Master Services Agreement

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Master Services Agreement

1. DEFINITIONS

1.1 Customer Data means any of Customer’s data gathered

through the provision of the Services or contained in any

Deliverable.

1.2 Deliverables means the draft or final reports that are created

for Customer as a result of the Services provided hereunder,

unless otherwise defined in the individual SOW.

1.3 Services means the consulting, testing, managed, or other

services described in an SOW that COPPERHEAD DEFENSE

TECHNOLOGIES LLC provides pursuant to Section 2.1 hereof.

Services may be Managed Services or Professional Services:

(i) Managed Services means Services where COPPERHEAD

DEFENSE TECHNOLOGIES LLC manages an aspect of

Customer’s business for the term and scope indicated in an SOW.

Managed Services may include COPPERHEAD DEFENSE

TECHNOLOGIES LLC operating or subscribing to software on

Customer’s behalf.

(ii) Professional Services means Services where Customer

engages COPPERHEAD DEFENSE TECHNOLOGIES LLC to

perform specific, identified tasks, either at specific dates and

times, or retained for a period of time in order to perform them as

needed.

1.4 SOW means: (i) mutually agreed upon statement of work, or

scope of work, scope of service, or service brief that sets forth

and describes the Services to be provided hereunder, the

applicable fees to be paid, and as applicable, any deliveryschedules, timelines, specifications, and any other terms agreed

upon by the parties; or (ii) COPPERHEAD DEFENSE

TECHNOLOGIES LLC ordering document which identifies the

Services ordered and references this Agreement; in each case as

signed or referenced by Customer or its authorized reseller.

2. SERVICES

2.1 Services. Customer may order Services from COPPERHEAD

DEFENSE TECHNOLOGIES LLC through an SOW.

COPPERHEAD DEFENSE TECHNOLOGIES LLC shall provide

Customer the Services as specified in such SOW. All changes to

an SOW must be approved by both parties in writing.

COPPERHEAD DEFENSE TECHNOLOGIES LLC will not invoice

Customer for any Services beyond those contained in the SOW

without the prior written consent of Customer.

2.2 Deliverables. Customer retains all right, title, and interest in

and to Customer Data and Customer Confidential Information. In

addition, Customer shall own all right, title and interest to the

Results obtained by Customer through Customer’s use of the

Services. For purposes of this Agreement, “Results” shall mean

the data based on Customer Data resulting from Customer’s use

of the Service, but does not include any dashboards for displaying

results, report templates or other components of the Service used

by COPPERHEAD DEFENSE TECHNOLOGIES LLC.

COPPERHEAD DEFENSE TECHNOLOGIES LLC owns all right,

title, and interest in and to COPPERHEAD DEFENSE

TECHNOLOGIES LLC’s trade secrets, its Confidential

Information, or other proprietary rights in any material used by

COPPERHEAD DEFENSE TECHNOLOGIES LLC or presented

to Customer, whether such was developed prior to the Services,

independent of this Agreement, or in performance of the Services(each, “COPPERHEAD DEFENSE TECHNOLOGIES LLC IP”),

including but not limited to, documentation, software, designs,

inventions, discoveries, specifications, improvements, tools,

models, know-how, methodologies, analysis frameworks, and

report formats. Customer will have a perpetual, royalty-free,

worldwide, non-exclusive, non-transferable license to use any

COPPERHEAD DEFENSE TECHNOLOGIES LLC IP

incorporated into any Deliverable, for Customer’s internal

business purposes only, upon Customer's payment in full of all

undisputed amounts due hereunder. COPPERHEAD DEFENSE

TECHNOLOGIES LLC may incorporate the COPPERHEAD

DEFENSE TECHNOLOGIES LLC IP in future releases of any of

its products or services, provided Customer Data or Customer

Confidential Information is not included in any COPPERHEAD

DEFENSE TECHNOLOGIES LLC IP.

2.3 COPPERHEAD DEFENSE TECHNOLOGIES LLC Personnel.

COPPERHEAD DEFENSE TECHNOLOGIES LLC shall have sole

discretion in staffing the Services and may assign the

performance of any portion of the Services to any subcontractor,

except that Customer may request the use of COPPERHEAD

DEFENSE TECHNOLOGIES LLC personnel in any SOW or at

the time Customer schedules the Services. In the event that

COPPERHEAD DEFENSE TECHNOLOGIES LLC subcontracts

any portion of the Services, COPPERHEAD DEFENSE

TECHNOLOGIES LLC shall be fully responsible for the acts and

omissions of any such subcontractor and shall not be relieved of

its obligations under this Agreement.

2.4 Customer Systems. Customer represents and warrants that it

has authorization from the owner for COPPERHEAD DEFENSE

TECHNOLOGIES LLC to perform the Services on the networks,

systems, IP addresses, assets, and/or hardware as instructed byCustomer.

2.5 Managed Services. To the extent Managed Services include

any COPPERHEAD DEFENSE TECHNOLOGIES LLC software,

Customer is granted a license to such software subject to the

applicable license terms. Such license will be for the term of the

Managed Services only.

2.6 Professional Services. To the extent Customer purchases

Professional Services, Customer may reschedule the Services up

to ten business days prior to the start of the Services at no cost. If

Customer reschedules the Services with less than ten business

days’ notice, Customer will forfeit the portion of the Services equal

to the number of days that were rescheduled without the required

notice. If Customer reschedules the Services after they have

begun, Customer will forfeit five days of Services, or the number

of days remaining on the Services, whichever is fewer. Customer

will also be responsible for any out-of-pocket expenses incurred

by COPPERHEAD DEFENSE TECHNOLOGIES LLC due to such

rescheduling. If performance of the Professional Services is

delayed by Customer’s acts or omissions, including Customer’s

failure to meet the requirements set forth in an SOW, Customer

will forfeit the duration of such delay from its Professional

Services time. Customer will have twelve months from the date of

order to use or schedule any Professional Services, after which

time any remaining, unscheduled Professional Services time will

be forfeited.

3. FEES; PAYMENT TERMS

3.1 If Customer purchases the Services through a

COPPERHEAD DEFENSE TECHNOLOGIES LLC authorized

reseller, then the fees and payment terms shall be as set forthbetween Customer and reseller and section 3.2 shall not apply.

3.2 Customer agrees to pay the fees, charges and other amounts

in accordance with the applicable SOW. COPPERHEAD

DEFENSE TECHNOLOGIES LLC will invoice Customer upon

execution of an SOW, unless otherwise agreed by the parties. All

fees are non-refundable, unless otherwise stated herein. In the

event an SOW requires travel by COPPERHEAD DEFENSE

TECHNOLOGIES LLC to a Customer designated site, Customer

shall also reimburse COPPERHEAD DEFENSE

TECHNOLOGIES LLC for all reasonable out-of-pocket expenses

incurred by COPPERHEAD DEFENSE TECHNOLOGIES LLC in

connection with delivery of the Services. Customer shall be

responsible for remitting all taxes levied on any transaction under

this Agreement, including, without limitation, all federal, state, and

local sales taxes, levies and assessments, and local withholding

taxes in Customer’s jurisdiction, if any, excluding, however, any

taxes based on COPPERHEAD DEFENSE TECHNOLOGIES

LLC's income. In the event Customer is required to withhold taxes

from its payment or withholding taxes are subsequently required

to be paid to a local taxing jurisdiction, Customer is obligated to

pay such tax, and COPPERHEAD DEFENSE TECHNOLOGIES

LLC, as applicable, will receive the SOW payment amount as

agreed to net of any such taxes. Customer shall provide to

COPPERHEAD DEFENSE TECHNOLOGIES LLC written

evidence that such withholding tax payment was made.

4. CONFIDENTIALITY

4.1 Confidential Information. “Confidential Information” means

information provided by one party to the other party which is

designated in writing as confidential or proprietary, as well as

information which a reasonable person familiar with the disclosingparty’s business and the industry in which it operates would know

is of a confidential or proprietary nature. A party will not disclose

the other party’s Confidential Information to any third party without

the prior written consent of the other party, nor make use of any of

the other party’s Confidential Information except in its

performance under this Agreement. Each party accepts

responsibility for the actions of its agents or employees and shall

protect the other party’s Confidential Information in the same

manner as it protects its own Confidential Information, but in no

event with less than reasonable care. The parties expressly agree

that the terms and pricing of this Agreement are Confidential

Information. A receiving party shall promptly notify the disclosing

party upon becoming aware of a breach or threatened breach

hereunder and shall cooperate with any reasonable request of the

disclosing party in enforcing its rights.

4.2 Exclusions. Information will not be deemed Confidential

Information if such information: (i) is known prior to receipt from

the disclosing party, without any obligation of confidentiality; (ii)

becomes known to the receiving party directly or indirectly from a

source other than one having an obligation of confidentiality to the

disclosing party; (iii) becomes publicly known or otherwise publicly

available, except through a breach of this Agreement; or (iv) is

independently developed by the receiving party without use of the

disclosing party’s Confidential Information. The receiving party

may disclose Confidential Information pursuant to the

requirements of applicable law, legal process or government

regulation, provided that, unless prohibited from doing so by law

enforcement or court order, the receiving party gives the

disclosing party reasonable prior written notice, and such

disclosure is otherwise limited to the required disclosure.5. DATA PRIVACY

5.1 Customer Data. To the extent that COPPERHEAD DEFENSE

TECHNOLOGIES LLC processes personal data about any

individual in the course of providing the Service, Customer agrees

to COPPERHEAD DEFENSE TECHNOLOGIES LLC’s Data

Processing Agreement, located at https://www.COPPERHEAD

DEFENSE TECHNOLOGIES LLC.com/legal/dpa/.

COPPERHEAD DEFENSE TECHNOLOGIES LLC may use

Customer Data solely as necessary to: (i) provide the Services to

Customer; (ii) in anonymized and aggregated form that does not

or cannot be used to identify Customer or any Customer Data,

generate statistics and produce reports; and (iii) collect data and

analytics about use of the Services in order to continue to improve

the development and delivery of the Services.

5.2 Data Privacy. Customer represents and warrants that

Customer has obtained all necessary rights to permit

COPPERHEAD DEFENSE TECHNOLOGIES LLC to collect and

process Customer Data from Customer, including, without

limitation, data from endpoints, servers, cloud applications, and

logs.

6. LIMITED WARRANTY

6.1 Warranty and Remedy. COPPERHEAD DEFENSE

TECHNOLOGIES LLC warrants that the Services will be provided

with reasonable skill and care conforming to generally accepted

industry standards, and in conformance in all material respects

with the requirements set forth in the SOW. Customer must report

any deficiency in the Services to COPPERHEAD DEFENSE

TECHNOLOGIES LLC in writing within fifteen business days of

delivery or performance of the portion of the Services containingthe deficiency. For any breach of the above warranty,

COPPERHEAD DEFENSE TECHNOLOGIES LLC will, at its

option and expense, either (a) use commercially reasonable

efforts to provide remedial services necessary to enable the

Services to conform to the warranty, or (b) refund pro-rata

amounts paid for the non-conforming Services. Customer will

provide reasonable assistance in remedying any defects. The

remedies set out in this subsection are Customer’s sole remedies

for breach of the above warranty.

6.2 No Other Warranty. EXCEPT FOR THE WARRANTY

ABOVE, COPPERHEAD DEFENSE TECHNOLOGIES LLC

MAKES NO OTHER WARRANTIES OR REPRESENTATIONS,

EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION,

THOSE OF MERCHANTABILITY, FITNESS FOR A

PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD

PARTY RIGHTS. COPPERHEAD DEFENSE TECHNOLOGIES

LLC MAKES NO WARRANTY THAT ALL SECURITY RISKS,

INCIDENTS, OR THREATS WILL BE DETECTED OR

REMEDIATED BY USE OF THE SERVICES OR THAT FALSE

POSITIVES WILL NOT BE FOUND.

7. LIMITATION OF LIABILITY

7.1 Exclusion of Certain Damages. NEITHER PARTY WILL BE

LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES

OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL,

EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY

KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES

WERE POSSIBLE.

7.2 Limitation on Amount of Liability. NEITHER PARTY WILL BE

LIABLE UNDER THIS AGREEMENT FOR MORE THAN THETOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO

COPPERHEAD DEFENSE TECHNOLOGIES LLC HEREUNDER

DURING THE TWELVE MONTHS IMMEDIATELY PRIOR TO

THE EVENT GIVING RISE TO LIABILITY, EXCEPT THAT THE

LIMITATION IN THIS SECTION 7.2 SHALL NOT APPLY TO: (I)

VIOLATIONS OF A PARTY’S INTELLECTUAL PROPERTY

RIGHTS BY THE OTHER PARTY; OR (II) A PARTY’S

EXPRESS INDEMNIFICATION OBLIGATIONS UNDER THIS

AGREEMENT.

8. TERM

The term of each Services order will be as set forth on the SOW.

Termination of an SOW will not terminate this Agreement. Either

party may terminate this Agreement or any SOW (i) immediately

in the event of a material breach of this Agreement or any such

SOW by the other party that is not cured within thirty days of

written notice thereof from the other party, or (ii) immediately if the

other party ceases doing business, or is the subject of a voluntary

or involuntary bankruptcy, insolvency or similar proceeding that is

not dismissed within sixty days of filing. Either party may also

terminate this Agreement upon no less than thirty days’ prior

written notice to the other party for any reason if at such time

there are no outstanding SOWs currently in effect. All provisions

of this Agreement which by their nature are intended to survive

the termination of this Agreement shall survive such termination.

Unless either party provides the other with written notice of its

election not to renew the term for any Managed Services at least

thirty days prior to such renewal date, the term for any Managed

Services will renew for a term of one year at the rate listed on the

applicable SOW. In connection with any renewal term,

COPPERHEAD DEFENSE TECHNOLOGIES LLC reserves the

right to change the rates, applicable charges, and usage policies

and to introduce new charges for any subsequent term, uponproviding Customer written notice thereof (which may be provided

by e-mail) at least 60 days prior to the end of the then current

term for any Managed Services.

9. INDEMNIFICATION

9.1 By COPPERHEAD DEFENSE TECHNOLOGIES LLC.

COPPERHEAD DEFENSE TECHNOLOGIES LLC will indemnify

Customer from and against all costs, liabilities, losses, and

expenses (including, but not limited to, reasonable attorneys’

fees) (collectively, “Losses”) arising out of a third party claim

alleging that the Services infringe or misappropriate any

intellectual property rights of such third party. Notwithstanding the

foregoing, in no event shall COPPERHEAD DEFENSE

TECHNOLOGIES LLC have any obligations or liability under this

Section arising from: (i) use of any Services in a manner not

anticipated by this Agreement or in combination with materials not

furnished by COPPERHEAD DEFENSE TECHNOLOGIES LLC,

and (ii) any content, information, or data provided by Customer or

other third parties. If the Services are or are likely to become

subject to a claim of infringement or misappropriation, then

COPPERHEAD DEFENSE TECHNOLOGIES LLC will, at its sole

option and expense, either: (i) obtain for the Customer the right to

continue using the Services; (ii) replace or modify the Services to

be non-infringing and substantially equivalent to the infringing

Services; or (iii) if options (i) and (ii) above cannot be

accomplished despite the reasonable efforts of COPPERHEAD

DEFENSE TECHNOLOGIES LLC, then COPPERHEAD

DEFENSE TECHNOLOGIES LLC may terminate Customer’s

rights to use the infringing Services and will refund pro-rata any

prepaid fees for the infringing portion of the Services. THE

RIGHTS GRANTED TO CUSTOMER UNDER THIS SECTION

9.1 SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY

FOR ANY ALLEGED INFRINGEMENT BY THE SERVICES OFANY PATENT, COPYRIGHT, OR OTHER PROPRIETARY

RIGHT.

9.2 By Customer. Customer will indemnify, defend, and hold

harmless COPPERHEAD DEFENSE TECHNOLOGIES LLC from

and against all Losses arising out of a third party claim regarding:

(i) Customer’s violation of any representations and warranties

made in Sections 2.4 and 5.2 of this Agreement; or (ii) Customer’s

violation of applicable law.

10. GENERAL PROVISIONS

10.1 Miscellaneous. (a) This Agreement shall be construed in

accordance with and governed for all purposes by the laws of the

State of Delaware (for customers located in North America), or

England & Wales (for customers located outside of North

America), each excluding its respective choice of law provisions

and each party consents and submits to the jurisdiction and forum

of the state and federal courts in the State of Delaware (for

customers located in North America) or London, England (for

customers located outside of North America) all questions and

controversies arising out of this Agreement and waives all

objections to venue and personal jurisdiction in these forums for

such disputes; (b) this Agreement, along with the accompanying

SOW(s) constitute the entire agreement and understanding of the

parties hereto with respect to the subject matter hereof and

supersedes all prior agreements and undertakings, both written

and oral; (c) this Agreement and each SOW may not be modified

except by a writing signed by each of the parties; (d) in case any

one or more of the provisions contained in this Agreement shall

for any reason be held to be invalid, illegal, or unenforceable in

any respect, such invalidity, illegality, or unenforceability shall not

affect any other provisions of this Agreement but rather thisAgreement shall be construed as if such invalid, illegal, or other

unenforceable provision had never been contained herein; (e)

Customer shall not assign its rights or obligations hereunder

without COPPERHEAD DEFENSE TECHNOLOGIES LLC's

advance written consent; (f) subject to the foregoing subsection

(e), this Agreement shall be binding upon and shall enure to the

benefit of the parties hereto and their successors and permitted

assigns; (g) no waiver of any right or remedy hereunder with

respect to any occurrence or event on one occasion shall be

deemed a waiver of such right or remedy with respect to such

occurrence or event on any other occasion; (h) nothing in this

Agreement, express or implied, is intended to or shall confer upon

any other person any right, benefit or remedy of any nature

whatsoever under or by reason of this Agreement, including but

not limited to any of Customer’s own clients, customers, or

employees; (i) the headings to the sections of this Agreement are

for ease of reference only and shall not affect the interpretation or

construction of this Agreement; (j) terms in an SOW have

precedence over conflicting terms in this Agreement, but have

applicability only to that particular SOW; and (k) this Agreement

may be executed in two or more counterparts, each of which shall

be deemed an original, but all of which together shall constitute

one and the same instrument.

10.2 Injunctive Relief. Notwithstanding any other provision of this

Agreement, both parties acknowledge that any breach of this

Agreement may cause the other party irreparable and immediate

damage for which remedies other than injunctive relief may be

inadequate. Therefore, the parties agree that, in addition to any

other remedy to which a party may be entitled hereunder, at law

or equity, each party shall be entitled to seek an injunction to

restrain such use in addition to other appropriate remedies

available under applicable law.10.3 Relationship of the Parties. COPPERHEAD DEFENSE

TECHNOLOGIES LLC and Customer are independent

contractors, and nothing in this Agreement shall be construed as

making them partners or creating the relationships of principal

and agent between them, for any purpose whatsoever. Neither

party shall make any contracts, warranties, or representations or

assume or create any obligations, express or implied, in the other

party’s name or on its behalf.

10.4 Force Majeure. Other than payment obligations hereunder,

neither party will be liable for any inadequate performance to the

extent caused by a condition that was beyond the party's

reasonable control (including, but not limited to, natural disaster,

act of war or terrorism, riot, global health crisis, acts of God, or

government intervention), except for mere economic hardship, so

long as the party continues to use commercially reasonable

efforts to resume performance.

10.5 No Reliance. Customer represents that it has not relied on

the availability of any future feature or version of the Services or

any future product or service in executing this Agreement or

purchasing any Services hereunder.

10.6 Notices. Unless specified otherwise herein, (i) all notices

must be in writing and addressed to the attention of the other

party's legal department and primary point of contact and (ii)

notice will be deemed given: (a) when verified by written receipt if

sent by personal courier, overnight courier, or when received if

sent by mail without verification of receipt; or (b) when verified by

automated receipt or electronic logs if sent by email. When sent

by email, notices to COPPERHEAD DEFENSE TECHNOLOGIES

LLC 10.7 Publicity. Customer acknowledges that COPPERHEAD

DEFENSE TECHNOLOGIES LLC may use Customer’s name and

logo for the purpose of identifying Customer as a customer of

COPPERHEAD DEFENSE TECHNOLOGIES LLC products and/

or services. COPPERHEAD DEFENSE TECHNOLOGIES LLC

will cease using Customer’s name and logo upon written request.

10.8 Compliance with Law. Each party agrees to comply with all

applicable federal, state, and local laws and regulations including

but not limited to export law, and those governing the use of

network scanners, vulnerability assessment software products,

encryption devices, user monitoring, and related software in all

jurisdictions in which systems are scanned, scanning is

controlled, or users are monitored.