These terms and conditions (the “Agreement”) govern the purchase and use of Secure Merger LLC (the “Consultant”) offerings by the customer (the “Client”) listed within the Scope of Work that incorporates this Agreement. The Client may purchase offerings by submitting an order directly with the Consultant or accepting and agreeing to the Scope of Work issued by the Consultant. The Client acknowledges that by accepting and agreeing to the Scope of Work, or placing an order, that the Client agrees to be bound by this Agreement as it applies to the Consultant’s products and/or services. If you do not unconditionally agree, do not sign the Scope of Work or place an order in any manner. If you proceed, you are representing and warranting that you are authorized to bind the Client. Secure Merger will not be obligated to perform any Services until a Scope of Work describing those Services is agreed to by both the Client and the Consultant (collectively referred to as the “Parties”) or an order listing those Services has been accepted by an official Secure Merger representative.
- ENGAGEMENT OF SERVICES
The Client retains the Consultant to provide, and the Consultant shall provide, the services described in the Scope of Work (the “Services”). Without limiting the scope of Services described in the Scope of Work, the Consultant shall perform the Services set forth in the Scope of Work. However, if a conflict exists between this agreement and any term in the Scope of Work, the terms in this Agreement will control.
The Consultant shall perform the Services in accordance with standards prevailing in the Client’s industry, and in accordance with applicable laws, rules, or regulations in the jurisdiction in which Services are rendered. The Consultant shall obtain all permits or permissions required to comply with those standards, laws, rules, or regulations.
- TERM AND TERMINATION
(a) This agreement will become effective as described in section 20. Unless it is terminated earlier in accordance with subsection 2(b), this agreement will continue until the Services have been completed as laid out in the Scope of Work and the Consultant has been paid in full for those Services.
(b) This agreement may be terminated by either party on provision of 30 days’ written notice to the other party for a material breach of any provision of this agreement by the other party if the material breach is not cured within 30 days of receipt of written notice of the breach.
(c) After the termination of this agreement, the Client shall promptly pay the Consultant for Services rendered before the effective date of the termination. Any funds paid to the Consultant prior to the termination will not be refunded.
(d) Services will be provided at mutually agreed-upon times set forth in the Scope of Work. If no term is expressed in the Scope of Work, then the term of the Scope of Work will begin when the last party signes the Scope of Work and continue until the Services described in that Scope of Work are complete.
- COMPENSATION AND PAYMENT
The Client shall compensate the Consultant for its professional fees in connection with the Services as set forth in the Scope of Work. The Client agrees that it will not, without the Consultant’s prior written permission, disclose the Scope of Work to any third parties (including the Client’s external service providers). The Client will pay the Consultant in accordance with Scope of Work. No payment will be payable to the Consultant if prohibited under applicable government law or regulation. The compensation set out in the Scope of Work will be the Consultant’s sole compensation from the Client under this Agreement unless both parties agree to a Scope of Work amendment in writing. The Client is not entitled to any refund of deposits, retainers , escrow or monies paid or owed to the Consultant as a result of work stoppage due to criminal activity being uncovered during the Consultant’s work activity. The Consultant and its sub-contractors have the right to stop any and all work related activity and leave the premises immediately upon discovery of illegal images or activities. When the Client places an order or agrees to a Scope of Work with the Consultant, the Client will make full payment in the currency specified in Secure Merger’s invoice or Scope of Work, without set-off and in immediately available funds. All Fees are non-cancelable and non-refundable. All Fees described on an order and in a Scope of Work will be fully invoiced in advance, unless otherwise agreed by Secure Merger. If any payment is not made, Secure Merger may, without limiting any remedies available to Secure Merger, terminate the applicable order or Scope of Work. If any payment is late, Secure Merger may, without limiting any remedies available to Secure Merger, terminate the applicable order or Statement of Work or suspend performance until payment is made current. All invoices are due and payable immediately on presentation. Should any invoice remain unpaid for more than 30 days after presentation, interest will accrue on the outstanding amount at the rate of 1% per month, calculated from the 31st day after presentation until the date of payment.
- NATURE OF RELATIONSHIP
The relationship of the parties under this agreement is one of independent contractors, and no joint venture, partnership, agency, employer-employee, or similar relationship is created in or by this agreement. The Consultant has the sole right to control and direct the means, details, manner, and method by which the Services will be performed, and the right to perform the Services at any time, place, or location. The Consultant or the Consultant’s staff shall perform the Services, and the Company is not required to hire, supervise, or pay any assistants to help the Consultant perform those Services.
- TRADEMARKS AND WORK PRODUCTS
In connection with the Services, the Consultant may furnish the Client with reports, analyses or other such materials (the “Materials”). The Client understands and agrees that any such Materials will be furnished solely for its internal use and may not be furnished in whole or in part to any other person other than its directors, officers and employees without the prior written consent of the Consultant. The Client may furnish Materials to its legal counsel, accountants or investment bankers who have been retained by the Client to provide services in connection with the Services and who need to know such information in the performance of such services if:
(a) the Client informs each such person of the confidential nature of the Materials,
(b) each such person agrees not to disclose the Materials to any other person and to use the Materials solely in connection with the performance of its services to the Client,
(c) each such person agrees that in connection with discussions with or disclosures to other third parties, it will not attribute any information contained in the Materials to the Consultant.
The Client further agrees not to refer to the Consultant or attribute any information to the Consultant:
(a) in the press;
(b) for advertising or promotional purposes, without the prior written consent of the Consultant.
In the event that the Client receives a request to disclose all or any part of any Materials under the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction, judicial or administrative agency or by a legislative body or committee, such disclosure by the Client shall not constitute a violation of this Agreement provided that the Client:
(a) promptly notifies the Consultant of the existence, terms and circumstances surrounding such request,
(b) consults with the Consultant on the advisability of taking available legal steps to resist or narrow such request,
(c) if disclosure of such Materials is required or deemed advisable, exercises its best efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the Materials to be disclosed which the Consultant designates.
The Client shall have a perpetual, irrevocable, nontransferable, paid-up right and license to use and copy the Materials and prepare derivative works based on the Materials for its internal use.
The Client acknowledges that the Consultant may gather and develop for itself, or for others, problem solving approaches, frameworks, custom scripts, intelligence data regarding attacker tactics, techniques, procedures, defensive measures or other information similar to the Materials and processes developed in performing the Services, forensic analysis, additional Services, and nothing contained herein precludes the Consultant from developing or disclosing such materials that do not contain or reflect Confidential Information.
Any third party malware or malicious scripts (the “Attacker Inventions”) found during the forensic analysis process do not belong to either the Client or the Consultant, and the Consultant has the right to duplicate, retain, analyze, reverse engineer and make future use of such Attacker Inventions to the extent as permitted by law.
The Consultant shall provide to the Company a digitally written summary report once a month for the duration of the engagement. Reports shall consist of progress made over the previous four weeks and how that progress fits into the overall completion of the engagement. The company shall also receive any and all reporting listed in the Scope of Work.
- OTHER ACTIVITIES
During the Term, the Consultant is free to engage in other independent contracting activities.
- RETURN OF PROPERTY
At the written request of the Client made within 30 days of the expiration or earlier termination of this agreement, the Consultant shall return to the Client, all Client products, samples, models, property, and documents relating to the Client’s business including reports, abstracts, lists, correspondence, information, computer files, computer disks, and other materials. If all property is not returned to the Client in a satisfactory manner, the Client will notify the Consultant within 60 days of the expiration or earlier termination of this agreement.
The Client agrees to indemnify and hold harmless the Consultant, its officers, directors, members, employees, sub-contractors and its affiliates and their respective successors and assigns and each other person, if any, who controls any thereof, against any loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon any false representation or warranty or breach or failure to comply with any covenant or agreement made by the Consultant herein or in any other document furnished by the Consultant to any of the foregoing in connection with this transaction.
The Client hereby agrees to indemnify and hold harmless (i) Consultant, (ii) any entity directly or indirectly controlling, controlled by, or under common control with the Consultant, or any other affiliates of the Consultant or such entities (collectively “Consultant Affiliates”), and (iii) the respective directors, officers, stockholders, agents and employees of the Consultant and such entities (collectively, “Indemnified Persons”), from and against all claims, liabilities, losses, damages, and expenses as incurred, joint or several, relating to or arising out of: (i) the Services (including without limitation the provision of consulting services), or (ii) any transaction or matter which is related to the subject matter of the Services. The Client also agrees that the Consultant shall have no liability to the Client or any person claiming through the Client, including without limitation its owners, parents, affiliates, security holders or creditors, for any Losses suffered by the Client or any such other person relating to or arising out of (i) the Services, or (ii) any transaction or matter which is related to the subject matter of the Services.
- FORCE MAJEURE
A party will not be considered in breach or in default because of, and will not be liable to the other party for, any delay or failure to perform its obligations under this agreement by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, or similar event beyond that party’s reasonable control (each a “Force Majeure Event”). However, if a Force Majeure Event occurs, the affected party shall, as soon as practicable:
(a) notify the other party of the Force Majeure Event and its impact on performance under this agreement; and
(b) use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations under this agreement.
- GOVERNING LAW
The laws of the state of Georgia govern this agreement (without giving effect to its conflicts of law principles). Both parties consent to the jurisdiction of the state and federal courts in Columbia County, Georgia. If either party employs attorneys to enforce any rights arising out of or relating to this agreement, the prevailing party shall have the right to collect reasonable attorneys’ fees from the other party.
No amendment to this agreement will be effective unless it is in writing and signed by both parties or its authorized representative.
- ASSIGNMENT AND DELEGATION
(a) Neither party may assign any of its rights under this agreement, except with the prior written consent of both parties. All voluntary assignments of rights are limited by this subsection.
(b) If a purported assignment or purported delegation is made in violation of this section 13, then the purported assignment or purported delegation is void.
- COUNTERPARTS; ELECTRONIC SIGNATURES
(a) The parties may execute this Agreement in any number of parts, each of which is an original but all of which constitute one and the same instrument.
(b) The Scope of Work, agreements ancillary to this Agreement, and related documents entered into in connection with this Agreement are signed when a party’s signature is delivered by email, Docusign or other electronic medium. These signatures must be treated in all respects as having the same force and effect as original signatures.
If any one or more of the provisions contained in this agreement is, for any reason, held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect any other provisions of this agreement, but this agreement will be construed as if those invalid, illegal, or unenforceable provisions had never been contained in it, unless the deletion of those provisions would result in such a material change so as to cause completion of the transactions contemplated by this agreement to be unreasonable.
(a) Permitted Delivery Methods. Each party giving or making any notice, request, demand, or other communication required or permitted by this agreement shall give that notice in writing and use one of the following types of delivery, each of which is a writing for purposes of this agreement: personal delivery, mail (registered or certified mail, postage prepaid, return-receipt requested), nationally recognized overnight courier (fees prepaid).
(b) The Client shall address notices under this section 16 to the Consultant at the following addresses:
Att: Legal Department
609 Ponder Place Drive, Suite C
Evans, GA 30809
(c) A notice is effective only if the party giving notice complies with subsections (a) and (b).
No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement will be effective unless it is in writing and signed by both parties waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, and no waiver will constitute a continuing waiver, unless the writing so specifies.
- ENTIRE AGREEMENT
This Agreement constitutes the final agreement of the parties. All prior and contemporaneous communications, negotiations, and agreements between the parties relating to the subject matter of this Agreement are expressly merged into and superseded by this Agreement unless directly addressed in the Scope of Work. The provisions of this agreement may not be explained, supplemented, or qualified by evidence of trade usage or a prior course of dealings. Neither party was induced to enter this Agreement by, and neither party is relying on, any statement, representation, warranty, or agreement of the other party except those set forth expressly in this agreement. Except as set forth expressly in this Agreement, there are no conditions precedent to this Agreement’s effectiveness.
The descriptive headings of the sections and subsections of this agreement are for convenience only, and do not affect this Agreement’s construction or interpretation.
This Agreement will become effective when all parties have signed the Scope of Work or an official order has been placed and payment made with a Secure Merger representative. The date the Scope of Work is signed by the last party to sign it (as indicated by the date associated with that party’s signature) will be deemed the “Order Effective Date”.
- NECESSARY ACTS; FURTHER ASSURANCES
Each party shall use all reasonable efforts to take, or cause to be taken, all actions necessary or desirable to consummate and make effective the transactions this Agreement contemplates or to evidence or carry out the intent and purposes of this Agreement.
- COMPANY ACKNOWLEDGEMENT
It is the long-standing practice of the Consultant to serve multiple clients within industries, including those with opposing economic interests, as well as counter-parties in potential and actual merger, acquisition and alliance transactions. The Consultant is committed to maintaining the confidentiality of each client’s information in all such situations. Accordingly, the Client acknowledges the possibility and agrees that the Consultant may have served, may currently be serving, or may in the future serve other companies whose interests are adverse to those of the Client, including parties with whom the Client:
(b) has a commercial relationship or potential commercial relationship (e.g., suppliers, distributors);
(c) enters into competitive bidding situations;
(d) enters into or considers entering into merger, acquisition, divestiture, alliance or joint venture transactions.
The Company agrees to grant physical and digital network access to the Consultant and its sub-contractors without limitation. The Consultant and its sub-contractors will not be denied access, in any manner, to any location where work needs to be conducted according to the Consultant. The Client is allowed to have an employee of the company present at all times while the Consultant is on Client premises.
If the Company has SCIF ( Sensitive Compartmented Information Facility), or any other Top Secret or sensitive areas designated by the Federal government, the Client will tell the Consultant before work begins in any manner. The Consultant will abide by all Federal requirements for access to any sensitive area while performing activities for the Client.
If the Consultant or its sub-contractors are denied access as described in section 22(a), the Consultant has the right to stop any and all work related activity and leave the premises immediately. The Company is not entitled to any refund of deposits, retainers , escrow or monies paid to the Consultant as a result of work stoppage due to the denial of access.
If the Services require the installation and use of Secure Merger equipment or software, the Client will facilitate the installation and shall provide physical space, electrical power and Internet connectivity as reasonably determined and communicated by the Consultant.
All Fees are exclusive of all present and future sales, use, excise, value added, goods and services, withholding and other taxes, and all customs duties and tariffs now or hereafter claimed or imposed by any governmental authority upon the offerings which shall be invoiced to and paid by the Client. If the Client is required by law to make any deduction or withholding on any payments due to Secure Merger, the Client will notify Secure Merger and will pay Secure Merger any additional amounts necessary to ensure that the net amount Secure Merger receives, after any deduction or withholding, equals the amount Secure Merger would have received if no deduction or withholding had been required. Additionally, the Client will provide to Secure Merger evidence, to the reasonable satisfaction of Secure Merger, showing that the withheld or deducted amounts have been paid to the relevant governmental authority. For purposes of calculating sales and similar taxes, Secure Merger will use the address set forth on the order or Scope of Work, as applicable, as the jurisdiction to which offerings and shipments are delivered unless the Client has otherwise notified Secure Merger in writing as of the order effective date or Scope of Work effective date, as applicable. The Client will provide tax exemption certificates or direct-pay letters to Secure Merger on or before the order effective date or Scope of Work effective date, as applicable.
This Agreement and each order and/or Statement of Work are in the English language only, which shall be controlling in all respects. All communications, notices, and documentation to be furnished hereunder shall be in the English language only.