TALAS SECURITY LLC
STANDARD TERMS AND CONDITIONS OF SERVICE THESE TERMS AND CONDITIONS ESTABLISH AN AGREEMENT WITH YOU, AND YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS WHEN YOU ORDER, PAY FOR OR RECEIVE ANY SERVICE THAT WE OFFER. 1. GENERAL. The following terms and conditions govern the sale and performance of all services (“Services”) provided by TALAS Security LLC (“TALAS”, “we”, “us” or “our”) to the party that orders or receives any Services from us (“Client” or “you”). These terms and conditions along with any document provided by TALAS that relates to the Services (including any statement of work, proposal, price quote, order confirmation, invoice, change order or acknowledgment (each, a “Scope Document”)) constitutes the final, complete and exclusive agreement (“Agreement”) between Client and TALAS relating to the subject matter hereof. In the event of any ambiguity or conflict between the terms of any Scope Document and these terms and conditions, these terms and conditions shall control and prevail. TALAS’ proposal, offer or acceptance is expressly conditioned and made in reliance on Client’s assent of the Agreement. Any additional or conflicting terms or conditions in any order, confirmation, or other document furnished by Client at any time, which is in any way inconsistent with or in addition to the terms and conditions set forth herein, is hereby expressly rejected and not binding on TALAS unless separately signed by TALAS. TALAS’ failure to object to Client’s additional or conflicting terms does not operate as a waiver of the terms contained in the Agreement, and Client’s acceptance of delivery of any Services constitutes Client’s acceptance of these terms and conditions. The Agreement shall be effective upon the earlier of: (a) the date upon which Client signs any Scope Document; or (b) the date upon which Client first recevies, uses or pays for any Services (the earliest of such dates being referred to as the “Effective Date”). 2. PRICE. The prices applicable to the Services shall be as quoted by TALAS to Client. All prices quoted for Services are in US Dollars. Stenographic and clerical errors are subject to correction. A quotation is not a contractual offer and any order resulting from a quotation is subject to approval and acceptance by TALAS. Prices listed or quoted do not include any present or future sales, use, excise or similar taxes, duties or other governmental charges, which shall be added where applicable and paid for by Client, unless you provide us with a tax exemption certificate acceptable to the appropriate taxing authorities and presented at or before the time of purchase. No sales tax refunds shall be given at any time for any reason. Any taxes paid by TALAS on Client’s behalf shall be reimbursed by Client upon demand. 3. PURCHASE ORDER PROCESS. In the absence of a proposal from TALAS, Client may place orders for requested Services by submitting one or more purchase orders to TALAS. Each such purchase order is intended for convenience only and shall state the description of Services being ordered and the requested performance dates for such Services. In no event shall any terms and conditions set forth on a purchase order submitted by Client other than the terms and conditions set forth herein, including any preprinted terms and conditions of Client, be binding on TALAS. In addition, no purchase order shall be binding on TALAS until TALAS has accepted such purchase order by written acknowledgement or by delivery of the Services applicable to such purchase order. 4. PAYMENT TERMS; TERMINATION. (a) Unless otherwise agreed to by TALAS in TALAS’ proposal or other writing, payment terms shall be net thirty (30) days from the date of invoice. Interest at the rate of one and one-half percent (1 1/2%) per month (not to exceed the maximum interest allowable by law) shall be paid on the unpaid balance of any invoice not paid by Client within thirty (30) days of the due date thereof. Such interest shall be in addition to the purchase price hereunder. In the event TALAS engages a collection agency or commences a legal action or suit to collect the purchase price or any part thereof, Client shall, in addition to the full purchase price including interest, be liable for all costs and expenses of such legal action or suit (including reasonable attorney’s fees). (b) The term of the Agreement shall begin on the Effective Date and end upon the completion of all Services under all Scope Documents unless the Agreement is earlier terminated under this Section. TALAS may suspend Services if an undisputed invoice is more than fifteen (15) days past due. TALAS may terminate the Agreement if an undisputed invoice is more than thirty (30) days past due. Unless otherwise prohibited by law, TALAS may also terminate the Agreement immediately in the event of a material adverse change in Client’s financial condition, including bankruptcy, insolvency or liquidation. Furthermore, if either party breaches the Agreement, the other party may provide the breaching party with written notice of such breach, specifying the breach in detail and including documentation that evidences such breach. If the breaching party fails to cure the conditions causing the breach within thirty (30) days after receiving such notice, the other party may terminate the Agreement upon written notice to the breaching party. 5. RISK OF LOSS AND SCHEDULE. Certain Services may require TALAS to visit Client’s facility, where TALAS may perform such Services (the “Site”). Risk of loss of or damage to Client’s “Equipment” (meaning any equipment, materials, components and items of any kind for which TALAS is to provide Services under the Agreement) shall remain with Client at all times during the performance of the Services hereunder. TALAS’ performance is contingent upon Client timely providing TALAS with such assistance, including access to the Site (if applicable) as reasonably deemed necessary by TALAS to permit TALAS to perform the Services provided for in the Agreement. TALAS shall perform the Services based on a schedule mutually agreed to by the parties, provided, however, that any performance or completion dates are estimates only. TALAS shall not be liable for any loss or expense incurred by Client or Client’s customers if TALAS fails to meet any such dates. 6. CHANGES TO SCOPE. No change to any Scope Document or the scope of Services described therein shall be effective or binding upon TALAS unless such change is described in an amended version of such Scope Document that both parties have signed. Unless such amended version expressly provides otherwise, any such change shall be at the expense of Client. Changes or alterations made by Client or made by TALAS (over its recommendation against the same) shall be at Client’s sole risk and responsibility. Notwithstanding the foregoing provisions of this Section, TALAS reserves the right to make changes to the provision of its Services which in its judgment do not materially change the nature or quality of the Services. 7. NO CANCELLATION OR REFUNDS. Due to the specialized nature of the Services, orders may not be cancelled for any reason, without TALAS’ written consent, which may be withheld in its sole and absolute discretion. ALL PAYMENTS UNDER THE AGREEMENT SHALL BE FULLY NON-REFUNDABLE WITH NO EXCEPTIONS. 8. Limited WarrantY; Disclaimers. TALAS represents and warrants that it shall perform the Services in a professional and workmanlike manner. Except for the foregoing warranty, all Services (including any deliverables resulting from the Services) are provided on an “AS IS” basis with no warranty or guarantee of error-free Services or error-free deliverables. For the avoidance of doubt, THE EXPRESS LIMITED WARRANTY OF TALAS STATED IN THIS SECTION IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COURSE OF DEALING AND USAGE OF TRADE, AND IS SUBJECT TO THE LIMITS OF LIABILITY IN SECTION 9 BELOW. No employee or representative of TALAS has authority to bind TALAS to any representation, affirmation or warranty not specifically included herein. Under no circumstances shall TALAS be responsible for the loss of, damage to or corruption of any programs, software, hardware, data or storage media. Unless otherwise specifically agreed upon in writing, the Client is ultimately responsible for securing and maintaining the security, integrity and backup of all of the Client’s stored information. FOR PURPOSES OF ADDITIONAL CLARITY AND WITHOUT LIMITING THE FOREGOING, CLIENT UNDERSTANDS THAT TALAS’ SERVICES DO NOT CONSTITUTE ANY GUARANTY OR ASSURANCE THAT THE SECURITY OF CLIENT’S SYSTEMS, NETWORKS AND ASSETS CANNOT BE BREACHED OR ARE NOT AT RISK. 9. Limitation of Liability. Notwithstanding anything to the contrary contained in the Agreement, TALAS shall not be liable for any type of extraordinary, exemplary, special, indirect, consequential or incidental damages of any kind, whether based in contract, warranty, tort (including negligence), strict liability, indemnity or any other legal or equitable theory, including for loss of use, revenue, profit, goodwill or opportunity, loss of production, lost or corrupted data or software, impaired hardware, loss of use of system(s) or network, or the recovery of such, claims arising from third party contracts, or for any other loss or cost of a similar type, even if TALAS has been advised of the possibility of such damages. Without limiting the foregoing, TALAS shall have no liability for any damages or losses relating to or arising from: (a) any part of Client’s network, or any environment, data, software, hardware or operational technology; or (b) any change in applicable laws or industry standards that occurs after TALAS’ performance of the applicable Services or delivery of the applicable deliverables, as the case may be. TALAS’ maximum liability under the Agreement under any theory of recovery (whether in contract, tort or otherwise), shall not exceed the total amount paid by Client to TALAS pursuant to the applicable Scope Document within the twelve (12) month period preceding the date of the applicable claim for such liability. THE FOREGOING STATES THE ENTIRE LIABILITY OF TALAS WITH REGARD TO THIS AGREEMENT AND TALAS’ SALE OF SERVICES HEREUNDER. THE LIMITATIONS CONTAINED IN SECTIONS 8 AND 9 ARE A FUNDAMENTAL PART OF THE BASIS OF TALAS’ BARGAIN HEREUNDER, AND TALAS WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH LIMITATIONS.10. INTELLECTUAL PROPERTY RIGHTS. In connection with the performance of Services under the Agreement, neither party shall acquire any right, title or interest in any Background Intellectual Property (defined below) rights belonging to the other, and shall not make any claim with respect thereto. For purposes of the Agreement, “Background Intellectual Property” shall mean all patent rights, copyrights, rights to know-how, trade secrets and confidential information, and any other intellectual property rights belonging to either TALAS or Client, respectively, and existing on the Effective Date. Unless expressly stated otherwise in the Agreement, TALAS shall retain all right, title and interest in and to (and shall be the sole owner of): (a) all deliverables, work product, works, documents, materials, designs, methodologies, processes, techniques, ideas, concepts, designs, tools, trade secrets and know-how arising from or used in the providing of the Services, excluding any Background Intellectual Property shared by Client to TALAS in connection with the provision of the Services; (b) any and all modifications, improvements and derivative works of the items described in the foregoing subsection (a); and (c) all intellectual property rights (including copyrights) and data rights in and to the items described in the foregoing subsections (a) and (b). Effective upon Client’s fulfillment of its payment obligations under any Scope Document that specifies any documentation deliverables owed by TALAS to Client, Client shall have a perpetual, non-assignable, non-sublicensable, non-exclusive license to internally use and internally distribute such documentation deliverables for the intended purpose of such documentation deliverables. 11. CONFIDENTIALITY. In connection with the Agreement, either party may disclose its Confidential Information (defined below) to the other party. The receiving party shall: (a) maintain such Confidential Information in confidence, implementing reasonable measures and safeguards to maintain the confidentiality of such Confidential Information; (b) not disclose such Confidential Information to any third party without the disclosing Party’s prior written consent; and (c) not access or use such Confidential Information for any purpose other than the purpose of performing its obligations or exercising its rights in accordance with the Agreement. The term “Confidential Information,” as used herein, shall mean each party’s confidential or proprietary information, including trade secrets as well as technical, business and financial information, except any portion thereof that: (i) is within or falls within the public domain through no act or omission of the receiving party; (ii) was possessed by the receiving party before receipt from the disclosing party, as evidenced by documentation existing prior to such receipt from the disclosing party; (iii) is disclosed to the receiving party by a third party who has a legal right to make such disclosure; or (iv) is required to be disclosed by governmental regulation or court order, provided that the receiving party shall provide the disclosing party with sufficient advance notice to allow the disclosing party to seek a protective. 12. CLIENT DATA. TALAS shall not acquire ownership of any data in Client’s possession or control, including any such data that contains personally-identifiable information. The parties acknowledge and agree that no Services shall require TALAS to receive any personally-identifiable information from Client, except that it may be necessary for TALAS to receive personally-identifiable information of Client’s personnel for purposes of administering the Services to Client, including such personnel’s names, email addresses and other identifiers set forth in emails, messages and other communications to TALAS (“Personnel PII”). Except for the Personnel PII, Client shall not provide TALAS with copies of or access to any of Client’s or its customers’ personally-identifiable information, including protected health information, education records or other personally-identifiable information regulated by applicable laws. TALAS shall not use, disclose or retain Personnel PII for any purpose except to provide the Services authorized pursuant to the Agreement, and TALAS shall: (a) comply with all applicable laws related to the use, security and safeguarding of the Personnel PII; and (b) promptly (and no later than any deadline required by applicable law) provide Client with written notice of any event known by TALAS that involves any unauthorized access to any Personnel PII in TALAS’ possession or control. 13. THIRD PARTY SERVICES. If the applicable Scope Document specifies TALAS’ obligation to arrange for or procure any third party services as part of the Services, TALAS shall perform such obligation. Client acknowledges that such third party services shall be subject to the terms and conditions required by the relevant third party. Unless the applicable Scope Document expressly provides otherwise, Client shall directly contract with such third party and shall be solely responsible for complying with such third party’s terms and conditions, including any payment obligations owed to such third party. 14. CLIENT RESPONSIBILITIES. Client acknowledges that TALAS is not a law firm, does not engage in the practice of law and does not perform information technology services. Throughout the term of the Agreement, Client shall be solely responsible for (and TALAS shall have no liability for): (a) obtaining legal advice from competent legal counsel, and complying with all applicable laws in the conduct of Client’s business or organization; (b) procuring, installing, configuring, customizing, developing, implementing and deploying any product or service (including software, software-as-a-service, and hardware) that is not provided by TALAS to Client; (c) deciding whether to and when to implement TALAS’ recommendations and advice resulting from the Services; (d) deviating from or failing to implement any of TALAS’ recommendations or advice set forth in any written report or other written material delivered by TALAS to Client based on the Services; (e) complying with all applicable laws related to Client’s collection, use, security and safeguarding of personally-identifiable information, including any disclosure thereof from Client to TALAS; (f) reasonably cooperating with TALAS in its efforts to perform the Services; and (g) promptly responding to TALAS’ requests and communications relating to information, decisions or feedback requested from Client. In no event shall TALAS be deemed in breach of the Agreement if the cause of the breach is Client’s failure to promptly provide any response, information, decision or feedback to TALAS. 15. INDEMNIFICATION. Client shall defend, indemnify and hold harmless TALAS and its affiliates, managers, directors, officers, employees, agents, contractors and subcontractors from and against any and all losses, claims, lawsuits, proceedings, expenses, recoveries and damages, including reasonable legal expenses, costs and attorneys’ fees arising out of: (a) any breach of the Agreement by Client, or any matter for which Client is responsible as set forth in the Agreement; (b) any unauthorized access to data in the possession or control of Client or its third party contractors; or (c) any negligence or intentional wrongdoing or violation of applicable law carried out by Client or its agents, employees or third party contractors. 16. NON-SOLICITATION. Client hereby acknowledges that TALAS has made a substantial investment in its employees and has a vested interest in maintaining its employee relationships. Accordingly, during the term of the Agreement and for a period of one (1) year thereafter, Client agrees that it shall not solicit, induce, encourage or participate in soliciting, inducing or encouraging any employee of TALAS to terminate his or her relationship with TALAS. 17. INDEPENDENT CONTRACTORS. In the performance of the Agreement, the parties shall at all times act as and be deemed to be independent contractors. Neither party nor any of its employees, agents or officers shall be considered an employee, joint venturer, agent or partner of the other party. Neither party is authorized to assume or create any obligations or responsibilities, express or implied, on behalf of or in the name of the other. Each party’s personnel and employees shall at all times be under the exclusive direction and control of such party.18. FORCE MAJEURE. TALAS shall not be liable for any failure or delay in the performance of its obligations under the Agreement, and such failure or delay shall not be deemed a breach of the Agreement or grounds for termination hereunder if such failure or delay is caused, directly or indirectly, by a fire, flood, earthquake, storm, element of nature, act of God, act of war, terrorism, cyberattack, hacking, virus, malware, ransomware, malicious code, riot, civil disorder, rebellion, revolution, labor strike, labor lockout, epidemic, pandemic, failure of public utilities, interruption or failure of the Internet, industry-wide unavailability of raw materials or parts, change in law, issuance of a judicial or governmental order, the illegality of any activity or transaction related to the Agreement, or any other cause beyond the reasonable control of TALAS (each, a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, TALAS shall be excused from any further performance of those of its obligations under the Agreement affected by the Force Majeure Event for as long as: (a) such Force Majeure Event continues; and (b) TALAS continues to use commercially reasonable efforts to recommence performance whenever and to whatever extent possible. 19. Notices. Notices may be delivered by overnight courier or fax, with proof of delivery, or by United States mail, registered or certified mail, with postage prepaid, in each case addressed to the party being notified at such party’s address referred to on the face of the Agreement, or at such other address as such party shall have notified the other party in writing.20. Not Transferable. This Agreement is not transferable or assignable by Client either directly or by operation of law without the prior written consent of TALAS. 21. Headings; INTERPRETATION. Section headings are for convenience only and shall not be construed to define or limit the operative provisions of the Agreement. Each party acknowledges that: (a) any reference to applicable law shall be deemed to refer to all national, federal, state, local, municipal and foreign statutes and laws, including all rules and regulations promulgated thereunder; (b) the word “will” has the same legal effect and force as the word “shall;” and (c) the word “including” means “including, without limitation,” the word “includes” means “includes, without limitation,” and the word “or” shall not be exclusive. 22. Amendments. No amendment, change to or modification of the Agreement, or any schedules or attachments hereto, shall be valid unless the same shall be in writing and signed by the party or parties to be charged therewith.23. GOVERNING Law. The rights and duties of the parties shall be governed by the laws of the State of New York, excluding its conflict of law principles. The federal and state courts located within Madison County, New York shall have exclusive jurisdiction to determine any and all actions and proceedings relating to or arising from the Agreement and the sale of Services hereunder and each party hereby irrevocably consents to the personal and subject matter jurisdiction of such courts with respect thereto. 24. WAIVER OF TRIAL BY JURY. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER, OR IN CONNECTION HEREWITH OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT SUCH PARTY AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION.25. WAIVER. Neither party's delay or failure in enforcing any right or remedy afforded under the Agreement or by law shall prejudice or operate to waive that right or remedy or any other available right or remedy. 26. SEVERABILITY. In the event any provision or provisions herein, or parts thereof, shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired and shall remain in full force and effect.27. ENTIRE AGREEMENT. The Agreement, including the Scope Documents, constitutes the entire agreement between the parties hereto and supersedes all prior oral and written and all contemporaneous oral negotiations, commitments and understandings. End of Standard Terms and Conditions of Service© 2023 TALAS Security LLC