Cythera Cyber Security

Terms and Conditions

These terms and conditions (Terms) cover the supply of the Services, Software and related goods by Cythera to the client identified in the applicable Proposal, order form, statement of work or quotation (Client). The applicable Proposal, order form, statement of work or quotation together with these Terms form the Agreement.

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1. Definitions and Interpretation

1.1 Definitions

In these Terms, unless the context indicates otherwise, the following words have the following

meanings:

Associates has the meaning given to that term in the Corporations Act 2001 (Cth).

Business Day means a day that is not a Saturday, Sunday or public holiday in Melbourne, Victoria.

Client means the party identified in the Proposal as the Client, and includes its employees, representatives, subsidiaries, and related bodies corporate (as defined in the Corporations Act 2001 (Cth)).

Client Material means all Material owned by the Client or licensed to the Client by a third party which is provided by or on behalf of the Client for the purposes of this Agreement and includes any modifications or revisions to or enhancements of the Client Material made after the Commencement Date and any Material derived from the Client Material after the Commencement Date.

Commencement Date means the date on which this Agreement commences in accordance with clause 2.2.

Confidential Information means all confidential, non-public or proprietary information exchanged between the parties before, on or after the Commencement Date relating to the business, technology or other affairs of each party or which comes into a party's possession pursuant to, or as a result of, any negotiations or discussions in connection with this Agreement including the existence, nature and terms of this Agreement, whether disclosed verbally, in writing, in electronic form or by any other means.

Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties at the Commencement Date as a likely result of breach of the Agreement:

(a) incidental, special, remote or unforeseeable loss or damage;

(b) loss of revenue, profit, income, bargain, opportunity, use, production, business, contract, goodwill, or anticipated savings, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, but excluding loss of any amounts that would, but for the act or omission of a party, have otherwise been payable under this Agreement; and

(c) costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party, or loss or damage of that nature incurred or suffered by or to a third party.

Cythera means Cythera Pty Ltd ABN 26 629 927 206 of Level 22, 120 Spencer Street, Melbourne VIC 3000, and includes, for the purposes of trading in Australia under this Agreement, Seamless Intelligence Pty Ltd ABN 43 618 625 773 of Level 10, 256 Adelaide Terrace, Perth WA 6000, Phronesis Security Pty Ltd ABN 81 650 410 236 of Level 10, 222 Exhibition Street, Melbourne VIC 3000, Astralas Pty Ltd ABN 84 634 189 281 of 4/21 Cremorne Street, Cremorne VIC 3121, and Bastion Security Group Pty Ltd ABN 32672 790 877 of Level 30, 126 Phillip Street, Sydney NSW 2000, and includes their respective employees, authorised representatives, directors, officers, contractors, agents, substitutes, successors, related bodies corporate and assigns.

Cythera Group Entity means any of the following entities: Seamless Intelligence Pty Ltd ABN 43 618 625 773, Phronesis Security Pty Ltd ABN 81 650 410 236, Astralas Pty Ltd ABN 84 634 189 281, Bastion Security Group Pty Ltd ABN 32 672 790 877, and Cythera Pty Ltd ABN 26 629 927 206.

Cythera Material means all Material owned by Cythera or licensed to Cythera by a third party which is provided by or on behalf of Cythera to the Client for the purposes of this Agreement and includes:

(a) any modifications or revisions to or enhancements of the Cythera Material;

(b) any Material derived from the Cythera Material; and

Developed Material means all Material in any form (whether visible or not) brought or required to be brought into existence by or on behalf of Cythera pursuant to this Agreement, other than Third Party IP.

EULA means, in respect of any Software supplied, licensed, sub licensed, resold, made available, downloaded, activated or accessed under or in connection with this Agreement, the end user licence agreement, subscription terms, product terms, publisher terms, click-through terms, ordering document, usage rights, support policy or other licence terms designated by the relevant software owner, licensor, publisher, reseller or distributor as applying to that Software.

Fees means an amount or rates as set out in the pricing section of the Proposal, including any applicable taxes and GST.

GST means goods and services tax and has the same meaning given to it within A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Insolvency Event means, in relation to a party, that the party is insolvent, unable to pay its debts as and when they fall due, has a receiver, receiver and manager, administrator, trustee in bankruptcy or liquidator appointed to it or over any of its assets, enters into or resolves to enter into any arrangement, composition or compromise with creditors generally, or becomes the subject of winding up, dissolution or analogous proceedings, other than for the purposes of a bona fide solvent reconstruction.

Intellectual Property includes all industrial and intellectual property rights conferred under statute, common law or equity, wherever in the world subsisting, whether existing now or in the future and whether or not registered or registrable, and includes any patents, registered designs, copyright (including future copyright), trade or service marks (whether registered or unregistered), trade secrets, know-how, rights in relation to semiconductor and circuit layouts, programming tools, object code, source code, microcode, mask works, methods, techniques, recipes, formulae, algorithms, modules, libraries and databases, any rights subsisting in or relating to Confidential Information, or other proprietary right, and includes applications for the grant of, registration and renewal of any of the foregoing or other such intellectual property.

Material means material in whatever form, including without limitation documents, specifications, reports, products, equipment,information, data, diagrams, graphic layouts, images, and software.

Personal Information means data by which a person may be personally identified, including a person's name, postal address, email address, telephone number and any other information a party collects, including that which is defined as personal or personally identifiable information under applicable Privacy Laws.

Personnel means any person or persons that Cythera designates to perform the Services on behalf of Cythera, including its employees, contractors and agents.

Privacy Laws means all domestic privacy, data protection and anti-spam laws, rules, regulations, best practices and regulatory guidance relating to privacy, data security, cybersecurity, anti-spam and the collection, storage, use and disclosure of Personal Information, as applicable to either party and includes any international privacy data protection laws only to the extent such laws apply to the Client.

Proposal means the proposal document, order form, statement of work,quotation or other document prepared byCythera for the Client that contains the scope of the Services, Software orgoods to which these Terms are attached or incorporated.

Relevant Person means any person that performs or receives any Services under this Agreement.

Security Incident means any unauthorised access to, or unauthorised disclosure of, Personal Information held by Cythera in connection with this Agreement, to the extent caused by Cythera’s failure to comply with its obligations under this Agreement or applicable Privacy Laws. For clarity, Security Incident does not include any incident arising from or in connection with:

(a) the acts or omissions of the Client or its personnel;

(b) a third party’s systems, networks, software, services or infrastructure outside Cythera’s reasonable control; or

(c) a false positive or other event which, following investigation, Cythera reasonably determines has not resulted in unauthorised access to,or unauthorised disclosure of, Personal Information.

Services means the services to be provided by Cythera as set out in the Proposal.

Software means any software, SaaS, hosted service, platform, application, tool, module, agent, code, subscription service or other technology product supplied, licensed, sub licensed, resold or otherwise made available by or through Cythera under or in connection with this Agreement, including any updates, upgrades, support, maintenance and related documentation to the extent made available by the relevant licensor.

Testing Activities means any Penetration Testing Activities and/or BCP TestingActivities particularly described in the Serviceswithin the Proposal.

Third Party IP means Intellectual Property Rights in Material owned by a third party.
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1.2 Interpretation

In this Agreement unless the context otherwise requires:

(a) words importing the singular number include the plural number and vice versa;

(b) words importing persons include firms, companies and corporations and vice versa;

(c) references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in orschedule to this Agreement;

(d) any obligation on any party not to do or omit to do anything includes an obligation not to allow that thing to be done or omitted to be done;

(e) the headings to the clauses and schedules of this Agreement do not affect its interpretation; and

(f) the word "including" and related forms means includingwithout limitation.

2. Agreement

2.1 Prevailing documents

(a) This Agreement consists of:

(i) these Terms;

(ii) any schedules and annexures to this Agreement; and

(iii) the Proposal.

(b) If there is any inconsistency between the documents comprising this Agreement, the documents listed earlierin clause 2.1(a) prevail to the extent of that inconsistency, except as provided in clause 2.1(c).

(c) If Software is supplied underor in connection with this Agreement, the applicable EULA prevails over this Agreement to the extent of any inconsistency in relation to that Software, including in relationto licence scope, permitted use, user restrictions, subscription metrics, support, maintenance, warranties, disclaimers, suspension, termination, audit rights and any other software-specific rights, obligations, restrictions or limitations.

(d) To the extent of any inconsistency between this Agreementand an applicable EULA:

(i) the EULA prevails in relation to the Software to which it applies; and

(ii) this Agreement continues to apply to all Services and other subject matter not governed by the EULA.

(e) These Terms apply to all transactions between Cythera and the Client relating to the provision of Services, supply of Software and supply of related goods, and constitute a separate legal agreement in respect of each Proposal.
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2.2 Client's acceptance

The Client will be taken to have accepted and will be legally bound by this Agreement if it:

(a) replies electronically to Cythera accepting the Proposal;

(b) signs the Proposal and returns it to Cythera electronically or by any other means; and/or

(c) provides Cythera with instructions for the Services, Software or goods after receiving a Proposal and a copy of these Terms electronically or by any other means.
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2.3 Term

This Agreement commences on the Commencement Date and continues for the period set out in the Proposal, unless terminated earlier in accordance with these Terms (Term).

Unless previously withdrawn, Seller’s quotations are open for acceptance within the period stated in them or, when no period is so stated, within 14 days after its date. The Seller reserves the right to refuse any order based on this quotation within 7 days after the receipt of the purchase order.

3. Services, Software and Goods

(a) Cythera will provide the Servicesin accordance with the Proposal and as Cythera considers appropriate with respect to the type and nature of the requirements of the Client, its systems and facilities, and the Services.

(b) Cythera will use reasonable endeavours to carry out and complete the Services by the due dates or within the timeframes set out in the Proposal, but the parties acknowledge that proposed timeframes or due dates are estimates only and are subject to change or variation by Cythera with reasonable notice to the Client. Cythera will not beliable to the Client in the event of any delay due to factors beyond its reasonable control.

(c) The Client acknowledges and agrees that Cythera's ability to provide the Services relies on the Client's reasonable cooperation, availability and assistance. Cythera will not be liable to the Client:

(i) if Cythera is not able to provide the Services as a direct or indirect result of the Client's failure to provide instructions, cooperate with or assist Cythera; or

(ii) for any errors or inaccuracies in the Services or deliverables resulting from any inaccurate or inadequate data or information provided by the Client.

(d) The Client may request Cythera to provide additional services, software or goods and Cythera may provide a further Proposal for that additional scope which, if accepted by the Client, will form a separate agreement between the parties.

(e) The Client acknowledges that it is not, nor will it be, the exclusive client to Cythera of the kinds of services contemplated by this Agreement and that Cythera may, at any time and from time to time, perform, provide or engage a third party to perform or provide part of its obligations under this Agreement, without the consent of or notice to the Client, provided that Cythera does so subject to its obligations in relation to Confidential Information pursuant to clause 11.

(f) If Softwareor goods are supplied under or in connection with this Agreement:

(i) Cythera may supply them directly, as reseller, or arrange for them to be supplied by a third party;

(ii) any Software is supplied subject to the applicable EULA and any applicable third-party terms;

(iii) unless expressly stated otherwise in the Proposal, title and risk in goodspass in accordance with the applicable supplieror manufacturer terms, or if there are no such terms, on delivery to the Client or its nominee; and

(iv) Cythera does not give any warranty in relation to third-party software or goods beyond any warranty that cannot lawfully be excluded and any warranty expressly passed through from the relevant supplier, publisher or manufacturer.

4. Testing and Assessment Activities

(a) In this clause, the following definitions apply:

(i) BCP Testing Activities means fully automated, partially automated, or fully manual, testing techniques relating to the assessment of business continuity plans and processes from a disaster;

(ii) Penetration Testing Activities means automated or manual techniques that attempt to remotely identify and evaluate security vulnerabilities and/or configuration errors on one or more computer systems, software applications, facilities or networks owned and/or operated by the Client including assessment outcomes and results provided by way of report, written advice or orally; and

(iii) Testing Activities Scope means the scope and tasks comprising the Testing Activities as set out in the Proposal.

(b) If the Services include Testing Activities, this clause 4 applies.

(c) Unless otherwise agreed by the parties, Cythera will seek the Client's prior consent before commencing any Testing Activities.

(d) The Client specifically consents to Cythera attempting to bypass security controls to gain access to the Client's systems or facilities in accordance with this clause for the purposes of undertaking Penetration Testing Activities and acknowledges that such Services may be detected by the Client's security team as a genuine security incident.

(e) The Client is solely responsible for the protection and backup of its Client Material and/or equipment or facilities. Cythera is not liable for, and the Client agrees to hold Cythera harmless from all liability, claims, suits, actions or demands in respect of, any loss of Client Material and/or equipment or facilities, loss of data, re-run time, inaccurate output, work delays, or loss of profits resulting from the Testing Activities performed by Cythera under this Agreement.

(f) Cythera and its Personnel are not liable for any direct or indirect loss, delay, disruption, or damages, including the loss or corruption of Client Material, Confidential Information, and their copies or backups, and any Consequential Loss arising out of or in connection with any Testing Activities undertaken on the Client's systems, environments, or facilities, whether or not Cythera has obtained the Client's prior consent.

(g) The Client warrants that:

(i) it has the legal right to subject the designated computer system, facility or environment to the Penetration Testing Activities and that, if it is not the owner of the system, facility or environment, it has obtained such right or authorisation from the legal owner of the system, facility or environment for the Penetration Testing Activities to be undertaken by Cythera;

(ii) it has the authority and the rightto agree to the terms of this clause;and

(iii) without limiting the foregoing, it has the right to permit the Testing Activities.

(h) The Client must ensure that it has taken all necessary steps, and implemented all procedures required, to ensure that any government authority, law enforcement body or other authorities are not engaged or alerted because of the provision of the Services.

(i) The Client agrees and understands that, due to the nature of the internet and technology, Cythera cannot guarantee that the Testing Activities being performed by or on behalf of Cythera will detect all issues, outcomes, security weaknesses, potential security problems or potential breaches.

(j) Cythera will providet he Client with a copy of a Testing Activities assessment report or advice that outlines, identifies, and describes the results of the Testing Activities, any vulnerabilities or issues, and recommendations for solutions or additional remedial work (Testing Activities Report).

(k) The Testing Activities Report will be limited to the Testing Activities Scope only. Cythera does not represent or warrant that any Testing Activities Report is a full, whole, or complete assessment or report on the Client's target computer system, environment or facilities. The Client acknowledges and agrees to these limitations and acknowledges that Cythera will not be liable should there be a subsequent security, configuration or operational vulnerability or issue discovered after the completion of the Testing Activities that did not fall within the Testing Activities Scope.

(l) As a result of the Testing Activities, the Client may engage Cythera to perform additional services to resolve any concerns, issues or vulnerabilities identified in the Testing Activities Report. The scope of such additional services will be set out and agreedin a subsequent Proposal.

5. Facilities Access and Information

(a) The Client must:

(i) give Cythera and its Personnel safe, convenient, and easy access to the Client's facilities as reasonably required for Cythera to provide the Services; and

(ii) provide Cythera with all reasonable assistance and access to any Material or other information, documents, systems and data as required and relevant to the supply of the Services.

(b) Where Cythera is required to physically attend at the Client's facilities, the Client must at all times:

(i) provide a healthy and safe working environment;

(ii) comply with all applicable work health and safety laws; and

(iii) provide Cythera and its Personnel who are providing Services on-site with its work health and safety policies and appropriate health and safety training.

6. Client Obligations

(a) The Client must:

(i) make sure all details are correctly set out in the Proposal and immediately notify Cythera if any information changes;

(ii) maintain any licences, authorisations or permissions required for the purposes of receiving the Services, Software or goods; and

(iii) co-operate, and ensure its officers, employees, contractors, agents, and other representatives co-operate with Cythera and its Personnel as and when Cythera reasonably requires.

(b) The Client must not, and must ensure that each of its employees, contractors and agents do not, without the prior written consent of Cythera, do any of the following:

(i) share the Services or any of the Cythera Materials with any third party or allow unauthorised persons to use any of the Cythera Materials, excluding the Client's related bodies corporate;

(ii) sublicence, sell, or resell any of the Cythera Materials to any other person or entity without the prior written consent of Cythera;

(iii) copy, reproduce, modify, extract, or create any derivative work from, frame, mirror, publish, distribute, or make available to any third party, any of the Cythera Materials in any form or media or by any means;

(iv) interfere with, disconnect, displace, remove or replace or damage any equipment owned or installed by Cythera;

(v) remove or obscure, whether directly or indirectly, any proprietary notices or labels contained in or attached to the Services, Software or Cythera Materials;

(vi) falsify or mislead, or attempt to do such things, any data or information generated by the Services, provided within the Cythera Materials or any other document or report formed as a result of the Services;

(vii) make a comment or observation about Cythera or its Services in or to the media or on any other news or media platform without the prior written consent of Cythera, including on the Client's own website or social media platforms;

(viii) disclose to any third party the results of any performance benchmarks or any specific detailed comparisons between the Services and any third-party product; or

(ix) use the Services, Software or any of the Cythera Materials for any purpose that competes with Cythera, the Services or to duplicate its capabilities substantially.

(i) is solely responsible for resolving all problems, delays or delivery failures and all loss and damage arising from or in relation to the Client's facilities; and

(ii) must cooperate with any reasonable requests of any regulator or any owner of its premises or facilities to enforce its rights under any regulatory requirement.

(d) The Client acknowledges and agrees that:

(i) Software may be subject to click-through terms, online terms, publisher terms or reseller flow-down terms;

(ii) acceptance, installation, activation, download, access or use of Software by or on behalf of the Client may constitute acceptance of the applicable EULA; and

(iii) where required by the applicable EULA, the Client must comply, and must ensure its users comply, with that EULA.

7. Cythera Obligations

Cythera will:

(a) perform its obligations under this Agreement with due care and skill and in a timely and professional manner;

(b) comply with all laws and maintain any licences or authorisations required for the purposes of providing the Services;

(c) use reasonable endeavours to ensure no unauthorised malicious code is introduced as a direct result of the provision of the Services; and

(d) to the extent possible, control, co-ordinate, supervise, direct, and complete all activities necessary to provide the Services.
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7.2 Subcontracting

(a) For the avoidance of doubt, the performance of any part of this Agreement by a Cythera Group Entity, or by any employee, officer, contractor or agent of a Cythera Group Entity, does not constitute subcontracting for the purposes of this Agreement.

(b) Subject to clause 7.2(a), Cythera may subcontract any of its obligations under this Agreement without the Client's prior consent.

(c) Cythera remains fully responsible for acts or omissions of its subcontractors in connection with this Agreement as if they were the acts and omissions of Cythera.

8. Intellectual Property

8.1 Cythera Material

(a) Cythera owns all right, title, and interest in and to Cythera Material.

(b) Cythera grants to the Client a non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable licence to use the Cythera Material for itself and strictly for the purpose of receiving and utilising the Services in the ordinary course of the Client's business, except that any licence to Software is granted only under the applicable EULA or other applicable third-party terms.

8.2 Client Material

(a) The Client remains the owner of the Client Material.

(b) The Client grants to Cythera a royalty free, worldwide, non-exclusive, perpetual, irrevocable licence to use, modify, adapt, and reproduce the Client Material strictly for the purpose of performing its obligations under this Agreement.
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8.3 Developed Material

(a) The Client will own the Intellectual Property Rights in the Developed Material.

(b) The Client grants to Cythera a worldwide, royalty free, irrevocable, assignable, transferable, non-exclusive, perpetual licence to use, edit, manipulate, reproduce, publish, adapt, modify, sell, commercially exploit, derive works from and otherwise develop the Developed Material for the purposes of:

(i) performing its obligations under this Agreement or any subsequent engagement with the Client; and

(ii) internal use in the ordinary course of Cythera's business, including to develop best practice templates, provided always that any further developed material must not contain any references to, or Confidential Information of, the Client.

(c) The Client warrants that it will obtain from all authors and holders of any moral rights in the Developed Material consent to the acts or omissions contemplated by clause 8.3(b).

8.4 Software

(a) If Software is supplied under or in connection with this Agreement, that Software is supplied on and subject to the applicable EULA.

(b) The applicable EULA always takes precedence over this Agreement to the extent of any inconsistency in relation to the relevant Software.

(c) Any rights, remedies, restrictions, exclusions, limitations and disclaimers contained in an applicable EULA are incorporated into, and form part of, this Agreement as if set out in full in it in relation to the relevant Software, to the extent permitted by law.

(d) Any breach of an applicable EULA by the Client or its users constitutes a breach of this Agreement.

9.Third Party Material

(a) If the Services or Software requirethe Client to access a website, service,software, platform, content or other materials of any third party which are not under Cythera'scontrol, such access is at the Client's risk.

(b) Cythera does not endorseor approve any third-party website,service, software, platform, content or other materials made available throughthe provision of the Services or Software and Cythera will haveno liability in relation to any of them except to the extent liabilitycannot lawfully be excluded.

(i) the internet, the world-wide web, telecommunications networks andservices, third-party software environments and the Client Material are outside Cythera's control; and

(ii) Cythera will not be responsible orliable for any error, omission, delay in the same, or the inability to use suchservice or for any content introduced by any such service.

10. Fees and Payment

10.1 Fees

(a) In consideration of the provision of the Services, Software and any goods in accordance with this Agreement, the Client must pay Cythera the Fees and any taxes that Cythera has to pay directly or indirectly when it supplies the Services, Software or goods to the Client.

(b) The Client acknowledges that the Fees are exclusive of any GST that may be charged by Cythera to the Client, and therefore Cythera is entitled to add GST.

(c) The Client agrees to indemnify Cythera for all losses and claims arising as a result of any taxes or GST for which the Client is responsible pursuant to this clause or otherwise liable to pay or reimburse.

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10.2 Invoicing

(a) Cythera will provide the Client with a tax invoice for any Fees payable in accordance with the payment terms set out in the Proposal.

(b) Fees will be paid by the Client to Cythera in full by the due date stated on the invoice and in the manner required by Cythera.

(c) If there is no due date provided on an invoice, then payment of any Fees is due within thirty (30) days of the date of the invoice.

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10.3 Changes to Fees

(a) The Client agrees and acknowledges that Cythera can vary the amount, nature, rate and structure of any Fees or other amounts at any time with at least thirty (30) days' notice to the Client.

(b) If the Fees or other amounts change during a billing period, then Cythera will calculate the Client's invoice for that period on a proportionate basis.

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10.4 Additional Charges

In some circumstances, the Client must also pay Cythera the following amounts:

(a) any reasonable costs that Cythera incurs for arranging remedial work, configuration work, implementing solutions, arranging additional software, hardware, security related services, licence fees, subscription fees, renewals, publisher pass-through charges or other third-party technology items for the Client;

(b) any travel, subsistence and other pre-approved expenses required to provide any services to the Client;

(d) if the Client breaches this Agreement or any applicable laws and regulations, any reasonable costs Cythera incurs as a result of that breach; and

(e) any other amounts referred to in this Agreement or the applicable EULA.

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10.5 Failure to pay

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

(i) charge the Client interest on amounts not paid at a rate equivalent to 5% per annum plus the cash rate set by the Reserve Bank of Australia, calculated daily from the due date to the day of payment of the debt;

(ii) require the Client to pay, in advance, for any Services, Software, goods or any part of them which have not yet been supplied;

(iii) suspend all or any part of its obligations under this Agreement without notice to the Client; and/or

(iv) terminate this Agreement in accordance with these Terms.

(b) If the Client fails to pay any amount referred to in clause 10 by its due date for payment Cythera may, at its discretion, pay the amount and the Client must on demand reimburse Cythera for the amount paid.

11. Confidentiality and Privacy

11.1 Confidentiality obligations
The parties acknowledge and agree that each of them must:

(a) not disclose the other party's Confidential Information to any person except as permitted under clause 11.2;

(b) only use or copy the other party's Confidential Information for the purposes of this Agreement; and

(c) take all steps reasonably necessary to secure the other party's Confidential Information against theft, loss, or unauthorised disclosure.
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11.2 Permitted disclosures

A party must not disclose the Confidential Information of the other party except:

(a) to an employee, contractor, agent or other representative of that party who needs to know the Confidential Information for the purposes of this Agreement and subject to that party taking reasonable steps to ensure that any such person is fully aware of the confidential nature of the Confidential Information before the disclosure is made;

(b) with the other party's prior written consent, which must not be unreasonably withheld;

(c) as required to be disclosed by any law or the listing rules of any stock exchange where that party's securities are listed or quoted; or

(d) as expressly permitted by this Agreement.
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11.3 Return and destruction of Confidential Information

Subject to clause 11.4, within fourteen (14) days of expiry or termination of this Agreement or at the request of the party to whom the Confidential Information belongs, each party must, at the other party's option, return, erase or destroy any Confidential Information belonging to the other party in all documents and other materials in any medium in the possession or under the power or control of the party or any of its representatives.

11.4 Return exceptions

If a party must retain the other party's Confidential Information for the purpose of:

(a) complying with any law;

(b) litigation;

(d) performing its obligations or exercising its rights under this Agreement,

it may retain and use it solely for this purpose but must deal with the Confidential Information in accordance with clause 11.3 promptly after it is no longer required for this purpose.
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11.5 Privacy

Each party must:

(a) comply with all Privacy Laws in relation to Personal Information which are applicable to the Client;

(b) only collect, store, use, disclose or otherwise deal with Personal Information in accordance with all Privacy Laws;

(d) ensure any person to whom it discloses Personal Information is aware of and complies with the party's obligations under this clause 11.5; and

(e) not do any act, engage in any practice, or omit to do any act or engage in any practice that:

(i) would result in a breach of a Privacy Law if the Privacy Law applies to those things done, engaged in, or omitted to be done by the party; or

(ii) would cause the other party to breach or be taken to breach a Privacy Law.
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11.6 Security Incidents and notifications

(a) Each party must take reasonable steps to protect Personal Information against misuse, interference and loss and from unauthorised access, modification or disclosure, having regard to the nature of the Personal Information and the Services.

(b) If Cythera becomes aware of a confirmed Security Incident, Cythera will, without undue delay and subject to clauses 11.1 and 11.2, notify the Client in writing and provide such information about the Security Incident as Cythera reasonably considers necessary for the Client to understand the nature of the Security Incident.

(i) investigate the Security Incident and take reasonable steps to mitigate the effects of, and prevent recurrence of, the Security Incident; and

(ii) keep the Client reasonably informed of material developments in relation to the Security Incident, to the extent such information is available to Cythera and it is lawful and commercially reasonable for Cythera to provide it.

(d) Cythera is not responsible for making any notification to, or communications with, any regulator, supervisory authority, law enforcement agency or affected individual in connection with a Security Incident, unless and to the extent Cythera is required to do so by applicable law or the parties expressly agree otherwise in writing.

(e) The Client is responsible for determining whether a Security Incident gives rise to any obligation on the Client to notify any regulator, supervisory authority or affected individual, and for making any such notifications, except to the extent Cythera has expressly agreed in writing to make a particular notification on the Client’s behalf.

(f) Any liability of Cythera arising out of or in connection with any Security Incident, including any failure to detect, prevent, mitigate or notify a Security Incident, is subject to clause 15 (Liability and Exclusion), including the limitations and exclusions of liability in that clause.
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11.7 Permitted disclosure of Personal Information

The Client acknowledges and agrees that Cythera may disclose Personal Information to its Personnel to the extent they have a need to know for the purposes of providing the Services, providing additional assistance or support, or as otherwise permitted under Cythera's published privacy policy.
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11.8 Indemnity

The Client agrees to indemnify Cythera and keep Cythera indemnified against all losses directly or indirectly incurred or suffered as a result of or in connection with any breach by the Client or its employees, contractors, or agents of its obligations under this clause 11.

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12. Promotional and Marketing

(a) Either party, with the other party's prior written consent, may use the other party's name, logo, image, trademarks or other intellectual property in any publication, advertising or promotional material, including on either party's own website or social media platforms.

(b) Neither party will disclose the nature of the Client's engagement without the Client's prior written consent.

(c) If approved, either party grants the other party a royalty free, irrevocable, worldwide, non-exclusive licence to use the other party's logo, name or other trademark in perpetuity and for any marketing, advertising or promotion purpose.

(d) Either party can, at any time, request that the other party remove any reference made in its promotional and marketing material online via its website, social media channels and any other material.

13. Warranties

13.1 Mutual warranties

Each party represents and warrants to the other party as at the Commencement Date and at all times during the Term that:

(a) it has full corporate power and authority to enter into, perform and observe its obligations under this Agreement, and that its execution, delivery and performance of this Agreement has been duly and validly authorised by all necessary corporate action; and

(b) its obligations under this Agreement are valid, binding and enforceable.
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13.2 No warranties in relation to completion or content

(a) Cythera does not warrant that any result or objective can or will be achieved or attained as a result of the provision of the Services.

(b) Cythera provides no warranty as to the suitability of the content of the Materials for any purpose other than that specified in the Proposal or reasonably intended from provision of the Services, which Cythera may interpret and apply using its experience, skill and judgment, in order to prepare the Materials and determine the content.

(c) In relation to Software and third-party goods, any warranty is limited to the warranty, if any, made available by the relevant licensor, publisher, reseller, supplier or manufacturer, except to the extent any warranty cannot lawfully be excluded.

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14. Indemnities

The Client indemnifies Cythera and its directors, officers and Personnel, from and against:

(a) any exposure to actual or threatened claim or legal or administrative action; and

(b) any damage, injury or death to any person or property, including Cythera Personnel,

as a result of or in connection with this Agreement, except to the extent the liability, loss, damage, cost or reasonable expense is caused or contributed to by the act or omission of Cythera or its Personnel.
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15. Liability & Exclusion

15.1 Limitations on liability

(a) This clause 15 prevails over all other provisions of this Agreement to the maximum extent permitted by law.

(b) Neither party excludes or limits its liability to the other for death or personal injury caused by its negligence.

(c) Except as provided in clause 15.1(b), to the fullest extent permitted by law, the total cumulative aggregate liability of a party to the other party under or in connection with this Agreement in respect of all claims will not exceed the Fees paid or payable for the Services, Software and goods in the twelve(12) months prior to the event giving rise to the claim.
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15.2 Implied terms

(a) Subject to clause 15.2(b), any condition or warranty which would otherwise be implied in this Agreement is excluded.

(b) Pursuant to section 64A of the Australian Consumer Law, this clause applies regarding any goods or services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption. Liability for breach of a guarantee conferred by the Australian Consumer Law is limited, at Cythera's option:

(i) in the case of goods, to replacement, repair or resupply of the goods, or payment of the cost of replacing, repairing or resupplying the goods; and

(ii) in the case of services, to re-supplying the services or making full payment for the cost of having the services supplied again.
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15.3 Exclusion of consequential loss

Neither party is liable to the other for any kind of indirect or Consequential Loss or damage, including loss or corruption of Confidential Information, copies, or backups, arising out of or in connection with this Agreement, even if that loss was reasonably foreseeable or the party was aware, or ought reasonably to have been aware, of the possibility of that loss arising, provided that this clause does not prevent Cythera from recovering Fees and other amounts payable under this Agreement.
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15.4 Reduction for contributory conduct

The liability of a party however arising will be reduced proportionately to the extent that any act or omission of the other party contributed to the relevant loss.
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15.5 Australian Consumer Law

Nothing in this Agreement is intended to limit or exclude the Client's consumer guarantees under the Australian Consumer Law.

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16. Suspension and Termination

16.1 Suspension

(a) The Client may temporarily suspend the Services at any time on fourteen (14) days' written notice to Cythera.

(b) On receipt of a notice of suspension in accordance with clause 16.1(a), Cythera will issue the Client with an invoice for the Services provided up to the effective date of suspension.

(c) If the period of suspension exceeds ninety (90) days, then Cythera may terminate this Agreement and all outstanding amounts from the Client will become immediately due and payable.
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16.2 Termination for convenience

Either party may terminate this Agreement in whole or in part at will by giving at least thirty (30) days' written notice to the other party.
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16.3 Termination for cause

Either party may terminate this Agreement by notice with immediate effect if the other party:

(a) commits a material breach of the Agreement that is not capable of remedy;

(b) commits a material breach of the Agreement capable of remedy, and does not remedy that breach within ten (10) business days after receipt of notice of the breach; or

If the Client terminates this Agreement under clause 16.2 then, without limiting any other rights, the Client must pay:

(a) Cythera's reasonable costs incurred as a result of early termination by the Client, including any contractor, publisher, supplier or licensing fees incurred by Cythera; and

(b) all fees in respect of Services, Software and goods supplied to the Client prior to the effective date of termination.
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16.5 Consequences of termination by the Client for Cythera default

If the Client terminates this Agreement under clause 16.3 then, without limiting any other rights, the Client:

(a) will not be required to make any payment in respect of Services, Software subscriptions or goods not yet supplied on the effective date of termination;

(b) may recover from Cythera all money paid for any Services, Software or goods, or part of them, not yet supplied; and

(c) after exercising its rights under clause 16.3, must pay the net amount outstanding to Cythera.
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16.6 Termination by Cythera for the Client's default

Cythera may immediately terminate this Agreement by notice to the Client, if:

(a) the Client fails to pay one or more undisputed amounts due and payable;

(b) Cythera issues a notice to the Client that it intends to terminate this Agreement pursuant to this clause 16.6 if payment of the outstanding amount, plus interest, is not received within ten (10) business days of the Client receiving the notice; and

(c) the Client fails to make payment of the outstanding amount plus interest within ten (10) business days of receiving a notice in accordance with this clause 16.6.
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16.7 Consequences of termination by Cythera for the Client's default

If this Agreement is terminated by Cythera under clause 16.1, clause 16.3 or clause 16.6, all amounts owing by the Client under this Agreement will immediately become due and payable.
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16.8 Preservation of rights

Expiry or termination of this Agreement for any reason does not affect any rights of either party against the other which arose prior to the time at which such termination or expiry occurred, or which otherwise relate to, or which may arise at any future time for any breach or non-observance of obligations under this Agreement occurring prior to the termination or expiry.

17. Non-Solicitation

(a) During the term of this Agreement and for a period of six (6) months following its expiration or the conclusion of the Services, whichever is later, the parties must not, and must procure that their related bodies corporate and Associates do not:

(i) solicit, encourage, induce or entice, or attempt to solicit, encourage, induce or entice, any Relevant Person to terminate his or her office, engagement or employment with the other party or any of its related bodies corporate; or

(ii) employ or engage any Relevant Person in any way, including as an independent contractor, whether or not by doing so the Relevant Person would commit a breach of his or her engagement, employment, services or other contract with the other party or its related body corporate or the duties which the Relevant Person's office entails.

(b) If a party, any of its related bodies corporate or any of their respective Associates commits a breach of clause 17(a), that party must pay, or procure that the relevant entity pays, a placement fee being 25% of the annual base salary, plus superannuation, of the Relevant Person for the preceding 12-month period, to the other party for each Relevant Person in respect of which there has been a breach. Each party acknowledges and agrees that the placement fee in this clause is a fair and reasonable estimate of the cost to the other party of replacing each such Relevant Person.

(i) a Relevant Person independently responds to a general advertisement for employment or recruitment search by or on behalf of a party; or

(ii) the employment or engagement is agreed to by the parties.

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18. Dispute Resolution

(a) The parties must use reasonable endeavours to resolve any dispute, controversy or claim arising out of, relating to or in connection with the Agreement through negotiation between them.

(b) If, after fifteen (15) business days of the disputing party notifying the other party, the dispute cannot be negotiated between the parties, either party may refer the dispute for arbitration through the Australian Disputes Centre (ADC).

(c) The arbitration will be conducted in Melbourne, Victoria in accordance with the ADC Rules for Domestic Arbitration operating at the time the dispute is referred to the ADC.

(d) Nothing in this clause prevents a party from seeking urgent interlocutory or equitable relief.

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19. Force Majeure

19.1 Notice

(a) A notice, consent, approval, waiver, or other communication provided in connection with this Agreement must be in writing.

(b) A notice may be given by hand delivery, post or by email and is effective upon receipt.
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19.2 Force Majeure

(a) For the purposes of this Agreement, Force Majeure Event means any event or occurrence outside the reasonable control of a party regardless of whether it is reasonably contemplated by the parties at the Commencement Date as a likely result of breach of the Agreement.

(b) If a Force Majeure Event prevents Cythera from providing the Services, Software or goods, Cythera will provide the Client a written notice of the Force Majeure Event and the anticipated impact on the Services, Software or goods.

(c) If a Force Majeure Event continues for more than fifteen (15) business days, either party may terminate the Agreement by written notice to the other without liability for damages of any kind, including for Consequential Loss.
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19.3 Insurance

(a) Cythera will take out the following insurances with a reputable insurer:

(i) professional indemnity insurance for at least $5 million;

(ii) public liability insurance for at least $10 million; and

(iii) workers' compensation insurance as required by law, if applicable.

(b) Cythera will provide copies of its certificates of currency when requested by the Client and within a reasonable timeframe after receiving such request.
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19.4 Entire agreement

This Agreement represents the entire agreement between the parties and supersedes all prior discussions, negotiations, understandings, and agreements in relation to the subject matter of this Agreement.
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19.5 Assignment

(a) The Client must not assign or otherwise deal with all or any part of the Client's rights or obligations under the Agreement without the prior written consent of Cythera, which may not be unreasonably withheld but may be given subject to reasonable conditions.

(b) Cythera may assign or otherwise deal with any of its rights or obligations under the Agreement without the Client's prior consent.
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19.6 Waiver and variation

A provision of the Agreement, or right, power or remedy created under it, may not be varied or waived except in writing signed by the party or parties to be bound.
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19.7 Rights, powers and remedies cumulative

The rights, powers and remedies given in the Agreement are in addition to other rights, powers and remedies given by law independently of the Agreement.
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19.8 Severability

If any provision is unenforceable or invalid, it will be ineffective to the extent it is unenforceable or invalid, without affecting the validity or enforceability of the remaining provisions of the Agreement.
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19.9 Survival

Termination or expiration in whole or in part of the Agreement does not affect those provisions and those obligations of a party which by their nature survive termination, including clause 6, clause 8, clause 9, clause 11, clause 12, clause 14, clause 15, clause 16.4, clause 17, clause 18 and clause 19.10.
19.10 Governing law and jurisdiction

(a) This Agreement is governed by the laws in force in Victoria, Australia.

(b) The parties submit to the exclusive jurisdiction of the courts of Victoria, Australia.
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19.11 Relationship of the parties

The parties are not principal and agent, partners, trustee and beneficiary, or employer and employee. Neither party may:

(a) hold out its agents, contractors or employees as the agents, contractors, or employees of the other party; or

(b) contract on behalf of the other party.