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Terms & Conditions

Creativemass Website Terms

Version 1.0, current as at 30 July 2019

1. OVERVIEW

1.1. Creativemass Enterprises Pty Ltd (ABN 86 619 665 628) and its affiliated entities (we, us and our) provide this website (Website) to the user of the device that connects to the Website (you and your) in accordance with:

(a) these terms (Website Terms); and

(b) our Privacy Policy which is available on the Website (Privacy Policy).

1.2. By using the Website and in consideration of us providing you with access to the Website, you confirm that these Website Terms govern your access to, and use of, the Website and that you have read, understood and agree to be bound by these Website Terms and to us handling any personal information collected through the Website in the manner set out in our Privacy Policy.

1.3. If you do not agree to the above, you must not access, use or remain on the Website.

1.4. Certain capitalised terms in these Website Terms are defined in clause 10.

2. GENERAL ACKNOWLEDGEMENTS

2.1. You acknowledge and agree that:

(a) the Website, in whole or in part:

(i) may contain information that is incomplete, inaccurate or out of date;

(ii) is provided as a complimentary service ‘as-is’ and ‘as available’ without any warranties, express or implied;

(iii) may not be operational or available at any time, or may not operate continuously without error or interruption, for any reason (including because of any planned maintenance); and

(iv) is unencrypted, and there are security, privacy, data loss and confidentiality risks inherent in accessing or using unencrypted websites such as the Website;

(b) different terms apply to our products and services and you must refer to those terms before making any decision to purchase any of our products or services, including the our ‘General Licence Terms’ in the case of our WealthConnect product;

(c) at all times while accessing or using the Website, you must comply with all applicable Laws relating to your access to, or use of, the Website, and these Website Terms, and you assume all responsibility and risk relating to:

(i) your access to, or use of, the Website, including relating to any content, information and other materials you access via the Website;

(ii) access to, or use of, the Website that occurs in connection with your system or device, including if you permit another person to use your system or device; and

(iii) the security of your system, device, data (including backing up any data and safeguarding your system or device against hackers, viruses or other malicious code);

(d) the Website may use ‘cookies’ as part of its interaction with your internet browser as described in our Privacy Policy;

(e) we may:

(i) collect, use, store and handle personal information about you and any other information you provide or transmit in connection with the Website in accordance with our Privacy Policy;

(ii) remove any content, information or other material from the Website at any time for any reason without notice;

(iii) terminate, suspend or restrict your access to, or use of, all or part of the Website at any time for any reason without notice; and

(iv) take any actions we consider appropriate against you if we reasonably believe that your use of the Website amounts to an unlawful act and/or breaches these Website Terms, including involving relevant investigative bodies or authorities.

2.2. You acknowledge and agree that:

(a) we own, control or license the copyright in all material and information on the Website, including any logo, design, layout, text, graphic, illustration, video, music, interface, photograph, trade mark, sound, download, service, computer code, pricing, products and services and any arrangement of them (Content); and

(b) our name and all associated trade marks, service marks and logos are registered or unregistered trade marks of Creativemass, and any other trade marks appearing on this Website, may be owned, controlled or licensed by us (Trade Marks).

3. THIRD PARTY CONTENT AND WEBSITES

3.1. The Website may:

(a) contain links to, or display, the content of third parties (Third Party Content); and

(b) include links to websites provided by third parties (Third Party Websites).

3.2. You acknowledge and agree that:

(a) Third Party Content and Third Party Websites are not under our control;

(b) we do not monitor, review, endorse, approve or otherwise make any warranty regarding, or take any responsibility for:

(i) Third Party Content, Third Party Websites or the products, services or information available on any Third Party Website; or

(ii) the provider of any Third Party Content or Third Party Website or their conduct;

(c) your access to, and use of, any Third Party Content or Third Party Website will be governed by any separate terms provided by the provider of the relevant Third Party Content or Third Party Website; and

(d) if you access, use, or rely on, Third Party Content or Third Party Website, you do so solely at your own risk.

4. GENERAL LIMITATIONS ON USE

4.1. You must not, and must not permit a third party to:

(a) use this Website or any Content for any commercial purposes (including for competitive advantage or to the competitive disadvantage of us) or otherwise for a purpose other than for your own personal use;

(b) do anything to alter, modify or add to any Content or Trade Mark;

(c) copy, reproduce, adapt, distribute, sell, publish, download, analyse, assess, modify, display, post, store, transmit or repackage the Website or any Content or Trade Marks in any form or by any means;

(d) do anything which will or may damage, disrupt access to, or interfere with, the proper operation of the Website or with any other person’s use of the Website;

(e) link to, frame or mirror any part of the Website in any way;

(f) directly or indirectly modify, copy, reverse engineer, decompile, disassemble, unbundle, re-sell, on-supply or create derivative works based on, or otherwise attempt to determine the source code or algorithms for, the software underlying the infrastructure and processes associated with the Website, or the Website itself;

(g) probe, scan or test the vulnerability of the Website or any network connected to the Website, or breach (or attempt to breach) any technological or authentication measures on the Website or any network connected to the Website;

(h) circumvent, disable or otherwise interfere with, or attempt to circumvent, disable or otherwise interfere with, any technological or authentication measures that control the security of the Website, including access to, or use of, the Website;

(i) reverse look-up, trace (or attempt to trace) any information on any other visitor to the Website, or any of our customers, to its source, or exploit the Website or any service or information made available through the Website, in any way for the purpose of revealing any information;

(j) use the Website in a manner that:

(i) breaches any applicable Law, or causes any other person to breach any applicable Law;

(ii) creates any liability (civil or criminal) for us or any of our third party service providers;

(iii) interferes with, disrupts or creates undue burden on, the performance of the Website or our networks or equipment;

(iv) infringes any intellectual property rights and related rights of any person or entity; or

(v) introduces any computer code that is intended to be, or is (regardless of intent), harmful, destructive, disabling or which assists in or enables theft, alteration, denial of service, unauthorised disclosure or destruction or corruption of data (including viruses, worms, spyware, adware, keyloggers, and trojans) (Harmful Code) into our networks or equipment; or

(k) use the Website to access or collect (or attempt to access or collect) any data, system, server, network, computer, database, service or communication which you are not authorised to access, or which relates to any other person or our business methodologies or systems.

5. PROVISION OF FINANCIAL SERVICES

5.1. You acknowledge that we do not hold any Authorisation to conduct or carry on a Financial Services Business.

5.2. You acknowledge and agree that:

(a) the Website contains general information only and does not take your, or any other person’s, personal circumstances, objectives or needs into account; and

(b) you must consider whether any content on this Website, any Third Party Website, or any Third Party Content, is right for you before making any decision and seek professional independent tax or financial advice.

5.3. If you conduct or carry on a Financial Services Business, you:

(a) represent and warrant that you hold all necessary Authorisations to conduct that Financial Services Business;

(b) must comply with all Laws regulating the conduct of, or the carrying on of, your Financial Services Business and, to the extent relevant, any associated regulatory policies, in conducting and carrying on your Financial Services Business;

(c) acknowledge and agree that our making the Website or any Content available does not itself constitute the provision of Financial Services; and

(d) acknowledge and agree that you are solely responsible for:

(i) the provision of Financial Services to any clients to whom you provide services as part of your business (Clients);

(ii) the content of Financial Product Advice given to Clients, including Financial Product Advice that in any way uses or is generated, prepared or compiled (directly or indirectly) by our products or services, or any Content available on the Website;

(iii) ensuring that any Financial Services provided to Clients are provided by you and not by us; and

(iv) ensuring that any Financial Services you provide to Clients and the manner in which they are provided, comply with all applicable Laws and associated regulatory policy requirements and that you comply with your legal obligations in providing those Financial Services.

6. LIABILITY

6.1. if:

(a) the Australian Consumer Law applies to our provision of the Website or the Content; and

(b) you are a ‘consumer’ (as that term is defined in the Australian Consumer Law), our liability to you for Loss that you suffer or incur relating to our failure to comply with any applicable consumer guarantee set out in the Australian Consumer Law is limited to (at our election) supplying the Website or the Content again or paying the cost of having the Website or the Content supplied again unless:

(c) the services supplied are services of a kind ‘ordinarily acquired for personal, domestic or household use or consumption’ (as that expression is used in the Australian Consumer Law); or

(d) it is not ‘fair or reasonable’ (as that phrase is used in the Australian Consumer Law) for us to rely on that limitation.

6.2. Subject to clause 6.5, we:

(a) will not be liable for a breach of these Website Terms to the extent the breach is caused by an event or circumstance that was beyond our reasonable control; and

(b) exclude any and all liability to you for any and all Losses that you suffer or incur relating to:

(i) your use of, or access to, or reliance on, the Website, any Content, any Third Party Content or any Third Party Websites, or your breach of these Website Terms;

(ii) your inability to access or use the Website, any Content, any Third Party Content or any Third Party Websites, for any reason;

(iii) any loss, damage, corruption or interception of your data in the course of you accessing or using the Website, including as a result of any interruption or a security breach relating to the Website;

(iv) any purchase of, or attempt to purchase, any of our products or services (including in purported reliance on any information or advertising on our Website or any Third Party Website); or

(v) us taking any of the actions contemplated by clause 2.1(e).

6.3. Subject to clause 6.5, we exclude any and all liability to you for Consequential Loss.

6.4. Subject to clause 6.5, we limit our liability to you for all Losses, in aggregate, to an amount equal to $100.

6.5. Any exclusion specified in these Website Terms and the limitation of liability in clause 6.4 do not apply:

(a) to our liability to you for Losses that you suffer or incur relating to our failure to comply with any consumer guarantee set out in the Australian Consumer Law; or

(b) to the extent that they would cause us to contravene a Law or cause the applicable clause to be void or unenforceable or otherwise purport to exclude or limit Losses that cannot be excluded or limited at law.

7. INDEMNITY

7.1. To the fullest extent permissible by law, you indemnify us against Losses that we suffer or incur relating to a claim by a third party against us that arises as a result of any use of, access to, disclosure or distribution of, or reliance on, the Website or any Content that is not in accordance with these Website Terms, including a failure by you or your personnel to verify or apply professional skill and expertise in using the Website or the Content.

8. CHANGES TO THESE WEBSITE TERMS

8.1. We reserve the right to change these Website Terms from time to time for any reason and without notice to you.

8.2. Continued use of the Website by you constitutes your binding acceptance of such revisions, amendments, and modifications.

9. GENERAL

9.1. Subject to clause 6.5, each party excludes all terms implied into these Website Terms in fact, at law, by a law or on any other basis.

9.2. A waiver of a right, remedy or power under these Website Terms must be in writing and signed by the party giving the waiver. No failure, delay or partial exercise of any right under these Website Terms will constitute a waiver of that right.

9.3. These Website Terms will be governed and construed in accordance with the law of Victoria. Each party irrevocably and unconditionally submits to the to the exclusive jurisdiction of the Courts of Victoria and the courts having appeal from them for determining any disputes or proceedings arising out of, or in connection with, these Website Terms.

9.4. We make no representation that the Website (including any Content) complies with the laws of any jurisdiction outside of the State of Victoria, Australia.

9.5. If any provision of these Website Terms is held by a court of competent jurisdiction to be not legally enforceable, the provision, or the relevant part of it, will be deemed to be either amended as appropriate to make it enforceable or ignored, and the remaining provisions of the these Website Terms will remain in effect.

10. DEFINITIONS & INTERPRETATION

10.1. In these Website Terms:

Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth) or the corresponding provisions of the fair trading legislation.

Authorisation means any approval, consent, exemption, filing, licence, notarisation, permit, registration, authorisation, clearance or waiver, however described, and any renewal or variation of any of them, and includes an ‘Australian financial services licence’ or appointment as an ‘authorised representative’ of a holder of an Australian financial services licence (both as defined in section 761A of the Corporations Act 2001 (Cth)).

Consequential Loss means:

(a) any Loss which is or relates to:

(i) profits, revenue or lost opportunities;

(ii) anticipated savings;

(iii) goodwill or reputation; or

(iv) loss of, or corruption of, any of the your data or systems, including any costs of rekeying or restoring lost or corrupted data;

(b) special Loss; or

(c) any other Loss that cannot fairly and reasonably be considered to have arisen naturally (that is in the usual course of things) from the event or circumstance or series of events or circumstances that gave rise to that Loss.

Financial Services Business means a business of providing Financial Services.

Financial Service means a ‘financial service’ as that term is defined in section 761A of the Corporations Act 2001 (Cth) and any other equivalent or analogous service that is regulated under any Law in any other jurisdiction.

Financial Product Advice means ‘financial product advice’ as that term is defined in section 761A of the Corporations Act 2001 (Cth) and any other equivalent or analogous advice that is regulated under any Law in any other jurisdiction.

Law means any statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in the relevant jurisdiction.

Losses means all liabilities, losses, damages, costs and expenses suffered or incurred by any person howsoever caused, whether arising in contract or tort (including negligence) or under any statute or under any other cause of action, and Loss has a corresponding meaning.

10.2. The meaning of general words is not limited by specific examples introduced by ‘including’ or similar expressions.