BAS Platform Terms and Conditions
These Terms and Conditions (these “Terms”) are part of and incorporated into the NetSPI BAS Platform 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 Breach & Attack Simulation (“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. BAS Platform
1.1 BAS Platform Services
During the Term (as defined below) and subject to the terms and conditions of this Agreement, NetSPI (a) shall host and maintain the BAS Platform and The NetSPI Platform portal on a NetSPI cloud instance in the United States or Canada and permit Client to access Client’s instance of the BAS Platform and The NetSPI Platform portal as described in this Agreement; (b) provide Client with the BAS Agent as described in the Order Form, subject to the license described in 1.2 below, for purposes of using the BAS Platform; and (c) provide the Services, if any, described in the Order Form related to the use of the BAS Platform.
1.2 Rights of Access/License
During the Term, NetSPI grants Client: (a) a limited, non-exclusive, non-transferable United States license to remotely access the BAS Platform solely by using the BAS Agent as described in in this Agreement; (b) a limited, non-exclusive, non-transferable United States license to install and use the BAS Agent on Client’s network as described in the Order Form for the purpose of accessing the BAS Platform, and; (c) a limited, non-exclusive, non-transferable worldwide right to access and use the data showing the results of Client’s use of the BAS Platform solely via The NetSPI Platform portal for the sole purpose of learning adversary simulation and detection methods applicable to the tested environment, and incorporating such data into changes to the tested environment for Client’s internal use. NetSPI grants Client no rights to the high-level architecture, training methods, know-how, methodologies, or any tangible or intangible item related to the BAS Platform other than the results data derived from Client’s use of the BAS Platform as described in subsection (c) of the previous sentence.
1.3 Subcontractors
NetSPI may engage subcontractors to provide the BAS Platform 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 BAS Platform 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 BAS Platform will substantially conform to the product documentation made available to Client (the “Documentation”) and (b) the BAS Platform is reasonably available to Users during business hours. If the BAS Platform does not substantially conform to the Documentation or if the BAS Platform is 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 BAS Platform.
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 BAS Platform. Client must comply with any technical or operational requirements for the Client Systems related to use of the BAS Platform (such as minimum system requirements), including hardware and connectivity 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 BAS Platform may require NetSPI to access Client Systems and the Client’s instance of the BAS Platform and hereby consents to such access. Client may only access and use the BAS Platform within a NetSPI instance of a third party provider’s cloud environment located in the United States or Canada using credentials supplied by NetSPI. NetSPI makes no representation, warranty or service level concerning availability, uptime, response time, or any other characteristic of the third party provider’s cloud environment on which the BAS Platform is hosted.
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 BAS Platform and cooperate with NetSPI in investigating and remediating such event.
2.3 Client Data
Client will be responsible for all data showing the results of Client’s operation of the BAS Platform, including any vulnerabilities identified as part of Client’s use of the BAS Platform (“Client Data”). For clarity, Client Data shall not include NetSPI templates or any NetSPI information provided to Client or any other items described in Section 5.1 below. 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, any Client Systems) in the event of a vulnerability detected on such networks and systems. Client is responsible for any actions it chooses to take or not take based on an alert or detection, 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 output of the BAS Platform 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 BAS Platform, except as expressly permitted under this Agreement; (b) modify or make derivative works based upon any portion of the BAS Platform; (c) ”frame” or “mirror” any content of the BAS Platform on any other network, server or system; or (d) reverse engineer, decrypt, decompile, translate, or access any portion of the BAS Platform or attempt to discover the source code used in connection with the foregoing, (e) access the BAS Platform, or use the Client Data or the knowledge learned in use of the BAS Platform, in order to create any product or service, including without limitation any adversary simulation software or service or any product or service that would compete with any product or services of NetSPI; or (f) remove, alter, deface, overprint or otherwise obscure any NetSPI patent, trademark, service mark, copyright or similar notice on any aspect of the BAS Platform.
2.6 Suspension of BAS Platform Services
NetSPI may suspend the Client’s access to and use of the BAS Platform 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.
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 use of the BAS Platform. Client is responsible for paying all Taxes associated with its access and use of the BAS Platform. 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, reports generated (if any) by NetSPI (“Client Reports”) (except for Client Data contained therein), and all non-public information about the BAS Platform 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 Client’s network (including without limitation the Client Systems), 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 BAS Platform Intellectual Property
As between NetSPI and Client, NetSPI owns all right, title and interest, including intellectual property rights, in the BAS Platform (including without limitation all improvements, modifications, updates and enhancements thereto, collectively the “Updates”), and in any appliances, methodologies, code, templates or report formats, tools, policies, high level architecture, training methods, know-how, or any other tangible or intangible items that are part of or made available through the BAS Platform. Nothing in this Agreement transfers any ownership right, title or interest in or to the BAS Platform or any component thereof to Client, except the limited rights and licenses specifically granted in Section 1.2 of this Agreement and 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 BAS Platform. 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 BAS Platform (“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, including without limitation any consents required from third party vendors, subcontractors or service providers of Client, (b) it will not use the BAS Platform 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 BAS Platform. Client shall provide NetSPI with access to Client Systems and the Client’s instance of the BAS Platform as may be necessary for the functioning of the BAS 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 BAS Platform 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 BAS PLATFORM, 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 BAS PLATFORM SUBSCRIPTION 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), 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 BAS Platform 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 BAS Platform.
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 BAS Platform or Client’s use thereof in the manner permitted by the Agreement 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 BAS Platform 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 BAS Platform 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 BAS Platform.
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 BAS Platform; (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 BAS Platform is 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 BAS Platform, or any portion thereof, with non-infringing items; (b) modify the BAS Platform so that it is no longer infringing; (c) procure for Client the right to continue using the BAS Platform at no additional cost to Client, (d) suspend the Client’s access to and use of BAS Platform, 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 BAS PLATFORM) 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. 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 BAS Platform
The BAS Platform assesses 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 BAS Platform if it is new, unknown or unlikely. Client acknowledges that use of the BAS Platform is not legal advice or a guarantee or assurance of Client’s compliance with applicable laws, regulations, or standards. Although use of the BAS Platform may assist Client in compliance efforts, Client (not NetSPI) is ultimately responsible for Client’s compliance requirements. The BAS Platform is not a managed service offering or similar monitoring solution and NetSPI will not manage status or alerts that are generated on the Client’s instance of the BAS Platform or any Client Systems. Additionally, the BAS Platform may make use of port scanning and automated attack scenario technology to review and test Client environments. Client acknowledges that lost data or network/system downtime is an inherent risk of using BAS Platform tools and technology. Although NetSPI employs industry-standard measures to mitigate the impact of such tools and technology, the unknown state or status of a Client network, system, or use case can lead to downtime when combined with use of such tools or technology. Accordingly, NetSPI shall have no liability whatsoever related to lost data or downtime arising out of use of the BAS Platform.
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 comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the BAS Platform and related Services. Without limiting the foregoing, Client represents and warrants that (a) it will not use the BAS Platform in or from, nor is it under the control of the government of, Cuba, Iran, North Korea, Syria, and certain disputed regions of Ukraine (i.e., Crimea and the so-called Donetsk and Luhansk People’s Republics) or any country to which the United States has prohibited export; (b) it will not download or otherwise export or reexport the BAS Agent or Client Data or associated documentation, directly or indirectly, to any country to which the United States has prohibited export or to citizens, nationals or residents of those countries; (c) it is not listed on the United States Department of Treasury lists of Specially Designated Nationals, Specially Designated Terrorists, and Specially Designated Narcotic Traffickers, or the United States Department of Commerce Table of Denial Orders, nor will it permit any other individual or entity appearing on such lists to access or use the BAS Platform; (d) it will not allow the BAS Platform or Client Data to be used for any purposes prohibited by United States law, including, without limitation, for the development, design, manufacture or production of nuclear, chemical or biological weapons of mass destruction; and (e) the BAS Platform or Client Data will not be used to affect the confidentiality, integrity, or availability of information or information systems, without authorization by the owner, operator, or administrator of the information system.
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.