August 10, 2020
Master Service Agreement
THESE TERMS OF SERVICE (THE “AGREEMENT”) GOVERN CLIENT’S USE OF REBYC SECURITY’S SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. BY ACCEPTING THIS AGREEMENT, EITHER BY: (1) EXECUTING A QUOTE THAT REFERENCES THIS AGREEMENT; (3) SIGNING THIS AGREEMENT AS PART OF A EXECUTED MASTER SERVICES AGREEMENT AND SERVICE ORDER OR (3) USING REBYC SECURITY’S SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CLIENT” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
Client and Rebyc Security may be referred to in this Agreement individually as a “party” or jointly as the “parties.” This Agreement governs all purchased Services, as defined below, provided by Rebyc Security to Client. Rebyc Security may update or make changes to these terms from time to time. Rebyc Security encourages Client to periodically review and check this Agreement for updates to stay informed about the terms that govern Client’s use of the Services. Client’s continued use of the Services after Rebyc Security makes any changes is deemed to be acceptance of those changes. The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes, or as otherwise restricted by this Agreement. Rebyc Security’s direct competitors are prohibited from accessing the Services.
a. “Service” means professional services sold to Client to be performed by Rebyc Security.
b. “Service Description” means Rebyc Security’s standard, then-current description of a Service’s features. Service Descriptions will be defined in the appropriate Service Order.
c. “Service Order” means the Parties’ mutually-agreed commitment for Services under this Agreement. A Services Order may take the form of a written addendum, exhibit or statement of work (“SOW”) signed by the Parties.
2. Service Orders. During the Term, Rebyc Security and Client may agree upon a Service Order for Services that may include Services to be provided by Rebyc Security, fees, duration and renewal of the Services, and other responsibilities undertaken by Client and Rebyc Security.
3. Term; Termination. Unless earlier terminated by either party pursuant to the terms contained herein, this Agreement will continue in full force and effect until the expiration or termination of all SOWs entered into pursuant to this Agreement, provided, however, such expiration or termination of all SOWs will not terminate this Agreement until this Agreement has been in effect for 12 months. The term of each SOW will commence on the date indicated therein and will expire or terminate in accordance with its terms. If a SOW does not specify the terms of termination, such SOW shall terminate upon the performance of and payment for all Services set forth in such SOW. Notwithstanding the expiration or termination of a SOW, the terms and conditions of this Agreement will remain in full force and effect. In the event this Agreement is terminated, then all SOWs shall be terminated as well. This Agreement may be terminated at any time by either party: (i) upon written notice if the other party breaches any material term of this Agreement, and such breach remains uncorrected for thirty (30) business days following written notice; or (ii) immediately, if the other party becomes the subject of a voluntary or involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or similar action for the benefit of creditors as a consequence of debt, or if the other party otherwise ceases or threatens to cease business. Upon termination of a Service Order, all other Service Orders will continue in full force and effect unless and until terminated in accordance with the Agreement. Rebyc Security will have no liability to Client under any terminated Service Order. Subject to any termination conditions and/or payments specified in the applicable Service Order, upon termination of this Agreement, Rebyc Security will be entitled to be paid for all work performed, including fees and expenses, up to the effective date of termination.
4. Warranty. Rebyc Security will provide the Services described in this Agreement in a good and workmanlike manner and in accordance with generally accepted industry standards. THE WARRANTIES SET FORTH IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED CONCERNING THE SERVICES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
5. Fees; Payment; Taxes.
a. Client will pay fees (“Fees”) to: (i) Rebyc Security for the Services set forth in the Service Order, including, if applicable, reasonable travel and living expenses incurred in the course of performance of the Services. Fees with respect to the renewal of Services may be increased in accordance with the Service Order. Client will pay Rebyc Security invoiced amounts within thirty (30) days of the invoice date (“Due Date”). If any sum payable to Rebyc Security is not paid by the Due Date, Rebyc Security reserves the right, without prejudice to any other remedy, to charge interest on such overdue sum on a day to day basis from the due date until paid in full the lesser of one percent (1%) per month or the maximum rate permitted by applicable law. All Fees paid or payable for Services are non-cancellable and nonrefundable.
b. Client is responsible for all taxes or other similar charges, and all other mandatory payments imposed by government entities with respect to the Services or other items provided under this Agreement. Rebyc Security will bill applicable taxes as a separate item on Client’s invoice and will not include them in the Fees. If a transaction is exempt from tax, Client will provide Rebyc Security with a valid exemption certificate or other evidence of such exemption in a form acceptable to Rebyc Security.
a. “Confidential Information” means the non-public information that is exchanged between the Parties, provided that such information is: (1) identified as confidential at the time of disclosure by the disclosing party (“Discloser”), or (2) disclosed under circumstances that would indicate to a reasonable person that the information ought to be treated as confidential by the party receiving such information (“Recipient”). A Recipient may use the Confidential Information that it receives from the other party solely for the purpose of performing activities contemplated under this Agreement. For a period of three (3) years following the applicable date of disclosure of any Confidential Information, a Recipient will not disclose the Confidential Information to any third party. A Recipient will protect it by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication as the Recipient uses to protect its own confidential information of a like nature. The Recipient may disclose the Confidential Information to its Affiliates, agents and subcontractors with a need to know in order to fulfill the purpose of this Agreement, who have signed a nondisclosure agreement at least as protective of the Discloser’s rights as this Agreement.
b. This provision imposes no obligation upon a Recipient with respect to Confidential Information which: (i) is or becomes public knowledge other than by breach of this Agreement; (ii) was in the Recipient’s possession before receipt from the Discloser and was not subject to a duty of confidentiality; (iii) is rightfully received by the Recipient without any duty of confidentiality; (iv) is disclosed generally to a third party by the Discloser without a duty of confidentiality on the third party; or (v) is independently developed by the Recipient without use of the Confidential Information. The Recipient may disclose the Discloser’s Confidential Information as required by law or court order provided: (1) the Recipient promptly notifies the Discloser in writing of the requirement for disclosure; and (2) discloses only as much of the Confidential Information as is required. Upon request from the Discloser or upon termination of the Agreement, the Recipient will return all Confidential Information and all copies, notes, summaries or extracts thereof or certify destruction of the same.
c. Each party will retain all right, title and interest to such party’s Confidential Information. The parties acknowledge that a violation of the Recipient’s obligations with respect to Confidential Information may cause irreparable harm to the Discloser for which a remedy at law would be inadequate. Therefore, in addition to any and all remedies available at law, Discloser will be entitled to seek an injunction or other equitable remedies in all legal proceedings in the event of any threatened or actual violation of any or all of the provisions.
7. Service Rights.
a. Ownership Rights. Subject to Rebyc Security’s rights in Rebyc Security Information and Rebyc Security Derivative Work as each are defined below, all deliverables created specifically for and provided to Client by Rebyc Security under a Service Order will, upon final payment, become the property of Client for Client’s internal business purposes. Any inventions, designs, intellectual property or other derivative works of Rebyc Security Information, will vest in and be the exclusive property of Rebyc Security (“Rebyc Security Derivative Work”). Any inventions, designs, intellectual property or other derivative works of Client Information (asdefined below) will vest in and be the exclusive property of Client (“Client Derivative Work”).
b. Pre-Existing Work. Any pre-existing proprietary or Confidential Information of Rebyc Security used to perform the Services, including, but not limited software, appliances, methodologies, code, templates, tools, policies, records, working papers, know-how, data or other intellectual property, written or otherwise, including Derivative Works will remain the exclusive property of Rebyc Security (collectively, “Rebyc Security Information”). Any Client pre-existing information, including but not limited to any Client proprietary and Confidential Information provided to Rebyc Security by Client will remain the exclusive property of Client (“Client Information”). For the purposes of this Agreement, Rebyc Security Information and Client Information will be deemed Confidential Information.
c. Retention. Client acknowledges that Rebyc Security provides similar services to other Clients and that nothing in this Agreement will be construed to prevent Rebyc Security from carrying on such business. Client acknowledges that Rebyc Security may at its sole discretion develop, use, market, distribute and license substantially similar deliverables. Rebyc Security agrees that it will not market or distribute any deliverables that include the Confidential Information of Client. Client will not act to infringe the intellectual property rights of Rebyc Security or its licensors, including Rebyc Security Information. Other than as expressly permitted under this Agreement or applicable law, Client will not copy, sublicense, sell, rent, lease or otherwise distribute Rebyc Security Information, or permit either direct or indirect use of Rebyc Security Information by any third party. Client will not modify or create derivative works of Rebyc Security Information, or otherwise attempt to build a competitive product or service using Rebyc Security Information.
a. Rebyc Security will defend and indemnify and hold Client harmless from any claim asserting that the Services infringe any intellectual property right of a third party, and will pay any and all damages awarded by a court and actually paid by Client, or agreed to in settlement by Rebyc Security and attributable to such claim. Rebyc Security’s obligations under this provision are subject to Client’s doing the following: notifying Rebyc Security of the claim in writing, as soon as Client learns of it; providing Rebyc Security all reasonable assistance and information to enable Rebyc Security to perform its duties under this Section; allowing Rebyc Security sole control of the defense and all related settlement negotiations; and not having compromised or settled such claim. Notwithstanding the foregoing, Client may participate at Client’s expense in the defense of any such claim with its own counsel, provided Rebyc Security retains sole control of the claim. Client has the right to approve any settlement that affirmatively places on Client an obligation that has a material adverse effect on Client other than the obligations to cease using the affected deliverables or to pay sums indemnified hereunder. Such approval will not be unreasonably withheld.
b. If the Services are found to infringe, or if Rebyc Security determines in its sole opinion that either is likely to be found to infringe, then Rebyc Security will either (i) obtain for Client the right to continue to use the Service; or (ii) modify the Service so as to make it non-infringing, or replace it with a non-infringing equivalent substantially comparable in functionality; or, if Rebyc Security determines in its sole opinion that “(i)” and/or “(ii)” are not commercially reasonable, Rebyc Security may (iii)terminate Client’s rights and Rebyc Security’s obligations under this Agreement with respect to such Service, and refund to Client the Fees paid for the relevant Service. Notwithstanding the above, Rebyc Security will not be liable for any infringement claim to the extent that it is based upon: (1) modification of the Service other than by Rebyc Security; (2) use of the Service other than in accordance with this Agreement; or (3) Client’s continued use of an infringing Service after Rebyc Security, for no additional charge, supplies or offers to supply a modified or replacement non-infringing Service.
c. THIS SECTION “INDEMNITY” STATES CLIENT’S SOLE AND EXCLUSIVE REMEDY AND REBYC SECURITY’S SOLE AND EXCLUSIVE LIABILITY REGARDING INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
d. In the event that any willful misconduct or grossly negligent act or omission of a Party or its employees during the performance of Services on Client’s premises causes or results in the (i) loss, damage to or destruction of physical property of the other Party or third parties, and/or (ii) death or injury to any person, then such Party will indemnify, defend and hold the Party harmless from and against any and all resulting claims, damages, liabilities, costs and expenses (including reasonable attorney’s fees), subject to the Limitation of Liability herein.
9. Limitation of Liability.
a. IN NO EVENT, REGARDLESS OF THE LEGAL BASIS FOR THE CLAIM, WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES, LOSSES, EXPENSES OR COSTS OF ANY KIND, NOR, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, BUSINESS INTERRUPTION, OR LOSS OR CORRUPTION OF DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITY ARISING FROM BREACH OF CONFIDENTIALITY OR INDEMNITY OBLIGATIONS SET FORTH ABOVE, AND REGARDLESS OF THE LEGAL BASIS FOR THE CLAIM, EACH PARTY’S MAXIMUM LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES PAID OR OWED FOR THE SERVICES GIVING RISE TO THE CLAIM. NOTHING IN THIS AGREEMENT WILL EXCLUDE OR LIMIT A PARTY’S LIABILITY FOR ANY LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY LAW.
10. Governing Law.
a. This Agreement will be governed by and construed in accordance with the substantive laws of North Carolina.
11. Non-Solicitation. During the Term of this Agreement, and for a period of one (1) year thereafter, neither Party will actively solicit for hire, nor knowingly allow its employees to solicit for hire, any employee of either Party associated with the performance of Services without the prior written consent of the other Party. This provision will in no way restrict the right of either Party to solicit generally in the media for required personnel, and will not restrict employees, contractors, or representatives of either Party from pursuing on their own initiative employment opportunities from or with the other Party.
a. If required, while on Client’s premises, Rebyc Security personnel will follow all reasonable instructions provided to Rebyc Security prior to the performance of the Services.
b. Any subsequent modifications to this Agreement will be made in writing and duly signed by authorized representatives of both Parties or they will be void and of no effect. This Agreement is the complete and exclusive agreement between the Parties with respect to the subject matter hereof, and supersedes any previous agreement, proposal, commitment, representation, or other communication whether oral or written between the Parties regarding such subject matter. The terms of the Service Order, the Service Description, and the terms of this Agreement shall govern, in that order of precedence, in the event of any conflict by or among such documents.
c. Rebyc Security has the right to subcontract the performance of the Services to third parties, provided that Rebyc Security remains responsible for the contractual obligations set forth in this Agreement.
d. This Agreement may be executed in multiple counterparts all of which taken together will constitute one single agreement between the parties. Signatories hereto represent that they are duly authorized to sign this Agreement on behalf of their respective companies.
e. All notices will be in writing and addressed to the receiving party’s current business contact.
f. Client may not assign the rights granted hereunder or this Agreement, in whole or in part and whether by operation of contract, law or otherwise, without Rebyc Security’s prior written consent. Such consent will not be unreasonably withheld or delayed.
g. No person other than a Party to this Agreement will be entitled to enforce any term of it except as expressly provided herein.
h. Each Party will be excused from performance, other than payment obligations, for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, due to unforeseen circumstances or to causes beyond such Party’s reasonable control including but not limited to war, strike, riot, crime, acts of God, or shortages of resources.
i. If any provision of this Agreement is found partly or wholly illegal or unenforceable, such provision will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions will remain in full force and effect. A waiver of any breach or default under this Agreement will not constitute a waiver of any other right for subsequent breach or default.
j. Any term of this Agreement, which is intended to survive expiration or termination will survive, including, without limitation, confidentiality, restrictions on use of intellectual property, limitations on liability and disclaimers of warranties and damages, audit, governing law, and Client’s payment obligations accrued prior to termination.