This PROFESSIONAL SERVICES AGREEMENT (this "Agreement") has been entered into by and between CyberWA, Inc. ("CyberWA") and the Client ("Client"). CyberWA and Client are sometimes referred to herein, individually, as a "Party" and, collectively, as the "Parties".
RECITALS
WHEREAS, CyberWA provides professional cybersecurity services ("CyberWA Services") to high net worth individuals, celebrities, organizations, and others who face significant cyber threats; and
WHEREAS, Client has a need for and wishes to receive CyberWA Services;
NOW, THEREFORE, in consideration of the recitals set forth above, the mutual covenants and promises set forth below, and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, and intending to be legally bound, the Parties agree as follows:
1. Services
This Agreement applies to CyberWA's offering and provision of CyberWA Services to Client as described in one or more Statements of Work ("SOWs") executed contemporaneously with this Agreement or at a later date. This Agreement also applies to CyberWA's offering and provision of Services to Client's employees, customers, family members and/or other individuals or organizations affiliated with Client ("Client Affiliates") if specifically set forth in one or more SOWs entered pursuant to this Agreement.
2. Term
The term of this Agreement is one year commencing on the Effective Date (the "Initial Term"). This Agreement will automatically renew for successive one year terms (each a "Renewal Term"), unless one Party gives the other Party written notice of non-renewal at least ninety (90) days prior to the end of the then-current term.
3. Termination
Either Party may terminate this Agreement on thirty (30) days' advance written notice if the other Party breaches a material term of this Agreement and fails to cure the breach within the thirty (30) day notice period. If this Agreement terminates, all SOWs and End User License Agreements and Terms of Service ("EULAs") entered pursuant to this Agreement terminate on the same date. If this Agreement terminates prior to completion of the Services set forth in an SOW, Client remains liable for (a) all Services provided and expenses incurred by CyberWA up to the date of termination, (b) the pro rata value of the Services delivered prior to termination if fees are charged on a time period basis (e.g., monthly or annually), or (c) as expressly set forth in an applicable SOW.
4. Payment and Taxes
Client agrees to pay all fees, taxes, reimbursable expenses, and other charges within thirty (30) days of issuance of an invoice by CyberWA, unless other payment terms are expressly stated in an SOW. If Client fails to timely pay all amounts due, CyberWA shall be entitled to collect CyberWA's reasonable collection costs, including attorneys' fees and late fees calculated at the rate of one and half percent (1.5%) per month.
5. Relationship of the Parties
CyberWA, Client and Client Affiliates are independent contractors. Nothing contained herein or in any other agreement shall be construed as creating an agency or joint venture relationship between CyberWA and Client or any Client Affiliate. CyberWA shall not have any power to create any obligation, express or implied, or incur any liability on Client's or any Client Affiliate's behalf without the express written consent of the Client and/or Client Affiliate to be bound. Neither Client nor any Client Affiliate shall have any power to create any obligation, express or implied, or incur any liability on CyberWA's behalf without the express written consent of CyberWA.
6. EULA Required
If an SOW provides that CyberWA will provide services directly to Client Affiliates, each Client Affiliate must execute a EULA in a form acceptable to CyberWA before CyberWA is required to provide Services to the Client Affiliate. Client and each Client Affiliate that uses any CyberWA electronic application, including CyberWA's Cyber Defense Tool, also must execute a EULA before using such application.
7. Personnel and Control of Performance
CyberWA shall retain exclusive control over all aspects of the CyberWA Services provided under this Agreement. CyberWA will assign those personnel who CyberWA believes, in its sole discretion, are qualified to provide the CyberWA Services and shall have exclusive control over the method, manner, means and timing of the CyberWA Services provided. Personnel assigned by CyberWA may be CyberWA employees or independent contractors. CyberWA shall be responsible for paying all compensation and benefits, if any, owed to CyberWA personnel who perform CyberWA Services.
8. Confidential Information
Client and CyberWA (each, a "Receiving Party") acknowledge that each of them may be exposed to or acquire "Confidential Information" which is information that is proprietary or confidential to the other Party, to the other Party's affiliates, or to third parties to which the Party disclosing the information ("Disclosing Party") owes a duty of confidentiality.
(a) Neither Party shall copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give or disclose the other Party's Confidential Information to third parties or use Confidential Information for any purposes other than the performance of this Agreement.
(b) Each Party shall advise its employees, agents and subcontractors (and their employees) who may be exposed to the Confidential Information of their obligation to keep such information confidential.
(c) If a Party receives a request to disclose Confidential Information pursuant to a subpoena, court order, or other legal process, the Receiving Party shall, unless otherwise required by law or court order: (i) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such request; (ii) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such request and cooperate, at the Disclosing Party's sole expense, with the Disclosing Party on any steps the Disclosing Party considers advisable or necessary; and (iii) if disclosure of the Confidential Information is required or deemed advisable by the Disclosing Party, exercise commercially reasonable efforts to obtain an order, stipulation or other reliable assurance acceptable to the Disclosing Party that confidential treatment shall be accorded to such Confidential Information to be disclosed.
(d) Confidential Information shall not include information that is: (i) in or becomes part of the public domain other than by disclosure in violation of this Agreement; (ii) demonstrably known to the Receiving Party previously, without knowledge of a duty of confidentiality applicable to such information; (iii) independently developed by the Receiving Party outside of this Agreement and without reference to or use of Confidential Information; or (iv) rightfully obtained by the Receiving Party from third parties without a duty of confidentiality.
(e) CyberWA will maintain the confidentiality of all information received from Client or Client's affiliates in perpetuity unless such information ceases to be confidential pursuant to Section 8(d) above. Each Party is required to maintain the confidentiality of trade secrets for so long as the information remains a trade secret under applicable law. Each Party is required to maintain the confidentiality of all other Confidential Information for three (3) years following termination of this Agreement.
9. Non-Solicitation
Client agrees that during the period of this Agreement and for a period of twelve (12) months after this Agreement expires or is terminated, Client shall not, without CyberWA's prior written consent, directly or indirectly, encourage any CyberWA personnel to (i) leave the employment of CyberWA or (ii) not provide services on behalf of CyberWA.
10. Intellectual Property
(a) CyberWA's trademarks, service marks, copyrights, patents, trade secrets, and all other proprietary rights in or related to CyberWA Services are the exclusive property of CyberWA and/or CyberWA's licensors ("CyberWA Intellectual Property"), whether or not registered, recognized, or perfected under applicable law.
(b) Client expressly agrees that all materials and information used, developed or acquired by CyberWA to perform Services, including any inventions and discoveries or derivative works of any kind that are developed by CyberWA pursuant to this Agreement are CyberWA Intellectual Property and shall be owned exclusively by CyberWA. Unless otherwise expressly set forth in an SOW, no CyberWA Services or materials provided to Client or any Client Affiliate ("Deliverables") shall be considered a "Work for Hire."
(c) It is understood and agreed that CyberWA sells the same or similar services to other clients and CyberWA may modify the services provided to other clients based on its experience in performing CyberWA Services pursuant to this Agreement.
(d) CyberWA Intellectual Property may not be copied, distributed, republished, uploaded, posted, or transmitted except in connection with the authorized use of the Services. Client may not alter, decompile, disassemble, reverse engineer, or otherwise modify any CyberWA Intellectual Property.
11. Limited License
CyberWA provides Client and each Client Affiliate receiving CyberWA Services with a limited, non-transferrable, non-exclusive, revocable license to use CyberWA Services, including any Deliverables for the limited purpose set forth in each applicable SOW and/or EULA. Nothing herein shall be construed as granting Client, any Client Affiliate or any other person, whether by estoppel or otherwise, any license or other rights to CyberWA Intellectual Property except for those expressly granted in this Section 11.
12. Client Data Security Practices
Client is responsible for the safekeeping and integrity of any account provided by CyberWA for use of the Services ("Account"). Each Account is for a single user only and multiple users may not share login credentials under any circumstances. CyberWA assumes no liability or responsibility for Client's or any Client Affiliate's failure to maintain the integrity of its Account(s) and the confidentiality of login credentials. Client and Client Affiliates are responsible for taking commercially reasonable measures to protect the security of devices on which any CyberWA Services are installed.
13. Compliance with Privacy and Data Protection Laws
CyberWA will handle all personally identifiable information ("PII") received in connection with this Agreement in accordance with all applicable privacy and data protection laws and regulations as set forth in CyberWA's Privacy Policy, which is expressly incorporated in this Agreement. https://cyberwa.com/privacy/
14. Client Representations and Warranties
Client represents and warrants that (a) it has the right to enter into this Agreement; and (b) it has the right to provide CyberWA with access to devices, accounts, and information necessary to provide the CyberWA Services to Client and/or Client Affiliates.
15. CyberWA Representations and Warranties
CyberWA represents and warrants that (a) it has the right to enter into this Agreement; (b) it has all necessary rights, authorizations, and licenses to provide the Services; (c) CyberWA's performance under this Agreement will not violate any other agreement to which CyberWA is a party; and (d) CyberWA will use commercially reasonable physical, administrative, and technical controls to protect the confidentiality, integrity, and availability of the CyberWA Services and Client's Confidential Information processed by CyberWA. For the avoidance of doubt, CyberWA does not guarantee that its Services, many of which are delivered over the internet, are 100% secure and CyberWA's representation and warranty in this Section 15 does not relieve Client of its own data security obligations set forth in Section 12, above.
16. CyberWA Warranty Disclaimer
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 15, ABOVE, CYBERWA GIVES NO OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS, OR WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR PRACTICE. CYBERWA DOES NOT WARRANT AGAINST INTERFERENCE WITH CLIENT'S OR ANY CLIENT AFFILIATE'S ENJOYMENT OF THE SERVICES, THAT THE SERVICES WILL MEET CLIENT'S OR ANY CLIENT AFFILIATE'S REQUIREMENTS, THAT THE OPERATION OF ANY SERVICE WILL BE UNINTERRUPTED OR FREE FROM ERRORS, BUGS, CORRUPTION, LOSS OF DATA, INTERFERENCE, HACKING OR VIRUSES, OR THAT THE SERVICES WILL INTEROPERATE OR BE COMPATIBLE WITH ANY OTHER SOFTWARE. CYBERWA ALSO DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES WILL IDENTIFY ALL VULNERABILITIES OR THREATS, OR THAT FOLLOWING ANY CYBERWA RECOMMENDATION WILL PREVENT CLIENT OR ANY CLIENT AFFILIATE FROM SUFFERING LOSS, DAMAGE, OR INJURY. SOME JURISDICTIONS LIMIT OR PROHIBIT DISCLAIMERS OF IMPLIED WARRANTIES, IN WHICH CASE THE DISCLAIMER OF IMPLIED WARRANTIES HEREIN MAY NOT APPLY.
17. Limitation of Liability
CYBERWA AND CLIENT HAVE DISCUSSED THE RISKS AND BENEFITS OF THE AGREEMENT AND THE COMPENSATION TO BE PAID TO CYBERWA. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CLIENT AGREES, FOR ITSELF AND ANYONE CLAIMING BY, THROUGH OR UNDER IT (INCLUDING ALL CLIENT AFFILIATES), THAT THE LIABILITY OF CYBERWA, ITS SUBSIDIARIES, AFFILIATES AND SUBCONTRACTORS (INCLUDING THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS AND ASSIGNS) FOR ANY AND ALL CLAIMS AND CAUSES OF ACTION (INCLUDING WITHOUT LIMITATION, CLAIMS AND CAUSES OF ACTION BASED ON TORT, CONTRACT, STRICT LIABILITY, OR INDEMNITY) ARISING OUT OF, RELATED TO, OR IN CONNECTION WITH THIS AGREEMENT AND USE OF THE SERVICES SHALL NOT EXCEED THE FEE PAID TO CYBERWA FOR SERVICES PROVIDED TO SPECIFICALLY AFFECTED CLIENT AFFILIATES, OR ONE THOUSAND U.S. DOLLARS ($1,000), WHICHEVER IS GREATER. IN ADDITION, CYBERWA SHALL NOT BE LIABLE TO CLIENT, CLIENT AFFILIATES, OR ANY OTHER PERSON FOR LOSS OF PROFITS OR REVENUE, LOSS OF USE OR OTHER OPPORTUNITY, LOSS OF GOODWILL OR OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES. CLIENT ACKNOWLEDGES THAT (A) WITHOUT THE INCLUSION OF THIS LIMITATION OF LIABILITY PROVISION, CYBERWA WOULD NOT PERFORM THE SERVICES AND (B) THIS LIMITATION OF LIABILITY PROVISION IS MERELY A LIMITATION, AND NOT AN EXCULPATION, OF CYBERWA'S LIABILITY.
18. General
(a) Entire Agreement. This Agreement contains the entire agreement between the Parties with respect to its subject matter. This Agreement supersedes all prior agreements or understandings between the Parties pertaining to the subject matter of this Agreement.
(b) Modification. This Agreement may not be amended, altered, or modified, in whole or in part, except in a writing executed by the Parties. If the Parties wish to modify any term of this Agreement in an SOW, the intent to modify such term must be expressly stated in the SOW.
(c) Enforceability; Priority of Interpretation. If any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original expression of the Parties and the remainder of this Agreement shall remain in full force and effect. Any conflict or inconsistency between this Agreement, any SOW and any EULA shall be resolved in the following order: (i) this Agreement; (ii) the SOW; and (iii) the EULA, except as provided in Section 18(b).
(d) Waiver. A Party's failure to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver thereof or deprive that Party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.
(e) Force Majeure. Neither Party shall be liable for any failure to perform its obligations in connection with this Agreement, if such failure results from any act of God, riot, war, civil unrest, flood, earthquake, public health emergency, or other cause beyond such Party's reasonable control (including any mechanical, electronic or communications failure, but excluding any such failure caused by a Party's financial condition, negligence or intentional conduct).
(f) Headings. The headings in this Agreement are for convenience only and do not affect the interpretation of any term.
(g) Mutual Drafting. This Agreement is the result of negotiations between the Parties and shall be considered as being mutually drafted by the Parties. Any uncertainty or ambiguity in the Agreement shall not be interpreted against any one Party.
(h) Assignment. This Agreement may not be assigned without the written consent of the non-assigning Party, except that consent is not required for either Party to assign this Agreement to a successor in interest whether by reorganization, merger, or sale of all or substantially all of the Party's assets.
(i) Notices. All notices, statements or other documents which are required or contemplated to be given hereunder ("Notices") shall be in writing and delivered personally, sent by overnight courier, mailed by certified or registered mail, or sent by electronic mail transmission, addressed to appropriate Party at the address of such Party set forth below or at such other address as such Party shall have theretofore designated by written notice delivered to the Party giving such notice to:
If to CyberWA: Adnan Baykal at PO Box 825, Latham NY 12110
If to Client: to the person and address listed in the Statement of Work
All Notices shall be deemed received upon delivery, except Notices sent by email which shall be deemed received upon transmission provided that a duplicate Notice is provided by any of the other means set forth in this Section.
(j) Survival. The following provisions survive termination of the Agreement: Section 8 (Confidential Information), Section 9 (Non-Solicitation), Section 10 (Intellectual Property), Section 16 (CyberWA Warranty Disclaimer), Section 17 (Limitation of Liability), and any other provision where necessary to give effect to the provision's meaning and terms.
(k) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws provisions.
(l) Consent to Jurisdiction; Venue. Each Party irrevocably agrees that venue for any dispute arising under this Agreement shall lie exclusively in the state and federal courts located in Albany, New York and waives any right to object to jurisdiction within either of the foregoing forums. EACH PARTY HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.
(m) Signatures and Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument. This Agreement may be executed by manual or electronic signatures. The Parties agree that: (i) any such electronic signatures are intended to authenticate this writing and to have the same force and effect as manual signatures; and (ii) for purposes of this Section 18(m), "electronic signature" means any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a Party with the intent to sign such record. Delivery of an executed copy of this Agreement by email or other means of electronic transmission constitutes valid and effective delivery.
