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: 50 102 164 447) trading as "KYNECTION". You, “The Client or Customer” indicate that you understand and agree to the following terms 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.
1. 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 or otherwise but does not include any information which is:
(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 requested 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 as agreed between Kynection and the Client.
“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 agreed to be provided by kynection and the client.
“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
“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 previously reviewed and agreed by the client
“Project ” means the software configuration and deployment, Hardware supply, provision and install (if applicable) as agreed between client and kynection, being the entirety of the work described in this Agreement.
“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 in accordance with this Agreement
“Site” means the client's place of business or any place as advised by the client for the purpose of delivery of Goods or provision of Services.
“Software” means the software development and deployment project described in the PDD or Project Proposal document provided to the client at the beginning of the Agreement.
“Specifications or Project Delivery Document (PDD)” 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 service rendered until the completion and sign-off between Kynection and the Client.
“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 PDD 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 thereof;
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 Victoria.
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 inconsistency.
4. RELATIONSHIP BETWEEN KYNECTION AND CLIENT
a. Kynection Obligations
Kynection will develop, configure and deploy the Software for the Client, supply and deploy Goods and Hardware including any variation 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 this agreement
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 Agreement;
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 Kynection; and
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 person or personnel as agreed
l. SOFTWARE DEVELOPMENT AND DEPLOYMENT
5. ANALYSIS AND SCOPE
A. This clause 5 applies if the final Project Deliverables and fixed Project Pricing do not already exist on the Commencement Date. Where some but not all the items referenced in this clause exist on the Commencement Date, this clause 5 applies to the remaining items.
B. The key deliverables from the Analysis and Scope Phase are:
a. Finalise Project Deliverables; and
b. Project 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 Proposal.
C. The Client will, upon receipt of each of the draft key deliverables under clause 5(B) review and provide feedback to Kynecton 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 request;
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 Delay Event.
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 the project meeting or during the 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 delaying 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 relevant rate as agreed;
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 right to charge for time spent in preparing revised Specifications and revised Project Proposals (where required) subject to a minimum two 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 the 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. equest further details of, and/or negotiate a revised estimate and or variation invoice;
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 clause 6.
H. All communications under this clause 7 may be issued by email.
8. SOFTWARE ACCEPTANCE TESTING
A. Kynection will notify the Client when the Software is ready for Acceptance Testing by the Client.
B. On receipt of notice, Client will undertake Acceptance Testing referencing in accordance with the agreed Test Plan as agreed and discussed between Client and Kynection.
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 do not meet the requirement by referencing the Test plan or the Project Deliverable document;
c. Kynection will then consult with the 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 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.
F. 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 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 Phase will be deemed complete upon completion of the period referred to above, or deployment of the Software with a project signoff, 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 License 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, otherwise mutually agreed, to discuss progress made by Kynection in the performance of this Agreement.
B. At each meeting, Kynection’s Project Manager shall provide a progress update on the development.
C. The Client agrees and acknowledges that there are only a set number of meetings as agreed upon between client and Kynection on the proposal
D. 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
II. HARDWARE SUPPLY AND INSTALLATION
11. SUPPLY OF ITEMS
Kynection shall supply and deliver to Client all hardware Items that have been ordered and as per any additional variations requested by the client as agreed upon between the Client and Kynection.
12. PURCHASE ORDERS AND ACCEPTANCES
Client shall place faxed or emailed Purchase Orders with Kynection for the supply of Hardware Goods and provision of services containing all delivery requirements including but not limited to:
a. Item Description as agreed
c. Purchase Order numbers; and
d. Delivery Points,
13. CONTINUITY OF SUPPLY
If Purchase Orders are placed by 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 Purchase 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 manufacturers’ standard warranties shall be assigned to Client in addition to any additional warranty the client has purchased as part of this agreement;
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.
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. Kynection warranty covers for back to base and for products and hardware. Kynections' obligations under the standard warranty do not cover installation or any technician visits. They are separately chargeable to the Client unless agreed otherwise.
f. 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 the Supplier the full invoice amount, which may be made up of the Contracted Price 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 are 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 active users during and after the completion of this agreement unless superseded by another agreement.
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 hereunder.
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 the 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 the 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 the 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 48 hours of booking confirmation due to any reasons other than the Event of Force Majeure, then Kynection reserves the right to invoice for the installation costs as agreed.
C. Any rebooking after cancellation for the installation will be charged at the rates agreed
D. The Client agrees to ensure that the site and/or assets must at all times be a safe working environment.
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 additional fees as specified in Annexure 3: Pricing and Payment Schedule.
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 agreed, then the Kynection reserves the right to charge additional amounts.
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, hardware or services, , its designs or specification or requirements of Client as identified under Project Deliverables and subsequent agreed variations;
b. any modification, servicing or addition made to the Products, or software codes 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 Kynection,
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 Kynection
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 to
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.
d. In no event, client may 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 agreement; or
iii. Maximum period allowed by law,
iv. whichever is greater.
C. Insurance by Kynection
a. If Kynectioin 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 Client;
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 are 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 pricing provided.
b. Kynection grants the 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 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 termination; and
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 were completed as agreed.
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.
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 disputes 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), representatives 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 person(s) detailed in Annexure 1 unless otherwise agreed with the person(s) in Annexure 1.;
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 clause;
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 Victoria;
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 Majeure;
iv. not expressly notified but can reasonably be expected the other party would know;
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 Kynecton 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 Identifiable Information).
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 suppliers;
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 rate agreed unless agreed otherwise.