This Master Services Agreement (“Agreement”) is entered into effective on the date of customer acceptance (“Effective Date”) by and between Secure Cyber Defense, LLC, an Ohio limited liability company with a principal place of business at 31 S. Second Street Suite 202 Miamisburg OH 45342 (“Vendor”), and the “Customer”. Secure Cyber Defense and Customer may be referred to individually as a “Party” or collectively as the “Parties”.

WHEREAS, Customer desires to engage Secure Cyber Defense to perform certain professional services as defined herein; and

WHEREAS, Secure Cyber Defense desires to perform such services for Customer.

NOW, THEREFORE, in consideration of the promises and mutual covenants contained in this Agreement, Secure Cyber Defense and Customer agree as follows:

  1. Services and Statements of Work

    1. Customer and Secure Cyber Defense desire to provide a means by which Customer can engage Secure Cyber Defense to perform certain services (“Services”) for Customer through its employees, contractors and consultants, as described in each applicable statement of work (“Statement of Work” or “SOW”), upon the terms and conditions specified herein.

    2. All work shall be performed on either a fixed price or a time & materials/labor hour basis as set forth in the applicable Statement of Work. No work shall be performed until a Statement of Work governing the work has been executed. All Statements of Work shall be consecutively numbered as Attachment A-1, A-2 and so forth, or otherwise uniquely identified as appropriate.

    3. Each Statement of Work shall include, as applicable, a complete and detailed description of the project which Customer wishes Secure Cyber Defense to undertake and the proposed objectives (provided by Customer), the assumptions upon which the SOW was developed, anticipated milestones (if applicable), expected deliverables, ramp-up and completion schedule, knowledge transfer plan, and pricing for such project. A Statement of Work shall provide specifications for Services and deliverables to be provided thereunder (the “Specifications”). For the avoidance of doubt, Secure Cyber Defense shall not perform any Services except under an executed Statement of Work, and Customer shall be under no obligation to pay for any services performed or expenses incurred by Secure Cyber Defense that were not authorized in a Statement of Work, except, in cases where with an email authorization was provided by the Customer to start requirements gathering, and certain analysis and preparation work prior to or for the development of the Statement of Work, and all such work shall be incorporated in the final Statement of Work and paid by Customer.

    4. All Statements of Work must be signed by both Parties. All properly executed Statements of Work constitute a material part of this Agreement and are incorporated by reference into this Agreement. In the event of a conflict between Statements of Work, the last properly executed Statement of Work shall govern. This Agreement shall govern over all Statements of Work in the event of a conflict.

  1. Changes to Statements of Work: Each party may request changes that affect the scope or duration of the Services relating to any Statement of Work, including changes in the Specifications and deliverables. Each party also may request a change in the schedule without changing the scope of the applicable Statement of Work. If a party requests any such change, Secure Cyber Defense shall notify Customer if it believes that an adjustment in the fees to be paid to Secure Cyber Defense with respect to the applicable Statement of Work, or an adjustment to the applicable Schedule, is required. The parties shall then negotiate in good faith a reasonable and equitable adjustment in each or any of the applicable fees, deliverables, services, schedule or Specifications. Secure Cyber Defense shall continue to perform pursuant to the existing Statement of Work, and neither party shall be bound by any change requested by the other party, until such change has been accepted in writing by the other party.

  2. Compensation and Invoicing

    1. Secure Cyber Defense shall be compensated for Services according to the rates or fees set forth in the applicable Statement of Work.

    2. Unless set forth as otherwise in the applicable Statement of Work, Secure Cyber Defense will invoice Customer following completion of the engagement.

  3. Payment: Unless otherwise set forth in an applicable Statement of Work, payment shall be due within thirty (15) days of receipt of invoice.

  4. Out-of-Pocket Costs: Except as otherwise set forth in this Agreement, prices quoted for Services do not include out of pocket expenses.

  5. Taxes: Customer shall pay, indemnify, and hold Secure Cyber Defense harmless from all sales, use, and other taxes legally imposed on the Services and due from Customer, if any.

  6. Term and Termination

    1. Term. This Agreement shall commence as of the Effective Date specified above and shall remain in effect until terminated pursuant to the Section 7B, entitled “Termination.” Individual Statements of Work shall remain in effect until the period of performance or work described therein is completed according to its terms or it is terminated in accordance with Section 7(B) hereunder.

    2. Termination. This Agreement may be terminated by either Party upon giving thirty (30) days prior written notice to the other Party provided that there are no then-current Statements of Work. Either Party may terminate if the other Party makes an assignment for the benefit of creditors; a receiver is appointed; a petition in Bankruptcy is filed with respect to the Party and is not dismissed within thirty (30) days; or is adjudicated bankrupt. Individual Statements of Work may not be terminated in the absence of default or unsatisfactory performance, unless terminated mutually by the Parties in writing. Except instances of unsatisfactory performance, Customer shall remain obligated to pay for Services performed up to and including the date of final termination, including any notice period. The customer shall also be responsible for the remaining balance of the contract. Customer or Secure Cyber Defense may terminate this Agreement and all Statements of Work hereunder, immediately upon written notice of termination, in the event of a material breach of this Agreement by the other party, if such breach continues uncured for a period of thirty (30) days after written notice of such breach; provided, however, that Customer or Secure Cyber Defense, as applicable, may also choose to terminate only the Statement of Work related to the applicable breach. A final invoice including all unpaid fees and charges for Services performed and expenses incurred prior to and including the effective date of termination shall be generated as set forth in each applicable Statement of Work, and Customer shall pay such bill in accordance with the Payment Section.

  7. Relationship of Parties: The Parties agree that the relationship created by this Agreement is that of Customer-independent contractor and is not that of employer-employee for any purpose including employee benefits, taxation, and insurance. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the Parties. Neither party shall have the authority to make any statement, representation nor commitment of any kind, or to take any action that shall be binding on the other party except as authorized in writing by the party to be bound. Each Party shall remain responsible, and shall indemnify and hold harmless the other Party, for the withholding and payment of all federal, state and local, personal income, wage, earnings, occupation, social security, worker’s compensation, unemployment, sickness and disability insurance taxes, payroll levies or employee benefit requirements (under ERISA, state law or otherwise) now existing or hereafter enacted and attributable to themselves and their respective people.

  8. Confidentiality: All Confidential Information supplied by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) (including Confidential Information disclosed prior to execution of this Agreement) shall remain solely and exclusively the property of the Disclosing Party. Except as expressly authorized herein or by prior written consent of the Disclosing Party, which consent may be withheld in the Disclosing Party’s sole discretion, the Receiving Party shall not use or disclose to any third party any of the Disclosing Party’s Confidential Information. The Receiving Party shall only disclose the Disclosing Party’s Confidential Information to those of its employees and their respective contractors who have a need to know it for the purposes of this Agreement and who have executed a written non-disclosure agreement containing terms substantially similar to this Section 10 regarding such Confidential Information. The Receiving Party shall protect the Confidential Information of the Disclosing Party with the same level of care with which it protects its own Confidential Information, but in no event with less than reasonable care. Each party shall be responsible for any unauthorized use or disclosure of any of the other party’s Confidential Information received by it and agents, representatives and consultants. Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent that the Receiving Party is required by any applicable governmental authority, subpoena, legal process, etc., provided, however, that in such event, to the extent permitted by applicable law, the Receiving Party shall notify the Disclosing Party and shall cooperate with the Disclosing Party in any attempt to contest or limit such required disclosure, at the Disclosing Party’s sole expense. The obligations of the Parties under this Section shall survive for one (1) year after termination or cancellation of this Agreement.

  1. Notices: All notices required or permitted to be given under this Agreement shall be in writing (effective upon receipt by addressed party) and shall be served by personal delivery or by registered or certified mail, postage prepaid and return receipt requested. If to Secure Cyber Defense, LLC addressed as set forth below:

Secure Cyber Defense, LLC

ATTN: William Kelly

31 S. Second Street Suite 202

Miamisburg, OH 45342

(937) 388-4405

  1. Warranties: Secure Cyber Defense warrants to Customer that:
    1. Secure Cyber Defense will provide equipment, personnel and other expertise necessary to provide the Services as set forth herein and in the Statement of Work. Only personnel from Secure Cyber Defense may touch, move, use, alter, change, or modify any equipment or software we deploy in the customer environment for delivery of our services. Written authorization must be obtained from Secure Cyber Defense for any other parties to touch, move, use, alter, change, or modify equipment we deploy into customer’s work environment. The customer shall be strictly liable for any damages resulting from customer’s failure to abide by this agreement.

    2. All Services will be performed and delivered by Secure Cyber Defense in a good and workman like manner in accordance with applicable industry standards and practices and the Specifications for such Services and related deliverables set forth in the applicable Statement of Work.

  1. LIMITATION OF LIABILITY: IN NO EVENT SHALL SECURE CYBER DEFENSE BE LIABLE, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR PERTAINING TO THE SUBJECT MATTER OF THIS AGREEMENT UNLESS SUCH DAMAGES RELATE TO BREACH OF CONFIDENTIALITY, WILLFUL TORT OR GROSS NEGLIGENCE.

  1. Insurance: Each Party shall maintain adequate insurance protection covering its respective activities hereunder. The customer agrees to list Secure Cyber Defense, LLC as an additional insured on the customer’s general liability and cyber insurance, and proof of such shall be provided to Secure Cyber Defense upon request.

  1. Indemnification: Each Party (as the “Indemnifying Party”) will indemnify and hold harmless the other Party, its shareholders, members, directors, officers and employees (as the “Indemnified Party”), against all claims, demands, causes of action, damages, losses, liabilities costs and expenses (including, without limitation, reasonable attorneys’ fees) (but excluding any indirect, special, consequential, punitive, or exemplary damages) arising out of or incurred in connection with: a) any personal injury or property damage arising out of the Indemnifying Party’s negligence or willful misconduct; b) the Indemnifying Party’s violation of any law, rule or regulation; and c) any third party claim that the Indemnifying Party’s materials infringes, misappropriates or violates such third party’s United States patent, United States trademark, United States trade secret, or United States copyright, and d) if the customer chooses not to make the recommended changes provided by Secure Cyber Defense.

  1. Governing Law: This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of Ohio, excluding its conflict of law provisions. To the extent any suit is filed outside of the Arbitration provision below, the Parties to this Agreement consent to the jurisdiction and venue of the courts in Montgomery County, Ohio. The Parties to this Agreement agree to waive any defenses based on venue, the inconvenience of the forum, the lack of personal jurisdiction, and the adequacy of service of process (as long as notice of the suit or action is made in accordance with this Agreement) in any suit or action brought in the Montgomery County Common Pleas Court State of Ohio. This Section shall survive termination of this Agreement. This Section shall survive termination or cancellation of this Agreement.

  1. Mediation and Arbitration: Except for claims of non-payment, or claims under Section 9 or Section 10 of this Agreement, any dispute, controversy, or claim arising in connection with this Agreement, must be submitted to mediation before either party initiates litigation of any kind. Except for non-payment, or claims under section 9 or 10 of this agreement, all disputes under this agreement shall be settled by arbitration by one arbitrator, who shall be appointed pursuant to the rules of the American Arbitration Association (the “AAA”). The arbitration shall be held in Dayton, Ohio and shall be conducted in accordance with the rules of the AAA. This Section shall survive termination or cancellation of this Agreement.

  1. Section Headings: The section and subsection headings used in this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.

  2. Waiver: The waiver by either Party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach.

  1. Entire Agreement: This document and its attachments and Statements of Work attached hereto constitute the final and complete agreement between the Parties with respect to the subject matter hereof and supersede all other communications, whether written or oral. This Agreement may be modified or amended only by a writing signed by both Parties.

  1. Assignment: This Agreement covers services which are personal in nature and may not be assigned by either Party, without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed, provided, however: (a) in case of a merger, consolidation, acquisition, reorganization, or sale of all or substantially all of the assets of one Party; or (b) Customer assigns this Agreement to a parent company, or an Affiliate, or a subsidiary controlled by Secure Cyber Defense, then the assignment shall be automatic, valid and binding between the legal successor of first party (being acquired/merged) and the second Party. The terms and conditions of this Agreement will inure to the benefit of, and shall be binding upon, each party’s successors and permitted assigns.

  1. Severability: If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.

  1. Counterparts: This Agreement may be executed in any number of copies, each of which shall be deemed an original of this Agreement.

  1. Construction: The Parties acknowledge and agree that they have participated jointly in the negotiation and drafting of this Agreement, and in the event of an ambiguity or question of intent or a need for interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions on this Agreement.

  1. Force Majeure: Neither party shall be liable for damages for any delay or failure of delivery arising out of causes beyond their reasonable control and without their fault or negligence, including, but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, embargoes, Internet disruptions, hacker attacks, or communications failures (“Force Majeure Event”). Notwithstanding anything to the contrary contained herein, if either party is unable to perform hereunder or under an SOW for a period of fifteen (15) consecutive days due to a Force Majeure Event, then the other party may terminate this Agreement or the SOW, as applicable, immediately without liability by written notice to the other.

  2. Survival: Unless stated otherwise in the applicable Section, those Sections of this Agreement which, by their nature, are intended to survive termination shall so survive any termination or cancellation of this Agreement.