Schedule

Term and Meaning

we, us or our - InfoSecAssure Pty Ltd (ABN 99 638 684 492)
you or your - The name of your company as completed in the registration form
Commencement Date -The date you accepted this licence agreement
Term - This Agreement will commence on the Commencement Date and will continue for 12 months (Initial Term), subject to extension (Term). The Term will automatically extend for further subsequent [12 month] periods, unless:either Party provides written notice of termination at least 30 days prior to the end of the then Term; or the Agreement is otherwise terminated in accordance with its terms.
Services - The Services are the following: the SaaS Services which are subject to the Limitations, being access to and use of our cloud based solution known as InfoSecAssure which allows you (and up to a 10 Authorised Users) to produce reports to estimate and identify potential deficiencies in your information security practices and compliance against selected compliance obligations (for example, ISO 27001), based on your answers to questions some of which are pre-populated by us and information provided by you; and the Support Services, being support via email and over the phone, as agreed between the Parties, between the hours of 9am and 5pm on Business Days. We may provide services outside of the above scope; however, these be Additional Services for the purposes of this Agreement.
Limitations - Any account to be created with InfoSecAssure must be registered using a corporate Microsoft or Google email account.
Fees - A fixed fee amount as per payment schedule chosen by you.For any Additional Services, as quoted to you based on the requested services and/or in accordance with the schedule of rates to be provided by us.
Payment Terms - We will charge you: The Fees, in advance of each year starting from the Commencement Date, the Fees for any Additional Services accepted by you following your acceptance, and you must pay the amount in the invoice, using the payment method set out in the invoice, within 30 days of the date of the invoice, or as otherwise agreed between the Parties.

Terms and Conditions

This Agreement will continue for the Term and is entered into between us and you, together the Parties and each a Party.

Background

A. You are a business which is interested in learning more about your compliance with selected compliance obligations and what you can do to uplift your existing processes and systems to improve and/or broaden your compliance.
B. We have created a cloud based solution, which we can provide as a service to you, which allows you to produce reports that estimate and identify potential deficiencies in your compliance against selected compliance obligations, based on your answers to questions that are pre-populated by us and information provided by you.
C. This Agreement sets out the terms on which we will provide these services to you.

1. Services

1.1 In consideration of your payment of the Fees, we will provide the Services in accordance with this Agreement, whether ourselves or through our Personnel.
1.2 We agree to use commercially reasonable efforts to make the Services available to you at all times during the Term, however, you acknowledge and agree that this may not always be possible and that outages (including reasonable downtime) may occur from time to time.
1.3 Provided any downtime is temporary and not unreasonably frequent, you agree to waive and release us from any Liability arising from and/or in connection with such outages and downtime.

2. Commencement

2.1 Unless expressed otherwise in this Agreement, we will commence the provision of the Services within a reasonable time after the later of:
(a) the Commencement Date; and
(b) to the extent the Fees are required in advance, we receive payment in full of the Fees.

3. SaaS Services Licence

3.1 Subject to your compliance with the terms of this Agreement, we grant you (and any Authorised Users) a non-exclusive, non-transferable (except with our written permission), non-sublicensable (except as otherwise permitted under this Agreement), personal and revocable licence to access and use the SaaS Services for the Term (Licence).

4. Restrictions on Use

4.1 You must not (and must ensure that any Authorised Users do not) access or use the SaaS Services except as permitted by the Licence and you must not and must ensure that any other person (including an Authorised User) does not:
(a) use the SaaS Services in any way that breaches any applicable Laws or infringes any person's rights, including Intellectual Property Rights;
(b) use the SaaS Services in any way that damages, interferes with or interrupts the supply of the SaaS Services;
(c) introduce malicious programs into our hardware and software or Systems, including any viruses or malware through any channel;
(d) allow others to access or use your/their Account, password or authentication details;
(e) use the SaaS Services to carry out security breaches or disruptions of a network. This includes accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);
(f) use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the SaaS Services; and
(g) use the SaaS Services to circumvent user authentication or security of any of our networks, accounts or hosts or those of members or suppliers.

5. Accounts

5.1 We will send you a link and you may create an Account on our Site, for you and each of your Authorised Users to access and use the Services, including the SaaS Services.
5.2 You must ensure that any information you provide to us, or we request from you, for your Account, is complete and accurate and you are authorised to provide this information to us.
5.3 It is your responsibility to keep your Account details confidential. You are responsible for all activity on your Account and all activity by any Authorised User on their Accounts, and for ensuring that any activities on any Accounts comply with this Agreement.
5.4 We are not responsible for the management or administration of your Account or your Authorised Users.

6. Authorised Users

6.1 You agree that the Licence permits you to access and use the SaaS Services in accordance with the number of Authorised Users, as set out in the Schedule (see “Services”).
6.2 You may, at any time, request an increase in the number of Authorised Users by submitting this request in writing to us. We may, in our sole discretion, agree to such request subject to you agreeing to any proposed increase in the Fees.

7. Additional Services

7.1 You may request Additional Services, including support and assistance on a consultancy basis or bespoke customisation to the scope or functionality of the Services, by providing written notice (including by email) to us.
7.2 We may, at our discretion, provide you with written notice in the form of a scope of services, a proposal or a statement of work (as applicable) covering the Additional Services requested and any further fee required for us to undertake the Additional Services.
7.3 If you agree to the scope of services, proposal or statement of work (as applicable), for the Additional Services, then we will provide the Additional Services to you in consideration for payment of the additional fee, which will form part of the Fees.

8. Viruses and Defects

8.1 We agree to supply the Services free from defects and viruses.
8.2 During the Warranty Period, and subject to clause 8.3, we agree to promptly re-perform or re-supply any part of the Services that is not supplied in accordance with this Agreement (as a result of our default of this Agreement) (Defect or Defective Services). Your entitlement to re-supply pursuant to this clause will be your sole and exclusive remedy arising from or in connection with Defects and Defective Services.
8.3 The remedies for Defects and Defective Services in clause 8.1 will not apply to Third Party Inputs.
8.4 For the purposes of this Agreement, “Warranty Period” means 30 days from the date that you are first able to access and use the Services.

9. Our Obligations

9.1 We represent, warrant and agree that:
(a) we are properly constituted and have the right and authority to enter into this Agreement;
(b) we will provide the Services in accordance with all applicable Laws; and
(c) we will use reasonable efforts to ensure all of our obligations under this Agreement will be carried out:
(1) by suitably competent and trained Personnel; and
(2) in an efficient and professional manner.
9.2 We further agree that:
(a) we have legal authority to grant you the Licence;
(b) all pre-existing Intellectual Property Rights in the Services (with the exception of the property rights in any Third-Party Inputs) will be owned or held by us;
(c) the provision of the Services does not and will not infringe any other person’s Intellectual Property Rights; and
(d) the Services will operate and be provided in accordance with this Agreement (including any Specifications).

10. Your Obligations

10.1 You agree:
(a) to comply with this Agreement, our reasonable requests or requirements, and all applicable Laws; and
(b) to provide all assistance, information, documentation, access, facilities, authorities, consents, licences and permissions reasonably necessary to enable us to comply with our obligations under this Agreement or at Law, in a timely manner;
(c) that you have reviewed and understand the terms of this Agreement (including our Privacy Policy), and will use the Services in accordance with them; and
(d) that in entering into this Agreement, you have not relied upon any representation, warranty or inducement by us nor is any representation, warranty or thing made or done by us to be inferred, incorporated or implied into this Agreement;
(e) you are responsible for all users using the Services, including your Personnel and any Authorised Users;
(f) the technical processing and transmission of the Services, including Customer Data, may be transferred unencrypted and involves:
(1) transmissions over various networks; and
(2) changes to conform and adapt to technical requirements of connecting networks or devices;
(g) we may use third party service providers to integrate with the Services or to host the SaaS Services. If the providers of third-party applications or services cease to make their services or programs available on reasonable terms, we may cease providing any affected features without Liability or entitling you to any refund, credit, or other compensation;
(h) the Services may use third party products, facilities or services. We do not make any warranty or representation in respect of the third-party products, facilities or services;
(i) you are solely responsible, on and from the time of export, for any files and/or documents exported from or using the Services;
(j) we are not responsible for the integrity or existence of any data on the Computing Environment, network or any device controlled by you, your Authorised Users or your Personnel; and
(k) we may pursue any available equitable or other remedy against you if you breach any provision of this Agreement.
10.2 You represent, warrant and agree that:
(a) you have the legal capacity to enter into a legally binding agreement;
(b) there are no legal restrictions preventing you from entering into this Agreement;
(c) all information and documentation that you provide to us in connection with this Agreement is true, correct and complete and that we will rely on such information and documentation in order to provide the Services;
(d) you have not relied on any representations or warranties made by us in relation to the Services (including as to whether the Services are or will be fit or suitable for your particular purposes), unless such purposes are expressly stipulated in this Agreement;
(e) you will cooperate with us and provide us with all assistance, resources, data, people, information, facilities, access and documentation that is reasonably necessary to enable us to perform the Services and as otherwise requested by us, from time to time, and in a timely manner;
(f) the provision of the Services may be contingent on, or impacted by, Third Party Inputs;
(g) the Services are provided to you solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, our Services to third parties without our prior written consent;
(h) you will be responsible for the use of any part of the Services, and you must ensure that no person uses any part of the Services to break any Law or infringe any person’s rights (including Intellectual Property Rights) or in any way that damages, interferes with or interrupts the supply of the Services;
(i) the Services and any associated programs and files at are used at your own risk;
(j) any information, advice, material, work and services (including the Services and any reports produced as part of these Services) provided by us under this Agreement does not constitute legal, financial, merger, due diligence or risk management advice and is relied on at your own risk;
(k) you will inform us if you have reasonable concerns relating to our provision of the Services under this Agreement, with the aim that the Parties will use all reasonable efforts to resolve these concerns;
(l) you are not and have not been the subject of an Insolvency Event;
(m) if applicable, you hold a valid ABN which has been advised to us;
(n) if applicable, you are registered for GST purposes; and
(o) you have reviewed this Agreement, including our Privacy Policy, and you understand them and will use the Services in accordance with them; and
(p) you have all hardware, software and services which are necessary to access and use the Services (other than those required to be provided by us under this Agreement).
10.3 This clause 10 will survive termination or expiry of this Agreement.

11. Payment

11.1 You agree to pay us the Fees, and any other amounts payable to us under this Agreement, in accordance with the Payment Terms.
11.2 If any payment has not been made in accordance with the Payment Terms, the amount becomes a debt due and immediately payable to us and we may (at our absolute discretion):
(a) immediately cease or suspend the provision of the Services, and recover as a debt due and immediately payable from you, our additional costs of doing so; and
(b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with the Payment Terms.
11.3 If you rectify such non-payment within a reasonable time after the Services have been suspended, then we may, at our discretion, recommence the provision of the Services as soon as reasonably practicable.
11.4 Subject to your Statutory Rights and to the maximum extent permitted by law, all amounts paid by you for the Services (including the Fees) are non-refundable. You agree that this is fair and reasonable on the basis that the Fees are estimated on one full set of reports being produced per year (and as such, you could obtain the total value of the contract within the first hour of the Term).

12. Privacy

12.1 You are responsible for the collection, use, storage and otherwise dealing with Personal Information related to your business and all matters relating to the Customer Data.
12.2 You must, and must ensure that your Personnel and Authorised Users, comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any privacy or anti-spam Laws applicable to you in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with this Agreement.
12.3 Without limiting this clause 12, you may only disclose Personal Information in your control to us, if:
(a) you are authorised by Privacy Laws to collect the Personal Information and to use or disclose it in the manner required by this Agreement;
(b) you have informed the individual to whom the Personal Information relates, that it might be necessary to disclose the Personal Information to third parties; and
(c) where any Personal Information is Sensitive Information, you have obtained the specific consent to that disclosure from the individual to whom the Sensitive Information relates.
12.4 We agree to handle any Personal Information you provide to us, solely for the purpose of performing our obligations under this Agreement and in accordance with any applicable Laws (and our Privacy Policy).

13. Security

13.1 We agree to implement and maintain industry standard physical, technical and administrative security measures designed to protect Customer Data from unauthorised access, destruction, use, modification, or disclosure.
13.2 We further agree to:
(a) keep a log of all access events and retain information that may be relevant to a Security Incident, including to determining the cause and impact of a Security Incident;
(b) at our cost, commission annual technical security testing of the Services by a qualified and independent security specialist (this may not be completed prior to trial agreements however will be completed within 3 months of your trial beginning); and
(c) make available, on request, any summary reports produced by a security specialist as part of the annual technical security testing.

14. Security Incidents and Data Breaches

14.1 If either Party becomes aware of or reasonably suspects that a security incident has occurred such that Customer Data has been compromised (Security Incident), that Party must promptly notify the other Party and we agree to, within a reasonable time:
(a) remediate the Security Incident, to the extent that this is operationally, commercially and technically feasible; and
(b) conduct an investigation to determine whether a Security Incident has occurred, and where one has, the cause and impact on Customer Data.
14.2 To the extent the notifiable data breaches scheme under Part IIIC of the Privacy Act 1988 (Cth) (Notifiable Data Breaches Scheme) applies to us, if as a result of our investigations in accordance with clause 14.1(b) of this Agreement, we believe a Security Incident has occurred that we consider to be notifiable under the Notifiable Data Breaches Scheme, we will:
(a) notify you of the this by telephone or email;
(b) provide notice to the Office of the Australian Information Commissioner in accordance with the Notifiable Data Breaches Scheme; and
(c) we will be the sole Party to notify the individuals who are likely to be at risk of serious harm arising from the Security Incident.
14.3 Where we do not have the contact details of affected individuals, we will provide you with a statement to provide to affected individuals.

15. Confidential Information

15.1 Each Receiving Party agrees:
(a) not to disclose the Confidential Information of the Disclosing Party to any third party;
(b) to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and
(c) to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.
15.2 The obligations in clause 15.1 do not apply to Confidential Information that:
(a) is required to be disclosed in order for the Parties to comply with their obligations under this Agreement;
(b) is authorised to be disclosed by the Disclosing Party;
(c) is in the public domain and/or is no longer confidential, except as a result of a breach of this Agreement; or
(d) must be disclosed by Law or by a regulatory authority, including under subpoena.
15.3 Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 15. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 15.
15.4 This clause 15 will survive the termination of this Agreement.

16. Intellectual Property Rights

16.1 This clause 16 will survive termination or expiry of this Agreement.
16.2 The Parties agree that nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property Rights.
Our Intellectual Property Rights
16.3 You agree that we own all Intellectual Property Rights in:
(a) Our Materials;
(b) New Materials or Improvements; and
(c) any Feedback,
and these Intellectual Property Rights will at all times vest, or remain vested, in us (or, if applicable, our third-party service providers). To the extent that ownership of these Intellectual Property Rights does not automatically vest in us, you agree to do all acts necessary or desirable to assure our title to such rights.
16.4 In the use of any Intellectual Property Rights in connection with this Agreement, you agree that you must not (and you must ensure that your Personnel do not) commit any Intellectual Property Breach.
16.5 You also agree that:
(a) we may use Feedback in any manner which we see fit (including to develop new features) and no benefit will be due to you as a result of any use by us of any Feedback;
(b) you must not whether directly or indirectly, without our prior written consent:
(1) copy, modify, adapt, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble or decompile the SaaS Services (or any part of the Equipment or Services) or otherwise attempt to discover any part of the source code of the SaaS Services;
(2) use any unauthorised, modified version of the Equipment or Services, including (without limitation) for the purpose of building similar or competitive software or for the purpose of obtaining unauthorised access to the SaaS Services;
(3) use the Equipment or Services in a manner that is contrary to any Laws or in violation of any Intellectual Property Rights or privacy rights;
(4) publish, post, upload or otherwise transmit data that contains any viruses, trojan horses, worms, time bombs, malware, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with information or property of any person;
(5) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Equipment and Services;
(6) unless authorised under this agreement, use the Equipment or Services in a web-enabled form for the purposes of third-party analysis or view via the internet or other external network access method;
(7) rent the use of the Services to any third parties;
(8) take any action that may compromise or jeopardise our Intellectual Property Rights in the Equipment or Services or otherwise;
(9) remove or deface any confidentiality, copyright or other proprietary notice placed on the Equipment or Services;
(10) make any representations or warranties to any third parties that could be construed as being representations or warranties from us in relation to the Equipment or Services or any other matter;
(11) use the Equipment or Services in any way that involves service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single user login, or time-sharing; or
(12) do any other thing in relation to the Equipment or Services which is specifically prohibited by us, whether by verbal instruction or direction, or in writing.
Your Materials
16.6 We agree that you own all Intellectual Property Rights in Your Materials.
16.7 You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use Your Materials, solely for the purposes for which they were developed and for the performance of our obligations under this Agreement, as contemplated by this Agreement.
16.8 If you or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with this Agreement, you agree to (and agree to ensure that your Personnel) consent to our use or infringement of those Moral Rights.

17. Customer Data

17.1 As between you and us:
(a) all Customer Data is and remains your property; and
(b) you retain any and all rights, title and interest in and to the Customer Data, including all copies, modifications, extensions and derivative works.
17.2 You grant us a limited licence to copy, transmit, store and back-up or otherwise access the Customer Data during the Term (and for a reasonable period after the Term), to:
(a) supply the Services to you (including to enable you and your Personnel to access and use the Services);
(b) diagnose problems with the Services;
(c) enhance and otherwise modify the Services;
(d) perform Analytics;
(e) develop other services, provided we de-identify the Customer Data, and
(f) as reasonably required to perform our obligations under this Agreement.
17.3 You acknowledge and agree that:
(a) you must, at all times, ensure the integrity of the Customer Data and that the collection and use of the Customer Data is compliant with all Laws;
(b) we assume no responsibility or Liability for the Customer Data. You are solely responsible for the Customer Data and the consequences of using, disclosing, storing or transmitting it. It is your responsibility to back up the Customer Data; and
(c) the operation of the Services is reliant on the accuracy of the Customer Data, and the provision of inaccurate or incomplete Customer Data by you may affect the use, output and operation of the Services.
17.4 You represent and warrant that:
(a) you have obtained all necessary rights, releases and permissions to provide all Customer Data to us and to grant the rights granted to us in this Agreement; and
(b) the Customer Data is accurate and complete;
(c) the Customer Data (and its transfer to and use by us) as authorised by you, under this Agreement does not violate any Laws (including those relating to export control and electronic communications) or rights of any third party, including any Intellectual Property Rights, rights of privacy, or rights of publicity; and
(d) any use, collection and disclosure authorised in this Agreement is not inconsistent with the terms of any applicable privacy policies.

18. Analytics

18.1 Despite anything to the contrary, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Services, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it:
(a) does not contain identifying information; and
(b) is not compiled using a sample size small enough to make the underlying Customer Data identifiable.
18.2 We, and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all Intellectual Property Rights in the foregoing.

19. Australian Consumer Law

19.1 Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the Services which cannot be excluded, restricted or modified (Statutory Rights). Nothing in this Agreement excludes your Statutory Rights as a consumer under the ACL.
19.2 You agree that our Liability for the Services is governed solely by the ACL and this Agreement.
19.3 Subject to your Statutory Rights, we exclude all express and implied warranties, representations and guarantees of any kind (whether under statute, law, equity or on any other basis) and all materials, work, goods and services (including the Services) are provided to you without warranties, representations and guarantees of any kind, unless expressly stipulated in this Agreement.
19.4 This clause 18 will survive the termination or expiry of this Agreement.

20. Limitations on Liability

20.1 Despite anything to the contrary, to the maximum extent permitted by law:
(a) neither Party will be liable for any Consequential Loss;
(b) a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure to mitigate that Liability; and
(c) our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to us resupplying the Services to you or, in our sole discretion, to us repaying you the amount of the Fees paid by you to us in respect of the supply of the relevant Services to which the Liability relates.
20.2 This clause 19 will survive termination or expiry of this Agreement.

21. Exclusions to Liability

21.1 Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability, caused or contributed to by, arising from or connected with:
(a) loss of, or damage to, any property or any injury to or loss to any person;
(b) the Computing Environment;
(c) any reliance on the Services (including any reports produced) by you, including for the purposes of complying with any obligations on you (including under any Laws);
(d) your or your Personnel’s acts or omissions;
(e) any use or application of the Services by a person or entity other than you, or other than as reasonably contemplated by this Agreement;
(f) any work, services, goods, materials or items which do not form part of the Services (as expressed in this Agreement), or which have not been provided by us;
(g) any Third-Party Inputs; and
(h) any event outside of our reasonable control (including a Force Majeure Event, and a fault, defect, error or omission in the Computing Environment or Customer Data).
21.2 This clause 20 will survive termination or expiry of this Agreement.

22. Termination

22.1 You agree that you can only terminate this Agreement in accordance with this clause 21 and as set out in the Schedule (see "Term"), and that there are no other rights for you to terminate for any other reason (including convenience or change of mind).
22.2 This Agreement will terminate immediately upon written notice by:
(a) us, if:
(1) you (or any of your Personnel) breach any material term of this Agreement;
(2) you (or any of your Personnel) breach any provision of this Agreement and that breach has not been remedied within 20 Business Days of being notified by us;
(3) you fail to provide us with clear or timely instructions or information to enable us to provide the Services;
(4) for any other reason outside our control which has the effect of compromising our ability to provide the Services;
(5) you are unable to pay your debts as they fall due; or
(6) you attempt to terminate this Agreement early (including through repudiation); and
(b) you, if we:
(1) are in breach of a material term of this Agreement, and that breach has not been remedied within 20 Business Days of being notified by you; or
(2) are unable to pay our debts as they fall due.
22.3 Upon expiry or termination of this Agreement:
(a) we will immediately cease providing the Services;
(b) we will securely delete or destroy, at your request and within reasonable time, any Personal Information belonging to you that we have in our possession;
(c) if requested by you within 1 month of the date of termination or expiry, we will assist you to obtain a data dump, by a secure means and in a form of our choosing, of your Customer Data;
(d) you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under this Agreement;
(e) where termination is as a result of clause 21.2(a)(1), (2), (3) or (6), you also agree to pay us additional costs arising from, or in connection with, such termination; and
(f) immediately return (where possible) or delete or destroy (where not possible to return), any of our property (including any of Our Materials, Confidential Information and Intellectual Property).
22.4 Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.
22.5 We will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to this Agreement constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on expiry or termination of this Agreement.
22.6 This clause 21 will survive the termination or expiry of this Agreement.

23. GST

23.1 If GST is payable on any supply made under this Agreement, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under this Agreement and must be paid in addition to the consideration expressed elsewhere in this Agreement, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.
23.2 If an adjustment event arises in respect of any supply made under this Agreement, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued (if required), and any payments to give effect to the adjustment must be made.
23.3 If the recipient is required under this Agreement to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.
23.4 The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

24. General

24.1 Access: The Services may be accessed in Australia and overseas. We make no representation that the Services comply with the Laws (including Intellectual Property Laws) of any country outside of Australia. If you access the Services from outside Australia, you do so at your own risk and you are responsible for complying with the Laws in the place you access the Services.
24.2 Amendment: This Agreement may only be amended by a written instrument executed by the Parties.
24.3 Assignment: A Party must not assign or deal with the whole or any of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
24.4 Counterparts: This Agreement may be executed in any number of counterparts that together will form one instrument.
24.5 Dispute: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute.
If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties.
If the Parties are unable to reach a resolution through mediation, either party may refer the matter to arbitration administered by the Australian Centre for International Commercial Arbitration (ACICA), with such arbitration to be conducted in Sydney, New South Wales, in English and in accordance with the ACICA Rules. The costs of the arbitration will be shared equally between the Parties and the determination of the arbitrator will be final and binding.
Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
24.6 Email: You agree that we are able to send electronic mail to you and receive electronic mail from you. You release us from any Liability you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
24.7 Entire agreement: This Agreement contains the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
24.8 Exclusivity: The Services will be provided to you on a non-exclusive basis.
24.9 Force Majeure: We will not be liable for any delay or failure to perform our obligations under this Agreement if such delay is due to any circumstance beyond our reasonable control (including but not limited to epidemics, pandemics, and Government sanctioned restrictions and orders, whether known or unknown at the time of entering into this Agreement) (Force Majeure Event).
24.10 Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to this Agreement and their obligations under it.
24.11 Governing law: This Agreement is governed by the laws of New South Wales, Australia.
24.12 Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 2 Business Days in the case of post, or at the time of transmission in the case of transmission by email (or, where the time of transmission is not on a Business Day, 9am on the next Business Day).
24.13 Online execution: This Agreement may be executed by means of such third-party online document execution service as we nominate subject to such execution being in accordance with the applicable terms and conditions of that document execution service.
24.14 Publicity: With your written consent, you agree that we may advertise or publicise the broad nature of our provision of the Services to you, including on our website or in our promotional material.
24.15 Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
24.16 Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions.

24. Definitions

In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in this Agreement, the Schedule, and:
Account means an account accessible to you and/or your Authorised Users to use the Services, including, the SaaS Services;
ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time;
Agreement means these terms and conditions, all schedules (including the Schedule), annexures and attachments included, or referred to, in this agreement;
Authorised User, if applicable, means a user permitted to access and use the Services under your Account, as further particularised in the Schedule;
Business Day means a day on which banks are open for general bank business in New South Wales, excluding Saturdays, Sundays and public holidays;
Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems;
Confidential Information includes information which:
(a) is disclosed to the Receiving Party in connection with this Agreement at any time;
(b) is prepared or produced under or in connection with this Agreement at any time;
(c) relates to the Disclosing Party’s business, assets or affairs; or
(d) relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information;
Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise;
Customer Data means the information, materials, logos, documents, qualifications and other Intellectual Property or data inputted by you, your Personnel or Authorised Users into the Services or stored by the Services (excluding the information and content in any pre-populated answers). For example, where you are selecting from answers that are pre-populated by us, which answer you select will form part of the Customer Data but the content or any information in that answer will not.
Additional Services means any Services not set out in the Services description in the Schedule which we agree to provide to you;
Feedback means any idea, suggestion, recommendation or request by you (or any of your Personnel or Authorised Users or your customers), whether made verbally, in writing, directly or indirectly, in connection with the Services;
Improvements means any development, modification, adaptation or improvement of Our Materials or any New Materials made by or on behalf of either Party (or any of their respective Personnel), or in respect of which Intellectual Property Rights are acquired by, either Party during the Term.
Insolvency Event means any of the following events or any analogous event:
(a) a Party disposes of the whole or any part of the Party’s assets, operations or business other than in the ordinary course of business;
(b) a Party ceases, or threatens to cease, carrying on business;
(c) a Party is unable to pay the Party’s debts as the debts fall due;
(d) any step is taken by a mortgagee to take possession or dispose of the whole or any part of the Party’s assets, operations or business;
(e) any step is taken for a party to enter into any arrangement or compromise with, or assignment for the benefit of, a Party’s creditors or any class of a Party’s creditors; or
(f) any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of a Party’s assets, operations or business;
Intellectual Property means any copyright, registered and unregistered trademarks, designs (whether or not registered or registrable), domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing;
Intellectual Property Breach means any breach by you (or any of your Personnel) of any of our Intellectual Property Rights (or any breaches of third-party rights including any Intellectual Property Rights of third parties), including, but not limited, to you (or your Personnel):
(a) copying, altering, enhancing, adapting or modifying any of our Intellectual Property;
(b) creating derivative works from our Intellectual Property;
(c) providing or disclosing our Intellectual Property to, or allowing our Intellectual Property to be used by, any third party;
(d) assigning or transferring any of our Intellectual Property Rights or granting sublicenses of any of our Intellectual Property Rights, except as expressly permitted in this Agreement;
(e) reverse engineering or decompiling any of our Intellectual Property Rights, except where permitted by Law; or
using or exploiting our Intellectual Property for purposes other than as expressly stated in this Agreement (including, without limitation, using our Intellectual Property for commercial purposes or on-selling our Intellectual Property to third parties).
Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.
Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with this Agreement or the provision of the Services, and includes the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth);
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise;
Licence is defined in clause 3.1 of this Agreement.
Moral Rights has the meaning given in the Copyright Act 1968 (Cth).
New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of us or you or any of your or our respective Personnel in connection with this Agreement and Services (including any machine learning algorithms output from the Services and any data or information generated by your use of the Services), whether before or after the date of this Agreement.
Our Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including the Specifications, Intellectual Property and Services) that we may provide to you under this Agreement, and which may contain material which is owned by or licensed to us, and is protected by Australian and international laws. For the avoidance of doubt, Our Materials includes any information and content made available to you as part of the Services, including in any pre-populated answers such as those that you can select as part of using our Services).
Personal Information is defined in the Privacy Act 1988 (Cth) and also includes any similar term as defined in any other privacy law applicable to you;
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents;
Privacy Act means the Privacy Act 1988 (Cth).
Privacy Laws has the meaning given in clause 12 of this Agreement.
Privacy Policy means any privacy policy set out on our Site;
SaaS Services has the meaning given to it in the Schedule;
Schedule means the schedule attached to these terms and conditions;
Sensitive Information is defined in the Privacy Act.
Site means the website located at https://www.infosecassure.com.au/;
Statutory Rights has the meaning given in clause 18.1 of this Agreement.
System means all hardware, software, networks and other IT systems used by a Party from time to time, including a network.
Third Party Inputs means third parties or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Services may be contingent on, or impacted by.
Your Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of you or your Personnel before the Commencement Date and/or developed by or on behalf of you or your Personnel independently of this Agreement.

25. Interpretation

In this Agreement, unless the context otherwise requires:
(a) a reference to this Agreement or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
(b) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
(c) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
(d) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
(e) a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
(f) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
(g) a reference to time is to local time in New South Wales; and
(h) a reference to $ or dollars refers to the currency of Australia from time to time.

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