Contents

Advisers Terms & Conditions

Last updated: 10 November 2023

Not an adviser? Click here to view the client terms & conditions

The following terms and conditions (Terms), together with our Privacy Policy and the End User Terms are the complete terms of a legal agreement between you and myprosperity Aust Pty Ltd ACN 155 242 185 (us or we) in relation to the supply of Services via the Platform in accordance with your selected Subscription Level. By registering to use the Platform or offering access to the Platform to your End Users you agree to be bound by and comply with these Terms. If you do not agree to these Terms or cannot comply with them, you must not use the Platform.

We may make modifications to the Platform, the White-labelled Version, the Premium White-labelled Version or these Terms from time to time. If we make a material change, we will make reasonable endeavours to inform you. However, we may not always be able to notify you before the change comes into effect. If you can demonstrate to our reasonable satisfaction that the changes have a material detrimental effect on your use of the Platform, you may terminate these Terms by notifying us in writing at any time during the 30 calendar-day-period after such changes have been made.

If you have any questions or need clarification on any issue please email us at support@myprosperity.com.au

1. The Platform

(a) We have established the Platform and created a White-labelled Version of the Platform which we will provide to you on these Terms to enable you to expand the services and facilities you offers to your End Users.
(b) Under these Terms, you may provide the White-labelled Version of our Platform to your End Users.

2. What we will do

We will:
(a) maintain an internet site (being the White-labelled Version including the Premium White-labelled Version) which your End Users may choose to register for and use to track their personal finances, in accordance with and subject to the End User Terms;
(b) give you, and your End Users who register for use, access to the White-labelled Version (including the Premium White-labelled Version subject to payment of the applicable Access Fee and Subscription Fee in accordance with your nominated Subscription Level) to be accessed via a link supplied by you;
(c) give you access to a portal list of all End Users who are then registered to use the White-labelled Version (including the Premium White-labelled Version); and
(d) provide support to you via email and telephone during our business hours in respect of promotion of the White-labelled Version.

3. What you must do

You must:
(a) actively and accurately promote the White-labelled Version to your clients using only marketing materials approved by us in writing in advance;
(b) ensure that any information or Material you upload to be displayed on the White-labelled Version is current, correct and not misleading or defamatory and does not infringe any third party’s rights;
(c) ensure that any photographs or files provided are free of borders, watermarks or unauthorised advertising material and otherwise comply with our notified requirements (noting that we may reject non-complying materials);
(d) provide photographs and files in formats acceptable to us, specifically (but subject to change): JPEG or jpg format, maximum size: 450 pixels width and 300 pixels height;
(e) ensure that End Users who register to use the White-labelled Version are aware that you will have access to the End User’s information stored in the White-labelled Version unless the End User activates the functionality in the White-labelled Version to limit or exclude your access; and
(f) ensure that you are authorised to disclose any personal information you disclose to us.

4. Third party providers

(a) We engage third party providers from time to time to enable us to provide the Platform to you. By accepting these Terms, you are also accepting the policies and terms set out in the table in paragraph (b) below. You should ensure that you have read and understood these policies and terms and that you keep up to date with any changes to such policies and terms.
(b) We currently engage the following third party providers:

Third party provider Services
Yodlee Inc. of 3600 Bridge Parkway, Suite 200, Redwood City, CA 94065 USA (Yodlee) Yodlee provides us with the resources necessary for us to access Third Party Websites and Third Party Accounts on your behalf.

You acknowledge and agree that by accepting these Terms, you are also accepting that the use of your Materials by Yodlee is subject to Yodlee’s own privacy policies and terms (available at https://www.yodlee.com/oceania/legal/privacy-notice) and that we are not responsible for such use by Yodlee.
OneSpan Inc. (formerly VASCO Data Security International, Inc.) of 121 West Wacker, Suite 2050, Chicago, Illinois 60601 USA (OneSpan) If your User Account type and subscription include the Digital Signature Functionality, that functionality is currently provided by OneSpan Inc, via a link from the Platform to the website operated by OneSpan Inc. at https://www.onespan.com

By accepting these Terms, you are also accepting the OneSpan terms and conditions (available at https://www.onespan.com/terms-and-conditions).
Stripe Payments Australia Pty Ltd ACN 160 180 343 (Stripe) All payments by you pursuant to these Terms are processed using the payment gateway provided by Stripe.

By accepting these Terms, you are also accepting the terms and conditions of the Stripe services agreement (available at https://stripe.com/au/ssa).
RP Data Pty Ltd trading as CoreLogic Asia Pacific (ABN 67 087 759 171) (Core Logic) Core Logic provides property related data which are made available through the Platform from information gathered from a variety of sources. Whilst all care is taken in providing the data, we and Core Logic cannot guarantee or make any representations regarding the use of, or reliance, on such data and you should not rely on the data without making your own independent assessment of the property and other sources of information.

We may block access to, cease providing access to or cease making available property related data through the Platform (including by varying the terms and features of each User Account) at any time by sending you a notification to your last notified email address at least 30 calendar days before the change comes into effect.
Automotive Data Services Pty Ltd ACN 001 680 593 (Red Book) Red Book prepares vehicle related data made available through the Platform from information gathered from a variety of sources. Whilst all care is taken in producing the data, we and Red Book cannot guarantee or make any representations regarding the use of, or reliance, on such data and you should not rely on the data without making your own independent assessment of the vehicle and other sources of information.

We may block access to, cease providing access to or cease making available vehicle related data through the Platform (including by varying the terms and features of each User Account) at any time by sending you a notification to your last notified email address at least 30 calendar days before the change comes into effect.

(c) Our privacy policy also contains details of other third party software we use in relation to the Platform and the services we offer including the Intercom, Heap and Survicate software.

5. Confidentiality

(a) Each party agrees to protect the other party’s confidential information with at least:
(i) the same level of care it uses to protect its own confidential information; and
(ii) a reasonable level of care.
(b) Each party may disclose the other party’s confidential information to its personnel (and we may disclose your confidential information to others who are involved in the provision of the Platform), provided:
(i) they need to know that confidential information; and
(ii) they are subject to reasonable confidentiality obligations having regard to the information disclosed.
(c) We may include you on our public customer list and may otherwise identify you as our customer

6. Intellectual Property

(a) We own all rights, title and interest, in the Platform, the White-labelled Version, the Premium White-labelled Version and to our Materials. We also own, and you assign to us, all rights, title and interest in any modification to the Platform, the White-labelled Version, the Premium White-labelled Version and to our Materials.
(b) You agree to allow us to use any Materials you provide to us or upload to the Platform as necessary to enable us to provide the Platform to you (including as required to create the White-labelled Version and Premium White-labelled Version).
(c) You must not use the Platform, the White-labelled Version or the Premium White-labelled Version or our Materials other than as expressly permitted under these Terms.
(d) We may, from time to time, notify you of additional terms that apply to access or use of Materials provided by third parties (Third Party Terms). We will give you reasonable notice of any new or amended Third Party Terms. You must comply with all Third Party Terms.
(e) If you choose to provide comments or feedback to us in relation to the Platform, the White-labelled Version and the Premium White-labelled Version you agree that we may use that feedback for any purpose, and without attribution.

7. Term and automatic renewal

(a) This agreement commences on the date you register with us (“Commencement Date”).
(b) The initial term of these Terms is 12 months from the Commencement Date.
(c) If still in force at the end of the initial term, these Terms will automatically renew for further 12 month periods, until terminated as provided in these Terms.
(d) Subject to clause 8, you may terminate these Terms at any time after the initial term on 30 calendar days’ notice by completing the cancellation form. We may terminate these Terms at any time after the initial term on 30 calendar days’ notice in writing to you.

8. Termination

(a) Either party may terminate these Terms if the other party breaches a term of these Terms and fails to correct the breach within 14 calendar days after notice from the first party to do so.
(b) We may remove any of your information or branding from the White-labelled Version or discontinue your and your End User’s access to the White-labelled Version on termination of these Terms. The End User Terms deal with access to your End Users’ information after termination of these Terms or termination of your End User’s access to the Platform.

9. Fees

(a) You agree to pay us a monthly Access Fee and a monthly Subscription Fee per applicable End User (together, the Fees), as outlined in the Fee Schedule.
(b) Monthly statements are made available via the Platform.
(c) All Fees are payable by way of direct debit or other means we accept from time to time. We do not collect or store your bank account information for direct debit purposes. All payments by you under these Terms are processed using the payment gateway provided by Stripe Payments Australia Pty Ltd ACN 160 180 343 (Stripe). By accepting these Terms, you are also accepting the terms and conditions of the Stripe services agreement (as amended from time to time) which is available at https://stripe.com/au/ssa.
(d) We may change the Fees to reflect any modifications we make to the Platform or otherwise in accordance with our legitimate business interests, acting appropriately. We will provide you with 30 calendar days’ notice in writing if Fees are increased during the term. If you do not accept the increase in fees, you may terminate these Terms by notifying us in writing at any time during the 30 calendar-day-period after such changes have been made.

10. Warranties and liability

(a) Nothing in these Terms excludes, restricts or modifies any guarantee, warranty, term or condition that is implied or imposed by law and cannot be excluded.
(b) To the extent legally permitted, we disclaim and exclude all implied, statutory and other warranties, guarantees or representations. If an applicable law prohibits the exclusion of any warranties, guarantees, conditions or representations, to the extent legally permitted, we limit our liability for breach of any such warranties, guarantees, conditions or representations to resupply of the affected products or services or payment of the cost of resupply of the affected products or services, at our discretion.
(c) To the extent legally permitted, we are not liable for any direct, indirect, incidental, special, exemplary or consequential damages of any type related to or arising from performance or non-performance of these Terms or the Platform or the White-labelled Version (including the Premium White-labelled Version) or for any lost profits, business interruption, lost savings or loss of programs or other data. This exclusion applies to all causes of action, whether based on contract, warranty, tort (including negligence) or any other legal theories.
(d) To the extent that the above exclusion in paragraph (c) is unenforceable, invalid or ineffective for any reason, our maximum aggregate liability in each calendar year for all losses, damages and other amounts under any cause of action referred to in paragraph (c) above is limited to the amounts received by us from you under these Terms in the preceding calendar year.
(e) The exclusion of our liability under paragraph (c) and (d) does not apply to loss which arises from our gross negligence, wilful misconduct or fraud.

11. Indemnity

(a) Each party (the Indemnifying Party) must indemnify the other party, its officers, employees, agents and contractors (the Indemnified Party) against all liabilities, damages, costs or expenses that the Indemnified Party may sustain or incur as a result, whether directly or indirectly, of a breach of law.
(b) You indemnify us, our officers, employees, agents and contractors against all liabilities, damages, costs or expenses that we sustain or incur as a result, whether directly or indirectly, of:
(i) any fraudulent act or omission by you; and
(ii) any misuse of the Platform, other than to the extent that misuse was caused by us, our officers, employees, agents and contractors.
(c) The indemnity under paragraph (b) does not apply to the extent that the liability, damage, cost or expense arises from our gross negligence, wilful misconduct or fraud.

12. General

(a) Except where a party seeks urgent interim relief, a party must not commence court proceedings in relation to any dispute or disagreement arising out of or relating to these Terms (Dispute) unless it has sought to resolve the Dispute by negotiation. All aspects of the negotiation must be kept confidential, and all communications during the negotiation are made on a without prejudice basis. If the Dispute is not resolved within 20 calendar days, then either party may have recourse to litigation or other dispute resolution processes.
(b) Neither party will be liable for any failure or delay in performance of its obligations to the extent caused by a force majeure, or circumstances beyond their control including, but not limited to, acts of God, perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, riot, war, terrorism, civil commotion or civil authority, including acts of local government and parliamentary authority, inability to supply the Materials, telecommunications failure, breakdown of equipment and disputes of whatever nature and for whatever cause arising including, but without prejudice to the generality of the foregoing, work to rule, overtime bars, strikes and lock outs.
(c) To notify us, please email us at support@myprosperity.com.au.
(d) Nothing in these Terms limits any liability either party may have in connection with any representations or other communications (either oral or written) made prior to or during the term of these Terms, where such liability cannot be excluded (including under section 18 of the Australian Consumer Law).
(e) Subject to paragraph (d), these Terms are contain the entire agreement between the parties in respect of its subject matter about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by these Terms and has no further effect to the extent permitted by law.
(f) Any term which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity or enforceability of the remainder of these Terms are not affected.
(g) We are an independent contractor. These Terms do not form any partnership, joint venture, fiduciary, employment, agency or other relationship between the parties. Neither party has the power to bind the other.
(h) These Terms are personal to you and in order for us to assess and verify prospective users of the Platform, you cannot assign them without our prior written consent, which will not be unreasonably withheld taking into account our legitimate business interests. We may assign, novate, delegate or sub-contract any of our rights and obligations under these Terms at our discretion, acting reasonably and taking into account our legitimate business interests.
(i) These Terms apply only in respect of the office you specify in the application form at the time you register for access to the Platform. If you have other offices which wish to access the Platform, you will need to execute a separate agreement in respect of those offices.
(j) These Terms are governed by the laws of Victoria, Australia. The parties submit to the non-exclusive jurisdiction of the courts of Victoria and its appellate courts.

13. Definitions

(a) Access Fee: the monthly fee payable by you to us for access to the White-labelled Version on these Terms based on the Subscription Level selected by you. Access Fee is also referred to as “price” and “pricing” in the Fee Schedule.
(b) Digital Signature Functionality: – the digital signature document signing functionality referred in clause 4(b).
(c) End Users: your clients who have registered to use the Platform directly as a result of referral by you.
(d) End User Terms: the terms and conditions which govern the use of the Platform, the White-labelled Version and the Premium White-labelled Version from time to time which can be accessed at https://www.myprosperity.com.au/terms-and-conditions/.
(e) Fee Schedule: the schedule containing information relating to your subscription, fees and billing set out on the Platform. We may update the Fee Schedule from time to time in accordance with clause 9(d).
(f) Materials: means any information, data, documents or other materials.
(g) Platform: an Australian internet site currently located at myprosperity.com.au which provides financial tracking tools to End Users and other persons on and subject to the End User Terms.
(h) Premium White-labelled Version: a version of the White-labelled Version which contains additional functionality such as document storage capability and bank feeds enabling linking of bank account data. End Users can access the Premium White-labelled Version if they have a “Pro Account”.
(i) Subscription Fee: the monthly fee payable by you in respect of each of your End Users who use the Premium White-labelled Version (excluding the number of included End User accounts specified in your chosen Subscription Level).
(j) Subscription Level: the particular subscription level for the Platform access which you selected during the course of registration to use the Platform, as varied from time to time in accordance with these Terms. The available Subscription Levels are specified in the Fee Schedule and include Connect, Enhance, Accelerate, Mobile First and Enterprise. Your subscription will specify the number of Starter Accounts and Pro Accounts included in your subscription. The Fee Schedule explains the Platform features available to Starter Accounts and Pro Accounts respectively.
(k) White-labelled Version: an iteration of the Platform which is accessed by End Users by clicking on a link supplied by you. End Users can access the White-labelled Version if they have a “Starter Account”.

   

Advisers Terms & Conditions

Last updated: 10 November 2023

 

The following terms and conditions (Terms), together with our Privacy Policy and the End User Terms are the complete terms of a legal agreement between you and myprosperity Aust Pty Ltd ACN 155 242 185 (us or we) in relation to the supply of Services via the Platform in accordance with your selected Subscription Level. By registering to use the Platform or offering access to the Platform to your End Users you agree to be bound by and comply with these Terms. If you do not agree to these Terms or cannot comply with them, you must not use the Platform.

We may make modifications to the Platform, the White-labelled Version, the Premium White-labelled Version or these Terms from time to time. If we make a material change, we will make reasonable endeavours to inform you. However, we may not always be able to notify you before the change comes into effect. If you can demonstrate to our reasonable satisfaction that the changes have a material detrimental effect on your use of the Platform, you may terminate these Terms by notifying us in writing at any time during the 30 calendar-day-period after such changes have been made.

If you have any questions or need clarification on any issue please email us at support@myprosperity.com.au

1. The Platform

(a) We have established the Platform and created a White-labelled Version of the Platform which we will provide to you on these Terms to enable you to expand the services and facilities you offers to your End Users.
(b) Under these Terms, you may provide the White-labelled Version of our Platform to your End Users.

2. What we will do

We will:
(a) maintain an internet site (being the White-labelled Version including the Premium White-labelled Version) which your End Users may choose to register for and use to track their personal finances, in accordance with and subject to the End User Terms;
(b) give you, and your End Users who register for use, access to the White-labelled Version (including the Premium White-labelled Version subject to payment of the applicable Access Fee and Subscription Fee in accordance with your nominated Subscription Level) to be accessed via a link supplied by you;
(c) give you access to a portal list of all End Users who are then registered to use the White-labelled Version (including the Premium White-labelled Version); and
(d) provide support to you via email and telephone during our business hours in respect of promotion of the White-labelled Version.

3. What you must do

You must:
(a) actively and accurately promote the White-labelled Version to your clients using only marketing materials approved by us in writing in advance;
(b) ensure that any information or Material you upload to be displayed on the White-labelled Version is current, correct and not misleading or defamatory and does not infringe any third party’s rights;
(c) ensure that any photographs or files provided are free of borders, watermarks or unauthorised advertising material and otherwise comply with our notified requirements (noting that we may reject non-complying materials);
(d) provide photographs and files in formats acceptable to us, specifically (but subject to change): JPEG or jpg format, maximum size: 450 pixels width and 300 pixels height;
(e) ensure that End Users who register to use the White-labelled Version are aware that you will have access to the End User’s information stored in the White-labelled Version unless the End User activates the functionality in the White-labelled Version to limit or exclude your access; and
(f) ensure that you are authorised to disclose any personal information you disclose to us.

4. Third party providers

(a) We engage third party providers from time to time to enable us to provide the Platform to you. By accepting these Terms, you are also accepting the policies and terms set out in the table in paragraph (b) below. You should ensure that you have read and understood these policies and terms and that you keep up to date with any changes to such policies and terms.
(b) We currently engage the following third party providers:

Third party provider Services
Yodlee Inc. of 3600 Bridge Parkway, Suite 200, Redwood City, CA 94065 USA (Yodlee) Yodlee provides us with the resources necessary for us to access Third Party Websites and Third Party Accounts on your behalf.

You acknowledge and agree that by accepting these Terms, you are also accepting that the use of your Materials by Yodlee is subject to Yodlee’s own privacy policies and terms (available at https://www.yodlee.com/oceania/legal/privacy-notice) and that we are not responsible for such use by Yodlee.
OneSpan Inc. (formerly VASCO Data Security International, Inc.) of 121 West Wacker, Suite 2050, Chicago, Illinois 60601 USA (OneSpan) If your User Account type and subscription include the Digital Signature Functionality, that functionality is currently provided by OneSpan Inc, via a link from the Platform to the website operated by OneSpan Inc. at https://www.onespan.com

By accepting these Terms, you are also accepting the OneSpan terms and conditions (available at https://www.onespan.com/terms-and-conditions).
Stripe Payments Australia Pty Ltd ACN 160 180 343 (Stripe) All payments by you pursuant to these Terms are processed using the payment gateway provided by Stripe.

By accepting these Terms, you are also accepting the terms and conditions of the Stripe services agreement (available at https://stripe.com/au/ssa).
RP Data Pty Ltd trading as CoreLogic Asia Pacific (ABN 67 087 759 171) (Core Logic) Core Logic provides property related data which are made available through the Platform from information gathered from a variety of sources. Whilst all care is taken in providing the data, we and Core Logic cannot guarantee or make any representations regarding the use of, or reliance, on such data and you should not rely on the data without making your own independent assessment of the property and other sources of information.

We may block access to, cease providing access to or cease making available property related data through the Platform (including by varying the terms and features of each User Account) at any time by sending you a notification to your last notified email address at least 30 calendar days before the change comes into effect.
Automotive Data Services Pty Ltd ACN 001 680 593 (Red Book) Red Book prepares vehicle related data made available through the Platform from information gathered from a variety of sources. Whilst all care is taken in producing the data, we and Red Book cannot guarantee or make any representations regarding the use of, or reliance, on such data and you should not rely on the data without making your own independent assessment of the vehicle and other sources of information.

We may block access to, cease providing access to or cease making available vehicle related data through the Platform (including by varying the terms and features of each User Account) at any time by sending you a notification to your last notified email address at least 30 calendar days before the change comes into effect.

(c) Our privacy policy also contains details of other third party software we use in relation to the Platform and the services we offer including the Intercom, Heap and Survicate software.

5. Confidentiality

(a) Each party agrees to protect the other party’s confidential information with at least:
(i) the same level of care it uses to protect its own confidential information; and
(ii) a reasonable level of care.
(b) Each party may disclose the other party’s confidential information to its personnel (and we may disclose your confidential information to others who are involved in the provision of the Platform), provided:
(i) they need to know that confidential information; and
(ii) they are subject to reasonable confidentiality obligations having regard to the information disclosed.
(c) We may include you on our public customer list and may otherwise identify you as our customer

6. Intellectual Property

(a) We own all rights, title and interest, in the Platform, the White-labelled Version, the Premium White-labelled Version and to our Materials. We also own, and you assign to us, all rights, title and interest in any modification to the Platform, the White-labelled Version, the Premium White-labelled Version and to our Materials.
(b) You agree to allow us to use any Materials you provide to us or upload to the Platform as necessary to enable us to provide the Platform to you (including as required to create the White-labelled Version and Premium White-labelled Version).
(c) You must not use the Platform, the White-labelled Version or the Premium White-labelled Version or our Materials other than as expressly permitted under these Terms.
(d) We may, from time to time, notify you of additional terms that apply to access or use of Materials provided by third parties (Third Party Terms). We will give you reasonable notice of any new or amended Third Party Terms. You must comply with all Third Party Terms.
(e) If you choose to provide comments or feedback to us in relation to the Platform, the White-labelled Version and the Premium White-labelled Version you agree that we may use that feedback for any purpose, and without attribution.

7. Term and automatic renewal

(a) This agreement commences on the date you register with us (“Commencement Date”).
(b) The initial term of these Terms is 12 months from the Commencement Date.
(c) If still in force at the end of the initial term, these Terms will automatically renew for further 12 month periods, until terminated as provided in these Terms.
(d) Subject to clause 8, you may terminate these Terms at any time after the initial term on 30 calendar days’ notice by completing the cancellation form. We may terminate these Terms at any time after the initial term on 30 calendar days’ notice in writing to you.

8. Termination

(a) Either party may terminate these Terms if the other party breaches a term of these Terms and fails to correct the breach within 14 calendar days after notice from the first party to do so.
(b) We may remove any of your information or branding from the White-labelled Version or discontinue your and your End User’s access to the White-labelled Version on termination of these Terms. The End User Terms deal with access to your End Users’ information after termination of these Terms or termination of your End User’s access to the Platform.

9. Fees

(a) You agree to pay us a monthly Access Fee and a monthly Subscription Fee per applicable End User (together, the Fees), as outlined in the Fee Schedule.
(b) Monthly statements are made available via the Platform.
(c) All Fees are payable by way of direct debit or other means we accept from time to time. We do not collect or store your bank account information for direct debit purposes. All payments by you under these Terms are processed using the payment gateway provided by Stripe Payments Australia Pty Ltd ACN 160 180 343 (Stripe). By accepting these Terms, you are also accepting the terms and conditions of the Stripe services agreement (as amended from time to time) which is available at https://stripe.com/au/ssa.
(d) We may change the Fees to reflect any modifications we make to the Platform or otherwise in accordance with our legitimate business interests, acting appropriately. We will provide you with 30 calendar days’ notice in writing if Fees are increased during the term. If you do not accept the increase in fees, you may terminate these Terms by notifying us in writing at any time during the 30 calendar-day-period after such changes have been made.

10. Warranties and liability

(a) Nothing in these Terms excludes, restricts or modifies any guarantee, warranty, term or condition that is implied or imposed by law and cannot be excluded.
(b) To the extent legally permitted, we disclaim and exclude all implied, statutory and other warranties, guarantees or representations. If an applicable law prohibits the exclusion of any warranties, guarantees, conditions or representations, to the extent legally permitted, we limit our liability for breach of any such warranties, guarantees, conditions or representations to resupply of the affected products or services or payment of the cost of resupply of the affected products or services, at our discretion.
(c) To the extent legally permitted, we are not liable for any direct, indirect, incidental, special, exemplary or consequential damages of any type related to or arising from performance or non-performance of these Terms or the Platform or the White-labelled Version (including the Premium White-labelled Version) or for any lost profits, business interruption, lost savings or loss of programs or other data. This exclusion applies to all causes of action, whether based on contract, warranty, tort (including negligence) or any other legal theories.
(d) To the extent that the above exclusion in paragraph (c) is unenforceable, invalid or ineffective for any reason, our maximum aggregate liability in each calendar year for all losses, damages and other amounts under any cause of action referred to in paragraph (c) above is limited to the amounts received by us from you under these Terms in the preceding calendar year.
(e) The exclusion of our liability under paragraph (c) and (d) does not apply to loss which arises from our gross negligence, wilful misconduct or fraud.

11. Indemnity

(a) Each party (the Indemnifying Party) must indemnify the other party, its officers, employees, agents and contractors (the Indemnified Party) against all liabilities, damages, costs or expenses that the Indemnified Party may sustain or incur as a result, whether directly or indirectly, of a breach of law.
(b) You indemnify us, our officers, employees, agents and contractors against all liabilities, damages, costs or expenses that we sustain or incur as a result, whether directly or indirectly, of:
(i) any fraudulent act or omission by you; and
(ii) any misuse of the Platform, other than to the extent that misuse was caused by us, our officers, employees, agents and contractors.
(c) The indemnity under paragraph (b) does not apply to the extent that the liability, damage, cost or expense arises from our gross negligence, wilful misconduct or fraud.

12. General

(a) Except where a party seeks urgent interim relief, a party must not commence court proceedings in relation to any dispute or disagreement arising out of or relating to these Terms (Dispute) unless it has sought to resolve the Dispute by negotiation. All aspects of the negotiation must be kept confidential, and all communications during the negotiation are made on a without prejudice basis. If the Dispute is not resolved within 20 calendar days, then either party may have recourse to litigation or other dispute resolution processes.
(b) Neither party will be liable for any failure or delay in performance of its obligations to the extent caused by a force majeure, or circumstances beyond their control including, but not limited to, acts of God, perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, riot, war, terrorism, civil commotion or civil authority, including acts of local government and parliamentary authority, inability to supply the Materials, telecommunications failure, breakdown of equipment and disputes of whatever nature and for whatever cause arising including, but without prejudice to the generality of the foregoing, work to rule, overtime bars, strikes and lock outs.
(c) To notify us, please email us at support@myprosperity.com.au.
(d) Nothing in these Terms limits any liability either party may have in connection with any representations or other communications (either oral or written) made prior to or during the term of these Terms, where such liability cannot be excluded (including under section 18 of the Australian Consumer Law).
(e) Subject to paragraph (d), these Terms are contain the entire agreement between the parties in respect of its subject matter about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by these Terms and has no further effect to the extent permitted by law.
(f) Any term which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity or enforceability of the remainder of these Terms are not affected.
(g) We are an independent contractor. These Terms do not form any partnership, joint venture, fiduciary, employment, agency or other relationship between the parties. Neither party has the power to bind the other.
(h) These Terms are personal to you and in order for us to assess and verify prospective users of the Platform, you cannot assign them without our prior written consent, which will not be unreasonably withheld taking into account our legitimate business interests. We may assign, novate, delegate or sub-contract any of our rights and obligations under these Terms at our discretion, acting reasonably and taking into account our legitimate business interests.
(i) These Terms apply only in respect of the office you specify in the application form at the time you register for access to the Platform. If you have other offices which wish to access the Platform, you will need to execute a separate agreement in respect of those offices.
(j) These Terms are governed by the laws of Victoria, Australia. The parties submit to the non-exclusive jurisdiction of the courts of Victoria and its appellate courts.

13. Definitions

(a) Access Fee: the monthly fee payable by you to us for access to the White-labelled Version on these Terms based on the Subscription Level selected by you. Access Fee is also referred to as “price” and “pricing” in the Fee Schedule.
(b) Digital Signature Functionality: – the digital signature document signing functionality referred in clause 4(b).
(c) End Users: your clients who have registered to use the Platform directly as a result of referral by you.
(d) End User Terms: the terms and conditions which govern the use of the Platform, the White-labelled Version and the Premium White-labelled Version from time to time which can be accessed at https://www.myprosperity.com.au/terms-and-conditions/.
(e) Fee Schedule: the schedule containing information relating to your subscription, fees and billing set out on the Platform. We may update the Fee Schedule from time to time in accordance with clause 9(d).
(f) Materials: means any information, data, documents or other materials.
(g) Platform: an Australian internet site currently located at myprosperity.com.au which provides financial tracking tools to End Users and other persons on and subject to the End User Terms.
(h) Premium White-labelled Version: a version of the White-labelled Version which contains additional functionality such as document storage capability and bank feeds enabling linking of bank account data. End Users can access the Premium White-labelled Version if they have a “Pro Account”.
(i) Subscription Fee: the monthly fee payable by you in respect of each of your End Users who use the Premium White-labelled Version (excluding the number of included End User accounts specified in your chosen Subscription Level).
(j) Subscription Level: the particular subscription level for the Platform access which you selected during the course of registration to use the Platform, as varied from time to time in accordance with these Terms. The available Subscription Levels are specified in the Fee Schedule and include Connect, Enhance, Accelerate, Mobile First and Enterprise. Your subscription will specify the number of Starter Accounts and Pro Accounts included in your subscription. The Fee Schedule explains the Platform features available to Starter Accounts and Pro Accounts respectively.
(k) White-labelled Version: an iteration of the Platform which is accessed by End Users by clicking on a link supplied by you. End Users can access the White-labelled Version if they have a “Starter Account”.