Professional Services Terms and Conditions

Last Updated: July 7, 2025

These Professional Services Terms and Conditions (the “Professional Services Terms”) govern the performance of Professional Services by OPSWAT Inc. (“OPSWAT”) procured by you (“You” or “Customer”).

1. DEFINITIONS.

For purposes of these Professional Services Terms, the following terms shall have the meanings set forth below. Capitalized terms not defined herein shall have the meaning assigned to them in the OPSWAT Terms:

(a) “Affiliates” means, with respect to each party, entities that Control, are controlled by, or are under common Control with such party, where “Control” means the beneficial ownership of more than fifty percent (50%) of the voting power or equity in an entity.

(b) “Applicable Laws” means applicable national, federal, state, and local laws, rules, guidelines, court or government agency orders, and regulations.

(c) “Change” means any proposed alteration to the scope, schedule, or nature of the Professional Services described in a SOW.

(d) “Change Order” means a mutually agreed written amendment to a SOW that documents the implementation of a Change, including any associated variations to fees, timelines, or scope.

(e) “Change Request” means a written proposal initiated by either party requesting a Change to the SOW.

(f) “Confidential Information” has the same meaning as Section 12 of the OPSWAT Terms.

(g) “Customer POC” means Customer’s designated point of contact responsible for coordinating with OPSWAT on the delivery and execution of the Professional Services.

(h) “Customer” or “You” means the individual or entity that has procured the Professional Services from OPSWAT, as identified in the applicable SOW.

(i) “Default Notice” means the written notice issued by Customer to OPSWAT identifying and describing in reasonable detail the specific deficiencies or non-conformities in the Professional Services or Deliverables that Customer believes fail to meet the warranty set forth in Section 12(a).

(j) “Deliverables” means any work product, materials, documentation, reports, or other items delivered by OPSWAT to Customer in the course of performing the Professional Services, as described in the SOW.

(k) “Implementation Practices” means OPSWAT’s proprietary processes, procedures, best practices, code, tools, and methodologies used to deliver implementation and configuration services, whether pre-existing or developed during the course of performing Professional Services.

(l) “Intellectual Property” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights; and

(m) “Intellectual Property Rights” mean all intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights in and to OPSWAT Materials (collectively, “Intellectual Property Rights”).

(n) “Managed Services” means the ongoing services managed and operated by OPSWAT on behalf of Customer, including services such as OPSWAT’s managed OT-SOC, as further detailed in the Professional Services Data Sheet.

(o) “OPSWAT Materials” means any and all materials, templates, tools, work product, documentation, software, training content, reports, and other proprietary or intellectual property created or provided by OPSWAT during the course of performing the Professional Services, excluding Customer’s Confidential Information and Customer’s Intellectual Property.

(p) “OPSWAT Terms” or “Terms” means OPSWAT’s Terms of Service available at https://www.opswat.com/legal, as may be amended from time to time.

(q) “Personal Data” means information relating to an identified or identifiable individual.

(r) “Process”, “Processed” or “Processing” means any operation or set of operations performed upon Personal Data, whether by automatic means, including collection, recording, organization, use, transfer, disclosure, storage, manipulation, combination, and deletion of Personal Data.

(s) “Professional Services Data Sheet” means the description of OPSWAT’s Professional Services offerings, available at https://www.opswat.com/legal, as may be amended from time to time.

(t) “Professional Services Fees” means the fees paid or payable by a Customer to OPSWAT, in accordance with the SOW, for the Professional Services provided by OPSWAT.

(u) “Professional Services Start Date” means the date identified in the SOW or Change Order, as applicable, on which OPSWAT shall commence performance of the Professional Services.

(v) “Professional Services” means those implementation, education, operational, or technical consulting services provided by OPSWAT further described in the Professional Services Data Sheet, purchased by a Customer under an applicable SOW.

(w) “SOW” or “Statement of Work” means a written document, price quotation, or other agreement executed by OPSWAT and Customer that describes the Professional Services to be delivered and the associated terms, including scope, pricing, deliverables, and schedule.

2. PROFESSIONAL SERVICES.

(a) OPSWAT shall provide Professional Services to Customer and Customer shall receive and pay the applicable Professional Services Fees for such Professional Services, in accordance with the SOW.

(b) The SOW, these Professional Services Terms, and the sections of the OPSWAT Terms specially incorporated by reference herein, comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. No other terms and conditions specified or preprinted on Customer’s purchase order or other document shall add to or modify the SOW or the Professional Services Terms, nor shall such terms and conditions affect either party’s responsibility to the other party as set forth herein. In the event of any conflict between these Professional Services Terms and a SOW, these Professional Services Terms shall govern, unless the SOW expressly states that the terms and conditions of the SOW shall control.

(c) The Professional Services Terms apply to the exclusion of any other terms that Customer seeks to impose or incorporate via any acknowledgement, confirmation, or other document, or which are implied by trade, custom, practice or course of dealing. Provision of Professional Services to Customer does not constitute acceptance of any of Customer's terms and conditions not specifically included in the SOW and does not serve to modify or amend these Professional Services Terms or any SOW.

3. PERFORMANCE.

(a) OPSWAT will use appropriately qualified person(s) to perform the Professional Services in a timely and professional manner, during OPSWAT’s normal business hours, exercising due skill and care.

(b) OPSWAT may engage subcontractors to perform any or all of its obligations in the SOW. OPSWAT shall identify any subcontractors used in the SOW or other writing (including email). OPSWAT, in its sole discretion, may replace or remove subcontractors used to provide the Professional Services upon prior written notice to Customer. OPSWAT shall be responsible for the acts and omissions of any subcontractors performing OPSWAT’s obligations in the SOW, in the same manner as if they were OPSWAT’s acts or omissions under these Professional Services Terms.

(c) OPSWAT shall use reasonable efforts to meet any performance dates specified in a SOW, and any such dates shall be estimates only.

(d) Except for Managed Services, upon completion of the Professional Services, OPSWAT will present Customer with a document requesting Customer’s signature to acknowledge completion of the Professional Services and acceptance of the Professional Services by Customer (“Acceptance Request Notice”). Customer shall respond in writing within five (5) days of the date of receipt of the Acceptance Request Notice (“Acceptance Period”), either signing the Acceptance Request Notice to accept the Professional Services (“Acceptance Notice”) or detailing the reasons why it believes the Professional Services do not conform to the requirements of the SOW(“Rejection Notice”). If Customer issues a Rejection Notice within the Acceptance Period, OPSWAT will use reasonable efforts to address any material nonconformities in a timely manner and will issue another Acceptance Request Notice for Customer’s signature. If Customer fails to issue a Rejection Notice within the Acceptance Period, the Professional Services will be deemed to be accepted by Customer and OPSWAT will consider the SOW completed.

4. CUSTOMER OBLIGATIONS.

In order for OPSWAT to meet its commitments under the SOW, including delivery schedules and pricing, Customer must ensure that the following elements are in place no later than at the Professional Services Start Date and thereafter throughout SOW duration:

(a) Customer will fully cooperate with OPSWAT to consult, review, and approve the planned approach for delivery of the Professional Services and will reasonably cooperate with OPSWAT by making available access to such premises, personnel, and facilities needed by OPSWAT to perform the Professional Services, including computer facilities, computer systems, management decisions, materials, information, approvals, and acceptances as reasonably required or reasonably requested by OPSWAT and/or OPSWAT’s subcontractors. Delays in access to information, facilities or personnel, missed or rescheduled meetings, or other lack of cooperation by Customer may result in delays in the Professional Services, or require the payment of additional Professional Services Fees by Customer if OPSWAT expends additional resources as a result of Customer’s breach of this Section 4.

(b) Customer shall ensure that any materials or information provided to OPSWAT and/or OPSWAT’s contractors are complete and accurate in all material respects. Customer is solely responsible for the quality, legality, and accuracy of all information, materials, and other data provided to OPSWAT.

(c) Customer will provide OPSWAT and/or OPSWAT’s subcontractors, at no cost to OPSWAT, reasonable access to existing environments and documentation necessary to complete the Professional Services.

(d) Customer will provide office and storage space as OPSWAT and/or OPSWAT’s subcontractors reasonably require in connection with the provision of Professional Services hereunder.

(e) Customer agrees to make commercially reasonable efforts to correct and minimize the recurrence of problems for which Customer is responsible, and which prevent OPSWAT from meeting its obligations.

(f) Customer is responsible for ensuring that the Professional Services conform to its policies and procedures.

(g) Customer is responsible for obtaining all approvals and consents required by OPSWAT to perform and for any third parties to use the Professional Services (if and as permitted or requested by Customer). OPSWAT is not responsible or liable for any non-performance, delay, or other acts or omissions if they arise out of or relate to (i) Customer’s lack of or delay in providing any required approvals or consents to allow OPSWAT or its subcontractors to perform the Professional Services; or (ii) any third party otherwise validly preventing OPSWAT or its subcontractors from providing the Professional Services.

(h) Customer shall execute any proper data backup and recovery procedures before and after any Professional Services are rendered. Customer is solely responsible for back-up and other protection of its data against loss, damage or destruction. OPSWAT will have no obligation or liability with respect thereto regardless of the cause.

5. CUSTOMER ACTS OR OMISSIONS.

(a) OPSWAT will not be responsible or liable for any failure to perform, delay in performance of any obligation or breach of this Agreement, if such breach, failure or delay arises out of or relates to: (i) problems caused by the action or inaction of Customer; or (ii) Customer's failure to perform Customer's obligations as set forth in this SOW to the extent such failure affects OPSWAT's ability to perform the Professional Services at the specified levels, including but not limited to, provision of adequate equipment to meet the project schedule, environmental factors/facilities, Customer procedural errors.

(b) If OPSWAT's performance of its obligations under the SOW and/or these Terms is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, OPSWAT shall not be deemed in breach of its obligations or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.

6. RESOURCE TEAM.

Prior to the delivery of the Professional Services, Customer will designate a qualified member of its staff or its subcontractor to act as Customer POC. Customer POC will (a) act as a liaison between Customer and OPSWAT, (b) establish priorities and coordinate Customer resource schedules, and (c) review progress, and assist in issue resolution. OPSWAT will be entitled to rely upon Customer POC’s representations and authority without seeking further verification. OPSWAT will address all communications with Customer POC, and such Customer POC will be deemed to have the authority to act for Customer in all aspects of the project. Customer will provide adequate and qualified staff, dedicated to this SOW and available to OPSWAT, to complete in a timely manner such tasks as may be assigned to it, including without limitation any training exercises, requirement definition, testing, and review and approval.

7. CHANGE ORDERS.

(a) Change Requests. If Customer wishes to change the scope or performance of the Professional Services or request another Change, it shall submit details of the requested Change to OPSWAT through a Change Request. OPSWAT shall, within a reasonable time after such Change Request, provide a written estimate to Customer of:

(i) the likely time required to implement the change;

(ii) any necessary variations to the Professional Services Fees and other charges arising from the Change;

(iii) the likely effect of the Change on the timelines and deliverables for the Professional Services; and

(iv) any other impact the change might have on the performance of the applicable SOW.

(b) Change Orders. Promptly after receipt of OPSWAT’s written estimate, the parties shall negotiate and agree in writing on the terms of such change in a Change Order. Neither party shall be bound by any Change Order unless mutually agreed upon in writing. OPSWAT may charge for the time it spends assessing and documenting a change request from Customer on a time and materials basis in accordance with the SOW or Change Order, as applicable.

(c) Rescheduling. Unless otherwise agreed by both parties in writing, if Customer cancels or requests to reschedule the Professional Services within ten (10) business days prior to Professional Services Start Date, Customer shall pay OPSWAT Professional Services Fees equal to the fees or amounts quoted for one (1) day of Professional Services at the rate set out in the relevant SOW. If Customer cancels or requests to reschedule the Professional Services within five (5) business days prior to the Professional Services Start Date, Customer shall pay OPSWAT applicable Professional Services Fees for: (i) the number of days the Professional Services are postponed, or (ii) one (1) week of Professional Services as if the Professional Services had been fully performed, whichever is lesser.

(d) OPSWAT Changes. Notwithstanding the foregoing, OPSWAT may, from time to time, change the Professional Services at its sole discretion, provided that such changes do not materially and negatively affect the nature or scope of the Professional Services, or the Professional Services Fees or significantly delay any performance from the dates set forth in the SOW.

7. FEES AND EXPENSES.

(a) In consideration of the provision of the Professional Services by OPSWAT, Customer shall pay the Professional Services Fees set forth in the SOW within thirty (30) days of the date of the invoice and in accordance with the time periods set forth in the SOW.

(b) The Professional Services Fees are exclusive of any transaction taxes, including foreign withholding taxes, and local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added taxes, excise, use, goods and services taxes, and consumption taxes (the “Taxes”). Customer shall not withhold from Professional Service Fees the Taxes imposed upon it by a taxing authority, and Customer is responsible for paying all Taxes associated with Professional Services Fees, excluding OPSWAT income taxes. If Customer is legally entitled to an exemption from the payment of Taxes, Customer will promptly provide OPSWAT with legally sufficient tax exemption certificates for each taxing jurisdiction for which Customer is claiming the exemption. Unless otherwise prohibited by law, OPSWAT will apply the benefits of a requested tax exemption to charges after the date OPSWAT receives and reasonably processes the tax exemption certificates.

(c) In the event payments of Professional Services Fees are not received by OPSWAT within fifteen (15) days after becoming due, OPSWAT may: (i) charge interest on any such unpaid amounts at a rate of one percent (1.5%) per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and (ii) suspend performance for all Services until payment has been made in full.

(d) Unless the SOW expressly states that a certain expense is included in the Professional Services Fees, Customer shall reimburse OPSWAT for all reasonable travel and out-of-pocket expenses incurred by OPSWAT in connection with the Professional Services.

(e) If Customer has pre-purchased a block of Professional Services time, any unused time shall expire six (6) months from the date of purchase of such time

Except as specifically set forth in the SOW, all payment obligations are non-cancelable, and all payments made are non-refundable, to the extent not prohibited by Applicable Laws.

9. CONFIDENTIAL INFORMATION.

In accordance with Section 12 of the OPSWAT Terms, each party shall protect, hold confidential and not disclose the disclosing party’s Confidential Information.

10. PRIVACY.

(a) Customer understands that that the only Personal Data OPSWAT requires from Customers to provide the Professional Services consists of names, emails, addresses, telephone numbers, and other business contact information of Customer POC and other employees assisting with the provision of Professional Services. OPWAT hereby advises and You acknowledge that OPSWAT does not want or need other Personal Data to provide the Professional Services. You understand that You are solely responsible for obfuscating any Personal Data contained in files, information, or metadata You provide OPSWAT for the performance of Professional Services.

(b) Solely to the extent the Professional Services, by their nature, as stated in the SOW, involve OPSWAT’s Processing of Personal Data, OPSWAT shall Process such Personal Data pursuant to the  OPSWAT Privacy Policy. Customer is responsible for directing its employees and agents using OPSWAT’s Services to OPSWAT’s Privacy Policy.

(c) If Applicable Laws require OPSWAT to enter into an agreement with You regarding OPSWAT’s processing of Your Personal Data, the OPSWAT Data Processing Addendum shall apply to OPSWAT’s processing of Personal Data and be incorporated into these Professional Services Terms by reference.

11. INTELLECTUAL PROPERTY.

(a) All Intellectual Property Rights in OPSWAT Materials, Deliverables, and the Professional Services, is and will remain the exclusive property of OPSWAT (or its Affiliates and/or licensors as appropriate) and nothing herein shall be construed to assign or transfer Intellectual Property Rights to Customer. For the avoidance of doubt, the OPSWAT Materials do not include Customer’s Confidential Information. OPSWAT hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, fully paid-up, royalty-free license to use all such OPSWAT Materials to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Professional Services solely for Customer’s internal business operations.

(b) Customer agrees that OPSWAT owns and is free to use the Implementation Practices in its sole discretion, including Implementation Practices developed or refined in the course of providing Professional Services to Customer, so long as the Implementation Practices do not include Customer’s Confidential Information. OPSWAT hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, fully paid-up, royalty-free, license to use the Implementation Practices for Customer’s internal business operations, for the purpose for which the Professional Services were provided.

(c) Notwithstanding anything in these Professional Services Terms, Section 8 (OPSWAT Proprietary Rights) applies to Professional Services and Deliverables.

12. LIMITED WARRANTY.

(a) OPSWAT warrants to Customer that it shall perform the Professional Services in a workmanlike manner.

(b) Customer must issue a Default Notice to OPSWAT within seven (7) days of the earlier of (i) the date of actual discovery or (ii) the date that Customer reasonably ought to have discovered that the Professional Services or Deliverables were defective or deficient in a manner that constitutes a breach of the foregoing warranty. Failure to provide a Default Notice within the applicable time period constitutes a waiver of warranty claims.

(c) Subject to Section 12(b), and upon receiving a valid Default Notice, OPSWAT shall, in its sole discretion, either:

(i) repair or re-perform such defective or deficient Professional Services, Deliverables or parts thereof; or

(ii) issue a pro-rata refund for the affected portion of the Professional Services, Deliverables or Managed Services.

(d) The remedies in this Section 12 are Customer’s sole and exclusive remedies and OPSWAT's entire liability for any breach of any OPSWAT warranties under these Professional Services Terms.

(e) For the avoidance of doubt, if Customer enters into a SOW directly with OPSWAT for OPSWAT or its subcontractor to provide Professional Services to Customer, OPSWAT shall provide the warranty to Customer as set forth in this Section 12. If Customer purchases Professional Services from any third party (“Third-Party Services”), including but not limited to a third party authorized by OPSWAT to resell OPSWAT products, the Third-Party Services shall be subject to the terms and conditions between Customer and such third party. OPSWAT shall not be liable for Third-Party Services and expressly disclaims all representations and warranties with respect to Third-Party Services.

13. DISCLAIMER OF WARRANTIES.

(a) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 12 (a) ABOVE, OPSWAT MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PROFESSIONAL SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

(b) If OPSWAT provides Managed Services to Customer:

(i) Customer acknowledges that no service of the nature of the Services can ever prevent all intrusion incidents in relation to Customer’s systems and confirms that it has taken and will take all necessary steps to minimize any unauthorized incursion into its systems, including software patching, employee training and similar in accordance with best industry practice.

(ii) If Customer fails to implement OPSWAT’s recommendations to better protect Customer’s systems, OPSWAT accepts no liability howsoever arising from such failure by Customer to implement such recommendations.

14. LIMITATION OF LIABILITY.

Except to the extent prohibited by Applicable Laws, the total combined liability of either party and its Affiliates towards the other party and its Affiliates, whether in contract, tort or any other theory of liability, under or in connection with these Professional Services Terms or any applicable SOW, will be limited in the manner stated in Section 19 (Limitation of Liability) of the OPSWAT Terms.

15. TERM AND TERMINATION.

(a) Duration. The Professional Services Terms and applicable SOW terms shall stay in effect until the later of (i) Customer’s acceptance of the Professional Services pursuant to Section 3 under the applicable SOW; (ii) the termination of the SOW or these Professional Services Terms pursuant to this Section 15; or (iii) the termination of these Professional Services Terms pursuant to a mutual written agreement of the Parties.

(b) Termination by Either Party. Either party may terminate the SOW in accordance with Section 16 of the OPSWAT Terms.

(c) Termination by OPSWAT. OPSWAT may terminate any SOW:

(i) immediately if Customer fails to pay any amount when due under the SOW and such failure continues for twenty (20) days after the date of written notice of nonpayment; or

(ii) upon thirty (30) days written notice if, for a period of thirty (30) consecutive days, Customer or Customer POC fails to actively participate in defining the scope of work, provide necessary preliminary information, or otherwise provide OPSWAT with all necessary cooperation required to proceed in performance of Professional Services, despite reasonable attempts by OPSWAT to reach out to Customer or otherwise facilitate progress.

(iii) if OPSWAT reasonably believes in good faith that Customer is in violation of the Professional Services Terms or Applicable Laws, and such breach cannot reasonably be cured within thirty (30) days of notice by OPSWAT.

16. MISCELLANEOUS.

(a) Section 24 of the OPSWAT Terms (Miscellaneous) applies to these Professional Services Terms, unless expressly stated otherwise in these Professional Services Terms.

(b) Non-solicitation. During the term of these Professional Services terms, and for twelve (12) months after its expiry or termination, Customer will not solicit or seek to induce to leave the employ of OPSWAT any person who was, during the performance of the Professional Services, an employee of OPSWAT, and who worked with, or under the supervision of, Customer at any time during that period.

(c) OPSWAT Services If the Services involve OPSWAT Services or other solutions made available to Customer under OPSWAT Terms or any other a separate license agreement, the terms set forth in the separate license agreement or OPSWAT Terms shall apply to such OPSWAT Product or solution. “OPSWAT Services” as used in this Section mean collectively, (i) OPSWAT’s websites, products, services, support, e-commerce website (located at https://metadefender.opswat.com/store, https://store.opswat.com, or offered through third-party e-commerce providers), (ii) OPSWAT-branded software, releases, tools and utilities, and (iii) any other properties OPSWAT owns or operates.

(d) Governing Law and Mandatory Arbitration.  Section 20 (Governing Law; Venue; and Equitable Relief) and Section 21 (Mandatory Arbitration and Class Action Waiver) of the OPSWAT Terms apply to these Professional Services Terms and all SOWs entered into hereunder.

(e) Amendment and Modification. These Professional Services Terms may be periodically updated, and the current version will be posted at https://www.opswat.com/legal. Customer’s renewal or extension of a SOW, or any new SOW agreed, after a revised version of the Professional Services Terms has been posted, constitutes Customer’s acceptance of the then current Professional Services Terms. It is Customer’s responsibility to check the then current version of these Professional Services Terms at https://www.opswat.com/legal for changes. For the avoidance of doubt, if Customer and OPSWAT have entered into a SOW for a specified term, any modifications to the Professional Services Terms posted on the website made during the term of the SOW shall not apply to such SOW.