TERMS AND CONDITIONS: BENCH MARK IT SERVICES

Last Updated: April 2026

1. OVERVIEW AND ACCEPTANCE

These Terms and Conditions (“Terms”) govern the provision of managed IT and cybersecurity services by Evans Management & Consultancy Pty Ltd ATF EMC Trust T/A Bench Mark IT Services (“we”, “us”, “our”) to the client identified in a Service Level Agreement (SLA) or Proposal (“you”, “your”).

By signing an SLA, paying an invoice, or accessing our services, you enter into a legally binding contract. If you do not agree, you must cease use of our services immediately.

2. THE SHARED RESPONSIBILITY MODEL (CYBERSECURITY)

2.1 No Guarantee of Absolute Security: You acknowledge that no cybersecurity measure is infallible. We provide services to reduce risk, but we do not warrant that your systems will be 100% immune to breaches, ransomware, or unauthorized access.

2.2 Client Responsibility: You are responsible for:

• Ensuring employees undergo security awareness training.
• Maintaining physical security of your premises and hardware.
• Adhering to our “Minimum Security Standards” (e.g., enforcing MFA). 2.3 Refusal of Recommendations: If we recommend a specific security patch, upgrade, or protocol (e.g., MFA or EDR) and you decline or fail to implement it, we are fully indemnified against any resulting loss, breach, or damage.

3. SCOPE AND THIRD-PARTY VENDORS

3.1 SLA Supremacy: The specific deliverables are defined in your SLA. Any work outside that scope is “Out of Scope” and billed at our prevailing hourly rates. 3.2 Third-Party Services: We may use third-party products (e.g., Microsoft 365, AWS, Datto). You agree to be bound by their respective End User License Agreements (EULA). We are not liable for outages, bugs, or data breaches originating within third-party software or infrastructure.

4. DATA PRIVACY AND BREACH NOTIFICATION

4.1 Compliance: Both parties will comply with the Privacy Act 1988 (Cth) and the Australian Privacy Principles (APPs). 4.2 Data Processor Status: For the purposes of privacy law, you are the Data Collector and we are the Data Processor. 4.3 Notifiable Data Breaches (NDB): In the event of a suspected data breach:

• We will notify you within 24–48 hours of discovery.
• The legal obligation to notify the Office of the Australian Information Commissioner (OAIC) and affected individuals remains with you unless otherwise agreed in writing.

5. FEES, PAYMENT, AND SUSPENSION

5.1 Payment: Invoices are payable within 14 days. 5.2 Price Adjustments: We may adjust fees annually in line with CPI or third-party vendor price hikes, providing 30 days’ notice. 5.3 Right to Suspend: If an invoice is 7 days overdue, we reserve the right to suspend all services, including cybersecurity monitoring. We are not liable for any security incidents that occur during a period of suspension due to non-payment.

6. LIMITATION OF LIABILITY (CRITICAL)

6.1 Cap on Liability: To the maximum extent permitted by the Australian Consumer Law (ACL), our total aggregate liability for any claim (whether in contract, tort, or negligence) is strictly limited to:

• The total fees paid by you in the six (6) months preceding the event; or
• The cost of resupplying the services. 6.2 Consequential Loss: We are never liable for indirect losses, including loss of profit, loss of reputation, business interruption, or “Special Damages.” 6.3 Data Loss: While we manage backups (if in scope), you must periodically verify backup integrity. We are not liable for data loss caused by hardware failure, sophisticated cyberattacks, or client-side deletions.

7. INDEMNITY

You agree to indemnify and hold us harmless against all claims, costs, and legal fees arising from:

• Your use of the services in breach of these Terms.
• Your failure to maintain software licenses.
• Claims by third parties regarding data hosted on your systems.

8. INTELLECTUAL PROPERTY (IP)

8.1 Our IP: All scripts, methodologies, and tools we use to manage your IT remain our sole property. 8.2 Your IP: You retain ownership of all data and content you provide to us.

9. TERM AND TERMINATION

9.1 Notice Period: Either party may terminate with 60 days’ written notice, unless a longer fixed term is specified in your SLA. 9.2 Immediate Termination: We may terminate immediately if you engage in illegal activity, fail to pay, or if your environment poses a systemic risk to our other clients (e.g., an active, uncontained worm). 9.3 Off-boarding: Upon termination, we will provide reasonable transition assistance at our standard hourly rates. Access to our tools will be revoked on the final day of service.

10. FORCE MAJEURE AND CYBER WARFARE

We are not liable for failures caused by events beyond our control, including natural disasters, acts of God, or “state-sponsored” cyberattacks (Cyber Warfare) which are generally uninsurable and beyond standard commercial defense capabilities.

11. DISPUTE RESOLUTION AND GOVERNING LAW

11.1 Negotiation: Parties must attempt to resolve disputes via executive negotiation for 14 days. 11.2 Mediation: If unresolved, the dispute must be submitted to mediation in Melbourne, Victoria. 11.3 Jurisdiction: These Terms are governed by the laws of Victoria, Australia.

12. AMENDMENTS

We may update these Terms by posting the new version on our website. Your continued use of the services 14 days after posting constitutes acceptance of the new Terms