As part of the Kynd Services, you may access our platform. It is available at ‘kynd.com.au', via mobile apps and other channels (together, the Platform).
Our Platform allows Members and Support Workers to share information, connect, interact and transact in relation to the National Disability Insurance Scheme (NDIS).
You agree that we provide the Kynd Services only. We do not engage any Support Worker as our employee, contractor, partner or agent (except as a limited payment collection agent) and we do not provide Members with Support Services.
You understand and agree that we have no control over the conduct of Members or Support Workers.
All benefits owing to employees under the Employment Legislation including minimum wages, superannuation, workers compensation, leave entitlements or any other employee benefit.
The Fair Work Act 2009 (Cth), Fair Work Regulations 2009 (Cth), Superannuation Guarantee Charge Act 1992 (Cth), Superannuation Guarantee (Administration) Act 1992 (Cth) or any industrial instrument such as a modern award or enterprise agreement.
A person who is:
a Participant; and/or
a person or organisation acting on behalf of a Participant whom is authorised to bind the Participant to these terms, and has received consent to act on the Participant’s behalf; and/or
others seeking Support Services;
A person who is a registered participant of the NDIS as determined by the National Disability Insurance Agency (NDIA) and who also holds a valid NDIS funding plan that is either self-managed or plan managed;
A person or entity who is registered to provide Support Services on the Platform, and if the Support Worker is an entity, the Support Worker means that entity and the authorised person of the entity (Authorised Person) (as applicable);
We provide the Kynd Services, which entails:
helping Members and Support Workers to connect and form contracts for Support Services;
managing the Booking of Support Services, including to make, accept and modify Offers;
allowing Members and Support Workers to message;
processing payments between Members and Support Workers;
providing you with access to the Platform; and
providing services, inclusions and benefits, as described in our Platform
(together, the Kynd Services).
You must register on the Platform and create an account.
You accept these Terms and enter a binding agreement with us when you create an account.
As a Member or Support Worker, you represent and warrant that you have the authority to be bound by these Terms. You represent and warrant that you are at least 18 years old.
Members and Support Workers may enter into their own agreement relating to Support Services. If there is a difference between the agreements, these Terms apply.
We reserve the right to monitor your use of the Platform to determine your compliance with these Terms and the NDIS Code of Conduct.
You agree to add accurate, current and complete information during the registration process and you agree to regularly update this information.
You are responsible for keeping your account details, username and password confidential. You will be responsible for all activity on your account, including all Bookings for Support Services.
You agree to notify us immediately of any unauthorised use of your account.
If you, as a Member or Support Worker, are a legal entity, you, the legal entity, are the account owner, and will remain responsible for your account. If you, as a Support Worker, are a legal entity, you are required to nominate an Authorised Person to create a Support Worker Listing and undertake the Support Services.
To change the account owner, you must request in writing to transfer the ownership and use of your account to an incoming party. The incoming party must provide written consent to take responsibility of your account. We will determine whether to transfer ownership of your account, in our sole discretion.
You represent, warrant and agree that:
you will be responsible for your use of the Kynd Services;
you will not use the Kynd Services in any way that competes with us;
all information you provide related to these Terms is true, accurate and complete, including any bank account or credit card details. If you provide incorrect bank or credit card details, we will not be responsible if any payments are not received by you;
you have not relied on any representation or warranty made by us in relation to the Kynd Services, including as to whether the Kynd Services is or will be suitable for your particular purposes;
you must ensure that no person uses the Kynd Services:
to break any law or infringe any persons’ rights (including intellectual property rights);
to transmit, publish, or communicate material that is defamatory, offensive, abusive, indecent, menacing, harassing or unwanted; or
in any way that interferes with, damages or interrupts the supply of the Platform;
you will make all Bookings and future Bookings that are not BYO, through the Platform only;
you have reviewed these Terms and freely agree to the terms and conditions contained within; and
you may provide, or be provided with, the Support Services virtually.
You are expected to use the Kynd Services in good faith at all times.
You must comply with all applicable laws when using the Kynd Services and interacting with others.
You must bear any costs related to your Support Services and use of the Kynd Services.
You agree to behave at all times in a way that does not damage your reputation or ours.
Your failure to comply with the Terms may result in suspension or termination of your account. We may raise any behaviour that does not comply with these Terms, with an aim to resolve this in good faith.
Except for BYOs, you must not organise Support Services and Bookings including the payment of any Support Fees or other payments in any way that circumvents the Kynd Services.
You agree to comply with health, wellbeing and infection prevention and control policies
and advice as directed by the Government. You agree it is your own responsibility to verify compliance with such policies by yourself and by any others you interact with for Support Services.
To use all the features of the Platform, a Member will need to add certain information for each Participant (Participant Profile) including details of their NDIS payment method (NDIS Plan).
We review requests for a Participant Profile, including details of the listed NDIS Plan.
You give permission to any plan manager or nominated third party to verify the NDIS Plan provided.
You represent, warrant and agree:
is covered by the NDIS as a self-managed or plan managed Participant;
has a valid and current NDIS Plan;
has sufficient funding in their NDIS Plan for Bookings;
if applicable, has provided consent for you act on their behalf;
you are solely responsible for determining suitability of Support Services;
the supply of Support Services through the Kynd Services is reasonable and necessary for a Participant;
to immediately inform us of any change to an NDIS Plan, including if the NDIS Plan is suspended, replaced or cancelled or if a Participant has or may have insufficient funding (including under a specific NDIS category) to pay for Bookings;
that in the event that payment for Bookings cannot be made through an NDIS Plan, the Member will be personally responsible for payment of Support Fees in accordance with the payment terms;
to the extent applicable, you comply with the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act);
that if the Participant has been convicted of a serious criminal offence against a person, in Australia or any country, you will disclose such information to Support Workers before booking Support Services; and
if you are a support coordinator under the NDIS Act and are engaged by a Member acting on behalf of a Participant, you will immediately notify us of any change in your engagement with the Member, including if you leave your engagement with the Member. In the case you are a support coordinator no longer engaged by a Member, any access to the Platform will be prohibited and you agree to no longer access the Platform.
You understand and agree that for verifications we conduct on Support Workers, we disclaim all warranties of any kind, either express or implied, including, but not limited to, that such verifications will determine the suitability or qualifications of Support Workers or identify prior misconduct or guarantee future conduct. We recommend you conduct your own assessments of Support Workers, including requesting copies of any relevant documents and verifications, before booking Support Services. You understand that you will be responsible for determining the suitability of a Support Worker.
You may request Support Workers to undertake a NDIS worker screening check, at the Support Worker’s cost, or request a Support Worker to provide documentation to show that they have obtained a NDIS worker screening clearance for the relevant Support Services, and to link this to you on the relevant systems.
To become a Support Worker, at your expense, you will need to supply us with your and/or the Authorised Person’s (if applicable);
evidence of age and identity;
government photo identification;
an Australian National Police Certificate;
an Australian Business Number (ABN); and
personal information required for profile.
The information above will be used to create and maintain a Support Worker Listing.
We review and screen all requests for a Support Worker Listing.
We may refuse, for any reason, to approve a Support Worker Listing.
You represent, warrant and agree that as a Support Worker:
you are legally entitled to work in Australia;
you have any required skills, knowledge or training, to provide the Support Services indicated in your Support Worker Listing and provided during Bookings;
if you are a legal entity, you agree to provide the Support Services solely through the Authorised Person and you agree to not substitute the Authorised Person, and any obligations in these Terms referring to the Support Worker, refer to the Authorised Person with a Support Worker Listing;
you have a valid Australian National Police Certificate issued within the last 12 months stating that you have ‘no disclosable court outcomes’ and you will renew and upload a new one at least 10 days prior to the expiration of the current one;
you have never, either in Australia, or any other country, been the subject of any legal action, complaint or restraining order, or been arrested for, charged with, or convicted of, any type of criminal offence, or been required to register as a sex offender in any jurisdiction or register with any government entity;
should your criminal status change at any time, you will immediately contact us and cease your provision of any Support Services through the Kynd Services;
if required by law to obtain an NDIS worker screening check, you will do so, at your cost, before you provide or continue to provide Support Services for Participants, and we may request verification that you have obtained an NDIS worker screening clearance, to determine whether your Support Worker Listing will be approved by us. For the avoidance of doubt the Australian National Police Certificate and the NDIS worker screening check are separate and independent of each other, however we may use both to determine whether your Support Worker Listing will be approved by us;
you are not our employee, and accordingly, are not entitled to any Employee Benefits even if you link your NDIS worker screening check to us;
you are solely responsible for determining which Participants to support and which Support Services to provide, including, but not limited to, the type of work you perform, timing and schedule of work, your work locations, manner, means, methods and process. You are free to accept or decline Bookings, or request changes to Bookings at any time;
if in the provision of the Support Services, you are providing driving services, you warrant to the relevant Member and to us, that you have a valid driver’s licence and the vehicle you are driving is registered in Australia, covered by comprehensive third-party insurance and is roadworthy;
you are solely responsible for determining the price you charge for Support Services (subject to the NDIS Price Guide);
your payment for Support Services will be the Support Fee;
you are responsible for complying with all laws, rules and regulations that may apply to providing the Support Services, including, but not limited to, the NDIS Act, the NDIS Code of Conduct, other NDIS policies, the National Code of Conduct for Health Care Workers and all privacy regulations;
you operate your own business (usually as a sole trader, unless otherwise accepted by us), you provide the Support Services directly to the Member. We do not supervise, direct or control any of the Support Services you offer. We do not set your fees, work hours, your schedule or your location. We do not provide you with or reimburse training, equipment or tools or any materials to provide the Support Services and a Member may not reimburse you for training, equipment or tools or any materials to provide the Support Services;
you are responsible for any taxes payable on any fee you receive for the Support Services. We are not responsible for paying superannuation to you. If a third party deems we are to pay superannuation or any other type of payment, any such amount will be considered as already paid as part of the Support Fees you receive;
you agree that through payment of the Support Fee, you are accurately and wholly remunerated for all Support Services under these Terms, in accordance with the applicable law; and
you are solely responsible for having the relevant tools and equipment necessary for the performance of the Support Services that would be expected of service providers operating in your industry, including, if applicable, a motor vehicle or personal protective equipment.
If you, as a Support Worker, are a legal entity, we reserve the right to also verify the Authorised Person’s relationship with the legal entity, by requesting ASIC registrations, or any other relevant agreements.
By providing the Kynd Services to you and Members, as the Support Worker, you agree to pay us the Service Fees for the Kynd Services, which will be the percentage and/or other amounts, that will be deducted from the Support Fees in accordance with these Terms. Details of the Service Fees are available on kynd.com.au.
We may provide coaching, information, training or other events on our Platform. You have no obligation to join these events and your participation in these events will not be indicative of an employment relationship between you and us.
As a Member, you represent, warrant and agree that:
you are purchasing the Support Services directly from the Support Worker;
Support Workers have appointed us as their payment collection agent solely for the purpose of accepting Support Fees from you as Member;
you will take all reasonable and necessary steps to ensure an environment free from harm or risk to health or safety, in the location where Support Services will be provided to the Participant by a Support Worker;
you are not performing a business or undertaking and you are not engaging a Support Worker as your employee. The Kynd Services are not intended to be used by Members for the purpose of engaging Support Workers as employees, or for performing a business or undertaking; and
Support Workers should not be expected to be available for future Bookings and that Support Workers have the ability to accept or decline Bookings according to their availability. At no time will a Support Worker have a future obligation to you, unless agreed through acceptance of a Booking.
As a Support Worker, you represent, warrant and agree that:
you provide the Support Services directly to Members;
you will take all reasonable steps to ensure the safety of Members and all people you engage with while using the Kynd Services or providing the Support Services;
you are responsible for your own safety and you will undertake your own risk assessment when meeting or providing Support Services to Participants;
you are not being engaged by the Member as an employee of the Member and the Member is not performing a business or undertaking. Accordingly, you are therefore not entitled to any Employee Benefits from the Member; and
there is never any ongoing expectation of Offers from a Member. At no time will a Member have a future obligation to you to engage you to provide Support Services, unless they have requested you to do so through an Offer on the Platform, which you can accept or decline.
A Member may message a Support Worker, using the Platform to discuss any Support Services.
A Member may send a request to book Support Services to a Support Worker or may ask a Support Worker to send a request to book Support Services for a Member to accept. If the Support Worker is willing and able to provide Support Services for the Member, the Member or Support Worker will, using the Platform, send an Offer to the other Party in connection with the Support Services with the details of the Support Fee.
The Support Worker or Member may accept or decline the Offer through the Platform. By accepting the Offer, the Support Worker or Member agrees that they are legally entitled to and capable of engaging, or providing, the Support Services as described in the Offer and this then becomes a Booking.
Each Booking is a separate individual agreement between Members and Support Workers which ends once each Booking is complete. If a Booking is setup with repeating occurrences, this means that each separate Booking will be a separate individual agreement between the Member and Support Worker.
Members and Support Workers are both responsible for reviewing the Offer and the suitability of the other Party before acceptance.
Once a Booking is complete, the Support Worker must submit the Booking for approval, including any changes. The Member must then approve or dispute the Booking within 7 days.
The Member agrees to immediately notify the Support Worker of any issues in a Booking to enable the Support Worker the opportunity to complete the Support Services in accordance with the Booking. In the event a Support Worker does not complete Support Services to a fair and reasonable standard in accordance with the Booking, the Member has the right to not approve that Booking. As a Support Worker, you acknowledge that a Member may not approve that Booking for payment of your Support Fees. Each Party has the right to deal with a dispute in accordance with clause 14.
If the Member has not approved or disputed a Booking within 7 days and does not respond to attempts to contact them, the Member will be deemed to have approved the Booking. The Member agrees to provide us with the right to approve the Booking and commence the payment process (including if the Booking was cancelled within the Short Notice period or if the Participant does not show up to the Booking).
Once a Booking is approved, it becomes an Approved Booking and cannot be amended or refunded.
If the Member has opted to automatically approve Bookings, once a Booking has been submitted by the Support Worker for approval, it will immediately become an Approved Booking.
For Approved Bookings, an invoice will be sent to the Member or to the Member’s representative, and the Booking will be processed for payment to the Support Worker.
We reserve the right to withhold payments to Support Workers if we reasonably suspect fraudulent behaviour, including knowingly providing Support Services when a Participant is out of NDIS funding, or circumventing or communicating an intention to circumvent any payment of the Service Fee.
If a Member contacts us through any means and requests creation, modification, approval or cancellation of a Booking, the Member authorises us to undertake such actions and agrees they are responsible for such actions, subject to consent or acceptance by the Support Worker when needed.
The Support Worker and Member acknowledge and agree that we will have rights to create, modify, approve, cancel or pause Bookings in our absolute discretion, including:
if the Support Worker or the Member provides us with the authorisation to do so;
if the Support Worker or the Member are unresponsive to our enquiries regarding the Booking for more than 7 days;
any Booking that is pending approval for more than 7 days, and has not been cancelled, may be approved by us and we will commence the payment process;
if we reasonably suspect unusual activity, including any activity that is in breach of these Terms; and
if we hold the reasonable view that a Member does not hold adequate funds in their NDIS plan. The Support Worker will not receive Support Fees for Bookings that are paused or cancelled by us.
It is free to register an account on the Platform.
Support Workers can choose their rates for Support Services, which will be used to calculate the Support Fees to be charged to Members. Support Fees include the Service Fee which we charge to Support Workers for the Kynd Services.
Unless otherwise agreed, the Support Fees will include payment for any extras.
Members agree to pay:
the Support Fees; and
other amounts due under these Terms.
The Member and Support Worker are responsible for agreeing upon the Support Fee for Support Services before any Booking commences.
If a Member is an NDIS Participant with plan managed funding, the Support Fee must not exceed the current maximum in the NDIS Price Guide, as listed on ndis.gov.au and as amended from time to time.
A Member will be charged for Approved Bookings only. This may include cancelled Bookings which are submitted by a Support Worker and approved by a Member. Approval of Bookings that may be deemed cancelled are not to be unreasonably withheld by the Member.
We will invoice and collect payment of Support Fees and Service Fees from Members on behalf of the Support Worker.
Members that are self-managed Participants will be invoiced directly. Invoices for Members that are plan managed Participants will be sent directly to the nominated plan manager.
The Member agrees that invoices will be paid within 5 business days. Members who use a third party for payment of invoices agree that they will ensure the third party pays within 5 business days.
If you are both a Support Worker and a Member, and you have invoices overdue by more than 10 days, you agree we may credit or take payment for these invoices, from payments owed to you as a Support Worker.
The Support Worker understands and agrees that if a payment for the Support Fee is rejected or underpaid by a plan manager of the Member, then we may adjust the Booking and pay the maximum allowable amount for that service and this will be the amount of the Support Fees that the Support Worker will receive.
Support Workers agree to:
pay us the Service Fee for the Kynd Services; and
pay us other amounts due under these Terms.
As a Support Worker, you appoint us as your limited payment collection agent for the purpose of accepting Support Fees from the Member, and we will transmit the Support Fees to the Support Worker as its limited payment collection agent. You agree that we will deduct the Service Fee from the Support Fee.
If any Party needs to cancel a Booking, they agree to record the cancellation on the Platform.
If a Member cancels a Booking with the Support Worker on short notice (as defined under the NDIS Act or by the NDIA) (Short Notice), or does not show up for the Booking, unless otherwise agreed between a Member and Support Worker, the Support Worker may submit through the Platform, the maximum amount of Support Fees permitted for that Booking. In the Support Worker's analysis of whether to claim the Support Fees, they agree to use their best endeavours to find alternative billable work, including rescheduling.
If a Member cancels a Booking with greater than Short Notice, no Support Fees will be payable.
If a Support Worker cancels or does not show up for a Booking, no Support Fees will be payable.
If a Support Worker needs to cancel or reschedule a Booking, they agree to use their best endeavours to give 48 hours’ notice to the Member.
Except as indicated in these Terms, any cancellation, variation or refund of any Booking on the Platform is strictly a matter between the relevant Member and Support Worker.
Members agree that we have no obligation to refund Support Fees paid for Approved Bookings.
Members will need to contact a Support Worker about refunds. If a Support Worker agrees to refund a Booking, the Support Worker will need to email a refund confirmation to us and pay to us the agreed refund amount. Once this amount is received, we will refund the payment to the Member, less a $50 administration fee.
For disputes arising between Members and Support Workers, the parties will attempt to resolve the dispute with the other Party directly and in good faith and seek to resolve the dispute promptly and fairly.
In the event that a dispute cannot be resolved through these means, the parties may choose to resolve the dispute in any manner agreed upon by the parties or otherwise in accordance with applicable laws.
You acknowledge and agree that Kynd may, but is not obligated to provide any dispute assistance and that no agreements or outcomes of any dispute resolution will waive your obligations in these Terms. If we do provide assistance, our aim will be to resolve the dispute efficiently and fairly for both parties.
You acknowledge that failure to resolve a dispute may result in grounds for suspension or termination.
This clause does not apply to any BYO Bookings.
You understand that we spend significant money and time to build and operate the Platform and provide you with the Kynd Services, so you can find or offer Support Services. There are no upfront fees for using the Platform, but this is strictly on the agreement that all Support Services and all Bookings with a Member or Support Worker that you became aware of and/or were introduced to via the Kynd Services, are processed as Bookings through the Kynd Services, with payments made through the Platform only.
You agree to not directly or indirectly solicit, approach or engage with a Member, Participant or Support Worker outside of the Kynd Services in a way that Support Fees would not be paid through Kynd. This will continue to apply for 12 months after a Member, Participant or Support Worker no longer holds an account.
If a Member or Support Worker breaches this clause, the breaching Support Worker and breaching Member agrees to each pay us $2,500 Australian Dollars, or if agreed by us in writing, a lower amount (the Circumvention Invoice). Payment of the Circumvention Invoice will be made via deduction from any payments or within 5 business days after we email you the Circumvention Invoice. You acknowledge and agree this clause is necessary to protect our legitimate business interests and costs we accrue and that the Circumvention Invoice is a genuine pre-estimate of the minimum loss we suffer as a result of such breach.
If a Circumvention Invoice is not paid on time, we may at our discretion, send a letter of demand or refer the matter to a debt collection agency or the relevant small claims tribunal. You give permission for us to disclose your personal information to third parties for this purpose.
Except for any BYO Bookings, you agree to immediately report a Member or Support Worker who proposes to, or commences invoicing or accepting payments, outside of the Kynd Services.
Except for any Bookings that are BYO Bookings, the provisions of this clause will strictly apply while a party is a Member, Participant or Support Worker on the Platform, even if the Member, Participant or Support Worker does not actively use the Platform.
The Support Worker and Member may agree to terms and conditions with respect to confidentiality of the information they share with each other. If the Support Worker and Member do not separately agree on any terms and conditions with respect to confidentiality, clause 17.2 will apply as to how the Support Worker and Member are to treat the other party’s confidential information.
The Support Worker and Member will keep confidential the personal information, including health, medical and financial information, that they may learn about the other through Support Services.
Members and Support Workers agree to keep our confidential information confidential and not use or permit any unauthorised use of our confidential information, including, using the same standards of care to protect our confidential information as it would its own such material.
Subject to Support Workers complying with this clause, Support Workers have the benefit of our insurance to provide certain types of cover during the Support Services for Bookings made in advance through the Platform (i.e. Bookings for the provision of future Support Services).
We provide general information about available insurance (including any terms of insurance). It is your responsibility as a Support Worker to inform yourself of, maintain eligibility for, and comply with, the terms of our insurance, including specific inclusions and exclusions, and to obtain additional insurance if you believe that you are not adequately covered. See the insurance page on our website for information. Notwithstanding this clause, if you are a Support Worker, you agree that you are responsible for holding insurances which you are required to hold under any law or that may be required for the Support Services.
The cost of insurance will be covered within the Service Fee, and forms part of the Kynd Services.
If you are in breach of these Terms, or if there is no Booking made in advance through the Platform, you will not be covered by our insurance.
Any claims through any such insurance coverage will be between the Support Worker and the insurance provider, and Kynd will not be involved in any claim.
You agree that you will be solely responsible for paying any applicable excess on insurance claims.
Members understand that our insurance does not provide insurance cover to anyone other than us and the Support Workers. The exact inclusions and exclusions of the insurance cover are set out on our insurance page. We encourage Members to obtain insurance to provide cover in respect of any liability, including damage or loss to property and/or death of or injury to any person or Support Worker at your property, whether or not caused by a Support Worker. See the insurance page on our website for information.
We may allow you to:
post, upload or publish content and information (including reviews, your name, image or other information you may post on your profile) (User Content) on our Platform and access and view User Content; and/or
access and view content and information, including any copyright, trademarks, designs or patents, domain names; know-how, inventions, processes, trade secrets or confidential information; software, computer programs, databases or source codes (Intellectual Property), we make available on the Platform (Kynd Content),
together, the Content. All other uses are prohibited without our prior written consent.
We may use any, and all, User Content (including reviews, your name, image or other information you may post on your profile), and you grant us the right to use the User Content to provide our Platform, to promote our Platform, to promote your profile on our Platform, and we may share reviews (including any text you submit and your first name). We may also remove, edit or refuse to post or review any User Content if in our view this User Content is inappropriate.
Unless otherwise indicated, we own or licence all rights, title and interest (including any industrial or intellectual property rights in respect of Intellectual Property in our Platform and all Kynd Content. Except as set out in these Terms, you do not have any rights, title or interest in our Platform or the Kynd Content.
You must not, without prior written consent by us:
copy or use, in whole or part, any Content or the Platform;
reproduce, reverse engineer, extract, distribute, publish, disseminate or sell any Content or part of the Platform to any third party; or breach any intellectual property rights connected to the Platform, including by altering or modifying any Content or the Platform, causing any Content or the Platform to be framed or embedded in another site, or creating derivatives of the Content or the Platform.
Despite anything to the contrary, to the maximum extent permitted by law, you agree to fully indemnify us and hold us fully harmless in respect of any Liability (as defined below) that we may suffer, incur or become liable for, arising from or in connection with User Content you make available on or through the Platform, including as a result of any breach of our, or a third party's intellectual property rights.
The Content, including information in relation to health and medical information, taxes, superannuation and deductions, is not comprehensive and is for general information only. It does not consider your specific circumstances. It is not health or medical information or advice, nor is it legal or financial advice. The information is not intended to be taken as, or relied upon as, medical, legal or financial advice, or to provide recommendations for your medical, legal or financial circumstances. While we use reasonable attempts to ensure the accuracy and the completeness of the Content, to the extent permitted by law, we make no representation or warranty regarding the Content. The Content is subject to change without notice and we do not undertake to keep our Platform up-to-date and we are not liable if any Content is inaccurate.
Exclusions to Liability:
Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable
for any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise (Liability), caused or contributed to by, arising from or connected with:
you or your personnel’s acts or omissions;
the use or results of any background or verification checks of Support Workers;
any delay by a Member in paying the Support Fee;
any use or application of the Kynd Services by a person or entity other than you, or other than as reasonably contemplated by these Terms;
any aspect of the Member and Support Worker interaction including the Support Services offered by the Support Worker, the description of the Support Services requested or offered, any advice provided and performance of the Support Services;
any works, services, goods, materials or items which do not form part of the Kynd Services (as expressed in these Terms), or which have not been provided by us;
any third parties or any goods and services provided by third parties, including customers, end users, suppliers or other subcontractors which the provision of the Kynd Services may be contingent on, or impacted by;
the Kynd Services being unavailable, or any delay in us providing the Kynd Services to you, for whatever reason;
any event outside of our reasonable control; and/or
as a Member, a Support Worker claiming that it is one of your employees or is entitled to any Employee Benefits (or any court or authority determining that you are a Support Worker's employee or entitled to any Employee Benefits) or a Support Worker claiming that you owe it duties of care under any work, health and safety legislation or regulation (or any court or authority determining that you owe the Support Worker duties of care under any work, health and safety legislation or regulation).
Limitations on Liability:
Despite anything to the contrary, to the maximum extent permitted by law:
we will not be liable for any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise (Consequential Loss);
any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of you (or your personnel); and
our total liability arising from or in connection with these Terms will be limited to us resupplying the Kynd Services to you or, in our sole discretion, to us repaying you the amount of the Service Fee paid by you to us in respect of the supply of Kynd Services to which the Liability relates, or where no Service Fees are paid, $100.
These Terms may be pleaded as a bar to action commenced or to be commenced by you for any matter concerning or arising out of or in any way related to, either directly or indirectly, these Terms.
Your account and these Terms may be terminated by you at any time by you emailing Kynd from your account email with the specific instruction to cancel and inactivate your account.
We may terminate these Terms and deactivate your account at any time by giving written notice to you (Termination for Convenience), including if you notify us that you do not agree to these Terms.
We reserve the right to suspend your account or terminate these Terms immediately, if:
your language or behaviour is deemed aggressive, inappropriate, threatening or unsafe;
you breach a provision of these Terms or a breach is not been remedied within 5 days of notification;
there is any reason outside our control which compromises our ability to provide Kynd Services;
we reasonably suspect you have or that you intend to breach a provision of these Terms;
you are unable to pay your debts as they fall due; or
otherwise in our reasonable discretion,
and we will have no obligation to provide you with reasons for the suspension or termination.
Upon expiry or termination of these Terms:
we will remove your access to the Platform and inactivate your account;
we will immediately cease providing the Kynd Services;
any payments made to us are not refundable;
any Bookings that have yet to be performed will cease; and
unless otherwise agreed, any existing Approved Bookings are still binding on us, the Support Worker and the Member. The Support Worker must pay the Service Fee for the Kynd Services and the Member must pay the Support Fee for the relevant Approved Booking.
We will retain your data and details of interactions made under the Platform as required by law or regulatory requirements. You allow us to retain or destroy data and details of interactions in accordance with any legal obligations we have, including for us to maintain accounts and records.
Termination of these Terms will not affect any rights or liabilities a Party has accrued under it.
Any suspension, cancellation or termination of your account does not void any of your payment obligations to us, or to other users of the Platform, that you have incurred prior to such actions.
The Australian Consumer Law (ACL) may provide you with rights, warranties, guarantees and remedies relating to the provision of the Platform by us to you, which cannot be excluded, restricted or modified (Statutory Rights). If the ACL applies to you as a consumer, nothing in these Terms excludes your Statutory Rights as a consumer for our failure to meet a consumer guarantee under the ACL.
As a Member, you may also have Statutory Rights against a Support Worker.
To the extent permitted by the ACL and any other applicable legislation, we limit our liability for breach of a non-excludable condition or warranty implied by virtue of any legislation to the supply of the Kynd Services again; or the payment of the cost of having the Kynd Services supplied again.
Assignment: You must not transfer or deal with any of your rights or obligations under these Terms without our prior written consent.
If there is a dispute, controversy or claim arising from these Terms between a Member or Support Worker, and us, the Parties agree to meet with the other Party to seek to resolve the dispute in good faith prior to commencing court proceedings.
If the Parties cannot agree to resolve the dispute at that initial meeting, either Party may refer the matter to a mediator. The Parties agree to attend the mediation in good faith, to seek to resolve the dispute. The costs of the mediation will be shared equally between the Parties. This clause does not prevent a Party from seeking urgent injunctive or equitable relief from a court.
Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if the delay or failure is due to any circumstance beyond our reasonable control.
Governing law: These Terms are governed by the laws of Queensland. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Queensland and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
Notices: Any notice given under these Terms must be in writing by email. The notice will be deemed to be served on the time of transmission of the email, unless a Party can show that the email was not transmitted directly (e.g. if an email was received in a spam or junk folder). If you unsubscribe from our emails, you agree that you may miss notifications regarding a change of our Terms, however, your continued use of Kynd will be considered acceptance of the amended terms on the Platform.
Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.
For any questions or notices, please contact:
Kynd Pty Ltd
ABN 45 615 837 762
© Kynd Pty Ltd