DIGITAL RESILIENCE TERMS AND CONDITIONS FOR PROFESSIONAL SERVICES

 1. 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 the 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. The Statement of Work will prevail over these Terms, to the extent of any inconsistency between the Statement of Work and these Terms.

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 advised as to Digital Resilience’s progress in performing the Services.

 2. 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 the Customer’s business and use.

 3. FEES AND PAYMENT TERMS

3.1 Customer will pay Digital Resilience the Fees for performance of the Services by Digital Resilience. 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.

 4. 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).

 5. PROPERTY RIGHTS

5.1 Nothing in the Agreement operates to transfer ownership of any Intellectual Property between the parties. To the extent that Digital Resilience 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 for the internal business purposes of Customer.

5.2 Digital Resilience warrants that the Deliverables will not infringe any third-party copyright or trade secrets enforceable in Australia.

5.3 In the event of any breach of the warranty set out at clause 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; or (b) refund to Customer the Fees paid for that Deliverable.

5.4 The warranty in clause 2 shall not apply: (a) if the breach of third-party rights was caused or contributed to by Customer; (b) if the Deliverables were used, copied or modified by Customer; (c) if the Deliverables were used otherwise than as expressly permitted in the Agreement; or (d) after the termination or expiration of the Agreement.

5.5 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 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 lawfully assigned to Digital Resilience (and all Moral Rights in such materials are assigned to Digital Resilience or otherwise waived),

to the extent such materials form any part of the Deliverables or are used in the performance of the Services.

 6. 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 strictly necessary to disclose Confidential Information for the purposes of achieving an objective of the Agreement, and provided that such disclosure is made on a confidential basis.

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 disclose that Confidential Information or any part of it except in a manner consistent with these confidentiality obligations.

6.3 All tangible materials containing, recording or used to store any Confidential Information, including documents, tapes, computer disks and other fixed storage devices (whether in electronic, magnetic or other non-tangible forms) are the property of the party making disclosure of the Confidential Information contained in or on those tangible materials.

6.4 Subject to clause 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 1 and 6.2.

 7. LIABILITY

7.1 The liability of Digital Resilience under or in connection with the Agreement or its subject matter for all outstanding claims in the aggregate shall not exceed 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.

7.2 Digital Resilience shall not have any liability to Customer 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, 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 breach of a condition or warranty implied by 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 Customer will at all times indemnify and hold harmless Digital Resilience 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 was caused by:

(a) a breach by Customer of its obligations under the Agreement; or

(b) any wilful, unlawful or negligent act or omission of Customer.

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 Digital Resilience to Customer under clause 7.1 will be reduced to the extent Customer or its Personnel caused or contributed to the relevant loss or damage.

 8. 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.

 9. ASSIGNMENT

Customer must not assign or transfer the Agreement (by operation of law, as a result of change of control, or otherwise) without the prior written consent of Digital Resilience, and any purported assignment without such consent will be null and void.

 10. 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 14 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.

 11. 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 ceases to be able to comply with the terms of the Agreement due to insolvency.

11.2 If the Agreement is terminated pursuant to clause 11, Digital Resilience:

(a) may recover all Fees for Services and Deliverables wholly or partly provided up to and including the date termination takes effect;

(b) may recover from Customer the amount of any loss or damage sustained as a result of the termination;

(c) shall be discharged from any further obligations under the Agreement; and

(d) may pursue any additional or alternative accrued rights and remedies in respect of the Agreement or its termination.

 12. SURVIVAL

The following clauses will survive the termination or expiration of the Agreement: 2.2, 2.3, 4, 5, 6, 7, 13 and 14.

 13. GENERAL

13.1 All notices, including notices of address changes, required to be sent under or in relation to the Agreement will be in writing and will be deemed to have been validly despatched when received by mail at, or otherwise physically delivered to, the address of the recipient as specified in the Agreement (or to such address as subsequently amended by written notice to that recipient).

13.2 The Agreement is made in and will be governed by the laws of Victoria, without regard to its choice of law principles. Each party submits to the non-exclusive jurisdiction of courts exercising jurisdiction there in connection with matters concerning the Agreement, the Services and the Deliverables.

13.3 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.

13.4 If any provision of the Agreement is held to be unenforceable, the Agreement will be construed without such provision.

13.5 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.

13.6 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 Digital Resilience’s confidential information will prevail.

13.7 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.

13.8 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.

 14. DEFINITIONS AND INTERPRETATION

14.1 In the Agreement unless expressly provided to the contrary:

(a) “Agreement” has the meaning provided in clause 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) “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).

(i) “Moral Right” means:

(i) a right of attribution of authorship;

(ii) a right not to have attribution falsely attributed;

(iii) a right of integrity of authorship; or

(iv) a right of similar nature,

which is conferred by statute, and which exists or comes to exist anywhere in the world in a deliverable form arising in whole or in part from performance of the Services.

(j) “Personnel” means, in respect of a party to the Agreement, each of the directors, officers, employees, agents, contractors and professional advisers of that party.

(k) “Services” means the services to be provided by Digital Resilience, as described in the Statement of Work.

(l) “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.

(m) “Terms” has the meaning provided in clause 1.1.

 14.2 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 he 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.

14.3 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.

14.4 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.