End User Subscription Agreement (EUSA)

Updated 23 May 2024

Important – read carefully: This end-user subscription agreement is a legal agreement between You and the Service Provider. By purchasing, installing, copying or otherwise using the Software, you agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, do not install, copy or use the Software. 

Interpretation
1.1 Single Business Entity means a sole body corporate, trust, incorporated association or other person or entity carrying on a trade or business pursuant to an Australian Business Number (ABN) or being otherwise identifiable by a unique number identifier; 

1.2 Confidential Information means information that is: 

(a) designated (including designated in this agreement) by the disclosing party as confidential; 

(b) confidential by its nature; 

(c) disclosed to the non-disclosing party or obtained by the non-disclosing party in circumstances importing an obligation of confidence; 

(d) contained in or concerning the Intellectual Property of a party; 

(e) information relating to the past, present and future business operations and affairs, systems, business processes and methods of a party (including but not limited to information concerning persons of the party and with whom the party deals); 

but does not include:
(a) information already known to the receiving party at the time of disclosure by the other party; or
(b) information in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this agreement;
and in the case of the Service Provider specifically includes the Software and the Documentation;
1.3 Control has the meaning given in section 50AA of the Corporations Act 2001 (Cth); 

1.4 Data Source means a third-party information source where the Subscriber holds an account from which Yodlee retrieves information, for example a bank, broker, lender or other financial service provider.
1.5 Documentation means all online, electronic or written information and instruction manuals regarding the use of the Software;
1.6 Download-Based Format means the downloadable version of the Software available online, or via CD, DVD, Blu-ray, and USB;
1.7 Force Majeure means any events or circumstances beyond the reasonable control of You and the Service Provider but only where such events or circumstances results in a party being unable to perform their obligations under this Agreement. Such circumstances will include but will not be limited to:
(a) acts of God, lightning strikes, earthquakes, floods, droughts, storms, tempests, mud slides, washaways, explosions, fires, landslides, cyclone, actions of the elements and any natural disaster; and
(b) acts of war, acts of public enemies, invasion, terrorism, hostilities, insurrection, martial law, civil disturbance, civil commotion, malicious damage, sabotage and revolution; 

(c) epidemic, pandemic or similar outbreak;
1.8 Harmful Code means any virus, disabling or malicious device or code, worm, trojan, time bomb or other harmful or destructive code;
1.9 Instance means a single copy of a set of files that make up the Software;
1.10 Intellectual Property means any and all intellectual property or intellectual property right including domain names, trade marks, trade mark applications, services marks, logos, business names, insignia, designs, systems, copyrights, Confidential Information, know-how, formula, inventions, innovations, patents, petty patents (or any of them), applications for any of the foregoing and other rights and property of a like nature whether registered or unregistered;
1.11 Subscription means the subscription for a licence to use any of the Software granted by the Service Provider to You pursuant to clause 3.1 of this Agreement;
1.12 Subscription Fee means the fees and expenses payable by You to the Service Provider in connection with the Subscription, which will be calculated in accordance with the fees set out on the Website (which may vary from time to time upon the Service Provider providing notice to You in accordance with clause 23.9) and notified to You by the Service Provider;
1.13 Subscription Payment Due Date has the definition set out in clause 6.1;
1.14 Subscription Data means the data, information, material or content You process, submit or upload using the Software;
1.15 Service Provider means Money Management Group Pty Ltd ACN 008 131 137 operating as Cashflow Manager of Level 5, 144 North Terrace, Adelaide SA 5000;
1.16 Moral Right means:
(a) a right of attribution of authorship;
(b) a right not to have authorship falsely attributed;
(c) a right of integrity of authorship; or
(d) a right of a similar nature;
which is conferred by statute, and which exists or comes to exist anywhere in the world;
1.17 Subscriber means the user or users of any of the Software via any subscription method or format that is authorised and registered by the Service Provider;
1.18 Subscriber Data means the Subscriber’s account information, account access information, registration information (which is provided by the Subscriber or otherwise received by Yodlee from the Service Provider or the Data Source) and includes the Subscription Data; 

1.19 Server means the computer system on which an Instance of the Software is or is to be loaded;
1.20 Software means any software developed by or on behalf of the Service Provider offered through the Website, as well as updates, modifications and patches to such software that the Service Provider makes available to You during the currency of this Agreement, and to be Subscribed, including but not limited to the Download-based Format;
1.21 Term means an initial period of 12 months which includes the Trial Period, unless otherwise agreed in writing by the Service Provider or unless this Agreement is terminated earlier in accordance with clause 16; 

1.22 Renewal Term means the period described in clause 5.4; 

1.23 Trial Period means a period of 30 days;
1.24 Website means the Internet site at the domain www.cashflow-manager.com.au and/or any other site operated by the Service Provider from time to time;
1.25 Yodlee means Yodlee, Inc., a Delaware corporation; and 

1.26 You means the Subscriber, and, where the context permits, a Registered User. Your has a corresponding meaning;
1.27 Registered User means a user (who is an employee or officer of You) nominated by You to be an authorised user of the Software in accordance with clause 4.1;  

1.28 Personnel means, in relation to a party, means the party’s officers, employees, agents, contractors, software developers, consultants and suppliers and includes an officer, employee, agent, software developers, contractor, consultant or supplier of an Associated Entity of that party; 

1.29 Associated Entity has the meaning given in section 50AAA of the Corporations Act 2001 (Cth); 

1.30 Loss means any loss, damage, Claim, liability, charge, cost, expense or obligation of any kind (whether actual, prospective or contingent and inclusive of legal costs and expenses of whatsoever nature or description) however and whenever arising and includes amounts which, for the time being, are not ascertained or ascertainable (including any Consequential Loss); 

1.31 Claim means any claim, cost, damages, debt, expense, tax, liability, Loss, allegation, suit, action, demand, cause of action, proceeding or judgment of any kind; 

1.32 Consequential Loss means all means pure economic loss, any loss of or damage to revenue, profits, savings, contract, use, production, goodwill, business or business opportunity or consequential or indirect loss or damage; 

1.33 Distress Event means the happening of any of the following events in relation to a person:  

(a) where the person is a body corporate:  

(i) the body corporate becomes a Chapter 5 body corporate under the Corporations Act 2001 (Cth) or steps are taken towards making the body corporate a Chapter 5 body corporate (but not where the steps taken consist only of making an application to a court and the application is withdrawn or dismissed within 14 days); 

(ii) without limiting paragraph (i), a controller, administrator, receiver, receiver and manager or analogous person is appointed to the body corporate or any of the body corporate’s property (except where the other party is satisfied that the appointment is capable of being set aside and it is set aside within 5 days of the appointment being made) or any steps are taken for the appointment of such a person (except where the steps taken are reversed or abandoned within 14 days); 

(iii) the appointment of a liquidator or provisional liquidator for the winding up of the body corporate (except where the other party is satisfied that the appointment is capable of being set aside and it is set aside within 5 days of the appointment being made); 

(iv) any steps are taken (including, without limitation, the making or passing of an application, order or resolution) with respect to the appointment of a liquidator or provisional liquidator for the winding up of the body corporate (unless those steps are stayed, withdrawn or dismissed within 14 days);  

(v) the body corporate is taken to have failed to comply with a statutory demand within the meaning of section 459F of the Corporations Act 2001 (Cth);  

(vi) the body corporate suspends payment of all or a class of its debts, or enters, or takes any step towards entering, a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors;  

(vii) the body corporate is or becomes, or its directors state that it is, or has become, unable to pay its debts as and when they become due and payable; 

(viii) the body corporate is taken by applicable law to be (or if a court would be entitled or required to presume the body corporate is) unable to pay its debts; 

(ix) a distress, attachment, execution, or other process of a government agency is issued against, levied or entered upon an asset of the body corporate and is not set aside or satisfied within 14 days;  

(x) any security interest for an amount in excess of $100,000 is enforced, or becomes capable of being enforced, against an asset of the body corporate;  

(xi) the body corporate is deregistered or any steps are taken to deregister the body corporate under the Corporations Act 2001 (Cth) (except where the steps taken are reversed or abandoned within 14 days); 

(xii) the body corporate suspends payment of all or a class of its debts; 

(xiii) the body corporate enters into or resolves to enter into any arrangements, compositions or compromise with, or assignment for the benefit of, any of its creditors;  

(xiv) the body corporate ceases or threatens to cease to carry on its business or any major part of its business; 

(xv) without limiting the foregoing, an event affecting the solvency of the body corporate, if domiciled in a foreign jurisdiction, in any manner similar to the way in which any one of the foregoing events would affect the body corporate if it was domiciled in Australia; or 

(xvi) anything analogous to or substantially similar effect to any of the above events;  

(b) where the person is a natural person: 

(i) the person authorises a registered trustee or solicitor to call a meeting of his or her creditors or proposes or enters into a deed of assignment or deed of arrangement or a composition with any of his or her creditors; 

(ii) a person holding a security interest in assets of the person enters into possession of or takes control of any of those assets or takes any steps to enter into possession of or take control of any of those assets; 

(iii) the person commits an act of bankruptcy or has a bankruptcy notice issued against them; 

(v) a receiver or trustee for creditors in bankruptcy is appointed to any of the person’s property; 

(vi) the person becomes an “insolvent under administration” within the meaning of the Corporations Act 2001 (Cth);  

(vii) the person dies, is imprisoned or becomes incapable of managing his or her own affairs; or 

(viii) anything analogous to having a substantially similar effect to any of the above events; 

1.34 In this Agreement, unless the contrary intention appears:
(a) the clause headings are for ease of reference only and will not be relevant to interpretation;
(b) a reference to a clause number is a reference to its subclauses;
(c) words in the singular number include the plural and vice versa;
(d) words of one a gender include any gender;
(e) a reference to a person includes any company, partnership, joint venture, association, corporation, firm, body corporate, entity and any Governmental Agency;
(f) a reference to a clause is a reference to a clause or subclause of this Agreement;
(g) a reference to a subclause is a reference to a subclause of the clause in which that reference is made;
(h) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(i) a reference to a Schedule includes a reference to any part of that Schedule which is incorporated by reference;
(j) the recitals to this Agreement do not form part of the Agreement;
(k) monetary references are references to Australian currency; 

(l) reference to a party includes that party’s personal representatives, successors and permitted assigns; 

(m) if a party comprises more than one person, each of those persons is jointly and severally liable under this Agreement; 

(n) a reference to time is a reference to Adelaide, Australia time;  

(o) an expression defined in the Corporations Act 2001 (Cth) has the meaning given by that Act at the date of this deed;  

(p) a provision must not be construed against a party only because that party prepared it;  

(q) a reference to this Agreement includes this Agreement as varied, supplemented, assigned or novated from time to time; and 

(r) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them. 

Acceptance
2.1 This Agreement commences and takes effect on the earlier of You accepting this Agreement or You using the Software.
2.2 You represent to the Service Provider that You have authority to enter into this Agreement.
2.3 By using the Software, You will be bound by the terms of this Agreement. 

Subscription
3.1 Subject to the provisions of clause 5, the Service Provider grants You a non-exclusive, non-transferable, non-sub-licensable licence to access, view and use the Software for the Term solely in accordance with this Agreement as an end user only.
3.2 You may:
(a) use one Instance of the Software on a single computer that You own or operate at a single physical location for Your Single Business Entity only;
(b) transfer your Subscription on a permanent basis to a Single Business Entity after written notice to the Service Provider, and provided that: 

(i) You retain no Instances of the Software;  

(ii) the Service Provider emails the transferee either a copy of this Agreement or a link to this Agreement on the Website; and 

(iii) the transferee agrees to the terms of this Agreement by return email to the Service Provider. 
3.3 Your use of the Software may be monitored by the Service Provider:
(a) to ensure that the use is authorised;
(b) to facilitate protection against unauthorised access;
(c) to verify security procedures, availability and operational security;
(d) to provide software and feature updates or notification thereof; and
(e) for any other purposes reasonably required by the Service Provider. 

Registered Users
4.1 You may nominate a specified number of Registered Users (as provided for within the registration process), who, upon registration with and authorisation by the Service Provider may use the Software in accordance with the terms of this Agreement.
4.2 You are also responsible for any use of the Software by the Registered Users.
4.3 Any breach of this Agreement by a Registered User will also be treated as a breach of this Agreement by You.
 

Term and Trial Period
5.1 During the Trial Period, You will be entitled to access, view and use the Software in accordance with the terms of this Agreement, but without the requirement for payment of any Subscription Fees.
5.2 You may terminate Your Subscription during the Trial Period by: 

(a) notifying the Service Provider thereof in writing but by no later than the last day of the Trial Period; and
(c) discontinuing use of any Software.
5.3 If You do not terminate Your Subscription in accordance with clause 5.2 and You continue to use the Software after the Trial Period, You will be deemed to have accepted the functionality of the Software and You agree to be bound by this Agreement for the remainder of the Term (being the Term less the Trial Period, unless otherwise agreed in writing with the Service Provider).
5.4 At the end of the Term, Your Subscription will be renewed for an additional 12 months (or such other period agreed in writing with the Service Provider) (“Renewal Term”) unless either: 

(a) You or the Service Provider gives the other party written notice at least 30 days prior to the end of the Term or any Renewal Term (as the case may be), of its intention to terminate the Subscription; or 

(b) the Subscription is terminated in accordance with clause 16. 

5.5 The Subscription Fees payable for the Renewal Term will be the relevant fees as published on the Website 60 days prior to the commencement of the Renewal Term, subject to any changes as permitted by this Agreement. 

Subscription Fees and Payment
6.1 The Subscription Fees payable by You must be paid by You on the date or dates (“Subscription Payment Due Date”) and in the payment form you selected at the time of sign up. You are responsible for providing the Service Provider with updated payment details if your chosen method of payment is no longer valid prior to a Subscription Payment Due Date.
6.2 All amounts payable by You must be paid in Australian dollars, without any deductions, withholdings or set offs of any nature whatsoever on or before the due date of payment thereof. 

GST
7.1 A word or expression used in this clause which is defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the same meaning in this clause.
7.2 Unless specifically described in this Agreement or any other document issued by the Service Provider to You as GST inclusive, any consideration to be paid or provided for a supply made under or in connection with this Agreement does not include any amount on account of GST.
7.3 Where any supply to be made by one party (“the Supplier”) to the other party (“the Recipient”) under or in connection with this Agreement is subject to GST (other than a supply the consideration for which is specifically described in this Agreement as GST inclusive):
(a) the consideration payable or to be provided for that supply but for the application of this clause (“the GST Exclusive Consideration”) will be increased by, and the Recipient will pay to the Supplier, an amount equal to the GST payable by the Supplier in respect of that supply; and
(b) the Recipient must pay that additional amount at the same time and in the same manner as the GST Exclusive Consideration is payable or to be provided for that supply.
7.4 The Supplier must issue a tax invoice to the Recipient in respect of any taxable supply made under or in connection with this Agreement (where required by law), such tax invoice to be issued at the time that the Supplier receives consideration for that taxable supply from the Recipient.
7.5 This clause will survive any termination of this Agreement. 

Data
8.1 You are solely responsible for, and the Service Provider and its Associated Entities and Personnel accepts no liability or responsibility for, the development, accuracy, quality, integrity, reliability, content, operation, maintenance, and use of Subscription Data including but not limited to:
(a) data or content uploaded;
(b) any Loss relating to Subscription Data;
(c) any end-users or other persons use of Subscription Data;
(d) any corruption of Subscription Data in connection with Your use of the Software or otherwise (including while uploading, deleting or migrating Subscription Data from the Software); and
(e) compliance of Subscription Data (and its use) with any laws, rules regulations and policies.
8.2 You are solely responsible for:
(a) any costs associated with uploading Subscription Data onto the Software;
(b) the security of Your account and password;
(c) taking Your own steps to maintain appropriate security, protection and backup of Subscription Data, which may include the use of encryption technology to protect Subscription Data from unauthorized access and routinely archiving Subscription Data;
(d) regularly backing up Subscription Data and using appropriate and up-to-date malicious code and virus detection software for preventing and detecting Harmful Code.
8.3 Notwithstanding clause 8.2, the Service Provider may from time to time offer a service to back up Subscription Data on the Service Provider’s cloud based server or on Your local PC or USB driver (Back up Service). Where the Service Provider offers you a Back up Service in accordance with this clause 8.2:
(a) Your acceptance or use of that service does not in any way limit Your obligations under clause 8.2;
(b) without limiting the generality of the foregoing, You expressly acknowledge that data loss is an unavoidable risk when using any technology, including the Software and the Back up Service, and You remain responsible for maintaining Your own copies of Subscription Data; and
(c) to the extent permitted by law, the Service Provider gives no guarantee or warranty in respect of the Back up Service, and its liability and responsibility (including the liability and responsibility of the Service Provider’s Associated Entities and Personnel) will be strictly limited to taking reasonable steps to recover any lost or damaged Subscription Data the subject of a Back up Service (and You hereby release and discharge the Service Provider and its Associated Entities and Personnel from any additional liability or responsibility).
8.4 Without limiting clauses 8.2 and 8.3, and to the extent permitted by law, the Service Provider and its Associated Entities and Personnel will not be responsible or liable for the deletion, correction, destruction, damage, Loss or failure to store any of the Subscription Data. 

Intellectual Property and Indemnity
9.1 You acknowledge and agree that the Software and the Documentation, and all other deliverables including but not limited to any upgrades, modifications, enhancements and any improvements of whatsoever nature, reports, programming, documentation and/or specifications thereof, constitute Confidential Information of the Service Provider and title thereto remains in the Service Provider. Ownership of all Intellectual Property in the Software and the Documentation are and will remain vested in the Service Provider, along with any other proprietary rights associated with the Software.
9.2 If the Software becomes or may become the subject of a claim of infringement of any third party’s Intellectual Property, the Service Provider may, at its sole option and discretion:
(a) replace or modify the Software to make in non-infringing; or
(b) refund any Subscription Fees paid in advance.
9.3 The remedies set out in clause 9.2 are the Service Provider’s sole liability, responsibility and the exclusive remedy for any infringement of Intellectual Property by the Software or any other items provided by under this Agreement (and You hereby release and discharge the Service Provider and its Associated Entities and Personnel from any additional liability or responsibility).
9.4 You indemnify, and must keep indemnified, the Service Provider and its Associated Entities and Personnel on demand from and against all Loss of whatever form or nature (including third party claims), including legal fees or other costs and disbursements that the Service Provider or its Associated Entities and/or Personnel may sustain or incur as a direct or indirect result of:
(a) any infringement of the Service Provider’s (or its Associated Entities) or any third party’s Intellectual Property arising from Your (or any of Your Associated Entities or Personnel) or any Registered Users use of any of the Software;
(b) Your (or any of Your Associated Entities or Personnel) or any Registered Users use of any of the Software;
(c) breach by You (or any of Your Associated Entities or Personnel) or any Registered Users of Your Subscription, of any Intellectual Property or other right of any person or entity;
(d) Your (or any of Your Associated Entities or Personnel) or any Registered Users breach of this Agreement or any applicable law, policy, rule or regulation.
9.5 Nothing in this Agreement affects the Moral Rights in the Software. 

9.6 The terms of this clause will survive the termination of this Agreement. 

Restrictions on Use
10.1 You acknowledge that no provision of this Agreement or any other agreement grants You any ownership rights with respect to the Software including, among other things, any rights with respect to the source code (human readable) format of any of the Service Provider’s owned or Software that is used in conjunction with the Software.
10.2 You acknowledge that a Subscription is only valid for a Single Business Entity and that each Single Business Entity requires its own Subscription to access any of the Software.
10.3 You must not (and will not allow any other third party to) modify, prepare derivative works of, reverse engineer, decompile or disassemble any proprietary aspects or features of any of the Software or create derivative works based on any of the Software or merge any of the Software with or into any other Software or copy any of the Software except as expressly permitted under this Agreement.
10.4 Except as the Service Provider may approve in writing, Your rights to use of the Software will not extend to any Associated Entity or Personnel of You.
10.5 You may not use the Software for third party training or rental use. You must not rent, lease, sell, assign, distribute or dispose of the Software, or the Documentation.
10.6 You must not attempt to undermine the security or integrity of the Service Provider’s computing systems or networks or, where the Software is hosted by a third party, that third party’s computing systems and networks.
10.7 You must not use, or misuse, the Software in such a way which may impair the functionality of the Software, the Website or the Download-Based Format.
10.8 You must not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted.
10.9 You must not transmit, or input into the Website, any content that may be offensive, files that may damage any other person’s computing devices or software, or material or data in violation of any law (including Subscription Data or other material protected by copyright or trade secrets which You do not have the right to use). 

Confidentiality
11.1 A Party must not, without the prior written approval of the other Party, disclose the other Party’s Confidential Information.
11.2 A Party must not be in breach of subclause 11.1 in circumstances where it is legally compelled to disclose the other Party’s Confidential Information.
11.3 Each Party must take all reasonable steps to ensure that its Associated Entities and Personnel engaged for the purposes of this Agreement, do not make public or disclose the other Party’s Confidential Information.
11.4 The terms of this clause will survive the termination of this Agreement. 

Warranties
12.1 The Service Provider warrants it is the owner of the Software and has the right and authority to grant the licence under clause 3 of this Agreement with You. Without limiting the foregoing, the Service Provider warrants that there are no existing restrictions or constraints on its right and authority to licence the Software to You pursuant to the terms of this Agreement.
12.2 During the Term and any subsequent Renewal Term (as the case may be), the Service Provider warrants that the Software will operate substantially in accordance with the Documentation, unless performance problems are the result of hardware failure, improper use, or modification by You, Your Associated Entities, Your Personnel or any third party or their respective agents or contractors or due to You or the third party’s failure to install all updates. If the Software does not so operate, You and the third party’s exclusive remedy and the Service Provider’s sole responsibility and liability under this warranty will be, in the Service Provider’s sole discretion, either to replace the Software, to provide You with a bug fix or patch, or to refund the Subscription Fees (or a fair proportion of them having regard to the nature and extent of the defect) paid for the current version of the Software (and You hereby release and discharge the Service Provider and its Associated Entities and Personnel from any additional liability or responsibility).
12.3 If You or any third party is a “consumer” for the purposes of Australian Consumer Law, the Service Provider is required to include the following statement as a result of the undertakings described in clauses 12.1 and 12.2. Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. Under the Australian Consumer Law, you are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable Loss. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. The benefits to you described in clauses 12.1 and 12.2 are in addition to other rights and remedies you have under the Australian Consumer Law and other laws.
12.4 The Australian Consumer Law permits the Service Provider to limit its liability in respect of the guarantees referred to in this clause 12 in accordance with the limitation in clause
12.5 If You are considered a “consumer” for purposes of the Australian Consumer Law, certain guarantees may be conferred on You and certain rights and remedies may be conferred on You which cannot be excluded, restricted or modified. If so, then to the maximum extent permitted by law, the Service Provider’s liability to You is limited at its option to:
(a) in the case of goods, replacement or repair of goods or payment of the cost of replacing or repairing the goods; and
(b) in the case of services, re-supply of the services or payment of the cost of re-supplying the services.
12.6 Subject to clause 12.4 and to the maximum extent permitted by law, the Service Provider hereby excludes all other conditions, warranties, guarantees or representations, express or implied, by statute, trade or otherwise, including without limitation: the Service Provider does not warrant that the functions contained in the software, upgrade or update will meet any particular requirements or needs You or any Customers may have, that the software, upgrade or update will operate uninterrupted or error-free, or that the software, upgrade or update is compatible with any particular platform, system or application. All warranty disclaimers and limitations of liability set forth herein apply to the Service Provider’s Associated Entities and Personnel and it is the maximum for which they and the Service Provider are collectively responsible. 

Liability
13.1 To the maximum extent permitted by law, under no circumstance will the Service Provider or its Associated Entities and Personnel be liable or responsible to You or any of Your Associated Entities and Personnel in connection with the use of any of the Software or any information provided by the Service Provider to You (or Your Associated Entities or Personnel) for any Consequential Loss or associated expenses and costs arising out of or in relation to this Agreement or any act done or admitted to be done under or by reason of this Agreement whether caused by the negligence or breach of statutory duty by the Service Provider or otherwise. 

13.2 The liability of the Service Provider to You for a breach of a condition or warranty implied by law which cannot be excluded is set out in clause 12 above. 

Indemnity
14.1 Subject to the relevant provisions of clause 12 above, You are liable and responsible for and indemnify, and must keep indemnified, the Service Provider and its Associated Entities against all Loss (including, without limitation, legal fees, costs and disbursements on a full indemnity basis determined without taxation, assessment or similar process and whether incurred or awarded on against us) arising from or incurred in connection with Your and Your Associated Entities or Personnel or any Registered Users use of any of the Software which is the subject of Your Subscription. 

14.2 Subject to the relevant provisions of clause 12 above, You will indemnify, and must keep indemnified, the Service Provider and its Associated Entities and Personnel for any Loss incurred by the Service Provider, to the maximum extent permitted by law, for any breach of this Agreement by You or Your Associated Entities or Personnel or any Registered Users in relation to Your Subscription and use of any of the Software. 

14.3 Each indemnity under this Agreement is a continuing obligation, separate and independent from your other obligations and will survive termination of this Agreement. 

 

Suspension
15.1 Access to the Software may be suspended if a third-party supplier of the servers on which the Subscription is hosted suspends provision of access to those servers or at the discretion of the Service Provider (acting reasonably) including for a planned outage for operational or maintenance reasons, the Service Provider reasonably considers it necessary for unscheduled repair, maintenance or service or to assess and manage a suspected or actual security risk.
15.2 In the Service Provider’s sole discretion, it may suspend Your Subscription or Your right to access the Software and Your Subscription immediately with notice in the following circumstances:
(a) where service upgrades are to be performed on the Software or the servers or other means by which the Software is accessed or used; or 

(b) where Your, or Your Registered Users, use of the Software poses a security risk to the Software, or any third party, may adversely impact the systems or data of any other user, may subject the Service Provider and its Associated Entities or Personnel or any third party to liability, or it may be fraudulent. 

15.3 In the Service Provider’s sole discretion, it may suspend Your Subscription or Your right to access the Software and Your Subscription immediately without notice in the following circumstances:
(a) on the Service Provider reasonably suspecting or becoming aware of inappropriate or unauthorised access to the Software by You (or Your Registered Users, Associated Entities and Personnel); or
(b) in the event of Your (or Your Registered Users, Associated Entities and Personnel) non-compliance with this Agreement (including but not limited to any breach, or suspected breach (with the Service Provider acting reasonably in forming such suspicion)), by You (or Your Registered Users, Associated Entities and Personnel) of Your material obligations under clause 3.2 and/or clause 10).  

15.4 In the case of any suspension for a suspected breach in accordance with clause 15.3, the Service Provider (acting reasonably) in its sole discretion must determine within fourteen days of the suspension if You (or Your Registered Users, Associated Entities and Personnel) are in breach of Your material obligations under this Agreement.  If the Service Provider determines You (or Your Registered Users, Associated Entities and Personnel) are not in breach of Your material obligations under this Agreement, the Service Provider must re-activate Your Subscription or Your right to access the Software and Your Subscription.
15.5 The Service Provider’s rights under this clause 15 are in addition to any other rights of termination in this Agreement.
15.6 If Your right to access the Software and/or Your Subscription is suspended at any time:
(a) You remain responsible for any Subscription Fees and any other fees and charges incurred to the date of suspension; and
(b) You remain responsible for any applicable fees or charges in connection with any access which You may continue to have during this suspension period. 

15.7 You release and discharge the Service Provider and its Associated Entities from any and all Loss you incur in connection with the Service Provider restricting access to Your Subscription or Your right to access the Software and Your Subscription in accordance with this clause 15. 

Termination 
16.1 For the purpose of this agreement, each of the following is a Terminating Event:
(a) the breach by either party of any of its material obligations under this agreement (excluding any breach by You (or Your Registered Users, Associated Entities and Personnel) of Your material obligations under clause 3.2 and/or clause 10), which breach is not remedied within 14 days of receipt of written notice from the non-defaulting party requesting its remedy. In the case of failed or missed payments by You (which is a breach of a material obligation by You under this agreement), the Service Provider may (in its absolute discretion) provide written notice of the breach to You by electronic communication or short message service (SMS) to the mobile phone number listed on your account details;
(b) a Distress Event occurs in respect of either party;  

(c) in the case of You (or Your Registered Users, Associated Entities and Personnel), the breach of any of Your material obligations under clause 3.2 and/or clause 10;  

(d) in the case of You, any change of Control without the Service Providers prior written consent (which consent is not to be unreasonably withheld or delayed).
16.2 Where a party commits or suffers a Terminating Event (“Defaulting Party”), this agreement may be terminated by the non-defaulting party immediately by notice in writing from the other party to the Defaulting Party.
16.3 Any termination of this agreement will not affect any accrued rights or liabilities of either party, nor will it affect any provision of this agreement which is expressly or by implication intended to continue in force after such termination.
16.4 If You validly terminate this agreement You will be liable to pay all Subscription Fees on a pro-rata basis for each day of the then current Term or Renewal Term (as the case may be) up to and including the day of termination of this agreement.
16.5 Upon the termination of this agreement for any reason, You must immediately cease accessing or using the Software and must return, uninstall or destroy (as directed by the Service Provider) all copies of the Software, the Documentation and any other materials provided by the Service Provider in respect of Your Subscription or the Software. 

Privacy Policy
17.1 You acknowledge that You have read and agree to the terms of the Service Provider’s privacy policy, contained on the Website at https://shop.cashflow-manager.com.au/privacy-policy/.
17.2 The Service Provider and/or You may have obligations to report certain data breaches in accordance with the Privacy Amendment (Notifiable Data Breaches) Act 2017 (Cth) (NDB Act), which amended the Privacy Act 1988 (Cth) (Privacy Act), (together, with any other applicable privacy laws and regulations, the “Privacy Laws”) including in respect of data (such as Subscription Data) that is held by both You and the Service Provider.
17.3 You and the Service Provider each acknowledge and agree to:
(a) notify each other immediately upon suspecting, or becoming aware of, any breach of any Privacy Laws in relation to this Agreement and/or the unauthorised access to, or disclosure of, personal information (as defined in the Privacy Act) (Personal Information) that is shared between or mutually held by them (including Subscription Data); and
(b) meet as soon as practicable, but not later than within 30 days of the suspicion or knowledge arising, to co-operate and negotiate in good faith with each other to agree the best way to minimise the impact of that breach and to meet any notification or other obligations arising under the Privacy Laws.  

Modifications
18.1 The Service Provider may modify this Agreement at any time by posting a revised version on the Service Provider’s website and/or notifying You thereof in accordance with the provisions of clause 23.10 of this Agreement.
18.2 Subject to clause 23.9, the modified terms will become effective upon the start of each Renewal Term. By continuing to use the Software after the effective date of any modifications to this Agreement, You agree to be bound by the modified terms.
18.3 Other than as set out above, no addition to, or modification of any provision of this Agreement will be binding unless agreed to in writing by the Service Provider. 

Updates
19.1 The Service Provider retains the right, in its sole discretion, to upgrade or modify the Software from time to time.
19.2 The end of life of any Software version level supplied to You will occur on the earlier of:
(a) the date being five (5) years after the introduction of that Software version level (“Version End Date”); and
(b) the date the Service Provider provides an update or replacement of the Software version level that the Service Provider considers (acting reasonably) provides a better functionality than the current Software version level.
19.3 A valid Subscription entitles You to support for any queries related to Your Subscription and the Software and the associated Single Business Entity or Single Business Entities for that subscription. Support is not provided for any Single Business Entity without an associated valid subscription or for queries relating to ATO or Accounting practices.
19.4 You consent to the Service Provider’s provision of regular Electronic Communications to Your email address for the purposes of notifying you of updates to the Software. 

Yodlee Acknowledgement
21.1 The Subscriber acknowledges that in providing the Software, the Service Provider will require the services of third parties, and that such third party services may be integrated with the Software. This includes without limitation, certain services which is provided by Yodlee to the Service Provider (Yodlee Services), noting that the Yodlee Services are integrated into the Software. The Subscriber hereby confirms that it has read and understood this clause 21 and provides informed consent that the Service Provider can integrate or use the Yodlee Services, and any other services provided by third parties (Third Party Services) in providing the Software.
21.2 Under the Agreement between Yodlee and the Service Provider, the Service Provider is required to perform reasonable due diligence on each Subscriber (Due Diligence) prior to allowing the Subscriber to have access to the Software. The Subscriber agrees to provide the Service Provider with all information and assistance reasonably required by the Service Provider for the Due Diligence and agrees that the Service Provider can provide such information to Yodlee in order to satisfy the Due Diligence requirement.
21.3 As the Software contains the Yodlee Services and Third Party Services, the Subscriber further acknowledges and expressly provides informed consent that Yodlee and such other third parties:
(a) will have access to the Subscriber Data;
(b) can use the Subscriber Data to:
(i) provide and improve the Yodlee Services, Third Party Service and/or Software (as applicable);
(ii) create and use aggregated data (which is usage information and Subscriber Data that is de-identified) as permitted by law); and
(iii) for any purpose ancillary or associated with clause 21.3(b)(i) and 21.3(b)(ii), 

Electronic Communications
22.1 The Service Provider will communicate with you by short message service (SMS) to the mobile phone number listed on your account details or electronically, including sending You Commercial Electronic Messages (as that term is defined in the SPAM Act 2003 (Cth)). You consent to the Service Provider sending short message service (SMS) and Electronic Communications to You.
22.2 Short message service (SMS) and electronically transmitted information cannot be guaranteed to be secure or virus or error free and consequently such information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete or otherwise be adversely affected or unsafe to use. The Service Provider will not be liable to You in respect of any error, omission or loss of confidentiality arising from or in connection with the short message service (SMS) or electronic communication of information to You.
22.3 It is Your responsibility to provide the Service Provider with any changes to Your contact information including Email address and mobile phone number which is required as part of Your Licence Agreement. Should your contact details not be up to date the Service Provider or its Associated Entities and Personnel will not be liable or responsible to You in respect of any missed communications including changes to the End User Licence Agreement, Terms and Conditions, Pricing or Software whereby You have not provided communication about these changes. 

General
23.1 Neither party will be liable for any delay or failure in performing its obligations under this Agreement if that delay or failure is due to Force Majeure.  If that failure or delay exceeds 90 days, the other party may terminate this Agreement with immediate effect by giving notice to the affected party. This clause does not apply to any obligation to pay money.
23.2 This Agreement will be governed by the laws of the State of South Australia and the parties hereby agree to submit to the non-exclusive jurisdiction of the courts of South Australia and all courts having jurisdiction to hear appeals therefrom.  No party may object to the jurisdiction of any of those courts on the ground that it is an inconvenient forum or that it does not have jurisdiction.
23.3 This Agreement, and any member subscription agreement and/or other binding terms and conditions, constitutes the entire agreement between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.
23.4 This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and assigns.
23.5 Subject to clause 3.2(b), You will not transfer or assign any rights under this Agreement or the benefit of this Agreement without the prior written consent of the Service Provider, which consent will not be unreasonably withheld. The Service Provider may, acting reasonably and on providing 30 days written notice to You, assign all or any of its rights hereunder.
23.6 A certificate signed by the Service Provider about a matter or about a sum payable to the Service Provider in connection with this Agreement is sufficient evidence of the matter or sum stated in the certificate unless the matter or sum is proved to be false.
23.7 If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement will remain otherwise in full force apart from such provision which will be deemed deleted.
23.8 No right under this Agreement will be deemed to be waived except by notice in writing signed by each Party.
23.9 The Service Provider (acting reasonably) may alter the Subscription Fees charged for the Software by providing thirty (30) days written notice to You in circumstances where it considers it appropriate to do so having considered relevant factors including (without limitation): 

(a) market conditions; 

(b) increased costs; 

(c) competitor pricing; 

(d) the period elapsed from the most recent alteration of the Subscription Fees; 

(e) any additions or improvements to the Software; and 

(f) the percentage that the proposed increase bears to the current Subscription Fees.
23.10 All notices which are required to be given under this agreement must be in writing and must be sent to the registered address of the party or, in the case of You, such address (email or postal) as may be provided to the Service Provider by You upon registration. Any notice may be delivered by hand or by prepaid letter or email. Any such notice will be deemed to have been served when delivered (if delivered by hand) or six business days after posting or on transmission by the sender (if sent by email, unless the sender receives notification that the transmission was unsuccessful).
23.11 Subject to any provision to the contrary, this Agreement will ensure to the benefit of and be binding upon the Parties and their successors, trustees, permitted assigns, or receivers but will not ensure to the benefit of any other persons.
23.12 The provisions of this Agreement which are capable of having effect after the expiration of the Agreement will remain in full force and effect following the expiration of the Agreement. 

23.13 You warrant that prior to entering into this Agreement, they have had an opportunity to obtain legal advice in relation to the nature, effect and extent of this Agreement and to raise any issues, and/or negotiate, with the Service Provider in relation to any terms of this Agreement. 

23.14 Notice must be in writing and in English, and may be given by an authorised representative of the sender. 

23.15 Notice may be given to a person personally or by leaving it at the person’s address last notified or by sending it by pre paid mail to the person’s address last notified or by sending it by electronic mail to the person’s email address last notified. 

23.16 Notice is deemed to be received by a person when left at the person’s address or if sent by pre paid mail, five days after posting or if sent by electronic mail, on the day after the day the message is showing on the sender’s electronic mail system as having been properly transferred or transmitted.  However, if the notice is deemed to be received on a day which is not a business day it is deemed to be received on the next business day. 

23.17 If two or more people comprise a party, notice to one is effective notice to all. 

23.18 Each party must take reasonable steps to mitigate any Loss suffered as a result of or in relation to this Agreement. 

Service Provider Delivery Policy
24.1 The Service Provider delivers products to its clients and prospective clients by electronic and/or physical means.
24.2 When a prospective client nominates to download a trial version of a software product from a Service Provider website the prospective client is notified by return email on the same day with instructions on how and where to download the trial product from the Service Provider website.
24.3 When a customer purchases a Subscription, the application is available to use immediately their credit card or promotional code has been verified at the point of purchase.
24.4 Updates of software for bug fixes or new or enhanced product features are made available to clients by download from the appropriate Service Provider website. Clients are notified of the availability of updates via email on the day of release or as soon as practicable thereafter. 

Third Party Services
25.1 The Service Provider may from time to time offer services, as part of a Subscription to the Software, provided or hosted by or through a third party (External Provider).
25.2 Where you elect to subscribe for services provided or hosted by or through an External Provider (External Provider Services), you expressly acknowledge and agree as follows:
(a) to the Service Provider using and storing, and sharing with the External Provider, the Subscription Data:
(i) to the extent necessary to enable the External Provider to provide the External Provider Services; and/or
(ii) to the extent, and in such manner, as disclosed to you by the Service Provider or the External Provider, which may include the access, storage and use of the Subscription Data;
(b) to the terms and conditions upon which the External Provider will supply the External Provider Services, as disclosed to you from time to time; and
(c) to the extent permitted by law, that the Service Provider accepts no responsibility and excludes all liability for the External Provider Services and the acts or omissions of the External Provider.