These master terms and conditions (the “Agreement”) will govern the purchase and use of Redline Cyber Security Services by the Client listed on the Statement of Work that incorporates this Agreement. Client and Provider (each a “Party”) are referred to below as the “Parties”, and these master terms, together with the Statement of Work (“SOW”) and conditions are referred to as the “Agreement”.
Master Terms and Conditions of SOW Services
Client has engaged Provider to deliver certain services as set forth in a SOW (the “Services”). In the event Client requests Provider to expand the scope of the Services or undertake other Services (“Additional Services”), each such Additional Service will be set forth in a new SOW signed by both Parties that references these master terms and conditions and stipulates the fee for the Services. Unless otherwise agreed in the SOW, in the event Provider is requested to (i) update any report, deliverable or other information provided hereunder (the “Provider Report(s)”) for any events or circumstances occurring subsequent to the initial delivery date of the Provider Report, or (ii) furnish additional services, such additional services will be agreed in an amended or separate SOW signed by Provider and Client.
Provider shall deliver its Services in accordance with Client’s instructions. However, if instructed by Client in writing, Provider will perform the relevant Services under the direction of Client’s counsel. Provider understands Client and/or such counsel may provide Provider with certain information and materials that may be protected by the attorney-client privilege and/or the work product doctrine. Provider agrees to treat such materials as confidential and subject to privilege. Provider shall perform the Services in an appropriate and competent manner, using individuals with qualifications or skills suitable to the Services.
Provider, and its employees, contractors, agents, or representatives will not at any time or in any manner, either directly or indirectly, use for the personal benefit of Provider, or divulge, disclose, or communicate in any manner, any information that is proprietary to Client. Provider and its employees, agents, and representatives will protect such information and treat it as strictly confidential. This provision will continue to be effective after the termination of this Agreement. Any oral or written waiver by Client of these confidentiality obligations which allows Provider to disclose Client’s confidential information to a third party will be limited to a single occurrence tied to the specific information disclosed to the specific third party, and the confidentiality clause will continue to be in effect for all other occurrences.
Client agrees to hold harmless and indemnify Provider against all claims, damages and costs (including reasonable attorneys’ fees and disbursements) arising out of any Services, except for such claims, damages and costs resulting from any actions by Provider constituting gross negligence, fraud, willful misconduct or unlawful conduct or a breach of the terms of the Agreement.
Limitation of Liability
Client agrees, on its own behalf and on behalf of its agents, that Provider will not be liable for any claims, liabilities or expenses relating to the Agreement or any Engagement. In no event will either Party be liable for consequential, special, indirect, punitive or exemplary losses, damages or expenses relating to the Services, including without limitation damages for loss of data, loss of business profits, business interruption, or other pecuniary loss, even if such Party has been advised of the possibility of such damages.
To the extent applicable, the Parties shall comply with relevant national, international, state and/or regional data protection legislation or regulations, including with respect to information disclosed in connection with the Services which is personal data (as defined under the relevant legislation or regulation).
Use of Information
To the extent the Services includes the provision of one or more Provider Reports:
Client shall be permitted to use Provider Reports solely for its internal business purposes. Client shall maintain Provider Reports as confidential, and shall not disclose, disseminate, redistribute or otherwise make any Provider Reports available to any third party, whether in whole or in part, without the express written consent of Provider; provided, however, that Provider Reports may be disclosed by Client: i) to its employees, counsel, agents, and representatives (the “Representatives”) who are aware of and agree to the confidentiality obligations herein, and Client shall be responsible for the use and disclosure of Provider Reports by the Representatives as if it were Client’s own use and disclosure; ii) to third parties subject to the execution by each third party of a form of release reasonably satisfactory to Provider; iii) if required by law or in response to a lawful order or demand of any court of competent jurisdiction, provided, however, that before making such a disclosure, Client agrees to provide Provider with prompt prior notice of any such compelled disclosure so that Provider and/or Client may seek a protective order or other appropriate remedy; and iv) upon written request by a regulator, regulatory agency, or law enforcement agency (“Agency”) having jurisdiction and enforcement authority over Client when (a) deemed necessary by Client to demonstrate Client’s compliance with applicable law to Agency, or (b) to avoid imposition by Agency of a fine or penalty on Client; provided, however, Client agrees to provide Provider with prompt prior notice in advance of any such disclosure.
Fees and Invoicing
Client agrees to purchase the Services for the prices set forth in each SOW, as applicable (“Fees”). Client will make full payment in the current specified in the Providers invoice, without set-off and in immediately available funds, within thirty(30) days of the date of each invoice. All Fees are non-cancelable and non-refundable. All Fees described on the SOW will by fully invoiced in advance, unless otherwise agreed by Provider. Any unpaid balances shall accrue interest at the rate of 3% per annum, as measured from forty-five (45) days after the date of each invoice. Client acknowledges its obligation to pay undisputed amounts as set forth above. In the event Client disputes any portion of an invoice, Client will notify Provider in writing of the disputed charges within forty-five (45) days from the invoice date. Provider reserves the right to terminate its services at any time if Client fails to pay Provider’s invoices in a timely manner. Client agrees to reimburse Provider for any costs of collection of undisputed amounts, including reasonable attorneys’ fees.
Client understands and agrees that the engagement by Client of Provider for a discrete Engagement(s) hereunder does not prevent Provider from providing services to other clients adverse to Client on matters not substantially related to particular Services being performed hereunder, provided, however, Confidential Information obtained while performing particular Services will continue to be treated as confidential and will not be shared or used in connection with the performance of any other services provided by Provider or its affiliated companies.
Either Party may terminate the Agreement on thirty (30) days prior written notice to the other Party or earlier upon mutual written agreement; provided, however, that the Agreement shall remain in full force and effect until the completion or termination of all active SOWs hereunder. Each Party may terminate any given SOW in accordance with the termination provision set forth therein, or, where no provision has been made, on three (3) days prior written notice to the other Party. For avoidance of doubt, the termination of a particular SOW shall not automatically terminate these master terms and conditions.
In the event of any termination, Provider will be entitled to payment of any invoices outstanding, as well as payment for any undisputed disbursements, fees and/or costs incurred through the date of termination. Provisions of the Agreement which by their nature are intended to survive termination or expiration of the Agreement shall survive expiration or termination of the Agreement.
Except as otherwise provided herein, neither Party shall assign the Agreement or any individual Party’s rights or privileges without the prior written consent of the other Party, which consent shall not be unreasonably delayed, conditioned or withheld
Governing Law and Dispute Resolution
This Agreement shall be construed in accordance with the laws of the State of Michigan. The parties will attempt to resolve any dispute arising out of or relating to this Agreement through friendly negotiations amongst the parties. If the matter is not resolved by negotiation within 30 days, the parties will resolve the dispute using the below Alternative Dispute Resolution (ADR) procedure.
Any controversies or disputes arising out of or relating to this Agreement will be resolved by binding arbitration under the rules of the American Arbitration Association. The arbitrator’s award will be final, and judgment may be entered upon it by any court having proper jurisdiction.
Amendment, Waiver and Entire Agreement
Any of these master terms and conditions may be amended or waived only with the written consent of the Parties. The Agreement, including any exhibits and appendices thereto, constitutes the entire agreement of the Parties and supersedes all oral negotiations and prior writings with respect to the subject matter hereof.
If any portion of the Agreement is held to be unenforceable under applicable law, the Parties agree that such provision shall be excluded from the Agreement, the balance of the Agreement shall be interpreted as if such provision were so excluded, and the balance of the Agreement shall be enforceable in accordance with its terms.
In the event there is a conflict between these master terms and conditions and the provisions of any SOW or other addendum, the language of the SOW or other addendum shall control where the SOW or other addendum expressly indicates the Parties’ intention to modify the master terms and conditions for the purposes of the Engagement set forth in the applicable SOW or other addendum.