These terms of service (the “Agreement”) outline the terms and conditions under which CYBER UNIT INC. (the “Provider”) agrees to provide services to the client identified and defined in the order form referencing this Agreement (the “Client”) and executed by such parties (the “Order Form”). This Agreement incorporates the Order Form by reference and is effective as of the date of last signature of the Order Form (the “Effective Date”). Certain capitalized terms used herein are defined in Section 16 of this Agreement.
BY RECEIVING THE PROVIDER’S SERVICES, THE CLIENT HEREBY AGREES AS FOLLOWS:
1.1. Services. Subject to the terms and conditions of this Agreement, in exchange for the Fees and Expenses, the Provider will provide the Client with the services (the “Services”) and the Deliverables (the “Deliverables”) expressly set out in the Order Form. The Services may include, among other things: (a) cyber security services (the “CS Services”); and (b) managed IT services (the “IT Services”). The Services may be amended, modified or supplemented at any time and from time to time with mutual consent and in a written form satisfactory to the Provider (a “Change Order”).
1.2 Subcontractors. The Provider may from time to time engage third parties (each a “Subcontractor”), such as independent contractors, affiliates, service providers, licensees and agents, to perform any part of the Services or any part of its obligations under this Agreement. The Provider will: (a) remain directly responsible to the Client for the acts or omissions of each Subcontractor; and (b) ensure that each Subcontractor is bound in writing to terms equally as protective of the Client as the terms and conditions of this Agreement.
1.3 Changes to Services. Notwithstanding Section 1.1 above, Provider reserves the right, in its reasonable discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of the Services, (ii) the competitive strength of or market for the Services, or (iii) the cost efficiency or performance of the Services; (b) comply with applicable laws; and (c) to temporarily suspend access to the Services from time to time during Scheduled Downtime.
1.4 Suspension of Services. Without limiting any other remedy available to Provider by law, in equity, or otherwise under this Agreement, in the event of a material breach or a reasonably suspected material breach by the Client of this Agreement, including overdue and outstanding payment obligations, the Provider may, in its sole discretion and without penalty of any kind, immediately suspend its obligations to the Client relating to the Services until such time as: (a) any such actual breach is cured by the Client to the reasonable satisfaction of Provider; (b) Provider is given reasonable assurance that there is no breach or suspected breach by the Client; or (c) the Client’s obligations which were delayed or outstanding have been performed to the reasonable satisfaction of Provider.
1.5 Scope of Services. For certainty, except as otherwise expressly included in the Order Form, the Services do not include support and repairs necessitated as a result of any alteration, adjustment, or repair by anyone other than the Provider, including any system or system component which has been damaged as a result of accident, misuse, or abuse (such as, but not limited to, use of incorrect line voltages, use of incorrect fuses, use of incompatible devices or accessories, improper or insufficient ventilation, or failure to follow operating instructions).
1.6 Onboarding Process. Upon execution of the Order Form, the Client agrees to reasonably cooperate with the Provider to complete the Provider’s security onboarding process as soon as reasonably practicable (the “Onboarding Process”). The Client acknowledges and agrees that: (a) the Onboarding Process must be completed prior to the provision of Services, and any delays in completing the Onboarding Process will delay the provision of the Services; and (b) there are no refunds of Fees and Expenses, irrespective of any incompletion of the Onboarding Process.
2. FEES AND PAYMENT TERMS
2.1 Payment. The Client will pay to the Provider the fees for the services (the “Fees”) and the Expenses in the amounts, at the times and according to the terms set out in the Order Form. All Fees payable under this Agreement are exclusive of any and all applicable taxes, which will be invoiced together with the Fees. Subject to the Order Form, invoices under this Agreement are payable, without holdback or setoff, within thirty (30) days of delivery, except where such Fees and Expenses invoiced are disputed by the Client in good faith. Invoice disputes will not affect the undisputed portions of the Fees and Expenses payable by the Client.
2.2 Expenses. Additional charges for travel, accommodation, out-of-pocket costs and all other expenses incurred by the Provider in connection with the Services (the “Expenses”) will be invoiced to the Client together with the Fees. For certainty, unless otherwise expressly provided in the Order Form: (a) all Expenses will be pre-approved by the Client in writing; and (b) any freight and postage costs will be invoiced on a monthly basis to Client without mark-up.
2.3 Failure of Payment. Interest will accrue on amounts past due at a rate of twelve percent (12%) per annum. Without limiting any other remedy available to the Provider hereunder, or by law or equity, in the event that the Client’s payment obligations are overdue and outstanding for a period of fifteen (15) days, the Provider may, in its sole discretion and notwithstanding anything in this Agreement, terminate this Agreement immediately upon notice to the Client.
2.4 Assumptions. The Fees are determined based on, among other things, the Assumptions (if any) defined in the Order Form. The Fees are subject to change by the Provider upon any material change to the Assumptions, or if any of the Assumptions are found to be materially unsustainable, misrepresented, inaccurate, unfulfilled or untrue. For certainty, the Fees are subject to change upon Provider’s discovery of requirements or complexities relating to the Services or Deliverables that were unknown as at the date of the Effective Date. In the event of any such change, Provider will promptly provide a Change Order to the Client for review and execution, and the Provider’s obligations to the Client under the Order Form will be suspended, without penalty to the Provider, until a Change Order is mutually executed by the parties.
2.5 Hourly Rate Changes. Provider reserves the right to adjust its hourly rates for any Services that are provided on a time and materials basis. Provider will provide at least thirty (30) days’ written notice to the Client prior to any such adjustment in its rates. Any such adjustments will be made in the Provider’s sole discretion, acting reasonably.
2.6 Refunds. Except as otherwise expressly set out in the Order Form, all Fees and Expenses are non-refundable.
2.7 Incident Response. For certainty, any incident response services that the Client may request and which the Provider may agree to provide from time to time will be subject to additional fees. Such fees will vary depending on the severity of the incident.
3. USE OF SERVICES
3.1 Authorization. Subject to the Client’s payment of the Fees, Provider hereby authorizes the Client to access and use, during the Term, the CS Services solely for the Client’s internal business operations in accordance with the terms and conditions set forth in this Agreement, provided that the Client remains directly responsible to Provider for the non-compliance of any Client Personnel with the terms of this Agreement, as if such non-compliance were its own. This authorization is non-exclusive and non-transferable.
3.2 Responsible Use. Except as otherwise expressly provided in this Agreement, or otherwise expressly permitted by Provider, the Client will not:
(a) access and use the Services in a manner that is in breach of any applicable laws, or in a manner that is non-compliant with the terms of this Agreement;
(b) use the Services in any way that is inconsistent with their reasonably intended purpose;
(c) reverse engineer, disassemble, decompile, decode, scrape, adapt or otherwise attempt to derive or gain access to the source code of, contents of, or underling data relating to, the Services;
(d) bypass or breach any security measures used by the Services;
(e) input, upload, transmit or otherwise provide to or through the Services any data, information or materials that interfere with or disrupt the integrity or performance of the Services, or the data contained therein, or that are unlawful or injurious, or contain, transmit or activate any virus, trojan horse, worm, backdoor, malware or other malicious computer code;
(f) cause or otherwise permit any part or whole of the Services to be published, printed, downloaded, transmitted, distributed, reengineered, or reproduced in any form whatsoever;
(g) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services; and
(h) remove, delete, alter or obscure any trade-marks, specifications, warranties or disclaimers, or any copyright, trade-mark, patent or other intellectual property or proprietary rights notices from the Services.
Furthermore, the Client acknowledges and agrees that:
(i) provided that the applicable backup IT Services are selected and paid for by the Client, the Provider will configure an automated file back-up system to backup the Client’s documents and data, and it is the Client’s sole responsibility to ensure that, inter alia: (A) the Client saves their documents and data to the location(s) established by the Provider for backing up; (B) files and data on portable devices such as USB flash drives, external hard-drives, tablets, mobile phones, will not be backed up unless Client includes the files and date on those devices in the folders scheduled to be backed up; and (C) the Client will notify the Provider of any backup related errors or warnings without delay as soon as it becomes aware of same;
(ii) the Client will provide safe and hazard-free access to its personnel, facilities, equipment, hardware, software, network and information for IT Services to be performed at the Client’s location; and
(iii) Provider’s performance and delivery of the IT Services are contingent upon the Client’s timely decision-making, notification of relevant issues or information and granting of approvals or permissions
4. PROPRIETARY RIGHTS
4.1 Services and Deliverables. Provider is and will remain the sole and exclusive owner of all right, title and interest (including all Intellectual Property Rights) in and to the Services. Except as otherwise expressly set out in the Order Form or a Change Order: (a) the Provider is and will remain the sole and exclusive owner of all right, title and interest (including all Intellectual Property Rights) in and to any and all Deliverables; and (b) the Provider hereby grants to the Client, subject to payment in full for the applicable Services and compliance with this Agreement, a non-exclusive, non-transferrable, royalty free right, during the Term, to use the Deliverables solely in the country(ies) in which the Client does business and solely for Client’s internal use.
4.2 Rights Reserved. Except for the rights and licenses expressly granted in this Agreement, neither party grants to the other party any Intellectual Property Rights under this Agreement, and all such rights, title and interests are hereby retained and reserved
5.1 Obligation. Receiving Party hereby acknowledges that the Disclosing Party’s Confidential Information is an asset of considerable value, the unauthorized use or disclosure of which would be damaging. Receiving Party will, during and subsequent to the Term: (a) keep the Confidential Information of the Disclosing Party confidential and use such Confidential Information solely for the purposes of exercising its rights and performing its obligations under this Agreement; (b) not directly, or indirectly, without authorization from the Disclosing Party reveal, report, publish, disclose or transfer such Confidential Information to any third party; (c) utilize procedures constituting a high degree of care to maintain the security of such Confidential Information and in no event less than a reasonable standard of care under the circumstances; and (d) disclose such Confidential Information to its employees and contractors, solely on a need-to-know basis as reasonably required under this Agreement, provided that, any access or disclosure to the Disclosing Party’s Confidential Information that is granted by the Receiving Party to its employees and contractors will first require the Receiving Party to enter into a written agreement with each such employee and contractor that contains confidentiality obligations and intellectual property ownership terms that are in content at least as protective as the provisions hereof. If a Receiving Party is required by law or court order to disclose any Confidential Information of the Disclosing Party, such Receiving Party will: (i) first notify the Disclosing Party of same in writing and without delay; and (ii) cooperate with the Disclosing Party, and use its own best efforts, to limit any such disclosure to the minimum disclosure necessary to comply with such law or court order.
5.2 Return of Confidential Information. Subject to the terms of this Agreement, Receiving Party will return or irretrievably destroy the Confidential Information of the Disclosing Party within thirty (30) days after such request from the Disclosing Party. If requested by the Disclosing Party, the Receiving Party will provide a statutory declaration certifying the return or destruction (as applicable) within five (5) days thereafter.
5.3 Injunctive Relief. Each party acknowledges and agrees that should it breach its obligations of non-disclosure under this Section 5, the other party may suffer harm which may not be adequately compensated by monetary damages. In such event, the non-breaching party may, in addition to any other remedy available in law or equity, seek specific performance and injunctive or other equitable relief without bond or proof of damages.
6. REPRESENTATIONS & WARRANTIES
6.1 Mutual. Each party hereby represents and warrants to the other party that: (a) it is a business duly registered or incorporated, validly existing, and in good standing under the laws of its jurisdiction; (b) it has full right and authority toenter into, execute, and perform its obligations under this Agreement; and (c) the execution, delivery, and performance of this Agreement constitutes a legal, valid, and binding agreement of such party.
6.2 Provider. Provider hereby represents and warrants to the Client that: (a) it will comply with all applicable laws; (b) it will perform the Services in a professional manner; and (c) the Services and Deliverables will conform in all material respects to the Order Form and any Change Order(s).
6.3 Client. The Client hereby represents and warrants to the Provider that the Client owns or otherwise has the necessary rights and consents in and relating to Client Data so that, to the extent any such data is required to be used by the Provider to deliver the Services and Deliverables in accordance with this Agreement, such use of the Client Data does not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights or any privacy or other rights of any party or violate any applicable laws.
7. TERM & TERMINATION
7.1 Term. This Agreement will commence on the Effective Date and will remain in effect until terminated pursuant to this Section 7 (the “Term”).
7.2 Termination for Convenience. Either party may at any time terminate this Agreement for any or no reason with fifteen (15) days’ prior written notice to the other party.
7.3 Termination for Cause. Either party may terminate this Agreement immediately upon notice if the other party: (a) fails to correct a material breach of its obligations under this Agreement within seven (7) days after receipt by such other party of written notification from the notifying party of such material breach, provided however, that a breach of the confidentiality obligations set forth in Section 5 will be grounds for immediate termination of this Agreement by written notice from the non-breaching party; or (b) files a bankruptcy petition, has a bona fide petition filed involuntarily against it, becomes insolvent, makes an assignment for the benefit of creditors, consents to the appointment of a trustee, or if bankruptcy reorganization or insolvency proceedings are instituted by or against the other party.
7.4 Effect of Termination. Upon termination of this Agreement for any reason: (a) the Order Form and any Change Orders then in effect will immediately terminate; (b) the Provider will cease providing the Services to the Client; (c) the Provider will deliver to the Client a final statement of account and/or invoice for Fees and Expenses accrued up to and including the date of termination, and the Client will pay all undisputed Fees and Expenses within seven (7) days of termination; and (d) any provision of this Agreement that imposes an obligation after termination of this Agreement will survive the termination of this Agreement, including Sections: 2.1, 2.2, 2.3, 4, 5, 7 – 12 (inclusive) and 15.
During the Term and for a period of one (1) year thereafter, neither party, directly or through an affiliate, will take any action to induce any employees, contractors (which includes Subcontractors) or personnel of the other party (“Personnel”) to discontinue their employment or contract (as applicable) with such other party, nor will either party employ or otherwise engage any Personnel. Notwithstanding, neither party will be prohibited from: (a) making general public solicitations for particular positions or job classifications and employing or otherwise engaging Personnel who respond thereto, provided such party can demonstrate that such Personnel initiated contact and were not specifically targeted or induced by such party; or (b) engaging any Personnel that have not been employed or otherwise contracted with the other party for a period of at least one (1) year.
Each party (the “Indemnitor”) will defend, indemnify and hold harmless the other party and their officers, directors, contractors, and employees (together, the “Indemnitees”) against and from any and all third party claims, demands, actions, causes of action, damage, loss, suits, proceedings, costs, liabilities, expenses and charges incurred or suffered by the Indemnitees as a result of or in connection with any material non-fulfillment or breach of any warranty or covenant, or any material misrepresentation, under this Agreement by the Indemnitor. This Section will survive any termination of this Agreement for a period of three (3) years.
10.1 General. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE CLIENT’S USE OF THE SERVICES AND DELIVERABLES IS AT THE CLIENT’S SOLE RISK. EXCEPT FOR THE EXPRESS WARRANTIES AND REPRESENTATIONS PROVIDED IN THIS AGREEMENT, THE PROVIDER HEREBY DISCLAIMS ANY AND ALL GUARANTEES, REPRESENTATIONS, CONDITIONS AND WARRANTIES REGARDING THE SERVICESAND DELIVERABLES, WHETHER IMPLIED OR STATUTORY, ORAL OR OTHERWISE, ARISING UNDER ANY LAW OR OTHERWISE, INCLUDING ANY CONDITIONS AND WARRANTIES WITH RESPECT TO VALIDITY, ACCURACY, NON-INTERRUPTION, NON-INFRINGEMENT, ERROR-FREE OPERATION, MERCHANTABILITY, QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES AND DELIVERABLES ARE PROVIDED “AS-IS”. ABSOLUTE SECURITY CANNOT BE GUARANTEED. WITHOUT LIMITING ANY OF ITS DISCLAIMERS AND LIABILITY LIMITATIONS HEREIN, THE PROVIDER WILL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM CYBERSECURITY ATTACKS OR BUSINESS INTERRUPTION DUE TO SYSTEM OUTAGES OR HARDWARE FAILURE. THIS SECTION WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
10.2 High-Risk Application. WITHOUT LIMITING ANYTHING HEREIN, THE SERVICES ARE NOT DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, WEAPONS SYSTEMS, LIFE-SUPPORT MACHINES, OR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE SERVICES COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY OR PROPERTY DAMAGE.
11. THIRD-PARTY PRODUCTS & WARRANTIES
11.1 Third Party Products. Some manufacturers’ warranties or terms and conditions for Third Party Products may become void if the Provider or anyone else, other than the manufacturer or its authorized representatives, provides services for or works on their hardware or software (such are providing maintenance and repair services). PROVIDER WILL NOT BE RESPONSIBLE FOR THIRD PARTY WARRANTIES BY VIRTUE OF PROVIDING THE SERVICES. ADDITIONALLY, THE PROVIDER WILL NOT BE LIABLE FOR VOIDING ANY THIRD PARTY WARRANTIES RESULTING FROM THE SERVICES. EXCEPT OTHERWISE EXPRESSLY AGREED IN THE ORDER FORM OR A CHANGE ORDER, ANY AND ALL THIRD PARTY PRODUCTS WILL BE EXCLUSIVELY SUBJECT TO TERMS AND CONDITIONS BETWEEN THE THIRD PARTY AND THE CLIENT. NOTWITHSTANDING ANYTHING HEREIN, PROVIDER WILL HAVE NO LIABILITY FOR THIRD PARTY PRODUCTS AND THE CLIENT WILL LOOK EXCLUSIVELY TO THE THIRD PARTY PROVIDER FOR ANY DAMAGES OR LIABILITY WITH RESPECT TO THE PROVISION OF SUCH THIRD PARTY PRODUCTS.
11.2 License to Third Party Products. Except as otherwise expressly agreed in the Order Form or a Change Order, the Client authorizes the Provider to copy, install, modify, when necessary and as required by the Order Form or a Change Order, all Third Party Products to be used in the Services or to be copied or stored for subsequent re-installation of a backup system or data. The Client hereby represents and warrants to Provider that it has obtained any licenses, consents, regulatory certifications or approvals required to give the Provider and its Subcontractors or employees such rights or license to access, copy, distribute, use and/or modify (including creating derivative works) or install any Third Party Products to be used in the Services, without infringing the ownership or license rights (including patent and copyright) of the providers or owners of such products.