Terms and Conditions
Please read the following terms and conditions carefully as they apply to purchase of goods and services or using one of the products and services offered by Autolync Pty Ltd (ABN: 50 102 164447) trading as "KYNECTION". You, “The Client or Customer” indicate that you understand and agree to the following terms, agreements and conditions, as such it forms part of the Agreement, either signed or unsigned between you and Kynection.
Kynection reserves the right to modify this agreement at any time, effective upon posting of an updated version of this Agreement on our website.
Any inconsistencies between the terms and conditions in the Signed Agreement and the website
Terms and Conditions will be overridden by active signed agreement.
This Agreement shall commence on the date The Client or Customer pays Kynection for the Goods or Services.
2 DEFINITIONS AND INTERPRETATION
“Acceptance Testing” means testing to determine whether the Software complies with the
Specifications (and "Acceptance Tests" has a corresponding meaning).
"Acceptance Testing Period" means the period of Ten Business Days from the date Kynection gives notice to the Client under clause 16.2 that the Software is ready for Acceptance Testing.
“Agreement” means this Agreement and includes its Schedules, Project Proposal, Scoping Documents and Annexures.
“Background IP” means IP which is created prior to or developed independently of this Agreement.
“Change Register” means a register of the changes documented to initial project deliverables.
“Commencement Date” means the date of this Agreement.
“Confidential Information” means any information disclosed in confidence to one party by the other party, or by a third party on behalf of the other party, whether of a business, financial, technical or non-technical nature or otherwise and whether existing in hard copy form, electronically
(a) on receipt, in the public domain or which subsequently enters the public domain without any breach of this Agreement;
(b) on receipt, already known by the party receiving it;
(c) at any time after the date of receipt, received in good faith from a third party;
(d) required by law to be disclosed.
“Contract Price” means the amount payable by Client to Kynection for the services rendered and products supplied and subject to the terms of this Agreement.
“Client IP” means any forms, data or scripts that are required specifically and paid for by the Client and created by Kynection on behalf of the Client without affecting the base platform.
“Deliverables” means the deliverables set out either in Project Deliverables and Scoping Document or as agreed in writing between the parties.
“Delivery Lead Time” means the number of working days from receipt of Client’s Purchase Order to receipt of Items according to the Delivery Terms.
“Dispute” includes any disagreement or difference in point of view.
"Force Majeure Event" means an event, or a series of related events, that is outside the
reasonable control of the party affected including failures of the internet or any public
telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks, wars and pandemic;
“Goods or Hardware” means the items as set out in Project Deliverables and Scoping
Document or as agreed in writing between parties.
“GST Law” has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999, or, if that Act does not exist for any reason, means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made
under that Act.
“GST” means the goods and services tax as imposed by the GST Law.
“GST Amount” means any Payment (or relevant part of that Payment) multiplied by the appropriate rate of GST.
“Input Tax Credit” has the meaning given to that term by the GST Law.
“IP” or “Intellectual Property” means all copyright (including moral rights) and all rights in relation to inventions (including patent rights), registered and unregistered trademarks (including service marks), registered and unregistered designs, Software Codes, any confidential
information (including trade secrets and know how), and circuit layouts, and any other rights resulting from intellectual activity in the industrial, scientific, literary and artistic fields recognised in domestic law anywhere in the world.
“Items” means the Deliverables includes Contracted and Not-Contracted Goods and or Services as described in Project Deliverables and Scoping document or as agreed in writing between
“Payment” means any amount payable under or in connection with this Agreement including any amount payable by way of indemnity, reimbursement, or otherwise and includes the provision of any non-monetary consideration.
“Project Scope or Project Proposal” means the specification of the Hardware and Software to be implemented as part of this Agreement and has been reviewed and agreed by the client in writing
“Project ” means the software configuration and deployment, Hardware supply, provision and install (if applicable) as described in Project Deliverables Document or as agreed in writing between parties, being the totality of the work described in this Agreement.
“Project Completion Date” means sixty days (60 days) from the date the Software was deployed to Live and/or used for Commercial purposes by the Client.
“Purchase Order” means a formal written request by client for the supply of any Item under this Agreement.
“Service” means the services required to be provided by Kynection as identified in Project Deliverables document or agreed in writing by the parties
“Site” means client’s place of business or any place as advised by client for the purpose of delivery of Goods or provision of Services.
“Software” means the software development and deployment project described in the Scoping Document or Project Proposal document provided to the client at the beginning of the
“Specifications or Scoping Document” means the specifications for the Hardware and Software included as part of the Project, as may be varied under the change request procedure
“Term” means the contract period from the date of execution of this contract to the completion and sign off of items as identified in Project Deliverables and Scoping Document or as agreed in
writing between the parties.
“Taxable Supply” has the meaning given to that term by the GST Law.
“Tax Invoice” means an invoice complying with the requirements of the GST Law.
“Test Plan” means the testing plan associated with the Software Specification and Scoping Document provided to the Client as part of the Proposal.
B. Guidelines for Interpretation
For the purposes of this Agreement:
a. Singular includes plural and vice versa, any gender includes every gender, a reference to a Party includes the Party's successors and permitted assigns and where a Party comprises two or more persons obligations of the Party shall be joint and several;
b. A reference to any of the Schedules and any of the Annexure’s hereto includes any amendments, variations or modifications there of;
c. "Person" includes a corporation, association, partnership, government authority or any legal entity;
d. "Kynection" includes any of Kynection’s authorised Supplier, consultant or contractor
e. "Law" includes any statute, ordinance, regulation, by-law, order, proclamation or
other law of the Commonwealth, State or Territory or local authority at the Site (including any amendment, consolidation or replacement);
f. "Month" means calendar month and "business day" means a day other than a
Saturday or Sunday or a public holiday at the Site;
g. “Business hours” are based on AEST 8:30am to 5:30pm, Monday through to Friday on a business day.
h. “Business Day” means any day except weekends or public holidays in the State of
i. "Dollars" or "$" means the lawful currency of Australia unless otherwise specified.
C. Resolution of Discrepancies
To the extent of any inconsistency in or between the provisions, clauses or parts of this Agreement or the documents referred to in this Agreement:
a. Kynection shall notify the client of the inconsistency immediately it becomes aware
of the inconsistency;
b. Client shall notify Kynection of the interpretation to be applied to resolve the
4. RELATIONSHIP BETWEEN KYNECTION AND CLIENT
A. Kynection Obligations
a. Kynection will develop, configure and deploy the Software for the Client, supply
and deploy Goods and Hardware as per Project Deliverables and Scoping
Document including any variation if any as agreed between Kynection and Client,
in accordance with the terms and conditions of this Agreement.
b. Kynection will perform its obligations in accordance with this Agreement and:
i. with reasonable skill and care;
ii. within the timeframes and specifications specified in the Project Proposal;
iii. in accordance with:
1. currently accepted principles and practices applicable to the
software development work; and
2. all applicable laws.
B. Client Obligations
The Client will :
A. make payments in respect of the Goods and Services provided by Kynection in
accordance with the terms and conditions of the engagement.
B. in all matters in relation to this Agreement act reasonably and make reasonable
decisions bearing in mind the time constraints imposed on Kynection under this
C. perform its obligations as specified in this Agreement and make all decisions
required of the Client and run Acceptance Testing, in accordance with the timing
in this Agreement;
D. make available to Kynection in a timely manner (and in accordance with any
timeframes which the Client has agreed to) all assistance, including personnel,
information, facilities, services and equipment reasonably required by Kynection;
E. where the Client is required to provide data to Kynection, provide the data in a
data format suitable for import and otherwise as reasonably requested by
F. provide Kynection with such access to its systems and resources as reasonably
required by Kynection.
G. must ensure that all communications to Kynection are directed to the authorised
person or personnel of the parties.
I. SOFTWARE DEVELOPMENT AND DEPLOYMENT
5. ANALYSIS AND SCOPE
A. This clause 5 applies if the final Project Deliverables and Fixed Project Pricing does not
already exist on the Commencement Date of the project. Where some but not all the items
referenced in this clause exist on Commencement Date, this clause 5 applies to the
B. The key deliverables from the Analysis and Scope Phase are:
a. Finalise Project Deliverables, Scoping Document; and
b. Project Final Pricing.
The draft key deliverables will be provided to the Client in accordance with the timing set out
in the Project Proposal once client makes a deposit per Project Quotation.
C. The Client will, upon receipt of each of the draft key deliverables under clause 5(B) review
and provide feedback to Kynection in a reasonable timeframe.
D. Kynection will make any changes required as a result of the Client’s feedback and deliver the
revised draft key deliverables to the Client. This process will be repeated until the relevant
key deliverables are agreed and signed by the Client
6. DELAY, CHANGE AND COST IMPACT
A. Unless expressly agreed otherwise in writing, timing for completion of the Project, and for
achievement of Project milestones as may be specified in the Project Deliverables, is
automatically extended by the following:
a. Change Requests under clause 7 - in respect of which the extension period
matches the additional time required on the Project (and for achievement of Project
milestones affected by the Change Request) as a result of the variation or change
b. Delays by the Client in meeting the Client obligations under clause 4 in respect of
which the extension period matches the duration of the delay.
B. Where clause 6.A(b) applies (“Delay Event”) and the Delay Event results in additional costs
to Kynection in performing Kynection’s obligations under this Agreement, Kynection may
notify the Client and the parties will then discuss and agree an amendment to the charges
payable by the Client to reflect the additional costs incurred by Kynection as a result of the
7. CHANGE REQUESTS AND VARIATIONS
A. The Client can request for changes prior to the completion of Acceptance Tests per below:
a. The Client shall request any variation to the Specifications to Kynection, either in
writing or during project meeting or during acceptance testing period by contacting
the project manager; (“Change Request”).
b. Kynection will validate the discussions and provide a written confirmation of such
change request for the Client authorisation to proceed, for which Client must agree
to the changes in writing confirming the relevant details
c. The Client’s request under this clause may arise from a suggestion made to the
Client by Kynection.
B. On receipt of a Change Request:
a. The Client and Kynection must agree to changes and the price in writing, in which
case clauses C – H (inclusive) apply.
b. If the request received is an enhancement to the system rather than
system/operation critical, then Kynection may suggest to delay making changes
until after the existing project is delivered.
c. All work undertaken in carrying out the change request and variations will be
charged to the Client at the hourly rate agreed between parties in addition to the
agreed initial contract price subject to minimum block of four hours;
C. Kynection will provide to the Client an estimate or if agreed already, variation invoice for
additional time and cost involved in implementing the Change Request and advise in writing
the impact on the timing in the Project Deliverables ("Estimate").
a. Where requested by the Client, Kynection will also provide:
i. revised Specifications; and /or
ii. revised Project Proposal,
Kynection reserves the rights to charge at the relevant hourly rate for time spent in preparing
revised Specifications and revised Project Proposals (where required) subject to a minimum
four hours’ charge which will apply to each Change Request.
D. Following receipt of:
a. Estimate or Variation invoice (as applicable); and
b. Revised Specifications and/or revised Project Proposals (where applicable),
Client has five (5) Working Days to accept the Estimate, revised specification and revised project proposal in accordance with terms and conditions of this agreement.
E. Where Kynection has provided revised Specifications and/or a revised Project Proposal under clause 7C, the revised Specifications and/or Project Proposal will be signed by both parties and the revised Specifications and revised Project Proposal will replace the existing Specifications and Project Deliverables.
F. Where Kynection has not provided revised Specifications and/or a revised Project Proposal, the Specifications and Project Proposal will be deemed updated in accordance with the details of the Change Request which formed the basis of providing variation invoice.
G. If the Client does not accept the Estimate or does not pay the variation invoice for a Change Request, the Client may:
a. cease to pursue the Change Request, in which case the then existing Specifications
and Project Proposal will continue to apply; or
b. request further details of, and/or negotiate a revised estimate and or variation
c. Any time period beyond the five working days to finalise the change request or
cease the change requests will be considered as a delay event as specified in
H. All communications under this clause 7 may be issued by email.
8. SOFTWARE ACCEPTANCE TESTING
A. Kynection will notify Client when the Software is ready for Acceptance Testing by Client.
B. On receipt of notice, Client will discuss the plans to undertake and complete the Acceptance
Testing within the Acceptance Testing Period.
C. Subject to clause 8A, Client will, within the Acceptance Testing Period:
a. confirm that the Software meets the specifications agreed under Project Scope or
Project Deliverables and complete a sign off with Kynection confirming acceptance
of the Software; or
b. notify Kynection in writing if the Software does not meet the specification agreed
under Project Scope or Project Deliverables in which case the Client notice must
identify the specific features that does not meet the requirement by referencing to
Test plan or the Project Deliverable document;
c. Kynection will then consult with Client to agree a process and time frame for
gaining acceptance of the Software by Client, with such a rectification period to be
no less than thirty (30) days from the end of the Acceptance Testing Period.
D. The Software will be deemed accepted by Client if a notice under clause 8C(b) is not
received by the end of the Acceptance Testing Period, unless agreed with Kynection of time
extension of testing or if Client uses the Software for productive and/or commercial purposes
E. Where a Software rectification process has been applied under Clause 8C(c), the Software
will be deemed accepted by Client if no further defect notices are received within ten (10) business days once Kynection advises that the Software is rectified or if the Client uses the Software for productive and/or commercial purposes unless discussed extending the time for testing with Kynection.
F. Subject to Clauses above, once the Client has successfully completed the Acceptance
testing of the Software, Client can request a maximum of two amendments, excluding workflows changes, to the part of the software that has been tested and signed off by Client and Kynection and this will instigate a “Delay Event”
G. Any more than two amendments for changes after the Acceptance Testing is signed off, the Client agrees to be charged for the additional work which Kynection will advise before commencement of further work.
H. For the purposes of testing, Kynection will allow for three test user licenses and charge for them in the Project Proposal. Any additional licenses required for testing will be charged as per the price quoted in the project proposal.
9. DELIVERY AND DEPLOYMENT
A. Following acceptance of the Software by the Client in accordance with clause 8, Kynection will complete a Pre Project Implementation Signoff with the Client, deploy the Software to the live environment within ten days of the Acceptance Notice or deemed date of acceptance
B. Deployment will be deemed to have occurred upon Kynection handing over licenses and Client uses the software for productive and/or commercial purposes
C. The Delivery and Deployment will be deemed complete upon deployment of the Software with a Post Project Implementation Signoff or Project Completion Date, whichever occurs earlier.
D. Upon delivery under clauses above, this agreement is deemed completed and the client will move to the support phase with Monthly support and Licenses fee charges will commence for all the active users.
10. PROJECT MEETINGS
A. Kynection’s Project Manager and the team shall meet with the Client’s project champion and Client authorised representatives fortnightly, or otherwise mutually agreed, to discuss progress made by Kynection and the Client in the performance of this Agreement.
B. Kynection’s Project Manager will provide an Agenda for each meeting and Action Items for both parties to undertake prior to the next scheduled meeting.
C. At each meeting, Kynection’s Project Manager shall provide a progress update on the development, review the UAT testing comments and Project % Progress .
D. Kynection’s Project Manager has the authority to cancel a meeting if no progress has been achieved since the last meeting.
E. Kynection Project Meetings are conducted in accordance with an ongoing training philosophy, where the Client has the ability to learn the system being delivered and provide feedback accordingly.
F. The Client agrees and acknowledges the project meetings are paid meetings and each project has a set number of meetings as detailed in our proposal, Project Deliverables and Scoping Documents.
G. Once the allocated number of meetings are exhausted, the Client agrees to pay for any additional meetings requested by the Client or required by Kynection to facilitate and complete the project at the relevant hourly rate specified.
II. HARDWARE SUPPLY AND INSTALLATION
11. SUPPLY OF ITEMS
Kynection shall supply and deliver to the Client, all hardware Items that have been ordered under this Agreement and as per any additional variations requested by the client in accordance with the requirements referred to in clause 5.2.
12. PURCHASE ORDERS AND ACCEPTANCES
Client may email Kynection’s authorised personnel or provide Purchase Orders to Kynection for the supply of Hardware Goods and provision of Services containing all delivery requirements including but not limited to:
a. Item Description
c. Purchase Order numbers; and
d. Delivery Points,
13. CONTINUITY OF SUPPLY
If orders are placed by the Client and accepted by Kynection, as per clause 12 and where delivery of goods or provision of services may take place after expiry of this Agreement then such orders shall nevertheless be fulfilled by Kynection. To this extent, the provisions contained within
this contract continue to apply to the unfulfilled Purchase Orders despite the contract Term having expired.
14. HARDWARE WARRANTY AND INDEMNIFICATION
Kynection warrants that:
a. All Items covered under the manufacturers’ standard warranties shall be assigned to Client.in addition to any additional warranty the client have purchased as part of this agreement; Most of our products has 12 months back to base manufacturer warranty.
b. Kynection makes no other warranties or representations as to the performance of
the Products or as to the services provided in relation to the product, if any, to Client
or to any other person. Any and all other warranties not expressly provided in this
Agreement, including but not limited to any implied warranties of merchantability or
fitness for a particular purpose are hereby excluded.
c. Kynection warrants that the products are new and will be of merchantable quality,
free and clear of all encumbrances and will be free from defects in materials and
workmanship. Kynection warrants that the Products will be supplied and deployed in
conformance with the specifications of the Products listed in Project Deliverables
and Scoping Document.
d. In performing its obligations under this Agreement, both Kynection and Client will
comply with all applicable laws and legal requirements and will pay all taxes,
charges, duties, fees, levies and other amounts payable on or in connection with the Items or the supply and delivery of Items; and
e. Notwithstanding any other provisions of this Agreement, the liability for Kynection
under this Agreement for Goods and Services will be limited to the value of the
specific Goods or Services.
15 PRICES AND PAYMENTS
Subject to this clause 15, Client shall pay Kynection, the full invoice amount, which may be made
up of the Contracted Price and additional charges as agreed which includes:
a. The cost for the supply of the Goods or provision of the Services
b. All necessary packaging, packing costs;
c. All duty, excise sales or other taxes but excluding GST;
d. All amounts payable for the use of patents, copyright, registered designs,
trademarks and other intellectual property rights.
Plus unless otherwise agreed in writing the below costs are in addition to amounts specified
under in Project Proposal:
a. All freight, insurance and other shipping or transportation costs;
b. Travel and Accommodation Costs for attendances;
c. Admin and Handling fee.
If the whole or any part of any payment is the consideration for a Taxable Supply, Client shall pay
to the Supplier an additional amount equal to the GST Amount, concurrently with that payment.
C. Monthly License
Client agrees to be charged a Monthly License fee as per the project proposal for any requested
active users during and after the completion of this agreement unless superseded by another
D. Payment Obligation and Means of Payment
a. Client shall pay Kynection all amounts specified on the invoice, or relevant Schedule
no later than the due date mentioned in the invoice.
b. Client’s obligation to pay the amount due shall be unconditional and client shall not
raise any obligation for the payment due for the delivered Products or services
c. Kynection shall have the right, without any liabilities or obligations to Client, to
postpone or cancel any further shipment of Products or Provision of any Services
including ceasing any software development under this agreement in the event that
the Client does not pay the outstanding invoices past ten (10) days after they fall
and become due.
d. A finance charge may be assessed on all payments that are past due at Kynection’s
discretion at Commonwealth Bank overdraft rate plus 2% compounding daily.
e. Payment shall be made by electronic funds transfer into Kynection’s nominated bank
account or as otherwise agreed between parties.
f. Kynection reserves the right to charge any credit card or other bank fees associated
with means of payment.
16. DELIVERY REQUIREMENTS
A. Delivery Lead Time
Kynection shall deliver all items in accordance with the delivery requirements, subject to safety
policy, as specified in the purchase order or as otherwise agreed between Kynection and Client.
Supply of each Item under this Agreement shall be affected at its Delivery Point.
B. Delivery and Risk
Client shall assume all the risk of loss upon delivery of products to client; however, title of the
Products shall not pass from Kynection to Client until client makes the full payments regarding
the delivered goods.
A. The Client must make the vehicle, asset and/or site available in such form as to allow
Kynection or it’s technicians to commence installation on the Day and Time agreed for the Installation appointment.
B. In the event, the appointment is cancelled or rescheduled within three business days of
confirmed booking due to any reasons other than Event of Force Majeure, then Kynection
reserves the right to charge for any additional installation costs including but not limited to no
show, regardless of whether installation is complete or not.
C. Any rebooking after cancellation for the installation will be charged at the Kynection’s relevant
D. The Client agrees to ensure that the site and/or assets must at all times be a safe working
E. In the event that Kynection or it’s contractors has agreed to carry out the Installation based on
information provided by the Client in relation to the condition of the vehicle or site and the
price was quoted on the basis of such advice, any unanticipated problems that might arise
during installation involving extra work or materials may result in Kynection charging
F. Should Kynection or it’s contractors be delayed in carrying out its work that are caused by
acts or omissions of the Client, its employees or agents or contractors or consultants
engaged by the Client then Kynection shall be entitled to claim the reasonable costs of the delay from the Client.
G. If the client asks Kynection to provide additional services outside the scope of items identified under Project Deliverables then the Kynection reserves the right to charge additional amounts at the relevant rates.
III. OTHER CONDITIONS OF AGREEMENT
18. INDEMNITY AND INSURANCES
A. Indemnity by Kynection
Kynection shall have no liability for any infringement arising from:
a. Compliance with the type of products, Software, hardware or services, , its designs
or specification or requirements of Client as identified under Project Deliverables ,
Scoping document or agreed in writing or any subsequent agreed variations;
b. any modification, servicing or addition made to the Products, or Software code by
anyone other than Kynection;
c. the use of such Products or Services as a part of or in combination with any client
Trademark, client software, devices, parts, firmware or software not provided by
d. the use of other than the current unaltered release of the product or software as
available from Kynection, or
e. incorrect use of such a product or the software to practice on any method or process
which does not occur wholly within the Product or software as recommended by
B. Limitation of Liability
a. In no event shall either party be liable for any indirect, special, incidental,
consequential or punitive damages of the other party or any third party arising from
the performance or breach of any terms of this Agreement or the Products or
services, regardless of whether such damages are based on tort, warranty, contract
or any other legal theory and even if such party has been made aware of the
possibility of damages.
b. If, arising out of Kynection’s failure, Kynection’s total liability to client under this
agreement, from all causes of action and under all theories of liability, will be limited
i. Payments actually received from Client under this agreement or
ii. Supplying the Goods or providing the Services again, whichever is less.
c. Upon inspection, if Kynection identifies that the defective goods or software or related
services are due to the fault of the client, then Kynection reserves the right to charge for those goods and services at the relevant rates.
d. In any event regardless of who is at fault, client may not bring any action or claim arising
out of or in connection with the products or services under this agreement more than
i. Maximum time period allowed under the terms of the agreement; or
ii. Manufacturer’s warranty unless extension allowed/agreed under this
iii. Maximum period allowed by law,
iv. whichever is greater.
C. Insurance by Kynection
a. If Kynection is required to visit Client’s site to supply and deliver Goods or to provide
Services, Kynection shall prior to commencing supply or delivery of Goods or
provision of Services, effect and have in place a valid public liability policy of
insurance covering liability to any third Party (including Client’s and Kynection’s
liability to the other) arising from death of or injury to any person or the loss of or
damage to any property, which shall:
i. Be for an amount of no less than twenty million dollars ($20,000,000) in
respect of an occurrence;
ii. Be affected with an insurer and on terms and conditions satisfactory to
iii. Be maintained by the Kynection until the end of the Term;
b. On or before the commencement of the Term Kynection shall affect and thereafter
maintain professional indemnity insurance to the value of ten million dollars
($10,000,000) with any one claim to the value of five million dollars ($5,000,000).
19. Intellectual Property Rights and Licensing
A. Kynection warranty
Kynection warrants that anything that Kynection does in supplying clients with items, or providing
clients with any services, does not and will not infringe the Intellectual Property Rights of any third person. Kynection warrants that it has procured all relevant third-party authorisations and licences in relation to such IP so as to enable it to meet its obligations under this Agreement.
B. Ownership of IP
a. Ownership of all Kynection IP shall remain with Kynection and their authorised
representatives, as the case may be, and in relation to all system and software
developments, vest with the Kynection;
b. Client agrees it does not have any rights or access or authority to change, update or
modify any of Kynection IP including but not limited to software code (including
object code, intermediate code and source code) of all software deployed, either
during or after the term of this agreement.
c. Client’s IP is restricted to any data, forms or scripts that is specifically designed and
created for the Client.
d. The Client agrees that Failure to comply with the above Clauses will result in
Kynection Charging for any damages and restoration.
C. Licence of Kyection IP
a. All Kynection IP required to fulfil the objectives of this Agreement is licensed to
Client and included in the Monthly Service fee.
b. Kynection grants to Client a non-exclusive licence while this Agreement remains in
effect and all payments are current.
c. where applicable, the use of Licenses and Kynection’s Intellectual Property that are
provided in accordance with this agreement is subject to the End User Licenses
Terms and Conditions and forms part of this agreement.
a. In the event Client terminates this Agreement due to a breach by Kynection and if Client have paid all payments including Work in Progress to the extent ascertainable and signed off under the agreement, Client shall be entitled to disclose to a third party for the purpose of business continuity all information under or in relation to this Agreement other than pricing information and IP, except to the extent that it is required to do so to affect the transition or to continue operating the system during a period leading up to a transition.
b. No party shall disclose to a third party any information which is marked confidential
or software database records, which resulted in this Agreement, or this Agreement
or any other information obtained by the other party, in the course of or in connection
with the ordering, supply and delivery of Items unless:
i. The information is already publicly known;
ii. The other party has given its prior written consent;
iii. The disclosure is required by law; or
iv. The disclosure is essential to enable the other party to perform its obligations under this Agreement and the disclosure is made to a person who has agreed in writing to treat the information as confidential;
c. No party shall use or deal within any way, any information (including any intellectual
property of it) obtained by the other party in the course of or in connection with the ordering supply and delivery of Items except for the purposes of the ordering, supply
and delivery of Items to Client or as otherwise permitted by this Agreement;
d. The parties shall take all reasonable precautions (including any reasonable
precautions directed by the other party) to protect the confidentiality and proprietary
value to the other party of all information (including intellectual property of the other
party) obtained by the other party in the course of or in connection with the ordering,
supply and delivery of Items.
20. Default and Termination
A. Termination by Supplier
Kynection may terminate this Agreement on thirty (30) days written notice for any of the following reasons:
a. The failure of Client to make payment in respect of the supply of any Goods, or for
the provision of any Services when it is due where such failure is not remedied
within ten (10) days after written notice from Kynection to client as the case may be;
b. Appointment of receiver or manager in respect of the whole or a substantial part of
the assets of the Client;
c. An order for the winding up (except for the purposes of reconstruction) or dissolution
of Client unless such order has been removed within sixty (60) days of the date on
which the order is made;
B. Termination by Client
Client may terminate this Agreement on thirty (30) days written notice for any of the following reasons:
a. Default of any essential obligation under this Agreement where such default has not
been remedied or agreed to be remedied within a period of twenty (20) days after
written notice requiring remedy of the default has been given by Client;
b. Appointment of receiver or manager in respect of the whole or a substantial part of
the assets of Kynection;
c. An order for the winding up (except for the purposes of reconstruction ) or
dissolution of Kynection unless such order has been removed within sixty (60) days
of the date on which the order is made;
C. Effect of Termination
The termination of this Agreement under clause 19 will not:
a. Prejudice or affect any other rights of Client or Kynection arising prior to the
b. Affect any obligation under this Agreement which can have effect after termination.
D. Obligations on Termination
Upon any termination of this Agreement, Kynection shall:
a. Upon receipt of a notice of termination continue to supply and deliver Goods or
provide Services, where possible, that were ordered prior to termination;
b. Deliver to Client all property, documentation, or information of Client provided to
Kynection in connection with the supply of the Goods or provision of Services;
c. Invoice for any Work in Progress for the items that was completed.
Upon any termination of this Agreement, Client shall:
a. Deliver to Kynection all property other than fully purchased and paid Goods,
documentation or information of Kynection provided to Client in connection with the
supply of the Goods or the provision of Services;
b. Purchase and pay for any specific Items or Hardware that Kynection holds or
ordered/paid for, which had been requested by Client;
c. Pay all outstanding invoices in full.
d. The Client forgoes all its IP, related data and information upon termination if the
outstanding invoices are not paid in full.
e. The Client must have an active Kynection account to export the data and has the
rights to export all of their own data, but not Kynection's IP from the system prior to
leaving Kynection. Currently allowed formats are MS Excel, .CSV format and PDF.
f. The Client may request the assistance of Kynection for any data exports and
Kynection reserves the rights to charge the customer at the relevant rate.
A. Limitation on Proceedings
Subject to clause 21 (B) no Party shall commence any court proceedings in respect of any dispute
under this Agreement except where:
a. The Party seeks urgent interlocutory, injunctive or declaratory relief; or
b. The other Party has failed to observe the requirements of clause 21 (B) in respect
of the dispute.
B. Settlement of Disputes
Client and Kynection shall notify the other in writing of any dispute under this Agreement. The parties shall use their best endeavours to promptly resolve such dispute as follows:
a. Within 14 days of a Dispute Notice being received by a party (or such further time as
agreed by the parties in writing), representative of both parties shall use reasonable endeavours to resolve the Dispute to the satisfaction of both parties;
b. If the representatives do not resolve the dispute within a further period of 14 days (or
such further time as agreed by the parties in writing), either party may terminate this
agreement under Clause 19, if unresolvable then appoint a mediator and if still
unresolvable then commence court proceedings for resolution of the dispute in the
state of Victoria in Australia.
22. General Provisions
a. All Notices shall be directed to the authorised person(s) ;
b. Any order, notice or other communication in connection with this Agreement is taken
to have been duly given when made in writing ,delivered or sent by post, facsimile or e-mail to the Party to which the notice or communication is intended to be given, at
the respective current addresses of the parties or such other addresses as may from
time to time be notified in writing by one Party to the other for the purposes of this
c. Any order, notice or other communication sent by post shall be taken to have been
received at the expiration of five (5) business days after the date of posting;
d. Any order, notice or other communication sent by facsimile, e-mail or other
electronic form of transmission is taken to have been received upon completion of
an apparently successful transmission. If a facsimile, e-mail or other electronic form
of transmission is transmitted on a business day after 5.00 p.m. (at the place of
receipt) or on a day which is not a business day, it shall be deemed to have been
received on the next business day.
B. Law, Variations and Waiver
a. The Agreement is governed by and shall be construed in accordance with the laws
of State of Victoria, Australia;
b. No variation, modification, or waiver of any provision in this Agreement, shall be of
any effect unless it is in writing, signed by the parties or (in the case of a waiver) by
the Party giving it;
c. No failure, delay, relaxation, or indulgence by any Party in exercising any right
conferred on such Party by this Agreement shall operate as a waiver of such right.
If any provision or part of any provision of this Agreement is void, invalid or unenforceable for any reason, that provision or part of that provision may be severed from this Agreement and does not affect the validity, operation, or enforceability of any other provision of this Agreement.
D. Costs and Whole Agreement
a. Subject to any contrary provision in this Agreement, each Party shall bear its own
costs (including legal costs) and incidental to the preparation, negotiation and
signing of this Agreement.
b. The parties agree that:
i. The provisions expressly set out or incorporated by reference in this
Agreement represent the whole agreement between the parties with respect
to the transactions evidenced by this Agreement;
ii. The provisions of this Agreement will apply despite any alternative, additional
or collateral provisions which may be set out in any proposal, tender, invoice
or remittance advice, Client Purchase Order, correspondence, Kynection’s
terms and conditions of Sale, or other goods provided by one Party to the
other whether before or after the date of this Agreement.
E. Force Majeure
A Party shall be relieved of an obligation under this Agreement for the duration of the Event of Force Majeure to the extent that:
a. It is prevented from performing or observing the obligation by a labour dispute,
lockout, act of government, war, acts of terrorism, riot, civil disturbance, pandemic,
embargo, storm, tempest, fire, flood, earthquake, natural calamity, failure of internet, public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious attacks or other event beyond its reasonable control ("Event of Force Majeure"); and
b. The Party has:
i. Not caused or contributed to the Event of Force Majeure;
ii. Mitigated against the Event of Force Majeure using all reasonable
precautions and any reasonable alternative measures;
iii. Promptly notified the other Party of the existence of the Event of Force
iv. not expressly notified but can reasonably be expected the other party would
c. The Party shall resume performance or observation of its obligation immediately the
Event of Force Majeure ceases to apply;
d. To the extent that the Event of Force Majeure prevents Kynection from providing
the Items, Client shall be relieved of its obligation to pay for the Items; and
e. If the Event of Force Majeure prevents Kynection from providing the Items for:
i. A continuous period of sixty(60) or more days; or
ii. Non-continuous periods totalling sixty (60) or more days within any period of
one hundred and eighty (180) days,
f. Either Party may either agree in writing that the Supplier is not obliged to Supply the
Goods or provide the Services in accordance with this agreement until the Event of Force Majeure ceases or
g. Terminates this Agreement in accordance with clause 20.
In the event any provision of this Agreement is held to be invalid, illegal, or unenforceable, the
validity, legality or enforceability of the remaining provisions will not be affected or impaired in any way.
a. The provisions of clauses 15,18, 19 and 20, will survive the termination of this
agreement for any reason whatsoever. The provisions of this agreement shall endure to the benefit of and be binding upon the parties hereto and their respective administrators, successors, and assigns.
b. All relevant clauses in relation to Supply of Goods or Hardware under I , or any
software development or improvement to the system under II , paid or unpaid will
survive the end of this agreement if there is a subsequent agreement executed
between Kynection and the Client or their associated entities in relation to Ongoing
Licensing and Support Services
c. For Clarity purposes, subclause (b) will cease to apply if there is no ongoing
services agreement between the Client and Kynection.
23. Cloud Hosting
A. Secure Cloud Hosting
The Software is hosted on the Australian cloud servers of Microsoft Azure, and as part of that hosting service provides a military grade security protection of all servers and software operating within the Azure Australia East hosting site and implements the following security standards:
a. The Certified Cloud Services List identifies cloud services that have successfully completed an Information Security Registered Assessors Program (IRAP) assessment by the Australian government, and have been awarded certification by the Australian Signals Directorate (ASD) of the Defence Department;
b. Advanced analytics link massive amounts of threat intelligence and security data to
provide you unparalleled threat protection and detection;
c. is the only cloud service that offers continuous security-health monitoring;
d. adheres to rigorous guidelines to maintain compliance and receive certifications
such as ISO27001;
e. the first cloud provider to adhere to ISO 27018 which protects PII (Personally
B. Security Breach Recovery and Costs
a. Kynection shall not be liable for any costs associated with recovering from a
cyber-attack or breach on cloud servers:
i. If the breach is not proved to be as a result of Kynection fault;
ii. If the breach is due to external and third party supplier;
iii. If the Breach is as a result of Client or it’s employees or contractors or agents;
b. If it is proved to be Kynection’s fault, then costs would be limited to undertaking any
remedial work to rebuild the system in a timely manner, and restore operation of the
Software and does not extend to any third party or any Client’s liability.
c. Any work that Kynection undertakes for remedial work or to rebuild the system if as
a result of (a), then the client agrees to pay Kynection at the relevant rate.
Updated February 2022