iops-terms-and-conditions.txt

THIS MASTER SERVICES AGREEMENT (this “Agreement”), dated as of the signing date (the “Effective Date”), is entered into by and between INTRUSIONOPS, LLC, a Delaware limited liability Client, with offices located at 2810 N Church St, PMB 98736 Wilmington, Delaware 19802-4447 (“Service Provider”) and You ("Client").

WHEREAS, Service Provider has the capability and capacity to provide certain cyber security consulting and managed services; and

WHEREAS, Client desires to retain Service Provider to provide said services under the terms and conditions hereinafter set forth, and Service Provider is willing to perform such services.

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Service Provider and Client (hereinafter, collectively, the “Parties”, or each, individually, a “Party”) agree as follows:

Services. Service Provider shall provide to Client the services (the “Services”) set out in one or more statements of work to be issued by Client and accepted by Service Provider (each, a “Statement of Work”). The initial accepted Statement of Work is attached hereto as an Exhibit to this Agreement. Additional Statements of Work shall be deemed issued and accepted only if signed by the Parties.

Service Provider Obligations. Service Provider shall designate personnel that it determines, in its sole discretion, to be capable of filling the following positions:

A primary contact to act as its authorized representative with respect to all matters pertaining to this Agreement (the “Service Provider Contract Manager”).

A number of employees or contractors that it deems sufficient to perform the Services set out in each Statement of Work (collectively, with Service Provider Contract Manager, “Provider Representatives”).

In addition to Service Provider personnel, Service Provider may, with Client approval, engage third-party subcontractors (each a “Permitted Subcontractor”, and collectively, “Permitted Subcontractors”) to assist Consultant in providing the Services.  Service Provider shall at all times remain responsible for ensuring compliance by Permitted Subcontractors with the terms of this Agreement and shall be liable for any act or omission of any Permitted Subcontractor which if performed or omitted by Service Provider would be a breach hereunder. 

Client Obligations. Client shall designate one of its employees or agents to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement (the “Client Contract Manager”), with such designation to remain in force unless and until a successor Client Contract Manager is appointed.

Require that the Client Contract Manager respond promptly to any reasonable requests from Service Provider for instructions, information, or approvals reasonably required by Service Provider to provide the Services.

Provide access to Client’s premises, employees, contractors, and equipment as required to enable Service Provider to provide the Services.

Fees and Expenses.
 
Fees.  In consideration of the provision of the Services by the Service Provider and the rights granted to Client under this Agreement, Client shall pay the fees set out /the applicable Statement of Work. All invoices will be due and payable within thirty (30) days of receipt by Client   Any late payments will incur interest at the lesser of the legal limit and 1% per month. Any costs and expenses incurred by Service Provider in performing the Services, including but not limited to the cost and expenses for any equipment used by Service Provider in connection therewith, will be the sole responsibility of Service Provider, unless otherwise agreed by the Client in writing.  Client shall be responsible for reasonable travel expenses (including but not limited to transportation, food and lodging) for any trips by Service Provider personnel made as part of performing the services, provided that (i) Client requests the trip be made or approves of the trip in writing (including by email); and (ii) Client approves the proposed travel budget for the trip in writing (in each case in accordance with the notice provisions in this Agreement) in which case such budget shall be conclusively established as being reasonable for the given trip.  Client shall only be responsible for actual costs incurred by Service Provider or its personnel and shall be entitled to reasonable documentation for any such expenses.  Any expenses incurred for which the Client is responsible shall be added to and treated as Fees for the purposes of this Agreement. 

Taxes.  The Fees do not include taxes or duties.  If Service Provider is required to pay or collect any federal, state, local, value added, goods and services, or any other similar taxes or duties with respect to any payment to be made by the Client to Service Provider under this Agreement, then such taxes and/or duties shall be billed to and paid by the Client; this shall not apply to taxes based on Service Provider’s income.

Intellectual Property. “Intellectual Property” shall refer to all types of intellectual property, including but not limited to copyright interests, patent interests, mask work rights, moral rights, trade secret rights, trademark rights, and other intellectual property and proprietary rights recognized in any country or jurisdiction in the world.

Ownership of Deliverables.  Subject to and conditioned upon timely payment from all Fees, Service Provider hereby assigns to Client all right, title and interest to any Deliverables prepared by Service Provider during the provision of the Services.  “Deliverables” shall mean (i) customized security assessment reports pertaining specifically to Client’s staff or  proprietary systems or those systems’ configurations; and (ii) custom source code developed by Service Provider that is (a) developed exclusively for the Client and for no other purpose, and (b) integrated by Service Provider into the Client’s source code repository pursuant to this Agreement.  Deliverables shall be considered “work made for hire” as set forth in the U.S. Copyright Law to the maximum extent permitted, and shall be solely owned by Client.  

Ownership of Service Provider Works.  Other than the Deliverables, or as otherwise may be agreed to by the parties in writing, all right, title and interest to any and all Intellectual Property created or developed by Service Provider, either before, during or after the term of this Agreement, including any Intellectual Property created, developed or provided to Client by Service Provider during performance of the Services (collectively, the “Service Provider Works”) shall be solely owned by Service Provider, and the Client hereby makes all assignments necessary to accomplish the foregoing.  Subject to and conditioned upon Client’s continued compliance with the terms of this Agreement, Service Provider hereby grants the Client a perpetual, irrevocable, non-exclusive, non-sublicensable, non-transferable, worldwide, royalty-free license to use Service Provider Works solely for (i) the Client’s internal business purposes and (ii) to utilize the Services.

Cooperation.   Service Provider agrees to assist Client in any reasonable manner in any and all countries to obtain and enforce for the benefit of Client’s patents, copyrights and other property rights concerning any Deliverables, and Service Provider agrees to execute, upon request, patent, copyright or similar applications and assignments to Client, and any other lawful documents deemed necessary by Client to carry out the purpose of this Agreement in perfecting ownership rights as specified in this Section. No provision of this Agreement shall preclude Service Provider from licensing any Intellectual Property (excluding Deliverables), on an open source basis.

Confidential Information; Data Security

Confidential Information.  During the term of this Agreement, a party may acquire access to proprietary and confidential information belonging to the other, its customers, its suppliers and others (“Confidential Information”).  Confidential Information includes but is not limited to customer lists, marketing plans, proposals, contracts, technical and/or financial information, databases, software, and know-how, trade secrets, computer programs, designs, technology, ideas, processes, data, techniques, improvements, inventions (whether patentable or not), works of authorship, Service Provider Works, business and product development plans, information concerning the party’s actual or anticipated business, research or development, or which is received in confidence by or for the party from the other party or any other person.  The receiving party agrees (i) it shall use the same degree of care and means that it utilizes to protect its own information of a similar nature, but in any event not less than reasonable care and means, to prevent the unauthorized use or the disclosure of such Confidential Information to third parties; (ii) not to disclose or use any of such Confidential Information for any purpose except as necessary and consistent with the terms of this Agreement; (iii) to limit the use of and access to such Confidential Information to such employees and Permitted Subcontractors who have a need to know such Confidential Information; and (iv) that it will promptly notify the disclosing party in writing of any unauthorized disclosures and/or use thereof.  All Confidential Information belonging to a party remains the confidential and proprietary information of that party. 

Exclusions.  Notwithstanding the foregoing, Confidential Information does not include information:  (i) that is or becomes generally available to the public other than as a result of a disclosure by the receiving party or any other person who directly or indirectly receives such information from the receiving party or its employees or agents; (ii) is or becomes available to the receiving party on a non-confidential basis from a source which is entitled to disclose it to the receiving party; (iii) was developed by employees or agents of the receiving party independently of and without reference to any information communicated to the receiving party by the disclosing party hereunder; or (iv) is required by law to be disclosed by receiving party, provided that the receiving party provides prompt notice to the other party and seeks confidential treatment.

Data Security Measures. Service Provider will implement security measures reflecting industry best practices (including with respect to personnel, facilities, hardware and software, storage and networks, access controls, monitoring and logging, vulnerability and breach detection, incident response, encryption of any content, data, or other information, including Client Confidential Information, accessed by Service Provider while performing the Services (“Client Data”) while in transit and at rest, and any other organizational and technical measures reasonably necessary to protect against unauthorized or accidental access, loss, alteration, disclosure or destruction of Client Data), and comply with all applicable data privacy and security laws, regulations and standards.

Third Parties; Good Samaritan Disclosures.  In the event that the Client provides Service Provider access to any third party’s Confidential Information (as defined below), including but not limited to any software or code, or Client asks Service Provider to perform any analyses of or provide any feedback regarding any third-party products, software, or services (“Vendor Products or Services” and the applicable third party, a “Vendor”) the Client hereby represents and warrants that sharing such third-party Confidential Information with Service Provider and the Service Provider’s providing requested analyses of Vendor Services, neither Client nor Service Provider will have breached any duties or contractual obligations to said Vendor. By performing the Services, if Service Provider provides any analyses or feedback to the Client regarding any Vendor Products or Services (each a “Good Samaritan Disclosure”), such Good Samaritan Disclosures are for the Client’s internal use only and shall not be disclosed to any third party, except that the Client may only disclose such Good Samaritan Disclosures to the Vendor if the Vendor signs an acknowledgment in a form attached as an Exhibit  hereto titled “Vendor Release”. Such Vendor disclosure shall not identify Service Provider by name, except that the Client shall disclose to the Vendor that the Good Samaritan Disclosures were performed by Service Provider if and only if Service Provider requests so in writing.

Warranties; Remedies; Disclaimer of Warranties

Service Provider Warranty. Service Provider warrants that it shall perform the Services in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services using personnel of commercially reasonable skill, experience, and qualifications.

Client Remedies.  As Service Provider’s sole and exclusive liability and Client’s sole and exclusive remedy for breach of this warranty, Service Provider shall use reasonable commercial efforts to promptly cure any such breach; provided, that if Service Provider cannot cure such breach within a reasonable time (but no more than thirty (30) days) after Client’s written notice of such breach, Client may, at its option, terminate the Agreement by serving written notice of termination in accordance with the terms herein.  The foregoing remedy shall not be available unless Client provides written notice of such breach within five (5) days after delivery of such Service or Deliverable to Client.

Disclaimer of Warranties.  EXCEPT AS EXPLICITLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, “WITH ALL FAULTS” AND WITHOUT WARRANTY OF ANY KIND. SERVICE PROVIDER MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED HEREIN. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
 
Indemnification.  

Client.  Client hereby agrees to indemnify Service Provider  and its officers, employees, managers, members, shareholders and other agents (each an “Service Provider Indemnified Party” and collectively, the “Service Provider Indemnified Parties”) and hold the Service Provider Indemnified Parties harmless from and against all damages (including reasonable attorney’s fees and other litigation costs) resulting from or arising out of (i) any action by a third party against any Service Provider Indemnified Parties based on Client’s providing Service Provider with access to any third party’s Confidential Information, data or software,  (ii) any action based on a claim any action taken by Service Provider at the direction of Client infringes the rights of any third parties, including, without limitation,  Intellectual Property Rights, and (iii) without limiting the foregoing, any action arising from a breach of any representation, warranty, or other obligation under the Section titled “Third Parties, Good Samaritan Disclosure”, or the disclosure described in that Section. 

Service Provider. Service Provider will indemnify, defend and hold harmless Client and Client’s officers, directors, employees, agents and representatives (each a “Client Indemnified Party”, and collectively, the “Client Indemnified Parties”) from all third-party claims that the Deliverables when used in accordance with the terms and conditions of this Agreement, infringe any intellectual property rights of such third party; provided, however, that Service Provider’s indemnification obligation will apply only if Service Provider knew that such infringement would or was reasonably likely to occur. 

Control; Participation. An Indemnifying Party shall have sole control over the defense and/or settlement of any claim subject to indemnification by such Indemnifying Party and will pay all losses, damages, awards, penalties and/or settlement amounts finally awarded to such third party by a court of competent jurisdiction, or agreed to in a monetary settlement, with respect to any such claims; provided, however, that the Indemnifying Party will not settle any such claim without the prior written consent of the indemnified party (such consent not to be unreasonably withheld, conditioned or delayed) unless the settlement requires only the payment of money and includes a full and unconditional release of all liability.  The Indemnified Party shall promptly notify the Indemnifying Party of any such claim and provide the Indemnifying Party with reasonable assistance in connection with any such claim. Any Indemnified Party  may participate in the defense or settlement of any matter for which they are entitled to indemnification under this Agreement, at the counsel of the indemnified party’s choosing and at the indemnifying party’s expense.

Limitation of Liability.  IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA, OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EXCLUDING EACH PARTY’S INDEMNIFICATION OBLIGATIONS OR CLAIMS ARISING FROM (I) BREACHES OF CONFIDENTIALITY OR (II) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY’S LIABILITY FOR DAMAGES OR OTHERWISE, IN THE AGGREGATE, HEREUNDER EXCEED THE AMOUNT OF FEES PAID BY THE Client TO CONSULTANT IN THE TWELVE MONTHS PRIOR TO THE CAUSE OF ACTION GIVING RISE TO THE APPLICABLE CLAIM.   THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN CONSULTANT AND THE Client.  CONSULTANT’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.

Term, Termination, and Survival.

 Term; Termination. This Agreement and any SOW shall remain in effect unless or until terminated by the Parties in accordance with the terms herein.  Unless otherwise specified in a SOW, a party may terminate this Agreement for convenience at any time by providing the other party with thirty (30) days written notice.   Either party may also terminate this Agreement immediately upon written notice if such party deems, in its sole reasonable discretion, that the other party (including, without limitation, its officers, executives or employees): (i) commits an offense involving moral turpitude under federal, state, or local laws or ordinances; or (ii) commits any act or does anything that will tend to degrade the  applicable party or that will be reasonably likely to shock, insult, or offend public morals or decency. Either party may terminate this Agreement if the other party is in material breach of this Agreement and has not cured the breach within thirty (30) days of written notice specifying the breach; provided, however, that Service Provider may suspend Services immediately upon notice if the Client fails to pay any Fees in a timely manner.

Effect of Termination.  In the event of termination, the Fees payable by Client (or refunded to Client, as may be applicable) shall be determined on a pro rata basis according to the effective date of such termination.  For example, if Client gives notice of termination for convenience on September 15, the termination will be effective October 15 and Client will be responsible for Fees incurred from October 1 through October 15. 

Survival.  The rights and obligations of the Parties set forth in this Section 10 (“Termination”)  and in Sections 4 (“Fees”), 5, (“Intellectual Property”), 6 (“Confidential Information; Data Security”), 8 (“Indemnification”), 9 (“Limitation of Liability”), and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.

Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon delivery, when (i) delivered personally or by overnight courier, (ii) sent by email or via any chat services regularly used for communications between Service Provider and Client, including, without limitation, Slack, or (iii) forty-eight (48) hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to the party to be notified at such party’s address.

Notice to Client:					
							
							

			Email: 				
			Attention: 			

Notice to Service Provider:	INTRUSIONOPS, LLC
							
							

			Email: legal@intrusionops.com
			Attention: IntrusionOps Legal

Severability; Section References. If any provision of this Agreement shall be held to be illegal or unenforceable, such provision shall be severed from this Agreement and the remainder thereof shall remain in full force and effect.  The section numbers in this Agreement are provided for reference purposes only.  In the event of any conflict of ambiguity between a section number and the content of the section, the title and content of the section shall prevail and be relied upon for the interpretation of this Agreement.

Amendments; Waiver. No amendment to, or modification of this Agreement is effective unless it is in writing, identified as an amendment to this Agreement and signed by an authorized representative of each Party.  No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

Assignment. The rights and liabilities of the parties hereto shall bind and inure to the benefit of their respective successors, executors and administrators.  Neither party may assign its rights and liabilities hereunder without the written consent of the other party, which shall not be unreasonably withheld; provided that either party may assign its rights and liabilities hereunder in the context of a merger, acquisition, sale of substantially all assets or other change of control transaction.  This Agreement is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns.

Relationship of the Parties; Conflict of Interest. The relationship between the parties is that of independent contractors. The details of the method and manner for performance of the Services by Service Provider shall be under its own control, Customer being interested only in the results thereof. The Service Provider shall be solely responsible for supervising, controlling and directing the details and manner of the completion of the Services. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. Each party represents that its performance of the obligations under this Agreement does not and will not violate the terms of any agreements or understandings that it has with any other party.

No Third-Party Beneficiaries. This Agreement benefits solely the Parties and their respective successors and permitted assigns and nothing in this Agreement, express or implied, confers on any third party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

Choice of Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Delaware. The Parties agree that any legal or equitable action brought in connection with this Agreement shall be heard and determined on its merits in the courts of Delaware and for that purpose, irrevocably submits itself to the venue and jurisdiction of such courts.

Waiver of Jury Trial; Attorney’s Fees. 

Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.  

 Attorneys’ Fees.  If any legal action is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party shall be entitled to recover reasonable attorneys’ fees and other costs incurred in that action, in addition to any other relief to which that party may be entitled.

Non-Solicitation. During the term of this Agreement (including any extensions to the term) neither party shall solicit for employment any officer or employee of the other party. Neither party shall be prohibited from soliciting for employment, offering to hire, hiring, or entering into any employment contract with any such officer or employee who responds to employment advertisements aimed at a broad, general audience that are not targeted to or at such officers or employees. 

Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

Force Majeure. Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Service Provider including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of thirty (30)  days, Customer shall be entitled to give notice in writing to Service Provider to terminate this Agreement.

Entire Agreement. This Agreement, including and together with any related exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement between the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. The parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Statement of Work, the terms and conditions of this Agreement shall supersede and control.