Terms and Conditions

Definitions

• Company: Diphrakt B.V.
• Client: counterparty using the Company’s services.
• Agreement: any oral or written contract between Company and Client.
• Confidential Information: any non-public information exchanged in connection with the Agreement.

Scope & Applicability

These Terms apply to all offers, services, and Agreements, unless expressly agreed otherwise in writing. Deviations are valid only if confirmed in writing by both parties.

3. Offers & Formation

All offers are non-binding unless explicitly stated otherwise.
Agreements are concluded when:

• a written order confirmation is sent by the Company; or
• the Company starts performing work.

4. Services

The Company provides cybersecurity services (e.g., penetration testing, vulnerability assessments, phishing simulations, managed monitoring, incident response, consulting, hardware security assessments).

Diphrakt agrees to provide product support and consulting services under the terms and conditions of this Agreement. The precise scope of any services to be provided under this Agreement will be specified in Statements of Work (for consulting services) entered into under this Agreement. The customer may enter into Statements of Work under this Agreement.

5. Fees and Expenses Incurred in Performance of this Agreement.

The Customer agrees to pay Diphrakt the fees described in each Statement of Work. Unless such expenses are specifically included in the rates provided to the customer in the Statement of Work, or are unambiguously waived in the specific Statement of Work under which the services are performed, the Customer also agrees to pay reasonable out-of-pocket travel and living expenses (if any) as required in the performance of services under this Agreement.

Materials provided by Diphrakt in connection with the services will be provided subject to the following provisions:

a. Consulting Services. Each Statement of Work will specify the rights in materials delivered under it. Any devices provided to Diphrakt by Customer will be assumed to be destroyable during the course of testing unless otherwise explicitly stated in the Statement of Work.

Diphrakt will safely and securely destroy devices provided upon completion of the project or as directed explicitly in the Statement of Work.

b. Materials. Any materials, tools, equipment, chemicals or other minor expenditure (EUR 500 and less) purchased by Diphrakt in the course of the project will be charged back to the client even if not listed in the Statement of Work. For larger expenditures, Diphrakt will seek approval or add those to the Statement of Work if foreseen prior to project kickoff.

The Customer agrees to pay invoices issued under this agreement within 30 days of the date of the invoice. Diphrakt will not change its fees during the term of a Statement of Work. However, Diphrakt may adjust fees prior to entering any Statement of Work. Diphrakt’s fees exclude taxes, duties, tariffs, value added taxes or other governmental charges required by law, and such applicable taxes or fees will be billed to and paid by the Customer. Diphrakt is responsible for taxes based upon its own personal property ownership and net income. Diphrakt is authorized under this Agreement to assess a finance charge of the lesser of 1.5% per month or the highest amount allowed by law on all past due amounts. Failure to pay for more than 60 days after the date of invoice shall be a material breach of this Agreement.

6. Restrictions on Use.

The customer may not:

1.        Rent, lease, lend or host service deliverables, except where Diphrakt agrees by written agreement;

2.        Reverse engineer, decompile or service deliverables, except to the extent expressly permitted by applicable law despite this limitation or where Diphrakt agrees by written agreement;

3.        Do anything with information, proof of concept or other deliverable, that would be in violation of the Wassenaar Arrangement. To that end, if testing of 3rd party products results in high or critical findings, Diphrakt reserves the right to report the findings to the original manufacturer/owner of the product. Customer may participate in the disclosure and has the option of being named in the disclosure or remaining confidential.

The Customer acknowledges that Diphrakt operates in and this agreement is of Dutch origin. The Customer agrees to comply with all applicable international and national laws that apply to information security, Wassenaar Arrangement, and others including Dutch Export Administration Regulations, as well as end-user, end-use and country destination restrictions issued by Dutch and other governments.

Neither party grants the other the right to use any trademarks, trade names, or other designations in any promotion or publication without express written consent by the other party.

7. Confidentiality and Disclosure.

For a period of five years after disclosure, neither party will use the other’s confidential information without the other’s written consent except in furtherance of the relationship created by this Agreement or subsequent agreements or disclose the other’s confidential information except (I) to obtain advice from legal or financial consultants, or (ii) if compelled by law, in which case the disclosing party will use its best efforts to give the other party notice of the requirement so that the disclosure can be contested. The Parties to this Agreement will take reasonable precautions to safeguard each other’s confidential information. Such precautions will be at least as great as those each take to protect their own confidential information. The Parties to this Agreement will disclose each other’s confidential information to their respective employees or consultants only on a need-to-know basis and subject to the confidentiality obligations imposed here. When confidential information is no longer necessary to perform any obligation under any of the agreements, each party will return it to the other or destroy it at the other’s request. Notwithstanding any other provision of this Section and if the Customer is a government entity, the Customer may disclose the terms and conditions of this agreement in accordance with the requirements of any public records law.

8. Retained Rights Regarding Confidentiality and Disclosure.

The Parties to this Agreement are free to develop products independently without the use of the other’s confidential information. Neither party is obligated to restrict the future work assignments of people who have had access to confidential information. In addition, these people are free to use the information that they remember related to information technology, including ideas, concepts, know how or techniques, so long as they do not disclose confidential information of the other party in violation of this agreement. This use shall not grant either party any rights under the other’s copyrights or patents and does not require payment of royalties or separate license. The Parties to this Agreement may provide suggestions, comments or other feedback to the other with respect to the other’s confidential information. Feedback is voluntary and the receiving party is not required to hold it in confidence. The receiving party will not disclose the source of feedback without the providing party’s consent. Feedback may be used for any purpose without obligation of any kind.

9. Cooperation in the Event of Disclosure of Confidential Information.

The Parties to this Agreement mutually agree to immediately notify the other upon discovery of any unauthorized use or disclosure of confidential information and agree to cooperate in any reasonable way to help the other regain possession of the confidential information and prevent further unauthorized use.

10. Knowledge Obtained or Derived.

Diphrakt may use any technical information derived from providing the services for our knowledge base. Diphrakt agrees not to identify the Customer or disclose any of the Customer’s confidential information in any item in the knowledge base.

11. Independent Contractor Subcontractors.

Diphrakt provides services as an independent contractor and will be responsible for all social security,

unemployment, workers’ compensation and other withholding taxes for all its employees. Diphrakt may use subcontractors to perform services, in which case it will be responsible for the performance of those subcontractors.

12. Warranties, Express or Implied; Disclaimer.

Diphrakt warrants that all services will be performed using generally accepted industry standards and practices. Diphrakt warrants that it will work with the Customer to provide satisfactory services according to industry standards.

TO THE EXTENT PERMITTED BY APPLICABLE LAW, DIPHRAKT DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, OTHER THAN THOSE IDENTIFIED EXPRESSLY SET FORTH IN THIS SECTION, INCLUDING BUT NOT LIMITED TO WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE PRODUCTS, SERVICE DELIVERABLES, RELATED MATERIALS AND SERVICES. DIPHRAKT WILL NOT BE LIABLE FOR ANY SERVICES OR PRODUCTS PROVIDED BY THIRD PARTY VENDORS, DEVELOPERS OR CONSULTANTS IDENTIFIED OR REFERRED TO THE CUSTOMER BY DIPHRAKT OR ITS EMPLOYEES, AFFILIATES, OR AGENTS UNLESS SUCH THIRD PARTY PRODUCTS OR SERVICES ARE PROVIDED UNDER WRITTEN AGREEMENT BETWEEN DIPHRAKT AND THE CUSTOMER, AND THEN ONLY TO THE EXTENT EXPRESSLY PROVIDED IN SUCH AGREEMENT.

13. Limitation of Liability; Time.

Except as expressly provided herein, Diphrakt, its employees, stockholders, directors, subcontractors, agents or subsequent agents, owners, directors or stockholders, shall not be liable for claims or damages arising from this agreement including but not limited to: negligence, loss of data, time, revenue or profits, labor costs, lost profit opportunity, capital costs, overtime, loss of property, real or assumed damages, mistake, error, delays, defects, omissions or other consequential, incidental, direct or indirect exemplary or punitive damages arising from this agreement or performance here under even when Diphrakt. Is informed of the possibility of such damages.

Except as otherwise specifically provided in this section, and whatever the legal basis for the Customer’s claim, Diphrakt’s liability will be limited, to the maximum extent permitted by applicable law, to direct damages up to the amount the Customer has paid for the services giving rise to the claim. In the case of Diphrakt’ responsibilities with respect to third party copyright infringement claims, its liability to pay damages resulting from any final adjudication (or settlement to which Diphrakt consents) is subject to this limitation. In the case of services provided to the Customer free of charge, or code the Customer is authorized to redistribute to third parties without separate payment to Diphrakt or its partners, our total liability to the Customer will not exceed US $ 5,000, or its equivalent in local currency. The limitations contained in this paragraph will not apply with respect to our obligations under the section of this Agreement regarding confidentiality.

To the maximum extent permitted by applicable law, neither party to this contract nor any of their affiliates, subdivisions or suppliers will be liable for any indirect damages (including, without limitation, consequential, special or incidental damages, damages for loss of profits or revenues, business interruption, or loss of business information) arising in connection with any agreement, product or service, even if advised of the possibility of such damages or if such possibility was reasonably foreseeable. This exclusion of liability does not apply to either party’s liability to the other for violation of its confidentiality obligation or of the other party’s intellectual property rights. The limitations on and exclusions of liability for damages in this agreement apply regardless of whether the liability is based on breach of contract, tort (including negligence), strict liability, breach of warranties, or any other legal theory.

Except for any different period required by applicable law, any action arising under this Agreement must be brought within six months from the date that the cause of action arose.

14. Term and Termination of Agreement; Assignment.

This Agreement shall remain in effect until terminated. Either party may terminate this agreement, any Statement of Work for convenience by giving the other party 30 days written notice. Either party may terminate this Agreement or any work order or services description if the other party is in material breach or default of any obligation that is not cured within 30 days notice of such breach. The Customer agrees to pay all fees for services performed and expenses incurred prior to the termination of this Agreement. Termination of this Agreement will terminate all outstanding Statement of Work entered into under this agreement.

Neither party may assign this Agreement or any Statement of Work or Services Description without the written consent of the other. Any attempt by a party to this Agreement to assign this Agreement or any Statement of Work or Services Description without the written consent of the other party may be deemed notice of termination of this Agreement, effective on the date of assignment, by the other party.

15. Survival upon Termination or End of Term.

The provisions regarding warranty, limitation of liability, confidentiality, fees and expenses, obligations on termination or expiration, ownership and license, and miscellaneous of this Agreement, and any provisions specified as surviving in a Statement of Work survive any termination or expiration of this agreement, any Statement of Wok.

16. Severability.

If a court holds any provision of this Agreement to be illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect and the parties will amend the Agreement to give effect to the stricken clause to the maximum extent possible.

17. Waiver of Breach.

No waiver of any breach of this agreement shall be a waiver of any other breach, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.

18. Force Majeure.

To the extent that either party’s performance is prevented or delayed, either totally or in part, for reasons beyond that party’s control, then that party will not be liable, so long as it resumes performance as soon as practicable after the reason preventing or delaying performance no longer exists.

19. Applicable law; Alternative Dispute Resolution.

The terms of this Agreement will be governed by the laws of the state in which the Agreement is made, without giving effect to its conflict of law provisions. This choice of law does not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction. Disputes relating to this agreement will be subject to applicable mandatory dispute resolution statutes and regulations of the state in which the Agreement is made.

In the absence of applicable mandatory dispute resolution statutes and regulations in the state in which the Agreement is made, any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the Dutch Arbitration Association