Business Kitz Software Licence Terms of Use

Please carefully read these Terms and Conditions before engaging with Business Kitz. The Subscriber’s execution of these Terms and Conditions via this Clickwrap evidences the Subscriber’s consent to be governed by these Terms and Conditions, and it is the Subscriber’s responsibility to ensure that any of the Subscriber’s Invited Users are made aware of these Terms and Conditions. If the Subscriber (or Invited User) does not consent to be bound by these Terms and Conditions, the Subscriber (or Invited User) cannot use the Licenced Software. 

Parties: The Subscriber and/or the legal entity the Subscriber is authorised to represent will be referred to throughout these Terms and Conditions as the “Subscriber”. An Invited User is a person other than the Subscriber, who has been invited to use the Licenced Software.

Business Kitz Australia Pty Ltd ACN 648 465 025 will be referred to throughout these Terms and Conditions as “Business Kitz”. 

1. Recitals and grant of the Licence
   1. Business Kitz owns and retains all rights, titles and ownership of the Licenced Software.
   2. Business Kitz grants to the Subscriber a non-transferable, non-exclusive, non-sublicensable licence to utilise the Licenced Software during the Term in accordance with these Terms and Conditions.
   3. When an entity pays the Fees and accepts these Terms and Conditions, they become a Subscriber. A Subscriber is responsible for paying the Fees for the use of the Licenced Software.
   4. The Subscriber acknowledges that all Invited Users are bound by these Terms and Conditions, and it is the Subscriber’s responsibility to ensure that the Subscriber’s employees, agents and other personnel are made aware of and comply with these Terms and Conditions. 
2. Term
   1. The Term set out on the Website will begin on the Agreement Date and will remain ongoing unless the Licenced Software is not renewed or terminated in accordance with these Terms and Conditions.
3. Licenced Software 
   1. Business Kitz will provide the Licenced Software to the Subscriber that is made available online via Business Kitz’ Website and as agreed between Business Kitz and the Subscriber.
   2. To the maximum extent permitted by law, the Licenced Software is provided without guarantee, warranty, or representation as to the accuracy, reliability, or completeness. Business Kitz does not guarantee, warrant, or represent that the Licenced Software will achieve any specific results for the Subscriber’s business such as (including but not limited to) increased sales, revenue increase, complete legal or Fair Work compliance or otherwise.
   3. Any information provided by the Licenced Software is general in nature and cannot be considered as legal, human resource or other professional advice.
   4. Business Kitz will have no obligation for any failure of the Licenced Software to operate substantially if the failure:
      1. is due to a breach by the Subscriber;
      2. is caused by the Subscriber’s negligence, abuse, misapplication, or misuse of the Licenced Software;
      3. relates to or arises from the Subscriber’s own computer equipment or computing environment; or
      4. cannot be remedied using commercially reasonable endeavours. 
   5. The Subscriber shall be responsible for providing and maintaining its own hardware, systems and other technology necessary to perform its obligations pursuant to these Terms and Conditions.
   6. The Subscriber shall, without prejudice to the Subscriber’s rights and Business Kitz’s obligations in these Terms and Conditions, provide Business Kitz with all reasonable assistance to resolve any operational issues with the software, including, but not limited to, providing Business Kitz with sufficient access to and information regarding the Subscriber’s computing environment to enable Business Kitz to resolve any problems or failures to the extent reasonably possible.
   7. The Subscriber understands that the Licenced Software is not accessible offline, and the Subscriber shall remain responsible for being able to access the internet. The Subscriber must ensure that the Subscriber’s computer equipment and any Third-Party software upon which the Licenced Software relies (such as an internet browser) are not malfunctioning in a way that adversely affects the operation of the Licenced Software.
   8. The Subscriber is responsible for all damage and losses arising as a result of Invited Users’ access to and use of the Licenced Software including, without limitation, to the disclosure of Subscriber Data relating to an Invited User. Any breach of this Agreement by any Invited User will be deemed to be a breach of this Agreement by the Subscriber, and the Subscriber will be liable for any direct losses arising.
   9. Business Kitz agrees to notify the Subscriber of any material updates or changes to the Licenced Software. 
4. Updates and amendments to Templates
   1. Business Kitz will make reasonable endeavours to provide updates to aid in the Subscriber’s compliance where there are significant updates to relevant Commonwealth employment laws and regulations. 
   2. Business Kitz will endeavour to amend the Templates with any relevant changes in law as required and determined under clause 4(a).
   3. Business Kitz will endeavour to alert the Subscriber either via email or via the Licenced Software of any changes or amendments made to the Templates or legal updates. It is the Subscribers’ responsibility to frequently view these channels of communication to receive notice of and implement these updates. 
   4. Business Kitz neither guarantees nor warrants that the updates to the Templates are accurate and is not responsible for any inaccuracy of Third-Party sources such as Fair Work.
   5. Business Kitz possesses no liability for any circumstance that occurs from any changes, amendments, or updates to the Templates. The updates provided are not to be taken as legal of professional advice and the Subscriber possesses sole responsibility for any updates provided to them.
   6. At all material times, the Subscriber is responsible for ensuring the Subscriber remains legally compliant with any changing laws of the State or Commonwealth. 
   7. Business Kitz assumes, as far as statute permits, no liability for any legal non-compliance the Subscriber encounters when relying on the Templates and Licenced Software. 
5. Invited Users
   1. The Subscriber acknowledges that use of the Licenced Software is limited to the number of Invited Users that the Subscriber has purchased the Licenced Software for. 
   2. When purchasing the Licenced Software, the Subscriber agrees to disclose the number of Invited Users in the Subscriber’s organisation truthfully and accurately during the sign-up process.
   3. At any time during the Term, the Subscriber is encouraged to onboard additional Invited Users as required. The Subscriber acknowledges that an addition in Invited Users will result in additional fees and costs. 
   4. An Invited User of the Subscriber will have authorisation from Business Kitz to access and utilise the Licenced Software. 
   5. The Subscriber shall not allow any Invited User or Third-Party to, in whole or in part:
      1. alter, adapt, merge, modify, translate, decompile, disassemble, create derivative works from, make a copy of or reverse engineer the Licenced Software, or otherwise attempt to derive the source code or engage in any other activities to obtain underlying information that is not visible in connection with normal use;
      2. publicise or distribute any registration code algorithms, information or registration codes used by the Licenced Software or knowingly take any action that would cause any element of the Licenced Software to be placed in the public domain, except as expressly permitted;
      3. remove any proprietary notices from the Licenced Software;
      4. use or access the Licenced Software to build or commission a product or service that competes with the Licenced Software;
      5. transfer, sublicense, rent, lease, distribute, sell, or grant any rights to commercially exploit the Licenced Software or any IP Rights belonging to Business Kitz; or
      6. violate any applicable laws, statutes, ordinances, rules or regulations or any judicial or administrative orders with regards to the Licenced Software. 
   6. The Subscriber is responsible for all damage and losses arising as a result of the Invited User’s access to and use of the Licenced Software including, without limitation, to the disclosure of Subscriber Data relating to an Invited User. Any breach of these Terms and Conditions by any Invited User will be deemed to be a breach of these Terms and Conditions by the Subscriber, and the Subscriber will be liable for any direct losses arising.
   7. In addition to any other rights Business Kitz may have, Business Kitz may (without liability) remove or disable access by any Invited User that violates the foregoing restrictions. 
6. Suitability 
   1. Although Business Kitz will use its best endeavours to facilitate the Licenced Software  for the Subscriber’s desired purpose, Business Kitz does not guarantee that the Licenced Software is fit for purpose and the Subscriber must conduct appropriate due diligence to ensure that the Licenced Software is appropriate for the Subscriber’s desired goal.
   2. The Subscriber bears complete responsibility in determining the suitability of the Licenced Software for the Subscriber’s particular needs, requirements and the desired result to be obtained.
7. Delays
   1. Business Kitz will use reasonable endeavours to deliver the Licenced Software, however, the Subscriber agrees that Business Kitz will not be liable for any delays as the Subscriber acknowledges that delays are often outside the control of Business Kitz. 
8. Renewal of Licenced Software
   1. The minimum term of these Terms and Conditions shall be for a period of no less than the Term.
   2. At the end of the initial Term and any cumulative Term, the Licence will automatically renew for the same Term. 
   3. Pursuant to clause 8(b) Business Kitz will send the Subscriber a reminder of this auto-renewal 90 days before the end of any Term. 
   4. If the Subscriber does not wish to renew the Licence at the end of the Term, Business Kitz requires the Subscriber to give at least one (1) months’ notice in writing before the End Date of the Term of the Subscriber’s decision to not renew the Licence. 
   5. If the Subscriber does not provide (1) months’ notice of their decision not to renew prior to the End Date, then these Terms and Conditions will auto-renew and will be deemed on-going.
   6. Business Kitz may terminate the Licence prior to the End Date or renewal for any reason.
9. Maintenance and support
   1. The Subscriber understands, acknowledges, and agrees that the Licenced Software is a technology solution that may be extended, enhanced, improved, and that from time to time and Business Kitz may perform software changes and upgrades that may affect the Licenced Software. 
   2. Business Kitz reserves the right to make changes to the Licenced Software from time to time including but not limited to improvements, enhancements, and upgrades.
   3. Business Kitz shall use reasonable endeavours to ensure that the software is available at all times except during times of scheduled maintenance. Business Kitz shall at all times use all reasonable endeavours to keep any service interruptions to a minimum and Business Kitz will attempt to notify any Subscribers in advance of any scheduled maintenance.
   4. Business Kitz will, on a case-by-case basis, provide the Subscriber with free support in relation to the Licenced Software including:
      1. telephone assistance;
      2. support articles available through Business Kitz’s website; 
      3. email support; and
      4. ad hoc support.
   5. Where support is required by the Subscriber, the Subscriber must lodge an enquiry with Business Kitz via email (support@businesskitz.com.au) setting out the issue (“Support Request”).
   6. Business Kitz will have 14 days to respond to a Support Request.
   7. Upon analysis of the Support Request with Business Kitz’s development team and relevant human resource consultants, Business Kitz will determine whether any relevant costs will be applicable to the Subscriber in order to rectify the Support Request.
   8. Business Kitz will act promptly and will put forth its best endeavours to rectify any Support Request as soon as practicable.
   9. Support for the Licenced Software to be provided by Business Kitz under these Terms and Conditions does not include correction of errors of defects:
      1. caused by operation of the Licenced Software in a manner other than that currently specified by Business Kitz or in a manner that is against the Licenced Software’s intended purpose;
      2. resulting from data migration or transformation, whether performed by Business Kitz or third parties, except where errors are directly attributable to actions of Business Kitz; and
      3. caused by modification, revision, variation, translation or alteration of the Licenced Software not authorised by Business Kitz.
   10. The Subscriber shall not engage in any activity that:
       1. attempts to interfere with the proper functioning of the Licenced Software or attempts to disrupt, diminish the quality of, interfere with the performance of, or impair the functionality and security of the Software, including transmitting any Malware; or
       2. accesses, stores, distributes or transmits any Malware, or any material during the course of the Subscriber’s use of the Licenced Software that is illegal or could cause damage or injury to any person or property. Business Kitz reserves the right, without liability or prejudice to its other rights to the Subscriber, to suspend or disable the Subscriber’s access to the Licenced Software where there is evidence that the Subscriber is in breach of the provisions of this clause.
   11. The Subscriber must take commercially reasonable measures to prevent Malware from entering its systems to ensure the security of its systems and its access to and connection with the Licenced Software. The Subscriber represents that the Subscriber either has established or will promptly establish appropriate confidentiality, privacy and security policies and safeguards consistent with data protection legislation, and industry standards, and that the Subscriber will educate Invited Users on these policies and safeguards. 
10. Fees and billing
    1. The Subscriber agrees to pay the Fees as advertised on Business Kitz’ Website for the Licenced Software for the Term. 
    2. By agreeing to these Terms and Conditions, the Subscriber agrees to be billed at the point-of-sale on Business Kitz’ Website at the then-current price for the Licenced Software. 
    3. Business Kitz reserves the right to update or amend the Fees as advertised on the website at any time. Business Kitz acknowledges that changes to the Fees will not apply retrospectively, and Business Kitz will put forth its best endeavours to alert the Subscriber to any changes to the Fees, via the Licenced Software or Business Kitz’ Website. 
    4. The Subscriber authorises Business Kitz to automatically debit, charge against and collect from the Subscriber’s bank account any payments due and payable under these Terms and Conditions as and when they become due and payable. 
    5. If the payment method for the Subscriber’s Business Kitz account is by credit or debit card and payment is not received by Business Kitz from the card issuer or its agents, the Subscriber will have 7 days to contact Business Kitz to rectify this issue.
    6. If the Subscriber does not pay the Fees or other amounts payable under these Terms and Conditions when Fees become due and payable, Business Kitz may do one or more of the following:
       1. suspend and/or terminate the Subscriber’s use of the Licenced Software;
       2. charge interest on all overdue amounts at 2% calculated daily after 7 days from the date at which the Direct Debit was due and compounded monthly until the outstanding amount is paid in full;
       3. engage a debt recovery agent to recover the amounts outstanding;
       4. institute legal proceedings against the Subscriber to recover the amounts outstanding in accordance with these Terms and Conditions; and/or
       5. use or disclose any personal information collected and recorded in relation to the Subscriber to a third party to assist Business Kitz in the process of debt recovery.
    7. All Fees are exclusive of GST, and the applicable amount of GST will be added to the Fees in accordance with the A New Tax System (Goods and Software Tax) Act 1999 (Cth). 
11.  Subscriber Data 
    1. Under these Terms and Conditions, the Subscriber may provide and have stored on Business Kitz’ servers, Subscriber Data. The Subscriber acknowledges and agrees that Subscriber Data may be stored on servers owned by third parties pursuant to arrangements entered into by Business Kitz. 
    2. To the maximum extent permitted by law, the Subscriber and Business Kitz shall share all rights, title and interest in and to all of the Subscriber Data and Invited User Data. The Subscriber shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of its Subscriber Data.
    3. The Subscriber acknowledges that any Subscriber Data may be anonymised, created, and used by Business Kitz as anonymised statistical data. Business Kitz may utilise this anonymised statistical data for its own purposes, including improvement of the Licenced Software. 
    4. Business Kitz shall, in providing the Licence comply with any and all applicable data protection legislation and its Privacy Policy, which is available on Business Kitz’ website. The Subscriber agrees that the Business Kitz Privacy Policy may be amended from time to time without notice being given to the Subscriber.
    5. Business Kitz shall use all reasonable endeavours to ensure that any Subscriber Data is held in a secure environment. The Subscriber acknowledges that no information which is available on the internet is completely secure and agrees that Business Kitz will not be liable for any claim, loss or damage (including indirect or consequential loss or damage) to any extent should such security measures be overcome or breached, and the Subscriber indemnifies Business Kitz in respect of any such claims.
    6. In the event of unauthorised access to personal data (“Data Breach”), Business Kitz acknowledges that the Subscriber will be notified and provided information of the unauthorised access, to the extent possible and applicable by law.
    7. The Subscriber is responsible for maintaining copies of the Subscriber Data entered the Licenced Software. 
12. Intellectual property and assignment
    1. All IP Rights contained in or used by the Licence, including Business Kitz’s Confidential Information, and all other materials provided by Business Kitz and accessible by the Subscriber, aside from Subscriber Data, are and will remain the exclusive property of Business Kitz. 
    2. Business Kitz and the Subscriber acknowledge and agree that:
       1. any and all right, title and interest, including IP Rights, in any Subscriber Data vest in Subscriber upon creation; and
       2. any and all right, title and interest, including IP Rights, in any Business Kitz content vest in Business Kitz upon creation.
    3. The Subscriber grants Business Kitz a non-exclusive and revocable licence to use the Subscriber Data provided by the Subscriber to Business Kitz during the Term and solely for the purpose of, and as necessary for, Business Kitz performing its obligations in accordance with these Terms and Conditions. 
    4. The Subscriber grants Business Kitz an irrevocable, non-exclusive Licence to use its data for the purposes of the Licenced Software, and to enable Business Kitz to fulfil its obligations to Invited Users. 
    5. A party must not engage in any conduct which may challenge, damage or compromise the other party’s IP Rights in that other Party’s materials.
    6. Each Party shall immediately give written notice to the other Party of any actual, threatened or suspected infringement of any Party’s IP Rights of which it becomes aware.
13. Third-Party Materials
    1. The Subscriber and Business Kitz acknowledge and agree that:
       1. nothing in these Terms and Conditions is intended to affect, or affects, the ownership of IP Rights in Third-Party Materials, which will be subject to the terms and conditions applicable to them under agreements between the Third-Party and the Subscriber or Business Kitz, as the case may be; and
       2. unless otherwise expressly authorised by the owner of the IP Rights in the Third-Party Materials:
          1. the authorship of any Third-Party Materials will be acknowledged on any use of those materials; and
          2. the integrity of the Third-Party Materials will be preserved. 
    2. The Subscriber agrees to indemnify Business Kitz and any Indemnified Party against any claim, loss or damage (indirect and consequential loss and damage included) arising in connection with the breach of third-party IP Rights or loss and damage of Third-Party Materials. 
14. Confidential Information
    1. The Subscriber agrees to acknowledge that the Confidential Information of Business Kitz is valuable to Business Kitz. The Subscriber must undertake to keep the Confidential Information of Business Kitz secret and to protect and preserve the confidential nature and secrecy of the Confidential Information of the other party. 
    2. The Subscriber may only use or reproduce the Confidential Information of Business Kitz for the purposes agreed to by the Terms and Conditions.
15.  Security
    1. Business Kitz may introduce security features to make the Licenced Software more secure such as multi-stepped authentication. Depending on where the Subscriber is based, Business Kitz may require the Subscriber to adopt some or all of these features. Where Business Kitz makes the use of security features optional, the Subscriber is responsible for any consequences of not using those features. Business Kitz strongly encourages Subscribers to use all optional security features.
    2. Business Kitz may notify the Subscriber if there appears to be unauthorised access to the Subscriber’s account, however, the Subscriber is responsible to report any unauthorised access detected by the Subscriber. The Subscriber is responsible for ensuring their details to access the Licenced Software are secure.

Business Kitz may restrict access to certain parts of the Licenced Software until the Subscriber verifies that access was by an Invited User.

1. Termination
   1. If in Business Kitz’ reasonable opinion, the Subscriber breaches these Terms and Conditions or if the Subscriber fails to pay the Fees, Business Kitz may terminate these Terms and Conditions upon giving 1 weeks’ prior written notice to the Subscriber.
   2. Subject to clause 10(f) if the Subscriber wishes to terminate these Terms and Conditions prior to the End Date, termination fees may be applicable as set out below:
      1. Cancellation with 18 or more months remaining – 90% of the remaining contract price.
      2. Cancellation with 17 to 12 months remaining – 80% of the remaining contract price. 
      3. Cancellation with 11 to 6 months remaining – 60% of the remaining contract price. 
      4. Cancellation with 5 to 1 month remaining – 30% of the remaining contract price.
   3. All provisions of these Terms and Conditions that by their nature should survive termination shall survive termination, including, without limitation, IP Rights and ownership provisions, express disclaimers, and limitations of liability. 
   4. A party may terminate these Terms and Conditions upon written notice to the other party if any party:
      1. being a company, becomes insolvent or is made subject to an application for winding up or resolves to wind up (other than for the purposes of a solvent reconstruction), or has a receiver (or similar functionary) or an administrator appointed in respect of any of its assets, or ceases to carry on business or enters into a composition or arrangement with its creditors generally; or
      2. commits an act of bankruptcy, has its property seized under any distress or execution, has a trustee in bankruptcy appointed in respect of any of its assets, makes any arrangement or composition with its creditors or fails to contest within two weeks of service any petition for bankruptcy.
   5. The Subscriber is not eligible for a refund where either party terminates these Terms and Conditions in accordance with these Terms and Conditions, unless mutually agreed.
   6. Upon Termination of these Terms and Conditions, the Subscriber is obliged to:
      1. pay the Fees for the full Term up until the date of termination; and
      2. ensure all Invited Users cease use of and (if requested by Business Kitz) immediately destroy all copies of Business Kitz’ Licenced Software. 
   7. Once these Terms and Conditions are terminated by either party, the Subscriber Data created by the Subscriber is no longer available to the Subscriber. Business Kitz retains the data for a period of time compliant with their obligations under the applicable laws, during which a Subscriber may reactivate their account and access the Subscriber Data by paying the required Fees. Business Kitz may retain the Subscriber Data in case the Subscriber requires it for record retention obligations.
2. Express disclaimers
   1.  To the fullest extent permitted by law, including the Competition and Consumer Act 2010 (Cth), Business Kitz does not make any representation, warranty, or endorsement of any kind, whether express or implied, in relation to the content, accuracy, completeness, accessibility, suitability, safety, security, reliability, or any other aspect of the information, or content on Business Kitz’ Website, or within Business Kitz’ Licenced Software and Templates. Business Kitz does not accept liability for any error or omission, injury, expense, loss, or damage incurred by the Subscriber or another party as a result of the Subscriber using or relying upon any information included in the Licenced Software. Nothing within the Licenced Software shall be construed as providing the Subscriber with advice. 
   2. Business Kitz is neither a law firm nor a firm that provides professional advice of any other kind. The Templates are general in nature only, and do not in any way, shape, or form, constitute legal, financial, accounting, or other professional advice. Business Kitz does not represent, warrant, or guarantee our Licenced Software or Templates accuracy, currency or completeness to the maximum extent permitted by law.
   3. The Subscriber should consult with a qualified lawyer, financial advisor, accountant, or other professional in their jurisdiction to be provided with the appropriate guidance where relevant. The services provided by Business Kitz are in no way a substitute for these types of services and are especially not a substitute for legal services.
3. Limitation of liability
   1. To the maximum extent permitted by law:
      1. Business Kitz’s liability for any breach, act, or omission of Business Kitz or its personnel (whether based in contract, tort including negligence, common law, equity, statute, or otherwise) is limited in aggregate to the Fees paid by the Subscriber to Business Kitz immediately preceding the date on which the claim giving rise to the liability arose; and 
      2. Business Kitz is not responsible for any liability arising from the Subscriber’s loss of capital, loss of anticipated wages, legal, tax or accounting compliance issues, damage to reputation, loss in connection with any other contract, or indirect, economic, special or consequential, punitive, exemplary loss or damage or expense, including loss or damage for:
         1. introduction of harmful code and/or Malware;
         2. loss of data including but not limited to Subscriber Data;
         3. breach of privacy;
         4. breach of security;
         5. loss of profits, revenue, time and/or goodwill; and
         6. loss of anticipated savings, opportunity and/or production.
   2. A Party’s liability under these Terms and Conditions, including any indemnity, will be reduced to the extent that the other Party caused or contributed to the relevant loss or liability. 
   3. Business Kitz does not warrant that the Licenced Software will be free of defects, uninterrupted, accurate, complete, current, stable, bug free, error free or available at any time in respect of its operation. 
   4. Except as expressly provided by these Terms and Conditions, the Licenced Software is provided on an “as is” basis without any representation, warranty or condition, whether express or implied, statutory, out of a course of dealing or usage, trade or otherwise including any implied warranty or condition of merchantability quality or fitness for any particular purpose or use. 
4. Indemnity
   1. To the maximum extent permitted by law, the Subscriber and its Invited Users indemnify and hold the Principal (and each of its past, present and future officers, employees, consultants, representatives and agents) (“Indemnified Parties”) harmless and must keep the Indemnified Parties jointly and individually indemnified against all loss, damage (including indirect, special, incidental, punitive and consequential loss and damage), claims, liability, expenses, payment and/or outgoings incurred by or awarded against the Subscriber and/or Invited Users arising directly or indirectly from:
      1. non-performance of these Terms and Conditions; 
      2. any unlawful, wilful or negligent act or omission by the Subscriber, Invited Users, their employees, officers, agents, consultants or contractors in connection with the provision of the Product or Add-Ons under these Terms and Conditions; 
      3. damages for loss of profits, loss of confidential or other information, business interruption, personal injury, personal property, loss of privacy, failure to meet any duty (including of good faith or of reasonable care, negligence, and any other pecuniary or other loss whatsoever);
      4. a breach or default by the Subscriber or Invited User of its obligations (or any warranty) under these Terms and Conditions;
      5. any infringement of the IP Rights of the Principal or any infringement of the Intellectual Property Rights or Third-Party Materials caused or contributed to by the Subscriber or its Invited Users, agents, employees, contractors (other than the Principal), consultants or officers;
      6. non-compliance with Fair Work or other applicable legislation;
      7. any errors in Third-Party Materials such as the Fair Work Ombudsman;
      8. injuries suffered by the Subscriber or Invited Users or any person working within or in affiliation with the Subscriber or Invited Users’ organisation; or
      9. the Depository Product, the Principal’s inability to perform the Licenced Software or otherwise in relation to the events carried out under these Terms and Conditions, even in the event of the fault, tort (including negligence), strict liability, breach of contract or breach of warranty of the Subscriber, and even if the Subscriber has been advised of the possibility of such damages.
5. Dispute resolution
   1. General
      1. If a dispute arises out of or relates to these Terms and Conditions, including any dispute as to breach or termination of these Terms and Conditions or as to any claim in tort, in equity, or pursuant to any statute, neither party may commence any court or arbitration proceedings relating to the dispute unless they have complied with this clause except where they seek urgent interlocutory relief.
   2. Notice specifying the nature of the dispute
      1. The party to these Terms and Conditions claiming that a dispute has arisen under or in relation to these Terms and Conditions must give written notice to the other party to these Terms and Conditions specifying the nature of the dispute.
      2. On receipt of the notice referred to in this clause by that party, both parties must endeavour to resolve the dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation, determination, or similar techniques agreed by them.
   3. Mediation
      1. If the parties do not agree within 7 days of receipt of the notice, or such further periods as agreed upon in writing by them, as to:
         1. the dispute resolution technique and procedures to be adopted;
         2. the timetable for all steps in those procedures; and
         3. the selection and compensation of the independent person required for such a technique.
      2. Then they must mediate the dispute in accordance with the mediation rules of the recognised professional association for solicitors in the Jurisdiction.
      3. The president of this professional association or the president’s nominee will select the mediator and determine the mediator’s remuneration.
   4. Proceedings
      1. If no resolution is achieved via the mediation referred to above, then either party may commence any court or arbitration proceedings relating to the dispute as they see fit.
6. Competition and Consumer Law
   1. Business Kitz complies with the Australian Consumer Law and provides all the consumer guarantees contained in the Competition and Consumer Act 2010 (Cth) to the extent they are applicable. Where Business Kitz breaches a warranty or guarantee which is implied by law into these Terms and Conditions and which cannot be lawfully excluded, then Business Kitz relies on section 64A of the Competition and Consumer Act 2010 (Cth). Accordingly, Business Kitz’s liability for any such breach shall be limited at their option, as long as it is fair and reasonable to do so, to any one or more of the following:
      1. where there is a supply of goods, to the replacement or resupply of equivalent goods, or payment of the cost of replacing the goods or acquiring equivalent goods; or
      2. where there is a supply of services, to resupplying the services or payment of the cost of having the services resupplied.
7. Non-excludable liability (if any)
   1. These Terms and Conditions do not attempt or purport to exclude liability arising under statute if, and to the extent, that such liability cannot be lawfully excluded.
8. Set-off
   1. Business Kitz is entitled to set off against any amount due to Business Kitz from the Subscriber in respect of the Licenced Software under these Terms and Conditions.
9. Privacy
   1. The Subscriber acknowledges that information about the Subscriber, including information provided to Business Kitz on engaging the Licenced Software will be held by Business Kitz. This information is collected by Business Kitz for the purpose of providing the Licence to the Subscriber. 
   2. The Subscriber agrees to Business Kitz retaining and registering in Business Kitz’ systems personal information as defined in the Privacy Act and handled in accordance with this clause 26.
   3. All subscriber data is secured against unauthorised use or access.
   4. Business Kitz does not sell or deal in personal or subscriber information. Business Kitz may, however, use the Subscriber’s information in a general sense to create marketing statistics, identify user demands, and to assist Business Kitz in meeting subscriber needs generally. Business Kitz may use the information that the Subscriber provides to improve its Licenced Software.
   5. Business Kitz may disclose information in good faith and where Business Kitz is required to do so:
      1. by law or by any court; 
      2. to enforce the terms of any of our subscriber agreements; 
      3. to protect the rights, property or safety of Business Kitz, its subscribers or third parties; or
      4. to banks or financial institutions with the purpose of preventing fraud and as proof of any transaction.
10. Exclusion of competitors
    1. If a principal part of the Subscriber’s business is the retail sale or use of business document templates, agreement templates, business forms and policies, human resources documentation and resources, or business management software as a service, the Subscriber is a competitor of Business Kitz (“Competitor(s)”). 
    2. Business Kitz expressly excludes and does not permit competitors to use the Licenced Software or obtain any such content through a third party. 
    3. Business Kitz holds any competitor who breaches these Terms and Conditions fully responsible for any loss that Business Kitz might sustain and further holds the competitor accountable for all profits made from the breach of these Terms and Conditions.
    4. Business Kitz reserves the right to exclude any person from using the Licenced Software. 
11. Force Majeure 
    1. If a Force Majeure Event occurs, the party affected (“Affected Party”) must give written notice to the other party of particulars of the Force Majeure Event and the extent to which the Affected Party is unable to carry out its obligations.
    2. If the Affected Party provides the notice referred to above:
       1. the obligations of the Affected Party (other than a payment obligation) will be suspended from the time the notice is received by the other party until the Affected Party is no longer prevented from or delayed in complying with those obligations by the Force Majeure Event; 
       2. the Affected Party must take reasonable steps to remove or mitigate the relevant Force Majeure Event; 
       3. if the Principal is the Affected Party, the Subscriber may have the right to suspend all payments to the Principal during that time in respect of the obligations that are affected by the Force Majeure Event (except payments that are due and outstanding); and
       4. the term of these Terms and Conditions will be extended for that period of time.
12. Entire agreement
    1. These Terms and Conditions and Business Kitz’ Privacy Policy represent the whole agreement between the Subscriber and Business Kitz concerning the Subscriber’s use and access to the Licenced Software, unless otherwise agreed upon by the parties. 
    2. No other term is to be included in these Terms and Conditions except where it is required to be included by any state or federal legislation of Australia. All implied terms except those implied by statute and which cannot be expressly excluded are hereby expressly excluded. 
13. Exclusion of unenforceable terms and conditions
    1. If a provision of these Terms and Conditions is found by a court of law to be invalid or unenforceable:
       1. it is to be read down or severed to the extent of the invalidity or unenforceability; and
       2. that fact does not affect the validity or enforceability of the remaining provisions.
14. Variations
    1. Business Kitz reserves the right to vary, alter, replace or revoke (“Variations”) these Terms and Conditions without notice to the Subscriber if:
       1. the Variation is likely to benefit the Subscriber or have a minor or neutral detrimental impact on the Subscriber; or
       2. by giving the Subscriber 21 days’ notice of the Variation prior to the date the Variation is to take effect if the Variation could be reasonably expected to adversely affect the Subscriber. 
    2. Business Kitz will be taken to have notified the Subscriber under clause 31 when notice is provided in writing, via email or by publishing a notice on the Business Kitz Website.
    3. All changes are effective from the date they are made and the Subscriber’s continued use of the Licenced Software will constitute the Subscriber’s acceptance of the variation of the Terms and Conditions. It is the Subscriber’s responsibility to ensure the Subscriber is aware of any changes to these Terms and Conditions. 
15. Severability
    1. The invalidity or unenforceability of any provision in these Terms and Conditions shall not affect the rest of the provisions in these Terms and Conditions, which will continue in full force and effect.
16. Notice
    1. Any notices, or other communications to be given by either the Subscriber or Business Kitz under these Terms and Conditions shall be deemed to have been duly given if it is in writing signed for and/or on behalf of the concerned party and delivered under acknowledgement due at the addresses indicated in these Terms and Conditions or as advised from time-to-time hereafter in writing by a party to the other.

All notices, other communication, and written communication to be given to the Subscriber or Business Kitz under these Terms and Conditions is inclusive of electronic communication where the date, time, sender, and recipient can be established.

1. Assignment
   1. Neither party may assign or novate these Terms and Conditions or a right or obligation under these Terms and Conditions without the prior written consent of the other party.
2. No waiver
   1. No provision of these Terms and Conditions will be taken to be waived except by written notice signed by the Subscriber and Business Kitz.
3. Jurisdiction
   1. These Terms and Conditions shall be governed by and construed according to the laws in force in the state of Queensland, Australia, and the Subscriber irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of Queensland. This applies regardless of the Subscriber’s location when using the Licenced Software.
4. Account enquiries
   1. Any requests for cancellation or account enquiries should be sent to subscription@businesskitz.com.au. 
5. General
   1. Nothing in these Terms and Conditions is intended to constitute a fiduciary relationship or an employment, agency, partnership, or trust, and no party has authority to bind any other party.
   2. The Subscriber must do such further acts and things and execute such further documents as may be necessary in the reasonable opinion of Business Kitz to give effect or better effect to the provisions of these Terms and Conditions.
6. Interpretation
   1. In the interpretation of these Terms and Conditions:
      1. References to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulation issues under the legislation.
      2. Words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, references to documents also mean those documents as changed, novated or replaced, and words denoting one gender include all genders.
      3. Grammatical forms of defined words or phrases have corresponding meanings.
      4. Unless the context requires otherwise, capitalised terms not defined in this clause should be given their regular meaning.
      5. Parties must perform their obligations on the dates and times fixed by reference to the capital city of the Jurisdiction.
      6. References to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia.
      7. If the day on or by which anything is to be done is a Saturday, a Sunday, or a public holiday in the place in which it is to be done, then it must be done on the next Business Day.
      8. References to a party are intended to bind their executors, administrators and permitted transferees.
      9. Obligations under these Terms and Conditions affecting more than one party bind them jointly and each of them severally.
7. Definitions
   1. Unless the context requires otherwise, capitalised terms not defined in this clause should be given their regular meaning. 

1. Agreement means these Terms and Conditions;
2. Agreement Date means the date on which the Subscriber purchased the Licenced Software via the Business Kitz website;
3. Clickwrap means the agreement governing these Terms and Conditions to which the Subscriber agrees with upon accepting they have read and understood these Terms and Conditions;
4. Confidential Information includes the terms and conditions of these Terms and Conditions (but not its existence) and any information provided by a party to the other which is, or can be inferred to have been, provided in commercial confidence or of a confidential nature, whether or not expressly marked “Confidential”, including any information relating to the commercial activities, technologies, business processes, Subscriber, partner or supplier relationships, strategic information, know-how and any other information regarding the business of the disclosing party;
5. Direct Debit means an automated transaction from the Subscriber’s account to Business Kitz on agreement as a payment for the Licence.
6. End Date means 24 months from the Agreement Date or as specified on the Website in relation to the minimum term of the Licence;
7. Fees means the fees payable to Business Kitz in consideration for the Licence as set out in clause 10 of these Terms and Conditions or as otherwise agreed;
8. Force Majeure Event means a natural and unavoidable catastrophe or pandemic that interrupts the expected course of events and restricts a party or both parties from fulfilling their obligations under these Terms and Conditions;
9. IP Rights means any intellectual and industrial property rights or entitlements throughout the world including those in connection with any confidential information, copyright (including future copyright and rights in the nature of or analogous to copyright), moral rights, inventions (including patents), trademarks, service marks and designs, whether or not now existing and whether or not registered or registrable, as well as any right to apply for the registration, renewals and extensions of those rights, and any other Intellectual Property Rights as defined in Article 2 of the World Intellectual Property Organisation Convention of 1967;
10. Invited User(s) means any employee or agent of the Subscriber who is authorised by the Subscriber to access and use the Licenced Software via invitation to the Subscriber’s account;
11. Invited User Data means data owned or supplied by the Invited User and stored on Business Kitz’ systems through the provision of Licenced Software under these Terms and Conditions;
12. Jurisdiction means the jurisdiction defined in clause 36 of these Terms and Conditions. 
13. Malware means anything or device (including any software, malware, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices;
14. Party means a party in relation to the Terms of these Terms and Conditions; 
15. Privacy Act means the Privacy Act 1998 (Cth);
16. Privacy Policy means Business Kitz’ Privacy Policy which is located on the Business Kitz website www.businesskitz.com.au;
17. Licence means the permissions to access and use the Software granted to Subscriber and Invited Users, in accordance with the terms of these Terms and Conditions;
18. Licenced Software means the Business Kitz software as a service product available to be purchased via the Website;
19. Subscriber means any subscriber of Business Kitz who utilises the Licenced Software including any of the Subscriber’s employees, agents and Invited Users as applicable;
20. Subscriber Data means data owned or supplied by the Subscriber and stored on Business Kitz’ systems through the provision of Licenced Software under these Terms and Conditions;
21. Term means the term set out in clause 2 of these Terms and Conditions;
22. Templates means the legal, business and human resource document templates available within the Licenced Software;
23. Terms and Conditions means these Terms and Conditions and any schedule, annexure, appendix, exhibit or attachment to these Terms and Conditions;
24. Third-Party means a party other than Business Kitz, the Subscriber or an Invited User;
25. Third-Party Materials means any content, including text or images, created by a party other than Business Kitz, the Subscriber or the Invited User;and
26. Website means Business Kitz’ online site accessible via https://businesskitz.com.au/.

CLICKWRAP AGREEMENT

By clicking agree and continue, the Subscriber is hereby agreeing to Business Kitz’ Terms and Conditions, the Business Kitz Website Terms and Conditions, Business Kitz’ Privacy Policy and any other terms and conditions that appear in, or are linked to, the Business Kitz Website. 

 I have read and agree to the website terms and conditions