SEKURO MASTER TERMS AND CONDITIONS

Last updated 6th October 2022.

PARTIES

SEKURO OPERATIONS PTY LTD (ABN 52 652 187 785) (Supplier)
[FULL COMPANY NAME] [ABN NUMBER] (Customer)

BACKGROUND

The Supplier is in the business of providing Information Technology Services.

The Customer wishes to obtain, and the Supplier wishes to provide, the Services on the terms set out in this agreement.

GENERAL TERMS

1. Definitions and interpretation

1.1 Capitalised terms or expressions used in this agreement have the meanings set out in this clause.

APP: means an Australian Privacy Principle as defined in the Privacy Act.

APP Entity: has the meaning given in the Privacy Act.

Business Day: a day on which banks are open for business in Sydney, New South Wales, Australia, other than a Saturday, Sunday or public holiday in that city.

Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.

Commencement Date: the date when the agreement has been signed by all the parties.

Consumer Price Index: the Consumer Prices Index (All Groups) (Australia) published by the Australian Bureau of Statistics.

Control: the definition given to that term in section 50AA of the Corporations Act, and the expression change of control shall be construed accordingly.

Corporations Act: the Corporations Act 2001 (Cth).

Customer’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Customer, its agents, subcontractors or consultants which is used directly or indirectly in the supply of the Services.

Customer Materials: all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to the Supplier in connection with the Services.

Customer’s Representative: has the meaning given in clause 5.1(b).

Data Breach Investigation: an investigation as required to be carried out in accordance with clause 12.3(c).

Data Incident: an Eligible Data Breach that has, or is reasonably suspected to have, occurred in respect of any Personal Information the Supplier has collected, held, used or disclosed in the course of or relating to this agreement.

Deliverables: any output of the Services to be provided by the Supplier to the Customer as specified in an Order and any other documents, products and materials provided by the Supplier to the Customer in relation to the Services (excluding Hardware and Software and the Supplier’s Equipment).

Eligible Data Breach: an eligible data breach as that term is defined in the Privacy Amendment (Notifiable Data Breaches) Act 2017 (Cth), occurring on or after 22 February 2018.

GST: goods and services tax chargeable under A New Tax System (Goods and Services Tax) Act 1999 (Cth).

GST Law: has the same meaning as “GST Law” in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Hardware: any physical product sold to the Customer by the Supplier.

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, technology and all other intellectual property rights, whether registered or unregistered.

Managed Security Services: a managed service that provides certain security activity and responses as described in a SoW and provided subject to the terms and conditions set out under Schedule 5.

Milestone: a date by which a part or all of the Services is to be completed, as set out in a Quote, Proposal or SoW.

Personal Information: has the meaning given in the Privacy Act.

Privacy Act: the Privacy Act 1988 (Cth) as amended from time to time.

Professional Services: the provision of information technology professionals for consulting, design, development, implementation or training projects as described in a Quote, Proposal or SoW.

Proposal: a document describing the Services to be provided by the Supplier, and applicable pricing and charges.

Order: means either:

a Customer’s request for Services based on a valid Quote that has subsequently been accepted by the Supplier (which may be made via the Supplier’s online quotation system); or

a SoW / Proposal for the provision of Services that has been signed by the Parties.

Quote: a quotation for Services to be provided, including applicable Service Charges.

Sensitive Information: has the meaning given in the Privacy Act.

Services: the services to be provided to the Customer as set out in a Quote, Proposal or SoW which may include the provision of Hardware, Software, Professional Services, Managed Security Services or any other services offered by the Supplier and agreed to be supplied under an Order.

Software: any software licenced to the Customer by the Supplier under resale from a third-party vendor.

Service Charges: the amounts payable for the Services as set out in the relevant Quote, Proposal or SoW.

Statement(s) Of Work (SoW(s)): a document describing the Services to be provided by the Supplier, and applicable pricing and charges.

Supplier’s Equipment: any equipment (other than Hardware), including tools, systems, cabling or facilities, provided by the Supplier to the Customer and used directly or indirectly in the supply of the Services.

1.2 In this agreement the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:

(a) headings and subheadings are for convenience only and do not affect the interpretation of this agreement;

(b) a reference to a body (other than a party to this agreement), whether statutory or not, that ceases to exist or has its powers or functions transferred to another body is a reference to the body that replaces it or that substantially succeeds to its powers or functions;

(c) no provision of this agreement will be construed adversely to a party because that party was responsible for the preparation of that provision or this agreement;

(d) specifying anything in this agreement after the terms “include”, “including”, “includes”, “for example”‘, “such as” or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those; and

(e) this agreement includes all Schedules and attachments to it.

2. Commencement and term

2.1 This agreement starts on the Commencement Date and, unless terminated earlier in accordance with clause 15, ends when either party gives to the other party 30 days’ written notice to terminate, such notice to terminate only taking effect on the completion of all Orders entered into before the date on which the notice to terminate is served (the Term).

2.2 If there are no uncompleted Orders as at the date notice to terminate is served under clause 2.1, such notice will terminate this agreement with immediate effect.

2.3 The parties will not enter into any further Orders after the date on which notice to terminate is served under clause 2.1.

3. Orders

3.1 If, during the Term, the parties enter into an Order for Services the Parties agree that the provision of the Services will be governed by the terms of this agreement.

3.2 Once an Order has been agreed no amendment will be made to it except in accordance with clause 8.

3.3 Each Order will be part of this agreement and will not form a separate contract to it.

3.4 Each Quote, Proposal or SoW will specify the Services to be provided. The Schedules to this agreement set out terms that will apply to the provision of specific types of Services in addition to these General Terms.

3.5 If there is an inconsistency between the terms set out in this document and the terms set out in a Quote, Proposal or SoW the terms shall be applied in this order of precedence:

(a) the terms of the Schedule(s) related to the Service(s);

(b) these General Terms; then

(c) the terms of the Quote, Proposal or SoW

4. Supplier’s obligations and warranties

4.1 The Supplier will endeavour to provide the Services at a professional standard to the Customer in accordance with a Quote, Proposal or SoW in all material respects.

4.2 The Supplier will endeavour to meet any delivery, performance dates or Milestones specified in a Quote, Proposal or SoW but any such dates will be estimates only. Supplier will be excused from any failure to supply which was contributed to by causes beyond its reasonable control (including delay in supply from third parties) and the time specified for completion of supply will be extended commensurately.

4.3 The Supplier will abide by the relevant information security laws and regulations applicable in the countries in which it operates.

4.4 The Supplier makes no additional warranty in relation to the Services other than those prescribed by law.

4.5 The Supplier does not represent or guarantee that the outcome of the Services will meet the Customer’s expectations or objectives. The Customer must make independent enquiries about the suitability of the Services for their requirements.

5. Customer’s obligations and warranties

5.1 The Customer must:

(a) provide assistance to the Supplier (including access to physical sites, networks, infrastructure, documentation, licence information, Customer Material and employees and contractors) to the extent reasonably necessary to enable the Supplier to perform the Services;

(b) must identify a manager who is appointed in respect of the relevant Services to be performed (Customer’s Representative); and

(c) warrants that the Customer’s Representative has authority to contractually bind the Customer on all matters relating to the relevant Services under an Order (including by signing Change Orders).

5.2 The Customer shall indemnify and hold the Supplier harmless from and against any expense, loss, claim, judgment, award or order (including settlement of any claim entered into upon legal advice) suffered by or made against the Supplier arising from or incidental to compliance by the Supplier with any instruction, specification or direction of the Customer.

5.3 The Customer warrants that throughout the term of this agreement that:

(a) there are no legal restrictions preventing compliance with the terms of this agreement;

(b) it will cooperate with the Supplier and provide all information that is reasonably necessary to enable satisfactory performance of the Services;

(c) the information provided to the Supplier is true, correct and complete;

(d) it has obtained any consents, licences and permissions from other parties necessary for the Services to be provided, at the Customers cost; and

(e) consent is given for the use of the Customer’s name and Intellectual Property in relation to the Services.

5.4 The Customer acknowledges by entry into this agreement that no promise, representation, guarantee or undertaking has been made or given by the Supplier or any person on its behalf in relation to the capacity, uses or benefits to be derived from use, profitability of or any other results to be obtained from the provision of the Services, except as set out in this agreement. The Customer has relied on its own skill and judgment in deciding to acquire the Services and acknowledges that the Supplier does not and cannot warrant that any services will be uninterrupted, error free, or free of harmful components, or that any content will be secure or not otherwise lost or damaged.

6. Professional Services

6.1 The Service in an Order may include Professional Services either as part of another Service or as a stand-alone Service.

6.2 Where Professional Services are purchased on the basis of a block of hours or days:

(a) the Customer will be invoiced in advance for that amount of time;

(b) the Customer must provide reasonable notice of the requirement to use those resources;

(c) where a resource is booked and cancelled within 48 hours of the scheduled start time the Customer will be charged for that resource unless the delay or cancellation is caused by the Supplier; and

(d) the block of hours or days must be consumed within 12 months of purchase, any unused time will be forfeited at the end of that period.

7. Non-solicitation

7.1 From the date of an Order until 12 months after its completion, neither party will, without the prior written consent of the other party, employ or engage or attempt to employ or engage any employee or contractor of the other party involved in the provision of the Services.

8. Change control

8.1 Either party may propose changes to the scope or delivery of the Services but no proposed changes shall come into effect until a relevant amendment has been signed by both parties (Change Order). A Change Order is a document which sets out the proposed changes and the effect that those changes will have on:

(a) the Services;

(b) the Service Charges;

(c) the timetable for the Services; and

(d) any of the other terms of the Order.

8.2 If the parties agree to a Change Order, they must sign it and that Change Order will amend the Order.

9. Charges and payment

9.1 In consideration of the provision of the Services by the Supplier, the Customer must pay the Service Charges. The Customer will also pay any reasonable additional expenses incurred by the Supplier in performing the Services. The amount and nature of those expenses are to be advised to the Customer prior to those expenses being incurred.

9.2 The Supplier will invoice the Customer for the Service Charges at the times specified, or on the achievement of Milestones. If no times are specified, the Supplier will invoice the Customer at the end of each month for Services delivered during that month.

9.3 The Customer must pay each invoice submitted to it by the Supplier within 14 days of the date of invoice to a bank account nominated in writing by the Supplier from time to time.

9.4 The Supplier may increase any ongoing Service Charges on an annual basis with effect from each anniversary of the relevant Proposal / SoW in line with the percentage increase in the Consumer Price Index in the preceding 12-month period.

9.5 Except for any amounts in dispute under clause 9.7, Supplier will be entitled to charge interest on any amount due and not paid the Customer in accordance with clause 9.3 at the rate of 5% p.a. plus the then current published Westpac Bank Bill Rate, calculated monthly. In addition, the Supplier is entitled to be reimbursed by the Customer for the full costs of recovery of overdue amounts on an indemnity basis.

9.6 Without limiting the Supplier’s rights to terminate or take other action under this agreement, if the Customer fails to pay any amount due in accordance with clause 9.3 which are not legitimately in dispute under clause 9.7, the Supplier may cease or suspend providing a Service and any credit facility to the Customer.

9.7 If the Customer disputes the whole or any portion of an invoice:

(a) the Customer will pay any amount in the invoice which is not in dispute;

(b) within 5 Business Days of receipt of the invoice, the Customer will notify the Supplier in writing of the reasons for disputing the remainder of the invoice; and

(c) within 5 Business Days of that notification, the parties must meet with a view to resolving the dispute.

9.8 All sums payable to the Supplier under this agreement:

(a) are exclusive of GST (unless expressly stated otherwise), and the Customer must in addition pay an amount equal to any GST chargeable on those sums on delivery of a GST invoice; and

(b) must be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

10. Intellectual Property Rights

10.1 Each party retains ownership of all its pre-existing Intellectual Property Rights.

10.2 Unless the contrary is expressly set out in the relevant Order:

(a) the Supplier and its licensors will retain ownership of all Intellectual Property Rights in the Deliverables (except to the extent of any Customer Materials contained therein); however

(b) the Supplier grants to the Customer a non-exclusive, royalty-free licence during the term of this agreement to use the Deliverables for the sole purpose of receiving and using the Services.

11. Insurance

11.1 During the term of this agreement the Supplier will have and maintain the following insurances:

(a) Public Liability Insurance up to $20,000,000;

(b) Professional Indemnity Insurance up to $10,000,000; and

(c) Workers Compensation Insurance in accordance with applicable law.

12. Privacy

12.1 If the Supplier collects, holds, uses or discloses Personal Information in the course of or relating to this agreement, the Supplier must:

(a) handle all Personal Information in accordance with the Supplier’s privacy policy;

(b) only use Personal Information for the purpose of performing its obligations under this agreement; and

(c) not disclose Personal Information to any third party (including any subcontractor) without the Customer’s prior written consent or as required by law.

12.2 The Customer warrants that it:

(a) will not provide any Sensitive Information to the Supplier unless that information is necessary for the Supplier to perform its obligations under the agreement and then only with the Supplier’s specific written consent; and

(b) has:

(i) made all necessary notifications required by APP 5, on behalf of itself and the Supplier to; and

(ii) obtained all necessary consents required by APP 6 from,

the individuals whose Personal Information it is disclosing to the Supplier in the course of this agreement to enable to the Supplier to lawfully use the Personal Information and perform its obligations in accordance with this agreement.

12.3 If the Supplier becomes aware, or there are reasonable grounds to suspect, that a Data Incident has occurred, the Supplier must:

(a) immediately take reasonable steps to contain the Data Incident and prevent any further serious harm to affected individuals;

(b) immediately notify the Customer in writing stating the:

(i) nature and details of the Data Incident;

(ii) specific Personal Information affected; and

(iii) actions taken by the Supplier at clause 12.3(a);

(c) identify whether the Data Incident is an Eligible Data Breach by conducting a thorough investigation of the Data Incident within 20 days of becoming aware of the Data Incident (Data Breach Investigation);

(d) provide a copy of the report of the Data Breach Investigation in clause 12.3(a) to the Customer on completion;

(e) engage in discussions with the Customer regarding:

(i) the conduct and outcomes of the Data Breach Investigation; and

(ii) in the case of an Eligible Data Breach, whether the Customer or the Supplier will make the relevant notifications under the Privacy Act; and

(f) where it is agreed by the parties that the Supplier is making the relevant notifications, the Customer must approve the notifications before they are made (such approval to be given promptly and not to be unreasonably withheld).

12.4 The Customer:

(a) acknowledges that the Supplier is reliant on the Customer for direction as to the extent to which the Supplier is entitled to use Personal Information disclosed to it in the course of and for the purpose of this agreement;

(b) indemnifies the Supplier for any claim brought by any third party in connection with any act or omission by the Supplier in relation to a third party’s Personal Information to the extent that such act or omission resulted directly from the Customer’s instructions or the Customer’s breach of this agreement; and

(c) acknowledges that from time to time it may provide information to third parties in order to assess the Customer’s credit standing, credit history and financial capacity.

13. Confidentiality

13.1 Each party (Recipient) must keep secret and confidential and not disclose any information relating to another party or its business (which is or has been disclosed to the Recipient by the other party, its representatives or advisers) or the terms of this agreement, except:

(a) where the information is in the public domain as at the date of this agreement (or subsequently becomes in the public domain other than by breach of any obligation of confidentiality binding on the Recipient);

(b) if the Recipient is required to disclose the information by applicable law or the rules of any recognised securities exchange, provided that the Recipient has to the extent practicable having regard to those obligations and the required timing of the disclosure consulted with the provider of the information as to the form and content of the disclosure;

(c) where the disclosure is expressly permitted under this agreement;

(d) if disclosure is made to its officers, employees and professional advisers to the extent necessary to enable the Recipient to properly perform its obligations under this agreement or to conduct their business generally], in which case the Recipient must ensure that such persons keep the information secret and confidential and do not disclose the information to any other person;

(e) where the disclosure is required for use in legal proceedings regarding this agreement; or

(f) if the party to whom the information relates has consented in writing before the disclosure.

13.2 Each Recipient must ensure that its directors, officers, employees, agents, representatives and related bodies corporate comply in all respects with the Recipient’s obligations under this clause 13.

13.3 This clause 13 survives termination or expiry of this agreement.

13.4 The obligations of confidentiality in this clause 13 are not affected by the expiry or termination of this agreement.

14. Limitation of remedies and liability

14.1 Nothing in this agreement limits or excludes the Supplier’s liability:

(a) for death or personal injury; or

(b) for fraud or wilful misconduct by it or its employees.

14.2 Subject to clause 14.1, the Supplier excludes any liability to the Customer, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this agreement, including any loss of profits, loss of sales or business, loss of production, loss of agreements or contracts, loss of business opportunity, loss of anticipated savings, loss of or damage to goodwill, loss of reputation, loss of use or corruption of software, data or information.

14.3 In the event that the supply of any goods or services under this agreement constitutes a supply of goods or services to a consumer as defined in the Competition and Consumer Act 2010 (Cth), as amended or replaced, or relevant State or Territory legislation (“the Acts”), nothing contained in this agreement excludes, restricts or modifies any condition, warranty or other obligation where to do so is unlawful. Where permitted, the Supplier’s liability for breach of any such condition, warranty or other obligation, including any consequential loss which the Customer may sustain or incur, shall be limited to:

(a) In relation to goods:

i. the replacement of the goods or the supply of equivalent goods or payment of the cost of replacing the goods or acquiring equivalent goods; or

ii. the repair of the goods or payment of the cost of having the goods repaired;

(b) In relation to services:

i. the supplying of the services again; or

ii. the payment of the cost of having the services supplied again.

14.4 Subject to clause 14.1 and 14.3, the Supplier’s aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with an Order under this agreement, whether in contract or tort (including negligence) or otherwise, will in no circumstances exceed 100% of the total charges payable by the Customer to the Supplier under that Order in that calendar year. While the Supplier will take all reasonable measures to preserve the Customer’s data to which the Supplier may have access to in the course of provision of the Services, the Supplier cannot accept any responsibility in the event that any data is corrupted or erased for any reason. The Customer accepts that it must maintain backup data in order to avoid any loss or damage arising from such corruption or erasure and will indemnify and hold the Supplier and its employees harmless from any claims, loss or damage arising as a result of failing to successful restore the Customer’s data.

14.5 The Supplier will not be liable in relation to any proceeding or claim which:

(a) was caused by any act or omission of the Customer or its employees or agents; or

(b) relates to actions of the Supplier which were expressly or impliedly authorised by the Customer, or by the Customer’s employees or agents.

15. Termination

15.1 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:

(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment;

(b) the other party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

(c) the other party becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency, administration, receivership or liquidation.

On termination of this agreement under this clause 15:

(d) all existing Orders will terminate automatically;

(e) the Customer must immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice (including for Hardware and Software orders placed that cannot be cancelled by the Supplier in the ordinary course of business), which shall be payable in accordance with clause 9.3

(f) the Customer must, within a reasonable time, return all of the Supplier’s Equipment. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of the Supplier’s Equipment. Until the Supplier’s Equipment has been returned or repossessed, the Customer shall be solely responsible for its safe keeping;

(g) the Supplier must on request return any of the Customer Materials not used up in the provision of the Services; and

(h) the following clauses will continue in force: clause 1 (Interpretation), clause 7 (Non-solicitation), clause 10 (Intellectual property rights), clause 13 (Confidentiality), clause 14 (Limitation of remedies and liability), this clause 15 (Termination), clause 20 (Waiver), clause 21 (Severability) and clause 26 (Governing law and jurisdiction).

16. Force Majeure

16.1 Neither party is in breach of this agreement or is liable to the other party for any loss incurred by that other party as a direct result of a party (Affected Party) failing or being prevented, hindered or delayed in the performance of its obligations under this agreement where such prevention, hindrance or delay results from events, circumstances or causes beyond the Affected Party’s reasonable control (Force Majeure Event).

16.2 The Affected Party will be entitled to a reasonable extension of time for performing its obligations under the agreement, however, the Affected Party must continue to use all reasonable endeavours to perform those obligations.

16.3 The performance of the affected obligations must be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.

17. Assignment and subcontracting

17.1 Neither party may assign any right arising out of this agreement, or novate the agreement, without the other party’s prior written consent, which must not be unreasonably withheld. The Supplier may subcontract any of its obligations under this agreement and remains responsible for performance of the Services under this agreement.

18. Variation

18.1 An amendment or variation of any term of this agreement must be in writing and signed by each party.

19. Modern Slavery

19.1 In this clause 19: Guiding Principles on Business and Human Rights means the United Nations’ Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework available here; and

19.2 Modern Slavery has the same meaning as it has in the Modern Slavery Act 2018 (Cth).

19.3 The Supplier must take reasonable steps to identify, assess and address risks of Modern Slavery practices in the operations and supply chains used in the provision of the Service.

19.4 If at any time the Supplier becomes aware of Modern Slavery practices in the operations and supply chains used in the performance of the Services, the Supplier must as soon as reasonably practicable take all reasonable action to address or remove these practices, including where relevant by addressing any practices of other entities in its supply chains.

20. Waiver

20.1 No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with this agreement unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.

21. Severability

21.1 If the whole or any part of a provision of this agreement is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.

22. Entire agreement

22.1 This agreement states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations, proposals and discussions in respect of its subject matter.

23. Relationship of the parties

23.1 Nothing in this agreement gives a party authority to bind any other party in any way or imposes any fiduciary duties on a party in relation to any other party.

24. Notices

24.1 All notices under this agreement must be in writing

24.2 A notice will be taken to be received:

(a) If hand delivered, on delivery; or

(b) If sent by email, on receipt of a non-automated reply or other form of communication confirming or indicating that the notice has been received.

25. Counterparts

25.1 This agreement may be executed in any number of counterparts.

26. Governing law and jurisdiction

26.1 This agreement is governed by the law in force in New South Wales, Australia.

26.2 Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement.

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