Welcome to a.i. This agreement sets out the terms and conditions in relation to our provision of the Advice Intelligence software (“Software”) and incidental services supplied with the Software (“Services”) to you. Please read them carefully.
The Software is licensed, not sold, to you for use in accordance with this agreement (“Agreement”).
This Agreement commences on the day you accept this Agreement or otherwise when you start using or accessing the Software or receive the Services (“Commencement Date”), and continues until terminated by either party in accordance with this Agreement (“Term”).
1. Grant of Licence
1.1 Subject to the terms and conditions of the Agreement, we grant to you a revocable, non-exclusive, non-transferable licence to use the Software for the Term.
1.2 You may only use the Software for your own use, and only for your own internal data processing operations. You must not transfer or sublicense the Software to any third party, in whole or in part, in any form, whether modified or unmodified.
1.3 The number of copies of the Software that you may use under this Agreement is based on the number of individual user licences you have nominated on the relevant order form(s) on our website or in your formal agreement ("Order Form/s"). You must not use any more copies of the Software without our prior written permission.
2.1 We will provide the following Services in accordance with this Agreement:
(a) hosting services that vary based on the Software licence you have purchased and the number of individual user licences you have purchased, as set out in the relevant Order Form;
(b) access to certain modules to assist you in developing and managing content, including websites, campaigns and marketing material, depending on the subscription you selected in the relevant Order Form; and
(c) the support services described in clause 14 below.
3.1 Subject to the support described in clause 14, you acknowledge and agree that technology systems are not free of faults, and downtime may occur. The Software may become unavailable due to planned or unplanned maintenance or circumstances beyond our control, including without limitation acts of third party telecommunications service suppliers or acts of God. Subject to the Non-excludable conditions set out in clause 16, we do not warrant that the Software or the Services will function correctly or at all, be operational and/or free of interruption, delays, faults, computer viruses or other harmful components. For the avoidance of doubt and without limitation (but subject always to any Non-excludable conditions set out in clause 16) you will not be entitled to a refund or remedy as a result of any service outages that are caused by planned or unplanned maintenance on the servers or the technology, or circumstances beyond our control.
3.2 The Services do not include:
(a) correction of errors or defects caused by you or a third party, including without limitation the failure by you or a third party to maintain the operating environment in which the Software operates or use the Software in accordance with any specifications issued by us;
(b) training of staff;
(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 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 in the Fee Schedule or as otherwise agreed in writing between us from time to time ("Fees"). The Fees are direct debited monthly in advance from your nominated account. You must provide the relevant details and authorisations to us and we are not required to licence the Software or provide 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 We may allow, at your request, an increase or decrease in the number of user licenses from time to time. We will then adjust the Fees payable, and those new Fees will be agreed in writing and 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 may in our sole discretion apply 14-day payment terms to rectify direct debit payments by you.
4.4 If any payments outstanding fall outside its 14-day per your direct debit payment due date, you will be in breach of this Agreement. We may immediately without further notice to you:
(a) suspend your access to the Software and Services;
(b) charge you interest of 7.5% p.a. on any outstanding amounts; and/or
(c) terminate this Agreement
4.5 All fees are subject to annual indexation of 3% each financial year
5. Your Use of the Software and Services
5.1 When you use the Software and/or the Services to store content on our servers, upload content onto a website or create a marketing campaign, including without limitation 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 the intellectual property rights, privacy rights, or any other 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) is not the subject of any claim, demand, action or legal proceeding or to your knowledge any potential or pending claim, demand, action or proceeding;
(e) does not contain anything that violates any law, is offensive, defamatory, slanderous, libelous, violent, sexually explicit and/or exploitative;
(f) is not misleading or deceptive, or capable of misleading or deceiving; and
(g) 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.
6. Changes to this Agreement
6.1 At any time we may amend this Agreement or change the fees on 30 days’ notice posting a notification on our website that changes to this Agreement and/or the Fees have been made. If you do not agree to the changes you must advise us in writing within 30 days of our notification, in which case this Agreement will terminate and clauses 15.3 and 15.6 will apply. If you do not advise us in accordance with this clause, or continue to use the Software or the Services 30 days after such notification, you agree that you are deemed to have consented to the changes.
7. 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.
7.2 You grant to us, our employees, contractors, officers and affiliates an irrevocable, non-exclusive 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. 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.
8.2 You acknowledge that we have prepared certain templates which are included in the Software. The information and content (including without limitation any financial information or advice) in the templates is for information purposes only, is intended to apply in Australia only and subject to any Non-excludable Conditions (set out in clause 16) we do not warrant its accuracy or reliability. You may not rely on it for providing or receiving financial or other advice. You are solely responsible for your use of the templates.
9. Data Aggregation
9.1 You acknowledge that the Services are enhanced through the incorporation of aggregated data from all users of the service 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.
9.3 We also agree that we must keep all such data confidential and comply with all privacy obligations that may relate to that data during the aggregation process.
10.1 You must not:
(a) disassemble, reverse engineer, re-engineer, decompile, modify, or translate the Software or the Services (except as permitted by non-excludable law);
(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 without limitation 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; and
(e) notify us immediately if you become aware of any unauthorised use of the Software or Services.
11. Fair 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 limits at any time where we believe in our sole discretion the number or size of the items uploaded or stored or the volume of notifications sent are deemed by us in our sole discretion to be unfair.
11.2 In the event that a limit is applied, you will be required to reduce the number or size of the items uploaded or stored or the volume of notifications sent to the applied limit. If you do not comply with any request made under this clause, we may remove any or all of your data without notice or liability.
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). 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. 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 without limitation:
(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 is being supplied and supported pursuant to this Agreement.
13.2 Except in relation to clause 12.3, 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 companies, 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 12; or
(b) if required to disclose the Confidential Information by law or the rules of any Stock Exchange.
14.1 We agree to provide you the following support, for the Software:
(a) Support will be available between the hours of 9am to 5pm AEST, Monday to Friday (excluding national public holidays) during our initial launch period of August to December 2018. 2019 Support hours will be updated and provided in this agreement prior to January 2019.
(b) Queries can be raised to the a.i. Help Desk via the below, and these may be recorded.
(c) An a.i. Help Desk Support Specialist will endeavour to resolve your query during your initial contact. If the query requires further investigation, the Support Specialist will inform you when they will next provide an update of the status.
(d) An optional self-service knowledgebase of common queries will be made available.
(e) Where required, the Support Specialist will escalate your issue to a Senior Support Specialist who will attempt to resolve the issue. If the query needs to be further escalated to our partners, it will be prioritised based on the criteria below:
(f) Escalated issues are categorised with the below Priority ratings, with updates provided with regard to the progress of the issue by email and/or phone, taking into account your preference.:
Resolution of the issue will take place as a matter of urgency. We will update you with the progress of our investigation at least once every 2 to 4 business hours.
Resolution of the issue will take place as a matter of urgency. We will update you with the progress of our investigation at least once every half to 1 business day.
These are issues where easy workarounds are available and the impact to your business is not significant. We will update you with the progress of our investigation at least once every 3 to 5 business days. Once our investigation has concluded, the resolution will usually be added to our list of improvements being considered for upcoming scheduled releases. You will receive further updates if the item is successfully confirmed for a specific scheduled release.
These are issues which are minor or cosmetic in nature, do not require workarounds and have minimal impact to your business. We will update you with the progress of our investigation at least once per week. Once our investigation has concluded, the resolution will usually be added to our list of improvements being considered for a future scheduled release. You will receive further updates if the item is successfully confirmed for a specific scheduled release.
(g) Each user is provided with 5 support hours per calendar month. Any extra support provided over this time limit may be subject to a support fee.
14.2 When we provide you with help desk 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. Term and Termination
15.1 This Agreement begins on the Commencement Date and continues until terminated in accordance with this Agreement.
15.2 We may terminate this Agreement immediately if you breach any provision of this Agreement and you fail to remedy the breach within 10 days after receiving written notice of the breach.
15.3 Either party may terminate this Agreement for convenience at any time by giving the other party 30 days prior written notice.
15.4 Upon termination of this Agreement you must immediately cease using the Software (including any templates), and return or destroy any Confidential Information, documentation and templates, and provide us with written confirmation of the return or destruction.
15.5 Upon termination of this Agreement for any reason you must immediately pay all outstanding Fees.
15.6 You acknowledge and agree that:
15.7 Termination of this Agreement will not affect any accrued rights or remedies that a party may have.
15.8 Clauses 7, 8, 9, 11, 12, 15, 16, 17 and 19 survive termination of this Agreement.
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 Except for any express warranty under this Agreement or any Non-excludable Condition, we exclude any warranties which are express or implied by any legislation, the common law, or otherwise.
16.3 Except for liability in relation to breach of any Non-excludable Condition, our total liability to you in contract, including for one or more breaches of any express term or terms of this Agreement (in aggregate), tort (including in negligence), statute, or otherwise, is limited to the total amount of fees paid to us by you in the 6 months before the incident giving rise to the liability occurred.
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.
16.5 Except for liability in relation to breach of any Non-excludable Condition we exclude all liability to you for lost profits, lost revenue, lost savings, lost business, loss of opportunity and any consequential or indirect loss arising out of, or in connection with, the Software, the Services, any claims by any third person, or this Agreement, even if we knew that loss was possible or the loss was otherwise foreseeable.
17.1 To the extent permitted by law, you indemnify and hold harmless, us, our directors, officers, employees, contractors and agents from any and all claims, losses, liabilities, damages, taxes, expenses and costs, including without limitation, legal fees and court costs (collectively, "Losses"), arising from or related to your use of the Software or the Services, including but not limited to any of the following:
(a) your breach of any obligation, representation or warranty in this Agreement;
(b) your breach of any third party right;
(c) any claims that your Material or the distribution, sale, offer for sale, use or importation of your Material, violates or infringes any third party intellectual property or proprietary rights, or has caused damage to a third party;
(d) our use of your Material (as modified, adapted or enhanced by you where applicable), related trademarks and logos, or images and other materials that you provide to us under this Agreement; and
(e) your use of the Software (including without limitation the templates).
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, facsimile number 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 facsimile transmission, at the time of transmission, provided that following the transmission, the sender’s facsimile machine produces a transmission confirmation report, confirming successful transmission of the facsimile in its entirety;
(d) in the case of email, upon receipt by the sender of a successful delivery report.
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.
19.1 You must not assign, or attempt to assign, this Agreement or any right or obligation arising out of this Agreement, without our prior written consent, which approval we may withhold in our absolute discretion or give subject to satisfaction of one or more conditions.
19.2 You understand and agree that by entering into this Agreement, or otherwise by using the Software or the Services, no legal partnership or agency relationship is created 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 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. This Agreement takes precedence over any additional or conflicting terms, which may be contained in your purchase order or our order acknowledgment forms.
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 in our sole discretion.
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 Any variation of this Agreement must be in writing and signed by each party.
20. Providing direct access to your clients