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BlueVoyant Managed Security Services Master Services Agreement

1.              Interpretation 

Whenever the words below appear in this Master Services Agreement, they shall have the following meanings:

1.1.   “Agreement” means the Order Form, referencing this Master Services Agreement, and applicable Statements of Work.

1.2.   “BV” “our” “we” or “us” means Blueteam LLC, d/b/a BlueVoyant, any of its group companies, and in all cases any successor or assignee.

1.3.   “BV External Service Provider’’ or, in the plural “BV External Service Providers” means any agent, consultant, expert, sub-contractor or other service provider of any kind who is engaged by BV for the purposes of the provision of Services and is not a BV Person.

1.4.   “BV Person” or, in the plural, “BV Persons”, means any existing or future officer or employee of BV.

1.5.   “Client” or “you” means the party to which BV provides services pursuant to the Agreement.

1.6.   “Client Information” means any information, data, documentation or other materials in your possession, custody or under your control which we expressly state to be required by us or which can be reasonably considered to be required by us or be relevant to our performance of the Services.

1.7.   “Indemnified Party” or, in the plural, “Indemnified Parties” means BV, any BV Person or any BV External Service Provider.

1.8.   “Intellectual Property Rights” means patents, trademarks, design rights, (whether registrable or otherwise), applications for any of these, copyrights, database rights, trade or business names and any other similar rights or obligations whether registrable or not in any country.

1.9.   “Order Form” means a signed BlueVoyant order form referencing this Master Services Agreement and applicable Statement(s) of Work.

1.10.  “Statement(s) of Work” means the statement(s) of work referenced in an Order Form.

1.11.   “Services” shall mean the services provided or to be provided by BV pursuant to this Master Services Agreement and the Statement(s) of Work.

2.              Our Services

2.1.   We will carry out the Services as set out in the accompanying Statement(s) of Work in accordance with the Agreement.

2.2.   We shall use reasonable care and skill in the provision of the Services.

2.3.   We shall not be responsible for any failure to advise or comment on any matter which falls outside the scope of the Services and will have no responsibility to you to update any advice, report or other documentary material we produce as part of the Services to take account of events or changes of circumstances which take place after the advice, report or other documentary material is provided to you.

2.4.   Any statement of opinion, expectation or forecast made by us does not amount to a warranty, determination or prediction of future events. The Services specifically do not include legal advice.

2.5.   We reserve the right to decide the methodologies to be employed and which BV Persons are to be used for the provision of the Services. We may in our discretion sub-contract some of the Services to BV External Service Providers but, in the event we do so, we will have entered written agreements with them covering anti-corruption, confidentiality and data protections issues.

3.              Client Assistance

3.1.   You will promptly provide us with assistance as and when requested as well as access to the Client Information.

3.2.   You will promptly provide us with access to personnel under your control whom we expressly state to be required by us or whom can be reasonably considered to be required to enable us to perform the Services.

3.3.   You warrant that the Client Information provided is complete and accurate and acknowledge that we may rely upon it.

3.4.   You agree to keep us fully informed of any matters of which you become aware which might relate to or have a material bearing on the provision of the Services.

3.5.   You confirm, represent and warrant to us that you or any person using or otherwise making disclosure of Client Information on your behalf has the right to supply all the Client Information that you or they supply to us for the purposes of fulfilling your responsibilities pursuant to the Agreement and that our receipt and use of such Client Information for the Services will not infringe any rights (including any intellectual property rights) held by any third-party or any law or regulatory obligation.

3.6.   The warranties in this clause 3 shall survive the termination or expiration of the Agreement.

4.              Intellectual Property Rights

4.1.   The Intellectual Property Rights in all materials provided, or otherwise generated during the course of providing Services (including but not limited to methodology, software, know-how, working papers, reports, emails, letters and meeting notes), shall remain the property of BV.

4.2.   You agree to keep confidential any know-how, methodologies or technology used by us to provide the Services.

4.3.   We will retain ownership of the copyright in the work produced pursuant to the Agreement or in connection with the Services, whether oral or tangible, and the ownership of our working papers and all other associated materials.

4.4.   This clause 4 shall survive the termination or expiration of the Agreement. 

5.              Confidentiality

5.1. We will keep confidential all Client Information you inform us is considered confidential and proprietary as well as reports and other material produced by us in the course of providing Services that incorporate such Client Information unless:

5.1.1.   you instruct or authorize us to disclose such information or documents; or

5.1.2.   we are obliged to disclose such information or documents by law or in order to comply with any requirement of a regulatory body or any other governmental agency, authority or other body or court of competent jurisdiction, in which case we will comply with clause 6.1 below.

5.2.   You agree to keep confidential all information relating to our business and affairs (including the terms of the Agreement) that we provide to you in connection with the provision of Services or otherwise and not to reproduce or distribute any report, letter, document or other material produced by us pursuant to or in connection with the provision of Services and provided to you (in whatever form) unless:

5.2.1.   we authorize you in writing to disclose such information; or

5.2.2.   you are obliged to disclose such information by law or in order to comply with any requirement of a regulatory body or any other governmental agency, authority or other body or court of competent jurisdiction, in which case you will comply with clause 6.2 below.

 5.3.   This clause 5 shall survive the termination or expiration of the Agreement

6.              Technical Data

6.1    In connection with providing the Services, BV collects and uses information about Client binaries, devices, files, systems, software, and endpoints.  BV may also collect cyber threat data to assist in the assessment of the cybersecurity posture of Client. This information is collectively referred to as “Technical Data”.

6.2.  You agree to BV’s collection, use, distribution, transfer, back-up and storage of the Technical Data, and you grant BV a non-exclusive right and license to (a) access, copy, store, process, distribute , transmit, display and otherwise use Technical Data to provide you Services, and (b) use and distribute Technical Data (but only in aggregated and non-attributable form) to improve the operation and functionality of the Services, and for threat detection, threat intelligence, and related analysis.

7.              Requests for Information and Disclosure

7.1.   If we and/or any BV Person and/or any BV External Service Provider receive a request or a witness summons, subpoena or similar compulsory process or other request from a third-party, including a regulatory body or any other governmental agency, authority or other body or court of competent jurisdiction for disclosure of any information or materials relating to the Services (including Client Information), we will notify you as soon as practicably possible after we become aware of the same, unless we are prevented by law from so doing, and afford you an opportunity to contest such third-party actions.

7.2.   If you receive a request or a witness summons, subpoena or similar compulsory process or other request from a third-party, including a regulatory body or any other governmental agency, authority or other body or court of competent jurisdiction for disclosure of any information or materials relating to the Services, you will promptly notify us unless you are prevented by law from so doing and afford us an opportunity to contest such third-party actions.

7.3.   You agree that nothing herein shall prevent or prohibit us or any BV Person or any BV External Service Provider from complying with any order of a body or court of competent jurisdiction, or a government or other official acting within his actual or apparent authority, for the production of documents or the provision of information.

7.4.   If we or any BV Person or and BV External Service Provider take any legal advice in response to such a request or seek protection against disclosure you agree to indemnify us and/or BV Person or External Service Provider in accordance with clause 8 below.

7.5.   This clause 6 shall survive the termination or expiration of the Agreement.

8.              Exemption and limitation of Liability

8.1.   You agree that any conditions, warranties and other terms implied by statute or common law, which would or might subsist in your favor, are excluded from the Agreement to the fullest extent permitted by law.

8.2.   No BV Person shall owe you any personal duty of care or have any personal liability to you in connection with the Services in any circumstances whatsoever.

8.3.   You agree to not bring any claim personally against any BV Person.

8.4.   Neither we, nor any BV External Service Provider, shall be responsible for any delay in the performance of the Services where such delay is beyond our control.

8.5.   Neither we, nor any BV External Service Provider, shall be liable to you for any loss or damage suffered by you of any kind whatsoever arising from or in connection with the acts or omissions of any third-party, including but not limited to circumstances in which we have relied on information provided or published by third parties for the purposes of the provision the Services and such information is subsequently discovered by us to be inaccurate.

8.6.   Nothing in the Agreement limits or excludes our liability, or that of any BV External Service Provider, for death or personal injury caused by our gross negligence or willful misconduct; or fraud.

8.7.   Save as provided in clause 7.6, neither we, nor any BV External Service Provider, shall be liable to you for any direct or indirect losses suffered by you howsoever arising, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, including, without limitation:

8.7.1.   loss of investment;

8.7.2.   loss of expenditure;

8.7.3.   loss of profits;

8.7.4.   loss of revenue, sales or business;

8.7.5.   loss of agreements or contracts;

8.7.6.   loss of anticipated savings;

8.7.7.   loss of or damage to goodwill;

8.7.8.   loss of use or corruption of software, data or information;

8.7.9.   increased costs or expenses; and

8.7.10.  any special, indirect or consequential loss of any type including but not limited to any loss arising out of any liability you may have to any other person, even if such loss was reasonably foreseeable or we had been advised of the possibility of you incurring it.

8.8.   Our maximum aggregate liability, or the maximum aggregate liability of any BV External Service Provider, to you. whether in contract, tort (including negligence or misrepresentation,) breach of statutory duty, for restitution or otherwise, for loss or damage howsoever caused arising out of or in connection with the Agreement and/or the Services (including but not limited to our failure to perform the Services or any part of them) shall be limited to an amount equal to one time the amount of fees (exclusive of taxes) paid by you to us pursuant to the Agreement.

8.9.   You agree that no claim under or in connection with the Agreement and/or the Services shall be brought against us, any BV Person or BV External Service Provider after the expiration of two (2) years from the date on which your cause of actions accrues.

8.10.  The provisions of this clause 7 shall survive any termination or expiration of the Agreement.

9.              Indemnity and Third-Party Claims

9.1.          You agree to indemnify and hold harmless any Indemnified Party against any losses, liabilities, actions, proceedings, claims or demands whatsoever which it or any of them may incur or be subject to in connection with the Agreement and/or the performance of the Services including but not limited to where the said losses, liabilities, actions, proceedings, claims or demands relate to (whether directly or indirectly}:

9.1.1.   the investigation of, preparation for or defense of, any pending or threatened litigation or claim by any third-party (including but not limited to any of your directors, officers, employees, agents or subcontractors) relating to the Services, including any work product we generate as part of the Services, or any other matter incidental thereto;

9.1.2.   consideration of, and response to (including without limitation, compliance with or resistance of) any witness summons, subpoena, request for information or other legal or regulatory action, process or investigation relating to you or the Services;

9.1.3.   the unauthorized use or disclosure of any documents or information connected with the Services; and

9.1.4.   any loss any Indemnified Party may suffer as a result of the breach of the warranty in clause 3.5 by you or any person using or making disclosure of Client Information on your behalf.

9.2.   This indemnity shall expressly inure to the benefit of any and all Indemnified Parties. The termination or expiration of the Agreement shall not affect the rights and obligations of the parties arising under this clause 8 prior to such termination or expiration.

10.              Fees and Expenses

Details of our fees in respect of the Services together with any expenses, or details of how they will be agreed with you from time to time, are set out in the Order Form.

11.                Payment

11.1.   You agree to pay our fees, expenses and disbursements without any deduction whether by way of set off, counterclaim or otherwise, together with any taxes thereon, if applicable, as set out in the Order Form.

11.2.   BlueVoyant will invoice you upon execution of an Order Form unless otherwise agreed to by the parties.

11.3.   If you fail to make any payment due under the Agreement by the due date for payment, then, you shall pay compound interest on the overdue amount at the rate of 4% per annum. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment.

11.4.   Any disagreement with or inquiries in relation to our invoices should be notified to us in writing within 21 days from the invoice date, after which time our invoices will be deemed to be agreed.

11.5.   We reserve the right to suspend work and to retain all Client Information provided to us until all sums due to us are paid.

12.           Reliance and Third-Party Rights

12.1.   All information, reports, letters or other documents issued or supplied by us are provided solely for the use and benefit of you and only for the purpose of the Services for which they were obtained or prepared. They must not be used or relied on for any other purpose or disclosed by you, in whole or in part, to any other person without our prior written consent, to which we may attach conditions. No responsibility is accepted for any reliance placed on them, other than for the purpose for which they were prepared.

12.2.   Neither our advice nor any of the Services are intended, either expressly or by implication, to confer any benefit on any third-party and the liability of BV and any BV External Service Provider to any third-party is expressly disclaimed.

12.3.   Except to the extent expressly stated in the Agreement, a person who is not a party to the Agreement shall not have any rights to enforce any term of the Agreement.

13.           Termination

13.1.   We may suspend the provision of Services where we consider that we have reasonable grounds to do so including but not limited to, failure by you to settle invoices in full on the due date, criminal conduct on your part, or persistent failure by you to provide documents, information, assistance or instructions requested.

13.2.   Where Services that are expressly stated in a Statement of Work to be of a specified duration are terminated by you before the end of the specified initial period, we will be entitled to full payment of our fees, including expenses, disbursements and taxes, to the date of termination together with all costs, penalties and other expenses incurred by us arising out of or in connection with such early termination, unless the reason for termination is breach by us of any fundamental term of the Agreement.

13.3.   Expiration or termination of the Agreement, howsoever caused, shall be without prejudice to the rights, duties and liabilities of either party accrued prior to termination.

13.4.   Any clauses of the Agreement which expressly or by implication survive termination or expiration shall continue in full force and effect.

14.           Waiver

No failure or delay by us to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

15.           Assignment

Save as expressly set out in the Agreement, neither party may assign the benefit or delegate the burden of the Agreement without the prior written consent of the other party save that BV reserves the right to engage, where it considers it to be necessary, BV External Service Providers to assist with the performance of the Services. Neither party may hold the Agreement on trust for any other person.

16.           Full and Entire Agreement

16.1.   The Agreement and any agreed written variations thereto, contains all the terms and conditions which we have agreed with you in relation to the Services and supersedes all prior representations, agreements (including any tender documentation or information) negotiations or understandings, whether oral or in writing.

16.2.   In the event of any conflict between the Statement of Work and/or the Order Form and this Master Services Agreement, this Master Services Agreement will prevail.

16.3.   You agree and accept that no statement, promise or representation not repeated in the Agreement has induced or encouraged you to retain us.

17.           Severability

If any part of the Agreement, including this Master Services Agreement, is found by any court or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision shall, to the extent required, be severed and shall be ineffective but without affecting any other provision of the Agreement which shall remain in full force and effect.

18.           Settlement and Mediation

18.1.   If any dispute arises in connection with the Agreement, directors and/or other senior representatives of the parties with authority to settle the dispute will, within 30 days of a written request from one party to the other, meet in a good faith attempt to resolve the dispute.

18.2.    If the dispute is not resolved at that meeting or the meeting does not take place within the prescribed time, the parties will attempt to settle the dispute by mediation and shall seek to agree to a mediator and timetable for mediation within 60 days of the written request for a meeting.

18.3.   Provided that the right to initiate proceedings is not prejudiced by a delay, no party may commence any court proceedings until either the mediation has terminated or the parties have failed to agree to a mediator and timetable within the prescribed time.

19.           Governing Law and Jurisdiction

The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with New York law.

[END OF BLUEVOYANT MANAGED SECURITY SERVICES MASTER AGREEMENT]

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