Software End User License Agreement For

FireMon Operating System

Security Manager
Policy Planner
Policy Optimizer
Risk Analyzer
Copyright 2000-2015 FireMon, LLC. All Rights reserved. FireMon is a registered trademark of FireMon, LLC. This Software and
any related Documentation are protected by copyright and distributed under licensing restricting their use, copying,
distribution, and decompilation. No part of this product or related documentation may be reproduced in any form or by any
means without the written authorization of FireMon. All right, title, and interest in the Software and Documentation shall
remain with FireMon and its licensors.

FireMons Operating System software, Security Manager software and the Policy Planner, Policy Optimizer, and Risk
Analyzer software modules together with any updates, upgrades, and modified versions (collectively Software) from
FireMon, LLC (FireMon) are licensed as set forth in this End User License Agreement (Agreement). The term You in
this Agreement means the entity that purchases, installs, or uses the Software furnished with this Agreement as well as
any individual user of the Software. The term Your Software Supplier means the authorized entity from which You
purchased the Software.
NOTICE: THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU AND FIREMON. THE TERMS AND CONDITIONS OF
THIS AGREEMENT APPLY TO THE SOFTWARE CONTAINED ON THE ACCOMPANYING MEDIA OR DOWNLOADED FROM
FIREMONS WEBSITE. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY
RETURN THE SOFTWARE PRODUCT UNUSED TO YOUR SOFTWARE SUPPLIER FOR A FULL REFUND WITHIN TEN (10) DAYS
OF PURCHASE. BY CLICKING THE I AGREE BUTTON OR BY INSTALLING, DOWNLOADING, ACCESSING OR OTHERWISE
USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THIS AGREEMENT AND ACCEPT ALL OF THESE TERMS AND
CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT IS ENFORCEABLE AGAINST ANY PERSON OR ENTITY THAT USES
THE SOFTWARE AND ANY PERSON OR ENTITY THAT USES THE SOFTWARE ON ANOTHER PERSONS OR ENTITYS BEHALF.
YOU AGREE THAT THIS AGREEMENT IS EQUIVALENT TO ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF
YOU AGREE TO THESE TERMS ON BEHALF OF A BUSINESS OR A GOVERNMENT AGENCY, DEPARTMENT OR
INSTRUMENTALITY, YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND THAT BUSINESS TO THIS
AGREEMENT, AND YOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF THE BUSINESS. THE
TERMS OF THIS AGREEMENT WILL GOVERN ANY UPGRADES PROVIDED BY FIREMON THAT UPDATE OR REPLACE THE
ORIGINAL SOFTWARE, UNLESS SUCH UPGRADE IS ACCOMPANIED BY A SEPARATE LICENSE IN WHICH CASE THE TERMS
OF THAT LICENSE WILL GOVERN. THIS SOFTWARE IS BEING LICENSED AND NOT SOLD TO YOU. FIREMON PERMITS YOU
TO DOWNLOAD, INSTALL, AND USE THE FUNCTIONALITY OR FEATURES OF THE SOFTWARE ONLY IN ACCORDANCE
WITH THE TERMS OF THIS AGREEMENT.

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1.

GRANT OF RIGHTS. The Software and any related documentation (Documentation) furnished under this
Agreement are licensed, not sold, to You. FireMon, a Missouri limited liability company, having offices at 8400
W. 110th St., Suite 500, Overland Park, Kansas, 66210 (FireMon), grants You a limited, non-exclusive and nontransferable right and license to install and use the Software, subject to the terms and restrictions of this
Agreement. You agree that you have no right, power or authority to make any modifications to or unauthorized
copies of the Software. You may only install and use the Software at the designated site and/or in conjunction
with the same number and type of computers, servers and/or devices as identified in Your valid purchase order
for the Software from Your Software Supplier, if any. You shall use the Software solely for Your own internal
business purposes and shall not use the Software for the benefit of any other person or entity other than You;
provided that, You may use the Software in conjunction with Your processing of information for Your clients as
part of Your normal business in accordance with the terms of this Agreement. Any use by You of the Software in
violation of this Agreement or in excess of the rights and licenses granted herein shall automatically terminate
these rights and licenses. Some third party materials, if any, included with the Software may be subject to other
terms and conditions distributed with the Software.
1.1

1.2

1.3

2.

Additional Limitations on Use. You agree: (i) to use Your best efforts to ensure that any user
of the Software licensed hereunder complies with the terms and conditions of this Agreement;
(ii) to refrain from taking any steps, including, without limitation, copying, decompiling,
reverse engineering, reverse assembly or reverse compilation, to derive or to seek to derive a
source code equivalent of the Software provided by FireMon in object code format; (iii) to
reproduce, and not remove or obscure, all identifying marks, copyright, trademark and other
proprietary notices, if any, on all permitted copies that You make of the Software; (iv) not to
redistribute, rent, lease, license, sublicense, assign, lend, or otherwise transfer the Software
or your rights under this Agreement to any party; (v) to only create a single copy of the
Software solely for archival or disaster recovery purposes; and (vi) to use Your best efforts
prevent and protect the contents of the Software from unauthorized disclosure or use.
Support Services. Subject to your payment of the applicable annual maintenance and support
fees set forth in your purchase order, FireMon will provide its standard support for the
Software in accordance with FireMons then current support policy, as may be amended from
time to time. FireMon is not obligated to support, update or upgrade any Evaluation Software
described herein.
Audit Rights. You agree that upon request from FireMon or its authorized representative, You
will within thirty (30) days fully document Your use of the Software at the time of the request
in order for FireMon to determine if Your use is in conformity with your valid licenses to the
Software. FireMon reserves the right to audit Your deployment and use of the Software to
ensure conformance with this Agreement during normal business hours and upon reasonable
notice to You.

OWNERSHIP. As between You and FireMon, FireMon shall have and retain all right, title and interest in and to:
all Intellectual Property (defined below); the Documentation; and the Software as well as any modifications,
upgrades, updates, or enhancements made thereto whether permitted or not under this Agreement. For
purposes of this Agreement, Intellectual Property includes, without limitation, all intangible legal rights or
interests evidenced by or embodied in: (i) any idea, design, concept, technique, invention, discovery or
improvement, regardless of patentability, but including patents, patent applications, trade secrets, and knowhow; (ii) any work of authorship, regardless of copyrightability, but including copyrights and any moral rights
recognized by law; (iii) any trademark, trade name or service mark; and (iv) any other intellectual property,
proprietary or similar rights, including all goodwill pertaining thereto and in each case, on a worldwide basis. You
shall not, by virtue of this Agreement or otherwise, acquire any rights whatsoever in the Software aside from the
limited licenses granted herein. Any rights not expressly granted to You by this Agreement are hereby expressly
reserved by FireMon. You further agree that the licensing of the Software does not constitute a royalty for any
tax purposes as You acknowledges that You have no right to misappropriate or exploit the Intellectual Property
rights of FireMon as set forth in this Section.

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3.

APIs & EXTENSIONS. The copy of the Software provided to You may include access to the Software API for You
to utilize to develop extensions, checks, audits and/or custom reports for certain features of the Software
(collectively, Extensions). You may utilize the API solely to develop Extensions for the Software for Your internal
business use and in conjunction with Your licensed use of the Software. You may not utilize the API for any other
purposes and use the API in a manner that fails to comply or is inconsistent with any part of the API
documentation. Additionally, You may have access to certain Extensions developed by FireMon or other parties
that may have been distributed with the Software or separately from the Software. Your use of any of these
Extensions may be subject to separate terms and conditions distributed with such Extensions. Your right to use
the API or any Extensions that You develop or that are otherwise provided to You shall terminate immediately
upon termination of this Agreement or Your right to use the Software. In the event that You wish to develop or
distribute any Extension to a third party, You must develop such Extensions in accordance with and comply with
the terms of FireMons Security Manager Extension Distribution License Agreement located at
http://www.firemon.com /legal/Extension_DLA.pdf.

4.

WARRANTIES; DISCLAIMER. FireMon warrants that: (i) it owns or otherwise has the right to license the Software
(excluding any Extensions) as described in this Agreement; (ii) for a period of thirty (30) days following the delivery
date (the Warranty Period), the operation of the Software (excluding any Extensions) shall be free from defects
in material and workmanship under normal use and materially perform in accordance with the written
documentation provided by FireMon with the Software, provided that no party has altered any portion of the
Software without the prior written approval of FireMon and that any non-conformities in the Software as
compared with the written documentation are not caused by the products or services of any third party, and (iii)
the Software as delivered by FireMon (excluding any Extensions) does not contain any type of software routine
or other element which is intentionally designed to permit unauthorized (a) access to or intrusion upon, (b)
disabling of, or (c) erasure of any hardware, software, data or peripheral equipment. FireMons sole obligation
or liability under this warranty shall be to use reasonable efforts to correct the Software, in a reasonable time, to
perform in accordance with the written documentation, upon receipt of written notice of its failure to so perform
from You. In the event FireMon fails to remedy material defects in the Software under this warranty, Your sole
remedy (and FireMons sole liability) shall be to receive a refund of any fees paid for the portion of the Software,
if any, which does not conform to the written documentation.
THE FOREGOING WARRANTIES ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY
FIREMON. WITH THE EXCEPTION OF THE FOREGOING WARRANTIES, THE SOFTWARE IS PROVIDED AS IS.
FIREMON EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NONINFRINGEMENT, QUIET ENJOYMENT, INTEGRATION AND WARRANTIES ARISING OUT OF COURSE OF
DEALING OR USAGE OF TRADE. FIREMON DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE
SOFTWARE AND/OR ITS USE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS IN THE SOFTWARE,
IF ANY, WILL BE CORRECTED.
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, THE SOFTWARE API IS PROVIDED AS
IS WITH NO WARRANTY, EXPRESS OR IMPLIED, OR ANY KIND. YOUR USE OF THE SOFTWARE API AND ANY
EXTENSIONS THAT YOU MAY DEVELOP USING THE API IS AT YOUR OWN DISCRETION AND RISK, AND YOU ARE
SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM YOUR USE OF THE SOFTWARE API. FIREMON
MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE QUALITY, CAPABILITIES,
OPERATIONS, PERFORMANCE OR SUITABILITY OF ANY THIRD PARTY HARDWARE OR SOFTWARE. ANY THIRD
PARTY HARDWARE OR SOFTWARE PROVIDED BY FIREMON IS EXPRESSLY PROVIDED "AS IS.

5.

LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, FIREMONS TOTAL CUMULATIVE
LIABILITY TO YOU, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND
WILL NOT EXCEED THE AMOUNTS PAID BY YOU TO FIREMON UNDER THE APPLICABLE ORDER DOCUMENT
GIVING RISE TO SUCH LIABILITY IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH
LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. IN NO EVENT WILL

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FIREMON BE LIABLE TO YOU FOR ANY SPECIAL,

INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE, DATA, OR
PROFITS, BUSINESS INTERRUPTION, OR COSTS OF PROCURING SUBSTITUTE SOFTWARE) ARISING OUT OF OR
IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SOFTWARE, THE API, OR ANY
EXTENSIONS YOU MAY DEVELOP, WHETHER SUCH LIABILITY ARISES FROM CONTRACT, WARRANTY, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT FIREMON HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED THAT THESE
LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL
PURPOSE. WITHOUT LIMITING THE FOREGOING, FIREMON WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR
ANY BUSINESS INTERRUPTION OR LOSS OF DATA ARISING FROM THE AUTOMATIC TERMINATION OF THE
LICENSE RIGHTS GRANTED HEREIN AND ANY ASSOCIATED CESSATION OF THE FUNCTIONS OF THE SOFTWARE.
FIREMON IS ACTING ON BEHALF OF ITS AFFILIATES, LICENSORS AND SUPPLIERS FOR THE PURPOSE OF
DISCLAIMING, EXCLUDING AND LIMITING OBLIGATIONS, WARRANTIES AND LIABILITY, BUT IN NO OTHER
RESPECTS AND FOR NO OTHER PURPOSES.
Some States and other jurisdictions do not allow for the exclusion of implied warranties or the limitation or
exclusion of liability in certain circumstances, so some of the above exclusions or limitations in Sections 4 and 5
may not apply to You.

6.

INDEMNIFICATION. Provided Your use of Software was in accordance with the terms of this Agreement, FireMon
will, at its own expense, indemnify and hold You harmless from and against any and all claims, actions, liabilities,
losses, damages, judgments, grants, costs and expenses (including reasonable attorneys fees) to the extent that
such action is based on a claim by a third party that any aspect of the Software used within the scope of this
Agreement infringes any United States Intellectual Property rights, provided You promptly notify FireMon in
writing of any such claim and, provided further that FireMon shall have the exclusive right to control such
defense. The indemnity set forth in the immediately preceding sentence shall not apply to any action based on a
claim relating to: (i) any customization or modification made by You to the Software; (ii) infringement caused by
a combination of the Software with third party hardware or software not provided by FireMon; and/or (iii) any
Extension. In the event of any loss, damage, liability or cost for which FireMon is obligated to indemnify you
hereunder, FireMon shall have sole control of the defense and all related settlement negotiations, and you shall
reasonably cooperate with FireMon in the defense and/or settlement thereof FireMons expense; provided that
you may participate in such defense using your own counsel, at your own expense. In no event shall You settle
any such claim, lawsuit or proceeding without FireMons prior written approval.
In the event any infringement claim, action or allegation is brought or threatened, FireMon may, at its sole option
and expense (i) procure for you the right to continue use of the applicable Software or infringing part thereof; (ii)
modify or amend the Software or infringing part thereof, or replace the Software or infringing part thereof; or,
(iii) if neither of the preceding is commercially practicable, terminate the Agreement and the licenses granted
herein.
You will, at Your own expense, indemnify and hold FireMon and its affiliates, shareholders, members, directors,
officers, employees and agents harmless from and against any and all claims, actions, liabilities, losses, damages,
judgments, grants, costs and expenses (including reasonable attorneys fees) resulting from or pertaining to Your
use, misuse or operation of the Software or any gross negligence or willful misconduct of You or Your employees
and agents.

7.

TERMINATION. This Agreement is effective until terminated. You may terminate this Agreement at any time by
destroying the Software, Extensions and all derivatives and copies thereof in Your possession or control. This
Agreement shall automatically terminate if You fail to comply with any of its terms and conditions. Upon
termination for any reason, You agree to destroy all copies of the Software, Extensions and derivatives thereof
in Your possession or control. No refunds will be provided to you as a result of termination.

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8.

EXPORT CONTROL. You agree that the Software will not be shipped, transferred, or exported into any country or
used in any manner prohibited by the United States Export Administration Act or any other export laws,
restrictions or regulations, including without limitation the U.S. Treasury Department's list of Specially Designated
Nationals or the U.S. Department of Commerce Denied Persons List or Entity List (collectively the "Export Laws").
In addition, you represent and warrant that you are not a citizen, or otherwise located within an embargoed
nation (including without limitation Iran, Syria, Sudan, Cuba, and North Korea) and that you are not otherwise
prohibited under the Export Laws from receiving the Software. All rights to Use the Software are granted on
condition that such rights are forfeited if you fail to comply with the terms of this agreement.

9.

PROPRIETARY NOTICES. No right is granted herein to use any identifying mark (such as, but not limited to, trade
names, trademarks, trade devices, service marks or symbols, and abbreviations, contractions or simulations
thereof) owned by, or used to identify any product or service of, FireMon or a corporate affiliate thereof. Absent
prior written permission of FireMon, You agree that You will not: (i) use any such identifying mark in advertising,
publicity, packaging, labeling or in any other manner to identify any of Your products or services; (ii) remove or
obscure any copyright, trademark, and/or any other intellectual property or proprietary notices; or (iii) represent,
directly or indirectly, that any product or service of Yours is a product or service of FireMon or such an affiliate
or is made in accordance with or utilizes any information or documentation of FireMon or such an affiliate. You
agree not to use FireMon's name or refer to FireMon directly or indirectly in any way whatsoever without the
prior written approval of FireMon.

10. CONFIDENTIALITY. You agree that You shall hold all parts of the Software subject to this Agreement in confidence
for FireMon. You further agree that You shall not make any disclosure of any or all of the Software (including
methods or concepts utilized therein) to anyone, except to Your employees to whom such disclosure is necessary
to the use for which rights are granted hereunder. You shall appropriately notify each employee to whom any
such disclosure is made that such disclosure is made in confidence and shall be kept in confidence by such
employee. If information relating to the Software subject to this Agreement at any time becomes available
without restriction to the general public by acts not attributable to You or Your employees, Your obligations
under this Section 10 shall not apply to such information after such time. You acknowledge that disclosure of
information in violation of this Section 10 will cause irreparable harm to FireMon and that in such case FireMon
shall have the right to injunctive or other preliminary relief without necessity of posting any bond. All obligations
of You and Your employees under this Agreement which relate to confidentiality or which limit use of the
Software shall survive and continue after any termination of rights under this Agreement.
11. GOVERNING LAW; VENUE. This Agreement shall be deemed executed in, and shall be governed by and construed
in accordance with, the laws of the State of Kansas, United States of America, excluding its conflict of law
provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods. The
sole and exclusive venue and jurisdiction for any and all claims or disputes arising under this Agreement or in
connection with the Software shall be in Johnson County, Kansas. You hereby irrevocably submit and consent to
personal jurisdiction in the foregoing location. Notwithstanding the foregoing, if you are the U.S. Government as
a party to this Agreement, this Agreement shall be governed by and interpreted in accordance with the Contract
Disputes Act of 1978, as amended (41 U.S.C. 601-613). Failure of the parties to reach agreement on any request
for equitable adjustment, claim, appeal, or action arising under or relating to this Agreement shall be a dispute
to be resolved in accordance with the clause at 48 C.F.R 52.233-1, which is incorporated in this Agreement by
reference.
12. GOVERNMENT END USER RIGHTS. You acknowledge that all Software was developed entirely at private expense
and that no part of the Software was first produced in the performance of a Government contract. You agree
that all Software and any derivatives thereof are "commercial items" as defined in 48 C.F.R. 2.101, and if You are
a U.S. Government agency or instrumentality or if You are providing all or any part of the Software or any
derivatives thereof to the U.S. Government, such use, duplication, reproduction, release, modification, disclosure
or transfer of this commercial product and data, is restricted in accordance with 48 C.F.R. 12.211, 48 C.F.R.
12.212, 48 C.F.R. 227.7102-2, and 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.211, 48
C.F.R. 12.212, 48 C.F.R. 227.7102-1 through 48 C.F.R. 227.7102-3, and 48 C.F.R. 227.7202-1 through
227.7202-4, as applicable, the Software is licensed to U.S. Government end users (i) only as Commercial Items

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and (ii) with only those rights as are granted to all other users pursuant to this Agreement and any related
agreement(s), as applicable. Accordingly, you will have no rights in the Software except as expressly agreed to in
writing by you and FireMon.

13. PUBLICITY. In consideration of the license(s) granted hereunder, FireMon may publicly identify You as a FireMon
customer, issue a press release announcing the execution of this Agreement, and reference the licensed products
and purchased services. Any additional publicity by either party shall require prior written approval.
14. EVALUATION SOFTWARE LICENSES. FireMon may provide You with Software licensed for internal evaluation
purposes and not for productive business use (Evaluation Software). You may install and use the Evaluation
Software solely for the purpose of determining whether to purchase a commercial license to the Software and
not for any revenue generation, commercial activity or other productive business or developmental purpose. Any
license keys provided for a free trial will automatically expire and may cause the Evaluation Software to become
non-operational at the end of the free trial period. FireMon reserves the right to exercise its audit rights under
Section 1.3 of this Agreement to ensure compliance with this Section 14. Upon expiration of your free trial period
of the Evaluation Software, you will have the option to purchase a license to the Software. Provisions in this
Agreement regarding Grant of Rights, Support Services, Warranty and FireMons Indemnification obligation will
not apply to Evaluation Software
15. MISCELLANEOUS. This Agreement (including any documents expressly referenced herein, the terms of which are
hereby incorporated by reference) sets forth the entire agreement and understanding between the parties
pertaining to the subject matter hereof and merges all prior written or oral discussions between them. Except as
otherwise provided herein, no amendment or modification of this Agreement shall be effective unless in writing
and signed by both parties. No use of trade or other regular practice or method of dealing between the parties
shall be used to modify, interpret, supplement or alter in any manner the terms of this Agreement. Any terms
and conditions in any contrary purchase order submitted by You or other correspondence between the parties
relating to the Software which attempt to differ or vary from the terms herein are null and void, and shall have
no force or effect whatsoever notwithstanding acceptance of such purchase order by FireMon or Your Software
Supplier. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to
the extent necessary to make it enforceable. In the event such provision cannot be reformed to make it
enforceable, the remaining terms and provisions of this Agreement shall remain in full force and effect, and such
unenforceable provision shall be deemed not to be part of this Agreement. The provisions of Sections 2 through
14 shall survive the termination or expiration of this Agreement and shall remain in full force and effect. FireMon
may assign this Agreement in connection with the sale, merger or disposition of its assets and/or business
operations relating to the Software. Except as specifically provided in a written waiver signed by a duly authorized
representative of the party seeking enforcement, the failure to enforce or the waiver of any term of this
Agreement shall not constitute the waiver of such term at any time or in any circumstances and shall not give
rise to any restriction on or condition to the prompt, full and strict enforcement of the terms of this Agreement.
FireMon will not be liable to You for failure to fulfill obligations hereunder if such failure is due to causes beyond
its control, including, without limitation, acts of God, earthquake, fire, flood, embargo, catastrophe, sabotage,
utility or transmission failures, governmental prohibitions or regulations, national emergencies, insurrections,
riots or wars, or viruses which did not result from the acts or omissions of such Party, its employees or agents,
strikes, work stoppages or other labor difficulties.

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