Conditions applicable from 1 July 2023
These are the standard Terms and Conditions of Revolution InfoSec Limited and are a legally binding Agreement, effective from the Date of Execution of an appropriate Statement of Work or Quotation.
For the purposes of this Agreement, the Client and Revolution InfoSec may each be referred to as “Party” or, collectively, as the “Parties”. The Parties, intending to be legally bound, hereby agree as follows:
- Revolution InfoSec will provide the services to the Client that are set out in Statement of Work or Quotation to this Agreement (“Services”).
Each Party will provide the resources as described in the statement of work or quotation.
- Revolution InfoSec may engage any Affiliate of Revolution InfoSec to provide Services and Deliverables to the Client for Revolution InfoSec under this Agreement. Revolution InfoSec will remain fully responsible and liable for Services and Deliverables provided under this Agreement by its Affiliates.
- The term “Affiliate” means any entity that controls or is controlled by or is under common control with Revolution InfoSec or the Client, as applicable, where “control” means possessing, directly or indirectly, the power to direct or cause the direction of the management, policies and operations of such entity, whether through ownership of voting securities, by contract or otherwise.
2. Value of Services
- Revolution InfoSec will invoice the Client for all amounts payable to Revolution InfoSec on a monthly basis as such payments are due.
- The Client will pay all invoiced amounts that are not disputed in good faith; Revolution InfoSec standard account payment terms are the 20th of the month following the date of the invoice.
- The Client shall pay Revolution InfoSec the fees and other compensation set out in Statement of Work or Quotation.
- The cost of travel, accommodation and other Project related expenses, if any, shall be stated in Statement of Work or Quotation or agreed by the Parties in writing.
- The technical and office infrastructure for this Project will be provided to the Revolution InfoSec onsite team by the Client.
- All the software, hardware and tools/utilities required for performing the Project related activities will be provided at no cost to Revolution InfoSec by the Client.
- The Client agrees to pay any applicable sales, use, value added, goods and services, services, excise, privilege, or other taxes or assessments relating to the Services or Deliverables provided by Revolution InfoSec to the Client under this Agreement, exclusive of taxes based on Revolution InfoSec’s net income or net worth. Revolution InfoSec will invoice the Client for any taxes payable by the Client that are required to be collected by Revolution InfoSec.
- To the extent any applicable sales, use, value added, goods and services, services, excise, privilege, or other taxes is required to be self-assessed under reverse charge by the Client under the applicable law, the Client shall be responsible for payment thereof to the appropriate tax authority and not charge back the same to Revolution InfoSec.
- The Client confirms it is registered for New Zealand GST in accordance with the Goods and Services Tax Act 1985 (NZ) and other applicable New Zealand tax laws and will advise Revolution InfoSec immediately should the Client cease to be so registered.
- Unless GST is expressly included, the consideration to be paid or provided under any other provision of this Agreement for any supply made under or in connection with this Agreement does not include GST. To the extent that any supply made under or in connection with this Agreement is a taxable supply, the GST exclusive consideration otherwise to be paid or provided for that taxable supply is increased by the amount of any GST payable in respect of that taxable supply and that amount must be paid at the same time and in the same manner as the GST exclusive consideration is otherwise to be paid or provided.
During the term of this Agreement and for a period of twelve (12) months thereafter, neither Party shall, directly or indirectly, solicit for employment or employ, or accept services provided by any current or former employees of the other Party (including employees of Revolution InfoSec’s Affiliates) who perform(ed) any work in connection with or related to the Services without prior written approval from the other Party.
- Revolution InfoSec warrants and represents the following for a period of thirty (30) days following delivery of any Deliverable or the performance of the Services:
- the Services will be performed in accordance with this Agreement; and
-all Deliverables shall comply with the specifications in this Agreement or other specifications as agreed to in writing by Revolution InfoSec and the Client.
- To the extent permitted by law, except as expressly provided in this Agreement, Revolution InfoSec makes no other warranties of any kind or nature whatsoever, whether express or implied, including, but not limited to, warranties of merchantability or fitness for a particular purpose or use or warranties of uninterrupted or error-free performance of computer systems, applications, software, hardware or equipment.
- The Client warrants that:
- it has the right and consents to provide Revolution InfoSec (and its personnel) with any software, documentation, physical and computing environment, data, information, including personally identifiable information, instruction, equipment, design, specification or other materials provided or made available by or on behalf of the Client to Revolution InfoSec for Revolution InfoSec and its personnel to use, access, collect, handle, modify, transfer or interface with (“Use”) in connection with the Services (“Client Inputs”); and<
- Revolution InfoSec and its personnel’s Use of the Client Inputs will not infringe or otherwise violate the intellectual property rights or other rights of any third party.
6. Intellectual Property
- Revolution InfoSec agrees that the deliverables that Revolution InfoSec specifically creates for the Client under this Agreement, and detailed under the Statement of Work or Quotation (collectively, the “Deliverables”) will be owned by the Client.
- Revolution InfoSec agrees to take all reasonably necessary actions to assure the conveyance to the Client of all right, title and interest in, to and under any Deliverables, including copyright.
- Notwithstanding anything to the contrary, the Client acquires no rights in Revolution InfoSec’s intellectual property or other proprietary works of authorship, pre-existing or otherwise, that have not been created specifically for the Client, including, without limitation, any derivatives, enhancements or modifications which have been originated, developed, purchased or licensed by Revolution InfoSec or its Affiliates, or by third parties under contract to Revolution InfoSec or its Affiliates.
- For a period of three (3) years from the date of disclosure of the applicable Confidential Information (as defined in clause 7(c)), the Client and Revolution InfoSec shall each:
- hold the Confidential Information of the other in trust and confidence and avoid the disclosure or release thereof to any other person or entity by using the same degree of care as it uses to avoid unauthorised use, disclosure, or dissemination of its own Confidential Information of a similar nature, but not less than reasonable care; and
- not use the Confidential Information of the other Party for any purpose whatsoever except as expressly contemplated under this Agreement.
- Each Party may disclose the Confidential Information of the other only to those of its employees, personnel (including employees of Revolution InfoSec’s Affiliates), having a need to know such Confidential Information and shall take all reasonable precautions to ensure that such employees and personnel comply with the provisions of clause 7(a).
- The term “Confidential Information” shall mean any and all information or proprietary materials (in every form and media) not generally known in the relevant trade or industry and which has been or is hereafter disclosed or made available by either Party (the “Disclosing Party”) to the other (the “Receiving Party”) in connection with this Agreement, including but not limited to, all sales and operating information, existing and potential business and marketing plans and strategies, financial information, cost and pricing information, data media, know-how, designs, drawings, specifications, source codes, technical information, concepts, reports, methods, processes, techniques, operations, devices, and the like, whether or not the foregoing information is patented, tested, reduced to practice, or subject to copyright.
- Either party shall ensure that The obligations of either Party under clause 1 will not apply to information that the Receiving Party can demonstrate:
- was in its possession at the time of disclosure and without restriction as to confidentiality;
- at the time of disclosure, is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the Receiving Party;
- has been received from a third party without restriction on disclosure and without breach of agreement by the Receiving Party; or
- is independently developed by the Receiving Party or its Affiliates without regard to the Confidential Information of the Disclosing Party.
- The Receiving Party may disclose Confidential Information as required to comply with law provided that the Receiving Party:
- gives the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or other appropriate remedy;
- discloses only such Confidential Information as is required by law or a governmental entity; and
- uses commercially reasonable efforts to obtain confidential treatment for any Confidential Information so disclosed.
8. Limitation of Liability
- To the extent permitted by law:
- Revolution InfoSec shall not be liable to the Client or any other person or entity for incidental or consequential damages, including, without limitation, the loss of sales or revenues, loss of goodwill, loss of business information or loss of profits, even if advised of the possibility of such damages or loss; and
- Revolution InfoSec’s liability to the Client or any other person or entity arising out of, under or in connection with this Agreement (whether in contract, tort (including negligence), under indemnity or otherwise) is limited to, in the aggregate, the total amount paid by the Client under this Agreement.
- Revolution InfoSec will not be liable to the Client, whether in contract, tort (including negligence), under indemnity or otherwise, for loss suffered under or in connection with this Agreement to the extent that the Client or its Affiliates contributed to such loss.
- The Client must take reasonable steps to mitigate its loss. Revolution InfoSec will not be responsible for any loss to the extent that the Client could have avoided or reduced the amount of the loss, by taking reasonable steps to mitigate its loss.
9. Term and Termination
- This Agreement commences on the Commencement Date and will continue for the Period, unless otherwise agreed between the Parties in writing.
- This Agreement may be terminated in whole or in part by either Party upon written notice to the other Party if the other Party commits a material breach of this Agreement and fails to cure such breach within thirty (30) days after receipt of notice of such breach or within any time period agreed between the Parties in writing.
- Upon termination, Revolution InfoSec is entitled to recover payment for all Services and Deliverables provided or rendered through to the effective date of termination (including for work in progress), and any other amounts set out in the Statement of Work or Quotation (including any substantiated demobilisation costs and termination charges).
10. Excusable Events
- Revolution InfoSec is not liable for any delay or failure to provide the Services or Deliverables in accordance with the terms of this Agreement to the extent such delay or failure resulted from an Excusable Event. The Client acknowledges that Excusable Events may result in additional cost to the Client.
- The term “Excusable Event” means:
- any failure of the Client or its personnel to perform its obligations under this Agreement;
- any delay or failure of the Client to provide a Client Input, to satisfy a dependency promptly or upon the request of Revolution InfoSec or its Affiliates, or to provide necessary information, equipment or access;
- any assumption contained in this Agreement which is untrue or incorrect; or
- any causes beyond Revolution InfoSec’s reasonable control.
- This Agreement shall be governed by and interpreted in accordance with the laws of New Zealand. The courts of New Zealand have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement.
- The Parties acknowledge and agree that this Agreement relates solely to the performance of services (not the sale of goods) and, accordingly, will not be governed by the Uniform Commercial Code of any State having jurisdiction. In addition, the provisions of the Uniform Computerised Information Transaction Act and United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
- Neither Party may assign or otherwise transfer any of its rights, duties or obligations under this Agreement without the prior written consent of the other Party, except either Party may, upon prior written notice to the other Party (but without any obligation to obtain the consent of such other Party), assign this Agreement or any of its rights hereunder to any Affiliates of such Party, or to any entity who succeeds (by purchase, merger, operation of law or otherwise) to all or substantially all of the capital stock, assets or business of such Party, if such entity agrees in writing to assume and be bound by all of the obligations of such Party under this Agreement.
- This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assignees.
- This Agreement may be varied only by a written amendment executed by duly authorised officers or representatives of both Parties.
- If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, then such provision shall be severed from this Agreement and the remaining provisions will continue in full force.
- This Agreement may be executed in several counterparts, each of which will be deemed an original, and all of which taken together will constitute one single agreement between the Parties with the same effect as if all the signatures were upon the same instrument.
- The Client retains the exclusive right and responsibility for determining the manner and extent to which the benefit or output of Services or Deliverables may be suitable for use in connection with the Client’s business operations and offerings to third parties.
- This Agreement constitutes the complete and exclusive statement of the agreement between the Parties and supersedes all proposals, oral or written, and all other prior or contemporaneous communications between the Parties relating to the subject matter.
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