Terms of Service

1. Agreement

1.1 Together with the Proposal, these Terms and Conditions form part of the Agreement between CYBRA SECURITY PTY LTD (“CYBRA”) and the client for the provision of the Services.  These Terms and Conditions will apply to any further Services provided by CYBRA to the client unless otherwise agreed in writing.

1.2 The terms of any Proposal will prevail to the extent of any inconsistency with these Terms and Conditions.

1.3 Defined terms and rules for interpretation are set out in clause 20.

2. Term

CYBRA will provide the Services to the client in accordance with the Agreement from the Commencement Date until the earlier of the End Date or the termination of the Agreement.

3. Warranties by CYBRA

3.1 CYBRA warrants that:

3.1.1 it will perform the Services in a competent and prudent manner.

3.1.2 The Services will be performed in accordance with all applicable laws, rules, regulations, standards and industry customs.

3.2 Other than as expressly provided in the Proposal or these Terms and Conditions, to the maximum extent permitted by law, all other warranties are excluded.

4. Obligations of Client

The client will provide CYBRA with access to its computer systems, premises, data and any other information in the manner reasonable required by CYBRA to perform the Services in accordance with the Agreement.

5. Authority

5.1 The Client authorises CYBRA Representatives to access and use the client’s computer systems as reasonably required by CYBRA for the provision of the Services for all purposes, including in connection with the Criminal Code Act 1995 (Cth).

5.2 The Client will provide CYBRA with a signed authority in the form set out in the proposal from such persons as CYBRA reasonably requires, prior to the provision of any Services by CYBRA.

5.3 To the maximum extent permitted by law, the client will indemnify CYBRA from and against any Claim pursuant to the Criminal Code Act 1995 (Cth) relating to, arising out of or in connection with the Agreement.

6. Acknowledgments

6.1 In performing the Services, CYBRA acknowledges that the systems being tested may be live operating systems. CYBRA will use all due care to minimise the impact of any tests which form part of the Services.

6.2 The Client acknowledges that:

6.2.1 CYBRA may immediately halt any testing which forms part of the Services if directed by the client or if CYBRA suspects that the client’s information or operating systems are being unduly impacted and

6.2.2 provided CYBRA has complied with clause 6.1, CYBRA will not be on breach of the Agreement if the Services impact the information or operating systems of the client, or performance of the Services is halted in accordance with clause 6.2.1.

7. Service Fees and Expenses

7.1 The Client will pay CYBRA the Service Fees in consideration of CYBRA providing the Services to the client, in accordance with this clause 7.

7.2 The Client will pay any expenses to be incurred by CYBRA in performance of the Services as set out in the proposal (“Expenses”).

7.3 The Client will pay the Service Fees and Expenses (if any) in the manner set out in the proposal. If no payment terms are specified in the proposal, the client will pay the Service Fees and Expenses (or such portion as determined by CYBRA) within 10 Business Days of the end of each month in which the Services are provided.

7.4 The Client will not be required to pay the Service Fees or Expenses (if any) unless CYBRA has provided a valid tax invoice to the client for the Services performed.

7.5 The Client must pay all amounts payable or owing by it to CYBRA under the Agreement without any set off or deduction.

7.6 Any variation to the Services or the manner in which the Services are to be performed and provided by CYBRA to the client may result in additional Service Fees (other than as a result of breach of this Agreement by CYBRA).  This includes variations resulting from alterations to the timeframes due to Client unavailability, changes to any scope of work forming part of the Services or a Proposal, CYBRA being required to repeat or perform the same Services, modifications to the client’s hardware, software or other technical infrastructure and any additional information uncovered in performing the Services or provided by the client.

8. GST

8.1 Subject to the proposal, if any supply under the Agreement is or becomes subject to GST, the party to whom the supply is made (“the Recipient”) must pay to the party making the supply (“the Supplier”), as consideration in addition to any consideration payable or to be provided elsewhere in the Agreement, such amount to be calculated by multiplying the consideration by the applicable rate of GST.

8.2 Any amount in respect of GST payable under clause 8.1 must be paid to the Supplier no later than the day on which payment is due and payable for the Services.

9. Non-Performance of Services

9.1 Subject to clause 9.2, if CYBRA does not provide the Services in accordance with the Agreement the Client may require CYBRA, at CYBRA’s expense, to promptly perform or re-perform the Services in accordance with the Agreement.

9.2 CYBRA will not be required to remedy any default or otherwise perform or re-perform any Services pursuant to clause 9.1, where the non-performance is caused or contributed to by the client (including the client’s employees, agents or contractors) or any failure of the client’s systems or IT infrastructure during the provision of the Services.

10. Force Majeure

10.1 CYBRA will not be liable for performance of any of its obligations under the Agreement as a result of an act of God, national emergency, war, prohibitive governmental regulations, labour dispute or any other cause beyond CYBRA’s reasonable control.  If such a force majeure event occurs, CYBRA will notify the client of the occurrence and expected duration of that event.

10.2 If a force majeure event renders performance of the Agreement impossible for a continuous period of at least fourteen (14) Business Days, either party may by notice to the other, terminate the Agreement.

11. Warranties by Client

The Client warrants that it is (i) validly in existence under all applicable laws, (ii) duly authorised to enter into the Agreement, (iii) has obtained all required consents and approvals to do so and (iv) is not contravening any law, judgment, order or rule of any Government Agency or any agreement by entering into the Agreement.

12. Liability of CYBRA

12.1 Subject to clause 12.4, to the maximum extent permitted by law CYBRA will only be liable for any Claim associated with the non-performance of the Services in any manner as set out in clause 9.1.

12.2 Notwithstanding any other clause of the Agreement, CYBRA will not be liable for:

12.2.1 any direct or any special, indirect or consequential damages, including without limitation, loss of business, loss of data or loss of profits, loss of production, loss of use of any plant or facility, business interruption, loss of business opportunity or any other special contingent or penal damage or loss, whether in contract, tort or otherwise resulting from any performance or non-performance of the Services for any reason or

12.2.2 any Claim relating to, arising out of or in connection with anything which is done (or is not done) by the Client without CYBRA’s prior written approval.

12.3 Provided that CYBRA performs the Services in accordance with this Agreement (but subject always to this clause 12), CYBRA will have no liability for and the client will indemnify CYBRA from and against all Claims arising out of, relating to, or in connection with the performance of its obligations under the Agreement, including:

12.3.1 physical loss of or damage to property of the client or any other person (other than of CYBRA) and personal injury, disease, illness or death of any of the client’s personnel

12.3.2 any negligent or wrongful act or omission of the client in connection with or incidental to the Agreement

12.3.3 any licence, sub-licence or any other agreement between the client and its customers or any agent or representative of the client

12.3.4 any breach or alleged breach of a third-party’s Intellectual Property rights or

12.3.5 any breach of the Agreement by the client.

12.4 CYBRA’s total aggregate liability to the client in respect of any and all Losses incurred by the client (whether for breach of contract, in tort (including negligence) or otherwise) arising out of or in connection with the carrying out of the Services or under this Agreement is limited to twice the Service Fees paid by the Client to CYBRA under this Agreement in the 12 months preceding the event giving rise to the Loss.

13. Termination

13.1 If either party breaches a term of the Agreement (“Defaulting Party”) and the breach can be remedied, the other party (“Non-Defaulting Party”) may give the Defaulting Party not less than seven (7) days’ notice to remedy that breach. If the breach is not remedied within the period stipulated in the notice, the Non-Defaulting Party may give the Defaulting Party a further notice immediately terminating the Agreement.

13.2 Either party may terminate the Agreement by notice to the other party immediately upon any of the following events:

13.2.1 if the other party commits a material breach of this Agreement which cannot be remedied

13.2.2 if the other party ceases to carry on business as a going concern

13.2.3 if an Insolvency Event occurs in relation to the other party or

13.2.4 if the other party commits a serious criminal offence.

13.3 Termination of the Agreement will not affect any rights or obligations of party which arose prior to the date of termination. CYBRA will not be liable to the client for any Claims by the client relating to the termination of this Agreement by CYBRA in accordance with this clause 13.

14. Confidentiality

14.1 Each party owns all of its Confidential Information. During the Agreement and after its termination, each party can use or disclose the other party’s Confidential Information only to (i) perform the Services, (ii) professional advisors on a confidential basis for the purpose of obtaining advice, (iii) if the disclosing party has consented in writing, or (iv) if required by law.

14.2 Upon termination of the Agreement, the recipient of Confidential Information must at the disclosing party’s discretion, deliver to the disclosing party or destroy all Confidential Information in the recipient’s possession or under its control and delete all Confidential Information held electronically in any medium in the recipient’s possession or under its control. The recipient may retain one copy of any Confidential Information as required by law, any report provided by CYBRA to the client and any information contained in working papers or files prepared by CYBRA in connection with that report.

15. Intellectual Property

15.1 In relation to any report provided by CYBRA to the client pursuant to the Agreement, CYBRA grants the client an irrevocable and non-exclusive licence to use that report subject to the terms of the Agreement, provided that CYBRA retains copyright in that report.

15.2 Subject to clause 15.1, all Intellectual Property and similar rights in any other document, work or other matter developed, created, owned or contributed to by CYBRA belongs to CYBRA and CYBRA owns all rights, title and interest in that Intellectual Property.

15.3 During the Term and after the End Date the Client will not use any of CYBRA’s Intellectual Property except as expressly permitted by the Agreement nor register or use any name or mark similar to or capable of being confused with CYBRA’s name, business name or trade mark.

15.4 Subject to this clause 15, any Intellectual Property of the Client as at the date of the Agreement will remain the property of the client.

16. CYBRA Staff

16.1 While CYBRA is providing any Services to the client and for a period of 6 months after the End Date, the client will not make an offer of employment to any employee or contractor of CYBRA.  In addition, during that period the client will also not solicit, induce or entice any employee or contractor of CYBRA to cease to work for CYBRA, nor will the Client attempt to do so.

16.2 Clause 16.1 does not prohibit the client from publishing a bona fide employment opportunity with the client to the general public or making an offer of employment to a person who has responded to such an advertisement or publication.

17. Dispute Resolution

17.1 Any dispute or disagreement in relation to or in connection with the Agreement in any matter (“Dispute”) is to be resolved in accordance with the procedure provided in this clause 17. In the event of a Dispute, the party seeking to have it resolved must issue to the other parties a notice setting out all details relevant to the Dispute (“a Dispute Notice”).

17.2 Within 14 days of receipt of a Dispute Notice, the senior management of the parties to the Dispute respectively must meet in Melbourne to negotiate resolution of the Dispute.  The parties agree that those negotiations must be conducted in good faith.

17.3 In the event that the Dispute is not resolved in accordance with clause 17.2, within 14 days of receipt of a Dispute Notice, the Parties must jointly request the appointment of a mediator.  If the parties fail to agree on the appointment of a mediator within 7 days of a notice of appointment of mediator, either Party may apply to the President of the Law Society of Victoria or the nominee of the President to appoint a mediator.  Once the mediator has accepted the appointment, the Parties must comply with the instructions of the mediator.  If the Dispute is not resolved by mediation, either party will be entitled to take legal action.

17.4 Nothing contained in this clause 16 will prevent a party from seeking urgent interlocutory relief.

18. Miscellaneous

18.1 Unless otherwise specified, the Agreement contains the entire agreement between the parties in respect of the subject matter of the Agreement and supersedes any prior agreement or understanding (if any) between the parties in relation to the subject matter of the Agreement.

18.2 Any amendment to a term of the Agreement must be made in writing executed by the parties.

18.3 CYBRA may assign or novate its interest under the Agreement at any time. The client can only assign its interest under this Agreement with the prior written consent of CYBRA.

18.5 A provision of this Agreement must be read down to the extent necessary to be valid. If it cannot be read down to that extent, it must be severed. The Agreement with the offending provision severed and omitted and with any consequential amendment if necessary, will otherwise remain in full force.

18.6 The Agreement will be construed according to the laws of Victoria and the parties submit themselves to the non-exclusive jurisdiction of the Courts of Victoria and any competent appellate courts.

18.7 The Agreement may be executed in any number of counterparts and all counterparts taken together will constitute one and the same instrument.  Satisfactory evidence of execution of this Agreement will include evidence of execution sent by facsimile or electronic transmission by the relevant party and in such case, the executing party undertakes to produce the original as soon as reasonably practicable thereafter.

18.8 The Agreement will only come into effect and be binding on the parties when it is duly executed by all of the parties.

18.9 The parties will pay their own costs in respect of the negotiation, preparation and execution of the Agreement.

18.10 The parties are independent entities.  The parties are not principal and agent, partners, trustee and beneficiary or employer and employee.

19. Notices

19.1 Any notice to be given by one party to the other must be (i) signed by the party giving the notice or by one of its officers or its duly authorised lawyer or agent and (ii) hand delivered or sent by prepaid post, facsimile or electronic mail to the address, facsimile number or electronic mail address (as the case may be) set out in the Agreement (or any other address, facsimile number or electronic mail address that a party notifies to the other party from time to time).

19.2 Notice will be deemed sufficiently given in the case of (i) hand delivery, on the date of delivery (ii) pre-paid post two Business Days after being sent (iii) facsimile, on receipt by the sender of a successful transmission answerback, or (iv) electronic mail, on the day of transmission provided that the sender can give evidence of transmission and the intended recipient does not give evidence of non-receipt.

20. Interpretations and definitions

In the Agreement unless qualified by or inconsistent with the context:

20.1 A reference to one gender includes the other genders a reference to a person includes a body corporate or un-incorporate and vice versa the singular includes the plural and vice versa.

20.2 A reference to a clause is a reference to a clause of this Agreement.  A reference to a Schedule is a reference to a schedule to this Agreement.

20.3 Where a word or phrase is given a particular meaning, other parts of speech or grammatical forms of that word or phrase have corresponding meanings.

20.4 Headings are for convenience of reference and will not affect the interpretation.

20.5 Any schedules form part of the Agreement.

20.6 The Agreement is written in plain English as far as possible.  Its terms are to be interpreted so as to give efficacy to the parties’ agreement.  No rule resolving a doubt as to interpretation against the party preparing the Agreement will apply. The specific provisions will not limit the interpretation of general provisions.

20.7 The Agreement binds the parties’ respective heirs, executors, administrators, legal personal representatives, successors and permitted assigns.

20.8 “Agreement” means the agreement set out in the proposal and these Terms and Conditions.

20.9 “Business Day” is a day other than a Saturday, Sunday or public holiday in Victoria.

20.10 “Claim” means, in relation to any person, any damage, loss, cost, expense or liability incurred by the person or a claim, demand, action, proceeding or judgment made against the person, however arising and whether present or future, fixed or unascertained, actual or contingent.

20.11 “Client” means the person identified as the client in the proposal.

20.12 “Commencement Date” means the date specified in the proposal for commencement of performance of the Services by CYBRA. If no such date is specified, the Commencement Date is the date the proposal is signed by CYBRA and the Client.

20.13 “Confidential Information” means any information obtained by one party concerning the other party or its business activities and that (i) by its nature is confidential, (ii) is designated by the disclosing party as confidential or (iii) the recipient knows or ought to know is confidential but excludes information that is publicly available, except as a result of a breach of this Agreement or was disclosed to the recipient by a third-party who was not under a duty of confidentiality in relation to that disclosure.

20.14 “CYBRA” means CYBRA SECURITY PTY LTD  ABN 44 615 237 968.

20.15 “CYBRA Representatives” means representatives of CYBRA authorised by CYBRA in writing for the purpose of the Agreement.

20.16 “End Date” means the date by which the Services must be completed as specified in the proposal. If no such date is specified, the End Date is the date upon which the Services are completed by CYBRA.

20.17 “Government Agency” means a government or a governmental, semi-governmental or judicial entity or similar authority, and includes a self-regulatory organisation established under statute or a stock exchange.

20.18 “GST” means any goods and services tax or similar tax, levy, charge or impost, and includes any interest, fine, penalty, charge, fee or any other amount imposed on or in respect of any of the above.

20.19 “Insolvency Event” means any of the following:

20.19.1 the threatened or actual appointment of a voluntary administrator, liquidator, provisional liquidator, receiver, receiver and manager, controller, trustee in bankruptcy, administrator or other person of similar office, including any application to a court for such an appointment

20.19.2 entry into or proposing an arrangement or compromise for the benefit of creditors

20.19.3 the levy or enforcement of a writ of execution, order or judgement

20.19.4 becoming unable to pay debts as and when they fall due for payment

20.19.5 the taking of possession or control of any asset by a person under an Encumbrance or

20.19.6 failing to satisfy or to apply to have set aside a statutory demand, a bankruptcy notice or other similar form of statutory notice within the time specified in the demand or notice.

20.20 “Intellectual Property” means all intellectual property rights including, without limitation:

20.20.1 patents, copyright, registered designs, rights in circuit layouts, trademarks, inventions, secret processes, computer code, discoveries and improvements and modifications of any kind

20.20.2 the right to have confidential information kept confidential and

20.20.3 any application or right to apply for registration of any of the rights defined in this clause 20.20.

20.21 “Loss” means any loss, cost, liability or damage, including reasonable legal costs on a solicitor/client basis.

20.22 “notice” means written notice and “notify” means notification in writing.

20.23 “Proposal” means a written proposal, offer or quote provided by CYBRA to the client in relation to the Services.

20.24 “Services” means any services to be provided by CYBRA to the client as set out in a Proposal, and any other services agreed by CYBRA and the client in writing for the purpose of the Agreement.

20.25 “Service Fees” means the fees payable to CYBRA by the client in consideration of CYBRA providing the Services as set out in the proposal or otherwise agreed in writing between CYBRA and the Client.

20.26 “Term” means the term of the Agreement set out in clause 2.

20.26 “Term” means the term of the Agreement set out in clause 2.