Print Title: CEO           Date: 10-10-02 Date: 10-8-2002  
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**Amendment 1**