Terms of Service

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This Master Services Agreement (“Agreement”) is entered into between:

KINSTONECO PTY LTD (ABN 24 702 805 230) (“Kinstone”, “we”, “us” or “our”); and

the entity identified in the applicable Statement of Work (“Client”, “you” or “your”).

Kinstone and the Client are each a “Party” and together the “Parties”.

This Agreement sets out the general terms under which Kinstone provides services to the Client. The specific services, deliverables, fees and timing for each engagement will be set out in one or more Statements of Work (“SOW”).

1. Agreement structure

1.1 Master Agreement

This Agreement establishes the general terms applying to Services provided by Kinstone.

1.2 Statements of Work

Each engagement will be described in an SOW, proposal, order form or other document agreed in writing between the Parties.

An SOW may specify:

• the Services to be provided;
• deliverables;
• fees and payment arrangements;
• commencement date and expected timing;
• assumptions and dependencies;
• Client responsibilities;
• milestones and acceptance requirements; and
• any engagement-specific terms.

1.3 Order of precedence

If there is an inconsistency between this Agreement and an SOW, the SOW will prevail only to the extent of the inconsistency and only for that specific engagement.

Any variation to this Agreement must be expressly identified as a variation and agreed in writing by both Parties.

2. Definitions

In this Agreement:

Business Day means a day other than a Saturday, Sunday or public holiday in New South Wales.

Client Data means data, information and Personal Information provided by or on behalf of the Client to Kinstone or accessed by Kinstone in connection with the Services.

Client Deliverables means the bespoke deliverables expressly identified as client-owned deliverables in an SOW.

Client Materials means materials, content, information, data, systems, software and other materials supplied by or on behalf of the Client.

Confidential Information means information disclosed by one Party to the other Party that is confidential by its nature or which a reasonable person would understand to be confidential.

Fees means the fees payable by the Client under an SOW.

Personal Information has the meaning given to that term under the Privacy Act 1988 (Cth).

Services means the services described in an SOW and the service categories described in clause 3.

3. Services

Kinstone provides business transformation, technology and implementation services across areas including:

3.1 Strategy & Transformation

Including:

• business strategy;
• transformation strategy;
• operating model and operational efficiency;
• technology strategy and modernisation;
• commercial growth;
• organisational capability; and
• related transformation and advisory services.

3.2 Data & AI

Including:

• data strategy and foundations;
• data governance;
• analytics;
• AI strategy;
• AI implementation;
• AI enablement;
• AI optimisation; and
• related data and AI services.

3.3 Digital Experience

Including:

• digital experience and UX;
• website and product optimisation;
• search engine optimisation (SEO);
• answer engine optimisation (AEO);
• generative engine optimisation (GEO);
• digital performance; and
• related digital strategy and implementation.

3.4 Automation & Integration

Including:

• process automation;
• workflow automation;
• systems implementation;
• integrations;
• technology implementation;
• process improvement; and
• change, adoption and enablement.

The specific Services applicable to the Client will be described in the relevant SOW.

4. Delivery

Kinstone will provide the Services with reasonable care and skill and in accordance with the applicable SOW.

Kinstone may determine the reasonable methods, tools, technologies and personnel used to deliver the Services, subject to any specific requirements agreed in the SOW.

Kinstone may engage employees, contractors, specialists, technology providers and other delivery partners to provide all or part of the Services.

Kinstone remains responsible for the Services it provides through its personnel and delivery partners.

5. Client responsibilities

The Client agrees to:

• provide Kinstone with timely access to people, systems, information, data and materials reasonably required to provide the Services;
• provide accurate and complete information;
• provide timely decisions, feedback and approvals;
• ensure it has the necessary rights and permissions to provide information, data, content and systems access to Kinstone;
• nominate appropriate personnel to work with Kinstone where reasonably required;
• comply with applicable laws and third-party platform terms; and
• promptly notify Kinstone of any material change that may affect delivery.

Kinstone will not be responsible for delays or additional costs caused by the Client’s failure to provide required information, access, approvals, decisions or cooperation.

Where Client dependencies materially affect delivery, Kinstone may reasonably adjust timelines and delivery dates.

6. Changes and additional Services

The Services are limited to the scope described in the applicable SOW.

If the Client requests work outside the agreed scope, Kinstone may treat that work as additional Services.

Kinstone will, where reasonably practicable, notify the Client of any additional fees or changes to timing before commencing material additional work.

Additional Services may be charged at Kinstone’s then-current rates or at another rate agreed between the Parties.

7. Fees and payment

7.1 Fees

The Client must pay the Fees specified in the applicable SOW.

Unless otherwise stated, all amounts are exclusive of GST.

7.2 Payment terms

Invoices are payable within seven (7) days of the invoice date unless otherwise specified in the applicable SOW.

7.3 Recurring Services

Where Services are provided on an ongoing or subscription basis, Fees will generally be billed monthly in advance unless otherwise agreed.

The Client authorises Kinstone to collect recurring Fees using Stripe or another payment provider nominated by Kinstone.

The Client must maintain a valid payment method for recurring Services.

7.4 GST

If GST is payable in respect of a taxable supply made under this Agreement, the recipient of the supply must pay the GST amount in addition to the relevant Fee, subject to receipt of a valid tax invoice.

7.5 Third-party costs

Unless expressly included in an SOW, Client-specific third-party costs are additional to Kinstone’s Fees.

These may include:

• advertising spend;
• software licences;
• cloud services;
• AI platform costs;
• hosting;
• domains;
• data licences;
• third-party subscriptions;
• media spend; and
• other third-party products or services.

7.6 Overdue amounts

If an amount remains unpaid after its due date, Kinstone may:

• notify the Client of the overdue amount;
• suspend Services on reasonable notice;
• suspend access to relevant deliverables or systems where legally permissible; and/or
• recover reasonable costs reasonably incurred in recovering the overdue amount.

Kinstone will not exercise suspension rights where doing so would be unlawful.

Suspension of Services does not release the Client from its payment obligations.

8. Term and minimum commitment

8.1 Initial Term

Unless otherwise specified in an SOW, ongoing Services are subject to a minimum initial term of six (6) months commencing on the applicable Start Date (“Initial Term”).

The Initial Term reflects the Parties’ agreed minimum period for the Services and allows Kinstone to allocate people, capability and resources to the engagement.

8.2 Termination during Initial Term

The Client may provide written notice of termination during the Initial Term.

Unless otherwise agreed in writing or required by law, termination will take effect on expiry of the Initial Term.

Fees that would otherwise become payable during the Initial Term remain payable, subject to any applicable statutory rights and any written agreement between the Parties for an earlier exit.

Nothing in this clause limits the Client’s right to terminate where Kinstone has materially breached this Agreement and failed to remedy that breach within the applicable cure period.

Kinstone may agree to an earlier termination date and associated commercial arrangements at its discretion.

8.3 Following the Initial Term

Following the Initial Term, ongoing Services automatically continue on a month-to-month basis.

Either Party may terminate ongoing Services by providing ninety (90) days’ written notice.

8.4 Different arrangements

The Parties may agree to a different minimum term or notice period in an SOW.

9. Suspension and termination

Either Party may terminate this Agreement or an applicable SOW if the other Party:

• commits a material breach and fails to remedy that breach within ten (10) Business Days after receiving written notice requiring it to do so;
• becomes insolvent, enters administration, liquidation or an equivalent process; or
• ceases to carry on business.

Kinstone may also suspend Services where:

• Fees remain materially overdue and the Client has been given reasonable notice;
• continuing to provide the Services would create a material legal, security or regulatory risk; or
• the Client’s conduct materially prevents Kinstone from providing the Services.

Where reasonably practicable, Kinstone will give the Client an opportunity to remedy the relevant issue before suspension.

Nothing in this clause limits either Party’s rights at law.

10. Consequences of termination

On termination:

• all outstanding amounts owing to Kinstone become payable;
• the Client remains responsible for Fees applicable during any minimum committed term, subject to applicable law and any agreed early termination arrangement;
• each Party must return or securely destroy the other Party’s Confidential Information where reasonably requested, subject to legal or regulatory retention requirements;
• Kinstone will provide Client-owned deliverables in accordance with the applicable SOW, subject to all amounts owing being paid;
• any transition or handover assistance requested by the Client outside the agreed scope may be charged separately; and
• provisions intended to survive termination will continue to apply.

11. Intellectual property

11.1 Client Materials

The Client retains ownership of all intellectual property rights in Client Materials.

The Client grants Kinstone a non-exclusive licence to use Client Materials to the extent reasonably required to provide the Services.

11.2 Kinstone Intellectual Property

Kinstone retains all rights in intellectual property owned, developed or used by Kinstone independently of the Client engagement, including:

• methodologies;
• frameworks;
• templates;
• processes;
• tools;
• know-how;
• concepts;
• generic code;
• reusable components;
• systems;
• models;
• pre-existing materials; and
• improvements or developments to those materials that are not uniquely created for the Client.

Nothing in this Agreement transfers ownership of Kinstone’s underlying intellectual property to the Client.

11.3 Client Deliverables

Subject to full payment of all amounts owing in relation to the relevant Services, ownership of bespoke Client Deliverables expressly identified as such in an SOW will transfer to the Client.

The transfer will include the copyright and other intellectual property rights capable of being transferred in those Client Deliverables, except for:

• Kinstone Intellectual Property;
• third-party intellectual property;
• open-source software;
• third-party software;
• reusable components;
• generic code;
• methodologies;
• frameworks; and
• know-how.

Where Kinstone Intellectual Property is incorporated into a Client Deliverable, Kinstone grants the Client a perpetual, worldwide, non-exclusive, royalty-free licence to use that intellectual property to the extent reasonably necessary for the Client to use the Client Deliverable for its intended business purpose.

11.4 Third-party intellectual property

Third-party intellectual property remains subject to the applicable third-party licence or terms.

11.5 Moral rights

To the extent permitted by law, Kinstone will obtain appropriate consents from its personnel to enable the Client to use Client Deliverables in accordance with this Agreement.

12. Data, privacy and AI

12.1 Compliance

Each Party must comply with applicable privacy and data protection laws in connection with the Services.

12.2 Client responsibility

The Client is responsible for ensuring that it has all necessary rights, notices, consents and lawful authority to provide Personal Information and other Client Data to Kinstone.

12.3 Use of Client Data

Kinstone will only collect, access, use or disclose Client Data to the extent reasonably required to provide the Services, comply with law, protect its rights, or as otherwise expressly authorised by the Client.

Kinstone will not sell Client Data.

Kinstone will not use Client Confidential Information or Personal Information to train a public or third-party AI model unless expressly authorised by the Client in writing.

12.4 Security

Kinstone will take reasonable technical and organisational measures appropriate to the nature of the Client Data and the risks involved to protect Client Data against misuse, interference, loss, unauthorised access, modification or disclosure.

12.5 Data breaches

Kinstone will notify the Client as soon as reasonably practicable after becoming aware of a confirmed unauthorised access to, disclosure of, or loss of Client Personal Information in Kinstone’s possession or control that is reasonably likely to require notification under applicable privacy laws.

Where appropriate, Kinstone will reasonably cooperate with the Client in investigating and responding to the incident.

12.6 Third-party AI and technology

Where third-party AI, cloud, analytics or other technology platforms are used in delivering the Services, their use may be subject to the applicable provider’s terms, privacy practices, security arrangements and technical limitations.

Kinstone will not knowingly disclose Client Personal Information to a third-party AI provider for a purpose unrelated to the Services.

12.7 AI outputs

Where the Services involve AI-generated or automated outputs, the Client remains responsible for reviewing and approving outputs before relying on them for material business, legal, financial, employment or other consequential decisions, unless otherwise expressly agreed in the SOW.

Kinstone will take reasonable steps appropriate to the Services to identify material limitations or known risks associated with AI-generated outputs.

12.8 Data retention

Following completion or termination of the Services, Kinstone will return or delete Client Data where reasonably requested by the Client, unless Kinstone is required to retain the information by law or reasonably requires it for legitimate legal, accounting or compliance purposes.

13. Third-party services

Kinstone may recommend, configure, integrate or manage third-party products and services.

Third-party services may include software, SaaS platforms, cloud services, AI platforms, advertising platforms, hosting providers, data providers and other technology services.

Unless expressly stated otherwise, Kinstone does not control and is not responsible for:

• availability of third-party services;
• changes to third-party functionality;
• third-party pricing;
• third-party terms;
• third-party security incidents;
• outages;
• loss of third-party services; or
• decisions made by third-party platforms.

The Client remains responsible for fees payable directly to third-party providers unless those Fees are expressly included in Kinstone’s Fees.

Kinstone will not knowingly make material changes to a third-party service on the Client’s behalf without appropriate Client approval where that approval is reasonably practicable.

14. Confidentiality

Each Party must keep Confidential Information received from the other Party confidential and must not disclose it except:

• to personnel, advisers or delivery partners who need to know it for the purposes of the Agreement and are subject to appropriate confidentiality obligations;
• where required by law; or
• with the other Party’s written consent.

Confidential Information does not include information that:

• is publicly available other than through breach of this Agreement;
• was lawfully known before disclosure;
• is independently developed without use of the Confidential Information; or
• is lawfully received from a third party without confidentiality restrictions.

Each Party must take reasonable steps to protect the other’s Confidential Information from unauthorised access, use or disclosure.

These confidentiality obligations continue after termination.

15. Warranties and outcomes

Kinstone warrants that it will provide the Services with reasonable care and skill.

Unless expressly stated otherwise in an SOW, Kinstone does not guarantee:

• particular revenue;
• cost savings;
• leads;
• conversions;
• search rankings;
• advertising performance;
• website traffic;
• AI outputs;
• business growth;
• investment returns;
• specific operational outcomes; or
• any other particular commercial result.

Digital, SEO, AEO, GEO, PPC, AI and transformation outcomes may be affected by factors outside Kinstone’s reasonable control.

Nothing in this Agreement excludes, restricts or modifies any consumer guarantee, statutory right or other obligation that cannot lawfully be excluded, restricted or modified.

16. Insurance

Kinstone will maintain insurance policies appropriate to the nature and scope of the Services and the risks ordinarily associated with those Services, including professional indemnity and public liability insurance, together with any other insurance required by applicable law or expressly agreed in an SOW.

Upon reasonable request, Kinstone will provide reasonable evidence of relevant insurance coverage.

17. Liability

17.1 Liability cap

To the maximum extent permitted by law, Kinstone’s aggregate liability arising out of or in connection with an SOW or the Services provided under that SOW will not exceed the total Fees paid or payable by the Client to Kinstone under that SOW during the twelve (12) months preceding the event giving rise to the claim.

17.2 Excluded losses

To the maximum extent permitted by law, neither Party will be liable to the other for indirect or consequential loss, including loss of profits, revenue, anticipated savings, business opportunity or goodwill.

17.3 Non-excludable liability

Nothing in this Agreement limits or excludes liability to the extent that such limitation or exclusion is prohibited by law.

17.4 Fraud and wilful misconduct

Nothing in this Agreement limits liability for fraud or fraudulent misrepresentation or wilful misconduct to the extent that such liability cannot lawfully be limited.

17.5 Client responsibility

Kinstone is not responsible for loss arising from:

• inaccurate or incomplete Client information;
• Client instructions;
• unauthorised changes made by the Client or third parties;
• Client’s failure to follow reasonable recommendations or instructions;
• third-party platform failures outside Kinstone’s reasonable control; or
• Client use of Services or outputs outside the agreed purpose or scope,

except to the extent caused by Kinstone’s breach of this Agreement or negligence.

17.6 Statutory rights

Nothing in this clause limits any right or remedy that cannot lawfully be excluded or limited under applicable law, including applicable provisions of the Australian Consumer Law.

18. Indemnity

Each Party is responsible for loss suffered by the other Party to the extent caused by its own:

• breach of this Agreement;
• unlawful conduct; or
• infringement of a third party’s intellectual property rights arising from materials supplied by that Party.

The Client indemnifies Kinstone against third-party claims arising from Client Materials or Client instructions where Kinstone’s use of those materials or compliance with those instructions, as reasonably provided by the Client, gives rise to the claim.

A Party seeking an indemnity must:

• promptly notify the indemnifying Party of the relevant claim where reasonably practicable;
• provide reasonable cooperation in responding to the claim; and
• not settle the claim in a manner that imposes an admission of liability or continuing obligation on the indemnifying Party without its consent, not to be unreasonably withheld.

This clause is subject to the limitations of liability in this Agreement to the extent permitted by law.

19. Non-solicitation

During the term of the Agreement and for twelve (12) months following its termination, neither Party will knowingly solicit for employment or engagement an employee or contractor of the other Party who was materially involved in providing or receiving the Services.

This restriction does not apply where an individual:

• responds to a general recruitment advertisement;
• independently approaches a Party without targeted solicitation; or
• was already known to the recruiting Party independently of the Services.

20. Marketing and case studies

Kinstone may identify the Client as a Kinstone client and use the Client’s name, logo and approved descriptions of the Services for marketing, credentials, case studies and business development purposes only with the Client’s prior written approval.

Any case study or public statement containing Client-specific results, commercially sensitive information or other non-public information will require the Client’s prior written approval.

21. Force majeure

Neither Party will be liable for delay or failure to perform an obligation caused by circumstances beyond its reasonable control, including natural disasters, widespread technology failures, telecommunications outages, cyber incidents, government action, industrial disputes, war, civil unrest or other comparable events.

The affected Party must take reasonable steps to minimise the impact and resume performance as soon as reasonably practicable.

If a force majeure event continues for more than thirty (30) consecutive days and materially prevents performance of the Services, either Party may terminate the affected SOW by written notice.

22. Dispute resolution

If a dispute arises, the Parties will first attempt in good faith to resolve the dispute through discussions between appropriately authorised representatives.

If the dispute has not been resolved within fourteen (14) days after written notice of the dispute, either Party may refer the dispute to mediation in New South Wales.

If the dispute has not been resolved through mediation, either Party may commence proceedings in a court of competent jurisdiction in New South Wales.

Nothing in this clause prevents either Party from seeking urgent interlocutory or injunctive relief where reasonably necessary.

23. General

23.1 Independent contractors

The Parties are independent contractors. Nothing in this Agreement creates a partnership, joint venture, employment or agency relationship.

23.2 Assignment

Neither Party may assign this Agreement without the other Party’s prior written consent, except that Kinstone may assign this Agreement to a related entity or as part of a genuine corporate restructure or sale of substantially all of its business or assets.

23.3 Notices

Notices under this Agreement may be given by email to the contact details specified in the applicable SOW or otherwise notified by a Party.

23.4 Entire agreement

This Agreement and each applicable SOW constitute the entire agreement between the Parties concerning the Services and replace previous discussions or agreements concerning those Services, except to the extent expressly preserved in writing.

23.5 Variation

A variation to this Agreement must be agreed in writing by both Parties.

23.6 Severability

If any provision is found to be invalid or unenforceable, that provision will be read down to the extent necessary or, if that is not possible, severed without affecting the remaining provisions.

23.7 Waiver

A failure or delay by either Party to exercise a right does not constitute a waiver of that right.

23.8 Electronic execution

This Agreement and any SOW may be executed electronically and in counterparts.

23.9 Survival

Clauses concerning confidentiality, intellectual property, payment obligations, liability, indemnity, non-solicitation, data protection, dispute resolution and any other provision intended by its nature to survive termination will continue after termination.

24. Governing law

This Agreement is governed by the laws of New South Wales, Australia.

The Parties submit to the jurisdiction of the courts of New South Wales and courts entitled to hear appeals from them.

25. Acceptance & Execution

Each Party confirms that it has authority to enter into this Agreement and agrees to be bound by its terms.

This Agreement may be executed electronically and in counterparts. Each counterpart constitutes an original and all counterparts together constitute one instrument.