Private Client Services Agreement
By accepting our service, you are indicating that you understand and agree to abide by the terms below:
THIS PRIVATE CLIENT SERVICES AGREEMENT (this “Agreement”) is made between COUNTER MEASURES SECURITY LLC, a Pennsylvania limited liability company (“CMS”), and “Client”.
Client desires to engage CMS, and CMS desires to be engaged by Client, to perform certain cybersecurity risk management services for Client as an independent contractor, on the terms and conditions set forth in this Agreement.
Now, therefore, in consideration of the mutual promises and covenants contained herein, and intending to be legally bound hereby, the parties hereto agree as follows:
1. Engagement. Subject to the terms and conditions set forth in this Agreement, Client hereby engages CMS to render the cybersecurity risk management services indicated on Exhibit A attached hereto or requested by Client in writing or by email from time to time (collectively, the “Services”) to Client. CMS shall provide the Services in a professional manner, using that degree of care and skill ordinarily exercised by and consistent with the standards of competent consultants performing comparable services in the same or similar locality.
2. Fees. In consideration of CMS’s performance of the Services hereunder, Client shall pay CMS the fees (collectively, the “Fees”) for such Services within thirty (30) days of the date of each invoice for such Services from CMS. A late fee of $35.00 will be charged to Client if any Fees remain unpaid thirty (30) days after the date of the applicable invoice. Client shall pay the Fees to CMS by check, money order, or credit card, or in such other form agreed upon by the parties. Client shall pay all reasonable attorneys’ fees, court costs and/or collection agency charges incurred by CMS in collecting upon any invoice not paid in full more than thirty (30) days after the date of such invoice. This Section 2 shall survive the termination of this Agreement for any reason.
3. Term. The term of this Agreement shall begin as of the Effective Date and shall continue until terminated as set forth in Section 4 hereof (the “Term”).
(a) Termination without Cause. Either party may terminate this Agreement without cause upon at least thirty (30) days’ written notice to the other party.
(b) Termination for Cause.
(i) CMS may terminate this Agreement immediately upon the breach of a material term of this Agreement by Client (including, without limitation, Client’s failure to pay the Fees when due pursuant to Section 2 hereof).
(ii) Client may terminate this Agreement upon the breach of a material term of this Agreement by CMS, provided that such breach is not cured to the reasonable satisfaction of Client within thirty (30) days after written notice to CMS by Client.
(c) Effect of Termination. Upon the termination of this Agreement for any reason or no reason, CMS’s right to any further Fees hereunder shall cease, and Client shall pay CMS all Fees due and outstanding hereunder as of the effective date of termination, including, without limitation, all Fees due for the Services actually rendered to Client prior to the date of termination. This Section 4(c) shall survive the termination of this Agreement for any reason.
5. Independent Contractor. CMS is an independent contractor of Client, and shall not be deemed an agent or employee of Client for any reason. Neither party shall: (a) be responsible for the acts or omissions of the other party hereto nor the acts or omissions of the employees or agents of the other party hereto; (b) have the authority to speak for, represent or obligate the other party hereto in any way without either the express prior written consent of or written ratification by the other party; nor (c) be liable for any tax liabilities or obligations of the other arising from the performance of this Agreement. None of the provisions of this Agreement are intended to create, nor shall they be deemed or construed to create, any partnership, joint venture, or other relationship between the parties except that of independent entities contracting solely for the purpose of effecting the provisions of this Agreement.
6. Confidentiality. CMS does not gather nor keep any data or information of Client, except to the extent necessary to provide the Services or upon Client’s request in connection therewith, and then only for the time that it takes to complete the Services related to such information. The parties acknowledge that, despite CMS’s efforts to avoid becoming exposed to confidential, proprietary or sensitive information of Client that is unnecessary for CMS’s performance of the Services hereunder, it may occur. For purposes of this Agreement, Confidential Information shall include, without limitation, in any form or medium, any and all confidential technology, proprietary information, contract terms, trade secrets, financial information, credit information, records, notes, memoranda, data, ideas, processes, methods, techniques, systems, formulas, patents, models, devices, programs, computer software, writings, research, plans or any other information of whatever nature regarding Client in the possession or control of CMS that is not generally known or available to members of the general public (collectively, “Confidential Information”). During the Term, and after the termination of the Agreement for any reason, CMS agrees to keep confidential, and not to use for its own benefit or for any other purpose, or disclose to any outside party except to the extent necessary to comply with any legal requirement, any Confidential Information. All records and other material pertaining to Confidential Information, whether developed by CMS or others, shall be and remain the property of Client. Upon the termination of this Agreement for any reason, CMS shall return to Client all documents, records, notes and other materials of any kind pertaining to or containing Confidential Information then in CMS’s possession, whether prepared by CMS or others. This Section 6 shall survive the termination of this Agreement for any reason.
7. Third-Party Services. From time to time, CMS may make available to Client, at Client’s cost and with Client’s consent, access to certain third-party services, including, but not limited to, password managers, identity theft monitoring, antivirus software, and IT service providers/consultants (collectively, “Third Party Services”). CMS’s rendering of the Services hereunder will not be conditioned upon Client’s use of any Third Party Services. Third Party Services are not related to or otherwise affiliated with CMS. CMS makes no endorsements, representations or warranties regarding any Third Party Services, and hereby disclaims all warranties in connection with any Third Party Services. Client shall indemnify, defend and hold harmless CMS, its members, officers, employees and agents, from and against any and all damages, losses, liabilities, claims, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising from, out of or in connection with Client’s use of any Third Party Services.
8. Disclaimers. There cannot be, and CMS does not warrant, a guarantee of the effectiveness of any of the Services, Client’s cybersecurity, or Client’s protection from crimes or data loss. The Services rendered by CMS hereunder are provided to Client “AS IS” and on an “AS AVAILABLE” basis. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE COMPANY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
9. Limitation of Liability. IN NO EVENT SHALL CMS BE LIABLE TO CLIENT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, COSTS OF DELAY, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE. CMS’S LIABILITY TO CLIENT OR ANY THIRD PARTY SHALL NOT EXCEED THE AMOUNT OF FEES PAID TO CMS BY CLIENT HEREUNDER DURING THE TERM.
10. Notices. All notices, requests, consents, claims, demands or waivers hereunder (excluding communications relating to the day-to-day performance of the Services) shall be in writing and shall be deemed to have been given: (a) when delivered by hand; (b) when received by the addressee if sent by a nationally recognized overnight courier; (c) on the date sent by facsimile or e-mail (with confirmation of transmission); or (d) on the 3rd day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Any such communications shall be sent to the respective party at the billing address for such party.
11. Governing Law; Venue. This Agreement shall be governed and construed by the laws of Commonwealth of Pennsylvania, without giving effect to its principles of conflicts of law. Any claim or dispute arising in connection with this Agreement shall be resolved exclusively in the state courts situated within Montgomery County, Pennsylvania, or the U.S. District Court for the Eastern District of Pennsylvania. To the maximum extent permitted by law, the parties hereby consent to the exclusive jurisdiction and venue of such courts and waive any objections to the jurisdiction or venue thereof.
12. Severability. The various provisions of this Agreement are severable from each other and from the rest of the Agreement, and in the event that any part of this Agreement shall be held invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be fully effective, operative, and enforceable.
13. Incorporation by Reference. The Background section hereof and all Exhibits attached hereto are hereby incorporated into this Agreement by this reference thereto and made a part hereof.
14. Entire Agreement. This Agreement constitutes the entire agreement of the parties pertaining to the subject matter hereof and supersedes all prior negotiations and understandings of the parties, whether written or oral, with regard to the subject matter hereof.
15. Survival. The following Sections of this Agreement shall survive the termination of this Agreement for any reason: 2, 4(c), 5−16.
16. Miscellaneous. This Agreement shall not be modified or amended except by a written document signed by each of the parties. No provisions hereof may be waived except by an agreement in writing signed by the parties. A waiver of any term or provision hereof shall not be construed as a waiver of any other term or provision hereof. This Agreement shall bind and inure to the benefit of the parties hereto and their respective successors, heirs and permitted assigns; provided, however, that this Agreement is a personal services contract and may not be assigned by either party without the prior written consent of the other party. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same Agreement. For purposes of this Agreement, signatures received by facsimile or email, or electronic signatures, shall have the same effect as original signatures.