Terms & Conditions

Services.

CMMC Guardian will provide those certain services specified on the applicable Statement of Work (the "Services"). CMMC Guardian will: (i) perform Services in a professional manner and in accordance with all applicable laws and this Agreement; and (ii) provide the applicable Deliverables specified in the SOW. "Deliverable(s)" means the materials specified as deliverables and furnished to Client pursuant to a SOW. Changes to the scope of Services or other specifications must be set forth in a change order signed by both Parties. CMMC Guardian is not obligated to perform any services that are not expressly set forth on the applicable SOW.

CMMC Guardian Personnel.

As between CMMC Guardian and Client, CMMC Guardian has exclusive control over its employees, representatives, agents, and contractors performing Services hereunder, and such personnel are not employees, agents, or contractors of Client for any purpose whatsoever. CMMC Guardian will ensure its personnel comply with the terms of this Agreement. CMMC Guardian performs background checks on all personnel engaged in the Services prior to their assignment. CMMC Guardian will not assign any personnel to provide Services if such background check reveals information that causes CMMC Guardian to believe that such individual cannot provide the Services in compliance with this Agreement. Unless otherwise set forth in the applicable SOW, CMMC Guardian reserves the right to select its personnel and utilize subcontractors as needed.

No Guarantee of Certification.

CMMC Guardian provides advisory, consulting, and preparation services to assist Client in working toward CMMC certification or ITAR compliance. CMMC Guardian does not act as a Certified Third-Party Assessment Organization (C3PAO) and does not issue CMMC certifications. Engagement of CMMC Guardian does not guarantee that Client will achieve or maintain any particular CMMC level, SPRS score, or regulatory compliance status. Certification decisions rest solely with the applicable assessment organization and the Department of Defense.

Additional Terms for Specific Services.

Certain Services may be subject to additional terms communicated to Client in writing at the time of engagement. Such additional terms are incorporated by reference into the applicable SOW.

Fees.

Client will pay CMMC Guardian for all Services performed under the applicable SOW and reasonable out-of-pocket expenses authorized by Client in advance. CMMC Guardian will issue invoices as set forth in the applicable SOW (or, if not specified, monthly). Unless otherwise set forth in the SOW, all amounts paid under the SOW are non-refundable and will not be returned to Client or otherwise credited to Client's account upon any termination or expiration of the SOW, even if the funds are not fully utilized.

Taxes.

All fees payable hereunder exclude all applicable sales, use, and other taxes and all applicable export and import fees, customs duties, and similar charges. Client is responsible for payment of all such taxes (other than taxes based on CMMC Guardian's net income), fees, duties, and charges, and any related penalties and interest. CMMC Guardian will invoice Client for such amounts and transmit to the proper authorities all taxes that CMMC Guardian is required by law to collect from Client in connection with Services hereunder.

Payment Terms.

Client will pay all amounts owed hereunder within thirty (30) days from the date of invoice (or such other period set forth in the SOW). If payment is not received within the above-mentioned payment terms, CMMC Guardian may suspend the Services hereunder until Client's account is current. CMMC Guardian will be entitled to recover any reasonable costs related to the collection of unpaid invoices, including reasonable attorneys' fees. CMMC Guardian reserves the right to charge, and Client agrees to pay, a late charge equal to one and one-half percent (1½%) per month on any amount that is not the subject of a good-faith dispute that is unpaid on the due date.

Invoice Disputes.

Client must notify CMMC Guardian in writing of any dispute with invoiced charges within thirty (30) days of receipt of the invoice. Absent such notice, Client will be deemed to have agreed to the charges as invoiced. Payment of any invoices is not contingent upon the substance of any conclusions reached by CMMC Guardian in the course of performing Services.

Confidential Information.

Under this Agreement, each Party will have access to certain of the other Party's Confidential Information. "Confidential Information" means written or oral information disclosed by either Party to the other related to the operations of such Party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential. Confidential Information does not include information that: (x) is or becomes a part of the public domain through no act or omission of the recipient; (y) is disclosed to the receiving Party by a third party without restrictions on disclosure; or (z) was in the receiving Party's lawful possession without obligation of confidentiality prior to the disclosure and was not obtained by the receiving Party either directly or indirectly from the disclosing Party.

Obligations.

Each Party will: (i) use Confidential Information only to perform its obligations or exercise its rights under this Agreement; (ii) hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; and (iii) restrict access to the Confidential Information to such of its personnel or representatives who have a need to access it and who have agreed in writing to treat such information in accordance with this Agreement. These obligations will survive termination of the SOW for a period of three (3) years.

CUI and Classified Information.

Client acknowledges that CMMC Guardian personnel are not authorized to receive, store, or process Classified National Security Information. Client agrees not to share any information classified under Executive Order 13526 or its successors with CMMC Guardian personnel. To the extent Client shares Controlled Unclassified Information (CUI) with CMMC Guardian in connection with the Services, Client represents that it is authorized to share such information and that doing so complies with all applicable laws and regulations, including DFARS 252.204-7012 and applicable ITAR/EAR requirements.

Compelled Disclosure.

Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required: (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure will first give written notice to the other Party and make a reasonable effort to obtain a protective order; or (y) to establish a Party's rights under this Agreement, including to make such court filings as it may be required to do.

CMMC Guardian IP.

As between CMMC Guardian and Client, CMMC Guardian retains all right, title, and interest in and to the CMMC Guardian IP. "CMMC Guardian IP" means: (i) any intellectual property that led to, was generated in, or produced the results of the Services, including ideas, know-how, techniques, methodologies, frameworks, designs, inventions, improvements, processes, computer programs, software, source code, reports, spreadsheets, presentations, and analyses, but in all cases apart from any Client Confidential Information contained therein; (ii) CMMC Guardian's previously existing intellectual property, including any modifications and enhancements thereto; and (iii) any tools, templates, or scripting applications used, developed, or created by CMMC Guardian during the performance of this Agreement, but in all cases apart from any Client Confidential Information contained therein.

Deliverables.

Subject to the foregoing, Client will own any Deliverables specifically created for Client hereunder. To the extent any CMMC Guardian IP is incorporated into any Deliverable, CMMC Guardian grants Client a non-exclusive, non-transferable, royalty-free license to use such CMMC Guardian IP internally to the extent necessary to use such Deliverable for its intended purpose. Client agrees to reproduce the copyright notice and any other legend of ownership on any copies of Deliverables.

Feedback.

If Client provides CMMC Guardian with any feedback, suggestions, or recommendations regarding the Services ("Feedback"), Client hereby grants CMMC Guardian a perpetual, irrevocable, royalty-free license to use such Feedback for any purpose, including improving the Services, without any obligation to Client.

Term.

This Agreement will remain in effect for the duration of the applicable SOW. If a Party materially breaches this Agreement and does not cure such breach within thirty (30) days of receiving written notice thereof, the non-defaulting Party may terminate the Agreement on written notice. CMMC Guardian may immediately terminate the Agreement on written notice in the event that Client becomes insolvent, makes a general assignment for the benefit of creditors, or enters bankruptcy or receivership proceedings.

Effect of Termination.

On any termination of the Agreement: (i) each Party will discontinue use of the other Party's Confidential Information; (ii) CMMC Guardian will wind up work in a commercially reasonable manner; and (iii) Client will pay CMMC Guardian fees: (a) for Services provided on a time-and-materials basis, for Services performed through the effective date of termination; (b) for Services provided on a fixed-price basis, on a proportional basis for Services that are in progress as of the effective date of such termination unless otherwise specified in the applicable SOW; and (c) for subscription-based Services, all fees for the then-current subscription term. Termination or cancellation of this SOW for any reason shall not relieve either Party of any previously accrued obligations or of any obligations that by their nature are intended to survive such termination, cancellation, or completion.

Disclaimer of Warranties.

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES PROVIDED. WITHOUT LIMITING THE FOREGOING, CMMC GUARDIAN DISCLAIMS ANY WARRANTY THAT THE SERVICES PROVIDED ARE OR WILL BE ACCURATE, ERROR-FREE, OR UNINTERRUPTED. CLIENT AGREES THAT ANY RECOMMENDATIONS BY CMMC GUARDIAN THROUGH THE SERVICES DO NOT GUARANTEE ANY SPECIFIC RESULT, THE ACHIEVEMENT OF ANY CMMC CERTIFICATION LEVEL, ANY PARTICULAR SPRS SCORE, OR THE DETECTION OF ANY OR ALL VULNERABILITIES OR COMPLIANCE GAPS IN CLIENT'S SYSTEMS OR PROCESSES.

Limitation of Liability.

IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CLIENT UNDER SUCH AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION APPLIES WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CLIENT'S PAYMENT OBLIGATIONS UNDER THE "FEES AND PAYMENT" SECTION ABOVE. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY'S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

Indemnification.

Each Party (the "Indemnifying Party") agrees to indemnify, defend, and hold harmless the other Party and its officers, directors, employees, and agents (the "Indemnified Party") from and against any third-party claims, damages, losses, and expenses (including reasonable attorneys' fees) arising out of or relating to: (i) the Indemnifying Party's material breach of this Agreement; (ii) the Indemnifying Party's gross negligence or willful misconduct; or (iii) in the case of Client, Client's use of the Deliverables in a manner not authorized by this Agreement.

Governing Law; Venue.

Without regard to conflict of laws rules, this Agreement will be governed by and construed under the laws of the State of Delaware. All disputes arising out of or in relation to this Agreement will be submitted to the exclusive jurisdiction of the state and federal courts located in Delaware. Each Party consents to the exclusive jurisdiction of such courts. The Parties further agree to waive any right to a jury trial that either Party might otherwise have in any such courts.

Dispute Resolution.

In the event of any dispute relating to this Agreement, the Parties will attempt in good faith to resolve the dispute first through negotiations between the Parties' senior representatives. If the matter is not resolved by negotiation within thirty (30) days of receipt of a written request to negotiate, the Parties will attempt to resolve the dispute by mediation with a neutral third-party mediator acceptable to both Parties. Any mediation expenses will be shared equally by the Parties. This Section does not prohibit a Party from applying to a court for interim injunctive relief or pursuing amounts not disputed in good faith. If, following or during such mediation, either Party elects to pursue any available legal remedy via suit, the prevailing party shall be entitled to recover from the non-prevailing party any and all costs and expenses incurred, including but not limited to reasonable attorneys' fees, court costs, and expert fees.

Anti-Corruption.

Each Party acknowledges and agrees that it: (i) is aware of, understands, and has complied and will comply with, all applicable anti-corruption and anti-bribery laws, including the U.S. Foreign Corrupt Practices Act of 1977 (FCPA); and (ii) has not offered or received, and will not offer or receive, any illegal or improper bribe, kickback, payment, gift, or thing of value in connection with this Agreement.

Export Control and ITAR Compliance.

The Parties agree to comply with all applicable U.S. export control laws and regulations, including the International Traffic in Arms Regulations (ITAR), 22 C.F.R. Parts 120–130, and the Export Administration Regulations (EAR), 15 C.F.R. Parts 730–774, including the requirement for obtaining any export license or agreement, if applicable. Without limiting the foregoing, each Party agrees that it will not transfer any export-controlled item, data, or technical data to foreign persons employed by or associated with the other Party without the authority of an export license, agreement, or applicable exemption or exception. Each Party agrees to notify the other Party promptly if any Deliverables are restricted by export control laws or regulations.

DFARS and Government Contracting Compliance.

To the extent that Services are provided in connection with a U.S. government contract or subcontract, each Party agrees to comply with all applicable laws and regulations relating to the provision of services to the U.S. government, including DFARS 252.204-7012 (Safeguarding Covered Defense Information), applicable FAR clauses, and any non-discrimination and equal opportunity employment requirements, including 41 CFR §§ 60-1.4(a), 60-300.5(a), and 60-741.5(a).

Entire Agreement.

This Agreement is the entire agreement between CMMC Guardian and Client regarding the Services and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. In the event of any conflict or inconsistency among the SOW and these Terms, the SOW controls. No term or condition of a purchase order, ordering document, or other document that is different from, inconsistent with, or in addition to the terms and conditions set forth herein will be binding or applicable unless mutually executed in writing. No modification of this Agreement is binding unless in writing and signed by authorized representatives of both Parties.

Waiver.

Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. The failure to enforce or the waiver by either Party of one default or breach of the other Party will not be considered a waiver of any subsequent default or breach.

Notices.

All notices required hereunder will be in writing, delivered personally, by email with confirmation of receipt, or by nationally recognized overnight courier at the Parties' respective addresses set forth in the SOW. All notices will be deemed effective upon personal delivery, or when received if sent by email or overnight courier. Notices to CMMC Guardian may be sent to: CMMC Guardian, LLC, PO Box 22125, Saint Paul, MN 55122, by phone at 612-389-0430, or by email to [email protected].

Force Majeure.

Neither Party will be responsible for any delay or failure in performance of its obligations (except for its payment obligations arising hereunder) when such failure or delay is caused by an event beyond the reasonable control of such Party, including acts of God, natural disasters, war, terrorism, government actions, pandemics, or widespread internet or infrastructure outages. Any such delay will extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.

Severability.

In the event any provision of this Agreement is held by a competent court to be illegal, void, or unenforceable, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in full force and effect.

Assignment.

Neither Party may assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other Party; provided, however, that no such consent is required for an assignment to: (i) an affiliate; or (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any assignment of the Agreement by Client will not modify or increase the scope of any Services. This Agreement is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns. Any assignment in violation of the foregoing will be null and void.

Independent Contractor.

CMMC Guardian's relationship to Client is that of an independent contractor. Nothing in this Agreement will be deemed to create an agency, employment, partnership, fiduciary, or joint venture relationship between the Parties. Neither Party is a representative of the other Party for any purpose, and neither Party has the power or authority as agent, employee, or in any other capacity to represent, act for, bind, or otherwise create or assume any obligation on behalf of the other Party for any purpose whatsoever.

Non-Solicitation.

During the term of the SOW and for six (6) months thereafter, Client agrees not to, directly or indirectly (including through a third-party agency), solicit for employment or other engagement any CMMC Guardian personnel met or learned of through this Agreement, nor seek to entice, attract, or induce any such personnel to terminate their employment or other relationship with CMMC Guardian. The foregoing will not restrict the hiring of any individual who, not being specifically solicited or targeted, responds to a general recruitment advertisement of Client.

Construction.

Unless otherwise specifically stated in this Agreement: (a) the word "including" will mean "including without limitation"; (b) any reference to "days" will mean calendar days; and (c) headings are for convenience only and will not affect the interpretation of this Agreement. The covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors, and permitted assigns. There are no third-party beneficiaries under this Agreement. CMMC Guardian may list Client's name on a client list provided to prospective buyers of its services, unless Client notifies CMMC Guardian in writing that it objects to such use.