Terms of Service

Advice Designer Terms of Use

1. Our Agreement

(a) Welcome to Advice Designer, a software as a service financial advice process system designed to make it easier for financial advisers and other professionals to prepare and deliver financial advice to clients! These terms of use (Terms), together with the Order Form and Our Privacy Policy collectively form a legal binding agreement (the Agreement) between Finura Digital Pty Ltd ACN 643 291 356 and its Related Bodies Corporate (collectively, Finura, Us, Our, We) and You, the customer set out in the Order Form (You, Your, Customer).

(b) In general:

(i) the Order Form sets out the commercial particulars of our Agreement;

(ii) these Terms set out the legal particulars of our Agreement; and

(iii) the Privacy Policy deals with the handling, storage, and use of Personal Information that You, via Your Users, provide to Us in connection with this Agreement.

(c) The documents listed in clause 1(b) above are in order of precedence. If there is any inconsistency between the terms of any of the above documents, then the terms of the higher-ordered document will prevail.

2. Term and Grant of Licence

(a) This Agreement commences on the Commencement Date and will continue for the Initial Term.

(b) At the end of the Initial Term, this Agreement will automatically continue to renew for subsequent periods of a month (each a Renewal Term), unless either Party provides written notice to the other Party at least 30 days prior to the end of the then-current period confirming that it does not wish for the Agreement to be renewed.

(d) From the Commencement Date, You are responsible and liable for all Users' use of the Platform. You must ensure that Users only use the Platform in accordance with the terms of this Agreement.

3. Conditions of Licence

(a) We warrant that We have the authority to grant the Licence to You. The Licence We grant You is a limited, revocable, non-transferable, non-assignable, non-sublicensable, non-exclusive licence for the Users to access and use the Platform in accordance with this Agreement.

(b) You warrant that:

(i) You have obtained all the necessary authorisations and consents for You to validly enter into, and perform all of Your obligations under, this Agreement;

(ii) You will not allow anyone other than the Users to use the Platform, and You acknowledge that any unauthorised use of the Licence and the Platform could cause significant harm to Our business which could not be remedied by monetary damages alone, and that the award of additional legal and equitable remedies such as specific performance could be required;

(iii) You will only use the Platform in a manner that complies with all applicable laws and regulations;

(iv) You will not:

(A) damage or harm the Platform, or any underlying or connected network or system;

(B) use any type of harvesting bot, robot, spider, scraper, or other unauthorised automated means to access the Platform or content featured on it for any purpose;

(D) do anything that could disable, overburden, or impair the proper working of the Platform, such as a denial of service attack;

(E) use the Platform to do anything unlawful, misleading, malicious, or discriminatory;

(F) violate the terms of this Agreement;

(G) adapt, reproduce, modify, reverse-engineer, decompile, distribute, print, display, perform, publish or create adaptations from any part of the Platform; or

(H) encourage or procure any third party to do any of those things.

4. Platform Support

During the Term, We will provide You with limited support in relation to Your use of the Platform by way of a support ticketing system which enables Users to report technical issues or perceived data inaccuracies. If We receive notice of any technical issue or perceived data inaccuracy via the support ticketing system, We will use Our reasonable endeavours to investigate the issue, and where reasonably practicable, attempt to resolve the issue within a reasonable period of time. Otherwise, We are not required to provide to provide any continuous support in relation to the Platform, whether by providing advice, training, error-correction, modification, updates, upgrades, new releases or enhancements or otherwise.

5. Payment of Licence Fees

(a) In exchange for of Us granting the Licence to You, You must pay the Licence Fees to Us in accordance with each valid tax invoice We render to You in accordance with this Agreement (Invoice).

(b) Subject to clause 5(c), if You do not pay any of the Licence Fees to Us by the due date on the Invoice (Due Date), We may charge You Default Interest on the overdue amount and, if any payment of Licence Fees and interest is owing to Us after 30 days from the Due Date, then, without limiting any other right We may have, We may:

(i) suspend Your Licence (i.e. suspend or otherwise limit Your access to the Platform); and

(ii) terminate this Agreement.

(c) If You dispute the whole or any part of the amount claimed in an Invoice rendered by Us to You in connection with this Agreement, You must pay any undisputed portion on or by the Due Date. Either You or We can refer the dispute regarding the disputed amount to the dispute resolution procedure prescribed by clause 13 of this Agreement. If it is determined by that process that a further amount is payable in addition to the disputed amount, You must pay that amount to Us together with Default Interest on the outstanding amount calculated from the Due Date.

(d) We may change License Fees or add other fees from time to time to reflect any modifications we make to the Platform or otherwise in accordance with our legitimate business interests by sending a notification of the change to your last notified email address at least 30 calendar days before the changes come into effect. If you do not agree to pay the new fees, you may terminate these Terms in accordance with section 11.

6. Access to the Platform and Authorised Third Parties

(a) To access the Platform You must create an account by completing the Order Form and returning a copy to Us. Subject to Our approval of the Order Form, We will grant access to the Platform to You and Your Users.

(b) During the account creation and onboarding process, You may elect to have Your account created and associated to and under a Platform Organisation and Licensee structure managed by a third party entity i.e. Your Australian Financial Services Licensee (AFSL).

(i) have access to and visibility of your Content;

(ii) have visibility and management of your workspace configuration;

(iii) have visibility and management of Advice Library Content;

(iv) have visibility and management of Authorised Users.

(d) Where You choose to no longer have Your account associated with the third party entities Organisation and Licensee structure, You will be required to cancel Your existing Account (outlined below) and register and create a new separate account.

7. Users of the Platform

(a) To access and use the Platform the following account types are to be registered (collectively, “Users”):

(v) Organisation Administrator

(vi) Licensee Administrator

(vii) Workspace Owner

(viii) Workspace Member

(b) On and After the Commencement Date you may permit Users to access and use the Platform through the relevant User management settings within the Platform for Your Organisation, Licensee and Workspace.

(i) identifying all Users;

(ii) identifying a subset of Users to be designated as Organisation Administrators and Licensee Administrators;

(iii) identifying a subset of Users to be designated as Workspace Owners;

(iv) controlling against unauthorised access by Users;

(v) ensuring Users use the Platform in accordance with the Your policies;

(vi) maintaining the confidentiality of Users names, passwords and account information; and

(vii) all activities that occur under Users’ usernames, passwords or Your account and otherwise as a result of the Users’ access to the Platform, whether or not authorised by the You.

8. Ownership and Intellectual Property Rights

(a) Notwithstanding anything written elsewhere in this Agreement or in any other document, You acknowledge that We are the sole owner of the Platform and any Intellectual Property Rights subsisting in and attaching to it, including any copies, modifications, updates or new releases whether modified by Us, You (or by Your officers, employees, contractors, associates, affiliates or agents) or any third party. Nothing in this Agreement gives rise to any assignment, acquisition, transfer or conveyance of any kind whatsoever of any Intellectual Property Rights.

(b) If You correspond or otherwise communicate with Us or post or publish any statement about Our Platform, You automatically grant to Us an irrevocable, perpetual, non-exclusive, fully paid-up, royalty-free, world-wide licence to use, copy, display and distribute that content and to prepare derivative works of the content or incorporate the content into other works in order to publish and promote that content. This may include, but is not limited to, publishing testimonials and developing Your ideas and suggestions for improved products or services We provide.

(i) a non-exclusive right to use, modify, develop, process and transmit Customer Data to the extent necessary to provide the Platform in accordance with this Agreement; and

(ii) an irrevocable, perpetual, non-exclusive, fully paid-up, royalty-free, world-wide licence to use Your logo, trade mark or corporate name for the purposes of promoting Your association with the Platform.

9. Warranty and Disclaimer

(a) The Platform is provided by Us on an “as is” and “as available” basis and use of it is at Your sole risk. To the maximum extent permitted by law, We exclude all implied conditions and warranties in relation to the Platform.

(b) We will take reasonable care in providing the Platform to You, but We do not warrant or represent that it is or will be error-free, accurate or uninterrupted, or that it will comply with any specific laws, regulations or rules relating to the financial services industry or any other industry in which You may study, operate or work.

(c) By using the Platform, You acknowledge that it does not provide or contain any financial advice – it is intended to facilitate Your provision of financial advice to Your own clients. To the extent that the Platform contains any advice, it is general advice only and it does not take into account the objectives, financial situation or needs of any particular person, does not relate to any particular financial product and is not intended to influence any person in making a decision in relation to any financial product.

(d) We will try to promptly address (during normal business hours in Australia) all technical issues that arise in connection with the Platform, however there may be times when the Platform is inaccessible.

(e) From time to time, We may issue an update to the Platform which may add, modify and/or remove features. We will notify customers prior to any planned event that may cause degradation of system due to changes to internal sub-services within the Platform.

(f) You acknowledge that when You install and uses third party products which interoperate with the Platform, We may allow the providers of those third party products to access Your Content as required for the interoperation of those third party products with the Platform. We are not responsible for Your use of those third party products, including any disclosure, modification or deletion of Your Content resulting from that use.

10. Indemnity and Liability

(a) You indemnify Us and Our Related Bodies Corporate and their respective officers and employees and contractors (for whom We enter into this Agreement as trustee) (Indemnified) in respect of all damages, costs, losses or other liability incurred by any of the Indemnified or awarded (or agreed to be paid by settlement or compromise) as a result of any claim, allegation, action or proceeding made or brought against any of the Indemnified arising out of or in connection with:

(i) any negligent, unlawful or wilfully wrong act or omission by You or the Users;

(ii) any breach of this Agreement by You or the Users;

(iii) any unauthorised use of the Platform, by a User, or one of Your employees or contractors or otherwise, in connection with Your Licence.

(b) To the extent permitted by law, We exclude all liability to You or anyone else for loss or damage of any kind (however caused or arising) relating in any way, directly or indirectly, to the this Agreement, including liability for loss of revenue, loss of profits, loss of opportunity, or any other form of consequential, special, indirect, punitive or exemplary loss or damage.

(c) Where We are not entitled to exclude Our liability under this Agreement, Our total cumulative liability under this Agreement, whether in contract, tort (including negligence) under statute, strict liability or otherwise will not exceed an amount equal to the total Licence Fees paid or payable by You over the immediately previous six (6) month period of the Term.

(d) We will provide the Platform to You under this Agreement with due care and skill and in accordance with any non-excludable guarantees which apply to the service under this Agreement. We do not guarantee that the service We provide or the content accessed through the Platform will be continuously available or free from errors, nor do We warrant, endorse, guarantee or assume responsibility for any products or services (or claims or statements about those products or services) that You may view in connection with the Platform that are supplied by third parties. Where We are not permitted to exclude Our liability for any loss or damage in connection with Our breach of any non-excludable guarantee, Our liability for any that breach will be limited, at Our option, to re-supplying the services related to that breach or paying of the cost of You having to have those services re-supplied by a third party.

11. Termination and Suspension

(a) We may terminate or suspend this Agreement (and the Licence We grant to You under it) and Your access to the Platform immediately if any of the following events occur:

(i) if We consider that You have or will breach any of Your material obligations under this Agreement;

(ii) any type of administrator, receiver or liquidator is appointed in respect of Your business, property or affairs;

(iii) You enter into any scheme, composition or arrangement of any kind with any of Your creditors; or

(iv) You are subject to a Change of Control without our prior written consent.

(b) You may terminate this Agreement (and the Licence We grant to You under it) immediately upon written notice to Us if We breach any of Our material obligations to You under this Agreement and do not rectify that breach within 30 days of receiving written notice from You requiring Us to do so.

(c) Either You or We may terminate this Agreement (and the Licence We grant to You under it) at any time for convenience upon 30 days' written notice.

(d) If this Agreement is terminated for any reason, You must ensure that the Users immediately cease using the Platform and erase and destroy (as appropriate) software or any materials or documentation related to the Platform from Your Users' operating systems and hardware and certify in writing to Us that they have been erased or destroyed (as the case may be).

(e) Termination of this Agreement (and the Licence We grant to You under it) does not affect any of Our accrued rights or liabilities, nor shall it affect any provision of this Agreement which are expressly or by implication intended to continue in force after such termination.

(f) If You terminate this Agreement for any reason:

(i) You forfeit any right or claim to any Licence Fees You have paid to Us in connection with this Agreement;

(ii) any Licence Fees that would be payable by You for the remainder of the then-current Initial Term or Renewal Term (as the case may be) will immediately become due and payable; and

(iii) We may plead this clause 11(f) as a full and complete defence to any proceedings arising in connection with any claim for Licence Fees.

(g) If We terminate this Agreement under clause 11(c), We will refund to You an amount equal to the proportion of the Licence Fees paid by You for the period from the termination date until the end of the Initial Term or Renewal Term (as the case may be) calculated on a pro rata basis.

12. Confidentiality

(a) A Party will not, without the prior written approval of the other Party, disclose the other Party’s Confidential Information.

(b) Notwithstanding this clause 12, a Party will not be in breach of this Agreement in circumstances where it is legally compelled to disclose the other Party’s Confidential Information.

(c) Each Party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this Agreement, do not make public or disclose the other Party’s Confidential Information.

(d) You must inform Us immediately upon becoming aware of any breach of this clause or of any unauthorised, unintended or undesirable disclosure of Our Confidential Information, and must provide Us with all reasonable assistance in remedying any such breach or disclosure.

(e) Notwithstanding anything written elsewhere in this Agreement, a Party may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its solicitors, auditors, insurers and accountants.

13. Dispute Resolution

(a) In the event of a Dispute, the Parties must comply with this clause 13 before starting any arbitration or court proceedings (except proceedings for urgent injunctive relief).

(b) A Party claiming that a Dispute has arisen must give the other Party notice setting out details of the Dispute.

(c) During the fourteen (14) days after a notice is given under clause 13(b) (or longer period if the Parties to the Dispute agree in writing), each Party to the Dispute must use reasonable efforts to resolve the Dispute. If the Parties cannot resolve the Dispute within that period, a Party may refer the Dispute to a binding arbitration to be conducted in Victoria in accordance with the Rules of the Institute of Arbitrators & Mediators Australia (Institute) and will be conducted by one or more arbitrators appointed by the President (or nominee) of the Institute.

(d) A Party must not start court proceedings in relation to a Dispute until it has exhausted the mandatory procedures of this clause 13.

14. Notices

(a) A notice, consent or other communication under this Agreement is only effective if it is:

(i) in writing, signed by or on behalf of the person giving it;

(ii) addressed to the person to whom it is to be given; and

(iii) either:

(A) delivered or sent by pre-paid mail (by airmail, if the addressee is overseas) to that person’s address; or

(B) sent by email to that person’s email and the machine from which it is sent produces a delivery log which signifies that the email was sent and relayed to its intended recipient successfully.

(b) A Party’s mail address and email address are as set out in the Order Form or as that Party notifies the other Party in writing from time to time.

(c) If any notice, consent, information, application or request is delivered, or read report in relation to it is received, on a day that is not a Business Day, or if on a Business Day, after 5pm on that day, it is to be treated as having been given or made at the beginning of the next Business Day.

15. General

(a) This Agreement is not to be interpreted against the interests of a Party merely because that Party proposed this Agreement or some provision of it or because that Party relies on a provision of this Agreement to protect itself.

(b) We reserve the right to vary:

(i) these Terms of Use (https://www.advicedesigner.com/terms-of-service); and/or

(ii) the Privacy Policy (https://www.advicedesigner.com/privacy-policy),

at any time. You are encouraged to monitor each of the above hyperlinks to ensure that you are aware of the most up to date version of each of these terms and policies.

(d) You may not assign, whether in whole or part, Your benefit or any of Your rights or obligations under this Agreement to any other party without Our prior written consent.

(e) This Agreement will be governed by and interpreted in accordance with the laws of Victoria, Australia. You irrevocably submit to the non-exclusive jurisdiction of the courts of the State of Victoria, Australia.

(f) If We do not exercise or enforce any right or provision under this Agreement, it will not constitute a waiver of such right or provision. Any waiver of any provision under this Agreement will only be effective if it is in writing and signed by Us.

(g) If any part of this Agreement is found to be void, unlawful or unenforceable, it will be deemed to be severed from this Agreement to the extent of its invalidity, illegality and/or unenforceability only and the remainder of this Agreement will remain in full force and effect.

16. Definitions and interpretation

(a) Advice Library Content means any content or material that We supply to You under the Platform including any document templates, advice strategy libraries, product libraries, fact sheets and advice strategy videos;

(b) Business Day means any day that is not a weekend or public holiday in Melbourne, Victoria, Australia;

(i) a body corporate (including a body corporate acting in the capacity as trustee of a trust) means the occurrence of an event or circumstance where a person who is not presently able to do any of the following things becomes able to do one of the following things (whether directly or indirectly or through one or more intervening persons, companies or trusts):

(A) control the composition of more than one half of the body's board of directors;

(B) be in a position to cast, or control the casting of, more than one half of the maximum number of votes that might be cast at a general meeting of the members of the body; or

(ii) a trust means the occurrence of an event or circumstance where a person who is not presently the Controlling Person of that trust becomes the Controlling Person of that trust;

(d) Commencement Date means the date upon the last Party executing the Order Form;

(e) Confidential Information means the confidential information of a Party which relates to the subject matter of this Agreement and includes all information:

(i) relating to trade secrets, know-how, financial information (including the Licence Fees payable under this Agreement) and other commercially valuable information of whatever description and in whatever form (whether written or oral) which may be disclosed by one Party to the other in connection with this Agreement or otherwise concerning the Platform, any technology, marketing strategies and business of the disclosing Party, the terms of this Agreement and any information which is by its nature confidential;

(ii) that is designated by the disclosing Party to be confidential;

(iii) which is by its nature confidential; or

(iv) which the receiving Party ought reasonably to know is confidential,

but does not include information already known to the receiving Party at the time of disclosure by the other Party or information in the public domain other than as a result of disclosure by a Party in breach of its obligations of confidentiality under this Agreement;

(f) Content means any content or material that You enter or upload to the Platform;

(g) Controlling Person means, in relation to a trust, the person in whom is vested the ability to appoint a new or additional trustee of that trust or remove the trustee of that trust or with whose instructions such trustees are accustomed to act or any other power which in all relevant circumstances would cause a reasonable person to believe that that person controlled the trust;

(h) Customer Data means any customer data provided by You to Us;

(i) Default Interest means interest payable at the rate of 12 per cent per annum calculated on a daily basis;

(j) Dispute means a dispute, difference or question relating to this Agreement including any dispute, difference or question regarding the breach, termination, validity or subject matter of this Agreement, or dispute as to the circumstances leading to the entry by the Parties into this Agreement or any claim whether in tort, negligence, equity, under statute or otherwise;

(k) Initial Term means the initial term of this Agreement as set out in the Order Form;

(l) Intellectual Property Rights means all present and future intellectual and industrial property rights throughout the world, including all rights, whether conferred by statute, common law, equity or otherwise, in or in relation to:

(i) inventions, discoveries and novel designs (whether or not registered or registrable as patents or designs) including developments or improvements of equipment, products, technology, processes, methods or techniques;

(ii) copyright (including future copyright) throughout the world in all literary works, artistic works, computer software and any other works or subject matter in which copyright subsists and may in the future subsist, and includes moral rights;

(iii) obligations to have confidential information and trade secrets kept confidential and secret;

(iv) trade and service marks (whether registered or unregistered), business names, trade names, domain names, logos and get-up; and

(v) circuit layouts;

(m) Licence means the licence to use the Platform granted by Us to You on the terms of this Agreement;

(n) Licence Fees means the fees set out in the Order Form, excluding GST unless otherwise provided for in the Order Form;

(o) Parties means the parties to this Agreement;

(p) Platform means the Advice Designer platform and any associated functionalities, software, materials or documentation that is supplied to You by Us under this Agreement;

(q) Privacy Policy means the privacy policy which appears on the Website, as amended from time to time;

(r) Order Form means the order form which We supply to You containing commercial terms forming part of this Agreement;

(s) Related Bodies Corporate has the meaning given to that term in the Corporations Act 2001 (Cth);

(t) Term means the Initial Term and each of the Renewal Terms (if any);

(u) Terms of Use means the terms of use set out in this document, which forms part of the Agreement;

(v) Third Party Entity means an entity that operates as an Australian Financial Services Licensee (AFSL) on behalf of You;

(w) Users means the permitted users of the Platform under Your Licence; and

(x) Website means www.advicedesigner.com or as otherwise varied by us and advised in writing.