Terms of Use

ACCEPTANCE OF TERMS

THESE TERMS OF USE ARE INTENDED TO BE LEGALLY BINDING AS BETWEEN KLAYO AND THE CUSTOMER. IF YOU, THE CUSTOMER, WISH TO USE THE KLAYO SERVICE, YOU MUST INDICATE YOUR ACCEPTANCE OF THESE TERMS BY CLICKING “I ACCEPT” AT THE FOOT OF THE DOCUMENT. IF YOU DO NOT AGREE TO THE TERMS, YOU MUST NOT CLICK “I ACCEPT”.

PART A – INTERPRETATION

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

The following definitions apply in these Terms.

Agreement means the agreement between Klayo and the Customer, of which these Terms form a part.

Background IP means Klayo’s Intellectual Property which was in existence prior to the commencement of the Agreement or which is subsequently developed by Klayo independently of and for purposes unconnected with the Agreement.

Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Victoria, Australia.
Charges means the agreed charges payable to Klayo in consideration of receiving the Service.
Confidential Information means information that:

(a) relates to the business or business strategies, personnel, policies, assets or affairs of a Party or which is otherwise designated as confidential by that Party;

(b) is made available by or on behalf of that Party to the other Party and is obtained by or on behalf of the other Party; and

(c) is by its nature confidential or the receiving Party knows, or ought to know, is confidential, but does not include information that:

(d) is in or enters the public domain through no fault of the receiving Party or any of its officers, employees or agents;

(e) is or was made available to the receiving Party by a person (other than the disclosing Party) who is not or was not then under an obligation of confidence to the disclosing Party in relation to that information; or

(f) is or was developed by the receiving Party independently of the disclosing Party and any of its officers, employees or agents.

Contract IP means Intellectual Property created by either Party in the course of performing their respective obligations or exercising their respective rights under the Agreement.

Customer means the entity which enters into the Agreement with Klayo and which has the ability to authorise Participants to use the Service.

Database means the database maintained by Klayo containing particulars of the relevant skills and experience of participating individuals.

Deliverable means any goods or services to be provided by Klayo pursuant to these Terms.

Intellectual Property means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, service marks, designs, patents, circuit layouts, business and domain names, database rights, confidential information, know how, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields existing anywhere in the world, whether or not registered or capable of registration, and any goodwill associated with such activity and any applications, renewals and extensions of such rights.

Klayo means Ceventas Pty Ltd ABN 66 128 878 811, trading as “Klayo”.

Participant means an individual who is employed or managed by the Customer and who is authorised by the Customer to make use of the Service.

Party means either Klayo or the Customer, as the context dictates.

Personal Information has the meaning given to the term in section 6 of the Privacy Act 1988

Privacy Laws means, to extent applicable to a Party:

(a) the Privacy Act 1988 (Cth);

(b) any other data protection legislation of the Commonwealth of Australia or a State or Territory; and

(c) any law of a foreign jurisdiction to which Klayo, the Customer or a Participant is subject in the course of providing, receiving or accessing the Service (as the case may be).

Privacy Policy means the Klayo privacy policy, accessible at https://www.klayo.com/wp-content/uploads/Klayo-Privacy-Policy-220408.pdf

Service means a workforce capability management service designed to manage employee and workforce attributes.

Terms means these Terms of Use which form part of the Agreement between Klayo and the Customer.

1.2 Interpretation

(a) Headings are for convenience only, and do not affect interpretation.

(b) The following rules also apply in interpreting this document, except where the context makes it clear that a rule is not intended to apply:

(i) A singular word includes the plural, and vice versa.

(ii) A word which suggests one gender includes the other genders.

(iii) The word agreement includes an undertaking or other binding arrangement or understanding, whether or not in writing.

(iv) A reference to dollars or $ is to an amount in USD unless otherwise agreed.

PART B – OPERATIVE PROVISIONS

2. SUPPLY OF SERVICES

2.1 The Klayo Service

Klayo will make the Service available to the Customer. The Customer is responsible for:

(a) authorising Participants;

(b) ensuring Participants’ authorisation is current; and

(i) comply with any obligations referred to in these Terms; and

(ii) refrain from any acts or omissions which would place the Customer in breach of these Terms or the Agreement.

2.2 Duration of service

Klayo will make the service available to the Customer:

(a) for the duration of the free trial period (if any); and

(b) subject to the Customer electing to continue beyond the free trial period (if any), for such period as is agreed between the Parties,

subject in each case to a Party exercising its right of early termination in accordance with clause 7.1.

PART C – GENERAL

3. CHARGES

3.1 Customer to pay Charges

The Customer acknowledges that the Services are conditional upon payment of the Charges.

3.2 Payment

In the event of a disputed invoice, the Customer must pay the undisputed portion pending resolution of the dispute over the balance.

4. CONFIDENTIALITY

4.1 Use and disclosure of Confidential Information

A Party (the Recipient) which acquires Confidential Information of another Party (Discloser) must not:

(a) use any of the Confidential Information except to the extent necessary to exercise its rights and perform its obligations under the Agreement; or

(b) disclose any of the Confidential Information except in accordance with clauses 4.2 or 4.3.

4.2 Disclosures to personnel and advisers

The Recipient may disclose Confidential Information to an officer, employee, agent, contractor, or legal, financial or other professional adviser if the disclosure is necessary to enable the Recipient to perform its obligations or to exercise its rights under the Agreement

4.3 Disclosures required by law

The Recipient may disclose Confidential Information that the Recipient is required to disclose:

(a) by law or by order of any court or tribunal of competent jurisdiction; or

(b) by any government agency, stock exchange or other regulatory body.

5. PRIVACY

5.1 Compliance with Privacy Laws and Policies

Each Party agrees that it will comply with the Privacy Laws and applicable Privacy Policies to the extent that such Party collects, uses, stores or accesses Personal Information in the course of providing or receiving the service as the case may be. Without limiting the foregoing, the Customer acknowledges that by virtue of accepting these Terms, it has agreed with and consented to the terms of the Klayo Privacy Policy.

5.2 Security of data

Klayo undertakes to use such steps as are reasonable in the circumstances to protect Personal information from:

(a) misuse, interference and loss; and

(b) unauthorised access, modification or disclosure.

5.3 Mandatory Data Breach Notification

The Customer must:

(a) immediately notify Klayo if it becomes aware of any unauthorised access to, or unauthorised disclosure of, personal information under its control by virtue of the Agreement, and provide advice as to whether it considers that such security breach may result in serious harm to any individual to whom the information relates;

(b) comply with any directive from Klayo as to which Party will discharge any statutory reporting obligation arising from the incident;

(d) ensure compliance with all mandatory data breach reporting obligations arising out if the breach or suspected breach.

6. INTELLECTUAL PROPERTY

6.1 Ownership and use of Intellectual Property

(a) The Parties agree that, other than as expressly provided in this clause, nothing in these Terms or otherwise in the Agreement transfers or grants to any party any right, title or interest in or to any Intellectual Property in any Background IP.

(b) Any Contract IP will vest in Ceventas Pty Ltd. The Customer absolutely and unconditionally assigns to Ceventas Pty Ltd, and must procure that all relevant persons (which may include the Customer’s personnel or one or more of the Customer’s related bodies corporate) absolutely and unconditionally assign to Ceventas Pty Ltd, all right, title and interest in the Contract IP, immediately upon creation, free of encumbrances and third party rights.

(c) Klayo grants to the Customer a worldwide, non-exclusive, royalty free, non-transferable, non-sub-licensable and revocable licence for the term of the Agreement to use Klayo’s Intellectual Property solely to the extent necessary for the Customer to derive the full benefit of the Service.

7. TERMINATION AND EXPIRY

7.1 Termination by Klayo for breach or insolvency

Klayo may terminate the Agreement immediately by notice in writing if:

(a) the Customer is in breach of any term of these Terms or the Agreement and such breach is not rectified within 20 Business Days of notification by Klayo; or

(b) the Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration.

7.2 Expiry

Subject to clause 7.1, the Agreement will expire upon the conclusion of any fixed term agreed between the Parties.

8. PRECEDENCE

8.1 Order of precedence

The documents comprising the Agreement will be read in the following order of precedence:

(a) these Terms;

(b) any other document or data forming part of the Agreement.

8.2 Severance

Where any conflict occurs between the provisions contained in two or more of the documents forming the Agreement, the document lower in the order of precedence will where possible be read down to resolve such conflict. If the conflict remains incapable of resolution by reading down, the conflicting provisions will be severed from the document lower in the order of precedence without otherwise diminishing the enforceability of the remaining provisions of that document.

9. ASSIGNMENT AND NOVATION

(a) The Customer may only assign, encumber, declare a trust over or otherwise deal with its rights under the Agreement with the written consent of Klayo.

(b) Klayo may novate or assign the Agreement to a corporate entity upon prior written notice to the Customer, and the Customer must provide such cooperation as is reasonably necessary to achieve this result.

10. VARIATION

10.1 Variations to be in writing

These Terms and any other document or data forming part of the Agreement can only be varied in writing signed by both Parties.

11. NOTICES

11.1 Notices

(a) A notice, consent or other communication under this document is only effective if it is in writing, signed and either left at the addressee’s address or sent to the addressee by mail or email.

(b) A notice, consent or other communication that complies with this clause is regarded as given and received:

(i) if it is delivered, when it has been left at the addressee’s address;

(ii) if it is sent by mail, five Business Days after it is posted; and

(iii) if it is sent in electronic form when the sender receives an email message from its addressee acknowledging its receipt.

12. GENERAL

12.1 Governing law

(a) These Terms and the Agreement are governed by the laws of the State of Victoria, Australia.

(b) Each Party submits to the non exclusive jurisdiction of the courts of Victoria and any court that may hear appeals from any of those courts, for any proceedings in connection with the Agreement, and waives any right it might have to claim that those courts are an inconvenient forum.

12.2 Survival of covenants

Clauses 1 (Interpretation), 4 (Confidentiality), 5 (Privacy), 6 (Intellectual Property), 8 (Precedence), 9 (Assignment), 10 (Variation), 11 (Notices), and 12 (General), survive the expiry or termination of the Agreement