Terms & Conditions

Applicability and Acceptance of these Terms and Conditions

By entering into this Agreement, approving the Quote and/or purchasing Goods and Services from the Company, You accept and agree to be bound by these Terms.

If the Customer requests that the Company provide any of the Additional Services, the Company may agree to do so in accordance with the terms of this Agreement or as set out in any Quote or other agreement entered into between the Company and the Customer.

The Company will give the Customer reasonable notice of a material amendment by email, through the Customer portal, on an invoice or by publishing the amended Terms on the Website.

A material amendment will apply prospectively from the date stated in the notice and will not alter Charges or Services already supplied.

If an amendment materially and adversely affects an ongoing Service during a committed term, and the amendment is not required by Law or by a Third Party Product supplier, the Customer may give written notice terminating the affected Service before the amendment takes effect. The Customer remains liable for accrued Charges and unavoidable Stranded Costs.

The Company will use reasonable efforts to investigate and, where reasonably practicable, resolve any issues related to the Services, Additional Services, or Goods. Unless a specific Service Level expressly applies, the Company does not guarantee that an issue will be resolved within a particular period or that a particular outcome will be achieved. The Customer agrees and acknowledges that the Company may limit the amount of time allocated to resolving an issue to a timeframe it considers reasonable and appropriate based on: (i) the issue is outside the agreed scope, (ii) the amount of time spent or will likely be spent in resolving the issue against the typical resolution times for the same or similar issues, (iii) the Customer or a third party taking action, (iv) further work requires the Customer’s approval to incur additional Charges, or (v) continuing the work would create a material security, legal or operational risk.

The Company represents that:

it will perform the Services and Additional Services with due care and skill in accordance with applicable industry standards;

it is authorised to provide the Services and Additional Services to the Customer and that it has all the necessary licences, permits and approvals to provide the Services and Additional Services; and

at the date of executing this Agreement, the Company will use reasonable endeavors to identify any actual conflict that materially affects its ability to perform the Services and, if identified, will notify the Customer and propose a reasonable way to manage it (between the interests of The Company and the Customer), in relation to the performance of the Company obligations under this Agreement.

Application of service-specific terms:

Any clause in these Terms that relates to onboarding, offboarding, monitoring, patching, backup, hosted services, data retention, service levels or other managed service features applies only to the extent those features are included in the Quote or are otherwise expressly agreed in writing between the parties.

Relationship to any Master Services Agreement (MSA)

These Terms are intended to operate as the Company’s standalone terms and conditions for general use across the Company’s client base, including where the Customer is not under a master services agreement.

If the Company and the Customer enter into a separate master services agreement (MSA) and any schedules or addendums under that MSA, then (to the extent of any inconsistency) the MSA and its schedules/addendums prevail over these Terms for the services covered by the MSA.

Where the MSA applies, these Terms apply only to the extent they are expressly incorporated into the MSA or a Quote, and then only to the extent of that incorporation.

Service boundaries

Unless expressly stated in the Quote, the Services do not include project work, new system implementations, major migrations, software development, bespoke security engineering, or remediation following a cyber incident, and those items (if requested) will be quoted separately.

Supply of Goods and Services

The supply of Goods and Services is contingent upon You complying with this Agreement.

The supply of Goods and Services by the Company is subject to availability of the Goods and Services and Additional Services.

Any order cancellation must be in writing and is subject to the Company’s approval.

Prices

Unless otherwise stated, all wholesale Prices quoted are exclusive of settlement discount and GST, duty, taxes or any other statutory charge or fee payable in connection with the sale of the Goods to You by the Company.

Subject to any fixed pricing expressly stated in a Quote or MSA, the Company reserves the right to amend its standard rates and/or Prices from time to time by giving 30 days’ written. The changed rates apply only to Services supplied after the effective date of the change.

All Prices do not include shipping and posting costs.

Notwithstanding the preceding clauses, the Customer acknowledges and agrees that each year the Company may increase Charges by the greater of the CPI rate, or 5.9% without prior notice to the Customer. The Company will give the Customer at least 30 days’ written notice of the adjustment (which may be given by email or on an invoice). The Customer agrees that any change in the Charges under this clause may be notified to the Customer in the Company invoice.

The Company may pass through to the Customer any increase in the cost of a Third Party Product, foreign exchange adjustment, tax, duty or supplier charge from the date on which the increased cost is incurred by the Company. Where reasonably practicable, the Company will give the Customer prior written notice.

Title

Until each invoice is paid in full, ownership of all Goods supplied remains with the Company.

Risk

The risk of the Goods passes to You on delivery, and delivery to the carrier constitutes delivery. The Company accepts no responsibility for the Goods once they have been delivered to You.

Third Party Software

This clause applies to the extent that the Customer purchases Third Party Software in connection with this Agreement. The supply of Third Party Software is independent of the provision of Services and will be specified in the relevant quote or proposal from the Company.

Where the Company supplies Third Party Software to the Customer, the Customer acknowledges and agrees that its access to and use of such Third Party Software is governed by the third party licence terms between the Customer and the licensor (Third Party Licence Terms) and Customer is solely responsible for its compliance with such Third Party Licence Terms.

In addition to the Customer's compliance with these Terms and Conditions and the relevant Third Party Licence Terms, if and to the extent that the Customer has purchased Microsoft Cloud Solution Products through the Company, the Customer acknowledges and agrees to be bound by the terms and conditions set out herein.

The Customer may request that the Company procure a Third Party Software licence on the Customer's behalf that does not allow for monthly subscription terms and may be licenced on an annual or multi-year basis. The relevant term of the subscription with a Third Party Software provider will be set out in the proposal or quote to the Customer for approval by the Customer. The Customer acknowledges and agrees that upon expiration or termination of this Agreement, the Customer will pay the Company the remaining fees payable (in full, as a single lump sum payment) under a Third Party Software provider's fixed term contract or licence as a Stranded Cost in accordance with clause 26.

Third-party terms

The Customer acknowledges that:

access to and use of a Third Party Product may be subject to the supplier’s licence terms, acceptable use policy, privacy policy and other applicable terms;

the Customer authorises the Company to accept applicable third-party terms on the Customer’s behalf where reasonably required to provision the Third Party Product, provided that the Company makes those terms available to the Customer on request;

the availability, functionality, security and performance of a Third Party Product may depend on matters outside the Company’s reasonable control;

except to the extent caused by the Company’s breach of the Agreement, negligence or wilful misconduct, the Company is not liable for a failure, vulnerability, outage or act or omission of a third-party supplier; and

that the Company makes no representations and gives no warranties in respect of the Third Party Software, including that the Third Party Software is fit for any particular purpose and the Company is not responsible for any security, maintenance or upkeep of such Third Party Software.

Committed subscriptions

If the Customer approves a Third-Party Product with an annual, multi-year, minimum-user or other committed term, the Customer must pay all Charges relating to that commitment for its full term, notwithstanding suspension, early termination or a reduction in the Customer’s requirements.

Substitution of Third-Party Products

The Company may substitute a Third-Party Product where:

the existing product is withdrawn, materially changed or no longer reasonably suitable;

the substitute has substantially equivalent functionality; and

the substitution does not materially reduce the Services.

The Company will obtain the Customer’s prior approval if a proposed substitution materially changes the functionality, Charges, data-handling arrangements or customer obligations.

Cyber Security

The Customer acknowledges and agrees:

No cyber security service, software, monitoring system or control can eliminate all cyber risks or guarantee that the Customer Environment or Customer Data will remain secure, available or free from a Cyber Breach. Cyber Security aims to minimise the relevant risk of Cyber Breaches to the Customer, the Company makes no guarantees or warranties regarding any Cyber Security provided or that any Cyber Security will be fit for purpose or will be effective in protecting the Customer from, or preventing, Cyber Breaches or eliminating the risk of Cyber Breaches entirely;

Unless expressly included in the Quote or MSA, the Services do not include cyber incident response, forensic investigation, data or system recovery following a Cyber Breach, legal/regulatory/insurance advice, notification to individuals, insurers or Authorities. Cyber Security services may be provided at a point in time and should be assessed and reviewed by the Customer to ensure they meet the Customer’s needs and are appropriate for the Customer business.

Cyber Security services do not constitute Customer legal or regulatory advice; and

Cyber Security may be provided by third parties, including Third Party Software providers. Such Third Party Software may be vulnerable to previously unknown or undisclosed vulnerabilities, or bypass via new attacker techniques. As a result, the Customer agrees that The Company is not responsible for the ongoing quality or effectiveness of the Cyber Security or Third Party Software provided.

The Customer remains responsible for:

maintaining appropriate cyber insurance;

implementing reasonable administrative, physical and technical security controls;

promptly implementing Recommendations or accepting the risk of not doing so;

securing user accounts, passwords, authentication methods and access credentials;

maintaining appropriate backups unless backup services are expressly included; and

determining and complying with its legal and regulatory obligations.

The Company is not responsible for a Cyber Breach to the extent caused or contributed to by:

the Customer or its Personnel;

compromised credentials not caused by the Company;

a Third Party Product or third-party supplier;

an undisclosed or previously unknown vulnerability;

the Customer’s failure to implement a Recommendation; or

systems, products or services outside the agreed scope.

Clause REF _Ref241765742 \r \h 8.3 does not exclude or limit the Company’s liability to the extent the Cyber Breach was caused by the Company’s breach of the Agreement, negligence, wilful misconduct or failure to implement security control expressly included in the Services.

Artificial Intelligence

The Company may use approved artificial intelligence, machine-learning or automated tools to assist in providing the Services, including for monitoring, analysis, threat detection, documentation, scripting, summarisation and administrative tasks.

Where the Company uses an artificial intelligence tool, the Company will:

use the tool only for purposes connected with providing the Services;

take reasonable steps to ensure that use of the tool is consistent with the Company’s confidentiality and privacy obligations;

not knowingly input Customer Data into a public or unapproved artificial intelligence service where that service may use Customer Data to train a generally available model; and

apply human review where reasonably appropriate having regard to the nature and significance of the output.

The Customer acknowledges that artificial intelligence and automated outputs may be incomplete, inaccurate or unsuitable for a particular purpose. Unless expressly agreed otherwise, those outputs are provided as an aid only and do not replace the Customer’s own review, judgment, professional advice or decision-making.

The Customer must not:

provide the Company with content for use in an artificial intelligence tool unless the Customer has the right to use and disclose that content;

direct the Company to use an artificial intelligence tool in an unlawful manner; or

input confidential information, personal information, credentials or security-sensitive information into an artificial intelligence tool supplied or recommended by the Company contrary to the Company’s instructions or applicable third-party terms.

The Company is not liable for:

the Customer’s unauthorised, unlawful or improper use of an artificial intelligence tool;

a decision made by the Customer in reliance on artificial intelligence output without appropriate review; or

a change, withdrawal, failure, security vulnerability or output of a third-party artificial intelligence service, except to the extent caused by the Company’s breach of the Agreement, negligence or wilful misconduct.

Ownership and permitted use of inputs and outputs are subject to applicable Law, the rights of the Customer and the applicable third-party terms. Nothing in this clause transfers ownership of Customer Data to the Company.

Credit Terms

The Customer shall pay the Charges for the Services and Goods provided hereunder and subject to the payment terms as set forth in their Invoice issued by the Company.

Payment of all accounts shall be made in accordance with the payment terms noted on the invoice.

All Charges are carried out on a ‘per hour’ basis as per the current rates at the time that the Service was performed, with fifteen-minute billing increments rounding up to the nearest fifteen-minute increment. Time spent may include investigation, troubleshooting, configuration, advice, coordination, documentation and follow-up work reasonably required to perform the Services. All time spent directly performing a Service or solution may be Charged including any research, phone support, include Services conducted remotely. The Company may require the Customer to pay the Charges under this Agreement in advance if it considers it reasonably necessary. Unless specified otherwise, all work performed will be payable within the payment terms of the Invoice, without deduction or set-off.

Where a Quote states a minimum chargeable time (for example, 30 minute minimum or a 1 hour minimum after hours), the Quote prevails to the extent of any inconsistency.

Call out fees will apply to any Service performed at a Customer's nominated location as per the current rates at the time that the Service was performed.

Penalty rates may apply for work performed outside of the Company’s standard Business Hours.

Travel time may be Charged for all work outside of the metropolitan area of the Customer’s nominated service location or outside the Company’s standard service area, as notified in the Quote or Invoice.

Travel costs (including airfares, transfers and accommodation) may be charged where onsite services are performed outside the metropolitan area of the Customer’s nominated service location or outside the Company’s standard service area, as notified in the Quote or Invoice.

Parking expenses may be charged for all work conducted where onsite parking is not provided by the Customer.

to include the invoice number as the reference to ensure the payment is allocated to Your account in the correct manner; and

if Your payment does not reflect the statement amount, a brief note must be included regarding any variations.

if it is determined by the Company, acting reasonably, that the Customer Environment has materially changed, the Company reserves the right to alter or otherwise re-negotiate any of the terms of the Agreement or to vary the Services provided to suit the new Customer Environment.

the Company may at any time without notice, terminate or suspend Your right to purchase Goods and Services from the Company on credit and shall not be liable for any damages, costs, penalties or charges incurred by You as a result of the non-supply of the Goods and Services by the Company.

Suspended accounts may attract a default account keeping fee of two percent (2%) per month or $25.00 per invoice whichever is the greater amount, until the account is returned to the agreed trading terms. You agree that that this is a fair and reasonable charge and is directly relevant to the likely damage that the Company might suffer as a result of non-payment by You. Interest will be calculated on all outstanding amounts from the date of issue of the outstanding invoice.

The Company reserves its rights to automatically suspend all accounts unpaid at fourteen (14) days from the due date for payment, no further orders will be shipped, and we will suspend all further Services to be provided to You.

Without prejudice to any other remedies The Company may have under the Agreement or otherwise, if the Customer fails to pay any Invoice by the due date, the Company may, without notice to the Customer, charge interest at the Interest Rate on the outstanding Invoices or any other monies due and unpaid by the Customer, until such time as the Customer has paid, in full, the outstanding amount and any interest accrued on the outstanding amount, and the Customer shall pay to the Company on demand any reasonable costs incurred by the Company in relation to collection of any amounts owing, including any legal costs incurred by the Company, on a full indemnity basis.

All invoices shall immediately become due and payable in the event of default on payment by You of any invoice or account, regardless of whether or not some invoices may not otherwise have become due for payment.

GST

All amounts specified as payable by the Customer to or for the benefit of the Company under this Agreement are exclusive of any duty or tax.

If GST is payable on any supply made under or in relation to this Agreement, the recipient of the supply must pay the GST Amount to the supplier in addition to and at the same time as the net amount payable for the supply.

If a party is required to make any payment or reimbursement, that payment or reimbursement must be reduced by the amount of any input tax credits or reduced input tax credits to which the other party (or the representative member for a GST group of which it is a member) is entitled, for any acquisition relating to that payment or reimbursement.

Clauses 11.1 to 11.3 are subject to any other specific agreement regarding the payment of GST on supplies.

Credit Disputes

The Customer must make full payment of the Invoice notwithstanding any dispute as to the amount stated on any invoice.

The Customer shall notify the Company in writing of any dispute with respect to the whole or any portion claimed in an invoice submitted by the Company. Such notice must be made in good faith and given within 7 days of receipt of the relevant invoice.

If it is determined by the Company, acting reasonably, that some or all of the amount in dispute ought not to have been paid by the Customer, the Company shall credit that amount towards the payment of the next invoice issued by the Company or where there is to be no further invoice issued by the Company, the Company shall reimburse to the Customer the relevant amount.

The Customer must notify the Company of any Charge disputed in good faith, with supporting documentation, or the Customer shall be deemed to agree to such Charges and no adjustments to Charges or invoices will be made.

Any disputes will not negate the requirement to pay any and all outstanding invoices within the 14-day term.

Credit History

To the extent permitted by Law, you hereby give the Company authority to make enquiries as to the credit and financial responsibilities of You and/or Your Directors and/or Shareholders in order to suitably qualify Your capacity to incur debt and repay any amounts to the Company. The Company may assess your creditworthiness before or whilst the Company supplies Goods or Services on credit and the Company may refuse, limit, suspend or withdraw credit facilities at any time, if the Company reasonably considers that You present an unacceptable credit risk. These enquiries shall include but not be limited to obtaining reports from credit reporting agencies and references from current and/or past providers of credit to You.

In accordance with f the Privacy Act 1988 (Cth), You acknowledge that the Company has informed You that certain items of personal information about You contained in or relating to Your Application for Credit, and permitted to be kept on a credit information file, might be disclosed to a credit reporting agency. Furthermore, You agree, in accordance with the Privacy Act 1988 (Cth) that use by the Company of the relevant information referred to in those sections may occur for the purpose of assessing Your credit application.

Lien

The Company reserves the following rights in relation to the Goods until all amounts owed by You to the Company are fully paid:

Ownership of the Goods remain with the Company.

You authorise an authorised agent or representative of the Company to enter Your premises (or the premises of any associated Company) where the Goods are located, without liability for trespass or any resulting damage, and retake possession of the Goods and You agree that the Company has an irrevocable license to do so.

You authorise the Company to keep or resell any Goods repossessed pursuant to this Clause 14 of this Agreement.

If the Goods are resold by You, You shall

hold such part of the proceeds of any such sale as represents the invoice Price of the Goods sold in a separate identifiable account as the beneficial property of the Company and shall pay such amount to the Company upon demand.

Notwithstanding the above, the Company shall be entitled to maintain an action against You for the invoice Price.

In connection with the Goods, while they remain the property of the Company, You agree that:

You have no right or claim to any interest in the Goods to secure any liquidated or un-liquidated debt or obligation that the Company may owe You;

You cannot claim any lien over the Goods;

You warrant and undertake that You will not create any absolute or defensible interest in the Goods in relation to any third party except as may be authorized by the Company in writing; and

where You are in actual or constructive possession of the Goods:

You will not deliver them or any document of title to the Goods to any person except as directed by the Company; and

You are in possession of the Goods as a bailee of the Goods and owe the Company the duties and liabilities of a bailee.

must not supply any of the Goods to any person outside of its ordinary or usual course of business;

must not allow any person to have or acquire any security interest in the Goods;

must insure the Goods for their full insurable or replacement value (whichever is higher) with an insurer licensed or authorised to conduct the business of insurance in the place where You carry on business.

14.8.1 it holds the proceeds of re-

supply of the Goods on trust for and as agent for the Company immediately when they are receivable or received;

14.8.2 You must either pay the amount of the proceeds of re-supply to the Company immediately when they are received or pay those proceeds into an account with a bank or a financial institution or deposit taking institution as trustee for the Company.

Charges and Financial Security

As security for payment to the Company of all moneys payable by You and for Your obligations generally under this Agreement, You charge in favour of the Company the whole of your undertaking, property and assets (including without limitation all of your interests, both legal and beneficial, in freehold and leasehold land) both current and later acquired. You irrevocably appoint each officer as your attorney to do all things necessary to create and register each such charge.

The Company may require the Customer to provide appropriate Financial Security prior to the Commencement Date or at any time during the course of the Agreement. In that event, the Customer will procure the relevant Financial Security to The Company in a form acceptable to The Company. The Customer acknowledges and agrees that The Company has the right to not commence or continue any part of the Services or Adhoc Services or deliver the Software or Equipment, until the Customer has complied with this clause.

If the form of Financial Security to be provided is in the form of a bank guarantee, the Customer must provide the Company, within ten (10) Business Days of the date of this Agreement or from the date that the Company gave notice that it requires a Financial Security, an irrevocable, unconditional bank guarantee in the amount and form acceptable to the Company and given by a licensed Australian bank acceptable to the Company.

The Customer acknowledges and agrees that the Company will have a right to have recourse to Financial Security, and the Company will be entitled to use the cash obtained as a consequence of making a call upon any Financial Security in its discretion

16. Personal Property Securities Act 2009 (Cth)

You acknowledge that this Agreement will constitute a security agreement which create a security interest in favor of the Company over all Your present and after acquired property, including all Goods supplied by the Company to You, to secure the payment of the Price or any other amount owing under this Agreement from time to time including further advances.

The security interest will continue to apply as an interest in the Collateral for the purposes of PPSA with priority over registered or unregistered security interest.

The Company may register the security interest as PMSI on the Personal Property Securities Register (“PPSR”) under the PPSA without providing further notice to You. You agree the Company is not required to disclose information pertaining to the Company’ security interest to an interest party unless required to do pursuant to PPSA or under the general law.

17.Undertaking

You agree and undertake:

Warranties

The Customer represents and warrants that:

the execution and performance by it of the Agreement does not and shall not in any respect violate the provisions of:

any Law or Authority;

its constitution or other constituent documents; or

any other document or agreement which is binding on it or its assets;

it is not knowingly in default or difficulty under any deed, agreement, financial commitment or other document or obligation which is reasonably likely to adversely affect its ability to comply with its obligations under the Agreement;

no Insolvency Event has occurred and is continuing in relation to it; and

no litigation or administrative or other proceedings before or of any Authority have, to its knowledge, been initiated or threatened against it or any of its assets which would or might have a materially adverse effect upon its business, assets or financial condition.

19. Reliance

The Parties acknowledge that each Party has entered into the Agreement in reliance upon the warranties in this clause 18.

For the avoidance of doubt, a breach of any of the warranties set out in this clause 18 shall be a material breach of the Agreement.

Indemnities

The Customer indemnifies and must keep indemnified the Company from and against all Claims and Liabilities sustained, recovered or made against the Company or its servants, contractors or agents by a third party in connection with:

any material breach of the Agreement by the Customer;

any illness, injury or death of any person, any damage to any tangible or real property caused or contributed to by the Customer;

any act, omission, negligence or default caused or contributed to by the Customer;

any Cyber Breach; and

any Liability in consequence of, or resulting directly out of, the use of the Services by the Customer.

The Company must:

notify the Customer promptly of a Claim for which the Company seeks indemnity;

take reasonable steps to mitigate its loss; and

not settle the Claim in a manner that admits liability on behalf of the Customer without the Customer’s consent, not to be unreasonably withheld.

Release

The Customer releases the Company and its Personnel to the fullest extent permitted by Law, from all Claims and demands in connection with:

any Cyber Security to the extent that such Cyber Security are provided by third party providers (including Third Party Software providers); and

Cyber Breach caused or contributed to by the Company, its Personnel or third-party provider (including Third Party Software providers), including but not limited to:

any statutory fines or

penalties;

the Customer's costs incurred as a result of complying with clauses REF _Ref241765686 \r \h 3 and REF _Ref241765883 \r \h 4; and

any Claims by third party insurers.

Limitation of Liability

Non-excludable rights

Nothing in the Agreement excludes, restricts or modifies a right, guarantee, condition, warranty or liability that cannot lawfully be excluded, restricted or modified.

Consumer guarantees

Where the Company is permitted to limit its liability for breach of a statutory guarantee, the Company’s liability is limited, at the Company’s option:

for Goods, to replacement, repair, supply of equivalent goods, or payment of the cost of replacement or repair; and

for Services, to supplying the Services again or paying the cost of having the Services supplied again.

Excluded loss

Subject to clauses 22 and 23, neither party is liable to the other for:

loss of profit, revenue, business opportunity, anticipated savings, goodwill or reputation;

loss of use or business interruption;

loss, corruption or reconstruction of data, except to the extent data backup or recovery is expressly included in the Services; or

indirect, special or consequential loss, arising out of or in connection with the Agreement.

Liability cap

Subject to clauses 22 and 23, the Company’s aggregate liability arising out of or in connection with the Agreement, whether in contract, tort, statute or otherwise, is limited to the total Charges paid or payable by the Customer for the affected Services during the six months immediately preceding the event giving rise to the Claim.

If the affected Services have been provided for less than six months, the cap is the Charges paid or payable for the period during which those Services were provided.

Exclusions from cap

The cap in clause 24.1 does not apply to:

fraud or wilful misconduct;

death or personal injury caused by negligence;

liability that cannot lawfully be limited; or

the Customer’s obligation to pay Charges properly due under the Agreement.

Customer-controlled events

The Company is not liable to the extent a loss was caused or increased by:

the Customer’s failure to provide complete and accurate information;

the Customer’s failure to comply with a Recommendation;

modifications made by the Customer or a third party without the Company’s approval;

unsupported, unlicensed or end-of-life systems;

a Third-Party Product or supplier outside the Company’s reasonable control; or

an event occurring before the relevant Services commenced.

Mitigation

Each party must take reasonable steps to mitigate any loss arising from a breach of the Agreement.

Default

If a Default Event occurs, the Company may, in its absolute discretion and without prejudice to any other rights that it may have at any time prior to rectification of the Default Event, either:

require the Customer to immediately pay all amounts in relation to any Services or Additional Services which have been invoiced but remain unpaid; and/or

temporarily and indefinitely suspend the provision of Services; and/or

require the Customer to pay in advance before supplying any further Services or service records to the Customer; and/or

confirm the Agreement as a binding Agreement and seek damages and/or any other remedies legally available to the Company; and/or any other remedies legally available to the Company; and/or

treat such Default Event as a repudiation of the Agreement by the Customer and accept the Customer’s repudiation, terminate the Agreement and recover from the Customer any amount payable.

In the event that you Default on these Terms, You consent to pay the Company any costs, charges and expenses (including legal fees and costs on a full indemnity basis as a liquidated debt) incurred by the Company in connection with the entry into this Agreement, the exercise or attempted exercise of any power, right or remedy under these Terms and/or the failure of You to comply with these Terms.

The Company may, in its absolute discretion and without prejudice to any other rights that it may have, immediately suspend or terminate the Services if it determines, acting reasonably, that the Customer Environment has materially changed from the date of this Agreement.

Termination

Upon termination or expiry of this Agreement for any reason, the Customer must pay the Company all amounts owing under this Agreement as at the termination/expiry date, together with any Stranded Costs (paid in full as a single lump sum payment).

If the Agreement is terminated before completion of any minimum term or committed service period stated in the Quote (if any), the Customer must also pay the Early Termination Fee. The Customer agrees that the Early Termination Fee is a genuine pre-estimate of the loss that would be suffered by the Company as a result of early termination.

Termination does not affect rights or liabilities accrued before termination.

Nothing in this clause requires the Customer to pay Charges for a period after termination where the Customer terminates because of the Company’s unremedied material breach, except for unavoidable Third-Party Product commitments approved by the Customer and Stranded Costs that cannot reasonably be avoided.

Intellectual Property

The Parties acknowledge that the Company owns all Intellectual Property Rights subsisting in the Services and any documentation supplied by the Company in connection with the Services. Nothing in the Agreement transfers ownership of any of the Intellectual Property Rights subsisting in the Services or related documentation.

The Customer must not exercise any of the rights of the Company as owner of the Intellectual Property Rights subsisting in the Services and related documentation except as expressly permitted by the terms of the Agreement.

Confidential Information

Where a Party (“Recipient”) receives Confidential Information from the other Party (“Discloser”) during the Term, and after termination or expiration of the Agreement, the Recipient shall keep that information confidential and shall:

not publish or disclose the Confidential Information to any person except as permitted under the Agreement or with the prior written consent of the other Party; and

not use the Confidential Information for any purpose, except where strictly necessary for the performance of its obligations under the Agreement.

The Recipient may disclose Confidential Information on a confidential basis to any officer or employee of that Party to the extent it is reasonably necessary for the performance of its obligations under the Agreement.

The Recipient shall ensure that each officer or employee that receives Confidential Information is informed of, and shall comply with, the confidentiality obligations of the Recipient under the Agreement.

This clause does not apply to any Confidential Information which:

is in or comes into the public domain, other than through a breach by the Recipient of an obligation of confidentiality under the Agreement;

can be shown by the Recipient to have been known to the Recipient before being disclosed to it by the Discloser;

subsequently comes lawfully into the possession of the Recipient from a third party;

is required by compulsion of Law to be disclosed to a third party; or

is disclosed to a Party's legal advisers in the course of obtaining legal advice.

Subject to the limitations set forth below in this clause, the Customer hereby grants to the Company, and the Company hereby accepts, access to and use of the Customer’s and/or its third party licensor’s proprietary materials (the “Licenced Materials”) solely for the purpose of providing the Services.

Customer warrants and represents that it has, or will use commercially reasonable efforts to obtain, the right and authority to grant such access to and use all of the Licensed Materials to the Company hereunder.

The Company will be entitled to rely on the accuracy and completeness of information prepared and/or provided by the Customer.

The Company shall not be liable to the Customer or any third party for any injury or loss arising from errors, omissions, or inaccuracies in documents or other information that is provided by the Customer.

No Guarantee

The Company makes no guarantee that the investigations undertaken by the Company following a cyber incident will confirm whether data has been released to third parties.

Reporting

Where required by Law, the Company may notify and cooperate with relevant authorities (including the Australian Cyber Security Centre) in relation to a cyber incident, including by providing information reasonably necessary to meet legal or regulatory obligations. Unless required by Law, the Company has no obligation to make any external report on the Customer’s behalf.

Jurisdiction

This Agreement is deemed to have been entered into in the State of Queensland, Australia. Any legal action arising out of, or in respect of this Agreement and/or its interpretation must be brought only in the State of Queensland or another jurisdiction if it is deemed appropriate by the Company.

The parties further agree to issue any proceedings in the Brisbane registry of the appropriate court having monetary jurisdiction over the matter or another jurisdiction if it is deemed appropriate by the Company.

Amendment

The terms contained in this Agreement are binding, and cannot be altered except by clear, written acceptance of the alteration by the Company and You.

Counterparts

This Agreement may be executed in any number of counterparts. Each counterpart is an original but the counterparts together are one and the same Agreement. The Agreement may be entered into by and becomes binding on the parties named in the Agreement upon one party signing the Agreement that has been signed by the other (or a photocopy or email copy of that Agreement) and transmitting a email copy of it to the other party.

Waivers

Any failure or delay by any Party to exercise any right under the Agreement shall not operate as a waiver and the single or partial exercise of any right by that Party shall not preclude any other or further exercise of that or any other right by that Party.

Remedies

The rights of a Party under the Agreement are cumulative and not exclusive of any rights provided by Law.

Severability

Any provision of the Agreement which is invalid in any jurisdiction shall be invalid in that jurisdiction to that extent, without invalidating or affecting the remaining provisions of the Agreement or the validity of that provision in any other jurisdiction.

Governing Law

The Agreement shall be governed by laws of Queensland; Australia and the parties submit to the non-exclusive jurisdiction of the courts of Queensland and the Commonwealth of Australia siting in Queensland.

Assignment

The Customer shall not transfer any right or liability under the Agreement without the prior written consent of the Company, except where the Agreement provides otherwise.

The Company may without notice transfer any right or liability under the Agreement. In the event that the Company seeks to assign or novate the Agreement to a third party that the Customer determines (acting reasonably) is a competitor of the Customer, the Customer may immediately terminate this Agreement by providing written notice to the Company.

Where required by the Company to effect the transfer of any such rights or liabilities, the Customer shall sign and enter into an agreement on substantially similar terms and conditions to the Agreement with the Party to which the Company transfers its rights and liabilities.

Notices

Any notice to or by a Party under the Agreement shall be in writing and signed by the sender or any lawyer acting for that Party or, if a corporate Party, an authorised officer of the sender, including any director, secretary or person notified in that capacity by that corporate Party, or under the seal of or any power of attorney conferred by the sender.

Any notice may be served by delivery in person or by post, e-mail or transmission by facsimile to the address, e-mail address or number of the recipient and shall be effective for the purposes of the Agreement if delivered in person upon delivery to the recipient, if sent electronically by email when confirmation is received from the relevant internet service provider that the transmission was successfully delivered on the day of transmission, or where transmitted by facsimile, production to the sender of a facsimile transmittal confirmation report.

Non-Solicitation of Employees

The Customer agrees that it will not solicit or offer employment to any employee of the Company, whether directly or indirectly, during their employment with the Company or within 1 year of termination of their employment, except with the written approval of the Company in each case. In the event that an employee of the Company becomes employed by the Customer within the prescribed 1 year period, a recruitment fee of 50% of that employee's wage at the time of their exit from the Company will be payable from the Customer to the Company.

Acknowledgment

You acknowledge that You have carefully read, fully understood and agreed to be bound by all the provisions of this Agreement.

The Company will not be liable for any loss and/or damages suffered whatsoever, whether directly and/or indirectly, from Your failure to obtain independent legal advice in relation to this Agreement.

Customer Environment

Subject to general fluctuations in the number of devices supported, the Company reserves the right to vary this Agreement and/or the Charges if the number of supported users increases or decreases significantly, and/or the Customer Environment changes materially. The Company will advise the Customer in writing if it wishes to vary this Agreement beyond the typical device count fluctuations.

For the avoidance of doubt, a breach of any of the provisions in this clause shall be a material breach of the Agreement.

Disaster Recovery

The Company will provide its Services at the applicable fees at which the Service or Additional Services took place without guarantee of success to recover a failed, supported device under the Agreement if:

the device did not fail because of some action or carelessness of the Customer's staff or a third party, and;

it has a current manufacturer’s warranty, and;

it has a The Company endorsed fast-recovery infrastructure in place before the failure. For servers this means image-based recovery solution and for PCs this can include image-based solutions or deployment-services-based solutions.

The Company may determine at any time that recovery is not possible and that no further Services will be provided under the Agreement.

Monitoring and Patching

Whilst the Company’s monitoring systems are always running on the Customer Environment, and alerts will be raised at the time that they are detected by the monitor, the Company will only actively review alerts during regular Business Hours. Alerts generated outside of Business Hours are reviewed at the beginning of the next Business Day.

The remote management software will be installed onto all of the Customer's Endpoint and Server systems that are managed under this Agreement. This software facilitates the automated management and reporting tasks that are at the core of this Agreement as well as enabling the Company consultants to provide remote support to the Customer.

Only patches that are able to be automatically deployed via the Company’s management tools will be included in the Automated Patching and Maintenance processes. Any patches that require manual installation and/or intervention will be charged as per the Charges at the time that the Service took place.

The Customer acknowledges that the Company is reliant on third party vendors in relation to the currency of automated patching and related security tools and that such tools are deployed on a pass-through, best efforts basis only. The Customer expressly acknowledges that automated patching does not protect systems including the Customer Environment from zero day exploits.

The Customer agrees to provide a weekly Maintenance Window in which the Company and any automated process are able to install patches and perform maintenance and scanning tasks. Systems may be rebooted without notice during this weekly Maintenance Window.

Access to Data

By entering into this Agreement the Customer declares that it understands and agrees that to facilitate the Service to the Customer, the Company will have full and unlimited access to all data on the Customer Environment.

Data shall only be accessed in the provision of Services to the Customer and shall be treated as confidential as per the terms of this Agreement.

To facilitate the remote management and support of the Customer Environment, the Customer declares that it understands and agrees that the Company may access any system without requiring approval or initiation from the End User.

For reporting and management purposes, information may be gathered about the Customer Environment including hardware information, and installed software. The Company certifies that this functionality will only be used in the provision Services to the Customer.

Privacy and data protection

Each party must comply with the Privacy Act 1988 (Cth) and other applicable privacy and data-protection Laws to the extent they apply to that party.

The Customer warrants that it has provided all notices and obtained all authorities and consents required to permit the Company and its approved Personnel and suppliers to access, use, process and disclose Customer Data for the purposes of providing the Services.

The Company may access, use, process and disclose Customer Data only:

to provide, support, secure and improve the Services;

to comply with Law;

to respond to a Cyber Breach or material security risk; or

as otherwise authorised by the Customer.

The Company may engage Personnel and third-party service providers to process Customer Data where reasonably necessary to provide the Services. The Company will take reasonable steps to require those persons to protect the confidentiality and security of Customer Data.

Each party must:

maintain reasonable security measures appropriate to the nature of the information it controls;

notify the other party promptly after becoming aware of a Cyber Breach materially affecting Customer Data in connection with the Services; and

reasonably cooperate in investigating and responding to the Cyber Breach.

Unless required by Law or expressly included in the Services, the Customer remains responsible for determining whether a Cyber Breach requires notification to an insurer, affected individual or Authority.

The Company does not acquire ownership of Customer Data.

Onboarding and Offboarding Process

Prior to the commencement of this Agreement the Company will conduct an on-boarding process to prepare the Customer to enter into this Agreement. Tasks including, but not limited to, attaching asset labels to all End Points and Servers, ensuring that all End Points and Servers have the software required to provide the Service to the Customer and completing all required information gathering and documentation processes will be performed. The Charges associated with the on-boarding process will be waived and will not be charged to the Customer, unless the Agreement is terminated early by either party under clause 26 or by the Company under clause 10.10 or 25, in which case the Early Termination Fee will be payable in accordance with clause 26 (which takes into account the costs associated with on-boarding).

During this process the Company may identify additional End Points and Server systems requiring management that do not appear on the Assets Under Management list (as specified by the Company from time to time) or identify systems that do not meet the minimum standards required by this Agreement (the minimum requirements for this are outlined in the Fixed Price Support Conditions). In this situation, the Company will inform the Customer of any changes and update the Agreement to reflect these changes as required.

Prior to the finalisation of this Agreement The Company will conduct an off-boarding process to prepare the Customer for the Company to no longer provide the Services to the Customer. Tasks such as removing asset labels, uninstalling management software, preparing documentation and password lists for the Customer and handover duties as applicable will be performed. The time taken to conduct this off-boarding process will be charged at the Company’s standard rates at the time that the Service took place. The Company will raise an invoice for the estimated fees to complete this job and will require full upfront payment of this, and all unpaid invoices to be made before off-boarding is to occur.

The Company agrees to make any Customer Data held by the Company (if any) available to the Customer for a period of 60 days after termination or expiry of this Agreement (Off-boarding Period). After the Off-boarding Period, the Customer agrees and acknowledges that the Company may (subject to any Laws) permanently and irretrievably delete all Customer Data in accordance with The Company's usual practices, including wiping or disposing of storage devices.

Unless otherwise agreed in writing, all hosted services, backup services or other services relating to the management, storage or backup of Customer Data will cease after the Offboarding Period. The Company may (at its discretion) provide limited continuation services beyond the Offboarding period provided the Customer pays the Company’s fees and any third-party costs upfront in full. The Customer remains responsible for ensuring Customer Data is properly offboarded before the end of the Offboarding Period.

Upon termination or expiry of the Agreement, the Customer must notify all third parties that the Company is no longer providing Services to the Customer and that all correspondence should be re-directed to the Customer. In the event that the Company receives correspondence from any third party regarding the Customer post termination or expiry of the Agreement, the Customer acknowledges that the Company has no obligation to notify the Customer.

Hardware

The Customer agrees that any hardware failures are the responsibility of the manufacturer and the Company can and will provide assistance with rectifying these issues but at no time will the Company be liable for repair, replacement or any losses suffered by the Customer through their unavailability or replacement or repair costs.

Software

With the exception of faulty media upon delivery, Software is not covered by any warranty or guarantee. It is the responsibility of the Customer to assess the suitability of any software for their Customer Environment. Any time spent by the Company in maintaining, troubleshooting, or fixing a problem determined to be caused by a software error may be charged at the Company’s standard rates at the time that the Service was carried out.

The Customer accepts any Liability caused by software changes due to updates of software, either automatic or manual. Any time spent by the Company in maintaining, troubleshooting, or fixing a problem determined to be caused by a software error may be charged at the Company’s standard rates at the time that the Service was carried out.

Supply of Equipment

Where the Company is to supply the Customer with goods (inclusive of both Hardware and Software), an invoice shall be raised upon the placement of the order and is payable within fourteen (14) days of the invoice date. Should this amount equal or exceed the value of $10,000 inc. GST, then a 30% deposit of the amount payable by the Customer to the Company prior to any order being placed and the balance of order is to be paid in full prior to the delivery of the goods to the Customer.

Modification to Numbers of Managed Systems

Should the Customer add to the number of End Points or Servers managed under this Agreement, this change will be automatically reflected in the next invoice. Subject to maintaining a minimum number of End Points or Servers as specified in Schedule B, should the Customer wish to decrease the number of End Points or Servers managed under this Agreement the Company must be notified in writing with 30 days' notice.

Should the Customer have Software as a Service ((SaaS) application included under this Agreement, such as Cloud based Anti-Virus or Anti-Spam software), the number of licences may fluctuate on a month-by-month basis without notification to the Customer. The numbers of licences billed for each SaaS is calculated automatically through the licensing portal of each product. The Customer will be provided with a list of billed licences upon request.

The number of End Points managed under the Agreement cannot be fewer than the smallest band listed for End Points as outlined in Schedule B and a reduction below this will result in the minimum band being billed in the Agreement.

Dispute Resolution

A party claiming that a dispute has arisen out of or in connection with this Agreement must as soon as reasonably practicable give notice to the other party specifying the nature of the dispute and the parties will submit themselves to the dispute resolution procedure set out in this clause 53.

When a dispute arises between the parties in relation to this Agreement, then the parties will attempt to resolve the dispute between themselves in good faith, and each party will do anything (including executing any document) reasonably required to give effect to the agreed resolution of the dispute. If a dispute is not resolved within thirty (30) days of a party notifying the other party of a dispute, either party may issue court proceedings.

Electronic Transactions

For the purposes of the Electronic Transactions Act 1999 (Cth) and any applicable State or Territory electronic transactions legislation,, each of the Company and the Customer:

hereby consent to the use of electronic communications for the purpose of signing this Agreement and to do all other acts and things as are necessary to execute this Agreement, in accordance with the Electronic Transactions Act 1999 (Cth) and any applicable State or Territory electronic transactions legislation, and the parties agree that this Agreement is legally binding and effective as if it had been executed in each other's presence;

acknowledge and agree that there is a reliable means of assuring the maintenance of the integrity of the information contained in this Agreement; and

acknowledge and agree that this Agreement will be readily accessible so as to be useable for subsequent reference.

I/We the undersigned declare that all information provided to the Company for the purposes of assessing Your suitability for credit, purchase and rental is true and correct in every particular.

I/We the undersigned further acknowledge that I/we have read understand and agree to the terms of this Agreement.

434340152082500

Phone. (07) 3114 2808 Email.accounts@realbytes.com.au www.realbytes.com.au

REAL BYTES PTY LTD ACN 620 082 706

TERMS AND CONDITIONS

This Schedule A applies only if one or more Additional Services are stated as included in the Quote.

Additional Services may include (for example):

onboarding activities (asset discovery, documentation uplift, deployment of tools);

offboarding/transition activities (handover documentation, data export, tooling removal);

backup, disaster recovery and restoration testing;

security services (e.g. EDR management, MFA/conditional access, vulnerability management);

hosting / cloud management; and

any other services described in the Quote as an “Additional Service”.

The scope, inclusions/exclusions, service levels (if any), and Charges for any Additional Service are as stated in the Quote (or otherwise agreed in writing).

Status of Schedule A.

Schedule A is a menu of possible additional services;

No Additional Service is included unless it expressly stated as included in the Quote (or otherwise agreed in writing); and

The scope, inclusions/exclusions, service levels (if any) and Charges for any Additional Service are as stated in the Quote (or agreed in writing).

Brisbane, Queensland 4000 realbytes.com.au 0427107609