FIN365 MASTER TERMS OF SERVICE

These Master Terms of Service (MToS) apply to each Order for Services provided to the Customer by Fin365 Pty Ltd (ACN 614 820 567) (Fin365) and its affiliates.

1. ORDERS

1.1. Each Order creates a separate agreement (Agreement) between the Fin365 entity identified in the Order and the Customer consisting of:

a) the Order (including the schedules to the Order); and

b) these MToS (including the schedules to these MToS).

1.2. To the extent of any inconsistency between the documents forming part of the Agreement, the document listed first will prevail to the extent of the inconsistency.

2. LICENCE TO FIN365 APPS

2.1. The Fin365 Apps are licensed, not sold to the Customer for use under the terms of this Agreement.
2.2. Fin365 grants the Customer a limited, non-exclusive licence to use the Fin365 Apps solely:

a) in connection with its use of the Service in accordance with the terms of the Agreement; and

b) for the Customer’s internal business purposes, which includes the Customer giving access and use of a Fin365 App to a third party where that third party (for example, a Customer’s Client) receives its access via a login issued by Fin365 and the third party is not reselling or otherwise commercialising the Fin365 App.

2.3. Each Fin365 App shall perform materially in accordance with the functionality and features as illustrated at the Website.
2.4. Fin365 shall use commercially reasonable endeavours to ensure the Fin365 Apps are available 24 hours per day, seven days a week.
2.5. In performing the Service, Fin365 shall comply with applicable laws. Fin365 provides software and related technology services only. Fin365 does not hold an Australian Financial Services Licence and does not provide financial product advice, dealing or arranging services. The Customer acknowledges that any outputs of the Fin365 Apps are for informational purposes only and do not constitute financial advice.

3. UPDATES AND IMPROVEMENTS TO FIN365 APPS

3.1. Fin365 may revise the Fin365 Apps by introducing new and enhanced features and functions from time to time.
3.2. When implementing an updated version, Fin365 will endeavour to retain existing functionality and features. However, if an updated version of a Fin365 App contains materially reduced features or functions, the Customer may terminate its Agreement by giving Fin365 thirty (30) days’ written notice of termination, within 30 days of the updated version being rolled out.
3.3. The Customer acknowledges that, in the event that Fin365 releases an updated version of the Fin365 Apps, any customisations, integrations or configurations of the Fin365 Apps or Microsoft Platform that were not made or approved by Fin365 could result in such customisations, integrations or configurations rendered inoperable.

4. FIN365 APPS SUBSCRIPTIONS

4.1. Unless otherwise specified in an Order, each Fin365 Apps Subscription has a Term of twelve (12) months and renews automatically for subsequent twelve (12) month periods.
4.2. A Customer may cancel a Fin365 Apps subscription at any time by providing Fin365 sixty (60) days’ written notice of cancellation.

5. MICROSOFT SUBSCRIPTIONS

5.1. The Fin365 Apps are built on, and depend upon, the Microsoft Dynamics 365, Power Platform and Azure cloud services (together, the Microsoft Platform). The terms governing the Microsoft Platform are set out in Schedule 1 (Microsoft Platform).
5.2. The Customer’s acceptance of, and compliance with, Microsoft’s customer agreement is governed by Schedule 1 (Microsoft Platform). In the event of inconsistency between Microsoft’s customer agreement and this Agreement, Microsoft’s customer agreement prevails in relation to the Microsoft Platform.

6. SUPPORT

6.1. Fin365 will provide support to assist the Customer’s use of the Service as described in the Order.
6.2. Fin365 may charge the Customer both for (i) initial set-up of the Customer’s Service, including for migration of Customer Data into the service environment, and (ii) for on-going support, in each case as described in the Order.
6.3. Fin365’s support obligations under the Agreement do not extend to customisations, integrations or configurations of the Fin365 Apps or the Microsoft Platform that were not made or approved by Fin365. Support for such customisations may be provided by Fin365 on request as a chargeable Technology Service.

7. CUSTOMER DATA

7.1. Unless it receives the 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.
7.2. 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.
7.3. The Customer acknowledges and agrees that:

a) 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 the Customer prompt notice of any such legal or governmental requirement and at the Customer’s request shall (at the Customer’s expense) reasonably cooperate with the Customer in any effort the Customer pursues to seek a protective order or otherwise to challenge such required disclosure.

b) Fin365 may use, reproduce, sell, publicise, or otherwise exploit 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 (Aggregate Data) in any way, in its sole discretion, provided that such Aggregate Data will not identify the Customer or any individual and will be used in compliance with applicable privacy laws.

8. SECURITY AND PRIVACY

8.1. Fin365 will:

a) implement industry standard technical and organisational measures to protect the security of Customer Data; and

b) provide the Customer with access to the Customer Data in Fin365’s possession or control and promptly delete Customer Data on request.

8.2. The Customer is responsible for backing up its Customer Data housed within its service environment hosted on the Microsoft Platform.
8.3. Fin365 will comply with its Privacy Policy (Privacy Policy | Fin365) in connection with performance of the Service.
8.4. The Customer acknowledges Fin365 Apps are hosted on the Microsoft Platform, and that Microsoft’s privacy and/or data protection policies will apply to the handling and treatment of the Customer Data by Microsoft.
8.5. Fin365 will implement industry standard technical and organisational measures relating to any actual or suspected unauthorised access to, or acquisition or disclosure of, Customer Data. A copy of Fin365’s Incident and Data Breach Policy can be provided upon request.

9. INTELLECTUAL PROPERTY

9.1. All rights, title and interest (including intellectual property rights) in Customer Data are owned by the Customer and is the Customer’s Confidential Information. The 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.
9.2. Where an Order expressly provides that a Deliverable (other than any improvement, configuration or customisation of the Fin365 Apps) is to be owned by the Customer, intellectual property rights in that Deliverable will vest in the Customer upon full payment of all fees due under the applicable Order.
9.3. Other than expressly set out in clauses 9.1 and 9.2, Fin365 retains all intellectual rights in the Fin365 Apps and all intellectual property rights produced as a result of the performance of the Service, including:

a) all intellectual property rights in improvements, configurations or customisations of the Fin365 Apps created during the provision of the Service (including any Technology Services), which will be owned by Fin365 upon creation and made available to the Customer under the licence terms applicable to the Fin365 Apps set out in clause 2.2; and

b) any tools, methodologies, frameworks or pre-existing intellectual property of Fin365 incorporated in or used in the performance of the Service.

10. CUSTOMER’S RESPONSIBILITIES AND RESTRICTIONS

10.1. The Customer acknowledges each Authorised User’s access to and use of the Fin365 Apps will be via an individualised login and password issued to the Authorised User. The Customer is responsible and liable for any use of the Fin365 Apps via a User’s login, whether authorised or unauthorised.
10.2. The Customer shall take reasonable steps to prevent unauthorised access to the Fin365 Apps, including without limitation by protecting its passwords and other log-in information. The Customer shall notify Fin365 immediately of any known or suspected unauthorised use of the Fin365 Apps or breach of its security and shall use best efforts to stop said breach.
10.3. In its use of the Fin365 Apps, the Customer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information.
10.4. The 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 Apps 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 as the Fin365 Apps, or to copy any ideas, features, functions or graphics of the Fin365 Apps.

10.5. If Fin365 reasonably suspects any breach of the requirements of this clause 10, including without limitation by Users, Fin365 may suspend the Customer’s access to the Fin365 Apps without advanced notice, in addition to such other remedies as Fin365 may have pursuant to the Agreement.
10.6. The Customer must not reverse engineer, decompile, disassemble or otherwise attempt to derive the source code of the Fin365 Apps; remove, alter or obscure any proprietary notices, labels or marks on the Fin365 Apps; or publish or disclose to any third party the results of any benchmark or performance tests of the Fin365 Apps without Fin365’s prior written consent.

11. PAYMENT

11.1. All fees payable to Fin365 are due within seven (7) 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.
11.2. Fin365 reserves the right to increase the fees it charges for Services from time to time. Any increase in fees will be communicated to the Customer with a minimum of sixty (60) days’ written notice.

a) Any increase in Subscription fees for Fin365 Apps will take effect from the Subscription renewal date immediately following such fee increase notice.

11.3. The 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.
11.4. 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 arrears.
11.5. 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.

12. CUSTOMER’S ACKNOWLEDGEMENTS

12.1. The 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 the Customer’s requirements, specifications or expectations for the Service;

c) Fin365 does not accept responsibility for advice provided by the 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.

12.2. Fin365 may access the Customer’s service environment solely for the purposes of providing technical support, maintaining service integrity, and verifying compliance with applicable licensing terms and acceptable use policies.
12.3. Such access shall be limited to the extent necessary to fulfil these purposes and will be subject to appropriate safeguards including role-based access controls, audit logging, and adherence to confidentiality obligations. Where practicable, Fin365 will obtain the Customer’s consent prior to accessing Customer Data.

13. FIN365 INDEMNITY

13.1. 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 the Agreement.
13.2. Fin365 will indemnify the Customer in respect of any amounts the 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), provided the Customer:

a) notifies Fin365 promptly upon receiving notification of an Infringement Claim;

b) provides Fin365 with reasonable assistance in defending an Infringement Claim and allows Fin365 sole control of the defence.

13.3. Upon receiving notification from the Customer of an Infringement Claim, Fin365 may:

a) secure for the Customer the right to continue using the Fin365 Apps; or

b) replace or modify the Fin365 Apps to make them non infringing, provided that such replacement or modification does not result in a material reduction in the functionality provided under the Service.

13.4. Where Fin365, in its sole discretion, determines it may be unable to achieve the remedies outlined in clause 13.3, Fin365 may terminate the infringing part of the Service and amend the fees payable by the Customer relating to such part. 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 should the Customer wish to. In conjunction with the Customer’s right to terminate for breach where applicable, this clause states Fin365’s sole obligation and liability, and the Customer’s sole remedy in respect of an Infringement Claim.

14. CONFIDENTIAL INFORMATION

14.1. Each party agrees 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) take all necessary steps to maintain the confidentiality of the other party’s Confidential Information.

14.2. Fin365 may use, profit from, disclose, publish, keep secret, or otherwise exploit any suggestion or idea for improving or otherwise modifying the Fin365 Apps or any of Fin365’s other products or services.

15. LIABILITY LIMITATIONS

15.1. 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.
15.2. Subject to this clause 15, 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 the Customer to Fin365 during the period of twelve (12) months prior to the claim giving rise to the liability, minus any amounts paid by the liable party for any prior liability.
15.3. Neither 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;

d) relating to or based upon any amount payable by that party as a result of a third-party claim; or

e) to the extent that it, or its agents or contracted service providers caused or contributed to that loss or damage.

15.4. The limitation in clause 15.2 does not apply to non-payment by the Customer, fraud by Fin365 or its employees, breach of confidentiality, or 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.
15.5. To the extent permitted by law, the liability of 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 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.

15.6. Nothing in this Agreement is intended to exclude, restrict or modify any rights that the Customer may have under the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) in respect of unfair contract terms that cannot be excluded, restricted or modified by agreement. To the extent that any term of this Agreement is void under Division 2 of Part 2-3 of the Australian Consumer Law, Fin365 will not seek to rely on that term.

16. CUSTOMER INDEMNITY

16.1. The Customer shall defend, indemnify, and hold harmless Fin365, its officers, directors, employees, contracted service providers, subsidiaries and agents against any third-party claim, suit, or proceeding arising out of or related to the 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 the Customer’s other employees or by the Customer’s Clients;

b) claims in relation to services provided by the Customer;

c) 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 the Agreement or where Fin365 contributed to the harm giving rise to the claim;

d) 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 the Customer’s account, including without limitation by Customer Data.

17. SUSPENSION

17.1. Fin365 may suspend the Customer’s or any User’s password, account, and/or access to or use of the Service if the 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.
17.2. Without limiting the foregoing, Fin365’s rights under this clause:

a) apply where the 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; and

b) will extend to allow Fin365 to hold all pending Orders and to suspend further the Customer’s access to and use of the Service (including current Subscriptions).

17.3. Fin365 will provide prior notice to the Customer of any such suspension where practicable, having regard to the nature of the circumstances giving rise to the suspension.
17.4. 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.
17.5. During any suspension period, Fin365 will make available to the Customer the Customer Data as existing on the date of suspension.
17.6. Fin365 will not charge Subscription fees during any Fin365-initiated suspension that is not caused by the Customer. Any other suspension or termination by Fin365 under this clause shall not excuse the Customer from an obligation to make payment(s) under the Agreement.

18. TERMINATION

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 fourteen (14) 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.

19. CONSEQUENCES OF EXPIRATION OR TERMINATION

19.1. Upon termination or expiration of the Agreement, the Customer shall cease all use of the applicable Fin365 Apps and will no longer have rights to access or use the Fin365 Apps.
19.2. For a period of thirty (30) days after the end of the applicable Term, Fin365 will make available Customer Data for retrieval by the Customer. The Customer acknowledges that such access may require the payment of a monthly charge subject to the terms set out in the Order. At the Customer’s request, Fin365 may provide Technology Services to assist with the retrieval and provisioning of Customer Data for use in an alternative storage or computing environment.
19.3. At the end of such thirty (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.
19.4. At the written request of the Customer, any Customer Data held by Fin365 must be destroyed or otherwise dealt with as directed by the Customer.

20. MISCELLANEOUS

20.1. Fin365 may update these MToS and post a new version at its website at www.fin365.com.au (Website). In that case, the updated MToS will be incorporated into and form part of the Agreement from the date of the next Order placed by the Customer, including the automatic renewal of an existing Service.
20.2. 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 the Customer.
20.3. 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 on the following Business Day 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.
20.4. 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.
20.5. Neither party may assign the Agreement or any of its rights or obligations hereunder without the other party’s express written consent, except that Fin365 may assign the Agreement without the Customer consent in connection with a change of control, merger or sale of substantially all of Fin365’s assets, provided that:

a) Fin365 gives the Customer not less than thirty (30) days’ prior written notice of such assignment; and

b) the assignee agrees to be bound by the terms of the Agreement.

20.6. Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
20.7. 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.
20.8. 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.
20.9. 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.
20.10. 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.
20.11. 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 document has been signed by a Fin365 employee, except where the signatory was the authorized representative of Fin365 nominated under the Order.
20.12. Fin365 may identify the Customer by name in Fin365’s client lists and marketing materials. Any case studies or detailed descriptions of the Customer’s use of the Service will be subject to the Customer’s prior written approval.
20.13. Fin365 may subcontract any of its obligations under the Agreement to any of its related bodies corporate (as defined in the Corporations Act 2001 (Cth)) without the Customer’s consent, provided that Fin365 remains responsible for the performance of such obligations.

21. INTERPRETATION

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

a) words in the singular include the plural and vice versa;

b) a reference to the Customer or Fin365 includes a reference to the related body corporates of those parties;

c) ‘$’, ‘AUD’ or dollars is to Australian dollars, unless stated otherwise;

d) a ‘day’, ‘month’ and ‘year’ is a reference to a calendar day, month and year (respectively);

e) any legislation includes subordinate legislation under it and includes that legislation and subordinate legislation as modified or replaced; and

f) where the day on or by which any payment is to be made is not a Business Day, that payment must be made on or by the next Business Day.

22. DEFINITIONS

22.1. The following capitalized terms shall have the following meanings whenever used in the Agreement.
22.2. 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 of Customer and Customer’s Clients, as well as (subject to the terms of the Agreement) third parties accessing the Service for the internal business purposes of the Customer.
22.3. Business Day means a day that banks are open for business, other than a Saturday, Sunday or public holiday, in Melbourne Australia.
22.4. 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, but 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.

22.5. Customer means the customer specified in an Order.
22.6. Customer’s Clients means any entity with whom the Customer provides services to.
22.7. Customer Data means data in electronic form input or collected through the Fin365 Apps by or from the Customer, its Users or Customer’s Clients.
22.8. Deliverable means any document, report, or other work product developed specifically for the Customer (other than any improvement, configuration or customisation of the Fin365 Apps) and to be delivered by Fin365 to Customer as expressly specified in an Order.
22.9. 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.
22.10. Fin365 App refers to an item of application software listed in the Order (as amended by agreement of the parties).
22.11. 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) 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.

22.12. Interest Rate means the rate published on the Westpac Banking Corporation website as being the Overdraft Rate plus 2%.
22.13. Order means the order signed by the Customer and Fin365 setting out the commercial details of the Customer’s Subscription or Technology Services.
22.14. Privacy Policy means Fin365’s privacy policy appearing at the Website as updated by Fin365 from time to time.
22.15. Technology Services means consulting, project scoping, implementation, configuration, customisation, training, data migration or other similar technology services provided by Fin365 to the Customer under an Order.
22.16. Service means a Subscription, and all other services, including Technology Services and associated Deliverables provided by Fin365, as specified in an Order.
22.17. Subscription means the right to use and access the Fin365 Apps or the Microsoft Platform.
22.18. Term means the period during which a Subscription is active or a Service is provided as defined under the Order, including any renewal or extension of that period as agreed by the Customer and Fin365.
22.19. 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.
22.20. User means any individual who uses a Fin365 App through a login of the Customer, whether authorized or not.

SCHEDULE 1 – MICROSOFT PLATFORM

S1.1 PLATFORM DEPENDENCY

S1.1.1. The Fin365 Apps are built on, and depend upon, the Microsoft Dynamics 365, Power Platform and Azure cloud services (together, the Microsoft Platform). This means that the availability, performance and functionality of the Fin365 Apps are directly affected by the Microsoft Platform.
S1.1.2. The Customer acknowledges that outages, slowdowns, degraded performance or security advisories affecting the Microsoft Platform may impact the availability and performance of the Fin365 Apps. Fin365 is not responsible for, and excludes all liability in respect of, any unavailability, degraded performance or security issues arising from or attributable to the Microsoft Platform.
S1.1.3. Microsoft may, at its discretion and without notice to Fin365, change, deprecate or retire features, APIs or components of the Microsoft Platform. Such changes may affect the availability or functionality of the Fin365 Apps.
S1.1.4. Fin365 will not be responsible for:

a) the availability, performance, security or functionality of the Microsoft Platform;

b) any changes, deprecations or retirements made by Microsoft to the Microsoft Platform;

c) any acts or omissions of Microsoft;

d) compliance by the Customer with Microsoft’s terms and conditions; or

e) support for customisations, integrations or configurations of the Microsoft Platform not made or approved by Fin365.

S1.2 MICROSOFT SUBSCRIPTIONS

S1.2.1. Fin365 represents and warrants that it is authorised to resell the Microsoft Subscriptions.
S1.2.2. The Microsoft Platform services are supplied via a subscription model under which the Customer receives the right to access and use the Microsoft Platform services.
S1.2.3. The Customer is deemed to accept and comply with Microsoft’s customer agreement (available at https://www.microsoft.com/licensing/docs/customeragreement or such other URL as Microsoft may publish from time to time) as a condition of using the Fin365 Apps.
S1.2.4. The fees associated with using the Microsoft Platform services are included in the subscription fees charged by Fin365 for the use of the Fin365 Apps as set out in the Order.
S1.2.5. Microsoft may disable a Microsoft Subscription at Microsoft’s sole discretion for legal or regulatory reasons to the extent permitted under the Microsoft customer agreement. If Microsoft disables the Customer’s Subscription, Fin365 will suspend billing to the Customer for that Microsoft Subscription until the Microsoft Subscription is re-enabled.

S1.3 COMMUNICATIONS AND INCIDENT COORDINATION

S1.3.1. In the event of an incident affecting the Fin365 Apps that Fin365 reasonably believes is caused by or related to the Microsoft Platform, Fin365 will:

a) notify the Customer promptly via email or the Fin365 status page;

b) where appropriate, liaise with Microsoft on the Customer’s behalf to seek resolution; and

c) keep the Customer informed of progress and estimated resolution times to the extent such information is made available by Microsoft.

S1.3.2. Fin365 will publish information regarding known Microsoft Platform issues and planned Microsoft maintenance windows on the Fin365 status page or by email notification, to the extent such information is made available to Fin365 by Microsoft.

S1.4 CHANGE MANAGEMENT

S1.4.1. Where Microsoft makes material changes to the Microsoft Platform that require Fin365 to modify the Fin365 Apps, Fin365 will be entitled to a reasonable period of time to implement such modifications. During this period, the affected functionality may be unavailable or limited, and Fin365 will not be liable for any resulting unavailability, reduced functionality or delay.
S1.4.2. Fin365 will use commercially reasonable endeavours to notify the Customer of any material changes to the Fin365 Apps required as a result of Microsoft Platform changes and will provide Customer with reasonable advance notice where practicable.