Terms & Conditions

These terms and conditions shall govern the purchase and use of any services, software, equipment, or any other product from TBNG, Inc. d/b/a VANCORD (“Company”) and are incorporated into the Master Services Agreement (“Agreement”) and each Statement of Work (“SOW”). The term “Client” for purposes of these Terms and Conditions shall mean the party named on the applicable quote, SOW, Proposal, Project Scope and/or Purchase Order.

1. Services                                                                                                                                                                                                                                                                                                  Company shall provide Information and Cyber Security Solutions (“Services”) as described in any Statement of Work provided to the client (a “SOW,” said term being understood to refer to any and all Statements of Work, Proposals, Project Scopes, and quotes, including appendices) accepted by the parties.

2. Change in Services                                                                                                                                                                                                                                                                                    If Client desires changes to the Services set forth in the Agreement and/or SOW, Client shall submit to Company a written request documenting such requested changes, or in accordance with any change order process set forth in the applicable Agreement or SOW.  Any agreed-upon changes must be documented in writing and Client shall be responsible for any additional fees set forth therein. If appropriate, Company will provide pricing to Client for such changes on Company’s change order process (“Change Order”) or via additional Statements of Work describing changes to the Services, which will become part of the Agreement and/or SOW upon execution by Company and the Client. If a change order or additional SOWs are executed, then Client agrees to pay the Company for all services performed for original and additional SOWs. If Client changes the work schedule or if compliance with the schedule becomes impractical, due to no fault of the Company, we reserve the right to reevaluate and amend the pricing for Services and/or Equipment or to submit change notice for any additional costs incurred as a consequence of such changes.                                                                                                                                                                                                                                                                                                                                                                                                                      The Company may, at its option, agree to accept standard stock product returns from Client. Such standard stock product must be in its original condition to allow for resale. The Company reserves the right to charge a restocking fee of a minimum of twenty-five percent (25%) of the selling price. The Client shall also be responsible for the payment of all shipping charges for the returned product. Subscriptions, Licenses and Engineered or Customized products cannot be returned for a restocking fee.

3. Fees and Payment Terms                                                                                                                                                                                                                                                                    For performance of the Services and rendering any agreed-upon Deliverables, Client shall pay to Company all fees due under the Agreement and any applicable SOW. Payment terms are due upon receipt and payable in US dollars, without the right to set-off or deduction, unless otherwise agreed to. If any undisputed amount payable to Company is in arrears for more than thirty (30) days from the date of invoice receipt, Company reserves the right, in addition to any other remedy, to (a) charge interest on such overdue amount on a day to day basis from the invoice date until paid in full at the rate of the lesser of one and a half percent (1.5%) per month, or the maximum rate permissible under applicable law; and (b) suspend the provision of the Services until such time as payment is received; provided that Company shall not suspend the provision of Services without first providing at least five (5) business days advance notice to Client. Company shall provide at least five (5) business days advance notice to Client in the event that Company intends to initiate litigation to collect undisputed amounts owed by Client.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              On an annual basis, unless otherwise agreed to in writing, a minimum five percent (5%) increase will be applied to all annual recurring services including licensing, maintenance, support and service fees. All prepaid blocks of professional engineering & security hours expire 12 months from date of execution. In the event of a good faith dispute with regard to an item appearing on an invoice, the Company shall have the right to withhold the Deliverable while the parties attempt to resolve the dispute.

4. Notice and Cure Period
   Upon delivery of any portion of the Services or Deliverables, Client shall have five (5) days in which to determine whether they substantially conform to the specifications or description of services (collectively “Specifications”) set out in the SOW. Unless Client gives notice to Company as stated in the next sentence that such Services or Deliverables do not substantially conform to the Specifications, Client shall be deemed to have accepted such Services or Deliverables. If Client reasonably believes that such Services or Deliverables do not substantially conform to the Specifications, Client shall give notice to Company no later than five (5) days after performance of the relevant Services or receipt of the Deliverables, specifying the non-conformance in reasonable detail. Company shall have fifteen (15) days from the receipt of such notice, and shall use all commercially reasonable efforts, to correct the deficiencies. Upon completion of such correction, the Services and Deliverables shall be deemed final.

5. Termination
   The term shall begin as of the Effective Date stated on the Agreement and shall continue until completion of the Services in accordance with the SOW, unless sooner terminated under this Termination section or extended by written agreement of the Parties. Expiration of the Agreement shall also terminate the SOW unless otherwise provided in the SOW. Either party may terminate the Agreement and the SOW if the other party fails to perform or materially breaches any of its obligations under the Agreement, and such breach remains uncured for fifteen (15) days after the terminating party has given written notice of the failure or breach to the other party. In the event either party terminates the Agreement and/or SOW prior to completion of Services, the Client shall pay Company any fees due under the Agreement and/or SOW in excess of any deposit or fees already paid with respect to Services completed as of the date of termination, within fifteen (15) days upon receipt of invoice. Upon settlement of funds due to Company, all Client provided materials will be returned to Client and all Client use rights in the work in process as described in Section 8 (“Ownership.”). Client also agrees to pay to Company all unpaid fees accrued or incurred as of such termination date, including but not limited to, immediate payment of all fees in relation to the Services and fees for which have been prorated through the end of the subscription term as if the SOW(s) remained in full force and effect and were fully performed by Company. Prepaid fees are not refundable.

6. Representation and Warranties
      a.  Company’s Representation: Company represents that any materials used in any Deliverables will not knowingly (a) infringe on the intellectual property rights of any third party or any rights of publicity or privacy or (b) violate any law, statute, ordinance or regulation.                                                                                                                                                     b.  Client’s Representation: Client represents that any materials provided to Company by Client for incorporation into Deliverables will not knowingly (a) infringe on the intellectual property rights of any third party or any rights of publicity or privacy or (b) violate any law, statute, ordinance or regulation.

7. Disclaimers
   

   EXCEPT FOR THE WARRANTIES SET FORTH IN THESE TERMS AND CONDITIONS AND ANY SOW, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES OF TITLE AND NONINFRINGEMENT. COMPANY DOES NOT WARRANT THAT ANY SERVICES OR EQUIPMENT (INCLUDING HARDWARE, SOFTWARE AND SECURITY SOFTWARE) WILL BE UNINTERRUPTED OR ERROR FREE IN ITS OPERATION OR PREVENT THIRD PARTY HACKING OR ACCESS TO CUSTOMER’S NETWORKS.

          a.  The Services are designed to enhance security and reduce institutional risk. Company does not represent that it will prevent any breach, and Company will have no liability         with respect to any breach of Client’s systems. 

          b.  Cyber threats are designed to evade detection. Company does not represent that it will detect every threat and/or attack, and Company will have no liability for failure to           detect any breach.

          c.  THE PARTIES ACKNOWLEDGE AND AGREE THAT NO MONITORING AND DETECTION SERVICES VENDOR, INCLUDING COMPANY, CAN GUARANTEE THAT IT WILL           BE ABLE TO DETECT EVERY THREAT AGAINST CLIENT. CLIENT ACKNOWLEDGES AND AGREES THAT COMPANY IS LIMITED IN ITS ABILITY TO MONITOR AND DETECT           THREATS ONLY TO THREATS THAT ARE PUBLICLY VISIBLE, PUBLICLY ACCESSIBLE, AND PUBLICLY DETECTABLE. COMPANY DISCLAIMS, AND SHALL NOT HAVE ANY             LIABILITY FOR FAILURE TO DETECT ALL THREATS AGAINST CLIENT INCLUDING, WITHOUT LIMITATION, THREATS THAT ARE DE-IDENTIFIED, ANONYMIZED, MASKED,               HIDDEN, OBSCURED, MADE IN NON-PUBLICLY VISIBLE, NON-PUBLICLY ACCESSIBLE AND/OR NON-PUBLICLY DETECTABLE FORUMS, THREATS THAT ARE ENCRYPTED         OR OTHERWISE SECURED FROM ACCESS OR DETECTION, AND OTHER SIMILAR THREATS. FURTHER, THE DECISIONS OF CLIENT, OR THE ACTIONS OR OMISSIONS OF         CLIENT, BASED ON THE SERVICES PROVIDED HEREUNDER ARE CLIENT’S OWN. COMPANY DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES ENDORSEMENTS,         OR COVENANTS OF ANY KIND, EXPRESS OR IMPLIED, AND SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR THE DECISIONS MADE BY CLIENT, OR THE ACTIONS             OR OMISSIONS OF CLIENT, BASED UPON THE SERVICES PROVIDED UNDER THESE TERMS AND CONDITIONS OR AN APPLICABLE SOW, OR THE RESULTS OBTAINED             FROM SUCH SERVICES, OR THE ANALYSIS OR INTERPRETATION OF CONTENT OR DATA USED IN CONNECTION WITH, RESULTING FROM OR DERIVED FROM THE                   SERVICES PROVIDED UNDER THESE TERMS AND CONDITIONS AND ANY SOW. CLIENT IS SOLELY RESPONSIBLE FOR THE SELECTION AND USE OF ALL THIRD PARTY         PRODUCTS (DEFINED BELOW), IF CLIENT ENGAGES COMPANY TO MONITOR ANY THIRD PARTY PRODUCTS (DEFINED BELOW), COMPANY DISCLAIMS ALL LIABILITY           ARISING FROM THIRD PARTY PRODUCTS. CLAIMS RELATED TO THIRD PARTY PRODUCTS ARE THE SOLE RESPONSIBILITY OF THE THIRD PARTY, AND CLIENT WAIVES         ANY RIGHT TI MAY HAVE TO BRING A CLAIM AGAINST COMPANY RELATED TO THIRD PARTY PRODUCTS.

           * As used in these Terms and Conditions, “Third Party Products” shall mean those products or services offered and provided by third parties to Client, whether or not such               Client use or access is facilitated by or through the Company, and includes, for example, cyber security or endpoint detection or security services and products provided by               third parties.

8. Ownership
   “Intellectual Property Rights” means any and all (a) rights associated with works of authorship, including but not limited to copyrights, (b) trademark and trade name rights and similar rights, (c) trade secret rights, (d) patents and (c) all other intellectual property rights in any jurisdiction throughout the world. To the fullest extent permitted by law, Company retains ownership in all Intellectual Property rights relating to or incorporated in any Deliverable. Upon receipt of final payment in accordance with paragraph 2 above, Company grants Client a perpetual, non-exclusive and non-transferable license to use the Deliverable and the related Intellectual Property Rights solely as part of the Deliverable. Client shall retain sole ownership of all Intellectual Property Rights in connection with any original material it provides to Company for use within a Deliverable. After termination of the Agreement and upon full payment for the work in process, Company will grant Client a perpetual, non-exclusive and non-transferable license to use the work in process. In no event will Company be liable for any claims related to or arising from Client’s improper use of the Deliverable, work in process, or components that comprise the Deliverable or work in process.

9. Confidentiality and Proprietary Information; Indemnification
   

      a.  Due to the unique nature of the scope of services to be provided by the Company, the Client acknowledges that the Company may gain access to certain confidential, proprietary and non-public information (the “Confidential Information”) of the Client.  In such event, the Client expressly consents to the Company obtaining and possessing such information on the terms and conditions contained herein. Company will use reasonable administrative, technical and physical safeguards to protect the security of Confidential Information.

      b.  Any services performed by Company related to assessing, testing, modifying or otherwise servicing Company’s security systems shall be exempted from any amendments to any Agreement addressing data privacy and security practices.

      c.  The Client hereby indemnifies and holds Company harmless to the fullest extent permitted by applicable law in effect on the date hereof or as such laws may from time to time be amended as a result of Company obtaining or gaining access to the Confidential Information. 

      d.  The Company agrees that it will not disclose the Confidential Information to any third party without the prior written consent of the Client (unless required to do so by a court of competent jurisdiction) or unless such Confidential Information is or becomes part of the public domain through no fault of the Company.

      e.  The Company shall be entitled to the indemnification rights provided in this section if it is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative in nature, by reason of the fact that Company provided the services contemplated herein or by reason of anything done or not done by the Company pursuant to these terms and conditions.  The Client hereby  indemnifies and agrees to indemnify the Company against all expenses (including reasonable attorneys’ fees), costs, judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by the Company in connection with such action, suit or proceeding (including, but not limited to, the investigation, defense or appeal thereof), if the Company acted in good faith,  and with respect to any criminal action or proceeding, if the Company had no reasonable cause to believe its conduct was unlawful.

      f.  Upon the Client’s request, during certain specified engagements, the Company shall use its best efforts to hack, break into, invade or otherwise gain access to the contents of the Client’s computer systems without the Client’s knowledge. The purpose of the Company’s services is to assist the Client in identifying any mechanisms or vulnerabilities in which unauthorized third parties can access the Client’s computer systems.  The Company shall provide the Client with periodic updates on the status of Company’s progress as requested by the Client.

      g.  The Parties agree that the terms of Agreements and SOW between Client and Company shall be kept confidential at all times, except that disclosure is permitted to attorneys, financial advisers, and as may be required to satisfy a court order or subpoena in a legal proceeding.

10. Limitation of Liability
    COMPANY WILL NOT BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, LOST DATA, REVENUES OR OPPORTUNITIES OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY UNDER ANY AGREEMENT OR SOW FOR ANY AND ALL CAUSES WHATSOEVER EXCEED THE FEES PAID TO COMPANY HEREUNDER.

11. Compliance with Laws
    Each party shall perform all of its obligations under these terms and conditions, in compliance at all times with all foreign, federal, state and local statutes, orders and regulations, including those relating to privacy and data protection.

12. Relationship
    These terms and conditions shall not be construed as creating a partnership, joint venture, general agency or any other association which would impose upon one party liability for the acts or omission of the other, except as expressly provided herein. Additionally, both parties agree not to directly or indirectly solicit, hire, or recruit any employee of the other party for the duration of all Agreements and for twelve (12) months following the termination of the, unless explicitly agreed to, in writing. It is the express intention of the parties hereto that Company is an independent contractor. 

13. Force Majeure
    If any performance by either party shall be prevented, hindered or delayed by reason of any cause beyond the reasonable control of such party (such event being hereafter called an “event”), including, without limitation, acts of God, riots, fires, floods, unusually severe weather,  unavailability or performance degradation of electrical resources or the Internet, strikes or other disputes involving such party or its subcontractors or suppliers, acts of war, insurrection, civil unrest, terrorism, elevated risk of terrorism, riot or disorder, acts of governmental authorities, changes in law or regulation, or any other cause beyond the reasonable control of such party, whether similar or dissimilar to those expressed hereinabove, such party shall be excused from performance to the extent that its performance is so prevented, hindered or delayed. Such excuse from performance shall extend so long as the event continues to prevent, hinder or delay the performance by such party. The party whose performance is affected shall give the other party notice within 48 hours of the event specifying the event, the performance affected and the anticipated date, if any, performance can be made.

14. Taxes
    As applicable, you agree to pay, and indemnify us against, all State sales, use and other taxes (excluding income and franchise taxes), including any applicable customs and duties, imposed upon and paid by us by reason of the assembly, sale, delivery or installation of the Equipment and performance of Services.                                                                          
15. Shipping Terms                                                                                                                                                                                                                                                                              Physical shipments of equipment (including software) are FOB Shipping Point unless otherwise specified. Freight charges may be prepaid by the Company and will be invoiced to the Client.                                                                                                                                                                                                                                                                                                                             
16. Assignment and General
    The Company may assign any Agreement without the prior written consent of the Client at any time. Any notice may be sent by electronic mail or by registered or certified mail or recognized delivery service, using the most recent contact information provided by the recipient, and such notice shall be deemed to have been given when so delivered, sent by email, fax, or mail. If any provision of these terms and conditions are adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these terms and conditions will otherwise remain in full force and effect. Any waivers or amendments shall be effective only if made in writing signed by a representative of the respective parties.                                                                                                                                                                        
17. Choice of Law                                                                                                                                                                                                                                                                                    These terms and conditions, Agreements and all SOW will be deemed to have been made in, and shall be construed pursuant to the laws of the State of Connecticut and the United States without regard to any conflicts of laws provisions. Any suit or proceeding arising out of or relating to these Agreements shall be commenced in a federal or state court in New Haven County, Connecticut and each party irrevocably submits to the exclusive jurisdiction and venue of such courts.                                                                                        
18. Remedies                                                                                                                                                                                                                                                                                      Company reserves all remedies available at law or equity for any disputes that arise under any Agreement or SOW. In the event of a suit or proceeding, Client agrees to pay all attorneys’ fees if the federal or state court renders judgment substantially in Company’s favor.                                                                                                                                                                         
19. Legal Expenses                                                                                                                                                                                                                                                                                         In case suit shall be brought to recover any amount due under an agreement or to enforce any provision hereunder or for the breach of any covenant or failure to perform by the client, Company shall be entitled to collect from client all expenses incurred, including reasonable attorney’s fees. The laws and regulations of the State of Connecticut shall govern all aspects of these terms and conditions.