Last update: August 11th, 2023
This Agreement is made and entered into
as of the last date signed below
(the “Effective Date”)
by and between
set forth on the Annexure, Sales Order, Quotation or Statement of Work
Blaze Information Security GmbH
Handelsregister: HRB 241746 B
whose principal place of business is
c/o CEBRAS, 2nd floor
10789 Berlin, Germany
Client and Contractor may be collectively referred to as the “Parties” or individually as a “Party”.
The terms of this Agreement are:
1. DEFINITIONS AND INTERPRETATIONS
The expressions which follow are given these meanings unless the context in which they are used requires a different meaning:
“Annexure” means a Sales Order (including online purchases and online sales orders), or a commercial quote in form of a Statement of Work (SoW) or a Quotation from the Contractor to offer Services which, when agreed and signed by the Contractor and Client, will constitute an integral part for the performance of such Services which is subject to the terms of this Agreement;
“Contractor Background Materials” means any and all Materials that are owned by the Contractor which are or have been developed independently of this Agreement (whether prior to the Effective Date or otherwise);
“Confidential Information” means information that is designated as ‘confidential’ or which by its nature is clearly confidential. Confidential Information includes (without limitation) any information concerning the technology, technical processes, business processes, procedures, business affairs, financial affairs and finance of either party, its customers, employees and service providers. Each party’s security procedures and the layout of premises are also included within the definition of Confidential Information. Confidential Information may take the form of documents, technical specifications, unpublished patent specifications, data, drawings, plans, processes, photographs, databases, computer software in disk, cassette, tape or electronic form and data storage or memory in, and items of, computer hardware;
“Effective Date” means the date of signature of the Annexure.
“Fees” means the fees which appear in the relevant Annexure, and which Client is to pay for the Services in accordance with Clause 4;
“Good Industry Practice” means the standard of skill, care, knowledge, reliability, professionalism and foresight which would reasonably and ordinarily be expected from an experienced person engaged in providing services which are the same as, or similar to, the Services;
“Intellectual Property Rights” means any of these rights, namely, patents, trademarks, rights in designs, get-up, trade, business or domain names, copyrights including rights in computer software and databases (including database rights) and topography rights (in each case whether registered or not and, where these rights can be registered, any applications to register or rights to apply for registration of any of them), and where applicable any goodwill therein;
“Materials” means all goods, software, records, reports, documents, ideas, know-how, drawings, data, information, inventions and papers, other materials and Materials (whether in documentary, electronic or other form) authored, produced, created, conceived, collected, developed, discovered or produced by or on behalf of Contractor for Client as part of the Services;
“Client Owned Materials” has the meaning ascribed to that term in Clause 6;
“Services” means the services to be provided by Contractor under this Agreement, including the production of the Materials; and
“Term” means a period of two years commencing on the Effective Date.
2.1. Contractor will perform the Services in accordance with the terms of this Agreement and the relevant Annexure.
2.2. Contractor undertakes to Client that the Services will be performed in accordance with all applicable laws, rules, regulations, orders, licenses, permits and other governmental requirements. If an Annexure does not set forth a delivery schedule or milestones for the performance of the Services, then Contractor will perform such Services in accordance with Good Industry Practice.
2.3. In the event of any conflict or inconsistency between them, the terms of the main body of this Agreement will prevail over the terms of the Annexure, and the relevant provisions of the Annexures should be construed accordingly.
2.4. Contractor will execute the Services and deliver the materials identified as deliverables in the corresponding Annexure (the “Deliverables”), in line with the specifications in the Annexure. Any particular scope or limitations on the provision of Services will be stipulated in the relevant Annexure. In the absence of such specifications, Contractor will have the discretion to determine the scope and limitations of such Services. If specific networks, code, systems, devices, or objects are the focus of the Services, they will be expressly identified by the Annexure. Contractor maintains the discretion to choose appropriate methodologies for carrying out the Services.
2.5. Contractor will supply suitably qualified personnel to carry out the Services and will exert reasonable efforts to keep changes in such personnel to a minimum. Contractor retains the right to hire independent contractors to undertake some or all of the Services, on the condition that the Contractor remains accountable for the performance of the Services in compliance with this Agreement.
2.6. Contractor typically anticipates a minimum lead time of four (4) weeks to commence an engagement. However, if the Client requires the Contractor to commence the engagement earlier than this lead time, the Contractor will use its best endeavors to accommodate such a request, although commencement remains subject to the Contractor’s existing schedule and availability. The Contractor and the Client will collaboratively agree on a schedule for the provision of the Services, which will be outlined in email or in the Annexure. In the absence of a specific schedule, the Contractor reserves the right to decide the timing and location of any Services under this agreement. Any delays in adhering to the agreed upon Services schedule caused by the Client may necessitate the execution of a change order or revision, and payment of additional fees, at the sole discretion of the Contractor.
2.7 The Contractor’s Services under this Agreement will include one round of remediation testing, which consists of a maximum of four hours of work to verify whether the security vulnerabilities identified in the initial test have been appropriately rectified. This single round of remediation testing can be booked by the Client within 90 days of receiving the initial security report from the Contractor. Any requests for remediation testing outside this 90-day window, or for additional rounds of remediation tests, are not included as part of the Services under this Agreement. Such requests will be subject to separate fees and must be agreed upon in writing between the Contractor and the Client.
The Contractor shall not undertake remediation tests of individual security vulnerabilities. The purpose of the remediation testing is to assess the overall rectification of the identified security vulnerabilities, and therefore it is conducted as a single, comprehensive round of retesting.
The scheduling of the remediation testing will be subject to the Contractor’s availability and will be arranged by mutual agreement between the Contractor and the Client. If the Client delays scheduling the remediation testing within the stipulated 90-day window, the Contractor shall not be obligated to perform such testing.
Following the completion of the remediation testing, the Contractor will provide the Client with a streamlined report that outlines the results of the retest. This report is meant to complement the original testing report and primarily focuses on the rectification status of previously identified security vulnerabilities. The Contractor shall use its standard format and content structure for the remediation test report. The Contractor does not accept any requests for customization or modification of the report’s structure, format, or content beyond what is standardly included in the Contractor’s remediation test reports.
3. ACCEPTANCE AND REJECTION OF SERVICES AND MATERIALS
Client will not be treated as having accepted any of the Services or the Materials until such time as Client has communicated such acceptance to Contractor in writing. In the event that Client is of the opinion, acting reasonably, that any or all of the Services and/or the Materials fail to comply in full with the requirements set out in the relevant Annexure, or with any of the other provisions of this Agreement, Client may, without prejudice to any other remedies available to it, request Contractor to make such modifications and otherwise to take such steps, at no additional cost to Client, as to ensure that the Services and/or the Materials comply in full with the relevant Annexure and all of the other provisions of this Agreement.
4. FEES AND PAYMENT
4.1. For timely and professional delivery of the Services and the Materials, Client agrees to pay Contractor the Fees in terms of this Clause 4.
4.2. Invoices shall be submitted to Client for payment as set forth in the applicable Annexure. Payment of undisputed amounts due hereunder will be made by Client to Contractor within thirty (30) days after Client’s receipt and validation of properly submitted and correct invoice(s).
4.3. Payment must either be completed, or a signed Annexure or purchase order completed before Services take place. Payments shall be made in U.S. Dollars or Euros, or, if different, the applicable currency as set forth in the Annexure.
4.4. If Client does not make the payment within the period set out above, Contractor can suspend any further provision of the Services and cancel any future Services which have been ordered by, or otherwise arranged with, Client.
4.5. Unless otherwise stated in the relevant Annexure, the Fees are inclusive of all travel expenses and other incidental expenses incurred by Contractor.
4.6. If the Services outlined in the Annexure are expected to be delivered in multiple tranches, Client agrees to pay Contractor in full the Fees within thirty (30) days after Client’s receipt of the invoice(s). Any remaining Services in tranches will be left as credits for Client to use within twelve (12) months from the beginning of the contract, with a minimum lead time of four (4) weeks. Credits not claimed within twelve (12) months are considered expired and can no longer be used, unless agreed otherwise in writing between the Parties before the expiry date.
4.7. If any of the Fees or any other payments due under this Agreement are not paid by the Client when due, Contractor reserves the right to charge interest at a monthly rate equal to 1.5 (one and a half) percent per year or the maximum rate permitted by applicable law on any overdue fees from the due date until the date the overdue amount (plus applicable interest) is paid in full.
4.8. The Fees are exclusive of any applicable goods and services taxes, VAT and other taxes or levies which are imposed or charged by any competent authority.
5.1. Contractor and Client will each treat as confidential all Confidential Information obtained from the other under this Agreement, will protect such Confidential Information and will not, without the prior written consent of the other party, disclose or use such Confidential Information except for the purposes of performing its obligations under this Agreement.
5.2. This Clause 5 does not apply to information which the receiving party can show by reference to documentary or other evidence, a) was rightfully in its possession prior to disclosure to it by the other party; b) is already public knowledge or which becomes so at a future date (otherwise than as a result of breach of this Clause 5; c) is received from a third party who is not under an obligation of confidentiality in relation to the information; d) is developed independently without access to, or use or knowledge of, the Confidential Information; e) is trivial or obvious or f) is required to be disclosed by the receiving party in accordance with the applicable laws and orders from government or court; provided that, in this case, the receiving party shall provide prior written notice of such disclosure to the providing party and take reasonable and lawful actions to avoid and/or minimize the degree of such disclosure.
5.3 If the Parties have a separate mutual nondisclosure agreement (the “Separate MNDA”), then said Separate MNDA will control Clause 5 of this Agreement.
6. OWNERSHIP; THIRD PARTY MATERIALS
6.1. Client shall own and retain all right, title, Intellectual Property Rights and interest in and to all Materials created on behalf of Client as part of the Services (“Client Owned Materials”). Contractor hereby assigns to Client all right, title and interest that Contractor may have or may hereafter acquire in all Client Owned Materials, including all Intellectual Property Rights therein.
6.2. Contractor hereby grants to Client a perpetual, irrevocable, sub-licensable, non-exclusive, royalty-free, worldwide license to use, exploit, sell, copy, reproduce, manufacture, distribute, export, publicly display, publicly perform, sub-license, modify, improve, enhance and make derivative works (i.e. a work or materials which is based upon Contractor Owned Materials) of such Contractor Background Materials as are incorporated in the Materials.
6.3. Contractor shall ensure that all Client Owned Materials and all other Materials created by Contractor under this Agreement are accurate and are Contractor’s original works (except for Third Party Materials), and will not infringe upon, violate or misappropriate any Intellectual Property Rights of any third party.
7. WARRANTIES AND REPRESENTATIONS
7.1. Each party represents and warrants to other party that, a) it has all necessary rights, power and authority and has taken all necessary action to enter into and perform this Agreement and to grant the rights herein; and b) its entry into and performance of this Agreement will not infringe the rights of any third party or cause it to be in breach of any obligations to a third party.
7.2. Contractor represents, warrants and undertakes to Client that all Services will be of high quality and will be performed in a timely, workmanlike manner and with professional diligence and skill in accordance with the terms of the relevant Annexure and the specifications therein.
8. LIMITATION OF LIABILITY
8.1. Nothing in this Agreement shall be deemed to limit or exclude either party’s liability: (i) in respect of death or personal injury resulting from its negligence; (ii) in respect of fraud or fraudulent misrepresentation; (iii) in respect of liability in Clause 6; or (iv) otherwise to the extent that such limitation or exclusion is not permitted by law.
8.2. Subject to Clause 8.1, in no event will either party or its affiliates be liable to the other party or its affiliates for any special, indirect, incidental, consequential or exemplary damages of any nature arising out of or related to this Agreement, even if such party has been advised of the possibility of such damages. The foregoing will apply regardless of the negligence or other fault of either party and regardless of whether such liability arises in contract, negligence, tort, strict liability or any other theory of liability. Under no circumstances will Client be liable to Contractor or any third party (whether in contract, negligence, tort, strict liability or any other theory of liability) for an amount greater than the aggregate amounts paid by Client under the relevant Annexure.
8.3 The Client acknowledges and agrees that the Contractor’s execution of the Services under this Agreement, when performed in accordance with the agreed scope of work and with all necessary and appropriate duty of care, shall not constitute a breach of any computer crime laws in any jurisdictions, including, but not limited to, the Computer Fraud and Abuse Act (CFAA) and the Computer Misuse Act (CMA). Therefore, the Client agrees not to pursue any legal action against the Contractor or its personnel, affiliates, agents, or subcontractors for violation of any such laws arising from the performance of the Services in accordance with this Agreement. This clause does not preclude any legal action for services performed outside the agreed scope, or where there has been a breach of duty of care, or for any other actions or omissions of the Contractor that are not in compliance with this Agreement.
9. TERM AND TERMINATION
9.1. This Agreement will come into effect on the Effective Date and will continue until the expiry of the Term, unless earlier terminated as provided herein, provided that if at the expiration of this Agreement there is an outstanding Annexure that has not been completed, this Agreement will remain in effect until all Services to be provided thereunder have been accepted by Client.
9.2. Client may terminate this Agreement or an individual Annexure for convenience upon thirty (30) days’ prior written notice to Contractor. Following the effective date of such termination: (a) Contractor will not be obligated to continue performing any such terminated Services; (b) Client will pay Contractor for all Services performed prior to effective date of termination; (c) Client will not be obligated to pay Contractor for any such terminated Services performed after the effective date of such termination; and (d) neither party will have any obligation or liability to the other (including, but not limited to anticipated revenues or profits based upon this Agreement or for any costs or expenses incurred in reliance upon this Agreement) arising from the termination of the Services itself.
9.3. Either party may terminate this Agreement or an Annexure immediately upon the other party’s material breach of this Agreement, provided that: (a) the non-breaching party sends written notice to the breaching party describing the breach in reasonable detail; (b) the breaching party does not successfully solve the breach within a fifteen (15) day period; and (c) following the expiration of the fifteen (15) day period, the non-breaching party sends a second written notice to the breaching party indicating the non-breaching party’s election to terminate this Agreement. In the event of any termination for cause by Client, Client will have no further payment or performance obligations under this Agreement.
9.4. Either party may terminate this Agreement immediately forthwith by notice in writing to the other party if that other party has a receiver or administrative receiver appointed over the whole or any part of its undertaking, passes a resolution for winding up other than for amalgamation or reconstruction, is subject of an administration order, enters into a voluntary arrangement with its creditors, ceases or threatens to cease to carry on business or is unable to pay its debts as they fall due.
10. CANCELLATIONS AND AMENDMENT
10.1 Contractor can withdraw, cancel, or amend an Annexure if it has not been signed by Client, or if the services have not started in accordance with 10.3.
10.2 Either Contractor or Client can cancel a request for any reason prior to the acceptance (or rejection) of the relevant Annexure.
10.3 Cancellation of the contract or Annexure outside of reasonable time incurs fees as follows;
10.3.1 Less than fifteen (15) working days’ notice prior to the scheduled commencement date, payment for 25% of the quotation will be charged. The charged amount will be held as credits for the Client to utilize within twelve (12) months from the beginning of the contract set forth in Effective Date. To utilize these credits, a minimum reschedule notice of four (4) weeks are required. For the work to commence, the Client agrees to be charged the remaining 75% of the quotation prior to the start of services
10.3.2 Less than ten (10) working days’ notice prior to the scheduled commencement date, payment for 50% of the quotation will be charged. The charged amount will be held as credits for the Client to utilize within twelve (12) months from the beginning of the contract set forth in Effective Date. To utilize these credits, a minimum reschedule notice of four (4) weeks is required. For the work to commence, the Client agrees to be charged the remaining 50% of the quotation prior to the start of services
10.3.3 Less than five (5) working days’ notice prior to the scheduled commencement date, payment for 100% (full) of the quotation will be charged and the amount will be left as credits for Client to use within twelve (12) months from the beginning of the contract set forth in Effective Date, with a minimum reschedule notice of four (4) weeks
10.4 If Client wants to amend any details of the Annexure, Client must detail the requests to the Contractor in writing. Contractor will use reasonable endeavors to make any required changes, and any additional costs will be included in the fees and invoiced to Client.
10.5 If, due to circumstances beyond Contractor’s control, Contractor has to make any change in the Annexure or how they are delivered, Contractor will notify Client immediately. Contractor will use reasonable endeavors to keep any such changes to a minimum.
11.1. Notices. Any notice which either party is required or authorized by this Agreement to give or make to the other shall be given in writing by email (to the email address provided), post or hand delivery addressed to the other party at their last known business address.
11.2. Insurance and Force Majeure. Contractor will maintain sufficient insurance coverage to enable it to meet its obligations created by this Agreement and by law. Notwithstanding anything else contained in this Agreement neither party shall be liable for any delay in performing its obligations if such delay is caused by a force majeure event.
11.3. Agents, Subcontractors and Party Relationships. Contractor may use agents or subcontractors in its performance under this Agreement, or otherwise transfer, delegate or deal with its obligations under this Agreement. Contractor will be responsible for any acts, or failures to act, of its subcontractors as if they were Contractor’s acts or failures to act. Contractor is an independent contractor for Client in connection with the Services and Materials it provides under this Agreement, and nothing in this Agreement is intended to create or shall be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise.
11.4. Governing Law, Jurisdiction, Venue. This Agreement shall be governed by and construed in accordance with the laws of Berlin, Germany. Both Parties irrevocably submit to the exclusive jurisdiction of the courts of Berlin in case of any disputes of this Agreement.
11.5 Publicity and Marketing. The Contractor may use Client’s name, logo, and trademarks solely to identify Client as a customer of the Contractor on the Contractor’s website and other marketing materials and in accordance with Client’s trademark usage guidelines. The Contractor may share aggregated and/or anonymized information regarding use of the services with third parties for marketing purposes to develop and promote services. Contractor never will disclose aggregated and/or anonymized information to a third party in a manner that would identify the Client or any identifiable individual as the source of the information.
11.6. Assignment, Counterparts and Entire Agreement. This Agreement may not be assigned by either party without the prior written consent of the other party. This Agreement may be executed in any number of counterparts, and by the Parties in separate counterparts, which together constitute one single agreement between the Parties. This Agreement any active Annexure, and any Separate MNDA, if applicable, constitute the entire agreement executed pursuant hereto between the Parties with respect to the subject matter hereof and supersede all oral understandings, representations, prior discussions and preliminary agreements.
11.7. Anti-Corruption. Client represents and agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Contractor’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Client learns of any violation of the above restriction, Client will use reasonable efforts to promptly give notice to Contractor.
11.8. Amendments. The Contractor reserves the right to amend this Agreement from time to time, whereupon the new Agreement will supersede all previous versions. While the Contractor will endeavor to provide the Client with a notice of not less than ten (10) days prior to the effective date of any such amendment, but it is under no strict obligation to do so. Therefore, the Contractor shall not face any penalty or liability for not providing such notice. The Client’s continued use of the Services following the effective date of any amendment may be regarded by the Contractor as acceptance of any such amendment. Non-enforcement of any provision of this Agreement at any time by the Contractor does not constitute a waiver of that provision or any other provision of this Agreement.