Effective from: 30th November 2018
1. General Terms
A. These Terms and Conditions as amended from time to time (the “License Terms”) constitute an agreement between the Licensee and the Licensor which depending on the product or products that are being licensed varies as follows:
- If the Licensee is licensing the Health Check Platform or Risk Assessment Platform the agreement is with Financial Crimes Consulting Pty Ltd (“FCC”) (ABN: 49 149 878 875) of Level 4, 11-17 York Street, Sydney, NSW 2000 Australia trading as Arctic Intelligence; or
- If the Licensee is licensing the AML Accelerate Platform the agreement is with AML Accelerate Pty Ltd (“AMLA”) (ACN: 149 878 875) of Level 4, 11-17 York Street, Sydney, NSW 2000 Australia (a wholly owned subsidiary of Financial Crimes Consulting Pty Ltd); or
- If the Licensee is licensing the ezyKYC Platform the agreement is with FormsBox Pty Ltd (ACN: 612788708) of Level 4, 11-17 York Street, Sydney, NSW 2000 Australia (Financial Crimes Consulting Pty Ltd has an exclusive distribution agreement for ezyKYC).
These Terms and Conditions will govern your usage of the www.arctic-intelligence.com website and associated products and services (the Site or Sites).
C. You also agree to comply with any additional terms which apply to third-party content, material, information, software or other services;
- the singular includes the plural and vice versa;
- a gender includes the other gender;
- if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
- the meaning of general words is not limited by specific examples introduced by ‘includes’, ‘including’, ‘for example’, ‘such as’ or similar expressions;
- a reference to a statute, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
- a party includes the party’s successors and permitted transferees and assigns and if a party is an individual, includes executors and personal legal representatives;
- a reference to a person includes an individual, a partnership, a corporation or other corporate body, a joint venture, a firm, a trust, an association (whether incorporated or not) and a Government Authority;
- a reference to a group of persons or things is a reference to any two or more of them jointly and to each of them separately;
- an agreement, representation, warranty or indemnity by two or more persons binds them jointly and each of them separately;
- an agreement, representation, warranty or indemnity in favour of two or more persons is for the benefit of them jointly and each of them separately;
- all monetary amounts are in US dollars, unless otherwise stated and a reference to payment means payment in US dollars;
- if the day on or by which something must be done is not a Business Day, that thing must be done on the next Business Day;
- a period of time dating from a given day or the day of a given act or event is to be calculated exclusive of that day; and
If you do not agree to be bound by the amended license terms, you may terminate your license agreement with the Licensor in accordance with section 3.17 of the End User License Agreement.
1.3 Technological and Use Limitations
A. the Licensor will take what it believes to be reasonably commercial efforts to keep the Site operational. However, certain technical difficulties, routine site maintenance/upgrades and other events outside the control of the Licensor may, from time to time, result in temporary service interruptions. the Licensor also reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, functions of the Site with or without notice. You agree that the Licensor shall not be liable to you or to any third-party for any of the direct or indirect consequences of any modification, suspension, discontinuance of or interruption to the Site.
B. As the Site is designed for personal sampling and use, you are not allowed to use any automated system for the selection or downloading of Licensor Content. the Licensor reserves the right to immediately and permanently terminate your access to the Site if the Licensor believes, correctly or incorrectly, that you are violating such limitation. In the event that you are using an automated system to download Licensor Content, you shall be responsible to the Licensor for any losses suffered by the Licensor resulting either directly or indirectly from the breach of this term.
C. You will not directly or indirectly (by allowing others to use the your access to the Site); (a) attempt to or actually disrupt, impair or interfere with, alter or modify the Site or any information, data or materials posted and/or displayed by the Licensor or anyone else; (b) act in a way that affects or reflects negatively on the Licensor, the Site or anyone else; (c) collect or attempt to collect any information from others including, without limitation, personally identifiable information, without such party’s prior consent.
D. You are prohibited from violating or attempting to violate the security of the Site. Violations of system or network security may result in civil or criminal liability. the Licensor has the right to investigate occurrences, which may involve such violations and may involve, provide information to and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations.
E. You acknowledge that:
- certain technical difficulties, routine site maintenance and upgrades and other events outside the control of the Licensor may, from time to time, result in temporary service interruptions and prevent usage of the Website and/or Product(s);
- the Licensor also reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, functions of the Website or Products with or without notice and the Licensor is not liable to the Licensee or to any third-party for any of the direct or indirect consequences of any modification, suspension, discontinuance of or interruption to the Product(s); and
- while the Licensor operates the Websites and Product(s) from secure data centres with 24/7 backup facilities, access cannot be guaranteed.
1.4 Acceptable Use
The Licensee agrees not to misuse or abuse our Site. Under these terms, the Licensor reserves the right to remove Licensee Content that is inconsistent with the spirit of the guidelines, even if it’s something that is not forbidden by the letter of the terms.
A. The Licensor won’t allow any disruption caused by:
- Compromising the integrity of our systems. This could include probing, scanning, or testing the vulnerability of any system or network that hosts our services.
- Tampering with, reverse-engineering, or hacking our services, circumventing any security or authentication measures, or attempting to gain unauthorized access to the services, related systems, networks, or data
- Modifying, disabling, or compromising the integrity or performance of the services or related systems, network or data
- Deciphering any transmissions to or from the servers running the services
- Overwhelming or attempting to overwhelm our infrastructure by imposing an unreasonably large load on our systems that consume extraordinary resources (CPUs, memory, disk space, bandwidth, etc.), such as:
- Using “robots,” “spiders,” “offline readers,” or other automated systems to send more request messages to our servers than a human could reasonably send in the same period of time by using a normal browser
- Going far beyond the use parameters for any given service as described in its corresponding documentation
- Consuming an unreasonable amount of storage for music, videos, pornography, etc., in a way that’s unrelated to the purposes for which the services were designed.
B. The Licensor won’t allow wrongful activities:
- Misrepresentation of yourself, or disguising the origin of any content (including by “spoofing”, “phishing”, manipulating headers or other identifiers, impersonating anyone else, or falsely implying any sponsorship or association with the Licensor or any third-party)
- Using the services to violate the privacy of others, including publishing or posting other people’s private and confidential information without their express permission, or collecting or gathering other people’s personal information (including account names or information) from our services
- Using our services to stalk, harass, or post direct, specific threats of violence against others
- Using the services for any illegal purpose, or in violation of any laws (including without limitation data, privacy, and export control laws)
C. The Licensor won’t allow inappropriate communications:
- Using the services to generate or send unsolicited communications, advertising, chain letters, or spam
- Soliciting our users for commercial purposes, unless expressly permitted by the Licensor
- Disparaging the Licensor or our partners, vendors, or affiliates
- Promoting or advertising products or services other than your own without appropriate authorisation
D. The Licensor won’t allow the posting, uploading, sharing, submitting of inappropriate Licensee Content that:
- Infringes the Licensor’s or a third-party’s intellectual property or other rights, including any copyright, trademark, patent, trade secret, moral rights, privacy rights of publicity, or any other intellectual property right or proprietary or contractual right
- You don’t have the right to submit
- Is deceptive, fraudulent, illegal, obscene, defamatory, libellous, threatening, harmful to minors, pornographic (including child pornography, which we will remove and report to law enforcement, including the National Center for Missing and Exploited Children), indecent, harassing, hateful
- Encourages illegal or tortious conduct or that is otherwise inappropriate
- Attacks others based on their race, ethnicity, national origin, religion, sex, gender, sexual orientation, disability, or medical condition
- Contains viruses, bots, worms, scripting exploits, or other similar materials
- Is intended to be inflammatory
- Could otherwise cause damage to the Licensor or any third party
E. Under this clause 1.4, “Licensee Content” means: (1) any information, data, text, software, code, scripts, music, sound, photos, graphics, videos, messages, tags, interactive features, or other materials that you post, upload, share, submit, or otherwise provide in any manner to the services and (2) any other materials, content, or data you provide to the Licensor or use with the Site.
F. Without affecting any other remedies available to us, the Licensor may permanently or temporarily terminate or suspend your account or access to the Site without notice or liability if the Licensor (in its sole discretion) determines that a user has violated these terms.
1.5 AML Accelerate Adviser Service
This section relates to AML Accelerate products only.
1.5.1 AML Accelerate Adviser Appointment Service
A. The AML Accelerate Adviser Appointment Service uses a third-party service called Setmore to schedule your appointments. In order to book your first appointment, you agree to register an account with Setmore. We recommend that you use the same email address as your AML Accelerate account and a password of your choosing. When you book subsequent appointments, you will be required to login with this email and password.
B. If you do not want to register an account with Setmore, you cannot use the AML Accelerate Adviser Appointment Service. This is a condition of this license type and no refund will be given.
C. The AML Accelerate Adviser Appointment Service uses a third-party video conference service called Zoom and you agree to register with https://zoom.us before your first appointment. We recommend that you use the same email address as your the Licensor account and a password of your choosing. When you are invited to subsequent appointments you will be required to login with this email and password.
D. If you do not want to register an account with Zoom, you cannot use the AML Accelerate Adviser Appointment Service. This is a condition of this license type and no refund will be given.
E. The AML Accelerate Appointment Service consists of up to a maximum of 4 appointments in a 12- month license period per licensed entity (not per Registered User). If you or any other Registered User under the Licensee attempts to schedule more than 4 appointments in a 12-month period, we reserve the right to decline those appointments.
F. Each appointment can be up to a maximum of 45 minutes in length. The Licensor reserves the right to terminate the appointment after 45 minutes. If further time is required, you must book a subsequent appointment.
G. The Licensor may cancel or reschedule an appointment up to 24 hours prior to the appointment. If the Licensee cancels with less than 24 hours before the appointment, the Licensor reserves the right to deduct one of your appointments and you will forfeit that appointment slot.
H. Our consultants will wait up to 15 minutes from the scheduled appointment time if you are late to arrive. If you arrive within the first 15 minutes of the scheduled appointment, the appointment will start from that point but will end 45 minutes from the scheduled appointment start time. For example, if you are 9 minutes late, your available appointment time will be 45 – 9 = 36 minutes.
I. If the Licensee or Registered User fails to attend an appointment and have not provided at least 24 hours notice of cancellation or arrive to the meeting more than 15 minutes late, the Licensor reserves the right to deduct one of the Licensees appointments and the Licensee will forfeit that appointment slot.
J. All unscheduled appointments will expire at the end of the 12-month license period i.e. unused appointments will not be rolled over into the next 12-month license period.
K. The Licensor reserves the right to reschedule an appointment for any reason without advance notice but will only do so in exceptional circumstances.
1.6 AML Accelerate Email Support Service
This section relates to AML Accelerate products only.
A. If the Licensee sends an email or message to our support service, the Licensor will use their best endeavours to respond on a timely basis and usually within 48-72 business hours, excluding weekends and public holidays. The Licensor reserves the right to take longer to respond if needed
B. The Licensee agrees to not abuse the email support service by sending high volumes of questions and queries. The Licensor reserves the right to not respond to your queries if we deem the volume to be unreasonable. If the Licensee does not abide by this fair use clause, the Licensor reserves the right to cancel the license for your licensed entity and associated Registered Users.
2. Product Trial Terms
This section of the license terms applies only for the Products where product trials are made available by the Licensor, notably the Health Check, the Risk Assessment and ezyKYC.
2.2 Trial Period
A. The Product Trial is permitted for a total of 30 to 60 days (as agreed on the key details section of the Product Trial / Pilot agreement), commencing from the date upon which we first make the relevant Product(s) available to you (the “Trial Period”) or such other extended period as expressly confirmed in writing by the Licensor.
C. On the cessation of the Product Trial, the Licensee’s access to the Product(s) will be terminated unless the Licensee purchases the Product(s) or the Licensor agrees to an extended Trial Period.
D. The Licensor may charge the Licensee a Pilot Fee for the Product Trial, if agreed in writing on the Product Trial / Pilot agreement prior to the commencement of the Product Trial.
2.3 Use of Product(s) during a Product Trial
A. Each Licensee may access the Product(s), as applicable, for the Permitted Purpose only during the Trial Period. Any use of the Product(s) for any other purpose, including using the Product(s) for operational, risk management or compliance purposes or for the purposes of gathering competitive intelligence on behalf of any person or entity which provides a service that is competitive to the Product(s) or the business of the Licensor is not permitted and may prompt the Licensor to take legal action against the Licensee.
B. Each Licensee may store items of information accessed in connection with the Product(s) (“Content”) during the Trial Period only (unless during or after the Trial Period ends that the Licensee subscribes to the Product(s)). Each Licensee may distribute limited extracts of Information to other Users only. Any further storage or redistribution of information is not permitted. No Licensee may use, modify or create derived data of the Information for any purpose. You will ensure that all stored Information is deleted when the Trial Period ends.
The Licensee acknowledges and agrees that:
A. the Product Trial is for evaluation of the Product(s) only;
B. during the Product Trial, the Licensee only has access to limited features of the Product(s) as determined by the Licensor from time to time; and
C. any rights or obligations obtained or incurred by the Licensee in connection with the Product Trial or use of the Product(s) during the Product Trial, must not be assigned or transferred to anyone else.
A. To the maximum extent permitted by law, the Licensor is not liable for any Loss suffered by the Licensee, however caused, and in respect of any claim against the Licensee, however caused, in connection with the use of the Product(s) by the Licensee during the Product Trial.
3. End User License Agreement Terms
3.1. The License
In exchange for the Licensee paying the Fees, the Licensor grants to the Licensee a non-exclusive, non-transferable licence to use the Software for the Permitted Purpose.
This Agreement starts on the Start Date and will continue for 12-months, unless terminated earlier in accordance with clause 3.17. At the end of the term, the licensee may renew the term for another 12- months.
3.3 Fees and Payment
A. In consideration of the provision of the Product(s), the Licensee agrees to pay the Fees in accordance with the payment terms notified to the Licensee at the time of the purchase of the Product(s), which can be done either online directly on the Site or alternatively an offline invoice can be raised and paid via electronic transfer within the terms of the invoiced payment.
B. If, during the Term, the Licensee:
- requires increasing the number of Registered Users and/or Licences granted and/or increase the number of assessments and/or purchase additional Licensor Content module(s) under this Agreement, it will pay the additional fees based on the Licensee’s requirements.
- The Fee is specified on the Licensor’s website (https://www.arctic-intelligence.com) or as agreed in writing between the Licensor and the Licensee.
- Will be required to pay GST where applicable as per the GST Act and the invoice amount.
- the Licensor may charge the Licensee on all amounts overdue at an interest rate of 10%, which will accrue and be chargeable from the first day on which such amounts become overdue until the Licensor receives effective payment of all such amounts (including all interest); and
- the Licensor may suspend the Licensees use of the Product(s).
D. Unless you notify the Licensor of any discrepancies in the Fees within 14 days after they are first reported to you, such Fees will be deemed accepted by Licensee for all purposes, including resolution of inquiries made by your card issuer. The Licensee releases the Licensor from all claims and Loss resulting from any error or discrepancy that is not reported to the Licensor within 14 days of its first appearance.
F. The Licensees continued use of the Product(s) following the effective date of a change to such fees and billing methods shall constitute your acceptance of such change.
G. The Licensor may debit the Licensee’s nominated credit card for Fees incurred in relation to the use of the Products (including any renewal fees), after providing notice of its intention to do so in writing, unless the Licensee notifies the Licensor in writing that the Licensee disputes the Fees. In the event of a dispute regarding Fees, the Licensee must notify the Licensor within five days from the day the Licensee receives notice of the Fees, of the nature and grounds of its dispute. The Licensor will investigate the Licensee’s dispute and determine an outcome accordingly.
3.4 Delivery of the Software
A. Upon payment of the relevant Fee, the Licensor will deliver Software to the Licensee.
B. Delivery of the Software occurs when the Licensor has either:
- Deployed a version of the product(s) into the Licensee’s environment, for example, on-premise or private cloud;
- established an account for the Licensee and any Registered Users are provided with access to that account in the Licensor’s hosted environment including additional users.
3.5 Deployment of the Software
A. The Licensor will provide the Software to the Licensee in one of the following ways:
i. as a Hosted Version. the Licensor’s Software is hosted in a Microsoft Azure data centre in Sydney, Australia and the Licensee will also be bound by its service terms, which can be found at https://azure.microsoft.com
ii. as a Non-Hosted Version, the Licensor's Software will be deployed either to the Licensee's private cloud account or on-premise.
B. the Licensor may from time to time during the Term update and carry out scheduled maintenance of the web-based user interface and may have to suspend access to, or functionality of the interface from time to time.
C. If the Licensor needs to carry out any emergency maintenance, the Licensor will endeavour to notify the Licensee as soon as is practicable.
D. the Licensor will use reasonable endeavours to, as soon as is reasonably possible, notify the Licensee of any breaches in security or unauthorised or suspicious access to the Hosted Version indicating that an individual has damaged the Hosted Version or gained unauthorised access to the Hosted Version in a way that has adversely affected the Licensee’s information, including any corruption, loss or mis-transmission of data, or any breach of data security during transmission and storage. In the event of any such security breach (of which the Licensor is aware), the Licensor will perform a root cause analysis to identify the cause of such security breach and will, on an expedited basis, provide to the Licensee a report detailing the cause of such a security breach.
A. The Licensee acknowledges and agrees that the Licensor may suspend the Licensee’s use of the Hosted Version if, in the Licensor’s sole opinion, it is reasonably required to prevent unauthorised access to the Software.
3.6 Registered Users
A. The Licensee may nominate any of its employees and contractors to be a Registered User of the Software by submitting the request online via the Software.
B. The Licensee:
- will ensure that its Registered Users are aware of, and comply with, the terms and conditions of this Agreement;
- is responsible and liable for all activity that occurs under an account assigned to the Licensee and all acts and omissions of a Licensee’s Registered User irrespective of whether they are an employee of the Licensee or not;
- will ensure that if a Registered User leaves the employ of the Licensee, or the Agreement under which they provide services to the Licensee is terminated, that their access to the Software is terminated; and
- will notify the Licensor of any actual breach of this Agreement by any of its Registered Users within 2 business days of the Licensee becoming aware of the actual breach.
3.7 Provision of Services by Licensor
A. The Licensor agrees to use reasonable commercial endeavours to provide the following support services for the Software during the Term:
- any updates based on legislative changes;
- corrections to material issues that the Licensee is able to reproduce and/or diagnose;
- enhancements to the Software that the Licensor elects to incorporate into and make a part of the Software that are not separately marketed; and
- reasonable online support.
B. Support services to be provided by the Licensor will not (unless otherwise agreed with the Licensor) include support of or for:
- Software not properly used; or
- support required because of a failure to undertake training or follow instructions provided by the Licensor.
3.8 Licensee’s Obligations
A. The Licensee will not use the Software, or let it be used:
- for any purpose other than the Permitted Purpose;
- in a manner which may be prejudicial to the Licensor, its goodwill, reputation or business;
- to commit any offence or breach any Law;
- in a manner that is excessive or unusual or creates an unfair burden on the provision of the Software to others (as judged in the Licensors reasonable discretion);
- in a way that interferes (or threatens to interfere) with the efficiency and security of the Software;
- to distribute material that is defamatory, obscene or could cause offence or harm; or
- in a manner that infringes any other person’s Intellectual Property Rights, Confidential Information or other rights.
B. The Licensee agrees:
- to only use the Software in accordance with the terms of this Agreement;
- to comply with any reasonable direction of the Licensor in respect of the Software;
- to ensure all Login Details are kept confidential and secure;
- to ensure that only Registered Users that hold a license to the Licensor Products use the login details;
- to notify the Licensor immediately if the Licensee has any grounds to believe that the Login Details may have been disclosed to or accessed by any person not authorised to have access to the Login Details;
- to permit the Licensor to change, amend, cancel or disable the Login Details at any time and for any reason the Licensor considers appropriate;
- to not withhold any information or materials which could reasonably impact the Licensor’s performance of its obligations under this Agreement;
- it will not, directly or indirectly, modify the features or functionality of, copy, analyse or remove components from, reverse engineer, decompile, disassemble or otherwise attempt to derive the source code, techniques, processes, algorithms, know-how or other information from the Software or permit, allow, encourage or induce any third-party to do so;
- it will not create derivative works based on the Software; and
- it will not distribute or upload any trojan horse, worm, malicious or destructive code or any instruction activating such code or do anything which will or might reasonably adversely affect the Software.
3.9 Representations and Warranties
A. the Licensor represents and warrants that:
- it has the legal right and authority to enter into and perform its obligations under this Agreement;
- the Software does not infringe any Intellectual Property Rights of third persons, to the best of the Licensor’s knowledge
B. Without limiting clause 3.9A, while the Licensor will use commercially reasonable efforts to ensure that the Products operate as expected without interruption, the Licensor does not provide any representations or warranties:
- in relation to the quality, merchantability, performance or fitness for a particular purpose of the Product(s);
- that the Product(s) will be complete, accurate, up to date or error free;
- that the Product(s) will meet the Licensee's requirements or achieve a particular outcome or result;
- that the Product(s) or any of its functions are suitable for any particular purpose or have any performance, functionality or security features;
- that the Licensee’s use of the Product(s) will be uninterrupted or error-free or that any errors or defects in the Product(s) will be corrected;
- that the use of the Product(s) or Website will be free from viruses, malicious code, or other harmful components or otherwise secure;
- that the Product(s) or any of the information stored on or accessible from the Product(s) will be compatible with any other computer software, computer hardware or other technology; or
- regarding the interoperability, compatibility or coexistence of the Product(s) with the Licensees operating system or particular network environment or hardware.
C. While the Licensor will use commercially reasonable efforts to ensure that the Products operate in a secure manner, the Licensor does not provide any warranties or make any representations regarding the security of the Product(s) and the Licensor hereby disclaims any and all liability to the Licensee for any Loss suffered by the Licensee which arises out of, or in connection with, the use of the Product(s) by the Licensee or any other data security issues in respect of the Product(s) (including computer viruses or malicious code being transferred by or obtained as a result of the use of the Product(s)).
3.10 Liability and indemnity
A. Without prejudice, the maximum extent permitted by law, the maximum aggregate liability of the Licensor for any Loss suffered by a Licensee, however caused, and in respect of any claim, however caused, against the Licensee in connection with the use or purchase of Product(s) by the Licensee is limited to the total amount of fees paid by the Licensee to the the Licensor for the relevant Product(s) during the 12 month period prior to the events giving rise to the relevant Loss or claim first arising;
B. The limitation of liability above applies whether a claim is in contract, tort (including without limitation, negligence) equity or otherwise and even if the Licensor has been notified of the possibility of such Loss or damage and the Licensee agrees that the the Licensor’s liability, if any, to the Licensee at law will be reduced by the extent, if any, to which the Licensee contributed to the Loss;
C. The Licensor is not responsible for any Loss or claim that arises in connection with:
- the failure of any equipment or software including any browser or server software operated by a third-party;
- a computer virus entering the Licensee’s system as a result of the Product(s); or
- any damage to equipment, hardware, programs or data, whether stored or used with the Product(s) or otherwise, including the costs of repairing such equipment or hardware and the costs of recovering such programs or data.
D. The Licensor will not be liable for any loss, or failure to provide the Product(s), which is caused by an unexpected delay or which arises as a result of the Licensor relying on any false, misleading or incomplete information or for any indirect or Consequential Loss;
F. The Licensee must indemnify the Licensor and each of its directors, officers, employees, agents, contractors and related bodies corporate (“Indemnified Parties”), and keep each of them indemnified, against any Claim made against an Indemnified Party or Loss suffered or incurred by an Indemnified Party which arises from or in respect of:
- any breach of law by the Licensee (or, if applicable, a sub-licensee) or any of the other Users including, but not limited to, breach of any applicable provisions of the AML/CTF Act;
- any negligent, or wilful acts or omission, theft, misconduct, dishonesty or fraud committed by the Licensee (including its officers, directors, employees, agents, representatives, delegates or contractors, or any sub-licensee).
3.11 Intellectual Property Rights
A. The Licensor owns all rights (including Intellectual Property Rights), title and interest in the Software, Licensor Content and Documentation, including, but not limited to, any amendments, improvements, developments, upgrades modifications or updates resulting from the Licensee’s use of the Product(s);
B. If the Licensee develops any Licensee Content in the Licensor hosted Products, all right, title and interest in any Intellectual Property Rights subsisting in that Licensee Content will automatically assign to the Licensor;
C. The Licensee will do all acts, matters and things required by the Licensor to give effect to clause 3.11;
D. To the extent any Intellectual Property was owned by, vested in or acquired by any employees or contractors of the Licensee, any such employees or contractors have assigned all right, title and interest in such Intellectual Property to the Licensee upon its creation;
E. It has obtained from each of the employees and contractors, a consent for it to act in any way which may otherwise infringe such employee’s or contractor’s Moral Rights in the Intellectual Property;
F. It will procure each such employee and contractor to execute further documentation as may be required by the Licensor to perfect the consents and undertakings that the Licensee has given to the Licensor regarding such employees and contractor’s Moral Rights in the Intellectual Property; and
G. The licence granted by this Agreement does not transfer, assign or alter any Intellectual Property Rights in the Software.
A. Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how, business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure.
B. Any performance information relating to the Software shall be deemed Confidential Information of the Licensor without any marking or further designation. Except as expressly authorised herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information.
C. The Receiving Party’s non-disclosure obligation shall not apply to information which the Receiving Party can document:
- was rightfully in its possession or known to it prior to receipt of the Confidential Information;
- is or has become public knowledge through no fault of the Receiving Party;
- is rightfully obtained by the Receiving Party from a third-party without breach of any confidentiality obligation; or
- is independently developed by employees of the Receiving Party who had no access to such information.
D. The Receiving Party may also disclose Confidential Information if so, required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party);
E. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. For the avoidance of doubt, this Section shall not operate as a separate warranty with respect to the operation of the Software;
F. This clause survives the expiry or termination of the License Terms.
3.13 Data Security
A. The Licensor will take commercially reasonable efforts to provide a secure environment for receipt and transmission of information. However, since use of the Hosted Version depends, in part, on third-party suppliers (e.g. telecommunications carriers, data warehouse providers) whose performance is outside of the Licensor’s control, the Licensor disclaims all liability for damages arising from the failure of the Hosted Version due to such third-parties’ performance.
B. The Licensor is not liable for damages arising from the disclosure or dissemination of information during transmission to or from the Hosted Version. Notwithstanding anything to the contrary express or implied, the Licensor will have no responsibility for delays or errors related to the Hosted Version caused by systems or components outside of the Licensor’s network, including but not limited to your hardware, software and/or networking systems, telecommunications systems, Internet access, telephone access lines and telephone and communications equipment.
C. To the extent that the Product(s) include any Information that, alone or in combination with other information, can be used to identify, locate or contact an individual, the Licensee agrees that it must:
- respond promptly and properly to any enquiry from the Licensor relating to the processing of personal data and will cooperate in good faith with the Licensor and any data protection authority concerning all such enquiries within a reasonable time;
- implement and maintain appropriate technical and organisational measures to protect personal against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, and such measures provide a level of security appropriate to the risk represented by the processing and the nature of that personal data;
- process that personal in accordance with applicable data protection and privacy laws and regulations binding on you; and
- promptly notify the Licensor in the event of a dispute or claim brought by an individual or data protection authority against you concerning the processing of personal data.
3.15 Being named as a client of the Licensor
A. The Licensee consents to the Licensor using the Licensee’s company name and reproducing the Licensee’s corporate logo on its corporate website and/or in promotional material for the Software, provided such use is only to indicate that the Licensee is or was a customer of the Licensor.
3.16 Dispute Resolution
A. Before a party seeks any external dispute resolution in relation to a dispute arising in connection with this Agreement, it will, use reasonable endeavours to resolve the dispute with the other party prior to commencing proceedings.
B. If the parties are not able to resolve a dispute in accordance with clause 1 within 30 Business Days, the parties will endeavour to resolve the dispute by mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation.
- The mediation will be conducted in accordance with the ACDC Guidelines for Commercial Mediation (Guidelines) that are in operation at the time that the dispute is referred to the ACDC.
- The Guidelines set out the procedures to be adopted, the process for selection of the mediator and the costs involved.
- The terms of the Guidelines are hereby deemed incorporated into this Agreement.
C. Despite the existence of a dispute between the parties with respect to this Agreement, each party will continue to comply with its obligations under this Agreement.
D. Nothing in this clause prevents a party from commencing proceedings for interlocutory relief.
E. This clause will survive termination of this Agreement for 6 months.
A. The agreement will automatically terminate at the end of the term unless the licensee renews the term for a further 12-months. The licensee may terminate the agreement with 45 days written notice. In terminating this Agreement, the licensee is not entitled to a refund of any fees unless the the Licensor has breached the terms of this Agreement;
C. The Licensor may terminate this Agreement by giving 45 days’ written notice to the Licensee. the Licensor, in its sole discretion (acting reasonably), will determine whether any prepaid Fees will be refunded to the Licensee;
D. Upon the termination of this Agreement for any reason, the Licensee will pay all outstanding Fees and any reasonable costs incurred by the Licensor as a result of the termination (including third-party cancellation fees and administrative costs).Without limiting any remedies available to the Licensor under this Agreement or at Law, the Licensor may, in its sole discretion, immediately suspend access to and use of the Software and/or terminate this Agreement with immediate effect by written notice to the Licensee if:
- there is a change of circumstances beyond the Licensor’s control which prevents the Licensor from providing the Software to the Licensee;
- the Licensee fails to remedy a breach within 7 days of a notice from the Licensor requesting the Licensee to do so; or
- the Fees are outstanding for more than 7 days past the due date.
E. If either party becomes or is declared insolvent, bankrupt or has an administrator appointed, the other party may, by giving written notice thereof, immediately suspend all performance hereunder and/or terminate this Agreement as of the date specified in the notice. In the event of termination due to the Licensee’s insolvency, the Licensor will be entitled to make a claim in respect of the balance of any unpaid Fees for the Term.
3.18 Force Majeure
A. If a delay or failure of a party to perform its obligations is caused by, or anticipated because of a Force Majeure Event, the performance of that party’s obligations will be suspended.
B. If a delay or failure by a party to perform its obligations because of a Force Majeure Event exceeds 60 days, either party may immediately terminate this Agreement by giving written notice to the other party.
3.19 Assignment and Subcontracting
B. The Licensee will not assign, transfer or subcontract any rights, obligations or liabilities under this Agreement to any other person, except with written consent from the Licensor, such consent can be withheld in the Licensor’s sole discretion.
3.20 General Terms
A. The relationship between the Licensor and the Licensee will be that of a service provider and customer. Nothing in this Agreement will create an agency, partnership or joint venture between the parties and nothing in this Agreement gives one party the authority to enter into any agreement, or to make any representation or warranty, on behalf of the other party or otherwise bind the other party in any way. No party will, in any circumstances, hold itself out to have such authority without a specific power of attorney from the other party for the relevant purpose.
B. This Agreement, including any Schedules to this Agreement, contains the entire understanding between the parties concerning the subject matter of the Agreement and supersedes all prior communications.
C. 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.
D. This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original, but all of which together will be deemed to be one and the same agreement. Online acceptance or a signed copy of this Agreement, including a PDF copy, delivered by facsimile, email or other means of electronic transmission will be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
The Licensee acknowledges and agrees that:
A. The Licensor retains the sole discretion regarding the features, functions and other benefits of the Product(s) and may at any time vary, modify or suspend the features, functions and other benefits available in respect of the Product(s);
B. All Licensor Content created by or in connection with the Product(s) is provided to simplify the law for ease of comprehension of the Licensee only and does not constitute professional advice or recommendations;
C. The Licensor retains the sole discretion regarding the Licensor Content which will be made available through the Product(s) and the format in which such Licensor Content will be made available;
D. The Licensor may at any time vary, modify or remove any Licensor Content;
E. The Product(s), and all Licensor Content, must only be used by the Licensee for the Permitted Purpose and must not be commercially exploited by the Licensee;
F. Errors or omissions can occur in the Licensor Content as a consequence of ongoing changes to compliance obligations and failure by the User to provide all relevant information;
G. Links to other web sites are provided for the User’s convenience and do not constitute endorsement of material at those sites, or any associated organisation, product or service;
H. The Licensor Content is provided for general information purposes only before any action or decision is taken on the basis of any Licensor Content, the Licensee should obtain appropriate independent professional advice;
I. The use of the Site may require additional computer hardware, Internet access and certain software any or all of which may require the Licensee to make additional expenditures or pay fees. As use of the Site involves hardware, software, and Internet access, Licensees ability to use the Product(s) may be affected by the performance of these factors. The Licensee acknowledges and agrees that system requirements may be changed from time to time and it is the responsibility of the Licensee to ensure that any changes necessary to enable the Site to operate effectively and efficiently are made;
J. The Licensor accepts no responsibility and provides no warranties with respect to, or in connection with, the Licensor Content;
K. It’s use of the Licensor Content is at its own risk;
L. The Licensor is not liable for any Loss incurred by the Licensee arising from, or in connection with, the use of the Licensor Content;
M. Unless agreed by the parties in writing, the Licensor does not have any obligations to provide any services to the Licensee with respect to, and in connection with, the Product(s) and Licensor Content including (without limitation) development or customisation services, technical support, training or maintenance services;
N. The Licensor Content, and all other information generated by or contained in the Product(s), is intended to provide a general overview of such matters and does not constitute statements of fact or amount to any legal or other professional advice. It is not intended to be replace the application, or compliance with, AML/CTF legislation, rules or guidance or obtaining independent legal advice on these matters;
O. The Product(s) do not constitute nor should it be relied on as legal or other professional advice or opinions and the Licensor accepts no liability for any Loss suffered as a result of reliance on the information contained within the Product(s);
P. The Licensor recommends that the Licensee obtains independent professional advice in relation to their regulatory compliance obligations;
R. It must not use any automated system for the selection or downloading of Licensor Content;
S. Must not attempt to or actually disrupt, impair or interfere with, alter or modify the Website, Product(s) or Licensor Content or any information, data or materials posted and/or displayed by the Licensor in connection with the Product(s);
T. Must not act in a way that affects or reflects negatively on the Licensor, the Product(s) or the Licensor Content; and
U. Must not collect or attempt to collect any information from others in connection with or through the Product(s), including, without limitation, personally identifiable information, without such party’s prior consent.
- Additional User means a person who has been nominated by the Licensee during the Term.
- Affiliates means related bodies corporate, as that term is defined in the Corporations Act 2001 (Cth), and Affiliate has a corresponding meaning.
- Agreement means this Licence Agreement.
- Amended License Terms means whenever the Licensor changes, adds or removes part or any part of the License Terms.
- AML Accelerate (or AMLA) means the online money laundering risk assessment and program manual product, and all associated websites, products and services.
- AML/CTF means Anti-Money Laundering/Counter Terrorism Financing.
- AML/CTF Act means the Australian Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth).
- CEIP Information means information arising from or as a result of the Licensee’s use of the Software and/or Services including but not limited to:
- Configuration Data – Technical data about how the Licensee has configured and uses the Software and related environment information such as technical data relating to the devices used to access the Software;
- Feature Usage Data – data about how the Licensee uses the Software, including how the features and functionality are used (or not used as the case may be) and any customisation, additional features or changes requested by the Licensee;
- Performance Data – data about the performance of the Software including response times for user interfaces, links and functionality; and
- Input Data – data and information entered into the Software by the Licensee.
- Computer means a single server, workstation or terminal within the Licensee’s IT Infrastructure.
- Confidential Information means any information communicated by either party to the other party in the context of their business relationship (whether documented now or in the future or otherwise) and includes:
- any information relating to an identified or identifiable individual (including, without limitation, name, postal address, telephone number, date of birth, government identity card number, driver’s license number, or any other unique identifier or one or more factors specific to the individual’s physical, physiological, mental, economic or social identity, and whether confidential customer data or otherwise) provided by either party to the other (“Personal Information”);
- proprietary or trade secret information, including, without limitation, the identity of the Licensor’s data sources and vendors, and similar information which is clearly labelled or designated in writing as confidential by the disclosing party, or ought to have been known to be confidential;
- the Software and information regarding the Software, but does not include information which is in, or comes into, the public domain other than by a breach of this Agreement, or which is independently known to the other party as evidenced by its written record;
- information regarding use of products or services pursuant to any agreements between the parties; and
- the provisions of any agreements between the parties.
However, except with respect to Personal Information, does not include information that is generally known to the public, information received in good faith from a third-party not subject to a confidential obligation to the source, or information that was independently developed by the recipient without the developing persons having access to the Confidential Information.
- Consequential Loss means loss beyond the normal measure of damages and includes indirect loss, loss of revenue, loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain, lost opportunities, including opportunities to enter into arrangements with third-parties, loss of use, loss of or damage to data, cost of capital or costs of substitute goods, facilities or services.
- Disclosing Party means the party that is providing Confidential Information to the other party.
- Documentation means any documentation provided to the Licensee by the Licensor under the terms of this Agreement in relation to the Software.
- End User means, as the context requires, any organisation (Licensee) that uses the Product or any individual that uses the Product in their personal capacity and has the same meaning as Registered User.
- End User License Agreement means the Terms and Conditions that Licensee’s must agree to to use the Product(s) and Site(s).
- EzyKYC means the online Know Your Customer (KYC) remediation/refresh product, and all associated websites, products and services.
- Indemnified Parties means the Licensor and each of its directors, officers, employees, agents, contractors and related bodies corporate (“Indemnified Parties”
- License Terms means General Terms, Product Trial Terms and End User License Agreement.
- Licensee Content means: (1) any information, data, text, software, code, scripts, music, sound, photos, graphics, videos, messages, tags, interactive features, or other materials that you post, upload, share, submit, or otherwise provide in any manner to the services and (2) any other materials, content, or data you provide to the Licensor or use with the Site.
- Licensor has the meaning as described in General Terms, section 1.1.
- Licensor Content has the same meaning as Intellectual Property.
- Fee/Fees mean the fees, expenses of other sums payable by the Licensee for access and use of the Products (as applicable).
- Force Majeure Event means any act, event or cause, including earthquakes, cyclones, floods, fires, lightning, 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, and dispositions or orders of governmental authority which is beyond the reasonable control of that party.
- Government Agency means any governmental, semi-governmental, administrative, fiscal, judicial or quasi-judicial body, department, commission, authority, tribunal, agency or entity.
- GST means the tax imposed by the GST Act and the related imposition Acts of the Commonwealth of Australia.
- GST Act means the A New Tax System (Goods and Services Tax) Act 1999, as amended from time to time.
- Health Check means the health check product, and all associated websites, products and services.
- Hosted Version means the version of the Software to which the Licensee is granted certain access and usage rights, which is installed on and accessed from Third Party Supplier’s computer systems via the Internet.
- Improvements means any developments, improvements, enhancements, upgrades, new functionality, new releases, changes, alterations, innovations, extensions, advances, adaptations of existing works or additions of any nature made to the Software and, where relevant, Documentation (howsoever arising).
- Insolvency Event means in relation to a body corporate, a liquidation or winding up, the appointment of a controller, administrator, receiver, manager or similar insolvency administrator to a party or any substantial part of its assets or the entering into a scheme or arrangement with creditors, or in relation to an individual, becoming bankrupt or entering into a scheme or arrangement with creditors or, in relation to a body corporate or an individual, the occurrence of any event that has a substantially similar effect to any of the above events.
- Initial Term means 12 months.
- Intellectual Property means all intellectual property held by the Licensor and all associated Intellectual Property Rights. This includes but is not limited to; risk assessment methodologies, risk models (risk groups, categories, factors and indicators), control models (control test libraries), program and operating manuals, customer due diligence standards, obligation registers, audit checklists, help centre materials (getting started guides, video tutorials, FAQs etc.), workflow, dashboards and reports and reference data contained within the Products.
- Intellectual Property Rights means all present and future intellectual, industrial or proprietary rights conferred by statute, at common law or in equity anywhere in the world, whether issued or pending, registered or unregistered, including all forms of copyright, patents, trademarks, designs, trade secrets, know-how, confidential information and circuit layouts, or other intellectual property rights, whenever created and includes any rights to registration of such rights with respect to, or in connection with, the Intellectual Property.
- Law means any statute, law, regulation, ordinance, rule, judgment, order, decree, by-law, approval, resolution, order, directive, guideline, policy or other similar form of decision of, or determination by, or any interpretation or adjudication, in each case, by any concerned Government Agency having jurisdiction over the matter in question in Australia (as amended or replaced from time to time) as may be applicable to the Software or the subject matter of this Agreement, having the force of law.
- Licence means a licence to use the Software for the Term for the Permitted Purpose in accordance with this Agreement.
- License Terms means General Terms, Product Trial Terms and End User License Agreement Terms.
- Licensee’s IT Infrastructure means the computer hardware, software, network resources, framework, data centres, facilities, services and related equipment required for the existence, operation, testing and management of an enterprise IT environment by or for the Licensee.
- Login Details means the user name, password and other login details used by the Registered User or any End User from time to time for the purpose of accessing the Product(s).
- Loss means any loss, liability, cost, claim, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and whether direct loss or Consequential Loss.
- Moral Rights means the right of integrity of authorship, the right of attribution of authorship and the right not to have authorship falsely attributed, more particularly as conferred by the Copyright Act 1968(Cth), and rights of a similar nature anywhere in the world whether existing presently or which may in the future come into existence.
- New Products means all new content, products or services offered by the Licensor.
- Permitted Purpose means the purpose for which the Software is designed.
- Personal Information means such information or an opinion (including information or an opinion forming part of a database) whether true or not and whether in a material form or not about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion (or such other meaning that may be given to the term in the Privacy Act).
- Privacy Laws means Privacy Act (1988) (Cth), and any other legislation, principles, industry codes and policies relating to the handling of Personal Information.
- Product means, as the context requires, any of the products and services accessible from the Website, including but not limited to the following products and services:- Health Check; Risk Assessment; AML Accelerate; or ezyKYC.
- Product Trial means a trial / proof of concept of the Product(s).
- Product Trial Terms means the terms the Licensee consents to when engaging in a Product Trial.
- Receiving Party means the party that is receiving Confidential Information from the other party.
- Risk Assessment means the risk assessment product, and all associated websites, products and services.
- Registered User means a person who has been nominated by the Licensee.
- Software means the the Licensor software, including the computer program or data in executable code form, together with any technical information and documentation necessary for the use of the program or data, including any source code, object code, updates, adaptations, modifications, new releases and new versions developed by the Licensor from time to time.
- Start Date means the date the Software was purchased and the license was automatically granted, or the date at which the access to the Software was granted by the Licensor.
- Term means the Initial Term and any renewal term.
- Third Party Supplier means a supplier that is unrelated to the Licensor that supplies goods and/or services to or on behalf of the Licensor, and includes the hosting provider that owns and/or operates the cloud computing platform, system and infrastructure that is utilised for the Hosted Version.
- Trial Period means the time period agreed for the Licensee and Registered Users of the Licensee to perform an evaluation of the Product or Products.
- User means the Registered User and, if applicable, the employees, officers, agents and independent contractors of the Licensee that use the Product(s).
- Website means the website located at http://www.arctic-intelligence.com