RESOLUTEGUARD LLC, a New Jersey limited liability company, with offices located at 417 Crescent Parkway, Sea Girt, New Jersey 08750 (“Service Provider”) provides information technology services, including those services described in a Order Form (the “Order Form”) (collectively, the “Services”), which if applicable, is incorporated as if set forth fully herein.  By receiving the Services from Service Provider, Client agrees and understand that all Services are bound by the following terms and conditions (these “Terms and Conditions”)

1. Services. Service Provider is in the business of providing cybersecurity risk management services to public entities. Service Provider shall provide certain services to Client as set forth in Order Form in accordance with these Terms and Conditions and incorporated as if set forth fully herein.

2. Fees and Expenses. For the Services to be performed hereunder, Client shall pay to Service Provider the fixed fee set out in Service Provider’s fee schedule set forth on the Order Form (the “Fee”). Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder. Except for payments that the Customer has successfully disputed, all late payments shall bear interest at the lesser of the rate of 2.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Client shall also reimburse Service Provider for all costs incurred in performing the Services and collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Term and Conditions or at law (which Service Provider does not waive by the exercise of any rights hereunder), Service Provider shall be entitled to suspend the provision of any Services if Customer fails to pay any amounts when due hereunder and such failure continues for 10 days following written notice thereof.

3. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Sub-Recipient under these Terms and Conditions or prepared by or on behalf of Service Provider in the course of performing the Services (collectively, the “Deliverables”) except for any Confidential Information of Sub-Recipient or Sub-Recipient-provided materials shall, as between Sub-Recipient and Service Provider, be owned exclusively by Service Provider. Service Provider . Service Provider hereby grants Sub-Recipient a license (or if applicable, a sublicense) to use all Intellectual Property Rights in the Deliverables free of additional charge (other than the Fees) and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis, solely to the extent necessary to enable Sub-Recipient to make reasonable use of the Deliverables and the Services. Service Provider hereby grants Sub-Recipient a license (or if applicable, a sublicense) to use all Intellectual Property Rights in the Deliverables free of additional charge (other than the fees) and on a non-exclusive, world-wide, non-transferable, non-sub licensable, fully paid up, royalty free and perpetual basis, sorely to the extent necessary to enable Sub-Recipient to make reasonable use of the Deliverables and the Services.

4. Confidentiality. From time to time during the Term of these Terms and Conditions, either party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, any information that a reasonable person would regard as, know, or should understand to be confidential or proprietary, including but not limited to (a) if disclosed in writing or other tangible form is clearly labeled as “confidential,” or (b) if disclosed orally, is identified as confidential when disclosed and within ten (10) days thereafter, is summarized in writing and confirmed as confidential (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 4; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under these Terms and Conditions; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under these Terms and Conditions. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Section 4 only, Receiving Party’s Group shall mean the Receiving Party’s affiliates and its or their employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, service providers, sublicensees, subcontractors, attorneys, accountants, and financial advisors.

Provided, however, Service Provider may share with the Client’s applicable educational service unit a copy of the final Deliverables (if any) inclusive of any findings thereto. Provided however, this Section 4 shall not prohibit or otherwise prevent Service Provider from extracting, compiling, synthesizing, and analyzing data provided by Client to Service Provider in connection with the delivery of the Services to the extent such data or information does not identify or is otherwise attributable to Client operations, systems, networks, or any person.

Certain Information provided by Service Provider contains documentation on the design and deployment of Sub-Recipient’s network and should be protected as Tier 1 Confidential Information. Service Provider transfers Tier 1 information via a secure transfer that meets NIST-CSF controls. Client’s cybersecurity officer or Client Contract Manager should be sure to store, secure, provide access, process and/or transmit this information as they do other electronic Tier 1 Confidential information.

5. Term. These Terms and Conditions shall commence as of the start date noted in the Order Form and, unless otherwise set forth in the Order Form, sooner terminated as provided in these Terms and Conditions, will remain in full force and effect for an initial term equal to one (1) year from the Effective Date (the “Initial Term”) after which the term shall automatically renew for additional twelve (12) month periods (collectively with the Initial Term, the “Term”) unless a party provides written notice to the other party of that party’s intention to not renew these Terms and Conditions at least thirty (30) days prior to the expiration of the then current Term. In the event of termination, under any provision of these Terms and Conditions, Service Provider shall provide any services required to be performed under the Order Form.
   
   
6. Termination. Either party may terminate these Terms and Conditions, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party: (a) materially breaches these Terms and Conditions, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; (b) becomes insolvent or admits its inability to pay its debts generally as they become due; (c) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days or is not dismissed or vacated within forty-five (45) days after filing; (d) is dissolved or liquidated or takes any corporate action for such purpose; (e) makes a general assignment for the benefit of creditors; or (f) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. Notwithstanding anything to the contrary in this section, Service Provider may terminate these Terms and Conditions before the expiration date of the Term on written notice if Client fails to pay any amount when due hereunder: (a) and such failure continues for 10 days after Service Provider’s written notice to Client of nonpayment; or (b) more than 2 times in any 1 year period.
   
   
7. Termination Without Cause. Either party may terminate these Terms and Conditions for any reason at any time, without penalty, by giving the other party sixty (60) days advance written notice.

8. Independent Contractor. The details of the method and manner for performance of the Services by Service Provider shall be under its own control, Client being interested only in the results thereof. The Service Provider shall be solely responsible for supervising, controlling and directing the details and manner of the completion of the Services. Nothing in this Terms and Conditions shall give Client the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. Service Provider is for all purposes hereunder an independent contractor and in no event will Service Provider be considered an agent or employee of Client or any of its subsidiaries or affiliates for any purpose.

9. [Reserved.]
   
   
10. Limited Warranty. Service Provider warrants that it shall perform the Services, which includes the delivery of a vulnerability assessment to Client in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services. SERVICE PROVIDER (a) MAKES NO WARRANTIES EXCEPT FOR THAT SET OUT ABOVE; AND (b) DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Without limiting the generality of the foregoing, Service Provider makes no representations or warranties with respect to any third party software or Deliverables provided to Customer with respect to the Services, nor does Service Provider provide to Client any representations, warranties, assurances or promises that Customer’s operations during or following the delivery of the Services will meet any or all regulatory compliance requirements (or other requirements of applicable laws). Service Provider’s sole and exclusive liability and Client’s sole and exclusive remedy for breach of the limited warranty set out in this Section shall be reperformance of the affected services. If Service Provider cannot reperform the services in compliance with the warranty set forth above within a reasonable time (but no more than 30 days) after Client’s written notice of such breach, Client may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 6. Service Provider shall within 30 days after the effective date of such termination, refund to Client a portion of the fees previously paid by Client as of the date of termination corresponding to the defective Services. 

11. Limitation of Liability. IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS TERMS AND CONDITIONS WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER IN THE 1 YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

12. General. Each of the parties hereto shall use commercially reasonable efforts to, from time to time at the request and sole expense of the other party, furnish the other party such further information or assurances, execute and deliver such additional documents, instruments, and conveyances, and take such other actions and do such other things, as may be reasonably necessary or appropriate to carry out the provisions of this Terms and Conditions and give effect to the transactions contemplated hereby. Each party shall deliver all communications in writing either in person, by certified or registered mail, return receipt requested and postage prepaid, by facsimile or email (with confirmation of transmission), or by recognized overnight courier service, and addressed to the other party at the addresses set forth above (or to such other address that the receiving party may designate from time to time in accordance with this Section). This Agreement and all matters arising out of or relating to this Terms and Conditions, including tort and statutory claims are governed by, and construed in accordance with the laws of New Jersey, (including its statutes of limitations), without giving effect to any conflict of laws provisions thereof that would result in the application of the laws of a different jurisdiction. Except as otherwise set forth in Section 12 below, either party shall institute any legal suit, action, or proceeding arising out of or relating to this Agreement in the federal or state courts in each case located in Sea Girt, New Jersey. SUBJECT TO SECTION 12 BELOW, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY: (A) CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE AFOREMENTIONED COURTS; (B) WAIVES ANY OBJECTION TO THAT CHOICE OF FORUM BASED ON VENUE OR TO THE EFFECT THAT THE FORUM IS NOT CONVENIENT; (C) WAIVES ANY RIGHT TO TRIAL BY JURY; AND (D) WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT, OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANSPERMITTED BY NEW JERSEY LAW. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous written or oral understandings, agreements, representations, and warranties with respect to such subject The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. The parties may not amend this Agreement except by written instrument signed by the parties. No waiver of any right, remedy, power, or privilege under this Terms and Conditions (“Right(s)“) is effective unless contained in a writing signed by the party charged with such waiver. No failure to exercise, or delay in exercising, any Right operates as a waiver thereof. No single or partial exercise of any Right precludes any other or further exercise thereof or the exercise of any other Right. The Rights under this Agreement are cumulative and are in addition to any other rights and remedies available at law or in equity or otherwise; provided that, the parties intend that the remedy set out in Section 10 (Limited Warranty) is Client’s exclusive remedy for the Service Provider’s breach of the limited warranty set out in Section 10. Neither party may directly or indirectly assign, transfer, or delegate any of or all of its rights or obligations under this Agreement, voluntarily or involuntarily, including by change of control, merger (whether or not such party is the surviving entity), operation of law, or any other manner, without the prior written consent of the other party. Any purported assignment or delegation in violation of this Section shall be null and void. Service Provider, however, may subcontract the Services. This Terms and Conditions is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns. Except for the parties, their successors and permitted assigns, there are no third party beneficiaries under this Terms and Conditions. Any provision that, in order to give proper effect to its intent, should survive the expiration or termination of this Agreement, will survive such expiration or termination for the period specified therein, or if nothing is specified for a period of 12 months after such expiration or termination. This Agreement may be executed in counterparts.

13. Dispute Settlement/Arbitration. Prior to bringing any action as contemplated in Section 12 above, the parties agree to make good faith efforts to amicably resolve all controversies, claims and matters of difference arising under this Agreement. If they are unable to do so, either party may demand in writing that a specified dispute be submitted to non-binding mediation to be conducted by the American Arbitration Association (or similar commercial dispute resolution center) in Newark, New Jersey, within 30 days of such demand. If such mediation does not result in settlement of the dispute, the dispute shall be submitted to arbitration. Arbitration shall be conducted in Newark, New Jersey area (unless otherwise agreed by the parties), in accordance with the Commercial Arbitration Rules of the American Arbitration Association, except to the extent such rules conflict with the express provisions of this Section. Arbitration hereunder shall be by three independent and impartial arbitrators. Each of the parties shall appoint one arbitrator within 30 days after one party gives notice of a claim to be arbitrated hereunder. The two arbitrators so appointed shall select a third arbitrator within 45 days after such notice, failing which the American Arbitration Association shall select the third arbitrator. The three arbitrators shall conduct a hearing no later than 60 days after such notice, and the arbitrators shall render a decision within 30 days of the hearing. At the hearing, the parties shall present such evidence and witnesses as they may choose, with or without counsel. The arbitration panel shall consider any evidence and testimony that it determines to be relevant, in accordance with procedures that it determines to be appropriate. Any award entered shall be made by a written opinion stating the reasons for the award made. The arbitrators may award legal or equitable relief; including but not limited to specific performance, and may award the costs and fees, including attorneys’ fees, arbitrators and expert witness fees, to the prevailing party. Such award shall be final and binding on all parties, and shall not be appealable. Each party shall continue to perform its obligations under this Agreement and notwithstanding any other provision of this Agreement, neither party shall have the power to terminate this Agreement, nor shall this Agreement automatically terminate by its own provisions, pending conclusion of the arbitration.

14. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Customer to make payments to Service Provider hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): ( a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within 10 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 10 consecutive days following written notice given by it under this Section, either party may thereafter terminate this Agreement upon 10 days’ written notice.
    
    
15. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Terms and Conditions, for any failure or delay in fulfilling or performing any term of this Terms and Conditions (except for any obligations of Client to make payments to Service Provider hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party“) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)“): ( a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of the Order Form; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable control of the Impacted The Impacted Party shall give notice within 10 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 10 consecutive days following written notice given by it under this Section, either party may thereafter terminate this Terms and Conditions upon 10 days’ written notice.