Master Services Agreement

BY ACCEPTING THIS MASTER SERVICES AGREEMENT, EITHER BY: (1) CLICKING A BOX INDICATING ACCEPTANCE; OR (2) EXECUTING A STATEMENT OF WORK THAT REFERENCES THIS MASTER SERVICES AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS MASTER SERVICES AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS MASTER SERVICES AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS AND CONDITIONS IN THIS MASTER SERVICES AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS MASTER SERVICES AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS MASTER SERVICES AGREEMENT, SUCH INDIVIDUAL MUST NOT ACCEPT THIS MASTER SERVICES AGREEMENT.

1.     General. This Master Services Agreement describes the terms and conditions on which Company will provide services to Customer.

2.     Definitions.

2.1.       Affiliate(s): means all entities that (directly or indirectly) control, are controlled by, or are under common control with a party to this Agreement, where “control” means ownership of or the right to control greater than 50% of the voting interests of such entity. Customer’s Affiliates are only those entities that exist on the effective date of the first Statement of Work under this Agreement.

2.2.       Agreement: means this Master Services Agreement, together with the Statement(s) of Work.

2.3.       Company: means the legal entity that enters into a Statement of Work with Customer.  In all cases where the Services are SOC services, Company means Risk3sixty Compliance, LLC.

2.4.       Customer: means the person or legal entity that enters into a Statement(s) of Work.

2.5.       Customer Materials: means records, documents and other information provided by Customer to Company in order for Company to provide the Services and Deliverables. 

2.6.       Deliverables: means the final report(s) issued by Company upon completion of the Services.

2.7.       Services: means the labor and assistance performed by Company for Customer that are described in a Statement of Work.

2.8.       Statement of Work: means the statement of work, or other ordering document that its entered into between Company and Customer that references this Agreement and describes the Services.

3.     Services.  Company agrees to use diligent efforts to render the Services and provide the Deliverables described in a Statement of Work. The parties may execute additional Statements of Work, each of which will become part of this Agreement upon execution.

4.     Changes to Scope of Services. If Customer desires to change a Statement of Work, Customer will submit a written request to Company detailing the proposed changes. If Company has the resources available to accommodate such changes, Company shall prepare an amendment to the Statement of Work detailing the changes, any fee adjustments required as a result of such changes, any adjustments to the delivery schedule required as a result of such changes, and any other necessary adjustments. If the Statement of Work amendment is agreeable to Customer, both parties will execute the amendment.  If Customer and Company are not able to agree to an adjustment to the Statement of Work, it will remain unchanged.  Unless otherwise agreed in a Statement of Work, Customer may request a change to the date of commencement of Services, by providing Company with written notice, which must be received no less than thirty (30) days prior to the date the Services were set to commence.  Failure to provide such thirty-day notice will incur a delay fee of $5,000 for each week that the Service commencement date is delayed by Customer.

5.     Fees and Payment

5.1.        Fees. Customer will pay all fees set forth in a Statement of Work at the times, and in the amounts set forth therein.  All fees are non-refundable and will be paid in U.S. dollars. 

5.2.        Payment. Customer will pay all invoices within thirty (30) days of the invoice date unless otherwise specified in the applicable Statement of Work.  Customer is responsible for all taxes, withholdings, duties and levies arising from Customer’s use of the Service, (excluding taxes based on the net income of risk3sixty). All payments are non-refundable unless otherwise expressly agreed to in writing by Company. Failure to make payment when due (absent Customer’s good faith dispute) will be considered a material default.

5.3.        Invoice Disputes. If Customer, in good faith, disputes the amounts payable in any invoice, then Customer must notify Company of any dispute over an invoice amount in writing within twenty (20) days of the invoice date or Customer’s right to dispute the invoice will be waived. Any dispute relating to the amounts charged to Customer must be submitted in writing to Company’s finance department at finance@risk3sixty.com, or through such other method identified by Company from time to time.  All disputes must be accompanied by sufficient documentation that supports the basis for Customer’s dispute.  Customer and Company will work in good faith to resolve any dispute within ten (10) business days from the date Company receives notice of the dispute. Company may suspend performance of the Services if Customer fails to make any payment when due.

5.4.        Travel Expenses. Unless otherwise set forth in a Statement of Work, Customer shall reimburse Company for all pre-approved, travel, out of pocket costs, and living expenses incurred by Company personnel while performing Services hereunder, if any.  Such expenses will be billed at cost; Company will provide receipts for all such expenses, and such other details that Customer may reasonably request.  Customer will be billed at standard hourly rates for each hour of travel time for any Company personnel that provide Services that require travel time.

6.     Customer Responsibilities. Customer will provide Company with reasonable access to Customer Materials, resources, personnel, equipment and facilities to the extent such access is necessary for the performance of Services. To the extent that Customer does not timely provide the foregoing access required for Company to perform the Services or deliver the Deliverables, Company shall be excused from performance until such items are provided. Customer will assign a dedicated project manager(s) and point of contact for each Statement of Work that is qualified to oversee the Services.  Customer is solely responsible for all decisions relating to the use of the Deliverables, including, but not limited to, the implementation of any organizational and operational changes described in, or recommend by, the Deliverables.

7.    Subcontracting. In the event that the Services include SOC audit services and “Company” in the Statement of Work is Risk3sixty Compliance, LLC, then Risk3sixty, LLC will perform SOC audit services as a subcontractor to Risk3sixty Compliance, LLC under such Statement of Work. In such a case, Risk3sixty Compliance, LLC will remain fully responsible to Customer for Risk3sixty, LLC’s performance of all SOC services.

8.    Customer Materials. Customer hereby grants Company the right to use all Customer Materials provided to Company under this Agreement for the purpose of performing the Services for Customer. Customer owns and will retain ownership of the Customer Materials and all intellectual property rights thereto.  To the extent that the Customer Materials include any personally identifiable information, the use of which is regulated by applicable data protection legislation, Customer represents and warrants that it has obtained all necessary rights and consents necessary for Company to process, use and store such information.  For a description of the Company’s privacy practices, please review the privacy policy located at this URL: https://risk3sixty.com/privacy-policy.

9.    Deliverables. Subject to Customer’s payment of all fees, upon completion of the final report(s), Customer will assume ownership of the Deliverables, provided that the Deliverables will be treated as Confidential Information under this Agreement. Customer acknowledges and agrees that the Deliverables are not intended to induce reliance by any third-party, and are not provided for any third party’s benefit or use.  Company expressly disclaims any contractual responsibility or duty of care to any third party.

10.  Intellectual Property; Company Products. Company retains all rights to its Confidential Information, proprietary methodologies, tools, models, work product, notes, software, procedures, documentation, know-how, processes, trade secrets, inventions, works of authorship and things of that nature (“Proprietary Methodologies”) that exist prior to this Agreement, and/or are used or developed in the performance of the Services. To the extent that Customer is granted access to the Company’s proprietary products, such as the FullCircle service, (“Company Products”), then Customer’s use of, and access to, the Company Products, is subject to the terms of service for such Company Products located at https://risk3sixty.com/terms-of-service, or any successor URL.  Under no circumstances will a Company Product, or Proprietary Methodologies be considered Deliverables, even if identified as such in a Statement of Work.  For the avoidance of doubt, Company owns and will retain ownership of all Proprietary Methodologies, and Company Products, including all intellectual property rights therein, and thereto, and all modifications, improvements and derivative works thereof. 

11.  Confidentiality.

11.1.      Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) during the term of this Agreement, whether orally or in writing, that is designated as confidential and, where the information is disclosed in written form, is marked as “confidential,” “proprietary” or with words of like meaning.  Confidential Information of Customer includes Customer Materials; Confidential Information of Company includes the Proprietary Methodologies, Company Products, and all Statements of Work (including pricing). The Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party.

11.2.      Exceptions. The Receiving Party is not in breach of this Agreement where the Disclosing Party’s Confidential Information: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without knowledge of any breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party without use of, or access to, the Disclosing Party’s Confidential Information.  

11.3.      Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care).  The Receiving Party: (i) will not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (ii) will limit access to the Disclosing Party’s Confidential Information to those of its and its Affiliates’ employees, contractors, financial advisors and legal advisors, who need that access for purposes consistent with this Agreement, and who have signed confidentiality agreements with the Receiving Party containing protections substantially similar to those contained herein. The Receiving Party will not remove any proprietary or confidential notice from any form of the Disclosing Party’s Confidential Information. Notwithstanding the foregoing, the disclosure of Customer’s Confidential Information and Customer Materials between Risk3sixty Compliance, LLC and Risk3sixty, LLC is expressly permitted for the purposes of this Agreement.

11.4.     No License. The Disclosing Party retains all ownership rights in and to its Confidential Information.  Except for the limited rights to use the Disclosing Party’s Confidential Information under this Agreement, no other rights or licenses are granted to the Disclosing Party’s Confidential Information.

11.5.     Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, in Disclosing Party’s efforts to contest the compelled disclosure.  If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

12.  Warranty.  Company will perform the Services and deliver the Deliverables in a professional and workmanlike manner. Company will, as its sole liability for failure to provide Services or Deliverables meeting this warranty either; (i) re-perform the non-conforming Services; or (ii) re-deliver the non-conforming Deliverables at no additional cost to Customer if notified of the non-conformity within thirty (30) days of delivery of the applicable Service or Deliverable, or if Company determines such remedies to be impracticable within a reasonable period of time, then; (iii) terminate the applicable Statement of Work and refund the portion of fees attributable to such non-conforming Services or Deliverables. EXCEPT FOR THE FOREGOING WARRANTY, ALL SERVICES AND DELIVERABLES ARE PROVIDED “AS IS” AND COMPANY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

13.  Limitation on Remedies and Damages.

13.1.     EXCEPT FOR: (I) CUSTOMER’S OBLIGATION TO PAY FEES; OR (II) CUSTOMER’S INDEMNIFICATION OBLIGATIONS; OR (III) EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. 

13.2.     EXCEPT FOR: (I) CUSTOMER’S OBLIGATION TO PAY FEES; OR (II) CUSTOMER’S INDEMNIFICATION OBLIGATIONS; OR (III) EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID OR PAYABLE UNDER THE APPLICABLE STATEMENT OF WORK IN THE TWELVE MONTHS PRECEDING THE DATE A CLAIM FIRST AROSE.

13.3.    SECTIONS 13.1 AND 13.2 WILL NOT APPLY WHERE PROHIBITED BY LAW.

14.  Indemnification. Customer will defend, indemnify and hold Company harmless from and against all third-party claims arising from, or in any way related to; (i) Customer’s failure to obtain consents for Company’s use of any personally identifiable information contained in the Customer Materials and/or Customer’s Confidential Information; and (ii) the inaccuracy or incompleteness of the Customer Materials and Customer Confidential Information upon which Company relies in preparing the Deliverables.

15.  Term. The Agreement will commence on the effective date of the first Statement of Work and continue until the earlier of: (ii) the date upon which this Agreement is terminated pursuant to this Section 15; or (ii) twelve (12) months after the date upon which the last Statement of Work expires or is otherwise terminated.  The term of any Statement of Work hereunder shall begin on the date such Statement of Work is executed by both parties and expire on the expiration date set forth in such Statement of Work, unless earlier terminated pursuant to this Section 15.

15.1.     Termination for Uncured Breach.  In the event that either party defaults in the performance of any material obligation under this Agreement or an associated Statement of Work, the non-defaulting party shall notify the other party in writing. If such default is not cured within 30 days after receipt of written notice (or, 10 days in the event the breach complained of is Customer’s failure to pay fees when due), then the non-defaulting party shall have the right to terminate the Agreement (inclusive of any license granted under this Agreement) and/or cancel any applicable Statement of Work upon written notice to the defaulting party without penalty.

15.2.     Termination for Insolvency, Bankruptcy.  To the extent permitted by, and in accordance with applicable law, either party may terminate this Agreement upon written notice in the event that the other party makes an assignment for the benefit of creditors, ceases business operations, or enters into, or becomes the subject of, any bankruptcy, insolvency, receivership or like proceeding that is not dismissed within thirty (30) days.

15.3.     Effect of Termination and Survival.  Termination of this Agreement or any license granted hereunder shall not limit either party from pursuing other remedies available to it, including injunctive relief. Company shall be entitled to be paid any unpaid fees earned before the date of termination (including payment for associated Deliverables), and to be reimbursed for prior expenses incurred before the date of termination. Upon termination of this Agreement, all Confidential Information of the Disclosing Party then in the Receiving Party’s possession will be destroyed or returned to the Disclosing Party, provided, however, that any of Customer’s Confidential Information that Company is required to retain pursuant to applicable laws, rules, and regulations, including, but not limited to, compliance requirements related to the Deliverables, and may be retained for the period of time required by such laws, rules, regulations  and compliance requirements.  Any Customer Confidential Information so retained will remain subject to the terms of Section 11 of this Agreement. The following provisions, and such other provisions that by their terms survive, will survive termination of this Agreement:  2, 5, 10, 11, 13, 14, 15.3, and 16.

16.  General.

16.1.     Insurance. During the term of this Agreement, Company will procure and maintain, at its own expense, insurance of the type and coverage limits that Company deems necessary.  Company will provide certificates of insurance to Customer at Customer’s request.

16.2.     Marketing. Neither party may use the other party’s name trademark, service mark, or logo, or make any public statements about the other party, without prior written consent.

16.3.     Non-Disparagement. Neither party shall make any statement, oral or written, regarding the other party which reasonably could be construed to be derogatory or disparaging to the other party, or which reasonably could be anticipated to be damaging or injurious to its reputation or goodwill, or which is reasonably foreseeable as harming its business interests, or as impacting negatively on its business or personal reputation.

16.4.     Dispute Resolution. If a dispute arises out of or relates to this Agreement, the parties will first attempt to resolve such dispute through good faith negotiations.

16.5.     Governing Law; Jurisdiction and VenueThis Agreement shall be governed by and construed under Georgia law and applicable United States federal law, without reference to “conflict of laws” principles or provisions.  The parties irrevocably submit to exclusive jurisdiction and venue in the Federal or State Courts located in Atlanta, Georgia for all disputes arising out of, or related in any way to, this Agreement.

16.6.     Notices and Reports. Any notice given under this Agreement will be in writing, and will be deemed to have been received: (i) when delivered personally; or (ii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iii) one (1) day after having been sent by a commercial overnight carrier with written verification of receipt; or (iv) one day after electronic delivery after having been sent with confirmation of a read receipt.  Either party may change its notice address by written notice to the other.

All notices related to or arising under this Agreement will be addressed to Customer at the address set forth in the Statement of Work, and to risk3sixty as follows: Risk3sixty, LLC, Attn: Important Notice, 408 S Atlanta St., Suite 180, Roswell, GA 30075.

16.7.     Waiver. The failure of either party to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.

16.8.     Official Language. The official language of this Agreement is English. For purposes of interpretation, or in the event of a conflict between English and versions of this Agreement in any other language, the English language version will control.

16.9.     Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party has the authority to bind the other or incur obligations on the other party’s behalf.

16.10.   No Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld).  Any purported assignment in contravention of the above prohibition shall be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

16.11.    Amendments. All changes to this Agreement must in in writing and signed by the authorized representatives of Customer and Company.

16.12.    Entire Agreement. This Agreement, together with the Statements of Work, sets forth the entire understanding of the parties regarding its subject matter, and completely supersedes and negates any other related prior or contemporaneous representations, understandings, or agreements.  No terms and conditions appearing on purchase orders, order confirmations or similar documents employed by Customer will have any force or effect; such documents will be for administrative purposes only.

16.13.   Severability. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be illegal, invalid or unenforceable, then such illegal, invalid or unenforceable provision will be limited to the extent necessary to avoid such illegality, invalidity or unenforceability, while preserving the original intent of the provision.  If limiting the illegal, invalid or unenforceable provision is not possible, then such provision will be stricken from the Agreement, and the remaining provisions of this Agreement will remain in full force and effect. 

16.14.  Compliance with Law. Both parties will comply with all applicable laws relating to the performance of this Agreement.

16.15.  Force Majeure. Except for payment obligations, neither party will be liable to the other for failure to perform its obligations to the extent caused by an event beyond the reasonable control of such party, including, without limitation, government regulations or orders, outbreak of a state of emergency, acts of god, war, warlike hostilities, civil commotion, riots, epidemics, fire, strikes, lockouts, or any other similar cause or causes, provided that the affected party promptly notifies the other of such occurrence and makes its best efforts to eliminate the effect thereof.

16.16.  Export Compliance. Customer acknowledges that the Services and Deliverables may be subject to export restrictions by the United States government and import restrictions by certain foreign governments. Customer shall not, and shall not allow any third-party to, remove or export from the United States or allow the export, re-export or access of any part of the Services or Deliverables, or any direct product thereof: (i) into or from (or to or by a national or resident of) any embargoed or terrorist-supporting country; (ii) to or by anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to or from any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Services and Deliverables are further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.

16.17.  Captions and Headings.  This Agreement’s captions and paragraph headings are for convenience of reference only; they will not be deemed part of this Agreement nor used as an aid in its construction.

16.18.  Third Party Beneficiaries.  There are no third-party beneficiaries of this Agreement.