1. Description of Services
1.1. Agreement: By engaging Infinitrix’s services, the Customer hereby agrees to receive the specified services, collectively referred to as the “Services,” as outlined in a document known as a “Statement of Work” or “SOW.” Each SOW is an integral component of this Agreement. The Services encompass various elements, which may include the delivery of products such as data, reports, test plans, documentation, and software (referred to as “Deliverables”). Detailed information about the Services may also be provided in the form of an invoice.
1.2. Resolution of Conflicts: In the event of any inconsistencies between the provisions outlined in the Statement of Work and the terms and conditions detailed herein, the terms of the Statement of Work shall prevail. No terms, conditions, or provisions presented in any Customer-issued purchase order or similar document will be binding unless explicitly accepted in writing by Infinitrix.
2.Changes to Services
Any alterations to the contents of the SOW must be mutually agreed upon and documented through a formal change request, hereafter referred to as a “Change Order.” Each Change Order pertains specifically to the SOW being modified and, upon acceptance, becomes an integrated part of both the SOW and this Agreement.
3. Duration and Termination
3.1. Duration: This Agreement takes effect upon the mutual acceptance of the Statement of Work by both parties and remains in effect until either (i) all Services and Deliverables have been furnished to the Customer or (ii) this Agreement is terminated in accordance with its provisions, whichever transpires first.
3.2. Termination due to Default: In the event that either party significantly defaults in meeting its obligations under this Agreement and does not rectify the default within thirty (30) days after receiving written notice from the non-defaulting party specifying the default, the non-defaulting party has the right to terminate this Agreement. The termination shall be effectuated by providing written notice to the defaulting party, indicating the termination date.
3.3. Termination due to Insolvency: Irrespective of any other clauses in this Agreement, if either party becomes insolvent or is declared bankrupt, is subject to any liquidation or insolvency-related proceedings, undergoes the appointment of a receiver, enters into an arrangement for the composition, extension, or restructuring of its obligations, the other party may immediately terminate this Agreement by issuing written notice to the affected party.
3.4. Consequences of Termination: Upon termination of this Agreement, the Customer shall settle any outstanding fees owed to Infinitrix. Subsequent to termination, the Customer must promptly return to Infinitrix all materials, software, hardware, documents, and other tangible items not explicitly designated in the Statement of Work as items to be delivered to or retained by the Customer. Furthermore, the Customer must return any Deliverables and other materials, software, hardware, documents, and tangible items for which applicable fees have not been remitted.
4. Method of Service Delivery
Infinitrix retains the authority to determine the approach, specifics, and methodologies employed in the execution of the Services. When necessary, Infinitrix may enlist third-party subcontractors to carry out specific aspects of the Services while retaining primary responsibility for all Services and Deliverables.
5. Payments
5.1. Customer shall remit to Infinitrix the fees as stipulated in the applicable Statement of Work or specified in an invoice, in the manner and amount detailed therein.
5.2. Customer shall cover Infinitrix’s reasonable and standard out-of-pocket expenses, which may include travel expenses, incurred during the execution of the Services. Infinitrix will make reasonable efforts to secure Customer’s prior approval for such expenses.
5.3. The fees payable to Infinitrix do not encompass any transaction-related taxes, such as sales tax, use tax, consumption tax, value-added tax, or similar levies (“Indirect Taxes”) that may be imposed in compliance with applicable laws due to licenses granted, products sold, or services provided by Infinitrix to Customer. Any Indirect Taxes shall be clearly delineated on each Infinitrix invoice. Customer agrees to settle all such transaction taxes. For claims of sales and use tax exemption, Customer shall provide the required exemption certificate(s).
5.4. Amounts owed to Infinitrix under this Agreement must be paid within twentu (20) working days from the date of the invoice. In case of overdue balances, a late fee of 2.0% per month shall be added and payable by the Customer. Furthermore, failure to make payments within the thirty (30) day period shall constitute a material breach of this Agreement, entitling Infinitrix to suspend Services and terminate this Agreement.
6. Confidentiality
6.1. Confidential Information: During the Agreement’s term, both parties may disclose Confidential Information to each other as defined in Section 6.2. The receiving party agrees not to divulge the disclosing party’s Confidential Information to anyone except individuals and entities within the receiving party who need such information to perform services and who are bound by confidentiality obligations at least as stringent as those in this Agreement. The receiving party will solely use this Confidential Information to fulfill this Agreement. Upon Agreement termination, the receiving party must either return all Confidential Information belonging to the disclosing party (including copies) or, if directed by the disclosing party, destroy all such Confidential Information.
6.2. Definition of Confidential Information: For the purposes of this Agreement, “Confidential Information” encompasses any information or know-how, regardless of format (oral, written, digital, or otherwise), including but not limited to data concerning research, product plans, products, services, clients, markets, software, developments, inventions, processes, methodologies, designs, drawings, engineering, hardware configuration, marketing, or finances. This information is provided by one party to the other, obtained from one party by the other, or created by one party after reviewing the other party’s information or know-how. The receiving party is responsible for ensuring that its individuals and entities who receive the disclosing party’s Confidential Information comply with Section 6’s provisions.
6.3. Exclusions from Confidential Information: “Confidential Information” does not encompass information that (a) is publicly known at the time of disclosure or becomes public knowledge without any fault on the part of the receiving party, (b) the receiving party can prove was already in its possession without any confidentiality obligation before this Agreement’s disclosure, or (c) is independently developed by the receiving party without using or referencing the disclosing party’s Confidential Information.
6.4. Legal Orders: The receiving party may disclose the disclosing party’s Confidential Information if ordered by a competent court or government agency. However, prior to such disclosure, the receiving party must notify the disclosing party of the order and grant the disclosing party a reasonable opportunity to prevent or restrict such disclosure.
6.5. Injunctive Relief: Both parties acknowledge that their commitments under Section 6 are essential and reasonable to safeguard the disclosing party. They further agree that monetary damages may be inadequate to compensate for any breach of these obligations by the receiving party. Consequently, in addition to any other available remedies under law, equity, or otherwise, the disclosing party is entitled to seek injunctive relief.
7. Customer Authority and Plan
Customer affirms and guarantees that (a) Customer possesses full authority to request and authorize the execution of the Services as described in the Statement of Work, including but not limited to any penetration and/or security tests on Customer’s or a third party’s live computer production systems, applications, facilities, and/or environments (collectively, the “Systems”); (b) Customer shall not instruct, direct, or initiate any services in a live production environment without prior identification of such in the Statement of Work; and (c) each of the Systems Customer may request for testing or evaluation as part of the Services under this Agreement is adequately protected and accompanied by a business resumption and contingency plan suitable for the Services. This plan ensures the continuous provision of services offered and/or performed by the respective System while safeguarding all program and data files, including their integrity and confidentiality (collectively referred to as a “Plan”). At a minimum, each Plan must encompass Customer’s responsibility for backing up and safeguarding program and data files, protecting equipment, and maintaining disaster recovery and contingency plans. Except in cases of intentional and malicious actions by Infinitrix, Customer agrees to hold Infinitrix, its affiliates, and their directors, officers, employees, Customers, and agents harmless from, and indemnify them against, any and all costs, expenses, claims (whether third-party or otherwise), demands, suits, losses, governmental fines and penalties, and/or damages of every kind, nature, and description (including reasonable attorney fees). These may be incurred by, claimed from, or otherwise asserted by or against Customer, arising from, connected with, related to, caused by, or resulting from any failure of such a Plan. The Services are designed to achieve the objectives identified in the Statement of Work. However, Customer acknowledges that certain Services inherently carry risks and could lead to significant consequences or disruptions to the Systems being tested and evaluated by Infinitrix as part of the Services.
8. Representations and Warranties
Both parties hereby represent and warrant that:
(a) They possess the complete authority to execute and deliver this Agreement and to finalize the transactions outlined herein.
(b) This Agreement has been lawfully and validly executed and delivered, and constitutes a legally binding Agreement, enforceable in accordance with its provisions.
Furthermore, Infinitrix represents and warrants that all Services rendered hereunder shall meet professional standards and be conducted in a manner consistent with industry norms for the respective services.
9. Exclusion of Warranties
In addition to the explicit warranties detailed in this Agreement, Infinitrix explicitly disclaims all other representations, guarantees, and warranties, whether expressed or implied. These include, but are not limited to, implied warranties of merchantability, non-infringement, or suitability for a particular purpose. Furthermore, Infinitrix does not provide any warranty or guarantee concerning any third-party services or products delivered with or integrated into the Services or Deliverables provided under this Agreement.
10. Limits of Liability
Notwithstanding any other provision in this Agreement, except in cases involving a party’s obligations under Section 6 “Confidentiality,” or instances of a party’s fraud or willful misconduct, neither party shall be held liable to the other party for:
(a) Any indirect, incidental, special, consequential, exemplary, or punitive damages, or other similar types of damages. These include, without limitation, damages related to loss of profits or loss of business, arising from or in connection with this Agreement, its performance, the use of the Services or Deliverables provided hereunder, and/or the alleged breach of this Agreement. This is the case whether or not the party causing such damages was informed, knew, or should have known about the possibility of such damages in advance.
(b) Direct damages of any kind arising from or related to this Agreement, its performance, the Services and Deliverables provided hereunder, and/or the alleged breach of this Agreement, exceeding the fees actually paid or payable by Customer to Infinitrix under this Agreement.
The disclaimers of warranty and limitations of liability stipulated in this Agreement are fundamental terms of this Agreement. The parties acknowledge that they would not have entered into this Agreement without these provisions.
11. Intellectual Property Rights
11.1. Retention of Ownership
Each party shall retain ownership of its respective intellectual property and any derivatives thereof. This Agreement does not transfer ownership of one party’s intellectual property to the other party.
11.2. License to Perform Services
To facilitate the provision of Services, Customer grants Infinitrix a license to use Customer’s intellectual property as required. Infinitrix is granted a non-sublicensable, non-transferable, perpetual license to use such intellectual property solely for the purpose of executing the Services. This usage is subject to the Confidentiality provisions of Section 6. Furthermore, Customer’s internal business purposes are the sole intended use, and no third-party disclosure is permitted.
11.3. License to Enjoy Infinitrix IP
If any Deliverable includes Infinitrix intellectual property, Customer is granted a non-exclusive, fully paid-up, perpetual, worldwide license to use such intellectual property to the extent necessary for the specified purpose in the applicable Statement of Work. However, this use is limited to Customer’s internal business purposes and cannot involve commercial exploitation separate from the Deliverable as a whole.
11.4. IP Rights
Regardless of usage in any engagement or the inclusion in any deliverables, all rights, titles, and interests in Infinitrix’s testing tools, utilities, software, plans, strategies, processes, methodologies, models, historical data, and related materials developed during this Agreement shall vest in Infinitrix.
11.5. Rights upon Termination
If this Agreement is terminated before the completion of any Services and Deliverables, Infinitrix will only be obligated to provide those portions of the Deliverables that Customer has paid for, as outlined in Section 6. However, Infinitrix disclaims all warranties, express or implied, related to incomplete Deliverables delivered under these circumstances. If, at the time of termination, Customer has not paid all undisputed fees due for any Services and Deliverables under the Agreement, Customer will not receive any right, title, interest, or license for such Services and Deliverables.
12. Non-Solicitation
During the Agreement term and for one (1) year after, Customer shall not directly or indirectly induce any employee or contractor of Infinitrix introduced through this Agreement to leave Infinitrix’s employ, except through general solicitations, such as advertising, not specifically targeted at Infinitrix’s employees or contractors. Customer acknowledges that breaching this Section may cause Infinitrix irreparable harm, and in such cases, Infinitrix may seek injunctive relief without the necessity of proving actual damages or posting a bond, in addition to other remedies available at law, in equity, or otherwise.
13. Notice
All notices under this Agreement must be in writing. Notices will be considered effective upon delivery if delivered in person and upon mailing if sent by courier service, overnight delivery services, or certified/express mail. Notices affecting this Agreement as a whole will be sent to the addresses specified above or any other address provided in writing. Notices related to a specific transaction will be sent to the primary corporate addresses detailed in the Statement of Work or to any other address communicated in writing by Customer or Infinitrix.
14.Force Majeure
Neither party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes,
lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, terrorism, riot, natural disasters, or governmental action.
15. Resolution
15.1 All disputes arising between the Parties concerning the terms of execution of this Agreement should be settled by means of negotiations and all other possible alternatives to judicial processes of dispute resolution between Parties.
15.2 If the Parties have not agreed to resolve the dispute through negotiations, the Party whose rights or legitimate interests have been violated and for the purpose of direct settlement of the dispute with the violator of these rights or interests shall address a written claim to the guilty Party. The term for consideration of the claim is one month from the date of its receipt. The applicant must be notified in writing of the outcome of the claim.
15.3. If the dispute cannot be resolved through negotiations, as well as in a pre-trial (claim) procedure, such dispute shall be resolved arbitration administered by the The London Court of International Arbitration (LCIA) in force when the Notice of Arbitration is submitted.
15.4. The languages of arbitration are English. The provisions on emergency arbitrators do not apply.
15.5. This Agreement and any dispute, controversy, proceedings or claim arising out of or in connection with it or its formation or subject matter (including non-contractual disputes or claims arising out of or in connection with it) shall be governed by and construed in accordance with the English law.
16. Miscellaneous
16.1. Comprehensive Agreement
Both Parties mutually acknowledge and confirm that:
This Agreement supersedes any prior discussions, understandings, and agreements between them regarding its subject matter. This includes any previous memoranda of understanding, presentations, marketing materials, or similar documents created concerning the transaction covered by this Agreement.
This Agreement constitutes the sole and complete agreement between the Parties regarding the subject matter it encompasses.
However, it’s important to note that this clause does not exempt or limit any liability or rights arising from fraudulent actions.
16.2. Interpretation
Each Party acknowledges its active participation in the review and revision of this Agreement. Any rule of interpretation suggesting that ambiguities be resolved against the drafting party shall not apply in the interpretation of this Agreement.
16.3. Consent
Consent given by one party to any act by the other, where such consent was required, shall not imply consent or waive the requirement for obtaining such consent for the same or similar acts in the future. No waiver or consent shall be inferred from silence or the failure of a party to act, except as specifically stated in this Agreement.
16.4. Severability
If any term or provision of this Agreement is found to be invalid or unenforceable or is inapplicable to a particular person or circumstance, it shall not affect the validity and enforceability of the remaining terms and provisions. The remainder of this Agreement shall continue in full force and effect and shall be interpreted as if the invalid, unenforceable, or inapplicable provision were omitted.
16.5. Waiver or Modification
No waiver or modification of this Agreement or any of its covenants, conditions, or limitations shall be valid unless it is in writing and duly executed by the Party to be bound by it. No evidence of any waiver or modification shall be admissible in any proceeding, arbitration, or litigation between the Parties concerning this Agreement or the rights or obligations of any party under it unless the waiver or modification is in writing and duly executed as described above.
16.6. Headings
The headings used in this Agreement are for convenience only and do not alter, define, or limit any of the terms or provisions of this Agreement.
16.7. Counterparts and Electronic Signatures
This Agreement is executed in English in two counterparts, with each Party receiving one counterpart. It may be executed in any number of counterparts, and each executed counterpart, when duly exchanged or delivered, is considered an original. However, all counterparts together constitute a single instrument. The Parties also agree that scanned copies of the Agreement and its attachments, bearing the Parties’ signatures and transmitted electronically, shall be binding.
16.8. Modification for Compliance
In case any provision of this Agreement becomes invalid or unenforceable due to non-compliance with the law, the Parties shall either disregard that provision or, by mutual consent, take reasonable steps to modify the Agreement to the minimum extent necessary to make it valid and enforceable while reflecting the Parties’ original intentions to the greatest extent possible.
16.9. Business Process Updates
Both Parties shall promptly inform each other of any changes in their respective business processes that might affect compliance with the terms of this Agreement.
16.10. Assignment of Rights
The assignment of rights under this Agreement to any third party is only possible with the mutual consent of both Parties.
16.11. Accuracy of Information
The Parties shall ensure the accuracy of the bank and other details specified in this Agreement and provide each other with prompt written notice of any changes to these details. Failure to provide timely notice shall require the Party at fault to indemnify the other Party for all losses resulting from or in connection with the delayed notice.