This agreement governing access to and use of the Kesteven Management Documentation web application (the Agreement) is entered between Kesteven and Associates Pty Ltd (ACN 129 375 962) of 10 McKinlay Street Narrabundah ACT 2604 Australia (KAPL) and each individual or entity accepting the terms and conditions of this Agreement (Customer).

This Agreement is legally binding between the parties and of full effect as of the date (the Effective Date) the person reviewing these terms and conditions (you):

• if commencing a trial subscription, check the ‘I accept’ box and click the ‘Commence trial subscription’ button, or
• if commencing or renewing a paid subscription, pay the subscription fee.

If you are accepting these terms and conditions on behalf of your employer or another entity, then, by checking ‘I accept’, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand this Agreement; and (iii) you accept, on behalf of the party that you represent, the terms and conditions of this Agreement.

If you are accepting these terms and conditions on your own behalf, you represent and warrant that (i) you have full legal capacity; (ii) you have read and understand this Agreement; and (iii) you accept the terms and conditions of this Agreement

1 Services

1.1 During the Term, KAPL will provide the Services on the terms and conditions set out in this Agreement and the Customer will receive the Services on the terms and conditions set out in this Agreement.

1.2 The Customer understands and agrees that the Services may include advice and recommendations, but subject to the provisions contained in this Agreement and any rights the Customer may have at law or otherwise, all decisions in connection with the adoption or implementation of such advice and recommendations are the responsibility of, and made by, the Customer. KAPL does not warrant that such advice and recommendations are appropriate in all circumstances and to all organisations, nor that following them will achieve any particular outcome.

1.3 As part of providing the Services, KAPL may use sub-contractors and KAPL may transfer, store and process Material in Australia or in any other country in which KAPL or its sub-contractors maintain facilities. The Customer consents to such sub-contractor and to such use, transfer, processing and storage of Material.

1.4 KAPL may make commercially reasonable changes or technically necessary changes to the Services from time to time. If KAPL intends to make a material change to the Services, KAPL will provide written notice of such change via the Website, by email or by other electronic means.

1.5 KAPL has implemented industry standard systems and procedures to ensure the security and confidentiality of Material, protect against anticipated threats or hazards to the security or integrity of Material and protect against unauthorised access to or use of Material.

1.6 KAPL will use commercially reasonable endeavours to ensure there is sufficient capacity maintained on the hosting server to enable Customer Users to access the Website.

1.7 KAPL may from time to time make available alternative, augmented or new Services components or Services options, the use of which may be made contingent upon the Customer agreeing to varied or supplementary terms and conditions. In the event that the Customer does not agree to such varied or supplementary terms and conditions, the Customer must promptly notify KAPL and this Agreement is deemed terminated.

1.8 The Customer acknowledges that the following are beyond the scope of the Services and that KAPL is in no way obliged to carry them out:

a) repair of damage arising from the act, error, fault, neglect, misuse or omission of the Customer or its servants, agents, contractors or any other person whether or not that person is under the control or direction or authority of the Customer;

b) repair of damage caused by the failure of electrical power, air-conditioning, humidity control or any environmental factor;

c) repair of damage caused by attempted repairs to, maintenance of or tampering with the Services by a person not authorised by KAPL;

d) repair of damage arising from the Customer’s failure to comply with any provision of this Agreement or any reasonable direction by KAPL; and

e) maintenance made more difficult by reason of the Customer’s failure to comply with any provision of this Agreement or any reasonable direction by KAPL.

1.9 Without limitation, KAPL will not be liable to the Customer if the Services are unavailable to the Customer or to Customer Users due to computer or network downtime attributable to malfunction, upgrades, updates or maintenance or to other causes beyond KAPL’s control or causes which are otherwise not reasonably foreseeable by KAPL, including telecommunication or digital transmission failures or as a result of a Force Majeure.

1.10 Without limitation, KAPL will not be liable to the Customer if the Services are unavailable to the Customer or to Customer Users due to any act or omission of any third party.

2 Special Services and Trial Use

2.1 The Customer may request Special Services from KAPL from time to time during the Term by following this procedure:

a) sending KAPL a Request; and

b) accepting the Proposal for that Request.

2.2 The Customer acknowledges that KAPL may decline to provide a Proposal in response to a Request and provides a Proposal at its own sole discretion. For example, KAPL may elect not to issue a Proposal in circumstances where KAPL has a conflict of interest, where KAPL believes that there may be Intellectual Property issues or where KAPL does not believe it has sufficient resources to meet the Customer’s requirements.

2.3 Each Proposal remains open for acceptance for a period of 14 days from the date of issue of that Proposal.

2.4 Except to the extent expressly provided otherwise in a Proposal, the provision of Special Services will be governed by the terms and conditions of this Agreement.

2.5 Notwithstanding any other provision of this Agreement, where the Customer has elected for trial use of the Services, the following terms and conditions apply:

a) in relation to such trial use, the Term is one month from the Effective Date (Trial Term);

b) in relation to such trial use, no fees or charges of any kind will be charged by KAPL;

c) if at the end of the Trial Term, the Customer elects to subscribe to Services then the date of such election becomes the Effective Date, the Agreement will continue for the Services Term and Term in Clause 4, fees become payable in accordance with Clause 5 and trial Customer Material will be deleted or retained as directed by the Customer;

d) if at the end of the Trial Tern, the Customer declines to subscribe to the Services then the Customer may no longer have access to or use the Services, all trial Customer Material will be deleted and this Agreement will be deemed terminated.

3 Customer Material obligations

3.1 In addition to any other obligations set out in this Agreement, the Customer is solely responsible for Customer Material together with any other associated material and information to be held or used by KAPL or its sub-contractors as part of the Services.

3.2 The Customer warrants and represents on an ongoing basis that Customer Material together with any other associated material and information to be held or use by KAPL or its sub-contractors as part of the Services will not, at any time:

a) infringe the Intellectual Property Rights of any person;

b) contain material which is offensive, upsetting, defamatory, personally offensive; impersonates or invades the privacy of another person;

c) be used for any purpose or activity of an illegal, fraudulent or defamatory nature;

d) encourage a violation of any law or regulation, including but not limited to the sale of illegal goods or the vilification of minority groups;

e) involve the display, sale, distribution or creation of any pornographic, obscene or otherwise offensive goods, services, material or ideas or promote violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;

f) provide mirroring service for other websites; or

g) be used for trolling, mailbombing, IRC bots, game emulators or the transmission of “junk mail,” “spam,” the unsolicited mass distribution of e-mail or any unethical marketing practices.

3.3 The Customer acknowledges and agrees that KAPL has the right, at its sole discretion, to suspend the accessibility of the Website and to exclude or remove from the Website any Material where there is a breach of Clause 3.2 or for any of the following reasons:

a) where the Customer becomes the subject of a formal complaint or investigation;

b) where the Customer’s acts or omissions may, in the reasonable opinion of KAPL, expose KAPL to civil or criminal liability or public ridicule; or

c) where KAPL receives a notice from a relevant authority directing KAPL to remove the Website from KAPL’s hosting servers,

provided that such right will not place an obligation on KAPL to monitor or exert editorial control over the Website, and does not displace the Customer’s primary responsibility to do so.

3.4 The Customer warrants, represents and covenants on an ongoing basis that:

a) it will satisfy all obligations in this Agreement;

b) it owns or is licensed to use Customer Material or otherwise have the right to place the content on the Website;

c) it will conduct such tests and computer virus scanning as may be necessary to ensure all Customer uploaded by the Customer onto, or downloaded by the Customer from, KAPL’s host server does not contain any computer virus and will not in any way corrupt or otherwise interfere with the data or systems of another person;

d) Customer Material will not infringe any rights in any person’s Personal Information;

e) it is solely responsible for dealing with persons that access the Customer’s data and content, and must not refer complaints or enquiries in relation to the Customer’s data and content to KAPL; and

f) it will keep secure any password used to access servers, the Website or any control panel relating to the Services.

4 Term of this Agreement

4.1 This Agreement will remain in effect for the Term.

4.2 KAPL will provide the Services to the Customer during the Services Term. Unless the parties agree otherwise in writing, additional Services options or components subscribed for during a Services Term will have a pro-rated term ending on the last day of that Services Term.

4.3 At the end of each Services Term, the Customer’s subscription for the Services current at the end of the relevant Services Term will automatically be renewed for an additional Services Term of 12 months unless the Customer has given at least 30 days’ prior written notice of subscription cancellation.

5 Fees and invoices

5.1 The Customer must compensate KAPL for the Services by subscription in the amount set out on the Website as at the Effective Date in respect of use and access for one year from the Effective Date and, if the Customer does not duly cancel its subscription, in the amount set out on the Website as at the Renewal Date (for convenience, the Annual Subscription Fee).

5.2 The Annual Subscription Fee will comprise a number of discrete sums relating to options or components which the Customer may elect to take or decline within the Services (for convenience, Fee Components). The Customer acknowledges that the Services will only be made available to the extent of due payment in respect of each of the relevant Fee Components.

5.3 KAPL is entitled to change the Annual Subscription Fee and/or the Fee Components set out on the Website provided KAPL has given at least 30 days’ written prior notice of the change via the Website, by email or by other electronic means.

5.4 KAPL is entitled to charge, and the Customer must pay, separate fees for Special Services as agreed between the parties, or in the absence of such agreement, calculated on a time and materials basis in accordance with the standard KAPL rates applying at the time.

5.5 The Fee Components and the Annual Subscription Fee are exclusive of GST. Any fees payable for Special Services will specified as inclusive or exclusive of GST in accordance with the corresponding Proposal.

5.6 All fees payable to KAPL under or in relation to this Agreement are in Australian dollars unless otherwise expressly agreed in writing between KAPL and the Customer.

5.7 All fees payable to KAPL under or in relation to this Agreement are payable in such form as directed in writing by KAPL from time to time (whether via the Website or otherwise) to such accounts as KAPL nominates in writing from time to time (whether via the Website or otherwise).

5.8 Each party to this Agreement receiving a taxable supply for the purposes of GST Law must pay any goods and services tax imposed on that supply.

5.9 Each party to this Agreement will issue valid tax invoices in accordance with its obligations pursuant to GST Law.

6 Grant of Licence

6.1 Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other’s Materials or any of the other’s Intellectual Property Rights. As between the parties, for the avoidance of doubt, the Customer owns all Intellectual Property Rights in Customer Material and KAPL owns all Intellectual Property Rights in the Services and Special Services.

6.2 In consideration of payment of the Annual Subscription Fee and subject to the provisions of this Agreement, KAPL grants a worldwide, non-exclusive licence to the Customer (with a sub-licence to duly authorised Customer Users) during the Term of the KMD Intellectual Property Rights for the purpose of access to and use of the Services and, to the extent relevant, Special Services.

6.3 The Customer will contribute all necessary Customer Material to the Services and Special Services. To the extent that it does so, the Customer grants to KAPL a worldwide, royalty-free, non-exclusive and perpetual licence to use, reproduce, sub-license, disclose, modify and adapt the Customer Material for the purpose of providing the Services and the Special Services.

7 Confidentiality

7.1 To the extent that, in connection with this Agreement, a party comes into possession of any information of a confidential nature of the other party (Confidential Information), each party must only use the Confidential Information of the other party solely for the purposes of this Agreement, and will not disclose such Confidential Information to any third party without the other party’s prior written consent.

7.2 Confidential Information includes but is not limited to the details of the Services, price information of the Services, the terms of this Agreement, information or material proprietary to or deemed to be proprietary to that party, information designated as confidential by that party, information acquired by the other party solely by virtue of provision of the Services and trade secrets of that party.

7.3 Confidential Information excludes any information that:

a) is in or becomes part of the public domain, other than through a breach of this Agreement or an obligation of confidence owed to KAPL; or

b) was known to Customer at the time of disclosure, unless such knowledge arose through breach of an obligation of confidence; or

c) Customer can prove was independently acquired or developed without breaching any of the obligations set out in this Agreement.

8 Acknowledgement and attribution

8.1 The Customer acknowledges KAPL’s right to include, at KAPL’s discretion, the Customer’s name and logo together with details of the Services in any form or medium as part of KAPL’s promotional materials.

9 Compliance with the Privacy Act

9.1 The Customer must comply with privacy laws on Personal Information, even if the Customer is not an organisation bound by the Privacy Act 1988 (Cth) (PA). If the Customer is an exempted entity under the PA, then the Customer will be treated as an entity bound by that PA under section 6EA.

9.2 The Customer warrants and represents that it will secure all necessary consents, waivers, authorisations and permissions from its clients, Customer Users and other third parties in respect of the PA, including all necessary consents, waivers, authorisations and permissions for KAPL to exercise its rights and to carry out its obligations under or in relation to this Agreement.

10 Personal Information

10.1 Each party (in this clause a Disclosing Party) warrants to the other in relation to any Personal Information belonging to another person and that is disclosed by the Disclosing Party to the other party (in this clause a Receiving Party) that:

a) all Personal Information provided to the Receiving Party under, or in connection with the Services contemplated by, this Agreement has been collected strictly in accordance with the Privacy Act;

b) the individual to whom the information relates has been made aware of the Receiving Party’s identity, of how to contact the Receiving Party, and of the other matters of which we are required to inform a person about whom information is collected under the Privacy Act; and

c) the Receiving Party is authorised to collect the information from the Disclosing Party and use the information for the purposes of this Agreement and fulfilling the Services generally.

10.2In relation to any Personal Information that a Disclosing Party discloses to the Receiving Party under this Agreement, the Receiving Party must:

a) not use, disclose, store, transfer, or handle the information except in accordance with the Privacy Act;

b) take all reasonable steps to ensure that the information is protected from misuse, loss, unauthorised access, modification, or disclosure;

c) take all reasonable steps to destroy or permanently de-identify the information when the information is no longer needed for a purpose connected with this Agreement;

d) use or disclose the information only for a purpose connected with this Agreement or as required by law; and

e) cooperate with any reasonable request or direction from the Receiving Party that relates to protecting the information or exercising the functions of the Privacy Commissioner under the Privacy Act.

10.3The Receiving Party must promptly inform Disclosing Party in writing of any complaint the Receiving Party receives concerning the use, disclosure, storage, transfer, or handling of Personal Information provided by the Disclosing Party and comply with any reasonable direction of the Disclosing Party in relation to a complaint concerning the use, disclosure, storage, transfer, or handling of Personal Information provided by the Disclosing Party.

11 Termination

11.1If any of the following things happen, KAPL may give the Customer a written notice terminating this Agreement, with immediate effect:

a) the Customer breaches one or more of its obligations under this Agreement, and then fails to rectify the breach within 14 days of it receiving a notice of the breach;

b) any of the Customer’s warranties in this Agreement is or becomes untrue;

c) the Customer being a company, becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration;

d) the Customer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;

e) the Customer being a natural person, dies; or

f) the Customer ceases or threatens to cease conducting its business in the normal manner.

11.2Without limiting Clause 11.1, either party (a no-defaulting party) may terminate this Agreement with immediate effect by notice to the other party (defaulting party) if the defaulting party breaches a material term of this Agreement that in the reasonable opinion of the non-defaulting party is incapable of being remedied.

11.3 If this Agreement is terminated by KAPL under this Clause 11 then KAPL will stop performing the Services and may, in addition to terminating this Agreement:

a) retain any fees paid;

b) be regarded as discharged from any further obligations under this Agreement;

c) pursue any additional or alternative remedies provided by law;

d) the Customer must pay KAPL the fees that are, on the date of termination, due and payable under this Agreement; and

e) the Customer must indemnify KAPL in relation to its unavoidable and unrecoverable costs directly arising from the termination.

11.4KAPL may suspend or cancel provision of the Services or the Special Services at any time without notice if its business is discontinued, disrupted or transferred. If KAPL cancels the Services or the Special Services, and KAPL has not completed the Services or Special Services the Customer has already paid for, KAPL will refund any fees paid by the Customer for unfinished Services or Special Services, such refund to the Customer is the Customer’s only remedy for cancellation. Subject to payment of any refund owing, KAPL may terminate this Agreement immediately upon cancellation

11.5 The obligations of the Customer which have been incurred prior to the effective date of termination, including all payment obligations, will continue in full force and effect notwithstanding the expiration or termination of this Agreement and whether or not an invoice has been rendered.

12 Materials after termination or expiry

12.1 Upon termination or expiry of this Agreement, the Customer will promptly return, delete or destroy (each upon KAPL’s written directions) all Materials and other property of (or licensed to) KAPL then held by the Customer.

12.2 Upon termination or expiry of this Agreement, unless the Customer has agreed tor supply of Special Services relating to return of Customer Materials, KAPL will delete or destroy all Customer Materials in its possession.

12.3 The Customer acknowledges that it may make any such copies of Customer Materials stored on the Website as it wishes at any time prior to termination or expiry of this Agreement and that, if the Customer wishes to have access to such Customer Materials, it is solely responsible for making such copies from time to time and at its own cost.

13 Dispute resolution

13.1 Before resorting to external dispute resolution mechanisms, a party must notify the other that a dispute has arisen in connection with this Agreement, including any claims it may have against the other party.

13.2 On receipt of a notice of dispute under this Clause 13, the parties must attempt to resolve the dispute in good faith by each party’s CEO or MD attempting to resolve the dispute for five business days.

13.3 If a dispute is not settled by the parties within 14 days of notice of a dispute, the parties may pursue other forms of dispute resolution.

13.4 Nothing in this Clause 13 prevents either party from seeking urgent injunctive relief.

14 Limitation on damages

14.1 KAPL, its agents and subcontractors, and each of their officers, or employees will not be liable to the Customer for any actions, claims, damages, liabilities, costs, expenses, or losses in any way arising (including a breach of this Agreement or any negligent act or omission) out of or relating to the provision of any Services to the Customer.

14.2 In no event will KAPL, its agents or subcontractors, or any of their officers or employees be liable for special, indirect, incidental, consequential or punitive damages, costs, expenses or losses of any nature, including, without limitation, lost profits and opportunity costs.

15 Limitation on Warranties

15.1 KAPL will perform the Services and Special Services with due care and skill.

15.2 KAPL disclaims all other warranties, either express or implied, including without limitation warranties of merchantability and fitness for a particular purpose. Where any applicable legislation implies into this Agreement any condition or warranty and that legislation voids or prohibits conditions in a contract excluding the application of the conditional warranty, the liability of KAPL for any breach of the condition or warranty is limited to, at KAPL’s option either:

a) the resupply of the Services; or

b) the reasonable cost of having the Services resupplied.

15.3 Both parties will be under a duty to mitigate any damages or loss suffered or incurred as a result of any breach of this Agreement by the other party.

16 Customer Cooperation

16.1 In addition to the Customer’s obligations as set out in this Agreement, the Customer will generally cooperate with KAPL in the performance of the Services and the Special Services, including, without limitation, providing KAPL with timely access to the facilities, hardware, software, data or information of the Customer.

17 Indemnity

17.1 The Customer continuously indemnifies KAPL and its officers, employees, representatives and agents (those indemnified) from all liability for any claims, losses, damages or expenses suffered or incurred by those indemnified arising from or in connection with:

a) a breach of this Agreement by the Customer (or any of its officers, employees, contractors or agents);

b) any warranty given by the Customer being, or subsequently becoming, untrue; and

c) any negligent act or omission by the Customer or any of its officers, employees, contractors or agents.

17.2Where this clause refers to a person who is not a party to this Agreement KAPL holds the benefit of this clause on trust for that person.

18 Limitation on actions

18.1 No action, regardless of form, arising under or relating to this Agreement, may be brought by either party more than one year after the cause of action has accrued, except that an action for non-payment of any invoice may be brought by a party not later than one year following the date of the last payment due to such party of any invoice under this Agreement.

19 Other terms

19.1 Variations. Except to the extent expressly provided otherwise in this Agreement, this Agreement may only be varied by the written agreement of the parties.

19.2 Assignment. Customer may not assign or novate this Agreement without the written consent of KAPL. KAPL may assign or novate this Agreement at any time and for any reason.

19.3 Entire agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all other oral or written representations, understandings or agreements (including such things made by or with any third parties) relating to the subject matter.

19.4 Governing law. This agreement takes effect, is governed by and will be construed in accordance with the laws of the Australian Capital Territory.

19.5 Notices. Notices under this Agreement must be in writing and may be delivered by hand, by registered mail, or by email to

a) for KAPL, the postal or email address shown on the website, or

b) For the Customer, the postal or email address provided when the subscription is requested or as subsequently advised to KAPL by the Customer.

Notice will be deemed given: (a) in the case of hand delivery or registered mail, upon written acknowledgement of receipt by an officer or other duly authorised employee, agent or representative of the receiving party; (b) in the case of an email, upon proof of completion of transmission.

19.6 Severability. If any provision of this Agreement is declared or found to be illegal, unenforceable or void, then such provision will be null and void but each other provision not so affected will be enforced to the full extent permitted by applicable law.

19.7 Survival. All clauses in this Agreement relating to payment, licence and ownership, confidentiality, privacy, warranties, limitations of warranties, limitations on damages and actions, non-exclusivity and waiver will survive the termination or expiry of this Agreement, to the extent allowed at law.

20 Definitions

In this Agreement:

Clause means any clause, sub-clause or further subdivision of this Agreement.

Customer Material means any Material used by or on behalf of the Customer in connection with the Services or the Special Services, including any Material provided to KAPL or its sub-contractors by or on behalf of the Customer in connection with the Services or the Special Services.

Customer User means any User authorised by the Customer.

Force Majeure means any circumstances or causes beyond a party’s reasonable control, including, without limitation, telecommunication or digital transmission failures, fire or other casualty, act of God, strike or labour dispute, war or other violence, or any law, order or requirement of any governmental agency or authority.

GST Law means any A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any related or succeeding legislation relating to goods and sales taxes.

Intellectual Property Rights means:

1. any copyright (including any neighbouring rights), trade marks (whether registered or unregistered), trade secrets, service marks, designs, drawings, patents, secret processes, business or domain names, or other similar proprietary right and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields; and

2. any rights to the registration of those rights.

whether created, formed or arising before or after the date of this Agreement in Australia or elsewhere.

Internet means the world wide connection of computer networks providing for the transmittal of electronic mail, on-line information, information retrieval and file transfer protocol.

Initial Services Term means the term commencing on the Effective Date and continuing for 12 months.

KMD means the computer software application and associated template content, guidelines and intellectual property, known as Kesteven Management Documentation.

Material includes documents, reports, data, information, software, tools and methodologies, fonts computer files, designs, graphics, logos, artwork, know-how, templates, methodology, equipment or other material of any sort and in any form.

Order means a request the provision of Special Services made by the Customer to KAPL.

Personal Information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in writing or spoken, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

Proposals are the proposals and quotes that KAPL send to the Customer in response to an Order.

Renewal Date means the date upon which the Customer’s subscription for the Services is renewed.

Services means the provision of KMD by KAPL, including access to and use of the Website.

Services Term means the Initial Services Term and all renewal terms for the Services.

Special Services means services relating to the Services but not forming part of the Services as promoted or provided as at the time of the Request.

Term means the whole term of the Agreement, which will begin on the Effective Date and continue until the earlier of (i) the end of the last Services Term or (ii) the Agreement is terminated as set forth herein.

User means any person who has or may seek access over the Internet to the Website.

Website means the website though which KMD is made available by KAPL.