These Terms & Conditions (the “Terms”), along with the Service Order that reference it (collectively, the “Agreement”), is made between The BTB Group, LLC (dba BTB Security), a Delaware limited liability company (“BTB”) and Client effective as of the signature date on the Service Order.
BTB provides an extensive range of cybersecurity services. Client wishes to engage BTB to perform the security-related professional or managed services as described in the Service Order. Therefore, the parties, intending to be legally bound and with the sufficiency of consideration acknowledged, hereby agree as follows:
1. Definitions
1.1 “Normal Business Hours” means Monday through Friday, 8 am to 5 pm Eastern Standard Time (or the time zone of the location where BTB’s personnel are located, as applicable), not including holidays observed by BTB.
1.2 “Confidential Information” means any information of a confidential, proprietary, or competitively sensitive nature relating to a party that is disclosed by one party to the other in connection with this Agreement, including, without limitation, all information relating to the financial condition, customers, business plans, employees, strategic plans and suppliers. “Confidential Information” shall not include information the receiving party can demonstrate (a) is, as of the time it is disclosed or thereafter becomes, part of the public domain, other than as a result of the actions of the receiving party, (b) was already rightfully known to the receiving party as of the time it is disclosed, (c) is subsequently learned from a third party, not under a confidentiality obligation, or (d) the receiving party independently developed the information without use or reliance on the other party’s Confidential Information.
1.3 “Client Default” means Client’s material breach of any provision of the Agreement, including any Service Order or Service or any Exhibits referenced therein, that remains uncured for 30 days after written notice from BTB specifying the nature of such breach.
1.4 “Services” mean the professional or managed services that BTB provides to Client pursuant to one or more Service Orders or Statements of Work, including, but not limited to, Security Services, and any Misc. Professional Services.
1.5 “Service Order” means a document describing professional or on-going managed services that BTB will provide to Client, including the pricing, duration, and other specifications specified in the Service Order.
2. Services
The Services may include BTB performing network and application scanning and ethical hacking (also known as penetration testing) in order to gain control of target Client’s systems and identify related vulnerabilities. Performance of security assessments, audits, testing, scans, and otherwise performing ethical hacking (collectively, “Security Services”) involve a variety of tools and techniques that may cause the target servers and/or applications to behave in an unintended manner. This may result in servers, services, and applications becoming unresponsive, and could potentially lead to data loss or data corruption. BTB makes no representation or warranty that the Services will disclose all vulnerabilities of the systems tested. BTB also makes no guarantees due to the unpredictable nature of how systems may react to the tools and techniques being utilized. Client is expected to take appropriate steps to ensure that data on all systems within scope have been properly backed up prior to BTB’s performance of the Security Services. Client shall make appropriate personnel available to plan and coordinate Client’s responsibilities in connection with the Security Services to respond to issues caused by the Security Services or restore Client’s system functionality if problems arise. Client shall grant BTB sufficient access to its networks, systems, and/or applications to perform the Services outlined in the related Service Order.
3. Term & Termination
3.1 Client’s Material Breach. In the event of a Client Default, BTB may, at its option, terminate this Agreement (including any related Service Order) affected by the breach. Upon termination for a Client Default: all amounts owed to BTB under this Agreement shall become immediately due and payable (including the payments for the remaining portion of all Service Orders), BTB may cease performance of all Services without liability to Client and all licenses granted in this Agreement shall be terminated automatically. The foregoing rights and remedies shall be in addition to all other rights and remedies available to BTB at law and in equity.
3.2 BTB’s Material Breach. Client may terminate a Service Order upon BTB’s material breach of such Service Order that remains uncured for 30 days after BTB’s receipt of written notice from Client specifying BTB’s breach.
3.3 Other Termination Rights. Service Orders for managed services indicate initial term, and thereafter automatically renews on a month-to-month basis until either party provides at least ninety (90) days’ notice prior to the expiration of the then-current term. For managed services, after the initial 180 day period, beginning on the Service Order Effective Date, Client may terminate the Service Order for convenience by giving BTB at least thirty (30) days’ prior notice in writing. If Client makes a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy of liquidation, suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceeding under any bankruptcy or insolvency law, or has wound up or liquidated its business voluntarily or otherwise, then BTB may terminate this Agreement (including any Service Order) upon written notice to Client. BTB may also terminate one or more applicable Service Orders, upon 180 days’ prior written notice, if BTB decides, in its sole discretion, to generally discontinue the service or product offering described in such Service Order.
3.4 Transition Upon Termination. Subject to Client’s payment all amounts owed BTB under this Agreement (including any late fees and amounts described in Section 3.2 above), BTB shall engage in commercially reasonable efforts to provide Client with all of its data, reports and other documentation in BTB’s possession relevant to the Services of any terminated Service Order, within 30 days after its termination. After such 30-day transition window, BTB may delete any Client data or materials without any liability to Client.
4. Payment
4.1 Client Payment. Client shall pay BTB all amounts for the Services as described in the Agreement. Service Orders for professional services shall be invoiced 50% at the start of the project and 50% upon report delivery. Service Orders for managed services will be invoiced monthly and will start on the 1st of the month proceeding the effective agreement date of the Service Order. Payments are due 30 days after the date specified on the invoice. BTB may immediately suspend its performance of all Services upon five days’ prior written notice if Client fails to pay all amounts overdue within such five-day period.
4.2 Late Fees & Taxes. Client shall pay BTB a late fee of 1.5% per month or the maximum rate permitted by law, whichever is less, on balances outstanding after they become due. Client shall be responsible for and pay BTB any and all applicable use-based, sales, value-added, excise, or other taxes related to the Service Order, which are not based on BTB’s net income.
4.3 Travel & Related Expenses. Client shall reimburse BTB for all reasonable travel, meal, and lodging expenses incurred in connection with providing the Services (collectively, “Reimbursable Expenses”). At the end of each month, BTB shall invoice Client for the Reimbursable Expenses, and Client shall pay for Reimbursable Expenses in the same manner as fees. Client shall also reimburse BTB for any out-of-pocket costs associated with BTB personnel changing their travel plans, including (without limitation) as airline change fees or nonrefundable hotel charges, if (a) BTB booked nonrefundable travel accommodations with Client’s consent or (b) Client requested a schedule change or stopped the applicable Services without providing at least 2 business days notice.
5. Confidentiality & Intellectual Property
5.1 Confidentiality. Each party shall not disclose to any third party or use the other’s Confidential Information except as permitted in or necessary to perform its obligations under this Agreement. Each party shall maintain the other’s Confidential Information with at least the same degree of care as it maintains its own, and in no event with less than a reasonable degree of care. Each party shall promptly return other party’s Confidential Information to the other party upon any termination of this Agreement or the other party’s request, except that BTB may keep a copy of documents or records documenting the performance of the Services for Client (including copies of any reports or other materials about Client’s computer systems), subject to BTB’s ongoing obligation to maintain such information confidential.
5.2 Permitted Disclosures. A party may disclose the other’s Confidential Information to employees or independent contractors who have a need to know and who have signed a written confidentiality agreement or are subject to a fiduciary obligation of confidentiality. A party may also disclose the other’s Confidential Information to enforce its rights under this Agreement or upon demand by a governmental agency or pursuant to a subpoena or court order, in any case, provided that the disclosing party notifies the other party prior to such disclosure (unless notification would be prohibited by law) and only discloses the minimum necessary information to comply with such demand.
5.3 Confidential Information. Any reports or other materials created by BTB about Client’s computer systems will be deemed to be Client’s Confidential Information (excluding BTB Proprietary Materials, defined below). Any proprietary or non-public methodologies, materials, processes, procedures, and information used by BTB in connection with providing the Services (collectively, “BTB Proprietary Materials”), including (without limitation) the Security Services will be deemed BTB’s Confidential Information.
5.4 Reservation of Rights. Subject to the limited rights expressly granted in the Agreement, BTB reserves all rights, title and interest in and to (i) the Services, (ii) all related software and hardware, computer codes and instructions, processing systems and techniques, inputs and outputs, methodologies and technical information, user documentation, training materials, and BTB Proprietary Materials and (iii) any customizations, improvements, modifications or derivative works of or to the foregoing, including all related intellectual property rights (collectively, the “BTB Intellectual Property”). No rights are granted to Client under the Agreement or by Client’s receipt of Services, other than as expressly set forth the Agreement.
6. Warranties & Disclaimers
6.1 Client Warranties. Client represents and warrants (a) any premises where BTB may perform Services under this Agreement will be free from all hazards and (b) it has obtained for BTB’s use, as contemplated in this Agreement, all necessary and appropriate licenses, titles, interests, or rights to necessary or appropriate for BTB to provide the Services.
6.2 BTB Warranties. BTB warrants that the Services will be performed in a professional, workmanlike manner. In the event of any breach of the foregoing warranty, Client’s sole and exclusive remedy, and BTB’s sole liability, will be for BTB to re-perform the defective Services at no additional charge.
7. Indemnification
Either party agrees to defend, indemnify and hold harmless other party, its corporate affiliates, and their shareholders, directors, officers, agents, and employees (collectively, “Stakeholders”) from and against any judgments, awards, losses, fees, liabilities, damages, costs or expenses (including reasonable attorneys’ and other professionals’ fees) (collectively, “Losses”) incurred in connection with any third-party suit, claim or demand that arises out of or relates to (a) party’s breach of an obligation, representation, or warranty in this Agreement or (b) actual or alleged cause of bodily injury to or death of any person or loss of or damage to real or tangible personal property due to acts or omissions of party or its employees or contractors.
8. General Terms
8.1 Publicity. BTB may use Client’s name and logo on its website and marketing materials and identify Client as a customer of BTB, provided that BTB does not disclose details of the Services performed and that BTB complies with any reasonable branding guidelines provided in advance by Client.
8.2 Law & Venue. This Agreement shall be interpreted and construed in accordance with the substantive laws of the Commonwealth of Pennsylvania and without regard to its conflicts of law principles. Subject to the next sentence, the parties mutually agree and consent to the exclusive jurisdiction and venue of the state and federal courts located in or embracing Montgomery County, Pennsylvania. Either party may seek emergency or injunctive relief from any court of competent jurisdiction. The parties further agree that a mailing to either party by certified or registered mail shall constitute lawful and valid service of process.
8.3 Client Default. In the event of a Client Default, BTB shall be entitled to and Client shall be liable for any and all expenses incurred in connection with BTB enforcing its rights hereunder, including reasonable fees for attorneys, paralegals, and experts and any fees paid to or costs incurred with collection agencies.
8.4 Excusable Delay. BTB shall not be liable for any failure to perform, or delays or problems in the performance under this Agreement, if such delays or failures are due to strikes, inclement weather, acts of God, work shortages, supplier shortages, Internet or telecommunication disruptions, or other causes beyond the reasonable control of BTB.
8.5 Severability & Counterparts. If any provision or term of this Agreement shall be found to be illegal or unenforceable under any applicable statute or rule of law, then this Agreement shall remain in full force and effect and such provision or term shall be deemed stricken. This Agreement may be executed in one or more counterparts, including counterparts transmitted by facsimile or electronic mail, all of which shall be considered one and the same agreement. Facsimile or electronic mail copies with signatures of the parties to this Agreement, or their duly authorized representatives, shall be deemed originals and legally binding and admissible in any court or tribunal of competent jurisdiction.
8.6 Notices. All notices under this Agreement shall be in writing and delivered by First Class U.S. Mail postage prepaid, in-person, or by national overnight courier. Notices shall be deemed effective on the date received by the other party. Notices to Client must be sent to the address on the Service Order. Notices to BTB must be sent to:
The BTB Group, LLC
Three Bala Plaza, Suite 701
Bala Cynwyd, PA 19004
8.7 Either party may change its address with 5 business days’ prior written notice to the other.
8.8 Assignments. Client shall not assign (whether voluntarily or by operation of law) or otherwise transfer this Agreement or any obligations or rights thereunder without BTB’s prior written consent. Any purported assignment or transfer of this Agreement by Client in violation of this Agreement shall be deemed void. Client’s permitted assignment or transfer of this Agreement shall not relieve Client from any obligation under this Agreement. BTB may assign this agreement upon notice to Client. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their respective heirs, representatives, successors and permitted assigns.
8.9 Independent Contractor. The parties agree that BTB is an independent contractor of Client and that this Agreement does not create or imply a joint venture, partnership, association, affiliation or any form of formal business association of any kind. Neither party to this Agreement shall have any authority or control over the other party, nor shall either party have the power to bind the other party, except to the extent specifically provided in the Agreement.
8.9 Third Party Beneficiaries. Nothing in this Agreement, expressed or implied, is intended to confer on any individual or entity, other than the parties hereto or their respective successors and permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement except as expressly contemplated herein.