Cyber Consulting Limited Trading as Cyber Consulting
Standard Terms & Conditions
Last updated on 12/07/2023
1. The purpose of this document
(a) The purpose of these standard terms and conditions (Terms) is to set out the legal and commercial framework for our business relationship. The Terms establish the rights and obligations of the parties and govern how our business together will be conducted.
(b) When reading these Terms, the words we, us, and our refer us, Cyber Consulting Limited. The words you and your refers to our client.
(c) By engaging us to provide various information technology services described in clause 3 (Services) you agree to be bound by these Terms to the exclusion of your terms (if any).
(e) The Terms apply to any work you request from us now or in the future (subject to any modification of the Terms under clause 10).
(f) Nevertheless, acceptance of these Terms does not imply any obligation on our part to agree to provide any particular services to you.
(g) It is important that you understand and feel comfortable with these terms. If you have any questions, please do not hesitate to contact us.
2. How we will work together
(a) We will provide you with Services as agreed from time to time using reasonable skill, care, and diligence in a professional manner.
(b) We will endeavour to ensure that the Services are provided in accordance with any timeframes agreed in writing with you.
(c) We will liaise with you during the course of providing the Services in accordance with your reasonable requirements.
(d) In turn, you will give reasonable assistance to enable us to provide the Services by:
· Responding to our inquiries promptly and providing comprehensive instructions. This could include clarifying your security policies, defining user roles and permissions, or identifying critical business assets for prioritised protection.
· Granting us access to necessary digital infrastructure such as servers, networks, cloud platforms, applications, and databases. This involves sharing relevant access permissions, VPN details, login credentials, or encryption keys, as required for the thorough execution of our cybersecurity services.
· Collaborating with us to create an effective incident response plan, which could involve identifying key personnel for communication during security incidents, defining escalation procedures, and setting timelines for response and recovery.
· Promptly providing any additional information, feedback, or content that is required for our services. For example, this might include sharing network diagrams, providing details about recent security incidents, or giving feedback about previous cybersecurity measures.
· Ensuring the integrity of the information you provide to us. All the data and details shared should be accurate, up-to-date, and must not expose us to any legal risk.
· Facilitating the implementation of our cybersecurity measures by ensuring that your employees follow recommended security protocols, complete necessary training, and participate in awareness programs.
(e) You acknowledge that, if we have given you a time frame for completion of any Services, unless agreed in writing to the contrary, then that timeframe is approximate only and is not deemed to be of the essence of our agreement with you.
(f) We will not be liable for any failure or delay to perform the Services if the failure or delay arises directly or indirectly from a cause reasonably beyond our control.
(g) We are not obliged to take on any particular assignment deemed to be outside the scope of any agreed Services, and it is up to us, with our full discretion, as to which assignments we take on.
3. The types of services we offer
(a) We may offer you the following Services:
Cybersecurity Services: Including solution design and implementation of cybersecurity policy enforcement tools, infrastructure threat evaluation, penetration testing (conducted via contractor), and the design and implementation of tools to monitor and protect against threats.
Network Services: Including network design and implementation, wi-fi survey and design, network Monitoring and visibility tools, branch network enablement and various remote worker connectivity options.
Managed Services: These are ongoing support options we offer, including Branch Network Enablement and equipment leasing, network support and monitoring, and regular maintenance and patching.
Other Services: We may also provide additional services, which will be defined as required and agreed upon in writing by both parties.
(b) We may also from time to time agree to procure IT hardware for you. The following terms apply to such procurement:
· All hardware sold to you is subject to the manufacturer's standard warranties and we do not offer any additional warranties beyond those provided by the manufacturer.
· Returns and exchanges will be governed by the return policies of the respective manufacturers or vendors.
· All prices for hardware products will be quoted exclusive of GST, shipping, handling, or other related charges.
· Once the hardware is delivered, it is your responsibility to inspect the products promptly upon receipt and notify us of any defects within seven (7) days from the date of receipt of the hardware, after which you will be deemed to have accepted the products.
· You are responsible for complying with all licensing requirements associated with any software installed on the hardware products.
· We may require payment in advance.
4. How we will charge you
(a) When you engage us for Services, you will be charged in one of three ways depending on the scope and timing of the particular engagement. The method of charging will generally be agreed when we confirm the scope of the particular engagement.
(b) You will be charged based on the scope and timing of the particular engagement. If a project extends for a period longer than one month, we may agree on certain milestones at which we will bill you. The method of charging will be clarified when we confirm the scope of the particular engagement.
(c) Pricing for Services will be determined based on the following options:
· Set Price: Services will be undertaken for a specified price.
· Estimate: where we provide an estimate of the anticipated cost for us to complete those services.
· Hourly Rates: Where Services are charged on an hourly basis.
(d) If we agree to provide Services subject to a Set Price or an Estimate, and we undertake additional work for you that falls outside the agreed scope, then we will charge you for that additional work at our Hourly Rates.
(e) Unless stated otherwise, any price we give you for Services to be provided will be an Estimate on a plus GST basis.
(f) Where we give you an Estimate or a Set Price, we will not commence services for any Services until you have accepted it in writing. We may also withdraw any offer of a Set Price or an Estimate before it is accepted by you.
(g) Except in the case of a Set Price, you will pay to us our actual cost of completing the services (Actual Cost) which will be calculated by totalling the following:
· The number of hours of service multiplied by the hourly rates for the workers involved on the date which the services are undertaken or if the supply occurs over more than one day, the relevant hourly rates on the last day on which services are rendered.
· Any expenses incurred by us on your behalf.
· The cost of any products supplied by us as part of the services.
(h) The Actual Cost and all prices are plus GST and other taxes which are payable by you in New Zealand dollars, unless stated otherwise.
(i) Expenses incurred by us on your behalf may include a reasonable mark-up by us.
(j) In the event these Terms are terminated prior to completion of our Services then, subject to any other provision in these Terms, you must immediately pay us the Actual Cost at the termination date. Unless the Terms were terminated by you for fault on our part, you must also pay us 50% of the balance remaining between the Actual Cost and any Estimate or Set Price for those Services.
5. How payment is to be made
(a) You acknowledge that we are relying on you for prompt payment of our accounts.
(b) We may at our discretion require you to pay a deposit, being an advanced payment for Services before we commence providing those Services.
(c) Payment for Services (and any associated expenses and disbursements) is due on the 20th day of the month following the date of our invoice except where we have agreed in writing that other terms will apply (Due Date).
(d) If you do not make payment on the Due Date, you are in default and must pay default interest at the rate of 15% per annum, which will accrue on a daily basis on the total amount outstanding from the Due Date to the date of payment in full.
(g) If payment is outstanding for 7 days from the Due Date, we may also suspend performing the Services on credit until the date of payment in full. You must pay in cash for any Services done by us until payment is made in full (together with any accrued interest).
(h) We may notify you at any time that we have ceased to carry out Services on credit. This cessation does not relieve you for amounts owing up to the date on which the contract is terminated.
(i) Payment of all money will be without set-off or deduction of any kind.
(j) We will apportion payments to outstanding accounts as we think fit.
6. There are limits to our liability
(a) The guarantees contained in the Consumer Guarantees Act 1993 are excluded where you acquire Services from us for the purposes of a business in terms of sections 2 and 43 of that Act.
(b) Except to the extent that the law prevents us from excluding liability, we will not be liable for any loss or damage or liability of any kind whatsoever (including consequential loss or lost profit or business) whether suffered or incurred by you or another person and whether in contract, or tort (including in negligence), or otherwise and whether such loss or damage arises directly or indirectly from Services provided by us to you.
(c) To the extent that we are liable for any reason for any loss suffered or liability incurred by you arising from any breach of these Terms or for any other reason, such liability is limited to the amount of the Actual Cost.
(d) Certain services, particularly Managed Services, may be provided to you via Cyber Consulting, through collaboration with our specialist partners. Cyber Consulting shall facilitate the provision of these services for your convenience. You acknowledge and agree that in relation to these services, Cyber Consulting's liability to you shall be limited to the amount that we can recover from the relevant specialist partner.
(e) This limitation will apply regardless of the nature of your claim, whether it is based on contract, tort (including negligence), strict liability, or any other theory of liability, and even if we have been advised of the possibility of such damages. We will undertake reasonable efforts to assist you in obtaining any such remedies from the specialist partner, where necessary.
7. Uses and ownership of Intellectual Property
(a) Except as these Terms otherwise provide, we are and will remain the exclusive owner everywhere in the world of all Intellectual Property rights and interests (including copyright and all other statutory and common law rights and interests) in the Services, and any other work performed by us for you, as first owner of those Intellectual Property rights and interests.
(b) We will retain exclusive worldwide ownership at all times of our artistic styles, methods of working, techniques, ideas, skills, and know-how.
(c) You must not attribute the Services to anyone other than us or remove any of our trademarks, signatures, logos or similar from our Services.
8. How we can collect and use your information
(a) You authorise us:
· To collect, retain and use information about you from any person for the purpose of assessing your creditworthiness.
· To disclose information about you to any person who guarantees, or who provides insurance, or who provides any other credit support, in relation to your obligations to us.
· To disclose information to such persons as may be necessary or desirable to enable us to exercise any power or enforce or attempt to enforce any of our rights, remedies and powers under these Terms.
(b) You consent to us and any financier or credit-rating agency making enquiries of and obtaining any information about your financial standing and creditworthiness.
9. How notices can be given
(a) Any notice may be given by phone, in person, posted, or sent by fax or email to you (or where you are a company, to any of your directors).
(b) You must keep us up to date with your current email address. The email address we hold on file for you will be considered determinative.
10. Our right to vary these Terms
(a) We will be entitled at any time by notice in writing to you to vary any provision of these Terms and you will be bound by such variation.
(b) You may terminate these Terms immediately if we breach these Terms and the result is that you suffer significant financial or reputational harm as a result.
11. Termination of these Terms and consequences
(a) As a general rule, these Terms can be terminated by either party by providing a one (1) month's written notice, subject To clause 10(b) and the specific provisions outlined below.
(b) For our Managed Services, you have the flexibility to terminate these Terms at any time within the first 90 days from the service start date, without incurring any charges.
(c) Following this 90-day period, any contract for Managed Services will be considered to operate on a continuously renewing 12-month term. Despite this, termination is still possible at any stage, provided you give a written notice 90 days prior to the intended termination date.
(d) Immediate termination of these Terms may also occur in situations where specific provisions within the Terms permit such immediate action.
(e) Please refer to clause 4 of these Terms for detailed information regarding the costs associated with termination.
(f) Post-termination, any provisions within these Terms that are inherently intended to survive termination, such as those relating to indemnification, confidentiality, and limitations of liability, shall remain in full force and effect.
(g) Termination of these Terms will not absolve either party of any obligations that have accrued prior to such termination or expiration, nor those obligations which are inherently intended to survive termination
(a) These Terms are governed by and construed according to the laws of New Zealand.
(b) You submit to the non-exclusive jurisdiction of the courts of New Zealand in respect of any dispute or proceeding arising out of these Terms (subject to the Dispute Resolution provisions below).
13. Events of default and enforcement of these Terms
(a) Each of the following is an Event of Default:
· If you fail to pay any money owing on the Due Date.
· If we believe you have committed or will commit an act of bankruptcy, have had or are about to have a receiver or liquidator appointed, or are declared insolvent.
· You neglect or fail to carry on your business to our reasonable satisfaction, or if there is a significant deterioration in your trading or asset position.
· You do anything that we consider results in serious reputational risk to us, including any conduct which is unlawful, unethical, or which may bring us into disrepute.
· You are otherwise in breach of your obligations under these Terms of Service.
(b) If an Event of Default occurs, we may at our discretion:
· Suspend the provision of Services as provided for above.
· Charge default interest as provided for above.
· Immediately terminate these Terms.
(c) You must pay the costs (including legal costs, as between solicitor and client) of and incidental to the enforcement or attempted enforcement of our rights, remedies, and powers under these Terms.
14. How disputes will be resolved
(a) In the event of any dispute between the parties arising out of or in connection with any amounts of money claimed to be owed by one party to the other party, the parties shall attempt to resolve such dispute through good faith negotiations.
(b) If the parties are unable to resolve the dispute through negotiations within thirty (30) days of written notice of the dispute, either party may request that the dispute be referred to an independent expert for determination.
(c) The expert shall be mutually agreed upon by the parties or, failing agreement within fifteen (15) days after the request to refer shall be appointed by the president of the Auckland District Law Society.
(d) The determination of the expert shall be final and binding on the parties, and the parties shall abide by such determination.
(e) The fees and expenses of the expert shall be borne equally by the parties unless the expert determines otherwise in the course of making the determination.
(f) The parties agree to provide the expert with any information or documents that the expert may reasonably request to decide on the dispute.
(g) The parties further agree to keep confidential the determination of the expert and any information or documents provided to the expert.
(h) Any other claim or dispute arising under these Terms will be determined by arbitration under the Arbitration Act 1996 if the parties are unable to resolve such dispute themselves within one (1) month of the dispute arising.
(f) Nothing in this clause prevents either party from taking immediate steps to seek any equitable relief before the New Zealand Courts.
15. Our relationship is with you
(a) You must not assign any of your rights, powers, or obligations under these Terms without our prior consent.
16. Definitions that apply to these Terms
(a) When reading these Terms, the following applies.
Intellectual Property includes all intellectual property rights (including without limitation copyright, patent and design rights, drawings, documents, data, ideas, procedures, and calculations).
Confidential Information means any information or data, regardless of the form or medium in which it is disclosed, that is disclosed by one party (Disclosing Party) to the other party (Receiving Party) and is designated as confidential or proprietary or that the Receiving Party knows or reasonably should know is considered confidential or proprietary by the Disclosing Party. Information will not be considered Confidential Information in the following circumstances:
· It is or becomes publicly available through no fault of the Receiving Party;.
· It was in the Receiving Party's possession prior to disclosure by the Disclosing Party without restriction on use or disclosure.
· It is rightfully received by the Receiving Party from a third party without restriction on use or disclosure.
· It is independently developed by the Receiving Party without reference to the Disclosing Party's Confidential Information.
(b) The rule of construction known as the contra proferentem rule does not apply to these Terms.
(c) References to us include our employees, contractors, and agents.
(d) Words referring to the singular include the plural and vice versa.
(e) Any reference to a party includes that party's executors, administrators, or permitted assigns, or, if a company, limited partnership, or any other body corporate, its successors or permitted assigns or both.
(f) Clause headings are for reference only.
(g) References to clauses are references to clauses of these Terms.
(h) References to money will be New Zealand currency, unless specified otherwise.
(i) Expressions referring to writing will be construed as including references to words printed, typewritten, or otherwise visibly represented, copied or reproduced (including by fax or email).
(j) References to statutory provisions will be construed as references to those provisions as amended or re-enacted or as their application is modified by other provisions from time to time.