Professional Services Agreement

PROFESSIONAL SERVICES AGREEMENT

READ THIS CONTRACT CAREFULLY. BY SIGNING THE QUOTE REFERENCING THIS PAGE, CUSTOMER IS AGREEING TO ENTER INTO THIS PROFESSIONAL SERVICES AGREEMENT WITH SCALABLE SECURITY DOING BUSINESS AS SCALESEC (“PROVIDER” OR ”SCALESEC”) FOR THE PURCHASE, SALE, AND DELIVERY OF SERVICES IN AN ONLINE ELECTRONIC FORMAT, AND TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS. THIS IS A LEGAL AGREEMENT BETWEEN SCALESEC AND CUSTOMER FOR SERVICES. PLEASE BE ADVISED THAT SCALESEC WILL NOT INITIATE ANY SERVICES UNTIL CUSTOMER HAS CLICKED THE BUTTON BELOW CONFIRMING THEIR AGREEMENT TO BE BOUND BY: (I) THE PRICE QUOTE ATTACHED HERETO, AND (II) THE TERMS OF THIS AGREEMENT. IF CUSTOMER DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE CLICK THE “CANCEL” BUTTON BELOW.

1) DESCRIPTION OF SERVICES

Provider will provide consulting and advisory services (the “Services”) pursuant to a statement of work substantially in the form attached hereto, including any exhibits thereto (“Statement of Work”). The Agreement and all Statements of Work hereunder are collectively referred to as this “Agreement.”
Each Statement of Work forms a separate agreement between Customer and Provider.
This Agreement does not obligate Customer to engage Provider to perform any Services nor for Provider to perform any Services.

2) PAYMENT FOR SERVICES

Unless otherwise specified in a Statement of Work, the Services will be provided to Customer on a fixed price basis, which shall be set forth in the Statement of Work. Provider will submit all invoices for Services to Customer upon the effective date of the Statement of Work . Customer agrees to pay the invoice amount within thirty (30) days from the invoice date. Payments for the services are non-refundable, subject to other payment provisions in this Agreement.
If any invoice is not paid when due, interest will be added to and payable on all overdue amounts at one-and-one half percent (1.5%) per month, or the maximum percentage allowed under applicable laws, whichever is less. Customer shall pay all costs of collection, including without limitation, reasonable attorney fees.
In addition to any other rights or remedy provided by law, if Customer fails to pay for the Services when due, Provider has the option to treat such failure to pay as a material breach of this Agreement and may terminate this Agreement and/or seek legal remedies.
Provider is an independent Provider and shall be solely responsible for any and all taxes, Social Security contributions or payments, disability insurance, unemployment taxes, and other payroll type taxes applicable to such compensation.

3) EXPENSE REIMBURSEMENT

Unless otherwise specified in a Statement of Work, no “out-of-pocket” expenses are required related to the services provided by Provider to Customer.

4) TRAVEL

All Services will be performed remotely and will not require travel.

5) CONFIDENTIAL INFORMATION

Confidentiality. Any confidential or proprietary information of the other party (“Confidential Information”) exchanged between the parties pursuant to this Agreement shall be governed by the duly executed non-disclosure agreement (“MNDA”). Absent an MNDA, the following terms and conditions shall apply:
1. Confidential Information shall include, without limitation, all customer lists and information relating to the parties’ products and pricing. A party’s Confidential Information shall not include any information which (i) becomes part of the public domain through no act or omission of the other party; (ii) is lawfully acquired by the other party on a non-confidential basis from a third party without any breach of a confidentiality obligation; (iii) is disclosed by such party to a third party without any obligation of confidentiality; or (iv) was independently developed by the other party without reference to such party’s Confidential Information. Each party agrees to use the other party’s Confidential Information only as necessary to perform their obligations under this Agreement and to maintain the confidentiality of the other party’s Confidential Information using at least the same degree of care in safeguarding the other’s Confidential Information as it uses in safeguarding its own Confidential Information, subject to a minimum standard of reasonable diligence and protection to prevent any unauthorized copying, use, distribution, installation, or transfer of possession of such information. If required by law, the receiving party may disclose Confidential Information of the disclosing party, provided the receiving party gives adequate prior notice of such disclosure to the disclosing party to permit the disclosing party to intervene and to request protective orders or other confidential treatment therefor.
2. Irreparable Harm. Both parties acknowledge that any use or disclosure of the other party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing party irreparable damage for which remedies other than injunctive relief may be inadequate, and both parties agree that the disclosing party shall be entitled to receive from a court of competent jurisdiction injunctive or other equitable relief to restrain such use or disclosure in addition to other appropriate remedies, without the necessity of posting any bond or surety.

6) OWNERSHIP AND ASSIGNMENT OF RIGHTS

Work And Data Ownership. Except as set forth below, Provider agrees that all inventions, work product, work performed, or discoveries made by Provider in the course of the performance of the Services (the “Work”) shall be the property of the Customer. Provider hereby assigns to the Customer the entire right, title, and interest in and to the Work and in and to all proprietary rights therein or based thereon including without limitation any and all copyrights, patents, trade secrets, or other intellectual property rights relating to all Work. Without limiting the foregoing, Provider agrees that the Work that is protectable by copyright constitutes “works made for hire” pursuant to United States Copyright Act (17 U.S.C., Section 101 et seq.).
Limited License of Customer Intellectual Property. The scope of the Services may include modifying Customer documentation, technical descriptions, or diagrams (“Customer Intellectual Property”) to meet Customer’s requirements. To permit Provider to provide this assistance, Customer grants Provider a limited, non-exclusive, revocable license to use, reproduce, and modify Customer Intellectual Property in the form provided by Customer solely for purposes of performing the work under this Agreement. Customer retains all rights and ownership interests to Customer Intellectual Property.
Provider’s Works. Any portion of the Work developed by or for Provider independently of this Agreement (“Provider’s Works”) and used in the delivery of the Services shall remain Provider’s intellectual property. Provider hereby grants Customer a limited, non-exclusive, non-transferable, internal use license to retain and use the following Provider’s Works for internal training and analysis only: (i) spreadsheets (i.e., market analysis, security controls), (ii) presentation slides from instructor-led training, and (iii) recordings of Provider’s training sessions and workshops.
Third-Party Materials Obtained by Provider
1. Customer acknowledges and agrees that Provider may have to obtain materials from third parties in performing the Work (“Third-Party Materials”).
2. Any Third-Party Materials that are provided to Customer will remain the sole and exclusive property of the respective third parties and will be subject to their applicable license, ownership and use terms and conditions.
3. Provider shall provide to Customer a listing of all Third-Party Materials that Provider includes in the Work and shall provide a link and/or access to the applicable license text.
Third-Party Materials Obtained by Customer
1. Customer acknowledges and agrees that Provider may require Third-Party Materials from vendors, suppliers, partners, and other third parties affiliated with Customer in performing the Work.
2. Customer agrees to provide Provider any Third-Party Materials when requested by Provider in accordance with the contractual obligations and license requirements of said materials.
3. Customer shall advise Provider of all Third-Party Materials with licensing restrictions or other limitations that may affect Provider’s rights or ability to perform the Work.
4. Customer acknowledges that any Third-Party Materials will remain the sole and exclusive property of the respective third parties, subject to their applicable license, ownership and use terms and conditions.

7) WARRANTY

Provider warrants that: (i) the Services will be performed in a professional and workmanlike manner and that none of such Services or any part of this Agreement is or will be inconsistent with any obligation Provider may have to others; (ii) all work under this Agreement shall be Provider’s original work and none of the Services or Work or any development, use, production, distribution or exploitation thereof will infringe, misappropriate or violate any intellectual property or other right of any person or entity (including, without limitation, Provider); (iii) Provider has the full right to provide the Customer with the assignments and rights provided for herein; (iv) Provider shall comply with all applicable laws and Customer safety rules in the course of performing the Services and (v) if Provider’s work requires a license, Provider has obtained that license and the license is in full force and effect.
THE SERVICES DO NOT CONSTITUTE LEGAL, TAX OR INVESTMENT ADVICE. Provider is providing the Services based on the specific information provided by Customer and will not conduct an independent investigation of legal issues related to the Services it provides. Provider relies on the accuracy of information provided by Customer, and Customer represents that the information it provides Provider is true and accurate to the best of its knowledge. Customer is and remains solely responsible for compliance with all international and domestic laws regarding data security, data retention, privacy, and data breach notifications.
NOTWITHSTANDING PARAGRAPH 7(a), IT IS MUTUALLY AGREED AND UNDERSTOOD THAT THE SERVICES AND WORK ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED TO THE FULL EXTENT OF THE LAW.

8) INDEMNITY

Each party agrees to defend, indemnify, and hold harmless the other party and its officers, directors, agents, affiliates, distributors, representatives, and employees from any and all third-party claims, demands, liabilities, costs, and expenses, including reasonable attorney’s fees, resulting from the indemnifying party’s material breach of any duty, representation, or warranty under this Agreement, or arising from any act or omission of the indemnifying party.

9) LIMITATION OF LIABILITY

IN NO EVENT SHALL PROVIDER OR THOSE ACTING ON ITS BEHALF BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. PROVIDER”S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO PROVIDER PURSUANT TO THE SPECIFIC STATEMENT OF WORK WHICH IS ATTRIBUTABLE TO THE CLAIM. THE ABOVE LIMITATIONS WILL APPLY REGARDLESS OF THE TYPE OF ACTION OR THEORY OF LIABILITY, AND EVEN IF REMEDIES FAIL OF THEIR ESSENTIAL PURPOSES.

10) TERM/TERMINATION

Term. This Agreement shall run for the term of the respective Statement of Work unless earlier terminated.
Termination for Convenience. Provided no Statement of Work is active, either Party may terminate this Agreement or any Statement of Work by giving the other Party thirty (30) day’s written notice.
Termination for Default. If either Party defaults in the performance of any of its material obligations under this Agreement and such default is not remedied within thirty (30) days after receiving written notice of the default from the non-defaulting Party, the non-defaulting Party may terminate this Agreement by written notice to the defaulting Party. Upon such termination, Customer shall pay Customer for all Services performed, and reimbursable expenses incurred up to the date of termination.
Effect of Termination. Upon termination of this Agreement: (i) Provider shall cease providing the Services; (ii) Customer shall immediately pay Provider all undisputed amounts due as of the termination date; and (iii) Provider shall return Customer’s Confidential Information. Except as otherwise provided in this Agreement, termination of this Agreement shall not limit Customer from pursuing other remedies available to it. Termination of any Statement of Work will not automatically impact the status of this Agreement; however, termination of this Agreement automatically terminates any Statement of Work then in effect.
Survival. The following provisions will survive termination of this Agreement: Sections 5, 6, 8, 9 10 and 11.

11) MISCELLANEOUS

Entire Agreement. This Agreement, together with Statements of Work, exhibits, and any documents incorporated by reference into this Agreement, constitutes the entire understanding and agreement between the parties with respect to its subject matter, and supersedes any prior written or oral agreements between the parties.
Relationship of Parties. It is understood by the parties that Provider is an independent contractor with respect to Customer, and not an employee of Customer. Customer will not provide employee-related benefits, including health insurance benefits, paid vacation, or any other employee benefit, for the benefit of Provider.
Governing Law and Jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of California, without reference to rules regarding conflicts of laws. Any dispute arising out of this Agreement shall be submitted to a state or federal court sitting in San Diego, California, which shall have the exclusive jurisdiction regarding the dispute and to which court’s jurisdiction the parties irrevocably submit.
Attorney’s Fees. In any legal action between the parties concerning this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees and costs.
Notices. Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the address set forth in the Statement of Work or to such other address as one party may have furnished to the other in writing. Notices may also be given via electronic mail or other digital means provided the parties have previously established a course of conduct of communicating via electronic means, and sufficient evidence of receipt of Notice is provided.
Severability. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason by an arbitrator chosen by a party or a court of competent jurisdiction, the remaining provisions shall continue to be valid and enforceable. If such arbitrator or court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
No Modification or Waiver. Provider will not agree to any modification, amendment, or waiver of any provision of this Agreement. No failure or delay by Provider in exercising any right, power, or remedy under this Agreement, except as specifically provided in this Agreement, shall operate as a waiver of any such right, power or remedy.

LEGAL AGREEMENT

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