These Parameter Security Terms of Service (“TOS”) set forth the terms and conditions on which Parameter LLC, a Missouri limited liability company d/b/a Parameter Security (hereinafter, “Parameter,” “we” or “us”), provides penetration testing, vulnerability assessment, security audit, and other consulting services (the “Services”) that are ordered by you from Parameter or a Parameter-authorized referral source, reseller, or channel partner (a “Channel Partner”).
PLEASE READ THESE TOS CAREFULLY, AS THEY CONTAIN IMPORTANT TERMS, DISCLAIMERS AND LIMITATIONS ON PARAMETER’S LIABILITY. BY PLACING AN ORDER FOR, RECEIVING, OR AUTHORIZING PARAMETER TO PERFORM THE SERVICES, YOU CONFIRM THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE LEGALLY BOUND BY THESE TOS. YOU FURTHER REPRESENT AND WARRANT THAT YOU HAVE ALL NECESSARY RIGHT, POWER, AND AUTHORITY TO ORDER THE SERVICES AND TO ENTER INTO THESE TOS ON BEHALF OF YOUR COMPANY OR ORGANIZATION.
2. Scope of Engagement
Parameter agrees to provide the Services set forth in a service order, statement of work, or other mutually agreed upon form of work authorization signed by an authorized representative of Parameter (an “Order”). Each Order supplements these TOS with respect to the Services covered by such Order; provided, however, to the extent of any conflict, except as expressly stated in the Order, these TOS will control.
From time to time, either party may request changes to the scope of the Services to be provided under an Order. Any such changes, if mutually agreed upon, must be documented in a change order signed by an authorized representative of each party that describes the nature of the changes and any associated adjustment to the pricing or terms of the Order.
3. Our Responsibilities
We are responsible for: (i) staffing the Services with appropriate and qualified personnel that meet the minimum criteria identified in the corresponding Order; (ii) keeping you reasonably informed of our progress; and (iii) except as stated in the Order, supplying our own equipment, software and tools used to provide the Services. You understand that our engagement is limited to the provision of those Services identified in the Order, and that we have no obligation to assist with subsequent developments or with matters outside of the scope of the specific Services to be provided.
4. Your Responsibilities
You are responsible for: (i) determining which Services you desire Parameter to provide; (ii) assigning appropriate and qualified personnel to coordinate with Parameter regarding the Services; (iii) providing information and assistance as reasonably required; (iv) providing suitable work space with Internet connectivity for Parameter personnel to work when on your premises; and (v) performing any other responsibilities identified in the Order.
5. On-Site and Remote Security
While on your premises or accessing your computer network or systems, we will use reasonable efforts to abide by your security policies that are timely communicated to us in writing. Notwithstanding the foregoing, you acknowledge that a number of our Services, including our penetration testing, vulnerability assessment, social engineering, and ethical hacking engagements, by definition involve attempts to bypass, disable, circumvent, or otherwise not comply with your established security controls, and you agree that we will not be liable for such non-compliance. You further acknowledge that any delay in providing remote or physical access, or limitations imposed thereon, may delay or impair our ability to provide the Services.
6. Pricing and Payment
All Services will be billed at the pricing and in accordance with the payment schedule set forth in the Order, or if not specified, net thirty (30) days after date of invoice at Parameter’s then-current applicable rates. Where billing is handled through the Channel Partner, you acknowledge that you remain ultimately responsible for payment of Parameter’s fees and charges. All amounts are stated and payable in U.S. Dollars, and all payments are non-refundable. Any billing inquiries should be made as promptly as possible, and in any event no later than fifteen (15) days after receipt of invoice. We reserve the right to suspend performance until all past due amounts are paid in full.
7. Expenses; Taxes
The fees for our Services are exclusive of travel, lodging, transportation, meals and other project-specific expenses incurred in performing the Services. You agree to reimburse Parameter for any such expenses as reasonably incurred. The fees are exclusive of any sales, use and other taxes associated with the Services, however designated or levied in any jurisdiction by any taxing authority. You are solely responsible for all such taxes, excluding taxes based on Parameter’s income. If applicable, you will provide evidence of tax-exempt status prior to commencement of the Services.
8. Late Payment
Invoices not paid when due will accrue interest at the rate of one and one-half percent (1.5%) per month (eighteen percent (18%) per annum), or such lesser maximum rate as may be permitted by applicable law, from the due date until the date paid. In the event any overdue amount requires collection efforts, you agree to reimburse Parameter for our reasonable attorneys’ fees and costs of collection.
9. Rescheduling Policy
You agree to provide us with prompt notice if you need to cancel, reschedule, postpone, or delay any scheduled dates for on-site or remote Services. We will use reasonable efforts to accommodate such requests, but we cannot guarantee the availability of resources outside of the previously scheduled dates. Scheduled appointments that are cancelled, rescheduled, postponed, or delayed by you will incur the following charges: (i) at least 3 weeks’ prior notice – reimbursement of non-recoverable travel and expenses only; (ii) 1 week to less than 3 weeks’ prior notice – 50% daily rate for scheduled days and personnel plus reimbursement of non-recoverable travel and expenses; or (iii) less than 1 week’s prior notice - 100% daily rate for scheduled days and personnel plus non-recoverable travel and expenses.
10. Term and Termination
The term of each Order will be as set forth therein, or if not specified, will continue until completion of the Services to be provided thereunder. Orders once placed are binding and non-cancelable. However, either party may terminate an Order: (i) if the other party breaches any material provision of these TOS pertaining to such Order (including non-payment) and fails to cure the breach within thirty (30) days after receiving written notice thereof; (ii) if the other party becomes or is declared insolvent, makes a general assignment for the benefit of creditors, suffers a receiver to be appointed for it, enters into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations, files a voluntary petition in bankruptcy, or has an involuntary petition in bankruptcy filed against it, which petition is not dismissed with prejudice within sixty (60) days after the filing thereof; or (iii) as otherwise provided in the Order. Additionally, Parameter reserves the right to terminate an Order upon written notice to you if the provision of Services under such Order is delayed for more than three (3) months through no fault of Parameter.
11. Effects of Termination
Upon the expiration or termination of an Order: (i) Parameter will cease providing the corresponding Services; (ii) each party will promptly return or destroy any Confidential Information of the other party in its possession; and (iii) you will promptly pay Parameter all fees and charges incurred through the date of expiration or termination (including pro rata payment of any Services partially performed as of such date). In the event of improper termination of an Order by you or termination for cause by Parameter, the foregoing will include payment of fees that would have been due if the Order had continued without termination. Sections 6, 7, 8, 11 and 13 through 22 hereof, and any other provisions of these TOS or any Order which by their terms or nature are intended to survive, will survive expiration or termination for any reason, and will be binding on and inure to the benefit of the parties and their respective successors and permitted assigns.
12. Our Warranties
Parameter represents and warrants that it has full right, power and authority to enter into these TOS. Additionally, we warrant that we will perform the Services in a professional manner consistent with generally recognized industry standards. Notwithstanding the foregoing, you acknowledge that there is considerable variation among providers of services like those offered by Parameter, and that, except where specific protocols are identified in the Order, Parameter will be free to provide the Services in accordance with its established practices and judgment. The foregoing warranty is subject to you notifying Parameter promptly, and in any event within thirty (30) days after the date of performance of the nonconforming Services, of a breach of warranty, and providing all information reasonably requested by Parameter in connection therewith. Upon receiving such timely notice, as Parameter’s entire obligation and your sole and exclusive remedy, Parameter will use commercially reasonable efforts to re-perform or otherwise remedy the nonconforming Services at no additional charge.
13. Your Warranties
You represent and warrant that: (i) you have full right, power and authority to enter into these TOS; (ii) you have taken or will take all steps necessary to authorize Parameter to access your facilities, computer network, systems, media and data for the purpose of providing the Services, including by obtaining all necessary internal and third party (e.g., data center, ISP, host) permissions, consents and approvals; and (iii) you will only request, utilize and rely on the Services for lawful, internal business purposes.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, Parameter HEREBY disclaims any implied warranties of MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PARAMETER MAKES NO WARRANTIES AND ASSUMES NO LIABILITY REGARDING ANY channel partner or THE PRODUCTS OR SERVICES PROVIDED TO YOU BY THE CHANNEL PARTNER. YOU ARE SOLELY RESPONSIBLE FOR THE ACCURACY, QUALITY, AND SUITABILITY OF ALL INFORMATION AND INSTRUCTIONS THAT YOU SUPPLY TO PARAMETER. ALL FINDINGS ARE A SNAPSHOT MADE AT A PARTICULAR POINT IN TIME, REFLECTIVE OF OBSERVATIONS MADE BY PARAMETER WITHIN THE SCOPE OF SERVICES PROVIDED, AND SUBJECT TO LIMITATIONS INHERENT IN THE TOOLS USED, TIME ALLOTTED, AND QUALITY OF INFORMATION AND ASSISTANCE PROVIDED. THE SERVICES ARE NOT AND SHOULD NOT BE CONSTRUED AS LEGAL, ACCOUNTING, OR TAX ADVICE, OR AS THE RENDERING OF AN OPINION OR GUARANTEE OF COMPLIANCE. NO EMPLOYEE, AGENT, OR CHANNEL PARTNER HAS AUTHORITY TO BIND PARAMETER TO ANY REPRESENTATIONS OR WARRANTIES NOT EXPRESSLY SET FORTH IN THESE TOS.
15. Third Party Products and Services
Any third party products and services used or made available in connection with the Services are provided “AS IS” subject to the licensing and other terms of the respective third party suppliers, and are warranted if at all only as expressly provided by such third party suppliers. Parameter does not make any representations or warranties in connection with such third party products and services, including but not limited to their condition, suitability or operation, and will have no responsibility or liability therefor, even if Parameter recommends or procures such third party products and services on your behalf or provides any Services in connection therewith.
From time to time in connection with the Services, each party may receive, observe or otherwise be provided with certain confidential information of the other party, its affiliates or suppliers, in written, visual or oral form, including but not limited to business, marketing, sales, technical, creative, human resources, customer and other information that a person familiar with the party’s industry would consider confidential in nature (“Confidential Information”), including, in the case of Parameter, the terms and pricing of these TOS and each Order. Confidential Information does not include information that: (i) was known by the receiving party prior to any disclosure by the disclosing party; (ii) is disclosed to the receiving party on a non-confidential basis by a third party that is legally entitled to make such disclosure; (iii) is independently developed by the receiving party without reference to or reliance on the disclosing party’s information; (iv) is generally known or available to the public; or (v) is required to be disclosed by law, subpoena or court order, but then only to the extent necessary to comply with the foregoing, and provided that the disclosing party is notified in advance so that it may seek to contest, limit or modify such disclosure at its own expense. Each party will hold the Confidential Information of the other party in confidence, exercising at least the same care used to protect its own Confidential Information of a similar nature, but no less than reasonable care. Each party will access, use and disclose Confidential Information of the other party only for the limited purpose of exercising its rights and performing its obligations under these TOS, or in the case of Parameter, as otherwise requested or directed by you in the course of providing the Services.
17. Proprietary Rights
Reports, working papers and other deliverables prepared by Parameter for you as part of the Services are licensed to you on a non-exclusive, non-transferable, royalty-free basis for your internal, lawful business purposes. For the avoidance of doubt, you may not re-sell, re-license, publish, or otherwise distribute the deliverables to third parties. Parameter will retain exclusive right, title, and interest in and to the Services, the underlying tools, methods and programming used to perform the Services, the deliverables (excluding materials supplied by you), all goodwill associated therewith, and all present and future copyrights, trademarks, trade secrets, patent rights, and other intellectual property rights of any nature throughout the world embodied therein. All rights and licenses not expressly granted to you in these TOS are reserved by Parameter and its suppliers. From time to time, you may provide suggestions, input, or other feedback regarding Parameter’s products or services. We will be free to use such feedback both during and after the term hereof, including to develop improvements to our products and services, free of any claims, payment obligations or restrictions.
18. Internal Compliance
You acknowledge that you have and will retain ultimate responsibility for your organization’s compliance obligations. Parameter can provide Services to augment your understanding of those obligations, but cannot and does not assume responsibility or liability to you or anyone else for the adequacy or effectiveness of your internal controls, policies, or procedures, including your acceptance, rejection, or implementation of recommendations made by Parameter, your decision to address or not address any identified security vulnerabilities, or actions taken or not taken by you to investigate or respond to any known or suspected security incidents.
19. LIMITATIONS ON LIABILITY
IN NO EVENT WILL PARAMETER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, PUNITIVE OR SIMILAR DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES OR THESE TOS, INCLUDING LOSS OF BUSINESS, PROFITS, OR REVENUE, LOSS OR DESTRUCTION OF DATA, OR BUSINESS INTERRUPTION OR DOWNTIME. THE TOTAL CUMULATIVE LIABILITY OF PARAMETER ARISING OUT OF AND RELATED TO THE SERVICES AND THESE TOS WILL NOT, REGARDLESS OF THE NUMBER OF INCIDENTS OR CAUSES GIVING RISE TO ANY SUCH LIABILITY, EXCEED THE FEES PAID BY YOU TO PARAMETER UNDER THE CORRESPONDING ORDER FOR THE SERVICES GIVING RISE TO THE CLAIM. NO LAWSUIT, CLAIM, OR ACTION ARISING OUT OF OR RELATED TO THE SERVICES MAY BE BROUGHT BY YOU MORE THAN TWO (2) YEARS AFTER PARAMETER’S PERFORMANCE OF THE SERVICES GIVING RISE TO THE CLAIM. THE LIMITATIONS ON LIABILITY IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, REGARDLESS OF THE CAUSE OF ACTION OR BASIS OF LIABILITY (WHETHER IN CONTRACT, TORT, INDEMNITY OR OTHERWISE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ON LIABILITY ARE AN ESSENTIAL PART OF THESE TOS, AND WILL BE VALID AND BINDING EVEN IF ANY REMEDY IS DEEMED TO FAIL OF ITS ESSENTIAL PURPOSE.
20. Follow-Up Activities
From time to time as a result of providing the Services, Parameter or its personnel may be directed by your internal or external auditors or by regulatory, law enforcement, or other governmental authorities to provide information pertaining to the Services, or may be deposed, served interrogatories, named as a party, or called upon to testify in one or more regulatory, judicial, legislative, administrative or other proceedings. Any such follow-up activities not required by law or compelled by a court of competent jurisdiction will be subject to Parameter’s and its personnel’s reasonable scheduling and availability, and may be declined if determined by Parameter, in its sole but reasonable discretion, to be unduly burdensome or to present a conflict of interest. You agree to pay Parameter on a time and materials basis at our then-current rates for all reasonable time spent responding to or contesting such requests and/or preparing for and participating in such activities, including reimbursement of travel, expenses, and legal costs reasonably incurred in connection therewith.
Each party acknowledges that the other party expends significant time and resources in recruiting, training and maintaining its employees and contract staff. During the term of these TOS, and for a period of twelve (12) months thereafter, neither party shall, directly or indirectly, whether for the benefit of itself or a third party, solicit, hire, engage, attempt to entice away, or otherwise interfere with the relationship between the other party and any person that is employed or engaged by the other party on a contract staff basis, or at any time in the prior twelve (12) months was so employed or engaged.
(a) Governing Law. These TOS will be governed and interpreted for all purposes by the laws of the State of Missouri, U.S.A., without reference to any conflict of laws principles that would require the application of the laws of a different jurisdiction.
(b) Jurisdiction; Venue. Any dispute, action or proceeding arising out of or related to the Services or these TOS must be commenced in the state courts of St. Louis County, Missouri or, if proper subject matter jurisdiction exists, the United States District Court for the Eastern District of Missouri. Each party unconditionally and irrevocably submits to the personal jurisdiction and exclusive venue of such courts and waives any objection thereto, including based on forum non conveniens.
(c) WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY HEREBY UNCONDITIONALLY WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY DISPUTE, ACTION, OR PROCEEDING ARISING OUT OF OR RELATING TO THE SERVICES OR THESE TOS.
(d) Notices. All notices under these TOS will be in the English language and in writing, and will be delivered personally, by electronic mail to the other party’s email address used for routine communications, or by postage prepaid certified mail or express courier service, return receipt requested, to the other party’s then-current corporate offices. Either party may change its address for notices by providing written notice of such change to the other party in the foregoing manner.
(e) Assignment. Neither party may assign or otherwise transfer these TOS, or any of its rights hereunder, by operation of law or otherwise, without the prior written consent of the other party; provided, however, Parameter may fulfill appropriate duties through its qualified subcontractors, and may assign these TOS in its entirety to an affiliate or successor in connection with Parameter’s merger, acquisition, corporate reorganization, or sale of all or any portion of its business or assets. Any attempted assignment or transfer in violation of the foregoing will be null and void from the beginning and without effect.
(f) Relationship. Parameter is being engaged as an independent contractor, separate from any relationship or terms between you and any Channel Partner. Nothing in these TOS is intended or will be deemed to create any agency, employment, partnership, fiduciary or joint venture relationship between the parties, or to give any third party any rights or remedies under or by reason of these TOS.
(g) Force Majeure. In no event will Parameter be liable for any failure or delay of performance arising out of or resulting in whole or in part from acts of God, acts of war, acts of terrorism, governmental actions, riots, insurrections, natural disasters, Internet, telecommunications or power failures, flight delays or cancellations, malicious acts of third parties, or other events outside of Parameter’s reasonable control.
(h) Updates to TOS. Parameter reserves the right to update these TOS from time to time, in our sole discretion. Any update will be effective when posted or otherwise made available by Parameter; provided, however, such updates will not apply to Orders placed prior to such date.
(i) Amendment; Waiver. Except as stated in the previous subpart, these TOS may be amended only by a written instrument executed by an authorized representative of each party. No right or obligation will be waived by any act, omission or knowledge of a party, except by an instrument in writing expressly waiving such right or obligation and signed by an authorized representative of the waiving party. Any waiver on one occasion will not constitute a waiver on subsequent occasions.
(j) Severability; Construction. If any provision of these TOS is determined to be unenforceable under applicable law, such provision will be amended by a court of competent jurisdiction to accomplish the objectives of such provision to the greatest extent possible under applicable law, or severed from these TOS if such amendment is not possible, and the remaining provisions of these TOS will continue in full force and effect. The headings in these TOS are for reference purposes only, and will not affect the meaning or interpretation of these TOS. The term “including” as used herein means “including without limitation.” The terms “herein,” “hereto,” “hereof,” and similar variations refer to these TOS as a whole, rather than to any particular section.
(k) Entire Agreement. These TOS (including the Orders entered into hereunder) set forth the entire agreement of the parties and supersede all other proposals, agreements and understandings, whether written or oral, pertaining to the subject matter hereof. Where you require a purchase order as part of your procurement process, such purchase order may be issued for administrative purposes only. Any additional or conflicting terms proposed by you will not be binding on Parameter, and are hereby objected to and expressly rejected.