1. Performance of Services  

1.1 Provision of the Services  

  1. These general terms and conditions apply to:  
  1. Any Proposal or Quote that is submitted to, and is accepted by, the Client; or  
  1. Any SOW that references and incorporates these general terms and conditions.  
  1. During the Term, Kapalins agrees to perform the Services as set out.  
  1. In a Proposal, Quote or SOW (as relevant) and any acceptance and delivery will only be in accordance with the terms of this Agreement, and no other terms or conditions contained in any other Client document will apply or be incorporated. The Client acknowledges and agrees that the Services may be performed and invoiced by Kapalins or any of its Related Bodies Corporate.  
  1. When performing any Services, Kapalins agrees to:  
  1. Comply with all reasonable directions of the Client and all applicable Laws in performance of its obligations;  
  1. Comply with all reasonable health and safety policies of the Client whilst on the Client’s site as provided to Kapalins prior to commencing the work; and  
  1. Use reasonable endeavours to have any specific personnel identified in a Proposal, Quote or SOW available to perform the Services and will provide the Client with reasonable notice if it intends to replace or reassign such personnel.  
  1.  The Client agrees to reasonably facilitate Kapalins supply of any Services or Products, including:  
  1. Providing Kapalins with safe and timely access and authorisation to access and use the Client’s Systems, personnel, facilities, site and utilities as reasonably required;  
  1. Providing Kapalins with any requested information relevant to the provision of the Services in a timely and accurate manner;  
  1. Ensuring the Client’s Systems are virus free and backed-up prior to, and during, the performance of the Services; and  
  1. Complying with all reasonable requests or directions of Kapalins.  
  1. Client acknowledges that, due to the nature of some Services, Kapalins proper performance of those Services may have an impact on Client’s Systems.  

1.2 Use of subcontractors  

  1. Kapalins will be liable for:  
  1. The performance of obligations by its subcontractors; and  
  1. Provision of the Services by its subcontractors.  

1.3 Provision of Products  

  1.  At any time during the Term the Client may request to purchase any Products offered for sale or resale by Kapalins by submitting a purchase order to Kapalins.  
  1. The purchase order must explicitly reference these general terms and conditions and set out the type and quantity of the Product/s to be purchased and the desired date for delivery of the Products.  
  1. Kapalins will provide the Client with written notification of acceptance or rejection of the purchase order, the proposed delivery date along with any variable price changes (including exchange rate, delivery, or third-party pricing changes) as relevant for the purchase of the Products. Failure by Kapalins to confirm receipt of the purchase order is not an acceptance of that purchase order.  
  1. All risk in any deliverable transfers to the Client upon delivery to the Client and title passes on payment in full.  

1.4 Access and delays  

  1. The Client will be responsible for any delays caused or contributed to by the Client, including failure to provide any information or access to any Client premises or Systems necessary for any of the Services at least 5 Business Days prior to commencement of the applicable Services.  
  1. If the Client requests Kapalins to cancel, delay, reschedule or suspend the Services with less than 3 Business Days’ notice, the Client must pay Kapalins its reasonable costs associated with such cancelation, delay, rescheduling or suspension.  

2. Authorisation  

The Client authorises Kapalins and Kapalins Personnel to access and use the Client’s networks and Systems as reasonably required to provide the Services.  

3. Specific Services Terms  

To the extent the Services include: 

  1. Security Testing Services, the terms in Schedule 1 apply; 
  1. Digital Forensic Services, the terms in Schedule 2 apply; 
  1. Education Services, the terms in Schedule 3 apply; and 
  1. Staff Augmentation Services, the terms in Schedule 4 apply, and the terms of each relevant schedule will apply to the provision of those Services and take precedence over these terms to the extent of any conflict.  

4. Governance Risk, Compliance and Privacy Advisory  

  1. The Client is responsible for ensuring that the selection and use of Products and Services satisfies all of the Client’s legal, regulatory and compliance obligations.  
  1. Unless set out in a Proposal, Quote or SOW, Kapalins is not responsible for any of the Client’s legal, regulatory or compliance obligations.  

5. Term  

Unless otherwise terminated in accordance with clause 14, this Agreement commences on the earlier day of Kapalins providing the Services, the acceptance by Kapalins of a Client purchase order or as otherwise agreed in writing and continues for the duration set out in the applicable Proposal, Quote or SOW (Term).  

6. Invoices & Payments  

  1. The Client agrees to pay Kapalins for the provision of the Services and for the supply of any Products, as set out in a valid tax invoice issued by Kapalins.  
  1. Kapalins will issue invoices as set out in an applicable Proposal, Quote or SOW, or otherwise at the end of the month in which the Services are delivered, or in respect of Products, upon acceptance of a purchase order for the Products.  
  1. The Client must pay all invoices within 30 days of the invoice date by electronic funds transfer to an account specified by Kapalins. (d) All fees and prices are provided exclusive of all applicable taxes,  
  1. Duties, goods and services tax and government charges (Taxes). If Taxes are payable for, or charged on, any supply made by Kapalins under this Agreement, Client must pay an amount equal to the amount of Taxes charged on such supply, at the same time as the amounts due.  
  1. The Client may not set-off, counterclaim or deduct any amount from an amount owing to Kapalins, unless it has notified Kapalins in writing of any disputed invoices within 5 Business Days of receipt detailing the amount and the reason for the dispute. In such circumstances the Client must pay Kapalins the portion of the invoiced amounts not in dispute on the due date for payment.  

7. Intellectual Property  

7.1 Intellectual Property in Deliverables and provision of Services  

  1. Subject to clauses 7.2 and 7.3, all intellectual property rights in the Deliverables, the Services and any other material created by Kapalins in delivering the Services remain the property of Kapalins.  
  1. Subject to clause 7.3, Kapalins grants the Client a non-exclusive, non-transferable, non-sub licensable, royalty-free (excluding any payments due under clause 6) licence to use in Australia the intellectual property rights in the Deliverables, the Services and any other material created by Kapalins in delivering the Services for the sole and limited purpose of enjoying the benefit of the Services as set out in the Proposal, Quote or SOW.  

7.2 Background IP  

Each party retains all title and ownership in its own its Background IP.  

  1.  Third party intellectual property  
  1. In providing the Services, Kapalins may provide the Client with software, Services or Deliverables that are, or include, software, services or other material which is owned by or is proprietary to a third party (Third Party Material). The Client agrees that:  
  1. The Third-Party Material is supplied ’as is’: 
  1.  Its use or acceptance of any Third-Party Material is conditional on the Client’s acceptance of the third-party licensor’s licence agreement or terms of use (Third Party Licence); and  
  1. Title in any Third-Party Material remains at all times with the third party unless provided otherwise in a Third-Party Licence.  

8. Confidentiality  

  1. Each party agrees that where it, its Personnel, or its Related Bodies Corporate, are the recipient of Confidential Information (Recipient) of the other party (Disclosing Party), the Recipient must:  
  1. Treat all Confidential Information as confidential and not use it except as reasonably necessary for the purposes of this Agreement;  
  1. Hold the Confidential Information in strict confidence and not disclose it to any third party (subject to any legal requirement on the Recipient to disclose the Confidential Information), except to a member of that party’s Personnel who needs such Confidential Information in order to perform his or her duties and provided that such member has a legal or contractual obligation to maintain the confidentiality of such Confidential Information;  
  1. Immediately notify the Disclosing Party in writing if the Recipient suspects that any Confidential Information may have been accessed by any unauthorised party;  
  1. Use, at a minimum, the same degree of care with respect to its obligations under this Agreement as it employs with respect to its own confidential or proprietary information, but in no event less than reasonable care; and  
  1. Upon request by the Disclosing Party or termination of this Agreement, promptly deliver to the Disclosing Party any Confidential Information in its custody, control, or possession.  
  1. Nothing in this Agreement requires a party to return or destroy any information contained in systems, archives or backups which cannot be practicably deleted, which must be retained as required by Law, any accounting standard, or the rules of any stock exchange or for sound corporate governance purposes.  
  1. Unless otherwise agreed in writing by the Disclosing Party, the obligations of confidentiality in clause 8(a)(i) do not apply to the extent the Confidential Information:  
  1. Has been lawfully disclosed to the Recipient by a third party free from obligations of confidentiality; or  
  1. Is in the public domain (other than through a breach of this Agreement).  
  1. The provisions of this clause 8 shall continue in force indefinitely following the termination of this Agreement.  

9. Privacy  

  1. Both parties agree to comply with the Privacy Laws in relation to the provision and use of the Services.  
  1. Where he Client it discloses Personal Information (Client Personal Information) to Kapalins, or permits Kapalins to collect, access, or handle Client Personal Information under this Agreement, the Client must ensure it has obtained any authorisations from individuals necessary under all applicable Privacy Laws (Necessary Authorisations).  
  1. Kapalins will only collect, access, otherwise use, disclose, or handle Client Personal Information to the extent necessary for performance of the Services.  

10. Data Security  

  1. Kapalins will take reasonable precautions within its own control to prevent any Security Breach of Kapalins Systems.  
  1. Each party shall promptly notify the other of any Security Breach and provide reasonable assistance to the other in managing such Security Breach and/or handling any requests in relation to Personal Information.  

11. Warranties  

  1. Each party warrants:  
  1. It has the power, capacity, and authority to enter into and observe its obligations under this Agreement; and  
  1. This Agreement has been duly executed by that Party and is a legal and binding agreement, enforceable against it in accordance with the terms of this Agreement.  
  1. Except as set out in a contract, to the extent permitted by law Kapalins makes no warranty or representation, express or implied, in relation to the Services, Products or any third-party hardware or software. In relation to third party hardware or software, Kapalins will ensure Client enjoys the benefit of, and Client agrees to comply with, the relevant third party’s standard terms and conditions.  
  1. Kapalins warrants that: 
  1. The Services will be provided by exercising the same degree of skill, care and diligence that would be exercised by a professional services provider of similar size in the same industry in similar circumstances; and  
  1. Its Personnel are appropriately trained and experienced to provide the Services.  
  1. Nothing in this Agreement excludes, restricts, or modifies any condition, guarantee, warranty, right or remedy conferred on the parties by the Competition and Consumer Act 2010 (Cth) or any other Law that cannot be excluded, restricted or modified by agreement.  

12. Liability  

  1. Subject to any applicable third party licensor’s restrictions, Kapalins indemnifies the Client for any direct Loss suffered by the Client arising from any third party claim that the Client’s use of the Deliverables or other materials provided to the Client by Kapalins in the performance of its Services under an Agreement (other than third party hardware or software) infringes the rights, including intellectual property rights, of a third party except Kapalins will not be liable for any such Loss caused or contributed to by  
  1. Any modification of the Deliverables or materials provided by Kapalins;  
  1. Use of the Deliverables or materials provided by Kapalins not in accordance with any directions given by Kapalins;  
  1. The Client’s breach or failure to comply with, any Third-Party Licence; or  
  1. The Client’s (and its Personnel’s) failure to take all reasonable steps to mitigate any Loss on becoming aware of any such third-party intellectual property claims, 
  1. Kapalins total aggregate liability to the Client in respect of any and all Losses incurred by the Client (whether for breach of contract, in tort (including negligence) or otherwise) arising out of or in connection with the carrying out of the Services or supply of the Products under this Agreement is limited to the amount paid by the Client to Kapalins under the applicable Proposal, Quote or SOW in the 12 months preceding the event giving rise to the Loss, to a maximum of $250,000.  
  1. Kapalins limit on liability in clause 12(b) does not apply to the following Losses:  
  1. Personal injury or death of a party or person to the extent caused by Kapalins;  
  1. Damage to tangible property caused by Kapalins negligent act or omission;  
  1. Breach of clause 8 (Confidentiality) by Kapalins;  
  1. Under the indemnity in clause 12(a); or  
  1. Breach of clause 9 (Privacy) by Kapalins, for which Kapalins total aggregate liability is limited $2,000,000.  
  1. Notwithstanding anything in this Agreement, Kapalins not be liable under this Agreement for any indirect or consequential Loss that does not arise naturally (that is, according to the usual course of things) from the event giving rise to the Loss or any loss of profits, loss of production, loss of revenue, loss of business, loss of goodwill, damage to reputation, loss of opportunity, loss or corruption of data or wasted overheads.  

13. Australian Consumer Law  

  1.  This clause 13 applies where the Client is a Consumer.  
  1. Clause 12 does not apply to any liability of Kapalins for failure to comply with a Consumer Guarantee.  
  1. Kapalins’s goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, the Client is entitled:  
  1. To cancel its service contract with Kapalins; and  
  1. To a refund for the unused portion, or to compensation for its reduced value.  
  1. The Client is also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, the Client is entitled to have the failure rectified in a reasonable time. If this is not done the Client is entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. The Client is also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.  

14. Termination  

  1. Either party may terminate the Agreement with immediate effect if the other party is:  
  1. In material breach of the Agreement and such breach is incapable of remedy, or such breach is remediable, but that defaulting party fails to remedy the breach within 14 days of receiving notice of the breach;  
  1. Subject to an Insolvency Event; or  
  1. Subject to an Event of Force Majeure that continues for a period of at least 90 days.  
  1. Upon termination of this Agreement for any reason:  
  1. Kapalins will cease providing the Services and Products; and  
  1. The Client must pay to Kapalins all outstanding amounts for Services actually performed or Products ordered by the Client or amounts that Kapalins has paid or owes to third parties that it cannot reasonably get out of paying in connection with this Agreement.  
  1. Termination of this Agreement does not affect a liability, or any obligation of a party arising prior to termination nor affect any damages or other remedies which a party may be entitled under this Agreement.  
  1. On expiry or termination of this Agreement:  
  1. Clauses 8 (Confidentiality), 8(d) (Privacy), 10(Data Security), 11 (Warranties), 12 (Liability), 14(b) (Termination) and 15 (non-solicitation) continue in full force and effect; and  
  1. All rights, obligations, and liabilities a party has accrued before expiry or termination continue.  

15. Non-solicitation 

During the Term and for a period of 12 months after completion of the Term, the Client must not offer work to, solicit or induce for employment, employ, or contract with, Kapalins Personnel who are involved with the provision of the Services, without first obtaining the written consent of Kapalins (which may be withheld by Kapalins at its absolute discretion). This clause does not apply to a bona fide publicly listed job advertisement by the Client.  

16. Modern Slavery  

  1. Kapalins complies with the Modern Slavery Act 2018 (Cth), publishing an annual report on the Modern Slavery Register.  
  1. As at the date of entering into this Agreement, Kapalins:  
  1. Has no knowledge of any modern slavery offence currently occurring within its organisation or supply chains; and  
  1. Take reasonable commercial steps to identify the risk of and prevent modern slavery offences.  
  1. If Kapalins becomes aware of any modern slavery offence (or of any charges laid or orders made in relation to a modern slavery offence) within its organisation or supply chain that directly or adversely impact the obligations in this Agreement, Kapalins will notify the Client in writing.  

17. Miscellaneous  

  1. If any provision of this Agreement is deemed to be unenforceable, invalid, or illegal, the interpretation is to be applied to reflect the intention of the parties as far as possible whilst not affecting the validity of the remainder of the Agreement.  
  1. Neither party may assign its rights under this Agreement without the other party’s prior written consent, provided however Kapalins can assign its rights under this Agreement to a Related Body Corporate if it wants for so long as it requires to do so.  
  1. Unless otherwise provided for, in the event of any inconsistency between the terms of this master agreement and the terms of an applicable Proposal, Quote or SOW, the following descending order of priority shall apply: (1) an amendment agreed in writing between Kapalins and the Client; (2) the terms contained an applicable Proposal, Quote or SOW; (3) any document annexed to or incorporated by refenced into the agreement; and (4) this Agreement.  
  1. The Client acknowledges and agrees that (i) some or all of the Services may be provided by Kapalins Pty Ltd and /or its Related Bodies Corporates, and (ii) Client data may be stored or accessed from locations outside of Australia for the purpose of Kapalins Personnel providing the Services from locations outside of Australia. Client agrees that if it procures any third-party hardware or software through Kapalins, we may be required to provide the relevant third-party certain Client data to facilitate the supply of that hardware/software.  
  1. All notices and consents must be sent by email to, in the case of the Client, the email address for the Client or its representative set out in a Proposal, Quote or SoW, and in the case of Kapalins, the Kapalins representative set out in the Proposal, Quote or SOW, with any legal notices or notice of dispute, copied to enquiry@kapalins.com.  
  1.  This Agreement is governed by the laws of the State of Victoria, Australia.  
  1. Kapalins will not be liable for any delay or failure to supply the Services or Products if such a delay or failure was due to an Event of Force Majeure.  
  1. Any dispute relating to the subject matter of this Agreement shall be submitted to mediation prior to any other dispute resolution process being invoked. The parties will agree a mediator within 21 days of either party giving the other written notice of intention to invoke mediation. If the parties cannot agree on a mediator, then the dispute will be referred to the Australian Disputes Centre (ADC). All mediation proceedings will be conducted in accordance with the ADC’s ADR Guidelines.  
  1. No party is authorised to bind another party and nothing in this Agreement is construed as creating a relationship of principal and agent, partners, trustee and beneficiary, or employer and employee.  
  1. This Agreement may only be amended or replaced with the written agreement of all parties.  
  1. This Agreement constitutes the entire agreement between the parties and supersedes any prior conduct, arrangement, representation, agreement or understanding in relation to its subject matter.  
  1. This Agreement can be signed in counterparts. If an electronic signature is used, it shall have the same effect as a handwritten signature.  

18. Definitions and interpretation  

18.1 Definitions  

All capitalised terms have either the meanings given to that term in the Proposal, Quote or SOW, the definitions in this clause 17.1 or where otherwise set out in the Agreement: 
Agreement means these general terms and conditions and, as relevant:  

  1. The Proposal, Quote or SOW to which they are attached, referenced, or attached (including any agreed written variation); or  
  1. Any purchase order submitted and accepted in accordance with clause 1.3, each of the above creating and forming a binding Agreement;  

Australian Consumer Law is as set out in schedule 2 to the Competition and Consumer Act 2010 (Cth); and the corresponding provisions of the Australian Consumer Law as applicable (and each of its equivalents in the Australian States and Territories);  

Background IP means a party’s intellectual property rights in any materials developed independently of, or prior to, the provision of the Services and the Deliverables and includes any third party licensed intellectual property; Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in the location where the Services are being provided (unless expressed otherwise in a Proposal, Quote or SOW);  

Client means the customer who has requested the Services to be performed by Kapalins; 
Client Data means the data owned or supplied by the Client which is accessed by Kapalins (including its Related Bodies Corporate) or its subcontractors in the course of performing the Services;  

Confidential Information means any and all information (in any form or media) of a confidential nature that is made available directly or indirectly, and before, on or after the date of this Agreement including financial, client, employee and supplier information, product specifications, policies and procedures, processes, statements, formulae, trade secrets, Client Data, drawings and data which is not in the public domain (except by virtue of a breach of the confidentiality obligations arising under this Agreement); Consumer has the same meaning as in section 3 of the Australian Consumer Law;  

Consumer Guarantee means a Consumer guarantee applicable to this Agreement under the Australian Consumer Law;  

Cyberattack means any breach of (or attempted or threatened breach of) or unauthorised access to the Client’s Systems, including identity or intellectual property theft, exploitation of ICT systems, phishing, spamming, denial-of-service (including distributed), stolen hardware, or website defacement;  

Kapalins means Kapalins Pty Ltd and any of its Related Bodies Corporate;  

Deliverables means the materials, reports, and other deliverables to be provided by Kapalins as set out in the relevant Proposal, Quote or SOW.  

Digital Forensic Services includes:  

  1. Digital forensic investigation;  
  1. Digital forensic analysis; 
  1. Forensic reporting and opinions;  
  1. Threat hunting;  
  1. Cyber threat intelligence and risks assessment; and 
  1. Any other activities carried out for, or on behalf of, the Client under a Proposal, Quote or SOW; 

Education Services means education delivered by Kapalins, that may include computer-based training, instructor-led training (online or in person), assessment tools, phishing programs, workshops and simulations, or as otherwise made available; 
Education Voucher is a voucher purchased by the Client for Education Services that can be redeemed (including against presenter’s travel time) no later than 12 months from the date of issue; 
Event of Force Majeure means any event or circumstance, or a combination of events or circumstances, which is beyond the reasonable control of an affected party (but does not excuse any obligation to make payment); 
Insolvency Event means: 

  1. Bankruptcy proceedings are commenced against the relevant party, or the relevant party is declared bankrupt; 
    (b) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator, or other like person to the relevant party or to the whole or any part of the relevant party’s assets or business;  
  1. If the relevant party is in a partnership, the partnership is dissolved, or an application is made to dissolve the partnership;  
  1. The relevant party is or becomes unable to pay its debts as they fall due or is presumed pursuant to section 95A of the Corporations Act 2001 (Cth) to be unable to pay its debts as they fall due; or  
  1. A relevant party has something having substantially similar effect to any of the events specified above occur in any jurisdiction under or in respect of any law;  

Laws means all laws including rules of common law, statutes, regulations, subordinate legislation, proclamations, ordinances, by laws, rules, regulatory principles and requirements, mandatory codes of conduct, writs, orders, injunctions, judgments, and any awards, which are applicable from time to time in the jurisdiction in which Kapalins or its Personnel perform their obligations under this Agreement;