Interpretation and Definitions
Interpretation
The words of which the initial letter is capitalised have meanings defined under the following conditions. The following definitions shall have the same meaning regardless of whether they appear in singular or in plural.
Definitions
For the purposes of these Terms and Conditions:
- Agreement means the agreement, based on these Terms and Conditions and the Proposal (where applicable), between Kognitive and the Client for the delivery of the Service.
- Client (referred to as either “the Client” or “You”) means the person, firm or company purchasing the Service from the Company.
- Client Data means any data to which it may have access during the course of the Service.
- Company (referred to as either “the Company”, “We”, “Us”, “Our” or “Kognitive” in this Agreement) refers to Kognitive Pty Ltd, Suite 137, Waterman Richmond, Level 1 East, 678 Victoria Street, Richmond VIC 3121, Australia.
- Feedback means feedback, innovations or suggestions shared by You regarding the attributes, performance or features of our Service.
- Footage means any video, audio or visual recording or content, provided to You, by Kognitive, or its Subcontractors, as defined in the Proposal.
- Proposal means the documentation which details the scope, schedule and other terms which relate to the Service.
- Service means the services provided by Kognitive to the Client including, but not limited to: assessments, speaking, training, coaching, management consultancy, advisory services and Footage.
- Subcontractor means either an independent contractor or an affiliate or subsidiary of the Company which has been contracted by Kognitive, as evidenced by an agreement in writing.
- Subscription refers to the Service offered on a subscription basis by the Company to You.
- Terms and Conditions (also referred to as “Terms”) mean these Terms and Conditions, that combined with the Proposal (where applicable) form the agreement between You and the Company regarding the use of the Service.
- Website refers to https://www.kognitive.com.au
Acknowledgment
These are the Terms and Conditions governing the use of the Service and the Agreement that operates between You and Kognitive. These Terms and Conditions set out the rights and obligations of all users regarding the use of the Service. No employment relationship or partnership is formed by this Agreement.
Delivery of the Service
Location
The Service may be provided at Our facilities, at Your facilities, at other facilities or locations, or online, as planned and agreed between the Company and the Client.
Personnel
The Company may, at its discretion and, where possible, in consultation with the Client, replace the person or persons charged with performing the Service.
Subcontractors
Kognitive shall be free to involve Subcontractors in the delivery of the Service, provided these Subcontractors enter confidentiality obligations similar to the confidentiality obligations applicable to the Company.
Professional Diligence
Kognitive warrants that it shall provide the Service in a workmanlike manner and with professional diligence and skill standard in the industry. Except as aforementioned, and to the maximum extent permitted by applicable law, the Service is provided “as is” and Kognitive provides no further warranty, including satisfactory quality or fitness for any particular purpose of the Service.
Client Obligations
Cooperation
The Client will cooperate with the Company to provide information, and access to persons that Kognitive needs to perform the Service in a timely manner.
Information Correctness
The Client guarantees the correctness, completeness and reliability of any information provided to the Company.
Your Feedback to Us
You assign all rights, title and interest in any Feedback You provide the Company. You agree to grant Kognitive a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and license to use, reproduce, disclose, sub-license, distribute, modify, and exploit such Feedback without restriction.
Payments, Refunds, and Expenses
Payment and Inclusions
Payment can be made through various payment methods we have available, such as Visa, MasterCard, direct debit, bank transfers etc. Our Website or invoice will detail the payment options for the Service contracted.
Our payment terms are fourteen (14) days. Late payments will incur 2% monthly interest (or the legally established maximum rate), calculated daily and a recovery fee of $200 + GST. Fees do not include expenses or incidental costs incurred by the Company (such as travel expenses, accommodation, event hire, courier services, etc).
Deposits and Credit Notes
For most services, we require a deposit to finalise the booking of the Service. The details of the required deposit are provided on the Proposal. Deposits are non-refundable, but can be redeemed for a credit note, provided the Client advises Kognitive, in writing, at least fourteen (14) days prior to the commencement of the Service. Any unused credit will expire twelve (12) months from the date of issue of the credit note.
Travel
Travel expenses booked by Kognitive will be charged at cost and incur a $100 + GST administration fee per destination. Travel arrangements for Kognitive directors will be made in business class. Travel arrangements for Kognitive consultants will be made in economy class.
Refunds
If Kognitive terminates the Agreement, the Company will provide a refund, calculated at its sole discretion, for any payment made by the Client above and beyond the Service already rendered by the Company at the date of termination. If the Client terminates the Agreement, the Company will not provide a refund. Kognitive may consider issuing certain refund requests on a case-by-case basis and will be granted at the sole discretion of the Company.
Subscriptions
Payments Subscriptions
Some of Our Services are available only with a paid Subscription. You will be billed in advance on a recurring and periodic basis (such as monthly, quarterly or annually), depending on the type of Subscription plan you select when purchasing the Service.
At the end of each period, Your Subscription will automatically renew under the exact same conditions unless You cancel it or the Company cancels it.
Subscription Cancellations
You may cancel Your Subscription renewal either through Your Account settings page or by contacting the Company in writing. You will not receive a refund for the fees You already paid for Your current Subscription period, and You will be able to access the Service until the end of Your current Subscription period.
Billing
You shall provide the Company with accurate and complete billing information including full name, address, state, zip code, telephone number, and a valid payment method information.
Should automatic billing fail to occur for any reason, the Company will issue an electronic invoice indicating that you must proceed manually, within a certain deadline date, with the full payment corresponding to the billing period as indicated on the invoice.
Fee Changes
The Company, in its sole discretion and at any time, may modify the Subscription fees. Any Subscription fee change will become effective at the end of the then-current Subscription period.
The Company will provide You with reasonable prior notice of any change in Subscription fees to give You an opportunity to terminate Your Subscription before such change becomes effective.
Your continued use of the Service after the Subscription fee change comes into effect constitutes Your agreement to pay the modified Subscription fee amount.
Footage
Recording of the Service
Recording Kognitive Services, whether video or audio, by You, Your staff, attendees or any other third party is strictly prohibited. Kognitive reserves the right to record the delivery of the Service for internal, commercial, or other purposes. Any recording of your Confidential Information will be treated as strictly confidential.
Footage Ownership
As part of the delivery of the Service, Kognitive may provide you with access to video or audio recordings (“Footage”). Kognitive is the exclusive owner of the right, title, interest and goodwill in the Footage. We have the sole right to authorise use of the Footage. We will use the Footage itself and may authorise others to use the Footage.
How You May Use The Footage
We grant to You, from the date we provide you with access to the Footage, a non-exclusive, non-transferable, royalty-free licence to use the Footage solely, in the way permitted, and in the country or countries permitted, in the Proposal.
This licence does not confer on You or your successors any proprietary right, title or interest to the Footage or any Kognitive intellectual property.
If You wish to use the Footage other than as set out in the Proposal or this Agreement, You must apply in writing to Us for permission to use the Footage. We may impose conditions on such further use including payment of a licence fee.
Transferability and Third Parties
The licence to use the Footage is exclusive and personal to You and You cannot without our prior written approval, transfer the licence granted to You to use the Footage, to any other party.
You shall not grant any right, licence or authority to any third party whether at common law or otherwise to use the Footage in relation to any goods or services.
IP, Confidentiality, and Data Protection
Intellectual Property Rights (IPR)
The Company reserves all rights (including IPR) in all materials, documentation, frameworks, models, methodologies, Footage, tools, processes, and systems that it may provide to the Client during the Service, which may not be copied or redistributed without its written consent.
Confidentiality
Each party undertakes to maintain the secrecy of the other party’s confidential information (such as proposals, prices, presentations, reports, communications, materials, or any other Client or Company data not available in the public domain), unless required to reveal the information by law or judicial order. Each party undertakes to use the other parties confidential information only for the purpose of this Agreement.
Data Protection
Kognitive shall maintain appropriate administrative, physical, and technical safeguards for protection of the confidentiality of all Client Data. Kognitive will not disclose Client Data unless required to do so by law, or as expressly permitted by the Client in writing, nor access Client Data except to provide the Service. On termination of the Service, Kognitive will return all Client Data to the Client or destroy any remaining copies, unless required to maintain the Client Data by law, in which case it will remain blocked.
Our Privacy Policy describes Our policies and procedures on the collection, use and disclosure of Your personal information when You use the Website or Service, and tells You about Your privacy rights and how the law protects You. Your access to and use of the Service is also conditioned on Your acceptance of and compliance with the Privacy Policy of the Company. Please read Our Privacy Policy carefully before using Our Service.
Term and Termination
Term and Schedule
Any dates detailed in the Proposal for provision or completion of the Service by the Company are estimates only. The schedule for the delivery of the Service may change during delivery. In no event shall the Company be liable for any delay in providing the Service.
Suspension of Service
Kognitive may suspend provision of Service in the event of delay or non-payment of any fees due for seven (7) or more calendar days. Kognitive will not be responsible for any liability or damage suffered by the Client as a result of the suspension or termination in accordance with this Agreement. The Client may suspend the Service before the Agreement term has been reached for a maximum of three (3) months. The Client must request the suspension in writing. Any unused Service which has been paid by the Client will expire three (3) months after the date the Client issues the suspension notice.
Termination
Either party may terminate this Agreement (a) at any time by providing seven (7) days written notice to the other party, (b) on notice to the other if the other enters into any liquidation, insolvency or similar proceedings, or convenes a meeting for placing itself into administration or liquidation, (c) if either party is affected by a Force Majeure which cannot be removed, overcome or abated within three (3) months; or (d) if the other party is in material breach of any of its obligations hereunder and, where such breach is remediable, fails to remedy such breach within seven (7) business days of notice to do so.
Upon termination, each party will return to the other any confidential information or proprietary materials of the other.
If the Client issues a termination notice, the Client shall be obliged to pay the Company a compensation equal to the agreed fees apportioned to the Service already rendered by the Company, plus any additional costs incurred by the Company as a result of said early termination.
If the Company issues a termination notice, the Client shall be liable for payment of an amount corresponding to the fees due for the Service already performed, while being entitled to receive the (preliminary) results of the services already performed.
Limitation of Liability
To the maximum extent permitted by applicable law, in no event shall the Company be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits, loss of data or other information, for business interruption, loss of goodwill or other intangible losses such as the procurement of substitute services). In no event will either party’s liability under this Agreement exceed the amount paid by Client for the Service. These limitations do not apply to damage due to fraud, wilful misconduct, death, or personal injury.
Law, Jurisdiction, Disputes Resolution
This Agreement shall be governed and construed in accordance with the laws of the state of Victoria, Australia. All claims and conflicts in relation to the Service and this Agreement will be submitted exclusively to the courts of Melbourne, Victoria, Australia, to the exclusion of any other. The parties agree to good faith negotiations during a period of 30 days from the date of notice of breach (other than for non-payment) in order to seek amicable settlement of any conflict prior to issuing any legal proceedings.
Severability and Waiver
Severability
If any provision of these Terms is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
Waiver
Except as provided herein, the failure to exercise a right or to require performance of an obligation under these Terms shall not affect a party's ability to exercise such right or require such performance at any time thereafter, nor shall the waiver of a breach constitute a waiver of any subsequent breach.
Changes to These Terms and Conditions
We reserve the right, at Our sole discretion, to modify or replace these Terms at any time. If a revision is material, We will make reasonable efforts to provide at least 30 days notice prior to any new terms taking effect. What constitutes a material change will be determined at Our sole discretion.
By continuing to access or use Our Service after those revisions become effective, You agree to be bound by the revised terms.
Contact Us
If you have any questions about these Terms and Conditions, You can contact us:
