BACKGROUND
Fortress SRM is leading national cybersecurity firm actively protecting its clients from the financial, operational, and emotional trauma of cyber-attacks by improving the security performance of their clients’ people, processes, and technology. Fortress SRM wishes to provide Client with certain IT security services, and Client wishes to receive such services, on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants set forth in this Agreement, the Parties agree as follows:
DEFINITIONS
- Affiliate means, with respect to each Party, any entity which directly or indirectly controls, is controlled by, or is under common control with, such Party.
- Agreement means this Master Services Agreement between Fortress SRM and Client and any schedules, exhibits, Subscription Agreement or Statement of Work attached to it.
- Confidentiality Agreement means the Mutual Non-Disclosure Agreement between Client and Fortress SRM effective as of the last date of signing by the Parties.
- Consulting Services means the provision of services to a Client related to a transfer of knowledge based on Client’s business or technological concerns, systems, processes, or environment.
- Days means calendar days.
- Incident Response means Fortress SRM’s services relating to a significant and abnormal cybersecurity issue experienced by a Client for which Fortress SRM has specifically been retained to provide Consulting or other Professional Services to explore, investigate, and/or ameliorate the issue.
- Installed Devices means the servers or endpoints on which Client receives the Managed Security Services. The initial number of Installed Devices will be stated in the applicable Statement of Work. The number of Installed Devices may be increased from time to time in accordance with this Agreement.
- Managed Security Services means the collection of the services and the technology related to software delivery, management and monitoring as specified in the applicable Statement of Work and the means of delivery of such services and technology, including, if specified in the applicable Statement of Work, proxy, and satellite service (“MSS”). Any use of MSS shall be subject to applicable use policies set forth in the applicable Statement of Work.
- Platform means the combination of the CPU and other hardware a computer system uses, its exact operating system including the version number, the compiler required, the type of libraries (e.g., libc, glibc), and the type of crypto library available (e.g., libcrypt, PAM). Changes to any of these by Fortress SRM constitute a different Platform and may disqualify Client from receiving Services with respect to such modified Platform.
- Services means the procurement of, Managed Security Services, Consulting Services, Incident Response, and any other professional work to be provided by Fortress SRM as specifically set forth in the Statement of Work to this Agreement. Fortress SRM may, at its discretion, decline to provide Services for any Software or Hardware that has been modified or changed by Client in any way, except as directed by Fortress SRM pursuant to this Agreement.
- Software means (i) means software owned or licensed by Fortress SRM, which may be provided to Client under any Statement of Work issued pursuant to this Agreement in connection with the Services, whether standalone, or as incorporated in Hardware, including any APIs, guides, or documentation provided therewith.; (ii) any Fortress SRM software programs delivered by means of Managed Security Services; and (iii) any other Fortress SRM or third party software product specified in the applicable Statement of Work, which shall be subject to the applicable end user license agreement set forth in the applicable Statement of Work.
- Statement of Work has the meaning set forth in Section 1 below.
- Supported Hardware or Platform means hardware or a Platform that functions with the Software and components contemplated for use with the Software. Client agrees that Fortress SRM will have no obligation to provide Services for any system that is not Supported Hardware or Platform unless otherwise stated in an applicable Statement of Work in connection with custom Services performed by Fortress SRM for the Client.
- SCOPE OF AGREEMENT; STATEMENT OF WORK.
1.1 This Agreement establishes a framework by which Fortress SRM will provide Services to Client. The specific Services that Fortress SRM will provide to Client will be set forth in one or more mutually agreed upon orders for work (each a “Statement of Work”). Each Statement of Work will include, to the extent applicable, the following items: (a) description of the Services to be performed and/or provided under the Statement of Work (b) Client Contact for the Services to be provided under the Statement of Work, (c) any deliverables, milestones and target completion dates, (d) any method or schedule for compensation, and (e) Client’s tasks and the Client resources required for Fortress SRM to perform the Services. Upon execution by each of the Parties, each Statement of Work will be a part of, and incorporated into, this Agreement.
1.1.1 A Statement of Work from Fortress SRM may be documented in a separate purchase order for administrative purposes only, are subject to Fortress SRM’s approval, and will be carried out pursuant to the terms of this Agreement.
1.2 Additional or Conflicting Terms. Fortress SRM’s acceptance of any purchase order or similar document submitted by Client is expressly made in reliance on Client’s assent to all the terms and conditions of this Agreement. No additional or contradictory terms and conditions included on any Client purchase order will operate as an amendment to this Agreement, and will have no force and effect, even if such terms and conditions expressly state that they are intended to supersede the terms of this Agreement, Fortress SRM is required to countersign the purchase order, and/or Fortress SRM fails to object to such terms and conditions. Without limiting the generality of the foregoing, in the event of conflicting, contradictory, or additional terms or conditions between this Agreement and any Statement of Work (including on the face of Client’s purchase order), this Agreement will control (with exhibits taking precedence over these General Terms and Conditions), unless the Statement of Work specifically identifies the conflicting or contradicting term or condition as being conflicting or contradicting and specifically notes that the Statement of Work will control. Fortress SRM’s failure to object specifically to provisions contained in any communication from Client will not be deemed a waiver of the provisions contained in this Agreement. - OBLIGATIONS OF THE PARTIES.
2.1 Fortress SRM Obligations.
2.1.1 Fortress SRM will use commercially reasonable efforts to perform the Services in accordance with the applicable Statement of Work during the term of this Agreement with respect to Supported Hardware or Platforms.
2.1.2 Client is entitled to appoint the number of individual contacts (“Client Contacts”) specified and identified in the applicable Statement of Work. Fortress SRM will provide Services to Client solely by communicating with the Client Contacts.
2.1.3 The Services will be provided in a professional and workman-like manner by qualified personnel.
2.1.4 If applicable, Fortress SRM will provide Software to Client in conjunction with the Services, subject to the third-party provider’s applicable EULA and applicable terms and conditions.
2.2 Client Obligations.
2.2.1 Client will appoint the Client Contacts and provide technical and other assistance required for Fortress SRM to perform the Services on an as needed basis.
2.2.2 Client shall make commercially reasonable efforts to maintain consistent Client Contacts for the term of this Agreement or any applicable Statement of Work. Client may change a Client Contact if the individual previously designated has terminated employment with Client or is no longer involved with day-to-day administration of the Client’s Supported Hardware or Platform. Client must notify Fortress SRM of any change in Client Contacts in writing. Client shall allow one calendar week for Fortress SRM to process any changes in Client Contacts.
2.2.3 Client may not use a Client Contact to act as a mere forwarding service for other personnel. The Client Contacts may not use Services to benefit any person or entity other than the Client.
2.2.4 Client will perform the tasks and provide the resources specified in the Statement of Work and this Agreement including, without limitation, workspace and network and telephone connections and access if required to perform the Services.
2.2.5 If Client provides Fortress SRM with use of, or access to, materials that are subject to proprietary rights of, or controlled by, Client, Client hereby grants Fortress SRM, or agrees to obtain for Fortress SRM, all necessary licenses and rights with respect to such materials to perform the Services and Client warrants that such use or access will not infringe on the rights of any third party.
2.2.6 Client agrees to provide Fortress SRM all information and all access to Client's computer systems and information as reasonably requested by Fortress SRM to enable Fortress SRM to provide the Services. Such information may include, but is not limited to, the type of hardware Client is using, a description of the problem for which Client seeks Services, and additional software Client is using that falls outside the scope of coverage. Client understands and agrees that the completeness and accuracy of the information Client provides to Fortress SRM may affect Fortress SRM's ability to provide Services and/or have an effect on the cost to Client of the Services.
2.3 Changes to Work and Delays.
2.3.1 Changes. From time to time, Client, or Fortress SRM may request a change in a Statement of Work. In such case, Client, and Fortress SRM agree that they will negotiate in good faith regarding any proposed changes to the Statement of Work. Proposed changes will be affected through a written change order, signed by both parties, and those will constitute amendments to the applicable Statement of Work. Any work performed under a written change order will be considered Services for purposes of this Agreement. If Fortress SRM agrees to provide additional resources, then such resources will be provided and priced separately.
2.3.2 Delays. In the event that Client changes any of the specifications of the work to be done, delays the delivery to Fortress SRM of any Client deliverable specified in the Statement of Work, delays the start date of the Services, fails to provide Fortress SRM information necessary for Fortress SRM to perform the Services or in any way causes delays to the work schedule, Fortress SRM is entitled to modify the schedule or reschedule the Services, with no penalty to Fortress SRM.
2.3.3 Cancellation. Client may not cancel a Statement of Work, in whole or in part, without Fortress SRM’s prior written approval (which may be granted or withheld in Fortress SRM’s sole discretion). Notwithstanding Fortress SRM’s right to grant or withhold such approval, for any Statement of Work so cancelled, Client will be responsible for, and will pay to Fortress SRM, on demand: (i) any expenses incurred by Fortress SRM in modifying, adapting, or creating any specially ordered Services on Client’s behalf, including work in progress; and (ii) out-of-pocket costs incurred by Fortress SRM arising from such cancellation (including the amount charged to Fortress SRM from its manufacturers, vendors, distributors, or subcontractors caused by Client’s request for cancellation). - INTELLECTUAL PROPERTY RIGHTS.
3.1 Client Pre-Existing Property. Client will retain all right, title, and interest in and toall pre-existing information, ideas, data, software, tools, and other materials developed by or for Client prior to commencement of the Services (“Client Pre-ExistingIP”).ClientgrantstoFortress SRManon-exclusive,worldwide,royalty-free licensetousetheClientPre-ExistingIPsolelyforFortress SRMtoperformtheServices.
3.2 Fortress SRM Pre-Existing Property. Fortress SRM will retain all right, title, and interest in and to all pre-existing information, data, software, tools, and other materials developed by or for Fortress SRM prior to commencement of the Services (“Fortress SRM Pre-Existing IP”).
3.3 Deliverables. Client will own all right, title, and interest in and to the deliverables set forth in the Statement of Work (“Deliverables”). To the extent that the Deliverables contain Fortress SRM Pre-Existing IP and subject to the terms and conditions of this Agreement, Fortress SRM grants to Client a perpetual, non-exclusive, worldwide, non- transferable, non-sublicensable, royalty-free license to use such Fortress SRM Pre-Existing IP solely in connection with the Deliverables.
3.4 Third Party Materials. Any pre-existing information, data, software, tools and other materials developed by any third-party licensor of Fortress SRM (“Third Party Materials”) that is included in the Deliverables will remain the property of such third party licensor and Fortress SRM grants to Client a perpetual, non-exclusive, worldwide, non- transferable, non-sublicensable, royalty-free license to use such Third Party Materials solely in connection with the Deliverables.
3.5 Deliverables and Software. Fortress SRM agrees that (a) the data and information (including without limitation, computer software, computer database, computer software documentation, specifications, design drawings, reports, blueprints and the like) generated by Fortress SRM in the performance of the Services and derived from the Deliverables and (b) any data and information that are specified to be delivered or that are in fact delivered to Client pursuant to this Agreement, which data and information are derived from Client’s proprietary data and information shall be and remain the sole property of Client; provided, however that the Software and any data or information (including without limitation, computer software, computer database, computer software documentation, specifications, design drawings, reports, blueprints) that is the property of Fortress SRM shall remain the property of Fortress SRM. Any ideas, data, software, tools, and other materials developed by Fortress SRM during the course of the engagement which are not specified in the Statement of Work, do not arise from Client’s proprietary data and information, or are not otherwise derived directly from the Deliverables shall remain the property of Fortress SRM.
3.6 Fortress SRM Marks. No right or license, express or implied, is granted by this Agreement for the use of any of Fortress SRM’s trademarks, including, without limitation, the distribution of the Software utilizing any Fortress SRM trademarks. - PRICING, FEES, INVOICES, TAXES, REPORTING AND AUDIT.
4.1.1 Pricing for each service to be performed will be listed in the applicable Statement of Work. Pricing will be valid above the minimum and up to the maximum quantities listed in the Statement of Work, if applicable
4.1.2 Pricing is subject to change upon renewal of the Agreement. Updated pricing for renewal terms will be periodically communicated to Clients in writing. Pricing updates announced within the termination notice period will not take effect until the subsequent renewal term.
4.2 Fees and Expenses. All fees are stated in the currency designated in the Statement of Work and must be paid by Client to Fortress SRM in that designated currency without deduction or set-off. Client will reimburse Fortress SRM for its reasonable, out-of-pocket expenses in performing the Services including without limitation travel, lodging, shipping, courier, document reproduction, postage, and non-routine supplies, in accordance with Fortress SRM’s travel and expense policies.
4.3 Invoice. Fortress SRM will invoice Client for the agreed upon fees in accordance with the applicable Statement of Work. Any and all payments made by Client pursuant to this Agreement are non-refundable. Client will make payment within thirty (30) days of the date specified on the invoice. Fortress SRM reserves the right to terminate this Agreement if actual payment has not been received within the aforementioned thirty (30) day period. However, Fortress SRM will notify Client before such termination and will give Client 14 days from receipt of said notice before actually terminating this Agreement to either: (a) provide Fortress SRM with a written explanation of its inability to pay; or (b) to remit payment to Fortress SRM.
4.4 Taxes. All fees for Services are exclusive of any taxes due to be paid under the applicable laws including national, federal, state, local, VAT, sales, excise, use, or similar taxes. Except for taxes relating to Fortress SRM’s income, Client agrees to pay all other taxes that, as per applicable under the applicable laws, are incumbent on the buyer or beneficiary of the Services provided by Fortress SRM to Client hereunder.
4.5 Audit. During the term of this Agreement and for one (1) year thereafter, Fortress SRM has right to audit Client’s facilities and records from time to time in order to verify Client’s compliance with the terms and conditions of this Agreement. Any such audit will only take place during Client’s normal business hours and upon no less than ten (10) days prior written notice from Fortress SRM. Fortress SRM will conduct no more than one such audit in any twelve-month period except for the express purpose of assuring compliance by Client where non-compliance has been established in a prior audit. Fortress SRM will give Client written notice of any non-compliance, and Client will have fifteen (15) days from the date of such notice in which to make payment to Fortress SRM for such deficiency.
4.6 Prepay. All amounts due and paid in advance are applicable solely to that contract as described in the applicable Order Document; such amounts may not be used or applied towards any other obligations Client may have towards Fortress SRM, whether as an offset, recoupment, indemnification or any other defense to payment except for claims arising out of that Order Document because of defects in the specific goods or services described in such Order Document. - TERM AND TERMINATION.
5.1 Term. The term of this Agreement will begin on the Effective Date and will terminatebased on the specific terms in the Statement of Work for managed services or when Fortress SRM has performed the contractual consulting services under any Statement of Work, unless terminated earlier in accordance with Section 4.2 or 5.2. If no Effective Date is given, the term shall begin upon the second signature of the two parties to the Agreement.At the end of the Service Term, the Agreement will automatically renew for successive one-year term with up to a 12% increase unless the Client notifies Fortress SRM in writing ninety (90) days prior to the termination date.
5.2 Termination. This Agreement may not be terminated by either Fortress SRM or Client except as follows: (a) as provided under Sections 4.2 or 5.1, (b) by either Party upon fifteen (15) days prior written notice for any material default or breach of the terms and conditions of the Agreement by the other Party, unless the defaulting Party has cured such failure or default within such 15-day period, provided however, that no such cure period will be permitted for a breach of Section 7.1 hereof.
5.3 Effect of Termination. If this Agreement is terminated for any reason, the obligations of the Parties under Sections 3, 4 and 6 through 11 of this Agreement will survive such termination. - DISCLAIMER OF DAMAGES AND LIMITATION OF LIABILITY.
6.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL FORTRESS SRM BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, WHETHER IN TORT OR IN CONTRACT, INCLUDING LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF (A) THE SERVICES, (B) ANY INTERRUPTION OF USE OF THE SERVICES, OR (C) FOR LOSS, INACCURACY OR CORRUPTION OF DATA, EVEN IF FORTRESS SRM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.2 FORTRESS SRM’S LIABILITY HEREUNDER WILL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNT THAT CLIENT PAID FORTRESS SRM FOR THE SERVICES AND/OR THE SOFTWARE OR HARDWARE FROM WHICH THE LIABILITY AROSE AT THE TIME OF THE EVENT GIVING RISE TO THE LIABILITY. - DATA SECURITY AND PRIVACY. In providing the Services, Fortress SRM will (i) store, process and access Client Data only to the extent reasonably necessary to provide or improve the Services, and (ii) implement and maintain commercially reasonable technical, physical and organizational measures to protect the security, confidentiality and integrity of Client Data hosted by Fortress SRM or our authorized third party service providers, from unauthorized access, use, alteration or disclosure.
- CONFIDENTIALITY AND PUBLICITY.
8.1 Confidentiality. The Parties agree that confidential information exchanged under this Agreement will be treated in accordance with the Confidentiality Agreement.
8.2 Publicity. Each Party agrees not to use the name of other Party or any trademark, trade name or service mark or symbol owned by the other Party or otherwise refer to the other Party in writing to any third party without the prior written consent of the other Party; provided however, Fortress SRM may reference its relationship to Client during discussions with financial analysts, presentations to investors, meetings with the press and Client briefings. - WARRANTY. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, FORTRESS SRM DOES NOT PROVIDE ANY WARRANTY WITH RESPECT TO HARDWARE, SOFTWARE, OR SERVICES. EXCEPT AS PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. THIS IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY FORTRESS SRM (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. FORTRESS SRM DOES NOT GUARANTEE OR WARRANT THAT THE USE OF THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE.
- GOVERNING LAW/CONSENT TO JURISDICTION. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF OHIO. CLIENT HEREBY CONSENTS TO JURISDICTION OF THE COURTS OF BOTH THE STATE OR FEDERAL COURTS OF CUYAHOGA COUNTY, OHIO.
- GENERAL PROVISIONS.
11.1 Notices. Any notice to be given pursuant to this Agreement, including any notice of change of address for notice, will be deemed given (a) three (3) business days after being deposited with the U.S. Postal Service, postage prepaid, first class, certified, return receipt requested; (b) upon receipt when delivered in person; (c) two (2) business days after being deposited with a reputable international overnight delivery service: or (d) one (1) business day after being transmitted by facsimile with confirmation of delivery to the address or facsimile telephone number for such party set forth below.
11.2 Assignment. This Agreement is assignable by Client only with Fortress SRM’s prior written consent, which will not be unreasonably withheld. If Client is assigning this Agreement to an Affiliate, or as a result of a merger or a sale of all or substantially all of Client’s assets or stock, then prior approval for the assignment is not required as long as the cost and/or number of persons supported does not increase as a result of such assignment and the rights, risks, and obligations of Fortress SRM are not adversely affected. Fortress SRM may subcontract Services under this Agreement without the prior approval of Client; provided, however, that such subcontractor must agree to keep any proprietary information received from Fortress SRM or Client confidential.
11.3 Independent Contractor. Fortress SRM is an independent contractor and nothing in this Agreement or related to Fortress SRM’s performance of any Statement of Work will be construed to create an employee relationship between Client and Fortress SRM or any Fortress SRM consultant. Fortress SRM will be solely responsible for payment of applicable taxes, deductions or other payments and benefits for its personnel.
11.4 Export Responsibilities. Fortress SRM may supply Client with technical data that may be subject to export control restrictions. Fortress SRM will not be responsible for compliance by Client with applicable export obligations or requirements for such technical data and hardware. Client agrees to comply with all applicable export control restrictions.
11.5 Headings. The title and paragraph headings contained in this Agreement are inserted for identification and convenience and will not be deemed part of this Agreement for purposes of interpretation.
11.6 Severability. If any provision of this Agreement is held invalid or unenforceable for any reason, the Parties agree that such invalidity will not affect the validity of the remaining provisions of the Agreement and further agree to substitute for the invalid provision a valid provision that most closely approximates the intent and economic effect of the invalid provision.
11.7 Waiver. The failure of either Party to exercise any rights hereunder will not constitute or be deemed a waiver of forfeiture of such rights.
11.8 Dispute Resolution. Client satisfaction is an important objective to Fortress SRM in performing its obligations under this Agreement. If Client is not satisfied with the Services provided by Fortress SRM, Client agrees to give Fortress SRM a written description of the problem(s) and to make a good faith effort to amicably resolve the problem with Fortress SRM before commencing any proceeding. Fortress SRM also agrees to make a good faith effort to amicably resolve any problem with Client before commencing any proceeding.
11.9 Prevailing Party. In the event of a dispute between the Parties regarding payment under this Agreement, the prevailing Party’s reasonable attorney’s fees will be paid by the other Party.
11.10 Force Majeure. Neither Party will be liable for nonperformance or delays caused by acts of God, wars, riots, strikes, fires, floods, earthquakes, government restrictions or other causes beyond its control. In the event of the occurrence of any of the foregoing, the date of performance will be deferred for a period of time equal to the time lost by reason of the delay. The affected Party will notify the other in writing of such events or circumstances promptly upon their occurrence.
11.11 Complete Agreement. This Agreement and Statement of Works that are executed by each of the Parties under this Agreement will constitute the exclusive terms and conditions with respect to the purchases of Software or Services under this Agreement by Client from Fortress SRM, notwithstanding any different or additional terms that may be contained in the form of purchase order or other document used by Client in such transactions. This Agreement and the Statement of Works that are executed by each of the Parties under this Agreement contains the final, complete, and exclusive statement of the agreement between the parties with respect to the transactions contemplated herein and all prior written agreements and all prior and contemporaneous oral agreements with respect to the subject matter herein are merged herein. This Agreement and any Statement of Work that is executed by each of the Parties under this Agreement may not be amended, supplemented or modified (or any right or power granted hereunder waived) except by written instrument signed by authorized officers of the parties hereto (or in the case of a waiver, signed by the party to be bound), which instrument makes specific reference to this Agreement or the applicable Work Order. In the event of any conflict between this Agreement and any Statement Work, this Agreement will take precedence unless otherwise specified in the Statement Work.
11.12 Non-Solicitation. Client agrees not to solicit or hire any personnel of Fortress SRM with whom Client has had contact in connection with this Agreement until at least one year after the termination of this Agreement.
11.13 Signature. Signatures on this Agreement will be obtained electronically through DocuSign. The parties agree that an electronic signature shall have the same force and effect as an original signature.