Terms of Business
These SECTA5 Terms of Business (“Terms”)are between SECTA5 (“SECTA5”, “Our”, “We”, “Us” or similar terms) and the customer entity (“You”, “Your” or similar terms), stated on the applicable Purchase Document, who accepts these Terms.
Clauses in these Terms concerning the access to and use of specific Professional Services are applicable only if the Client has procured them.
1. Agreement
1.1 The Purchase Document and these Terms, hereby integrated by reference, form the entire agreement between SECTA5 and Client ("Agreement") concerning the subject matter of this Agreement. This Agreement replaces all prior proposals, agreements, understandings or other communications between the parties, oral or written. SECTA5 and Client may be collectively referred to as the “Parties” and individually as a “Party” for the purposes of this Agreement. This Agreement may be changed, amended, or supplemented only by written agreement, signed by both Parties.
1.2 This Agreement comes into effect between the Parties as of the Effective Date mentioned in the Purchase Document ("Effective Date") and remains effective for the duration stated in the Purchase Document ("Term").
1.3 Separate scopes of work may be established between SECTA5 and the Client, and executed through separate Purchase Documents. The most recent versions of these Terms and Conditions available as of the Purchase Document Effective Date will constitute the Agreement with respect to each separate Purchase Document.
1.4 In case of any discrepancy or conflict between the terms of the Purchase Document and these Terms, the terms of the Purchase Document will prevail to resolve such discrepancy or conflict.
2. Definitions
2.1 "Services" means any and all software and Professional Services made available by SECTA5 to the Client.
2.2 "Purchase Document" refers to any written sales order, quotation, proposal, or other similar document detailing Services to be provided by SECTA5 under a Statement of Work, and accepted by SECTA5 as genuine.
2.3 "Statement of Work" or "SOW" refers to a mutually agreed statement of work detailing Services to be provided by SECTA5, the applicable metrics on which such Services are to be provided, the Fees to be paid, and any other terms agreed upon between SECTA5 and Client.
2.4 "Project" refers to the proposed engagement
2.5 “Intellectual Property Rights” means all intellectual property rights, including but not limited to patents, copyright, registered designs, trade secrets, trademarks, inventions and discoveries and any application or right to apply for registration of the foregoing.
2.6 “Background IPR” means any Materials and/or know-how created prior to the commencement of the provision of applicable Services, together with any accretion, update, upgrade, enhancement, improvement of those Materials and/or know-how.
2.7 “Material” means any documentation, documented methodology or process, data or other material in whatever form, including reports, specifications, diagrams, designs, flowcharts, logic diagrams and listings, business rules and requirements, user manuals, user guides, operations manuals, training materials and instructions.
2.8 In case of any discrepancy or conflict between the terms of the Purchase Document and these Terms, the terms of the Purchase Document will prevail to resolve such discrepancy or conflict.
3. Professional Fees and Billing
3.1 We will invoice you all costs and expenses directly and incidentally incurred by us in the course and arising out of our engagement in carrying out the Project as is pre-agreed within the Statement of Work (SOW). These include third-party costs incurred on your behalf and customary charges including any goods and services tax, disbursements and all other reasonable out-of-pocket expenses incurred on your behalf.
3.2 Unless otherwise agreed, our invoices are due and payable upon presentation. Our invoices will include a brief description of work. If you have any queries, please raise this with us as soon as possible.
3.3 Our general practice is to issue our invoices in Singapore dollars unless otherwise pre-agreed. If you prefer the invoice to be issued in US dollars or other currencies, we will use a fixed rate of exchange specified at the time of invoicing.
3.4 If payment is delayed beyond 30 days, we reserve the right to charge interest of 1% per month on overdue bills. Prompt payment of all invoices is a condition of our continued engagement on the Project. If payment is delayed beyond 60 days, we reserve the right to terminate our engagement upon 30 days’ written notice and to continue charging interest on overdue bills.
3.5 Should the Project not be carried through to completion, we are entitled to charge you for work that has already been completed, including any disbursements incurred.
4. Communications
We will provide the Services in accordance scope identified in the SOW, or with the instructions given from time to time by personnel from you (or any of your other partners, directors, employees or professional advisors identified to us for this purpose and will assume that that person is properly authorised to give those instructions), or any other personnel as pre-agreed within the SOW.
5. Taxes
5.1 Unless exempted, goods and services tax is chargeable on our fees and expenses, and is to be borne by you.
5.2 Our bills are to be paid in full by you without any deduction (including for or on account of taxes, levies or other charges). If you are required by law to withhold or deduct any such taxes, you agree to pay such additional amounts to us as are necessary to enable us to receive the amounts we would have received in the absence of such withholding or deduction.
6. Taxes
6.1 Should we be appointed as exclusive service providers on the Project, you agree that:
(a) you will not, and you will procure that your ultimate beneficial owners and related parties will not, engage with any third parties, to provide similar services for the Project without our prior consent;
(b) any changes to the exclusivity arrangement as a result of the above, will not affect our fee arrangement as set out in the Purchase Document.
7. External Experts
7.1 External expert(s) such as technical specialists may be appointed as part of the Project. You will be responsible for paying the fees and costs of these external experts directly to them upon presentation of their invoices. Unless otherwise agreed, we ask that you contract directly with them and for their charges to be billed directly to you; we will not be responsible for their charges.
8. Representation and Warranties
8.1 You represent and warrant to us that you:
(a) own the systems to be tested and/or has obtained or will obtain all necessary third-party authorization for us to provide the Services;
(b) understand that the Services may constitute crimes under, inter alia, the Penal Code and Singapore Computer Misuse Act 1993 unless expressly authorized by yourself;
(c) have created or will create a full backup of all systems to be tested and have verified that the backup procedure will enable you to restore all such systems to their state prior to the commencement of the Project;
(d) understand that the Project is to be conducted on a time-boxed, ‘best effort’ basis;
(e) understand that we do not guarantee to identify, remediate, or prevent all cyber threats present within your systems, including but not limited to malware, vulnerabilities, past or ongoing cyber breaches, and other related cyber incidents;
(f) will provide all the necessary authorisation and consent to us for the purposes of the Project;
(g) shall sign and execute such letters, forms, and other authorisation documents as may be reasonably requested by us prior to the commencement of the Project;
(h) shall provide timely and reasonable access to, including but not limited to, resources, personnel, and data, which we deem necessary for the purposes of the Project; and
(i) understand that the performance of our responsibilities and requirements as laid out in this Agreement is necessary for the completion of the Project.
8.2 You hereby irrevocably indemnify, release, waive, and discharge the Company and its personnel from any and all actions arising from or in connection with the Services to be performed. We shall not be liable for any loss, damage, penalties, costs, expenses, and fees that may be incurred, suffered or expended by you arising from or in connection with the Services to be performed.
8.3 You acknowledge that we may leverage or use other third-party software or tools, including forensic tools, cloud-based analytics, and monitoring tools (“Third-Party Software”), in the provision of the Services.
8.4 You acknowledge that we will not be liable for any loss, damage, penalties, costs, expenses, and fees that may be incurred, suffered or expended by you arising from or in connection with the use of such Third-Party Software in the provision of the Services.
9. Intellectual Property Rights
9.1 All right, title and interest (including all Intellectual Property Rights) subsisting in your Background IPR remains vested in you and in our Background IPR remains vested in us.
9.2 Unless otherwise specified in an accepted offer, all Intellectual Property Rights subsisting in any deliverable we provide to you remains vested in us.
9.3 A deliverable must not include any Materials, in which Intellectual Property Rights of a third party are contained, unless the right to the use of those Materials by you has been procured from that third party.
9.4 Nothing in this Agreement grants you the right to use any of the Company’s trademarks, logos, service marks, trade names, or other designations in any promotion or publication.
10. Data Protection and Confidentiality
10.1 We are authorised to collect, process (in particular hold) and use information about you, your offices and employees (where applicable) that becomes known to us in connection with your matter. If you provide us with any personal data relating to a third party, you also represent to us that you have notified and obtained the consent of the third party.
10.2 While working on the Project and where we are required to carry out work outside Singapore, your personal data may be transferred to these jurisdictions. You understand and agree that such personal data may be processed and accessed in countries where data protection laws and regulations may not be comparable to those in Singapore.
10.3 Personal data and confidential information which we receive from you in connection with the matter will be treated by us as confidential and used solely for the purposes of the matter.
10.4 Following the completion of your matter and subject to our confidentiality obligations, we may refer to you and the nature of our services we provided to you when marketing our services, using such media as we deem appropriate.
10.5 Any advice and documents we prepare in this matter is for your benefit alone and is given solely for the purpose of this engagement and may not be used or relied upon by third parties. You agree that you will not disclose such advice (directly or indirectly) to any such person without our prior written consent.
11. Anti-Bribery and Corruption / Money Laundering
We are subject to Singapore and other applicable laws and regulations on anti-bribery, corruption, money laundering and terrorism financing. In order to fulfil such obligations, we may verify your identity as well as the identity of your directors and officers and/or other relevant information (such as source of funds). We may request this at the outset of our relationship with you and at various times throughout the Project, which you agree to supply to us promptly upon request (failing which we may have to suspend our work).
12. Amendments
It may be necessary for us to amend the terms on which we act from time to time, in which case we will notify you of the proposed changes in writing and, unless we hear from you in writing to the contrary within 21 days, such amendments will be deemed to come into effect from the end of that period.
13. Taxes
You may terminate our engagement by giving not less than 30 days’ notice to us, while we may terminate our appointment by giving not less than 30 days’ notice to you. In either case, you remain responsible for our professional fees or expenses accrued and/or incurred up to the date of the termination, including any pro-rated portion of the next milestone payment due.
14. Limitation of Liability
14.1 All representations and warranties, other than those given expressly in these conditions, are excluded.
14.2 You acknowledge and agree that in determining to enter into these conditions you have not relied upon any pre-contractual representations, discussions, communications or acts or omissions of us that are not expressly set out in these conditions or the applicable offer.
14.3 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 applicable law.
14.4 Except for any different period required by applicable law, any action arising from this Agreement must be brought within 2 years from the date that the cause of action arose. Any liability or claim made against us will be limited to the fees paid to us by you in respect of the Agreement from the period of twelve (12) months up to the date of such claim.
15. Force Majeure
15.1 No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the affected Party’s reasonable control, including but not limited to: (a) acts of God; (b) flood, fire or explosion; (c) war, invasion, riot or other civil unrest; (d) actions, embargoes or blockades in effect on or after the date of this Agreement; (e) national or regional emergency; (f) strikes, labour stoppages or slowdowns or other industrial disturbances; (g) compliance with any law or governmental order, rule, regulation or direction, or any action taken by a governmental or public authority, including but not limited to imposing an embargo, export or import restriction, quota or other restriction or prohibition, or failing to grant a necessary license or consent; (h) shortage of adequate power or telecommunications or transportation facilities; or (i) any other event which is beyond the reasonable control of such party (each of the foregoing, a “Force Majeure Event”).
15.2 A party whose performance is affected by a Force Majeure Event shall give notice to the other party, stating the period of time the occurrence is expected to continue and shall take all reasonable steps to end the failure or delay and minimise the effects of such Force Majeure Event. During the Force Majeure Event, the non-affected party may similarly suspend its performance obligations until such time as the affected party resumes performance. The non-affected party may terminate this Agreement if such failure or delay continues for a period of sixty (60) days or more.
16. Miscellaneous
16.1 All testing activities will be conducted from 9.00am to 6.00pm SG time. Exceptions can only be made with written approval from the Client.
16.2 The Services will only target hosts, locations and personnel (where applicable) that have been decided and agreed upon by the Client through this Agreement.
16.3 The conducted Services may be intrusive, as active interaction with the in-scope assets are required due to the nature of the engagement. However, the actions executed will be designed to be non-destructive in nature, and will be tested internally prior to actual execution. Furthermore, any such intrusive Services will not be performed unless explicitly requested and approved by the Client.
16.4 All exploitation efforts will not be performed unless explicitly requested and approved by the Client in writing. At any point during the assessment, we will be able to halt all assessment activities once our officers have been notified.
16.5 All Services conducted on the Client’s assets will be logged. Such logs will be kept for the purposes of producing deliverables and record keeping. Test logs are securely stored with access enabled only for the respective departments as is necessary for the Project.
16.6 In the event of the discovery of a serious issue exceeding or in accordance with the Client’s threshold for issue severity, the Company will endeavour to inform the Client at soonest practical timing, taking into account log collection and false positive verification. This includes vulnerabilities discovered by the Company, and also any observances of cyber breaches by third parties against the in-scope systems.
16.7 The Company will update all anti-virus signatures on their company laptop and maintain functioning EDR software to ensure that penetration test attack platforms are free from unintended malicious software prior to the commencement of and during the Project.
16.8 You may not assign this Agreement without the prior written consent of the Company. Any attempt by you to assign this Agreement without such consent may be deemed notice of termination of this Agreement, effective on the date of assignment, by you. You acknowledge and agree that the Company may, from time to time, assign, factor, or otherwise transfer its book debts and/or rights to receive payments under this Agreement.
16.9 Nothing in this Agreement shall be construed as precluding or limiting in any way the right of the Company to provide consulting, development, or other services of any kind to any individual or entity.
16.10 The relationship between the Client and the Company is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have the authority to contract for or bind the other party in any manner whatsoever. We may use our own independent contractors to perform the Services, in which case we will be responsible for the performance of such independent contractors.
16.11 The Company reserves the right to refuse the provision of or halt any Services that it deems commercially unreasonable and/or illegal at any point during the Project.
17. Governing Law
17.1 This document and the Purchase Document shall be governed by the laws of the Republic of Singapore.
17.2 Should a dispute in connection with the Purchase Document, or services provided by us to you, we agree in good faith to try to settle the same by mediation administered by the Singapore Mediation Centre.
17.3 In the event that we fail to reach a settlement on a dispute even after mediation, the dispute shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre in accordance with the arbitration rules of the Singapore International Arbitration Centre for the time being in force, which rules are deemed incorporated by reference to this provision. The seat of the arbitration shall be Singapore.
