Professional Services Terms And Conditions
PLEASE READ CAREFULLY: THESE TERMS AND CONDITIONS GOVERN YOUR RIGHTS TO USE THE PROFESSIONAL SERVICES (AS DEFINED BELOW) BY SECURITY SCORECARD, INC. AND ITS AFFILIATES (COLLECTIVELY THE “COMPANY”). BY AGREEING TO THESE TERMS AND CONDITIONS (EITHER BY CLICKING, CHECKING A BOX OR PLACING AN ORDER, SOW OR ACTUALLY USING THE PROFESSIONAL SERVICES), YOUR LEGAL ENTITY OR ORGANIZATION (“CUSTOMER”) ACCEPTS THESE TERMS AND CONDITIONS, WHICH TOGETHER WITH THE APPLICABLE PURCHASE/SERVICE ORDER, STATEMENT OF WORK, OR DOCUMENTATION SPECIFYING THE APPLICABLE PROFESSIONAL SERVICES, SERVICE PERIOD, AND FEES PAYABLE TO COMPANY (“SOW”) CONSTITUTE A BINDING CONTRACT BETWEEN CUSTOMER AND COMPANY, ON BEHALF OF ITSELF AND ANY AFFILIATES PERFORMING HEREUNDER (“AGREEMENT”). IF CUSTOMER DOES NOT AGREE TO OR CANNOT COMPLY WITH ALL THE TERMS AND CONDITIONS, CUSTOMER WILL NOT BE AUTHORIZED TO ACCESS OR USE THE PROFESSIONAL SERVICES. THESE TERMS AND CONDITIONS ARE BINDING AS OF THE EARLIEST OF (i) THE DATE THAT CUSTOMER ACCEPTS THE TERMS AND CONDITIONS HEREIN, (ii) THE DATE SET FORTH ON AN SOW, OR (iii) THE DATE ON WHICH CUSTOMER ACTIVATES OR USES THE PROFESSIONAL SERVICE. THE COMPANY AND CUSTOMER CAN INDIVIDUALLY BE REFERRED TO AS A PARTY TO THE AGREEMENT AND BOTH ARE COLLECTIVELY REFERRED TO AS PARTIES.
(a) Scope of Services. Company shall perform certain professional services designed to help mature Customer’s cybersecurity program, such as tabletop exercises, digital forensics (non-incident response), incident monitoring, or penetration tests, among others (“Professional Services”) as set forth on an SOW (each, an “Engagement”). For the avoidance of doubt, Professional Services subject to these Terms and Conditions expressly excludes (i) multi-tenancy software-as-a-services solution, which will be subject to a separate end user SaaS Agreement available at https://securityscorecard.com/eusa, or (ii) incident response forensic services, for which Company and Customer will enter into a separate incident response forensic services agreement (“Forensic Services Agreement”). Company will provide all Professional Services under this Engagement in a professional manner, consistent with reasonable industry standards. All Professional Services under this Engagement are generally performed during standard business hours, 9:00 a.m. to 6:00 p.m. Eastern time, Monday through Friday, excluding federal and state holidays (unless otherwise agreed to by the Parties). At its discretion, Company may also provide Professional Services under this Engagement outside of its regular business hours. For purposes of this Agreement, Company and Customer are individually referred as a “Party” and collectively, the “Parties.”
(b) Customer Cooperation and Support. Customer acknowledges that the timely, complete, and accurate provision of the Professional Services under this Engagement may require assistance, cooperation, information and data from Customer’s officers, agents, managers, partners, members and employees, and suitably configured computers and software, including vendor systems and resources, and that Company’s ability to complete the Professional Services may be dependent upon the same. Customer agrees to provide all information reasonably requested to ensure accurate delivery of Professional Services. If any of the aforementioned items are not provided or provided in such a way that Company is hindered in its ability to effectively perform the Professional Services, Company shall so inform Customer, and Company shall not be responsible for providing the Professional Services during any period in which such items are not provided. Failure on the part of Customer to meet its obligations under this section may result in increased cost, delayed schedule and/or a breach of this Agreement. Company and Customer shall cooperate and work in good faith independently and together to remedy any such hinderances.
(c) Use of Subcontractors or Third Parties. From time to time, Company may delegate the performance of all or a portion of the Professional Services under this Engagement to a third party. In such event, Company shall ensure that the third party complies with the terms of this Agreement as it applies to Company. Company’s Professional Services under this Engagement may require Customer’s use of certain third party hardware or software products. Unless otherwise stated in any applicable SOW for this Engagement, Customer shall be solely responsible for procuring, obtaining, installing, configuring, testing, and making operational this third party hardware or software and obtaining the necessary licenses for use and incorporation into Customer’s systems so that Company can use the same solely for the purposes of providing the Professional Services under this Engagement.
(d) Delivery Method. Customer shall deliver all information, computer software and hardware, and other related materials necessary to perform the Professional Services to Company via a delivery method mutually agreed to by the Parties. If the Parties mutually agree to use a courier service such as Federal Express or UPS, or other similar vendor, Company shall have no responsibility for any delay in the performance of the Professional Services by the failure of the courier service to deliver such materials to Company.
(a) Confidential Information. For purposes of this Engagement, each Party may disclose Confidential Information (as defined below) (“Disclosing Party”) to the other Party (“Receiving Party”). The Receiving Party agrees that it will take commercially reasonable steps to maintain and safeguard the confidentiality of all information and materials disclosed by the Disclosing Party to the Receiving Party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”). Confidential Information includes any proprietary materials provided as part of the Professional Services and any proprietary pricing Receiving Party might receive as a quote, offer, or in an Order Form, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by Disclosing Party party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party as shown by documents and other competent evidence in the Receiving Party’s possession.
(b) Use of Confidential Information. Receiving Party agrees not to use any Confidential Information for any purpose other than is reasonably required in connection with this Engagement and agrees not to disclose any Confidential Information to any third party, except as authorized or directed by Disclosing Party, or as otherwise provided herein.
(c) Required Disclosures. A Receiving Party may disclose Confidential Information of the Disclosing Party as required to comply with binding orders of governmental entities that have jurisdiction over it or as otherwise required by law, provided that the Receiving Party (i) gives the Disclosing Party reasonable written notice to allow it to seek a protective order or other appropriate remedy (except to the extent compliance with the foregoing would cause the Receiving Party to violate a court order or other legal requirement), (ii) discloses only such information as is required by the governmental entity or otherwise required by law, and (iii) and uses its best efforts to obtain confidential treatment for any Confidential Information so disclosed.
(d) Remedies. Receiving Party understands and agrees that Disclosing Party shall suffer irreparable harm in the event Receiving Party breaches any of its obligations pursuant to Section 2 and that monetary damages will be inadequate to compensate Disclosing Party for such breach. Receiving Party agrees that, in the event of a breach or threatened breach of Section 2, Disclosing Party, in addition to any other rights, remedies or damages available to Disclosing Party at law, shall be entitled to a temporary restraining order, preliminary injunction or permanent injunction in order to prevent or to restrain any such breach by Receiving Party, its officers, employees, agents, attorneys and representatives or by any of Receiving Party’s Affiliates and such Affiliates officers, employees, agents, attorneys and representatives, or any other Person who receives Confidential Information from the Receiving Party (and to cover all costs (including reasonable attorneys’ fees) in doing so).
(e) Survival. The Parties hereto covenant and agree that this Section 2 shall continue to bind Receiving Party during the term of the Agreement with respect to all Confidential Information, for a period of 3 years afterward.
3. Term and Termination.
(a) Term. The term of this Engagement will begin on the latest date on which a Party executes this Agreement and will continue thereafter for twelve (12) months (the “Term”) or until terminated in accordance with this Agreement.
(b) Termination by Company. Notwithstanding the above, this Agreement may be terminated immediately by Company by written notice to Customer if (i) Customer fails to pay amounts due Company under this Engagement, including any applicable SOW and such failure continues for a seven (7) day period after notice by Company to Customer; (ii) Customer becomes subject to any bankruptcy or state insolvency proceedings and such proceedings are not dismissed within 30 days of commencement, or if Customer admits in writing its inability to pay its debts as they mature; (iii) a material adverse change has occurred in the financial condition of Customer as determined in the sole discretion of Company; (iv) Company determines that changes in the legal, regulatory, or compliance requirements render the Professional Services provided under this Agreement unlawful, noncompliant, obsolete; or (v) Customer is in breach of any other terms of this Agreement and such failure continues for thirty (30) days after notice by Company to Customer.
(c) Termination Without Cause. Either Party may terminate this Engagement without cause by giving thirty (30) days written notice to the other Party. In the event of any such termination, Company shall be entitled to payment of any invoices outstanding, and all fees or expenses accrued, but not yet payable, through the date of termination. Upon termination of this Agreement, Company shall securely destroy all Customer information in its possession using secure destruction methods and shall provide Customer with written confirmation that such destruction has been completed.
4. Intellectual Property.
(a) Ownership of Intellectual Property. Except for Professional Services that are defined as written reports requested in an SOW by Customer from Company that are governed by Section 4(b), the Parties agree that Company owns all right, title, and interest in and to (i) all software, tools, routines, programs, designs, diagrams, technology, ideas, know-how, processes, techniques, and inventions that Company makes, develops, conceives, or reduces to practice, whether alone or jointly with others, in the course of its performance under this Agreement; (ii) all enhancements, modifications, improvements and derivative works of each and any of the foregoing; and (iii) all copyrights, trademarks, service marks, trade secrets, patients, patent applications, and other proprietary rights related to each and any of the foregoing (collectively the “Company Property”).
(b) Intellectual Property Ownership of Written Reports. Upon payment in full of all Company fees under this Agreement, Customer shall have sole ownership of all right, title and interest in any written report produced by Company as a result of the Professional Services performed under this Agreement. All Professional Services, including, without limitation, any written reports or other documentation performed in connection with any Statement or Work pursuant to this Agreement are intended solely for the benefit of Customer any may not be used by or relied upon by any other Party without the prior written consent of Company. Subject to the condition regarding payment of Company fees, all written reports are deemed works for hire. To the extent that any written report may not, by operation of law, be works made for hire, Company hereby irrevocably assigns to Customer, and shall require its agents and subcontractors to assign to Customer, all patent, copyright and other proprietary rights of any kind in, to and under the written report. Company grants a license to Company Property incorporated into the Report pursuant to Section 4(c) as Company will retain ownership of Company Property.
(c) License to Customer. During the Term and subject to the terms of this Agreement, Company hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right and license to use the Company Property that is incorporated into Services delivered under this Agreement solely for Customer’s own internal business purposes. Customer shall not, directly, indirectly, alone, or with another Party, (i) copy, download, disassemble, reverse engineer, or decompile any of the Company Property, to the extent possible, (ii) modify, create derivative works based upon, or translate the Company Property; (iii) transfer or otherwise grant any rights in the Company Property in any form to any other Party, nor shall Customer attempt to do any of the foregoing or cause to permit any third party to do or attempt any of the foregoing, except as expressly permitted hereunder.
(d) Customer Information. Customer owns all right, title and interest in the data or information in its original form supplied to Company by or on behalf of Customer in connection with the Professional Services (“Customer Information”). Customer hereby grants Company (i) a non-exclusive, royalty free license during the term of this Agreement to use, copy, distribute, display, perform, and transmit Customer Information as necessary to perform its obligations under this Agreement and (ii) a non-exclusive, royalty free perpetual right and license to collect, store, use and disclose Customer Information for any lawful purpose provided that any such use or disclosure does not specifically identify Customer to any third party not under an obligation of confidentiality with regard to such information. With respect only to the license granted in clause (i) above, Customer represents and warrants that it owns or has the legal right and authority, and will continue to own or have the legal right and authority, to grant Company during the term of this Agreement the rights and licenses set forth herein and that Company’s use of Customer Information as provided therein will not infringe any copyright, patent, trademark, or other proprietary right, misappropriate any trade secret, violate any right of privacy or other right of a third party, or violate or contradict any law or any order of a court or administrative tribunal. The license granted in clause (ii) above is as is and without any warranties.
5. Payment Terms and Invoicing.
(a) Fees and Invoicing. The fees for the Engagement shall be set forth on an SOW. Customer is solely responsible for payment of all fees incurred under the Engagement and any corresponding SOWs. Company shall invoice Customer on a monthly basis for the fees incurred and any documented reimbursable expenses. Any amounts not paid to Company by their due date shall be subject to a service charge of 1% per month (or, if lower, the maximum amount permitted by law) that a payment is overdue. All fees billed under this Agreement are exclusive of all applicable taxes, duties, or other governmental assessments. Customer is solely responsible for paying all sales taxes and any other taxes, however characterized by the taxing authority. Customer shall provide a designated contact for receiving invoices, including the contact’s name and email address. Payment of any invoices is not contingent upon the substance of any conclusions reached by Company. Customer agrees to reimburse Company for any costs of collection, including reasonable attorney’s fees and costs.
(b) Expenses. Customer shall reimburse Company for any actual and reasonable expenses incurred by Company in connection with the provision of Professional Services hereunder, provided such expenses are approved in writing by Customer (which approval shall not be unreasonably withheld, conditioned, or delayed), except travel and lodging expenses which are herein deemed approved so long as directly related to the provision of Professional Services. Travel and lodging expenses will normally include the cost of local or long-distance transportation (airfare, rental car, mileage, tolls), meals, lodging (for out-of-town travel), and any other actual and reasonable travel expenses. Such travel and lodging expenses will be tracked separately and billed directly to Customer. All travel time will be billed at a flat $150 per hour rate. Total meals per workday are capped at a per diem rate of $95. The Customer agrees that Company personnel traveling more than 5+ hours by plane for a Customer Engagement are entitled to travel business class. Other than taxes that may already be included in underlying invoicing, the expenses amount does not include taxes which are Customer’s responsibility. Travel and lodging related expenses not directly paid by Customer are billed monthly and separate from any other billing cycles.
6. Disclaimer and Limitations.
(a) Disclaimer of Warranties. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROFESSIONAL SERVICES PROVIDED. WITHOUT LIMITING THE FOREGOING, EXCEPT AS SPECIFICALLY SET FORTH HEREIN, COMPANY DISCLAIMS ANY WARRANTY THAT THE PROFESSIONAL SERVICES PROVIDED BY COMPANY ARE OR WILL BE ACCURATE, ERROR-FREE OR UNINTERRUPTED. COMPANY MAKES NO, AND HEREBY DISCLAIMS ANY, IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OF FITNESS FOR ANY PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
(b) Disclaimer of Consequential Damages. COMPANY HAS NO LIABILITY WITH RESPECT TO THE PROFESSIONAL SERVICES, OR ITS OTHER OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS AND THE COST OF COVER) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, OR ANY OTHER TORTS EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(c) Limitations of Remedies and Liability. EXCEPT FOR ANY CLAIMS SUBJECT TO INDEMNIFICATION HEREUNDER, CUSTOMER’S SOLE REMEDIES FOR ANY BREACH OF THIS AGREEMENT BY COMPANY ARE CORRECTION OF ERRORS AS SET FORTH HEREIN AND THE PERFORMANCE OF ANY PROFESSIONAL SERVICES THAT ARE INCORRECT AS A RESULT OF THE BREACH. COMPANY’S TOTAL LIABILITY TO CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS, IS LIMITED TO ALL FEES PAID TO COMPANY BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY.
(d) No Guarantee. Nothing in this Agreement, and nothing in Company’s statements to Customer, shall be construed as a promise or guarantee about the outcome of the matters subject to this Agreement. Company will not have any obligation to anticipate events or circumstances. A recommendation by Company in connection with the Professional Services is not a guarantee. Any implementation of conclusions or recommendations provided by Company, and any corrective actions taken to address the risks identified by Company during this Engagement, shall be at Customer’s sole and exclusive discretion, and Company shall have no liability with respect to Customer’s decision regarding implementation of any conclusion, recommendation or corrective action.
(a) Indemnification. Each Party (“Indemnifying Party”) shall indemnify, defend and hold harmless the other, and its shareholders, members, board of directors, board of managers, officers, employees, agents and representatives (each, an “Indemnitee”) at all times from and after the Effective Date against any liability, loss, damages (including punitive damages), claim, settlement payment, cost and expense, interest, award, judgment, diminution in value, fine, fee, and penalty, or other charge, including reasonable legal expenses, arising out of or relating to any claim by an unaffiliated third party (i) alleging that the use in accordance with this Agreement of the Company Property or Professional Services (in the case of Company) or any Customer Information (in the case of Customer) infringes or misappropriates any copyright, patent, trademark, trade secret, right of privacy of an unaffiliated third party, or violate or contradict any law or any order of a court or administrative tribunal of such unaffiliated third party, or (ii) that arises or is alleged to have arisen solely out of the gross negligence or intentional misconduct of the Indemnifying Party (each a “Third Party Claim”).
(b) Indemnification Process. The Indemnified Party shall promptly notify the Indemnifying Party in writing of any Third-Party Claim, stating the nature and basis of the Third-Party Claim, to the extent known. The Indemnifying Party shall have sole control over the defense and settlement of any Third-Party Claim, provided that, within 15 days after receipt of the above-described notice, the indemnifying party notifies the Indemnitee of its election to so assume full control. The foregoing notwithstanding, the Indemnitee shall be entitled to participate in the defense of such Third Party Claim and to employ counsel at its own expense to assist in the handling of such claim, except that the Indemnified Party’s legal expenses in exercising this right shall be deemed legal expenses subject to indemnification hereunder to the extent that (x) the Indemnifying Party fails or refuses to assume control over the defense of the Third Party Claim within the time period set forth above; (y) the Indemnified Party deems it reasonably necessary to file an answer or take similar action to prevent the entry of a default judgment, temporary restraining order, or preliminary injunction against it; or (z) representation of both Parties by the same counsel would, in the opinion of that counsel, constitute a conflict of interest. The Indemnifying Party shall not settle any such Third-Party Claim without the written consent of the Indemnified Party, except for a complete settlement requiring only the payment of money damages to be paid by the Indemnifying Party.
(c) Sole Remedy. Indemnification pursuant to this Section is the Parties’ sole remedy for any Third Party Claim against the other Party in the nature of gross negligence, intentional misconduct, intellectual property infringement, or invasion of privacy.
8. Conflicts and Nonexclusive Relationship.
(a) Nonexclusive Relationship. Company follows procedures designed to identify conflicts of interest in connection with handling its Engagements. The Customer agrees that they will inform Company promptly of any additional Parties that may have an interest in this Engagement. Customer understands and agrees that Company will not be prohibited or restricted from providing Professional Services to other clients adverse to Customer on matters unrelated to this Engagement. Customer further acknowledges and agrees that Company has and shall be entitled to continue to have, create, and acquire, directly or indirectly, business interests in addition to those relating to the provision of Professional Services under this Engagement including, without limitation, the provision of services similar to the Professional Services to other client including potential or actual competitors of Customer.
9. Relationship of Parties.
The Parties expressly agree, and it is understood, that Company is an independent contractor and nothing in this Agreement shall be construed to designate Company or any of Company’s principals, partners, employees, consultants or subcontractors, as servants, agents, partners, employees, or joint venturers of Customer.
Neither Party may assign this Agreement or its rights or obligations hereunder without the prior written consent of the other Party. Notwithstanding the foregoing, Company may assign this Agreement or its rights or obligations hereunder (in whole or in part) upon written notice to Customer: (a) to an affiliate, or (b) in connection with a Change of Control. For purposes of this Agreement, “Change of Control” means the occurrence of any one or more of the following events: (i) an acquisition of any voting securities of Company (the “Voting Securities”) by any person or more than one person acting as a group, immediately after which such person or group has “Beneficial Ownership” (within the meaning of Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended (and any successor thereto)) and the rules and regulations promulgated thereunder, of 50% or more of the combined voting power or fair market value of Company’s then outstanding Voting Securities, (ii) a merger, consolidation or reorganization involving Company where the events described in the foregoing clause (i) would be the result, or (iii) an agreement for the sale or other disposition of all or substantially all of the assets of Company to any person or more than one person acting as a group.
11. Cyber Security
Company maintains and documents reasonable, technological, physical, administrative and procedural safeguards including, but not limited to, policies, procedures, guidelines, practices, standards and controls that ensure the privacy, confidentiality, security, integrity and availability of personal information of Company and its information technology network. Company has a SOC2 Type II report issued annually and will share such report with Customer, upon written request.
12. Jury Trial Waiver.
EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL..
13. Governing Law.
The laws of the State of New York (without giving effect to its conflict of laws principles) shall govern all matters arising out of or relating to this Engagement. Any claims or actions regarding or arising out of this Engagement must be brought exclusively in a court of competent jurisdiction sitting in New York County, New York, and each Party to this Engagement submits to the jurisdiction of such courts for the purposes of all legal actions and proceedings arising out of or relating to this Engagement. Company and Customer hereby waive, to the full extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any such action in such court and any claim that any such action, suit or proceeding has been brought in an inconvenient forum.
All notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, or (iii) the first business day after sending by email (provided email shall not be sufficient for notices of an indemnifiable claim). Notices to Company shall be addressed to SecurityScorecard, Inc., Attn: Legal Department; 1140 Avenue of the Americas, 19th Floor, New York, NY 10036, United States; with a copy to [email protected]. Billing-related notices to Customer shall be addressed to the relevant billing contact designated by Customer in the SOW. Unless otherwise agreed by the Parties in writing, all other notices to Customer shall be addressed to the contact information designated Customer in the SOW.
15. Entire Agreement.
This Agreement and any accompanying SOWs hereunder shall constitute the final, complete and exclusive expression of agreement between the Parties on the matters contained in this Agreement. All prior and contemporaneous negotiations and agreements between the Parties on matters related to this Agreement are expressly merged into and superseded by this Agreement.
(a) Non-Solicitation. Customer shall not, during and for one (1) year after the termination or expiration of this Agreement, recruit or hire, or attempt to recruit or hire, directly or by assisting others, any Company’s employee or subcontractor involved in the performance of the Professional Services under this Agreement; provided that, regardless of reason, hire or attempt to hire, directly or indirectly, any person who, during the previous twelve months, was a Company employee unless such employee has ceased to work at Company for at least 6 months. The Parties agree that nothing in this section shall prohibit general non-targeted solicitation (e.g. internet website job positions) and/or hiring as a result of, by Customer.
(b) Force Majeure. “Force Majeure Event” means any act or event that (a) prevents a Party (the “Nonperforming Party”) from performing its obligations or satisfying a condition to the other Party’s (the “Performing Party”) obligations under this Agreement, (b) is beyond the reasonable control of and not the fault of the Nonperforming Party, and (c) the Nonperforming Party has not, through commercially reasonable efforts, been able to avoid or overcome. “Force Majeure Event” does not include economic hardship, changes in market conditions, and insufficiency of funds. If a Force Majeure Event occurs, the Nonperforming Party is excused from the performance thereby prevented and from satisfying any conditions precedent to the other Party’s performance that cannot be satisfied, in each case to the extent limited or prevented by the Force Majeure Event. When the Nonperforming Party is able to resume its performance or satisfy the conditions precedent to the other Party’s obligations, the Nonperforming Party shall immediately resume performance under this Agreement. The relief offered by this paragraph is the exclusive remedy available to the Performing Party with respect to a Force Majeure Event.
(c) Severability. If any provision of this Agreement or the application thereof to any Party shall be declared void, illegal, or unenforceable, the remainder of this Agreement shall be valid and enforceable to the extent permitted by applicable law.
(d) Entire Agreement. This Agreement shall supersede any prior agreements between the Parties with respect to Professional Services. No representation, inducement or commitment other than as expressly set forth in this Engagement has been made or relied upon by any Party. This Agreement may not be modified or amended except in a writing signed by all Parties. The failure or delay by a Party to declare a breach or termination of this Agreement, or to exercise any right, power, or privilege that it may have under this Agreement, shall not be deemed to be, nor operate as, a waiver thereof. No waiver by a Party of any deviation from, or breach of, this Agreement shall be deemed to be a waiver of any subsequent deviation or breach.
(e) Amendments. The Parties can amend this Agreement only by a written agreement of the Parties that identifies itself as an amendment to this Agreement.
(f) Authorized Representatives. The individual signing on behalf of each Party below represents and warrants to the other that such individual is authorized to enter into this contract on behalf of, and to bind, the Party for which he, she, or they are signing.
(g) Non Disparagement. Other than as necessary to respond to any legal or regulatory process or proceeding or as may be required by law, both Parties shall refrain from making, or causing or encouraging others to make, any statements (including on social media) that disparage, denigrate, criticize, or malign the other Party.