TERMS OF SERVICE
Fin365 provides access to and use of the Fin365 Apps, and resells Microsoft Subscriptions pursuant to these Terms of Service of Service (Terms of Service), which are incorporated into and form part of the agreement between Fin365 and Customer (Agreement).
Under the Agreement, Authorised Users receive a right of access and use in relation to Fin365 Apps (Subscription).
Except where the context indicates otherwise, expressions defined in the Agreement have the same meaning when appearing in these Terms of Service.
Definitions applicable specifically to these Terms of Service appear in the body of these Terms of Service and also in clause 17.
From time to time, Fin365 may update these Terms of Service and post a new version at its website at www.fin365.com.au (Website). In that case, the updated Terms of Service will be incorporated into and form part of the Agreement at the date at which the Customer’s Agreement is next renewed or extended.
1. CUSTOMER’S RIGHT TO USE AND ACCESS THE FIN365 APPS; AVAILABILITY; FUNCTIONALITY; REVISIONS TO FIN365 APPS.
1.1. Fin365 grants to the Customer, during the Term, the right to access and use the Fin365 Apps for the Customer’s internal business purposes. Under the Agreement, ‘internal business purposes’ includes a Customer giving access and use of a Fin365 App to a third party where that third party (for example, a client of Customer) receives its access via a login issued by Fin365 and the third party is not reselling or otherwise commercializing the Fin365 App.
1.2. The Fin365 Apps have been developed using due care and skill for use in the provision or obtaining of financial planning services. Each Fin365 App shall provide the functionality and features as illustrated at the Website.
1.3. Fin365 shall use commercially reasonable endeavors to ensure the Fin365 Apps are available 24 hours per day, seven days a week.
1.4. In performing the Service, Fin365 shall comply with applicable laws.
1.5. Fin365 may revise Fin365 Apps by introducing new and enhanced features and functions from time to time. When implementing an updated version, Fin365 will endeavor to retain existing functionality and features. However, if an updated version of a Fin365 App contains materially reduced features or functions, a Customer may terminate its Agreement by giving Fin365 written notice of termination within 30 days of the updated version being rolled out. The period of such notice may be determined by the Customer. Upon such a termination, where fees are invoiced monthly, the Customer must pay the applicable monthly fee for any part-month for which the Service will be provided as at the termination date.
1.6. Fin365 may implement bug fixes or other updates to improve the operation of the Fin365 Apps from time to time as part of ongoing provision of the Service without the giving of prior notice to Customer.
2.RESALE OF MICROSOFT SUBSCRIPTIONS
2.1. Upon approval by Microsoft of the Customer’s order for Microsoft Subscriptions, Fin365 will arrange the supply of the Microsoft Subscriptions and will supply support (each as set out in the Commercial Details section above) to the Customer in relation to the Microsoft Subscriptions.
2.2. Fin365 represents and warrants that it is authorised to resell the Microsoft Subscriptions.
2.3. Customer acknowledges and agrees –
a) Microsoft Online Services are supplied via a subscription model under which Customer receives the right to access and use Microsoft products hosted in a cloud based hosting environment;
b) its purchase of a Microsoft Subscription is subject to Customer’s acceptance of Microsoft’s applicable terms (Microsoft Agreement) a copy of which is currently located at https://www.microsoft.com/licensing/docs/customeragreement
c) the Customer confirms its acceptance of the Microsoft Agreement;
d) any renewal of Microsoft Online Services will be subject to the then current version of the Microsoft Agreement, a copy of which will be provided on request; by authorising a renewal (including an automatic renewal) of a Microsoft Subscription, the Customer will be deemed to have agreed to the terms of the then current Microsoft Agreement.
2.4. Microsoft may disable a Microsoft Subscription at Microsoft’s sole discretion for legal or regulatory reasons to the extent permitted under the Microsoft Agreement; Microsoft will notify Customer of a disablement as soon as commercially reasonable. If Microsoft disables a Customer’s Subscription, Fin365 will suspend billing to Customer for that Microsoft Subscription until the Microsoft Subscription is re-enabled.
2.5. All Microsoft Subscriptions are for a fixed twelve (12) period term and will automatically renew for a further fixed twelve-month period (12) unless cancelled by written notice received by Customer at least 32 days before the end of the initial twelve-month period.
2.6. Pricing for Microsoft Subscriptions may be adjusted by Fin365 at the point of renewal.
2.7. Customer may cancel a Microsoft Subscription at any time by providing 60 days’ notice in writing to Fin365.
2.8. In the event of cancellation, Customer will have thirty (30) days, after cancellation date, to migrate its Microsoft Subscriptions and or data to a new service provider. Subscription licence fees are payable during that 30-day period, unless waived by Fin365. Fin365 may charge for professional services/assistance it provides Customer in migrating Microsoft Subscriptions and/or data.
2.9. If Customer cancels a Microsoft Subscription, Fin365 will not reimburse any Microsoft Subscription fees already paid by the Customer for that Microsoft Subscription. Early termination fees may apply as determined by Fin365.
3.1. Fin365 will provide support to assist the Customer’s use of the Service, up to but not exceeding the number of support hours (per month) specified in the Order. Support provided by Fin365 shall include but not be limited to: set-up, sign up; migration of data; accounts and billing; “how to” advice, publication of FAQ responses; service and software updates; software configuration; client connectivity and client desktop; and service availability issues within Fin365’s control.
3.2. Where the Service is provided on a monthly basis: (a) Fin365 may charge for initial setting up of Customer’s Service including for migration of Customer Data into the service environment; (b) Fin365 reserves the right to charge for ongoing support, provided that Fin365 notifies the Customer in advance of any support that will be chargeable.
3.3. Where support is chargeable, the rates payable for such support will be as set out in the Order.
4. CUSTOMER DATA & PRIVACY.
4.1. Customer retains its ownership of the intellectual property rights in Customer Data. Customer grants to Fin365 and its contracted service providers a licence to use, process and transmit the Customer Data for the sole purpose of providing the Service, and for those other purposes specifically set out in the Agreement.
4.2. Unless it receives Customer’s prior consent, Fin365 and its contracted service providers shall not access, process, intentionally disclose, or use Customer Data other than as reasonably necessary to perform the Service.
4.3. In developing and provisioning the Fin365 Apps, Fin365 has established safeguards and design elements to protect the security, confidentiality and integrity of Customer Data. Fin365 will continue to use all reasonable endeavours to ensure the security, confidentiality and integrity of Customer Data is preserved.
4.5. Customer acknowledges in exceptional circumstances Fin365 may be required to disclose Customer Data to regulatory or governmental authorities as required by applicable law, or pursuant to legal proceedings. Fin365 shall give Customer prompt notice of any such legal or governmental requirement and at Customer’s request shall (at Customer’s expense) reasonably cooperate with Customer in any effort Customer pursues to seek a protective order or otherwise to challenge such required disclosure.
5. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.
5.1. Customer acknowledges each Authorised User’s access to and use of a Fin365 App will be via an individualized login and password issued to the Authorised User. Customer is responsible and liable for any use of the Fin365 Apps via a User’s login, whether authorized or unauthorized.
5.2. Customer shall take reasonable steps to prevent unauthorized access to the Fin365 Apps, including without limitation by protecting its passwords and other log-in information. Customer shall notify Fin365 immediately of any known or suspected unauthorized use of the Fin365 Apps or breach of its security and shall use best efforts to stop said breach.
5.3. In its use of the Fin365 Apps, Customer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information.
5.4. Customer shall not: (a) use the Fin365 Apps for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Fin365 Apps for such purposes; (b) provide Fin365 Apps passwords or other log-in information to any third party (other than an Authorised User); (c) share non-public Fin365 App features or content with any third party (other than an Authorised User); or (d) access the Fin365 Apps in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Fin365 Apps, or to copy any ideas, features, functions or graphics of the Fin365 Apps. If it suspects any breach of the requirements of this clause 5.4, including without limitation by Users, Fin365 may suspend Customer’s access to the Fin365 Apps without advanced notice, in addition to such other remedies as Fin365 may have pursuant to the Agreement.
6.1. All fees payable to Fin365 are due within 14 days from the invoice date. Once placed, an Order is noncancelable and any sums paid are nonrefundable, except as provided in the Agreement or under applicable law.
6.2. Customer must pay any GST or other sales, value-added or similar taxes imposed by applicable law that Fin365 must pay based on the Service, except for taxes based on Fin365’s income. Unless otherwise indicated, fees listed in an Order are exclusive of taxes and expenses.
6.3. Fin365 will issue the Customer with a valid Tax Invoice in relation to any taxes that are to be recovered. Unless otherwise specified, Fin365 will invoice monthly in advance.
6.4. Fin365 may in its sole discretion charge interest on a past due amount from the first day the amount is past due until the amount is paid in full. Interest will accrue daily at the Interest Rate.
7. CUSTOMER’S ACKNOWLEDGEMENTS
Customer acknowledges: (a) Fin365 does not warrant that the Service will be error free, or that Fin365 will correct all errors in the Service; (b) Fin365 does not warrant that the Service will meet your requirements, specifications or expectations for the Service; (c) Fin365 does not accept responsibility for advice provided by a Customer to its clients or other third parties; (d) Fin365 does not control the transfer of data over communications facilities including the internet, and that those services may be subject to limitations, delays and other problems inherent in the use of such communications facilities. Customer further acknowledges any access to or use of the Website is subject the acceptable use terms (AUT) published at the Website from time to time. The extent of any inconsistency between the AUT and the Agreement, the terms of the Agreement shall prevail
8.INTELLECTUAL PROPERTY; INFRINGEMENT INDEMNITY & FEEDBACK.
8.1. Customer acknowledges that the Fin365 Apps are protected by copyright and other laws, and the Agreement does not grant Customer any intellectual property license or rights in or to the Fin365 Apps or any of its components, other than a limited licence to use the Fin365 Apps solely in connection with its use of the Service in accordance with the terms of the Agreement.
8.2. Fin365 represents and warrants that it is the owner of the Fin365 Apps, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. In the event of a breach of the warranty in this clause, Fin365 shall subject to clause 8.3, indemnify Customer in respect of any amounts Customer may become liable to pay to a third party as a result of the Customer’s use of the Service infringing that party’s intellectual property rights (“Infringement Claim”).
8.3. Customer must (a) notify Fin365 promptly upon receiving notification of an Infringement Claim; (b) provide Fin365 with reasonable assistance in defending an Infringement Claim, (c) allow Fin365 sole control of the defence and/ or any settlement negotiations for the Infringement Claim; (including without limitation appointing and instruct legal representation). Upon receiving notification from the Customer of an Infringement Claim, Fin365 may: (d) secure for Customer the right to continue using the Fin365 Apps; or (c) replace or modify the Fin365 Apps to make it non infringing, provided that such replacement or modification does not result in a material reduction in the functionality provided under the Service. Where Fin365 in its sole discretion determines it may be unable to achieve the remedies outlined in paragraphs (d) or (e) above, Fin365 may terminate the infringing part of the Service and refund to Customer any prepaid fees for such part, in proportion to the portion of the Term left after such termination. In such case, Fin365 shall provide reasonable assistance, at Fin365’s cost, to enable the Customer to transfer Customer Data to an alternative service arrangement. In conjunction with Customer’s right to terminate for breach where applicable, this clause states Fin365’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in clause 8.2 and for potential or actual intellectual property infringement by the Fin365 Apps or the Service.
8.4. Fin365 has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Fin365, and nothing in the Agreement or in the parties’ dealings arising out of or related to the Agreement will restrict Fin365’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying the Fin365 Apps or any of Fin365’s other products or services.)
8.5. Fin365 may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. (“Aggregate Data” refers to Customer Data with the following removed; personal identifiable information in relation to any individual or entity names, any addresses or any contact details or any other Confidential Information of the Customer, the Customer’s Users, the Customer’s Clients or any other 3rd parties associated with the Customer)
9. CONFIDENTIAL INFORMATION.
9.1. The parties may have access to information that is confidential to one another (“Confidential Information”). “Confidential Information” means information in any form (oral, written or electronic) which is not in the public domain and includes, but is not limited to personal, financial, business and economic information, and for avoidance of doubt includes Customer Data – the protection of which is additionally governed by clause 4 above.
9.2. We each agree to –
(a) use and disclose the other party’s Confidential Information solely to the extent required for the performance (by Fin365) of obligations or (by the Customer) to receive the Service under the Agreement;
(b) otherwise to use reasonable endeavours to maintain the confidentiality of the other party’s Confidential information.
9.3. A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
Fin365 may provide Customer access and use of Fin365 Apps on a trial basis for a limited period as set out in the applicable Order. In such case, Customer acknowledges: (a) to the extent permitted by law, such use and access is provided on an “as is” and “as available” basis, without warranty on Fin365’s part as to the suitability or fitness of the Service; (b) Customer may be required to purchase on a non refundable basis professional services to enable such trial use and access. In that case, the details of those services would be set out in the applicable Order; (c) if the Customer has already agreed to a Term to commence following completion of the trial period, such Term would automatically commence unless the Customer notifies Fin365 in writing prior to the expiration of the trial period that the Customer does not wish to continue the Service.
11.1. To the maximum extent permitted under applicable laws, Fin365 excludes all implied warranties and conditions, such as implied warranties of merchantability, non-infringement, and fitness for purpose.
11.2. Subject to clause 11.4, the only remedy a party will have for any and all losses, liabilities and damages arising under or in relation to this Agreement or the Services for all events giving rise to liability on its part (including without limitation for loss or damage caused by negligence, or by breach of contract) is to obtain direct damages from the liable party up to the amount actually paid by Customer to Fin365 during the period of three months prior to the last claim giving rise to liability, minus any amounts paid by the liable party for any prior liability.
11.3. Neither party (Claiming Party) can recover damages in connection with this Agreement or the Services (including where arising due to negligence or where the other party knew of the possibility of such damages): (a) for loss of revenue or profit; (b) for indirect, special, incidental, consequential, punitive, or exemplary damages; (c) for business interruption, damage to reputation, or loss of data or business information; or (d) relating to or based upon any amount payable by the Claiming Party as a result of a claim, action, demand or threat against the Claiming Party by a client or any other third party.
11.4. The limitation in clause 11.2 does not apply to non-payment by Customer, fraud by Fin365 or its employees; breach of confidentiality; breach by either party of its obligations under clause 8. Each party’s liability for loss or damage of any kind (including loss or damage caused by negligence) is reduced to the extent that the other party, its agents or contracted service providers caused or contributed to that loss or damage.
11.5. To the extent permitted by law, the liability of the Fin365 for a breach of a condition, warranty or guarantee implied into this Agreement by the Competition and Consumer Act 2010 (Cth) is limited to the following, as determined by the Fin365: (a) if the breach relates to goods, to the replacement of the goods or supply of equivalent goods, or the repair of the goods or the payment of the cost of replacing the goods or of acquiring equivalent goods or the payment of the cost of having the goods repaired; and (b) if the breach relates to services, the supplying of the services again or the payment of the cost of having the services supplied again.
Customer shall defend, indemnify, and hold harmless Fin365, officers, its officers, directors, employees, contracted service providers, subsidiaries and agents against any third party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the Fin365 Apps, including without limitation: (a) claims by Users or by Customer’s other employees or by Customer’s customers; (b) claims related to alleged unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data, other than such claims arising due to Fin365’s breach of this Agreement; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Fin365 Apps through Customer’s account, including without limitation by Customer Data.
Fin365 may suspend Customer’s or any User’s password, account, and/ or access to or use of the Service if Customer or any Users materially violate any of the provisions of the Agreement or if in Fin365’s reasonable judgment, the Service or any component thereof are about to suffer a significant threat to security or functionality. Without limiting the foregoing, Fin365’s rights under this clause:
(a) apply where Customer has failed to pay when due an amount under the Agreement and has not, within 7 days of receiving notice of delinquency, remedied such non payment.
(b) will extend to allow Fin365 to hold all pending orders and to suspend further Customer access to and use of the Service (including current Subscriptions).
Fin365 will provide prior notice to Customer of any such suspension in Fin365’s reasonable discretion based on the nature of the circumstances giving rise to the suspension. Fin365 will re-establish access and/ or use promptly after Fin365 determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured. During any suspension period, Fin365 will make available to Customer the Customer Data as existing on the date of suspension. Any suspension or termination by Fin365 under this clause shall not excuse Customer from an obligation to make payment(s) under the Agreement.
If a party commits a material breach of the Agreement, the other party can terminate the Agreement for cause. The terminating party must give the breaching party not less than thirty (30) days’ written notice and opportunity to cure the breach (if the breach is capable of being remedied). If the breach is not capable of being remedied, termination is effective immediately upon written notice from the terminating party. A party will be entitled to terminate the Agreement immediately upon written notice if the other party experiences an Insolvency Event.
15.CONSEQUENCES OF EXPIRATION OR TERMINATION
Upon termination or expiration of the Agreement, or upon termination or expiration of a Subscription, Customer shall cease all use of the applicable Fin365 Apps and will no longer have rights to access or use the Fin365 Apps; however, if requested by Customer, and for a period of up to 30 days after the end of the applicable Term, Fin365 will make available Customer Data for retrieval by Customer. Customer acknowledges that such access may require the payment of a monthly charge subject to the terms set out in the Order. At the end of such 30-day period, and except as may be required by law, Fin365 will delete or otherwise render inaccessible any Customer Data that remains on the service environment. At Customer’s request, Fin365 may provide professional services on a fee for services basis to the Customer to assist with the retrieval and provisioning of Customer Data for use in an alternative storage or computing environment. (The provision of that professional service will be subject to the Customer signing an additional Order or supplement to its existing Order, and will be subject to these Terms of Service.)
16.1. The following provisions will survive termination or expiration of the Agreement: clauses 8, 9, 11, 12 and 15.
16.2. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Fin365 employee or contractor will be an employee of Customer.
16.3. Notices under the Agreement may be sent by email to the respective contact points named for that purpose in the Order, provided such notice is marked in the subject field as ‘Notice: Agreement dated [insert date]’. Notices sent by email will be deemed received 24 hours after they are sent, unless a message generated automatically by the recipient’s or sender’s email system indicates the email was not received. A party may update its notice details in the Order, by written (including email) notification.
16.4. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of the Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
16.5. Customer may not assign the Agreement or any of its rights or obligations hereunder without Fin365’s express written consent. Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
16.6. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of the Agreement invalid or otherwise unenforceable in any respect. If a provision of the Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of the Agreement will continue in full force and effect.
16.7. Neither party will be deemed to have waived any of its rights under the Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of the Agreement will constitute a waiver of any other breach of the Agreement.
16.8. The Agreement will be governed solely by the laws of the State of Victoria. The parties consent to the exclusive jurisdiction of the courts of that State.
16.9. The Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. To the extent of any inconsistency between the terms of the Order and these Terms of Service, these Terms of Service shall prevail to the extent of the inconsistency. Neither party has relied upon any such prior or contemporaneous communications.
16.10. For avoidance of doubt, any terms, conditions or other provisions contained in or referenced by any purchase order or other documentation issued by the Customer in connection with the Fin365 Apps or the Service will not apply even where such purchase order or other has been signed by a Fin365 employee, except where the signatory was the authorized representative of Fin365 nominated under the Order.
17. DEFINITIONS. Expressions defined in the Order have the same meaning where appearing in the Terms of Service. The following capitalized terms shall have the following meanings whenever used in the Agreement.
17.1. “Authorised User” means a User whose use of the Service has been authorized in accordance with the terms of the Agreement. Authorised Users may include employees and clients of Customer, as well as (subject to the terms of this Agreement) third parties accessing the Service for the internal business purposes of the Customer.
17.2. “Customer’s Clients” means any entity (including Individuals, Trusts, Companies, Superannuation, Pension, Self-Managed Superannuation Funds, Private Ancillary Funds, Charitable Trusts, Accountants, Lawyers, Banks, Brokers, Agents) with whom the Customer has or has had commercial dealings.
17.3. “Customer Data” means data in electronic form input or collected through a Fin365 App by or from Customer, including without limitation by a User.
17.4. “GST” means GST as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended (GST Act) or any replacement or other relevant legislation and regulations.
17.5. “Fin365 App” refers to an item of application software listed in the Order (as amended by agreement of the parties).
17.6. “Insolvency Event” means that a party:
(a) is (or states that it is) an insolvent under administration or insolvent (each as defined in the Corporations Act);
(b) has had a controller (as defined in the Corporations Act) appointed or is in liquidation, in provisional liquidation, under administration or wound up or has had a receiver appointed to any part of its property;
(c) is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent);
(d) has had an application or order has been made, resolution passed, proposal put forward, or any other action taken, in each case in connection with that person, which is preparatory to or could result in any of (a), (b) or (c) above;
(e) is the subject of an event described in section 459C(2) of the Corporations Act (or it makes a statement from which the other party to this Agreement reasonably deduces it is so subject); or
(f) is otherwise unable to pay its debts when they fall due.
17.7. “Interest Rate” means the rate published on the Westpac Banking Corporation website as being the Overdraft Rate plus 2%.
17.8. “Order” means the agreement signed by Customer and Fin365 setting out the commercial details of the Customer’s purchase of rights to use and access Fin365 Apps.
17.10. “Service” means the service provided by Fin365 under this Agreement including the right to use and access Fin365 Apps via a web based portal and including the resale by Fin365 to Customer of Microsoft Apps.
17.11. “Subscription” means the right to use and access a Fin365 granted to a User under the Agreement.
17.12. “Term” means the period during which the Service is provided as defined under the Order, including any extension or renewal of that period as agreed by the Customer and Fin365.
17.13. “Tax Invoice” means that term as defined in A New Tax System (Goods and Services Tax) Act 1999 and includes any document or record treated by the Commissioner of Taxation as a tax invoice or as a document entitling a recipient to an input tax credit.
17.14. “User” means any individual who uses a Fin365 App through a login of Customer, whether authorized or not.