All capitalised terms have either the meanings given to that term in the Proposal, quote or SOW, the definitions in this clause 14.1 or where otherwise set out in the Agreement:
Agreement means these general terms and conditions and as relevant; the Proposal, quote or SOW to which they are attached (including any agreed written variation);
Australian Consumer Law is as set out in schedule 2 to the Competition and Consumer Act 2010 (Cth); and the corresponding provisions of the Australian Consumer Law and Fair Trading Act 2012 (Vic) as applicable (and each of its equivalents in the Australian States and Territories).
Background IP means a party’s intellectual property rights in any materials developed independently of, or prior to, the provision of the Services and the Deliverables and includes any third party licensed intellectual property;
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in the location where the Services are being provided;
Client means the customer who has requested the Services to be performed by CyberCX.
Client Data means the data owned or supplied by the Client which is accessed by CyberCX (including its Related Bodies Corporate) or its subcontractors in the course of performing the Services;
Confidential Information means all and any information (in any form or media) of a confidential nature that is made available directly or indirectly, and before, on or after the date of this Agreement including financial, client, employee and supplier information, product specifications, policies and procedures, processes, statements, formulae, trade secrets, Client Data, drawings and data which is not in the public domain (except by virtue of a breach of the confidentiality obligations arising under this Agreement);
Consumer has the same meaning as in section 3 of the Australian Consumer Law.
Consumer Guarantee means a Consumer guarantee applicable to this Agreement under the Australian Consumer Law.
CyberCX means CyberCX Pty Ltd and any of its Related Bodies Corporate;
Deliverables means the materials, reports and other deliverables to be provided by CyberCX in performing the Services, as set out in the relevant Proposal, quote or SOW;
Deliverables Date means the date upon which the Deliverables are to be provided to the Client, if any;
Event of Force Majeure means any event or circumstance, or a combination of events or circumstances, which is beyond the reasonable control of a party (but does not excuse any obligation to make payment).;
Insolvency Event means:
- bankruptcy proceedings are commenced against the relevant party, or the relevant party is declared bankrupt;
- any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person to the relevant party or to the whole or any part of the relevant party’s assets or business;
- if the relevant party is in a partnership, the partnership is dissolved or an application is made to dissolve the partnership;
- the relevant party is or becomes unable to pay its debts when they are due or either party is or is presumed to be insolvent for the purposes of any provision of the Corporations Act 2001 (Cth);
Late Payment Rate means a fixed interest rate of 2% above the overdraft rate charged on overdraft accounts over $100,000 by the Commonwealth Bank of Australia from time to time;
Loss means any loss, cost, liability or damage, including reasonable legal costs on a solicitor/client basis;
Personal Information has the meaning given to that term in the Privacy Act;
Personnel means, in relation to a party, its employees, Related Bodies Corporate, secondees, advisers and contractors;
Privacy Act means the Privacy Act 1988 (Cth);
Privacy Laws means the Privacy Act and all other applicable privacy and data protection laws as may be in force from time to time which regulate the collection, use, disclosure, storage of and granting of access rights to Personal Information;
Product means any products or goods supplied pursuant to the Agreement
Proposal means the proposal for Services to be provided to the Client by CyberCX;
Rates means the hourly or daily rates payable by the Client for the provision of Services by CyberCX, as set out in a Proposal, quote or SOW;
Related Body Corporate of an entity means a body corporate that is related to that entity in any of the ways specified in the Corporations Act 2001 (Cth);
Security Breach has the meaning given to that term in clause 9(a);
Services means the services to be provided to the Client by CyberCX, as set out in a relevant Proposal, quote, or SOW;
Statement of Work or SOW means a document setting out the Services and/or products to be provided to the Client by CyberCX;
Systems includes networks, software, applications, computers, servers, mobile devices, cloud services (including storage, software, platforms and infrastructure as a service), industrial control systems, and any other IT systems or equipment.
Third Party Licence has the meaning given to that term in clause 6.3(a)(i); and
Third Party Material has the meaning given to that term in clause 6.3(a).
In this Agreement, unless the context requires otherwise:
- clause and subclause headings are for reference purposes only;
- the singular includes the plural and vice versa;
- words denoting any gender include all genders;
- a reference to a person includes any other entity recognised by law and vice versa;
- where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
- any reference to a party to this Agreement includes its successors and permitted assigns;
- any reference to any agreement or document includes that agreement or document as amended at any time;
- the use of the word includes or including is not to be taken as limiting the meaning of the words preceding it;
- the expression at any time includes reference to past, present and future time and performing any action from time to time; and
- No provision of this Agreement will be construed adversely to a party because that party was responsible for the preparation of this agreement or that provision.
- an agreement, representation or warranty by two or more persons binds them jointly and severally and is for the benefit of them jointly and severally.