Terms of Service

Effective 30 June 2023

These terms and conditions outline the terms of service by engaging Defy IT to perform work.

By booking work with us, we assume you accept these terms and conditions.

1. Agreement

(a) This Agreement is between:

i. Defy IT otherwise referred to as “Defy IT” “us”, “our” or “we” in this Agreement; and;

ii. the Client, otherwise referred to as “you” or “your” in this Agreement.

(b) We agree to provide the Services in accordance with this Agreement in return for the Charges and Payments

(c) We promise to each other that as at the date of signing this Agreement, the signatory of each party has full authority to sign this Agreement on behalf of that party.

(d) This Agreement replaces all prior agreements understandings and undertakings between the parties who rely solely on the contents of this Agreement and no earlier conversations, emails or other communications as to the Services, scope and responsibilities of each party.

2. Relationship

(a) Defy IT is an independent contractor of the Client and is not a partner, agent, employee or joint venturer of the Client in the conduct of the Client's business.

(b) Nothing in this Agreement imposes any fiduciary duties on a party in relation to the other party.

(c) Defy IT acknowledges it has sole responsibility in relation to payment of superannuation, workers’ compensation and taxes incidental to employment in respect of its own personnel.

(d) The parties agree that they have the respective rights to enter into this Agreement and to grant to the other party all of the rights and benefits outlined in this Agreement;

(e) The parties agree that they have the respective ability to perform all obligations under this Agreement and neither party is aware of any matter or arrangement that would limit its right to fully perform its obligations under this Agreement.

3. Services

3.1 Term

(a) This Agreement will start on the date of first booking our services and will continue until notification

(b) This Agreement may be renewed for a further term as agreed in writing between the parties (Further Term).

(c) In the event that we continue to provide Services after a stated term or provide services outside the scope as set out in this Agreement, the terms of this Agreement will apply to any such services, and any ongoing services will be provided on a month-to-month basis unless otherwise agreed.

3.2 Provision of Services

(a) At all times we will provide the Services:

i. promptly, carefully and to high industry standards;

ii exercising all due care, skill and judgement, in an efficient, professional and cost-effective manner and in accordance with accepted professional and business practices; and

iii. in accordance with your reasonable instructions or directions.

(b) In respect of the Services and any Service Level Agreement, any timelines or deadlines are estimates, for guidance purpose only, and time is not of the essence.

4. Our promises to you

(a) Maintain a high level of communication with you and advise you as soon as reasonably practicable of any event or incident that could impact our ability to provide the Services; (b) Use all reasonable endeavours to ensure the Services are provided by suitably qualified personnel to such standards as are reasonably necessary for us to carry out the Services competently and efficiently.

(c) Comply with all applicable Laws in connection with the Services.

(d) Obtain and maintain all applicable licences, authorisations, consents approvals and permits necessary to complete the Services.

(e) Ensure that the provision of the Services will not cause the infringement of the Intellectual Property rights of any third party.

5. Your promises to us

(a) Provide us, our employees and consultants reasonable access as required to your Systems during Business Days and other times as reasonably required by us to enable us to carry out and provide the Services including testing and maintenance (Access).

(b) You acknowledge and accept that our Access may interrupt, disrupt or prevent use of any of your Systems while the Services, including testing and maintenance is being conducted.

(c) Where requested by us acting reasonably, you agree to shut down or cease using the whole, or part, of your Systems so as to allow us to provide the Services, until we recommend that you may resume use; and ensure that all of your employees, agents and contractors co-operate with us, our employees and consultants at all times and provide us with support, access, information, and assistance as reasonably required.

(e) If it is impractical for you to shut down or cease use of your Systems at the time requested by us, you agree to notify us and the parties must reschedule such work to occur at a time appropriate for both parties.

(f) Where you do instruct us to reschedule the Service to a time other than that recommended by us, we will not in any circumstances be liable for any Loss, damage or delay which occurs in connection with your instructions.

(g) You agree to provide us with all information necessary for us to access your System, provide the Services, and that the information you provide to us is accurate, complete and current to the best of your knowledge.

6. Nature of the Services

(a) Where cybersecurity services are provided as part of the Services:

i. You agree and acknowledge that some of the tools or methods we may use in providing the Services may simulate activity which may be illegal when conducted without permission on a user’s system; and you provide us with full consent to use such tools and conduct such tasks on your Systems and infrastructure in the course of the Services in order to detect vulnerabilities in your Systems and infrastructure and to test, measure and assess your cyber security measures.

ii. While we make best efforts to secure your Systems and infrastructure against current and emerging threats and mitigate risks, you acknowledge and agree that we cannot entirely prevent or stop all threats from penetrating or entering your System or infrastructure and therefore cannot make any guarantees as to complete security or that all threats are prevented or neutralised.

7. Fees

7.1 Charges

(a) In return for us providing you with the Services, you agree to pay us the Fees.

(b) Unless otherwise agreed, we will require the upfront portion of our Fees to be paid before we start providing the Services.

(c) You must pay us in accordance with our payment terms as set out in our invoice, which if not specified in our invoice, is within 7 days of the date of issue of our invoice.

(d) You agree to pay our fees in the method/s as specified in our invoices.

(e) In the event of a default in payment for our Services, and if we engage a third-party to recover outstanding fees (such as a debt collector, mercantile agent or solicitor), you agree to indemnify us, that is, pay for all costs we have incurred in recovering the amount owing by you, in addition to the amount outstanding in the invoice.

(f) All Fees payable by you to us are to be paid in full, without set off, deduction or requirement for demand.

8. Goods & Services Tax

(a) Words or expressions used in this clause which are defined in the GST Law have the same meaning in this clause.

(b) If we make a supply under or in connection with this Agreement on which GST is imposed (not being a supply the consideration for which is referred to as 'GST inclusive'):

i. the consideration payable or to be provided for that supply under this Agreement but for the application of this clause (GST exclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to us, an amount equal to the GST payable by us on that supply; and

ii. the amount by which the GST exclusive consideration is increased must be paid to us by you without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided, so long as we have first provided you with a valid tax invoice in accordance with the GST Act.

(c) If a payment to a party under this Agreement is a reimbursement or indemnification, calculated by reference to a Loss incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that Loss.

9. Intellectual property

9.1 Title

(a) Both parties acknowledge that the benefit, right, title and interest in all Intellectual Property in :

i. Our Material shall remain and vest absolutely with Defy IT unless otherwise agreed in writing and signed by the Client and Defy IT; and

ii. Your Material and the Material shall remain or be assigned to and vest absolutely with you unless otherwise agreed in writing signed by you and us.

(b) To the extent the Intellectual Property in the Material is not capable of being vested in you under this Agreement because we do not own the Intellectual Property rights, we must ensure that you are irrevocably licensed to use the Intellectual Property rights; and such licence must be royalty free and include a right to sub-licence.

9.2 Pre-Existing Rights

(a) The parties agree that despite the above clause, there is to be no transfer, assignment or vesting of Intellectual Property rights in any Pre-existing Material which is incorporated into the Materials. In such circumstances, we will grant you an exclusive, non-transferable licence to use such Pre-existing Materials and the Materials.

10. Liability and Indemnities

(a) To the fullest extent permitted by law, we make no representation or warranty in respect of the provision of the Services, except that we will carry out the Services competently, professionally and the to the best of our ability within the scope of this Agreement.

(b) Our warranties with respect to the state, quality or condition of the Services are limited to those imposed on us by statute, including those contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and we otherwise expressly disclaim all other warranties and conditions.

(c) You expressly accept and acknowledge that we are not liable to you for any costs, expenses, Loss, liability or damage of any kind, including but not limited to loss of profits, however arising from or in connection with:

i. any delay in us attending to provide the Services or otherwise responding to your query;

ii. any failure or inability to address, repair or otherwise respond to any query in relation to the Services;

iii. your inability to access your Systems;

iv. any disruption or interference with your business or that of your customers in connection with the Services;

v. your Systems or infrastructure failing to operate at any time or times during the Term;

vi. your failure to follow our advice or directions;

vii. any delay, failure or error in the provision of the Services due to any circumstance outside our reasonable control, including without limitations, failure of any communications network or system, electronic power surges, overloads, failures or blackouts,

except to the extent that such costs, expenses, Loss, liability or damage is directly caused by our negligent act or omission.

(d) To the fullest extent permitted by law, we exclude all liability for direct, indirect and consequential loss including without limitation the loss or corruption of your Systems or you or your customer’s data, loss of revenue, loss of profits, failure to realise expected profits or savings and any other commercial or economic loss of any kind arising from this Agreement or the provision of any of the Services by us except to the extent that such liability is a result of our negligent acts or omissions.

(e) Where we are liable for any costs, expenses, Loss, liability or damage suffered by you, our liability is limited to either:

i. re-supply of the Services; or

ii. payment of the cost of having another provider re-supply the Services.(f) To the fullest extent permitted by law, our aggregate liability to you arising out of or in connection with this Agreement (whether under contract, in tort, under statute or otherwise at law or in equity) is limited to the Fees paid by you to us over the previous six (6) month period or if the Agreement has not been in effect for six (6) months at the time of the Claim, Fees paid by you to us from the Commencement Date until the time of the Claim.

(g) Upon the completion or termination of this Agreement, you acknowledge and agree that you must assume full responsibility for the ongoing security of your Systems, networks, and data. We shall not be held liable for any security breaches, vulnerabilities, or incidents that may occur after the engagement has concluded.

(h) You further understand that cybersecurity threats and risks are dynamic, and it is your sole responsibility to maintain and update your security measures, including but not limited to, software patches, firewall configurations, access controls, and employee training.

(i) You disclaim any and all liability for any damages, losses, or expenses incurred as a result of any security incidents or breaches that occur during our engagement. This includes, but is not limited to, financial losses, reputational damage, and data breaches.

(j) You are strongly encouraged to engage in ongoing cybersecurity monitoring, risk assessment, and mitigation efforts to safeguard your Systems and data.

11. Confidentiality

(a) Each party must keep confidential and not allow, make or cause any use or disclosure of or in relation to:

i. the terms of this Agreement (including any written or oral agreements, negotiations or information in relation to this Agreement); and

ii. any Confidential Information, document or information which is identified to that party by the other party as being confidential, or which that party knows, or reasonably ought to know, is confidential to the other party,

without the prior written consent of the other party.

(b) The obligations in this clause do not apply to disclosures:

i. to a party's legal and other professional advisors requiring the information for the purposes of this Agreement or any transaction contemplated by it or for the purposes of advising that party in relation to such matters;

ii. required by law or by a lawful requirement of any government or governmental body, authority or agency having jurisdiction over that party; or

iii. of information which is at the time generally and publicly available other than as a result of breach of confidence by that party.

(c) This clause survives the expiry or termination of this Agreement.

(d) You acknowledge that we may process your information obtained in connection with Services performed to you, for benchmarking, research, thought leadership and related purposes, and to enhance the services we provide to you and other clients, provided that we do not identify you or any individuals related to you, or otherwise make reference to you, in connection with these matters.

12. Dispute Resolution

(a) If a dispute arises in connection with this Agreement, the parties agree to negotiate in good faith to resolve the dispute in a spirit of goodwill and compromise.

(b) If there is a dispute that is not resolved, either party may give to the other party notice specifying the dispute and requiring its resolution under this clause (Notice of Dispute).

(c) If the dispute is not resolved within 30 days after the Notice of Dispute is given to the other party (Notice Period), the dispute is to be submitted to mediation.

(d) If the parties have not agreed upon the mediator and the mediator’s remuneration within 14 days after the Notice Period:

i. the mediator is the person appointed by; and

ii. the remuneration of the mediator is the amount or rate determined by,

iii. the President of the Law Society of Queensland or the President’s nominee, acting on the request of either party.

(e) The parties must pay the mediator’s remuneration in equal shares, and each party must pay its own costs of the mediation.

(f) This clause does not prevent either party from obtaining any injunctive, declaratory or other interlocutory relief from a court which may be urgently required.

(g) If the dispute is not resolved prior to, at, or within 7 days of mediation, then either party may commence proceedings in a Court of Tribunal of competent jurisdiction.

(g) The parties must not commence or maintain a Tribunal or Court action or proceeding upon a dispute in connection with this agreement until the dispute has been submitted to mediation under this clause.

(h) Notwithstanding the existence of a dispute, each party must continue to perform its obligations under this Agreement.

13. Assignment & Subcontracting

13.1 Assignment

(a) You may not novate, assign or transfer in whole or in part any of your rights or obligations under this Agreement without our prior written consent, which approval may be withheld at our absolute sole discretion.

(b) We may not novate, assign or transfer in whole or in part any of our rights or obligations under this Agreement without your prior written consent.

13.2 Subcontracting

(a) We may subcontract our obligations under this Agreement including the provision of part or all of the Services without your consent.

(b) In the event that we elect to subcontract any part of our obligations or the Services, we will remain principally liable to you for the performance of the subcontracted obligations and services under this Agreement and will remain responsible to you for the acts, omissions, defaults and/or negligence of our subcontractors.

14. Termination

(a) Without limiting the generality of any other clause in this Agreement, either party may terminate this Agreement immediately by notice in writing if the other party:

i. is in breach of any term of this Agreement and any such breach is not remedied within 14 days of the non-defaulting party notifying the defaulting party of the need to remedy (Breach Notice), including but not limited to the obligation to pay the Fees;

ii. becomes, threatens or resolves to become subject to any form of Insolvency Event or administration;

iii. being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;

iv. being a natural person, dies; or

v. ceases conducting its business in the normal manner.

(b) In the event that either party to this contract engages in abusive, threatening, or harassing behaviour towards the other party, whether verbally, physically, or through written communication, the aggrieved party shall have the right to terminate this contract immediately upon written notice to the offending party. Such termination shall be without prejudice to any other rights or remedies available to the aggrieved party under applicable laws or this contract. The aggrieved party shall not be held liable for any further performance or obligations under this contract upon termination, and any payments owed to the aggrieved party shall be calculated up to the date of termination.

15. General

15.1 Non-disparagement

(a) Each party undertakes not to, and to use its best endeavours to ensure that none of its officers, agents and employees, make any statement of intimations derogatory of the other party or its officers, agents or employees. This clause will survive the expiry of termination of this Agreement.

15.2 Jurisdiction & Governing Law

(a) This Agreement is governed by and construed in accordance with the laws of Queensland, Australia.

(b) Actions, suits or proceedings relating in any way to this Agreement or documents or dealings contemplated by it, may be instituted, heard and determined in a court of competent jurisdiction in Queensland; and each party irrevocably submits to the non-exclusive jurisdiction of the Courts in Queensland for the purpose of any such action, suit or proceeding arising from this Agreement.

15.3 Independent Advice

(a) Each party has been given the opportunity to seek independent legal advice and accounting advice with respect to the content and effect of this Agreement and has sought such advice as it deems necessary.

15.4 Variations

(a) Any variations of this Agreement must be in writing, signed by the parties or (in the case of a waiver) by the party giving it.

15.5 Waiver

(a) The non-exercise of or delay in exercising a right of a party does not operate as a waiver of that right, nor does a single exercise of a right prevent another exercise of it or the exercise of other rights. A right may only be waived by notice, signed by the party (or its Authorised Representative) to be bound by the waiver.

15.6 Further assurances

(a) Each party to this Agreement must do all things and sign, execute and deliver all deeds and other documents as may be legally necessary or reasonably required of it by notice from another party to carry out and give effect to the terms and intentions of this Agreement and to perfect, protect and preserve the rights of the other parties to this Agreement.

15.7 Counterparts

(a) This Agreement may be signed or executed in a number of counterparts, with the same effect as if the signatures to or execution of each counterpart were on the same document.

15.8 Severability

(a) If a provision of this Agreement, on its true interpretation or construction is held to be illegal, invalid or unenforceable:

i. that provision shall, so far as possible, be read down to the extent that it may be necessary to ensure that it is not illegal, invalid or unenforceable and as may be reasonable in all the circumstances so as to give it a valid operation; or

ii. if the provision or part of it cannot effectively be read down, that provision or part of it shall be deemed to be void and severable and the remaining provisions of this Agreement shall not in any way be affected or impaired and shall continue notwithstanding that illegality, invalidity or unenforceability.

15.9 Multi-capacity

(a) If a party to this Agreement is a party in more than one capacity, it is only necessary for that party to execute this Agreement once and such execution shall bind that party in all capacities.

16. Definitions & Interpretation

16.1 Definitions

In this Agreement, unless the context or subject matter otherwise require:

Agreement means this agreement

Authorised Representative means:

(a) in respect of a party which is a corporation: a company secretary or director or any officer of the corporation whose title or office includes the words "manager" or "director"; or a person acting with the title or in the office of manager or director; and

(b) in respect of each party, a solicitor of that party or a person nominated by Notice to the other party as an authorised representative.

Business Day means a day, not being a Saturday, Sunday or gazetted public holiday, on which banks are open for commercial business at Brisbane and in the place or places where performance of a relevant obligation is or is required to take place.

Claim means, in relation to a person, a claim, demand, remedy, suit, injury, damage, Loss, cost, liability, action, proceeding, right of action, chose in action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent.

Confidential Information means the information, concepts, ideas, methodologies, systems, designs, data, formulae, forms, specifications, algorithms, processes, statements, charts, graphs, trade secrets, drawings, manuals, software (including source and object code versions) and data (and copies and extracts made of or from that information and data) disclosed to either Party pursuant to this Agreement and includes:

(a) confidential information relating to either Party’s clientele; information relating to the personnel, policies or business strategies of either Party; or information relating to the terms of this Agreement;

The Confidential Information does not include any information that: is or becomes generally known without breach of the terms of this Agreement or any other non-disclosure agreement; or is required to be disclosed pursuant to the order or court or agency or government entity authorised under law to require disclosure.

GST means the goods and services tax as this term is defined in the GST Act.

GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Insolvency Event in relation to a Party means:

(a) committing an act of bankruptcy;

(b) notice is given of a meeting of creditors with a view to a Party entering a deed of company arrangement;

(c) a Party enters into any scheme of arrangement or composition;

(d) a mortgagee of a Party’s property takes possession of that property;

(e) a receiver or administrator is appointed to any property of a Party; or

(f) winding up or insolvency of a Party.

Intellectual Property means rights in relation to Confidential Information, trade secrets, trade marks, domain names, business names, goodwill and reputation, designs, patents, copyright, processes, methods, inventions, product formulations and all other rights or forms of protection having an equivalent or similar nature or effect whether within or outside Australia, whether registered or unregistered and including all rights of action, powers and benefits of the abovementioned.

Laws mean any statute, regulation, by-law, ordinance or subordinate legislation in force from time to time and includes the common law as applicable from time to time, and any applicable industry codes of conduct or standards, both national and international.

Loss means any and all losses (excluding loss of profit and loss of expected profit), claims, actions, liabilities, damages, expenses, diminutions in value or deficiencies of any kind or character including, without limitation, all interest and other amounts payable to third parties, all liabilities on account of any taxes and all legal and other expenses reasonably incurred in connection with investigation or defending any claims or actions, whether or not resulting in any liability and all amounts paid in settlement of claims or actions.

Material means any material, document or work, whether in tangible or intangible form, that is discovered, developed or has otherwise come into existence as a result of the performance of the Services to be provided under this Agreement and paid for by you but which excludes Our Material.

Notice means a written notice, consent, approval, direction, order or other communication between the parties.

Our Material means any material, document or work, whether in tangible or intangible form that is developed by us that arises generally from the normal course of our business and is generic to our business and processes or our other clients and is created outside of, or incidental to the terms of this Agreement

Pre-existing Material means any material, document or work, whether in tangible or intangible form of you or us that existed prior to the execution of this Agreement.

Services means the services to be provided by us to you t under this Agreement including the services described in Schedule 2.

Systems means your electronic systems, online systems, server Infrastructure, network Infrastructure, including modems, firewalls, network switches, wireless access points, desktop and laptop computers, tablets, mobile phones, PABX Systems and associated handsets, and other hardware, software or other tangible or intangible systems reasonably required for us to provide the Services.

Your Material means any material, document or work that is developed by you that arises generally from the normal course of your business.

16.2 Interpretation

In the interpretation of this Agreement, unless the context or subject matter otherwise require:

(a) singular includes plural and vice versa;

(b) a reference to a person includes corporations, trusts, associations, partnerships, a Government Authority, and other legal entities, and where necessary, include successor bodies;

(c) references to writing include printing, typing, and other means of representing or reproducing words, figures, drawings or symbols in a visible and tangible form, in English;

(d) references to signature and signing include due execution of a document by a corporation or other relevant entity;

(e) references to months mean calendar months;

(f) references to statutes include statutes amending, consolidating or replacing the statutes referred to and all regulations, orders-in-council, rules, by-laws and ordinances made under those statutes;

(g) references to sections of statutes or terms defined in statutes refer to corresponding sections or defined terms in amended, consolidated or replacement statutes;

(h) where any word or phrase is given a defined meaning, another grammatical form of that word or phrase has a corresponding meaning;

(i) each paragraph or sub-paragraph in a list is to be read independently from the others in the list;

(j) a reference to an agreement or document is to that agreement or document as amended, novated, supplemented or replaced from time to time; and

(k) a reference to a party includes that party's executors, administrators, substitutes, successors and permitted assigns.