MASTER SERVICES AGREEMENT
This Master Services Agreement (this “Agreement”) is made available by Security BiaS Inc., a Delaware corporation (“Security BiaS”). This Agreement governs all services provided by Security BiaS to any entity (“Client”) that executes a Statement of Work (“SOW”) referencing this Agreement by title and URL. This Agreement becomes effective between Security BiaS and Client as of the Effective Date of the first such SOW executed by both parties.
Definitions.
“Applicable Law” means all international, federal, state, provincial, and local laws, regulations, binding regulatory guidance, directives, and governmental requirements applicable to the Services, or either party’s performance under this Agreement, including applicable employment law, labor law, and laws regarding employee classification.
“Confidential Information” means information that either party (“Discloser”) discloses to the other party (“Recipient”) under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. “Confidential Information” does not include information that Recipient can document: (1) is independently developed by Recipient; (2) is rightfully given to Recipient by a third party without confidentiality obligations; or (3) becomes public through no fault of Recipient. Security BiaS’s Confidential Information includes non-public information regarding the Services.
“Client Materials” means all content, information, and materials provided to Security BiaS by or on behalf of Client in connection with the Services.
“Intellectual Property Rights” means all intellectual property any proprietary rights throughout the world (registered or unregistered), including patent rights (including utility models), copyrights, moral rights, trademark and service mark rights, trade secret rights, and any other similar proprietary or intellectual property rights, together with all applications for any of the foregoing.
“Services” means Security BiaS’s advisory services with respect to certain financial and strategic matters related to the business and affairs of Client, as described in each SOW.
“Work Product” means any work product, (1) that is developed specifically and solely for Client, and (2) that includes Client Confidential Information, excluding Security BiaS Materials (defined below).
Services.
Services. Subject to Client’s compliance with this Agreement, Security BiaS will provide the Services to Client as described in each SOW.
Projects. Each SOW executed by the parties that references this Agreement by title and URL is hereby incorporated into and governed by this Agreement. In the event of a conflict between this Agreement and a SOW, this Agreement will control unless the SOW expressly states otherwise.
Subcontractors. Security BiaS may use subcontractors (including for the processing of information) or other third parties to perform its obligations under this Agreement, but Security BiaS will remain responsible for all such obligations.
Client Cooperation. Client will: (1) cooperate with Security BiaS with respect to the Services; and (2) promptly respond to any Security BiaS requests to provide direction, information, or approvals that are reasonably necessary for Security BiaS to provide the Services. If Security BiaS’s performance of its obligations under this Agreement is prevented or delayed by Client’s failure to cooperate with Security BiaS, or by any other act or omission of Client or its agents, subcontractors, consultants, or employees, Security BiaS’s resulting failure to perform its obligations will not constitute a breach of this Agreement.
Intellectual Property Rights.
Security BiaS Materials. Security BiaS and its licensors are, and shall remain, the sole and exclusive owners of all Security BiaS Materials. “Security BiaS Materials” mean, other than Work Product, all works of authorship, ideas inventions, discoveries, know-how, methodologies, and other materials developed or created by Security BiaS including those developed or created (1) prior to the commencement or independently of the Services; or (2) in connection with the Services but that are generally applicable across Security BiaS’s clients, including all Intellectual Property Rights therein. No ownership rights in the Security BiaS Materials are transferred to Client by this Agreement. Client does not have any rights in or to the Security BiaS Materials except for the limited express rights granted in this Agreement. For the avoidance of doubt, nothing in this Agreement will purport to prevent Security BiaS from using Security BiaS’s general knowledge and skills acquired or enhanced during the performance of this Agreement.
License to Security BiaS Materials. Security BiaS hereby grants Client a limited, non-exclusive, irrevocable, perpetual, fully paid-up, royalty-free, non-transferable, non-sublicensable, worldwide license to reproduce, publicly perform, display, transmit, and distribute (through any media now known or hereinafter developed) any Security BiaS Materials that are incorporated in the Work Product, solely as incorporated (without modification) within the Work Product, for any purpose.
Assignment of Work Product. Security BiaS hereby assigns to Client all right, title, and interest in and to the Work Product, including all related Intellectual Property Rights therein.
Client Materials. Client owns all right, title, and interest in and to the Client Materials. No ownership rights in the Client Materials are transferred to Security BiaS by this Agreement. Security BiaS does not have any rights to the Client Materials except for the limited express rights granted in this Agreement. Client hereby grants Security BiaS a worldwide, non-exclusive, irrevocable, royalty-free, fully paid, sublicensable license during the Term to host, store, transfer, display, perform, reproduce, modify, create derivative works of, distribute, process, and otherwise use Client Materials, solely as necessary to provide the Services.
Confidentiality.
Each party as Recipient will take reasonable precautions to protect Discloser’s Confidential Information and will not use (except as expressly permitted in this Agreement) or divulge to any third party any Confidential Information except to those employees and representatives of Recipient who have a need to know the Confidential Information to enable Recipient to perform its obligations under this Agreement. Recipient is responsible and liable for its employees’ and representatives’ compliance with this Section 4, as if their actions or inactions were an action or inaction of Recipient. The foregoing will not apply with respect to any Confidential Information five years after the disclosure thereof (or, with respect to trade secrets, for so long as such Confidential Information constitutes a trade secret under Applicable Law), or any Confidential Information that is required to be disclosed by Applicable Law.
This Agreement should not be construed to prohibit disclosure of Confidential Information if such disclosure is required by law or the valid order of a court or other governmental authority. If such disclosure is required, Recipient will first give notice to Discloser and make a reasonable effort to obtain a protective order requiring that such Confidential Information be used only for the purposes for which the order was issued. Recipient acknowledges that unauthorized disclosure of Confidential Information may cause irreparable harm, and that Discloser will be entitled to seek equitable relief without posting bond.
Fees and Payment.
Fees and Payment. Client will pay Security BiaS all fees described in an applicable SOW, in accordance with the terms therein (the “Fees”). All Fees are non-refundable, except as otherwise specified in this Agreement. If Client fails to make any payment when due (in accordance with the applicable SOW), Security BiaS may (1) charge interest at 1.5% per month and (2) suspend the Services until all overdue amounts are paid.
Taxes. Other than federal and state net income taxes imposed on Security BiaS, Client will bear all taxes, duties, and other governmental charges relating to the Services.
Term and Termination.
Term. This Agreement will commence as of the effective date of the first SOW executed by both parties that references this Agreement and will continue in effect so long as an SOW is in effect, unless terminated earlier in accordance with this Section (the “Term”).
Termination for Convenience. Security BiaS may terminate: (1) this Agreement in its entirety; (2) any individual SOW; or (3) the Services under any SOW in part, in each case upon thirty (30) days’ prior written notice to Client. Termination of a specific SOW or portion thereof will not, by itself, terminate this Agreement or any other SOW then in effect.
Termination for Breach or Insolvency. Either party may terminate this Agreement, effective upon written notice to the other party, if the other party materially breaches this Agreement and such breach is incapable of cure, or (if such breach capable of cure) the breaching party does not cure such breach within 30 days of receiving notice of it. Either party may terminate this Agreement, effective immediately upon written notice, if the other party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors, or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
Effect of Termination. Upon termination for any reason by either party, Client will pay all Fees accrued or committed under any SOW through the effective date of termination. All Fees are non-refundable, unless otherwise specified in a mutual written agreement. Either party’s termination of this Agreement is without prejudice to any other remedies it may have at law or in equity and does not relieve either party of liability for breaches occurring prior to the effective date of termination. Neither party will be liable to the other for damages arising solely as a result of terminating this Agreement in accordance with its terms. Upon termination, each party will promptly return or destroy the other party’s Confidential Information and any Client Materials in its possession or control, except that a party may retain copies solely to the extent required by Applicable Law, for archival or audit purposes, or in order to exercise or enforce its rights under this Agreement, provided that all such retained information remains subject to the confidentiality obligations herein.
Survival. The following sections of this Agreement will survive any termination of this Agreement: Sections 1 (Definitions), 3.A (Security BiaS Materials), 3.B (License to Security BiaS Materials), 4 (Confidentiality), 5 (Fees and Payment), 6.D (Effect of Termination), 6.E (Survival), 7.D (Disclaimer), 8 (Indemnification), 9 (Limitations of Liability), 10 (Arbitration), and 12 (Miscellaneous).
Warranties and Disclaimers.
Mutual Warranties. Each party represents and warrants to the other that: (1) this Agreement has been duly executed and delivered and constitutes a binding agreement enforceable against the party in accordance with its terms; (2) no authorization or approval from any third party is required in connection with the execution, delivery, or performance of this Agreement by the party; and (3) the execution and delivery of this Agreement by the party do not violate Applicable Law or the terms of any other agreement to which it is a party or by which it is otherwise bound.
Security BiaS Warranties. Security BiaS represents and warrants to Client that Security BiaS will provide the Services in a good and workmanlike manner in accordance with relevant industry standards. For avoidance of doubt, Client is solely responsible for all business decisions made in connection with or arising from the Services.
Client Warranties. Client represents and warrants to Security BiaS that: (1) Client has the necessary rights to authorize Security BiaS to use the Client Materials in accordance with this Agreement, and such use by Security BiaS of Client Materials does not and will not infringe or violate any third-party right, including any Intellectual Property Right or privacy right; (2) Client Materials are complete, accurate, and truthful.
Disclaimers.
General. EXCEPT FOR THE LIMITED WARRANTIES DESCRIBED IN THIS SECTION 7 (WARRANTIES AND DISCLAIMERS), SECURITY BIAS MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES OR ANY INFORMATION, ADVICE, OR MATERIALS PROVIDED TO CLIENT IN CONNECTION THEREWITH, OR OTHER RESULTS THEREOF (INCLUDING WORK PRODUCT) (THE SERVICES, TOGETHER WITH SUCH INFORMATION, ADVICE, MATERIALS, AND RESULTS, “ADVICE”) AND SPECIFICALLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ADVICE IS PROVIDED “AS IS.” WITHOUT LIMITING THE FOREGOING, SECURITY BIAS MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING (AND EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES THAT) THE ACCURACY OR COMPLETENESS OF ANY ADVICE, OR THAT SUCH ADVICE OR CLIENT’S USE THEREOF IS (OR WILL BE) ADEQUATE FOR, OR DOES (OR WILL) ACHIEVE, CLIENT’S BUSINESS PURPOSE OR REQUIREMENTS, INCLUDING MEETING CLIENT’S FINANCIAL, PRODUCT, SERVICE, OR OPERATIONAL GOALS.
Security BiaS’s Limited Role as Advisor. CLIENT ACKNOWLEDGES THAT SECURITY BIAS’S ROLE IS LIMITED TO ADVISING CLIENT ON STRATEGIC MATTERS. SECURITY BIAS DOES NOT PROVIDE FINANCIAL, ACCOUNTING, TAX, OR LEGAL SERVICES. CLIENT ASSUMES SOLE RESPONSIBILITY FOR OPERATING ITS BUSINESS IN COMPLIANCE WITH ANY AND ALL RULES, LAWS, AND REGULATIONS, INCLUDING OBTAINING ANY REQUIRED REGISTRATIONS, LICENSES, PERMITS, AND OTHER PERMISSIONS. SECURITY BIAS HEREBY EXPLICITLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY ADVICE OR CLIENT’S USE THEREOF WILL MEET CLIENT’S LEGAL, INDUSTRY, OR OTHER REQUIREMENT OR OBLIGATIONS. CLIENT HEREBY IRREVOCABLY WAIVES ANY CLAIM IT MAY NOW, OR IN THE FUTURE, HAVE AGAINST ANY SECURITY BIAS INDEMNIFIED PARTY AND THEIR HEIRS, SUCCESSORS, AND ASSIGNS (UNDER THIS AGREEMENT, AT LAW, OR IN EQUITY) ARISING OUT OF OR RELATING TO CLIENT’S NON-COMPLIANCE WITH ANY LAWS OR REGULATIONS REGARDING CLIENT’S BUSINESS, PRODUCTS, OR SERVICES.
Indemnification.
Defense. At Security BiaS’s option and request, Client will defend Security BiaS and its officers, directors, employees, agents, Security BiaSs, licensors, and affiliates (collectively, the “Security BiaS Indemnified Parties”) from any actual or threatened third-party claim, proceeding, suit, or inquiry arising out of or based on Client’s breach of Section 7 (Warranties and Disclaimers), or in connection with any claims or government enforcement actions relating to Client’s business, products, or services (a “Claim”). If Security BiaS requests Client defend Security BiaS from any Claim, Security BiaS will: (1) give Client prompt written notice of the Claim; (2) provide assistance in connection with the defense and settlement of the Claim as Client may reasonably request; and (3) comply with any settlement or court order made in connection with the Claim. Notwithstanding the previous sentence, Client will not enter into any settlement that involves an admission of guilt or liability of any Security BiaS Indemnified Party without Security BiaS’s prior written consent. Security BiaS may participate in the defense of a Claim at its own expense and with counsel of its own choosing.
Indemnification. Client will indemnify the Security BiaS Indemnified Parties from and pay: (1) all damages, costs, and attorneys’ fees finally awarded against the Security BiaS Indemnified Parties in any Claim; (2) all out-of-pocket costs (including attorneys’ fees) reasonably incurred by the Security BiaS Indemnified Parties in connection with the defense of a Claim (other than attorneys’ fees and costs incurred without Client’s consent after Client has accepted defense of the Claim); and (3) all amounts that Client agrees to pay to any third party to settle any Claim.
Limitations of Liability.
Exclusion of Damages. NEITHER SECURITY BIAS NOR ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS, OR EMPLOYEES WILL BE LIABLE TO CLIENT FOR ANY LOST PROFITS, LOSS OF BUSINESS, OR LOSS OF DATA, OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF SECURITY BIAS IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
Damages Cap. SECURITY BIAS’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE TOTAL FEES PAID BY CLIENT TO SECURITY BIAS UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Applicability. Some jurisdictions do not allow the exclusion or limitation of damages. This Section 9 (Limitations of Liability) will apply solely to the extent not prohibited under Applicable Law. The limitations specified in this Section 9 shall survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
Arbitration. Any claim, dispute, or controversy between the parties arising out of or relating to this Agreement which cannot be satisfactorily settled by the parties will be finally and exclusively settled by binding arbitration (“Arbitration”) upon the written request of either party. The Arbitration will be administered under the American Arbitration Association’s Commercial Dispute Resolution Procedures in force when the notice of arbitration is submitted (the “Rules”). The Arbitration will be conducted by one arbitrator selected in accordance with the Rules. The seat of the Arbitration will be in New York, New York. The Arbitration will be conducted in English. The Arbitration award will be final and binding upon the parties, and judgment upon such award may be entered in any court having jurisdiction. The Arbitration proceedings and any award will be each party’s Confidential Information. The arbitrator’s award may include compensatory damages against either party but the arbitrator will not be authorized to and will not award punitive damages against either party. The parties agree to keep confidential the existence of the arbitration, the arbitral proceedings, the submissions made by the parties, and the decisions made by the arbitrator, including its awards, except as required by Applicable Law and to the extent not already in the public domain. Nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (A) seek injunctive relief in a court of law; or (B) to file suit in a court of law to address an intellectual property infringement claim.
Publicity. Security BiaS may publicly list Client as a Client of Security BiaS and use Client’s trademark, trade name, and logo for marketing or promotional purposes and in other communication with existing or potential Security BiaS customers or investors.
Miscellaneous.
Governing Law. This Agreement is governed by the laws of New York without reference to its conflict of laws principles. Subject to Section 10 (Arbitration), all claims arising under this Agreement will be litigated exclusively in the courts of the New York, New York. The parties submit to the jurisdiction in those courts. In any proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
Non-Solicitation. During the Term and for twelve months thereafter, Client will not directly or indirectly solicit for employment or otherwise induce, influence, or encourage any employee or contractor of Security BiaS to terminate their engagement with Security BiaS. This Section 12.B will apply solely to the extent permitted by Applicable Law.
No Restricted Activity. This Agreement will not prohibit, restrict or limit in any manner Security BiaS, its affiliates, or any partners, contractors, subcontractors, directors, officers or employees of Security BiaS or its affiliates (collectively, “Security BiaS Persons”) from (1) providing services to any third party, including the competitors of Client; or (2) engaging in any business competitive with Client.
Injunctive Relief. If either party breaches Section 4 (Confidentiality), the other party may suffer irreparable harm, and monetary damages may be inadequate to compensate the non-breaching party. Accordingly, either party may, in addition to any other remedies available, seek injunctive or other equitable relief in response to any such breach.
Assignment. Client may not assign this Agreement or Client’s rights (or delegate its performance obligations) without Security BiaS’s prior written consent, and any attempt to do so is void. Security BiaS may assign this Agreement and/or Security BiaS’s rights (and/or delegate its performance) without Client’s consent. This Agreement binds and benefits the parties’ permitted successors and assigns.
Severability. If any provision of this Agreement or portion of a provision is invalid, illegal, or unenforceable, the rest of this Agreement will remain in effect.
No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
Entire Agreement. This Agreement (SOWs) constitutes the entire agreement and supersedes any other agreement of the parties relating to its subject matter (including any nondisclosure agreements entered into in anticipation of this Agreement). No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, or supplement the terms of this Agreement.
Amendment. This Agreement may only be amended in a writing signed by both parties and stating that it is amending this Agreement.
Relationship. The parties are independent contractors of each other. Each party is responsible for instructing and managing its employees and personnel. This Agreement does not create any agency, partnership, or joint venture relationship between the parties.
No Third-Party Beneficiaries. Other than the Security BiaS Indemnified Parties and their heirs, successors, and assigns, there are no third-party beneficiaries of this Agreement.
Notices. All notices under this Agreement must be in writing and will be considered given: (1) upon delivery, if delivered personally or by internationally recognized courier service; (2) three business days after being sent, if delivered by U.S. registered or certified mail (return receipt requested); or (3) upon acknowledgement of receipt, if delivered by email. Either party may update its notice address by notice to the other party in accordance with this Section. To be effective, all notices to Security BiaS must be sent to:
Security BiaS Inc.
7 Central Street, #180
Arlington, MA 02476
Attn: Legal Department
Force Majeure. Security BiaS will not be liable for any delay or failure to perform under this Agreement as a result of any cause or condition beyond Security BiaS’s reasonable control, so long as Security BiaS uses reasonable efforts to avoid or remove those causes of delay or non-performance.
Interpretation. Any heading, caption, or section title contained in this Agreement is for convenience only and does not define or explain any provision. Any use of the term “including” or any variations should be construed as if followed by the phrase “without limitation.”
Incorporation by Reference. This Agreement may be incorporated into any Statement of Work by citation to its title and URL. A Statement of Work that references this Agreement by URL will be deemed to incorporate this Agreement in full without requiring attachment or re-execution of this Agreement.