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CyberOne Professional Services Agreement

This CyberOne Professional Services Agreement (this “Agreement”) is an agreement between CyberOne, LLC (“CyberOne”) and the customer identified in the relevant Statement(s) of Work (“Customer”) in which this Agreement is referenced. This Agreement contains the terms and conditions that govern the provision of professional services under one or more Statement(s) of Work and is effective as of the date the Statement of Work is fully signed (“Effective Date”).

BASE TERMS

1. Definitions

  • Affiliates: With respect to either party, any entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such party.
  • Change: Any material change to the Professional Services that (i) would modify or alter the delivery of the Professional Services or the composition of the Professional Services, (ii) would alter the cost to Customer for the Professional Services, or (iii) is agreed to by Customer and CyberOne in writing.
  • Customer Data: (i) Any data provided by Customer or Customer Affiliate(s) to CyberOne, (ii) Customer or Customer Affiliate’s data accessed or used by CyberOne, or transmitted by Customer or its Affiliate(s) to CyberOne or CyberOne Equipment in connection with CyberOne’s provision of the Professional Services, including, but not limited to, Customer and/or its Affiliate’s data included in any written or printed summaries, analyses, or reports generated in connection with the Professional Services.
  • Customer Reports: Written summaries, reports, analyses, and findings or other information or documentation prepared uniquely and exclusively for Customer in connection with the Professional Services and as specified in a SOW.
  • Export Laws: All applicable export laws and regulations of the United States and any other country where customer uses or accesses the Professional Services.
  • Indemnified Parties: In the case of CyberOne, its Affiliates and subcontractors, and each their respective directors, officers, employees, contractors and agents and, in the case of Customer, Customer, its Affiliates, and each of their respective directors, officers, employees, contractors and agents.
  • Intellectual Property or IP: Worldwide intellectual property, including but not limited to patents and patent applications, copyrights, and other rights in works of authorship, trademarks, trade secrets and other proprietary information of a party.
  • Professional Services: Professional services which may include, but are not limited to advisement, assessment, and implementation services.
  • Statement of Work or SOW: A mutually executed agreement describing the provision of Professional Services to Customer that references this Agreement.

2. Professional Services

During the term of this Agreement and subject to the terms and conditions herein, CyberOne agrees to provide Professional Services purchased by Customer in accordance with the terms of (i) this Agreement and (ii) the applicable Statement of Work. CyberOne shall provide the Professional Services described in a SOW that details the relationship of the parties regarding a specific project. Statements of Work shall (a) be signed by the parties; (b) incorporate by reference this Agreement; and (c) state the pertinent business parameters, including, but not limited to a detailed description of the Professional Services to be provided, each party’s responsibilities and terms of pricing, payment and expense reimbursement. Such business parameters shall control as to the engagement described in an SOW, but additional or conflicting legal terms may only be added by express amendment to this Agreement signed by authorized representatives of the Parties, even if they are to apply only to one SOW. Services purchased under a SOW or Service Order are valid for one year unless specifically identified otherwise within the SOW.

3. Work on Customer Premises

If delivery of the Professional Services requires CyberOne to be present at the Customer’s facilities, approval from Customer of travel requirements shall be indicated by Customer’s execution of the relevant SOW with terms indicating that travel is required. Subject to CyberOne’s adherence to the CyberOne travel reimbursement policy, or other travel reimbursement guidelines set forth in the applicable SOW, Customer shall reimburse CyberOne for all reasonable and actual out-of-pocket travel expenses, including, but not limited to, hotel, airfare, and meals incurred in connection with the implementation, performance, or delivery of the Professional Services as such travel shall be reasonably described in the applicable SOW. CyberOne will submit an itemized accounting for the actual expenses, including receipts, to Customer.

4. Orders

All SOWs are subject to the terms and conditions of this Agreement and will include the following: (i) a description of the Professional Services to be performed; (ii) the term of the Professional Services; (iii) the fees and invoicing method for the Professional Services; and (iv) any other applicable information agreed to by the parties.

5. Fees

CyberOne fees for the Professional Services shall be set forth on each SOW.

6. Change Control

Customer or CyberOne may propose Changes to the Professional Services provided under either a SOW. The Change request form will include a description of the Change, reason for the Change, and initiator of the Change, as well as impact to scope, price, quality, schedule, resources, and risks. To become effective, any Change to the applicable SOW shall be: (i) approved by both CyberOne and Customer, (ii) executed by an authorized representative of Customer and CyberOne, and (iii) memorialized in a SOW change order or other written amendment that describes the change and specifically identifies the portion of the SOW that is the subject of the Change.

7. Taxes

Customer shall be responsible, on behalf of itself and its Affiliate(s), for the payment of all taxes and fees assessed or imposed on the Professional Services provided or the amounts charged under the SOW in any country or territory in which the Customer receives the benefit of the Professional Services, including any sales, use, excise, value-added, or comparable taxes, but excluding taxes: (i) for which the Customer has provided a valid resale or exemption certificate, or (ii) imposed on CyberOne income or property or arising from the employment relationship between CyberOne and its employees. If Customer is required by law to withhold or deduct an amount from payments due to CyberOne under this Agreement, Customer shall include such additional amount to CyberOne with its payment to ensure that CyberOne receives, after such withholding or deduction, the amount that it would have been paid had no withholding or deduction been required.

8. Invoices and Payment

CyberOne will invoice Customer in accordance with the invoicing terms set forth in the applicable SOW. Unless otherwise specified in the SOW, (i) all charges, fees, payments, and amounts hereunder will be invoiced and paid in United States dollars, and (ii) all invoice amounts will be due and payable within thirty (30) days of CyberOne’s invoice date (“Invoice Due Date”). Unless otherwise specified, CyberOne shall submit invoices to Customer electronically, to the email address provided by Customer. Customer shall have the right to, in good faith, dispute an invoice or any portion of an invoice from CyberOne provided that, prior to the Invoice Due Date, Customer (a) timely pays any undisputed portion of the amount due and payable, and (b) provides CyberOne with written notice specifying the disputed amount and the basis for the dispute in reasonable detail. Except for amounts that are disputed in good faith by Customer in accordance with this Section 8, CyberOne reserves the right to charge Customer a late fee of one and a half percent (1.5%) per month or the maximum rate permitted by law, whichever is less, for invoices not paid on or before the Invoice Due Date. Customer shall reimburse CyberOne for all costs incurred in collection any late payments, including, without limitation, attorney’s fees. In addition, CyberOne, without waiving any other rights or remedies to which it may be entitled, shall have the right, upon prior written notice to Customer, to suspend the Professional Services until such payment is received.

9. Third-Party Product Purchases

If Customer is, pursuant to a SOW, purchasing any third-party products or services from or through CyberOne (“Third-Party Products”) as specified on the SOW, Customer agrees that such Third-Party Products shall be subject to the terms and conditions supplied by the original third party suppliers of the Third Party Products including but not limited to, warranties or any third-party end-user license agreements referenced in or attached to the SOW (or similar document) relating to such Third-Party Products.

10. Warranties

CyberOne warrants that (i) its personnel are adequately trained and competent to perform the Professional Services, and (ii) the Professional Services shall be performed in a professional manner in accordance with the relevant SOW and this Agreement. Customer agrees to provide prompt notice of any service concerns and CyberOne will re-perform any Professional Services that fail to meet this standard. This Agreement states all remedies for warranty claims. To the extent permitted by law, the parties disclaim all other warranties.

11. Confidentiality

Information exchanged under this Agreement will be treated as confidential if identified as such at disclosure or if the circumstances of disclosure would reasonably indicate such treatment. Confidential information may only be used for the purpose of fulfilling obligations or exercising rights under this Agreement, and shared with employees, agents, or contractors with a need to know such information to support that purpose. Confidential information will be protected using a reasonable degree of care to prevent unauthorized use or disclosure for 3 years from the date of receipt or (if longer) for such period as the information remains confidential. These obligations do not cover information that: i) was known or becomes known to the receiving party without obligation of confidentiality; ii) is independently developed by the receiving party; or iii) where disclosure is required by law or a governmental agency.

12. Proprietary Rights; Right to Use

Except as specifically provided herein, no transfer of ownership of any intellectual property will occur under this Agreement.

12.1 As to Customer: As between Customer and CyberOne, Customer will own all right, title and interest in and to (i) Customer Data, (ii) Customer IP, (iii) Customer Reports (subject to Section 12.2 below), and (iv) all confidential or proprietary information of Customer or Customer Affiliates, including other Customer files, documentation and related materials, obtained by Cyber

One in connection with this Agreement. Customer grants CyberOne a limited, nonexclusive license to use Customer Data to perform the Professional Services. Customer acknowledges and agrees that Customer’s provision of any Customer Report or any information contained in a Customer Report to an unaffiliated third party is at Customer’s own risk and CyberOne disclaims all liability arising from such disclosure.

12.2 As to CyberOne: This Agreement does not transfer or convey to Customer or any third party any right, title or interest in or to the Professional Services or any associated IP rights, but only a limited right of use as granted in and revocable in accordance with this Agreement. As between Customer and CyberOne, CyberOne will own all right, title, and interest in and to the Professional Services and any preexisting IP (“CyberOne IP”) in the Customer Reports, including, but not limited to, all inventions, methods, processes, and computer programs including any source code or object code, (and any enhancements and modifications made thereto) contained within the Professional Services, developed by CyberOne in connection with the performance of the Professional Services hereunder and of general applicability across CyberOne’s customer base. To the extent such CyberOne IP is included in any Customer Reports, CyberOne grants Customer a limited, non-exclusive license to use CyberOne IP for Customer’s internal use and consumption of the Professional Services and/or Customer Reports.

13. Term and Termination

This Agreement will commence upon the Effective Date and will remain in effect until terminated pursuant to this Section 13.

13.1 Termination for Cause: Either party may terminate this Agreement, or any SOW on written notice if the other party materially breaches this Agreement, or the specific terms of any or SOW, and fails to cure such breach within thirty (30) days after receipt of the notice. For an uncured breach on the part of CyberOne, CyberOne shall refund to Customer any prepaid Professional Service fees on a pro-rata basis to the extent such Professional Service fees are attributable to the period after the termination date. Except for termination arising under Section 13.3, termination of a specific SOW will not affect the term of any other SOW, provided the basis for terminating such SOW is not also the basis for terminating any other SOW where no breach exists. Termination of this Agreement for cause will have the effect of terminating all unfulfilled SOWs.

13.2 SOW Termination for Convenience: Customer may terminate a Professional Services SOW for convenience by providing CyberOne with thirty (30) day written notice. Upon termination, Customer shall pay CyberOne for all Professional Services performed and charges and expenses incurred by CyberOne up to the date of termination and Customer will receive all work in progress for which Customer has paid.

13.3 Termination for Insolvency: If either party becomes insolvent, unable to pay debts when due, files for or is subject to bankruptcy or receivership or asset assignment, the other party may terminate this Agreement and cancel any unfulfilled obligations. Any terms in the Agreement which by their nature extend beyond termination or expiration of the Agreement will remain in effect until fulfilled and will apply to both parties’ respective successors and permitted assigns.

14. Customer Cooperation

Customer acknowledges that CyberOne’s performance and delivery of the Professional Services are contingent upon: (i) Customer providing safe and hazard-free access to its personnel, facilities, equipment, hardware, network and information required to deliver the Professional Services, and (ii) Customer’s timely decision-making and provision of timely, accurate and complete information and reasonable assistance, including, granting of approvals or permissions. Customer will promptly obtain and provide to CyberOne any required licenses, approvals, or consents necessary for CyberOne’s performance of the Professional Services. CyberOne will be excused from its failure to perform its obligations under this Agreement to the extent such failure is caused solely by Customer’s delay in performing or failure to perform its responsibilities under this Agreement and/or the relevant SOW.

15. Limitation of Liability

Except for either parties’ respective indemnity obligations, the aggregate liability of each party under this Agreement shall not exceed the amounts paid or payable under the SOW giving rise to the claim. Neither CyberOne nor Customer will be liable for lost business, revenues or profits; business interruption or downtime costs; lost or corrupted data or software; loss of use of system(s) or network, or the recovery of such; indirect, punitive, special or consequential damages arising out of or in connection with this Agreement. This provision does not limit either party’s liability for: unauthorized use of intellectual property, death or bodily injury caused by their negligence; acts of fraud; nor any liability which may not be excluded or limited by applicable law. Neither party will bring any claim based on any Service provided hereunder more than eighteen (18) months after the cause of action accrues.

16. Indemnification

16.1 CyberOne Indemnity: CyberOne shall defend, indemnify and hold harmless the Customer Indemnified Parties from any damages, costs and liabilities, expenses (including reasonable and actual attorney’s fees) (“Damages”) actually incurred or finally adjudicated as to any third-party claim or action alleging that the Professional Services or any Customer Reports prepared or produced by CyberOne and delivered pursuant to this Agreement infringe or misappropriate any third party’s patent, copyright, trade secret, or other intellectual property rights enforceable in the country(ies) in which the Professional Services or any Customer Reports are performed or prepared for Customer by CyberOne (“Indemnified Claims”). If an Indemnified Claim under this Section 16.1 occurs, or if CyberOne determines that an Indemnified Claim is likely to occur, CyberOne shall, at its option: (i) obtain a right for Customer to continue using such Professional Services or Customer Reports; (ii) modify such Professional Services or Customer Reports to make them non-infringing; or (iii) replace such Professional Services or Customer Reports with a non-infringing equivalent. If CyberOne determines that (i), (ii) or (iii) above are not reasonably available, CyberOne may, at its option, terminate this Agreement and/or the affected Service Order and/or SOW and refund any pre-paid fees on a pro-rata basis for the allegedly infringing Professional Services or Customer Reports that have not been performed or provided. Notwithstanding the foregoing, CyberOne shall have no obligation under this Section 16.1 for any claim resulting or arising from: (a) modifications made to the Professional Services or Customer Reports that were not performed or provided by or on behalf of CyberOne; or (b) the combination, operation or use by Customer, or anyone acting on Customer’s behalf, of the Professional Services or Customer Reports in connection with a third-party product or service (the combination of which causes the infringement).

16.3 Mutual General Indemnity: Each party agrees to indemnify and hold harmless the other party from any third-party claim or action (i) for personal bodily injuries, including death, or tangible property damage resulting from the indemnifying party’s gross negligence or willful misconduct (as to which the exclusions and limitations of liability set out in Section 15 shall not apply) and (ii) relating to the indemnifying party’s violation or alleged violation of Section 17.7 (Export Compliance), below.

16.4 Indemnification Procedures: The Indemnified Party will (i) promptly notify the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement. In no event may either party enter into any third-party agreement which would in any manner whatsoever affect the rights of the other party or bind the other party in any manner to such third party, without the prior written consent of the other party.

17. General

17.1 Independent Contractor Relationship; No Publicity; Subcontracting; Assignment: The parties are independent contractors. Neither party will have any rights, power, or authority to act or create an obligation, express or implied, on behalf of another party except as specified in this Agreement. Neither party will use the other party’s name (except internal use only), trademark, logos, or trade name without the prior written consent of the other party. Notwithstanding the foregoing, CyberOne may use Customer’s name in connection with general lists of customers and experience. CyberOne has the right to assign, subcontract or delegate in whole or in part this Agreement, or any rights, duties, obligations or liabilities under this Agreement, by operation of law or otherwise, provided that CyberOne shall remain responsible for the performance of Professional Services under this Agreement. Otherwise, neither party may assign this Agreement without the permission of the other party which such permission shall not be unreasonably withheld or delayed; except that either party may assign this Agreement without the consent of the other party to a successor in connection with a merger, sale of all or substantially all of such party’s assets, or other change of control.

17.2 Force Majeure: Neither party shall be liable to the other party for any failure to perform any of its obligations under this Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control including, but not limited to, fire, flood, war, embargo, strike, riot, Internet Emergency or the intervention of any governmental authority (a “Force Majeure”). In such event, however, the delayed party must promptly provide the other party with written notice of the Force Majeure. The delayed party’s time for performance will be excused for the duration of the Force Majeure, but if the Force Majeure event lasts longer than thirty (30) days, or fifteen (15) business days as to a Force Majeure delaying Customer’s performance of its payment obligations, the other party may immediately terminate the applicable SOW by giving written notice to the delayed party. An Internet Emergency is a widespread disruption of Internet or electronic communications not caused by CyberOne, that renders them inaccessible or effectively unusable, for specific population(s) or location(s) and directly impact the ability of CyberOne to provide Professional Services.

17.3 Notices: Notices to CyberOne under this Agreement must be in writing and sent by postage prepaid first-class mail or receipted courier service at the address below for CyberOne. Notices to Customer shall be in writing and sent to the address provided in the relevant Statement of Work.

CyberOne, LLC
Attn: Legal
6851 Communications Parkway
Plano, TX, 75024
legal@cyberonesecurity.com

This Section 17.3 shall apply for formal contract notices only and shall not limit the parties’ ability to communicate via electronic mail or other methods as agreed to by the parties for routine communications.

17.4 Governing Law: This Agreement shall be governed by the laws of the State of Texas, excluding rules as to choice and conflict of law. Venue for any claim, dispute, arbitration, or lawsuit shall be Collin County, Texas.

17.5 Compliance with Laws: Each party agrees to comply with all laws and regulations applicable to such party in the course of performance of its obligations under this Agreement.

17.6 Export Compliance: Customer will comply with all Export Laws where Customer uses any of the Professional Services. Customer certifies that it is not on any of the relevant U.S. government lists of prohibited persons, including the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List. Customer will not export, re-export, ship, transfer or otherwise use the Professional Services in any country subject to an embargo or other sanction by the United States, including, without limitation, Iran, Syria, Cuba, the Crimea Region of Ukraine, Sudan and North Korea. Customer will not use the Professional Services for any purpose prohibited by the Export Laws.

17.7 Third Party Beneficiaries: The parties do not intend, nor will any Section hereof be interpreted, to create for any third-party beneficiary rights with respect to either of the parties.

17.8 Dispute Resolution: The parties will attempt to resolve any claim, or dispute or controversy (whether in contract, tort or otherwise) arising out of relating to this Agreement or the Professional Services hereunder (a “Dispute”) through face-to-face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator, rather than through litigation. The existence or results of any negotiation or mediation will be treated as confidential information. Notwithstanding the foregoing, either party will have the right to seek from a court of competent jurisdiction a temporary restraining order, preliminary injunction or other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any applicable limitations period, or preserve a superior position with respect to other creditors, although the merits of the underlying Dispute will be resolved in accordance with this paragraph. In the event the parties are unable to resolve the Dispute within thirty (30) days of notice of the Dispute to the other party, the parties shall be free to pursue all remedies available at law or equity.

17.9 Entire Agreement; Amendments; Severability; Section Headings; Survival: This Agreement, including any exhibits, attachments, applicable SOW(s) are the entire agreement between CyberOne and Customer with respect to its subject matter and supersede all prior oral and written understandings, agreements, communications, and terms and conditions between the parties including, without limitation, any terms contained within a purchase order issued by Customer in connection with the Professional Services or any separate security or privacy agreements executed by the parties. No amendment to or modification of this Agreement in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any provision of this Agreement is void or unenforceable, the remainder of this Agreement will remain in full force and effect. Section headings are for reference only and shall not affect the meaning or interpretation of this Agreement. All provisions regarding indemnification, warranty, liability, and limits thereon, and confidentiality and/or protections of proprietary rights and trade secrets shall survive the termination of this Agreement.

CyberOne, LLC
6851 Communications Parkway, Plano, TX 75024
(800) 842.8914 | www.cyberonesecurity.com