Assessment Services Agreement 

This Assessment Services Agreement (the “Agreement”) sets out the terms and conditions under which Bash9 Technologies LLC, of 19266 Coastal Hwy Unit 4-562, Dewey Beach, Delaware 19971-6117 referred to as "Bash9", shall provide certain assessment services (the “Services”) to the client (“Client”) identified in the statement of work (“SOW”) referencing this Agreement, such SOW having been entered into between Bash9 and Client (individually, a “Party” and collectively, the “Parties”). By executing the SOW, the Parties hereby agree to the terms and conditions contained in this Agreement.

In consideration of these mutual promises and covenants, the Parties hereby agree as follows:

1. TERM AND TERMINATION

  1. The term of this Agreement shall begin on the Effective Date of the SOW and expire upon completion of the Services (the “Term”). The provisions of sections 2(b) and 5, 7, 8 and 10 shall survive any termination or expiration of this Agreement.

  2. If Client is in breach of any obligation under this Agreement, Bash9 may: (i) suspend delivery of any Products or performance of any Services until such breach is remedied to Bash9's satisfaction; and (ii) terminate this Agreement, immediately without notice to Client, if the breach is not remedied within thirty (15) days following written request thereof to Client.

2. PRODUCTS

  1. Products. Bash9 will license to Client the Bash9 software and materials, including any custom modifications (“Bash9 Products”) and provide the third-party software and materials (“Third Party Products”) listed in the Tools section of the SOW (collectively, the “Products”).

  2. License and Ownership.

    1. Bash9 grants to Client a non-exclusive, non-transferable, non-sublicensable, royalty-free license to use the Bash9 Products for Client’s internal use only during the Term.

    2. Third Party Products are subject to the applicable end user license agreement or such other similar terms of use required by the third party vendor (each, a “Vendor”). If applicable, Client shall enter into and maintain in good standing an agreement for the maintenance and support of the Third Party Products.

    3. Client will acquire no rights in any Products, other than the specific rights granted under this Agreement or third party license agreement, as applicable. Client agrees to use all Products in accordance with the applicable license terms.

3. SERVICES

Bash9 will perform the assessment services described in the SOW (the “Services”). Services may include subscriptions to one or more websites operated by Bash9 (“Bash9 Sites”), access to which is governed by the terms of this Agreement.

4. WARRANTIES

  1. Product Warranty. If a Bash9 Product fails to perform in accordance with Bash9 specifications during the Term, Bash9 will, in its sole discretion, exercise commercially reasonable efforts to repair or replace the Bash9 Product at no charge to Client. This will be Client’s sole and exclusive remedy for a breach of the warranty provided in this section. Bash9 does not provide any warranties with respect to any Third Party Products. Such warranties, if any, are provided by the applicable Vendor.

  2. Services Warranty. Bash9 warrants that the Services will be performed in a good and workmanlike manner and in accordance with generally accepted industry standards applicable to such Services. Bash9 shall re-perform, at its expense, any Services not in compliance with this warranty brought to its attention within five (5) business days of the date such Services were performed, otherwise the Services are deemed accepted. This will be Customer’s sole and exclusive remedy for a breach of the warranty provided in this section.

  3. EXCEPT AS EXPRESSLY STATED HEREIN AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABLE QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OR USE. BASH9 DOES NOT REPRESENT OR WARRANT THAT THE PRODUCTS OR SERVICES WILL BE CAPABLE OF ACHIEVING ANY PARTICULAR RESULTS IN CLIENT’S BUSINESS OR OPERATIONS, OR THAT ANY PRODUCTS WILL OPERATE UNINTERRUPTED OR ERROR FREE. CLIENT IS SOLELY RESPONSIBLE FOR DETERMINING WHETHER THE SERVICES PERFORMED ARE APPLICABLE TO ITS NEEDS AND FOR THE ACCURACY AND INTEGRITY OF THE RESULTS FROM THE USE OF THE PRODUCTS OR SERVICES.

5. PAYMENT AND INVOICING

  1. Client will pay Bash9 the fees as set out in the SOW by ACH Electronic Payments or wire transfer, unless a different payment method is agreed to by Bash9 in writing. Client will also be responsible for all applicable taxes, except for taxes imposed on Bash9’s income or arising from the employment relationship between Bash9 and its personnel. Subject to Client receiving approved credit terms from Bash9, Client will pay invoiced amounts within thirty (7) days of the invoice date. If credit terms are not provided, all amounts are payable in advance of delivery of the Services.

  2. Client agrees to pay a $30 processing fee for each wire transfer  submitted by Client that is returned by the financial institution for any reason, including insufficient funds (plus any late charges until Bash9 receives payment). Overdue invoices will be subject to the lesser of: (i) an interest rate of 2% per month, or (ii) the maximum amount allowed by law, calculated monthly from the date payment was due until the date payment is made, without prejudice to any other rights, or remedies which Bash9 may have under this Agreement, at law or in equity.

6. CONFIDENTIAL INFORMATION

To the extent that confidential and proprietary information of a party (“Confidential Information”) is exchanged and received in connection with this Agreement or the SOW, the receiving party agrees to maintain the confidential nature of the Confidential Information of the disclosing party in its possession by taking reasonable steps to protect such Confidential Information from unauthorized use, access and disclosure; such steps shall be at least equal to those taken by the receiving party to protect its own Confidential Information. The receiving party may disclose the Confidential Information of the disclosing party to its employees or independent contractors provided that such employee or independent contractor has a need to know and is required to maintain the confidentiality of such information on terms no less stringent than those contained in this section. In addition to the foregoing, Bash9 may disclose Client’s business contact information to the Vendors of the Third Party Products, and Client consents to this limited disclosure. Where a SOW is funded by a Vendor, Client acknowledges and agrees that Bash9 will share the results of the funded Services with such Vendor, it being understood that the Vendor is required to maintain the confidentiality of such information. Confidential Information does not include: (a) information that was publicly available at the time of disclosure or that becomes publicly available other than by a breach of this provision by the receiving party; (b) information previously known by or developed by the receiving party without use of or access to the Confidential Information of the disclosing party; or (c) information that the receiving party rightfully obtains without restrictions on use and disclosure. The receiving party may disclose Confidential Information of the disclosing party in accordance with a judicial, government or agency order or law, provided that the receiving party required to make such disclosure shall, to the extent permitted, provide the disclosing party with reasonable prior notice of such disclosure and shall comply with any applicable protective order or equivalent that applies to such disclosure. The receiving party shall be liable to the disclosing party for any breach of the receiving party’s confidentiality obligations committed by any person or entity to whom the receiving party is permitted to disclose the Confidential Information of the disclosing party pursuant to this section.

7. LIMITATION OF LIABILITY

THE LIMIT OF BASH9’S LIABILITY TO CLIENT OR TO ANY THIRD PARTY IN ANY MANNER RELATED TO THIS AGREEMENT OR THE SOW SHALL NOT IN THE AGGREGATE EXCEED THE TOTAL FEES PAID BY CLIENT TO BASH9 UNDER THE SOW. IN NO EVENT SHALL BASH9 BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY LOSSES, DAMAGE OR EXPENSES OF ANY KIND, OR FOR BUSINESS INTERRUPTION, LOST OR CORRUPTED DATA, LOST REVENUE, LOST PROFITS, LOST SAVINGS OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND, EVEN IF IT HAS BEEN ADVISED OF THEIR POSSIBLE EXISTENCE, OR EVEN IF SAME WERE REASONABLY FORESEEABLE. THIS LIMITATION SHALL APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND OR CLAIM, INCLUDING BUT NOT LIMITED TO, BREACH OF CONTRACT, NEGLIGENCE, TORT OR ANY OTHER LEGAL THEORY AND SURVIVE A FAILURE OF ANY REMEDY CONTAINED HEREIN.

8. NON-SOLICITATION

During the Term and for a period of one (1) year thereafter, Client shall not recruit, hire as an independent contractor or offer employment to any employee of Bash9 who is or was involved in the delivery of the Services without the prior written consent of Bash9. The foregoing restrictions shall not apply if an employee of Bash9 seeks employment with Client in response to a general solicitation (newspaper, trade journal, online posting or other advertisement or job fair).

9. FORCE MAJEURE

Neither party will be deemed to be in default hereunder or liable for any delay or failure to perform its obligations hereunder that is caused, in whole or in part, from any act or omission or causes beyond such party’s reasonable control, including, acts of God, war, earthquakes, fire, floods, storms, labour disputes, malfunction or failure of third party systems or services (including telecommunications services), electrical or environmental system malfunction, worms, viruses or other similar causes (each, a “Force Majeure Event”). Delivery and performance dates will be equitably extended to the extent of any such delays. Each party will promptly notify the other upon becoming aware that any such delay has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under the SOW.

10. GENERAL

Bash9 is an independent contractor. Nothing contained in this Agreement creates a partnership, joint venture, employer/employee, principal-and-agent, or any similar relationship between the parties. This Agreement shall be governed by: (i) for clients in the United States, the laws of the State of Delaware  and the federal laws of the United States applicable therein an without regard to conflict of laws rules and  (ii) for clients in Canada, the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. This Agreement may be amended only by a written document executed by the parties. If any provision is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and all other remaining provisions or parts thereof shall continue in full force and effect. No waiver of or failure to exercise any option, right or privilege hereunder shall be construed as a waiver of any other option, right or privilege. Neither party may assign this Agreement or any rights or obligations under this Agreement to a third party without the express written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided however that, Bash9 may, without the consent of the Client, assign this Agreement to any person or entity directly or indirectly controlling, controlled by, or under common control with Bash9. This Agreement and each fully executed SOW, collectively constitute the entire agreement between the Parties concerning the subject matter hereof and supersede all written or oral prior agreements or understandings with respect thereto, including, without limitation, any proposals, price quotes, or purchase order terms and conditions.

Last updated: August 01, 2021.