Infosec Chicago Master Services Agreement
THIS MASTER SERVICES AGREEMENT (“Agreement”) is entered into on September 29, 2020 (“Effective Date”), by and between Infosec Chicago (“Infosec”) located at 542 W. Belden, Elmhurst, Illinois, 60126 and (“Client”) having a principal address at:
WHEREAS, Infosec is in the business of providing certain information security technology services, including but not limited to, information security consulting, digital forensics, expert witness services, and/or managed network security services (collectively, the “Services”);
WHEREAS, Client desires to engage Infosec to provide such Services and Infosec desires to be so engaged.
THEREFORE, in consideration of the mutual agreements below, and intending to be legally bound, the parties agree:
1.1 Services under Statement of Work. Client is engaging Infosec to provide the Services as described in the relevant, duly executed statements of work under this Agreement (hereinafter, “SOWs”). Neither party will have any obligation with respect to any draft SOW unless and until it is executed by both parties. Except as otherwise provided herein, if any of the terms and/or conditions of this Agreement conflict with any of the terms and/or conditions of any SOW, the terms and/or conditions of such SOW will control solely with respect to the Services covered under such SOW.
1.2 Personnel. Infosec shall provide qualified, competent personnel to perform the Services. No Infosec personnel shall be required to perform Services exclusively for Client during the term of this Agreement and/or SOW. Infosec shall perform the Services at the location of its choice, which may include on Client’s business premises. Infosec shall supervise the performance of the Services and shall be entitled to control the manner and means by which the Services are performed, subject to the terms of this Agreement and/or SOW. Client acknowledges and agrees that Infosec may engage representatives, subagents or contractors to provide the Services hereunder.
1.3 Equipment and Third-party Products. Except as expressly set forth in any SOW, Infosec has not provided an estimate for, and is not responsible for, the selection or procurement of any hardware or equipment, operating system software, database software, or other third-party software, connectivity, data transport, or other IP rights required to perform the Services. Client is solely responsible for the selection, procurement, costs, and expenses of acquiring the same, and any other infrastructure required to support Client’s use of the Services. Notwithstanding anything herein to the contrary, Client acknowledges and agrees that Infosec is not liable for the performance of any third-party products and/or services. Client further acknowledges and agrees that information technology generally, Infosec’s Services, and any equipment recommended by Infosec, are all part of a rapidly evolving industry and may change from time to time and the foregoing is outside of Infosec’s control.
2.2. Access to Information and Cooperation. In addition to any obligations set forth in a SOW, Client shall promptly and fully cooperate with Infosec in the performance of the Services, which shall include without limitation, providing Infosec with timely access to Client’s data, information and Client shall promptly make competent, qualified personnel available to assist and answer questions of Infosec, as necessary and appropriate and as reasonably requested by Infosec. Infosec shall bear no liability or otherwise be responsible for delays in the provision of the Services or any portion thereof caused by Client’s failure to timely provide information requested by Infosec.
3.1 Fees. In consideration of the provision of the Services described herein and/or in any SOW, Client agrees to pay Infosec the fees set forth in the duly executed SOW. All fees due and payable by the Client to Infosec under this Agreement must be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law. The fees reflected in such SOW(s) shall be in U.S. dollars. Any services provided outside of the scope of Services set forth herein and/or in the applicable SOW shall be provided at Infosec’s then-current rate for such out-of-scope services and shall be due and payable in accordance with the terms and conditions set forth herein.
3.2 Taxes. All fees due and payable under this Agreement are exclusive of taxes, which will be added at the prevailing rate from time to time.
3.3 Expenses. Reasonable travel and out-of-pocket expenses are not included in the fees set forth in the relevant SOW’s and will be invoiced separately.
3.4 Invoices. Unless otherwise set forth herein or in the applicable SOW, Infosec will provide Client with an invoice for fees that become due hereunder and such invoices shall be due and payable by Client within thirty (30) days after the date of such invoice. Invoices submitted by Infosec to Client are deemed accepted and approved unless disputed by Client in accordance with the terms and conditions contained herein.
3.5 Payments. Unless otherwise set forth in the SOW, all invoices shall be paid by check mailed to Infosec Chicago, 542 W. Belden, Elmhurst, Illinois 60126 or through Infosec’s online system by logging in at https://bscc.syncromsp.com/my_profile/login. If pursuant to the SOW or other written authorization by Client, fees may be automatically deducted from a payment account designed by Client.. Client hereby authorizes InfoSec to charge the payment account for the fees in advance or as otherwise agreed to by the parties in writing without any further authorization from Client. Client acknowledges that the authorization will remain in effect until Client cancels such authorization by providing written notice to InfoSec. If Client’s payment account on file is closed or the account information is changed, or if, for any reason, a charge is rejected, Client shall immediately update Client’s payment account or supply a new payment account, as appropriate. If Client is unable to update its payment account with appropriate information, then Infosec will send an invoice to Client detailing the amount due. Client must pay the amount due in full within seven (7) days after the date of the invoice. Client agrees to notify Infosec in writing of any changes to Client’s account information or termination of its authorization at least thirty (30) days prior to the next billing date. In the event payment dates fall on a weekend or holiday, Client understands that the payments may be executed on the next business day. Infosec uses a third-party payment platform to process payments. Client’s credit card information or other payment method will be processed and stored by our third-party payment processor, ‘Stripe’. Client expressly understands and agrees that all payments and monetary transactions are handled by such third-party and the use of such platform is governed by the third-party’s terms and conditions and Infosec shall have no liability related thereto.
3.6 Late Payments. If the Client does not make payment on or before the date on which it is due to be paid, after five (5) days past due a late fee of ten (10%) percent of the total invoice will be added to the total amount due and payable. If the invoice remains unpaid after thirty (30) from the date such invoice is due to be paid, an additional thirty (30%) percent of the total invoice will be added to the total amount due and payable. In the event payment for fees is not made on or before the date such payments are due, Infosec may, in its sole discretion, cease providing Services until payment is made in full without incurring any liability.
3.7 Invoice Dispute Process.
(a) If Client has a bona fide dispute in relation to any portion of the fees invoiced, Client must pay all invoiced fees and shall provide notice to Infosec in writing within thirty (30) days from the date of the invoice. Such notice shall set forth the details surrounding the dispute. The parties shall discuss the disputed fees within sixty (60) calendar days of the date of the notice and use commercially reasonable efforts acting in good faith to resolve the dispute. If the dispute is not resolved within such time period, then either party may at any time thereafter submit such dispute to a court of competent jurisdiction as set forth herein.
(b) When the dispute is resolved, any payment to be made to Infosec, or amount to be refunded to Client, as the case may be, shall be made within thirty (30) calendar days after the resolution of such disputed invoice.
(c) For avoidance of doubt, all negotiations pursuant to this Section 3.7 shall be treated as confidential compromise and settlement negotiations. Nothing said or disclosed, nor any document produced, in the course of such negotiations which is not otherwise independently discoverable shall be disclosed to any third party nor offered or received as evidence or used for impeachment or for any other purpose in any current or future litigation.
(d) Client waives the right to dispute any fees not disputed within thirty (30) calendar days after the date of the applicable invoice.
4.1 Term. This Agreement is effective as of the Effective Date and will continue in full force and effect for one (1) year unless terminated earlier in accordance with the terms and conditions set forth in this Agreement (“Initial Term”). This Agreement will automatically renew for additional one (1) year periods (“Renewal Term”) unless either party provides written notice to the other party of its intent not to renew at least thirty (30) days prior to the end of the then-current Term (for such termination to take effect at the end of the then-current Term). The Initial Term together with any and all Renewal Terms, shall be collectively referred to herein as the “Term.” Notwithstanding anything herein to the contrary, in the event the term of a SOW extends beyond the term of this Agreement, the term of this Agreement shall be extended through the term of the applicable SOW as it relates to the equipment and Services provided thereunder.
4.2 SOWs. The Services will commence on the date set forth in a SOW and continue thereafter as set forth in such SOW, unless otherwise terminated earlier in accordance with the terms of such SOW or this Agreement.
5.1 Termination for Breach. If a party materially breaches this Agreement and/or any SOW (the "Defaulting Party"), and the Defaulting Party does not cure such breach within fifteen (15) days after its receipt of written notice of material breach, the non-defaulting party may terminate this Agreement and/or the relevant SOW upon written notice to the Defaulting Party. Termination of a SOW and/or this Agreement will be without prejudice to any other rights and remedies that the non-defaulting party may have under this Agreement and/or at law and/or in equity.
5.2 Termination for Convenience. Infosec or Client may terminate this Agreement and/or any SOW hereunder at any time upon thirty (30) days prior written notice to the other party.
5.3 Termination for Insolvency. Either party may terminate this Agreement and SOW(s) immediately in the event the other party becomes Insolvent. For purposes of this Section 5.3, “Insolvent” or “Insolvency” shall mean a party that makes an assignment for the benefit of creditors, has a receiver, trustee, custodian (or similar party) appointed or designated to administer its affairs or otherwise take control of its assets or business operations, becomes a debtor in a voluntary proceeding under any chapter of the United States Bankruptcy Code or any law or statutory scheme relating to insolvency, reorganization or liquidation, or an involuntary petition in bankruptcy, or other insolvency proceeding is filed against a party and is not dismissed within sixty (60) days thereafter.
5.4 Effect of Termination.
(a) In the event Infosec elects to terminate this Agreement and/or any SOW pursuant to Section 5.1 or 5.3, then Client shall immediately pay Infosec for all fees that would have been owed to Infosec through the end of the applicable term, as if the Agreement and/or SOW had not been terminated.
(b) In the event Client elects to terminate this Agreement and/or any SOW pursuant to the terms set forth herein or Infosec elects to terminate this Agreement pursuant to Section 5.2, then Client shall immediately pay Infosec for all fees related to Services rendered through the effective date of termination.
(c) Upon any termination of this Agreement and/or SOW, Infosec will work with Client to ensure a smooth transition of Services to Client or a third party as mutually agreed to by the parties at Infosec’s then-current rates.
Notwithstanding any provision hereof, for all purposes of this Agreement each party shall be and act as an independent contractor and not as partner, joint venturer, or agent of the other and shall not bind nor attempt to bind or commit the other party. Nothing contained herein shall give or is intended to give any rights of any kind to any third persons. Infosec and Client are each an independent contractor and solely responsible for all taxes, withholdings, and other statutory or contractual obligations, including, but not limited to, workers’ compensation insurance. Neither party shall have any obligation to provide the other party or any of its employees any insurance, health benefits or any other benefits afforded to its own employees.
7.1 Intellectual Property. “IP” means all intellectual property including without limitation all patents, inventions, trademarks, service marks, trade names and trade dress, copyrights and copyrightable works, trade secrets, know-how, design rights and database rights.
7.2 Infosec Trademarks. Infosec retains all right, title and interest in and to all trademarks, service marks, and trade names owned or licensed by Infosec, and no right, title or interest in or to Infosec’s trademarks, service marks, or trade names is granted to Client hereunder. All uses of Infosec’s trademarks, service marks, or trade names shall inure solely to the benefit of Infosec or its licensors.
7.3 Infosec Tools. “Infosec Tools” means Infosec’s pre-existing proprietary works of authorship which were not created specifically for Client, do not uniquely address issues related to Client’s business practices, do not contain and/or embody Confidential Information of Client and/or are developed independently of the Services set forth herein and includes, without limitation, computer programs, methodologies, templates, flowcharts, architecture designs, tools, specifications, drawings, sketches, models, samples, records and documentation, as well as copyrights, trademarks, service marks, ideas, concepts, know-how, techniques, knowledge or data, and any derivatives thereof, which have been originated and/or developed by Infosec.
7.4 Work Product. Client shall own all right, title and interest (including patent rights, copyrights, trade secret rights, mask work rights, trademark rights and all other intellectual property rights throughout the world) relating to any and all inventions, works of authorship, mask works, designations, designs, materials, ideas and information made or conceived or reduced to practice, in whole or in part provided by Infosec during the term of this Agreement that relate to the Services, or arise out of the Client’s Confidential Information excluding any Infosec Tools and/or open source software incorporated therein (collectively, “Work Product”). All Work Product is “work-made-for-hire” to the extent allowed by law and, in addition, Infosec hereby makes all assignments necessary to accomplish the foregoing ownership. Infosec shall further assist Client, at Client’s expense, to further evidence, record and perfect such assignments, and to perfect, obtain, maintain, enforce, and defend any rights assigned.
7.5 Client Content. “Client Content” means any elements of text, graphics, images, photos, designs, artwork, logos, trademarks, service marks, data, software, equipment and other information, materials and/or content which Client provides in connection with any Services. Client Content excludes any content available in the public domain; and any content owned or licensed by Infosec, whether in connection with providing Services or otherwise. Client hereby grants Infosec a worldwide, non-exclusive right and license to use, reproduce, distribute and display the Client Content solely as necessary to provide the Services. Client represents to Infosec and guarantees that all Client Content is owned by Client, or that Client has permission from the rightful owner to use each of the elements of Client Content; and that Client has all rights necessary for Infosec to use the Client Content in connection with the Services. Client and its licensors retain title, all ownership rights, and all IP rights, in and to the Client Content, and reserve all rights not expressly granted to Infosec hereunder.
7.6 Infosec has no knowledge of the value of Client’s Content or of the financial or other consequences of the Client’s Content being lost or not properly processed and/or transmitted and it is the Client’s responsibility to store and back-up at all relevant times and whenever possible and keep a permanent record of such Client Content processed and/or transmitted via any network.
8.1 Confidential Information. “Confidential Information” means any confidential and proprietary information, not generally known, concerning the business, property, intellectual property or relationships of a party, including: (i) inventions (ii) information relating to a party’s technology, products, and services, including, without limitation, technical data, trade secrets, know-how, research, product or service plans, ideas or concepts, software, inventions, techniques, processes, developments, algorithms, formulas, designs, schematics, drawings, and engineering information and any applications to register any of the foregoing, and (iii) information relating to a party’s operations, business, financial plans or strategies, including, but not limited to, customers, customer lists, markets, financial statements, projections, pricing, commission structures, compensation arrangements and formulas, marketing plans, financial and other strategic business plans or information, directly or indirectly disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) whether in writing, orally or visually. Confidential Information does not include information that: (a) is obtained by the Receiving Party from the public domain without breach of this Agreement and independently of the Receiving Party’s knowledge of any Confidential Information; (b) was lawfully and demonstrably in the possession of the Receiving Party prior to its receipt from the Disclosing Party; (c) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (d) becomes known by the Receiving Party from a third party independently of the Receiving Party’s knowledge of the Confidential Information and is not subject to an obligation of confidentiality.
8.2 Non-Disclosure. The Receiving Party will keep the Confidential Information confidential, and may disclose the Confidential Information to its officers, directors, employees, agents and subcontractors (and their employees) (“Representatives”) who have a need to know such Confidential Information solely in connection with this Agreement and/or SOW. The Recipient will cause such Representatives to comply with this Agreement and will assume full responsibility for any failure to comply with the terms of this Agreement. The Receiving Party will not transfer or disclose any Confidential Information to any third party without the Disclosing Party’s prior written permission and without such third party having a contractual obligation (consistent with this Article 8) to keep such Confidential Information confidential. The Receiving Party will not use any Confidential Information for any purpose other than to perform its obligations under this Agreement and/or SOW.
8.3 Legal Requirements. If the Receiving Party is requested or required to disclose any of the Disclosing Party’s Confidential Information under a subpoena, court order, statute, law, rule, regulation or other similar requirement (a “Legal Requirement”), the Receiving Party will, if lawfully permitted to do so, provide prompt notice of such Legal Requirement to the Disclosing Party so that the Disclosing Party may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. If the Disclosing Party is not successful in obtaining a protective order or other appropriate remedy and the Receiving Party is legally compelled to disclose such Confidential Information, or if the Disclosing Party waives compliance with the provisions of this Agreement in writing, the Receiving Party may disclose, without liability hereunder, such Confidential Information solely to the extent necessary to comply with the Legal Requirement.
8.4 Disclosure. In the event that the Receiving Party learns or has reason to believe that Confidential Information has been disclosed or accessed by an unauthorized party, the Receiving Party will immediately give notice of such event to the Disclosing Party.
8.5 Disposition of Confidential Information on Termination. Upon termination of this Agreement or upon the Disclosing Party’s written request, the Receiving Party will return to the Disclosing Party all copies of Confidential Information already in the Receiving Party’s possession or within its control. Alternatively, with Disclosing Party’s prior written consent, the Receiving Party may destroy such Confidential Information; provided that the Confidential Information is (i) destroyed in accordance with applicable law, rule or regulation and (ii) is rendered unreadable, undecipherable and otherwise incapable of reconstruction, in which case an officer of the Receiving Party will certify in writing to the Disclosing Party that all such Confidential Information has been so destroyed.
9.1 Each party represents and warrants that it (i) is a duly organized, validly existing and in good standing under the laws of the State of organization; and (ii) has the power and authority to enter into this Agreement and SOW(s).
9.2 Infosec warrants that Services will be performed in a good and workmanlike manner in accordance with applicable industry standards and practices.
9.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, INFOSEC MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. THE SERVICES ARE PROVIDED BY INFOSEC ON AN “AS-IS” BASIS. INFOSEC DOES NOT REPRESENT, WARRANT, AND/OR COVENANT THAT THE SERVICES (INCLUDING, BUT NOT LIMITED TO, ANY REPORTS, ADVICE AND RECOMMENDATIONS, IN ANY FORM) PROVIDED BY INFOSEC IN CONNECTION WITH THIS AGREEMENT, ARE OR WILL NECESSARILY ALWAYS BE COMPLETELY ACCURATE, CURRENT, COMPLETE AND/OR CONTINUOUSLY AVAILABLE. INFOSEC IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES AND/OR OTHER LOSS AND/OR DAMAGE RESULTING FROM (A) TRANSFER OF DATA OVER COMMUNICATION NETWORKS SUCH AS THE INTERNET AND/OR (B) INABILITY TO ACCESS AND/OR GET ACCURATE DATA FROM THIRD-PARTY SYSTEMS AND/OR APPLICATIONS THAT THE SERVICES ARE DEPENDENT ON.
9.4 Exclusive Remedy. Client’s sole and exclusive remedy and Infosec’s sole and exclusive liability for any breach of the warranty set forth in Section 9.2 shall be for Infosec to re-perform the Services at no cost to Client. This sole and exclusive remedy is available only if Infosec is promptly notified in writing within thirty (30) days after the performance of such Services that do not conform to the warranty of Section 9.2. For avoidance of doubt, this Section shall not be deemed to limit either party’s rights or remedies under any other Section of this Agreement.
EACH PARTY’S TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF AND/OR IN CONNECTION WITH THIS AGREEMENT AND/OR ANY SOW SHALL IN NO EVENT EXCEED THE FEES PAID BY CLIENT TO INFOSEC UNDER THE APPLICABLE SOW THAT GAVE RISE TO SUCH CLAIM. IN NO EVENT WILL CLIENT OR INFOSEC BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL AND/OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS) EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, NO LIMITATION AND/OR EXCLUSION OF EITHER PARTY’S LIABILITY WILL APPLY WITH RESPECT TO ANY CLAIMS ARISING OUT OF AND/OR RELATING TO ARTICLE 8 AND ARTICLE 11 OF THIS AGREEMENT, AND/OR ITS WILLFUL MISCONDUCT OR GROSS NEGLIGENCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT AND/OR ANY SOW, THE EXCLUSIONS AND LIMITS STATED IN THIS AGREEMENT DO NOT APPLY TO ANY OF CLIENT’S OBLIGATIONS TO PAY FEES AND COSTS TO INFOSEC HEREUNDER.
11.1 Client Indemnification. Client shall indemnify, defend and hold Infosec and its members, trustees, employees, agents, officers and officials harmless from and against any liabilities, losses, costs, damages, demands and expenses, including reasonable attorney fees, (“Claim”) arising out of, and/or relating to (i) Client’s and/or its Representatives acts and/or omissions; (ii) Infosec’s use of the Client Content constitutes infringement, violation, trespass, contravention or breach in the United States of any patent, copyright, trademark, license or other property or proprietary right of any third party, or constitutes the unauthorized use or misappropriation of any trade secret of any third party; (iii) Client’s and/or its Representatives breach of the terms of this Agreement and/or SOW; and/or (iv) Client’s failure to use the Services in accordance with the terms and conditions set forth herein and in the applicable SOW.
11.2 Infosec Indemnification. Infosec will indemnify, defend and hold harmless the Client and its members, trustees, employees, agents, officers and officials against any Claim that Client’s use of Infosec’s Services constitutes an infringement, violation, trespass, contravention or breach in the United States of any patent, copyright, trademark, license or other property or proprietary right of any third party, or constitutes the unauthorized use or misappropriation of any trade secret of any third party. Client acknowledges and agrees that it shall use commercially reasonable efforts to mitigate the costs and expenses related to such claim. The indemnity in this Section 11.2 shall not apply (i) to a Claim arising from any modification of the Services of Infosec by the Client or any third party, or from the use of the Services in combination with any other items not provided by Infosec, to the extent such modification or use in combination resulted in the Claim unless such modification or use in combination is with Infosec’s express written consent and/or (ii) if such Claim results from any breach of the Client’s obligations under this Agreement, or the use of the Services other than in connection with this Agreement, or in a manner not reasonably contemplated by this Agreement. In the event of a Claim pursuant to this Section 11.2, Infosec shall be entitled at its own expense and option to either (a) procure the right for the Client to continue utilizing the Services which are at issue; (b) modify the Services to render the same non-infringing; or (c) replace the Services with an equally suitable, functionally equivalent, compatible, non-infringing Service. This Section 11.2 sets forth the Client’s sole and exclusive remedy from the Client for any claim, demand, proceeding and/or action by a third party in relation to a Claim.
11.3 The indemnities set forth herein shall only be given on the condition that (i) the indemnified party gives notice to the indemnifying party of any Claim immediately upon becoming aware of the same; (ii) the indemnified party gives the indemnifying party the sole right to conduct the defense of any claim or action, or the negotiation of any settlement, in respect of a Claim and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express written instructions of the indemnifying party; and (iii) the indemnified party acts in accordance with the reasonable instructions of the indemnifying party and gives the indemnifying party such assistance as it shall reasonably require in respect of the conduct of the said defense including without prejudice to the generality of the foregoing the filing of all pleadings and other court processes and the provision of all relevant documents. The indemnified party acknowledges and agrees that it shall use commercially reasonable efforts to mitigate the costs and expenses related to such claim. The indemnified party may reasonably participate in such defense, at its sole expense.
Notwithstanding any other provision of this Agreement, neither party is liable for any failure to perform, or delay in performing, any particular obligations under this Agreement where the failure or delay arises from any cause or causes beyond its reasonable control, including without limitation fire, flood, earthquake, elements of nature, acts of God, acts of war, terrorism, riots, civil disorders or rebellions (“Force Majeure Event”). In the event of a Force Majeure Event, the parties agree to meet and discuss how to resolve the issue. Either party may terminate this Agreement by giving the other party written notice if the other party fails to perform those obligations for two (2) months due to such Force Majeure Event. This Section does not apply to Article 8, or any obligation to pay money, or any obligation that is unaffected by the Force Majeure Event.
The parties acknowledge that Article 7 and 8 are essential for the protection of the parties and that any breach or threatened breach of such sections may cause immediate and irreparable damage to the non-breaching party, for which monetary relief would be inadequate or impossible to ascertain. Accordingly, the parties agree that upon the existence of any breach or threatened breach thereof, the non-breaching party shall be entitled to seek injunctive relief restraining the breaching party from committing such breach or threatened breach. In addition, the non-breaching party shall be entitled to any other remedies that may be available to it, at law or in equity.
This Agreement will be governed by, and construed in accordance with, the internal laws of the State of Illinois, without regard to its choice of laws principles. Any action related to and/or arising from this Agreement shall take place exclusively in DuPage County, Illinois and the parties hereby submit to such venue.
Neither party may assign this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign its rights or obligations under this Agreement upon written notice to the other party in the event of a Change of Control. “Change of Control” means the direct or indirect change in the ownership, operation or control of a party, whether resulting from merger, acquisition (including an acquisition of substantially all of the assets of a party), consolidation or otherwise. This Agreement will be binding upon the parties and their respective legal successors and permitted assigns.
All notices and other communications given or made pursuant to this Agreement must be in writing, sent to the persons designated herein or to such other persons and addresses as the parties may designate from time to time and will be deemed to have been given upon the earlier of actual receipt or (a) personal delivery to the party to be notified, (b) when sent, if sent by facsimile or electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient's next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt.
The failure of either party to enforce its rights under this Agreement and/or SOW at any time for any period shall not be construed as a waiver of such rights. No changes or modifications or waivers to this Agreement and/or SOW will be effective unless in writing and signed by both parties. If any provision of this Agreement and/or SOW shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement and/or SOW shall otherwise remain in full force and effect and enforceable. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorney’s fees. Headings herein are for convenience of reference only and shall in no way affect interpretation of the Agreement. The exchange of a fully executed Agreement by fax, electronic or computer image shall be sufficient to bind the parties to the terms and conditions of this Agreement and signatures affixed hereto shall be considered for all purposes as originals. The recitals are hereby incorporated into the body of this Agreement for all intents and purposes as if fully set forth herein. Any provision of this Agreement which, by its nature, would survive termination of this Agreement will survive any such termination of this Agreement. The parties acknowledge and agree that they have mutually negotiated the terms and conditions of this Agreement and that any provision contained herein with respect to which an issue of interpretation or construction arises shall not be construed to the detriment of the drafter on the basis that such party or its professional advisor was the drafter, but shall be construed according to the intent of the parties as evidenced by the entire Agreement. This Agreement, including all SOWs, exhibits and referenced documents constitutes the complete agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings between the parties.
AGREED AND ACCEPTED:
For: Infosec Chicago
By: Brian Semrau
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Signed by Brian Semrau
Signed On: March 17, 2020
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Document Name: Infosec Chicago Master Services Agreement
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