Terms & Conditions
These terms and conditions (the “Agreement”) govern the purchase and use of SIG Consultant, LLC’s (“SIG”) services by the Customer listed on the Order or Statement of Work that incorporates this Agreement.
GENERAL TERMS AND CONDITIONS
1. DEFINITION
1.1 “Deliverables” means any written reports, documents or materials that are created specifically for Customer as a result of the Professional Services provided hereunder.
1.2 “SIG Materials” means all SIG proprietary materials, Deliverables, intellectual property related to Services, (such as all rights in any software incorporated into a Solution or Service, copyrights, and patent, trade secret and trademark rights related to Services), any hardware and/or software used by SIG in performing Services, SIG’s processes and methods (including any forensic investigation processes and methods), materials distributed by SIG, and any SIG templates and/or forms, including report and presentation templates and forms. SIG Materials does not include Third Party Materials.
1.3 “Intellectual Property Rights” means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.
1.4 “Order” means a written purchase order or similar ordering document, signed or submitted to SIG or its authorized reseller by Customer and approved by SIG, under which Customer agrees to purchase Services.
1.5 “Professional Services” or “Services” means those security consulting services provided by SIG under a Statement of Work and/or set forth on an Order, which may consist of services such as deployment, configuration or installation services; proactive security consulting, vulnerability assessments or compromise assessments; or incident response or other remediation services.
1.6 “Statement of Work” or “SOW” means a mutually agreed-upon document between SIG and Customer, describing Professional Services, rates and timelines (if applicable) for those Professional Services, and incorporating this Agreement.
1.7 “Third Party Materials” means software or other components that are licensed to SIG by third parties for use in SIG’s Services.
2. ORDERS AND STATEMENTS OF WORK.
2.1 Orders. Customer may purchase Services by submitting an Order. If accepted by SIG, the “Order Effective Date” will be the date of the Order. All Orders will be governed by this Agreement.
2.2 Statements of Work. Each Statement of Work will incorporate and be governed by this Agreement. The “Statement of Work Effective Date” will be the date both Customer and SIG have agreed to the Statement of Work, either by executing the Statement of Work or by issuing and accepting an Order for the Professional Services described on the Statement of Work.
3. FEES AND PAYMENT.
3.1 Fees and Expenses. Customer agrees to purchase the Services for the prices set forth in each Order and/or Statement of Work, as applicable (“Fees”).
3.2 Payment. Customer will make full payment without set-off and in immediately available funds, within thirty (30) days of the date of each invoice. All Fees are non-cancelable and non-refundable. All Fees described on an Order or in a Statement of Work will be fully invoiced in advance, unless otherwise agreed by SIG. Any partial fulfillment by SIG may be invoiced or delivered individually. If any payment is more than thirty (30) days late, SIG may, without limiting any remedies available to SIG, terminate the applicable Order or Statement of Work or suspend performance until payment is made current, and all payments then due will accelerate and become immediately due and payable. Customer will pay interest on all delinquent amounts at the lesser of 1.5% per month or the maximum rate permitted by applicable law.
3.3 Increases. SIG reserves the right to increase Fees at any time upon notice to Customer.
4. INTELLECTUAL PROPERTY.
4.1 Ownership of SIG Materials; Restrictions. All Intellectual Property Rights in SIG Materials, Deliverables and Services belong exclusively to SIG and its licensors. Customer will not (and will not allow any third party to): (i) disassemble, decompile, reverse compile, reverse engineer or attempt to discover any source code or underlying ideas or algorithms of any SIG Materials; (ii) sell, resell, distribute, sublicense or otherwise transfer, the SIG Materials; or (iii) reproduce, alter, modify or create derivatives of the SIG Materials. SIG may audit Customer’s use of Services to ensure compliance with the terms of this Agreement.
5. WARRANTIES.
5.1 Services Warranty. SIG warrants to Customer that Services will be performed in a professional manner in accordance with industry standards for like services. If Customer believes the warranty stated in this Section has been breached, Customer must notify SIG of the breach no later than thirty (30) days following the date the Services were performed, and SIG will promptly correct or re-perform the Services, at SIG’s expense.
5.2 Remedies Exclusive. Above are the sole remedies, and SIG’s sole obligation, with respect to Services that fail to comply with the foregoing warranties.
5.3 Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ALL SIG MATERIALS, DELIVERABLES AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER. SIG AND ITS SUPPLIERS EXPRESSLY DISCLAIM, TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. SIG ALSO MAKES NO WARRANTY REGARDING NONINTERRUPTION OF USE, AND MAKES NO WARRANTY THAT SIG MATERIALS, DELIVERABLES, OR SERVICES WILL BE ERROR-FREE.
6. INDEMNIFICATION.
6.1 SIG Indemnification. SIG shall defend Customer, and its officers, directors and employees, against any third-party action alleging that the SIG Materials infringes a valid U.S. patent or copyright issued as of the date of delivery or performance, as applicable, and SIG shall pay all final judgments and costs (including reasonable attorneys’ fees) finally awarded against such party in connection with such action. THIS SECTION 6.1 IS SUBJECT TO SECTION 7 BELOW AND STATES THE ENTIRE LIABILITY OF SIG AND CUSTOMER’S SOLE REMEDY WITH RESPECT TO ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES, SIG MATERIALS, OR DELIVERABLES.
6.1.1 Exceptions. SIG shall have no indemnification obligations with respect to any action arising out of: (i) the use of any Deliverable, or Service, or any part thereof; (ii) any modification of the Deliverables, or Services not performed or expressly authorized by SIG; or (iii) the use of any the Deliverables, or Services other than in accordance with this Agreement; (iv) the actions of any third-party independent contractors performing Services.
6.1.2 Indemnification Process. The indemnification obligations shall be subject to Customer: (i) notifying SIG within ten (10) days of receiving notice of any threat or claim in writing of such action; (ii) giving SIG exclusive control and authority over the defense or settlement of such action; (iii) not entering into any settlement or compromise of any such action without SIG’s prior written consent; and (iv) providing reasonable assistance requested by SIG.
6.2 Customer Indemnification. Customer agrees to defend, indemnify, and hold harmless SIG, its parent, subsidiaries, affiliates, and supported entities, and their respective directors, officers, employees, agents, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, expenses, and fees (including attorneys’ fees and expenses) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses, or actions in respect thereof, arise from claim resulting from, due to, or based upon: (i) the actions, omissions, negligence, willful misconduct, or fraud of Customer; (ii) violation of applicable law or regulation by Customer; (iii) violation of any third party’s intellectual property rights by Customer; or (iv) breach of the SOW or default hereunder by Customer.
7. LIMITATION OF LIABILITY.
7.1 Consequential Damages Waiver. IN NO EVENT WILL SIG BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS AND LOST SAVINGS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT SIG WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
7.2 Limitation of Monetary Damages. SIG’S TOTAL LIABILITY ARISING OUT OF ANY AGREEMENT, THE SERVICES, THE SIG MATERIALS AND DELIVERABLES SHALL BE LIMITED TO THE TOTAL AMOUNTS RECEIVED BY SIG FOR THE RELEVANT SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST OCCURRENCE OF THE EVENTS GIVING RISE TO SUCH LIABILITY.
7.3 Applicability. THE LIMITATIONS AND EXCLUSIONS CONTAINED HEREIN WILL APPLY ONLY TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, AND NOTHING HEREIN PURPORTS TO LIMIT EITHER PARTY’S LIABILITY IN A MANNER THAT WOULD BE UNENFORCEABLE OR VOID AS AGAINST PUBLIC POLICY IN THE APPLICABLE JURISDICTION.
8. COMPLIANCE WITH LAW.
8.1 Compliance with Law. Each party will comply with all laws and regulations applicable to it with respect to the Services, including all export control regulations and restrictions that may apply to the Services.
9. CONFIDENTIAL INFORMATION.
9.1 Confidential Information. “Confidential Information” means the non-public information that is exchanged between the parties, provided that such information is: (i) identified as confidential at the time of disclosure by the disclosing party (“Discloser”); or (ii) disclosed under circumstances that would indicate to a reasonable person that the information should be treated as confidential by the party receiving such information (“Recipient”). The terms of any commercial transaction between the parties (including pricing related to the Services) shall be considered Confidential Information.
9.2 Maintenance of Confidentiality. Each party agrees that it shall: (i) take reasonable measures to protect the Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Confidential Information as the Recipient uses to protect its own confidential information of a like nature; (ii) limit disclosure to those persons within Recipient’s organization with a need to know and who have previously agreed in writing, prior to receipt of Confidential Information either as a condition of their employment or in order to obtain the Confidential Information, to obligations similar to the provisions hereof; (iii) not copy, reverse engineer, disassemble, create any works from, or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information and/or which are provided to the party hereunder; and (iv) comply with, and obtain all required authorizations arising from, all U.S. and other applicable export control laws or regulations. Confidential Information shall not be used or reproduced in any form except as required to accomplish the purposes and intent of an Order or Statement of Work. Any reproduction of Confidential Information shall be the property of Discloser and shall contain all notices of confidentiality contained on the original Confidential Information.
9.3 Exceptions. The parties agree that the foregoing shall not apply to any information that Recipient can evidence: (i) is or becomes publicly known and made generally available through no improper action or inaction of Recipient; (ii) was already in its possession or known by it prior to disclosure by Discloser to Recipient; (iii) is independently developed by Recipient without use of or reference to any Confidential Information; or (iv) was rightfully disclosed to it by, or obtained from, a third party. Recipient may make disclosures required by law or court order provided that Recipient: (a) uses diligent efforts to limit disclosure and to obtain, if possible, confidential treatment or a protective order; (b) has given prompt advance notice to Discloser of such required disclosure; and (c) has allowed Discloser to participate in the proceedings.
9.4 Injunctive Relief. Each party will retain all right, title and interest to such party’s Confidential Information. The parties acknowledge that a violation of the Recipient’s obligations with respect to Confidential Information may cause irreparable harm to the Discloser for which a remedy at law would be inadequate. Therefore, in addition to all remedies available at law, Discloser shall be entitled to seek an injunction or other equitable remedies in all legal proceedings in the event of any threatened or actual violation of any or all of the provisions hereof.
9.5 Return of Confidential Information. Within thirty (30) days after the date when all Orders and SOWs have expired or been terminated, or after any request for return of Confidential Information, each party will return to the other party or destroy all of such other party’s Confidential Information, at such other party’s discretion, and, upon request, provide such other party with an officer’s certificate attesting to such return and/or destruction, as appropriate.
10. TERM AND TERMINATION.
10.1 Term. This Agreement will become effective on the Effective Date and will terminate on the earlier of the date SIG completes the Services required; or the date a party terminates as provided in Section 10. SIG may amend or modify any of the terms and conditions of this Agreement from time to time.
10.2 Termination for Material Breach. Either party may terminate any Order or any SOW upon written notice of a material breach of the applicable Order or SOW by the other party as provided below, subject to a thirty (30) day cure period. If Customer terminates any Order or SOW as set forth in this Section, Customer will pay any amounts owing for Professional Services and Deliverables provided under that SOW up to and including the date of termination.
10.4 Effect of Termination. The provisions of Section 3 (Payment), Section 4 (Intellectual Property), Section 5 (Disclaimer of Warranties), 7 (Limitation of Liability), 8 (Compliance with Law), 9 (Confidential Information), and 11 (Miscellaneous), and all accrued payment obligations, shall survive the termination of all Orders and SOWs and the relationship between SIG and Customer.
11. MISCELLANEOUS.
11.1 Assignment. Customer may not assign any Order or Statement of Work, or any rights or obligations thereunder, in whole or in part, without SIG’s prior written consent, and any such assignment or transfer shall be null and void.
11.2 Entire Agreement. This Agreement along with any Order or Statement of Work is the entire agreement of the parties with respect to the services and supersedes all previous or contemporaneous communications, representations, proposals, commitments, understandings and agreements, whether written or oral, between the parties regarding the subject matter thereof. This Agreement may be amended only in writing signed by authorized representatives of both parties.
11.3 Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.
11.4 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois. The parties agree that the exclusive venue for any claim or action brought pursuant to the Agreement, shall be the state or federal courts located in DuPage County, Illinois.
11.5 Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable under the laws of any jurisdiction, the provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
11.6 Waiver. The waiver of a breach of any provision of this Agreement shall not constitute a waiver of any other provision or any subsequent breach.