This agreement between: ShieldForce Corporation (“ShieldForce”), a corporation registered under the laws of the Delaware, United States, and operating as a Information Technology Services Provider with its headquarters in Boston, Massachusetts, and the client named on an Order referencing and incorporating this Agreement (“Client”), and they are referred to (Collectively, the “Parties”)
BACKGROUND
A. ShieldForce operates a business providing information technology (“IT”) solutions including products (the “Products”) and services (the “Services”) to its clientele.
B. The Client operates a business requiring IT solutions including products and/or services from an IT company.
C. The Client wishes to take advantage of ShieldForce Products and/or Services, and ShieldForce will provide the Products and/or Services to the Client pursuant to the terms and conditions of this ShieldForce Service Agreement (the “Agreement”).
In consideration of the Assessment, Products and/or Services provided by ShieldForce to the Client, the promises and clauses contained herein, and other valuable consideration exchanged by the Parties, (the receipt and sufficiency of which are hereby acknowledged), ShieldForce and Client hereby agree as follows:
1.1 Hardware refers to physical, tangible, equipment, servers, computer systems, and ancillary parts and accessories therefor.
1.2 Intellectual Property means any intangible asset, the proprietary rights of which may be protected by contract such as trade secrets, know-how and other similar assets and any intangible asset, the proprietary rights of which are protected by United States or foreign laws such as patents, copyright, trademarks, industrial designs, integrated circuit topographies or plant species and includes any application made to and any registration or patent issued by a public authority for the purpose of securing proprietary and/or intellectual property rights to such intangible assets.
1.3 Software means all computer programs (defined as a list of instructions which may be read by a machine);
2.1 Client Needs. IT requirements vary from business to business. These needs may include, but are not limited to, software installation, optimization, active management, security software and/or hardware installation, upgrades, management, custom designed software solutions, and more (collectively, the “Client Needs”).
2.2 Needs Assessment. ShieldForce provides IT solutions to its clients based on their specific Client Needs. Prior to ShieldForce being able to provide quotes concerning the specific Products and Services to be rendered, ShieldForce may be required to assess (the “Assessment”) the Client Needs.
2.2.1 By signing this Agreement, the Client shall permit ShieldForce to conduct the Assessment, which Assessment may include, but not be limited to: attendance at the Client Address, accessing Client Software and/or Hardware for evaluation purposes, and communicating with Client staff.
2.3 Service Quote. ShieldForce may provide the Client with a quote and other documents (collectively, the “Quote”) which will better define the relationship between ShieldForce and Client. The Quote shall form part of this Agreement, and if any conflict arises between this Agreement and the Quote, the Quote shall supersede.
2.4 Future Changes In the event Client Needs change in the future, ShieldForce reserves the right to change the Product and/or Service offerings it renders at its discretion, acting reasonably. ShieldForce shall exercise best efforts to provide Client with reasonable notice of any fundamental changes, in writing, and is not required to submit revised Quote for every change.
Schedule “A” – Waiver re. Cyber Insurance, and any related Quote, as amended hereafter shall form part of this Agreement.
The term of this Agreement shall be indefinite, subject to terminations provisions herein, or as may be amended by the Quote.
5.1 The fees (“Fees”) charged by ShieldForce to the Client for the Products and/or Services rendered shall be as specified in the Quote, and as amended by the Parties from time to time, and will entitle the Client (and its related entities) to use the Products and/or Services in the Quote.
5.2 Due Date. Payment of all Fees shall be due within thirty (30) days of Client receipt of a ShieldForce invoice (the “Invoice”). Receipt of an Invoice shall be deemed to occur when the Invoice is sent to the Client Email Address, and/or within 5 business days of the Invoice being mailed to the Client Address.
5.3 Default. If Client fails to pay any monies owing to ShieldForce within 30 days of the terms stated on the invoice, Client will owe an additional fee (the “Default Fee”) of $250.00. Any unpaid amounts owing, including, but not limited to the Default Fee, and Assessment Fee shall accrue interest at a rate of twenty percent (20%) per annum, calculated monthly from the date upon which the same was due until actual payment thereof. Client is responsible for any and all fees incurred by ShieldForce to collect any monies owing due to non-payment, dispute, Default, or otherwise (including court and legal fees).
5.4 ShieldForce reserves the right to withhold the Products and/or Services, including ShieldForce subscription-based Services from the Client in the event the Client has failed to pay any Fees owing to ShieldForce in accordance with this Agreement or the Quote.
5.5 ShieldForce reserves the right of ownership for any Software it created in the course of its relationship with the Client, so long as any Fees remain outstanding.
5.6 Payment Terms. Payments shall be made payable to ShieldForce Corporation by certified cheque or bank draft, online credit card web payment systems, electronic wire transfer, or as otherwise specified by ShieldForce.
5.7 Invoice Dispute. In the event Client disputes an Invoice (the “Dispute”), Client shall advise ShieldForce within thirty (30) days of the date it receives the disputed Invoice and shall provide reasonable details in writing of the matters in dispute. If ShieldForce does not receive notice of a Dispute within thirty days of the date when the Client receives an Invoice, the Invoice shall be deemed to have been accepted and owing by the Client. Any undisputed amounts owing shall continue to be paid by Client to ShieldForce while the Dispute is resolved.
Client represents and warrants that:
6.1 it has full right, power and authority to enter into the Agreement including amendments arising from the Quote, and to perform all of its duties and obligations thereunder and there are no contractual or legal restrictions prohibiting it from carrying out the Agreement or terms of Quote.
6.2 has not failed to disclose any information about its legal and financial status or its activities which would deter ShieldForce, acting reasonably, from entering into the Agreement.
6.3 it will comply with its obligations as specified in the Agreement and Quote, including the obligation to comply with Section 8 herein with respect to Cyber Insurance.
6.4 it shall provide ShieldForce with all information reasonably required by ShieldForce and cooperate with ShieldForce to obtain any necessary permits, licenses, authorizations, permissions, or otherwise, as required, or as is reasonably necessary to permit ShieldForce to render the Products and/or Services. For greater certainty, Client will obtain all necessary permissions from its vendors, internet service providers, web and domain host providers, telephone providers, and owners of any Software used at Client Facilities where Client is not the rightful owner of such Software, at no cost to ShieldForce.
6.5 update ShieldForce in the event any of its vendors, service providers, or Software owners change.
6.6 in the event of Cyber Attack, Client shall notify ShieldForce as soon as reasonably possible, and cooperate with ShieldForce to contain, limit, and deter the Cyber Attack.
7.1 ShieldForce reserves the right to render the Products and/or Services, as set out in the Quote remotely, or at such location as ShieldForce determines, at its discretion. In the event ShieldForce requires:
7.1.1 physical access to the Client’s building, servers, computers, network, Hardware, or such other location or equipment which is in the Client’s possession or control (the “Client Facilities”); or
7.1.2 access to the Client’s network, Software, programs, servers, code base, email infrastructure, or data, (the “Client Software”), the Client shall cooperate with ShieldForce and grant it access (the “Access”) to the Client Facilities and Client Software upon request.
8.1 Client acknowledges that any and all software, computer systems, programs, computer-controlled machinery and equipment, or any other digitally controlled systems are vulnerable to, and may be subject to undesired and/or unauthorized manipulation as a result of cyber attack, hacking, phishing, malware, viruses, and/or equivalent incidents (collectively the “Cyber Attacks”).
8.2 Client acknowledges that Cyber Attacks may result in significant damages including but not limited to software corruption, systems corruption, damages to machinery, tools, equipment, inventory, and other hardware, disruption of business operations, leaks of confidential information, loss of access to assets, and more, all of which may result in significant and unquantifiable monetary losses (collectively, the “Damages”).
8.3 While it is the focus of ShieldForce, and many IT companies to take steps to avoid and minimize the risk of Cyber Attacks, and the quantum of Damages, ShieldForce cannot guarantee that the Client will not be subject to Cyber Attacks and/or Damages, whether such Cyber Attacks occur whilst the Client is receiving the benefit of the Services, Products, or otherwise.
8.4 Therefore, ShieldForce requires that the Client obtain sufficient cyber security insurance (the “Cyber Insurance”) to protect and compensate the Client in the event of Cyber Attacks and/or Damages. Client shall produce evidence of sufficient Cyber Insurance to ShieldForce upon request. In the event the Client chooses not to obtain Cyber Insurance, the Client must provide ShieldForce with a signed copy of the Waiver attached hereto as Schedule “A”.
9.1 ShieldForce warrants that it owns the Intellectual Property rights in the cybersecurity subscription service offering and the Client is authorized to consume the service without fear of breaching a third party’s Intellectual Property rights. In the course of rendering the Products and/or Services for the Client, ShieldForce may produce or provide the Client with the benefit of both Open Work Product and Closed Work Product, defined as follows:
9.1.1 “Open Work Product” refers to: ShieldForce Security Vetting Questionnaire, Vulnerability Assessment Reports, Threat Intelligence Alert report, Audit report, Log report, Weekly Security Posture Report, Monthly Security Posture report, SOC Analyst report, set of guidelines and best practices for managing cybersecurity risks based on the U.S NIST Framework.
9.1.2 “Closed Work Product” refers to: Compiled Applications, Utilities, Solutions designed to be resold or containing compiled code proprietary to ShieldForce, and such other Software and Intellectual Property which could not be reasonably designed and implemented internally by Client staff.
9.2 Open Work Product. Open Work Product shall be provided to Client in an un-compiled, un-encrypted form which may be edited and modified by Client without ShieldForce assistance. Open Work Product is delivered to Client for Client’s internal use only.
9.3. Closed Work Product. Closed Work Product shall at all times remain the exclusive property of ShieldForce. Client shall not receive or retain any Intellectual Property rights to, and waives all moral rights to Closed Work Product. Closed Work Product is provided to the Client pursuant to a non-exclusive, revocable license granted by ShieldForce to Client for Client’s internal use only.
9.3.1 Client shall not reproduce, assign, sublet, sell, transfer, transmit, copy, disclose, or alter the Closed Work Product or its source code;
9.3.2 Copies of Closed Work Product may be produced by Client for internal use only provided the Client has received explicit written authorization by ShieldForce for such reproduction;
9.3.3 Client shall not permit any third parties access to Closed Work Product, including other Software or IT professionals without ShieldForce’s explicit written permission;
9.3.4 ShieldForce retains the right to sell or resell the Closed Work Product at its discretion.
9.4 ShieldForce may, in the process of rendering the Services and/or Products for Client, whether independently, or jointly with others, create, develop, write, contemplate, or invent new technical works and/or creations (the “Works”), which may include but are not limited to discoveries, inventions, know-how, concepts, processes, products, and methods. ShieldForce shall retain absolute and exclusive Intellectual Property rights, including moral rights, to the Works. Client relinquishes all rights, including Intellectual Property rights and moral rights to such Works.
ShieldForce provides a 99.9% uptime SLA ensuring high availability of mission-critical data, and leverages data centers with redundant systems. ShieldForce prioritizes data availability with a 99.9% uptime SLA. ShieldForce will also dedicate customer success consultants to respond to all Client request in 25 minutes or less.
11.1 ShieldForce recognizes that in the performance of the Services, it may acquire or gain access to certain proprietary and confidential information of the Client, including without limitation, its operations, pricing information, personnel files, contract terms and client information, as well as the confidential information of third parties that the Client has possession of or control over (collectively, “Confidential Information”).
11.2 ShieldForce shall not in any way use, store, divulge, disclose, furnish or otherwise make accessible to any person or entity, either during the Term of this Agreement or at all times thereafter, any Confidential Information except as and to the extent required to perform the Services and always in accordance with applicable laws, including those relating to privacy and the protection of personal health information.
As long as the Agreement is in force and for a period of one (1) year after its termination, each Party undertakes not to solicit the services of or encourage, entice, or attempt to induce the departure of a member of the staff of either Party or recommend any such action to a third person for purposes of employment. Any contravention of this undertaking by a Party shall result in a penalty equal to the annual salary of the person who thereby ceased working for the other Party. Such penalty shall be payable to the other Party, which shall also have the right to commence the proceedings it considers appropriate in order to cause the above-mentioned contravention to cease and to claim damages thereby incurred.
13.1 ShieldForce shall hold, save, and indemnify the Client and its directors, officers, employees, contractors, agents and affiliates, harmless for any and all actions, causes of action, claims or costs resulting from ShieldForce’s breach of this Agreement, the Quoting Documents, or the negligence, gross negligence, or willful misconduct, of ShieldForce or its officers, employees, or authorized agents up to a maximum amount (the “Liability Cap”). The Liability Cap is equivalent to the lower of the Client’s applicable Cyber Insurance deductible or the total Fees paid by the Client to ShieldForce in the 365 days prior to the incident which caused the Client to incur damages.
13.2 Client shall hold, save, and indemnify ShieldForce harmless for any and all actions, causes of action, claims or costs resulting from the Client’s breach of this Agreement, the Quoting Documents, or the negligence, gross negligence, or willful misconduct, of the Client or its officers, employees, authorized agents, or any other third party.
13.3 Neither party shall be liable for, or be required to indemnify the other party for any incidental, consequential, exemplary, special, punitive, or lost profit damages that arise in connection with this Agreement.
The Client may terminate this Agreement for any reason upon providing at least thirty (30) days written notice to the other party, unless otherwise specified in the Quote.
14.1 ShieldForce may terminate this Agreement immediately upon providing written notice to the Client in the event the Client fails to comply with any of the provisions of this Agreement, including non-payment of an Invoice, Fees, and/or failing to provide ShieldForce with the Access or requisite information it requires to render the Services and/or Products in a reasonable, workmanlike manner.
14.2 Upon termination of this Agreement, the sole and exclusive obligation of the Client to ShieldForce will be to pay any Fees for Products and/or Services rendered up to the effective date of such termination, and to return any physical hardware, equipment, or Closed Work Product belonging to ShieldForce as per its request, in the same condition it was received in, at Client’s cost. ShieldForce may, but is not required to, provide a quote to Client for purchase of the Software, hardware, equipment, or Closed Work Product in Client’s possession.
The Agreement does not create and shall not be construed as creating any relationship of agency, partnership or employment between the Parties. The Parties enter this Agreement as, and shall remain, independent parties. Neither Party shall represent itself as having the authority to bind the other in any manner whatsoever.
16.1 Force Majeure means any event beyond the reasonable control of a Party which could not have been reasonably foreseen and against which it could not have protected itself such as, without limiting the generality of the foregoing, natural disasters, epidemics, fires, accidents, acts of war (whether declared or not), insurrections, riots, acts of terrorism, wildcat strikes, partial or total work stoppages or slowdowns, lock-outs, changes in market conditions, power or communications breakdowns, interventions by civil or military authorities, compliance with any orders of governmental authorities, courts or tribunals or public authorities;
16.2 A Party shall not be considered in default of its duties or obligations hereunder or liable for any damages or delay if such default, damages or delay is the result of Force Majeure.
17.1 This Agreement, and any Quoted Documents signed hereafter shall contain the entire agreement between the parties hereto and supersedes all prior agreements on this subject, whether written or oral. No modification or amendment of this agreement shall be binding unless made in writing and signed by both Parties hereto.
17.2 No provisions of this Agreement shall be deemed to be waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both Parties. No failure to exercise and no delay in exercising any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of that provision.
17.3 Any rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not apply to the interpretation of this Agreement or any amendments or exhibits hereto. If any court of competent jurisdiction holds that any provision in this Agreement is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby.
17.4 The section headings in this Agreement have been included for the convenience of the parties and shall not be considered in any question of interpretation or construction of the Agreement. All sections of this Agreement that by their nature extend beyond its termination survive termination or expiration of this Agreement.
17.5 Any notice, demand, approval, direction, agreement or other communication required or permitted hereunder or under any other documents in connection herewith shall be in writing and directed as follows: If to ShieldForce, sent by e-mail to: [email protected]. Notice sent by e-mail to the ShieldForce shall be deemed to have been received three business days after the e-mail is sent. If to Client, sent by e-mail to the Client Email Address as specified above. Notice sent by e-mail to the Client shall be deemed to have been received one business day after the e-mail is sent.
17.6 This Agreement shall be governed by and construed in accordance with the laws of Delaware and the laws of United States applicable therein. This Agreement will ensure to the benefit of and be binding upon all of the parties hereto and their respective successors and permitted assigns. The Client shall not transfer or assign this Agreement without the written consent of ShieldForce, which consent may be unreasonably withheld. Time is of the essence of this Agreement.
Client has been given the full opportunity to review and discuss the implications of this Agreement, including the opportunity to obtain independent legal advice.
18.1 This Agreement may be signed by electronic signature.
THE PARTIES HAVE DULY EXECUTED AND DELIVERED THE AGREEMENT IN COUNTERPART, AS WITNESSED BY THEIR SIGNATURES AFFIXED ON THE DATES INDICATED BELOW:
ShieldForce Corporation
Name: Obi Ibeto – Founder/CEO
I have authority to bind the Corporation.