Attack Surface Management Terms and Conditions

These Terms and Conditions (these “Terms”) are part of and incorporated into the NetSPI Attack Surface Management Subscription Agreement by and between NetSPI, LLC (“NetSPI”) and the client that has executed an Order Form or Statement of Work (collectively, “Order Form”) for the provision of NetSPI’s Attack Surface Management (“Client”).  The “Agreement” consists of the Order Form, including the Schedules attached thereto, and these Terms.  Capitalized terms not defined herein have the meanings given to them in the Order Form and the Schedules attached to the Order Form.  References to Sections in these terms mean the corresponding Section in these Terms, unless otherwise provided.  In the event of a conflict, the Agreement will be interpreted in the following order of precedence: the Order Form, then the Schedules and then these Terms. 

1. Attack Surface Management

1.1 ASM Services

During the Term (as defined below) and subject to the terms and conditions of this Agreement, NetSPI (a) shall host and maintain The NetSPI Platform in order to scan the Attack Surface and to monitor the Monitored Assets (as such terms are defined in the Schedules to the Order Form) and (b) shall configure, host and maintain a custom portal for Client (the “ASM Portal”) so that (i) those employees of Client who are authorized by Client to access the Services and (ii) those employees of third-party vendors engaged by Client to provide IT support services who require access to the Services to perform their function and who are approved in advance by NetSPI, in its sole discretion (“Users”) may access the ASM Portal and review and retrieve reports and metrics prepared by NetSPI (“Client Reports”) generated by The NetSPI Platform relating to the status of the Monitored Assets (collectively, the “ASM Services”).  As used herein, “The NetSPI Platform” means the software, hardware, algorithms, services and other technology that are developed by or licensed to NetSPI that (x) permits scanning and information gathering regarding Client’s then-current Attack Surface, (y) identifies known changes in and potential external exposures to the Monitored Assets and (z) generates Client Reports.  The NetSPI Platform includes all improvements, modifications, updates and enhancements (“Updates”) that NetSPI may, from time to time, incorporate into or use in connection with The NetSPI Platform.

1.2 Rights of Access

During the Term and subject to the terms and conditions of this Agreement, NetSPI hereby grants to Users a limited, non-exclusive, non-sublicensable, non-transferable, terminable license to access the ASM Portal and use, copy and distribute Client Reports solely for Client’s internal business purposes.

1.3 Subcontractors

NetSPI may engage subcontractors to provide the ASM Services under this Agreement, provided that such subcontractors shall be subject to obligations of confidentiality consistent with those set forth in Section 4.  NetSPI will remain responsible for the performance by its subcontractors of any obligations under this Agreement.

1.4 Third Party Materials

Client acknowledges that, in delivering the ASM Services, NetSPI incorporates software and services provided by third parties, including open source software (collectively, “Third Party Materials”).  Third Party Materials may be subject to additional terms and conditions, and Client agrees to be bound by such terms and conditions (provided that such terms will not impose additional fees on Client unless Client agrees to such additional fees in writing).  Client agrees that NetSPI shall have no liability for Third Party Materials and that Third Party Materials are provided on an “AS IS” basis.

1.5 Performance Standard

NetSPI will use commercially reasonable efforts to ensure that, during the Term: (a) The NetSPI Platform will substantially conform to the product documentation made available to Client (the “Documentation”) and (b) the ASM Services are reasonably available to Users during business hours.  If The NetSPI Platform does not substantially conform to the Documentation or if ASM Services are unavailable, NetSPI shall use commercially reasonable efforts to resolve the issue promptly. NetSPI’s commercially reasonable efforts to resolve the issue as provided herein is Client’s sole and exclusive remedy and NetSPI’s sole obligation relating to the performance and availability of The NetSPI Platform, ASM Portal and/or the ASM Services.

2. Client Responsibilities

2.1 General

Client shall be solely responsible for its information technology infrastructure, whether operated by Client or third-party service providers, including computers, software, devices, applications, hardware, databases, electronic systems and networks (“Client Systems”).  Client must maintain and ensure the presence and continued operation of the Client Systems necessary to access and use The NetSPI Platform and ASM Portal.  Client must comply with any technical or operational requirements for the Client Systems related to use of the The NetSPI Platform or ASM Portal (such as minimum system requirements), including hardware and connectively requirements, to the extent set forth in any Documentation provided by NetSPI.  If the Client Systems fail to operate, Client must notify NetSPI of such failure immediately.  Client acknowledges that NetSPI’s provision of the ASM Services may require NetSPI to access Client Systems and the Attack Surface and hereby consents to such access.

2.2 Credentials

Client will issue user credentials to its Users (including password and account name). Client is responsible for administering the credentials, and for the security and use of any access credentials by any of its Users.  Client will be responsible for the compliance of all Users with any term of this Agreement.  Client must notify NetSPI immediately if it becomes aware of any breach or unauthorized access to or unauthorized use of The NetSPI Platform or ASM Portal and cooperate with NetSPI in investigating and remediating such event.

2.3 Client Data

Client will be responsible for all information, data or other content that is collected or received by NetSPI from the Assets due to the operation of the ASM Services, including the original, client-specific content in the ASM Portal dashboard and any vulnerabilities of the Monitored Assets identified as part of the ASM Services (“Client Data”). For clarity, Client Data shall not include NetSPI templates or any NetSPI information provided in the ASM Portal or Client Reports.  Client shall not provide NetSPI with access to any personal information, personally identifiable financial information, personal health information or any other sensitive information that subject to protection under applicable privacy laws.

2.4 Client Security

Client is solely responsible for taking any and all actions to protect its networks and systems (including without limitation, the Attack Surface and any Client Systems) in the event that The NetSPI Platform or ASM Portal provides an alert to a vulnerability on such networks and systems.  Client is responsible for any actions it chooses to take or not take based on an alert, including remediation of any risks, exposures, or vulnerabilities identified in the alert.  Client is responsible for communicating any risks, exposures, or vulnerabilities described in an alert or Report to its third-party system providers.

2.5 Restrictions on Use

Client shall not, and shall ensure that its Users do not: (a) license, sublicense, lease, sell, resell, copy, transfer, assign, distribute or otherwise commercially exploit or make available to any third party any portion of The NetSPI Platform or ASM Portal, except as expressly permitted under this Agreement; (b) modify or make derivative works based upon any portion of The NetSPI Platform or ASM Portal; (c) ”frame” or “mirror” any content of The NetSPI Platform or ASM Portal on any other network, server or system; or (d) reverse engineer, decrypt, decompile, translate, or access any portion of The NetSPI Platform or the ASM Portal or attempt to discover the source code used in connection with the foregoing, (e) access the ASM Portal with the intent build a competitive product or service; or (f) remove, alter, deface, overprint or otherwise obscure any NetSPI patent, trademark, service mark, copyright or similar notice on any aspect of The NetSPI Platform or ASM Portal.

2.6 Suspension of ASM Services

NetSPI may suspend the ASM Services if NetSPI determines that Client or its Users are in breach of this Section 2 or if continued access may result in material harm to NetSPI, Client, Users or any other third party.  NetSPI shall use reasonable efforts to notify Client in advance of any such suspension and will limit the suspension in duration and scope to the extent NetSPI determines is reasonably appropriate.  Any such suspension shall be without liability to Client or any third party.

3. Fees

3.1 Fees and Payment

Client will pay NetSPI the Fees listed in the Schedules to the Order Form in accordance with the payment terms set forth in the Order Form. Except as otherwise set forth herein, payment obligations are non-cancelable and non-refundable.  If any payment is not received within thirty (30) days from the date of the invoice, NetSPI has the option at its sole discretion to add interest at the rate of one and one-half percent (1.5%) per month calculated daily and compounded monthly, or, if lower, the highest rate allowed by applicable law.  Any invoice not disputed within thirty (30) days from the date of invoice is deemed undisputed and accepted.  In the event NetSPI undertakes collection efforts on any undisputed invoice, Client will be liable for any costs associated with such collection, including, without limitation, reasonable attorney fees, court costs and collection agency fees. NetSPI reserves the right to increase its Fees annually, on or around the anniversary of the effective date of Client’s subscription provided that Fees are subject to a cap of ten percent (10%) per year, so long as Client’s use of the ASM Services has not materially increased.

3.2 Taxes

The Fees do not include applicable sales, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local government entity (collectively, the “Taxes”) relating to the purchase, delivery, or provision of The NetSPI Platform and ASM Portal.  Client is responsible for paying all Taxes associated with its access and use of The NetSPI Platform and ASM Portal.  If applicable law creates an obligation for NetSPI to pay or collect Taxes on Client’s purchase hereunder, NetSPI will invoice Client and Client shall be responsible for the Taxes; provided that in no event shall Client be responsible for any taxes imposed on, or with respect to, NetSPI’s income, revenues, gross receipts, personnel or assets.

4. Confidentiality

4.1 General Duty

“Confidential Information” means information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) identified by the Disclosing Party as “confidential” or “proprietary” or that under the circumstances ought reasonably to be treated as confidential or proprietary.  The Receiving Party shall not, without the prior written consent of the Disclosing Party: (a) disclose such Confidential Information to any third person or entity other than in the proper course of performance under this Agreement except as permitted herein; or (b) use such Confidential Information for any purpose other than performance of its duties under this Agreement.  The terms of this Agreement, Client Reports (except for Client Data contained therein), and all non-public information about The NetSPI Platform, the ASM Portal and the ASM Services are deemed NetSPI Confidential Information, and all Client Data is deemed to be Client Confidential Information.  The confidentiality obligations of this Section do not apply to any information that the Receiving Party can demonstrate:  (i) is or subsequently becomes available to the general public other than through a breach of this Agreement by the Receiving Party; (ii) is already known to the Receiving Party before disclosure by the Disclosing Party; (iii) is developed through the independent efforts of the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (iv) the Receiving Party receives rightfully from third parties that are not subject to any restriction as to use or disclosure of the information.

4.2 Additional Terms

Without limiting the foregoing, Client agrees that it will not disclose the Client Reports to any third party other than Client’s contractors who have a need to review it for the purpose of maintaining the security of the Client Systems and the Attack Surface, provided that, prior to such disclosure Client enters into a non-disclosure agreement with such contractor that is at least as protective of such Client Reports as the terms of this Section 4.

5. Intellectual Property

5.1 ASM Intellectual Property

As between NetSPI and Client, NetSPI owns all right, title and interest, including intellectual property rights, in The NetSPI Platform (including all Updates), the ASM Portal and the ASM Services, and in any appliances, methodologies, code, templates or report formats, tools, or policies provided through The NetSPI Platform, the ASM Portal or the ASM Services.  Nothing in this Agreement transfers any ownership right, title or interest in or to The NetSPI Platform, the ASM Portal or the ASM Services or any component thereof to Client, except the limited rights and licenses specifically granted in Section 1 of this Agreement (and further subject to Client’s ownership of Client Data as described in Section 5.2).

5.2 Client Data

As between NetSPI and Client, Client owns all rights, title and interest in and to the Client Data, including all intellectual property rights thereto, subject to the rights and permissions specifically granted in the next sentence.  Client grants NetSPI a limited, nonexclusive, worldwide license to use Client Data for the Term of this Agreement as necessary to provide The NetSPI Platform and ASM Portal.  NetSPI may use statistical information concerning the existence of vulnerabilities and other security risks that is compiled as a result of the provision or use of The NetSPI Platform and ASM Portal (“Compiled Data”) for the purpose of analyzing security trends and patterns, provided that all Compiled Data has been de-identified by NetSPI to remove all references to any Client Data, Client Confidential Information or other information that would identify Client.

6. Representations and Warranties

6.1 Client Warranties

Client represents and warrants that it has the full legal power and authority to enter into and perform its obligations under this Agreement.  Client further represents and warrants that (a) it has or will obtain the necessary rights and consents to provide NetSPI with access to Client Systems and the Attack Surface, including without limitation any consents required from third party vendors, subcontractors or service providers of Client, (b) it will not use the ASM Portal to send or store material containing computer code, files, scripts, agents or programs, and (c) it will comply with all applicable laws and regulations regarding the use of The NetSPI Platform or ASM Portal.  Client shall provide NetSPI with access to Client Systems and the Attack Surface as may be necessary for the functioning of The NetSPI Platform.

6.2 NetSPI Representations and Warranties

NetSPI represents and warrants that (a) NetSPI has the full legal power and authority to enter into and perform its obligations under this Agreement and (b) NetSPI owns or holds sufficient rights to provide the ASM Services to Client.

6.3 Exclusions

EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 6.2, NETSPI DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE NETSPI PLATFORM, THE ASM PORTAL AND THE AMS SERVICES, INCLUDING BUT NOT LIMITED TO, THE WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE.

7. Limitation of Liability

7.1

NETSPI’S TOTAL AGGREGATE LIABILITY TO CLIENT OR TO ANY THIRD PARTY FOR ALL LOSSES, DAMAGES, COSTS, CLAIMS, SUITS, CAUSES OF ACTION OR OTHER OBLIGATIONS OF ANY KIND COMBINED (“LOSS”) SHALL NOT EXCEED THE TOTAL AMOUNTS PAID BY CLIENT TO NETSPI FOR THE ASM SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE ACT OR OMISSION GIVING RISE TO THE LOSS.

7.2

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS, PROFITS OR OTHER ECONOMIC ADVANTAGE, COST OF REPLACEMENT GOODS, NETWORK OR SYSTEM DOWNTIME, LOSS OF DATA (INCLUDING ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF DATA), NETWORK OR BREACH OF DATA OR SYSTEM SECURITY, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, FAILURE OF ESSENTIAL PURPOSE, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, ARISING UNDER OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8. Termination

8.1 Termination for Cause

Either party may terminate this Agreement:  (a) if the other party is in material breach or default of any obligation of this Agreement and such breach or default is not cured within thirty (30) days after written notice from the other party; (b) if the other party becomes insolvent, upon five (5) days written notice from the other party; or (c) if the other party files as a debtor under any bankruptcy, insolvency or liquidation law, whether domestic or foreign, or such a filing is made against such party and such involuntary filing is not dismissed within sixty (60) days of commencement thereof.

8.2 Additional Remedies

If Client breaches any of the terms of this Agreement then, without limiting its rights and remedies, NetSPI may immediately suspend Client’s and its Users’ access to The NetSPI Platform and the ASM Services upon written notice to Client (which may be provided by e-mail).

8.3 Surviving Provisions

All defined terms and Sections 2.5, 3, 4, 5, 6.3, 7, 8.3, 8.4, 9 and 10 shall survive the termination or expiration of this Agreement.

8.4 Effect of Termination

Upon termination or expiration of this Agreement, Client shall pay all of NetSPI’s unpaid Fees and out-of-pocket expenses that are due and have been accrued through the date of termination or expiration and NetSPI shall cease to provide The NetSPI Platform, the ASM Portal and the ASM Services.

9. Indemnification

9.1 NetSPI Indemnification

Subject to Client’s obligations in Section 9.2, NetSPI shall defend Client against any third-party claim, demand, suit or proceeding against Client alleging that the ASM Services or Client’s use thereof infringes or misappropriates and third party’s intellectual property rights and will indemnify Client against any damages, attorneys fees and costs finally awarded against Client or for amounts paid by Client under a settlement approved by NetSPI; provided that NetSPI will have no indemnity obligation, responsibility or liability to Client for any infringement or other claim, suit or demand based on:  (a) use of The NetSPI Platform, the ASM Portal or the ASM Services in a manner not described in this Agreement or the Documentation; (b) modification to Client Data by any person or entity other than NetSPI; (c) the use or combination of The NetSPI Platform, the ASM Portal, the ASM Services or Client Data with products or services not supplied by NetSPI; or (d) information supplied by Client to NetSPI that is used as the basis for providing The NetSPI Platform or ASM Portal or scoping and updating the Attack Surface.

9.2 Client Indemnification

Client shall indemnify, defend, and hold NetSPI harmless from and against any loss, liability, damage, settlement or expense (including attorneys’ fees and costs) incurred by NetSPI as a result of any third-party claim, demand, suit or proceeding against NetSPI based on or arising from:  (a) Client’s breach of any term of this Agreement governing Client’s access to or use of The NetSPI Platform, the ASM Portal and/or the ASM Services; (b) Client’s failure to accurately describe elements of the Client Systems in any correspondence with NetSPI; and (c) Client or its personnel’s negligence, gross negligence or willful misconduct.  In addition, and without limiting the foregoing, if NetSPI is required (in NetSPI’s sole determination) to serve as a witness in a trial, action or proceeding, to respond to subpoenas, or is made (or asked to) respond to discovery requests or otherwise participate in any trial, action or proceeding involving Client, its officers, directors, stockholders or creditors to which NetSPI is not a party, Client shall reimburse NetSPI upon written demand for all costs and expenses incurred or paid by NetSPI in connection therewith (including reasonable attorneys’ fees and expenses and a reasonable hourly rate for time committed by its personnel).

9.3 Procedure

The indemnity obligations set forth in this Section 9 are contingent upon (a) the indemnified party promptly notifying the indemnifying party in writing of the claim or suit, (b) the indemnifying party being allowed to control the defense and settlement of such claim or suit, and (c) the indemnified party reasonably cooperating with all requests of the indemnifying party (at the indemnifying party’s expenses) in the defense or settlement of such claim or suit.  The indemnified party shall have the right, at its own expense, to participate in the defense of any action, suit or proceeding relating to such claim through counsel of its own choosing.

9.4 Infringement Remedies

If, in NetSPI’s opinion, The NetSPI Platform, ASM Portal or the ASM Services are likely to become the subject of a claim of intellectual property rights infringement or any such claim is threatened, NetSPI will have the option, at its discretion, to: (a) replace The NetSPI Platform, the ASM Portal and/or the ASM Services, or any portion thereof, with non-infringing items; (b) modify The NetSPI Platform, the ASM Portal or the ASM Services so that they are no longer infringing; (c) procure for Client the right to continue using The NetSPI Platform, the ASM Portal or the ASM Services at no additional cost to Client, (d) suspend the ASM Services, in whole or in part, or; (e) terminate this Agreement and refund Client an amount equal to the portion of prepaid Fees applicable to the remaining Term.

9.5 Sole Remedy

THIS SECTION 9 SETS FORTH CLIENT’S SOLE REMEDIES AND NETSPI’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL OR THREATENED OR ALLEGED CLAIMS THAT ANY SERVICES OR MATERIALS PROVIDED UNDER THIS AGREEMENT (INCLUDING THE NETSPI PLATFORM, THE ASM PORTAL OR THE ASM SERVICES) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.

10. Miscellaneous

10.1 Notices

Notices permitted or required to be given hereunder shall be deemed sufficient if given by registered or certified mail, postage prepaid, return receipt requested or by private courier service, addressed to the respective addresses of the parties as set forth on the Order Form or at such other addresses as the respective parties may hereafter designate by like notice. Notices so given shall be effective upon (a) receipt by the party to which notice is given, or (b) on the fifth (5th) day following mailing (other than email), whichever occurs first.  Notices may be delivered to NetSPI by email to: legal@netspi.com and notices may be delivered to Client by email to the Client email address associated with the ASM Portal.  Notices by email shall be effective on the business day following the date on which the email is sent unless the sender receives an automatic response or other indication that the email account is not then monitored.

10.2 Limitations Inherent to ASM

The NetSPI Platform and the ASM Services assess Monitored Assets of Client for exposure to the most common/likely weaknesses, vulnerabilities and exploits published in industry standards.  As a result, a weakness, vulnerability or exploit may not be discovered by The NetSPI Platform and the ASM Services if it affects an out-of-scope Asset or is new, unknown or unlikely.  Client acknowledges that use of The NetSPI Platform, the ASM Portal and the ASM Services are not legal advice or a guarantee or assurance of Client’s compliance with applicable laws, regulations, or standards.  Although use of The NetSPI Platform, the ASM Portal or the ASM Services may assist Client in compliance efforts, Client (not NetSPI) is ultimately responsible for Client’s compliance requirements.  The NetSPI Platform, the ASM Portal and the ASM Services are not managed services or similar monitoring solutions and NetSPI will not manage status or alerts that are generated by any Asset on the Attack Surface or any Client Systems. Additionally, The NetSPI Platform makes use of scanning technology to review Client’s Attack Surface. Client acknowledges that lost data or network/system downtime is an inherent risk of using Attack Surface scanning tools. Although NetSPI employs industry-standard measures to mitigate the impact of scanning, the unknown state or status of a Client network, system, or Attack Surface can lead to downtime when combined with scanning activity. Accordingly, NetSPI shall have no liability whatsoever related to lost data or downtime arising out of scanning activity.

10.3 Assignment

Neither party may assign this Agreement, in whole or in part, including by operation of law, without the express written consent of the other party, which shall not be unreasonably withheld, provided that NetSPI may assign this Agreement (a) to an affiliate and/or (b) to any entity that acquires all or substantially all of its capital stock or its assets connected to the business to which this Agreement relates, whether through purchase, merger, consolidation or otherwise.

10.4 Dispute Resolution; Applicable Law; Venue

In the event a dispute arises under this Agreement, the parties agree to use their respective best efforts to resolve the same amicably by mutual conference and agreement.  If the parties are unable to resolve such dispute within ten (10) days following notice of the dispute, either party may seek any remedies available to it in law or equity.  This Agreement shall be deemed to have been made in the State of Minnesota and shall be governed by and construed in accordance with the laws of the State of Minnesota, without regard to principles of conflicts of law.  The parties mutually, expressly, irrevocably, and unconditionally waive trial by jury for any proceedings arising out of or relating to this Agreement.  The parties irrevocably consent to the sole jurisdiction of the United States District Court located in St. Paul, Minnesota or the Minnesota state courts located in Ramsey County, Minnesota, as applicable under federal and state rules and jurisprudence relating to jurisdiction, for the resolution of any disputes between them.

10.5 Entire Agreement

This Agreement constitutes the entire agreement between NetSPI and Client regarding its subject matter, and merges all prior and contemporaneous communications with respect to the subject matter hereof and thereof, other than any separate non-disclosure or similar confidentiality agreement entered into between the parties.  The terms on any purchase order or other form submitted by Client shall not apply to this Agreement.  Neither party shall be bound by any definition, condition, provision, representation, warranty, covenant or promise other than as expressly stated in this Agreement.

10.6 Export Control

Client shall at its own expense obtain and maintain any approvals, consents, licenses or other authorizations necessary to the performance of this Agreement. Client will not use, import or export any portion of The NetSPI Platform or ASM Portal in violation of United States or other applicable import or export law. Client confirms that if Client acquires any deliverables, documentation, or services under this Agreement that are subject to the export control laws and regulations of the United States, it will not export or re-export them, directly or indirectly, either to (a) any countries that are embargoed under U.S. export restrictions; or (b) any end-user whom Client knows or has reason to know is on a denied person’s list.

10.7 Severability; Waiver

If any provision of this Agreement proves to be or becomes invalid or unenforceable under any applicable law, then such provision shall be deemed modified to the extent necessary in order to render such provision valid and enforceable in the manner that best advances the spirit of this Agreement; if such provision may not be so saved, it shall be severed and the remainder of this Agreement shall remain in full force and effect.  No waiver of any provision of this Agreement or the breach thereof shall be effective unless made in writing and signed by an authorized representative of the waiving party.

10.8 Independent Contractor

NetSPI is an independent contractor, and nothing in this Agreement shall be construed as creating a partnership, joint venture or any other equivalent relationship between Client and NetSPI.

10.9 Non-Solicitation

Unless otherwise agreed to by NetSPI in writing, during the term of this Agreement and for a period of twelve (12) months following the expiration or termination of this Agreement, Client shall not directly or indirectly, solicit or induce for employment any employee of NetSPI.  A general advertisement or notice of a job listing shall not be construed as a solicitation or inducement for purposes of this Section.

10.10 Force Majeure

Neither party shall be liable to the other for any loss or damage attributable to, and neither party shall deemed to be in default hereunder as a result of, any failure or delay in performance (other than the payment of amounts due under this Agreement) caused by force majeure.  For purposes of this Agreement, the term “force majeure” shall include strike, lockout, earthquake, hurricane, flood, fire, epidemic, pandemic or other acts of God or nature, war, rebellion, civil disorders, piracy, acts of civil or military authorities, widespread electrical or telecommunications failures (including successful attacks on the Internet infrastructure), and any other causes beyond the reasonable control of the party whose performance is affected.  Both parties shall use all reasonable efforts to minimize the consequences of force majeure.

10.11 Publicity

NetSPI may use Client’s name or trademark on NetSPI’s website and in any advertising or marketing materials to indicate Client is a customer of NetSPI.  NetSPI shall obtain Client’s signed prior written approval before using Client’s name or trademark for any other purpose.

10.12 No Third Party Beneficiaries

Except as provided in Section 9, nothing in this Agreement, whether express or implied, will confer upon any person or entity, other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.

10.13 Counterparts

This Agreement may be executed in two or more counterparts, and each such counterpart shall be deemed an original hereof.  Facsimile or PDF signature pages shall be deemed original counterparts.