MASTER SERVICE AGREEMENT
SECURITY AND MANAGED SERVICES
This Master Service Agreement (the “Agreement”) governs any executed Statement of Work (“SOW(s)”) that reference this Agreement and is entered into by and between the Customer identified on such Statement of Work(s) (“Customer”) and Transmosis Inc. (“CyberOps”). This Agreement permits Customer to purchase subscriptions and licenses to the Service identified in the Statement of Work and sets forth the basic terms and conditions under which those Service will be delivered. The Agreement consists of the terms and conditions set forth below, any attachments or exhibits identified below and any Statement of Works that reference this Agreement. If there is a conflict between the terms below and the Statement of Work or Master Partner Agreement, the documents will control in the following order: the Statement of Work, the Master Partner Agreement (if applicable), this Master Service Agreement, and the terms located at any URL referenced in this Agreement.
In consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
- Scope. Customer will purchase and CyberOps will provide the specific license and/or services (“Service” or “Managed Service”) as specified in the applicable Statement of Work. A Solution may consist of hardware equipment (“Equipment”), a cloud service offering (“Service”) and/or software (“Software”) as specified on the Statement of Work. Each Solution is provided on a subscription basis for a set term designated on the Statement of Work (each, a “Subscription Term”). Customer may access and use the Service solely for its own benefit and in accordance with the terms and conditions of this Agreement, the associated Documentation and any scope of use restrictions designated in the applicable Statement of Work. “Documentation” means user manuals, training materials, product descriptions and specifications and other printed information relating to the CyberOps Solution, as in effect and generally available from CyberOps on the CyberOps Website, CyberOps Partner Portal, and CyberOps Customer Portal, expressly excluding marketing and sales collateral and materials.
- Equipment. If the Statement of Work specifies that Customer will receive Equipment, then the Customer is responsible for installing the Equipment at the location(s) specified by CyberOps. The Equipment may be a part of the Service and sold to Customer by CyberOps. Customer acknowledges that if Customer attempts to install or use the Equipment at a location other than specified by CyberOps, the Service may fail to function or may function improperly. Client is directly responsible for loss, repair, replacement and other costs, damages, fees and. Customer is responsible for all fees associated with shipping the Equipment.
- Service. If the Statement of Work specifies that the Service includes access to dashboards, then, subject to the terms and conditions of this Agreement, Customer may access and use the dashboards and supporting services for its own internal business purposes. Configurations in dashboard and systems will not be possible by Customer. Certain CyberOps Services require one-time professional services such as on-boarding shall be specified on an applicable Statement of Work.
- Software. To the extent CyberOps provides Software/license for use with the Service, subject to all of the terms and conditions of this Agreement, CyberOps grants to Customer a limited, non-exclusive license during any applicable Subscription Term to install the object code form of the Software, but only in connection with Customer’s use of the Service and otherwise in accordance with the Documentation and this Agreement. Customer must implement Software in order to enable features of the Service. Customer acknowledges that any changes made to the Customer’s infrastructure or configuration of the Service after initial deployment may cause the Service to cease working or function improperly and that CyberOps will have no responsibility for the impact of any such Customer changes. The Software may also include certain additional software add-ons that offer enhanced features and functionality available with the additional purchase of applicable licenses.
- Reservation of Rights and Ownership. Customer acknowledges and agrees that CyberOps uses third party products bundled with CyberOps managed services “Managed Services” and does not owns the rights, title and interest in or to: (i) the underlying software and tools including but not limited to all updates, enhancements, modifications, new releases and new versions; and (iii) any intellectual property rights, patents, know- how, trade secrets, copyright and other proprietary rights, whether registered or not, owned and/or otherwise used by CyberOps and all goodwill related thereto with respect to the products and tools used to provide the managed services.
Customer acknowledges and agrees that (a) the Technology used for Managed Services is protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws, (b) the owner retains all right, title and interest (including, without limitation, all patent, copyright, trade secret and other intellectual property rights), any and all related and underlying technology and any derivative works or modifications of any of the foregoing. CyberOps and their partners may incorporate suggestions from Customer as contemplated by Section 11 below, (c) there are no implied licenses and any rights not expressly granted to Customer hereunder are reserved by CyberOps, (d) the Software and access to the Services are licensed on a subscription basis, and Customer acquires no ownership or other interest (other than the license rights expressly stated herein) in or to the Managed Services, any Software and Documentation and (e) the Managed Services are offered as an on-line, hosted solution, and Customer has no right to obtain a copy of the software underlying the Services.
During the term of this Agreement CyberOps and its partners may, in its sole discretion, develop new enhancements, modifications and versions of the Services, including new functions and bug fixes, as CyberOps may deem necessary. All such enhancements, modifications and versions shall be included within the definition of “Services” for purposes of this SOW and therefore within the scope of this SOW.
- Restrictions, Responsibilities, Prohibited Use and Customer Data.
6.1 Restrictions. Customer agrees not to, directly or indirectly: (i) modify, translate, copy or create derivative works based on the CyberOps Technology, (ii) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Service, except to the extent expressly permitted by applicable law (and then only upon advance notice to CyberOps); (iii) interfere with or disrupt the integrity or performance of the Service or the data contained therein or block or disrupt any use or enjoyment of the Service by any third party, (iv) attempt to gain unauthorized access to the Services or their related systems or networks or (v) remove or obscure any proprietary or other notice contained in the CyberOps Technology, including on any reports or data printed from the CyberOps Technology. Customer agrees to abide by the terms of the Acceptable Use Policy at https://www.stealth-iss.com. If CyberOps, in its reasonable discretion, determines that Customer’s use of the Service imposes an unreasonable or disproportionately large load on CyberOps’s infrastructure or that Customer is abusing its use of the Service, CyberOps may, temporarily suspend Customer’s access to the Service until such activity is rectified. If commercially practicable, CyberOps shall provide Customer with notice prior to any such suspension and shall work with Customer in good faith to reinstate the Service promptly.
6.2 Responsibilities of CyberOps. CyberOps shall provide the Service as further described in the Service Terms allocated in the SOW. The Service provided under this Agreement shall include any updates, upgrades, bug fixes, version upgrades or any similar changes that may be made available to Customer from time to time.
6.3. Customer Responsibilities. Customer must identify the administrative users and Point of Contacts for Your account (“Administrators”). Each Administrator will receive an administrator ID and password and will need to register with CyberOps. Customer is responsible for notifying CyberOps about changes to Administrators, including but not limited to termination, change of authority, and adding Administrators. Customer acknowledges and agrees that Administrators will be able to view all Customer Data and other traffic and activities that occur on Customer’s network and that Customer is responsible for all activities that occur under Administrator accounts. Administrator IDs are granted to individual, named persons and cannot be shared or used by more than one Administrator but may be reassigned from time to time to new Administrators. Customer shall (i) obtain any licenses and/or consents necessary for CyberOps to perform its obligations under this Agreement, (ii) be responsible for ensuring the security and confidentiality of all Administrator IDs and passwords, (iii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, (iv) notify CyberOps promptly of any unauthorized use of the Service or any breach, or attempted breach, of security of the Service and (v) not use the Service in a manner that would violate applicable laws or regulations.
6.4 Prohibited Use. Because Customer may access the Service from anywhere in the world, it is Customer’s responsibility to ensure that Customer has the right to access and use the Service where Customer is located. Customer represents and warrants that Customer is not a Prohibited Person nor owned or controlled by a Prohibited Person.
“Prohibited Persons” shall mean a person or entity appearing on the lists published by the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury or any other list that may be published by the U.S. Government, as amended from time to time, that is prohibited from acquiring ownership or control of items under this Agreement, or with which CyberOps is prohibited from doing business. Customer further represents that the Service shall not be used for or in connection with nuclear activities; the development of biological or chemical weapons, missiles, or unmanned aerial vehicles; to support terrorist activities; or in any other way that would violate economic sanctions laws. Customer agrees to promptly notify CyberOps and terminate its use of the Service if Customer discovers that any of the foregoing conditions apply. CyberOps may suspend any use of the Service it reasonably believes may be (or that is alleged to be) in violation of the foregoing.
Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer will not (and will not permit any of its users to) access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to the CyberOps, directly or through the Service, any information that is controlled under the U.S. International Traffic in Arms Regulations.
- Fees, Payment, Taxes, and Audit. For direct purchases made between CyberOps and Customer, the Statement of Work shall be between Customer and CyberOps and the following terms shall apply:
Pricing for the Service will be specified on an “Statement of Work”. All fees are payable in U.S. Dollars and are non-cancelable and non-refundable. Unless agreed otherwise in writing, on a case-by-case basis, all payments by Customer shall be made to CyberOps within 30 days from the date of the invoice issued by CyberOps. Customer shall have sole responsibility for establishing and collecting all fees and charges to End Users for the sale of the Services.
Delinquent amounts shall bear interest at a rate equal to the lesser of one and one-half percent (1.5%) per month (eighteen percent (18%) per year) or the maximum rate permitted by law, whichever is less. If Customer fails to make any payments due under this Agreement or an applicable Statement of Work, CyberOps shall notify Customer of such nonpayment. If a payment that is due remains unpaid for ten (10) days after CyberOps provides Customer with notice of such nonpayment, CyberOps may cease providing the Service without any liability to CyberOps. The amounts payable to CyberOps are exclusive of any sales, use, excise, value added, import, or other applicable taxes, tariffs or duties (“Taxes”). Customer is solely responsible for payment of all Taxes except for any taxes based solely on CyberOps’s net income. If Customer is required to pay any Taxes, Customer shall pay such Taxes with no reduction or offset in the amounts payable to CyberOps hereunder. If CyberOps has the legal obligation to pay or collect Taxes for which Customer is responsible, Customer authorizes CyberOps to charge Customer for such amount. If Customer believes that CyberOps has billed Customer incorrectly, Customer must contact CyberOps no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to CyberOps’s customer support department.
- Compliance with Laws. Both parties represent and warrant that, during the term of this Agreement, the parties will comply with all applicable foreign, federal, state and local statutes, laws, orders, rules, regulations and requirements, including those of any governmental (including any regulatory or quasi-regulatory) agency in connection with Customer’s use of the Service.
- Confidentiality. Either party (as a “Discloser”) may disclose confidential and proprietary information, orally or in writing (“Confidential Information”) to the other party (as a “Recipient”). All such information shall be marked with a restrictive legend of the Discloser or, if disclosed orally, it shall be identified as confidential at the time of disclosure. Notwithstanding the foregoing, contract terms relating to Customer Data shall be set forth in Section 10. Notwithstanding the marking requirements of this section, Customer acknowledges that the following constitutes Confidential Information of CyberOps: any trade secrets, know-how, inventions (whether or not patentable), techniques, ideas, or processes related to the CyberOps Technology; the design and architecture of the CyberOps Technology; the computer code, internal documentation, and design and functional specifications of the CyberOps Technology; and any problem reports, analysis and performance information related to the CyberOps Technology. Each party agrees to hold the other party’s Confidential Information in strict confidence, not to disclose such Confidential Information to third parties not authorized by the Discloser to receive such Confidential Information, and not to use such Confidential Information for any purpose except as expressly permitted hereunder. Each party agrees to take commercially reasonable steps to protect the other party’s Confidential Information and to ensure that such Confidential Information is not disclosed, distributed or used in violation of the provisions of this Agreement. The Recipient may disclose Confidential Information only (a) with the Discloser’s prior written consent and (b) to those employees, officers and directors with a clear and well-defined “need to know” purpose who are informed of and bound by the obligations of this Agreement. Notwithstanding the foregoing, The Recipient may disclose Confidential Information to the extent required by law. However, the Recipient will give the Discloser prompt notice to allow the Discloser a reasonable opportunity to obtain a protective order and such Confidential Information disclosed to the extent required by law shall otherwise remain confidential and subject to the protections and obligations of this Agreement. The Discloser agrees that the foregoing obligations shall not apply with respect to any information that the Recipient can document (i) is rightfully in its possession or known to it prior to receipt from the Discloser, (ii) is or has become public knowledge through no fault of the Recipient, (iii) is rightfully obtained by the Recipient from a third party without breach of any confidentiality obligation or (iv) is independently developed by employees of the Recipient who had no access to Discloser’s Confidential Information. Upon expiration or termination of this Agreement for any reason, each party shall promptly return to the other party or destroy all copies of the other party’s Confidential Information and copies, notes or other derivative material relating to the Confidential Information.
- Customer Data – means operational data and other internal business information submitted by or on behalf of Customer to the Service. As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to CyberOps and the Service (excluding any CyberOps Technology used with the Customer Data). Customer hereby grants CyberOps a non-exclusive, worldwide, royalty-free right to collect, use, copy, store, transmit, modify and create derivative works of data Customer Data solely to the extent necessary to provide the Service to Customer. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to CyberOps that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Data as contemplated in this Agreement. Customer further represents and warrants that all Customer Data complies with the Acceptable Use Policy. CyberOps aggregates Customer Data with other data so that results are non-personally identifiable with respect to Customer and also collects anonymous technical logs and data regarding use of the Service (“Aggregate/Anonymous Data”). Notwithstanding anything to the contrary herein, such Aggregate/Anonymous Data will be deemed CyberOps Technology, which CyberOps may use for any business purpose during or after the term of this Agreement, including without limitation to develop and improve the Service and services and to create and distribute reports and other materials. For clarity, this Section 10(a) does not give CyberOps the right to identify Customer as the source of any Aggregate/Anonymous Data without Customer’s prior written permission.
- Suggestions. If Customer provides any suggestions, ideas, enhancement requests, feedback, recommendations relating to the Service (“Feedback”), then Customer agrees that CyberOps, in its sole discretion, may use or incorporate such Feedback into the Service. Any such Feedback shall not be deemed to constitute Confidential Information or to impose any confidentiality obligations on CyberOps. Customer hereby grants to CyberOps and its assigns a royalty-free, worldwide, perpetual, irrevocable, fully transferable and sublicensable right and license to use, disclose, reproduce, modify, create derivative works from, distribute, display or otherwise distribute and exploit any such Feedback in order to improve the Service.
12.1 CyberOps’s Indemnity. CyberOps will defend any third party claim or action brought against Customer to the extent based on the allegation that the Service infringe any intellectual property right (patents, utility models, design rights, copyrights and trademarks or any other intellectual property right) having effect in the United States and CyberOps will pay any settlements that CyberOps agrees to in a writing signed by an authorized officer of CyberOps or final judgments awarded to the third party claimant by a court of competent jurisdiction. The foregoing obligations do not apply with respect to the Service or portions or components of either (a) not provided by CyberOps, (b) combined with other products, processes or materials that are not reasonably contemplated by the Documentation where the alleged infringement relates to such combination or (c) where Customer’s use of the Service is not strictly in accordance with this Agreement or the published Documentation.
12.2 Customer Indemnity. You agree to defend any claim or action brought against CyberOps to the extent based on Customer’s alleged breach of Section 10 or the Acceptable Use Policy and Customer agrees to pay any settlements that Customer agrees to in a writing signed by an authorized officer of Customer or final judgments awarded to the third party claimant by a court of competent jurisdiction.
12.3 Procedures. Each party’s indemnification obligations are conditioned on the indemnified party (a) providing the indemnifying party with prompt written notice of any claim, provided that the failure to provide such notice shall only limit the indemnifying party’s obligation to indemnify to the extent that the failure prejudices the indemnifying party in its defense of the claim (b) granting the indemnifying party the sole control of the defense or settlement of the claim, and (c) providing reasonable information and assistance to the indemnifying party in the defense or settlement of the claim at the indemnifying party’s expense.
12.4 Options. If Customer’s use of the Service has become, or in CyberOps’s opinion is likely to become, the subject of any claim of infringement, CyberOps may at its option and expense (a) procure for Customer the right to continue using and receiving the Service as set forth hereunder, (b) replace or modify the Service to make them non-infringing, (c) substitute an equivalent for the Service or (d) if CyberOps, in its sole discretion, determines that options (a)-(c) are not reasonably practicable, terminate this Agreement and refund any pre-paid unused Fees.
12.5 Sole Remedy. THIS SECTION 12 STATES CYBEROPS’S ENTIRE RESPONSIBILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
- Warranty and Warranty Disclaimer. CYBEROPS WARRANTS THAT, (I) THE SERVICE PROVIDED UNDER THIS AGREEMENT DO NOT INFRINGE OR MISAPPROPRIATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, AND (II) THE SERVICE SHALL SUBSTANTIALLY PERFORM IN ALL MATERIAL RESPECTS AS DESCRIBED IN THE SERVICE DOCUMENTATION. IN THE EVENT OF ANY BREACH OF SECTION 13, CYBEROPS SHALL, AS ITS SOLE LIABILITY AND CUSTOMER’S SOLE REMEDY, REPAIR OR REPLACE THE SERVICE THAT ARE SUBJECT TO THE WARRANTY CLAIM AT NO COST TO CUSTOMER OR IF CYBEROPS IS UNABLE TO REPAIR OR REPLACE, THEN CYBEROPS WILL REFUND ANY PRE-PAID FEES FOR SERVICE NOT RENDERED/UNUSED.
EXCEPT FOR THE WARRANTY DESCRIBED IN THIS SECTION, THE SERVICE ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES OF TITLE AND NON- INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT THE SERVICE ARE PROVIDED “AS IS” AND FURTHER ACKNOWLEDGE THAT CYBEROPS DOES NOT WARRANT THAT (A) THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED, OR ERROR FREE, (B) THE SERVICE ARE NOT VULNERABLE TO FRAUD OR UNAUTHORIZED USE OR (C) THE FEATURES OR FUNCTIONALITIES OF THE SERVICE WILL BE AVAILABLE AT ANY TIME IN THE FUTURE. CUSTOMER IS RESPONSIBLE AND CYBEROPS SHALL HAVE NO RESPONSIBILITY FOR DETERMINING THAT YOUR PROPOSED USE OF THE SERVICE COMPLIES WITH APPLICABLE LAWS IN YOUR JURISDICTION(S).
- Limitation of Liability. FOR ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, CYBEROPS WILL IN NO EVENT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR (A) DAMAGES BASED ON USE OR ACCESS, INTERRUPTION, DELAY OR INABILITY TO USE THE SERVICE, LOST REVENUES OR PROFITS, LOSS OF SERVICE, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY OR (B) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR (C) ANY AMOUNTS THAT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER FOR THE SERVICE THAT ARE THE SUBJECT OF THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT WHICH GIVES RISE TO SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY WHETHER OR NOT CYBEROPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTHWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Customer will defend and indemnify CyberOps against and hold CyberOps harmless from, any and all claims, damages, and expenses (including reasonable attorneys’ fees and costs of litigation) pursuant to a third party claim arising from any improper acts, or omissions by Customer and/or any breach relating to its activities in connection with this MSA and SOW; arising from the infringement of intellectual property rights while Service Provider provides the Managed Security Services; and/or arising from Customer’s misrepresentations relating to CyberOps and/or the Services. Customer shall be solely responsible for any claims, warranties, or representations made by Customer or Customer’s employees or agents including without limitations, any that differ from the warranty provided by CyberOps in this SOW and/or in the documentation provided as part of the Services.
- Term and Renewal. This Agreement shall be in effect for the Subscription Term specified in the Statement of Work.
15.1. For direct purchases made between CyberOps and Customer, the Statement of Work shall be between Customer and CyberOps and the following terms shall apply:
The Subscription to the Service will automatically renew at the end of the initial Subscription (i) for the same period of time as the initial Subscription and (ii) will renew at the then-current price at the time of renewal. If Customer would like to opt out of renewal Subscription or modify any of the terms of the renewal Subscription prior to renewal, then Customer must notify CyberOps no less than sixty (45) days prior to the renewal Subscription Start Date.
- Updates. Except as expressly provided herein, no modification of this Agreement will be effective unless contained in writing and signed by an authorized representative of each party. CyberOps may make changes to terms located at a URL referenced in this Agreement, including this Agreement (collectively, the “URL Terms”) from time to time. CyberOps will post the amended terms and will update the “Last Updated Date” at https://www.stealth-iss.com/. By continuing to access or use the Service after CyberOps has provided Customer with such notice of a change, Customer is indicating that it agrees to be bound by the modified terms. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must notify CyberOps within 30 days of the applicable Last Updated Date. If Customer notifies CyberOps as required, then Customer will remain governed by the terms in effect immediately prior to the change until the end of the then-current Subscription period (or, in the case of Services, the completion of the applicable Services). If the Subscription period is renewed, it will do so under the updated URL Terms.
- Termination. Either party may terminate this Agreement for cause if the other party commits a material breach of this Agreement, provided that such terminating party has given the other party ten (15) days advance notice to try and remediate the breach. Upon termination, the party agrees to cease all use of the Service and CyberOps Technology, installed or otherwise, and destroy all copies of any CyberOps Technology that are in Customers possession or under Customers control and promptly remove and return all Equipment to CyberOps. Except as otherwise required by law, upon termination CyberOps will remove, delete, or otherwise destroy all copies of Customer Data in its possession. Sections 7 (only as to amounts due and owing) and 9 through 16 will survive the non-renewal or termination of this Agreement.
In no event shall any termination of this SOW, in itself, affect any rights or obligations accrued or existing at the time of such termination or arising out of such termination, nor shall Customer be entitled to any compensation for loss of goodwill, customers, profits, expenses or for any other loss or damage arising as a result of the expiration or termination of this SOW howsoever arising.
- Assignment & Sub-Contractors. Customer shall not transfer, assign or pledge in any manner whatsoever any of its rights or obligations under this Agreement, without CyberOps’s prior written consent, which consent shall not be unreasonably withheld. Customer may not appoint any sub-distributors, Services Providers or agents for the distribution, marketing and selling of the Services without the prior written consent of CyberOps. Such consent, to the extent given, shall not relieve Services Provider from any of its undertakings herein and Services Provider shall remain liable for any breach of the provisions hereof by any person or entity acting on its behalf.
19.1 All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) on the next business day after the date sent, if sent for overnight delivery by a generally recognized international courier (e.g., FedEx, DHL, etc.) (receipt requested); or (c) on the date sent by e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient. Such communications must be sent to the respective parties at the addresses set forth on the signature page hereof (or at such other address for a party as shall be specified in a notice given in accordance with this Section 18).
19.2 The parties to this Agreement are independent contractors. CyberOps and Services Provider are independent contractors, and nothing in this SOW shall be construed to create a partnership, joint venture, agency, or employment relationship between the parties hereto. Neither party shall have the power or authority to enter into SOWs or obligations of any kind on behalf of the other and shall have no power or authority to bind or obligate the other in any manner. In addition, neither party shall, at any time, represent or lead any third party to believe that it has the power or authority to bind the other.
19.3 This Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns of the parties. Customer shall not be entitled to assign, subcontract, delegate or otherwise transfer any of its rights and/or duties arising out of this Agreement and/or parts thereof to third parties, voluntarily or involuntarily, including by change of control, operation of law or any other manner, without CyberOps’s express prior written consent. Any purported assignment, subcontract, delegation or other transfer in violation of the foregoing shall be null and void. No such assignment, subcontract, delegation or other transfer shall relieve the Beeline of any of its obligations hereunder.
19.4 This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Florida, without regard to the conflict of laws principles thereof. The parties hereby agree and consent that any and all causes of action arising under this Agreement shall have exclusive jurisdiction and venue in any state or federal court of competent jurisdiction sitting in Nevada. The parties hereby consent to the jurisdiction and venue of such courts for resolution of all causes of action arising under this Agreement upon proper service of process, and hereby waive any objections to the jurisdiction and venue thereof.
19.5 Each party acknowledges and agrees that any dispute or claim that may arise out of or relate to this Agreement is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
19.6 No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
19.7 If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable. The parties agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purpose of such void or unenforceable provision.
19.8 This Agreement (including the exhibits hereto) constitutes the parties’ entire agreement by and between the parties with respect to the subject matter hereof and supersedes any prior or contemporaneous agreement or understanding by and among the parties with respect to such subject matter. Except as otherwise provided herein, this Agreement may be amended, modified or supplemented only by an agreement in writing signed by each party.
19.9 The parties have participated mutually in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted mutually by the parties and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
STATEMENT OF WORK
CyberOps Small Business Protection Service
Jan 9, 2020
Subject to the terms and conditions of this SOWandMaster Service Agreement (“MSA”), Transmosis Inc (“CyberOps”) hereby grants its Customer (“Licensee”), during the term of this SOW, a non-exclusive, non-transferable, limited license to:
- use the Services to deliver Managed Security Services toits End Clients, defined as a third-party entity which has purchased ManagedServices or licenses from the Services Provider for the End Clients’s personal or internal business purposes only and not for further distribution or resale.
- access and use the Services as part of a Managed Security Services, from Services Provider, in accordance with the terms and conditions of this SOW.
- Market own managed services or part of Transmosis Inc (“CyberOps”) Managed Services in a non-exclusive manner for its End Clients
- Repackage and reuse Transmosis Inc (“CyberOps”) Managed Services for resale
- Customer (“Licensee”) shall have the discretion to determine the final sale price of the Managed Security Services to the End Users.
- Customer (“Licensee”) will be responsible for level 1 and 2 SOC operations at their own cost – unless specific otherwise
- Customer (“Licensee”) has no geographic sales restrictions – except as outlined in MSA
- Services Provider shall provide the End Users with support and maintenance services. Under no circumstances shall Transmosis Inc (“CyberOps”) be obligated to directly support any End User or Customer (“Licensee”).
Transmosis Inc (“CyberOps”) Responsibilities:
During the term of this Agreement, Transmosis Inc (“CyberOps”)willprovide support services as outlined below:
- Transmosis Inc (“CyberOps”) will support only the Software and Services identified in this SOW.
- Transmosis Inc (“CyberOps”) will support the current generally available Upgrade of the Software and the immediately preceding Upgrade.
- Transmosis Inc (“CyberOps”) will support the current generally available Upgrade of the Software and the immediately preceding Upgrade
- Transmosis Inc (“CyberOps”) shall provide online support via electronic mail, and Incident Response/Forensic Service (if purchased) via telephone calls as defined in section Appendix A below.
- Software Updates, Enhancements and Fixes shall be delivered to Customer (“Licensee”) through Online Support.
- Address and Support Customer (“Licensee”) with technical issues (level 3 Support) and licensing questions
The Customer (“Licensee”) will be entitled to receive the Support Services as described in this SOW, if the Customer (“Licensee”) complies with the provisions of this SLA and the Agreement. Without derogating from any other provision as set forth in the Agreement, the provision by Transmosis Inc (“CyberOps”) of the Support Services shall be contingent on Customer (“Licensee”) abiding by the following obligations:
- Customer (“Licensee”) will assist Transmosis Inc (“CyberOps”) in producing a test case in a Transmosis Inc (“CyberOps”) environment, or Customer (“Licensee”) shall provide documentation that clearly describes the Errors; and
- Customer (“Licensee”) shall cooperate with and shall respond to and communicate with the Transmosis Inc (“CyberOps”) support services team.
If Transmosis Inc (“CyberOps”) is unable to reproduce a test case, then Customer (“Licensee”) shall use commercially reasonable efforts to collaborate with Transmosis Inc (“CyberOps”) on a diagnosis, which may include Transmosis Inc (“CyberOps”) sending and Customer (“Licensee”) using experimental versions of the Software to assist in troubleshooting and diagnosing the Error.
Both Parties Group Responsibilities:
- Both parties agree to support each other and share marketing and sales material as need to achieve common growth
- Customer (“Licensee”)s Client will consist of End-User Client with 50 or below Endpoints (servers, workstation, laptops and any other assets that are being monitored)
- Transmosis Inc (“CyberOps”) client base consists of End users with more than 50 Endpoints
- Both parties agree they will not compete in eh others respective market areas during the existence of this agreement.
- If any party obtains a led that is part of the other parties End-Client size, the party will at earliest convenience share the opportunity with all contact info with the other party.
- Service Client provider has the option to sign up with Transmosis Inc (“CyberOps”) Reseller/Referral Partner Program and for each referral, that is tuned into a client, the Customer (“Licensee”) will obtain a referral fee as outline in Transmosis Inc (“CyberOps”) Partner Program
Period of Performance
|Customer (“Licensee”) subscription purchase.|
SOC PLATFORM OVERVIEW
Transmosis Inc (“CyberOps”) – together with its partner Cynet offers a managed service using an autonomous breach protection platform that consolidates and automates Monitoring & Control, Attack Prevention & Detection and Response Orchestration across the entire environment.
Transmosis Inc (“CyberOps”) delivers these capabilities and 24/7 SOC services by pioneering the use of Sensor Fusion™ to continuously collect and analyse all endpoints, files, users, hosts activities and network traffic across the protected environment. This allows the capability of seeing the true context of each activity and radically differs from any siloed endpoint or network solutions that monitor mere parts of the overall activity, resulting in reduced accuracy and protection scope. Transmosis Inc (“CyberOps”) 24/7 SOC staff monitors and addresses identified alerts and fine tunes the alerting function for each client and investigating identified threats by blocking or quarantining suspicious activates and/or conducting active incept response.
Through its complete threat coverage, and human interaction and incident response Transmosis Inc (“CyberOps”) eliminates the need for complex multi-product security stacks, making robust breach protection within reach for any organization, regardless of its size and security skills.
· Immediate Benefit in Real Time – smart agent is fully operable within two clicks and auto-deploys itself on newly added hosts with no human intervention
· Unparalleled Accuracy – Sensor Fusion collects all core activity signals gaining clear insight into the unique context of each event, reducing false positives to a minimum.
· Complete Attack-Surface Coverage Airtight protection against all attack vectors that involve users, files, hosts and network
· Fully Automated Response – widest set of automated response workflows to any type of attack
· Included 24/7 SOC service – elite team providing threat analysts and security researchers 24/7
· Rapid deployment: up to 20,000 hosts/servers in one day
· Automated discovery and self- deployment on new machines
· Available On-Prem, SaaS or Hybrid
· O/S agnostic: Windows, Mac, Linux (6 flavors)
· Protects hosts, servers and virtual environments
Service Levels Purchased
Service purchased includes:
· Configuration of Customer (“Licensee”) portal
· Unlimited intelligence feeds during the subscription term.
· Initial Training Plan for Customer (“Licensee”) SOC staff
· Existing Sales and marketing material from Transmosis Inc (“CyberOps”) and its partners
· Existing and prerecorded technical training from Transmosis Inc (“CyberOps”) and its partners
· 3rd level support for technical questions and troubleshooting:
· Integration and fine tuning for new clients
· Any direct support for Customer (“Licensee”) end clients
· 24/7 Security Operations monitoring and Incident Reposes
· Forensic Analysis
|Service Start:||Upon subscription purchase|
Matrix of Incident Severities vs. Response Time – The following chart provides the matrix of Incident Severity in relation to the Support Service to be provided and estimated time for Initial Response Time. Transmosis Inc (“CyberOps”) shall make reasonable commercial efforts to comply with the below:
This SOW is executed under the terms of the Master Service Agreement entered into between Transmosis Inc. (“CyberOps”) a company registered in the State of Delaware with its principle place of business 4808 N 24th St., Suite 704, Phoenix, AZ, 85016 , USA and Customer “Licensee”.This SOW amends the Master Services Agreement, including applicable Work and Change Orders. Unless otherwise set forth in this SOW, all terms and conditions of the Master Service Agreement will apply to this SOW. This SOW may be amended, modified, superseded, renewed or extended, only by a written instrument executed by both Parties hereto. Capitalized terms used in this SOW and not otherwise defined shall have the meanings given to them in the Master Service Agreement. This SOW and the Master Service Agreement, as amended, constitute the complete and entire understanding of the Parties with respect to the subject matter hereof. In witness whereof, the Parties hereto have executed this SOW as of the subscription purchase date.
TRANSMOSIS INC (“CYBEROPS”) TECHNICAL SUPPORT SERVICE HOURS AND CONTACT DETAILS
(Customer (“Licensee”) only subscribing to Level 3 as part of this SOW)
|Support Level||Issue||Service Methods||Service Hours|
|Level 1 Operations|
· Critical Alerts
· High alerts detection
|Level 2 SOC Operations|
· All other SOC issues
· Low alerts
|Level 3Technical Support|