Terms and Conditions

 

  1. AGREEMENT
    1. These terms and conditions apply to all transactions between the Client and Kymodo relating to the provision of the Services. This includes all Proposals, quotes, contracts and variations.
    2. By engaging Kymodo to provide the Services, the Client agrees to all of these terms and conditions as may be updated by Kymodo from time to time.
    3. These terms and conditions create a legally binding agreement between the Client and Kymodo (Agreement) and commence on the date the Client engages Kymodo to provide the Services.
  2. SERVICES
    1. Kymodo will provide the Services to the Client in consideration for the Client paying the Retainer Subscription Fee to Kymodo, subject to the provisions of this Agreement.
    2. The Services to be performed as agreed by the Parties, including the Project Commencement Date and the Retainer Subscription Fees are set out in the Proposal.
  3. PAYMENT
    1. Payment Method
      1. In consideration for the provision of the Services in accordance with this Agreement, the Client will pay Kymodo the Retainer Subscription Fees.
      2. The Client acknowledges that the Retainer Subscription Fees and other costs included in the Proposal are exclusive of any GST that may be charged by Kymodo to the Client, and therefore, Kymodo will be entitled to add on GST. Kymodo will provide the Client with a tax invoice in accordance with the GST Law in relation to fees payable under this clause 3.
      3. Kymodo requires the Client to pay the Retainer Subscription Fees by direct debit through the EziDebit payment platform (Payment Method). Prior to the Project Commencement Date, the Client must complete the Ezidebit Direct Debit Request Form (DDR) and return the DDR to Kymodo. The Client must ensure that there are sufficient cleared funds in the account nominated on the DDR to enable each direct debit to be honoured on the debit date. The Client acknowledges having received a copy of, and agrees to comply with, the Ezidebit DDR Service Agreement for the duration of this Agreement.
      4. By accepting the Proposal and entering into this Agreement, the Client authorises Kymodo to charge the Retainer Subscription Fees by direct debit in accordance with this clause 3.
    2. Billing Cycle
      1. The billing cycle starts on the first day of each month and ends on the last day of each month (Billing Cycle).
      2. The Retainer Subscription Fees will be charged to the Client by direct debit as follows:
        Project Commencement Date Payment Schedule
        Before the 21st day of the month
        1. On the Project Commencement Date, the amount calculated until the end of the Billing Cycle; and
        2. Thereafter in advance on the 21st day of each month.
        On or after the 21st day of the month
        1. On the Project Commencement Date, the  amount calculated until the end of the Billing Cycle for the subsequent month; and
        2. Thereafter in advance on the 21st day of each month.
    3. Changes to Retainer Subscription Fees
      1. Kymodo may change the Retainer Subscription Fees payable in relation to the Services from time to time, however, any price changes will apply no earlier than 30 days following notice to the Client.
  4. TERMINATION AND SUSPENSION
    1. If the Client is in breach of any obligation under this Agreement, including if payment of the Retainer Subscription Fees is not successfully settled in accordance with clause 3, due to expiration, insufficient funds or otherwise, Kymodo may:
      1. Suspend all or part of the Services until the Retainer Subscription Fees have been paid;
      2. Require the Client to pay, in advance, for any Services which have not yet been performed; or
      3. Not perform any further Services and immediately terminate this Agreement by providing written notice to the Client, and Kymodo will not be liable to the Client for any Loss the Client suffers because Kymodo exercises its rights under this clause.
    2. If the Client defaults in payment of any Retainer Subscription Fees or other amounts due under this Agreement, the Client shall indemnify Kymodo from and against all of Kymodo’s costs and expenses (on a full indemnity basis) arising from the default.
    3. Either party may terminate this Agreement for any reason upon providing the other with written notice prior to the end of the then current Billing Cycle. The termination of this Agreement will be effective at the end of the billing cycle for the following month.
    4. If this Agreement is terminated in accordance with clause 4(c), Kymodo will continue to provide the Services up to the date the Services have been paid for by the Client. The Client acknowledges and agrees that it will not receive a refund or credit of any Retainer Subscription Fees or other amounts already paid to Kymodo upon termination of this Agreement.
  5. USE OF SUBCONTRACTORS
    1. Kymodo is permitted to use other persons to provide some or all of the Services.
    2. Kymodo is responsible for the work of any of Kymodo’s subcontractors.
    3. Any work undertaken by any of the Kymodo’s subcontractors will be undertaken to the same standard as stated in this Agreement and the Proposal.
  6. COMPLIANCE WITH ALL LAWS
    Throughout this Agreement Kymodo must comply at Kymodo’s own cost and expense with all acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements of any Commonwealth, State and Local Government departments, bodies, and public authorities or other authority. This requirement applies to Kymodo or to the Services. Kymodo must indemnify the Client from and against all actions, costs, charges, claims and demands in respect thereof.
  7. WARRANTIES, LIABILITIES AND INDEMNITIES
    1. Warranties
      1. Kymodo warrants that it will use reasonable care and skill in performing the Services to generally accepted industry standards.
      2. If Kymodo performs the Services (or any part of the Services) negligently or materially in breach of this Agreement, then, if requested by the Client, Kymodo will re-perform the relevant part of the Services, subject to clauses 7.2(a) and 7.2(b) below.
      3. The Client’s request referred to in clause 7.1(b) must be made within 2 months of the date Kymodo completed performing the Services.
    2. Limitation on liability
      1. To the extent permitted by law, the liability of Kymodo under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise must not exceed the Retainer Subscription Fees paid by the Client to Kymodo under this Agreement. The provisions of 7.2(a) will not apply to clause 6.
      2. Neither Party is liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill. The provisions of this clause do not apply to clauses 6 and 7.3.
    3. Indemnity
      The Client indemnifies Kymodo against, and will compensate Kymodo for, all Loss incurred by Kymodo as a direct or indirect result of a breach of this Agreement by the Client and any negligent act or omission or wilful misconduct by the Client or its officers, employees and agents.
    4. No warranties in relation to outcomes
      Kymodo provides no warranty that any result or objective can or will be achieved or attained at all through the provision of the Services. Without limiting the above, Kymodo makes no warranty that a digital marketing campaign will generate an increase in sales, business activity or profits for the Client’s business. The Client acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement. Any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
  8. INTELLECTUAL PROPERTY
    1. Background Intellectual Property
      1. Each party retains all rights, title and interest in and to its own Background Intellectual Property irrespective of any disclosure of the Background Intellectual Property to the other.
      2. The Client grants Kymodo a non-exclusive, royalty-free, non-transferable licence during the term of this Agreement to use the Background IP owned by it to the extent necessary and for the sole purpose of the performance of the Services.
    2. Developed Intellectual Property
      All right, title and interest in the Developed Intellectual Property vests in and is assigned to the Client with effect from its creation.
  9. CONFIDENTIALITY
    1. Confidential information
      Subject to clauses 9.2 and 9.3, each party:

      1. may use Confidential Information in connection with the provision of the Services pursuant to this Agreement (Purpose), and not for any other purpose;
      2. must not copy or reproduce Confidential Information, unless necessary for the Purpose;
      3. must not use Confidential Information to the commercial, financial or competitive disadvantage of the other party;
      4. must not disclose Confidential Information to any person; and
      5. must keep Confidential Information confidential.
    2. Disclosure of Confidential Information
      If the Parties consent to disclosure of Confidential Information they must ensure that the authorised recipient is advised of the confidential nature of the information and of the fact that it may not be divulged without the prior consent in writing of all Parties.
    3. Consent not required
      The Parties’ may (without consent of the other) disclose the Confidential Information (to the extent reasonably required):

      1. if required by any statute, inquiry, request or order of any court, government or local, state or federal authority having jurisdiction;
      2. to the extent necessary to allow the Parties to carry out their obligations and exercise their rights under this Agreement;
      3. to obtain the advice of any independent accountants, legal advisers and other experts engaged by a Party to give advice with respect to this Agreement or any matter incidental to it; or
      4. where the information is already in the public domain or is lawfully obtained by the disclosing Party from sources other than this Agreement.
    4. Officers, employees and agents
      Each Party must procure that its officers, employees and agents act in accordance with the terms of this Clause 9. To the extent that any of its officers, employees or agents do not act in accordance with this clause, then that Party will be liable for the actions of its officers, employees and agents.
  10. PRIVACY POLICY
    Kymodo manages the collection of personal information in accordance with its Privacy Policy which is available on its website, https://www.kymodo.com.au/.
  11. WARRANTIES REGARDING CAPACITY
    1. Corporation
      If the Client is a corporation (with the exception of a publicly listed company) it must advise Kymodo of any alterations to its corporate structure (for example, by changing directors, shareholders or its constitution).
    2. Trust
      If the Client is a trustee of a trust, the Client warrants that it enters into this Agreement in both its capacity as trustee and in its personal capacity, it has the power to execute this Agreement on behalf of the trust and it will not retire as trustee, or appoint a new or additional trustee without advising Kymodo in writing.
    3. Partnership
      If the Client is a partnership, the Client warrants that the partner(s) signing this Agreement have the authority to enter into the Agreement and the partnership agrees that it must not alter its structure without advising Kymodo in writing of the change.
  12. FORCE MAJEURE
    1. If circumstances beyond Kymodo’s control prevent or hinder its provision of the Services, Kymodo is free from any obligation to provide the Services while those circumstances continue. Kymodo may elect to terminate this Agreement or keep the Agreement on foot until such circumstances have ceased.
    2. Circumstances beyond Kymodo’s control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems, epidemics and pandemics.
  13. RELATIONSHIP OF PARTIES
    The parties are independent contractors. No party is authorised to bind or to make representations on behalf of another party, or to pledge its credit, except as expressly provided in this Agreement.  Nothing in this Agreement is to be interpreted as creating an employment, agency, partnership or joint venture relationship between any parties.
  14. GENERAL
    1. This Agreement constitutes the entire agreement between the parties relating in any way to the subject matter. All previous negotiations, understandings, representations, warranties or commitments about the subject matter are merged in this Agreement and are of no further effect.
    2. If any provisions of this Agreement shall be invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
    3. Failure by Kymodo to enforce any terms of this Agreement shall not be construed as a waiver of any of Kymodo’s rights hereunder or a waiver of continuing breach.
    4. All Services supplied by Kymodo are subject to, and this Agreement shall be governed, by the laws of the State of Queensland, Australia and the Client submits to the jurisdiction of the courts of that State.
    5. All payments required to be made by the Client under this Agreement must be made free of any set-off or counterclaim and without deduction or withholding whatsoever.
    6. Kymodo reserves the right to review the terms of this Agreement at any time from time to time. If, following any such review, there is to be any change, it will take effect from the date on which Kymodo notifies the Client of such change.
    7. The Client must not assign, or purport to assign, any of its obligations or rights under this Agreeement without the prior written consent of Kymodo. Kymodo has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from this Agreement provided that the assignee agrees to assume any duties and obligations of Kymodo owed to Kymodo under this Agreement.
  15. DEFINITIONS
    In this Agreement, the following words have the following meanings:

    1. Agreement means these terms and conditions entered into between the Client and Kymodo.
    2. Background Intellectual Property means:
      1. any Intellectual Property of a Party existing prior to the commencement of this Agreement; and
      2. all Intellectual Property that is conceived or developed by a Party outside the scope of this Agreement without the use of the other Party’s Confidential Information or Intellectual Property.
    3. Confidential Information means:
      1. the terms of this document;
      2. all information and communications given by a party to another party in connection with this document;
      3. information which is identified, whether orally or in writing, by a party as confidential;
      4. the Intellectual Property;
      5. information relating to a party’s business interests, assets, methodology, processes, intellectual property, trade secrets, inventions and affairs, including information about a party’s officers, employees and agents, information about a party’s customers and suppliers, manuals, policies, reports and decisions of a party, strategies, forecasts and proposals of a party, codes and passwords of a party used to access any thing, information which would be of commercial value to a competitor of a party, or which if known by a competitor of a party, could be used to the commercial disadvantage of the party; but does not include information which is in the public domain. However, if Confidential Information enters the public domain because a party breached the terms of this document, it remains Confidential Information.
    4. Client means the client set out in the Proposal.
    5. Developed Intellectual Property means all Intellectual Property created, conceived or developed in the course of the performance of the Services.
    6. EziDebit means the EziDebit payment platform owned and operated by Ezi Management Pty Ltd (ABN 47 110 689 711, AFSL No. 315388).
    7. GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
    8. Intellectual Property means patents and registered designs, unregistered design rights, copyrights, rights in trade mark and services marks, whether registered or not, goodwill and rights in confidential information and know how, trade secrets and circuit lay out rights and any associated or similar rights (including applications and rights to apply, licenses and other rights of use), tables, compilations of data, diagrams, plans, formulae, computer programs, specifications and proprietary information recorded on any form of media.
    9. Kymodo means Kymodo Digital Marketing Pty Ltd ACN 635 407 699.
    10. Losses means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever.
    11. Parties means Kymodo and the Client, and Party means either one of them.
    12. Project Commencement Date means date the Services commence as set out in the Proposal.
    13. Proposal means the proposal prepared by Kymodo for the Client in relation to provision of the Services.
    14. Services means the services provided by Kymodo to the Client as set out in the Proposal.
    15. Retainer Subscription Fees means the monthly retainer/subscription fees payable by the Client to Kymodo for the Services as set out in the Proposal.