FEE FOR SERVICE AGREEMENT
THIS FEE FOR SERVICE (“SERVICE”) AGREEMENT (INCLUDING ALL ADDENDA) IS A LEGAL AGREEMENT (THE “AGREEMENT”) BETWEEN THE ORGANIZATION IDENTIFIED IN THE WEB FORM (“ORGANIZATION”, “YOU”, “YOUR”, etc.) AND CYBER ENGINEERING SERVICES INCORPORATED (“CYBERESI,” OR “WE,” “US,” “OUR,” etc.) BY EXECUTING THIS AGREEMENT, YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION. THIS AGREEMENT WILL BECOME BINDING WHEN YOU SELECT THE “AGREE TO TERMS AND CONDITIONS” CHECK BOX AND AUTHORIZE SERVICE VIA CREDIT CARD PAYMENT. UNTIL WE CONTACT YOU TO CONFIRM DELIVERY, YOU HAVE NO RIGHTS UNDER THIS AGREEMENT AND CyberESI HAS NO OBLIGATIONS TO YOU.
MASTER TERMS
By selecting the “Agree to Terms & Conditions” check box, Organization is authorizing the combination of services and products described at this web site. The services and products described shall constitute the initial Statement of Work between Organization and CyberESI. CyberESI may subsequently modify the initial Statement of Work or propose a separate Statement of Work in writing. Modifications to or additional Statements of Work shall be bidirectionally authorized via affirmative acknowledgement or signature. Nothing therein shall impede CyberESI’s ability to communicate unilateral updates or changes to these terms and conditions.
Subject to the terms of this Agreement, CyberESI will render the services described in each Statement of Work agreed and authorized by both parties, previously described in a Statement of Work and incorporated herein by this reference (the “Services”). Any additional or different terms and conditions proposed by the Organization, whether on a purchase order or by any other means, will not be applicable or otherwise incorporated herein.
- ENGAGEMENT OF SERVICES
1.1 Right to Subcontract. CyberESI may subcontract its Services hereunder, with the Organization’s prior written authorization; provided that CyberESI will be liable for the acts and omissions of any of its contractors under any Statement of Work attached hereto.
1.2 Excuse. CyberESI will be excused for delays or interruptions in the provision of the Services and shall not incur any liability therefor, to the extent such delays or interruptions are, in all material respects, (i) caused by Organization, including, without limitation, as a result of the non-availability of Organization’s designated resources and personnel, non-performance of the Organization’s technology or tools, non-availability of security passwords or access codes or any delays or other problems arising out of Organization’s acts or omissions (ii) a direct result of the inaccuracy or failure of any of the Organization representations and covenants herein, (iii) are otherwise beyond the reasonable control of CyberESI, or (iv) caused by an event of war, fire, explosion, flood, riot, accident, labor strike, act of governmental authority, act of God or other contingency beyond the control of Organization or CyberESI. In the event of delays or interruptions set forth in clauses (i), (ii), and (iii) above, the period for performance of the Services by CyberESI shall be extended to the extent of such delay or interruption; provided, however, that if such delay or interruption lasts for more than thirty (30) days, any party shall be entitled to terminate this Agreement upon written notice to the other parties. In the event of delays or interruptions set forth in clause (iv) above, CyberESI or Organization shall be entitled to terminate this Agreement upon written notice to the other parties.
- COMPENSATION
2.1 Fees for Services. Fees for the Services to be rendered by CyberESI hereunder (the “Fees”) are set forth in each Statement of Work hereto. With exception of the credit card payment for the initial Statement of Work, CyberESI will invoice Organization for accrued Fees and Expenses on a monthly basis, or as otherwise set forth in the Statement of Work (“Invoice Date”), and Organization shall remit payment (in United States dollars) for such Fees and Expenses within twenty (20) days of receipt of such Invoice from CyberESI. A late fee not to exceed an amount equal to the product of (i) the then overdue payment for each month multiplied by (ii) ten percent (10%), or such lesser amount as may be permitted under applicable law, may be imposed on past due accounts in the discretion of CyberESI. Organization shall pay all license fees, registration fees, assessments, imports, duties, charges and taxes imposed by any international, federal, state or local authorities with respect to this Agreement (collectively, “Transaction Taxes”), excluding income taxes on CyberESI profits. Organization shall also reimburse CyberESI for all travel and living expenses incurred by CyberESI employees and contractors in connection with the performance of the Services, including but not limited to airfare, mileage, parking, tolls, lodging, and auto rental.
2.2 Retainer. Prior to the commencement of Services under any Statement of Work hereunder, if and to the extent set forth in that Statement of Work, CyberESI retains the right to require that Organization remit a retainer (the “Retainer”) to CyberESI on the terms set forth in the Statement of Work.
2.3 Change Order Process. During the course of any Statement of Work hereunder, if Organization requests that CyberESI make any material change with respect to its performance, including any change in the scope of work and/or the addition of any Works (as defined below), CyberESI and Organization will follow this procedure: (a) Organization will submit to CyberESI in writing its request for additional Services under the open Statement of Work (each, a “Change Request”); (b) CyberESI will evaluate each Change Request and respond to Organization in writing with a statement of the impact, if any, of Organization’s requested changes on CyberESI schedule, fees and costs as set forth in the Statement of Work; (c) If Organization wants CyberESI to proceed with a Change Request on the terms set forth in CyberESI response, the Organization will promptly authorize CyberESI in writing to proceed; and (d) Upon authorization from Organization, CyberESI will promptly continue performance under that Statement of Work, as amended by the Change Request.
- RELATIONSHIP
3.1 Nature of Relationship. CyberESI relationship with the Organization will be that of an independent contractor and nothing in this Agreement will be construed to create a partnership, joint venture, principal-agent or employer-employee relationship. CyberESI is not an agent of the Organization and is not authorized to make any representation or commitment on behalf of the Organization unless specifically authorized to do so by the Organization.
3.2 No Benefits. CyberESI will (i) be solely responsible for payment of all compensation due to CyberESI employees and contractors in connection with this Agreement and any and all Statements of Work hereunder, (ii) be solely responsible for timely filing all tax returns and payments required to be filed or made to any federal, state or local tax authority with respect to CyberESI performance of Services and receipt of compensation and (iii) be responsible for providing, at its expense and in its name, any insurance coverage required by law as well as any licenses or permits required to render the Services. Neither CyberESI nor any of its employees or contractors will be employees of Organization; accordingly, neither CyberESI nor any such persons will be entitled to any of the benefits which Organization may make available to its employees, including group insurance, workers’ compensation coverage, vacation or retirement benefits.
3.3 Warranties and Disclaimer. CyberESI will have sole control of the Services and the manner in which they are performed, subject only to the general direction of the Organization. CyberESI warrants that the Services and the Works, if any: (i) will be performed in a workmanlike and professional manner in accordance with good practice within the industry and (ii) will not be provided or created in material violation of any applicable law or regulation. CyberESI sole liability on its breach of either of the foregoing warranties, and Organization’s sole remedy therefor, will be for CyberESI to (i) use reasonable efforts to correct such failure, and/or (ii) terminate this Agreement and refund that portion of any fees received that corresponds to such failure to perform. The Organization must report any breach of warranty to CyberESI in writing within 30 days of CyberESI completion of its Services hereunder or any earlier termination of this Agreement to receive the warranty remedy set forth above. CyberESI warrants the services provided hereunder for a period of one (1) year from the date of acceptance. CyberESI shall ensure, as a part of Warranty, a mutually agreed upon fixed number of resource(s) for fixed hours (cumulative) or fixed number of months to support the Organization. CyberESI shall undertake to work on the issues reported by the Organization throughout the Warranty period. The specified Warranty period shall not cover any enhancement or new features work outside the agreed upon statement of work. THIS AGREEMENT EXPRESSLY EXCLUDES ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ORGANIZATION ACKNOWLEDGES, UNDERSTANDS AND AGREES THAT CyberESI DOES NOT GUARANTEE OR WARRANT THAT IT WILL FIND, LOCATE OR DISCOVER ALL OF ORGANIZATION’S SYSTEM VULNERABILITIES OR OCCURENCES OF ILLEGAL ACCESS AND WILL NOT HOLD CyberESI RESPONSIBLE THEREFOR. ORGANIZATION AGREES NOT TO REPRESENT TO ANY THIRD PARTY THAT CyberESI HAS PROVIDED SUCH GUARANTEE OR WARRANTY.
3.4 Non-Disclosure. Organization acknowledges that it may, in its sole discretion, determine whether to inform its employees, affiliates, contractors, sub-contractors, and other entities with access to Organization’s Facilities that CyberESI will be conducting the Services. Organization understands and agrees that by not informing all relevant persons, such persons may spend time and money on behalf of Organization in detecting, blocking, investigating or responding to activities of CyberESI. Organization agrees that CyberESI shall not be liable for any costs incurred solely as a result of the Organization’s non-disclosure as described in this Section 3.4.
3.5 Limited Release. CyberESI may use Organization name and visuals (e.g., seal, logo) to confirm in discussions, presentations, and print, both public and private, future, current, or past delivery of cybersecurity services to Organization. Any such interactions will be in full adherence with the confidentiality provisions of Section 5 of this Agreement. The specific details and case information of any investigatory, computer forensics, or incident response services are exempted from this Limited Release.
3.6 Cooperation. Organization Tasks. Organization acknowledges that CyberESI timely provision of the Services is dependent upon Organization providing CyberESI with access to Organization’s Facilities, equipment, systems, employees and/or information. In addition, in the event any of the Organization’s systems involved with the project are co-located or otherwise involve fourth party facilities or premises, Organization shall obtain the required fourth party consents. CyberESI timely provision of the Services is further dependent on Organization properly maintaining its computer hardware, software and network infrastructure, and/or providing CyberESI with such other assistance as reasonably requested and described in the Statement of Work section (collectively, “Cooperation”).
3.7 Possible Disruption. CyberESI hereby disclaims responsibility for costs in connection with disruptions of any Organization facilities or systems due to the Services, including, but not limited to, denial of access to a legitimate system user or automatic shut-down of information systems caused by CyberESI software or hardware or disruption of an information system resulting from the provision of Services.
3.8 Authorization Under Laws. Organization hereby agrees that the Services shall be deemed authorized for purposes of the Computer Fraud and Abuse Act, 18 U.S.C. §1030 et seq., the Electronic Communications Privacy Act, 18 U.S.C. §2701 et seq., and all other applicable International, Federal and state laws, rules and regulations that relate to, regulate, or impact the subject matter of this Agreement, each as may be amended from time to time (“Applicable Laws”). Organization hereby agrees that CyberESI shall be deemed the agent of Organization solely for purposes of 18 U.S.C. §2511(2)(a)(i), and Organization represents that CyberESI is retained to provide the Services for the protection of Organization’s rights and property.
3.9 Authorization to Intervene. To the extent the scope of Services requires actions to intervene on behalf of Organization to prevent unauthorized activities from escalating into a cybersecurity incident, the Organization authorizes CyberESI to act according to Attachment B.
- INDEMNIFICATION
4.1 Indemnification. CyberESI will indemnify, defend and hold Organization and its officers, directors, shareholders, employees, contractors, representatives and agents harmless from and against any and all fourth party claims, actions, liabilities or damages (including reasonable attorney’s fees incurred by Organization in connection therewith) (collectively, “Third Party Liabilities”) that Organization may incur or suffer to the extent arising out of the gross negligence or willful misconduct of CyberESI. Organization will indemnify and hold CyberESI and its officers, directors, shareholders, employees, contractors, representatives and agents harmless from and against (i) any and all Third Party Liabilities that CyberESI may incur or suffer to the extent arising out of Organization’s acts or omissions and/or (ii) any and all Third Party Liabilities arising out of this Agreement or any Organization product or project except to the extent that such Third Party Liabilities arise out of CyberESI gross negligence or willful misconduct.
4.2 Intellectual Property Indemnity. Except as set forth in the last sentence of this Section 4.2, CyberESI will indemnify, defend and hold Organization harmless from and against any Third Party Liabilities alleging that CyberESI has knowingly and intentionally infringed any U.S. patent or any copyright or trade secret right of a fourth party. If use of a Work is permanently enjoined as a result of CyberESI intentional infringement, CyberESI, at its option and in its sole discretion, may replace or modify such Work without a material reduction in performance or functionality so as to avoid infringement or procure the right for Organization to continue to use such Work. If neither of such alternatives is reasonably possible, the infringing items will be returned to CyberESI, the Agreement will terminate with respect only to such infringing Work and CyberESI will refund to Organization the compensation received hereunder attributable only to such Work, within thirty (30) days. CyberESI will have no obligation hereunder for or with respect to any Third Party Liabilities alleging infringement to the fullest extent arising by reason of (i) the Organization’s combination of any Work with items not supplied by CyberESI, (ii) CyberESI compliance with Organization’s instructions, designs or specifications, or (iii) modification of the Works by Organization or to the extent arising out of works jointly developed by Organization and CyberESI.
- CONFIDENTIAL AND PROPRIETARY INFORMATION
5.1 Confidentiality. Each party acknowledges that (i) all information relating to the business and operations of the other parties which it learns or has learned during or prior to the term of this Agreement and (ii) the terms and conditions of this Agreement constitute valuable, confidential and proprietary information of the disclosing party. The receiving parties will maintain all confidential information disclosed hereunder by the disclosing party in confidence and will not disclose such information to any fourth party other than those of its employees or contractors with a need to know such information; provided that each such employee or contractor must have executed a confidentiality agreement or be otherwise bound by the obligations of the receiving parties hereunder. The receiving parties will safeguard the confidential information with the same degree of care which it uses to protect its own confidential information. For avoidance of doubt: (a) confidential information includes only information provided directly by disclosing parties to receiving parties and (b) disclosure of confidential information by or as a result of the action of any person other than a receiving party (including, without limitation, a hacker or other similar attacker) shall not be deemed disclosure by that receiving party.
5.2 Exclusions. The provisions of this Section 5 will not apply to any information which (i) is already lawfully in the receiving party’s possession (unless received pursuant to a nondisclosure agreement); (ii) is or becomes generally available to the public through no fault of the receiving party; (iii) is disclosed to the receiving party by a fourth party who may transfer or disclose such information without restriction; (iv) is required to be disclosed by the receiving party as a matter of law or judicial or governmental order; provided that the receiving party will use all reasonable efforts to provide the disclosing party with prior notice of such disclosure so that the disclosing party may seek a protective order therefor; or (v) is independently developed by the receiving party without any use of confidential information. Each party acknowledges that any breach of this Section by a receiving party will irreparably harm the disclosing party and, on any such breach, the disclosing party will be entitled to promptly seek injunctive relief in addition to any other remedies which it may have at law or in equity.
- OWNERSHIP OF PROPRIETARY RIGHTS
6.1 Ownership of Copyrighted Works and Inventions. Except as set forth in this Section 6.1 or as specifically set forth in a Statement of Work hereunder, all pre-existing records, information, and written materials or any portions thereof, together with any related documentation that are provided to CyberESI shall be deemed to be owned by Organization and shall remain Organization’s exclusive property, provided, however, that nothing herein will be construed to grant Organization any interest in CyberESI (i) know-how, techniques or general expertise used and/or developed by CyberESI in the course of providing Services hereunder; and/or (ii) pre-existing materials or intellectual property, including any and all software and other technology in existence as of the Effective Date that CyberESI has developed or is developing for itself and/or for fourth parties (collectively, “CyberESI Preexisting IP”) and all inventions, methodologies and improvements relating thereto, whenever developed or implemented by or on behalf of CyberESI (collectively, “CyberESI Know-How”).
6.2 Limited License to CyberESI Know-How. As set forth above, Organization acknowledges and agrees that CyberESI Know-How will remain the sole and separate property of CyberESI and that Organization will acquire no rights therein or thereto except as set forth herein. However, to the extent that the Works may be developed from or incorporate CyberESI Know-How, CyberESI grants Organization a non-exclusive, perpetual and irrevocable, worldwide, royalty-free license to use CyberESI Know-How solely and exclusively to the extent that such Know-How is fully incorporated in the Works as an integral component thereof.
6.3 Retained Information. CyberESI shall have the right to utilize knowledge gained solely by CyberESI in providing the Services, including but not limited to in future versions of CyberESI products, and to provide products and services to other customers that incorporate such knowledge, provided that CyberESI protects Organization’s identity and Confidential Information as provided in this Agreement. Further, CyberESI shall be deemed to be the owner of all right, title, and interest in any data, software, information, malcode, or other similar technology (“Malware”) (a) that is found by CyberESI on Organization’s network or within Organization systems and (b) in which Organization does not have any ownership or proprietary rights.
- TERM AND TERMINATION
7.1 Term. This Agreement will become effective on the date hereof and continue until terminated as set forth in this Section 7.
7.2 Termination on Notice. This Agreement may be terminated by any party hereto for any reason on 30 days’ prior written notice to the other parties. If a party materially breaches this Agreement, the nonbreaching parties may terminate this Agreement on written notice to the breaching party; termination will be effective 10 business days from receipt of notice unless the default has been cured within such 10 business-day period.
7.3 Rights on Termination. On any termination of this Agreement (the “Termination Date”), Organization will pay CyberESI for all Services rendered by CyberESI and all CyberESI unreimbursed expenses hereunder through the Termination Date net 15 days from the date of Organization’s receipt of CyberESI invoice therefor and CyberESI delivery to the Organization of all the Works to date. Sections 3.3, 3.7, 3.8, 4, 5, 6, 7.3, 7.4, and 8, as applicable, will survive termination or expiration of this Agreement as will any outstanding payment obligations or any cause of action or claim of all parties, whether in law or in equity, accrued or to accrue because of any breach or default.
7.4 Non-Solicitation. The parties hereto will solicit for employment or a contract position, directly or indirectly, any employee, contractor or agent of the other parties during the term hereof and for a period of six months thereafter without such other party’s consent. However, there is no prohibition on or limitation on employees pursuing, on their own initiative, employment opportunities with the other parties.
- GENERAL PROVISIONS
8.1 Governing Law. This Agreement will be governed and construed in accordance with the laws of the State of Maryland, excluding its conflict of law rules.
8.2 Entire Agreement. This Agreement sets forth the entire understanding and agreement of the parties as to the subject matter of this Agreement, supersedes all prior negotiations and representations, may only be amended in a writing signed by both parties and may be executed in counterparts, each of which will be an original and all of which will constitute one and the same document.
8.3 Successors and Assigns. Neither this Agreement nor any of the rights or obligations of the parties hereunder may be assigned or transferred without the other parties prior written consent other than to an affiliate of the assigning party or pursuant to a change of control event, whether a merger, sale of substantially all assets or like transaction. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of Organization’s, CyberESI successors and assigns, as applicable.
8.4 Notices. Notices hereunder will be effective when received and will be sufficient if given in writing, hand-delivered, sent by telefax or email with confirmation of receipt, sent by U.S. mail, return receipt requested, or sent by overnight courier service and addressed to the receiving party’s address first set forth above.
8.5 Limitation of Liability. Notwithstanding anything to the contrary, this Agreement does not limit liability due to death or personal injury caused by gross negligence, or liability due to fraudulent misrepresentations or willful misconduct, or liability arising from breaches of confidentiality or the indemnification obligations (Section 4) hereunder. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS, REVENUE, DATA GOODWILL, ANTICIPATED SAVINGS) OR FOR THE COST OF PROCURING SUBSTITUTE SERVICES ARISING OUT OF THIS AGREEMENT, WHETHER BASED UPON AN ACTION OF CONTRACT, WARRANTY, OR OTHER TORTIOUS ACTION (INCLUDING NEGLIGENCE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The Customer may have other rights under applicable mandatory local laws. This Agreement does not change the Customer’s rights under applicable mandatory local laws if such laws do not permit it to do so.
8.5.1 Cap on Liability. EXCEPT FOR EITHER PARTY’S BREACH OF CONFIDENTIALITY OR INDEMNITY (SECTION 4), IN NO EVENT WILL EITHER PARTY’s AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY ORGANIZATION FOR THE SERVICES GIVING RISE TO THE CLAIM.
