SCOPE 1.1 These Digital Resilience Terms and Conditions for Professional Services (“Terms”) apply to each Statement of Work entered into between Digital Resilience and Customer. 1.2 Each time the parties each execute a Statement of Work, an agreement is formed (“Agreement”) comprising these Terms and the Statement of Work, to the exclusion of all other terms and conditions. The Statement of Work will prevail over these Terms, to the extent of any inconsistency between the Statement of Work and these Terms. No terms or conditions tendered by Customer (including any that are incorporated into any order, acceptance, proposal, tender, offer, counteroffer or other document) will apply, unless expressly accepted in writing by Digital Resilience. 1.3 Digital Resilience agrees to provide the Services to Customer in accordance with the terms of the Agreement. 1.4 The Agreement commences on the Effective Date and continues in effect until the earlier of: (a) the date on which the Services are fully performed by Digital Resilience and all Fees for such Services have been paid by Customer; and (b) the date on which the Agreement is terminated in accordance with its terms. 1.5 Digital Resilience agrees that it will keep Customer reasonably informed as to Digital Resilience’s progress in performing the Services. Unless otherwise agreed in writing by Digital Resilience, any dates for delivery or completion of the Services are indicative only and Digital Resilience will not be liable for any delays in delivery or completion of the Services. 1.6 Customer agrees to provide such cooperation and assistance as reasonably required by Digital Resilience to provide the Services, including by promptly adhering to and performing the tasks allocated to Customer (if any) in the Statement of Work and by providing all information reasonably requested by Digital Resilience. Customer acknowledges and agrees that the provision of the Services by Digital Resilience, including the time for delivery, may be dependent on compliance by Customer with this clause.
RELATIONSHIP OF THE PARTIES 2.1 The relationship between the parties intended by the Agreement will be only that of Digital Resilience as independent contractor to Customer. Nothing in the Agreement will be construed as creating a relationship between the parties as that of employment, agency, joint venture or partnership. 2.2 Subject to any requirement at law to the contrary, each party has no responsibility for payment of any superannuation, sick leave, annual leave or other employee benefits in respect of the other party’s Personnel. 2.3 For the avoidance of doubt Customer is responsible for: (a) ensuring its business and operations comply with all applicable laws and regulations; and (b) evaluating the recommendations and information provided by Digital Resilience and making its own decisions regarding the appropriateness of the Services and Deliverables for Customer’s business and use. 2.4 Customer acknowledges and agrees that Digital Resilience is entitled to act and rely on any instructions given to Digital Resilience by Customer’s Personnel in relation to the Services or the Agreement. Customer agrees that unless otherwise expressly agreed in writing, Digital Resilience is under no obligation to verify that any instructions received are within the authority of the relevant Personnel of Customer.
FEES AND PAYMENT TERMS 3.1 Customer will pay Digital Resilience the Fees for performance of the Services by Digital Resilience, in accordance with any milestones specified in the Statement of Work. Customer will pay the expenses of Digital Resilience specified in the Statement of Work. 3.2 Payment will be made by Customer to Digital Resilience within 14 days of the date on which Customer receives from Digital Resilience a properly rendered tax invoice for the relevant Services and expenses. Customer agrees that, in respect of any overdue amounts, Customer must pay interest at the Interest Rate calculated daily from the due date for that amount until it is paid in full. 3.3 For the avoidance of doubt, Digital Resilience may issue its final invoice for the Services once the Services have been completed and delivered to Customer, irrespective of any delays in Customer’s internal approval processes.
GST 4.1 Where Digital Resilience makes a Taxable Supply under or in connection with the Agreement or in connection with any matter or thing occurring under the Agreement to Customer and the consideration otherwise payable for the Taxable Supply does not include GST, Digital Resilience is entitled, in addition to any other consideration recoverable in respect of the Taxable Supply, to recover from Customer the amount of any GST on the Taxable Supply. 4.2 If the amount paid by Customer to the Digital Resilience in respect of GST differs from the GST on the Taxable Supply (taking into account any Adjustment Events that occur in relation to the Taxable Supply), an adjustment must be made. If the amount paid by Customer exceeds the GST on the Taxable Supply, Digital Resilience must refund the excess to Customer. If the amount paid by Customer is less than the GST on the Taxable Supply, Customer must pay the deficiency to Digital Resilience. 4.3 Customer is not obliged to pay any amount in respect of GST to Digital Resilience unless and until a valid tax invoice has been issued by Digital Resilience in respect of that GST. 4.4 In this clause 4, the terms “Taxable Supply”, “GST”, “Adjustment Event” and “tax invoice” have the meaning provided in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
PROPERTY RIGHTS 5.1 Nothing in the Agreement operates to transfer ownership of any Intellectual Property between the parties. To the extent that any of Digital Resilience’s Intellectual Property forms part of any Services or Deliverables, Digital Resilience grants to Customer, upon final payment of the Fees, a non-exclusive, non-transferable licence to use, copy and modify the Deliverable solely for the internal business purposes of Customer. 5.2 Digital Resilience warrants that the Deliverables will not infringe any third-party copyright, and to the best of its knowledge the Deliverables will not infringe any other third-party Intellectual Property. 5.3 In the event of any breach of the warranty set out at clause 5.2, Digital Resilience will, as its sole obligation and liability in respect of such breach, at Digital Resilience’s option either: (a) provide Customer with a further version of the relevant Deliverable that does not infringe such third-party rights; (b) refund to Customer the Fees paid for that Deliverable; or (c) at Digital Resilience’s cost, procure for Customer the right to use the relevant Deliverable. 5.4 The warranty in clause 5.2 shall not apply: (a) if the breach of third-party rights was caused or contributed to by Customer; (b) if the Deliverables were modified by Customer, to the extent that the modification causes the breach; (c) if the Deliverables were used otherwise than as expressly permitted in the Agreement; or (d) 12 months after the termination or expiration of the Agreement. 5.5 Customer grants to Digital Resilience a non-exclusive, perpetual, irrevocable, payment-free, worldwide licence to use any materials provided to Digital Resilience by Customer for the purpose of providing the Services. Customer warrants that any such materials will not infringe any third-party copyright, and to the best of its knowledge will not infringe any other third-party Intellectual Property or other rights. 5.6 Customer warrants that Customer will not provide to Digital Resilience any materials or documents of a third party that are not generally available to the public, unless: (a) Customer has the right to grant the licence referred to in clause 5.5 or has obtained prior written authorisation from such party for the unconditional possession, use, modification and distribution of such materials; or (b) all Intellectual Property in such materials is assigned to Digital Resilience (and the holders of all Moral Rights in such materials have consented to the infringement of those Moral Rights), to the extent such materials may form any part of the Deliverables or be used in the performance of the Services. 5.7 Customer grants to Digital Resilience a non-exclusive, perpetual, irrevocable, royalty-free, worldwide licence to use Customer’s name and trade marks to publicise or promote Digital Resilience’s services by identifying Customer as a client of Digital Resilience. For the avoidance of doubt, Digital Resilience will not publicise any confidential information or details of the services provided to Customer without Customer’s prior consent.
CONFIDENTIALITY 6.1 Each party (the “Recipient Party”) must keep secret and confidential all Confidential Information of the other party (the “Disclosing Party”) and must not use or disclose any of the Disclosing Party’s Confidential Information without the prior written consent of the Disclosing Party, except to the extent that it is necessary to do so for the purposes of achieving an objective of the Agreement 6.2 Each party must take all reasonable steps to ensure that each of its Personnel to whom any of the other party’s Confidential Information is disclosed must not use or disclose that Confidential Information or any part of it except in a manner consistent with these confidentiality obligations. 6.3 Despite anything else in this Agreement, the Recipient Party may, without breaching this Agreement, use or disclose Confidential Information that the Recipient Party is required to use or disclose by any applicable law or legally-binding order of any court, government, semi-government, administrative, regulatory, fiscal or judicial body, department, commission, authority, tribunal or agency acting within its powers, provided that: (a) to the extent permitted by law, the Recipient Party provides the Disclosing Party with written notice of this requirement prior to use or disclosure and cooperates with the Disclosing Party’s reasonable directions concerning the use or disclosure including with regard to taking any lawful steps to postpone or resist the use or disclosure and maintain the confidentiality of the Confidential Information; and (b) unless the Disclosing Party is able to secure some relief for the Recipient Party from any requirement by law to disclose the Confidential Information, the Recipient Party is relieved from its obligations of confidentiality under this Agreement only to the extent of the legal obligation to use or disclose, and not further. 6.4 Subject to clause 6.5, each party must on demand by the other party return, and must cause its Personnel to return, to the other party any tangible materials containing the other party’s Confidential Information. 6.5 Each party may retain the other party’s Confidential Information on a confidential basis for record keeping and quality assurance purposes, provided it does so in accordance with the requirements of clauses 6.1 and 6.2.
LIABILITY 7.1 The liability of each party under or in connection with the Agreement or its subject matter for all claims shall not exceed in the aggregate the amounts received by Digital Resilience under the Agreement in the six (6) months immediately preceding the date on which the liability arose. This limitation shall apply to all claims of any nature including those based on negligence and whether or not such claims arise under the Agreement. This limitation will not apply to liability for Customer to pay Fees due under the Agreement, or for any liability under an indemnity given under the Agreement where the indemnifying party holds insurance responsive to that liability (in which the case the liability will not exceed the actual proceeds of that insurance received by the indemnifying party). 7.2 Neither party shall have any liability to the other party under or in connection with the Agreement or its subject matter for indirect or consequential loss or damage, or for any loss of profits or revenue, or loss of or damage to goodwill, reputation or data. 7.3 Subject to clause 7.4 and to the extent permitted by law, Customer warrants that it has not relied on any representation made by Digital Resilience which has not been stated expressly in the Agreement, or upon any descriptions, illustrations or specifications contained in any website or document including catalogues, emails, business documents or publicity material produced by Digital Resilience or its representatives. 7.4 Customer acknowledges that to the extent Digital Resilience or its representatives has made any representation which is not otherwise expressly stated in the Agreement, Customer has been provided with an opportunity to independently verify the accuracy of that representation. 7.5 Forecasts and projections (and financial information of any kind relating to future events or circumstances) provided to Customer by Digital Resilience are for informational purposes only and Customer acknowledges that Digital Resilience makes no representations and gives no warranty of any kind in respect of them. 7.6 The parties agree that (except as otherwise expressly provided in the Agreement) Digital Resilience has not made or given any representation, warranty, condition or undertaking of any kind (including fitness for purpose, merchantability or non-infringement of third party rights) in respect of the Services, the Deliverables or the subject matter of the Agreement and agree that all such representations, warranties, conditions and undertakings are expressly excluded to the fullest extent permitted by law. 7.7 Nothing in this clause 7 is to be read as excluding, restricting or modifying the application of any legislation which by law cannot be excluded, restricted or modified. 7.8 The liability of Digital Resilience for any liability that cannot be excluded under the Competition and Consumer Act 2010 (Cth) is, to the fullest extent permitted by law, to be limited at the option of Digital Resilience to: (a) in the case of goods, the replacement of the goods, the supply of equivalent goods, payment of the cost of replacing the goods or the payment of the cost of acquiring equivalent goods; or (b) in the case of services, the supply of the services again or the payment of the cost of having the services supplied again. 7.9 Each party will at all times indemnify and hold harmless the other party and its Personnel (“those indemnified”) from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability arises out of or in connection with was caused by: (a) any wilful, unlawful or grossly negligent act or omission of the indemnifying party or its Personnel; or (b) the death of or personal injury to any person or damage to or destruction of any property, to the extent caused or contributed to by any act or omission of the indemnifying party or its Personnel. 7.10 Each party must take all steps available to mitigate the loss or damage caused by the acts or omissions of the other party. 7.11 The liability of a party under the Agreement will be reduced to the extent that the other party or its Personnel caused or contributed to the relevant loss or damage.
SUBCONTRACTING 8.1 Digital Resilience will not without the prior written consent of Customer subcontract any of the Services to third parties, such consent not to be unreasonably withheld or delayed. For the avoidance of doubt, the engagement by Digital Resilience of individual contractors is not subject to this requirement.
ASSIGNMENT Neither party may assign or transfer the Agreement (by operation of law, as a result of change of control, or otherwise) without the prior written consent of the other party, and any purported assignment without such consent will be void, except that Digital Resilience may assign its rights under this Agreement to a person who assumes all of its obligations under the Agreement by written notice to Customer (and after receipt of such notice the Customer must promptly sign any documentation required to give effect to the assignment or novation of this Agreement).
FORCE MAJEURE 10.1 With the exception of an obligation to make a payment, a party (“Affected Party”) will not be liable for any delay or failure to perform its obligations if such failure or delay is due to Force Majeure. 10.2 The Affected Party will notify the other party as soon as practical of any anticipated delay due to Force Majeure. The performance of the Affected Party’s obligations under the Agreement will be suspended for the period of the delay due to Force Majeure and any additional period reasonably required to resume performance of those obligations. 10.3 If a delay due to Force Majeure exceeds 60 consecutive days, either party may terminate the Agreement immediately by written notice to the other party. If such notice is given: (a) Digital Resilience will refund moneys previously paid by Customer under the Agreement for which no Services have been provided; and (b) Customer will pay Digital Resilience in full for all Services rendered or costs and expenses incurred prior to termination, including payment on a pro-rata basis for partially completed Services and Deliverables.
TERMINATION 11.1 Either party may terminate the Agreement immediately by notice in writing to the other party: (a) if the other party is in breach of any clause of the Agreement and such breach is not remedied within 14 days of written notice of the breach by the first party; or (b) if the other party becomes subject to an Insolvency Event (subject to any requirements of the Corporations Act that may apply in these circumstances). 11.2 If the Agreement expires or is terminated: (a) Digital Resilience may recover, and Customer must immediately pay, all Fees for Services and Deliverables wholly or partly performed, developed or provided up to and including the date termination takes effect; (b) Digital Resilience will refund to Customer any Fees paid in advance for Services or Deliverables not provided at the date termination takes effect, unless the Agreement is terminated by Digital Resilience; (c) each party will be discharged from any further obligations under the Agreement; and (d) each party may pursue any additional or alternative accrued rights and remedies in respect of the Agreement or its termination. 11.3 If the Agreement is terminated by Digital Resilience, Digital Resilience may by written notice to Customer elect to terminate any other agreement or Statement of Work with Customer or any related entity of Customer, and/or recover from Customer the amount of any loss or damage sustained as a result of the termination.
NON-SOLICITATION Each party must not, during the term of the Agreement and for 12 months after the expiry or termination of the Agreement, directly or indirectly solicit the services of, or offer employment to, any employee or former employee (during the previous 12 months) of the other party without the other party’s prior written consent (where this clause will not apply to general advertisements to the public published by a party or any dealings arising solely in response to such advertisements).
SURVIVAL The following clauses will survive the termination or expiration of the Agreement: 2.2, 2.3, 4, 5, 6, 7, 14 and 17.
PRIVACY 14.1 Each party will comply with its obligations under the Privacy Act in respect of any Personal Information handled by that party in connection with this Agreement. 14.2 Each party agrees not to knowingly do any act or omission that would cause the other party to breach its obligations under the Privacy Act. 14.3 Each party will cooperate with the other party as reasonably required to assist that other party meet its obligations under the Privacy Act in respect of Personal Information handled by both parties in connection with this Agreement. 14.4 Each party warrants that it has complied with its obligations under the Privacy Laws in respect of any Personal Information disclosed by that party to the other party, and that the other party is permitted to collect and use that Personal Information for the purpose disclosed. 14.5 Each party must, if it becomes aware of any complaint under or breach of the Privacy Laws (including an “eligible data breach”) relating to Personal Information handled by that party in connection with this Agreement, promptly notify the other party and then reasonably cooperate with that other party in connection with addressing or resolving that complaint or breach.
MODERN SLAVERY 15.1 Digital Resilience warrants that as at the date of the Agreement, Digital Resilience has no knowledge of any Modern Slavery practices within its organisation or supply chain. 15.2 Digital Resilience will take reasonable steps to identify the risk of, and prevent the occurrence of, Modern Slavery practices within its organisation or supply chain. 15.3 Digital Resilience will notify Customer in writing promptly after becoming aware of any Modern Slavery practices within its organisation or supply chain.
GENERAL 16.1 A notice, demand, consent, approval or communication under the Agreement (Notice) must be in writing, legible and in English, addressed to the recipient’s address as set out in the Agreement (as may varied by any Notice by that recipient), and hand delivered or sent by prepaid post or email to that address. 16.2 A Notice given in accordance with clause 16.1 takes effect when received (or at a later time specified in it), and is taken to be received: (a) if hand delivered, on delivery; (b) if sent by prepaid priority post, 4 business days after the date of posting; (c) if transmitted by email, on the day of transmission, provided that the sender does not within 2 hours of sending receive an automated notice generated by an email server indicating that the email was not delivered, but if the delivery, receipt or transmission is not on a business day or is after 5pm on a business day, the Notice is taken to be received at 9am on the following business day. 16.3 The Agreement is made in and will be governed by the laws of South Australia, without regard to its choice of law principles. Each party submits to the exclusive jurisdiction of courts exercising jurisdiction there in connection with matters concerning the Agreement, the Services and the Deliverables. 16.4 The Agreement may be amended only by a written document executed by a duly authorised representative of each of the parties. No purchase order or other document that purports to modify or supplement the Agreement will add to or vary the terms of the Agreement. All proposed variations or additions (whether submitted by Customer or Digital Resilience) are objected to and deemed material unless otherwise agreed to in writing signed on behalf of both parties. 16.5 If a provision of the Agreement is illegal or unenforceable in any relevant jurisdiction, it may be severed for the purposes of that jurisdiction without affecting the enforceability of the other provisions of the Agreement, unless severing the provision materially alters the scope and nature of the Agreement, or the relative commercial or financial positions of the parties or would be contrary to public policy. 16.6 No failure to exercise nor any delay in exercising any right, power or remedy by a party operates as a waiver. A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing. 16.7 The Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements and understandings between the parties in connection with it. However, to the extent there is any conflict between the terms of the Agreement and any previously executed confidentiality agreement, the terms providing the most protection to Confidential Information will prevail. 16.8 Each party agrees to do all things and executes all deeds, instruments, transfers or other documents as may be necessary or desirable to give full effect to the provisions of the Agreement and the transactions contemplated by it. 16.9 The Agreement may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument. Copies transmitted by email, facsimile or other imaging process will be considered equivalent to an original signed version. 16.10 By entering into the Agreement, the person acting on behalf of Customer warrants (both personally and on behalf of Customer) that they have the proper authority to bind Customer.
DEFINITIONS AND INTERPRETATION 17.1 In the Agreement unless expressly provided to the contrary: (a) “Agreement” has the meaning provided in clause 1.2. (b) “Confidential Information” means information of whatever nature and in whatever form (including electronic, magnetic and other non-tangible forms capable of being read by human beings or not) concerning the operations, dealings, organisation, personnel, business strategies, ideas, designs, Intellectual Property or know-how of a party which is received by, disclosed to or discovered by the other party (“receiving party”) pursuant to, in connection with or as a result of the Agreement or any action taken under the Agreement. However, Confidential Information does not include information which: (i) is or becomes publicly known through no act or default of the receiving party or any person associated with, or who received that information from or as a consequence of disclosure by, the receiving party; (ii) is independently developed by any Personnel of the receiving party (as shown by its written record) who has no knowledge of the Confidential Information; (iii) is disclosed to the receiving party by a third party lawfully in possession of such information and which is under no obligation to maintain such information in confidence; or (iv) can be shown from the receiving party’s written records was in the receiving party’s possession prior to disclosure of the Confidential Information by the other party. (c) “Deliverable” means the deliverables (if any) named, defined or otherwise described in the Statement of Work. (d) “Digital Resilience” means Digital Resilience Pty Ltd ABN 85 642 075 429. (e) “Effective Date” means the date on which the Statement of Work takes effect, as specified in the Statement of Work. (f) “Fees” means the fees specified in the Statement of Work and will be read in conjunction with the payment schedule (if any) specified in the Statement of Work. (g) “Force Majeure” means an act, omission or circumstance over which the affected party could not reasonably have exercised control. (h) “Insolvency Event” means, in respect of a party, the occurrence of any one or more of the following events: (i) a meeting has been convened, resolution proposed, petition presented or order made for the winding up of the party; (ii) an administrator is appointed to the party or action is taken to make that appointment; (iii) a receiver, receiver and manager, provisional liquidator, liquidator, or other officer of the Court, or other person of similar function has been appointed regarding all or any material asset of the party; (iv) the party ceases to carry on business; (v) the party enters into a compromise or arrangement with its creditors or a class of them; (vi) a security holder, mortgagee or chargee has taken, attempted or indicated an intention to exercise its rights under any security of which the party is the security provider, mortgagor or chargor; (vii) the party is or states that it is unable to pay its debts when they fall due; or (viii) anything occurs under the Law of any jurisdiction which has a substantially similar effect to any of the above paragraphs of this definition. (i) “Intellectual Property” means all present and future rights conferred by statute, common law or equity in or in relation to any confidential information, copyright, trade marks, service marks, designs, patents, circuit layouts, business and domain names, inventions, know-how and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether or not such rights are registered or registrable (including the right to apply for registration of such rights). (j) “Interest Rate” means the cash rate target published by the Reserve Bank of Australia from time to time plus 3% (per annum), or the highest amount allowed by law (if lower). (k) “Modern Slavery” has the same meaning as it has in the Modern Slavery Act 2018 (Cth). (l) “Moral Right” has the meaning given by the Copyright Act 1968 (Cth). (m) “Personal Information” has the meaning given in the Privacy Act. (n) “Personnel” means, in respect of a party to the Agreement, each of the directors, officers, employees, agents, contractors and professional advisers of that party. (o) “Privacy Act” means the Privacy Act 1988 (Cth), including the Australian Privacy Principles. (p) “Services” means the services to be provided by Digital Resilience, as described in the Statement of Work. (q) “Statement of Work” means a document, executed by or on behalf of each party, which references these Terms and sets out: (a) the services to be provided by Digital Resilience; and (b) the fees to be paid to Digital Resilience. (r) “Terms” has the meaning provided in clause 1.1. 17.2 The following rules apply unless the context requires otherwise: (a) Headings are for convenience only and do not affect interpretation. (b) The singular includes the plural and conversely. (c) A gender includes all genders. (d) If a word or phrase is defined, its other grammatical forms have a corresponding meaning. (e) A reference to a person, corporation or other entity includes any of them. (f) A reference to a clause, schedule or annexure is a reference to a clause of, or a schedule or annexure to, these Terms. (g) A reference to an agreement or document (including, without limitation, a reference to the Agreement) is to the agreement or document as amended, varied, supplemented, novated or replaced, except to the extent prohibited by the Agreement or that other agreement or document. (h) A reference to a party to the Agreement or another agreement or document includes the party’s successors, permitted substitutes and permitted assigns (and, where applicable, the party’s legal personal representatives). (i) A reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it. (j) A reference to conduct includes, without limitation, an omission, statement or undertaking, whether or not in writing. (k) A reference to an agreement includes any undertaking, deed, agreement and legally enforceable arrangement, whether or not in writing, and a reference to a document includes an agreement (as so defined) in writing and any certificate, notice, instrument and document of any kind. (l) The meaning of general words is not limited by specific examples introduced by including, or for example, or similar expressions. (m) Nothing in the Agreement is to be interpreted against a party solely on the ground that the party put forward the Agreement or any part of it. (n) It is acknowledged by the parties that matter may come within both the definition of “Services” and the definition of “Deliverables”. Neither of such definitions is to be read down by reference to the other. 17.3 If the doing of any act, matter or thing under the Agreement is dependent on the consent or approval of a party or is within the discretion of a party, the consent or approval may he given or the discretion may he exercised conditionally or unconditionally or withheld by the party in its absolute discretion unless express provision to the contrary has been made. 17.4 The special conditions (if any) specified in the Statement of Work are incorporated in and form part of the Agreement. If there is any conflict between the special conditions and the other provisions of the Agreement, the special conditions will prevail to the extent of the inconsistency.
