The agreement will be ongoing, until or unless your Subscription is cancelled or terminated in accordance with this agreement.
If you are a new customer you may access certain aspects of the Platform for a trial free of charge (Trial).
Your Trial and this agreement will commence on the Start Date and will continue for a period as notified by us from time to time (the Trial Term).
You may cancel your Trial at any time during the Trial Term within the Platform.
Unless you cancel the Trial in accordance with this section, this agreement will automatically renew at the end of the Trial Term and you will be charged the Fees in accordance with the Payment Cycle.
Term and Termination
Subject to section ‘Trial Term’, from the Start Date you are agreeing to having a Subscription for an indefinite period until cancelled by you or us as set out in this clause (Term).
You may cancel your Subscription at any time within the Platform. Termination will take effect from the following Payment Cycle (Cancellation Date) and the Platform will remain accessible by you until the end of that Payment Cycle that you have paid the Fees for.
We reserve the right to cancel your Subscription on not less than 90 days’ notice. If we cancel your Subscription in accordance with this clause your Subscription will cease effective from the end of your then current Payment Cycle falling 90 days from the date of notice, after which you will no longer be required to pay us any Fees (subject to this section).
From the Cancellation Date: this agreement will terminate in accordance with the applicable termination clause; we may delete Your Content and/or Company Data after the expiry of 90 days from the date of termination (Transition Period). During the Transition Period, you may request access to Your Content and/or Company Data and we may provide you with transition services to access Your Content and/or Company Data at our then current rate. We will deactivate your Authorised User Logins and your access to the Platform; and will send a ‘cease to be agent’ removing us as your ASIC agent;
From the Cancellation Date you must: cease using Our IP; and pay to us all outstanding Fees owed to us within 14 days.
You will receive the Features that relate to your selected Subscription.
Subject to the remainder of this section, you may elect to upgrade or downgrade your Subscription (if available and applicable) through the Platform.
You may elect to upgrade or downgrade at any time during the Term. Where you elect to do so, the new Subscription will take effect immediately and your Subscription Fees and access to Features will be updated concurrently and accordingly on a pro-rata basis.
If the Customer downgrades its Subscription, access to any of Your Content and/or Company Data that has not been downloaded by you as at the effective date of such downgrade and that is only available as a Feature of you previous Subscription will no longer be accessible by you. You may request access to Your Content and/or Company Data and we may provide you with services to access Your Content and/or Company Data at our then current rate however you acknowledge and agree that we are under no obligation to retain Your Content and/or Company Data.
Only companies with an ASIC registration can be supported by the Platform.
We grant to you a non-transferrable, non-exclusive right and license to access and use the Platform for the duration of the Term in accordance with this agreement.
We will provide you with: your Subscription and access to the Platform; and the Authorised Users Logins.
Your Subscription may be subject to certain usage limitations, such as limits on the number of users, data storage and traffic, as notified by us to you from time to time and at our sole discretion.
To access and use the Platform, your Authorised Users must set up an account using their allocated Authorised User Login.
You are solely responsible for:
- ensuring each Authorised User Login is operated by only one person;
- ensuring Authorised Users do not share, publish or otherwise make available to any third party their Authorised User Logins;
- all activity on your account by you or any of your Authorised Users including any unauthorised access by third parties;
- maintaining the confidentiality and security of your account and the Authorised User Logins and notifying us immediately of any unauthorised use. You are also solely responsible for all activities on your account; and
- protecting Your Content, including backing-up, and ensuring the security of, Your Content, taking appropriate measures to protect Your Content from accidental, unlawful or unauthorised access, use or disclosure.
You must comply with and ensure all Authorised Users comply with, applicable laws, this agreement and our reasonable directions.
In order for us to provide you with the services and access to the Platform, you must: promptly provide us with (as reasonably requested by us), relevant, accurate, complete and current information; and do all things reasonably required to grant us valid authority to act as your authorised ASIC agent.
You must not:
- use, modify or adapt the Platform in any way that is contrary to this agreement or against any law (including for the purposes of infringing upon any third party’s Intellectual Property Rights);
- transfer, distribute or on-sell any copy of the Platform (or any derivative of it) to any third party;
- distribute viruses, corrupt files, or any other similar software or programs that may damage the operation of any computer hardware or software;
- create derivative works of, attempt to discover the source code of, copy, cache, reproduce, reverse engineer, reverse assemble or reverse compile the Platform in whole or in part (including the content made available via the Platform);
- alter, disassemble or otherwise disable any tracking applications of technology in the Platform (including the content made available via the Platform);
- engage in any other conduct that inhibits any other person from using or enjoying the Platform; and/or
- do anything that would prejudice the existing right, title or interest in the Platform.
You must not submit, post or display any of Your Content that:
- is not up-to-date, true, correct and accurate;
- you do not have permission, right or license to use, upload, and permit use as contemplated by this agreement;
- is objectionable, offensive, unlawful, defamatory, deceptive or harmful; and/or
- is illegal, fraudulent, misleading or manipulative.
You warrant that you have the rights to use Your Content and you take full responsibility for Your Content. You indemnify us against any claims relating to a breach of this section, any third-party rights and/or a breach of any law or regulation as a result of Your Content.
During the Term, you will pay your Fees each Payment Cycle, monthly in advance by recurring electronic payment.
You are responsible for any late or overdue fees or other applicable service charges assessed to your company by ASIC. We will provide you with the details of those fees and charges, which you may be required to pay directly to ASIC or via the Platform.
Your nominated debit or credit card will be charged when your Payment Cycle first commences and then you will be charged on each relevant Payment Cycle without further authorisation from you, unless you have cancelled or otherwise modified your Subscription in accordance with these agreed terms.
It is your responsibility to ensure that:
- your Direct Debit details are, at all times, valid and up to date;
- sufficient funds are available at each Payment Cycle; and
- the billing address and other necessary information you have provided are, at all times, valid and up to date.
Your Direct Debit transactions will be performed through payment gateways. We currently use a third party payment gateway for all transactions.
We do not collect or store your payment information, it is collected and stored by the owner of the payment gateway referred to in this section and payments will appear on your accounts as [“BOULEVARD”].
We are not liable for any charges you incur as a result of out of date payment information. If we incur an expense due to incorrect payment information provided by you, we reserve the right to seek reimbursement from you for such expense and if we are unable to debit your Direct Debit:
- you authorise us to reattempt the Direct Debit a maximum of four times in a four-week period;
- if such reattempts are unsuccessful, we reserve the right to seek payment off you via an alternative payment method and/or seek to recover the debt through alternative means (either directly, or through a third party);
- you may be required to reimburse us for any costs we incur when reattempting payment; and
- we may suspend your account and access to the Platform until all overdue amounts are paid.
You acknowledge and agree any approved change to your Subscription may result in an increase in the Fees payable by you.
On 30 days’ notice to you, we may increase the Fees for any reason during the Term. The increase will take effect on your next applicable Payment Cycle.
Unless otherwise expressly stated, all fees, prices or other sums payable or consideration to be provided under this agreement are inclusive of GST, unless otherwise expressed.
Support, updates and back-ups
We will provide you with support to resolve general issues relating to your account and use of the Platform. This support includes resources and documentation that we make available to you through the Platform ‘Help’ page. If you still have questions after reviewing this available documentation you can contact us via the Platform or other means as provided for by our support team. We will endeavour to address your query within a reasonable timeframe.
We may provide, configure, install and maintain any and all updates, upgrades, enhancements, releases, corrections, bug fixes, patches and modifications to the Platform as we deem necessary (Updates).
We may suspend access to, or functionality on, the Platform from time to time to implement such Updates. We will use reasonable efforts to notify you of any Update that may interrupt the Platform.
You must accept all Updates necessary for the proper function and security of the Platform if and when such Updates are released by us.
Whilst we reserve the right to undertake back-ups of the Platform, however we are not obligated to do so, and you are solely responsible for backing up Your Content and Company Data.
In addition to any other warranties made by you in these agreed terms, each party represents and warrants to the other that, to the best of its knowledge, each of the following statements is true, accurate and not misleading as at the date of this agreement and will be true and accurate on each day during the Term: it has the corporate power to enter into and perform its obligations under this agreement and to carry out the transactions contemplated by this agreement; and there are no pre-existing rights or obligations which would prevent it from complying with its obligations under this agreement.
You may make the Company Data available to your customers, clients and investors (Your Customers). You acknowledge that:
- Your Customer’s use of, and access to, the Company Data may be subject to a separate agreement between you and Your Customer;
- to the extent permitted by law, we make no representations or warranties in relation to, and does not accept liability for, any Company Data; and
- we are not liable for any Loss or damage howsoever arising that may be suffered or incurred by Your Customers.
Limitation of liability
You are solely responsible for: determining whether the Platform is suitable for your needs; managing your relationships with Your Customers; and all Loss arising as a result of or in connection with Your Content or erroneous or fraudulent transactions in connection with your use of the Platform.
Subject to any express warranties in this agreement but otherwise to the fullest extent permitted by law, we exclude all warranties, conditions and representations in whatever form, relating to the Platform, including any warranties or representations relating to non-infringement, quality, accuracy, integration, merchantability, conformity with specifications, reliability, functionality, performance, fitness for use or the security and operation of the Platform. The Platform and the content accessible via it is provided “as is” and we do not warrant you access to the Platform will be uninterrupted, undisputed or error free.
You acknowledge and agree:
- we rely on Your Content when generating Outputs;
- we do not independently test, check or verify Your Content or Outputs;
- the Outputs may include corporate or financial information and records but no function of the Outputs, constitutes financial or legal advice; and
- we are not liable for any Loss you suffer as a result of or in connection with any reliance on an Output which is incorrect/inaccurate.
This clause relates to consumers (as defined in the Competition and Consumer Act 2010 (Cth)): These warranties are in addition to other rights and remedies that are available to you at law. Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Platform, you are entitled: to cancel your contract with us; and to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
Notwithstanding any other provision of this agreement and to the fullest extent permitted by law: our aggregate liability in connection with this agreement whether in contract, tort (including negligence), statute or otherwise will not exceed an amount equal to the lessor of your actual direct damages or the Fees paid by you to us in the Payment Cycle preceding any claim; and neither party is liable, whether such liability is based on breach of contract, tort (including negligence), statute or otherwise for any Consequential Loss, indirect, incidental, punitive or special Losses of any kind (including loss of profit, business interruption or a security breach).
Third party products
We may use third party products (including hardware) in supplying you with the Subscription (Third Party Product). You acknowledge that:
- your use of, and access to, the Third Party Products may be subject to additional fees and separate terms issued by the Third Party Supplier, which will form a separate agreement between you and the relevant Third Party Supplier;
- we make no representations or warranties in relation to, and do not accept liability for, any Third Party Products; and
- we may, without liability, suspend your use of, or access to, the Third Party Products on request from the Third Party Supplier of such Third Party Products.
You acknowledge and agree:
- we may collect aggregated information about your activities, and details of how you use the Platform, the types of content you engage with or the frequency and duration of activities;
- we may collect metadata, which is technical data that can describe the details of how content was collected and how that content is formatted; and
- we may automatically store in log files, including IP addresses, browser type and language, Internet service provider, referring and exit websites and applications, operating system, date/time stamp, and clickstream data to analyse trends, to administer the Platform, to generally improve the Platform and for marketing.
Intellectual property rights
You acknowledge that the Intellectual Property Rights in and to: the Platform (including any source code, translations, compilations, partial copies and derivative works); and logos, images, information, documents, materials and/or any other information owned, licensed, created, and/or developed by us,
(Our IP), contain confidential and proprietary information belonging exclusively to us (or the Third Party Product supplier).
Nothing in this agreement transfers ownership of:
- Our IP to you any other person;
- Your Content to us or any other person; and/or
- Pre-Existing IP to the other party or any other person.
You own all Intellectual Property Rights in Your Content. You grant us a royalty-free, non-exclusive, revocable licence to use Your Content to the extent necessary to perform our obligations under this agreement.
We grant you a non-exclusive and non-transferable licence to use Our IP solely to the extent necessary to obtain the benefit of the Platform for the Term.
You agree we may, for our own business purposes, use and incorporate any ideas, suggestions, concepts, know-how or techniques contained in information received from you that directly relates to your products or business, including any suggested changes or modification to the Platform.
You consent to us naming you as a client and reproducing your business name and logos for marketing and publicity purposes.
Confidentiality and privacy
Each party must comply with the Privacy Act 1998 (Cth) to the extent that it applies to each party in connection with the collection, use, handling, disclosure, quality, security of and access to personal information that the party holds.
Both parties must keep all Confidential Information confidential and use such information for the sole purpose of performing the obligations under this agreement.
Neither party may use or disclose the Confidential Information except:
- for the reasonable purposes of fulfilling the party’s obligations under this agreement or as otherwise permitted by this agreement;
- to that party’s employees or advisers on a need-to-know basis and that party must ensure that such persons understand and comply with the obligations imposed by this agreement;
- as required by law, subject to that party notifying the other party immediately if that party becomes aware that such disclosure may be required; or
- with the other party’s prior written consent.
We do not represent or warrant that the Platform is entirely secure, uninterrupted or error-free. You acknowledge that the public internet is an inherently insecure environment and that we have no control over the privacy of any communications or the security of any data outside of our internal systems
If a Force Majeure Event occurs, the affected party must notify the other party and the obligations of the party will be suspended to the extent that they are affected by the relevant Force Majeure Event until that Force Majeure Event has ceased.
Any party who claims to have a dispute against another party must issue a Dispute Notice.
Within 7 days after receiving the Dispute Notice, the parties must meet to resolve the dispute. Each party will be represented by a person having authority to agree to such resolution or methods. All aspects of the meetings will be confidential and without prejudice to the parties’ rights, obligations and liabilities.
If the parties do not resolve the dispute within 30 days (or such longer period the parties may agree in writing) after the Dispute Notice, then either party may initiate court proceedings in relation to the dispute.
Subject to section titled ‘Term and Termination’, despite the existence of a dispute, each party must continue to perform its obligations under the agreement unless those obligations are the subject of the dispute.
A notice, consent or other communication under this agreement is only effective if it is in writing, signed by or on behalf of the party giving it and it is received in full and legible form at the addressee’s address or email address.
You must send any notices or other communication to us under this agreement to [[email protected]].
A notice will be deemed to be received within 24 hours after the message has been sent (as recorded on the device from which the sender sent the message), unless the sender receives an automated message that the email has not been delivered.
Nothing in this agreement will be taken as giving rise to a relationship of employment, agency, partnership or joint venture. Except as otherwise provided in this agreement, the parties acknowledge and agree that neither party will have any authority to bind the other party or to enter into an agreement in the name of the other party.
We may subcontract the performance of any part of this agreement to any third party.
This agreement contains the entire understanding between the parties concerning the subject matter of the agreement and supersedes all prior communications.
The failure of either party to enforce any provisions under this agreement will not waive the right of such party thereafter to enforce any such provisions.
If any term or provision of this agreement is held by a court to be illegal, invalid or unenforceable under the applicable law, that term or provision will be severed from this agreement and the remaining terms and conditions will be unaffected.
This agreement is governed by, and construed in accordance with, the laws of New South Wales, Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales.
We may amend or vary this agreement (including any Fees applicable) on written notice to you.
We may assign or transfer this agreement to any group company, or subcontract to an affiliate any or all of our obligations under this agreement without prior consent from you.
Any warranty, indemnity, or obligation of confidentiality in this agreement will survive termination. Any other term which by its nature is intended to survive termination of this agreement survives termination of this agreement.
Definitions and interpretation
In this agreement terms used in the order form have the meaning given to them in the order form and, unless the context otherwise requires:
ASIC means Australian Securities and Investments Commission.
Australian Consumer Law means the provisions of Schedule 2 to the Competition and Consumer Act 2010 (Cth), as applied under Part XI or under a law of a State or Territory.
Authorised User means the employees, agents and independent contractors of you who are authorised by you to be supplied Authorised User Logins and access and use the Platform.
Authorised User Logins means the unique username and password issued or otherwise assigned by us to you or your Authorised Users for access to and use of the Platform.
Confidential Information of a party means the confidential, proprietary and commercially-sensitive information (irrespective of the form or the manner in which the information is disclosed, or the time of such disclosure) of that party (disclosing party) which his disclosed to, or learnt by or accessed by the other party (receiving party), including information which:
is identified by the disclosing party as confidential or the receiving party ought to have been known to be confidential; and
relates to the business affairs and practices, including financial information, business opportunities, business plans, business processes and methodologies of the disclosing party, but does not include information:
- which is in, or comes into, the public domain other than by the receiving party’s breach of this agreement;
- which is independently known to, or developed by, the receiving party as evidenced by its written records; or
- is or was made available to the receiving party by a person (other than the disclosing party) who is not, or was not, under an obligation of confidence to the disclosing party.
Consequential Loss means any Loss that does not arise naturally in the ordinary course of things from the event or circumstance giving rise to the Loss.
Company Data means the data captured and generated by your use of the Platform, including the data that relates to you and any individuals or entities to whom you provide any services, your Authorised Users, staff, employees, investors, contractors and/or other representatives.
Dispute Notice means a notice issued by a party claiming a dispute has arisen, which is issued to the other party setting out the nature of the dispute and all other information relevant to the dispute.
Features means the functionality and operational features of the Platform which are accessible by, and/or made available to, you in accordance with your Subscription. Specified at [www.boulevardglobal.com].
Fee means the fee for the Subscription based on the Subscription tier selected by you, specified at [www.boulevardglobal.com].
Force Majeure Event means any act, event or cause including pandemics, earthquakes, cyclones, floods, fires, lightening, storms or other acts of God, strikes or industrial disputes, riots, terrorist acts, civil disturbances, breakages of machinery, or industrial conditions, or arising out of any other unexpected and exceptional cause, delays in transportation and dispositions or orders of governmental authority, which: directly or indirectly results in a party being prevented from or delayed in performing any of its obligations under this agreement; and is beyond the reasonable control of that party.
GST has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, confidential information, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registered, registrable or patentable.
Loss means any judgment, debt, damage, loss, cost, expense or liability howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, or otherwise.
Our IP has the meaning given to that term in the section titled ‘Intellectual Property Rights’.
Outputs means the reports, summaries, documents, registers and other outputs the Platform produces.
Payment Cycle means upfront monthly payments commencing on the date that this agreement is renewed in accordance with the section titled ‘Trial Term’.
Platform means our BOULEVARD platform comprising the [services fully described at [www.boulevardglobal.com].
Pre-Existing IP means any Intellectual Property Rights in any materials existing at the date of this agreement, including Intellectual Property Rights in software, hardware or documentation and materials used in our or your business.
Subscription means your recurring subscription to access and use of the Platform in accordance with these agreed terms.
Taxable Supply has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Term has the meaning given to that term in the section titled ‘Term and Termination’.
Third Party Product has the meaning given to that term in the section titled ‘Third party products’.
Third Party Supplier means a supplier who supplies Third Party Products (other than us).
Update has the meaning given to that term in the section titled ‘Support, updates and back-ups’.
Your Content means all content provided by you to us, including information, data, words, images, logos, information, documents, materials and any add-on/plug-in software created by you or your Authorised Users while using the Platform.
Your Customer has the meaning given to that term in the section titled ‘Your Customers’.
In this agreement unless the context otherwise requires:
- Headings and sections are for reference purposes only;
- the singular includes the plural and vice versa;
- where a word or phrase is defined its other grammatical forms have a corresponding meaning;
- references to statutes include all statutes amending, consolidating or replacing such statutes;
- $ means the lawful currency of Australia;
- any reference to a party to this document includes its successors and permitted assigns;
- the use of the word “includes” or “including” is not to be taken as limiting the meaning of the words preceding it.