Agreements & Contracts / Consulting Services Agreement

Last Updated: 1st March 2024

Services Agreement

This consulting agreement is made between the Client and Cyber Matters Pty Ltd.

The Client wishes to receive cybersecurity advisory and consulting services.
The Consultant has the skills, background, and experience in providing advisory and consulting services around cyber security, governance, risk and compliance.
The Client wishes to engage an independent contractor to provide the Consultancy Services to The Client.
The Consultant is willing to provide the Consultancy Services and The Client is willing to appoint The Consultant to provide the Consultancy Services, all in accordance with the provisions of this Agreement.

RECITALS

The Client wishes to receive cybersecurity advisory and consulting services.
The Consultant has the skills, background, and experience in providing advisory and consulting services around cyber security, governance, risk and compliance.
The Client wishes to engage an independent contractor to provide the Consultancy Services to The Client.
The Consultant is willing to provide the Consultancy Services and The Client is willing to appoint The Consultant to provide the Consultancy Services, all in accordance with the provisions of this Agreement.

1. DEFINITIONS AND INTERPRETATION

1.1. Definitions

In this Agreement unless the context indicates otherwise, the following words will have the following meanings:

Background IP means the Intellectual Property of a Party which was in existence prior to the commencement of this agreement or which is subsequently developed by that Party independently of and for purposes unconnected with this agreement.
Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise).
Confidential Information includes any information marked as confidential and any information received or developed by The Consultant during the term of this Agreement, which is not publicly available and relates to processes, equipment and techniques used by The Client in the course of the The Client's business including all information, data, drawings,
specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans.
Consultancy Services means the consultancy services to be provided by The Consultant under this agreement according to the Specification.
Consultant's Personnel means any person(s) that The Consultant designates to perform the Consultancy Services on the The Consultant's behalf.
Consumer Guarantee means a guarantee applicable to the supply of goods or services which is incorporated into this agreement pursuant to division 1 part 3-2 of the Australian Consumer Law.
Contract IP means Intellectual Property created by the Supplier in the course of performing its obligations under this agreement.
Deliverable means any goods or services to be supplied by the Supplier pursuant to this agreement.
Facilities means working space, computer equipment, access to the internet and The Client’s computer network, telecommunications system etc, and includes not only access to such resources but also use of them to the extent required by the Supplier in order to perform the Consultancy Services.
Fee(s) means the fees set out in the Specification.
Force Majeure Event means any occurrence or omission as a direct or indirect result of which the Party relying on it is prevented from or delayed in performing any of its obligations under this agreement and which is beyond the reasonable control of that Party and could not have been prevented or mitigated by reasonable diligence or precautionary measures, including forces of nature, natural disasters, acts of terrorism, riots, revolution, civil commotion, epidemic, industrial action and action or inaction by a government agency but does not include any act or omission of a subcontractor (except to the extent that act or omission is caused by a Force Majeure Event).
GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property includes trademarks, patents, copyrights, processes know-how, registered designs or other like rights or any right to apply for registration of any of the former.
Losses means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever.
Parties means The Consultant and The Client, and Party means either one of them.
Personal Information has the meaning as defined in any applicable Privacy Law.
Privacy Law means any legislation or administrative requirement (as amended from time to time) imposing an obligation in relation to the collection, use, disclosure, storage and transmission of Personal Information which is applicable to a party in the performance of its obligations under this agreement, including without limitation any codes, principles or guidelines contained in or arising out of such legislation.
Related Body Corporate has the meaning given in s50 of the Corporations Act 2001 (Cth).
Specification means the specific Consultancy Services to be provided by The Consultant under this Agreement. The Specification is set out in Schedule 1 (As the Services Proposal of the Quotation) of this Agreement.
Termination Date means the earlier of:
1. the date of termination of this Agreement by The Client or The Consultant; and
2. the date of expiry of this Agreement.

1.2. Interpretation

In this Agreement unless the context otherwise requires:

words importing any gender include every gender;
words importing the singular number include the plural number and vice versa;
words importing persons include firms, companies and corporations and vice versa;
references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to this Agreement;
reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
any obligation on any Party not to do r omit to do anything is to include anobligation not to allow that thing to be done or omitted to be done;
the headings to the clauses and schedules of this Agreement are not to affect the interpretation;
any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or by-law made under that enactment; and
the word "including" (and related forms including "includes") means "including without limitation".

2. CONSULTANCY SERVICES

1. The Consultant will provide the Consultancy Services to The Client in consideration for The Client paying the Fee to The Consultant, subject to the provisions of this agreement.
2. The Consultant and The Client will agree on the time and place for the performance of the Consultancy Services.
3. The Consultant will use reasonable endeavours to complete the Consultancy Services including the provision of data, materials or reports by the dates specified in the Specification or any other dates agreed by the Parties.
4. The Consultancy Services will be performed by the employees or agents that The Consultant may choose as most appropriate to carry out the Consultancy Services as agreed, from time to time by the Parties.
5. The Consultancy Services to be performed as agreed by the Parties, the time estimates for the provision of the particular Consultancy Services, and the Fee(s) will be set out in the Specification.

3. LOCATION

The Consultant will provide the Consultancy Services in places and locations as agreed by the Parties from time to time.

4. FEE(S)

4.1. Payment of Fees

1. In consideration of the provision of the Consultancy Services in accordance with this agreement, The Client will pay The Consultant the Fee.
2. Where The Consultant’s charges are based on an hourly rate, any time spent which is less than an hour is charged on a pro-rated basis.

1. The Client acknowledges that the Fees are exclusive of any GST that may be charged by The Consultant to The Client, and therefore, The Consultant will be entitled to add on GST.

4.2. Invoicing

1. The Consultant will provide The Client with a tax invoice in accordance with the GST Law in relation to Fees payable under this clause 4.
2. Payment will be made by The Client to The Consultant within 20 business days after receiving The Consultant’s invoice.
3. When making a payment, The Client must quote relevant reference numbers and the invoice number.
4. The invoice referred to in clause 4.2(b) must include the following details before payment can be approved and forwarded:
  1. date of Consultancy Services;
  2. name of individual provided by The Consultant;
  3. description of Consultancy Services provided;
  4. time allocated per task; and
  5. the ABN of The Consultant.

4.3. Variation of Fees

The Consultant is entitled to vary their rates during the term of this agreement with written notice to The Client of 2 months prior to the change being implemented.

4.4. Costs and disbursements

The Consultant is permitted to charge for all costs and expenses incurred in performing the Consultancy Services, including travelling, photocopying, courier services and postage.

4.5. Failure to pay

If The Client does not make a payment by the date stated in an invoice or as otherwise provided for in the agreement, The Consultant is entitled to do any or all of the following:

charge interest on the outstanding amount at the rate of 1% per year above the base lending rate of 4.5, accruing daily;
require The Client to pay, in advance, for any Consultancy Services (or any part of the Consultancy Services) which have not yet been performed; and

not perform any further Consultancy Services (or any part of the Consultancy Services).

4.6. Disputed invoices

If The Client disputes the whole or any portion of the amount claimed in an invoice submitted by the The Consultant, The Client must:

pay the portion of the amount stated in the invoice which is not in dispute in accordance with the terms of payment set out in this agreement; and
notify The Consultant in writing (within 7 days of receipt of the invoice) of the reasons for disputing the remainder of the invoice.

5. THE CONSULTANT'S PERSONNEL

1. If The Client:
  1. makes a notice in writing to The Consultant; and
  2. has reasonable grounds which have been disclosed and discussed with The Consultant,

The Client may require The Consultant to cease to permit a particular person or persons employed by The Consultant or acting as agent for The Consultant to carry out the Consultancy Services.

If The Client makes the requirement referred to in clause 5(a), The Consultant must, as soon as it is practicable:
1. cease to provide the service of the particular person or persons in respect of The Client’s business; and
2. provide the services of an alternative person or persons as may be reasonably acceptable to The Client.

6. THE CLIENT'S OBLIGATIONS

1. During the preparation of the Specification and performance of the Consultancy Services The Client will:
  1. cooperate with The Consultant as The Consultant reasonably requires;
  2. provide the information and documentation that The Consultant reasonably requires;
  3. make available to The Consultant such Facilities as Cyber Matters Pty Ltd reasonably requires; and
  4. ensure that The Client’s staff and agents cooperate with and assist The Consultant.

The Client will not charge for The Consultant’s use of the Facilities made available by The Client.
If The Client does not provide the Facilities that The Consultant reasonably requires (and within the time period) to perform the Consultancy Services, then any additional costs and expenses which are reasonably incurred by The Consultant will be paid by The Client.

7. NO PARTNERSHIP OR EMPLOYMENT RELATIONSHIP

1. Nothing in this agreement constitutes the relationship of employer and employee between The Client and The Consultant or between The Client andThe Consultant’s Personnel.
2. It is the express intention of the Parties that any such relationships are denied.

8. USE OF SUBCONTRACTORS

The Consultant is permitted to use other persons to provide some or all of the Consultancy Services.
The Consultant is responsible for the work of any of The Consultant’s subcontractors.
Subject to clause 8(d), any work undertaken by any of The Consultant’s subcontractors will be undertaken to the same standard as stated in this agreement and the Specification.
To the extent that the terms of any subcontract stipulate a higher standard for any of the Consultancy Services than the standards set out in this agreement (including as to timing or quality), any Consultancy Services provided by the relevant subcontractor will be governed by the terms and conditions of that subcontractor’s subcontract.

9. DISCLOSURE AND OWNERSHIP OF INTELLECTUAL PROPERTY

The Parties agree that, other than as expressly provided in this clause, nothing in this agreement transfers or grants to any Party any right, title or interest in or to any Intellectual Property in any Background IP. The Consultant grants to The Client a worldwide, royalty free, perpetual, irrevocable, transferable, non-exclusive licence to use the Background IP to the extent necessary for The Client to derive full benefit from its acquisition the Deliverables.
The Client acknowledges that ownership of the Contract IP remains vested in The Consultant. The Consultant grants to The Client an exclusive, perpetual, fully paid-up, irrevocable, worldwide licence to use the Contract IP for the sole purpose of enabling The Client to derive full benefit from its acquisition of the Deliverables.
The Consultant agrees to indemnify The Client fully against all liabilities, costs and expenses that The Client may incur if the Contract IP or Background IP infringes the rights of a third party, save that The Consultant will have no indemnity obligation if any infringement, suspected infringement or alleged infringement of the Contract IP or Background IP arises from:
use of the Deliverables in combination by any means and in any form with other goods not specifically approved by The Consultant;
use of the Deliverables in a manner or for a purpose not reasonably contemplated or not authorised by The Consultant;
modification or alteration of the Deliverables without prior consent in writing of The Consultant; or
any transaction entered into by the Customer relating to the Deliverables without The Consultant's prior consent in writing.
The obligations accepted by The Consultant under this clause 9 survive termination or expiry of this agreement.

CONFIDENTIALITY

A Party which receives Confidential Information (Recipient) from the other Party (Discloser) must keep the Discloser’s Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.
The Recipient’s obligations in relation to the Confidential Information will continue for as long as the Confidential Information is maintained on a confidential basis by the Discloser.
At the Termination Date, or when earlier directed by the Discloser:
1. all Confidential Information must be returned to the Discloser, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that the Recipient makes and any software that the Recipient creates based on the Confidential Information; and
2. the Recipient must erase and destroy any copies of any software containing or comprising the Confidential Information in the Recipient’s possession or under the Recipient’s control or that may have been loaded onto a computer possessed or controlled by the Recipient.
The Confidential Information does not include information which:
1. is generally available in the public domain otherwise than as a result of a breach of clause 10(a) by the Recipient; or
2. was known by the Recipient prior to the Discloser disclosing the information to the Recipient.
The Recipient agrees that the Discloser may require any of the Recipient’s Personnel to sign a confidentiality agreement in a form that the Discloser approves, as a condition of the Discloser’s acceptance of any of the Recipient’s Personnel.
The Recipient agrees to indemnify the Discloser fully against all liabilities, costs and expenses which the Discloser may incur as a result of any breach of this clause 10 by the Recipient.
The Recipient acknowledges that damages may be an inadequate remedy for breach of this clause 10 and that the Discloser may obtain injunctive relief against the Recipient for any breach of this clause 10.
The obligations accepted by the Recipient under this clause 10 survive termination or expiry of this agreement.

11. WARRANTIES, LIABILITY AND INDEMNITIES

11.1. Warranties

The Consultant warrants that it will use reasonable care and skill in performing the Consultancy Services and to the standard generally accepted within the industry, sector or profession in which The Consultant operates for the type of Consultancy Services provided by The Consultant.
If The Consultant performs the Consultancy Services (or any part of the Consultancy Services) negligently or materially in breach of this agreement including any part of the Specification, then, if requested by The Client, The Consultant will re-perform the relevant part of the Consultancy Services, subject to clauses 11.6(a) and 11.6(b) below.
The Client’s request referred to in clause 11.1(b) must be made within 7 days of the date The Consultant completed performing the Consultancy Services.

11.2. Insurances

The Consultant must take out the following insurance:

worker’s compensation insurance as prescribed by law for The Consultant’s Personnel; and
public liability insurance for a minimum of an amount to be agreed for each occurrence.

11.3. Employees and subcontractors

The Consultant covenants that The Consultant is solely responsible for payment to The Consultant’s employees and agents of all amounts due by way of salary, superannuation, annual leave, long service leave and any other benefits to which they are entitled as The Consultant’s employees or agents.
The Consultant must otherwise comply with legislation applicable to The Consultant’s employees and agents.

11.4. Compliance with all laws

Throughout this agreement The Consultant must comply at The Consultant’s own cost and expense with all acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements of any Commonwealth, state and local government departments, bodies, and public authorities or other authority. This requirement applies to The Consultant or to the Consultancy Services. The Consultant must indemnify The Client from and against all actions, costs, charges, claims and demands in respect of such action, cost, charge, claim and demand.

11.5. No warranties in relation to completion

The Consultant provides no warranty that any result or objective can or will be achieved or attained at all or by a given completion date any other date, whether stated in this agreement, the Specification or elsewhere.

11.6. Limitation on liability

Except in the case of death or personal injury caused by The Consultant’s negligence, the liability of The Consultant under or in connection with this agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise must not exceed the Fees paid by The Client to The Consultant under this agreement. The provisions of clause 11.6(a) will not apply to clause 11.4.
Neither Party is liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill. The provisions of this clause do not apply to clause 11.4. For the purposes of this subclause, “consequential loss or damage” means any Loss that does not arise naturally and according to the usual course of things as a result of a breach of this agreement or other event giving rise to such Loss, whether or not such Loss may reasonably be supposed to have been in the contemplation of the Parties at the time they made this agreement.
The Consultant's liability for failure to comply with a Consumer Guarantee is limited to:
1. in the case of goods supplied to The Client, the replacement of the goods or the supply of equivalent goods (or the payment of the cost to the The Client of the replacement or supply), or the repair of the goods (or the payment of the cost to the The Client of the repair); and
2. in the case of services supplied to The Client, the supply of the services again or the payment of the cost to the The Client of having the services supplied again.

11.7. No reliance

Each of the Parties acknowledges that, in entering into this agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this agreement. Any conditions, warranties or other terms implied by statute or common law are excluded from this agreement to the fullest extent permitted by law.

11.8. Survival of obligations

The obligations accepted by The Consultant and The Client under this clause 11 survive termination or expiry of this agreement.

12. PRIVACY

The Client is responsible for obtaining all relevant consents from, and providing all relevant notices to, individuals whose Personal Information is provided by The Client to The Consultant in connection with this agreement so as to ensure that The Consultant's dealings with that information pursuant to this agreement comply with The Consultant's obligations under any Privacy Laws.
The Client must indemnify The Consultant against, and must pay The Consultant on demand the amount of, all Losses, liabilities, costs and expenses arising out of its failure to comply with clause 12(a).
The Client must:
1. immediately notify The Consultant if it becomes aware of any unauthorised access to, or unauthorised disclosure of, Personal Information under its control by virtue of this agreement, and provide advice as to whether it considers that such security breach may result in serious harm to any individual to whom the information relates;
2. comply with any directive from The Consultant as to which Party will discharge any statutory reporting obligation arising from the incident;
3. conduct or assist The Consultant in conducting a reasonable and expeditious assessment of the breach or suspected breach; and
4. ensure compliance with all mandatory data breach reporting obligations arising out of the breach or suspected breach.

13. TERMINATION

Either Party may terminate this Agreement by notice in writing to the other if the other Party notified:
1. fails to observe any term of this Agreement; and
2. fails to rectify this breach, to the satisfaction of the notifying Party, following the expiration of 7 days notice of the breach being given in writing by the notifying Party to the other Party.
Either Party may terminate this Agreement immediately upon the happening of any of the following events:
1. if the other Party commits a material breach of the agreement which is incapable of rectification;
2. if The Client enters into a deed of arrangement or an order is made for it to be wound up;
3. if an administrator, receiver or receiver/manager or a liquidator is appointed to The Client pursuant to the Corporations Act; or
4. if The Client would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act.
Upon termination of this agreement any fees, expenses or reimbursements payable by The Client to The Consultant in respect of any period prior to the Termination Date must be paid by The Client to The Consultant within 7 days after the Termination Date.

14. GENERAL

14.1. Force Majeure

Neither Party has any liability under or may be deemed to be in breach of this agreement for any delays or failures in performance of this agreement which result from a Force Majeure Event.
The Party affected by these circumstances must promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.
If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this agreement by written notice to the other Party.

14.2. Amendments

This Agreement may only be amended in writing signed by duly authorised representatives of the Parties.

14.3. Assignment

Subject to paragraph (b) of this clause, neither Party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party.
A Party may assign and transfer all its rights and obligations under this Agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this Agreement.

14.4. Entire agreement

This Agreement contains the whole agreement between the Parties in respect of the subject matter of the Agreement.
The Parties confirm that they have not entered into this Agreement based on any representation that is not expressly incorporated into this Agreement.

14.5. Waiver

No failure or delay by The Consultant in exercising any right, power or privilege under this Agreement will impair the same or operate as a waiver of the same nor will any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.

14.6. Agency, partnership etc

This Agreement will not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.
Neither Party will have, nor represent that it has, any authority to make any commitments on the other Party's behalf.

14.7. Further assurance

Each Party to this Agreement will at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.

14.8. Severance

If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement and will not in any way affect any other circumstances of or the validity or enforcement of this Agreement.

14.9. Announcements

Subject to paragraph (b) of this clause, no Party will issue or make any public announcement or disclose any information regarding this Agreement unless prior to such public announcement or disclosure it furnishes the other Party with a copy of such announcement or information and obtains the approval of the other Party to its terms.
No Party will be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange.

14.10. Notices

A notice or other communication connected with this Agreement has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post to the address of the addressee as set out in this Agreement, or sent by facsimile to the facsimile number of the addressee.

14.11. Work, health and safety
The Consultant must comply with all relevant work, health, safety and welfare standards and regulations determined by The Client or as prescribed by legislation.

14.12. Law and jurisdiction

This Agreement takes effect, is governed by, and will be construed in accordance with the laws from time to time in force in New South Wales, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of New South Wales.