This agreement sets out the terms and conditions in relation to our provision of the Advice Intelligence Adviser Software (“Software”) and the services supplied with the Software as set out in this Agreement to you (“Agreement”).
This Agreement is between Advice Intelligence Pty Ltd ACN 165 965 426 and GBST Wealth Connect OpCo Pty Ltd ABN 63 667 499 292 (“we” or “us”) and you. “You” means the entity you represent in accepting this Agreement or, if that does not apply, you individually.
Please note that if you sign up for the Software using an email address from your employer or another entity, then (a) you will be deemed to represent such party, (b) your completion of the sign-up registration page will bind your employer or that entity to this Agreement, and (c) the word “you” in this Agreement will refer to your employer or that entity.
If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree to this Agreement on behalf of the party that you represent. If you don’t have the legal authority to bind your employer or the applicable entity please do not click complete at the Sign-Up Registration page.
This Agreement commences on the day you accept this Agreement by completing the Sign-up Registration online or such other date agreed in writing (“Commencement Date”), and continues until terminated by either party in accordance with this Agreement (“Term”).
Note that as per the Sign-up Registration:
(a) This Agreement will commence on the Commencement Date and has a minimum term of 12 months which will automatically renew for additional 12-month periods unless you provide us with at least 30 days’ written notice before the end of the current term that you do not want the Service to renew.
(b) If you do not renew after the initial 12-month term, you must pay us a data migration fee if we provided data migration services during the initial 12-month term.
(c) If, during the first 14 days after completing the Sign-Up Registration for the first time, you decide for whatever reason that you do not wish to continue using the Software then notwithstanding anything in this Agreement to the contrary, you can terminate this Agreement at no cost or liability by providing written notice to us. This clause does not apply to any changes to the Agreement during the Term.
1.0 Grant of Licence
1.1 We grant to you, and your specific individual users, a personal, revocable, non-exclusive, non-transferable right to access and use the Software and receive the Services:
(a) solely for your back-office practice management, financial modelling and client engagement purposes;
(b) in accordance with your selected plan ("Subscription Plan") from the subscription plan portal (“Plan Portal”);
(c) in Australia only; and
(d) in accordance with documentation related to the Software and the Services,
for the Term and otherwise in accordance with this Agreement.
1.2 You must not copy, transfer or sublicense the Software or the Service to any third party, in whole or in part, in any form, whether modified or unmodified.
1.3 We will designate login credentials for each of your nominated individual users and those login credentials must only be used by the user to whom such credentials are issued. Users shall not be entitled to share their login credentials with any other user. Where a particular user no longer requires login credentials, you must notify us and we will cancel the outgoing user’s login credentials. We will not count outgoing users towards the maximum number of users set out in your Subscription Plan.
1.4 You must make sure that your users comply with this Agreement and that they keep their user login credentials secure. You will be responsible for any access or use of the Software and the Services including by your users.
2.1 We will provide the following services in accordance with this Agreement:
(a) hosting services that vary based on the Subscription Plan you have purchased as set out in the Plan Portal;
(b) access to certain modules to assist you in developing and managing content, including websites, campaigns and marketing material, depending on your Subscription Plan; and
(c) the support services described in clause 14 below,
(together, the “Services”).
3.1 You acknowledge and agree that technology systems are not free of faults, and downtime may occur. The Software and the Services may become unavailable or we may suspend access to the Software or the Services due to planned or unplanned maintenance or circumstances beyond our reasonable control or to comply with third party requirements. Subject to the Non-excludable Conditions set out in clause 16, we do not warrant that the Software or the Services will be free of interruption, delays, errors, defects or faults nor are we liable under such circumstances other than as expressly set out in this Agreement.
3.2 The Services do not include:
(a) correction of errors, defects or faults caused by you or a third party, including the failure by you or a third party to:
(i) maintain the operating environment in which the Software operates; or
(ii) use the Software in accordance with any specifications issued by us;
(c) equipment or other software maintenance and rectification of errors caused by equipment or other software faults;
(d) diagnosis or rectification of faults not associated with the Software;
(e) correction of errors arising directly or indirectly out of your failure to comply with this Agreement;
(f) resolution of installation or implementation issues, technical architecture issues and other customer-specific issues; or
(g) support of your configuration settings and templates.
3.3 You must use the Software on computer systems, servers, or networks that meet the type and specifications recommended by us, to enable the Software to function properly. We are not responsible for, and make no warranties about, the proper operation of the Software if you are operating the Software on systems which do not meet the recommended specifications.
4.1 From the Commencement Date, you must pay us the fees set out on Sign-up Registration or as otherwise set out in this Agreement or agreed in writing between us from time to time ("Fees"). The Fees are direct debited monthly in advance from your credit or debit card. You must provide the relevant details and authorisations to us and we are not required to provide access to the Software or the Services until you do so. You must also pay to us any other fees or charges for which you are liable to us under this Agreement when we advise you that they are due and payable.
4.2 You may ask us to increase or decrease the number of users and we will adjust the Fees payable (where the Fees payable are calculated on a per-user basis), and those new Fees will be applied following the month the request was made and accepted with a pro-rata adjustment where necessary.
4.3 If any direct debits are not successfully processed, we will provide written notice to you giving you 14 days to make payment or rectify direct debit payments by you.
4.4 If, after we have provided you notice under clause 4.3, any payments owing by you remain outstanding, you will be in breach of this Agreement. When this occurs, we will give you notice of the breach and where that breach remains unremedied for 14 days, we may:
(a) suspend your access to the Software and Services until the breach is remedied; and/or
(b) refer any outstanding amounts to a debt collection agency; and/or
(c) terminate this Agreement.
4.5 All Fees are subject to annual indexation, on the anniversary of the Commencement Date, in line with the Consumer Price Index – All Groups published by the Australian Bureau of Statistics each year.
5.0 Your Use of the Software and Services
5.1 When you use the Software and/or the Services to store content on our servers (or servers we make available to you in relation to the provision of the Software or Services), upload content onto a website or create a marketing campaign, including, data, text, photographs, videos or any other material (“Material”), you warrant that any Material uploaded by you, your employees or agents, or on your behalf:
(a) is owned by you or you have the necessary rights or consents to upload it;
(b) does not infringe any rights (including intellectual property rights) of any person anywhere in the world;
(c) to the extent the Material contains photographic images or video footage of people, you have obtained necessary and valid releases so that the Material can be published by you;
(d) does not contain anything that violates any law, is offensive, defamatory, slanderous, libellous, violent, sexually explicit and/or exploitative;
(e) is not misleading or deceptive, or capable of misleading or deceiving; and
(f) does not contain any viruses or malware.
5.2 You are solely responsible for:
(a) any third party royalties payable in respect of the exploitation of the Material; and
(b) support and maintenance of the Material and to address any complaints about the Material.
5.3 You acknowledge and agree that the Software is only a tool that you may use to perform internal functions, or provide services to your clients, and it is not a substitute for the application of professional skill, judgement and expertise by qualified and experienced professionals. You remain at all times fully liable for and indemnify us in respect of any loss or claim arising as a result of or connection with the provision of Financial Services to your clients. You must ensure that any Financial Services you provide to your clients are correct and appropriate for your clients and otherwise comply with all applicable laws including holding a valid Australian Financial Services Licence.
5.4 You acknowledge that we have prepared certain templates which are included in the Software. The information and content (including any financial information or advice) in the templates are for information purposes only, is intended to apply in Australia only and we do not warrant its accuracy or reliability. You may not rely on it for providing or receiving Financial Services. You are solely responsible for your use of the templates.
5.5 For the purposes of this Agreement, Financial Service means a 'financial service' as that term is defined in the Corporations Act 2001 (Cth) (“Corporations Act”), and any other equivalent or analogous service that is regulated under any law in any other jurisdiction, and includes 'financial product advice' as that term is defined in the Corporations Act and any other equivalent or analogous advice that is regulated under any law in any other jurisdiction.
6.0 Changes to this Agreement
6.1 We may amend this Agreement, or change the fees, on 30 days’ notice (“Notice Period”) via email advising amendments to this Agreement and/or the Fees. If you do not agree to the changes, you may terminate this Agreement by providing us with written notice during the Notice Period. If you do not advise us in accordance with this clause, you give us permission to terminate this Agreement and stop providing you with the Software and the Services after expiry of the Notice Period.
6.2 The Services may provide you with an ability to upload, store and manage your Materials. To enable us to manage the Services, we may apply limits at any time. If you require any changes to the storage limits, additional fees will be payable, in which case, clause 6.1 will apply.
7.0 Intellectual Property
7.1 You or your licensors retain ownership of all intellectual property rights in any Material that you upload using the Software or the Services. You remain at all times fully liable for and indemnify us in respect of any loss or claim arising as a result of or connection with the Materials.
7.2 You grant to us and our related bodies corporate and our employees, contractors, agents and officers an irrevocable, non-exclusive, worldwide, royalty-free licence to use your Material to provide, maintain and improve the Services and the Software.
7.3 We own, or have the necessary grants and licences to use, all current and future intellectual property rights in the Software and the Services, including, ideas, future development, open source code, updates, modifications, adaptions, enhancements or derivatives of the Software and /or Services. Nothing in this Agreement affects our ownership or rights in relation to the Software and/or Services.
8.0 Third Party Materials
8.1 You acknowledge that we use third party material within the Software and, subject to any Non-excludable Conditions set out in clause 16, we have no liability for inability or delay to supply or failures of these materials. We may amend the third party suppliers from time to time in our sole discretion, provided such amendments do not materially affect the operation of the Software or the Services or result in a change to the Fees, and where that is not the case, we will provide you notice of the changes in accordance with clause 6.1.
9.0 Data Aggregation
9.1 You acknowledge that the Services are enhanced through the incorporation of aggregated data from all users of the Services and agree that we may incorporate data from your Material in a non-confidential, de-identified and aggregated form into databases containing the data of multiple clients and such databases and the aggregated data contained with them (both being “Aggregated Data”) will be owned by us.
9.2 We agree that we must ensure that the Aggregated Data is no longer Confidential Information of you or capable of identifying you or your customers in any way whether directly or indirectly, such that a person with a reasonable level of industry knowledge would not be able to determine whether any Aggregated Data originated from, or is specific to you or any other user of the Services.
10.1 You must not:
(a) copy, disassemble, reverse engineer, re-engineer, decompile, modify, or translate the Software or the Services (except as permitted by a Non-excludable Condition);
(b) rent, transfer, outsource the use of or grant any rights in or to the Software and/or Services in any form to any other party, including for the purposes of processing data, providing reports, commercial time-sharing, rental, or service bureau use; or
(c) permit or enable the Software and/or Services to be used by such number of people that exceeds the number of user licences agreed in the relevant Order Form.
10.2 You must:
(a) ensure that the Software is protected at all times from unauthorised access or use and from misuse, damage and destruction;
(b) use any third party materials, including information supplied on our behalf, only for your own information and agree that you will only display your own Material on a tailored individual basis to a client or potential client who seeks personal investment advice;
(c) not remove any disclaimers that appear within the Software;
(d) include appropriate disclaimers regarding the use, reliability, completeness and accuracy of information when incorporating it into templates, reports or advice for your clients;
(e) notify us immediately if you become aware of any suspected or actual unauthorised use of the Software or Services.
11.0 Acceptable Use Policy
11.1 Services may be provided to you for uploading, storing and managing your Material. While no specific limits are applied to the number or size of the items uploaded or stored, we reserve the right to apply increased storage charges for use of storage.
11.2 In the event that additional storage charges are imposed, clause 6.1 of this Agreement will apply.
11.3 You agree and acknowledge that you will use the Software and/or Services in accordance with any third party acceptable use policies as notified by us from time to time, including the AWS Acceptable Use Policy of Amazon Web Services Inc (“AWS”) or such other service provider notified to you. You agree and acknowledge that any breach of this policy may result in AWS (or any relevant service provider) and/or us removing or disabling access to the Software and/or Services in accordance with the AWS Acceptable Use Policy (or such other relevant policy).
12.1 All amounts payable or other consideration provided in respect of supplies made in relation to this Agreement are exclusive of GST (if any) and all other taxes. Where a supply is a taxable supply, all amounts payable or other consideration provided must be increased by the amount of GST payable in relation to the supply.
12.2 All GST must be paid at the time any payment to which it relates is payable (provided a tax invoice has been issued for the supply). Where any GST payable is not referable to an actual payment, then it must be paid within ten (10) days of a tax invoice being issued by the party making the supply.
12.3 Each party is responsible for all taxes or levies imposed on it under applicable laws, regulations and tax treaties as a result of any contract and any payments hereunder.
13.0 Confidential Information and Privacy
13.1 For the purposes of this clause, “Confidential Information” means the confidential information of a party which relates to the subject matter of this Agreement and includes:
(a) any information which is marked as confidential or due to its nature or character a reasonable person would treat as confidential;
(b) the design, specification, and content of the Software and the Services;
(c) personnel, polices, software releases, user testing, proposals, clientele, suppliers or business strategies; and
(d) the terms upon which the Software and the Services are being supplied and supported pursuant to this Agreement.
13.2 Except in relation to clause 13.3, a party must not, without the prior written approval of the other party, disclose the other party’s Confidential Information.
13.3 A party may disclose the other party’s Confidential Information:
(a) to its officers, contractors, agents, employees, related bodies corporate, solicitors, auditors, insurers and accountants who require information for the purpose of this Agreement, provided that the parties to which the Confidential Information is disclosed agree to keep the Confidential Information confidential on substantially the same terms as this clause 13; or
(b) if required to disclose the Confidential Information by law or the rules of any stock exchange.
13.4 Both parties will comply with all relevant privacy laws. Where a party discloses personal information (as that term is described in Australian privacy laws (Personal Information)) to the other under or in connection with this Agreement, the discloser warrants that it has obtained all necessary consents and provided all notifications required under the privacy laws.
13.5 You agree and acknowledge that:
(a) all Personal Information that relates to a third party that you provide to us in the course of the Services that we provide, is being provided with the consent of the person that the Personal Information pertains to, and that you are authorised to provide that Personal Information;
(b) you have provided that third party with all relevant notices and have obtained all consents required under Australian privacy laws;
(c) we do not need, and we exclude any liability for, any sensitive information (as that term is described in Australian privacy laws (Sensitive Information)) or any government identifiers, such as passport details and drivers licence numbers, to provide our Software and Services and if you choose to input those details in the Software, you do so:
(i) at your own risk;
(d) where you provide Personal Information and Sensitive Information of a third party to us in the course of using the Software and the Services that we provide, you will indemnify us and hold us harmless for any loss or liability arising from any claim from that third party that relates to your provision of, or our use of, that Personal Information.
13.6 Nothing in this Agreement:
(a) excludes, restricts, or modifies any obligations that a party has under privacy laws; or
(b) limits or affects a person’s right to request access to or the correction of their Personal Information (and each party acknowledges and agrees that it will do all things necessary to facilitate such requests where relevant).
14.1 We agree to provide you the following support for the Software:
(a) general support will be available between the hours of 9am to 7pm AEST, Monday to Friday (excluding NSW and national public holidays);
(b) queries can be raised to the “Help Desk” via the below contact details (and these may be recorded).
(i) online chat
(ii) email firstname.lastname@example.org
(iii) phone 1300 242 384
(c) support in accordance with the service levels that can be found online at this link;
(d) an optional self-service knowledgebase of common queries will be made available online on the online knowledge base.
(e) Each user is provided with 5 support hours per calendar month (“Included Support Hours”). These Included Support Hours expire each month and do not carry over to subsequent months. You may request additional support hours at any timewhich will incur charges and we will seek your written approval of the additional charges before providing the additional support hours.
14.2 When we provide you with support services, we may need to record your screen and/or have access to your Material. You consent to us making such recordings and having such access. We agree that we will not use any data created, accessed or collected in the provision of the support services for any purpose other than providing such services and any copies of such material created during the course of providing the support services will be deleted once the support request has been satisfied.
15.1 Either party may terminate this Agreement immediately if:
(a) the other party materially breaches any provision of this Agreement and, if capable of remedy, fails to remedy the breach within 14 days after receiving written notice of the breach; or
(b) the other party is subject to or an order is made, or an effective resolution is passed for winding up or dissolution without winding up (other than for the purposes of solvent reconstruction or amalgamation) of that party and the order or resolution remains in effect for a continuous period of seven days; a controller, receiver, receiver and manager, official manager, administrator, provisional liquidator, liquidator, or like official is appointed over the whole or substantial part of the undertaking and property of that party and the appointment remains in effect for a continuous period of seven days; a holder of an encumbrance takes possession of the whole or any substantial part of the undertaking and property of that party; that party is unable to pay its debts as they fall due; that party becomes insolvent or is deemed to become insolvent under any applicable law; or that party ceases to carry on business or threatens to do so.
15.2 We may terminate this Agreement immediately by written notice if you breach any of the provisions of clauses 1 or 10 of this Agreement or as otherwise permitted under this Agreement.
15.3 Upon termination or expiry of this Agreement, you must:
(a) immediately cease using the Software (including any templates) and accessing the Services and you must return or destroy any Confidential Information, documentation and templates, and provide us with written confirmation of same; and
(i) all outstanding invoices which will become immediately due and payable;
(ii) all fees that have accrued up to the date of the termination not yet invoiced, including any data migration fees;
(iii) if we terminate this Agreement, all fees that that you would have had to pay if the Agreement continued for the full term of 12 months that you agree is a fair and reasonable, genuine pre-estimate of the loss we would suffer as a result of the termination of the Agreement prior to the end of the term.
15.4 You acknowledge and agree that:
(a) 30 days after the date of termination we may permanently delete all copies of any of your Material that we are hosting and if you require a copy of the Material, you must download that Material before the Agreement ends, or otherwise contact us to obtain a copy of that Material within 30 days of termination, which we will provide to you in a format of our choosing (acting reasonably); and
(b) if you are affiliated with a financial services licensee with whom we have a master agreement in place in connection with the Services, we may also provide a copy of the Materials to that entity upon termination and you consent to us doing so.
15.5 Termination of this Agreement will not affect any accrued rights or remedies that a party may have.
15.6 Clauses 7, 8, 9, 12, 13, 15, 16 and 19 survive termination of this Agreement together with any other provision which by its nature is intended to do so.16.0 Liability
16.1 For the purposes of this clause, “Non-excludable Condition” means an implied condition, warranty or guarantee the exclusion of which from a contract would contravene any statute (including the Competition and Consumer Act 2010 (Cth)) or cause any part of this Agreement to be void.
16.2 To the extent permitted by law, we will not be liable to you for any indirect, special, incidental or consequential loss or damage, or damages for loss of profits (actual or anticipated), contracts, use of money, reputation, business, goodwill, revenue, savings (actual or anticipated) or opportunity, pure economic loss or commercial loss, loss caused by third parties or loss, corruption or inaccessibility of data.
16.3 Except for liability in relation to breach of any Non-excludable Condition that cannot be excluded, our total liability to you in contract, is limited to the total amount of fees you have paid to us in the 12 months before the incident giving rise to the liability occurred, whether in contract, in tort (including negligence), misrepresentation, restitution, under any indemnity, in equity, under statute or otherwise, whether or not such loss or damage was foreseeable and even if GBST was advised of the possibility of the loss or damage.
16.4 Our total liability to you for a breach of any Non-excludable Condition (other than a Non-excludable Condition that by law cannot be limited) is limited, at our option to any one of resupplying, replacing or repairing, or paying the cost of resupplying, replacing or repairing goods in respect of which the breach occurred, or supplying again or paying the cost of supplying again, services in respect of which the breach occurred.17.0 Indemnity
17.1 To the extent permitted by law, subject to clause 17.2, we indemnify you and your directors, officers and employees (for the purposes of this clause 17, “You”) from any and all claims, losses, liabilities, damages, expenses and costs actually incurred or paid, including, properly and reasonably incurred legal fees and court costs (collectively, "Losses"), arising from or related to any claims that the intellectual property rights licensed or provided by us to you (including the Software and Services) or the distribution, sale, offer for sale, use or importation of the same violates or infringes any third party intellectual property or proprietary rights, or has caused damage to a third party.
17.2 Reliance upon an indemnity in this Agreement is subject to the following:
(a) the relevant Losses have not arisen directly as a result of your use other than in accordance with this Agreement;
(i) promptly provide us with notice of the Losses;
(ii) make no admission of liability without our prior consent;
(iii) give us sole control of the defence or negotiations for settlement of the Losses; and
(iv) provide us with all reasonable assistance in connection with our handling of the defence or negotiations for settlement of the Losses; and
(c) our liability under this clause will be reduced proportionately to the extent that any act or omission by you caused or contributed to the Losses; and
(d) we may, to the extent the Losses relate to a breach of intellectual property of a third party, in its sole discretion, obtain at our cost the right for us to use, or may modify or replace, the infringing products or services (so that the products or services are no longer infringing the third party’s rights); and
(e) you use all reasonable endeavours to mitigate any loss or damage that may be suffered as a result of or in connection with the Losses (and we are not liable to the extent You fail to do so).
18.1 Any notice given under this Agreement must be:
(a) in writing and be signed by a person duly authorised by the sender; and
(b) addressed to the intended recipient at the address or email address notified by a recipient from time to time or otherwise last notified by the intended recipient to the sender.
18.2 A notice given under this Agreement will be taken to have been given or made:
(a) in the case of delivery in person or to the recipient’s address, when delivered;
(b) in the case of prepaid post, three business days (or seven business days if posted to or from a place outside Australia) after posting;
(c) in the case of email, if an automated email message has not been delivered or received by the sender, two hours after the email is received.
18.3 If delivery or receipt occurs on a day on which business is not generally carried on in the place to which the notice is sent or is later than 5pm (local time) it will be taken to have been duly given or made at the commencement of business on the next day on which business is generally carried on in that place.19.0 General
19.1 Neither party may assign, or attempt to assign, this Agreement or any right or transfer any obligation arising out of this Agreement, without the prior written consent of the other party (such consent not to be unreasonably withheld), except in the case of a merger or acquisition, change in control, corporate reorganisation or sale of all or substantially all of the assets of the relevant business conducted by the party.
19.2 You understand and agree that by entering into this Agreement, or otherwise by using the Software or the Services, nothing in this Agreement shall constitute, or be deemed to constitute, a joint venture, partnership or employment relationship between the parties. Neither you nor us is a partner, an agent, or has any authority to bind the other and you agree not to represent otherwise.
19.3 This Agreement along with any information contained in the Sign-up Registration or Plan Portal constitutes the entire understanding between the parties with respect to its subject matter, and supersedes all prior agreements, discussions and understandings, express or implied, concerning such matters.
19.4 This Agreement is governed by and construed in accordance with the laws of New South Wales, Australia, and each party submits to the non-exclusive jurisdiction of the courts of New South Wales.
19.5 We may sub-contract or outsource the performance of any part of this Agreement without your consent (provided that we will remain liable under this Agreement to you for the acts or omissions of our subcontractor).
19.6 No delay or failure to take action under this Agreement will constitute a waiver unless expressly waived in writing, signed by our duly authorized representative, and no single waiver will constitute a continuing or subsequent waiver.
19.7 If any provision is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
19.8 In this Agreement the following rules of interpretation apply unless the contrary intention appears:
(a) headings are for convenience only and do not affect the interpretation of this Agreement;
(b) the singular includes the plural and vice versa;
(c) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(d) the words 'such as', 'including', 'particularly' and similar expressions are not used as, nor are intended to be interpreted as, words of limitation.