REDSPIN MASTER TERMS & CONDITIONS

These Master Terms and Conditions (these “Terms“) are made by and between CTEK Security, Inc., a Texas corporation, dba Redspin (“Redspin“), with its principal place of business at 11940 Jollyville Road, Suite 300-N, Austin, TX 78759, and the client identified in the preamble and/or signature block (“Client“) of each Statement of Work (each, an “SOW“). These Terms are incorporated in full into each SOW and constitute one and the same agreement (such SOW and these Terms, together with any exhibits, schedules, change orders, or amendments hereto or thereto, the “Agreement“). By executing a SOW, Client agrees to and is bound by these Terms. The Agreement is effective as of the last date of execution (the “Effective Date“) of an applicable SOW. Redspin and Client are referred to herein individually as a “party” and collectively the “parties.”

These Terms and the SOW. By executing an applicable SOW, Client agrees to these Terms and that these Terms legally bind the parties. Client may purchase services from Redspin by signing an SOW that must also be signed by Redspin, which services and SOW are governed by these Terms, unless and only to the extent specifically stated otherwise in an applicable SOW.
Services. Redspin shall perform the services described in an SOW, and Client shall pay the Fees (as defined below) to Redspin for the services. Client may purchase services for any of its affiliated entities (“Affiliates“) under an SOW by listing therein the name of the Affiliates that will receive services and describing the services, provided, however, that Client hereby agrees that Client and Affiliates shall be jointly and severally liable for payment of Fees and Taxes (as defined below) for Redspin’s services to Affiliates under an SOW, and further provided, that Client shall be liable for the acts and omissions of Affiliates constituting a breach of the Agreement the same as if Client had committed such acts or omissions. Client represents and warrants that it is authorized to order services for Affiliates and to obligate Affiliates to the terms of the Agreement.
Business Associate Agreement. If Client requires Redspin to sign a business associate agreement, Redspin and Client shall execute such agreement, which when executed by the parties, shall be included in and incorporated into the Agreement by this reference.
Performance. Redspin shall perform the services described in an SOW, in substantial conformity with these express Terms, and in a professional, workmanlike manner.
Payment.
1. Fees. In consideration of Redspin’s performance of the services under an SOW, Client shall pay Redspin the fees described in the SOW (“Fees“), plus taxes applicable to such services (“Taxes“). Unless otherwise described in an SOW, Client agrees to pay Redspin’s invoices within 30 days of the date of delivery of an invoice. Client will not have the right to withhold payment due to Redspin, except when Client reasonably disputes Fees or Taxes by delivering written notice to Redspin within such 30 day period and pays all other undisputed Fees and Taxes in accordance with these Terms and, in such event, the parties shall use commercially reasonable efforts to resolve the disputed Fees and Taxes. In no event will Client be liable to Redspin for Fees for more than the amount described in an applicable SOW, except if agreed to in writing by the parties.
2. Taxes. The Fees are exclusive of Taxes. Redspin shall separately itemize Fees and Taxes on its invoices, deliver invoices to Client, and Client shall pay Fees and Taxes to Redspin in full. Redspin shall apply Client’s payments to amounts due for Fees before Taxes. Redspin will remit remaining amounts paid by Client to Redspin for Taxes to the appropriate taxing authorities. Client shall be liable for any shortfalls resulting from non-payment of amounts due for Taxes.
3. Tax-Exemption. If Client or its Affiliates are exempt from Taxes for the services under an SOW, then upon execution of the Agreement, Client will deliver to Redspin a copy of applicable tax-exemption certificates for itself and Affiliates. Client shall deliver to Redspin updates or changes to such tax-exemption certificates. Unless Client delivers valid tax-exemption certificates, Client and Affiliates shall be liable for Taxes. Redspin will assume no responsibility for Taxes that are not invoiced and collected by Redspin in reliance on Client’s and Affiliates’ tax-exemption certificates.
Change Orders. Client may request changes to the services listed in an applicable SOW, whether for new, additional, or modified services. Changes to the services listed in an applicable SOW require a written change order, amendment, or addendum to an SOW (“Change Order“). Client acknowledges and agrees that Change Orders may result in changes to the scope of services, Fees, Taxes, and deliverables dates. For the avoidance of doubt, no Change Order will be valid unless signed by both parties.
Term and Termination. The term of the Agreement shall begin on the Effective Date and remain in effect until the applicable SOW expires or terminates in accordance with its terms, or as set forth herein (“Term“). The Agreement may be terminated as follows: (a) as required by law; (b) by mutual written agreement of the parties; (c) 30 days after a non-breaching party has delivered written notice of a breach of the Agreement to the breaching party, and such breach remains uncured (provided that such 30 day period may be extended upon the mutual written agreement of the parties); (d) as stated in an SOW; or (e) upon the parties’ having fully performed their respective obligations under an applicable SOW. The following Sections of these Terms shall survive any expiration or termination of the Agreement for any reason: 5, 7, 11, 12, 13, 14, 15, 16, 19, and 20.
Relationship. The Agreement is non-exclusive, meaning Client may contract with other vendors for services the same or similar to the services under the Agreement, and Redspin may provide services the same or similar to the services under the Agreement to third parties, including Client’s competitors. At all times during the Term of the Agreement, Client and Redspin shall be independent contractors in fact and law, and not in an employer-employee or other agency relationship. Neither party shall hold itself out as an employee, joint venturer, agent, representative, or partner of the other party, and neither party shall have any power or authority to incur any debt, obligation, or liability on behalf of the other party.
Personnel.
1. Employees. Except as prohibited by applicable law, Redspin conducts pre-employment screening and background checks on its employees, including those who may be assigned to perform services under the Agreement for Client. Such screening and checks may include social security number traces, national sex offender registry searches, seven-year county criminal background checks from all residences listed by such employee, 10 panel drug test, U.S. government excluded parties search (Office of Inspector General), education verification, professional license verification (if required for the position), and driving record (if required for the position).
2. Contractors. In some cases at Redspin’s discretion, Redspin may contract with third party contractors (“Contractors“) to perform services for Client under an SOW. As between Redspin and Client, Redspin shall assume responsibility for the payment of any compensation and expenses to Contractors who perform services for Client under an SOW. In Redspin’s agreements with Contractors who will perform services for Client under an SOW, Redspin shall require Contractors to agree in writing to comply with the express obligations in these Terms and every applicable SOW regarding safety, security, confidentiality, and Protected Health Information (“PHI“). Redspin shall be liable for the acts and omissions of Contractors constituting a breach of the Agreement the same as if Redspin had committed such acts or omissions.
Insurance. During the Term of the Agreement, Redspin shall maintain at Redspin’s sole expense the following insurance coverages: (a) Professional Services Errors & Omissions Liability insurance (which includes Cyber Liability) with a limit of not less than $5,000,000 per claim and $5,000,000 in the annual aggregate; (b) Commercial General Liability insurance, insuring against bodily injury, property damage, contractors’ completed operations and contractual liability with a combined single limit of not less than $1,000,000 per claim and $2,000,000 in the annual aggregate; (c) Workers’ Compensation insurance in amounts required in accordance with applicable laws within the state the services are being performed; and (d) Automotive Liability covering all vehicles owned, non-owned, hired and leased while used on Client’s business premises with minimum automotive liability insurance limits of $1,000,000 per claim and $1,000,000 in the annual aggregate to cover civil, regulatory, and statutory damages as a result of actual or alleged breach, violation or infringement of right to privacy, consumer data protection law, confidentiality or other legal protection for personal information. Redspin shall provide Client with a copy of the certificates of insurance required under this Section upon written request to evidence Redspin’s compliance with the terms of the Agreement.
Confidentiality.
1. Defined. Confidential Information includes any confidential or proprietary information of a party including these terms and the contents of any SOW, trade secrets, methods, systems, lists of a party’s customers and potential customers, vendors, suppliers, contractors, and employees, reports, pricing and pricing methodology, market plans and strategies, intellectual property, information contained in requests for proposal, request for pricing, request for quote and the like, and other such information in whatever form (the foregoing in this Section, “Confidential Information“), whether or not marked as confidential. Each party shall maintain the other party’s Confidential Information as confidential during the Term of the Agreement and after its termination or expiration.
2. Exceptions. Confidential Information shall not include, and no obligation shall apply to, information that: (i) is now or subsequently becomes generally available to the public through no fault of a party that receives Confidential Information (“Receiving Party“); (ii) is independently developed by Receiving Party without the use of any Confidential Information provided by a disclosing party (“Disclosing Party“); or (iii) is rightfully obtained from a third party who has the right, without obligation to Disclosing Party, to transfer or disclose such information.
3. No Disclosures. Receiving Party shall not disclose Disclosing Party’s Confidential Information to any third-party person or entity without Disclosing Party’s written consent.
4. Permitted Disclosures. Receiving Party may disclose Disclosing Party’s Confidential Information if required by applicable law, court order, or subpoena, provided that Receiving Party (a) gives Disclosing Party prompt written notice so that Disclosing Party may have an opportunity to the extent practicable under the circumstances to seek court protection, and (b) limits disclosures of Confidential Information only to the extent reasonably required by law.
5. Aggregated Data. Client acknowledges and agrees that: (i) Redspin may collect, compile, and aggregate non-personally identifiable data arising out of the services and Deliverables (as defined below) that Redspin provides to Client (“Aggregated Data“); and, (ii) Redspin may disclose Aggregated Data to third parties without being in breach of the Agreement or any applicable law.
6. Return of Confidential Information. Except as expressly stated in the Agreement: (i) Disclosing Party shall retain all right, title, interest, and licenses in and to its Confidential Information; (ii) nothing in the Agreement shall confer any right, title, interest, or licenses in and to Disclosing Party’s Confidential Information to Receiving Party; and, (iii) upon expiration or termination of the Agreement for any reason, Receiving Party shall, at Disclosing Party’s election, return the Confidential Information, or use commercially reasonable efforts to purge and destroy the Confidential Information and all copies thereof in whatever form or media. Notwithstanding the foregoing, Receiving Party may retain one copy of Confidential Information for archival purposes only for a period as Receiving Party reasonably determines is necessary, and in such case Receiving Party shall hold such Confidential Information pursuant to the terms of the Agreement.
Deliverables and Intellectual Property. Provided Client is not in breach of the Agreement: (a) Client shall own all right, title, and interest in and to the Deliverables, but Client shall not own any of Redspin’s Intellectual Property (defined below) contained or embedded in the Deliverables; and (b) if the Deliverables contain Redspin’s Intellectual Property, Redspin grants to Client a non-exclusive, perpetual license to use Redspin’s Intellectual Property in the Deliverables to use the Deliverables for Client’s internal purposes only (“License“). Client shall not commercialize or disclose to any third party the Deliverables or any of Redspin’s Intellectual Property, and Client shall not copy, distribute, commercialize, or reverse engineer the Deliverables or any of Redspin’s Intellectual Property, in whole or in part, except as expressly authorized in the Agreement. Except as expressly stated in these Terms or an SOW, Redspin conveys no rights to Client; and, all rights not expressly conveyed by Redspin under these Terms or an SOW are expressly reserved to Redspin. Redspin shall retain the right to create deliverables the same or similar to the Deliverables for itself or third parties, and Redspin shall exclusively retain all right, title, interest, and license in and to Intellectual Property. “Deliverables” means a report of findings which Redspin creates for Client under an SOW. Redspin’s “Intellectual Property” means all processes, systems, methods, questionnaires, know-how, proprietary information, trade secrets, patents, patents pending, trademarks, service marks, copyrights, and any other intellectual property, in whole or in part, that Redspin used to perform the services and to create Deliverables, excluding Client’s intellectual property or confidential information contained or embedded in the Deliverables.
Non-Solicitation. Except as the parties may agree in writing, to the maximum extent permitted by applicable law, during the Term of the Agreement and for one year following expiration or termination of the Agreement for any reason, neither party shall directly or indirectly employ, solicit for employment or contract, or recommend for employment or contract any person or entity who was employed or contracted by the other party during the Term of the Agreement. Each party acknowledges and agrees that the restrictive covenants in this Section shall be enforced as written and, in any other event, to the greatest extent in time, territory, and degree as permitted by applicable law. Without limitation as to a party’s other rights under the Agreement, at law, or in equity, in the event of an actual or a threatened breach of this Section, a party shall be entitled to seek an injunction restraining the other party from continuous or anticipated commission of such breach, other appropriate relief, and the party’s reasonable costs, fees, and expenses, including attorneys’ fees and court costs. No party shall be in breach of this Section to the extent it receives replies from persons as a result of a general solicitation, such as an on-line or newspaper job posting or advertisement.
Representations and Warranties. Each party represents and warrants to the other party as of the Effective Date and during the Term of the Agreement the following: (a) it is under no restriction to enter into the Agreement, and, (b) it shall comply with all applicable federal, state, and local laws in the performance of services and operation of its business, as applicable. Further, Redspin warrants that any services provided hereunder and under any related SOW shall be performed in a professional and workmanlike manner in accordance with generally accepted industry standards.
Indemnification. A party as the indemnifying party (“Indemnifying Party“) shall indemnify, defend, and hold harmless the other party and the other party’s affiliates, and its shareholders, directors, members, managers, officers, employees, contractors, representatives, agents, suppliers, customers, attorneys, insurers, successors in interest, and assigns (each of the foregoing, an “Indemnified Party“) from and against any and all claims or liability (collectively, “Claims“) of a third party directly arising out of or in connection with (a) the Indemnifying Party’s breach of a representation or warranty in the Agreement; or (b) the Indemnifying Party’s breach of the Agreement that results in death, bodily injury, or property damage. The indemnity obligations in this Section shall not apply to the extent of an Indemnified Party’s negligence.
Disclaimers, Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT FOR A PARTY’S GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT, INDEMNITY OBLIGATIONS, FEES PAYABLE BY CLIENT TO REDSPIN UNDER THE AGREEMENT, OR ATTORNEYS’ FEES RECOVERABLE UNDER THE AGREEMENT:
1. IN NO EVENT WILL EITHER PARTY BE LIABLE HEREUNDER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE AGREEMENT, INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS OR BUSINESS INTERRUPTION, WHETHER ARISING IN TORT, INCLUDING NEGLIGENCE, CONTRACT, OR ANY OTHER LEGAL THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. EACH PARTY’S MAXIMUM CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THE AGREEMENT WILL BE LIMITED TO THE AMOUNTS PAID OR PAYABLE BY CLIENT TO REDSPIN UNDER AN APPLICABLE SOW DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE DATE WHICH THE CLAIM WAS ALLEGED TO HAVE OCCURRED.
3. EXCEPT AS EXPRESSLY STATED IN THESE TERMS, REDSPIN DISCLAIMS ANY EXPRESS, STATUTORY, OR IMPLIED WARRANTIES REGARDING THE SERVICES, INCLUDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
4. EXCEPT AS EXPRESSLY STATED IN THESE TERMS, REDSPIN MAKES NO GUARANTEES, REPRESENTATIONS, OR WARRANTIES THAT THE SERVICES WILL BE ERROR FREE, OR THAT THE SERVICES WILL RESULT IN ANY AMOUNT OF REVENUE OR SAVINGS TO CLIENT.
Notices. All notices required or permitted in the Agreement shall be in writing and shall be deemed to have been duly given if hand-delivered with confirmation of delivery, or sent by First Class U.S. Mail, return receipt requested, postage pre-paid, or sent by reputable courier company, proof of delivery requested, postage pre-paid. Notices to Redspin should be sent to 11940 Jollyville Road, Suite 300-N, Austin, TX 78759. Notices to Client should be sent to the address identified in the signature block of an applicable SOW.
Assignment. No party may assign the Agreement without the prior written consent of the other party, except that Redspin may assign the Agreement in the event of a Redspin business reorganization, merger, change of control, or if Redspin sells substantially all of its assets or shares. Any assignment, delegation, or subcontract not made in accordance with this Section is void and shall have no effect. The Agreement shall inure to the benefit of and bind the respective parties’ permitted successors and assigns.
Construction. The Agreement, along with SOWs entered into in connection herewith, constitutes the entire agreement of the parties concerning the subject matter hereof. The Agreement supersedes any and all agreements, arrangements, dealings, and understandings, whether oral or written, heretofore made by the parties with respect to the subject matter hereof. Neither these Terms nor any SOW may be modified without the written agreement of the parties. If there is a conflict between these Terms and an applicable SOW, the conflicting term in the SOW shall prevail. The provisions of the Agreement shall not be construed for or against a party on the basis that a party is deemed the drafter of the Agreement. The word “including” shall be deemed to mean “including, without limitation,” each as the context may permit or require. Any failure by either party to exercise any of its rights hereunder shall not be deemed a waiver of any rights or remedies that such party may have. Previous custom, practice, or course of dealing shall not be deemed a waiver of any rights or remedies that the parties may have hereunder. If a court of competent jurisdiction determines that any provision of the Agreement is void, invalid, or unenforceable, the remainder of the Agreement shall continue in full force and effect as if such provision were not contained herein, and the parties shall agree upon a substitute provision, and failing agreement of the parties then such court shall determine a substitute provision most closely approximating the provision to be replaced as written.
Enforcement. The Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Texas, without regard to applicable conflicts or choice of law principles. The exclusive venue for any judicial action arising out of the Agreement shall be the federal and state courts of competent jurisdiction located in Austin, Texas, and the parties hereby waive any claim that such venue is inconvenient. The prevailing party in any such action shall be entitled to collect from the non-prevailing party its reasonable costs, fees, and expenses, including attorneys’ fees, court costs, depositions, travel, and expert witnesses.
Counterparts. Any applicable SOW incorporating these Terms may be executed in counterparts, including by electronic signature, and may be exchanged by facsimile or electronic transmission, each of which shall be deemed an original for all purposes and together shall constitute one document.