Terms of Use
This agreement sets out the terms and conditions in relation to our provision of the MoneyMind Profile software (“Software”) and services supplied with the Software (“Services”) to you. Please read them carefully. The Software is licensed, not sold, to you for use in accordance with this agreement (“Agreement”).
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This Agreement is between MoneyMind Profile Pty Ltd ACN 672 152 073 and "you". “You” means you individually, the entity or the employer you represent in accepting this Agreement.
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This Agreement commences on the day you accept this Agreement by completing the Sign-up Registration (“Commencement Date”), and continues until terminated by either party in accordance with this Agreement (“Term”).
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This Agreement has a minimum Term of 12 Months and is then automatically renewed for additional 12 Month periods unless you provide us with at least 30 days' notice in writing prior to the current term anniversary.
There is a 14 Day Cooling Off Period. If during the first 14 days after signing up you decide for whatever reason that you do not wish to continue using the software then notwithstanding anything in this agreement to the contrary, you can terminate this agreement by providing written notice to us and you will have no ongoing liability under this agreement.
1. Grant of Licence
1.1 Subject to the terms and conditions of the Agreement, we grant to you a revocable, non-exclusive, non-transferable licence to use the Software for the Term.
1.2 You may only use the Software for your own use, and only for your own internal data processing operations. You must not transfer or sublicense the Software to any third party, in whole or in part, in any form, whether modified or unmodified.
1.3 The number of copies of the Software that you may use under this Agreement is based on the number of individual user licences you have nominated on the relevant "Subscription Plan" from the "My Account" portal or in your formal Master Services Agreement. You must not use any more copies of the Software without our prior written permission. The nominated individual user's login credentials must only be used by the individual users to whom such credentials are issued. Users shall not be entitled to share their login credentials with any other user.
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1.4 You must ensure that your users securely maintain their login credentials.
2. Services
2.1 We will provide the following Services in accordance with this Agreement:
(a) hosting services that vary based on the Subscription Plan you have purchased and the number of individual user licences you have purchased, as set out in the My Account portal;
(b) the support services described in clause 14 below.
3.0 Exclusions
3.1 You acknowledge and agree that technology systems are not free of faults, and downtime may occur. The Software and the Services may become unavailable or we may suspend access to the Software or the Services due to planned or unplanned maintenance or circumstances beyond our reasonable control or to comply with third party requirements. Subject to the Non-excludable Conditions set out in clause 16, we do not warrant that the Software or the Services will be free of interruption, delays, errors, defects or faults nor are we liable under such circumstances other than as expressly set out in this Agreement.
3.2 The Services do not include:
(a) correction of errors, defects or faults caused by you or a third party, including the failure by you or a third party to:
(i) maintain the operating environment in which the Software operates; or
(ii) use the Software in accordance with any specifications issued by us;
(b) training;
(c) equipment or other software maintenance and rectification of errors caused by equipment or other software faults;
(d) diagnosis or rectification of faults not associated with the Software;
(e) correction of errors arising directly or indirectly out of your failure to comply with this Agreement;
(f) resolution of installation or implementation issues, technical architecture issues and other customer-specific issues; or
3.3 You must use the Software on computer systems, servers, or networks that meet the type and specifications recommended by us, to enable the Software to function properly. We are not responsible for, and make no warranties about, the proper operation of the Software if you are operating the Software on systems which do not meet the recommended specifications.
4. Payment
4.1 From the Commencement Date you must pay us the fees set out in the Sign-Up Registration, My Account portal or as otherwise agreed in writing between us ("Fees"). The Fees are direct debited monthly in advance from your credit card. You must provide the relevant details and authorisations to us and we are not required to licence the Software or provide the Services until you do so. You must also pay to us any other fees or charges for which you are liable to us under this Agreement when we advise you that they are due and payable.
4.2 We allow an increase or decrease in the number of user licenses Subscription Plans in the My Account portal. We will adjust the Fees payable, and any new Fees will be applied following the month the request was made and accepted with a pro-rata adjustment where necessary in accordance with the anniversary of the Commencement Date.
4.3 If any direct debits are not successfully processed, we may in our sole discretion apply 14-day payment terms to rectify direct debit payments by you.
4.4 If any outstanding payments fall outside your direct debit payment due date, you will be in breach of this Agreement. We may on 14 days written notice:
(a) suspend your access to the Software and Services;
(b) charge you interest of 7.5% p.a. on any outstanding amounts; and/or
(c) refer any outstanding amounts to a debt collection agency
(d) terminate this Agreement
4.5 All fees are subject to annual indexation on the anniversary of the Commencement Date, in line with the Consumer Price Index – All Groups published by the Australian Bureau of Statistics each year.
5. Your Use of the Software and Services
5.1 When you use the Software and/or the Services to store content on our servers (or servers we make available to you in relation to the provision of the Software or Services), upload content onto a website or create a marketing campaign, including without limitation data, text, photographs, videos or any other material (“Material”), you warrant that any Material uploaded by you, your employees or agents, or on your behalf:
(a) is owned by you or you have the necessary rights or consents to upload it;
(b) does not infringe the intellectual property rights, privacy rights, or any other rights of any person anywhere in the world;
(c) to the extent the Material contains photographic images or video footage of people, you have obtained necessary and valid releases so that the Material can be published by you;
(d) is not to your knowledge the subject of any potential or actual claim, demand, action or legal proceeding asserting that your use or possession of the Material infringes the intellectual property rights or confidentiality rights of any third party;
(e) does not contain anything that violates any law, is offensive, defamatory, slanderous, libellous, violent, sexually explicit and/or exploitative;
(f) is not misleading or deceptive, or capable of misleading or deceiving; and
(g) does not contain any viruses or malware.
5.2 You are solely responsible for:
(a) any third-party royalties payable in respect of the exploitation of the Material; and
(b) support and maintenance of the Material and to address any complaints about the Material.
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5.3 You agree that the Software is only a tool used to perform internal functions and services to your clients. You remain liable for and indemnify us with respect to any loss or claim arising as a result of the provision of Financial Services to your clients.
5.4 For the purposes of this Agreement, Financial Services means a 'financial service' as that term is defined in the Corporations Act 2001 (Cth) (“Corporations Act”).
6. Changes to this Agreement
6.1 At any time we may amend this Agreement, or change the fees, on 30 days’ notice period via email or notification on our website advising amendments to this Agreement and/or the Fees. If you do not agree to the changes you must advise us in writing within 30 days of our notification, in which case this Agreement will terminate and clauses 15.3 and 15.6 will apply. If you do not advise us in accordance with this clause, or continue to use the Software or the Services 30 days after such notification, you agree that you are deemed to have consented to the changes.
7. Intellectual Property
7.1 You or your licensors retain ownership of all intellectual property rights in any Material that you upload using the Software or the Services. You remain liable for and indemnify us with respect to any loss or claim arising as a result of the Materials.
7.2 You grant to us, our employees, contractors, officers and affiliates an irrevocable, non-exclusive licence to use your Material to provide, maintain and improve the Services and the Software.
7.3 We own, or have the necessary grants and licences to use, all current and future intellectual property rights in the Software and the Services, including ideas, future development, open source code, updates, modifications, adaptions, enhancements or derivatives of the Software and /or Services. Nothing in this Agreement affects our ownership or rights in relation to the Software and/or Services.
8. Third Party Materials
8.1 You acknowledge that we use third-party material within the Software and, subject to any Non-excludable Conditions set out in clause 16, we have no liability for inability or delay to supply or failures of these materials. We may amend the third party suppliers from time to time in our sole discretion.
8.2 You acknowledge that we have prepared certain templates which are included in the Software. The information and content (including without limitation any financial information or advice) in the templates is for information purposes only, is intended to apply in Australia only and subject to any Non-excludable Conditions (set out in clause 16) we do not warrant its accuracy or reliability. You may not rely on it for providing or receiving financial or other advice. You are solely responsible for your use of the templates.
9. Data Aggregation
9.1 You acknowledge that the Services are enhanced through the incorporation of aggregated data from all users of the service and agree that we may incorporate data from your Material in a non-confidential, de-identified and aggregated form into databases containing the data of multiple clients and such databases and the aggregated data contained with them (both being “Aggregated Data”) will be owned by us.
9.2 We agree that we must ensure that the Aggregated Data is no longer Confidential Information of you or capable of identifying you or your customers in any way whether directly or indirectly, such that a person with a reasonable level of industry knowledge would not be able to determine whether any Aggregated Data originated from, or is specific to you or any other user of the Services.
9.3 We also agree that we must keep all such data confidential and comply with all privacy obligations that may relate to that data during the aggregation process.
10. Restrictions
10.1 You must not:
(a) disassemble, reverse engineer, re-engineer, decompile, modify, or translate the Software or the Services (except as permitted by non-excludable law);
(b) rent, transfer, outsource the use of or grant any rights in or to the Software and/or Services in any form to any other party, including without limitation for the purposes of processing data, providing reports, commercial time-sharing, rental, or service bureau use; or
(c) permit or enable the Software and/or Services to be used by such number of people that exceeds the number of user licences agreed in the relevant Order Form.
10.2 You must:
(a) ensure that the Software is protected at all times from unauthorised access or use and from misuse, damage and destruction;
(b) use any third-party materials, including information supplied on our behalf, only for your own information and agree that you will only display your own Material on a tailored individual basis to a client or potential client who seeks personal investment advice;
(c) not remove any disclaimers that appear within the Software;
(d) include appropriate disclaimers regarding the use, reliability, completeness and accuracy of information when incorporating it into templates, reports or advice for your clients; and
(e) notify us immediately if you become aware of any unauthorised use of the Software or Services.
11. Fair Use Policy
11.1 Services may be provided to you for uploading, storing and managing your Material. While no specific limits are applied to the number or size of the items uploaded or stored, we reserve the right to apply limits at any time where we believe in our sole discretion the number or size of the items uploaded or stored or the volume of notifications sent are deemed by us in our sole discretion to be unfair.
11.2 In the event that a limit is applied, you will be required to reduce the number or size of the items uploaded or stored or the volume of notifications sent to the applied limit. If you do not comply with any request made under this clause, we may remove any or all of your data on 30 days written notice.
12. Taxation
12.1 All amounts payable or other consideration provided in respect of supplies made in relation to this Agreement are exclusive of GST (if any). Where a supply is a taxable supply, all amounts payable or other consideration provided must be increased by the amount of GST payable in relation to the supply.
12.2 All GST must be paid at the time any payment to which it relates is payable (provided a tax invoice has been issued for the supply). Where any GST payable is not referable to an actual payment, then it must be paid within ten (10) days of a tax invoice being issued by the party making the supply.
12.3 Each party is responsible for all taxes or levies imposed on it under applicable laws, regulations and tax treaties as a result of any contract and any payments hereunder.
13. Confidential Information and Privacy
13.1 For the purposes of this clause, “Confidential Information” means the confidential information of a party which relates to the subject matter of this Agreement and includes without limitation:
(a) any information which is marked as confidential or due to its nature or character a reasonable person would treat as confidential;
(b) the design, specification and content of the Software and the Services;
(c) personnel, polices, software releases, user testing, proposals, clientele, suppliers or business strategies; and
(d) the terms upon which the Software is being supplied and supported pursuant to this Agreement.
13.2 Except in relation to clause 13.3, a party must not, without the prior written approval of the other party, disclose the other party’s Confidential Information.
13.3 A party may disclose the other party’s Confidential Information:
(a) to its officers, contractors, agents, employees, related companies, solicitors, auditors, insurers and accountants who require information for the purpose of this Agreement, provided that the parties to which the Confidential Information is disclosed agree to keep the Confidential Information confidential on substantially the same terms as this clause 13; or
(b) if required to disclose the Confidential Information by law or the rules of any Stock Exchange.
13.4 We agree that we will comply with all relevant privacy obligations in connection with all Material provided to us by you. A copy of our Privacy Policy forms part of this agreement.
13.5 You agree and acknowledge that:
(a) all Personal Information that relates to a third party that is provided to us under the Services, has provided consent to supply their Personal Information, and that you are authorised to pertain that Personal Information;
(b) you have provided that third party with all relevant notices and have obtained all consents required under Australian privacy laws;
(c) we exclude any liability for any sensitive information (as per the term described in Australian privacy laws (Sensitive Information)) inputed into the Software under our Services, you do so:
(i) at your own risk;
(ii) in accordance with your privacy policy
14. Support
14.1 We agree to provide you the following support for the Software:
a)  Support will be available between the hours of 9am to 5pm AEST, Monday to Friday (excluding NSW and national public holidays);
(b) Queries can be raised to the Help Desk via online chat or email support@moneymindprofile.com;
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(c) A MoneyMind Profile Help Desk Support Specialist will endeavour to resolve your uery. If the query requires further investigation, the Support Specialist will provide a status update via chat, email or phone.
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(d) A self-service knowledgebase of common Queries and FAQs is also available at www.moneymindprofile.com/support.
(e) Escalated issues are categorised into the below Priority ratings.
Highest
Resolution of the issue will take place as a matter of urgency. We will provide an update to you at least once every 2 to 4 business hours.
High
Resolution of the issue will take place as a matter of urgency. We will provide an update to you at least once every half to 1 business day.
Medium
These are issues where workarounds are available that have minimal impact on your business. We will update you on the progress of our investigation at least once every 5-10 business days. Once our investigation has concluded, the resolution will be added to our list of improvements to be considered for future releases.
Low
These are issues that are minor or cosmetic in nature, that do not require workarounds and have minimal impact to your business. We will update you on the progress of our investigation at least once a month. Once our investigation has concluded, the resolution will be added to our list of improvements to be considered for future releases.
14.2 When we provide you with help desk support services, we may need to record your screen and/or have access to your Material. You consent to us making such recordings and having such access. We agree that we will not use any data created, accessed or collected in the provision of the support services for any purpose other than providing such services and any copies of such material created during the course of providing the support services will be deleted once the support request has been satisfied.
15. Term and Termination
15.1 This Agreement begins on the Commencement Date and continues until terminated in accordance with this Agreement.
15.2 The Term of this Agreement is initially 12 months. It will automatically be extended by additional 12 month periods unless you notify us in writing not less than 30 days before the expiry of the current period that you do not wish to extend this Agreement.
15.3 We may terminate this Agreement immediately if you breach any provision of this Agreement and you fail to remedy the breach within 14 days after receiving written notice of the breach.
15.4 Upon termination of this Agreement you must immediately cease using the Software (including any templates), and return or destroy any Confidential Information, documentation and templates, and provide us with written confirmation of the return or destruction.
15.5 Upon termination of this Agreement for any reason you must immediately pay all outstanding Fees and all Fees payable until the end of the current 12 month Term period from the Commencement Date. These fees will be payable if you cease to use the Software during any 12 month Term.
15.6 You acknowledge and agree that:
30 days after the date of termination we may permanently delete all copies of any of your Material that we are hosting. If you would like a copy of the Material, you must export or download that Material before you terminate the Agreement.
If you are affiliated with a Master Service Agreement in connection with the Services, we may provide a copy of the Materials to that entity upon termination upon your request.
15.7 Termination of this Agreement will not affect any accrued rights or remedies that a party may have.
15.8 Clauses 7, 8, 9, 11, 12, 15, 16, 17 and 19 survive termination of this Agreement.
16. Liability
16.1 For the purposes of this clause, “Non-excludable Condition” means an implied condition, warranty or guarantee the exclusion of which from a contract would contravene any statute (including the Competition and Consumer Act 2010 (Cth)) or cause any part of this Agreement to be void.
16.2 Except for any express warranty under this Agreement or any Non-excludable Condition, we exclude any warranties which are express or implied by any legislation, the common law, or otherwise.
16.3 Except for liability in relation to breach of any Non-excludable Condition, our total liability to you in contract, including for one or more breaches of any express term or terms of this Agreement (in aggregate), tort (including in negligence), statute, or otherwise, is limited to the total amount of fees paid to us by you in the 6 months before the incident giving rise to the liability occurred.
16.4 Our total liability to you for a breach of any Non-excludable Condition (other than a Non-excludable Condition that by law cannot be limited) is limited, at our option to any one of resupplying, replacing or repairing, or paying the cost of resupplying, replacing or repairing goods in respect of which the breach occurred, or supplying again or paying the cost of supplying again, services in respect of which the breach occurred.
16.5 Except for liability in relation to breach of any Non-excludable Condition we exclude all liability to you for lost profits, lost revenue, lost savings, lost business, loss of opportunity and any consequential or indirect loss arising out of, or in connection with, the Software, the Services, any claims by any third person, or this Agreement, even if we knew that loss was possible or the loss was otherwise foreseeable.
17. Indemnity
17.1 To the extent permitted by law, you indemnify and hold harmless, us, our directors, officers, employees, contractors and agents from any and all claims, losses, liabilities, damages, taxes, expenses and costs, including without limitation, legal fees and court costs (collectively, "Losses"), arising from or related to your use of the Software or the Services, including but not limited to any of the following:
(a) your breach of any obligation, representation or warranty in this Agreement;
(b) your breach of any third-party right;
(c) any claims that your Material or the distribution, sale, offer for sale, use or importation of your Material, violates or infringes any third-party intellectual property or proprietary rights, or has caused damage to a third party;
(d) our use of your Material (as modified, adapted or enhanced by you where applicable), related trademarks and logos, or images and other materials that you provide to us under this Agreement; and
18. Notices
18.1 Any notice given under this Agreement must be:
(a) in writing and be signed by a person duly authorised by the sender; and
(b) addressed to the intended recipient at the address, facsimile number or email address notified by a recipient from time to time or otherwise last notified by the intended recipient to the sender.
18.2 A notice given under this Agreement will be taken to have been given or made:
(a) in the case of delivery in person or to the recipient’s address, when delivered;
(b) in the case of prepaid post, three business days (or seven business days if posted to or from a place outside Australia) after posting;
(c) in the case of facsimile transmission, at the time of transmission, provided that following the transmission, the sender’s facsimile machine produces a transmission confirmation report, confirming successful transmission of the facsimile in its entirety;
(d) in the case of email, upon receipt by the sender of a successful delivery report.
18.3 If delivery or receipt occurs on a day on which business is not generally carried on in the place to which the notice is sent or is later than 5pm (local time) it will be taken to have been duly given or made at the commencement of business on the next day on which business is generally carried on in that place.
19. General
19.1 You must not assign, or attempt to assign, this Agreement or any right or obligation arising out of this Agreement, without our prior written consent, which approval we may withhold in our absolute discretion or give subject to satisfaction of one or more conditions.
19.2 You understand and agree that by entering into this Agreement, or otherwise by using the Software or the Services, no legal partnership or agency relationship is created between the parties. Neither you nor us is a partner, an agent, or has any authority to bind the other and you agree not to represent otherwise.
19.3 This Agreement constitutes the entire understanding between the parties with respect to its subject matter, and supersedes all prior agreements, discussions and understandings, express or implied, concerning such matters. This Agreement takes precedence over any additional or conflicting terms, which may be contained in your purchase order or our order acknowledgment forms.
19.4 This Agreement is governed by and construed in accordance with the laws of New South Wales, Australia, and each party submits to the non-exclusive jurisdiction of the courts of New South Wales.
19.5 We may sub-contract or outsource the performance of any part of this Agreement in our sole discretion.
19.6 No delay or failure to take action under this Agreement will constitute a waiver unless expressly waived in writing, signed by our duly authorized representative, and no single waiver will constitute a continuing or subsequent waiver.
19.7 If any provision is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
19.8 Any variation of this Agreement must be in writing and signed by each party.
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Effective Date: 13 August 2024