Services

This SOW represents the complete and total understanding of the parties regarding the services to be provided by Apollo hereunder. Any modification of the referenced terms is limited to the duration and scope of this engagement. This SOW forms part of the Products & Services Master Agreement between Apollo and Client.

Apollo, through its employees or affiliates, shall provide to Client the above services. It can take up to two (2) weeks to schedule technical resources.

Services delivered on a monthly or continuous basis shall begin on the Effective Date as listed in the SOW and continue for the duration listed (the "Initial Term"). Thereafter, this Agreement will automatically renew for additional successive periods of twelve (12) months (each, "Renewal Term" and together with the Initial Term, "Term"), with 5% price increase, unless:

  • Terminated in accordance with the Termination section of this SOW, or
  • Either Party notifies the other in writing no less than thirty (30) days prior to the close of the then-current Initial or Renewal Term of its intention not to renew.

Invoicing and Payments

Terms of Payment

Terms of payment is net 30. The balance of any amount which remains unpaid more than thirty (30) days after it is due shall accrue interest until paid at the rate equal to the lesser of ten percent (10%) per calendar month, the interest rate listed on the invoice, or the maximum amount allowed under Applicable Law. In no event shall this interest provision be construed as a grant of permission for payment delays.

Taxes

Apollo will perform the work described, not inclusive of any applicable taxes. Any applicable taxes are extra and will be added to each invoice at the rate in effect when the invoice is submitted.

Retainers

Apollo will provide to Client services charged against pre-paid amounts from Client as part of a Retainer. Client shall have the duration specified in this SOW to consume the value of Apollo services from the point that the client agrees to the services. Retainer values are not refundable or transferable.

If the services being delivered are billed against a prepaid amount, and the scope of work is estimated to exceed aforementioned amount, Apollo will notify the Client when 80% of the amount is consumed or the need for additional funding is identified. Apollo will work with Client on a new estimated price to complete or continue services. Additional funds will be applied to this SOW via a Change Order.

Hourly Services

If Apollo staff are engaged at hourly rates, billing shall occur in half hour increments, with an hour minimum per type of work performed. Any incurred travel and material expenses may be invoiced separately.

If an engagement is billed on an hourly basis and may require additional hours beyond the estimates contemplated here, additional hours exceeding 50% of the estimate will not be added to engagements nor costs incurred without Client prior written notice and consent.

Travel

If travel is required, expenses (travel, lodging, meals, shipping, etc.) will be billed at cost and travel hours incurred will be invoiced to Client as allowed under Applicable Law. Apollo will fly coach class (plus) on all domestic flights up to 5 hours in length. Apollo will fly the lowest fare business class on international flights, where available. If Apollo consultants are required to change flights due to business-related circumstances, all flight change fees will be reimbursable by Client.

Frequent flyer plans, airport airline club memberships, and excess baggage charges are the responsibility of the Consultant.

Assumptions

The project time frame and associated fees quoted within this SOW are based on the following assumptions. Should any element(s) of these assumptions be lacking during execution of services, additional time and associated fees and expenses may be required to complete this SOW.

  1. Client will provide a point of contact for the duration of this project.
  2. Apollo is not a law firm and does not provide legal advice.
  3. Timely responses and attendance at scheduled meetings and completion of any required tasks are critical to managing the project and the overall success of the work effort. Should key Client personnel not be able to participate in this work effort on a timely basis, there may be timeline and budgetary implications.
  4. All parties agree that Apollo personnel shall not be asked to perform, nor volunteer to perform, engineering and/or consulting tasks that lie outside of the skill sets and experience of personnel and the tasks for which they have been retained. Personnel have the right to decline a service request if the request falls outside the scope of this SOW.
  5. Client will provide Apollo and its affiliates with the appropriate technical and business information required to deliver services prior to the commencement of services. Apollo and its affiliates assume that the technical and business information provided by Client is correct. Incorrect technical and business information may delay the delivery of deliverables defined in this SOW. If any additional work is required to be added to this SOW, a mutually executed change order will outline such needs.
  6. Apollo and its affiliates will not be responsible for network or service degradation that may result from contracted work defined in this SOW. All efforts will be made to reduce and or eliminate negative effects during the engagement. Client acknowledges that certain types of work may result in some systems may become unresponsive and may require a reboot for normal function to resume. Apollo and its affiliates will schedule and notify all parties of any work that may cause this behavior prior to conducting the work. Client will provide contact information for someone that will be able to reboot the equipment as needed during the execution of the work to ensure minimal impact to Client.
  7. Apollo may perform activities to help Client prepare for audits, reviews, or certifications. However, as the audit, review, or certification will be performed by a third party, Parties agree there is no guarantee that Client will pass or achieve the audit, review, or certification.
  8. If permission may be required, Client will proactively obtain permission from any third-party service providers, including Internet Service Providers, on behalf of Apollo to deliver services.
  9. Apollo and its affiliates will execute all work according to the best practice in the industry, and all measures will be taken to avoid damaging the network, the systems, and the data contained within such network and systems. However, if the extended downtime or loss caused by the execution of the work in this SOW was not due to any negligence by Apollo and its affiliates or was unforeseeable or unavoidable; Apollo and its affiliates will not be held responsible for damages or any other consequences.
  10. In the event that Client or Client's third-party providers or partners do not respond in a timely manner to communiques by Apollo, Apollo shall not be held liable for any service level or contractual penalties resulting from the delay in response.

Team Members and Expertise

Apollo will provide the experienced consultant(s) and Subject Matter Expert(s) (SME) for this engagement and will work collaboratively with Client leadership for the duration and the scope of this engagement. For this engagement, Apollo may leverage a combination of resources to lead and manage the workload as described in this SOW. All provided resources will be experienced in their respective area. Apollo routinely uses experienced former CISOs, security architects, vulnerability experts, and engineers to deliver consultative SME services and selects the best resources available for each engagement. Apollo's technology service's team leadership reviews all work products for quality prior to final submission to Client to ensure the best possible fit and business outcomes for Client.

Client Role

At all times, Client shall have the responsibility to:

  1. Comply with any licenses for the software and other intellectual property it owns or licenses in connection with an application and operating software or software otherwise supporting Client's business and operations;
  2. Maintain sound and accurate data and records;
  3. Implement and maintain a system of security to protect the integrity of its data and records by preventing access or change by unauthorized persons;
  4. Maintain a system for regularly backing up its data and records;
  5. Maintain a system to reduce the likelihood of human error;
  6. Prevent corruption of its data and records caused by hardware malfunctions, software bugs, failure to comply with operating instructions, corruption of application and operating systems and software and other causes; and
  7. Grant Apollo and its affiliates the right to access, use and test the applicable services set forth in this SOW.

Client's failure to maintain and implement any one of the foregoing could result in erroneous records and/or data loss for which Apollo will not be responsible or financially liable under any theory of law or equity.

Change Control

Apollo and its affiliates may provide an estimated timeframe required to complete the services. Client acknowledges and agrees that if impediments, complications, or Client-requested changes in scope arise, these factors are out of the control of Apollo and its affiliates, and the length of the projects and service engagements and the associated price could be impacted.

Examples of valid impediments, complications, and changes in scope consist of (but are not limited to):

  1. Client initiated delay where Client is not prepared to allow Apollo and its affiliates to begin work on the agreed-upon start date, thus resulting in an additional cost to Apollo for resources assigned to Client engagement but cannot begin the services.
  2. Client provided the information necessary for timely delivery by Apollo is inaccurate.
  3. Delays or problems associated with third-party telecommunication equipment. (This includes, but is not limited to, cabling, servers, routers, hubs, and switches managed or installed by third parties.)
  4. Malfunctioning hardware owned by Client.
  5. Inability to access equipment or personnel that are required to complete the project or services.
  6. Client increases the scope of services requiring additional labor, hardware, software, materials, travel, lodging, meals, or other direct costs.
  7. Client does not complete planned exercises within the allotted time.

Change Orders

Change orders will be provided for additional scope and deliverables identified within any activity which is in addition to the original specifications or intent of the original specifications of the project or services. In the event that Apollo or Client identifies a requirement to materially change a SOW, it shall submit in writing a detailed request for the change.

  1. Upon receipt of the change request, Client or Apollo, as appropriate, shall, within three (3) working days, review the request and submit to the other party a written acceptance/rejection notification, including, if appropriate, acceptance of any incremental charges payable for such change.
  2. Within three (3) working days of receipt of a notice of acceptance under the provisions of the point above, both parties shall agree to the change in writing and prepare a change order referencing the original SOW or a new SOW if the changes dramatically change the original SOW. If a new SOW is agreed to in writing, the old SOW will be of no force and effect.

Completion Measurement and Deliverable Schedule

Final reports will be sent electronically via an encrypted mechanism to the Client within fifteen (15) business days following the completion of the services, as noted above. Within five (5) business days of final delivery or completion of project deliverables, whichever is later, a final close-out call with Client and Apollo will take place for the formal debriefing and engagement closeout. Upon completing the debriefing and engagement closeout call with the Client, this SOW will be considered complete. Unless otherwise mutually agreed in writing, in the event that the Client is unable to schedule the final closeout meeting within fifteen (15) business days of the final report submission or completion of the deliverables, this SOW will be considered complete.

Intellectual Property

Ownership

As between Client and Apollo, Apollo does and shall be deemed to own the Intellectual Property contained in the Deliverables. Additionally, Apollo retains the absolute right and ownership to all information contained in the Deliverables not specific solely to Client (i.e., such information that could be used or applied to others). Nothing contained in this SOW shall be construed to convey to Client any ownership interest in or to such Intellectual Property or information contained in the Deliverables.

Grant of License

Subject to Client's payment of the applicable fees and Client's satisfaction of the other terms and conditions of this SOW, by this SOW, Apollo grants to Client a non-exclusive, non-transferable, non-sublicensable, royalty-free, revocable license to use the Deliverables internally for the purposes intended. No right is granted by this SOW for the use of the Deliverables (or any aspect of them), directly or indirectly, by any person or entity other than Client.

Confidentiality

The Deliverables, received in whatever medium from Apollo are confidential and proprietary information of Apollo, and Client agrees that they may not be used, copied, disclosed, or distributed except as expressly authorized in this SOW. Client may allow internal distribution of the Deliverables, but under no circumstances are the Deliverables to be distributed to external users.

Users of the Deliverables shall not distribute, copy, or disclose any such materials, in any form, to any person or entity outside Client, except as specifically allowed by Apollo in writing. In addition, Client agrees not to remove any copyright notice or other similar legend from the Deliverables, or any information or materials provided in conjunction with the Deliverables.

Client shall not, without Apollo's prior written consent, permit or grant access to the Deliverables to any third-party Internet services provider or third-party Internet security services provider.

Apollo's fees payable under this SOW are non-refundable.

Limitation of Liability

In no event shall Apollo be:

  1. Obligated or liable to Client in any manner for consequential, indirect, special, or incidental damages, including but not limited to loss of profits, loss of data, loss of goodwill or suits by third parties, including customers of Client; or
  2. Liable to Client for direct damages for a total aggregate sum in excess of the value of this contract.

No action, whether in contract or tort, including negligence or otherwise arising out of or in connection with this Agreement, may be brought more than ninety (90) days after completion of the term of this Agreement or the date of completion of any extended term.

Hold Harmless/Indemnity

Both parties agree to defend, indemnify, and hold the other party harmless for and against all actions, claims, and complaints, whether formal or informal, actual or threatened, arising from the failure to act by the Indemnitor (including, without limitation, negligent or willful misconduct) alleged to cause any injury to any person or persons or damage to tangible or intangible property. This provision includes an obligation to indemnify Apollo for all costs (including, without limitation, settlement costs and other legal expenses) incurred in defending or resolving such actions.

Additional Representations & Warranties

Client represents, covenants, and agrees that:

  1. Apollo and its affiliates' access and use of the services are not subject to any "Terms of Use" or other terms or conditions that may be posted or otherwise provided in the course of providing the services.
  2. Client is either the owner of the services or has the authority to permit Apollo and its affiliates to conduct the assessment, and Client will provide Apollo and its affiliates written evidence thereof upon request.
  3. It shall not:
    • copy or otherwise reproduce, whether in whole or in part, the services;
    • modify or create any derivative work of the services;
    • sell, rent, loan, license, sublicense, distribute, assign or otherwise transfer the services;
    • cause or permit the disassembly, decompilation or reverse engineering of the services or otherwise attempt to gain access to the source code of the services; or
    • cause or permit any third party to do any of the foregoing, and such restrictions shall survive the expiration or termination of this SOW.
  4. It is the Client's sole responsibility to update and maintain its network and systems, including, without limitation, fixing any security vulnerability revealed by the services.
  5. ALL PRODUCTS AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT, EXCEPT FOR OUR EXPRESS WARRANTIES AND OTHER OBLIGATIONS HEREIN, WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

Dispute Resolution

This Agreement shall be governed and construed in accordance with the laws of the State of Texas.

The parties shall resolve their disputes informally to the maximum extent possible. The parties shall negotiate all matters of joint concern in good faith, with the intention of resolving issues between them in a mutually satisfactory manner. Only disputes within the scope of this Agreement are subject to this Section. However, nothing in this Section shall preclude the parties from exercising their termination rights pursuant to the Termination section of this SOW.

If informal resolution fails to reach a mutually acceptable resolution, then the parties agree to mediation utilizing JAMS mediators.

Termination

In the event a Master Services Agreement (MSA) is not in place with Apollo, termination shall be governed by the following:

  1. This SOW may be terminated by either party: (i) if either party materially or repeatedly defaults in the performance of any of its duties or obligations under this Agreement, and: (1) within thirty (30) days after written notice is given to the defaulting party specifying the default, it is not cured to the reasonable satisfaction of the party giving the notice of default, or (2) with respect to those defaults that cannot reasonably be cured within thirty (30) days, if the defaulting party fails to commence curing the default within fifteen (15) days after receipt of the notice of default, and to continue proceeding with all due diligence to cure the default, then the party not in default may terminate this Agreement by giving written notice of termination to the defaulting party, which termination shall be effective immediately upon receipt of the notice of termination. If the default is incapable of being cured, then the thirty (30) day cure period shall not apply and notice of termination may be given directly by the party not in default, or (ii) immediately, in the event of bankruptcy of the other party.
  2. Upon termination of this, Client will immediately pay Apollo all Costs owed for Services provided through the date of termination. As necessary, the Costs for any Deliverables shall be prorated based on the percentage of such Deliverables completed through the date of termination, whether or not the Deliverables are functional.

Termination Transition Services

Apollo understands and agrees that Client's business operations may be dependent on the use of the services. Therefore, Apollo agrees that in the event of any termination of this Agreement for any reason, Apollo shall fully cooperate with Client in the transition to a new service provider. Apollo shall be paid at Apollo's then standard rates.

Non-Solicitation of Personnel

During the term of this Agreement and for a period of one (1) year thereafter, Client and its Affiliates will not, directly or indirectly, solicit or encourage any employee or consultant of Apollo or its Affiliates to leave for any reason, including, without limitation, to accept employment or an engagement with Client or any other company; provided that an employee or consultant being hired or engaged directly as a result of a general solicitation to the public shall not be deemed to be a violation of this provision.

Miscellaneous

Entire Agreement. This Agreement, together with all attached schedules, addenda, exhibits, and amendments, forms the entire agreement between the Parties relating to the Products and Services to be provided by Apollo to Client and supersedes any prior representations or agreements, oral or written, and all other communications between the Parties relating to the subject matter of this Agreement. Any subsequent additions, deletions or modifications to this Agreement are not binding unless agreed upon in writing by authorized representatives of both Parties.

Governing Law. This Agreement will be governed by the substantive laws of the state of Texas without giving effect to any conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. All disputes under this Agreement will be heard exclusively in the courts located in Williamson County, Texas.

Force Majeure. Except for Client's obligation to make timely payments, neither Party will be liable for any failure or delay in the performance of this Agreement due to circumstances beyond its control, including but not limited to acts of nature, acts of government, national emergencies, acts of terrorism, transportation delays, labor disturbances or work stoppages (excluding, in the case of Apollo, labor disturbances or work stoppages involving Apollo Personnel) or shortages of material; provided that (i) such delay or failure could not have been reasonably prevented or circumvented by the non-performing Party through the use of alternate sources, work-around plans or other means, (ii) the non-performing Party uses commercially reasonable efforts to minimize the duration and impact of such non-performance, and (iii) the non-performing Party immediately notifies the other Party describing in reasonable detail the circumstances causing, and the anticipated duration of, such delay or failure.

Notices. Any notice required or permitted to be given must be in writing and is considered received: (i) when personally delivered; (ii) one business day after having been sent by overnight mail via a professional carrier; or (iii) when sent via electronic mail, receipt confirmed (excluding auto-receipts), with an original document placed in the mail within five (5) business days of the date of that electronic mail. All business communications must be sent to the addresses set forth above or to other persons or addresses as either Party designates in writing to the other.

Legal notices to Apollo must be sent with a copy addressed to:

Apollo Information Systems Corp.
12240 Inwood Rd.
Suite 430
Dallas, Texas 75244
Attn: Legal Department

Goods Purchased for Export. If Product purchased under this Agreement or any PO or SOW is intended for export, it may be subject to export regulations. Client acknowledges this possibility and accepts full responsibility for and agrees to comply fully with all export regulations, including obtaining export licenses. In addition, Client represents and warrants that no technical data will be exported under this Agreement except in compliance with all requirements of the International Traffic in Arms Regulations (ITAR) and Export Administration Regulations (EAR).

Severability. If any part of this Agreement is for any reason found to be invalid, illegal, or unenforceable, all other parts will still remain in effect. The provisions of this Agreement, which by sense and content are intended to survive, including but not limited to the sections related to payment, warranties, remedies, indemnification, confidentiality and limits of liability and waiver of consequential damages, will survive the expiration or termination of this Agreement.

Waiver. A delay or failure to exercise or partially exercise any right under this Agreement does not operate as a waiver, nor will it preclude future exercise of that right or permit, or sanction any subsequent breach of any term or condition.

Headings. The headings in this Agreement are for reference purposes only and may not be construed as being part of this Agreement.

Counterparts. This Agreement may be executed in one or more counterparts, each of which will be considered an original, but which altogether constitute the same instrument.

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