Terms And conditions

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 The terms and conditions presented here govern the provision of services and software and are applicable to any Services Agreement formed between Adviser Mate Pty Ltd (AdviserMate, we, us) and the customer entity specified in the Services Agreement (referred to as the “Customer”).

The contract between AdviserMate and the Customer consists of the following components (where relevant):

· the Services Agreement;

· the Third Party Terms;

· the Supplemental Terms;

· these Terms;

· the Support Framework;

· the AdviserMate Information Security Policy,

collectively known as the “Agreement”. All these terms are accessible on the ‘Legal’ section of the AdviserMate website (www.advisermate.com.au).

In cases of inconsistency among these components, their order of precedence follows the sequence listed above. 

Purchase orders or similar documentation issued by the Customer serve solely for administrative purposes and do not constitute a part of the Agreement.

1.1. The definitions and rules of interpretation below are applicable to the Agreement.

Additional Term means to each successive period defined in a Services Agreement following the end of the Minimum Term.

Authorised User means:

a) An employee, agent, or independent contractor of either (i) the Customer, (ii) a member of the Customer’s Group, or (iii) where relevant, a member of the Customer’s network, each referred to as an “Adviser User”; and/or

b) An End Client with access to the Services, or portions thereof; and/or 

c) Any third party (excluding those mentioned in (a) or (b)) expressly approved by AdviserMate in writing, termed an “External User”;

where in each instance, the individual is authorised by the Customer to use the Services (or any part thereof).

Business Continuity Event means any disruption, whether related to information, communication, telecommunication systems, building inaccessibility, resource unavailability, or other unforeseen circumstances (including a Force Majeure Event), that hinders AdviserMate's ability to provide any of the AdviserMate Services, excluding disruptions planned by AdviserMate, like scheduled maintenance.

Business Continuity Plan means the strategies in place for the AdviserMate Services (and the personnel and facilities involved in their delivery) to reduce the impact of any Business Continuity Event.

Business Day means any day except Saturdays, Sundays, or public holidays in Australia.

Confidential Information means any information about the business, operations, software, or services of a party or its Group members ("Disclosing Party") shared with or acquired by the other party ("Receiving Party") in connection with this Agreement. This includes technical and functional details, pricing, and service terms, except for any information categorised as Excluded Information.

Customer IP means any templates, documents, images, formulas, calculations, and other data that are either (i) uploaded to or included in the Services by the Customer or an Authorised User, or (ii) provided to AdviserMate by the Customer for integration into the Services.

Customer Personal Data/Information means Personal Data or Personal Information which AdviserMate may access during the provision of AdviserMate Services.

Data means all data or information provided through, or forming a part of, or supplied with, the Services.

Direct Agreement is as defined in clause 4.1.

Due Date is as defined in clause 5.

End Client means a client of either (a) an Adviser User, or (b) the Customer (or a member of its Group).

Excluded Information means information that:

(a) becomes publicly known other than through a breach of this Agreement or an obligation of confidentiality owed to the Disclosing Party; or

(b) was already in the possession of the Receiving Party, as evidenced, not resulting from a breach of confidentiality; or

(c) is obtained by the Receiving Party from a third party with the rightful authority to disclose it; or

(d) is independently developed by the Receiving Party without relying on the Confidential Information.

(e) reveals that the Customer is a client of AdviserMate; or

(f) consists of data (excluding Customer Personal Data / Information) gathered by AdviserMate about the Customer's utilisation of the AdviserMate Services.

Fees means the costs associated with AdviserMate Fees and any Third Party Fees (if applicable) for the Services, as detailed in a Services Agreement or in an invoice issued to the Customer in line with the Agreement.

Force Majeure Event means an occurrence beyond a party's reasonable control (and could not be reasonably foreseen by that party), which includes events like fires, floods, earthquakes, natural disasters or acts of God; epidemics, government actions, wars (declared or not), terrorism, sabotage, revolutions, riots, insurrections, or civil disturbances; sanctions or trade embargoes, widespread industrial strikes, utility failures or shortages; and network attacks such as denial of service (DOS) or distributed denial of service (DDOS) attacks.

Go Live means the date when the Services (or any part thereof) become available to an Authorised User(s) in a live (rather than test) environment.

Group means, in relation to a party, that party and each Related Body Corporate of that party.

Harmful Code means any software or code that is damaging or destructive, such as malware, viruses, disabling devices, worms, Trojans, timebombs, or other malicious code.

Input Data mean any data (including Customer Personal Data / Information) (a) entered into the Services by an Authorised User, or (b) generated or sourced from the Services during the use by an Authorised User.

Insolvency Event means a situation where a person: (a) is unable to pay its debts; (b) goes into liquidation (whether voluntary or compulsory, provisional or final), excluding liquidation for solvent amalgamation or reconstruction; (c) arranges a deal with creditors; (d) is placed under an administration order; (e) has a receiver or administrative receiver appointed over any or all of its assets; (f) undergoes any action similar to those mentioned in consequence of debt; (g) stops or threatens to stop trading, or is dissolved; (h) experiences a similar or equivalent process in any jurisdiction.

Intellectual Property Rights means all existing and future registered and unregistered rights related to copyright, moral rights, designs, circuit layouts, trademarks, trade secrets, databases, business and domain names, know-how, confidential information, patents, inventions, and discoveries, as well as other types of intellectual property as defined in Article 2 of the World Intellectual Property Organisation Convention of 1967.

Investment Loss means any loss or damage associated with investments or transactions in investment assets or securities that are either made, entered into, executed erroneously, or not executed at all (including as a result of any Services or Data used by an Authorised User).

IP Claim is as described in clause 7.2.

IP Indemnity is defined in clause 7.2.

AdviserMate Information Security Policy means AdviserMate's standard policy for information security, which may be periodically updated. The latest version is accessible in the ‘Legal’ section of the AdviserMate website.

AdviserMate means the specific AdviserMate entity that is a party to the Services Agreement encompassing these Terms.

AdviserMate Fees means the charges for providing AdviserMate Services as detailed in a Services Agreement, or as outlined in an invoice issued to the Customer in line with the Agreement.

AdviserMate Services means the provision of consulting services and software (which may be offered as 'software as a service') and any other services (excluding Third Party Services) that are specified in a Services Agreement or are otherwise supplied by AdviserMate, as mentioned in an invoice provided to the Customer.

Loss means any form of loss, damage, cost, liability, or expense (including reasonable legal fees).

Minimum Term means the shortest required duration for which the Services outlined in a Services Agreement must be purchased.

Permitted Purpose means (i) the internal use of the Services in the course of delivering financial advisory services and/or investment and trading services to End Clients; (ii) for an End Client as an Authorised User, the usage of the Services in relation to receiving financial advisory services; (iii) for certain specified services only and if explicitly agreed in a Services Agreement, for offering white-labelled services.

Permitted Recipients is as defined in clause 9.2.

Personal Data means Personal Information.

Personal Information has the meaning given to that term under the Privacy Legislation.

Privacy Legislation means the Privacy Act 1988 (Cth).

Privacy Indemnity is the indemnity outlined in clause 10.7.

Regulatory Authority means any government, regulatory, or other authoritative body that oversees and/or regulates the Customer and/or any of its activities, including tax authorities, courts, or listing authorities.

Revision Date is set as 1 July of each calendar year, or another date if AdviserMate updates terms on its website and notifies the Customer via email.

Sanctions means any laws or regulations concerning economic or financial, trade, immigration, aircraft, shipping, or other sanctions, export controls, trade embargoes, or restrictive measures that are imposed, administered, or enforced from time to time by a Sanctions Authority.

Sanctions Authority means any government authority with jurisdiction over AdviserMate or the Customer, including their respective government, judicial, or regulatory institutions, agencies, departments, and authorities.

Services encompass both AdviserMate Services and Third Party Services.

Services Agreement means a Services Agreement established between the Customer and AdviserMate, which includes these Terms.

Services Agreement Commencement Date means the date when a Services Agreement takes effect, as specified within the agreement itself.

Supplemental Terms are additional terms applicable to the AdviserMate Services or specific components or features of the AdviserMate Services, as communicated to the Customer in accordance with clause 3.3.

Taxes means all relevant taxes and duties, such as GST, excise taxes, sales and transaction taxes, and any other applicable gross tax receipts.

Terms means the clauses numbered 1 to 15 as presented herein.

Terms Webpage means the webpage of AdviserMate located at the link specified in the Services Agreement (or any other URL that AdviserMate may use subsequently).

Third Party Fees means the charges paid by the Customer (and collected by AdviserMate) for accessing certain Third Party Services, which might also encompass administrative fees for such access.

Third Party Services means:

(a) any data (including financial data) or information;

(b) any services;

each provided by or on behalf of a third party and accessible via the AdviserMate Services.

Third Party Service Provider means a service provider who is not part of the AdviserMate Group and who provides Third Party Services.

Third Party Terms has the meaning set out in clause 4.1

1.2. Words following "including", "include", "in particular", "for example", or any similar phrases are intended for illustration and do not restrict the meaning of the words, descriptions, definitions, phrases, or terms that precede them.

1.3. A reference to a statute or statutory provision includes references to that statute or provision as it is amended, extended, or re-enacted at any given time.

2.1 AdviserMate commits to delivering the Services throughout the duration of the Services Agreement, adhering to the terms of the Agreement.

2.2 In cases where AdviserMate Services are provided as a hosted service, AdviserMate will strive to ensure these services are available 24/7, barring planned maintenance during usual maintenance times or unplanned maintenance (with AdviserMate endeavouring to notify the Customer in advance of such unscheduled maintenance).

2.3 Support services are offered by AdviserMate in line with the Services Agreement. The cost of these support services is included in the AdviserMate Fees, unless otherwise specified in a Services Agreement. AdviserMate retains the right to modify the Services Agreement at its discretion, ensuring that any changes do not significantly downgrade the quality of support services provided.

2.4 The Customer is responsible for ensuring that all Authorised Users comply with the terms of the Agreement.

2.5 The Customer will be held accountable for any breach of the Agreement by an Authorised User. Any Loss incurred by AdviserMate caused or contributed to by an Authorised User will be deemed as if caused or contributed to by the Customer, and thus, recoverable from the Customer to the same degree as if the Customer had directly committed the relevant action or omission.

2.6 The Customer is required to ensure that Authorised Users refrain from making any claims against AdviserMate, including but not limited to claims of negligence. Any Loss experienced by an Authorised User will be regarded as Loss incurred by the Customer. Consequently, if such Loss would be recoverable by the Customer from AdviserMate, were it a Loss directly incurred by the Customer, then the Customer is entitled to recover this Loss from AdviserMate.

2.7 The Customer is obligated to supply AdviserMate with necessary information, assistance, and cooperation as reasonably needed by AdviserMate to effectively perform the Services.

3.1 AdviserMate grants the Customer a non-exclusive, non-transferable, revocable license to allow Authorised Users to access and use the Services exclusively for the Permitted Purpose during the term of the relevant Services Agreement.

3.2 The Customer is obligated to ensure that neither they nor the Authorised Users:

(a) access or use the Services for any purposes other than the Permitted Purpose;

(b) resell the Services or provide them (or any part thereof) to third parties other than Authorised Users;

(c) share login credentials or passwords for accessing the Services;

(d) use the Services (or allow them to be used) for transmitting, downloading, or accessing any material that is illegal, harassing, offensive, defamatory, or obscene;

(e) access any part of the Services with the intent to create a competing product or service, or allow the Services (or any part of them) to be integrated into any other software without AdviserMate's written consent;

(f) duplicate, adapt, modify, translate, or publish the Services, except as required for backup, archival, disaster recovery, or testing related to the Permitted Purpose, or as permitted by law that cannot be excluded by agreement;

(g) create derivative works, decompile, reverse engineer, disassemble, or in any way attempt to derive the source code or any internal files generated by any software that is part of the Services; or

(h) alter or remove any copyright, trademark, notices of Intellectual Property Rights, or any other protective notices included within the Services without prior written consent from AdviserMate.

3.3 AdviserMate will provide the Supplemental Terms to the Customer either by publishing them on the ‘Legal’ pages of the AdviserMate website, incorporating them into a Services Agreement, or embedding them in the relevant AdviserMate Service in an electronic click-through format. AdviserMate may amend these Supplemental Terms periodically in accordance with clause 14.

3.4  The Customer recognises and agrees to adhere to any Supplemental Terms, acknowledging their possible amendment over time.

3.5 Should the Customer desire to acquire additional AdviserMate Service(s), alter the number of Authorised Users, connections, or any other service unit stated in a Services Agreement, or modify the Third Party Services accessible to them, they may do so either directly through the AdviserMate Service (if allowed), or by request to AdviserMate, subject to (i) any minimum commitment specified in a Services Agreement and (ii) clause 12.5. Any resulting changes in the Fees due to these alterations will be reflected in the subsequent invoice to the Customer, or, if the change occurs after the billing cut-off date, in the invoice for the month following the change.

3.6 In the event the Customer provides any Customer IP for inclusion in the AdviserMate Services:

(i) the Customer is responsible for the Customer IP and ensuring its compliance with all applicable laws;

(ii) the Customer guarantees that it has the legal right to provide the Customer IP for use in the AdviserMate Services and that such provision does not violate any third party's Intellectual Property Rights; and

(iii) the Customer understands that AdviserMate is not obligated and does not assume any responsibility to review or validate the Customer IP.

4.1 The Third Party Services made available to the Customer may be governed by terms set by the provider of those services (“Third Party Terms”). These Third Party Terms:

(a) might be outlined in a direct agreement between the Third Party Service Provider and the Customer (“Direct Agreement”), or;

(b) in cases where a Direct Agreement is not necessary, will be communicated to the Customer via publication on the Terms Webpage or through other written forms.

4.2 The Customer is made aware that the Third Party Terms listed on the Terms Webpage are subject to changes over time. These changes might reflect the addition of new Third Party Services or modifications to existing Third Party Terms imposed by the Third Party Service Provider. The Customer is responsible for ensuring that both they and their Authorised Users abide by these Third Party Terms.

4.3 Upon becoming aware of any alterations to the Third Party Terms, AdviserMate will update the information regarding such changes on the relevant Terms page of the AdviserMate website at https://advisermate.com.au (or any other URL that AdviserMate may use in the future). The Customer can opt to receive notifications from AdviserMate about updates to relevant pages on the AdviserMate website.

5.1 The Customer is required to pay Fees as outlined in this clause 5 and according to the terms of the relevant Services Agreement. All Fees are quoted excluding any applicable Taxes and expenses, which are to be paid additionally.

5.2  Unless otherwise stipulated in a Services Agreement, the Customer will receive monthly invoices in advance for any fees related to the licensing of the Services, starting from the month when Go Live occurs. If the Customer postpones the Go Live date following the completion of any implementation services by AdviserMate (if applicable), AdviserMate is entitled to invoice the Customer for the license fees from the date those implementation activities were completed.

5.3 Except as otherwise specified in a Services Agreement (which may include a minimum fee commitment), the Customer will be billed, where relevant, based on the number of modules, Authorised Users, connections, or other service units outlined in the Services Agreement as of the billing cut-off date for the relevant invoice.

5.4 AdviserMate reserves the right to alter the AdviserMate Fees (including during any Minimum Term) by providing the Customer with a minimum of 30 days’ written notice.

5.5 A Third Party Fees will be specified either in a Services Agreement or on the Customer’s invoice and are subject to change during the term of a Services Agreement. Changes might include fee increases from Third Party Service Providers, the introduction of Third Party Fees where none previously existed, or an increase in Third Party Fees if the Customer chooses to access/display Third Party Services through more than one AdviserMate Service. AdviserMate is authorised to pass on any changes in Third Party Fees to the Customer upon written notification.

5.6 The Customer may need to formally confirm whether its Authorised Users are classified as professional or non-professional users. AdviserMate will supply the required confirmation form to be presented to the relevant Third Party Service Provider, if applicable. The professional/non-professional status of an Authorised User may influence the amount of the Third Party Fee charged. Inaccurate declarations could lead to the Customer being liable for an adjustment fee imposed by the Third Party Service Provider.

5.7  AdviserMate may issue an invoice for Fees. The Customer must ensure that (a) cleared funds are received by AdviserMate as specified in the direct debit instruction; or (b) if payment by direct debit is not agreed upon, all invoiced Fees are paid within 14 days of the end of the month (in both cases, referred to as the “Due Date”).

5.8 If the Customer does not pay any undisputed Fees by the Due Date, AdviserMate may impose interest on the overdue amount at an annual rate of 4% above the central bank's rate in AdviserMate's country of incorporation. This interest is (calculated daily) from the Due Date until full payment is made.

5.9 Should the Customer contest any invoiced amount or direct debit, it must inform AdviserMate within fourteen (14) days of receiving the invoice or the direct debit transaction.

5.10 Without restricting its other rights, if undisputed Fees are unpaid by the Due Date, AdviserMate may: (a) suspend all or part of the Services to the Customer if Fees remain unpaid seven (7) days after the Customer receives a late payment notice; (b) if such Fees are still unpaid 30 days after the Due Date, AdviserMate may terminate the Services Agreement related to those Fees with written notice to the Customer.

5.11 The Customer acknowledges that the Fees outlined in a Services Agreement are based on the assumption that both the Customer and all Authorised Users are located in the country where the Customer is incorporated, as specified in the Services Agreement. AdviserMate reserves the right to increase the Fees should this situation change.

6.1 AdviserMate will adhere to the AdviserMate Information Security Policy.

6.2 Both parties agree to:

(a) avoid intentionally causing or allowing their staff or any third party under their influence to introduce Harmful Code into the other party’s systems; and

(b) in the event that Harmful Code is introduced, to promptly inform the other party and take all reasonable measures to remove the Harmful Code from their own server.

6.3 The Customer acknowledges that:

(a) they and their Authorised Users are responsible for keeping their login credentials and passwords for accessing the Services confidential; and

(b) the technical and security features of the AdviserMate Services may be periodically updated to enhance security. To benefit from these improved controls, the Customer may need to implement the most recent Upgrade.

6.4 Neither AdviserMate nor any Third Party Service Provider will be liable (whether in contract, tort, including negligence, or otherwise) for any unauthorised access to the Services or any data within them (including Customer Personal Data / Information) due to the Customer’s failure to comply with clause 6.3(a) or to install the most recent Upgrade.

6.5 AdviserMate commits to maintaining a Business Continuity Plan that outlines procedures and measures to be followed for ensuring the ongoing provision of AdviserMate Services in the event of a Business Continuity Event.

6.6 AdviserMate will conduct regular tests of the Business Continuity Plan, at minimum once every 12 months, and will promptly carry out any necessary actions or corrective measures identified as a result of these tests.

6.7 Should AdviserMate activate its Business Continuity Plan in response to a Business Continuity Event, it will, as far as is feasible, regularly update the Customer on the progress and implementation of the Business Continuity Plan.

7.1 The Intellectual Property Rights in the AdviserMate Services are owned by AdviserMate (or its licensors) and remain with them.

7.2  AdviserMate will defend any third-party claim against the Customer alleging that the AdviserMate Services infringe copyright, design, or trademark rights ("IP Claim"), and will cover any settlements, damages, costs, and reasonable legal fees finally awarded against the Customer due to an IP Claim ("IP Indemnity"). However, the IP Indemnity does not apply if:

(a) the infringement results from combining AdviserMate Services with equipment, programs, goods, or services not approved by AdviserMate;

(b) the infringement arises from a design or specification provided by the Customer or from any Customer IP; or

(c) the infringement occurs due to using an outdated version of the AdviserMate Services when such infringement could have been avoided with the latest release.

7.3  AdviserMate's liability under clause 7.2 is conditional on the Customer:

(a) promptly informing AdviserMate in writing about the IP Claim;

(b) allowing AdviserMate exclusive control over the defence, management, and settlement of the IP Claim, though the Customer may engage its own counsel at its expense for such defence; and

(c) providing reasonable cooperation, at AdviserMate’s expense, in the defence of the IP Claim when requested.

7.4 AdviserMate won’t agree to any settlement that imposes liability on the Customer, for which the Customer isn’t indemnified, without the Customer’s explicit written consent.

7.5 In the event an injunction is issued (or is likely to be issued, in AdviserMate’s opinion) that prohibits the use or provision of an AdviserMate Service due to an IP Claim, AdviserMate may, at its own expense and discretion, choose to:

(a) modify the AdviserMate Service to make it non-infringing;

(b) secure the right for the Customer to continue using the AdviserMate Service;

(c) substitute the AdviserMate Service with software or services that offer equivalent functionality; or

(d) terminate the AdviserMate Service and refund any prepaid AdviserMate Fees.

7.6 If the Customer (or any of its agents) provides AdviserMate with Customer IP, the Customer grants AdviserMate a license to use such Customer IP in delivering the Services. The Customer also agrees to indemnify AdviserMate against all Losses incurred due to any claims alleging that the Customer IP infringes the Intellectual Property Rights of a third party.

8.1 Each party affirms that it has the necessary rights, power, and authority to enter into and fulfill its obligations under the Agreement and, for the Customer, to receive the Services for itself and its Authorised Users.

8.2 AdviserMate guarantees that:

(a) it will deliver the AdviserMate Services with reasonable care and skill;

(b) it will adhere to AdviserMate policies and codes as outlined in the governance section of the AdviserMate website (subject to changes over time), including policies on anti-bribery, prevention of tax evasion, and modern slavery.

8.3 Warranties regarding Third Party Services are confined to those explicitly stated in the relevant Third Party Terms for the benefit of the Customer. Beyond this, AdviserMate and all Third Party Service Providers disclaim all liability related to the provision of Third Party Services.

8.4 Other than as specifically stated in the Agreement, all implied warranties, representations, conditions, and other terms of any kind, whether by statute, common law, or otherwise, are excluded to the fullest extent permitted by law.

8.5 The Customer acknowledges that:

(a) it is solely responsible for any advice or recommendations given to End Clients or potential End Clients resulting from the use of the Services;

(b) it must comply with all laws and regulations applicable to its business, including any rules or requirements set by relevant professional or regulatory bodies; and

(c) AdviserMate holds no liability for any loss or damage arising from the Customer IP, the Input Data, or actions taken based on the Customer’s instructions.

8.6 The Customer affirms that:

(a) it is not under any Sanctions as of the Agreement date;

(b) it will notify AdviserMate as soon as practicable if it, or any member of its Group, becomes subject to Sanctions.

A breach of this clause 8.6 is considered a material breach (beyond remedy) under clause 12.3.

9.1 The Receiving Party is permitted to access or use the Confidential Information of the Disclosing Party only as necessary for fulfilling the Agreement's purposes.

9.2 The Receiving Party must maintain the confidentiality of the Disclosing Party's Confidential Information and is prohibited from selling, licensing, transferring, transmitting, distributing, or disclosing it to anyone without the Disclosing Party's prior written consent. This does not apply to the Receiving Party's employees, directors, independent contractors, or professional advisors ("Permitted Recipients") who need the information for Agreement purposes, or as mandated by law, regulatory bodies, or, in the case of AdviserMate only, to a Third Party Service Provider (as per clause 9.5).

9.3 The Receiving Party must ensure all Permitted Recipients adhere to appropriate confidentiality obligations, limiting their use and disclosure of Confidential Information only as allowed by this clause 9.

9.4 Upon the expiry or termination of a Services Agreement, the Receiving Party, upon the Disclosing Party's written request, must promptly return all documents containing the Disclosing Party's Confidential Information in its possession or control, except where retention is necessary for legal, regulatory compliance, or stored as part of standard automated backup procedures.

9.5 If receiving a Third Party Service necessitates the Customer or its Authorised Users to exchange or share information (including Input Data) with a third party, the Customer authorises AdviserMate to disclose the relevant information to that third party. The Customer recognises that AdviserMate is not obligated to retrieve, or ensure the retrieval of, any Confidential Information held by any third party.

10.1 Compliance with Laws

(a) Both parties commit to adhering to the applicable Privacy Legislation in their respective roles as it pertains to the provision and receipt of the AdviserMate Services under this Agreement.

(b) AdviserMate acknowledges that it may receive Personal Information from the Customer during this Agreement. AdviserMate agrees to only share, transmit, disclose, collect, hold, and/or store such Personal Information as necessary to fulfill its obligations under this Agreement.

(c) Should AdviserMate receive a request for access to the Customer's or the Customer's clients' Personal Information, it will direct the request to the Customer. AdviserMate will inform the Customer of any legal demands for disclosure of the Customer's Personal Information by authorities outside of Australia, unless legally prohibited.

(d) AdviserMate commits to providing reasonable assistance to the Customer in responding to any queries, complaints, or submissions related to statutory or common-law rights involving access, use, viewing, amending, updating, or correcting Personal Information.

(e) AdviserMate will implement and maintain appropriate technical and organisational measures to protect Personal Information against unauthorised or unlawful processing, accidental loss, destruction, or damage.

(f) The Customer is solely responsible for ensuring and monitoring its compliance with Privacy Legislation.

(h) Any changes to the Services necessitated by legal requirements that significantly increase AdviserMate's compliance costs under this clause 2 will be subject to a new Services Agreement.

10.2 The Customer is obligated to provide AdviserMate with any reasonable assistance required for compliance with Privacy Legislation. Specifically, the Customer may only disclose Client Data to AdviserMate under the following conditions:

(a) The Customer is legally authorised to collect and disclose the Client Data;

(b) The client has been informed that providing services to them may necessitate disclosing their Personal Information, including tax file number information, to an external organisation involved in information technology services, if applicable; 

(c) Consent for such disclosure has been obtained from the client.

10.3 If the Services include Third Party Services, when the Customer or Authorised Users request information (including Client Data) to be exchanged or shared with that Third Party Service Provider, the requirements of clause 10.2 will apply.

10.4 AdviserMate may gather, extract, and duplicate data (including Input Data) from its Services to create aggregated and anonymised datasets that no longer contain any Personal Data/Information (“Anonymised Data”). This Anonymised Data can be utilised by AdviserMate for improving or delivering its services or solutions (including for commercial gains) or other business objectives. It may also be shared with members of the AdviserMate Group or provided to third parties as part of AdviserMate’s services, ensuring all such uses and distributions comply with applicable laws.

10.5 When AdviserMate is collecting Customer Personal Data/Information and determines its processing purpose, AdviserMate’s use of such data will conform to its privacy notice (available on the AdviserMate website). The Customer agrees to inform its Authorised Users and End Clients about AdviserMate's privacy notice, particularly regarding the anonymisation of Customer Personal Data/Information as per clause 10.4.

10.6 The Customer must ensure its Authorised Users and End Clients do not submit, disclose, or provide any Personal Data or Information to AdviserMate or the AdviserMate Services that is not essential for the Permitted Purpose (“Unsolicited Data”). The Customer accepts full responsibility for any loss incurred by either party due to the submission, disclosure, or provision of such Unsolicited Data.

10.7 Subject to clauses 11.2(a) and (b) and 11.4(a), each party shall indemnify and keep indemnified the other against any losses and third-party claims resulting directly or indirectly from that first party's (or its Group’s) non-compliance with the obligations stated in this clause 10 (“Privacy Indemnity”).

11.1 The Agreement does not limit or exclude AdviserMate's liability for:

(a) death or personal injury resulting from AdviserMate's negligence;

(b) fraud or fraudulent misrepresentation;

(c) any other loss or damage where it is illegal to limit or exclude liability.

11.2 Subject to clause 11.1, neither AdviserMate nor its Group members shall be liable for:

(a) direct or indirect loss of profit, business, opportunity, anticipated savings, goodwill, or Investment Loss;

(b) any indirect or consequential loss, 

regardless of whether suffered by the Customer, a member of the Customer’s Group, an Authorised User, or an End Client;

(c) third-party claims or Losses, other than those arising under the IP Indemnity or Privacy Indemnity;

(d) compensation payments to third parties.

11.3 If Input Data is lost or damaged due to AdviserMate's breach of the Agreement, subject to the General Cap:

(a) AdviserMate will endeavor to recover and reconstitute the Input Data at its expense if AdviserMate or its affiliate hosts the AdviserMate Services;

(b) AdviserMate will cover reasonable costs to recover and reconstitute the Input Data if the Customer hosts the Services, provided the Customer backs up the Input Data every 24 hours.

These stipulations are the Customer's only recourse for lost or damaged Input Data, except for claims arising from AdviserMate's breach of clause 10.

11.4 Subject to clauses 11.1 and 11.2, AdviserMate's (and/or its Group's) total liability for all Losses under the Agreement in any Contract Year:

(a) for IP Indemnity, Privacy Indemnity, or breach of clause 9 (Confidentiality), is capped at AUD$1,000,000 per Contract Year;

(b) for claims not under sub-clause (a), is capped at 100% of the AdviserMate Fees paid under the Services Agreement in the preceding Contract Year (the “General Cap”).

11.5 The Customer indemnifies:

(a) Third Party Service Providers against Losses incurred by them (or their Group members) due to claims by an Authorised User, End Client, or prospective End Client;

(b) AdviserMate against Losses incurred by it (or its Group) due to claims by a Third Party Service Provider, or third parties receiving Customer information under clause 9.5;

in each case, where Losses arise from the Services’ use by the Customer, its Group members, or an Authorised User.

12.1 A Services Agreement becomes effective on the Services Agreement Commencement Date.

12.2 Termination conditions for a Services Agreement are as follows:

(a) Without a Minimum Term, it can be terminated by either party with fourteen (14) days’ written notice;

(b) With a Minimum Term but no Additional Term, it can be terminated by either party with fourteen (14) days’ notice, not expiring before the end of the Minimum Term;

(c) With both a Minimum Term and an Additional Term, it can be terminated by either party with fourteen (14) days’ notice, expiring at the end of the Minimum or an Additional Term.

12.3 Subject to clause 5.10, if a party materially breaches the Agreement, which is either irreparable or not remedied within fourteen (14) days of notification, the other party may terminate the Agreement with written notice.

12.4 If a party experiences an Insolvency Event, the other party may terminate the Agreement by written notice, unless prohibited by relevant laws.

12.5 The Customer can terminate any Third Party Services with fourteen (14) days’ written notice to AdviserMate, unless a Direct Agreement or Third Party Terms specify a different period.

12.6 Upon termination:

(a) For hosted AdviserMate Services, upon request and settlement of all due Fees, AdviserMate will provide the Customer (in a machine-readable format) or allow the Customer to extract a copy of documents and information relating to the Customer’s End Clients.

(b) For non-hosted AdviserMate Services, unless agreed otherwise, the Customer must promptly delete and destroy all AdviserMate Services and Data (excluding Input Data).

12.7 For clarity, the following clauses will continue after the Agreement’s termination or expiration: clauses 4.2, 9, 10, and 11, along with any other clauses that inherently should survive termination, despite not being explicitly stated.

13.1 AdviserMate may mention the Customer by name as a user of the AdviserMate Services in its marketing materials. However, prior to using the Customer’s trademark and/or corporate logo in any marketing content, AdviserMate will obtain the Customer's written consent. Should the Customer grant this permission, they are providing AdviserMate and its Group a non-exclusive, non-transferable, royalty-free license to use its trademark and/or corporate logo, but solely for this specific purpose.

14.1 The Terms Webpage can be amended as detailed in clause 4.2. The Support Framework is amendable in line with clause 2.3. These revisions become effective once published on the AdviserMate website.

14.2 AdviserMate has the authority to revise (i) these Terms, or (ii) the Supplemental Terms by posting updated versions on the Terms pages of the AdviserMate website on the Revision Date.

14.3 If the Customer has reasonable objections to any changes mentioned in clause 14.2, their exclusive remedy is to terminate the Agreement immediately with written notice to AdviserMate, which must be done within one month of the Revision Date. If the Customer does not exercise this right of termination, it will be deemed to have accepted the revised documents, which will then take effect one day after the expiration of one month from the Revision Date.

14.4 Outside of clauses 3.4 or 5.3, any changes to a Services Agreement must be mutually agreed upon in writing by the involved parties.

15.1 AdviserMate is allowed to assign its rights and/or delegate its obligations under this Agreement. The Customer may assign its rights under this Agreement only with AdviserMate's prior written consent.

15.2 Aside from a Third Party Service Provider, who is entitled to enforce any rights under this Agreement intended for their benefit, no one who is not a party to this Agreement may enforce any of its terms.

15.3 Notices or communications under the Agreement must be in writing and sent by post or email:

(a) For the Customer, to the email and/or postal address specified in the Services Agreement, or as otherwise provided to AdviserMate;

(b) For AdviserMate, to the address indicated on an invoice or as otherwise communicated by AdviserMate.

Notices or communications are deemed received if sent in writing by post or email to the provided addresses.

15.4 A party's failure or delay in exercising a right or power under this Agreement, or any indulgence granted, does not waive that right or power and does not prevent further exercise of it.

15.5 This Agreement (as varied according to these Terms) is the complete agreement between the parties, superseding all prior agreements, promises, assurances, warranties, representations, and understandings, whether written or oral, about its subject matter.

15.6 Subject to clause 11.1, each party acknowledges that it has no remedy for any statement, representation, assurance, or warranty (not included in this Agreement) whether made innocently or negligently. No claims for innocent or negligent misrepresentation or misstatement can be made based on any statement in this Agreement.

15.7 If a party cannot perform, or is delayed in performing, an obligation under this Agreement (except an obligation to pay money) due to a Force Majeure Event:

(a) that obligation is suspended as long as the Force Majeure Event affects that party; and

(b) the affected party is not liable for any Loss or expense incurred by the other party due to the affected party's inability to perform or delay in performing its obligations because of the Force Majeure Event.

15.8 This Agreement and any claims or disputes arising from it are governed by the laws of the country where AdviserMate is incorporated. Both parties submit to the non-exclusive jurisdiction of the courts of that country.

Date of first publication 1 February 2024