Black Breach Master Services Agreement

IMPORTANT – CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THIS BLACK BREACH MASTER SERVICES AGREEMENT (“MSA”). BY SIGNING A CONSULTING AGREEMENT (STATEMENT OF WORK) INCORPORATING THIS AGREEMENT, CLICKING “I ACCEPT”, CLICKING “CREATE”, PROCEEDING WITH THE INSTALLATION AND/OR ACCESS AND USE OF ANY BLACK BREACH SOLUTIONS OR SERVICES, OR USING ANY OF THE BLACK BREACH SOLUTIONS OR SERVICES AS AN AUTHORIZED REPRESENTATIVE OF YOUR COMPANY NAMED ON THE APPLICABLE ORDER FORM ON WHOSE BEHALF YOU INSTALL AND/OR USE ANY OF THE BLACK BREACH SOLUTIONS OR SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTOOD, AND ACCEPT THIS CONSULTING AGREEMENT WITH BLACK BREACH (AS DEFINED BELOW). IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, DO NOT SIGN, INSTALL, COPY, OR OTHERWISE USE ANY OF THE BLACK BREACH SOLUTIONS OR SERVICES. THE EFFECTIVE DATE OF THIS AGREEMENT SHALL BE THE DATE THAT YOU SIGN A CONSULTING AGREEMENT WITH BLACK BREACH OR OTHERWISE ACCEPT THIS AGREEMENT AS SET FORTH ABOVE.

This Black Breach Master Services Agreement (the “MSA”) is a legal agreement entered into by and between Black Breach, LLC (“Black Breach” or “Consultant”) and the Client identified on an SOW or consulting agreement (“Client”) and governs any statements of work, order forms, quotes, or other ordering document executed by Client (“SOW” or “Consultant” Agreement) and Solution Terms that reference this MSA or purchases of a Black Breach subscription to services. This MSA is effective on the date Client executes the SOW or submits a matching purchase order to Black Breach, as applicable (the “Effective Date”). This MSA permits Client to purchase subscriptions to the Services, as defined below, identified in the SOW and sets forth the terms and conditions under which those Services will be delivered. The MSA consists of the terms and conditions set forth below, any attachments or exhibits identified herein and any SOWs that reference this Agreement.

RECITALS

WHEREAS, this Agreement is governed by and subject to the terms and conditions of the Consultant Agreement (Statement of Work) entered into between the Parties. In the event of any conflict between the terms and conditions of this Agreement and the Consultant Agreement, the terms and conditions of the Consultant Agreement shall prevail, provided that such specific provisions do not contradict the fundamental principles set forth in this Master Service Agreement.

WHEREAS, the Parties agree that the services to be provided under the Consultant Agreement shall be governed by the provisions set forth in this Master Service Agreement, and the Parties further acknowledge and agree that any additional terms, conditions, or statements of work relating to specific services shall be incorporated as exhibits to this Master Service Agreement.

WHEREAS, the Client desires to retain the Consultant to perform various services for the Client, including those services as more specifically defined in the Consultant Agreement and in any subsequent SOW or Consultant Agreement; and

WHEREAS, the Consultant represents that it possesses the requisite expertise and experience to perform such services, all on the basis set forth more fully in the Consultant Agreement;

NOW, THEREFORE, in consideration of the promises, mutual covenants, and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:

BY EXECUTING, WHETHER MANUALLY OR ELECTRONICALLY, AN SOW, DELIVERING A PURCHASE ORDER OR OTHER CONFIRMATION TO BLACK BREACH DOCUMENTING ACCEPTANCE OF AN SOW, OR OPERATING, DOWNLOADING, INSTALLING, REGISTERING OR OTHERWISE USING THE SERVICES, OR CLICKING AN "I ACCEPT” OR “CONTINUE" BUTTON ASSOCIATED WITH THIS MSA, CLIENT (OR ITS AUTHORIZED AGENT, IF APPLICABLE) EXPRESSLY AND EXPLICITLY ACKNOWLEDGES AND AGREES THAT THIS IS A BINDING AGREEMENT AND CLIENT HEREBY AGREES TO THE TERMS OF THIS MSA AND ACCEPTS THE OFFER TO SUBSCRIBE TO THE SERVICES PURSUANT TO THE TERMS HEREIN. IF YOU ARE AN EMPLOYEE OR OTHER REPRESENTATIVE ACCEPTING THIS MSA ON BEHALF OF CLIENT, YOU HEREBY REPRESENT AND WARRANT TO BLACK BREACH THAT YOU ARE (A) AUTHORIZED TO ENTER INTO THIS MSA ON BEHALF OF CLIENT; AND (B) YOU ARE OVER 18 YEARS OLD. IF CLIENT DOES NOT ACCEPT ALL THE TERMS AND CONDITIONS IN THIS MSA OR IS NOT AUTHORIZED TO ENTER INTO THIS AGREEMENT, DO NOT ACCEPT THE SOW, ISSUE A PURCHASE ORDER OR OTHER CONFIRMATION, OR OTHERWISE USE THE SERVICES.

Section 1. Definitions.

1.1 Services. “Services” means (a) physical or virtual appliances (“Equipment”), (b) software, including any add-ons offering enhanced features and functionality made generally available to Black Breach clients from time-to-time (collectively, the “Software”),  and/or (c) support, onboarding services, and/or additional professional services and consulting (“Professional Services”) that are ordered by Client from Black Breach and described in one or more SOWs signed by Black Breach and Client. Subject to the terms and conditions of this MSA, Black Breach will make the Services available during the Term as set forth in an SOW. In the event of any inconsistency or conflict between the terms of the MSA and the terms of any SOW, the terms of the SOW control.

1.2 Effective Date. "Effective Date" shall have the meaning ascribed to it in the Consultant Agreement.

1.3 Consultant Agreement. "Consultant Agreement" shall refer collectively to the Consultant Agreement and Statement of Work (SOW), between the Parties.

1.4 Materials. "Materials" shall have the meaning ascribed to it in the Consultant Agreement.

1.5 Change in Services. "Change in Services" shall have the meaning ascribed to it in the Consultant Agreement. If Client desires changes to an SOW, Client shall submit to Black Breach a written request in accordance with the change order process defined in the applicable SOW. The parties may execute additional SOWs describing Services, which will become part of this MSA upon execution by Black Breach and the Client. If additional SOWs are executed, then Client shall pay Black Breach for all services performed prior to the additional SOW before Black Breach begins work on the new SOW.

1.6 Equipment. "Equipment" shall have the meaning ascribed to it in the Consultant Agreement. If the SOW specifies that Client will receive Equipment, then Client is responsible for installing the Equipment at the location(s) specified by Black Breach and for the implementation of appropriate data protection practices related to the protection of any information included on such Equipment while the Equipment is located within Client’s environment. The Equipment is a part of the Services and included with the subscription to the Services for use by Client during the Term. If Client attempts to install or use the Equipment at a location other than determined by Client and communicated to Black Breach during onboarding or at any time thereafter, the Solutions may fail to function or may function improperly. In the event Client installs, uses or relocates the Equipment, Client will promptly notify Black Breach so that Equipment deployment information can be updated within Client’s account. Other than normal wear and tear, Client is directly responsible for loss, repair, replacement and other costs, damages, fees and charges to repair the Equipment. Client is responsible for all additional costs and expenses associated with shipping the Equipment to its designated locations and for the return of the Equipment to Black Breach upon termination of the Term. Such additional costs and expenses may be reflected in an SOW, from time-to-time following shipment of the Equipment and will be invoiced by Black Breach. Client understands and agrees if the Equipment is shipped outside of the United States or Canada (or such other locations identified by Black Breach), Client is responsible for acting as the importer of record.

1.7 Software and Services. "Software and Services" shall have the meaning ascribed to it in the Consultant Agreement. Provided Client is in compliance with the terms of this MSA, including payment of Fees, Black Breach grants to Client a limited, non-transferable, non-sublicensable, non-exclusive right and/or license during the Term to, to the extent applicable given the Service: (i) install the object code form of the Software (including any related to virtual Equipment, if applicable), but only in connection with Client’s use of the Service and otherwise in accordance with this MSA, and/or access and use the Services for up to the number of licenses set forth in an SOW, (ii) obtain and use Black Breach’s Services in conjunction with Client’s use of the Service, (iii) obtain onboarding services from Black Breach to install the Equipment, (iv) load Client’s users and associated information into the applicable Service, and (v) access the Black Breach ONE Platform. Client acknowledges that any changes Client makes to its infrastructure or the configuration of the Software or Service after initial deployment may cause the Software or Service to cease working or function improperly and that Black Breach will have no responsibility for the impact of any such Client changes. Client understands that depending on the Software or Service deployed, Software may consume additional CPU and memory in Client’s environment while running in production.

Section 2. Fees and Payment.

2.1 Fees. Client will pay the fees specified in any and all SOWs (the “Fees”). Any overages in a given month shall be billed the following month. Overages are any actual usage of Services which exceeds the utilization subscribed to by Client under any SOW(s) as measured on a monthly basis.

2.2 Payment; Taxes. Black Breach will invoice Client for Fees as outlined in an SOW. Client will pay all invoiced Fees within the timeframe specified in an SOW. If payment terms are not mentioned in an SOW, Client shall pay net thirty (30) days from the date of the invoice. Any late payments are subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less. If Client fails to make any payments due under this MSA or an applicable SOW, Black Breach shall notify Client of such nonpayment. If a payment that is due remains unpaid for fifteen (15) days after Black Breach provides Client with notice of such nonpayment, Black Breach may cease providing the Services without any liability to Black Breach. Fees do not include local, state, or federal taxes or duties of any kind and any such taxes will be assumed and paid by Client, except for taxes on Black Breach based on Black Breach’s income or receipts. If Client believes that Black Breach has billed Client incorrectly, Client must contact Black Breach no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to Black Breach’s client support department.

2.3 Project Services Payment Schedule. The total invoice amount is due upon the completion of the project.

2.4 Monthly Services Payment Schedule. For monthly services, the Client may choose to pay annually, or monthly.

2.5 Payment Default. The Client agrees to pay the Consultant according to the terms outlined in the Payment Schedule defined in this Agreement. If action or suit is brought by the Consultant to collect any amount due or owed under this bill, the Client agrees to pay all collection costs, including reasonable attorney's fees. Charges will be paid in advance unless credit has been granted to the Client pursuant to an approved Credit and Service Agreement Application, as stated in the Consultant Agreement. Default occurs if the Client fails to pay any amounts due as provided herein when the same shall become due and payable. In addition to and without excluding any remedies available to the Consultant under applicable law, or as stated in any Invoice from Consultant to Client, or in any Agreement approved by Consultant, and without waiving any personal liability provisions which may apply, Consultant may pursue any remedy against the Client under applicable federal, state, or local law, as outlined in the Consultant Agreement. The Client shall be responsible to Consultant for all costs incurred by Consultant to enforce this Agreement and SOW, including but not limited to all collection costs, attorney's fees, and court fees.

Section 3. Term and Termination.

3.1 Term. This MSA commences on the Effective Date and will remain in effect through the Initial Term and all Renewal Terms, as specified in the SOW, unless otherwise terminated in accordance with this Section (the Initial Term and all Renewal Terms collectively the “Term”). If the SOW does not specify, the Initial Term will be one year from the execution of the SOW and will automatically renew for successive one-year periods, subject to the then-current terms and price at the time of renewal, unless Client provides Black Breach with notice of termination at least sixty (60) days prior to the end of the Term.

3.2 Termination and Early Termination Charges. Either Party may terminate this MSA or any SOW for any reason or no reason, regardless of whether it has been extended beyond the Initial Term, by giving the other Party 60 days written notice in advance. Written requests to terminate may be made by email. If the Client chooses to terminate this MSA or any SOW before the end of its Initial Term or Renewal Term, Client shall pay Consultant all monies owed to the Consultant for the remainder of the Initial Term or Renewal Term (“Early Termination Charge”).  The Early Termination Charge must be paid to the Consultant within 14 days of the Client's notification of termination.

3.3 Effect of Termination and Survival. Upon termination or cancellation of an SOW or this MSA (a) with respect to termination of the entire MSA, all SOWs will concurrently terminate, (b) Client will have no further right to use the Services under the terminated or canceled SOWs and Black Breach will remove Client’s access to same, and (c) unless otherwise specified in writing, Client will not be entitled to any refund of fees paid. The following Sections will survive termination: Section 2 (Fees and Payment), Section 4 (Confidentiality), Section 5 (Intellectual Property Rights), Section 6.3 (Disclaimers), Section 7 (Indemnification), Section 8 (Limitation of Liability), and Section 10 (Miscellaneous). Termination of this MSA will not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of this MSA.

Section 4. Confidentiality. As used herein, the “Confidential Information” of a Party (the “Disclosing Party”) means all financial, technical, or business information of the Disclosing Party that the Disclosing Party designates as confidential at the time of disclosure to the other Party (the “Receiving Party”) or that the Receiving Party reasonably should understand to be confidential based on the nature of the information or the circumstances surrounding its disclosure. For the sake of clarity, the Parties acknowledge that Confidential Information includes the terms and conditions of this MSA. Except as expressly permitted in this MSA, the Receiving Party will not disclose, duplicate, publish, transfer or otherwise make available Confidential Information of the Disclosing Party in any form to any person or entity without the Disclosing Party’s prior written consent. The Receiving Party will not use the Disclosing Party’s Confidential Information except to perform its obligations under this MSA, such obligations including, in the case of Black Breach, to provide the Services. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the extent required by law, provided that the Receiving Party: (a) gives the Disclosing Party prior written notice of such disclosure so as to afford the Disclosing Party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure (if such notice is not prohibited by applicable law); (b) uses diligent efforts to limit disclosure and to obtain confidential treatment or a protective order; and (c) allows the Disclosing Party to participate in the proceeding. Further, Confidential Information does not include any information that: (i) is or becomes generally known to the public without the Receiving Party's breach of any obligation owed to the Disclosing Party; (ii) was independently developed by the Receiving Party without the Receiving Party's breach of any obligation owed to the Disclosing Party; or (iii) is received from a third party who obtained such Confidential Information without any third party's breach of any obligation owed to the Disclosing Party.

Section 5. Intellectual Property Rights. “Intellectual Property Rights” means any and all (a) rights associated with works of authorship, including but not limited to copyrights, (b) trademark and trade name rights and similar rights, (c) trade secret rights, (d) patents and (c) all other intellectual property rights in any jurisdiction throughout the world. To the fullest extent permitted by law, Black Breach retains ownership in all Intellectual Property rights relating to or incorporated in any Deliverable. Upon full payment for the Deliverable, in accordance with the applicable SOW, Black Breach grants Client a perpetual, non-exclusive and non-transferable license to use the Deliverable and the related Intellectual Property Rights solely as part of the Deliverable. Client shall retain sole ownership of all Intellectual Property Rights in connection with any original material it provides to Black Breach for use within a Deliverable. If termination occurs under Section 3, Black Breach shall retain ownership in all Intellectual Property Rights and other components comprising work in process up to the date of termination. After a termination under Section 3 and upon full payment for the work in process, Black Breach will grant Client a perpetual, non-exclusive and non-transferable license to use the work in process. In no event will Black Breach be liable for any claims related to or arising from Client’s improper use of the Deliverable, work in process, or components that comprise the Deliverable or work in process.

Section 6. Representations, Warranties, and Disclaimers.

6.1 Authority. Each Party represents that it has validly entered into this MSA and has the legal power to do so.

6.2 Warranties. Black Breach warrants that during an applicable Term (a) this MSA will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data; and (b) the Services will perform materially in accordance with the applicable documentation provided within the Services. For any breach of a warranty in this section, Client’s exclusive remedies are those described in Section 3 (Term and Termination) herein.

6.3 Disclaimers. (a) EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT AND ANY SOW, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES OF TITLE AND NONINFRINGEMENT. The Services are designed to monitor systems to detect cyber security breaches.  Company does not represent that it will prevent any breach, and Company will have no liability with respect to any breach of Client’s systems. Cyber threats are ever evolving and designed to evade detection.  Company does not represent that it will detect every breach, and Company will have no liability for failure to detect any breach.

Section 7. Indemnification. Each party shall defend indemnify and hold harmless the other party, including its affiliates and each of their respective officers, directors, shareholders, employees, representatives, agents, successors and assigns from and against all claims of third parties, and all associated suits, proceedings, judgments, penalties, fines, cost and expenses, including reasonable attorneys’ fees and expenses, to the extent arising out of such party’s willful misconduct in performing any of its obligations under this MSA.

SECTION 8. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS MSA, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY AFFILIATE FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA (BEING DATA LOST IN THE COURSE OF TRANSMISSION VIA CLIENT’S SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF BLACK BREACH), BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER INDIRECT LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ANY AFFILIATE IN CONNECTION WITH THIS MSA OR THE SERVICES REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS MSA, BLACK BREACH’S AGGREGATE LIABILITY TO CLIENT, ANY CLIENT AFFILIATE, OR ANY THIRD PARTY ARISING OUT OF THIS MSA OR THE SERVICES WILL IN NO EVENT EXCEED THE FEES PAID BY CLIENT DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. CLIENT ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THIS MSA BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF BLACK BREACH WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. BLACK BREACH HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CLIENT WITH THE RIGHTS TO ACCESS AND USE THE SERVICES PROVIDED FOR IN THIS MSA. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN WILL APPLY IN AGGREGATE TO CLIENT AND ITS AFFILIATES AND SHALL NOT BE CUMULATIVE. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY TO CLAIMS OR DAMAGES RESULTING FROM BLACK BREACH’S IP CLAIMS INDEMNITY OBLIGATIONS IN THIS MSA. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages or for personal injury or death, which means that some of the above limitations may not apply to Client. IN THESE JURISDICTIONS, BLACK BREACH’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. Any claims or damages that Client may have against Black Breach will only be enforceable against Black Breach and not any other entity or its officers, directors, representatives, or agents.

Section 9. Export/Import Compliance. Client agrees to comply with all applicable export and import laws and regulations. Without limiting the foregoing: (i) Client represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Client will not (and will not permit any of its users to) access or use the Solutions in violation of any U.S. export contracts, economic sanctions, embargos, or other trade prohibitions or restriction, and (iii) Client will not directly or indirectly export, re-export, or release the Solutions to, or make the Solutions accessible from, any country, jurisdiction, or person to which export, re-export, or release is prohibited by applicable law; and (iv) Client will not submit to Black Breach, directly or through the Solutions, any information that is controlled under the U.S. International Traffic in Arms Regulations. Client will comply with all applicable laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval) prior to exporting, re-exporting, releasing, or otherwise making the Solutions available outside the United States.

Section 10. Miscellaneous.

10.1 Entire Agreement. This Master Service Agreement, together with the Consultant Agreement and any exhibits or attachments thereto, constitutes the final, complete, and exclusive Agreement of the Parties. No modification of or amendment to this Agreement shall be valid unless in writing and signed by each of the Parties, as specified in the Consultant Agreement.

10.2 Assignment. Either Party may, without the consent of the other Party, assign this MSA to any affiliate or in connection with any merger, change of control, or the sale of all or substantially all of such Party’s assets provided that (1) the other Party is provided prior notice of such assignment and (2) any such successor agrees to fulfill its obligations pursuant to this MSA. Subject to the foregoing restrictions, this MSA will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.

10.3 Severability. If any provision in this MSA is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this MSA will remain in effect.

10.4 Relationship of the Parties. The Parties are independent contractors. This MSA does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.

10.5 Notices. All notices provided by Black Breach to Client under this MSA may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) or U.S. mail to the contact mailing address provided by Client on the SOW; or (b) electronic mail to the electronic mail address provided for Client’s account owner. The date on which any such notice is received by the addressee shall be deemed the date of notice. Unless the date of that delivery or that receipt, as applicable, is not a Business Day or that communication is delivered or received, as applicable, after 5pm local time on a Business Day for the recipient, in which case that communication shall be deemed given and effective on the first following day that is a Business Day for the recipient. Client must give notice to Black Breach in writing by Courier or U.S. mail

To:

Attn: Justin Shanken, CEO

1025 Rose Creek Drive, Suite 620-214, Woodstock, GA 30189

With a copy to: accounting@blackbreach.com

All notices shall be deemed to have been given immediately upon delivery by electronic mail; or, if otherwise delivered upon the earlier of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above.

10.6 No Guarantee. Except as otherwise provided in this Agreement, the Consultant does not warrant or guarantee any specific level of performance or results. There is no guarantee that indicators of compromise exist. There is no guarantee that the services in this Agreement will protect against all cybersecurity threats, including but not limited to ransomware. Recovery of data is not guaranteed, as stated in the Consultant Agreement.

10.7 Prioritization. All actions in this Agreement are performed in a partnership manner. The only actions the Consultant may conduct from this Agreement prior to the Client's permission, if any, are outlined in the Consultant Agreement. All other actions in this Agreement will only be performed after expressed approval from the Client. The Parties will agree to the priority completion of the services in this Agreement based on the Client's assets, vulnerabilities, and threats. The Consultant shall not be liable for any services identified in this Agreement that are not performed during the Term as a result of the Client not providing what is needed by the Consultant to perform services or the Client's need to prioritize and address elevated risks pursuant to the priority agreement determined by the Parties, as specified in the Consultant Agreement.

10.8 Governing Law, Jurisdiction, Venue. This Agreement shall be governed by the laws of the State of Georgia without regard to the conflicts of law provisions thereof. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in Cherokee County, Georgia in English and in accordance with the JAMS International Arbitration Rules then in effect. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator(s), provided that a permanent injunction and damages shall only be awarded by the arbitrator(s). In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.

10.9 Publicity and Marketing. Black Breach may use Client’s name, logo, and trademarks solely to identify Client as a Client of Black Breach on Black Breach’s website and other marketing materials and in accordance with Client’s trademark usage guidelines, if Client provides same to Black Breach.

10.10 Force Majeure.  If any performance by either party shall be prevented, hindered or delayed by reason of any cause beyond the reasonable control of such party (such event being hereafter called an “event”), including, without limitation, acts of God, riots, fires, floods, unusually severe weather,  unavailability or performance degradation of electrical resources or the Internet, strikes or other disputes involving such party or its subcontractors or suppliers, acts of war, insurrection, civil unrest, terrorism, elevated risk of terrorism, riot or disorder, acts of governmental authorities, changes in law or regulation, or any other cause beyond the reasonable control of such party, whether similar or dissimilar to those expressed hereinabove, such party shall be excused from performance to the extent that its performance is so prevented, hindered or delayed. Such excuse from performance shall extend so long as the event continues to prevent, hinder or delay the performance by such party. The party whose performance is affected shall give the other party notice within 48 hours of the event specifying the event, the performance affected and the anticipated date, if any, performance can be made.

10.11 Amendments. Black Breach reserves the right to modify this MSA in Black Breach’s sole discretion provided that changes to the Service Terms shall not materially decrease the Service features and functionalities that Client has subscribed to during the then-current Term. Should Black Breach make any modifications to the MSA, Black Breach will post the amended terms on the applicable URL links and will update the “Last Updated Date” within such documents and notify Client via the Client Portal, Client newsletter, or such other written communication method implemented by Black Breach from time-to-time of any such changes. Client may notify Black Breach within 30 days after the effective date of the change of its rejection of such change. If Client notifies Black Breach of its rejection during such thirty (30) day period, then Client will remain governed by the terms in effect immediately prior to the change until the end of Client’s then-current Term. However, any subsequent renewal of the Term will be renewed under the then-current terms, unless otherwise agreed in writing by the parties.

10.12 Non-Solicitation. During the Term of this Agreement and for twelve (12) months after the termination or expiration of this Agreement, neither Party shall directly or indirectly solicit or offer employment to or hire any employee, former employee, subcontractor, or former subcontractor of the other, as specified in the Consultant Agreement. The terms "former employee" and "former subcontractor" shall include only those employees or subcontractors of either Party who were employed or utilized by that Party during the Term, as outlined in the Consultant Agreement.

10.13 Applicability to Future Clients. The terms and conditions of this Master Service Agreement shall apply to all future clients ("Future Clients") engaged by the Consultant for cybersecurity services. By entering into a separate Consultant Agreement with a Future Client, which shall be attached as an Exhibit to this Agreement, the Consultant incorporates the terms of this Master Service Agreement to the Consultant Agreement, unless otherwise explicitly stated.

10.14 Counterparts. This Master Service Agreement, including any Exhibit attached hereto, may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Facsimile or electronic signatures shall be deemed to be original signatures for purposes of this Agreement and any Exhibit."

10.15 Third-Party Rights. Nothing in this Master Service Agreement or any incorporated Consultant Agreement shall create or confer any rights or benefits on any person or entity other than the parties to this Agreement and the Future Clients, and no person or entity shall be considered a third-party beneficiary of this Agreement

Last modified April 10, 2024