KindyNow Pty Ltd - Terms and Conditions
Last Updated June 2017
- KindyNow provides the App and Online Platform to enable childcare centres and parents of children enrolled at childcare centres to communicate regarding childcare bookings and other communications (Services).
- The Client provides childcare services.
- In order to provide the Services, KindyNow requires integration with the client’s existing Software provided by the Software Provider.
- The Client has requested and KindyNow has agreed to provide, the Services on the terms set out in this Agreement.
1. Definitions and interpretation
Account Representative means the individual appointed by a Party under clause 5.1;
Agreement means these terms and conditions and any schedules, recitals attachments or annexures;
App means the KindyNow mobile application as updated from time to time;
Background Materials means:
(a) any material, communications or technology which is pre-existing or created independently of the Services provided under this Agreement which a Party makes available for the performance of its obligations in respect of the Services; or
(b) any Information, communications, technology, software or other materials which are otherwise required to provide the Services; and
(c) includes any improvements, enhancements, modifications, adaptations, extensions, developments, application of and all other technical advances made to the materials set out in (a) and (b) above, including those developed in performing the Services, whether or not protected by Law;
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Melbourne, Victoria;
Change means any variation to all or part of the Services;
Change Request means a written request by a Party for a Change which will include any additional information reasonably necessary to enable the other Party to properly assess the request;
Confidential Information means:
(a) the terms of this Agreement and its respective subject matter, including Information submitted or disclosed by either Party during negotiations, discussions and meetings relating to this Agreement;
(b) Information that at the time of disclosure by a Disclosing Party is identified to the Receiving Party as being confidential; and
(c) all other Information belonging or relating to a Disclosing Party, or any Related Entity of that Disclosing Party, that is not generally available t so the public at the time of disclosure other than by reason of a breach of this Agreement or which the Receiving Party knows, or ought reasonably to be expected to know, is confidential to that Disclosing Party or any Related Entity of that Disclosing Party;
Controller means, in relation to a person:
(a) a receiver, receiver and manager, administrator or liquidator (whether provisional or otherwise) of that person or that person’s property; or
(b) anyone else who (whether or not as agent for the person) is in possession, or has control, of that person’s property to enforce an encumbrance;
Corporations Act means the Corporations Act 2001 (Cth);
Developed Intellectual Property has the meaning given to the term in clause 15.2.
Event of Default means, in relation to a Party, the occurrence of any one or more of the following events or circumstances:
(a) the Party fails to comply with any of its material obligations under this Agreement;
(b) an Insolvency Event occurs in relation to the Party;
(c) a notice of deregistration of the Party is given under sections 601AA(5) or 601AB(5) of the Corporations Act;
(d) the Party fails to pay by the due date any amount due and payable by it under this Agreement; or
(e) a material provision of this Agreement that purports to impose an obligation on the Party is or becomes void, voidable, illegal, unenforceable or of limited effect (other than because of equitable principles or Laws affecting creditor’s rights generally);
Expenses means out-of-pocket expenses incurred by KindyNow in connection with the provision of the Services which the Client agreed to reimburse KindyNow for;
Fees means the fees specified in the Schedule and payable by the Client to KindyNow for provision of the Services;
Government Agency means any government or any public, statutory, governmental (including a local government), semi-governmental or judicial body, entity, department or authority and includes any self-regulatory organisation established under statute in the relevant jurisdiction;
Information means any information, whether oral, graphic, electronic, written or in any other form, including:
(a) details of children enrolled at the childcare centre and their parents or guardians including address, phone number, email and contact phone numbers;
(b) forms, memoranda, letters, specifications, processes, procedures, statements, formulae, technology, inventions, trade secrets, research and development information, know-how, designs, plans, photographs, microfiche, business records, notes, accounting procedures or financial information, sales and marketing information, names and details of customers, suppliers and agents, employee details, reports, drawings and data;
(c) copies and extracts made of or from that information and data, whether translated from the original form, recompiled, partially copied, modified, updated or otherwise altered; and
(d) samples or specimens disclosed by either Party;
Insolvency Event means, in relation to a Party, any one or more of the following events or circumstances:
(a) being in liquidation or provisional liquidation or under administration;
(b) having a Controller or analogous person appointed to it or to any of its property;
(c) being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand;
(d) being unable to pay its debts or being otherwise insolvent;
(e) becoming an insolvent under administration, as defined in section 9 of the Corporations Act;
(f) entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors; or
(g) any analogous event or circumstance under the Laws of any jurisdiction,
unless such event or circumstance occurs as part of a solvent reconstruction, amalgamation, compromise, arrangement, merger or consolidation and in the case of the Client is approved by KindyNow;
Intellectual Property Rights means all present and future intellectual and industrial property rights conferred by statute, at common law or in equity and wherever existing, including:
(a) patents, designs, copyright, source code, trade marks, know how, brand names, domain names, inventions, product names, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration;
(b) any application or right to apply for registration of any of these rights;
(c) any registration of any of those rights or any registration of any application referred to in paragraph (b); and
(d) all renewals and extensions of these rights;
(a) principles of law or equity established by decisions of courts;
(b) statutes, regulations or by-laws of the Commonwealth, a State, a Territory or a Government Agency; and
(c) requirements and approvals (including conditions) of the Commonwealth, a State, a Territory or a Government Agency that have the force of law;
Online Platform means the KindyNow web application integrated with the App;
Party means KindyNow or the Client and Parties means both of them;
Personal Information means any information or opinion about a natural person (whether or not true), as defined in the Privacy Act, which either Party deals with in connection with performing its obligations under the Agreement;
Personnel means any individuals, employees, agents, consultants or sub-contractors of the Client or KindyNow (or a Related Entity of KindyNow) as applicable and as the context requires;
Privacy Act means the Privacy Act 1988 (Cth);
Privacy Law means the Privacy Act (including the Australian Privacy Principles under the Privacy Act), and any other privacy or general legislation which binds the Parties and which relates to the protection of Personal Information;
Receiving Party means the Party to whom Confidential Information is disclosed or who possesses or otherwise acquires Information belonging or relating to a Disclosing Party;
Related Entity has the meaning given to that term in the Corporations Act;
Sensitive Information has the meaning given to that term in the Privacy Act;
Services means the services set out in the Background and any other services provided by KindyNow to the Client including any Support Services or any other type of service specified in the Schedule;
Site means the workplace(s) of the Client.
Software means the childcare management system adopted by the Client;
Software Provider means the company that manages the Software for the Client;
Standard Rates means KindyNow’s standard time and materials rates as provided to the Client from time to time;
Support Services means the maintenance and support services specified in the Schedule;
Term has the meaning given to that term in clause 2;
Third Party means any party other than KindyNow or the Client; and
Unavoidable Costs means:
(a) any costs incurred by KindyNow, in connection with the performance of its obligations under this Agreement or any agreement with any Third Party in connection with this Agreement which cannot be cancelled, refunded or re-allocated to KindyNow’s other operations or business activities;
(b) the costs of any redeployment or termination of employment of KindyNow’s Personnel engaged for the purposes of providing the Services; and
(c) the costs identified by KindyNow for any capital purchases made in connection with the Services.
In this Agreement, unless the context requires otherwise:
(a) the singular includes the plural and vice versa;
(b) a gender includes the other genders;
(c) the headings are used for convenience only and do not affect the interpretation of the Agreement;
(d) other grammatical forms of defined words or expressions have corresponding meanings;
(e) a reference to a document includes the document as modified from time to time and any document replacing it;
(f) if something is to be or may be done on a day that is not a Business Day then it must be done on the next Business Day;
(g) the word “person” includes a natural person and any body or entity whether incorporated or not;
(h) the word “month” means calendar month and the word “year” means 12 months;
(i) the words “in writing” include any communication sent by letter, facsimile transmission or email or any other form of communication capable of being read by the recipient;
(j) a reference to a thing includes a part of that thing;
(k)a reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re-enacted or replaced from time to time;
(l) wherever “include” or any form of that word is used, it must be construed as if it were followed by “(without being limited to)”;
(m) money amounts are stated in Australian currency unless otherwise specified; and
(n) a reference to any agency or body, if that agency or body ceases to exist or is reconstituted, renamed or replaced or has its powers or functions removed (defunct body), means the agency or body which performs most closely the functions of the defunct body.
The term of this Agreement has effect on and from the date of execution and continues for the period set out in the Schedule unless otherwise terminated in accordance with its terms.
3. Provision of Services
(a) Subject to payment of the Fees, KindyNow will use reasonable endeavours to provide the Services with due care and skill in accordance with the terms of this Agreement.
(b) KindyNow will use reasonable endeavours to perform the Services on any milestone dates agreed to in writing with the Client or as otherwise reasonably required to provide the Services.
(c) The Client acknowledges and agrees that the performance of the Services may be performed or provided by KindyNow’s Personnel located in Australia or by Personnel of KindyNow or a Related Entity of KindyNow or a subcontractor located in other countries.
(d) KindyNow may provide the Client with software or other material which is owned by or is proprietary to a Third Party (Third Party Material) and the Client acknowledges that:
(i) its use of Third Party Material will be subject to the Third Party licensor’s licence agreement; and
(ii) all licences with respect to the Client’s use of Third Party Material will be between the Client and the Third Party developer,
(Third Party Licence).
(e) Title in any Third Party Material remains at all times with the Third Party.
(f) The Client is solely responsible for its compliance with the Third Party Licence and KindyNow will not be responsible for, or have any obligation to ensure, that the Client agrees to or complies with the Third Party Licence.
(g) Where requested by the Client, KindyNow will use reasonable endeavours to provide the Client with a copy of the Third Party Licence.
If specified in the Schedule, KindyNow will use reasonable endeavours to provide the Support Services at the times, in the manner and for the Fees specified in the Schedule.
5. Relationship governance
5.1. Account Representatives
During the Term, both Parties will appoint an employee, representative or agent (who may be updated by written notice from time to time) who:
(a) will be the primary contact for the other Party’s Account Representative in dealing with matters under this Agreement;
(b) will have overall responsibility for managing and coordinating the Services;
(c) will meet as reasonably required with the other Party’s Account Representative; and
(d) will have the authority to make decisions with respect to actions to be taken by that Party in the ordinary course of day-to-day management of the Services in accordance with this Agreement.
6. Client obligations
(a) The Client undertakes to:
(i) at its own cost, do all things necessary to enable KindyNow to perform its obligations under this Agreement including performing any works, providing any equipment or connecting any services as required by KindyNow from time to time;
(ii) at its own cost, provide KindyNow with all assistance and co-operation in the performance of this Agreement reasonably required by KindyNow including providing, or facilitating the provision of, KindyNow with:
(A) access to, and all necessary Information from, the Software Provider;
(B) all relevant Information as and when required by KindyNow;
(C) access to, and all necessary Information about, the Software;
(D) access to relevant Personnel of the Client; and
(E) all Information, software, systems and documentation as requested by, or as otherwise necessary for, KindyNow,
for the purposes of performing its obligations under this Agreement;
(iii) appoint and maintain sufficient numbers of appropriately qualified Personnel to liaise with KindyNow in relation to the performance of this Agreement;
(iv) immediately notify KindyNow of any unauthorised use of the Online Platform or any other breach of security;
(v) not interfere or attempt to interfere in any manner with the functionality or proper working of the Services or the Online Platform;
(vi) negotiate in good faith and not unreasonably delay performance of its obligations, including consents, under this Agreement; and
(vii) perform any obligations reasonably requested by KindyNow in order to facilitate KindyNow to perform the Services.
(b) Whilst KindyNow will undertake all reasonable security measures, the Client acknowledges and agrees that the Client bears sole responsibility for adequate security, protection and physical copies of any Information uploaded onto the Online Platform. KindyNow does not guarantee or warrant that any Information the Client may store or access through the Services will not be subject to inadvertent damage, corruption or loss.
7. Client acknowledgements
The Client acknowledges and agrees that:
(a) KindyNow is not responsible for any failure to perform any of its obligations under this Agreement where, in the reasonable opinion of KindyNow, such failure is caused or contributed to by:
(i) the Client;
(ii) any Third Party (including as a result of the conduct or lack of support of the Software Provider);
(iii) infrastructure or facilities outside the direct control of KindyNow;
(b) in order for KindyNow to provide the Services in a timely manner the Software Provider must provide all necessary assistance requested by KindyNow;
(c) KindyNow may provide similar services to other childcare providers;
(d) KindyNow may refuse to publish on the App and Online Platform or remove from the App and Online Platform any Information which the Client provides to KindyNow provided such refusal by KindyNow is reasonable;
(e) if the provision of the Services is delayed or is required to be altered as a result of the following:
(i) if KindyNow suspends the provision of the Services in accordance with its rights under this Agreement;
(ii) if KindyNow is required to provide the Services in circumstances other than those expressly or reasonably anticipated in this Agreement;
(iii) Information has not been prepared or provided to KindyNow in accordance with any reasonable request by KindyNow, or in any event to the reasonable satisfaction of KindyNow;
(iv) if there is a change in the timing or complexity of the Services;
(v) if the Software Provider does not provide all necessary assistance to KindyNow to enable KindyNow to provide the Services;
(vi) any of the assumptions or the scope relating to the provision of the Services (Assumptions) is incorrect, subject to change or is altered, including during the course of the provision of the Services; or
(vii) as a result of any act or omission by the Client, its agents, contractors or suppliers or Third Party (including the Software Provider),
then the Client acknowledges and agrees that:
(viii) the dates for provision of the Services (if any) will be delayed or changed as KindyNow reasonably considers necessary;
(ix) KindyNow may charge the Client an amount equal to its reasonable loss, damage or expense incurred as a result of the delay or change in Assumptions including without limitation an amount equal to the Standard Rates for all KindyNow resources allocated to the delayed aspect of the project for the period of the delay, change in Assumptions or as it otherwise required to provide the Services; and
(x) KindyNow may increase the Fees relating to the provision of any amended or revised Services which are required as a result of any of the events listed in clauses 7(e)(i) to 7(e)(vii);
(f) KindyNow may access, use, preserve and disclose the Client’s account information and data if legally required to do so or if KindyNow has a good faith belief that such access, use, disclosure or preservation is reasonably necessary to:
(i) comply with legal process or request;
(ii) enforce this Agreement, including investigation of any potential breach;
(iii) detect, prevent or otherwise address security, fraud or technical issues; or
(iv) protect the rights, property or safety of KindyNow, its users or the public as required or permitted by Law;
(g) KindyNow and/or KindyNow’s third party service providers may perform scheduled or unscheduled maintenance on the Online Platform or any other KindyNow software or other equipment from time to time. Where possible to do so KindyNow will notify the Client in advance of any such maintenance and will use reasonable endeavours to minimise any disruption to the Services as a result. Notwithstanding this, KindyNow does not warrant continuing availability of the Services and will not be liable for any interruption to the Services.
(a) Either Party may request a change in the Services (Amending Party) by preparing a Change Request at the Amending Party’s cost.
(b) The Amending Party must prepare the necessary amendments required to the Services in writing and KindyNow will then provide the Client with a written estimate of the cost of performing the Change Request.
(c) If the Parties are unable to sign off on the proposed amendments to Services within 10 Business Days of KindyNow providing the estimate referred to in clause 8(b), the Change Request is deemed to be rejected.
8. Change requests
(a) The Client will pay KindyNow the Fees and any other amounts payable under this Agreement in the manner and on the dates specified in the Schedule. KindyNow will provide the Client with a tax invoice for all amounts due in respect of the Services.
(b) The Client will pay KindyNow’s tax invoices within the fourteen (14) days from the date of invoice.
(c) The Parties acknowledge and agree that KindyNow will be reimbursed on demand at the actual cost for Expenses, provided that such expenses are documented and receipts are attached to KindyNow’s tax invoice, where applicable.
9.2. Overdue amounts
(a) If any amount payable to KindyNow under this Agreement has not been paid by the Client by the due date for payment, KindyNow may charge interest on the amount outstanding at the rate of 4% above the overdraft index rate charged by the Commonwealth Bank (or such other bank as KindyNow may nominate) from time to time calculated per annum from the due date for payment until such time as full payment of the outstanding amount is made by the Client (which interest must be paid by the Client on demand by KindyNow).
(b) If any amount payable to KindyNow under this Agreement has not been paid by the Client by the due date for payment, KindyNow may also suspend performance of this Agreement (in part or in full) until the amount outstanding is paid in full.
(c) KindyNow may transfer or assign any amount owing to KindyNow by the Client to any third party without the prior notification or approval of the Client.
(d) The exercise by KindyNow of any of its rights under this clause 9.2 does not affect:
(i) the Client’s obligation to pay any money due and payable; or
(ii) any other rights or remedies KindyNow may have in relation to any failure by the Client to pay an amount due,
under this Agreement or any other agreement between KindyNow and the Client.
In this clause 10:
(a) the expressions Consideration, GST, Input Tax Credit, Recipient, Supply, Tax Invoice and Taxable Supply have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999 (GST Act) and any new laws addressing GST; and
(b) Supplier means any Party treated by the GST Act as making a Supply under this Agreement.
10.2 Consideration is GST exclusive
Unless otherwise expressly stated, all prices or other sums payable or Consideration to be provided under or in accordance with this Agreement are exclusive of GST.
10.3 Payment of GST
(a) If GST is imposed on any Supply made under or in accordance with this Agreement, the Recipient of the Taxable Supply must pay to the Supplier an additional amount equal to the GST payable on or for the Taxable Supply, subject to the Recipient receiving a valid Tax Invoice in respect of the Supply at or before the time of payment.
(b) Payment of the additional amount must be made at the same time and in the same way as payment for the Taxable Supply is required to be made in accordance with this Agreement.
10.4 Reimbursement of expenses
If this Agreement requires a Party (the First Party) to pay for, reimburse, set off or contribute to any expense, loss or outgoing (Reimbursable Expense) suffered or incurred by the other Party (the Other Party), the amount required to be paid, reimbursed, set off or contributed by the First Party will be the sum of:
(a) the amount of the Reimbursable Expense net of Input Tax Credits (if any) to which the Other Party is entitled in respect of the Reimbursable Expense (Net Amount); and
(b) if the Other Party’s recovery from the First Party is a Taxable Supply, any GST payable in respect of that Supply, such that after the Other Party meets the GST liability, it retains the Net Amount.
11. Comparative Information
(a) As part of the Services KindyNow may pool the Information the Client and other users of KindyNow’s services provide to KindyNow (Comparative Information) and use that information in a de-identifying manner which complies with the Privacy Law. The Comparative Information will be general information about the operations of users of KindyNow’s services. The Comparative information KindyNow gathers and which KindyNow may publish will not refer to, or be identifiable to, any particular user of KindyNow’s services.
(b) The Client grants a non-exclusive, royalty-free license to KindyNow to use the Comparative Information for any such other purposes as KindyNow deems necessary provided use of the Comparative Information conforms with the Privacy Law and all other applicable Laws.
12. Information on the Online Platform
(a) KindyNow has the right, but not the obligation, to monitor any Information made available by the Client on the Online Platform. KindyNow reserves the right, in its absolute discretion, to block, modify or remove any Information uploaded onto the Online Platform without notice, and KindyNow will not be liable in any way for possible consequences of such actions.
(b) The Client acknowledges and agrees that the Client will not have access to Information stored on the Online Platform during a suspension or termination of the Services.
(c) KindyNow backs up the Information on the Online Platform on a periodic basis so that KindyNow is able to more quickly restore systems in the event of an outage. The extent of the backups made is at KindyNow’s sole discretion using backup measures and procedures that KindyNow determines are reasonable. In addition, KindyNow may destroy all but the most recent backup. These backups may not be available to KindyNow or, if available, may not be useful to the Client outside of the Online Platform.
(d) The Client agrees that they will maintain their own physical copy of Information used on the Online Platform.
13.1. Obligations of confidentiality
Each Party (Receiving Party) receiving, possessing or otherwise acquiring Confidential Information of any other Party (Disclosing Party) acknowledges that the Disclosing Party’s Confidential Information is the property of and confidential to or a trade secret of the Disclosing Party. Subject to clause 13.2, the Receiving Party must:
(a) keep the Disclosing Party’s Confidential Information confidential and not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the prior written approval of the Disclosing Party;
(b) take all reasonable steps to secure and keep secure all Disclosing Party’s Confidential Information coming into its possession or control; and
(c) not memorise, use, modify, reverse engineer or make copies, notes or records of the Disclosing Party’s Confidential Information for any purpose other than in connection with the performance by the Receiving Party of its obligations under this Agreement.
The obligations of confidentiality under clause 13.1 do not apply to any information that:
(a) is generally available to the public (other than by reason of a breach of this Agreement); or
(b) is required to be disclosed by any applicable Law.
13.3. Residual information
Nothing in this Agreement will prevent a Party from using in any way it sees fit and disclosing to its other customers, clients and suppliers any generic knowledge, skills and expertise retained in the memories of its employees, and any programming tools, problem-solving methodologies and associated checklists, templates or forms developed in performance of the Services which may have general application in the fields of information technology and business management. It is however understood that the foregoing shall in no circumstances extend to use or disclosure of Confidential Information of the other Party.
14.1. Collection and use
(a) The Client acknowledges and agrees that it is responsible for the collection, use, storage and otherwise dealing with Personal Information related to the Client’s business. The Client will comply and ensure that all of its Personnel comply, with the requirements of any Privacy Law in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with this Agreement.
(b) Without limiting clause 14.1(a), the Client undertakes for itself, and on behalf of its Personnel, to:
(i) notify its customers, clients or other natural person to whom Personal Information it collects relates of any matter prescribed by any Privacy Laws in relation to the collection, use and storage of their Personal Information;
(ii) ensure that any Personal Information transferred to KindyNow is complete, accurate and up to date; and
(iii) notify KindyNow immediately upon becoming aware of any breach of any Privacy Law that may be related to the use of the Personal Information under this Agreement.
14.2. Disclosure of Personal Information to KindyNow
Without limiting clause 14.1(a), the Client may only disclose Personal Information in its control to KindyNow if:
(b) the Client has informed and has obtained the consent of the individual to whom the Personal Information relates that in order to provide goods or services to them it might be necessary for the Client to disclose their Personal Information to a third party, including to a third party located outside of Australia; and
(c) where any Personal Information is Sensitive Information, the Client has obtained the specific consent to that disclosure from the individual to whom the Sensitive Information relates.
The Client indemnifies and must keep indemnified KindyNow against all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis) that may be brought against KindyNow or which KindyNow may pay, sustain or incur as a direct or indirect result of any breach or nonperformance of the Client’s obligations under this clause 14.
15. Intellectual Property Rights
15.1. Licence to use Background Materials
- (a) The Client will make available its Background Materials to KindyNow where necessary for KindyNow to perform the Services.
- (b) The Client hereby grants KindyNow a non-exclusive, worldwide, transferable, fully-paid up, royalty-free licence (with the right to grant sub-licences to Related Entities of KindyNow) for the Term to use, reproduce, modify and communicate the Client’s Background Materials in order to perform the Services.
- (c) The Client acknowledges that all of KindyNow’s Background Material, and all existing and future Intellectual Property Rights which is derived, created or arises from, or is connected with, KindyNow’s Background Material, is the property of and will at all times remain vested in KindyNow.
- (d) To the extent that any Intellectual Property Rights referred to in clause 15.1(c) do not automatically vest in KindyNow, the Client immediately assigns to KindyNow absolutely and beneficially the whole of its rights, title and interest in and to those Intellectual Property Rights, whether presently existing or which arise at a date after the date of this Agreement.
- (e) The Client agrees to do all things necessary or desirable, and will ensure its Personnel do all things necessary or desirable, to effect the assignment referred to in clause 15.1(d).
15.2. Ownership of Developed Intellectual Property
- (a) Any Intellectual Property developed in the process of providing the Services (Developed Intellectual Property) will be owned by KindyNow.
- (b) The Client assigns to KindyNow absolutely and beneficially the whole of its right, title and interest in and to the Developed Intellectual Property at the time of creation of the Developed Intellectual Property.
16.1. KindyNow warranties
KindyNow warrants that:
- (a) it will use reasonable endeavours to provide the Services to a high professional standard, in accordance with accepted industry practice, using due skill and care and otherwise in accordance with this Agreement and any applicable Laws;
- (b) it has all necessary consents to perform the Services; and
- (c) KindyNow’s Background Materials do not knowingly infringe any Australian-registered Intellectual Property Rights of any Third Party.
16.2. Client warranties
The Client warrants that:
(a) the Information (including details of children and their parents or guardians) provided to KindyNow will be accurate and will be promptly updated as and when required;
(b) if it is required by Law, it is, and will be for the duration of this Agreement, a duly registered and accredited childcare provider;
(c) it has all necessary consents and is authorised to allow KindyNow to perform the Services; and
(d) its Background Materials and Information it has provided to KindyNow does not infringe any Intellectual Property Rights of any Third Party or any applicable Laws.
(a) Any representation, warranty, condition or undertaking that would be implied in this Agreement by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by Law.
(b) Nothing in this Agreement excludes, restricts or modifies any condition, warranty, guarantee, right or remedy conferred on the Client by the Competition and Consumer Act 2010 (Cth) or any other applicable Law that cannot be excluded, restricted or modified by agreement. To the fullest extent permitted by Law, the liability of KindyNow for a breach of a nonexcludable condition, warranty or guarantee referred to in clause 16.3(b) is limited, at KindyNow’s option, to:
(i) in the case of goods, any one or more of the following:
(A) the replacement of the goods or the supply of equivalent goods;
(B) the repair of the goods;
(C) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(D) the payment of the cost of having the goods repaired; or
(ii) in the case of services:
(A) the supplying of the services again; or
(B) the payment of the cost of having the services supplied again.
17. Limitation of liability
(a) KindyNow is not liable to the Client or to any other person for any indirect, incidental, special, exemplary or consequential loss or damage, loss of profits or anticipated profits, loss of revenue, economic loss, loss of business opportunity, damage to goodwill, loss of data, deletion or corruption of electronically or digitally stored Information or loss or damage resulting from wasted management time irrespective of whether:
(i) the loss or damage is caused by or relates to breach of contract, statute, tort (including negligence) or otherwise;
(ii) the possibility of such loss or damage was foreseeable; or
(iii) KindyNow or any other person was previously notified of the possibility of the loss or damage.
(b) KindyNow is not liable for any loss or damage howsoever caused to any property or person of the Client or any Third Party as a result of any defect in the Services.
(c) The maximum aggregate liability of KindyNow for all proven losses, damages and claims arising out of this Agreement, including liability for breach, in negligence or in tort or for any other common law or statutory action, is limited to the sum of the amounts paid by the Client to KindyNow under this Agreement in the 3 month period immediately before the notice of the then current claim.
(d) The Client indemnifies KindyNow for any and all loss and damage (including legal fees) arising out of or in connection to:
(i) any breach by the Client of their obligations under this Agreement;
(ii) any injuries, damages or loss suffered by KindyNow or its Personnel whilst at the Site;
(iii) all and any claims whatsoever and howsoever arising made by any Third Party in connection with or arising out of providing the Services; and
(iv) any failure by the Client to comply with all Laws.
18. Force majeure
Neither Party will be liable to the other for any delay or failure to perform its obligations under this Agreement as a result of a cause beyond its reasonable control (Force Majeure). If the Force Majeure continues for a period of more than 20 Business Days, the Party not affected by the Force Majeure may terminate this Agreement by written notice to the affected Party.
Subject to clause 19.4, the Client may terminate this Agreement at any time for any reason and without prejudice to any right or action or remedy which has accrued or which may accrue in favour of the Client, by giving KindyNow sixty (60) Business Days notice to that effect.
19.2. Default notice
If an Event of Default occurs in relation to a Party (Relevant Party), the other Party may give a notice (Default Notice) to the Relevant Party specifying the Event of Default and requiring the Relevant Party to remedy the default within 15 Business Days after the Default Notice is given to the Relevant Party.
19.3. Termination notice
If a Party (Defaulting Party):
(a) receives a Default Notice and does not comply with the notice within the relevant period referred to in clause 19.2; or
(b) is the subject of an Insolvency Event, then the other Party, without limiting its other rights and remedies, may terminate this Agreement by giving to the Defaulting Party notice with immediate effect.
19.4. Consequences of expiry or termination
(a) On the expiry or termination of this Agreement for any reason this Agreement is at an end as to its future operation except for the enforcement of any right or claim in relation to the Agreement that arises on, or has arisen before, the expiry or termination.
(b) In addition to the provisions of clause 19.4(a), in the event that this Agreement is terminated:
(i) at the nomination of the Client;
(ii) as a result of a breach of this Agreement by the Client; or
(iii) the Client is the Defaulting Party,
then in addition to any other rights which KindyNow may have under this Agreement:
(iv) the Client must immediately pay KindyNow all outstanding Fees which will become immediately due and payable and any invoice provided for work completed but not invoiced before termination;
(v) the Client must pay to KindyNow its Unavoidable Costs; and
(vi) the Client must immediately cease using and return to KindyNow any of KindyNow’s Background Material and Confidential Information, at the Client’s risk and cost, or if such Background Material or Confidential Information is incapable of being returned, permanently destroying it.
19.5. Refund following termination
Following the termination of this Agreement for any reason, KindyNow will not refund any Fees to the Client for any Services provided up to the date of termination.
19.6. Survival of obligations
This clause 19.6 together with clauses 9, 10, 11, 14, 15, 16.3, 17, 19.4, 19.5, 20, 21 and 23 survive termination or expiration of this Agreement.
20. No Solicitation
(a) During the Term and for a period of 2 years following the end of the Term, the Client will not directly or indirectly:
(i) solicit or encourage any employee of KindyNow who was involved in performing the Services, to leave the employ of KindyNow; or
(ii) solicit or encourage any consultant or other contractor under contract with KindyNow who was involved in performing the Services, to cease work for KindyNow.
(b) If the Client breaches clause 20(a), it agrees to pay KindyNow an amount equal to 12 month’s remuneration of that person when last engaged by KindyNow, and the Client agrees to pay such amount on demand. The Parties agree that this amount is a genuine pre-estimate of the loss suffered by KindyNow as a result of the Client’s conduct.
(a) The Client appoints KindyNow on an exclusive basis to provide the Services to the Client during the Term.
(b) The Client must not engage another service provider to provide services similar to the Services during the Term.
22. Dispute resolution
(a) A Party claiming that a dispute has arisen must give written notice to the other Party specifying the nature of the dispute and the Parties must submit themselves to the dispute resolution procedure specified in this clause 21.
(b) The Parties agree that if a dispute arises out of or relates to this Agreement, a Party may not commence any legal proceedings relating to the dispute unless it has complied with the provisions of this clause 21 except to seek urgent equitable or interlocutory relief. The procedures in this clause 21 must be completed within 40 Business Days from the giving of notice referred to in this clause 21. After expiry of this time a Party may commence legal proceedings relating to the dispute.
(c) When a dispute arises between the Parties in relation to this Agreement, then:
(i) all amounts payable by the Client to KindyNow which are not in dispute must be paid in accordance with this Agreement;
(ii) if the Parties cannot resolve the dispute within 10 Business Days after notice has been given, then the dispute is to be referred to the respective chief executive officers or their nominees of each Party (jointly referred to in the remainder of this clause 21 as Chief Executive Officers) for resolution; and
(iii) if the Chief Executive Officers cannot resolve the dispute within 10 Business Days after referral, then the Parties must submit the Dispute to a mediator for consideration in accordance with the Mediation and Conciliation rules of the Institute of Arbitrators and Mediators Australia, which Rules are taken to be incorporated into this Agreement.
(d) Each Party must pay its own internal and legal costs in relation to complying with this clause 21. The mediator’s costs are to be shared equally between the Parties.
23.1. Nature of obligations
(a) Any provision in this Agreement which binds more than one person binds all of those persons jointly and each of them severally.
(b) Each obligation imposed on a Party by this Agreement in favour of another is a separate obligation.
23.2 Entire understanding
This Agreement contains the entire understanding between the Parties concerning the subject matter of this Agreement and supersedes all prior communications, agreements, proposals, work orders or correspondence between the Parties.
23.3. No adverse construction
This Agreement is not to be construed to the disadvantage of a Party because that Party was responsible for its preparation.
23.4. Further assurances
A Party, at its own expense and within a reasonable time of being requested by another Party to do so, must do all things and execute all documents that are reasonably necessary to give full effect to this Agreement.
23.5. No waiver
(a) A failure, delay, relaxation or indulgence by a Party in exercising any power or right conferred on the Party by this Agreement does not operate as a waiver of that power or right.
(b) A single or partial exercise of the power or right does not preclude a further exercise of it or the exercise of any other power or right under this Agreement.
(c) A waiver of a breach does not operate as a waiver of any other breach.
Any provision of this Agreement which is invalid in any jurisdiction must, in relation to that jurisdiction:
(a) be read down to the minimum extent necessary to achieve its validity, if applicable; and
(b) be severed from this Agreement,
without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.
23.7. Successors and assigns
This Agreement binds and benefits the Parties and their respective successors and permitted assigns under clause 23.8.
23.8. No assignment
The Client cannot assign or otherwise transfer the benefit of this Agreement without the prior written consent of KindyNow. KindyNow can assign this Agreement by providing written notice to the Client.
23.9. Consents and approvals
Where anything depends on the consent or approval of a Party then, unless this Agreement provides otherwise, that consent or approval may be given conditionally or unconditionally or withheld, in the absolute discretion of that Party.
23.10. No variation
This Agreement cannot be amended or varied except in writing signed by the Parties.
Each Party must pay its own legal costs of and incidental to the preparation and completion of this Agreement.
23.12. Governing Law and jurisdiction
(a) This Agreement is governed by and must be construed in accordance with the Laws in force in Victoria.
(b) The Parties submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to this Agreement, its performance or subject matter.
Any notice or other communication to or by a Party under this Agreement:
(a) may be given by personal service, post, facsimile or sent electronically by email;
(b) must be in writing, legible, signed by the relevant Party’s authorised representative and in English addressed (depending on the manner in which it is given) to the relevant contact and address, facsimile number or email specified in the Schedule or to any other address facsimile number or email last notified by the Party to the sender by notice given in accordance with this clause; and
(c) is deemed to be given by the sender and received by the addressee:
(i) if delivered in person, when delivered to the addressee;
(ii) if posted, 2 Business Days (or 6, if addressed outside Australia) after the date of posting to the addressee whether delivered or not;
(iii) if sent by facsimile transmission, on the date and time shown on the transmission report by the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety and in legible form to the facsimile number of the addressee notified for the purposes of this clause; or
(iv) if sent electronically by email and confirmation is received from the relevant internet service provider that the transmission was successfully delivered, on the day of transmission, but if the delivery or receipt is on a day which is not a Business Day or is after 4.00 pm (addressee’s time), it is deemed to have been received at 9.00 am on the next Business Day.
If this Agreement consists of a number of signed counterparts, each is an original and all of the counterparts together constitute the same document.
23.15. Non merger
A term or condition of, or act done in connection with, this Agreement does not operate as a merger of any of the rights or remedies of the Parties under this Agreement and those rights and remedies continue unchanged.
23.16. Operation of indemnities
Unless this Agreement expressly provides otherwise:
(a) each indemnity in this Agreement survives the expiry or termination of this Agreement; and
(b) a Party may recover a payment under an indemnity in this Agreement before it makes the payment in respect of which the indemnity is given.
23.17. Relationship of Parties
(a) Each Party is an independent contractor and, unless this Agreement expressly provides otherwise, has no authority to bind or commit the other Party.
(b) Unless this Agreement expressly provides otherwise, nothing in this Agreement may be construed as creating a relationship of partnership, of principal and agent or of trustee and beneficiary.