1. Agreement. It is agreed that Lodestone Security LLC (“Lodestone”) will provide the consulting services (the “Services”) described in the accompanying statement of work (the “SOW”) to which this Exhibit A is attached (the SOW and this Exhibit A are hereinafter referred to collectively as this “Agreement”), to the client named in the SOW (the “Client”), as an independent contractor, provided that Client pays, in a timely manner, all of the fees and expenses set forth in this Agreement. This Agreement constitutes the entire and sole agreement between Client and Lodestone and merges all prior and contemporaneous communications with respect to the subject matter hereof. In the event of any conflict, ambiguity or inconsistency between this Exhibit A and any other document to which this Exhibit A may be annexed or which may be annexed to this Exhibit A, including any terms and conditions on Client’s purchase orders or otherwise, the terms and conditions of this Exhibit A shall govern. This Agreement shall not be modified except by a later written agreement signed by both parties.
2. Term and Termination. Subject to earlier termination as provided below, this Agreement will commence on the date that the SOW is signed by Client and will expire when the Services have been performed and Client has paid Lodestone in full for the Services. Either party may terminate this Agreement (a) in the event of a material breach of this Agreement by the other party (which shall include any failure by Client to make timely payment of any fees due under this Agreement), which breach is not cured within ten business days after written notice by the non-breaching party, or (b) for any other reason by giving ten business days’ prior written notice. Client shall pay Lodestone for all fees and expenses incurred through the effective date of termination. Notwithstanding any other provision of this Agreement, the following provisions of this Agreement will survive any termination of this Agreement: Section 5 (Taxes and Payment), Section 6 (Non-Solicitation of Personnel), Section 7 (Confidentiality), Section 8 (Proprietary Rights and Deliverables), Section 10 (Warranty and Liability), and Section 11 (Governing Law; Dispute Resolution; Equitable Relief).
3. Changes and Delays. Client may make changes in the scope, timing or manner of providing the Services, provided that any such change shall be subject to the written approval of Lodestone, which approval may be conditioned upon, among other things, an adjustment to the consideration payable to Lodestone hereunder. In the event that a party’s performance is delayed or suspended as a result of circumstances beyond its reasonable control, such as an act of God, change of law, or failure by Client to supply Lodestone with adequate resources or information, and without its fault or negligence, then the period of performance and term of this Agreement shall be extended to the extent of any such delay and neither party shall incur any liability to the other party as a result of such delay or suspension.
4. Independent Consultant. Lodestone at all times shall act as an independent contractor and not as an agent or employee of Client and nothing in this Agreement shall in any way be construed to constitute Lodestone as an agent, employee or representative of Client. Lodestone shall retain sole and absolute discretion, control and judgment regarding the manner and means of performing the Services. Except as may be separately agreed in writing by Client and Lodestone, Lodestone shall have no authority to act as an agent or enter into written or verbal agreements or any other understanding on the Client’s behalf. Lodestone understands and agrees that it shall not be entitled to any of the rights and privileges established by Client for its employees, including, but not limited, to retirement benefits, medical, life insurance or disability coverage, severance pay, and paid vacation or sick pay.
5. Taxes and Payment. Any applicable taxes incurred in connection with the Services or Deliverables (except for taxes imposed on income received by Lodestone) will be billed to, and paid by, Client, in addition to fees and expenses. Payment by Client of Lodestone’s fees, expenses and any applicable taxes shall be due within 30 days of Lodestone’s invoice unless otherwise specified in the SOW. Lodestone may change the address to which payments are to be sent by Client at any time by giving Client written notice of such change. If any amount is not paid within 30 days after it becomes due, Client shall also pay Lodestone interest on that amount for the period from its due date until it is paid in full. That interest shall be calculated at a rate equal to 1% per month (or the maximum rate permitted by applicable law, if lower), and shall be payable on demand.
6. Non-Solicitation of Personnel. During the term of this Agreement and for a period of one year following its expiration or termination, neither party shall directly or indirectly approach, counsel, or attempt to induce any person who is then an employee or independent consultant of the other party to terminate his or her employment with or engagement by the other party, or employ, engage or attempt to employ or engage any such person. Notwithstanding this paragraph, either party shall not be precluded from hiring any person (i) who responds to any general solicitation or advertisement, (ii) who contacts such party on his/her own initiative without any direct or indirect solicitation or encouragement from such party, other than any general solicitation or advertisement, or (iii) whose employment with such party is terminated by such party.
7. Confidentiality. Neither party shall disclose Confidential Information (as defined below) of the other party without the prior written consent of such other party (which may be given by e-mail); provided however, that either party may disclose the Confidential Information to such of their directors, officers, employees, members, managers, professional advisors, co-investors and affiliates as have a legitimate need to know such information for purposes of exercising such party’s rights or performing such party’s obligations under this Agreement (all such parties to whom disclosure is so permitted, “Permitted Recipients”). Each party shall be responsible for any disclosure of Confidential Information by its Permitted Recipients as if it had made such disclosure itself. The receiving party shall use the same degree of care as it uses to protect the confidentiality of its own confidential information of like nature, but no less than a reasonable degree of care, to maintain in confidence the Confidential Information of the disclosing party. The foregoing obligations shall not prohibit a party from disclosing or using information as reasonably necessary in connection with asserting or defending any dispute, claim or action between the parties. If either party (the “Required Party”) is required by law, subpoena or other legal process to disclose any Confidential Information, the Required Party will promptly notify the other party in writing of any such requirement, unless prohibited by law, so that the other party may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. The Required Party will reasonably cooperate with the other party to obtain such a protective order or other remedy. If such order or other remedy is not obtained, or the other party waives compliance with the provisions of this Agreement, the Required Party will disclose only that portion of the Confidential Information which it is advised by counsel in writing that it is legally required to so disclose and will advise of the confidential nature of the information disclosed and will request reasonable assurance that such information will be treated confidentially. “Confidential Information” means information related to the subject matter of the SOW, any of the projects thereunder (including any third party information), or the business of the disclosing party, which (a) derives economic value, actual or potential, from not being generally known to or readily ascertainable by other persons who can obtain economic value from the disclosure or use of the information, and (b) is the subject of efforts by the disclosing party or owner of the third party Confidential Information that are reasonable under the circumstances to maintain the secrecy of the information. Without limiting the generality of the foregoing, the Deliverables (as defined below) shall constitute Confidential Information of Lodestone. Confidential Information shall not include any information that (i) was publicly known or made generally available prior to the time of disclosure to the receiving party, (ii) becomes publicly known or made generally available after disclosure to the receiving party through no wrongful action or inaction of the receiving party, (iii) is in the rightful possession of the receiving party, without confidentiality obligations, at the time of disclosure as shown by the receiving party’s then-contemporaneous written records, or (iv) is developed independently by the receiving party without the use of the Confidential Information. The obligations of confidentiality hereunder shall continue for a period of three years from the date of the last disclosure of Confidential Information hereunder.
8. Proprietary Rights and Deliverables. All rights, title and interest, including, without limitation, copyrights, trade secrets and other proprietary and intellectual property rights in and to the materials created by Lodestone for Client hereunder or otherwise delivered to Client in connection with the Services (the “Deliverables”), and all knowledge, experience and know-how (including processes, ideas, concepts and techniques) used or acquired by Lodestone in the course of performing the Services, shall be and remain the sole property of Lodestone or its licensors, subject to the license provided below. Upon payment of all amounts payable under the SOW, Lodestone hereby grants to Client a perpetual, worldwide, non-exclusive, non-transferable, non-sublicenseable, paid-up, limited license to use, copy and modify the Deliverables for internal purposes only.
9.Compliance with Laws. Lodestone agrees to comply with all applicable U.S. federal, state, county and local laws in connection with the performance of the Services, including, without limitation, the Foreign Corrupt Practices Act.
10.Warranty and Liability.
- 10.1: Lodestone will exercise due professional care and competence in the performance of the Services. Client must provide Lodestone with written notice of any deficiencies in any of the Services within 30 days of performance of such Services. Client’s sole remedy, and Lodestone’s sole obligation, for any breach of the foregoing warranty shall be reperformance of the deficient Services.
- 10.2: To the fullest extent permitted by applicable law, the total aggregate liability of Lodestone, regardless of whether such liability is based on breach of contract, tort, strict liability, breach of warranties, failure of essential purpose or otherwise, under this Agreement or with respect to the Services shall be limited to the fees paid to and retained by Lodestone under this Agreement.
- 10.3: In no event will Lodestone or Client be liable for consequential, incidental, indirect, punitive or special damages (including loss of profits, data, business or goodwill), regardless of whether such liability is based on breach of contract, tort, strict liability, breach of warranties, failure of essential purpose or otherwise, and even if advised of the likelihood of such damages.
- 10.4: EXCEPT AS SET FORTH IN SECTION 10.1, LODESTONE MAKES NO WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR WARRANTIES OF ANY PRODUCTS OR SERVICES, OR THE APPROPRIATENESS OF CLIENT OR THIRD-PARTY SPECIFICATIONS. Client acknowledges that it is a sophisticated party to this Agreement and recognizes and agrees that the terms of this Section 10 are an integral part of Lodestone’s pricing and an important factor in Lodestone’s willingness to enter into this Agreement.
11. Governing Law; Dispute Resolution; Equitable Relief.
- 11.1: This Agreement shall be governed by and construed in accordance with the internal laws of the State of Connecticut, without regard to its principles of conflicts of laws. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Claims shall be heard by a single arbitrator. The place of arbitration shall be Stamford, Connecticut. The arbitrators will have no authority to award punitive or other damages not measured by the prevailing party’s actual damages, except as may be required by statute. The arbitrator(s) shall not award consequential damages in any arbitration initiated under this section.
- 11.2: Notwithstanding anything to the contrary contained in Section 11.1, either party, in the event of any breach by the other party of any obligation hereunder involving the protection of intellectual property or confidential information, or non-interference in employment or business relationships (including without limitation Sections 6, 7 and 8 hereof), may seek, in any court having proper jurisdiction, specific performance, injunctive or other types of equitable relief, as applicable.
- 11.3: Client acknowledges and agrees that it is executing this Agreement voluntarily and without any duress or undue influence by Lodestone or anyone else. Client further acknowledges and agrees that it has asked any questions needed to understand the terms, consequences and binding effect of this Agreement and fully understand it, including that pursuant to this Agreement Client is waiving its right to a jury trial. Finally, Client agrees that it has been provided an opportunity to seek the advice of an attorney of its choice before signing this Agreement.
12. Severability. If any portion of this Agreement is held to be void, invalid or otherwise unenforceable, in whole or part, the remaining portions of this Agreement shall remain in effect.
13. No Third Party Beneficiaries. The Services and Deliverables are for the sole benefit of the Client. Nothing in this Agreement shall be construed to create any duty to, standard of care with reference to, any liability to, or any right of suit or action in, any person not a party to this Agreement. Without limiting the generality of the foregoing, no third party may rely upon any Deliverables without the prior written consent of Lodestone.
14. Assignment and Subcontracting. Neither party may assign this Agreement or any of its rights or duties hereunder except (i) to another party that succeeds to all or substantially all of the assets and business of such party and that agrees to be bound by the terms hereof or (ii) with the consent of the other party. Notwithstanding the foregoing, Lodestone may subcontract the performance of any of its duties or obligations under this Agreement to any person or entity, provided that Lodestone uses commercially reasonable efforts to subcontract only to persons or entities that have the requisite skills to perform the subcontracted obligations. In such event, Lodestone shall be responsible and liable for the acts and omissions of each subcontractor (including its employees) to the same extent as if such acts or omissions were by Lodestone or its employees and shall be responsible for all fees and expenses payable to any subcontractor.