Master Service Agreement

Last Updated: November 1, 2021

This Master Service Agreement (this “Agreement”) governs the terms and conditions between Proficio and Client with regard to Client’s use of Proficio’s ProSOC Managed Detection and Response (the “Services”). Proficio and Client may be individually referenced as a “party” or collectively the “parties” in this Agreement.

By executing a Statement of Work that incorporates this Agreement or using Services describing herein, Client is accepting this Agreement as of the Effective Date on the Statement of Work or date of first use of the Services and shall be bound by the terms and conditions of this Agreement. If this Agreement accepted by an individual on behalf of a company or other legal entity, such individual warrants that they have authority to bind such company or legal entity and the term “Client” shall refer to the company or legal entity.  If an individual does not have such authority or does not agree to the terms and conditions of this Agreement, the individual must not execute the Statement of Work or use the Services in any manner.

Proficio may update the terms of this Agreement from time to time. In the event terms are updated after Client begins Services, Client expressly agrees that the latest terms of this Agreement shall prevail.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

  1. Services.

1.1 Services.  Proficio will provide to the Client the Services described in one or more Statements of Work (each a “Statement of Work” or “SOW”) that have been executed by the parties (collectively, the “Services”).  Each Statement of Work shall specify the Services to be performed by Proficio and the deliverables to be delivered by Proficio to Client, if any (the “Deliverables”) and schedule set forth therein.  Each Statement of Work shall form a part of this Agreement and shall be subject to the terms and conditions set forth herein.  In the event of any conflict or inconsistency between the terms of this Agreement and the terms of a Statement of Work, the parties agree that terms of the SOW shall govern with regard to the conflict or inconsistency.  Unless the parties agree otherwise, “Statement of Work” shall be deemed to include any agreement between the parties for the delivery of goods or services.

1.2 Performance.  Proficio will use commercially reasonable efforts to perform, or have performed, the Services.  Proficio shall have the right to assign employees and subcontractors with suitable qualifications to perform the Services.

1.3 Term of Services.  The “Term” of Services will continue for a noncancellable period commencing on the Effective Date of the applicable Statement of Work and expiring on the last day of the term commitment described therein  Upon the expiration of the initial Term , such Statement of Work shall thereafter be automatically renewed for successive one-year periods of time unless and until terminated by either party upon ninety (90) days written notice prior to the end of the then-current Term. Termination notice must be delivered in writing to a signatory of the Statement of Work.

1.4 Payment.  Unless otherwise agreed to in a Statement of Work, , Client shall pay Proficio the amounts and at the times stated below as compensation for the performance of the Services:

1.4.1 Setup and first year subscription fees are due upon the execution and delivery of the Statement of Work by the Client.

1.4.2 All payments are due in currency designated in the SOW. Proficio will issue its invoices for subsequent subscription fees on an annual basis, thirty (30) days in advance of each anniversary of the Subscription Term. Client shall pay all invoices within fifteen (15) days of receipt. A late fee of the lesser of 1.5% per month or the maximum amount allowed by state law may be charged on past due balances. Any objections by Client to an invoice must be made in writing to Proficio within ten (10) days after the date of the invoice.

1.4.3 Any true-up for additional Services or devices identified in a Change Order or other modification of a Statement of Work will be billed pro-rata and co-terminus for the then current year of the term of the applicable Statement of Work, and thereafter automatically renewed on the same schedule as the original Services.

1.5 Charge Adjustment.  Proficio reserves the right to increase its pricing for the Services and any other goods or services at the time the Statement of Work is renewed.

1.6 Taxes. Fees for the Services are exclusive of all federal, state, local or other taxes, including, without limitation, sales, use, excise and property taxes, or amounts levied in lieu thereof, (“Taxes”) based on charges set forth in this Agreement or the Statement of Work.  Client shall pay all such Taxes, provided however, that Client shall have no responsibility for taxes imposed on Proficio’s net income by any taxing authority.

1.7 Cooperation.  Proficio and Client agree to provide all reasonable cooperation, assistance and information (including applicable equipment, tool, software and documentation) to each other in a timely manner in order to successfully achieve the objectives of the Statement of Work. Client agrees that the information it provides to Proficio will be accurate and complete at the time it is provided, and that the information will be updated in the event of any material changes.  Each party’s obligations under this Agreement are subject to the other party’s compliance with these commitments.  Client acknowledges that the schedule for completion of the Services may require adjustment in the event Client’s responsibilities are not completed as scheduled.

  1. Relationship of Parties.

2.1 Independent Contractor.  Proficio is an independent contractor and is not an agent or employee of Client by contract or otherwise.  This Agreement shall not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties.  Proficio will determine, in Proficio’s sole discretion, the manner and means by which the Services are accomplished, subject to the requirement that Proficio shall at all times comply with applicable law.  Client has no right or authority to control the manner or means by which the Services are accomplished.  Neither party shall have the authority or power to act as the agent of the other party or otherwise to bind or obligate the other party without its prior written consent.

2.2 Employment Taxes and Benefits.  Proficio will pay any withholding taxes, social security, unemployment or disability insurance, or similar items for Proficio’s employees performing Services pursuant to this Agreement.

2.3 Liability Insurance.  During the term of any Statement of Work, Proficio will maintain commercially reasonable worker’s compensation, disability, and liability insurance and will provide proof thereof to Client upon Client’s request.

2.4 Non-exclusivity.  Client acknowledges that Proficio may be performing similar services for businesses other than Client including, without limitation, other companies in the same industry or similar industries to Client.  This Agreement does not prohibit Proficio from performing such services.

  1. Change Orders.

3.1 Change Scope of Services.  If at any time during the term of this Agreement Client requests that Proficio provide additional services, or requests a modification or change in the Services, Client and Proficio will follow the procedure set forth below:

3.2 Change Order Request.  Client will submit to Proficio by means of a written order all requests for additional services that alter, amend, enhance, add to, or delete from the Services as specified in the applicable Statement of Work (the “Change Request”).

3.3 Change Order Evaluation.  Proficio will make a reasonable effort to investigate the impact of the Change Request on the tasks, delivery schedule, and costs associated with the Statement of Work. If both parties agree to the Change Request, Proficio will document the Change Request and amend the affected portions of the Statement of Work (the “Change Order”).

3.4 Change Order Effectiveness.  No Change Order shall be effective or binding upon Proficio unless signed by authorized representatives of both parties. If the parties cannot agree upon the new terms of the Change Request, the Change Request will not be implemented, and the existing Statement of Work will be binding.

3.5 Change Order as Binding Agreement.  Once fully completed and executed by both parties, each Change Order is deemed to be incorporated into and to be part of this Agreement and will constitute a formal amendment to the Statement of Work, adjusting fees, schedules and other terms to the extent set forth in the Change Order.

  1. Proprietary Rights.

4.1 Client’s Proprietary Rights.  Client represents and warrants that it has the necessary rights, power and authority to permit Proficio to access Client Data (as defined below) as set forth in this Agreement and any Statement of Work and that Client has and shall continue to fulfill all obligations with respect to all parties as required to permit Proficio to carry out the terms of this Agreement and any Statement of Work, including with respect to all laws applicable to Client Data.  As between Client and Proficio, Client will own all right, title and interest in and to (a) any data provided by Client to Proficio and/or Client data accessed or used by Proficio, or transmitted by Client to Proficio, including, but not limited to, Client data included in any written or printed summaries, analyses or reports generated in connection with the Services (collectively, the “Client Data”), (b) all intellectual property rights, including patents, trademarks, copyrights, trade secrets and other proprietary information (“Intellectual Property”) of Client that may be made available to Proficio in the course of providing the Services, and (c) all confidential or proprietary information of Client, including, but not limited to, Client Data, Client Reports (as defined in Section 4.3), and other Client files, documentation and related materials, in each case under this clause (c), obtained by Proficio in connection with this Agreement.  Client grants to Proficio a limited, non-exclusive license to use the Client Data to perform the Services. Proficio may process Security Event Data during and after the term hereof to develop and enhance its products and services. “Security Event Data” means information, collected during Proficio provision of managed security services, related to security events. Client grants to Proficio a limited, non-exclusive, perpetual, worldwide, irrevocable license to use and otherwise process the Security Event Data during and after the term hereof to develop, enhance and/or improve its security services and the products and services it offers and provides to customers.

4.2 Proficio’ Proprietary Rights. As between Client and Proficio, Proficio will own all right, title and interest in and to the Services. This Agreement does not sell, assign, transfer, or convey to Client or any third party any right, title or interest in or to the Services or any associated Intellectual Property rights, but only a limited right of use as granted in and revocable in accordance with this Agreement.  In addition, Client agrees that Proficio is the owner of all right, title and interest in all Intellectual Property in any inventions, methods, processes, or computer programs, including any source code or object code (and any enhancements and modifications made thereto), contained within the Services (collectively, the “Works”), developed by Proficio in connection with the performance of the Services hereunder and of general applicability across Proficio’ customer base, and Client hereby assigns to Proficio all right, title and interest in and to any copyrights that Client may have in and to such Work; provided, however, that such Work shall not include Client’s Confidential Information (as defined in Section 5), Client Data, Client Reports (as defined in Section 4.3) or other information belonging, referencing, identifying or pertaining to Client. Without limiting the foregoing, Proficio will own all right, title and interest in all Intellectual Property in any advisory data, threat data, vulnerability data, analyses, summaries, bulletins and information made available to Client in Proficio’ provision of the Services (the “Reports”).  During the term of the Services, Proficio grants to Client a limited, non-exclusive license to use such Works and Reports solely for Client to receive the Services and for Client’s or its affiliate’s internal security purposes only.

4.3 Client Reports; No Reliance by Third Parties. Client shall own all right, title and interest in and to any written summaries, reports, analyses, and findings or other information or documentation prepared uniquely and exclusively for Client in connection with the Services and as specified in the Statement of Work (the “Client Reports”). The provision by Client of any Client Report or any information therein to any unaffiliated third party shall not entitle such unaffiliated third party to rely on the Client Report or the contents thereof in any manner or for any purpose whatsoever, and Proficio specifically disclaims all liability for any damages whatsoever (whether foreseen or unforeseen, direct, indirect, consequential, incidental, special, exemplary or punitive) to such unaffiliated third party arising from or related to reliance by such unaffiliated third party on any Client Report or any contents thereof.

  1. Confidential Information.

5.1 Proficio Confidential Information.  Except as expressly permitted herein, Client agrees that neither it nor any of its employees will disclose to any third party or use, except in connection with the exercise of its rights and performance of obligations hereunder, (i) any software owned by or licensed to Proficio, including, without limitation, the Development software, whether in object or source code format and whether or not modified in the course of performing any Services, (ii) any Deliverables, (iii) any information regarding or derived from the content, purpose, design or function of Proficio’s software or any Deliverables, (iv) the Developments, or (v) any know-how, ideas, technical data, designs, concepts, techniques, inventions, discoveries, improvements or other information that relates to or is derived from research, product plans, products, services, customers, markets, developments, inventions, processes, marketing or finances related to Proficio’s software, the Services, the Deliverables, or other business information disclosed by Proficio (collectively, “Proficio Confidential Information”), whether disclosed orally, in writing or otherwise.  Client agrees to require every employee, consultant or agent who will have access to, use of, or knowledge of any Proficio Confidential Information to execute or have executed (in advance of and as a condition to such access, use or knowledge) a confidentiality agreement including terms no less protective of the Proficio Confidential Information as those contained herein.  Client shall not disclose or disseminate any Proficio Confidential Information, in whole or in part, to any employee, consultant or agent who does not have a need to know and obtain access thereto in order to give effect to the purposes of this Agreement.  Client agrees that it will protect the secrecy of and avoid disclosure or unauthorized use of Proficio Confidential Information in order to prevent it from falling into the possession of persons other than those persons authorized hereunder to have any such information, using at least the same degree of care that Client utilizes to protect its own confidential information of a similar nature, but in any event no less than reasonable care.  Client agrees to notify Proficio in writing of any misuse or misappropriation of Proficio Confidential Information which comes to Client’s attention.  Proficio Confidential Information includes the terms and conditions of this Agreement.  The parties understand, however, that Proficio Confidential Information shall not include any information that has: (1) become generally known or available to the public without breach of any obligation of confidentiality owed to Proficio, or (2) become known by or available to Client from a source other than Proficio, without any breach of any obligation of confidentiality.  If Client is or may be required to disclose Proficio Confidential Information pursuant to an order from a court of competent jurisdiction or applicable law, Client shall give Proficio immediate written notice thereof and shall provide Proficio a reasonable opportunity to contest such requirement or to seek an order preventing or limiting the disclosure prior to making any such disclosure.  Client will cooperate with Proficio in Proficio’s efforts to prevent or limit any disclosure and if required to disclose, will only do so to the minimum extent necessary to comply with any law or court order.  Except as expressly stated in this Agreement, nothing stated in this Section 5 shall be construed to grant any rights or licenses in or to the Proficio Confidential Information.

5.2 Client Confidential Information.  Client acknowledges that Proficio may acquire information and materials from Client and knowledge about the business, products, programming techniques, experimental work, customers, clients and suppliers of Client.  Proficio understands that all such knowledge, information and materials that are disclosed to Proficio by Client and are marked or identified in writing as confidential or proprietary (or if disclosed orally or in other intangible form or in any form that are not so marked, that are identified as confidential at the time of such disclosure and summarized in writing and transmitted to the Proficio within thirty (30) days of such disclosure) are and will be the confidential and proprietary information of Client (collectively “Client Confidential Information”).  Proficio agrees to hold all such Client Confidential Information in confidence, not to disclose it to others, or use it in any way, commercially or otherwise, except for the purpose of performing the Services or exercising the rights under this Agreement, and not to allow any unauthorized person access to it, either before or after expiration or termination of this Agreement.  Proficio agrees that it will protect the secrecy of and avoid disclosure or unauthorized use of Client Confidential Information in order to prevent it from falling into the possession of persons other than those persons authorized hereunder to have any such information, using at least the same degree of care that Proficio utilizes to protect its own confidential information of a similar nature, but in any event no less than reasonable care.  Client Confidential Information shall not include any information that has:  (1) become generally known or available to the public without breach of any obligation of confidentiality owed to Client, or (2) become known by or available to Proficio from a source other than Client, without any breach of any obligation of confidentiality owed to Client.  Except as expressly stated in this Agreement, nothing stated in this Section 5.2 shall be construed to grant any rights or licenses in or to the Client Confidential Information.  Further, Proficio may use or disclose Client Confidential Information to the extent (i) expressly approved by Client, and (ii) Proficio is legally compelled to disclose such Client Confidential Information.  If Proficio is required to disclose Client Confidential Information pursuant to an order from a court of competent jurisdiction or applicable law, Proficio shall give Client immediate written notice thereof and shall provide Client a reasonable opportunity to contest such requirement or to seek an order preventing or limiting the disclosure prior to making any such disclosure.  Proficio will cooperate with Client in Client’s efforts to prevent or limit any disclosure and if required to disclose, will only do so to the minimum extent necessary to comply with any law or court order.  Notwithstanding anything in the Agreement to the contrary, and regardless of any termination of this Agreement, Client agrees that Proficio shall not be prohibited from using any Client Confidential Information retained in the memories of its employees, subcontractors, or agents (without relying on any written or recorded media) for any purpose, and Client shall not assert against Proficio, its employees, subcontractors, or agents any action, claim, proceeding based on Proficio’s use of such information.

  1. Indemnity.

6.1 Indemnity by Proficio.  Subject to Section 9, Proficio shall defend or settle at its sole expense any claim brought against Client by a third party alleging the Services performed by Proficio infringe any copyright or misuses or misappropriates a trade secret of such third party under U.S. law, and Proficio shall pay all damages finally awarded or costs of settlement therefor. However, Proficio shall have no liability for any such claim based upon: (a) the use, operation, or combination of the Services or the Deliverables provided by Proficio with hardware, software and/or other materials not supplied or approved by Proficio, (b) any modifications or alterations to the Services or the Deliverables not specifically authorized in writing by Proficio, (c) Proficio’s compliance with Client’s specifications, instructions, or designs, (d) Client’s breach of this Agreement, or (e) any hardware, software and/or other materials provided by Client.  The foregoing states Proficio’s sole and exclusive obligation with regard to any claim of infringement or misuse or misappropriation of intellectual property rights and Client’s sole remedy.

6.2 Indemnification Requirements.  Proficio’s obligation to provide such indemnification will be conditioned on the following: (a) prompt notice of such claim (including the nature of the claim and the amount of damages and nature of other relief sought) being provided by the Client; (b) the Client shall cooperate with Proficio in all reasonable respects in connection with the defense of any such action; and (c) Proficio will have sole control of the defense and settlement of any claims for which it provides indemnification hereunder; provided that no settlement is entered without the prior written consent of the Client if such settlement requires any admission of fault or wrong doing or any public statement by the Client, or is not a full and complete settlement of all claims against the Client.  The Client shall have the right to retain separate counsel and participate in the defense of the action or claim at its own expense.

  1. Term and Termination.

7.1 Term.  The Term of this Agreement is from the Effective Date until the sooner of (a) the end of the Term of Services described in the last Statement of Work, or (b) termination pursuant to Section 7.2 or Section 7.3.

7.2 Termination for Convenience.  Client may not terminate this Agreement and/or any Statement of Work at any time without cause.

7.3 Termination for Cause.  Either party, as applicable, shall have the right, in addition and without prejudice to any other rights or remedies, to terminate this Agreement and/or any Statement of Work as follows:

7.3.1 Upon written notice for material breach of this Agreement and/or any Statement of Work by the other party, which is not cured within sixty (60) days of receipt by the party in default of a written notice specifying the breach; or

7.3.2 Effective immediately upon written notice if (a) all or a substantial portion of the assets of the other party are transferred to an assignee for the benefit of creditors to a receiver or to a trustee in bankruptcy, (b) a proceeding is commenced by or against the other party for relief under the bankruptcy or similar laws, and such proceeding is not dismissed within sixty (60) days, or (c) the other party is adjudged bankrupt.  This Agreement and each Statement of Work sets forth a license to intellectual property rights within the meaning of 11 U.S.C. Section 365.

7.4 No Election of Remedies.  The election by either party to terminate this Agreement in accordance with its terms shall not be deemed an election of remedies, and all other remedies provided by this Agreement or available at law or in equity shall survive any termination.

  1. Effect of Termination. Upon the expiration or termination of this Agreement for any reason:

8.1 Payment of Outstanding Invoices.  All outstanding invoices shall become immediately due and payable; and Client shall pay all outstanding invoices to Proficio within five (5) days of the expiration of the Agreement or any notice of an earlier termination.

  • No Refunds. Proficio shall have no obligation to make any refunds to the Client.

8.3 Survival of Terms.  Each party will be released from all obligations to the other arising after the date of expiration or termination, except that expiration or termination of this Agreement will not relieve either party of its obligations under Sections 1.4, 1.6, 5, 7, 8 and 11.

8.4 Return of Confidential Information.  Except as provided below, each party will promptly return or destroy all Confidential Information of the other party and certify such return or destruction at the request of the other party.  Client shall not be required to return any Deliverables to Proficio. Neither party shall be required to delete any backup or other electronic storage of Proprietary Information to the extent reasonably impracticable or unduly burdensome;

8.5 Requests for Log Data Post Termination.  Should Client request log data after termination, Proficio will determine whether the logs requested exist.  Should they exist, both parties will follow the change of scope process defined in Section 3, and logs will be provided in accordance with a mutually agreed upon change order.  Such change order will be subject to the terms of this Agreement.

  1. Limitation of Liability.

9.1 IN NO EVENT SHALL PROFICIO OR ITS AFFILIATES BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT OR ANY STATEMENT OF WORK FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR SPECIAL DAMAGES AND/OR PUNITIVE DAMAGES, ARISING OUT OF THIS AGREEMENT OR ANY STATEMENT OF WORK, HOWEVER CAUSED AND WHETHER SUCH DAMAGES ARE BASED IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.2 IN NO EVENT SHALL PROFICIO, IT’S SUBSIDIARIES OR AFFILIATES’ AGGREGATE LIABILITY UNDER THIS AGREEMENT OR ANY STATEMENT OF WORK, INCLUDING WITHOUT LIMITATION ANY CLAIM FOR INDEMNIFICATION, EXCEED THE ACTUAL AMOUNTS RECEIVED BY PROFICIO FROM CLIENT IN ACCORDANCE WITH A PARTICULAR STATEMENT OF WORK THAT HAS CAUSED CLIENT’S CLAIM IN THE TWELVE (12) MONTHS PRECEDING THE EVENT CAUSING LIABILITY.

9.3 IN NO EVENT WILL PROFICIO HAVE ANY LIABILITY UNDER THIS AGREEMENT OR ANY STATEMENT OF WORK FOR AN ERROR, DEFECT OR ANY LIABILITY CLAIM BASED ON A THIRD-PARTY PLATFORM, SOFTWARE OR HARDWARE.  THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

  1. Warranty.

10.1 Warranty.  Subject to Section 10.2 below, Proficio warrants to Client that (a) the Services will be performed in a professional and workman-like manner and substantially in accordance with the relevant Statements of Work; and (b) for a period of thirty (30) days after delivery the Deliverables will conform in all material respects to the specifications set forth in the applicable Statement of Work.  Any claims with respect to the foregoing warranties must be reported in detail in writing to Proficio within thirty (30) days after Client first became aware of the claimed breach of warranty set forth in clause (a) hereinabove and within thirty (30) days after Proficio delivers the Deliverables to the Client with respect to clause (b) hereinabove (the “Warranty Period”).  If Client makes a warranty claim during the Warranty Period and the Services or the Deliverables, as the case may be, prove not to be in compliance with the applicable warranty, then Proficio shall have thirty (30) days, at Proficio’s sole election, to make commercially reasonable efforts to re-perform the applicable Services or to repair or replace the Deliverables, at no extra charge to Client.  Such re-performance of the Services or repair or replacement of the Deliverables shall be Proficio’s exclusive obligation and liability, and Client’s sole remedy, for any breach of any of the foregoing warranties.   Any modification of the Deliverables or the Services by anyone other than Proficio shall void the warranties provided hereunder and shall terminate any obligation of Proficio under this Section 10.1 to cure any breaches of warranty with respect to such Deliverables or Services.

10.2 WARRANTY DISCLAIMER.  EXCEPT AS EXPLICITLY OTHERWISE SET FORTH IN SECTION 10.1 ABOVE, ANY SERVICES AND DELIVERABLES PROVIDED BY PROFICIO HEREUNDER ARE DELIVERED “AS IS,” AND PROFICIO HEREBY EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NON-INFRINGEMENT.

  1. Compliance with Laws.

11.1 U.S. Export Restrictions.  Client acknowledges that the Services and the Deliverables and all related technical information, documents, and materials are subject to export control regulations, including without limitation, the U.S. Export Administration Regulations.  Client will (a) comply strictly with all legal requirements established under these controls, (b) cooperate fully with Proficio in any official or unofficial audit or inspection that relates to these controls, and (c) not export, re-export, divert or transfer, directly or indirectly, any such item or direct service thereof to Cuba, Iran, North Korea, Syria or Sudan, or otherwise in violation of any then-current U.S. Export Administration Regulation or Executive Order, non-U.S. law or regulation or any specific term of this Agreement.  Upon notice to Client, Proficio may modify this list to conform to changes in U.S. or other export control regulations.

11.2 Foreign Corrupt Practices Act.  Client agrees not to take any action that could place either party, or any of either party’s stockholders, directors, officers, employees, independent contractors or agents in violation of the Foreign Corrupt Practices Act (“FCPA”).  In particular, Client will not, directly or indirectly, make or promise to make payments or loans or give any other thing of value on behalf of Proficio or itself, or either of their stockholders, directors, officers, employees, independent contractors or agents to or for the use of any of the following persons for the purpose of influencing an act or decision in an official capacity or inducing an official to use influence in order to obtain business, retain business, or to direct business to Proficio or Client: any government official (including officials of government-owned enterprises); political party or party official; any candidate for public office; or any officer, employee, agent, or representative of any client or potential client of Proficio or Client.  Client will provide such certificates, questionnaire responses, or other information regarding its activities as Proficio, its auditors, or any party retained by or on behalf of Proficio to review compliance with the FCPA and other matters, may reasonably request.

11.3 U.S. Government Clients.  If a Client is a branch or agency of the United States Government, the following provision applies to such Client. The Services and any Deliverables are comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995) and are provided to the Government for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 (JUN 1995) and 227.7202-3 (JUN 1995).

11.4 General Data Protection Regulation.  To the extent that Proficio will be processing “Personal Data” subject to Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, repealing Directive 95/46/EC (General Data Protection Regulation) (“GDPR”) on behalf of the Client in the course of the performance of the Services Agreement with the Client the terms of Proficio’s Data Processing Addendum (available online at www.proficio.com/data-processing-addendum/) shall apply and are hereby incorporated into this Agreement.  Proficio may change the Data Processing Addendum at any time, without notice to Client, to ensure compliance with GDPR.

  1. Non-Solicitation. During the Term, and for a period of two (2) years thereafter, neither party will solicit to employ or employ, or solicit to engage as an independent contractor or engage as an independent contractor, or in any other capacity, any employee of the other party who has been involved in providing the Services and the Deliverables under this Agreement without the prior written consent of the other party. However, “solicit to employ or solicit to engage” will not be deemed to include recruitment advertising or job listings accessible to the general public.
  2. Force Majeure. Neither party will be liable for any failure or delay in performing an obligation under this Agreement that is due to causes beyond its reasonable control, such as natural catastrophes, governmental acts or omissions, laws or regulations, labor strikes or difficulties, riots, crime, terrorism, war, transportation stoppages or slowdowns or the inability to procure parts or materials. These causes will not excuse Client from paying amounts due and payable to Proficio through any available lawful means acceptable to Proficio.  If any of these causes continue to prevent or delay performance for more than thirty (30) days, Proficio may terminate this Agreement, effective immediately upon delivery of written notice to Client.
  3. Notices. Any notice, approval, consent or other communication required or permitted to be given by either party under this Agreement will be in writing and will be delivered to the address specified on the signature page to this Agreement (or an address specified by subsequent notice). Notices will be deemed effective (a) immediately, if delivered in person, (b) three (3) business days after deposit, postage prepaid, if mailed (registered or certified), (c) the next business day if sent by recognized overnight courier (e.g. FedEx), or (d) upon return to the sender of an automatic electronic receipt of delivery or upon any written confirmation of receipt, if sent by email.
  4. Assignment. Except as otherwise contemplated above, Client may not assign, delegate, sub-contract or otherwise transfer this Agreement or any of its rights or obligations without Proficio’s prior written consent. Any attempt by Client to do so without Proficio’s prior written consent will be void. Proficio may assign this Agreement and its rights and obligations hereunder (whether by operation of law, contract, or otherwise) without Client’s prior consent:  (a) to any individual or business entity controlling, controlled by or under common control with Proficio; (b) in the event of a merger, consolidation or the sale of all or substantially all of Proficio’s assets or stock; or (c) Proficio may assign the right solely to monies due or becoming due for financing purposes.  Any purported assignment in violation of this Section shall be null and void and a breach of this Agreement.  Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns.
  5. Modifications; Waiver. This Agreement may not be modified or amended except by a written instrument signed by both parties. The delay or failure of a party to enforce a provision in respect of any breach shall not be interpreted to be a waiver of that provision or any other provision or its right to enforce such provision or any other provision in respect of any other breach.  The waiver by any party to this Agreement of a breach of any provision of this Agreement shall not be deemed a continuing waiver or a waiver of any subsequent breach of any other provisions of this Agreement.
  6. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, in whole or in part, such holding will not affect the validity of the remaining valid, legal or enforceable portion of the provision or any other provisions of this Agreement, provided that the parties will endeavor in good faith to substitute for such an invalid, illegal or unenforceable provision a valid, legal and enforceable provision that most closely approximates its purpose, unless Proficio deems the invalid, illegal or unenforceable provision to be essential to this Agreement, in which case Proficio may terminate this Agreement, effective immediately upon notice to Client.
  7. Dispute Resolution.

18.1 General.  Except as contemplated under Section 18.3, any dispute, controversy or claim arising out of or relating to this Agreement or the existence, validity, breach or termination thereof, whether during or after its term, must be submitted to the appropriate authorized business representatives of each party for resolution.  Only if a dispute cannot be resolved by such authorized business representatives within thirty (30) days, or such other time as the parties may agree, then the parties may initiate binding arbitration as set forth in Section 18.2.

18.2 Legal Actions.   Any dispute, controversy or claim arising out of or relating to this Agreement or the existence, validity, breach or termination thereof, whether during or after its term, that is not resolved pursuant to Section 18.1 will be submitted for resolution exclusively under binding arbitration through JAMS under its expedited procedures in San Diego County, California.  The arbitration will be conducted in English.

18.3 Attorneys’ Fees and Costs.  In the event of litigation or arbitration between the parties arising out of or relating to this Agreement, the prevailing party will be entitled to recover costs and reasonable fees of attorneys, accountants and expert witnesses incurred by such a party in connection with the action or arbitration, including such costs and fees incurred because of any appeals.

18.4 Special Relief.  Nothing in this Section will prevent Proficio from seeking interim injunctive relief against Client or filing an action against Client to collect unpaid and past due amounts in any court of competent the courts having jurisdiction over the other party.  Each party agrees that any breach of Section 5 shall result in irreparable harm to the non-breaching party for which there is no adequate remedy at law, and the non-breaching party shall be entitled to seek equitable relief (including without limitation injunctive relief), without bond, in addition to any other rights or remedies it may have arising from such breach  from a court of competent jurisdiction.  All rights and remedies hereunder are cumulative, may be exercised singularly or concurrently and, unless otherwise stated herein, shall not be deemed exclusive.

  1. Governing Law. This Agreement shall be governed by and construed in accordance with the substantive and procedural laws of the State of California, U.S.A., excluding any conflict of laws principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.  Except for actions for injunctive or other equitable relief, which may be brought in any court of competent jurisdiction, the parties agree that the exclusive venue for any dispute arising under this Agreement shall be in the State Courts of the County of San Diego, California and the Federal Courts of the Southern District of California, and the parties hereby consent to the exclusive jurisdiction thereof.
  2. Entire Agreement. This Agreement, together with all attachments, change orders or other writing incorporated hereto, constitutes and contains the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any and all prior written and oral negotiations, correspondence, agreements, understandings, duties or obligations between the parties respecting the subject matter hereof and will be binding upon and inure to the benefit of the parties hereto and their successors and assigns.
  3. Names; Trademarks. No license is granted under this Agreement by either party for any use of its name, logos, trademarks, or service marks.
  4. Language. The original of this Agreement has been written in English, and the English version of this Agreement shall exclusively govern the rights and obligations of the parties in all respects. This Agreement may be translated into another language for convenience, provided that no version of this Agreement other than the original English version, even if signed by the parties, shall have any binding effect upon the parties.  Each party hereby waives any right it may have under the law of any country to have this Agreement written in any language other than English.
  5. Authority; Binding Effect; Approvals. Each party represents and warrants as follows: (a) it has read this Agreement and understands it; (b) it has had the opportunity to obtain the advice of an attorney regarding this Agreement; (c) it has the necessary power and authority under all applicable laws and regulations to enter into this Agreement and to perform its obligations set forth in this Agreement, including, as to Client, the obligation to pay Service fees; and (d) this Agreement constitutes a legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.