Consulting Services Terms

These consulting services terms (the “Terms“) are part of an agreement (the “Agreement”) entered into by and between Peak InfoSec LLC, a Florida Limited Liability Company (“Peak InfoSec”) and the entity (“Client”) identified on the corresponding Services Order Form (the “Order Form”).  The Agreement consists of four (4) documents which are incorporated by reference in their entirety into the Agreement: the Proposal referenced on or otherwise associated with the Order Form (the “Proposal”), the Order Form, the invoice sent from Peak InfoSec to Client which defines any payment terms and is used to initiate the payment process (the “Invoice”), and these Terms.  The Agreement is effective as of the date the Order Form is signed by authorized representatives of both Peak InfoSec and Client (the “Effective Date”).  Client and Peak InfoSec are referred to in these Terms individually as a “Party” and collectively the “Parties“.

In consideration of the matters described in the Background section, below, and of the mutual benefits and obligations set forth in the Agreement, the receipt and sufficiency of which consideration is hereby acknowledged, Client and Peak InfoSec agree as follows:

  1. Background and Purpose
    1. Client is of the opinion that Peak InfoSec has the necessary qualifications, experience and abilities to provide services to Client as defined in the Proposal.
    2. Peak InfoSec agrees to provide such services to Client on the terms and conditions set forth in this the Agreement. 
  2. Affiliates
    1. For the purposes of the Agreement, the term “Affiliate” shall mean a business entity effectively controlling or controlled by a Party or which is under common ownership or control with a Party.
    2. For the purposes of the Agreement, references to the Parties collectively, and Peak InfoSec and Client individually, are deemed to include their respective Affiliates.
  3. Not Legal Advice. Although Peak InfoSec’s staff includes lawyers, Peak InfoSec is not providing legal advice to Client and Client acknowledges that no attorney-client relationship has been, is, or will be created between the Parties.  Client further acknowledges and agrees that Client shall seek the advice of competent, third-party counsel before taking any actions which may be deemed as legal advice. 
  4. Services to be Provided. Client hereby agrees to engage Peak InfoSec to provide Client with the services defined in the Proposal which have been ordered on an Order Form mutually executed by the Parties (the “Services“) and Client agrees that the Services shall be provided under and subject to the terms set forth in the Agreement.
  5. Client Obligations. Under this Agreement, Client agrees to fulfill the following obligations:
    1. Select and designate one employee or contractor as Client Contract Manager to serve as a primary contact and act as Client’s authorized representative with respect to all matters pertaining to this Agreement. Client’s designation of who is appointed as Client Contract Manager will remain in place and in full force until a successor Client Contract Manager is appointed.
    2. Maintain a reasonable level of supervision so as to assure Peak InfoSec that Client Contract Manager will promptly respond to all reasonable requests for instructions, information, or approvals made by Peak InfoSec in its effort to render the Services.
    3. Take all required steps and perform all necessary preparations in order to prevent Client-caused delays in Peak InfoSec’s obligation to render Services. The aforementioned steps and preparations may include obtaining licenses or consents from all relevant third parties and the procurement of required permits, among others.
  6. Term and Termination
    1. The term of the Agreement (the “Term“) will begin on the Effective Date and will remain in full force and effect until the earlier to occur of: a) Peak InfoSec’s completion of the Services or b) the termination of the Agreement by either Party, provided such termination is carried out in accordance with the Agreement.
    2. If either Party wishes to terminate the Agreement, that Party will be required to provide 10 days’ written notice to the other Party.
    3. The Agreement may be terminated at any time by mutual agreement of the Parties.
    4. Except as otherwise provided in the Agreement, Peak InfoSec’s obligations to perform the Services will end upon the termination of the Agreement.
  7. Capacity/Independent Contractor
    1. In providing the Services under the Agreement it is expressly agreed that Peak InfoSec is acting as an independent contractor and not as an employee of Client.
    2. Peak InfoSec and Client acknowledge that the Agreement between them is exclusively a contract for services and does not create a partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties and neither party will have authority to contract in the name of or bind the other party in any manner whatsoever.
    3. Peak InfoSec will perform the Services at any place or location and at such times as Peak InfoSec shall determine. Only Peak InfoSec has the right to control how Peak InfoSec performs the Services.  While working in any Client facility, or the facility of a client of Client, Peak InfoSec will comply with all relevant policies and procedures provided to Peak InfoSec prior to the signing of this Agreement.
    4. Client shall ensure that Peak InfoSec is provided with any specialized equipment, hardware, materials, or software necessary to provide the Services, and Peak InfoSec is exempt from having to furnish such equipment or materials.
    5. Client is not required to pay, or make any contributions to, any employee benefit for Peak InfoSec, including without limitation any social security, local, state or federal tax; unemployment compensation; workers’ compensation; insurance premium; profit-sharing; or pension or retirement account.
    6. Peak InfoSec is responsible for paying and complying with reporting requirements for all local, state, and federal taxes related to payments made to Peak InfoSec under the Agreement.
  8. Deliverables. Any work papers, analyses, summaries, schedules, and the like that are prepared under any Proposal (the “Deliverables”) shall belong to and shall be the property of Client.  Notwithstanding the foregoing, all right, title, and interest in any Peak InfoSec previously existing intellectual property (the “PIIP”), including without limitation images, training materials, works of authorship, and business practices, which are incorporated into the Deliverables are and shall remain the property of Peak InfoSec. Peak InfoSec agrees to provide and hereby does provide Client with a worldwide, irrevocable, royalty-free license to use and distribute the PIIP contained in each such Deliverable for the limited purposes associated with the Proposal.
  9. Use of Client Name in Marketing. Client hereby agrees that Peak InfoSec may use Client’s name, logo, and publicly-available information about Client for marketing purposes, provided, unless expressly authorized by Client, such use does not imply an endorsement of Peak InfoSec by Client.  In the event Peak InfoSec is operating as a subcontractor under this Agreement, Client shall ensure that Peak InfoSec has the right to use the ultimate client’s name, logo, and publicly-available information about the ultimate client for marketing purposes, provided, unless expressly authorized by the ultimate client, such use does not imply an endorsement of Peak InfoSec by the ultimate client.  By way of example without limitation, Peak InfoSec may post promotional information or advertisements to social media identifying Client as a client of Peak InfoSec and congratulating client on successfully reaching a specific compliance milestone or earning a third-party certification.
  10. Compensation
    1. Currency. Except as otherwise provided in the Agreement, all monetary amounts referred to in the Agreement are in USD (US Dollars).
    2. Invoices. Peak InfoSec shall issue one or more Invoices to Client to request payment for the Services.
      1. Hourly Services. Services billed on an hourly basis will be included on an Invoice at the rate identified in the Order Form or Proposal (the “Hourly Compensation“). Peak InfoSec shall submit Invoices to Client for all Hourly Compensation no later than the tenth (10th) business day of each month for any hourly work performed during the prior period.  Notwithstanding the foregoing, Peak InfoSec shall not be required to submit Invoices for periods during which no work is performed. If the Agreement is otherwise silent, payment for all Hourly Compensation invoices shall be due net fifteen (15).
      2. Fixed Fee Services. Services billed on a fixed fee basis will be included on an Invoice at the rate identified in the Order Form (the “Fixed Fee Compensation”). Peak InfoSec shall submit to Client one or more Invoices for the Fixed Fee Compensation Payment in accordance with the terms defined on the Order Form or Proposal. If the Order Form and Proposal are silent as to the Fixed Fee Compensation payment terms, payment in full must be received by Peak InfoSec before Peak InfoSec shall schedule the Services.  If Client reschedules the Services not less than sixty (60) days prior to the Services start date, Peak InfoSec shall be entitled to a rescheduling fee of $2,000 per day, up to a maximum of $20,000, for each day the Services are delayed.
      3. Combined. The Fixed Fee Compensation and the Hourly Compensation are collectively referred to in these Terms as the Compensation.
    3. Sales Tax. The Compensation does not include sales tax or other applicable duties as may be required by law.  Any sales tax and duties required by law will be charged to Client in addition to the Compensation.
  11. Expenses.
    1. General. Except as otherwise provided for in the Agreement, Compensation does not include any expenses incurred by Peak InfoSec in connection with providing the Services.  Client agrees to reimburse Peak InfoSec for all reasonable, pre-approved expenses incurred by Peak InfoSec in connection with providing the Services (the “Expenses”).
    2. Travel.
      1. Travel Costs. For the purposes of this Section 10, reasonable travel-related Expenses are deemed to include business class, or where business class is unavailable, first class, tickets for all air or rail travel:
        1. outside the United States;
        2. within the United States where the time from departure at the initial commercial carrier point (e.g., an airport, train station, etc.) to arrival at the destination commercial carrier point is four (4) or more hours; or
        3. where the trip from the initial carrier point to the destination carrier point occurs overnight.
      2. Travel Time. Peak InfoSec shall be entitled to charge Client, and Client agrees to pay, for Peak InfoSec employees’ time during any travel.  Travel Monday through Friday during working hours shall be billed at three fourths (0.75) times the corresponding employee’s hourly rate.  Travel at all other times shall be billed at one and one half (1.5) times the corresponding employee’s hourly rate. Peak InfoSec agrees not to, and shall not, bill Client for more than eight (8) hours of travel time per travel day.
    3. Expense Invoices. Peak InfoSec shall submit an invoice for the Expenses to Client within thirty (30) days of incurring such Expenses unless otherwise agreed to by the Parties in writing.
    4. Expense Payment. Undisputed invoices for Expenses shall be due within fifteen (15) days of receipt by Client. 
  12. Payment Terms
    1. Payment of all Invoices is due on the date(s) indicated on the Invoice and all payments shall be made by electronic means (e.g., wire transfer, ACH, or credit card), as further defined on the Invoice.
    2. If Client does not pay any undisputed invoices by the date indicated on the Invoice, Peak InfoSec reserves the right to initiate an action in court for breach of contract. Peak InfoSec also reserves the right to pursue from Client the costs Peak InfoSec incurs in disputing or defending any such action, including but not limited to the lost business profits in the form of time Peak InfoSec and its representatives spent handling such dispute, at Peak InfoSec’s hourly rate as set forth in the Agreement but not less than $250/hour.
    3. Peak InfoSec shall be entitled to receive an additional fee of five percent (5.00%) per month or the highest rate permissible under Florida law, whichever is greater, calculated daily and compounded monthly, on all late payments. The Parties further agree that Peak InfoSec, in addition to all the remedies under this Agreement or provided by law, will be entitled to suspend the provision of any Services if Client fails to pay any undisputed payment or other amount when due under this Agreement within 30 days after Peak InfoSec has issued a written notice thereof.
    4. Client’s obligation to pay all fees does and shall survive the termination of the Agreement.  
    5. Client acknowledges that Client’s engagement of Peak InfoSec to provide the Services may prevent Peak InfoSec from providing services to other clients during that time.  Client therefore agrees that if the Agreement is terminated by Client at any point prior to the completion of the Services, Peak InfoSec shall have no obligation to repay to Client any pre-paid fees.
  13. Confidentiality
    1. Confidential Information
      1. Defined. For purposes of the Agreement, the term “Confidential Information” means any non-public information,  technical data, or know-how, including, but not limited to information that which relates to research; products; services; customers; markets; software; developments; inventions; processes; designs; drawings; engineering; marketing; finances; regulatory matters; business plans; codes; databases; operational and hiring matters; employee lists; sales and pricing; or information received by a Party from a third party, such as without limitation, a client of the Party.  Confidential Information must be designated in writing or other visual form to be confidential or proprietary under the Agreement.  Notwithstanding the foregoing, if disclosed orally, the Disclosing Party (defined below) shall confirm within ten (10) business days in writing that such information was disclosed as confidential or proprietary and thereby subject to treatment as Confidential Information under the Agreement.
      2. Disclosure. A Party may disclose Confidential Information (the “Disclosing Party”) to the other Party (the “Receiving Party”) under this Agreement.
      3. Exclusions. Confidential Information does not include information, technical data or know-how which:
        1. is in the possession of the Receiving Party at the time of disclosure as evidenced by the receiving Party’s files and records immediately prior to the time of disclosure,
        2. becomes a part of public knowledge or literature prior or after the time of disclosure by the Disclosing Party, not as a result of any inaction or action of the Receiving Party, 
        3. is approved for release by the Disclosing Party, 
        4. is developed, formulated, and obtained by the Receiving Party without using any Confidential Information, or,
        5. is information received by the Receiving Party through non-confidential means and on a non-confidential basis from a third party as long as the Receiving Party reasonably believed or believes that such third party is not, nor has been, barred from disclosing the Confidential Information in question.
    2. Non-Disclosure of Confidential Information
      1. Limitations. In agreeing to receive the Confidential Information, the Receiving Party agrees to only use the Disclosing Party’s Confidential Information for the purpose of exercising its rights or fulfilling its duties under the Agreement
      2. Confidentiality. The Receiving Party shall keep confidential any and all of the Disclosing Party’s Confidential Information already disclosed or to be disclosed hereunder, and the Receiving Party shall not divulge the Disclosing Party’s Confidential Information, in whole or in part, to any third Party except as expressly permitted by the Agreement.
      3. Non-Use. The Receiving Party shall not make any commercial or other use of the Disclosing Party’s Confidential Information unless agreed to separately in writing by the Disclosing Party.
      4. Non-Disclosure. The Receiving Party shall not disclose the Disclosing Party’s Confidential Information to third parties or to the Receiving Party’s employees, except employees (including officers and directors) who are required to have the information in order to carry out the purpose of the Agreement.
      5. Representatives. Neither Party may disclose the other’s Confidential Information to an Affiliate or its attorneys, agents, advisors, financiers, engineers or accountants (collectively “Representatives”) without the prior written consent of the disclosing party except to the extent appropriate to advance the relationship or transaction contemplated hereby.
      6. Duty. The Receiving Party has advised or will advise employees and/or any Representatives, as appropriate, to whom the Disclosing Party’s Confidential Information is disclosed that such employees or Representatives are and will be required to maintain the confidentiality of all of the Disclosing Party’s Confidential Information consistent with the terms of the Agreement.
      7. Safeguarding. The Receiving Party agrees that it will treat the Disclosing Party’s Confidential Information with at least the same level of care as it treats its own Confidential Information, and at least commercially reasonable care. The Receiving Party agrees to promptly notify the Disclosing Party in writing of any misuse or misappropriation of the Disclosing Party’s Confidential Information that may come to the Receiving Party’s attention.
    3. Required Disclosure. In the event that the Receiving Party is compelled by law or by any applicable regulatory agency to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party shall, to the extent legally permissible, promptly notify the Disclosing Party of such pending disclosure so that a protective order or other appropriate remedy may be obtained. In the event that such an order or other remedy is not available, the Receiving Party shall disclose only the minimum portion of the Disclosing Party’s Confidential Information that it is legally compelled to disclose, consistent with the advice of its counsel.
    4. Confidentiality Breach. In the event of a breach of the confidentiality obligations under this Agreement, the Receiving Party shall notify the Disclosing Party as soon as practicable, but no later than three (3) business days after the Party has learned of the breach (the “Notification“). Immediately following the Notification, the Receiving Party take reasonable steps, and use its best efforts, to timely remedy the breach. The Receiving Party shall keep the Disclosing Party informed about, provide the Disclosing Party with reasonable access to, the status of the Receiving Party’s breach response activities, including without limitation making available to the Disclosing Party any existing relevant records, logs, files, data, reporting and other materials reasonably requested by the Disclosing Party. Notwithstanding the foregoing, the Disclosing Party acknowledges and agrees that the Receiving Party may prevent or limit the Disclosing Party’s access to certain information where such disclosure may provide the Disclosing Party with access to information that is not a) the Disclosing Party’s or b) directly relevant to the investigation or response, or which may otherwise harm or hinder an ongoing response or investigation, and nothing in the foregoing represents an obligation on the part of the Receiving Party to conduct specific analyses or tasks at the direction of the Disclosing Party.
    5. Return of Materials. Upon termination of the Agreement or within ten (10) business days of any written request from the Disclosing Party, the receiving Party will deliver the Disclosing Party’s Confidential Information to the Disclosing Party, including, without limitation, all copies thereof and any related materials and documentation that contain any Confidential Information, and will destroy, and certify in writing to the Disclosing Party, the destruction of all analyses, compilations, studies or other documents, and all copies thereof, derived therefrom. Notwithstanding anything herein to the contrary, Receiving Party may retain one archival copy of the Confidential Information pursuant to a documented automatic backup procedure or pursuant to any regulatory obligation.
    6. Patent or Copyright Infringement. Nothing in the Agreement is intended to grant any rights under any patent, copyright or other intellectual property right of either Party, nor shall the Agreement grant either Party any rights in or to the other Party’s Confidential Information, except the limited right to review and use such Confidential Information solely for the Purpose.
    7. Liability.
      1. THE PARTIES AGREE THAT THE CONFIDENTIAL INFORMATION SHALL BE TREATED AS-IS AND THAT THE CONFIDENTIAL INFORMATION HAS NOT BEEN TO VERIFICATION BY THE DISCLOSING PARTY.
      2. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ITS OWN CONFIDENTIAL INFORMATION.
      3. NEITHER PARTY SHALL BE LIABLE TO THE OTHER HEREUNDER FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION AMOUNTS REPRESENTING LOSS OF PROFITS, LOSS OF BUSINESS, OR INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, IN CONNECTION WITH THE PROVISION, USE OF, OR RELIANCE UPON CONFIDENTIAL INFORMATION MADE AVAILABLE HEREUNDER.
    8. Classified, Export Controlled, and Controlled Unclassified Information
      1. The Disclosing Party shall ensure that all Confidential Information disclosed to the Receiving Party does not include information that has been classified by the federal government.
      2. The Parties recognize that some Confidential Information exchanged pursuant to this Agreement may be deemed as Controlled Unclassified Information (“CUI“) or information subject to export controls (“EXPT“) by one or more applicable governments.
      3. The Disclosing Party agrees to ensure that all CUI and EXPT information is a) properly and overtly marked consistent with the corresponding legal and regulatory requirements; and b) only disseminated to or made accessible to the Receiving Party consistent with the corresponding legal and regulatory requirements.
      4. The Disclosing Party shall ensure that all EXPT information carries sufficient legends warning of its export controlled and proprietary nature, including Destination Control Statements. The Receiving Party shall not remove legends from material received under this Agreement without the written permission of the disclosing Party.
      5. The Disclosing Party shall obtain all necessary export licenses to export Confidential Information to the Receiving Party at the Receiving Party’s facility/facilities. The Receiving Party agrees to reasonably cooperate, at the Disclosing Party’s expense, with the Disclosing Party in obtaining such licenses.
      6. Where access to or disclosure of CUI to the Receiving Party is authorized and appropriate, the Disclosing Party shall, prior to disseminating or making the CUI accessible to the Receiving Party, a) ensure the Receiving Party is aware of all applicable laws, regulations, and government-wide policies (collectively, “LRGWP”) that are the basis for the CUI designation, and b) receive acknowledgement from the Receiving Party that the Receiving Party will comply with the applicable LRGWP(s). Where the Receiving Party has been made aware of and acknowledges the applicability of one or more LRGWPs, the Receiving Party hereby agrees to comply with such requirements. Each Party represents and warrants that it will not sell, deliver, use or permit to be used, whether by themselves or as incorporated into or attached to another item, any of the CUI in ways prohibited by the LRGWP.
      7. Where access to or disclosure of EXPT to the Receiving Party is authorized and appropriate, the Disclosing Party shall, prior to disseminating or making the EXPT available to the Receiving Party, ensure the Receiving Party, a) ensure the Receiving Party is aware of all applicable export control, customs, and foreign trade regulations, including without limitation, the provisions of the U.S. Export Administration Regulations (“EAR“), the U.S. International Traffic in Arms Regulations (“ITAR“), the programs administered by the U.S. Office of Foreign Assets Control (“OFAC“), and Regulation (EC) No. 2021/821, where applicable, and all other applicable regulations, as each may be amended from time to time (collectively, “Foreign Trade Regulations”) and b) receive acknowledgement from the Receiving Party that the Receiving Party will comply with the applicable Foreign Trade Regulations. Where the Receiving Party has been made aware of and acknowledges the applicability of the Foreign Trade Requirements, the Receiving Party hereby agrees to comply with all applicable requirements for transmittal, storage, and handling of the corresponding EXPT information. Each Party represents and warrants that it will not sell, deliver, use or permit to be used, whether by themselves or as incorporated into or attached to another item, any of the EXPT in ways prohibited by Foreign Trade Regulations.
  14. LIMITATION OF LIABILITY
    1. PEAK INFOSEC IS NOT RESPONSIBLE FOR ERRORS WHICH RESULT FROM MATERIALLY FAULTY OR INCOMPLETE INFORMATION SUPPLIED TO PEAK INFOSEC OR THE LOSS OF DATA OR A DECREASE OF DATA’S VALUE THAT IS THE RESULT OF A BREACH OF CONTRACT, TORT, OR OTHERWISE.
    2. PEAK INFOSEC SHALL NOT BE LIABLE TO CLIENT FOR ANY COSTS, DAMAGES, OR DELAYS DUE TO CAUSES BEYOND ITS CONTROL, EXPRESSLY INCLUDING WITHOUT LIMITATION UNKNOWN SITE CHARACTERISTICS, UNKNOWN FACTS, CHANGES IN POLICIES, CHANGES IN TERMS OF SERVICE, ACTS OF GOD, ACTS OF WAR, ACTS OF TERRORISM, GLOBAL OR REGIONAL HEALTHCARE ISSUES, AND NATURAL DISASTERS.
    3. PEAK INFOSEC SHALL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES, OR FOR ANY LOSS OF PROFITS OR BUSINESS INTERRUPTIONS CAUSED OR ALLEGED TO HAVE BEEN CAUSED BY THE PERFORMANCE OR NONPERFORMANCE OF THE SERVICES.  CLIENT AGREES THAT THIS DISCLAIMER OF LIABILITY APPLIES AND SHALL OPERATE IN FULL FORCE REGARDLESS OF WHETHER OR NOT PEAK INFOSEC HAS BEEN ADVISED THAT SUCH DAMAGES ARE A POSSIBILITY AND DESPITE THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    4. CLIENT AGREES THAT, IN THE EVENT PEAK INFOSEC IS DETERMINED TO BE LIABLE FOR ANY LOSS, CLIENT’S SOLE REMEDY AGAINST PEAK INFOSEC IS LIMITED TO A REFUND OF PAYMENTS MADE BY CLIENT FOR SAID SERVICES, LESS FEES PAID TO ANY SUBCONTRACTORS OR THIRD PARTIES.
    5. CLIENT AGREES NOT TO SEEK DAMAGES IN EXCESS OF THE CONTRACTUALLY AGREED UPON LIMITATIONS DIRECTLY OR INDIRECTLY THROUGH SUITS BY OR AGAINST OTHER PARTIES.
  15. LIMITED WARRANTY – Peak InfoSec agrees to comply with the following warranties with respect to its performance of the Services:
    1. The Services will be rendered in a timely, workmanlike, and professional manner in line with generally recognized and expected industry standards and in compliance with all applicable laws, rules, and regulations.
    2. The Services will be rendered in line with the terms and subject to the conditions described and set forth in the Agreement.
  16. NO GUARANTEES OR WARRANTEES, INCLUDING ON RESULTS.
    1. EXCEPT AS PROVIDED FOR IN THE PREVIOUS SECTION AND TO THE MAXIMUM EXTEND PERMITTED BY APPLICABLE LAW, THE SERVICES PROVIDED BY PEAK INFOSEC UNDER THE AGREEMENT ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF QUALITY, MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND EXPECTED RESULTS, AND SUCH IMPLIED WARRANTIES, AND ANY OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS, AND TERMS EXPRESS OR IMPLIED (AND WHETER IMPLIED BY STATUTE, COMMON LAW, COURSE OF DEALING, TRADE USAGE, OR OTHERWISE) ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.  PEAK INFOSEC AND ITS AFFILIATES DO NOT GUARANTEE THAT THE SERVICES PROVIDED UNDER THIS AGREEMENT HAVE BEEN DESIGNED TO MEET CLIENT’S SPECIFIC BUSINESS REQUIREMENTS, COMPLY WITH LEGAL OR REGULATORY REQUIREMENTS APPLICABLE TO CLIENT, OR THAT PEAK INFOSEC WILL CORRECT ANY ERRORS.  CLIENT AGREES THAT IT IS SOLELY RESPONSIBLE FOR THE RESULTS OBTAINED FROM THE USE OF THE SERVICES PROVIDED UNDER THIS AGREEMENT.
    2. Example results obtained for other clients of Peak InfoSec may be used as a marketing tool and shown to Client but are provided for demonstrative purposes only and shall not be construed by Client as indicating any promised results or level of results.
  17. Breach.  The Parties agree to use all reasonable and commercially standard efforts to promptly cure any breach of this Agreement.  If the Party in breach (the “Breaching Party“) cannot cure such breach within thirty (30) days after receiving written notice from the other Party (the “Non-Breaching Party“) of the breach in question, the Non-Breaching Party may rescind this Agreement after serving the Breaching Party with a written notice of termination in accordance with this Agreement.
  18. General.
    1. Survival. The Parties’ confidentiality obligations under the Agreement shall survive the termination of the Agreement for a period of five (5) years.  Client’s payment obligations shall survive the termination of the Agreement.  In addition, sections 12, 13.6, 14, 15, 16, and 17 shall survive termination of the Agreement.
    2. Notice. All notices, requests, demands or other communications required or permitted by the terms of the Agreement will be given in writing and delivered to the Parties at the addresses set forth on the Order Form or in the Proposal, or to such other address as either Party may from time to time notify the other, and will be deemed to be properly delivered (a) immediately upon being served personally, (b) two days after being deposited with the postal service if served by registered mail, or (c) the following day after being deposited with an overnight courier.
    3. Employees. Each Party shall be responsible for any breach of the terms of the Agreement by any of its directors, officers, employees, Representatives or agents (the “Entities”). Each Party further agrees to take reasonable actions to ensure that such Entities comply with the obligations imposed hereunder.
    4. Return of Property. Except as required by law, upon the expiration or termination of the Agreement, Peak InfoSec will return to Client, or at Client’s option certify the destruction of, any property, documentation, records, or Confidential Information which is the property of Client.  The Parties recognize that destruction of Confidential Information that is stored as part of Peak InfoSec’s routine backup and maintenance efforts shall be excluded from the foregoing obligation.
    5. Disputes. Except where required by law, the Parties agree that any dispute regarding the Agreement, and any claim made by Client for return of monies paid to Peak InfoSec, shall be handled in accordance with applicable state and federal laws and in the courts of Montgomery County, Pennsylvania.
    6. Governing Law. Except where required by law, the Parties agree that the Agreement will be governed by and construed in accordance with the laws of the State of Florida  excluding (to the greatest extent permissible by law) the conflict of laws principles of that state or any rule of law that would cause the application of the laws of any jurisdiction other than the laws of the State of Florida or federal laws.
    7. Jurisdiction and Venue. Except where required by law, Client hereby consents to the personal jurisdiction of the courts of Florida, and the exclusive venue for any legal proceeding shall be the courts located in Hillsborough County, Florida unless Peak InfoSec otherwise agrees, which consent it may withhold in its sole discretion. Client waives any claim of forum non conveniens. Client agrees that if Client brings an action in a forum other than one authorized by this paragraph, Peak InfoSec may move to dismiss the action and Client will be responsible for paying Peak InfoSec’s reasonable attorneys’ fees and court costs associated with the motion.
    8. Modification of Agreement. Any amendment or modification of the Agreement or additional obligation assumed by either Party in connection with the Agreement will only be binding if evidenced in writing signed by each Party or an authorized representative of each Party.
    9. Entire Agreement.
      1. The Agreement supersedes any and all other prior understandings and agreements, either oral or in writing, between the Parties with respect to the subject matter hereof and constitutes the sole and only agreement between the parties with respect to the said subject matter.
      2. All prior negotiations and agreements between the Parties with respect to the subject matter hereof are merged into the Agreement.
      3. Each Party acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any Party or by anyone acting on behalf of any Party, which are not embodied in the Agreement and that any agreement, statement or promise that is not contained in the Agreement shall not be valid or binding or of any force or effect.
    10. Authority to Execute. The Parties each represent and warrant that the person executing this Agreement on behalf of each respective Party has full power and authority to enter into this Agreement on behalf of themselves or the Party on whose behalf they execute this Agreement.
    11. Enurement. The Agreement will enure to the benefit of and be binding on the Parties and their respective heirs, executors, administrators and permitted successors and assigns.
    12. Titles/Headings. Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting the Agreement.
    13. Order of Precedence.  The Parties have entered into the Agreement which consists of the Invoice(s), Order Form(s), the Proposal, and these Terms.  Any pre-printed, default, or other terms which do not expressly reference this Agreement and which may appear on any Purchase Order or similar document created or provided by Client are expressly rejected by the Parties.  In the event there is a conflict between the terms of those documents, the terms in the Invoice(s) shall control with respect to the subject matter related thereto, followed by the Order Form which shall control with respect to the subject matter related thereto, followed by the Proposal, and then these Terms.
    14. Gender and Plural. Words in the singular mean and include the plural and vice versa.  Words in the masculine mean and include the feminine and vice versa.
    15. Severability. If any term, clause, or provision of this Agreement is found to be invalid, illegal, or unenforceable by a court of competent jurisdiction in any jurisdiction, such invalidity, illegality or unenforceability will not have any effect on any other term or provision of this Agreement and such a finding will not invalidate or render unenforceable such term of provision in any other jurisdiction. In the event that such a determination by a court of competent jurisdiction does occur, the Parties agree to negotiate in good faith to modify this Agreement so as to preserve the original intent of the Parties as closely as possible so that the transactions contemplated hereby be consumed as originally contemplated to the greatest extent possible.
    16. Waiver. The waiver by either Party of a breach, default, delay or omission of any of the provisions of the Agreement by the other Party will not be construed as a waiver of any subsequent breach of the same or other provisions.
    17. Assignment.  Neither Party may assign this Agreement, or any of the rights or obligations created and provided under it, without the other Party’s signed, written consent which shall not be unreasonably withheld.
    18. Counterparts. This Agreement may be executed in counterparts, and each counterpart will be deemed to be an original. Notwithstanding the foregoing, when the aforementioned counterparts are taken together, they will constitute one and the same agreement. The Parties also agree that, if delivered by facsimile, email, or other means of electronic transmission, a signed copy of this Agreement will be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
    19. FORCE MAJEURE. Client agrees that Peak InfoSecwill not be held liable, deemed responsible, or found to have defaulted or breached the Agreement for any failure or delay in fulfilling or performing any term of this Agreement when such failure or delay is caused by or as a result of circumstances beyond the reasonable control of Peak InfoSec. Such circumstances include, but are not limited to, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, or telecommunication breakdown or power outage. Notwithstanding the foregoing, the Parties also agree that if the event in question continues active for a continuous period in excess of 30 days, Client may, at its sole discretion, but not before sending Peak InfoSec written notice, terminate this Agreement.
Version Edit Date Notes/Comments
2025.07b 2025-JUL-20 Adjusted introductory language.
2025.07a 2025-JUL-05 Initial Version