Subscription Terms

1. About These Terms

Agreement structure. These Terms, together with the Schedules, the Plan selected by the Customer and any policies expressly incorporated by reference (together, the Agreement), govern access to and use of the Platform. The Agreement is between Aylwin Chan, trading as cink (ABN 93 517 592 214) (Supplier, we, us) and the entity that accepts these Terms (Customer, you).

Acceptance. The Customer accepts the Agreement by clicking to accept these Terms, creating an account, or accessing or using the Platform, whichever occurs first (the date of first acceptance being the Acceptance Date). The individual who accepts warrants that they: (a) are at least 18 years of age; (b) have authority to bind the Customer; and (c) are accepting for the purposes of the Customer's business, and not as an individual consumer.

Business customers only. The Platform is supplied for business and workforce management purposes only, to customers carrying on business in Australia.

Order of precedence. If there is any inconsistency between the documents forming the Agreement, the following order of precedence applies: (a) first, the Schedules; (b) second, these Terms; and (c) third, the Plan descriptions and any other material published on the Website. No purchase order, vendor registration form or similar document issued by the Customer forms part of the Agreement, and any terms attached to such a document are expressly excluded unless the Supplier agrees to them in writing.

2. Definitions and Interpretation

Definitions. In the Agreement, unless the context requires otherwise:

• Account means an account created by You where you have completed the Supplier's account registration process and the Supplier, at its absolute discretion, has confirmed that a valid user account has been created for the purpose of you using the Platform in accordance with the terms of this Agreement.
• Active Employee means an employee or worker profile in the Customer's account that is enabled for onboarding, rostering, timesheets or payroll at any time during a Billing Period. A profile that is archived or marked inactive for the whole of a Billing Period is not an Active Employee for that Billing Period.
• Active Employee Limit means the maximum number of Active Employees permitted under the Customer's Plan.
• Authorised User means an individual authorised by the Customer to access the Platform under the Customer's Account, being an employee, worker, contractor, officer or agent of the Customer.
• Billing Period means each monthly period for which Fees are payable, commencing on the Acceptance Date or the expiry of the Free Trial (as applicable).
• Business Day means a day other than a Saturday, Sunday or public holiday in Melbourne, Victoria.
• Confidential Information of a party means information of or relating to that party that is by its nature confidential or is designated as confidential, including business, financial, product and customer information, but excluding information that: (a) is or becomes public other than through breach of the Agreement; (b) was lawfully known to the recipient without restriction before disclosure; (c) is lawfully received from a third party without restriction; or (d) is independently developed without use of the discloser's Confidential Information.
• Competitor means a person (other than the Customer) who develops, supplies or markets a product or service that competes with the Platform or any material part of it, and any related body corporate (as defined in the Corporations Act 2001 (Cth)) of such a person.
• Consequential Loss means indirect, special, incidental, punitive or consequential loss, and (whether direct or indirect) loss of profits, revenue, anticipated savings, goodwill, business opportunity, and loss or corruption of data.
• Customer Data means data, content and information (including Personal Information and employment records such as employee details, rosters, shifts, timesheets and pay data) uploaded to, entered into or generated within the Customer's Account on the Platform by or on behalf of the Customer or its Authorised Users.
• De-identified Data means data derived from Customer Data or from use of the Platform that has been aggregated or de-identified so that it does not identify, and cannot reasonably be used to identify, the Customer or any individual.
• Documentation means the user guides, help centre content and technical documentation for the Platform published by the Supplier from time to time, and includes the Specification.
• Fees means the fees for the Customer's Plan set out on the Website, and any other amounts payable under the Agreement.
• Free Trial means a free evaluation period described in clause 4 (Free Trial and Beta).
• GST has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
• Insolvency Event means, for a party: an administrator, receiver, liquidator or similar officer is appointed; a resolution is passed or order made for winding up (other than for solvent reconstruction); the party is unable to pay its debts as they fall due; or any analogous event occurs, in each case subject to any stay under the Corporations Act 2001 (Cth).
• Intellectual Property Rights means all present and future intellectual property rights anywhere in the world, whether registered or not, including rights in patents, copyright, trade marks, designs, circuit layouts, trade secrets, know-how and confidential information.
• Personal Information has the meaning given in the Privacy Act 1988 (Cth).
• Plan means a subscription tier for the Platform described on the Website.
• Platform means the Supplier's cloud-hosted workforce management software accessible at www.cink.com.au, including its onboarding, rostering, timesheet, award interpretation, contract and policy, and payroll integration features.
• Privacy Laws means the Privacy Act 1988 (Cth), including the Australian Privacy Principles, and any other applicable privacy or data protection laws.
• Specification means the technical documentation published by the Supplier from time to time describing the features and functions of the Platform and each Plan, and which forms part of the Documentation.
• Sub-processor means a third party engaged by the Supplier to host, process or store Customer Data, as listed in Schedule 1.
• Subscription means the Customer's right to access and use the Platform under its selected Plan.
• Third-Party Service means a product or service supplied by a third party that connects to or interoperates with the Platform, including Xero.
• Website means www.cink.com.au and any related sites operated by the Supplier.

Interpretation. In the Agreement, unless the context requires otherwise: headings are for convenience only; the singular includes the plural and vice versa; "including" and similar words are not words of limitation; a reference to legislation includes amendments and replacements; a reference to a clause or Schedule is to a clause of, or schedule to, these Terms; and all amounts are in Australian dollars.

3. Term

Term of Agreement. The Agreement commences on the Acceptance Date and continues until terminated in accordance with its terms.

Subscription renewal. Each Subscription commences at the start of the first Billing Period and automatically renews for successive Billing Periods unless and until cancelled under clause 23.1 (Termination) or the Agreement is otherwise terminated.

4. Free Trial and Beta

4.1 Trial offer

The Supplier may offer a Free Trial of 14/30 days (or such other period as the Supplier specifies). The Free Trial is limited to one per Customer, may be limited to particular Plans or features, and may be modified, suspended or withdrawn by the Supplier at any time.

4.2 Trial conversion and data

At the end of the Free Trial the Customer may subscribe to a Plan. If the Customer does not subscribe within 30 days after the end of the Free Trial, the Supplier may delete the Customer's Account and all Customer Data entered during the Free Trial, and the Customer must export any data it wishes to keep before then.

4.3 Trial disclaimer

To the maximum extent permitted by law (and subject always to clause 18 (Australian Consumer Law)), the Platform is provided during a Free Trial "as is", without warranties, and the Supplier's total liability in connection with a Free Trial is limited to liability that cannot be excluded by law.

4.4 Beta Features — opt-in

The Supplier may invite the Customer to use Beta Features. Beta Features are optional: they apply only if the Customer (through its account administrator) chooses to enable them, and the Customer may disable them at any time through its Account settings. The Supplier may make a Beta Feature subject to additional terms presented when it is enabled.

4.5 Nature of Beta Features

The Customer acknowledges that Beta Features are pre-release: they are experimental, may be incomplete, may contain errors, may change materially, and may be suspended or withdrawn at any time without notice. The Supplier does not promise that a Beta Feature will become generally available, and a Beta Feature does not form part of the core functionality of the Customer's Plan for the purposes of clause 7.2 (The Platform). If a Beta Feature becomes generally available, the Supplier may make it available only on certain Plans or for an additional fee, on notice under clause 12.3 (Fees, payment and taxes).

4.6 Beta Features and Customer Data

Clauses 13 (Customer Data), 14 (Privacy and data protection) and 15 (Security) apply to Customer Data processed by a Beta Feature. However, given their pre-release nature, the Customer: (a) should not rely on a Beta Feature as its only means of performing any workforce management task; (b) must not act on any output of a Beta Feature that affects rosters, hours, pay or entitlements without independent verification, and clause 10 (No advice — Customer is the employer) applies to Beta Feature outputs; and (c) acknowledges that data generated within a Beta Feature may be lost or become unusable if the Beta Feature changes or is withdrawn, and should export anything it needs to keep.

4.7 Beta disclaimer

To the maximum extent permitted by law (and subject always to clause 18 (Australian Consumer Law)), Beta Features are provided "as is", without warranties or availability commitments, and the Supplier's total liability in connection with a Beta Feature is limited to liability that cannot be excluded by law. Feedback on Beta Features is dealt with under clause 16.4 (Feedback).

5. Plans

5.1 Plans and Fees

The Plans, their Fees, included features and limits including Active Employee Limits are set out on the Website. Fees are a flat amount per Billing Period for the selected Plan and are not charged per employee.

5.2 Plan limits

The Customer must not exceed any limits including its Active Employee Limit. The Platform may prevent the activation of additional employee profiles above the limit. If the number of Active Employees exceeds the limit, the Supplier may notify the Customer, and the Customer must within 10 Business Days either reduce its Active Employees to within the limit or upgrade to a Plan with a sufficient limit. Plan usage is measured by the Platform's records, which are conclusive absent manifest error.

5.3 Upgrades

The Customer may upgrade its Plan at any time. Upgrades take effect immediately; the Supplier will charge the difference in Fees for the remainder of the current Billing Period on a pro-rata basis, and the new Plan Fee applies from the next Billing Period.

5.4 Downgrades

The Customer may downgrade its Plan with effect from the next Billing Period. The Customer acknowledges that downgrading may result in loss of access to features, and that the downgraded Plan's limits including Active Employee Limit will apply. No refund is payable for a downgrade taking effect after a Billing Period has been paid for, except as required by law.

5.5 Fair use

Use of the Platform is subject to the fair use limits (if any) described on the Website, including any limits on storage, API calls or SMS volumes.

6. Accounts and Access

6.1 Account creation

To use the Platform, you must have a valid Account. To create an Account for the Platform, you must provide the Supplier with registration information the Supplier requires from time to time.

6.2 Account administrator

The Customer must nominate at least one account administrator, who controls the Customer's Account settings, Authorised Users, permissions and integrations. The Customer is responsible for all activity occurring under its Account, including the acts and omissions of its account administrator and Authorised Users, as if they were the Customer's own.

6.3 Access right

Subject to the Agreement and payment of the Fees, the Supplier grants the Customer a non-exclusive, non-transferable right during the Subscription for its Authorised Users to access and use the Platform and the Documentation for the Customer's internal business and workforce management purposes. The Customer must not sublicense, resell or make the Platform available to any third party (other than Authorised Users), including any related body corporate, without the Supplier's written consent.

6.4 Passcode login

Authorised Users authenticate by one-time passcodes sent to the email address (or, where offered, mobile number) registered for that user. There are no passwords. The Customer acknowledges and agrees that:

• the security of each Authorised User's access depends on the security of that user's registered email account (or mobile service), which is outside the Supplier's control;
• any person with access to a registered email account may be able to access the Platform as that Authorised User;
• the Customer must ensure that registered email addresses are current, controlled by the correct individual and appropriately secured, and must promptly deactivate or update the profile of any person who ceases to be engaged by the Customer or who loses control of their registered email account; and
• the Supplier will treat access using a validly issued one-time passcode as access by the relevant Authorised User.

6.5 Unauthorised access

The Customer must notify the Supplier promptly if it becomes aware of any unauthorised access to or use of its Account.

7. The Platform

7.1 Service standard

The Supplier will provide the Platform with due care and skill and substantially in accordance with the Specification.

7.2 Multi-tenancy and changes

The Customer acknowledges that the Platform is a multi-tenant service operated on a shared code base for all customers. The Supplier may modify, add or remove features from time to time, provided that during a paid Subscription the Supplier will not materially reduce the core functionality of the Customer's Plan without giving at least 30 days' notice. If a change materially reduces the core functionality of the Customer's Plan, the Customer may cancel its Subscription by notice, effective before the change takes effect, and the Supplier will refund any prepaid Fees for the period after cancellation.

7.3 Maintenance

The Supplier may perform scheduled maintenance, which it will endeavour to schedule outside Australian business hours and to notify at least 48 hours in advance, and may perform emergency maintenance at any time.

7.4 Availability

The Supplier will use commercially reasonable efforts to make the Platform available at all times but, subject to clause 18 (Australian Consumer Law), does not promise that the Platform will be continuous, uninterrupted or error-free. Availability of the Platform depends on the internet, the Customer's own connectivity and systems, Third-Party Services and other factors, which are outside the Supplier's control.

7.5 Cloud hosting

The Customer acknowledges that the Platform is hosted on third-party cloud infrastructure identified in Schedule 1. Subject to clause 18 (Australian Consumer Law), the Supplier does not warrant the uninterrupted availability or performance of that infrastructure; the Supplier's obligation in respect of it is to exercise due care and skill in selecting, configuring and managing it.

7.6 Supplier use of AI

The Customer acknowledges that the Supplier may use machine learning and other artificial intelligence technologies (its own or those of its Sub-processors) in developing, operating, securing and improving the Platform — for example in award interpretation logic, anomaly and fraud detection and service monitoring — whether or not those technologies are visible to the Customer. Any such use is on the basis that:

• it does not limit or qualify the Supplier's obligations under the Agreement, which apply regardless of the tools and technologies the Supplier uses to provide the Platform;
• where it involves Customer Data, the processing must remain within the licence and purposes in clause 13.1 (Customer Data) and comply with clause 14 (Privacy and data protection) and clause 15 (Security), and any third party whose artificial intelligence service processes Customer Data must be listed as a Sub-processor in Schedule 1 (and clause 14.3 applies to any change);
• the Supplier will not use Customer Data that identifies the Customer or any individual to train generalised artificial intelligence models (whether its own or a third party's) without the Customer's express consent; and
• subject to this clause, the Supplier is not required to notify the Customer of, or obtain consent for, the internal tools and technologies it uses from time to time.

8. Support and Professional Services

8.1 Basic support

The Supplier provides basic support for the Platform by email to support@cink.com.au during Australian business hours in Victoria, and the Supplier will use reasonable endeavours to respond to general support queries. The Supplier is not obliged to provide any other support, helpdesk, training or maintenance assistance services in connection with the Platform, and no service levels, availability commitments or response times apply. The Platform is provided on a self-service basis, with the Documentation available at www.cink.com.au Nothing in this clause limits clause 18 (Australian Consumer Law).

8.2 No professional services

The Supplier does not provide professional, implementation, configuration or consulting services under the Agreement.

9. Customer Obligations and Acceptable Use

9.1 Customer warranties

The Customer warrants and must ensure that:

• all Customer Data (including employee details, award or agreement classifications, pay rates, superannuation details and hours worked) is accurate, complete and current, and the Customer has all rights, consents and authorities needed to provide it to the Supplier for use under the Agreement;
• its use of the Platform, and its employment and engagement of its personnel, complies with all applicable laws, industrial instruments and contracts; and
• it maintains its own records and copies of source documents as required by law, independently of the Platform.

9.2 Acceptable use

The Customer must not, and must ensure its Authorised Users do not:

• resell, sublicense or commercially exploit the Platform, or use it to provide services to third parties (including bureau-style payroll or rostering services) without the Supplier's written consent;
• copy, modify, adapt, translate or create derivative works of the Platform, or reverse engineer, decompile or disassemble it or attempt to discover its source code, except to the extent a right to do so cannot be excluded by law;
• access or use the Platform or the Documentation to develop, build or improve, or assist any person to develop, build or improve, a product or service that competes with the Platform, or to conduct competitive analysis or benchmarking of the Platform for the benefit of a Competitor, or permit a Competitor to access or use the Platform or the Documentation, except with the Supplier's prior written consent;
• use the Platform or its content to train any machine learning or artificial intelligence model;
• interfere with or disrupt the integrity or performance of the Platform, probe or test its security without the Supplier's prior written consent, or introduce any virus or malicious code;
• use scrapers, robots or other automated means to access the Platform except via any published API in accordance with the Documentation;
• upload or transmit any content that is unlawful, infringing, defamatory or offensive; or
• share login access, circumvent the one-time passcode mechanism, or exceed the usage or Active Employee limits of its Plan.

9.3 Monitoring

The Supplier may (but is not obliged to) monitor use of the Platform for security, capacity, audit and compliance purposes.

10. No Advice — Customer Is the Employer

10.1 Platform is a tool

The Platform is a software tool. Rosters, award interpretation outputs, penalty rate and allowance calculations, timesheet variances, contract and policy templates, and payroll data exported to payroll software such as Xero are generated from the configuration, classifications and data selected or supplied by the Customer.

10.2 No advice

The Supplier does not provide legal, accounting, tax, payroll or workplace relations advice. Nothing in the Platform or Documentation is advice about the Customer's obligations under the Fair Work Act 2009 (Cth), any modern award or enterprise agreement, superannuation or taxation law, or any other law.

10.3 Employer responsibilities

The Customer remains solely responsible, as the employer, for: (a) determining award or agreement coverage and employee classifications; (b) verifying pay rates, penalties, allowances, superannuation and tax treatment; (c) reviewing and approving all timesheets and pay data before any pay run is processed in the payroll software or otherwise; and (d) complying with its record-keeping, payslip and other employer obligations. The Customer should obtain its own professional advice where required.

11. Third-Party Services and Integrations

11.1 Integrations

The Platform interoperates with certain Third-Party Services, including Xero. Integrations are optional. By enabling an integration, the Customer authorises the Supplier to exchange Customer Data with that Third-Party Service as required to provide the integration, and authorises the Third-Party Service provider to receive and handle that data under its own terms.

11.2 Third-party terms

Each Third-Party Service is governed by its own terms and privacy policy, which the Customer accepts directly with the relevant provider. The Customer must hold and maintain its own subscription to the Third-Party Service (including Xero). The Supplier is not a party to those terms and, subject to clause 18 (Australian Consumer Law), is not responsible for any Third-Party Service, including its availability, performance, security or handling of Customer Data.

11.3 Third-party costs and changes

The Customer is responsible for the fees and costs of any Third-Party Service. If a Third-Party Service provider changes or withdraws its service or API, the Supplier may modify, suspend or withdraw the affected integration and will notify the Customer where reasonably practicable. The Supplier is not liable for the consequences of such third-party changes, but if a withdrawn integration is core to the Customer's Plan, the Customer may cancel under clause 7.2 (The Platform) as if it were a material reduction in core functionality.

12. Fees, Payment and Taxes

12.1 Payment

The Customer must pay the Fees for its Plan for each Billing Period in advance, by the payment method selected in its account (credit or debit card, or direct debit, processed by the Supplier's payment processor). The Customer authorises the Supplier and its payment processor to debit the Fees, and any other amounts payable under the Agreement, on a recurring basis at the start of each Billing Period, and must keep a valid payment method registered.

12.2 No refunds

Except as expressly provided in the Agreement (including clauses 7.2 (The Platform), 25.3 (Force majeure) and 26.2 (Changes to these Terms)) or as required by law, Fees are non-refundable and no refund or credit is given for partial Billing Periods, unused features or unused Active Employee capacity or other unused limits.

12.3 Fee changes

The Supplier may change the Fees or introduce new charges by giving at least 60 days' notice. Changes take effect from the start of the next Billing Period after the notice period ends. If the Customer does not accept a Fee increase, it may cancel its Subscription under clause 23.1 (Customer cancellation) effective before the increase takes effect.

12.4 Late payment

If any payment fails or any amount is not paid when due, the Supplier may retry the payment method, and may charge interest on overdue amounts at 1.5% per month (or the maximum rate permitted by law if less), accruing daily from the due date until payment. The Customer must reimburse the Supplier's reasonable costs of recovering overdue amounts. If any amount remains unpaid 15 days after the Supplier gives notice of the failed or overdue payment, the Supplier may suspend under clause 22 (Suspension) or terminate under clause 23.3 (Supplier termination).

12.5 Disputed charges

If the Customer disputes a charge in good faith, it must notify the Supplier in writing within 10 Business Days of the charge, identifying the disputed amount and the basis of the dispute, and must pay all undisputed amounts. The parties will seek to resolve the dispute promptly under clause 28 (Dispute resolution); any amount found payable must be paid within 5 Business Days of resolution.

12.6 GST and taxes

Unless expressly stated to be GST-inclusive, amounts payable under the Agreement are exclusive of GST, and the Customer must pay GST on a taxable supply in addition to those amounts on receipt of a valid tax invoice. The Customer is responsible for all other taxes, duties and government charges in connection with the Agreement, other than taxes on the Supplier's income. If the Customer is required by law to withhold any amount from a payment, it must gross up the payment so the Supplier receives the amount it would have received but for the withholding.

13. Customer Data

13.1 Ownership and licence

As between the parties, the Customer owns all Customer Data. The Customer grants the Supplier a non-exclusive, worldwide, royalty-free licence to host, store, copy, process, transmit, display and back up Customer Data, and to disclose it to Sub-processors and Third-Party Services enabled by the Customer, solely to the extent necessary to: (a) provide, secure, operate and maintain the Platform; (b) comply with law; and (c) exercise the Supplier's rights and perform its obligations under the Agreement.

13.2 De-identified Data

The Supplier may create and use De-identified Data for any purpose, including operating, benchmarking, improving and developing its products and services, provided the Supplier does not disclose De-identified Data in a form that identifies the Customer or any individual, and does not use Customer Data to train third-party artificial intelligence models without the Customer's consent.

13.3 Backups

The Supplier performs routine backups of Customer Data for platform restoration purposes. The Platform is not an archival or record-keeping service, and the Customer must keep its own copies of, and is responsible for retaining, employment and payroll records as required by law. While the Supplier will take all reasonable measures to preserve the Customer Data which the Supplier may have access to while providing the Services, the Supplier is not responsible for any data loss, erasure, or corruption for any reason. The Customer must maintain backup data to avoid any loss or damage arising from such corruption or erasure and will hold the Supplier and its employees harmless from any claims, loss or damage arising from a failure to restore the Customer Data resulting directly or indirectly from the Customer's failure to keep adequate and proper backups.

13.4 Content removal

The Supplier does not, and is not obliged to, monitor or pre-screen Customer Data. The Supplier may remove, delete or disable access to any Customer Data that it reasonably considers to be unlawful, to infringe any person's rights or to breach clause 9 (Customer obligations and acceptable use), or where required by law or by a regulator. Unless urgent action is reasonably required, the Supplier will notify the Customer and give the Customer a reasonable opportunity to remedy the issue before taking that action.

13.5 Data on termination

Rights and obligations relating to Customer Data on termination are set out in clause 24 (Consequences of termination).

14. Privacy and Data Protection

14.1 Privacy compliance

Each party must comply with the Privacy Laws in connection with the Agreement. The Supplier will handle Personal Information contained in Customer Data in accordance with the Privacy Laws. The Supplier's privacy policy is located at www.cink.com.au/privacy.html.

14.2 Customer consents

The Customer warrants that it has provided all notices to, and obtained all consents from, individuals (including its employees, workers and job candidates) required under the Privacy Laws for the collection, use, disclosure and cross-border transfer of their Personal Information as contemplated by the Agreement, including disclosure to the Supplier and its Sub-processors and processing outside Australia as described in Schedule 1 and for workers under 18 years old. This warranty applies whether Personal Information is entered into the Platform by the Customer or its Authorised Users, or by an individual at the Customer's invitation or direction (for example, an employee completing onboarding or submitting timesheets directly), and the Customer must ensure that each individual it invites to use the Platform is directed to the Supplier's privacy policy and any collection notice presented in the Platform.

14.3 Hosting locations and Sub-processors

Customer Data is stored at rest in Australia (currently on Amazon Web Services infrastructure in Sydney). The application layer of the Platform is delivered from infrastructure located in Singapore (currently Render), and Customer Data may transit through, or be processed in memory in, that infrastructure in the course of delivering the Platform. The Supplier's current Sub-processors and processing locations are listed in Schedule 1. The Supplier may change or add Sub-processors or locations by updating Schedule 1 or its Website and giving the Customer notice; if a change involves Personal Information being stored at rest outside Australia and the Customer reasonably objects on privacy grounds within 14 days, the Customer may cancel its Subscription under clause 23.1 (Customer cancellation) and receive a refund of Fees prepaid for the period after cancellation.

14.4 Data breach notification

If a party becomes aware of unauthorised access to, or disclosure or loss of, Personal Information in Customer Data, it must notify the other party without undue delay and in any event within 72 hours of becoming aware, and provide reasonable details of the incident, the information affected and the remediation steps taken or proposed. The parties must cooperate in responding. Nothing in the Agreement prevents either party from notifying the Office of the Australian Information Commissioner or any other regulator where it is required by law to do so.

15. Security

15.1 Security measures

The Supplier will implement and maintain reasonable technical and organisational security measures, consistent with industry practice for cloud services of this kind, designed to protect Customer Data against unauthorised access, disclosure, alteration and loss, including encryption of Customer Data in transit and at rest, access controls, one-time passcode authentication, logging, and vulnerability management. A current summary of the Supplier's security measures is available at www.cink.com.au/security.html.

15.2 Security limitations

The Customer acknowledges that no security measures are impenetrable. Subject to clause 18 (Australian Consumer Law), the Supplier is not responsible for unauthorised access, loss or disclosure to the extent caused by: (a) the Customer's or its Authorised Users' systems, networks, email accounts or security practices; (b) the Customer's failure to implement security practices recommended by the Supplier or to deactivate departed users; (c) a Third-Party Service; or (d) sophisticated attacks that overcome reasonable measures.

16. Intellectual Property

16.1 Background IP

Each party retains ownership of all Intellectual Property Rights that it owned or licensed before the Acceptance Date, or that it creates or acquires independently of the Agreement, and nothing in the Agreement transfers them.

16.2 Supplier IP

The Supplier and its licensors own all Intellectual Property Rights in the Platform, the Documentation, together with all other materials made available by or on behalf of the Supplier through or in connection with the Platform — including document templates, forms, checklists, workflows, and award and pay rule logic ("Platform Materials") — and all improvements, enhancements, modifications and derivative works of them, whenever created, including any created in the course of providing the Platform or arising from Feedback. Nothing in the Agreement transfers any Intellectual Property Rights in the Platform or the Platform Materials to the Customer, and the Customer's only rights are those in clause 6.3 (Access right) and, in the case of document templates, the licence in clause 16.3; for the purposes of clauses 6.2, 9.2 (Acceptable use) and 17 (Confidentiality) those materials are treated as forming part of the Platform.

16.3 Customer Data and templates

Nothing in the Agreement transfers Customer Data to the Supplier. Document templates made available in the Platform are licensed to the Customer for its internal business use for its own workforce during the Subscription and, as completed documents applying to its own workforce, after it ends; the underlying templates must not be extracted, republished or commercially exploited.

16.4 Feedback

If the Customer provides suggestions, ideas or other feedback about the Platform (Feedback), the Supplier may use and commercialise the Feedback without restriction or payment, and the Customer assigns to the Supplier all Intellectual Property Rights in the Feedback on creation.

16.5 Trade marks and publicity

Neither party may use the other party's name, logo or trade marks without prior written consent, except that the Supplier may identify the Customer by name and logo as a customer in its marketing materials unless the Customer opts out by notice or through its Account settings.

16.6 Open source software

The Platform incorporates open source and other third-party software components licensed under their own terms. A list of material open source components and their licences is available on request. Open source components are supplied as part of the Platform: nothing in this clause limits the Supplier's obligations in relation to the Platform as a whole under clause 7.1 (Service standard) or clause 19.2 (Supplier warranties). Subject to clause 18 (Australian Consumer Law), the Supplier gives no separate warranty in respect of open source components as such, and to the extent an open source licence grants the Customer rights directly, those rights are as stated in that licence.

17. Confidentiality

17.1 Confidentiality obligations

Each party must keep the other party's Confidential Information confidential, use it only for the purposes of the Agreement, and disclose it only to its personnel and advisers who need to know it and are bound by confidentiality obligations, or as required by law or a regulator (with notice to the other party where lawful and practicable).

17.2 Duration

The obligations in this clause 17 (Confidentiality) continue after termination of the Agreement.

17.3 Skills and know-how

Nothing in the Agreement prevents the Supplier from using the general knowledge, skills, experience, ideas and techniques of its personnel acquired in performing the Agreement, provided it does not disclose the Customer's Confidential Information.

18. Australian Consumer Law

18.1 Non-excludable rights

The Customer may have rights under the Australian Consumer Law (ACL), including consumer guarantees, that cannot be excluded, restricted or modified. Nothing in the Agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term, implied or imposed by law (including the ACL) that cannot lawfully be excluded, restricted or modified.

18.2 Limitation of remedies

If the ACL applies to a supply under the Agreement and permits the Supplier to limit its liability for failure to comply with a consumer guarantee, the Supplier's liability for that failure is limited, at the Supplier's option, to: (a) supplying the services again; or (b) paying the cost of having the services supplied again.

19. Warranties and Disclaimers

19.1 Mutual warranties

Each party warrants that it has full power and authority to enter into and perform the Agreement.

19.2 Supplier warranties

The Supplier warrants that it will provide the Platform with due care and skill and that the Platform will perform substantially in accordance with the Specification current at the relevant time. The Customer's remedies for breach of this warranty are set out in clause 18 (Australian Consumer Law) and clause 20 (Limitation of liability).

19.3 Disclaimer

Subject to clause 18 (Australian Consumer Law), all conditions, warranties, guarantees and representations not expressly set out in the Agreement are excluded, including any implied warranties of merchantability, fitness for a particular purpose or non-infringement. The Supplier does not warrant that the Platform will be uninterrupted, error-free or secure, that defects will be corrected, or that the Platform will meet the Customer's requirements beyond the functionality described in the Specification and the Customer's Plan.

20. Limitation of Liability

20.1 Consequential loss

Subject to clause 18 (Australian Consumer Law) and clause 20.3 (Exceptions), neither party is liable to the other for Consequential Loss, however arising (whether in contract, tort including negligence, under statute or otherwise), even if the party was aware of the possibility of the loss.

20.2 Liability cap

Subject to clause 18 (Australian Consumer Law) and clause 20.3 (Exceptions), each party's total aggregate liability to the other party for all claims arising out of or in connection with the Agreement (in contract, tort including negligence, under statute or otherwise) is limited to the total Fees paid or payable by the Customer in the 12 months immediately preceding the event giving rise to the claim (or, where the Agreement has been in force for less than 12 months at that time, the average monthly Fees paid or payable to that time multiplied by 12).

20.3 Exceptions

Nothing in the Agreement excludes or limits either party's liability for: (a) death or personal injury caused by its negligence; (b) fraud or fraudulent misrepresentation; (c) liability that cannot be excluded or limited by law; or, in the Customer's case, (d) its obligation to pay the Fees or (e) its liability under clause 21.1 (Customer indemnity) to the extent the relevant claim results from its wilful misconduct or unlawful act. The caps and exclusions in this clause 20 (Limitation of liability) otherwise apply to liability under the indemnity in clause 21 (Indemnities).

20.4 Proportionate reduction

A party's liability is reduced proportionately to the extent the loss was caused or contributed to by the other party (including by inaccurate Customer Data or a breach of clause 9 (Customer obligations and acceptable use) or clause 10 (No advice — Customer is the employer)).

21. Indemnities

21.1 Customer indemnity

The Customer indemnifies the Supplier against loss, damage, costs (including reasonable legal costs) and liability the Supplier suffers or incurs arising from a third-party claim to the extent caused by: (a) Customer Data, including any claim that it infringes rights or breaches law; (b) the Customer's or its Authorised Users' use of the Platform in breach of the Agreement or unlawfully; or (c) the Customer's breach of its employer obligations, including any claim by its employees or workers relating to rosters, wages, entitlements or payroll processed using the Platform, except in each case to the extent caused by the Supplier's breach of the Agreement or negligence.

21.2 Indemnity procedure

The indemnified party must notify the other promptly of any claim, give the indemnifying party sole control of the defence and settlement (provided any settlement fully releases the indemnified party without admission or payment by it), and provide reasonable cooperation at the indemnifying party's cost.

22. Suspension

22.1 Suspension grounds

The Supplier may suspend the Customer's or any Authorised User's access to all or part of the Platform, on notice where reasonably practicable, if: (a) an amount remains unpaid 15 days after notice of a failed or overdue payment under clause 12.4 (Late payment); (b) the Supplier reasonably considers suspension necessary to protect the security or integrity of the Platform, other customers or any data; (c) the Customer or an Authorised User uses the Platform unlawfully or in material breach of clause 9 (Customer obligations and acceptable use); (d) the Customer exceeds its Active Employee Limit or other limits and has not remedied that within the period in clause 5.2 (Plan limits); or (e) suspension is required by law.

22.2 Suspension limits

The Supplier will limit any suspension to what is reasonably necessary in scope and duration and will restore access promptly once the ground for suspension is resolved. Fees continue to accrue during a suspension under clause 22.1(a), (c) or (d). Suspension does not limit the Supplier's other rights, and exercise of a suspension right in accordance with this clause does not make the Supplier liable to the Customer, subject to clause 18 (Australian Consumer Law).

23. Termination

23.1 Customer cancellation

The Customer may cancel its Subscription or the Agreement at any time through its account settings or by notice. Cancellation takes effect at the end of the then-current Billing Period, and Fees already paid are not refundable except as expressly provided in the Agreement or required by law.

23.2 Termination for cause

Either party may terminate the Agreement by notice if: (a) the other party materially breaches the Agreement and, where the breach is capable of remedy, fails to remedy it within 30 days of notice requiring remedy; or (b) subject to any applicable stay under the Corporations Act 2001 (Cth), the other party suffers an Insolvency Event.

23.3 Supplier termination

The Supplier may terminate the Agreement or any Subscription immediately by notice if: (a) an amount remains unpaid 15 days after notice under clause 12.4 (Late payment); (b) the Customer or an Authorised User uses the Platform unlawfully or in serious or persistent breach of clause 9 (Customer obligations and acceptable use); or (c) a suspension under clause 22.1 (Suspension grounds) has continued for 30 days or more without the ground for suspension being resolved.

23.4 Competitor change of control

The Customer must promptly notify the Supplier if a Competitor acquires Control of the Customer. If a Competitor acquires Control of the Customer, the Supplier may terminate the Agreement or any Subscription by giving 30 days' written notice, and will refund any Fees prepaid for the period after termination. In this clause, Control means the power, whether direct or indirect, to control more than 50% of the voting rights in the Customer, or to control the composition of the Customer's board or the management of the Customer.

24. Consequences of Termination

24.1 Effect of termination

On termination or expiry of the Agreement, or cancellation of a Subscription: (a) the Customer's and its Authorised Users' access rights end; (b) all amounts due to the Supplier for the period up to the effective date become immediately payable; and (c) each party must, at the other's request, return or destroy the other's Confidential Information, except as needed to comply with law or this clause 24 (Consequences of termination).

24.2 Data export

For 30 days after the effective date of termination or cancellation (the Export Period), the Supplier will, on request, make Customer Data available for export in a commonly used, machine-readable format (such as CSV). In the case of a suspension, retrieval of data during this window may be subject to an administrative fee of $180 (excluding GST).

24.3 Data deletion

Subject to clause 24.4 (Permitted retention), after the Export Period, the Supplier will delete or de-identify Customer Data within 90 days. The Supplier has no liability for deletion of Customer Data in accordance with this clause.

24.4 Permitted retention

Despite any obligation in the Agreement to return, delete or destroy Confidential Information or Customer Data on or after termination, the Supplier may retain Confidential Information and Customer Data to the extent that:

• retention is required by law, or by a regulator, court or government authority (including under tax, corporations, and record-keeping laws);
• it is held in routine backup, archival or disaster recovery systems, until overwritten or expired in the ordinary course of the Supplier's backup cycle;
• it comprises records of the commercial relationship reasonably required to establish, exercise or defend legal claims, to enforce the Agreement, or to demonstrate the performance of the Supplier's obligations — including billing, payment, account and audit records, logs, and records of consents, notices and instructions given under the Agreement;
• retention is reasonably required for the Supplier's insurance, audit or professional compliance purposes; or
• it is De-identified Data, which the Supplier may retain and use in accordance with clause 13.2 (De-identified Data),

provided that any information retained under the above: (i) is retained only for so long as, and to the extent, the relevant purpose requires; (ii) is not used for any other purpose; (iii) remains subject to clauses 14 (Privacy and data protection), 15 (Security) and 17 (Confidentiality), which continue to apply to it despite termination for as long as it is retained; and (iv) in the case of backup copies, is not restored to a live environment except for disaster recovery or as required by law.

24.5 Survival

Clauses 2 (Definitions and interpretation), 10 (No advice — Customer is the employer), 12 (Fees, payment and taxes), 13.2 (De-identified Data), 14 (Privacy and data protection), 16 (Intellectual property), 17 (Confidentiality), 18 (Australian Consumer Law), 20 (Limitation of liability), 21 (Indemnities), 23 (Termination), 24 (Consequences of termination), 28 (Dispute resolution) and 29 (General), and any other provision which by its nature should survive, survive termination or expiry of the Agreement.

25. Force Majeure

25.1 Force majeure

Neither party is liable for a failure or delay in performing its obligations (other than an obligation to pay money) to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, fire, flood, war, terrorism, civil unrest, government action, epidemics or pandemics, labour disputes, power failures, and failures of the internet, telecommunications networks, data centres or cloud infrastructure providers (a Force Majeure Event).

25.2 Mitigation

The affected party must notify the other party, use reasonable endeavours to mitigate the effect of the Force Majeure Event, and resume performance as soon as reasonably practicable.

25.3 Extended force majeure

If a Force Majeure Event prevents the Platform from being materially available for more than 30 consecutive days, either party may terminate the Agreement by notice and the Supplier will refund any Fees prepaid for the period after termination.

26. Changes to These Terms

26.1 Updates to Terms

The Supplier may update these Terms from time to time. For material changes, the Supplier will give at least 30 days' notice (by email or in-app notice) before the changes take effect. Non-material changes (such as corrections, clarifications or changes required by law) may take effect on publication.

26.2 Detrimental changes

If a material change is detrimental to the Customer, the Customer may cancel its Subscription by notice before the change takes effect, and the Supplier will refund any Fees prepaid for the period after cancellation. The Customer's continued use of the Platform after a change takes effect constitutes acceptance of the change.

27. Notices

27.1 Notices

Notices under the Agreement must be in writing and may be given: (a) to the Customer, by email to the account administrator's registered email address or by in-app notice; and (b) to the Supplier, by email to support@cink.com.au. A notice is taken to be received: if sent by email, at the time shown in a delivery receipt or, absent evidence to the contrary, 4 hours after sending to the correct address (or, if outside Business Day hours, at 9.00 am on the next Business Day); and if given in-app, when the Customer next accesses the Platform or 48 hours after posting, whichever is earlier.

27.2 Service communications

The Supplier may send the Customer and its Authorised Users operational and service communications, including one-time passcodes, security and fraud alerts, maintenance and downtime notices, billing and renewal notices, and any notices required by law. These communications are essential to the operation of the Platform and cannot be opted out of while the Customer holds an Account, and the Customer must take reasonable steps to ensure they are not blocked or filtered. This clause does not apply to marketing communications, which remain subject to applicable opt-out laws (including the Spam Act 2003 (Cth)).

28. Dispute Resolution

28.1 No proceedings before process

A party must not commence court proceedings in relation to a dispute arising out of or in connection with the Agreement without first complying with this clause 28 (Dispute resolution), except to seek urgent interlocutory or injunctive relief.

28.2 Dispute process

A party claiming a dispute must give the other party a notice setting out the details of the dispute. Senior representatives of the parties must meet (in person or by video conference) within 10 Business Days of the notice and negotiate in good faith to resolve the dispute. If the dispute is not resolved within 30 days of the notice, either party may commence proceedings.

28.3 Obligations continue

The parties must continue to perform their obligations under the Agreement despite the dispute, except to the extent the dispute relates to the obligation in question. Each party bears its own costs of the dispute resolution process.

29. General

29.1 Assignment and subcontracting

The Customer must not assign or novate the Agreement without the Supplier's prior written consent (not to be unreasonably withheld). The Supplier may assign or novate the Agreement to a related body corporate or in connection with a merger, acquisition, corporate restructure or sale of the business or assets to which the Agreement relates, and will notify the Customer. The Supplier may subcontract its obligations under this Agreement but remains responsible for the performance of its subcontractors.

29.2 Entire agreement

The Agreement constitutes the entire agreement between the parties in relation to its subject matter and supersedes all prior agreements, representations and understandings. Nothing in this clause limits liability for a false or misleading representation or excludes any non-excludable statutory right.

29.3 Severability

If a provision of the Agreement is void, unenforceable or illegal (including under the unfair contract terms provisions of the ACL), it is severed or read down to the minimum extent necessary, and the remainder of the Agreement continues in force.

29.4 Waiver

A failure or delay in exercising a right is not a waiver of it. A waiver is effective only if in writing.

29.5 Relationship

The parties are independent contractors. The Agreement does not create a partnership, joint venture, employment or agency relationship. In particular, the Supplier is not the employer of, and owes no obligations to, the Customer's employees or workers.

29.6 No personal liability

No director, officer or employee of the Supplier has any personal liability under the Agreement.

29.7 Governing law and jurisdiction

The Agreement is governed by the laws of Victoria, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria and the courts of appeal from them.

Schedule 1 — Hosting Locations and Sub-processors

Sub-processor	Service	Location	Data processed
Amazon Web Services	Cloud hosting and storage (data at rest)	Sydney, Australia (ap-southeast-2)	All Customer Data
Render	Application hosting and delivery	Singapore	Customer Data in transit / processed in memory
Stripe	Payment processing	United States	Billing contact and payment data (card data held by processor, not the Supplier)
Resend	Transactional email and SMS (including one-time passcodes)	Japan	User names, email addresses, mobile numbers
Google Workspace	Email delivery	United States	Email addresses
Cloudflare	Document storage	Oceania / New Zealand	—
claude.ai	Machine learning / AI processing for the Platform	United States	No customer data

For questions about these Terms, contact:

Entity	Aylwin Chan (ABN 93 517 592 214), trading as cink
Support and notices	support@cink.com.au