Services Agreement
This services agreement is made
between
FinCyber Australia Pty Ltd (ACN 691 686 914) (“Supplier”) (email: admin@fincyber.au)
and
the party accepting these terms ("Customer").
BACKGROUND
(A) The Supplier is an authorised managed service provider that supplies the Supported Products pursuant to the Vendor’s Terms and Conditions, and related cybersecurity products and services.
(B) The Supplier agrees to supply the Services to the Customer during Business Hours only, and the Customer agrees to accept that supply, in accordance with this agreement.
OPERATIVE PROVISIONS
1 Definitions and interpretation
1.1 Definitions
In this agreement:
Background IP means the Intellectual Property of a party, which:
(a) existed before the date of this agreement; or
(b) that party subsequently develops independently of, and for purposes unconnected with, this agreement.
Business Hours means 8:30am to 5:30pm AEST, Monday to Friday, excluding Australian Capital Territory public holidays.
Confidential Information means any information in written, electronic or machine-readable form that:
(a) relates to the Supplier, any Related Body Corporate of the Supplier, or any of their businesses, including any such information:
(i) developed by the Supplier for the purposes of, in the course of, or as a result of, providing the Services or performing its obligations under this agreement; or
(ii) received by the Customer from the Supplier or any of its Related Bodies Corporate during the Term; or
(b) is otherwise marked by the Supplier, or any Related Body Corporate of the Supplier, as confidential,
but does not include the information referred to in clause 7.4.
Without limiting the above definition, Confidential Information within the meaning of paragraph (a) above includes:
(c) any information relating to processes, equipment and techniques used by the Supplier or any of its Related Bodies Corporate in the course of its business; and
(d) all information, data, drawings, specifications, documentation, source or object codes, designs, workings, notes, techniques, concepts not reduced to material form, agreements with third parties, schematics, technical data, marketing information, customer lists, financial information and business plans (in each case) of or relating to the Supplier or any of its Related Bodies Corporate.
Contract IP means Intellectual Property created by the Supplier in the course of supplying the Services or otherwise performing its obligations under this agreement (if any).
Corporations Act means the Corporations Act 2001 (Cth).
Cyber Incident means any actual or suspected unauthorised access to, or unauthorised disclosure of, data (including Personal Information), or any compromise, disruption, degradation, loss, corruption, encryption, destruction or unavailability of systems, networks or data.
Customer Environment means the Customer’s systems, networks, endpoints, cloud environments, identities, configurations, applications, data and processes, and any third party systems controlled or used by the Customer, in each case that interact with, connect to, or are protected or monitored by, the Supported Products.
Deliverable means any work, output or deliverable to be provided by the Supplier to the Customer as a result of the supply of the Services.
Facilities means access to working space at the Customer’s premises and to the Customer’s computer equipment, computer network, and internet and telecommunications systems.
Fees means, in relation to Services, the fees payable for those Services as set out in (and calculated in accordance with) paragraph 4 of the Particulars.
Force Majeure Event means any occurrence or event:
(a) 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;
(b) which is beyond the reasonable control of that party; and
(c) which could not have been prevented or mitigated by reasonable diligence or precautionary measures on the part of that party,
but does not include any act or omission of a subcontractor or any change in general market conditions.]
GST has the meaning given to that term in the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
GST Law has the meaning given to that term in the GST Act.
Intellectual Property means all intellectual property rights of any kind anywhere in the world, whether registered or unregistered, including trade marks, patents, copyright, processes, know-how, designs or other like rights or any right to apply for registration of any of them.
Moral Right means:
(a) a moral right as defined in section 189 of the Copyright Act 1968 (Cth); and
(b) any right of a similar nature anywhere in the world that exists now or that may come to exist in the future.
Order means an order for payment of the Fees by the Supplier for all or part of the Services performed by the Supplier in a format which is satisfactory to the Supplier.
Particulars means the details, terms, conditions, specifications and requirements set out in schedule 1.
Personal Information has the meaning given in section 6 of the Privacy Act 1988 (Cth).]
Privacy Laws means:
(a) the Privacy Act 1988 (Cth); and
(b) any other legislation or administrative requirements imposing obligations in relation to the collection, use, disclosure, storage and transmission of Personal Information and which apply to the Supplier in the performance of its obligations under this agreement,
including any codes, principles or guidelines contained in or arising out of such legislation.]
Related Body Corporate means a body corporate that is related to another body corporate within the meaning of section 50 of the Corporations Act.
Services means the services to be supplied by the Supplier to the Customer, as set out in paragraph 3 of the Particulars.
Supplier’s Personnel means any employees of the Supplier that the Supplier designates to perform the Services.
Supported Products means the third party products as set out in paragraph 1 of the Particulars.
Term means the term of this agreement as specified in clause 2.
Vendor means the vendor of the Supported Products as set out in paragraph 2 of the Particulars.
Vendor’s Terms and Conditions means the then current terms and conditions made available by the Vendor in respect of the Supported Products, as may be updated from time to time.
1.2 Interpretation
In this agreement, headings are for ease of reference only and do not affect the interpretation of this agreement, and unless the context otherwise requires:
(a) words importing any gender include every gender;
(b) words importing the singular include the plural and vice versa;
(c) words importing persons include individuals, firms, partnerships, trusts, associations, companies and corporations;
(d) references to clauses, paragraphs and schedules are references to the relevant clause or paragraph in, or schedule to, this agreement;
(e) any reference to a party is to a party to this agreement;
(f) any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or bylaw made under that enactment; and
(g) the word “including” (and related forms including “includes”) means “including without limitation”.
2 Term
2.1 Term of Agreement
This agreement commences on the Effective Date and continues until terminated in accordance with the terms of this agreement.
3 Services
3.1 Supply of Services
During the Term, the Supplier will supply the Services to the Customer in accordance with the Particulars and otherwise in accordance with this agreement.
3.2 No exclusivity
The Customer acknowledges and agrees that the Supplier:
(a) supplies the Services to the Customer on a non-exclusive basis; and
(b) retains the right to supply the Services (and any other services) to any other person or persons in its sole discretion.
4 Fees and payments
4.1 Fees
In consideration of the Supplier supplying the Services to the Customer, the Customer must pay the Supplier the Fees in accordance with this clause 4.
4.2 Invoices and payments
(a) The Supplier will give the Customer the Order in accordance with GST Law specifying:
(i) the Services to which the Order relates;
(ii) the date of supply of those Services;
(iii) the Supplier’s Personnel who supplied those Services; and
(iv) the Fees for those Services (including their manner of calculation).
(b) The Customer must pay the Order provided by the Supplier in accordance with clause 4.2(a) upon receipt of that invoice.
4.3 Failure to pay
Without limiting the Supplier’s other rights, if the Customer does not pay the Order by the time specified in clause 4.2(b)(i), the Supplier can do any or all of the following:
(a) charge interest on the outstanding amount at the same rate that the Supplier’s bankers charge the Supplier on the Supplier’s business overdrafts;
(b) require the Customer to pay in advance for any Services (or any part of the Services) which have not yet been performed; and
(c) not perform any further Services (or any part of the Services) until the Order has been paid.
4.4 Disputed Order
If the Customer disputes the whole or any portion of the amount claimed in an Order submitted by the Supplier, the Customer must:
(a) pay the portion of the amount stated in the Order which is not in dispute in accordance with the terms of payment set out in this agreement; and
(b) notify the Supplier in writing (within 7 days after receipt of the Order) of the reasons for disputing the remainder of the Order.
4.5 Set off
Each party may set off any amount owed to it by the other party under or in connection with this Agreement against any amount due or becoming due to the other party under or in connection with this Agreement.
4.6 GST
(a) The Fees are exclusive of any GST that may be charged by the Supplier to the Customer in accordance with GST Law.
(b) If a payment by a party under or in connection with this agreement (including a payment referred to in clause 4.6(c)) is the consideration for a taxable supply, then, subject to the supplier of the taxable supply providing that party with a valid tax invoice for the supply, that party must pay an amount on account of GST in respect of that payment to the supplier:
(i) as an additional amount in accordance with GST Law; and
(ii) at the same time, and in the same manner, as the payment is payable (or as the parties otherwise agree in writing).
(c) If a payment due under this agreement is a reimbursement or indemnification by one party of an expense, loss or liability incurred or to be incurred by the other party, then that payment will exclude any GST forming part of the amount to be reimbursed or indemnified to the extent to which that other party can claim an input tax credit.
5 Intellectual Property
5.1 No transfer or grant of Intellectual Property unless otherwise provided
Other than as expressly provided in this clause 5, nothing in this agreement transfers or grants to either party any right, title or interest in or to any Intellectual Property (including any Background IP) of the other party.
5.2 Licence of Customer’s Background IP
The Customer grants to the Supplier a worldwide, non-exclusive, royalty-free, non-transferable, non-sub-licensable and revocable licence for the Term to use the Customer's Background IP solely to the extent necessary for the Supplier to supply the Services in accordance with this agreement.
5.3 Licence of Contract IP
(a) The Supplier owns all right, title and interest in and to the Contract IP except to the extent expressly set out in this clause 5.3.
(b) The Supplier grants to the Customer a non-transferable and non-exclusive licence to use the Contract IP, to the extent necessary for the Customer to exercise its rights and fulfil its obligations under this agreement and obtain the full benefit of the Deliverables.
(c) The Customer may not sub-license any of its rights under clause 5.3(b) without the prior written consent of the Supplier (which the Supplier may give or withhold in its sole discretion but acting reasonably).
5.4 IP indemnities
(a) The Customer must indemnify the Supplier against, and must pay the Supplier an amount equal to, any liabilities, costs and expenses that the Supplier incurs as a result of the Customer’s Background IP infringing the rights of a third party.
(b) Subject to clause 5.4(c), the Supplier must indemnify the Customer against, and must pay the Customer an amount equal to, any liabilities, costs and expenses that the Customer incurs as a result of the Contract IP or Supplier’s Background IP infringing the rights of a third party.
(c) The Supplier has no obligation to indemnify the Customer under clause 5.4(b) if any infringement, suspected infringement or alleged infringement of the Contract IP or Supplier’s Background IP arises from:
(i) use of the Deliverables in combination by any means and in any form with other goods not specifically approved by the Supplier;
(ii) use of the Deliverables in a manner or for a purpose not reasonably contemplated or not authorised by the Supplier;
(iii) modification or alteration of the Deliverables without the Supplier’s prior written; or
(iv) any transaction entered into by the Customer relating to the Deliverables without the Supplier's prior written consent.
6 Customer’s obligations
(a) During the Term, the Customer will, during Business Hours and upon reasonable request from the Supplier:
(i) make available to the Supplier such Facilities as the Supplier reasonably requires to supply the Services; and
(ii) ensure that the Customer’s staff give the Supplier reasonable assistance and cooperation to facilitate the Supplier’s provision of the Services.
(b) The Customer will not charge for:
(i) the Supplier’s use of the Facilities made available by the Customer under clause 6(a)(i); or
(ii) the assistance or cooperation of the Customer’s staff contemplated in clause 6(a)(ii).
(c) If the Customer does not comply with clause 6(a)(i), the Customer must pay the Supplier’s reasonable and necessary additional direct costs actually incurred by the Supplier to obtain similar facilities, to the extent those costs are a direct result of the Customer's non-compliance, provided that:
(i) the Supplier has taken reasonable steps to mitigate such costs; and
(ii) the Supplier has given the Customer written notice of the nature and amount of such costs and reasonable evidence of the basis on which they have been calculated, and allowed the Customer a reasonable opportunity to dispute the amount.
7 Confidentiality
7.1 Confidentiality of Supplier’s information
Each party (Recipient) must keep the Confidential Information of the other party (Discloser) strictly confidential and must not:
(a) disclose any Confidential Information to another person (except as expressly permitted by this clause 7); or
(b) otherwise deal with any Confidential Information in any way that might prejudice its confidentiality.
7.2 Term of confidentiality obligations
The Recipient’s obligations in relation to the Confidential Information will continue for so long as that Confidential Information is maintained on a confidential basis by the Discloser.
7.3 Return and destruction of Confidential Information
At the expiry or termination of this agreement, or when earlier directed by the Discloser, the Recipient must:
(a) return all Confidential Information to the Discloser, including any:
(i) copies, extracts or summaries of the Confidential Information; and
(ii) software that the Recipient creates based on the Confidential Information; and
(b) to the extent that any copies of Confidential Information cannot be returned to the Discloser, erase and destroy those copies (including any copies of any software containing or comprising the Confidential Information in the Customer’s possession or control) and confirm their destruction to the Discloser in writing.
7.4 Exceptions
The Confidential Information does not include information which:
(a) is generally available in the public domain otherwise than as a result of a breach of this clause 7 by the Receipient; or
(b) was in the Recipient’s lawful possession before disclosure by the Discloser; or
(c) is lawfully disclosed to the Recipient by a third party, unless the Recipient knows or ought reasonably to know, due to the circumstances, that the information is subject to confidentiality obligations.
7.5 Confidentiality agreements from personnel
Each party agrees that the other may require any of its employees, contractors or agents who are to receive Confidential Information to sign a confidentiality agreement, in a form reasonably approved by the Discloser, as a condition of accessing the Confidential Information.
7.6 Remedies
Each party acknowledges and agrees that:
(a) damages may be an inadequate remedy for a breach of this clause 7; and
(b) the Discloser may obtain injunctive relief against the Receipient for any breach of this clause 7 in addition to any other remedy available at law or in equity; and
(c) this clause 7 survives the expiry or termination of this agreement..
8 Privacy
8.1 Compliance with Privacy Laws
Each party must obtain all consents, and provide all notices, required by Privacy Laws in connection with any Personal Information provided to the other party under or in connection with this agreement.
8.2 Indemnity
Each party (Indemnifying Party) must indemnify the other party (Indemnified Party) against, and pay the Indemnified Party on demand an amount equal to, any loss, costs and expenses incurred by the Indemnified Party as a result of the Indemnifying Party’s failure to comply with clause 8.1.
8.3 Other privacy obligations
Each party must:
(a) immediately notify the other party 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;
(b) comply with any direction from the other party as to which party will discharge any mandatory reporting obligation arising from the incident;
(c) conduct or assist the other party in conducting a reasonable and expeditious assessment of the breach or suspected breach; and
(d) ensure compliance with all mandatory data breach reporting obligations arising out of the breach or suspected breach.
9 Subcontracting
(a) The Supplier may subcontract the supply of all or any of the Services.
(b) If the Supplier subcontracts any Services to a subcontractor, the Supplier remains liable to the Customer for the performance of its obligations under this agreement.
10 Warranties and reliance
10.1 Warranties
Each party represents and warrants to the other party that:
(a) it has full capacity and authority to enter into this agreement; and
(b) it has obtained all necessary and required licences, consents, authorisations, registrations and permits to perform its obligations under this agreement.
10.2 Customer warranty
The Customer represents and warrants to the Supplier that it will not interfere with the activities of the Supplier, its employees, agents or subcontractors except as reasonably necessary to facilitate the Supplier’s provision of the Services to the Customer in accordance with this agreement.
10.3 No reliance
Each party acknowledges and agrees that:
(a) in entering into this agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly set out in this agreement; and
(b) any conditions, warranties or other terms implied by statute or common law are excluded from this agreement to the fullest extent permitted by law.
10.4 Acknowledgement of inherent risks
The Customer acknowledges and agrees that:
(a) cybersecurity risk cannot be eliminated and cybersecurity products, including the Supported Products do not provide a guarantee that a Cyber Incident will be prevented, detected, contained or remediated, or that all malicious activity will be identified;
(b) the effectiveness of the Supported Products depends on factors outside the Supplier’s control, including the Customer Environment, the Customer’s security governance and processes, the threat landscape, third party technology and services, and the quality, timeliness and completeness of information, access and approvals provided by the Customer;
(c) the Supported Products may generate false positives, false negatives, incomplete telemetry, delayed alerts, or recommendations that are not suitable for all Customer Environments, and any automation, blocking, quarantine or containment features may have unintended operational impacts (including service disruption, application incompatibility, performance degradation, or interruption to legitimate activity);
(d) the Supported Products may require ongoing maintenance, updates, configuration changes, tuning, exclusions and integration adjustments, and may be impacted by Vendor changes, outages, feature limitations, deprecations or other third party actions; and
(e) the Supported Products are supplied by the Vendor. The Supplier is not the Vendor’s subcontractor for the purposes of the Vendor's product performance, managed detection and response activities, threat detections, telemetry, monitoring, alert generation, escalation decisions, outages, false positives, false negatives or other Vendor-side activities.
10.5 Customer responsibilities and risk allocation
(a) The Customer is solely responsible for:
(i) deciding whether to implement, enable, disable or act on any alert, recommendation, configuration guidance, or remediation step (including any containment action) in the Customer Environment;
(ii) maintaining appropriate backups, business continuity and disaster recovery arrangements, and testing restoration processes; and
(iii) maintaining and enforcing multi-factor authentication, privileged access controls, administrator account governance, incident response procedures and appropriate cyber insurance having regard to the nature of its business and the Customer’s risk profile.
(b) The Customer acknowledges that, even where the Supplier provides guidance or support, the Customer’s decisions and actions (or inaction) may increase or decrease the likelihood, impact, duration or scope of a Cyber Incident.
10.6 No representation of outcomes
Without limiting any other provision of this agreement, the Customer acknowledges and agrees that:
(a) any examples of threats, attack scenarios, coverage statements, marketing materials, product descriptions, or industry “best practice” guidance relating to the Supported Products are general in nature and do not constitute a promise, warranty or guarantee of outcomes for the Customer Environment;
(b) in entering into this agreement, the Customer does not do so in reliance on any representation, warranty or other provision except as expressly set out in this agreement; and
(c) the Supplier does not warrant or guarantee the prevention, detection, identification, escalation, investigation, containment, remediation, recovery from, or reporting of any Cyber Incident, nor any business continuity or operational outcome arising from the use of the Services or the Supported Products.
10.7 Data loss and restoration limitations
The Customer acknowledges and agrees that:
(a) any data retention, archiving, rollback or restoration capability associated with the Services or the Supported Products may be limited and may not capture all data or system states; and
(b) any restored data may be out of date, incomplete or corrupted, and restoration may not be possible in all circumstances (including where data has been encrypted, destroyed or overwritten).
11 Liability
11.1 Exclusion of liability
To the extent permitted by law, the Supplier will not be liable to the Customer, whether in contract, in tort (including negligence), under statute or otherwise, for any loss, costs, expenses, claims or damages:
(a) beyond the normal measure of damages that every plaintiff in a like situation would suffer; or
(b) for or in relation to loss of revenue, profits, savings, chance, business opportunity, goodwill or reputation; or
(c) for any losses arising from a Cyber Incident, including loss of data, business interruption, ransom payments, regulatory investigations, forensic costs, notification costs or remediation costs, except to the extent directly caused by the Supplier's proven breach of an express obligation under this agreement.
11.2 Aggregate liability
Each party’s aggregate liability to the other party under or in connection with this agreement, whether in contract, tort (including negligence), under statute or otherwise, is limited to the Fees actually paid by the Customer to the Supplier at the date the liability arose, to the extent permitted by law.
12 Termination
12.1 Termination for breach
Either party can terminate this agreement by written notice to the other party if:
(a) that other party materially breaches a provision of this agreement; and
(b) either:
(i) the breach is incapable of remedy; or
(ii) that other party fails to remedy the breach to the satisfaction of the notifying party within 30 days after the notifying party has given that other party written notice of the breach requiring that other party to remedy it.
For the purposes of this clause 12.1, a breach by the Customer of clause 4, 5.3, 6, 7 or 10 will be deemed to be a material breach.
12.2 Termination for insolvency event
Subject to any stay periods under applicable laws, either party can terminate this agreement by written notice to the other party if:
(a) that other party enters into a deed of arrangement or an order is made for it to be wound up;
(b) an administrator, receiver, receiver/manager or liquidator is appointed to that other party;
(c) that other party would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act; or
(d) that other party otherwise becomes unable to pay its debts as and when they become due and payable.
12.3 Termination for convenience
Either party can terminate this agreement at any time for convenience by providing at least 30 days’ written notice to the other party.
13 End of Term arrangements
At the end of the Term:
(a) within 14 days after the end of the Term, the Customer must pay to the Supplier any Fees due and payable by the Customer to the Supplier in respect of any period before the end of the Term;
(b) the Supplier must deliver, and require that its employees, agents and subcontractors deliver, to the Customer all materials and any other property of the Customer in the possession or control of the Supplier or the Supplier’s employees, agents or subcontractors as at the end of the Term; and
(c) subject to clause 17.10 and any rights or obligations accrued before the end of the Term, neither party will have any further obligations under this agreement.
14 Force Majeure
(a) A party affected by a Force Majeure Event will not have any liability under, or be deemed to be in breach of, this agreement for any delays or failures in performance of this agreement which result from that Force Majeure Event, provided that the party affected by that Force Majeure Event promptly notifies the other party in writing:
(i) when such circumstances cause a delay or failure in performance; and
(ii) when they cease to do so.
(b) If a Force Majeure Event causes a delay or failure in performance of this agreement by a party for a continuous period of more than 60 days, either party may terminate this agreement by written notice to the other party.
15 Announcements
(a) Subject to clause 15(b), no party may issue or make any public announcement or disclosure regarding this agreement unless, before that public announcement or disclosure, it:
(i) gives the other party a copy of the proposed announcement or disclosure; and
(ii) obtains the other party’s approval to the proposed announcement or disclosure.
(b) Despite clause 15(a), no party is prohibited from issuing or making any such public announcement or disclosure if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange.
16 Dispute Resolution
(a) If a dispute between the parties arises in connection with this Agreement, then either party must give a written notice of dispute to the other identifying the dispute and providing details of it.
(b) The parties shall first try to resolve any dispute between them by direct negotiation in good faith.
(c) If a dispute is not resolved by direct negotiation between the parties within 14 days of receiving the notice of dispute, the parties must endeavour to settle the dispute by mediation. Any such mediation will be conducted by a mediator independent of the parties appointed by agreement of the parties or, failing agreement within 21 days of receiving the notice of dispute, by a person appointed by the Resolution Institute.
(d) The ‘Mediation Rules' of the Resolution Institute shall apply to the mediation.
(e) Each Party agrees to bear its own costs of complying with this clause 16 and the parties must bear equally the costs of any mediator engaged.
(f) It is a condition precedent to the right of either party to litigate the dispute that it has first complied with the mediation process referred to in this clause 16. Nothing contained in the procedure set out in this clause 16 precludes a party’s right to seek injunctive relief from an appropriate court where failure to obtain such relief would cause irreparable damage to the party concerned, in that party’s reasonable opinion.
17 General
17.1 Amendments
This agreement may only be amended in writing signed by the parties.
17.2 Assignment
Subject to clause 9, the Supplier may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights or obligations under this agreement without the prior written consent of the Customer.
17.3 Entire agreement
This agreement contains the whole agreement between the parties in respect of the subject matter of this agreement and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter.
17.4 Waiver
No failure or delay by a party in exercising any right, power or privilege under this agreement will impair the same or operate as a waiver of the same. No single or partial exercise of any right, power or privilege precludes any further exercise of the same or the exercise of any other right, power or privilege.
17.5 Remedies cumulative
The rights and remedies provided in this agreement are cumulative and not exclusive of any rights and remedies provided by law.
17.6 No employment relationship
Nothing in this agreement constitutes the relationship of employer and employee between the Customer and the Supplier or between the Customer and the Supplier’s Personnel. It is the express intention of the parties that any such relationships are denied.
17.7 No agency or 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.
17.8 Further assurance
Each party must, at the request and expense of the other, execute and do any actions and other things reasonably necessary to give full effect to the provisions of this agreement.
17.9 Severance
If any provision of this agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable:
(a) 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;
(b) the severance will not affect any other provisions of or the validity or enforcement of this agreement.
17.10 Survival
The Customer’s obligations under clauses 4, 5, 6, 7, 8 and 13, and any other obligations by their nature intended to survive termination or expiry of this agreement, survive termination or expiry of this agreement.
17.11 Notices
A notice or other communication under or 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, or sent by email to the email address of the addressee, as set out in this agreement.
17.12 Costs
Except to the extent that this agreement expressly provides otherwise, each party must pay its own costs and expenses of preparing, negotiating, executing and performing this agreement.
17.13 Governing law and jurisdiction
(a) This agreement takes effect, is governed by, and will be construed in accordance with the laws from time to time in force in the Australian Capital Territory, Australia.
(b) The parties submit to the non-exclusive jurisdiction of the courts of the Australian Capital Territory.
ACCEPTANCE
BY CLICKING "I AGREE", "ACCEPT", OR OTHERWISE INDICATING ACCEPTANCE ELECTRONICALLY, THE CUSTOMER ACKNOWLEDGES HAVING READ AND AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT AS OF THE DATE OF ACCEPTANCE ("EFFECTIVE DATE")
SCHEDULE 1 Particulars
1 Supported Products
CrowdStrike Falcon Complete.
2 Vendor
CrowdStrike Inc.
3 Services
Unless otherwise expressly stated in an Order, the Supplier will provide the Services during Business Hours only. The Supplier is not a 24 hour, 7 day per week security operations centre, managed detection and response provider or incident response provider.
The Supplier's role is limited to administrative coordination and communication activities expressly described in the Services below. The Supplier has no obligation to independently monitor the Customer Environment, identify threats, investigate incidents, verify Vendor alerts or provide cyber incident response services.
The Supplier will provide the Customer with managed services in relation to the Supported Product during Business Hours, including facilitating licencing for the Supported Product and providing operational support services to assist the Customer to deploy and use the Supported Product within the Customer environment, including:
Licensing Facilitation
The Supplier will facilitate the Customer’s acquisition, renewal, adjustment and administration of Supported Product licences (as applicable to the Supplier’s authorised channel arrangements) during Business Hours, including:
· coordinating orders, renewals and changes to licence quantities or entitlements as requested by the Customer;
· assisting the Customer to understand licence metrics, tiers and feature availability as made available by the Vendor;
· maintaining records of the Customer’s licence orders administered through the Supplier and providing reasonable reporting on request; and
· liaising with the Vendor regarding licence enablement and administrative matters.
For clarity, the Supported Product is supplied under the Vendor’s Terms and Conditions between the Customer and the Vendor (and/or vendor-authorised reseller terms, as applicable), and the Supplier does not grant any intellectual property rights in the Supported Product.
Onboarding and configuration guidance
The Supplier will provide guidance during Business Hours to support onboarding and configuration of the Supported Product, which may include:
· assisting the Customer to plan rollout approach (including environment readiness, endpoint groups, and deployment sequencing);
· providing configuration guidance consistent with the Vendor’s recommended practices, including policy configuration guidance, exclusions guidance, and alerting/routing guidance;
· assisting the Customer to enable integrations (for example, identity, email, ‘SIEM’, ticketing or notification integrations) where supported by the Supported Product and requested by the Customer; and
· assisting with access provisioning and role-based access guidance for the Supported Product console.
Any changes implemented in the Customer environment will be performed only with the Customer’s approval and subject to the Customer providing the necessary access, information and approvals.
Monitoring coordination
The Supplier will coordinate monitoring activities relating to the Supported Product during Business Hours, including:
· coordinating the operational interface between the Customer and the Vendor’s managed detection and response service (where included in the Customer’s Supported Product subscription);
· receiving, triaging and coordinating responses to the Supported Product alerts and vendor notifications routed to the Supplier (where configured);
· coordinating escalation to the Vendor or other relevant parties for suspected compromise, detected threats, endpoint containment actions, or other events requiring vendor involvement; and
· coordinating communications with the Customer regarding incident status, recommended actions and closure summaries to the extent available from the Vendor.
The Supplier's obligation to coordinate any alert, notification or incident arises only where that alert or notification has actually been received by the Supplier through an agreed communication channel during Business Hours.
Support services (Level 1 / Level 2)
The Supplier will provide Level 1 and Level 2 support services in relation to the Supported Product during Business Hours as follows:
Level 1 support (triage and service coordination), including:
· intake of support requests from the Customer via the agreed support channels;
· initial troubleshooting, including basic diagnostics, configuration checks, and log/alert review to the extent available;
· guidance on common “how to” usage and administrative matters;
· incident ticket creation and management, including routing to the Vendor where required; and
· updates to the Customer on ticket progress and expected timeframes where available.
Level 2 support (advanced troubleshooting and configuration assistance), including:
· advanced troubleshooting within the scope of the Supported Product’s administration and configuration;
· assistance to identify likely root causes for Supported Product issues (including deployment, policy conflicts, exclusions, sensor health, connectivity issues, and integration issues), and recommended remediation steps;
· support for changes to configuration (including guidance on implementing and validating changes); and
· escalation management with the Vendor for Supported Product defects, service-side issues, false positives requiring vendor tuning, or issues requiring vendor engineering intervention.
4 Fees
As set out in the Order.