Last updated 22 April, 2024


  1. General
    1. Keyword Intent Pty Ltd ACN 138 544 555 trading as Way We Do (we/us/our) operate the Platform and provide the Services and the Templates.
    2. We have agreed to grant you Access to the Platform along with providing you with the Services and Templates on the terms set out in this Agreement.
  2. Term
    1. Term of Agreement
      This Agreement commences on the Acceptance Date and continues until terminated under clause 13 (Term).
    2. Continuation of Agreement
      Where a Proposal with a fixed duration has been provided to you, this Agreement will continue for each Rollover Period, unless terminated in accordance with clause 13.
  3. Proposal
    1. The parties acknowledge that if there is a Proposal it will form part of this Agreement.
    2. If there is an inconsistency between one or more of the documents which constitute this Agreement, the order of precedence will be:
      1. the Proposal;
      2. this document; and
      3. any other document or information expressly incorporated by reference either in the Proposal or in this document.
  4. Supply
    1. Access 
      1. Subject to sub-clause 4.1(b), we will provide you and your Authorised Users (if applicable) with access to the Platform on a non-exclusive and non-transferable basis during the Term (Access).
      2. Access is provided on the following conditions:
        1. you must:
          (A) only use the Platform in accordance with this Agreement;
          (B) comply with all reasonable and lawful directions that we may give from time to time with respect to your use (or the use of your Authorised Users) of the Platform;
          (C) only use the Platform in the ordinary operation of your business;
          (D) protect the Platform, the Support Materials and the Templates at all times from unauthorised access, use or damage;
          (E) maintain the security of:
          (1) your account log in information from third parties; and
          (2) all Data that has been uploaded to or recorded in the Platform; and
          (F) cooperate with us in remediation of any security, unauthorised use or misuse of the Platform and promptly report all such matters that you become aware of to us;
        2. you must not:
          (A) be involved in any business activity that is unlawful or that we reasonably consider would be likely to adversely impact upon our reputation;
          (B) allow or engage any third party to conduct development work on the Platform without first obtaining our written consent which we may withhold in our sole discretion;
          (C) grant or purport to grant, or convey, any right to any third party, to use or commercialise the Platform, our Services or our Templates;
          (D) interfere or disrupt the operation of the Platform nor attempt to do so;
          (E) grant access to the Platform to anyone other than Authorised Users, unless we provide you with our express written consent; and
          (F) subject to any right under, sections 47B(3), 47C, 47D, 47E or 47F of the Copyright Act, either directly or indirectly, modify, attempt to decompile, cross compile, disassemble, reverse engineer, or use any other means to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Platform or the Services.
    2. Services 
      We will provide the Services to you in a professional manner with due care, skill and diligence.
    3. Updates
      1. From time to time we may offer New Services by updating the Platform, and where practicable will provide you with Notice of those New Services. Once the Platform has been updated the provision of the New Services will be governed by the terms of this Agreement.
      2. We may from time to time unilaterally make modifications to the Services, Platform and the Templates (provided such variations do not limit your rights or enjoyment) and will provide Notice of any changes made, prior to the changes taking effect.
      3. As a consequence of New Service offerings and/or modifications, contemplated in sub clauses (a) and (b), we may need to make reasonable amendments to the provisions of this Agreement. We reserve the right to unilaterally make such changes, along with other minor alterations that do not adversely affect your rights and obligations under this Agreement. Any change made pursuant to this sub clause will apply immediately upon written notice of the variation being provided to you.
    4. Migration 
      1. Where a migration component is specified in the Proposal, we will migrate your pre-existing Content Data into the Platform and ensure its proper configuration in accordance with what was detailed in the Proposal.
      2. The cost of any additional migration beyond that contained in the Proposal will be charged on a time and material basis in accordance with our then prevailing hourly rates.
    5. Support 
      We will use our best endeavours to provide Support Services to you within 1 business day of a request being made. Support Services provided by us under this Agreement do not include any issues related to internet connectivity or hardware.
    6. Back-ups 
      1. We provide daily back-ups of Data, on a rolling seven (7) day basis.
      2. We will send you one back-up of your Content Data during the Term at no cost, within a reasonable time following your written request.
      3. If you require additional back-up/s be made or sent to you, this will be an additional cost based on our Personnel’s time and resource requirements.
    7. Activity Data
      We will provide you with access to your existing Activity Data promptly following your request.
    8. Custom Development
      1. If you would like us to develop new Services, integrations, Templates or otherwise vary the Platform (Custom Development), we may in our sole discretion agree to do so.
      2. Any Custom Development that you engage us to complete will be at an additional cost and will be governed by a separate agreement.
    9. Consultancy Services
      1. If you would like us to carry out any project work, in consultation with you, regarding the implementation of the Platform and Templates (Consultancy Services), we may in our sole discretion agree to do so.
      2. Any Consultancy Services that you engage us to provide will be at an additional cost and will be governed by a separate agreement.
    10. Third Party Features
      1. As part of our Services we may from time to time make available through the Platform features and functionality that are provided by a third party, by means of an API or integration (Third Party Feature).
      2. You acknowledge and agree with respect to the use of any Third Party Feature through the Platform that:
        1. notwithstanding that the Third Party Feature is available through the Platform, we are not the provider of and can accept no responsibility for or in relation to your use of the Third Party Feature;
        2. you must ensure that in using any Third Party Feature you comply with all terms, conditions and licensing requirements that are imposed by the provider of the Third Party Feature;
        3. we do not endorse, guarantee or warrant the suitability, functionality or any other characteristic of a Third Party Feature;
        4. Third Party Features may include both open source software or artificial intelligence and machine learning software, and by using such features you are acknowledging and accepting the inherent risks associated with the use of such software; and
        5. if you are using any Data in respect of a Third Party Feature, you may be transferring or transmitting your Data to the relevant provider of the Third Party Feature. You acknowledge and agree that we have no control over the use, treatment or security of any Data that is provided to the provider of a Third Party Feature.
      3. You acknowledge and agree that we cannot and do not warrant the availability of any Third Party Feature that is provided through the Platform. We will not be liable for and you hereby release and hold us harmless in respect of all Loss that you may suffer as a consequence of any Third Party Feature being unavailable (whether permanently or temporarily) at any time.
      4. With regard to any Third Party Feature that incorporates artificial intelligence and machine learning software, you acknowledge by enabling the functionality that:
        1. artificial intelligence and machine learning are rapidly evolving fields of study
        2. given the probabilistic nature of artificial intelligence and machine learning software, use of Third Party Features incorporating such software may in some situations result in the output of information that is incomplete, incorrect or otherwise not fit for purpose; it is your obligation to ensure that your comprehensively evaluate and consider any output obtained from using a Third Party Feature, using your own skill and judgement; and
        3. we do not use or disclose your content and materials to train any artificial intelligence systems.
      5. You acknowledge and agree that where you have, or we suspect you are likely (or that any of your Authorised Users or Personnel are likely) to use the Platform or Services in a manner that would be in breach of the licence of any Third Party Feature, or cause us to be in breach of the licence of any Third Party Feature, we may at our discretion suspend or terminate your access to the relevant Third Party Feature, the Platform or the Services.
      6. You release and hold us harmless in respect of any Loss that you may suffer or incur (howsoever arising) as a consequence of our exercise of our rights granted pursuant to clause 4.10(e).
  5. Training and Support Material 
    1. Support Material
      We provide Support Materials within the Platform that contain sufficient information to enable you to make full and effective use of the Platform and receive the Services.
    2. Training
      1. Where the Professional Assistance and Training Package is selected in the Proposal, we will deliver the Training in accordance with this clause 5.2.
      2. Training will be delivered in one-hour sessions every month (unless otherwise agreed between the parties) until the earlier of the date:
        1. which is twelve months from the Acceptance Date; or
        2. on which this Agreement is terminated in accordance with clause 13 (Training Term).
      3. Your Authorised Representative will:
        1. arrange the ongoing dates, times and locations at which the Training will be provided, in consultation with the designated Process Analyst (Training Schedule);
        2. nominate whether Training is to be delivered online or onsite; and
        3. during the Training sessions, demonstrate to the Process Analyst your previous use of the Platform and Templates so that the Process Analyst may provide further feedback and guidance on best practices.
      4. All specific expenses incurred by us in relation to our provision of Training including travel, accommodation and Personnel travel time are payable by you and will be invoiced to you in accordance with clauses 9.1 and 9.3.
      5. The cost of additional Training sessions or increased duration of Training sessions beyond those set out in clause 5.2(b) will be charged on a time and materials basis in accordance with our then prevailing hourly rates.
    3. Training Schedule
      1. We will use reasonable endeavours to create a Training Schedule outlining the timing of our Training sessions that is convenient for each of the parties promptly following the Acceptance Date.
    4. Training Schedule Modifications by You
      1. You acknowledge and agree that once the Training Schedule has been finalised we cannot guarantee any change of date or time requests, as such requests are subject to the availability of our Process Analysts.
      2. Provided you make a rescheduling or cancellation request at least 48 hours before the time the relevant Training session is to commence, then:
        1. the Training session will be honoured and rescheduled to another time and date within the same calendar month; and
        2. if necessary, the Training Term will be extended by the minimum amount of time to enable the rescheduled Training session to occur.
      3. If a rescheduling or cancellation request is made outside the time frames in clause 5.4(b) or is not made at all, your Training session may be forfeited and we reserve the right not to provide any additional Training sessions to your Professional Assistance and Training Package.
      4. You may make a rescheduling or cancellation request by using our online calendar booking system [here] or by emailing your designated Process Analyst directly.
      5. You acknowledge and agree that Training sessions may not be rescheduled to another calendar month unless we agree otherwise
    5. Training Schedule Modifications by Us
      1. If your designated Process Analyst is not available to deliver a scheduled Training session for any reason, we will arrange for the Training session to be delivered by an alternative Process Analyst at the same time and in the same manner.
      2. In the event we are unable to make the arrangements contemplated in sub-clause (a), we will:
        1. promptly notify you of the need to reschedule your Training session;
        2. use our best endeavours to reschedule your Training session to a new mutually convenient time; and
        3. extend the Training Term accordingly.
      3. You acknowledge and agree that we will not be liable for any changes to the Training Schedule as contemplated in this clause 5.5 or the impacts that may be caused by the delay in our provision of the Training.
  6. Client Responsibilities 
    1. Account establishment
      1. Unless otherwise specified in the Proposal, you are responsible for migrating Content Data and properly establishing the accounts of your Authorised Users (Account Establishment).
      2. You acknowledge and agree that the Services provided by us require proper Account Establishment. If this does not occur:
        1. the Services may not be able to be provided, or if they are provided the Service deliverables may be adversely affected;
        2. you may be required to reestablish the accounts of any of your Authorised Users before any Services are provided; and
        3. we will not be liable to you for any Loss suffered due to the Services not being provided or the Service deliverables being adversely affected.
    2. Your Data
      1. You must not record or upload any sensitive or private information regarding any person to the Platform. If you do so you acknowledge and agree that this information is entirely at your risk.
      2. You acknowledge and agree that all Data will be stored by our server host located in Sydney, New South Wales Australia, unless otherwise specified in our Proposal.
      3. We acknowledge and agree that:
        1. title to Content Data and Account Establishment Data remains with you in all respects and we do not obtain ownership of any Intellectual Property Rights in it; and
        2. where Content Data and Account Establishment Data is held or stored by us, it is held on your behalf.
      4. You acknowledge and agree that we may use user details and titles of Content Data for training and improvement of our services.
    3. Data Loss
      You acknowledge and agree:

      1. we have no responsibility for and you release and hold us harmless in respect of any loss or damage to any Data that we are holding or storing on your behalf;
      2. whilst we use all reasonable commercial endeavours to maintain the integrity and security of Data, we can make no guarantee that Data that we store will remain secure and free from any cyber attack, hacking event or other related attack by nefarious actors; and
      3. the extent of our obligations with respect to any Data that is held or stored on your behalf:
        1. are limited to providing you with a copy of any Data that we retain as part of a back-up undertaken pursuant to clause 4.6; and
        2. are limited to only what is expressly required of us, as specified in the terms of this Agreement.
    4. Equipment
      You are responsible for obtaining and maintaining any equipment and ancillary services needed by your Authorised Users to connect to, access or otherwise use the Platform and the Services.
    5. Your warranties
      You represent, warrant and undertake that:

      1. you own or have an unrestricted right to use all of your Content Data that is uploaded or recorded by you or on your behalf, including the right to authorise us to store the data and use it in the provision of the Services;
      2. we are authorised to use and store Content Data that has been Uploaded for the purpose of delivering the Services;
      3. you have the capacity and authority to enter into and to perform this Agreement; and
      4. this Agreement is accepted by a duly authorised representative of yours and legally binds you.
    6. Your acknowledgements
      You acknowledge and agree that:

      1. computer and telecommunications services are not fault free and occasional periods of downtime may occur;
      2. we may publish your branding and testimonials on our Platform or on any of our other promotional material for the purpose of representing that you are a client of ours, provided we comply with our confidentiality obligations contained in clause 12; and
      3. in addition to any other rights or remedies we may have, we may suspend or terminate any Authorised User’s access to the Platform at any time and without any liability to you in the event that we are reasonably of the view that an Authorised User breaches or is likely to breach a provision of this Agreement.
  7. Our responsibilities
    We will:

    1. comply with the Privacy Act 1988 (Cth) and any other applicable privacy Laws in relation to your Data;
    2. provide you and your Authorised Users with reasonable notice of scheduled maintenance to the Platform;
    3. use adequate security systems and procedures to safeguard and prevent third party access to all Data including 256-bit encryption;
    4. conduct general server maintenance as and when reasonably required;
    5. host all Data; and
    6. ensure that the Platform and the Services will be provided in accordance with:
      1. this Agreement;
      2. applicable Laws; and
      3. our marketing material.
  8. Intellectual property rights
    1. General
      1. Each Party retains all right, title and interest in and to its pre-existing Intellectual Property Rights.
      2. We own all Intellectual Property Rights in the Platform, the Services and the Templates and nothing in this Agreement affects the Moral Rights in them.
      3. For the avoidance of doubt nothing in these Terms prohibits us from using our Intellectual Property Rights to provide the Services and Templates to third parties, even if they are the same or substantially the same as those provided to you.
    2. Improvements
      1. You acknowledge and agree that all Intellectual Property Rights in the variations, additions and alterations (Improvements) to the:
        1. Platform and the Services are owned by us, even where suggested or created by you; and
        2. Templates do not transfer under this Agreement.
      2. For the avoidance of doubt, you will own all Intellectual Property Rights in any Improvements you make to the Templates you have purchased under clause 9.2 (Your Improved Templates), and nothing in these Terms allows us to provide Your Improved Templates to third parties.
    3. Templates
      1. We grant you a non-exclusive, world-wide, royalty free licence to use and Improve the Template/s you have purchased under clause 9.2:
        1. within your business for internal operational purposes only; and
        2. in a manner otherwise consistent with the provisions of this Agreement.
      2. The license granted under sub-clause (a) extends to Improvements of a Template made by us during the Term.
  9. Fees, Charges and Payments
    1. Fees
      1. Where a Proposal is provided:
        1. we will issue a Tax Invoice to the Financial Officer following your acceptance of the Proposal. Subsequent tax invoices for the Services you have requested or subscribed to will be issued to your Financial Officer at the end of each calendar month; and
        2. you must pay each Tax Invoice within 14 days of receipt (unless expressly stated otherwise in the invoice itself), without set-off, counterclaim, holding or deduction in the manner detailed on the Tax Invoice.
      2. If no Proposal is provided, you will automatically be charged each month on the day that you became an Authorised User. We will issue our Tax Invoice to you upon your payment being processed.
    2. Templates
      1. We may from time to time offer access to free Templates for all Authorised Users via the Platform.
      2. We may provide access to premium Templates for Authorised Users paying a subscription fee for the Platform.
      3. Upon accessing a Template, you are granted a licence to use it on the terms contained in clause 8.3.
    3. Expenses
      Any costs and reasonable out-of-pocket expenses which are necessary to provide the Services (Expenses) will be paid or reimbursed (as the case may be) by you where we have received prior written approval from you regarding the incurring of the Expense. We will submit documentation as evidence as is reasonably required by you to verify the Expense that has been incurred.
    4. Disputed Fee
      1. If you dispute any part of a Tax Invoice you must pay the portion not in dispute and provide Notice to us within seven (7) days of receiving the Tax Invoice of your reasons for dispute.
      2. Within a reasonable time of receiving the notice, we will address your reasons of dispute, to enable a prompt and amicable resolution. If the dispute cannot be resolved within seven (7) days of our response, then the dispute must be referred to the procedure contained in clause 16.
    5. Review
      1. Subject to the Proposal, you agree that we may:
        1. increase our Fees under this Agreement on 1 July each year; and
        2. all other charges at any time we reasonably determine.
      2. The new Fees and charges will apply from the time that we give Notice to you of the changes.
    6. Late Payment
      If you fail to make payment within the time required under this Agreement we may:

      1. charge you an Admin Fee;
      2. charge interest on the overdue amount at the Default Rate as from the first day that payment is overdue to the date we receive payment in full of all overdue amounts; and
      3. charge you for all costs and expenses incurred by us in recovering any outstanding Fees or charges, including legal fees (on a solicitor and own client basis) and court costs, which you must pay upon demand.
  10. Accounts
    1. Trial Account
      1. Whilst you have Access under a trial account you are not required to pay Fees.
      2. A trial account is only granted for a limited time, as published on the Platform or as otherwise agreed to by us in our sole discretion.
    2. Authorised Users
      You acknowledge and agree that you are solely responsible and vicariously liable for all of your Authorised Users and Representatives and must ensure that they comply with the terms of this Agreement.
    3. Location Accounts
      If you hold a Multi Account:

      1. Access includes the right to setup Location Accounts in accordance with the Proposal; and
      2. as soon as practicable following the Acceptance Date, we will set up a master management account (MMA) for you. The MMA holder will be able to create Location Accounts with varying authorities and access rights.
    4. Agreement continues
      You acknowledge and agree that if you change your Account Type during the Term, this Agreement will remain valid and will continue, but will be taken to be amended in accordance with the Proposal or if no Proposal is given as detailed on the Platform.
  11. Representatives
    1. Authorised Representative
      You must:

      1. appoint an Authorised Representative (or where you fail to, you acknowledge and agree that either your first Authorised User or MMA holder will be deemed to be your Authorised Representative) who will be responsible for the oversight of this Agreement and receipt of the Services (Representative Purpose);
      2. ensure your Authorised Representative co-operates with any request made by us in respect of anything related to this Agreement; and
      3. give us Notice any time the Authorised Representative is replaced or their details change.
    2. Authority

      1. covenant that the Authorised Representative has full authority to act on your behalf in any way relating to the Representative’s Purpose;
      2. acknowledge and agree that we may rely on any written representation, direction or communication made by the Authorised Representative that relates to the Representative’s Purpose, as if the Authorised Representative were you; and
      3. must release and hold us harmless from our reliance upon any such direction or representation made by the Authorised Representative.
  12. Confidentiality and restrictions
    1. Recipient must keep Confidential Information confidential
      Each party must:

      1. keep confidential all Confidential Information and not share or disclose any Confidential Information to any other person or allow it to be disclosed or shared;
      2. only use Confidential Information for the purpose of providing or receiving (as the case may be) the Services;
      3. not copy any document that contains any Confidential Information or otherwise record or reproduce the Confidential Information in any material form except as is strictly necessary for the purpose of this Agreement or otherwise with the other party’s consent;
      4. take reasonable measures and use care to preserve and protect the secrecy of, to avoid unauthorised use or disclosure of, the Confidential Information of the other party; and
      5. procure that its employees and contractors comply with sub-clauses (a) to 12.1(d).
    2. Permitted Disclosures
      A party may disclose or use Confidential Information of the other party:

      1. on a confidential basis to its advisers to enable them to advise in connection with this Agreement;
      2. to the extent necessary to enable a party to perform its obligations under this Agreement;
      3. where disclosure is required for any quality assurance or insurance purposes;
      4. if the party lawfully had the Confidential Information before it was disclosed to them in connection with this Agreement;
      5. with the consent of the other party;
      6. in connection with legal or other proceedings relating to this Agreement; or
      7. if compelled by Law or any Government Authority.
    3. Restrictions
      The Parties undertake to one another to not during this Agreement or for a period of 12 months after it is terminated or expires:

      1. solicit, canvass, induce or encourage any person who was at any time during the term of this Agreement a director, employee or agent of the other party to leave the other party’s employment or agency; or
      2. do anything that would or would be likely to interfere with the relationship between the other party’s clients, customers, employees, partners or suppliers.
    4. Acknowledgement
      Each party acknowledges and agrees that a breach of this clause may cause the other party irreparable damage for which monetary damages would not be adequate. Accordingly, in addition to other remedies that may be available, a party may seek and obtain injunctive relief against such a threatened breach.
  13. Termination
    1. Termination by notice
      1. Either party may terminate this Agreement by written notice to the other (Termination Notice). Where a Termination Notice is received at least 14 days before the end of the then current:
        1. billing period; or
        2. fixed duration specified in either the Proposal or a Rollover Period (Fixed Duration),
          termination will take effect at the end of that billing period or the expiration of that Fixed Duration, whichever is later. In any other case, termination will take effect at the end of the subsequent billing period or Fixed Duration, whichever is later.
      2. We will provide you with at least 14 days’ notice before the last date by which you must provide a Termination Notice in order to prevent the Agreement continuing for a Rollover Period.
    2. Termination for breach
      Either Party may, without prejudice to its other rights or remedies, terminate this Agreement with immediate effect by written notice to the other Party, in the event of:

      1. any material breach of the Agreement by the other Party which is not remedied within 30 days after the service on the Party in default of a written Notice specifying the nature of the breach and requiring that the same be remedied; or
      2. the other Party becoming Insolvent.
    3. Effect of Agreement ending
      Upon termination or expiry of this Agreement:

      1. you will be given a reasonable opportunity to download and export all Data. You acknowledge and agree that we will delete your Data six (6) months after the expiration or termination of this Agreement. We will not be liable to you or your Authorised Users in any way where you have failed to obtain your Data before it is deleted;
      2. you must pay all outstanding Fees, and other charges due to us under this Agreement up to the date of termination;
      3. each party must destroy the other parties Confidential Information received under this Agreement and certify such destruction in writing; and
      4. any accrued rights or liabilities of either Party or any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination will not be affected.
    4. Notwithstanding any legal rights under Australian Consumer Law, no refunds will be provided for any unused portion of subscriptions in the event of termination by the customer. The customer acknowledges and agrees to waive any entitlement to refunds for unused subscription periods.
  14. Indemnity and liability
    1. Your indemnity
      You agree to indemnify us and to keep us indemnified against any Loss that may be incurred by us arising from or in connection with (directly or indirectly):

      1. any breach or default by you, your Authorised Users or your Representatives of this Agreement (including any breach of warranty);
      2. any breach by you, your Authorised Users or your Representatives of any Third Party Licence;
      3. a negligent act or omission by you, your Authorised Users or your Representatives;
      4. your failure to comply with any Law; and
      5. the failure of your Authorised Users or your Representatives to comply with any Law.
    2. Our indemnity
      1. Subject to sub clause (b), we will indemnify you with respect to any Loss suffered as a result of any Claim made against you by a third party alleging that the Platform, Services or Templates infringe the Intellectual Property Rights of that third party.
      2. We will not be liable to you under sub clause (a) if:
        1. you do not notify us of the other person’s Claim within 10 Business Days after becoming aware of it;
        2. our ability to defend the claim has been prejudiced by the your non-compliance with any of your obligations under this Agreement;
        3. you do not give us reasonable assistance (based on the circumstances) in defending the Claim; or
        4. you do not permit us to have control of the defence of the Claim and all related settlement negotiations.
    3. Exclusion of liability
      To the maximum extent permitted by Law, we will not be liable for any Consequential Loss arising in connection with this Agreement, the delivery of our Services or the use of the Platform by you or any of your Authorised Users even if we were appraised of the likelihood of such loss or damage occurring.
    4. Limit of liability
      1. Except as expressly provided by this Agreement, the Platform is provided on an “as is” basis without any representation, warranty or guarantee as to quality, condition or fitness for purpose and we do not warrant that the Platform will be free of defect, uninterrupted, accurate, complete, current, stable, bug free, error free or available at any time in respect of its operation.
      2. Except in relation to liability for personal injury (including sickness and death), property damage or an infringement of confidentiality or Intellectual Property Rights, our liability in damages (including special, indirect or consequential damages, which damages will be deemed to include loss or revenue, loss or profit and opportunity loss) in respect of any act or omission of us in connection with our obligations under this Agreement will not exceed the net payment received by us from you in the immediately preceding 12 months from when the cause of action arose.
      3. We have no responsibility or liability whatsoever as a consequence of any Loss suffered by you as result of:
        1. any Data being lost, destroyed or damaged by the Platform or a third party provider of cloud based storage or hosting; or
        2. any third party software malfunctions or malfunctions in the Platform caused as a result of interference by a third party.
    5. Exclusion of other Terms
      1. Subject to sub-clause (b), any condition, guarantee or warranty which would otherwise be implied in this Agreement is hereby excluded.
      2. Liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by ss 51 to 53 of the Australian Consumer Law) is limited (at our election) to us providing the Services again (including providing the Service deliverables or Template/s again) or the payment of the cost of having the Services or Template/s supplied again.
    6. Survival
      The provisions of this clause 12 survive the termination of this Agreement.
  15. Notices
    Any notices given under or in connection with this Agreement:

    1. must be in legible writing and in English;
    2. must be either:
      1. addressed to a party’s contact address as specified in this Agreement or as otherwise notified by a party to the other party from time to time; or
      2. in our case, sent to the:
        (A) Authorised Representative’s contact address you have provided; or
        (B) Authorised Representative by internal mail or notification within the Platform;
    3. must be:
      1. delivered to that party’s address;
      2. sent by pre-paid mail to that party’s address;
      3. issued via the Platform to the Authorised Representative; or
      4. sent by email to that party’s email address;
    4. will be deemed to be received by the addressee:
      1. if delivered by hand, at the time of delivery;
      2. if sent by post, on the third Business Day after the day on which it is posted, the first Business Day being the day of posting;
      3. if sent by email, at the time that would be the time of receipt under the Electronic Transactions Act 1999 (Cth); or
      4. if sent via the Platform at the time it is sent.
  16. Disputes
    1. If a dispute (Dispute) arises between some or all parties to this agreement (Participants), or that arises out of or in connection with this Agreement (including any dispute as to the validity of this Agreement) which they cannot resolve, then the parties agree that before any court or arbitration proceedings (other than urgent interlocutory relief) commence with respect to the Dispute, the following steps must be taken to attempt to resolve the Dispute.
    2. A party claiming that a Dispute has arisen, must deliver to the Participants a notice containing the particulars of the Dispute (Dispute Notice).
    3. During the period of 10 Business Days after deliver of the Dispute Notice, or any longer period as agreed in writing by the Participants (Initial Period), the Participants must use their reasonable endeavours and act in good faith in attempt to resolve their Dispute.
    4. If the Parties cannot resolve the Dispute within the Initial Period then, unless agreed otherwise, the Participants must refer the Dispute to the Resolution Institute for the facilitation of a mediation according to the Resolution Institute’s Mediation Rules.
    5. If within 10 Business Days after the referral of the Dispute to the Resolution Institute the Participants have not agreed upon the mediator or any other relevant particular, the mediator and the particular not agreed will be determined in accordance with the Resolution Institute’s Facilitation Rules.
    6. All Participants must participate in the mediation in good faith and cooperate with the Resolution Institute as a facilitator.
  17. Standard Provisions
    1. Force majeure
      1. Neither party is liable for any breach of its obligations under this document to the extent that the breach resulted from any event that is outside the reasonable control of the affected party and could not have been prevented by that party taking reasonable steps or overcome by the exercise of reasonable diligence and at a reasonable cost (including lack of supply, industrial action, fire, riot, war, embargo, civil commotion for act of God) provided that the affected party:
        1. promptly notifies the other party of the event (with appropriate details); and
        2. takes all reasonable steps to work around or reduce the effects of the event.
      2. Notwithstanding any other provision of this Agreement, if any event, matter or circumstance occurs, including but not limited to introduction of legislation by any level of government unless that legislation specifically states that the legislation cannot be contracted out of, in connection with the Coronavirus (Covid-19) and/or any other epidemic, pandemic or outbreak of infectious disease or any derivative, mutation or strain of such viruses, or the threat or perceived threat of any of these, then the party affected cannot terminate or delay requirement in this Agreement, nor shall they be entitled to reduced payments and or abatement of payments required pursuant to this Agreement due to the event, matter or circumstance. This Agreement is not void or voidable due to that event, matter or circumstance nor should a term be implied into this Agreement due to that event, matter or circumstance. Covid–19 and any other epidemic, pandemic or outbreak of infectious disease or any derivative, mutation or strain of such viruses, or the threat or perceived threat of any of these is not a Force Majeure Event under this Agreement.
    2. Assignment
      1. Except as contemplated in 17.2(b) neither party may assign, novate or otherwise transfer any of its rights or obligations under this Agreement without first obtaining the written consent of the other party (which must not be unreasonably withheld).
      2. (b) Notwithstanding clause 17.2(a) you hereby consent to us assigning, novating or otherwise transferring our rights under this Agreement, where it becomes necessary or desirable for us to do so:
        1. in connection with a genuine corporate restructure or reconstruction of Keyword Intent Pty Ltd ACN 138 544 555 or its Related Bodies Corporate; or
        2. in connection with a bona fide sale of our business, our Platform or any part thereof.
    3. GST
      1. Unless otherwise expressly stated, all amounts stated to be payable under this Agreement are exclusive of goods and services tax (GST). If GST is imposed on any supply made under or in accordance with this Agreement, then the GST payable must be paid to the supplier as an additional amount by the recipient of the supply, provided the supplier provides a tax invoice in respect of the taxable supply.
      2. If a party is entitled to be reimbursed or receive compensation for any of its costs, expenses or liabilities then the amount to be paid is to be reduced by the input tax credits to which that party is entitled to receive in relation to those amounts.
    4. General
      1. This document may only be varied by a further written agreement signed by or on behalf of each parties.
      2. Each person who executes this document on behalf of a party under a power of attorney declares that he is not aware of any fact or circumstance that might affect his authority to do so under that power of attorney.
      3. Unless this document expressly states otherwise, a party may in its absolute discretion, give conditionally or unconditionally or withhold, any consent under this document. To be effective any consent under this document must be in writing.
      4. This document is binding on the parties on the exchange of executed counterparts. A copy of an original executed counterpart sent by facsimile or by email must be treated as an original counterpart, is sufficient evidence of the execution of the original and may be produced in evidence for all purposes in place of the original.
      5. This document contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect.
      6. Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this document.
      7. This document is governed by the law in force in the Jurisdiction and each party submits to the non-exclusive jurisdiction of the courts of the Jurisdiction, in relation to any proceedings that may be brought at any time relating to this document. Each party irrevocably waives any objection to proceedings being commenced in the Jurisdiction.
      8. Where a party is a party in more than one capacity, it is only necessary that the party execute and deliver this document once. The initial execution and delivery will bind the party in all capacities.
      9. No right or obligation of any party will merge on completion of any transaction contemplated by this document. Any indemnity given in this document survives the expiry or termination of this document and a party may enforce a right of indemnity at any time, including before it has suffered loss.
      10. Any provision of this document that is illegal, void or unenforceable will be severed without prejudice to the balance of the provisions of this document which remain in force.
      11. Time is of the essence in respect of each party’s obligations under this document.
      12. If a party enters into this document as a trustee of a trust, it warrants that it enters into this document as sole trustee of the trust and it has full power under the relevant trust deed to enter into and perform this document.
      13. The non-exercise of or delay in exercising a right of a party will not operate as a waiver of that right, nor does a single exercise of a right preclude another exercise of it or the exercise of other rights. A right may only be waived by written notice signed by the party to be bound by the waiver.
  18. Definitions and Interpretation
    1. Definitions
      In this Agreement:Acceptance Date means the earlier of:

      1. the date you confirm your acceptance of our Proposal (electronically or in writing); and
      2. the date we provide you with Access.

      Access has the meaning set out in sub clause 4.1(a).

      Account Establishment has the meaning given in sub clause 6.1(a).

      Account Establishment Data is criteria added to procedures including roles, tasks, acceptance, revision reminders, restriction/access rights and user details.

      Account Type means the category of account you have as detailed in the Proposal or where no Proposal is provided a Casual Account.

      Activity Data means usage data, checklist instance usage data (steps ticked, comments added, files attached, collaborators added), procedure acceptance, task completion, procedure review history data and any other relevant log information captured by the Platform from time to time.

      Admin Fee means a fee payable by you as a consequence of a late payment which is calculated based on the reasonable costs incurred by us relating to recovery.

      Agreement means this document, the Proposal (if applicable) and includes any annexures, schedules and appendixes to them.
      Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

      Authorised Representative means the suitably qualified, authorised and informed representative that has been nominated to act on your behalf with respect to this Agreement.

      Authorised Users means any user of the Platform that you have authorised in accordance with this Agreement.

      Business Day means a day on which banks are open for business excluding Saturdays, Sundays and public holidays in Brisbane, Australia.

      Claim includes a demand, claim, action, dispute or proceeding made or brought by or against the person, however arising and whether present, unascertained, immediate, future or contingent.

      Content Data means procedure or policy content and attachments, images, position descriptions and checklists.

      Confidential Information means information that is by its nature confidential and is designated by a party as confidential or a party knows or ought to know is confidential, other than information which is or becomes public knowledge otherwise than by breach of this Agreement or any other confidentiality obligation.

      Consequential Loss means indirect economic loss, loss of income or profit, loss or damages resulting from wasted management time, damage to goodwill or business reputation, loss of contract, loss of data, liability under other agreements or to third parties, loss of opportunity or any other special, indirect, remote or punitive loss or damage.

      Consultancy Services has the same meaning as set out in clause 4.9.

      Copyright Act means the Copyright Act 1968 (Cth).

      Corporations Act means the Corporations Act 2001 (Cth).

      Custom Development has the meaning given in sub-clause 4.7.

      Data means Content Data, Account Establishment Data and Activity Data collectively.

      Default Rate means the compound interest rate of 10% which is taken to accrue on a daily basis.

      Fees mean the fees payable to us for our provision of Access and our rendering of Services, which as at the Agreement Date are equal to an amount specified in the Proposal or published on the Platform.

      Financial Officer means the suitably qualified, authorised and informed representative that you nominate to represent you with respect to your internal financial management.

      Government Agency means any government or any governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity.

      GST means a goods and services tax, or a similar value added tax, levied or imposed under the GST Law.

      GST Law has the meaning given to it in the A New Tax System (Goods and Development Services Tax) Act 1999 (Cth).

      Insolvent means if a person is insolvent or an insolvent under administration, or has a controller appointed (each as defined in the Corporations Act), are in receivership, in receivership and management, in liquidation, in provisional liquidation, under administration, wound up, subject to any arrangement, assignment or composition, protected from creditors under any statute, dissolved (other than to carry out a reconstruction whilst solvent) or otherwise unable to pay debts when they fall due.

      Intellectual Property Rights means all intellectual property rights, including the following rights:

      1. copyright, patents, rights in circuit layouts, trademarks, designs, trade secrets, know how, and any right to have confidential information kept confidential;
      2. any application or right to apply for registration of any of the rights referred to in paragraph (a); and
      3. all rights or a similar nature to any of the rights in paragraphs (a) and (b) which may subsist,

      whether or not such rights are registered or capable of being registered.

      Improvement has the meaning given in sub clause 8.2 and Improve has a corresponding meaning.

      Jurisdiction means Queensland, Australia.

      Law includes any requirement of any statute, rule, regulation, proclamation, ordinance or by-law, present or future, and whether state, federal or otherwise.

      Location Account means an account established by the MMA holder which provides a new user with Access.

      Loss includes any damage, loss, cost, liability or expense of any kind and however arising (including as a result of any Claim) including penalties, fines and interest whether prospective or contingent and any amounts that for the time being are not ascertained or ascertainable.

      Support Materials means written, audio and audio visual content that we have produced to assist you with Access and the utilisation of the Services.

      MMA has the meaning given in clause 10.3.

      Moral Right means moral rights as defined in the Copyright Act 1968 (Cth).

      Multi Account means an Account Type with an MMA and Location Accounts.

      New Services means services offered by us in addition to the Services described in this Agreement (including services which extend, alter, improve or add functionality to the Services).

      Notice means a notice given under or in connection with this Agreement that adheres to the requirements in clause 15.

      Platform means our cloud based software platform through which we provide the Services and Templates.

      Process Analyst means the business process management consultants trained in managing information security and providing the Consultancy Services.

      Professional Assistance and Training Package means the 12 one-hour Training sessions delivered in accordance with clause 5.

      Proposal means a statement of supply agreed between the parties.

      Related Body Corporate has the meaning it has in section 9 of the Corporations Act.

      Representative Purpose has the meaning given in clause 11.1.

      Rollover Period means a duration of time equal to the initial billing period specified the Proposal that arises:

      1. at the expiration of the initial billing period; and
      2. again in perpetuity on the expiry of each earlier Rollover Period.

      Services means cloud based standard operating procedure (SOP) management with the following key features:

      1. SOP centralization;
      2. activated checklists;
      3. centralization of job descriptions and policies;
      4. compliance sign off;
      5. centralization of organization charts; and
      6. information sharing and communication.

      Support Services means telephone and online support provided during Business Hours on Business Days to you by us that relate to the operation and function of the Platform and the delivery of the Services.

      Tax means any tax, levy, charge, franchise, impost, duty, fee, rate, deduction, compulsory loan or withholding, which is assessed, levied, imposed or collected by any Government Agency and includes capital gains tax, fringe benefits tax, income tax, value added tax, GST, sales or use tax, training guarantee levy, profits tax, undistributed profits tax, payroll or employment tax, group tax, PAYG or PAYE withholding tax, land tax, import or customs duty, excise, municipal rates, and any interest, fine, penalty, charge, fee or any other amount imposed on or in respect of any of the above.

      Tax Invoice means an invoice issued by us for payments required under this Agreement.

      Third Party Licence means the terms on which a third-party has made available a feature, program or service to you, whether through the Platform or otherwise (insofar as it relates to our delivery of our Services under this Agreement), that you must comply with and abide by when using the Platform and accessing our Services.

      Term has the meaning given in clause 2.

      Templates mean base documentation that we have prepared and made available for you to purchase within the Platform enabling you to effectively utilise the Services.

      Training means the training, feedback and guidance provided by the Process Analysts in response to your demonstrated usage of the Platform and Services.

    2. Interpretation
      In interpreting this Agreement, unless the context provides otherwise:

      1. the singular includes the plural and vice versa, and a gender includes other genders;
      2. another grammatical form of a defined word or expression has a corresponding meaning;
      3. a reference to a party means a party to this document and includes the party’s executors, administrators, successors and permitted assigns;
      4. a reference to a person includes a firm, individual, corporation, association, government body or other corporate body;
      5. an obligation or liability assumed by two or more persons binds them jointly and severally and a right conferred on two or more persons benefits them jointly and severally;
      6. a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this document or any part of it;
      7. if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day;
      8. a reference to a law or statute includes regulations under it, reenactments and replacements; and
      9. headings and table of contents are for ease of reference only and do not affect interpretation.
    3. Parties
      1. If a party comprises 2 or more persons, a reference to that party includes each and any 2 or more of them, and this Agreement binds each of them separately and any 2 or more of them jointly.
      2. A party that is a trustee is bound both personally and in its capacity as a trustee.
      3. The relationship between the parties is an independent contracting relationship.
      4. Nothing in these Terms will be construed as creating a partnership or any other relationship between the Parties, or provide any exclusivity in the relationship between the Parties or the provision of the Services.

Schedule 1: GDPR Terms

These GDPR Terms apply where the GDPR is applicable and are incorporated by reference into the Agreement. To the extent these GDPR Terms conflict with any other provisions of the Agreement, these GDPR Terms are to prevail.

  1. DefinitionsController has the meaning given in the GDPR.Data Subject has the meaning given in the GDPR.Data Protection Laws means all laws and regulations, including laws and regulations of the European Union (EU), the European Economic Area (EEA) and their member states, Switzerland and the United Kingdom, applicable to the Processing of Personal Data under the Agreement including the GDPR.DP Losses means all liabilities, including:
    a. costs (including legal costs);
    b. claims, demands, actions, settlements, charges, procedures, expenses, losses and damages (whether material or non-material, and including for emotional distress);
    c. to the extent permitted by applicable law:
    (i) administrative fines, penalties, sanctions, liabilities or other remedies imposed by a data protection authority or any other relevant Regulatory Authority;
    (ii) compensation to a Data Subject ordered by a data protection authority to be paid by Processor;
    (iii) the costs of compliance with investigations by a data protection authority or any other relevant Regulatory Authority.GDPR means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the Processing of personal data and on the free movement of such data.Personal Data means any information relating to an identified or identifiable natural person as defined in the GDPR that is Processed by a Processor as part of providing the services to a Controller under the Agreement.Personal Data Breach has the meaning given in the GDPR.Process has the meaning given in the GDPR.

    Processor has the meaning given in the GDPR.

  2. Scope of contract and Distribution of Responsibilities
    a. The parties agree that, for Processing Personal Data, you are a Controller and we are a Processor.
    b. We must Process Personal Data relating to the Agreement only on your behalf and in accordance with these GDPR Terms.
    c. Each party is responsible for complying with their own respective obligations as a Controller and a Processor under the Data Protection Laws.
  3. Processing Instructions
    a. We will process Personal Data in accordance with your instructions. These GDPR Terms contain your initial instructions to us.
    b. You may communicate any change in your initial instructions to us by way of written notification. We must abide by such instructions following receipt.
    c. For the avoidance of doubt, any instructions that would lead to processing outside the scope of the Agreement (e.g. because a new Processing purpose is introduced) will require a new prior written agreement between the parties.
    d. Where instructed by you, we must correct, delete or block Personal Data.
    e. We must promptly inform you in writing if, in our opinion, your instructions infringe Data Protection Laws, along with an explanation of our basis.
    f. We will not be liable for any DP Losses arising from or in connection with any processing made in accordance with your instructions.
  4. Processor Personnel
    We will restrict our Personnel from Processing Personal Data without authorisation. We will impose appropriate contractual obligations upon our Personnel, including relevant obligations regarding confidentiality, data protection and data security.
  5. Disclosure to Third Parties; Data Subjects Rights
    a. We will not disclose Personal Data to any third party (including any government agency, court, or law enforcement) except in accordance with this Agreement, with your written consent or as necessary to comply with applicable mandatory laws.
    b. If we are obliged to disclose Personal Data to a law enforcement agency or third party, we agrees to give you reasonable notice of the request prior to granting access, to allow you to seek a protective order or other appropriate remedies. If such notice is unenforceable, we will take reasonable measures to protect the Personal Data from undue disclosure as if it were our own Confidential Information being requested and will inform you promptly if and when the notice becomes enforceable.
    c. If you receive any request or communication from Data Subjects which relates to the Processing of Personal Data (Request), we must provide you with full cooperation, information and assistance (Assistance) in relation to any such Request.
    d. Where we receive a Request, we must:
    (i) not directly respond to such Request;
    (ii) forward the request to you within 3 Business Days of identifying the Request as being related to you; and
    (iii) provide you with Assistance.
  6. Technical and Organisational Measures (“TOMs”)
    a. We must implement and maintain appropriate technical and organisational security measures to ensure that Personal Data is Processed according to these GDPR Terms, to provide Assistance and to protect Personal Data against a Personal Data Breach.
    b. We will document the implemented TOMs and must provide you with such documentation upon request including information about our Certifications and any audits that occur in respect of our Certification.
  7. Assistance with Data Protection Impact Assessment
    Where a Data Protection Impact Assessment (DPIA) is required under applicable Data Protection Laws for the Processing of Personal Data, we will provide you with reasonable cooperation and assistance enabling you to fulfill your obligation to carry out a DPIA as it relates to your receipt of the Services.
  8. Information Rights and Audit
    We will upon your written request:
    a. make such information as is necessary to demonstrate our compliance with our obligations under the Data Protection Laws available to you.
    b. make available information relating to the audits of our Certifications.
  9. Data Incident Management and Notification
    In respect of a Personal Data Breach that involves us or our Personnel, we must:
    a. notify you of the breach without undue delay (but in no event later than 72 hours after becoming aware of the incident);
    b. make reasonable efforts to identify the cause of such incident and take steps we deem necessary and reasonable to remediate the cause of the incident to the extent that it is within our reasonable control; and
    c. provide reasonable information, cooperation and assistance to you in relation to any action to be taken in response to a Personal Data Breach under Data Protection Laws, including regarding any communication of the Personal Data Breach to Data Subjects and national data protection authorities.
  10. Subprocessing
    a. You consent to our engagement of the following third party subprocessors to process Personal Data we receive under the Agreement for the purposes of fulfilling our obligations under the Agreement:
    (i) Microsoft Australia;
    (ii) Google, Inc.;
    (iii) Zendesk, Inc.;
    (iv) Capsule CRM, Inc.;
    (v) Peaberry Software, Inc.;
    (vi) Campaign Monitor Pty Ltd;
    (vii) Stripe, Inc.;
    (viii) Web Active Corporation Pty Ltd; and
    (ix) Zoom Video Communications, Inc.b. We will provide you with at least fifteen (15) days’ notice, prior to the appointment or replacement of any subprocessor. You may object to the appointment or replacement of a subprocessor prior to its appointment or replacement, provided such objection is based on reasonable grounds relating to data protection. In such event, we will either not appoint or replace the subprocessor or, if that is not possible, you may suspend or terminate the Agreement and receive a pro rata refund of fees paid under the Agreement for the unexpired portion of the Term.c. We must ensure that we have carefully selected our subprocessor with particular regard for the suitability of the subcontractor’s TOMs. We have entered a written agreement with each Sub-processor containing data protection obligations on the Sub-processor equivalent to those in these GDPR Terms and the Agreement.d. Where the subcontractor fails to fulfil its data protection obligations under the subcontracting agreement, we remain fully liable to you for the fulfilment of our obligations under these GDPR Terms.

Schedule 2: CCPA Terms

These CCPA Terms apply where the CCPA is applicable and are incorporated by reference into the Agreement. To the extent these CCPA Terms conflict with any other provisions of the Agreement, these CCPA Terms are to prevail.

  1. Definitions.
    In these CCPA Terms:
    Personal Information and Service Provider have the meanings given in the CCPA.
  2. Personal Information Usage Restriction: Business Purposes
    Except as otherwise expressly provided in the Agreement, we must not collect, retain, process, disclose, or otherwise use Personal Information collected from your digital marketing touchpoints for any reason other than fulfilling our express obligations to you under this Agreement.
  3. 3. Third-Party Service Providers
    We may disclose Personal Information collected from your digital marketing touchpoints to third-party Service Providers in connection with the fulfillment of our obligations under this Agreement, provided that the disclosure is subject to a written agreement between us and the relevant third-party Service Provider that imposes terms with respect to the treatment of the personal information that are equivalent to those contained in this Agreement. Any such disclosure will be considered a disclosure for a business purpose.
  4. Compliance
    We may disclose Personal Information collected by your digital marketing touchpoints where necessary to:
    a. comply with any Law;
    b. comply with a valid civil, criminal, or regulatory inquiry, investigation, subpoena, or summons by federal, state, or local authorities compelling us to disclose;
    c. cooperate with any Government Authority concerning conduct or activity that we reasonably and in good faith believes may violate any Law; or
    d. exercise or defend a Claim.
  5. Consumer Rights Requests
    a. We may disclose Personal Information collected by your digital marketing touchpoints to relevant consumers in response to a consumer rights request made to us under the CCPA.
    b. We agree to assist you in complying with your obligations under the CCPA with regard to answering consumer rights requests by granting access or deleting Personal Information collected by your digital marketing touchpoints that we are in possession or control of, provided that you verify such requests and provides us with a means to find the relevant data (i.e. appropriate subject identifiers).

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