Terms of Use [Legal and Compliance]

Owned by Gnamangkhala Rathipanya
Aug 09, 2024

Terms of Use [Legal and Compliance]

Lumiant Pty Ltd Terms of Use and Conditions

Last updated: 4th May 2024

Acceptance of Terms

Please read carefully. These terms and conditions govern your use of the Services and form a binding contractual agreement between you (User) and the Lumiant Group (Lumiant) being Lumiant Pty Ltd ACN 610 279 135 and its wholly owned subsidiary Lumiant US Inc. By accessing the Lumiant Website (https://www.lumiant.io) and any related Services you accept the following terms and conditions, without limitation or qualification. Unless otherwise stated, the contents of the Website including, but not limited to, the text and images contained herein and their arrangement are the property of Lumiant. All trademarks used or referred to in this Website are the property of their respective owners. Nothing contained in the Website shall be construed as conferring by implication or otherwise, any license or right to any copyright, patent, trademark or other proprietary interest of Lumiant or any third party.

If you do not agree to these terms and conditions, do not use the Website. We can change these terms and conditions at any time without any notice to you. It is your responsibility to review these terms and conditions from time to time for any changes as it creates a binding legal agreement between you and Lumiant. If you use the Website after we have changed any of the Terms of Service, you are agreeing to all of the changes.

Background

  • Lumiant carries on the business of delivering tech-enabled engagement platform(s) within the financial advisory and wealth management industry.
  • The Practice carries on the business of providing financial consulting, wealth management and other management and administrative services.
  • Lumiant agrees to provide, and the Adviser agrees to buy, the Services on the terms of this Document.

  1. Definitions & interpretation

    • Definitions

In this Document, the following words and expressions shall have the respective meanings set out below unless the context otherwise requires: 

Additional Fees means the fees as set out in the Key Terms.

Additional Services means the services as set out in the Key Terms.

Financial Professional Data means all data, content, and information (including any Personal Information) owned, held, used or created by or on behalf of the Financial Professional that is inputted into, or stored using, the Services.

Analytical Data has the meaning given to it in clause 5.2 (Analytical Data).

Business Day means:

  • in connection with the giving of a notice, a day that is not a Saturday, Sunday, public holiday or bank holiday in the place where the notice is received; and
  • for all other purposes, a day that is not a Saturday, Sunday, bank holiday or public holiday in Sydney in the state of New South Wales.

Client (Household) has the meaning as set out in the Key Terms.

Commencement Date means the date in Item 1 of the Key Terms.

Confidential Information of a party means:

  1. all information of a confidential nature in connection with the Services which that party discloses (or which is disclosed on its behalf) to another party; and
  2. developments and improvements to that information,

in each case, regardless of the form that the information takes (including whether written or oral, an original or a copy), who created it, who discloses it, whether it is disclosed before, on or after the date of this Document and whether or not it is marked "Confidential".  

Without limiting this definition, Confidential Information includes Financial Professional Data, Intellectual Property, customer, supplier or member lists, tools, prototypes, specifications, technical drawings or plans, the product of any research, data, software, databases, source codes, technology, artwork, systems, methodologies, know-how, manuals, business plans, operating procedures and all financial, accounting, marketing, personnel and technical information, used by the party in connection with or relating to the Services, but excludes any Excluded Information.

Corporations Act means the Corporations Act 2001 (Cth).

CPI means the Consumer Price Index - All Groups Sydney as posted by the Australian Bureau of Statistics from time to time.

Data Security Regulations means applicable U.S federal, state and local laws and regulations relating to the privacy, confidentiality or security of information relating to an identified or identifiable individual including, without limitation: the GLBA; security breach notification laws; laws imposing minimum security requirements; laws requiring the secure disposal of records containing certain Personal Data; and all other similar federal, state, and local requirements. 

Document means this agreement and includes all its schedules, annexures and exhibits, if any.

Excluded Information means any information which:

  1. is in, or subsequently comes into, the possession of the receiving party without violation of any obligation of confidentiality; 
  2. is, at the time of disclosure, already known to the receiving party without restriction on disclosure;
  3. is, or which becomes (other than through a breach of this Document), available in the public domain or otherwise available to the public generally without requiring a significant expenditure of labour, skill or money; 
  4. is independently developed by the receiving party without breach of this Document; or
  5. a party is required to disclose by law, by the rules of any securities exchange on which a party's securities are listed or traded, by any regulatory or governmental or other authority with relevant powers to which the party is subject or submits, whether or not such authority's requirement has the force of law, or by any court order.

Fees means the Subscription Fee and the Additional Fees.

Force Majeure Event means any of the following causes provided that they are outside the reasonable control of the affected party and could not have been prevented or avoided by that party taking all reasonable steps:

  1. act of God, earthquake, cyclone, fire, explosion, flood, landslide, pandemic, lightning, storm, tempest, drought or meteor;
  2. war (declared or undeclared), invasion, act of a foreign enemy, hostilities between nations, civil insurrection or militarily usurped power;
  3. act of public enemy, sabotage, malicious damage, terrorism or civil unrest;
  4. confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any government or government authority; 
  5. industrial action not specific to a party; or
  6. power failure or telecommunications failure or hosting provider failure.

GST has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

GLBA means the Gramm-Leach-Bliley Act, as amended. 

Insolvency Event means any of these events:

  1. in relation to a natural person:
    1. the person dies or becomes mentally or physically incapable of managing their affairs or an order is applied for or made to place their assets and affairs under administration pursuant to any law relating to mental health;
    2. an order of bankruptcy or sequestration of the person’s estate is made; or
    3. a trustee in bankruptcy is appointed to the person’s estate or any agent (however described including, an administrator or controlling trustee) is appointed in respect of that person or any of their assets; and
  2. in relation to a corporation:
    1. an order is made that the corporation is to be wound up;
    2. a liquidator, provisional liquidator, administrator, controller, managing controller, receiver or receiver and manager is appointed in relation to the corporation or any of its assets, or any action is taken which is preparatory to the appointment of such person;
    3. the corporation executes a deed of company arrangement or enters into a compromise or arrangement with another person;
    4. the corporation resolves to wind itself up or otherwise dissolves itself, or gives notice of intention to do so; or
    5. the corporation becomes unable to pay its debts as and when they become due and payable or states that it is unable to do so, or is deemed unable to do so under the Corporations Act 2001 (Cth) or any other applicable law.

Intellectual Property means copyrights, trade and service marks, trade names, rights in logos and get-up, inventions, confidential information, trade secrets and know-how, registered designs, design rights, patents, utility models, semi-conductor topographies, all rights of whatsoever nature in computer software and data, all rights of privacy and all intangible rights and privileges of a nature similar or allied to any of the foregoing, in every case in any part of the world and whether or not registered; and including all granted registrations and all applications for registration in respect of any of the same.

Key Terms means the key terms section on page 2 of this Document. 

Lumiant Package means the service you are subscribed to.

Materials means the documentation content available relating to the Services including (but not limited to) manuals, reports, training and onboarding material, tutorials, mentorship content, educational videos and presentation tools.

Misuse means using the Services in breach of any of the terms of this Document and includes using the Services or the content derived from the Services to do any of the following things:

  1. reproducing, distributing, transmitting or retransmitting the content of the Services (including but not limited to the Materials) in any form including uploading, reposting and/or framing the content of the Services to any other site or location;
  2. impersonating another person or misrepresenting authorisation to act on behalf of others or Lumiant;
  3. incorrectly identifying or disguising the sender of any electronic transmission;
  4. impairing the functionality of the Underlying Systems or impair the ability of any other user to use the Services;
  5. to send unsolicited commercial electronic messages;
  6. to violate the privacy of others, to stalk, harass, bully or intimidate others, for any illegal purpose; 
  7. to post, upload, share, submit, or otherwise provide any content that is Objectionable, encourages unlawful conduct, contains viruses, bots, worms, scripting exploits, or other similar materials, or could otherwise cause damage to Lumiant, any Third Party Provider or any third party; or
  8. in any manner that does not comply with all applicable laws of Australia, or of any other relevant jurisdiction.

Objectionable includes being objectionable, discriminatory, defamatory, obscene, indecent, pornographic, harassing, threatening, hateful, harmful, deceptive, fraudulent, or unlawful in any way.

Personal Information has the meaning given in the Privacy Act 1988 (Cth) or any information relating to an identified or identifiable individual which data is subject to Data Security Regulations.  

Privacy Act means the Privacy Act 1988 (Cth) and any other applicable privacy law.

Privacy Policy means Lumiant's privacy policy from time to time as published on the Website.

SaaS Service means the software as a service offering as set out in the Key Terms.

Services means the SaaS Service and the Additional Services.

Subscription Fee means the fee as set out in the Key Terms, as updated from time to time in accordance with clause 4.3 (Fee Increases).

Term means the period as set out in the Key Terms commencing on the Commencement Date.

Third Party Provider means a third party approved that is either contracted or licensed by Lumiant: 

  1. to receive and use the Financial Professional Data;
  2. to assist Lumiant in fulfilling its obligations under the terms of this Document; or 
  3. otherwise provides services to the Financial Professional or Lumiant in connection with the Services.

Underlying Systems means the software, information technology solutions, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems and networks.

Website means the internet site available at https://lumiant.com.au or such other site(s) as may be notified to the Financial Professional by Lumiant from time to time.

Year means a 12 month period starting on the Commencement Date or the anniversary of that date.

  1. Interpretation
    1. Unless the context otherwise requires, a reference to:
      1. any thing (including an amount or a provision of this Document) is a reference to the whole and each part of it;
      2. a document (including this Document) includes the document as novated, varied, supplemented or replaced;
      3. $, dollar or A$ is a reference to Australian currency;
      4. a time is to the time in New South Wales, Australia;
      5. a person (including a party to a document) includes their executors, administrators, successors, assigns and substitutes (including persons taking by novation) and, in the case of a trustee, includes an additional trustee;
      6. a group of persons (including a party comprising two or more persons) means any two or more of them jointly and each of them individually;
      7. an accounting term means that term as it is used in the Accounting Standards issued by the Australian Accounting Standards Board;
      8. law means common law, equitable principles and laws made by a parliament;
      9. a law made by a parliament (including a statute, ordinance or code) includes regulations and other instruments under it, and consolidations, amendments, re-enactments or replacements of it;
      10. person includes any entity, such as an individual, a partnership, a body corporate, an unincorporated association, an agency or an authority;
      11. in connection with this Document is to be given the widest possible meaning and so includes anything (including a transaction) contemplated by this Document;
      12. a word or expression defined in the Corporations Act has the meaning given in that Act;
      13. the singular includes the plural and vice versa; and
      14. a word denoting a particular gender includes the other genders.
    2. Unless the context otherwise requires:
      1. a provision of this Document:
        1. in favour of two or more persons is for their joint benefit and for each of them individually; and
        2. given by two or more persons binds them jointly and each of them individually;
      2. if this Document requires an obligation to be performed (or something to happen) on or before a particular day and that day is not a Business Day, the obligation may be performed (or the thing is permitted to happen) on or by the next Business Day; and
      3. where something is done (or happens) after 5.00 pm on a particular day, it is treated as being done (or having happened) on the next Business Day.
    3. Headings are for ease of reference and do not affect the interpretation of this Document.
    4. A rule of construction that would otherwise disadvantage a party because the party was responsible for the preparation of this Document, does not apply.
    5. The meaning of any general words is not limited by specific examples introduced by including, for example, such as or a similar expression.

  1. Services

    1. General
      1. Lumiant will use reasonable efforts to provide the Services to the Financial Professional in accordance with and subject to this Document.
      2. Lumiant’s provision of the Services to the Financial Professional is non-exclusive. Nothing in this Document prevents Lumiant from providing the Services to any other person.
      3. Lumiant only agrees to provide the Services to the Financial Professional, and not to any Related Body Corporate of the Financial Professional or any other party. Where any party other than the Financial Professional wishes to benefit from the Services, that party must enter into a separate agreement with Lumiant.
    2. Lumiant package
      1. The package of modules included with your SaaS Service.
      2. Your package will include the  below modules.

 

Starter Professional Enterprise^
  • Your Lifebook
  • Your Life
  • Your Values
  • Your Goals
  • Your Investment Preferences
  • Your Tasks
  • Your Vault (Lite)
  • Your Lifebook
  • Your Life
  • Your Values
  • Your Goals
  • Your Investment Preferences
  • Your Tasks
  • Your Vault
  • Your Wealth
  • Your Best Life
  • Your Lifebook
  • Your Life
  • Your Values
  • Your Goals
  • Your Investment Preferences
  • Your Tasks
  • Your Vault
  • Your Wealth
  • Your Best Life
^ And any further inclusions per your Enterprise Agreement
  1. Over time Lumiant may release more features and modules that may be added to your Lumiant Package within the agreed Subscription Fee.
  1. Availability
    1. Subject to clause 2.2(b), Lumiant will use reasonable efforts to ensure the Services are available on a 24/7 basis. However, it is possible that on occasion the Services may be unavailable to permit maintenance or other development activity to take place, or in the event of a Force Majeure Event. Lumiant will use reasonable endeavours to publish on the Website and/or notify the Financial Professional by email advance details of any unavailability. 
    2. The Services interoperate with a range of third party service features through the use of internet services and application programming interfaces (APIs). Lumiant does not make any warranty or representation as to the availability of those features.  Without limiting the foregoing, if a Third Party Provider ceases to provide a feature or ceases to make a feature available on reasonable terms, Lumiant may cease to make available that feature to the Financial Professional. For the avoidance of doubt, if Lumiant exercises its right to cease to make available a third party feature, the Financial Professional is not entitled to any refund, discount or other compensation.
  2. Additional Services and Variation of Services
    1. Lumiant may recommend, or the Financial Professional may request, from time to time:
      1. the Additional Services; or
      2. variations to any part of the Services,

on the terms of this Document.

  1. Any such request by the Financial Professional must be made in writing. Lumiant will not be obliged to accept any changes to the Services. 
  2. Without limiting this clause 2.3 (Additional Services and Variation of Services) all other terms set out in this Document shall remain unchanged and the Additional Services or varied Services as accepted by Lumiant shall be deemed integrated into this Document for all purposes. 

  1. Financial Professional Obligations

    1. General
      1. The Financial Professional and its personnel must:
        1. use the Services in accordance with this Document solely for the Financial Professional’s own internal business and lawful purposes; and
        2. not resell or make available the Services to any third party, or otherwise commercially exploit the Services.
      2. When accessing the Services, the Financial Professional and its personnel must not Misuse the Services in any way.
    2. Authorisations

The Financial Professional is responsible for procuring all licences, authorisations and consents required for it and its personnel to use the Services, including to use, store and input Financial Professional Data into, and process and distribute Financial Professional Data through, the Services.

  1. Third Party Providers

The Financial Professional agrees to be bound by the terms and conditions of any Third Party Provider in connection with any services provided by such Third Party Provider to the Financial Professional in connection with the Services.

  1. Fees and expenses

    1. Payment of Fees
      1. The Financial Professional must pay the Fees to Lumiant and any other ongoing payments as they fall due electronically in cleared funds without any set off or deduction.
      2. Your payment cycle is agreed upon in the Key Terms. Changes can be made to your billing cycle in accordance with the below.
        1. The agreement does not have a monthly (Pay As You Go) Term.
        2. When the agreement has a billing cycle which is monthly and you wish to move to annual payments.
        3. When the agreement has a billing cycle which is annual and you wish to move to monthly payments, it will come into effect at the next billing cycle.
        4. Changing your billing cycle will change any discount applicable under Item 12 in the Key Terms.
    2. Interest

Lumiant may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by Lumiant’s primary trading bank as at the due date (or, if Lumiant’s primary trading bank ceases to quote that rate, then the rate which in the opinion of Lumiant is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.

  1. Fee increases 

The Subscription Fee will increase on each anniversary of the Commencement Date by an amount equal to CPI for the quarter ending on or immediately before that date.

  1. Additional Fees

Where the provision of Additional Services (including any integration services and/or customisation of the SaaS Service) has been agreed by the parties, the Financial Professional must pay the Additional Fees on the terms agreed by the parties. 

  1. Expenses
    1. Lumiant may incur expenses on the Financial Professional’s behalf in relation to the Services after obtaining the Financial Professional’s consent to do so.
    2. The Financial Professional must pay Lumiant all expenses reasonably and properly incurred by Lumiant in providing the Services.

  1. Financial Professional Data

    1. Access to Financial Professional Data
      1. The Financial Professional acknowledges that:
        1. in order to exercise its rights and perform its obligations under this Document, Lumiant may require access to the Financial Professional Data; and
        2. subject to clause 7 (Confidentiality), Lumiant may authorise a member or members of its personnel to access the Financial Professional Data to the extent that this is reasonably necessary or desirable in order to exercise its rights and perform its obligations under this Document.
      2. The Financial Professional must arrange all necessary consents and approvals to allow Lumiant to access the Financial Professional Data as described in clause 4.1(a) (Payment of Fees).
    2. Analytical Data

The Financial Professional acknowledges and agrees that:

  1. Lumiant may:
    1. use Financial Professional Data and information about the Financial Professional(s) and the Financial Professional’s end users’ use of the Services to generate anonymised and aggregated statistical and analytical data (Analytical Data); and
    2. use the Analytical Data for Lumiant’s internal research and product development purposes and to conduct statistical analysis and identify trends and insights; and
    3. supply the Analytical Data to third parties;
  2. title to, and all Intellectual Property rights in, the Analytical Data is and remains Lumiant’s property; and
  3. Lumiant’s rights under this clause 5.2 (Analytical Data) will survive termination of expiry of this Document.
  1. Agent
    1. The Financial Professional acknowledges and agrees that to the extent Financial Professional Data contains Personal Information, in collecting, holding and processing that information through the Services, Lumiant is acting as an agent of the Financial Professional for the purposes of the Privacy Act or GBLA depending on the relevant jurisdiction.
    2. The Financial Professional must obtain all necessary consents from all relevant individuals to enable Lumiant to collect, use, hold and process their Personal Information in accordance with this Document and the Privacy Policy.
  2. Backups of Financial Professional Data

While Lumiant will take reasonable measures to back up all Financial Professional Data stored using the Services, the Financial Professional agrees to keep a separate back-up copy of all Financial Professional Data uploaded by it onto the Services.

  1. Indemnity

The Financial Professional indemnifies Lumiant against any liability, claim, proceeding, cost, expense (including legal fees) and loss of any kind arising from any actual or alleged claim by a third party that any Financial Professional Data infringes the rights of that third party (including Intellectual Property rights and privacy rights) or that the Financial Professional Data is Objectionable, incorrect or misleading.

  1. Intellectual Property

    1. Ownership of Intellectual Property
      1. Subject to clause 6.1(b), title to, and all Intellectual Property rights in, the Services, the Materials, the Website, and all Underlying Systems is and remains the property of Lumiant. The Financial Professional must not contest or dispute that ownership, or the validity of those Intellectual Property rights.
      2. Lumiant grants the Financial Professional a limited, non-exclusive and non-transferable licence to access, reproduce, modify and use the Materials for its internal business purposes and in connection with the relationship between the Financial Professional and:
        1. its employees and contractors; and
        2. persons who provide personal services to the Financial Professional as a business.
      3. Title to, and all Intellectual Property rights in, the Financial Professional Data (as between the parties) remains the property of the Financial Professional. The Financial Professional grants Lumiant a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Financial Professional Data for any purpose in connection with the exercise of its rights and performance of its obligations in accordance with this Document. 
      4. To the extent not owned by Lumiant, the Financial Professional grants Lumiant a royalty-free, transferable, irrevocable and perpetual licence to use for Lumiant’s own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by Lumiant in the provision of the Services.
      5. If the Financial Professional provides Lumiant with ideas, comments or suggestions relating to the Services or Underlying Systems (Feedback):
        1. all Intellectual Property rights in that Feedback, and anything created as a result of that Feedback (including new material, enhancements, modifications or derivative works), are owned solely by Lumiant; and
        2. Lumiant may use or disclose the Feedback for any purpose.
      6. The Financial Professional acknowledges that the Website and/or the Services may link to third party websites or feeds that are connected or relevant to the Website or Services. Any link from the Website and/or Services does not imply any endorsement, approval or recommendation of, or responsibility for, those websites or feeds or their content or operators.  To the maximum extent permitted by law, Lumiant excludes all responsibility or liability for those websites or feeds.

 

  1. Confidentiality 

    1. Obligations limited to information received by each party

This clause 7 (Confidentiality) applies to each party in relation to the Confidential Information of another party received by it in connection with this Document.

  1. Confidentiality obligations

Each party must:

  1. use the Confidential Information only for the purposes of or contemplated by this Document;
  2. keep the Confidential Information confidential (including by taking reasonable precautions to maintain its confidentiality) and not disclose it to any person (other than as permitted below); and
  3. take reasonable steps to ensure that any person to whom Confidential Information is disclosed under clause 7.3(b) or clause 7.3(c) (Permitted disclosure) does likewise. 
  1. Permitted disclosure

However, a party may disclose the Confidential Information:

  1. to its Related Bodies Corporate;
  2. to its officers, employees, auditors and Financial Professionals (and the officers, employees, auditors and Financial Professionals of a Related Body Corporate), but only to the extent that they need to know that information and only if they agree to keep it confidential; 
  3. to any person with the prior written consent of the disclosing party; and
  4. if required by law, by a court, tribunal, authority or regulatory body, by the rules of a stock exchange or in connection with enforcing this Document.
  1. Exceptions to Confidential Information

Clause 7.2 (Confidentiality obligations) does not apply to information which, at the time of disclosure, is public knowledge (other than because of a breach of this Document or of any other obligation of confidentiality).  Also, if information becomes public knowledge after disclosure (again other than because of a breach of confidentiality), clause 7.2 (Confidentiality obligations) ceases to apply to that information from then onwards.

  1. Continuing obligations

The obligations in this clause 7 (Confidentiality) are continuing obligations, independent of a party's other obligations under this Document and continue even after this Document expires or is terminated.

 

  1. Privacy 

    1. The Financial Professional’s warranty regarding collection and disclosure

The Financial Professional warrants to Lumiant that:

  1. any Personal Information that the Financial Professional discloses to Lumiant has been collected in accordance with the Privacy Act;
  2. where required, each individual to whom the Personal Information relates has been made aware of Lumiant's existence or identity and of the other matters which (under the Privacy Act) the Financial Professional is required to inform them about; and
  3. the disclosure of that Personal Information to, and its use by, Lumiant is authorised by or under the Privacy Act.

  4. any Personal Information that the Financial Professional discloses to Lumiant has been collected in accordance with GLBA;

  5. where required, each individual to whom the Personal Information relates has been made aware of Lumiant’s existence or identity and of the other matters which (under the GLBA) the Financial Professional is required to inform them about; and

  6. the disclosure of that Personal Information to, and its use by, Lumiant is authorized by or under the Data Security Regulations.

  1. Lumiant’s obligations
    1. In providing the Services, Lumiant must comply with the Privacy Policy as such document may be amended from time to time by Lumiant in its sole discretion;
    2. In relation to any Personal Information that the Financial Professional discloses to Lumiant, Lumiant must:
      1. not disclose, store, transfer or handle the information except in accordance with the Privacy Act;
      2. take all reasonable steps to ensure that the information is protected from misuse or loss, and from unauthorised access, modification or disclosure;
      3. take all reasonable steps to destroy or permanently de-identify information that is no longer needed for the purposes of this Document;
      4. co-operate with any reasonable request or direction by the Financial Professional which relates to the protection of the information or the exercise of the functions of the Australian Information Commissioner under the Privacy Act;
      5. ensure that access to the information is limited to those of its employees and contractors who are required to access that information for the purposes of this Document; and
      6. comply with any reasonable direction by the Financial Professional in relation to a complaint it receives concerning privacy.

  1. Warranties and Disclaimers

    1. Mutual Warranties

Each party warrants to each other party that each of the following statements is true and accurate as at the date of this Document:

  1. if it is a corporate entity, it is validly existing under the laws of its place of incorporation; 
  2. it has the power and capacity to enter into and perform its obligations under this Document and to carry out the transactions contemplated by this Document;
  3. it has taken all necessary action to authorise the signing, delivery and performance of this Document and to carry out the transactions contemplated by this Document; and
  4. its obligations under this Document are valid and binding and enforceable against it in accordance with their terms.
  1. No implied warranties

The Services are provided on an 'as is, as available' basis and to the full extent permitted by law:

  1. Lumiant’s warranties are limited to those set out in this Document, and all other conditions, guarantees, warranties, representations or terms whether expressed or implied by statute or otherwise are expressly excluded, except any implied condition or warranty the exclusion of which would contravene any statute or cause this clause to be void; and
  2. Lumiant excludes:
    1. all liability to the Financial Professional for consequential or indirect damages arising out of or in connection with this Document; and 
    2. all liability to the Financial Professional in negligence arising out of or in connection with this Document.
  3. Lumiant makes no representation concerning the quality of the Services or the Materials and does not promise that the Services or the Materials will:
    1. meet the Financial Professional’s requirements or be suitable for a particular purpose; or
    2. be secure, free of viruses or other harmful code, uninterrupted or error free.
  4. Lumiant makes no representation of any kind, express or implied, with respect to the Services; and
  5. Lumiant makes no warranty or representations in relation to the performance of third party software or equipment, which may be included in the Services.
  1. Limitation of remedies 

Where legislation or rule of law implies into this Document any condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in this Document. However, the liability of Lumiant for any breach of that condition or warranty is limited, at Lumiant’s option, to:

    1. supplying the Services again; and/or
    2. paying the costs of having the Services supplied again.
  1. Security

 

    1. Lumiant will implement reasonable and appropriate measures designed to help secure Financial Professional Data against accidental or unlawful loss, access or disclosure. This includes:
      • Network and Infrastructure Security
      • Host and Endpoint Security
      • Data Protection and Encryption (in transit and at rest)
      • Logging, Monitoring, Threat Detection and Analytics
      • Identity and Access Control; and
      • Application SecurityOur Cloud platform provider complies with a number of IT security assurance programs including:
      • SOC 1/ISAE 3402, SOC 2, SOC 3
      • PCI DSS Level 1
      • ISO 9001, ISO 27001, ISO 27017, ISO 27018 Data Privacy
  1. Lumiant will ensure that Financial Professional Data is only stored within Australian based data stores. We will not access or use Financial Professional Data except as necessary to maintain or provide the Service Offerings, or as necessary to comply with the law or a binding order of a governmental body.
  2. EXCLUSION OF WARRANTIES; AS IS. THE PROVISION OF THE SERVICES HEREUNDER ARE MADE AVAILABLE “AS IS, AS AVAILABLE”. LUMIANT EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND RELATING TO THE SERVICES HEREUNDER, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY FINANCIAL PROFESSIONAL FROM LUMIANT CREATE ANY WARRANTY.

 

  1. Liability

    1. Limitation of Liability.  REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL LUMIANT OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE PRODUCT BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE PRODUCT EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  

IN NO CASE SHALL LUMIANT’S AGGREGATE LIABILITY FOR ANY ONE MATTER ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AMOUNT ACTUALLY RECEIVED BY LUMIANT FROM FINANCIAL PROFESSIONAL UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE OCCURRENCE OF SUCH MATTER, AND FOR ALL MATTERS, IN THE AGGREGATE, THE TOTAL AMOUNT ACTUALLY RECEIVED BY LUMIANT FROM FINANCIAL PROFESSIONAL UNDER THIS AGREEMENT.

  1. Maximum liability

The maximum aggregate liability of Lumiant under or in connection with this Document or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any Year exceed an amount equal to the Fees paid by the Financial Professional under this Document in the previous Year (which in the first Year is deemed to be the total Fees paid by the Financial Professional from the Commencement Date to the date of the first event giving rise to liability). 

  1. Unrecoverable loss

Lumiant is not liable to the Financial Professional under or in connection with this Document or the Services for any: 

  1. loss of profit, revenue, savings, business, use, data (including Financial Professional Data), and/or goodwill; or
  2. consequential, indirect, incidental or special damage or loss of any kind.
  1. Unlimited liability

The limitations set out in this clause 10 (Liability) shall not apply to any claim which is the consequence of fraud or dishonesty by or on behalf of Lumiant.

  1. Indemnity

    1. Indemnity 

The Financial Professional indemnifies Lumiant against loss or damage in connection with:

  1. a breach of this Document by the Financial Professional, including breach of any warranty;
  2. a wilful, unlawful or negligent act or omission by the Financial Professional (or by any person on its behalf, including a Related Entity, officer, employee, agent or subcontractor);
  3. the Financial Professional damaging or causing damage to or loss of any tangible property; 
  4. the Financial Professional infringing the intellectual property rights of a third party;
  5. the Financial Professional breaching a duty of confidentiality; or
  6. personal injury to, or the death of, any person.

For the purpose of this clause 11 (Indemnity), "loss or damage" includes normal loss which any person in Lumiant's situation might suffer (including direct costs, charges or expenses (including full indemnity legal costs)) and consequential loss (including indirect costs, charges or expenses (including full indemnity legal costs), damages or compensation, lost profits, lost revenue, lost opportunity costs, lost data, loss of management time, loss of goodwill or reputation, public liability and failure to realise anticipated savings).

  1. Extension of indemnity

The Financial Professional also indemnifies Lumiant’s Related Entities, agents, subcontractors, officers and employees as if clause 11.1 (Indemnity) was repeated here and they were named in place of Lumiant throughout.  

  1. Proportionate liability excluded

To the extent permitted by law, the operation of any legislative proportionate liability regime (such as under Part 4 of the Civil Liability Act 2002 (NSW)) is excluded in relation to any claim against the Financial Professional under this indemnity (whether under clause 11.1 (Indemnity) or clause 11.2 (Extension of indemnity)).

  1. Term and termination 

    1. Term

Unless terminated under this clause 12 (Term and termination) this Document starts on the Commencement Date and continues for the Term.

  1. All contracts will auto-renew based on the terms of the original agreement, your Lumiant subscription will continue, and automatically renew until cancelled. Unless you request for cancellation 3 months prior to your anniversary billing date, you authorise Lumiant to automatically renew your subscription for another term.
  2. The term of this Subscription Agreement shall begin on the Effective Date and continue for the term of the contract, automatically renewing for successive term period as defined in the original contract unless either party gives the other party written notice of non-renewal at least ninety (90) days before the end of the then-current term. The pricing for each renewal term shall be the firm's then-current pricing, unless otherwise agreed in writing
  1. Termination by notice

Lumiant may terminate this Document at any time during the Term by giving no less than 6 months’ prior written notice to the other party. 

  1. Immediate termination

A party may terminate this Document with immediate effect by so notifying the other party if:

  1. the other party breaches any material provision of this Document and the breach is not:
  1. remedied within 20 Business Days of the receipt of a notice from the first party requiring it to remedy the breach; or
  2. capable of being remedied;
  1. an Insolvency Event occurs in respect of the other party;
  2. in accordance with clause 13 (Force majeure (inability to perform)).

 

  1. Force majeure (inability to perform)

    1. Obligations suspended 

If a party is unable to perform or is delayed in performing an obligation under this Document because of a Force Majeure Event, then that obligation is suspended but only so far and for so long as it is affected by the Force Majeure Event. However, this clause 13.1 (Obligations suspended) does not apply to an obligation to pay money.

  1. No liability

A party is not liable for any loss or liability suffered or incurred by the other party as a result of the first party's inability to comply with its obligations (other than an obligation to pay money) due to a Force Majeure Event.  This applies for so long as the effects of the Force Majeure Event continue to prevent the first party from complying.

  1. Obligations to keep informed and to mitigate

A party affected by a Force Majeure Event must:

  1. notify the other party as soon as it becomes aware that it is (or is likely to be) so affected, giving reasonable details of the Force Majeure Event and the obligations that will be affected;
  2. do everything reasonably necessary to overcome the effect of the Force Majeure Event and must comply again with its obligations as soon as possible; and
  3. keep the other party informed of the expected duration of the effect of the Force Majeure Event and the steps it takes to comply with clause 13.3(b).
  1. Termination for Force majeure

If a party is delayed from performing an obligation under this clause 13 (Force majeure (inability to perform)) for more than 20 Business Days, then the unaffected party may terminate this Document by notice in writing.

  1. Notices

    1. Form and delivery

A communication under this Document (such as a notice, demand, consent, waiver or approval) must:

  1. be in writing, in English and signed by a person duly authorised by the sender; 
  2. be marked for attention as specified under the recipient's details at the beginning of this Document; 
  3. be hand delivered, sent by prepaid post or emailed to the recipient’s address for notices specified in the details at the beginning of this Document.

However, if the recipient has notified a different Attention detail or address for the purposes of this clause 14 (Notices), the communication must be marked for attention as last notified, or delivered, sent, or emailed to the address last notified. If more than one email address is specified for or notified by the recipient, the email must be sent to each of those addresses.

  1. When effective

A communication given in accordance with clause 14.1 (Form and delivery) takes effect when it is taken as received (or at any later time specified in it).

  1. When received
    1. A communication that complies with clause 14.1 (Form and delivery) and is:
      1. hand delivered, is taken as received on delivery;
      2. sent by prepaid post, is taken as received on the second Business Day after the date of posting (or on the seventh Business Day after the date of posting if posted to or from a place outside Australia);
      3. emailed, is taken as received at the earliest of the following times:
        1. the time stated in the 'Sent' line in the header of the sender's copy of the email unless the sender receives a message from its internet service provider or the recipient’s mail server, within 2 hours after sending, indicating that it has not been successfully transmitted (in which case, the communication is treated as not received);
        2. the time the sender receives a message from the recipient's information system confirming delivery of the email; or
        3. the time the email is available to be read at the recipient's email address.
    2. However, if, without this clause 14.3(b) communication would otherwise be taken as received:
      1. on a day that is not a Business Day; or
      2. after 5.00 pm on a Business Day, 

it is taken as received at 9.00 am on the next Business Day.

  1. Dispute resolution

    1. Dispute resolution before legal proceedings

A party must not:

  1. commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute between the parties in connection with this Document unless the dispute has been referred for resolution in accordance with this clause 15 (Dispute Resolution);
  2. oppose an application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this clause 15 (Dispute Resolution).
  1. Referral to senior management

If a dispute arises between any parties in connection with this Document, one of them may give the other party a notice of the dispute (Dispute Notice).  Each party to the dispute must immediately refer the dispute to its senior management. The senior management representatives must endeavour to resolve the dispute as soon as possible and in any event within five Business Days of the Dispute Notice (or any other period agreed by them) (Negotiation Period).

  1. Referral to expert

If a dispute is not settled by negotiation between the representatives by the end of the Negotiation Period, it must be referred to an expert for a binding determination.  The expert must be agreed between the parties within five Business Days of the expiry of the Negotiation Period, or failing agreement, appointed by the Chair for the time being of Resolution Institute in accordance with Resolution Institute’s Mediation Rules.

  1. Terms of referral

A dispute submitted to an expert must be dealt with in the following manner:

  1. the parties must provide all relevant documentation to the expert within 10 Business Days of the expert’s appointment, and may make written submissions to the expert during this period;
  2. the expert must undertake to make their determination within 10 Business Days after receiving all relevant information and submissions;
  3. the expert acts as an expert and not an arbitrator in making the determination.  The determination of the expert is binding on the parties, subject to manifest error;
  4. the costs of the expert must be shared equally between the parties to the dispute.
  1. Continued performance

Each party must continue to perform its obligations under this Document even if there is a current dispute (whether or not the dispute has been referred to an expert).

  1. Clause not affected by termination or expiry

This clause 15 (Dispute resolution) survives termination or expiry of the Document.

  1. Confidentiality
    1. Each party acknowledges that information (including any offer of settlement) or documents disclosed during the dispute resolution process are disclosed solely to attempt to settle a dispute.  Accordingly:
      1. each party must treat as confidential all such information and documents; and
      2. no party may use any such information or documents for any purpose other than attempting to settle the dispute.  
    2. However, a party may disclose any such information or documents if required by law, by an order of a court, tribunal or authority, by a regulatory body or by the rules of a stock exchange.

  1. Miscellaneous 

    1. Counterparts

This Document may be executed in counterparts (that is, separate copies of the same document, each signed by one party.  All executed counterparts constitute one agreement. 

  1. Further action

Each party must do everything reasonably necessary (including executing documents, obtaining consents and getting documents completed and executed) to give full effect to this Document and the transactions contemplated by it.  These things must be done at the relevant party's own expense.

  1. Variations and waivers only in writing
    1. This Document may only be varied (including varying the parties by novation) or supplemented in writing signed by each party.  
    2. A right created under this Document may only be waived in writing signed by the party giving the waiver.
    3. An electronic signature or an electronic communication is not sufficient for the purposes of this clause 16.3 (Variations and waivers only in writing).
  2. Exercising rights and giving consents
    1. Without limiting clause 16.3(b) (Variations and waivers only in writing), a party does not waive a right or remedy if it fails to exercise the right or remedy or delays in exercising the right or remedy.  A single or partial exercise of a right or remedy does not prevent another or further exercise of that or another right or remedy.
    2. A party may exercise a right or remedy in any way it sees fit (including by imposing conditions), except where this Document expressly states otherwise.  However, a party must not unreasonably withhold its consent or impose unreasonable conditions in connection with a consent, except where this Document expressly states otherwise. 
  3. Assignment

The Financial Professional is not entitled to assign a right under this Document without the prior written consent of Lumiant.  A purported assignment in breach of this clause 16.5 (Assignment) is void.  A party breaches this Document if it attempts or purports to assign a right other than in accordance with this clause 16.5 (Assignment). 

  1. This Document and the general law
    1. A party's rights and remedies under this Document are in addition to other rights and remedies given by law independently of this Document.
    2. A party's rights and obligations under this Document are not affected by anything which might otherwise affect them at law.
  2. Nature of indemnities

Each indemnity in this Document is a continuing obligation, independent of the party's other obligations and survives termination or expiry of this Document.  It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity given in this Document.  Without limiting clause 16.6(a) (This Document and the general law), a right of indemnity given in this Document is in addition to any common law rights.

  1. Certain things not affected by termination
    1. Termination or expiry of this Document does not prevent a party from acquiring rights in connection with an act or omission occurring before termination or expiry nor does it affect rights that have accrued on or before termination or expiry.
    2. Any other term which, by its nature, is intended to survive termination or expiry of this Document survives such termination or expiry.  
  2. No merger

The rights and obligations of the parties under this Document do not merge on completion of any transaction contemplated by this Document (including by the execution of any document which is contemplated by this Document and consistent with it).

  1. Severability and reading down
    1. If a provision of this Document would otherwise be illegal, void or unenforceable or impose an obligation or liability that is prohibited by law, the provisionis to be read down to the extent necessary to be enforceable or to comply with the law whilst still largely reflecting the parties' commercial intentions as apparent from this Document.
    2. If clause 16.10(a) is not possible, the Document is to be read as if the provision was omitted.
    3. In either case, the remaining provisions of this Document continue in force.
    4. This clause does not apply to an essential provision, to a provision that relates to the consideration under this Document or to one of two or more provisions that can reasonably be interpreted as being intended to operate reciprocally or not at all.
  2. No relationship

Except where this Document expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties and neither party has authority to act on behalf of, or bind, the other party.

  1. Costs 

Each party must pay its own costs in connection with this Document. 

  1. Entire agreement and no reliance
    1. This Document constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements, promises or understandings between the parties in connection with its subject matter.
    2. Each party warrants that:
      1. it has been given ample opportunity to obtain independent legal advice in relation to the terms of this Document and to negotiate the terms of this Document;
      2. it has not been provided with any legal, financial or other advice in connection with this Document by the other party to the Document;
      3. it enters into this Document relying only on the Document itself and the party's own investigations (including independent advice received by it); and
      4. (without limiting clause 16.13(b)(iii)), in entering into this Document, it does not rely on any representation or warranty made by or on behalf of the other party in relation to this Document (including during the negotiations leading up to this Document) other than those contained in the Document itself.
  2. Governing law and jurisdiction

This Document is governed by the laws of New South Wales, Australia.  Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales, Australia.

 

17. HALO Terms of Service

  1. NOT MEDICAL ADVICE

HALO by Lumiant (thereafter HALO) does not offer medical or financial advice. Any content accessed through HALO is for informational purposes only, and is not intended to cover all possible uses, directions, precautions, drug interactions, or adverse effects. This content should not be used for the diagnosis or treatment of any medical condition. Please consult your doctor or other qualified healthcare provider if you have any questions about a medical condition, or before taking any drug, changing your diet or commencing or discontinuing any course of treatment. Do not ignore or delay obtaining professional medical advice because of information accessed throughLumiant. Call your local emergency services or your doctor for all medical emergencies.

  1. YOUR ACCOUNT AND USE OF HALO

You must provide accurate and complete registration information any time you register to use HALO. You are responsible for the security of your passwords and for any use of your account. You must immediately notify HALO of any unauthorized use of your password or account by sending an email halo-support@lumiant.io Your use of HALO and any content accessed through HALO must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software. You must be at least 18 years old to use HALO. You may not access HALO other than by the interfaces provided by HALO or interfere with or disrupt the proper operation of HALO.

  1. USE OF YOUR INFORMATION

If you create, transmit, or display health or other information while using HALO, you may provide only information that you own or have the right to use. When you provide your information through HALO, you give HALO a license to use and distribute it in connection with HALO and other HALO services. However, HALO may only use and transmit to third parties any health information you provide as directed by you, as described in the HALO Privacy Policy, as described in your Sharing Authorization, or as permitted or required by applicable law. HALO is not a “covered entity” under the Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated thereunder (“HIPAA”). As such, HIPAA does not apply to the transmission of health information to any third party.

  1. ADDITIONAL TERMS

Your use of HALO and any content accessed through HALO is subject to each of the additional terms provided in connection with HALO, including the HALO Privacy Policy and the HALO Legal Notices.

  1. CONTENT AND SERVICES ACCESSED THROUGH Lumiant

HALO may include content that you find offensive, including health-related content that is sexually explicit. HALO may make third-party services available through HALO. In order to use a specific service, you may choose to allow the third-party service provider to retrieve, provide, and/or modify health and other information in your account or otherwise share your information with the service provider. Once you enable a specific third-party service provider to access your account, the service provider may continue to access your account until you affirmatively disable access. Third-party service providers include both health care providers and other entities. It is your sole responsibility to review and approve each such third-party service before sharing your information through or otherwise accessing it. HALO may screen, modify, refuse, or remove certain content or third-party services, but is not responsible for and does not endorse any third-party content or services. HALO further does not endorse any third-party service providers, other health care providers, products, services, opinions, or web sites accessed through HALO. USE OF THESE SERVICES AND RELIANCE ON THIS CONTENT IS SOLELY AT YOUR OWN RISK. Lumiant MAY NOT BE HELD LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATED TO YOUR USE OF ANY THIRD-PARTY SERVICE OR CONTENT. Providers of these third-party services and/or content are Lumiant “Licensors”.

  1. HALO PROPRIETARY RIGHTS

HALO and its Licensors own all proprietary rights to HALO. HALO gives you a personal, revocable, non-assignable, and non-exclusive license to use HALO.

  1. MODIFICATION AND TERMINATION OF HALO

HALO may place limits on, modify, suspend or terminate HALO generally, and may suspend or terminate your use of HALO if you fail to comply with this agreement. This suspension or termination may delete your information, files, and other previously available content.

  1. CHANGES TO THIS AGREEMENT

HALO may change this agreement and will post the modified agreement on its website https://www.genivity.com/ If you do not agree to the modified agreement, you should stop using HALO. Your continued use of HALO after the date the modified agreement is posted will constitute your acceptance of the modified agreement.

  1. INDEMNIFICATION

You will defend or settle any third-party claim against HALO, any third party HALO feature providers, or any of HALO’ other licensors arising out of or related to your use of HALO.

  1. EXCLUSION OF WARRANTIES

NEITHER HALO NOR ANY OF HALO’S LICENSORS MAKE ANY EXPRESS WARRANTIES, AND EACH OF THEM DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEITHER HALO NOR ANY OF HALO’ LICENSORS MAKE ANY WARRANTY THAT THE CONTENT IN HALO SATISFIES GOVERNMENT REGULATIONS REQUIRING DISCLOSURE OF INFORMATION ON PRESCRIPTION DRUG PRODUCTS. CONTENT IN HALO IS DEVELOPED FOR USE IN THE UNITED STATES, AND NEITHER HALO NOR ANY OF HALO’S LICENSORS MAKE ANY REPRESENTATION CONCERNING THE CONTENT WHEN USED IN ANY OTHER COUNTRY.

  1. LIMITATION OF LIABILITY

NEITHER YOU NOR HALO OR ANY OF ITS LICENSORS MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR ANY DAMAGES OTHER THAN DIRECT DAMAGES, EVEN IF THE PARTY KNOWS OR SHOULD KNOW THAT OTHER DAMAGES ARE POSSIBLE OR THAT DIRECT DAMAGES ARE NOT A SATISFACTORY REMEDY. THE LIMITATIONS IN THIS SECTION APPLY TO YOU ONLY TO THE EXTENT THEY ARE LAWFUL IN YOUR JURISDICTION. NEITHER YOU NOR HALO OR ANY OF ITS LICENSORS MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN $1,000. The limitations of liability in this Section do not apply to breaches of intellectual property provisions or indemnification obligations.

  1. GENERAL LEGAL TERMS

If you have not signed a separate written agreement with HALO, this agreement is the entire agreement between you and HALO related to Lumiant Software, replacing any prior agreements. If there is any conflict between this agreement and a signed written agreement between you and HALO related to HALO Software, the signed written agreement will control. HALO Licensors may be third party beneficiaries to this agreement. There are no other third party beneficiaries to this agreement. The parties are independent contractors, and nothing in this agreement creates an agency, partnership, or joint venture. If HALO provides you with a translation of the English language version of this agreement, the English language version of this agreement will control if there is any conflict. Failure to enforce any provision will not constitute a waiver of that provision. If any provision is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose.