Operative Provisions

1. Definitions and Interpretation

1.1 Definitions

The following definitions apply to the terms used in each engagement and proposal agreement, unless the context suggests otherwise.

Assets means the applications, cloud environments, servers or networks set out in the Schedule.

Blind Testing means penetration testing conducted by Parabellum which utilises information and resources publicly accessible to an external party, as set out in the accompanying proposal.

Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise).

Client means the client or clients named in the Schedule to whom Services are to be provided by Parabellum. If this is an Intermediary Engagement, the End Client is not the Client.

Commencement Date means the Commencement Date set out in the Schedule.

Completion Date means the Completion Date set out in the Schedule.

Confidential Information includes the terms of this agreement and the contents of this document, and any information marked as confidential and any information received or developed by Parabellum during the term of this agreement, which is not publicly available and relates to processes, equipment and techniques used by Parabellum or the Client or End Client in the course of their business. This includes all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics, proposals and intentions, technical data and marketing information such as client lists, financial information and business plans.

End Client means:

Where this is not an Intermediary Engagement, the Client;
Otherwise, the party that has engaged the Client to provide services all or some of which are Services to be provided by Parabellum under this agreement directly to the Client and indirectly to the End Client for the benefit of the End Client.

Facilities means working space, computer equipment, access to the internet and the Client's or End Client's computer network, telecommunications systems and similar. It includes access to such resources but also use of them to the extent required by Parabellum in order to perform the Services.

Fees means the Fees set out in the Schedule, which exclude GST unless specified otherwise, as payment for the Services.

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

Guided Testing means penetration testing conducted by Parabellum utilising publicly accessible information and resources which have been supplemented by information available only to an informed employee of the Client or End Client as the case may be, as set out in the accompanying proposal.

Intellectual Property includes trademarks, patents, copyrights, processes, know-how, registered designs, data, aggregated data or other like rights or any right to apply for registration of any of those.

Intermediary Engagement means this agreement where the Proposal indicates that this engagement is an Intermediary engagement and/or where the Client has engaged Parabellum under this agreement to perform the Services not for the direct benefit of the Client but for the benefit of the End Client and/or its systems and/or networks.

Location means the place(s), as specified in the Schedule or agreed under clause 2, where Parabellum will provide Services to the Client.

Losses means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever.

Network Data means data Parabellum may collect and compile during the course of providing the Services in relation to the Client's and/or the End Client's network(s), including network configuration, TCP/IP packet headers and contents, log files, and malicious code.

Parties means Parabellum and the Client, and Party means either one of them.

Related Body Corporate has the meaning given in section 50 of the Corporations Act 2001 (Cth).

Schedule means the schedule at the start of this agreement which sets out information.

Services means the services to be provided by Parabellum under this agreement, which are set out in the Schedule.

Parabellum's Personnel means any person or persons that Parabellum designates to perform the Services on Parabellum's behalf.

Termination Date means the earlier of:

The date of termination of this agreement by the Client or Parabellum; and
The date of expiry of this agreement.

Testing Plan means the plan for conducting and completing the penetration testing services, and each milestone, as set out in the accompanying proposal.

1.2 Interpretation

Unless the context of this agreement requires otherwise:

(a) Words importing any gender include every gender;

(b) Words importing the singular number include the plural number and vice versa;

(d) References to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to this agreement;

(e) Reference in any schedule to this agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;

(f) Any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;

(g) The headings to the clauses and schedules of this agreement are not to affect the interpretation;

(h) 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

(i) The word "including" (and related forms including "includes") means "including without limitation".

2. Services

(a) Parabellum will provide the Services to the Client in accordance with the details outlined within this agreement in exchange for the Client paying the Fees to Parabellum.

(b) Parabellum and the Client must use best endeavours to agree on the timing and the Location(s) for the Services to be performed.

(c) Parabellum will use reasonable efforts to complete the Services, including providing any necessary data, materials, or reports, by the Completion Date.

(d) The Services will be performed by Parabellum's personnel, or if Parabellum's personnel are not available, by other employees or contractors chosen by Parabellum as Parabellum considers to be most appropriate for the Services.

3. Location of Services

Parabellum will provide the Services at the Location/s or remotely, as agreed by Parabellum and the Client.

4. Fees

4.1 Payment of Fees

(a) The Client will pay the Fees to Parabellum in exchange for the provision of the Services outlined in this agreement.

(b) If Parabellum charges an hourly rate, time spent that is less than an hour will be charged on a pro-rated basis rounded up to the nearest 6 minute interval.

(c) The Client acknowledges that the Fees are exclusive of GST, Parabellum will be entitled to add on GST to the total cost of the engagement.

(d) The Client will pay 50% of the quoted, agreed fee, upfront prior to commencement of their engagement, with the remainder of the fees due 30 days after final delivery of pre-remediation report/assessment or other, in writing, mutually agreed upon metric to signify final delivery.

4.2 Invoicing

(a) Parabellum will provide the Client with a tax invoice in accordance with GST law for the Fees payable under this agreement.

(b) The Client must pay all sums set out in the tax invoice within 30 days of receiving the invoice and prior to commencement in the case of deposit payments.

(d) The invoice will include the following details:

Parabellum's ABN
Date the Services were provided
Description of the Services provided
If applicable, the time allocated per task for hourly rate fees

4.3 Costs and Disbursements

Parabellum is permitted to charge for all travel costs and expenses that are incurred while providing the Services. Unless otherwise agreed with the Client, the travel costs will be agreed upon prior to being incurred.

4.4 Failure to Pay

If the Client does not fully pay a tax invoice by the date stated on the invoice or as otherwise specified in the agreement, Parabellum is entitled to take all or any of the following actions within its sole discretion:

(a) Charge interest on the unpaid amount at a rate of 10% per year, accruing daily

(b) Require the Client to pay in advance for any Services (or part of the Services) that have not yet been performed

(c) Refuse to perform any further Services (or part of the Services) until payment has been made to the satisfaction of Parabellum

4.5 Project Variation

(a) Parabellum has attempted to accurately estimate the time required to successfully complete the project or deliver the services. The Client acknowledges and agrees that if impediments, delays, complications, or Client-requested changes in scope arise, these factors are out of the control of Parabellum and may affect the duration of the project and/or Services and may involve an increase in Fees.

(b) Examples of impediments, complications, and changes in scope that might affect Fees or the duration of the project and/or Services may include (but are not limited to) where the Client:

causes a delay or prevents Parabellum from commencing work on the previously scheduled start date;
fails to provision appropriate access or functioning credentials required for Parabellum to begin work;
is unavailable to reasonably facilitate project commencement on time;
fails to make the necessary testing environment available to Parabellum to commence work on time;
withholds or provides inaccurate information pertinent to the engagement;
increases the scope of services requiring additional labour, hardware, software, materials, travel, lodging, meals or other direct costs.

(c) Parabellum reserves the right to amend the Fees payable or alternatively time box limit the Client's engagement to utilise remaining days within project budget, where circumstances arise as set out in (a) or (b) above. Parabellum will notify the Client as soon as possible in those circumstances of the change in Fees and the Client agrees to pay any such amended Fees, charged at the applicable standard day rate.

5. Parabellum's Personnel

(a) If the Client:

gives notice in writing to Parabellum; and
has reasonable grounds which have been disclosed and discussed with Parabellum,

the Client may require Parabellum to cease to permit a particular person or persons employed by Parabellum or acting as agents of Parabellum to carry out the Services.

(b) If the Client makes the requirement referred to in clause 5(a), Parabellum must, as soon as reasonably practicable:

Cease to provide the service of the particular person or persons in respect of the Client's business; and
provide the services of an alternate person or persons as may be reasonably acceptable to the Client.

6. Client's Obligations

(a) During the performance of the Services, the Client will (and if the End Client is not the Client, will also ensure that the End Client will):

Cooperate with Parabellum as reasonably requested by Parabellum;
Provide any necessary information and documentation to Parabellum in a timely manner, ensuring that all information and documentation is accurate, complete, and not misleading;
Provide timely approvals to avoid hindering or delaying the provision of the Services by Parabellum;
Make the necessary Facilities available to Parabellum at the Location at no charge; and
Ensure that the Client's (and End Client's as the case may be) staff and agents cooperate with and assist Parabellum.

(b) The Client will ensure that Parabellum's use of the Location and Facilities is at no cost to Parabellum.

(c) If the necessary Facilities are not provided for Parabellum to perform the Services within the required time period, the Client will pay for any additional costs and expenses reasonably incurred by Parabellum in obtaining alternative facilities as deemed reasonably necessary by Parabellum.

6.1 Client Responsibility for Credentials

(a) The Client is solely responsible for the proper management, security hygiene, and regular rotation, deletion, or deactivation of all credentials provided to Parabellum for the provision of services. This includes, but is not limited to, account usernames, passwords, API keys, and other access mechanisms.

(b) Parabellum will not be held liable for any unauthorised access, security incidents, or data breaches resulting from the Client's failure to appropriately manage or revoke credentials in a timely manner.

(c) The Client agrees to review and update credentials provided to Parabellum at intervals consistent with their internal security policies and industry best practices.

7. No Partnership or Employment Relationship

(a) Nothing in this agreement constitutes the relationship of employer and employee between the Client and Parabellum or between the Client and Parabellum's Personnel.

(b) It is the express intention of the Parties that no such relationships are formed between them by virtue of this engagement.

8. Use of Subcontractors

(a) Parabellum is permitted to use other persons to provide some or all of the Services.

(b) Parabellum is responsible for the work of any of Parabellum's subcontractors.

(c) Any Services provided by any of Parabellum's subcontractors will be undertaken to the same standard as stated in this agreement.

9. Intermediary Engagements

9.1 Application

This clause 9 applies when this agreement is an Intermediary Engagement but (save for clause 9.3(d)) does not apply when this agreement is not an Intermediary Engagement.

9.2 Conflicts of Interest

(a) Parabellum will not at any time before the date that is 12 months after the earlier of the Completion Date and the end of the term of this agreement (unless permitted by the Client) directly offer to the End Client services that compete with the Client, unless such services were already being provided by Parabellum to the End Client.

(b) Parabellum will not engage in any conduct before the earlier of the Completion Date and the end of the term of this agreement which Parabellum is aware will represent a direct and material conflict of interest between Parabellum's duties to the Client and Parabellum's duties to a third party.

9.3 Instructions and Duties

(a) All instructions to Parabellum must come directly from the Client.

(b) Under no circumstances will Parabellum accept instructions or directions directly from the End Client unless directed to do so by the Client. If any such instructions conflict with instructions given by the Client, Parabellum will follow the instructions given by the Client.

(c) The Parties acknowledge and agree (and the Client must procure that the End Client agrees) that Parabellum's primary duty is owed to the Client, but in the event of any conflict between that and a duty owed to the End Client:

subject to (ii) below, Parabellum will resolve such conflict in favour of the Client only to the extent that it does not conflict with applicable legal, regulatory, or professional obligations owed to the End Client;
Parabellum will escalate the matter for resolution between the Client, End Client, and Parabellum, but will act in accordance with (i) above in the event the matter is not resolved within one business day after so escalating the matter;
Parabellum retains a duty to the End Client to comply with all applicable legal, regulatory, and security obligations, notwithstanding any conflict with the Client's interests.

(d) Nothing in this agreement relieves Parabellum from any obligations to comply with applicable laws or regulations governing the protection of data, security, or breach reporting, and it will under no circumstances constitute a breach of this agreement for Parabellum to comply with any such obligations.

10. Confidentiality

(a) Parabellum must keep the End Client's, the Client's, and any Related Body Corporate of the Client's or End Client's, Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.

(b) The Client and Parabellum acknowledge that information resulting from the activities of Parabellum pursuant to this agreement will also be regarded as Confidential Information. Parabellum agrees that Parabellum's obligations in clause 10(a) extend to this category of information.

(c) Parabellum's obligations in relation to the Confidential Information will continue for as long as the Confidential Information is maintained on a confidential basis by:

the Client or End Client, in the case of Confidential Information pertaining to the Client's or End Client's business; and
the Client's or End Client's client, in the case of Confidential Information pertaining to the business of any of the Client's or End Client's customers.

(d) At the Completion Date, or when earlier directed by the Client, and subject to clause 10(g):

Parabellum will securely store all engagement reports and other Confidential Information in an isolated, encrypted, and password-protected digital vault, unless the Client explicitly requests its return or permanent deletion in writing. Access to this data will be highly restricted to relevant management, operating under the principle of least privilege.
Upon receiving a written request for deletion, Parabellum will securely delete all specified Confidential Information within 30 days and provide confirmation of the deletion to the Client.

(e) The Confidential Information does not include information which:

Is generally available in the public domain otherwise than as a result of a breach of clause 10(a) by Parabellum; or
Was known by Parabellum prior to the Client or End Client disclosing the information to Parabellum.

(f) Parabellum agrees that the Client or End Client may require any of Parabellum's Personnel to sign a confidentiality agreement in a form that the Client approves, as a condition of the Client's acceptance of any of Parabellum's Personnel.

(g) Notwithstanding any of the foregoing clauses, the Client acknowledges and agrees (and will procure the End Client's acknowledgment and agreement) that Parabellum may create and/or retain a sanitized or anonymized version of all or any Confidential Information and other records, which excludes any personally identifiable information or sensitive data but still documents the services provided, and which is sanitized or anonymized to the Client's or End Client's reasonable satisfaction.

11. Warranties, Liability and Indemnities

11.1 Warranties

(a) Parabellum warrants that it will use reasonable care and skill in performing the Services.

(b) If Parabellum performs the Services (or any part of the Services) negligently or materially in breach of this agreement, then, if requested by the Client, Parabellum will re-perform the relevant Services.

(c) The Client's request referred to in paragraph 11.1(b) must be made within 14 days of the relevant Services being provided.

11.2 Insurances

Parabellum will maintain all insurance required by law including:

Worker's compensation insurance as prescribed by law for Parabellum's Personnel; and
Professional indemnity insurance and public liability insurance.

11.3 Employees and Subcontractors

(a) Parabellum covenants that Parabellum is solely responsible for the payment to Parabellum's employees and agents of all amounts by way of salary, superannuation, annual leave, long service leave and any other benefits to which they are entitled as Parabellum's employees or agents.

(b) Parabellum must otherwise comply with legislation applicable to Parabellum's employees and agents.

11.4 No Warranties in Relation to Completion

Parabellum will reasonably try to meet the Completion Date, but Parabellum provides no warranty that any result or objective can or will be achieved or attained at all or by the Completion Date. Parabellum will not be liable to the Client or End Client for any Loss in any way arising out of or connected with Parabellum not having completed any Services by the Completion Date.

11.5 Limitation on Liability

(a) Except in the case of death or personal injury caused by Parabellum's gross negligence, the liability of Parabellum to the Client under or in connection with this agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise will not exceed the Fees paid or payable by the Client to Parabellum under this agreement.

(b) Neither party is liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including any economic loss or other loss of turnover, loss of profits, loss of business or loss of goodwill or any other similar head of damage.

11.6 Indemnity

The Client agrees (and will procure that the End Client agrees) that provision of certain types of the Services (such as if they include accessing and conducting penetration testing of the Assets) may involve inherent risks, including system or network performance and availability risk, and data corruption or loss. The Client:

indemnifies and holds Parabellum harmless from and against all Claims and Losses arising out of, or in any way connected to, provision of the Services by Parabellum;
to the maximum extent permitted by law, releases (and will if requested in writing by Parabellum procure a release by the End Client of) Parabellum from all and any claims or actions that the Client (or End Client as the case may be) has, had or any time may have arising out Parabellum's provision of the Services under this agreement save for any gross negligence or wilful misconduct on the part of Parabellum or its staff.

11.7 No Reliance

The Parties acknowledge that this document represents the entire agreement between them in relation to the subject matter of this agreement and is based solely on the provisions contained within it and that no other representations, warranties, or provisions were relied upon. Any implied conditions, warranties, or terms by law or statute are fully excluded from this agreement to the extent allowed by law.

11.8 Limitation of Parabellum's Power

(a) Parabellum warrants that it and Parabellum's Personnel have no authority to engage the services of any person as an employee or agent of the Client.

(b) Parabellum warrants that it and Parabellum's Personnel will not incur any liability on behalf of the Client or in any way pledge or purport to pledge the Client's credit or accept any other or make any contract binding upon the Client without prior approval being given by the Client.

11.9 Survival of Obligations

The obligations accepted by Parabellum and the Client under this clause 11 survive termination or expiry of this agreement.

12. Termination

(a) Either Party may terminate this agreement by notice in writing to the other if the Party notified:

Fails to observe any term of this agreement; and
Fails to rectify this breach, to the satisfaction of the notifying Party, following the expiration of 14 days' notice of the breach being given in writing by the notifying Party to the other Party.

(b) In addition, either Party may terminate this agreement upon the happening of any of the following events:

the giving of at least 1 month's written notice by one Party to the other Party of the intention to terminate this agreement;
if the Client enters into a deed of agreement or an order is made for it to be wound up;
if an administrator, receiver or receiver/manager or a liquidator is appointed to the Client pursuant to the Corporations Act 2001 (Cth);
if the Client would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001 (Cth); or
if the Client is unable to pay its debts as and when they become due.

(c) The Client may, at its discretion, pay to Parabellum the equivalent amount of the fees payable by the Client to Parabellum during the notice period in lieu of any notice period relating to termination of this agreement under paragraph 12(b)(i).

(d) Upon termination of this agreement any Fees, expenses or reimbursements payable by the Client to Parabellum in respect of any Services provided up to and including the termination date must be paid by the Client within 5 days after Parabellum delivers a tax invoice for those Services.

13. General

13.1 Force Majeure

(a) Neither Party has any liability under or may be deemed to be in breach of this agreement for any delays or failures in performance of this agreement (excluding a failure to pay the Fees) which result from circumstances beyond the control of that Party.

(b) The Party affected by these circumstances must promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.

(c) If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this agreement by written notice to the other Party.

13.2 Amendment

This agreement may only be amended in writing signed by duly authorised representatives of the Parties.

13.3 Assignment

(a) Subject to paragraph 13.3(b), neither Party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this agreement without the prior written agreement of the other Party. For the avoidance of doubt, Parabellum is entitled to subcontract all or part of its Services without seeking permission from the Client.

(b) A Party may not assign any of its rights under this agreement without the prior written consent of the other Party.

13.4 Waiver

(a) No failure or delay by Parabellum in exercising any right, power or privilege under this agreement will impair the same or operate as a waiver of the same nor may any single or partial exercise of any right, power, or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.

(b) The rights and remedies provided in this agreement are cumulative and not exclusive of any rights and remedies provided by law.

13.5 Agency, Partnership etc.

(a) 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.

(b) Neither Party will have, nor represent that it has, any authority to make any commitments on the other Party's behalf.

13.6 Further Assurance

Each Party to this agreement must at the request and expense of the other do all things reasonably necessary to carry out the provisions of this agreement or to make it easier to enforce.

13.7 Severance

If any provision of this agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, 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 and will not in any way affect any other circumstances of or the validity or enforcement of this agreement.

13.8 Announcements, Branding and Promotion

(a) Subject to paragraph 13.8(b), neither Party may issue or make any public announcement or disclose any information regarding this agreement unless prior to such public announcement or disclosure it obtains the consent of the other Party.

(b) Where consent is granted under clause 13.8(a), then the Client grants Parabellum a royalty free, perpetual, non-exclusive right to use the Company's branding, logo and trademark for the purposes of Parabellum advertising or promoting that the Company is a client of Parabellum.

(c) No Party will be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange.

13.9 Notices

A notice or other communication connected with this agreement has no legal effect unless it is in writing.

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