Terms and Conditions

Introduction

Please read these terms and conditions carefully, as they set out our and your legal rights and obligations in relation to our FileInvite platform and services.  You will be asked to agree to these terms and conditions before becoming a customer.

You should print a copy of these terms and conditions for future reference. We will not file a copy specifically in relation to you.

These terms and conditions are available in the English language only.

If you have any questions or complaints about our services, please contact us through the contact form on our website https://www.fileinvite.com, or by writing to FileInvite Limited, PO Box 12433, 8 Rockridge Avenue, Penrose, Auckland 1061, New Zealand.

Agreement:

1. Definitions and interpretation

1.1. In the Agreement:

"Acceptable Use Policy" means the Acceptable Use Policy as set out in Schedule 1;

“Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;

“Agreement” means the agreement between the Provider and the Customer for the provision of the Services, incorporating these terms and conditions (including the Schedules) and the Statement of Services (if any), and any additional or supplemental terms and conditions agreed between the Provider and the Customer in writing from time to time;

“Anniversary Date” means a date following commencement of chargeable Services, determined as follows:

1. 1. 1. where the fixed Charges are invoiced on a monthly basis, an Anniversary Date will be a day of a month which is the same day as the day on which the chargeable Services first commenced; or 
      2. where fixed Charges are invoiced on an annual basis, an Anniversary Date will be an anniversary of the date on which chargeable services first commenced, 

provided that an Anniversary Date will be deemed to be the last day of the same month for monthly Anniversary Dates between 28th and 31st where the month does not contain the applicable number of days;

"Beta Feedback" has the meaning given to that term in Clause 6.3;

"Beta Product" has the meaning given to that term in Clause 6.1;

"Chargeable Plan" means a Subscription Plan under which Charges are applied for Services provided under the Subscription Plan;

“Charges” means the amounts payable by the Customer to the Provider under or in relation to the Agreement;

"Content" has the meaning given to that term in the Acceptable Use Policy;

“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly);

“Customer”, "you" or "your" means the person and/or entity identified as the owner of a registered account on the Platform;

“Customer Confidential Information” means

1. 1. 1. any information disclosed (whether disclosed in writing, orally or otherwise) by the Customer to the Provider during the Term that is marked as “confidential”, described as “confidential” or should have been understood by the Provider at the time of disclosure to be confidential; and
      2. the Customer Materials; 

"Customer Materials" means all works and materials (including Content):

1. 1. 1. uploaded to, stored on, processed using or transmitted via the Platform by or on behalf of the Customer or by any person (including an End User) or application or automated system using the Customer's account; and
      2. otherwise provided by the Customer to the Provider in connection with the Agreement;

"Documentation" means the documentation made available on the Platform to the Customer specifying how the Platform should be used;

“Effective Date” means the date that the Agreement comes into force as specified in Clause 3; 

"End User" means any person, client, customer or third party that the Customer seeks to gather information from by using the Services;

“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

"Free Plan" means a Subscription Plan under which no Charges are applied for Services provided under the Subscription Plan;

“GST” means any goods and services tax, value-added tax or similar sales tax chargeable, or to which a person may be liable, in relation to a supply of goods and/or services, including (if applicable) goods and services tax under the Goods and Services Tax Act 1985 (NZ) and any penalties, additional or replacement tax or interest payable in respect thereof;

“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

"Permitted Purpose" means the transmission of Content between parties in accordance with this Agreement and the Acceptable Use Policy;

“Personal Data” means any information or data about an identifiable natural person;

“Platform” means the software platform known as FileInvite that facilitates the sharing and collection of documentation and information, is owned and operated by the Provider, and that will be made available to the Customer as a service via the internet under the Agreement;

"Pricing Page" means the pricing page of the Provider Group's website at https://www.fileinvite.com/pricing;

"Privacy Policy" means the Provider's privacy policy, available at https://www.fileinvite.com/privacy; 

“Provider Confidential Information” means

1. 1. 1. any information disclosed (whether disclosed in writing, orally or otherwise) by the Provider to the Customer during the Term that is marked as “confidential”, described as “confidential” or should have been understood by the Customer at the time of disclosure to be confidential; and
      2. any information disclosed by the Provider to the Customer relating to a Beta Product (including the fact that the Provider has developed and is evaluating a Beta Product), and any Beta Feedback provided by the Customer

“Provider”, "FileInvite", "we", "us" or "our" means, for the purposes of the Agreement, the applicable FileInvite Contacting Entity as specified in Clause 20;

"Provider Group" means the group comprising the Provider and its Affiliates;

“Schedule” means a schedule attached to these terms and conditions;

“Services” means the services involving the provision of access to the Platform via the internet;

"Statement of Services" means the online information (if any) made available by the Provider to the Customer during the order process that specifies the identity of the Customer, and other matters relating to the Agreement;

"Subscription Plan" has the meaning given to that term in Section 4;

“Term” means the term of the Agreement; and

“Upgrades” means new versions of, and updates to, the Platform, whether for the purpose of fixing an error, bug or other issue in the Platform or enhancing the functionality of the Platform.

1.2. In the Agreement, a reference to a statute or statutory provision includes a reference to:

1. 1. 1. that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
      2. any subordinate legislation made under that statute or statutory provision.

1.3. The Clause headings do not affect the interpretation of the Agreement.

1.4. The ejusdem generis rule is not intended to be used in the interpretation of the Agreement.

1.5 References to a "party" are to the Provider or the Customer, references to the "parties" are references to the Provider and the Customer, and references to a "third party" are references to a body corporate or person which is not a party.

2. Changes

2.1 The Provider can change the Agreement at any time by providing the Customer at least 30 days’ prior notice of the change by sending the Customer an email or other electronic notification. The Customer’s continued use after the expiry of that notice period means that the Customer agrees to the changed Agreement. If the Customer does not wish to continue to use the Services under the changed Agreement, the Customer may terminate their subscription before the changes come into force. If the Customer expressly terminates for this reason (by advising the Provider of the reason in the Customer's notice of termination) and has paid Charges for a subscription that is due to expire after the effective date of termination, the Provider will then (but not otherwise) refund the unexpired portion of the Customer’s subscription payment within 30 days of such termination. 

3. Agreement and Term

3.1. The advertising of the Platform and the Services on the Provider Group's website constitutes an “invitation to treat”; and the Customer's order for the Services constitutes a contractual offer.  No contract will come into force between the Provider and the Customer unless and until the Provider accepts the Customer's order in accordance with the procedure detailed in this Clause 3.

3.2. The Provider’s Privacy Policy applies to all Personal Data provided to the Provider and forms part of the Agreement. By creating an account the Customer agrees to the Privacy Policy.  

3.3. In order to enter into the Agreement, the Customer must take the following steps: 

1. 1. 1. the Customer must create an account using the Platform by supplying an email address and password;
      2. once the Customer is logged in, the Customer must update their personal details, and consent to the terms of the Agreement;
      3. after an account has been created, the Provider will send to the Customer an initial acknowledgement (at which point the Agreement will come into force).

3.4. If the Customer has subscribed for Services under a Free Plan, once the Agreement is in force the Customer's subscription for the Services under the Free Plan will commence and will continue until the Customer upgrades its Subscription Plan to a Chargeable Plan in accordance with Clause 4.2 or the Agreement is terminated in accordance with Clause 154 (whichever occurs first).

3.5. If the Customer has subscribed for Services under a Chargeable Plan, once the Agreement is in force, the Customer's subscription for the Services will commence and will continue to renew automatically on each applicable Anniversary Date, unless terminated in accordance with Clause 154. This means that:

1. 1. 1. if the Customer has elected to be invoiced for the fixed Charges on a monthly basis, the Anniversary Date will occur each month and the Customer's subscription will automatically renew for a further month on each monthly Anniversary Date; or
      2. if the Customer has elected to be invoiced for fixed Charges on an annual basis, the Customer's Anniversary Date will occur once each year and the Customer's subscription will automatically renew for a further year on each annual Anniversary Date,

unless the Provider or the Customer terminates earlier in accordance with Clause 154. The fixed Charges for the next month or year (as applicable) become payable on each Anniversary Date and (except in accordance with Clause 2, 5.1 or 154.3) will not be waived or refunded if the Customer terminates its subscription on or after that Anniversary Date. The Customer should set its own reminders in advance of each upcoming Anniversary Date. The Provider will only send a reminder of an upcoming Anniversary Date if the Customer is paying Charges on an annual basis.

4. The Platform

4.1. The Platform will automatically generate an account for the Customer enabling the Customer to access the Platform. In connection with its account, the Customer will have selected either a standard plan (which may be either a free plan or a chargeable plan), or agreed with FileInvite a custom plan, (as outlined on the Pricing Page) for a subscription to use the Services ("Subscription Plan"). In addition to Charges, the Subscription Plan may: 

1. 1. 1. include usage limits and/or restrictions for the Customer's use of the Services, such as in relation to the number of permitted users and invites/requests or portals that may be sent;
      2. specify particular features (including security features), functionality, configurations, integrations and/or versions of the Platform which will or will not be provided as part of the Services under the particular Subscription Plan; and/or
      3. specify details of the support and/or service levels which will or will not be provided under the particular Subscription Plan.

4.2. The Provider may update the details and terms applicable to the Subscription Plans (including as to the matters described in Clauses 4.1a to 4.1c) from time to time by notifying the Customer ("Plan Change Notification") and publishing the updated Subscription Plan details and terms on the Pricing Page. Where the updates relate to Charges, for the Customer these will be applied in accordance with Clause 7.5. Where the updates relate to other details or terms applicable to:

1. 1. 1. a Free Plan, the updates will be applied for the Customer immediately upon the Plan Change Notification being given; and
      2. a Chargeable Plan, the updates will be applied for the Customer from the first Anniversary Date after the Plan Change Notification is given (or, if that Anniversary Date is within 30 days of the Plan Change Notification being given, the second Anniversary Date after the Plan Change Notification is given), unless the Customer elects to change its Subscription Plan before then (in which case the updates will be applied from the effective date of the change to Subscription Plan).

4.3. The Customer may upgrade or downgrade its Subscription Plan to a different Subscription Plan by contacting the Provider or following any applicable plan upgrade or downgrade procedure on the Platform. Any requests to upgrade a Subscription Plan will be effected as soon as reasonably possible, provided that the Customer acknowledges that it may be required to pay additional Charges before the upgrade is effected. Any requests to downgrade the Subscription Plan must be made at least 7 days prior to the next Anniversary Date and will be applied from that Anniversary Date.

4.4. Subject to the limitations set out in Clause 4.5 and the prohibitions set out in Clauses 4.6 to 4.11, the Provider hereby grants to the Customer a non-exclusive licence to use the Platform for the Permitted Purpose via any standard web browser in accordance with the Documentation during the Term.

4.5. The licence granted by the Provider to the Customer under Clause 4.4 is subject to the Customer and its users complying at all times with the terms of the Acceptable Use Policy and limiting its use of the Services to the relevant usage limits and/or restrictions specified in the Customer's current Subscription Plan. The Customer must ensure that all users of the Platform agree to and comply with the terms of that Acceptable Use Policy. If the Customer's use of the Services exceeds any applicable usage limits and/or restrictions under the Customer's current Subscription Plan, the Provider may contact the Customer to arrange an upgrade to a new Subscription Plan and/or impose technical limitations or restrictions on the Customer's use of the Services to prevent a reoccurrence of such excess usage.

4.6. Except to the extent mandated by applicable law or expressly permitted in the Agreement, the licence granted by the Provider to the Customer under this Clause 4 is subject to the following prohibitions:

1. 1. 1. the Customer must not sub-license or resell its right to access and use the Platform or the Services or allow any unauthorised person to access or use the Platform or the Services;
      2. the Customer must not frame or otherwise re-publish or re-distribute the Platform; and
      3. the Customer must not alter or adapt or edit the Platform or the Services save as expressly permitted by the Documentation.

4.7. For the avoidance of doubt, the Customer has no right to access the object code or source code of the Platform, either during or after the Term.

4.8. The Customer acknowledges and agrees that:

1. 1. 1. all Intellectual Property Rights in the Platform, the Services, the Provider Branding (as defined below) and any suggestions, enhancements, requests, recommendations, corrections or other feedback (including Beta Feedback) provided by the Customer relating to the Platform and/or Services shall, as between the parties, be the exclusive property of the Provider; and
      2. the Platform (including any associated portals and requests sent via the Platform) may (as determined by the Provider from time to time at its discretion) include one or more images or statements containing one or more of the Provider's or one of its Affiliate's name, brands, logos and trade marks (collectively "Provider Branding"). The Customer must not amend, conceal or remove (or attempt to do so) any Provider Branding without the Provider's prior written consent. The Customer also must not use or copy any Provider Branding other than in connection with its use of the Platform in accordance with the Agreement.

4.9. The Customer may specify and manage (subject to any applicable limits under its Subscription Plan) which of its representatives are authorised to use the Services on behalf of the Customer. The Customer must ensure that: 

1. 1. 1. no unauthorised person will or could access the Platform using the Customer's account;
      2. its authorised users do not share their credentials for accessing or logging-on to the Platform ("Access Credentials") with any other person or otherwise allow any other person to use the Access Credentials;
      3. its authorised users keep all passwords forming part of their Access Credentials secure, confidential and of reasonable complexity; and
      4. the Provider is notified immediately if the Customer becomes aware of any unauthorised use of the Platform via its users' Access Credentials.

4.10. The Customer must not use the Platform or the Services in any way that causes, or may cause, damage to the Platform or impairment of the availability or accessibility of the Platform or the Services, or any of the areas of, or services on, the Platform.

4.11. The Customer must not use the Platform or the Services:

1. 1. 1. in any way that is unlawful, illegal, fraudulent or harmful; or 
      2. in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

4.12. The Customer acknowledges and agrees that it is responsible for all use of the Services under the Customer's account via its users' Access Credentials, irrespective of whether such use is by authorised or unauthorised users. 

5. Upgrades and Maintenance

5.1. During the Term the Provider may apply Upgrades to the Platform. Such Upgrades may result in changes the appearance and/or functionality of the Platform. If the Customer does not wish to continue using the Services as a result, the Customer may terminate its subscription in accordance with Clause 154. If the changes materially reduce the functionality of the Platform and the Customer expressly terminates for this reason (by advising the Provider of the reason in the Customer's notice of termination) and has paid Charges for a subscription that is due to expire after the effective date of termination, the Provider will then refund the unexpired portion of the Customer’s subscription payment within 30 days of such termination. 

5.2. The Provider may from time to time suspend access to the Platform in order to carry out scheduled maintenance or Upgrades. 

5.3. The Provider will endeavour to give to the Customer advance notice of scheduled maintenance affecting access to the Platform, including details of the expected Platform downtime. The Customer acknowledges that advance notice from the Provider may not always be possible in the case of urgent maintenance. 

6. Beta Products

6.1. From time to time, the Provider may make available to the Customer for evaluation and feedback purposes a new version of the Platform, or any new features, functionality, configurations or integrations on or for the Platform, which typically will be identified by the Provider as being a “beta”, “preview”, “early access”, "test" or “evaluation” (or similar) version or release (“Beta Product”). Unless expressly agreed otherwise in writing, the Customer will not be required to use a Beta Product and will not be required to pay any Charges to use a Beta Product.

6.2 If the Customer elects to use a Beta Product, the Customer acknowledges and agrees that:

1. 1. 1. the Provider may at any time at its discretion change or modify the Beta Product;
      2. the Provider has no obligation to continue to provide or commercially release the Beta Product following completion of the relevant evaluation and feedback;
      3. the Provider may at any time at its discretion suspend or discontinue (temporarily or permanently) access to the Beta Product; and
      4. the Beta Product is made available for the purpose of evaluation and obtaining user feedback and may not have been fully tested. For that reason the Beta Product may not be as reliable or available as Services provided under a commercially available Subscription Plan and may be subject to defects, errors and bugs.

6.3 If the Customer elects to use a Beta Product, the Customer will provide, and cause its users to provide, feedback regarding the Beta Product ("Beta Feedback") as and when reasonably requested by the Provider. The Provider may at its discretion use any and all Beta Feedback without restriction, including by incorporating the Beta Feedback in changes or modifications to Beta Product.

6.4 The provisions of this Clause 6 apply subject to anything to the contrary agreed by the Provider and the Customer in writing in relation to a Beta Product.

7. Customer Materials

7.1. The Customer grants to the Provider a non-exclusive licence (which shall include a right to sub-license to the Provider's Affiliates and their respective subcontractors) to store, copy, transmit and otherwise use the Customer Materials for the purposes of operating the Platform, providing the Services, fulfilling its other obligations under the Agreement (including the Privacy Policy), and exercising its rights under the Agreement (including the Privacy Policy).

7.2. Subject to Clauses 7.1 and 7.7, all Intellectual Property Rights in the Customer Materials will remain, as between the parties, the property of the Customer.

7.3. The Customer warrants and represents to the Provider, its Affiliates and their respective subcontractors that the Customer Materials, and their use by the Provider in accordance with the terms of the Agreement, will be in accordance with the Acceptable Use Policy and will not:

1. 1. 1. breach any laws, statutes, regulations or legally-binding codes;
      2. infringe any person's Intellectual Property Rights or other legal rights; or
      3. give rise to any cause of action against the Provider or the Customer or any third party, in each case in any jurisdiction and under any applicable law.

7.4. Where the Provider reasonably suspects that there has been a breach by the Customer of the provisions of this Clause 7, the Provider may:

1. 1. 1. delete or amend the relevant Customer Materials; and/or
      2. suspend any or all of the Services and/or the Customer’s access to the Platform while it investigates the matter.

7.5. Any breach by the Customer of this Clause 7 will be deemed to be a material breach of the Agreement for the purposes of Clause 15.

7.6. The Provider may delete and remove from the Platform some or all of the Customer Materials at any time:

1. 1. 1. 30 days after the termination of the Agreement; or
      2. during the term of the Agreement if the Customer has subscribed for the Services under a Free Plan and has not actively used the Services for 30 days or more.

Prior to such time the Customer will have the ability to access and extract such Customer Materials as it requires.

7.7. The Customer acknowledges and agrees that, subject to subclauses (a) and (b) below, the Provider may collect, aggregate, use (for any purpose), publish and disclose information about the Customer's users and End Users' use of the Services ("Analytical Data"), provided:

1. 1. 1. the Analytical Data is not based on, and does not incorporate, any Content (Content includes any personal identifiable information and/or protected health information); and
      2. the Analytical Data must not be published or disclosed without the Customer's consent unless the Analytical Data has been suitably anonymised so that neither the Customer nor any of its users or End Users are identified in, nor can they be reasonably identified from, the Analytical Data.

7.8. To the extent that any Intellectual Property Rights arise from the creation or compilation of the Analytical Data, then, as between the parties, those Intellectual Property Rights shall be the property of the Provider.

8. Charges

8.1. The Charges in respect of access to and use of the Platform under a Chargeable Plan shall be made up of two elements, a fixed Charge and a variable Charge.

8.2. The fixed Charges will be determined by the selected Subscription Plan as outlined on the Pricing Page or otherwise confirmed by the Provider in writing as part of process outlined in Clause 3.3. The fixed Charges shall be invoiced by the Provider on each Anniversary Date.

8.3. The variable Charges will be determined by the Customer’s selection of optional additional Services as outlined on the Pricing Page or otherwise confirmed by the Provider in writing as part of process outlined in Clause 3.3. The variable charges will be invoiced by the Provider on the earlier of (as applicable):

1. 1. 1. 1. the time of selection and order, or consumption, (as applicable) by the Customer; or
         2. when the usage of optional additional Services exceeds that which is covered by the fixed Charges under the Customer's Subscription Plan.

8.4. Both the fixed Charges and variable Charges are subject to change (at the Provider's discretion) from time to time. Any revised Charges will be notified to the Customer ("Price Change Notification") and (if applicable) published on the Pricing Page. For the Customer any revised fixed Charges will be applied and charged as applicable from the first Anniversary Date after the Price Change Notification is given (or, if that Anniversary Date is within 30 days of the Price Change Notification being given, the second Anniversary Date after the Price Change Notification is given), unless the Customer elects to change its Subscription Plan before then (in which case the revised fixed Charges will be applied from the effective date of the change to Subscription Plan). If the Customer is dissatisfied with any revised Charges, the Customer may terminate the Agreement in accordance with Clause 154 but the Customer will not be entitled to receive a refund of any Charges for a subscription that is due to expire after the effective date of termination.

8.5. Charges must be paid by credit card and will be automatically deducted by the Provider on the Anniversary Date, or at the timing as outlined in Clause 8.3.

8.6. All Charges stated in or in relation to the Agreement (including on the Pricing Page) are stated exclusive of GST (if any) and in US dollars, unless the context requires otherwise. If GST applies to any supply by the Provider under the Agreement, the GST will be payable by the Customer to the Provider in addition to the principal amounts. Charges will be billed and payable in the currency in which they are stated.

8.7. The Provider may suspend access to the Platform and the provision of the Services if any amounts due to be paid by the Customer to the Provider under the Agreement are overdue.

9. Support

9.1. The Provider will provide the Customer with support in relation to the Platform if and to the extent that support is included in the Customer's Subscription Plan. 

9.2. The Customer must make all requests for support services by using the communications method(s) specified by the Provider from time to time as being applicable to the Customer's Subscription Plan.

10. Warranties

10.1. Each party warrants to the other party that it has the legal right and authority to enter into and perform its obligations under the Agreement.

10.2. The Customer acknowledges that:

1. 1. 1. 1. complex software is never wholly free from defects, errors and bugs, and the Provider gives no warranty or representation that the Platform will be wholly free from such defects, errors and bugs;
         2. the Provider does not warrant or represent that the Platform will be compatible with any application, program or software not specifically identified as compatible in the Statement of Services or the Documentation; and
         3. the Provider will not and does not purport to provide any legal, taxation, accountancy or technical (for example, advice in relation to security or integrations) advice under the Agreement or in relation to the Platform, and the Provider does not warrant or represent that the Platform (or the Customer's use of the Platform) will not give rise to any civil or criminal legal liability on the part of the Customer or any other person.

10.3. Subject to Clause 12.1:

1. 1. 1. 1. all of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in the terms of the Agreement; and
         2. to the maximum extent permitted by applicable law, all other warranties and representations concerning the subject matter of the Agreement (whether provided for or implied by statute, course of dealings or otherwise) are excluded.

11. Indemnities

11.1. The Customer will indemnify and will keep indemnified the Provider and its Affiliates against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid in settlement of any disputes) suffered or incurred by the Provider and its Affiliates and arising as a result of any breach by the Customer of Clause 7.3.

12. Limitations and exclusions of liability

12.1. Nothing in the Agreement will:

1. 1. 1. 1. limit or exclude the liability of a party for death or personal injury resulting from negligence;
         2. limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
         3. exclude, contract out of, limit or restrict any right or remedy a party may have under: (i) the Fair Trading Act 1986 (NZ); or (ii) Subpart 3 (Contractual Remedies) of Part 2 of the Contract and Commercial Law Act 2017 (NZ) in relation to misrepresentations which induced a party to enter into the Agreement. For further information in relation to this legislation, you can visit https://www.consumerprotection.govt.nz/; or
         4. limit or exclude any other liability of a party that may not be limited or excluded under applicable law.

12.2. The limitations and exclusions of liability set out in this Clause 12 and elsewhere in the Agreement:

1. 1. 1. 1. are subject to Clause 12.1; 
         2. do not apply to liability of the Customer to pay the Charges, for beach of any of the licence restrictions and prohibitions in Clauses 4.5 to 4.11, or under the indemnity in Clause 11; and
         3. govern all liabilities arising under the Agreement or in relation to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty.

12.3. Neither party will:

1. 1. 1. 1. be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings;
         2. be liable for any loss of business, contracts or commercial opportunities;
         3. be liable for any loss of or damage to goodwill or reputation;
         4. be liable in respect of any loss or corruption of any data, database or software;
         5. be liable in respect of any special, indirect or consequential loss or damage; or
         6. be liable for any losses arising out of a Force Majeure Event.

In addition, if the Customer is subscribing for Services under a Free Plan or using a Beta Product, the Provider will not be liable to the Customer for any other loss or damage (whether direct or otherwise) suffered or incurred by the Customer as a result of a breach or event occurring during such Free Plan subscription or as a result of a breach or event relating to its use of the Beta Product (as applicable).

12.4. A party's liability in relation to any event or series of related events will not exceed the greater of:

1. 1. 1. 1. USD$500; and
         2. the total amount paid and payable by the Customer to the Provider under the Agreement during the 12 month period immediately preceding the event or events giving rise to the claim.

13. Data protection

1. 1. 1. 1. as required to perform the Provider's obligations or exercise the Provider's rights under the Agreement;
         2. in accordance with the Privacy Policy or the Customer's directions; or
         3. as required by law.

14. Confidentiality

14.1 The Provider will:

1. 1. 1. 1. keep confidential and not use or disclose the Customer Confidential Information to any person save as expressly permitted by this Clause 14;
         2. protect the Customer Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care; and
         3. without prejudice to the generality of Clause 14.1(b), deploy and maintain security systems and technologies in relation to the Customer Confidential Information held on the Platform.

14.2 The Customer will:

1. 1. 1. 1. keep confidential and not use or disclose the Provider Confidential Information to any person save as expressly permitted by this Clause 14;
         2. protect the Provider Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care; and
         3. without prejudice to the generality of Clause 14.2(b), deploy and maintain security systems and technologies in relation to the Provider Confidential Information held in the Customer's own systems.

14.3. Customer Confidential Information may be used and disclosed by the Provider and Provider Confidential Information may be used and disclosed by the Customer (as the case may be):

1. 1. 1. 1. to its and its Affiliates' officers, employees, agents, insurers and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Customer Confidential Information or the Provider Confidential Information (as the case may be); and
         2. as reasonably required for the purposes of operating the Platform, providing or using the Services, fulfilling its other obligations under the Agreement (including the Privacy Policy), and exercising its rights under the Agreement (including the Privacy Policy).

14.3. The obligations set out in this Clause 14 shall not apply to:

1. 1. 1. 1. Customer Confidential Information and Provider Confidential Information that is publicly known (other than through a breach of an obligation of confidence);
         2. Customer Confidential Information that is in possession of the Provider prior to disclosure by the Customer or Provider Confidential Information that is in possession of the Customer prior to disclosure by the Provider (as the case may be);
         3. Customer Confidential Information that is received by the Provider from an independent third party who has a right to disclose the relevant Customer Confidential Information or Provider Confidential Information that is received by the Customer from an independent third party who has a right to disclose the relevant Provider Confidential Information; or
         4. Customer Confidential Information and Provider Confidential Information that is required to be disclosed by law, or by a governmental authority, stock exchange or regulatory body.

14.5. The Customer consents to the Provider and its Affiliates using, disclosing and publishing the Customer's name and logos, and the fact that the Customer is a customer of the Provider, on the Provider Group’s website and in any other documents, materials, correspondence and resources prepared by the Provider or its Affiliate for investment and/or promotional purposes.

15. Termination

15.1 The Provider may terminate the Agreement immediately by giving written notice to the Customer if the Customer:

1. 1. 1. 1. commits any material breach of any term of the Agreement;
         2. persistently breaches the terms of the Agreement (irrespective of whether such breaches collectively constitute a material breach); or 
         3. becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason.

15.2. The Customer may terminate the Agreement at any time by giving written notice of termination to the Provider, or by following the account closure procedure outlined on the Platform or the Provider Group’s website. Such termination will become effective on the 7^th day (or such earlier date as the Provider may specify) following the Provider's receipt of the termination notice or the Customer's completion of the account closure procedure.

15.3. The Provider may terminate the Agreement by giving written notice of termination to the Customer. The termination will take effect on the date specified in the Provider's notice, provided that this must be at least two (2) months after the date of the notice if the Customer is subscribed for the Services under a Chargeable Plan. If the Provider terminates under this Clause 15.3 and the Customer has paid Charges for a subscription that is due to expire after the effective date of termination, the Provider will then refund the unexpired portion of the Customer’s subscription payment within 30 days of such termination. 

15.4. If you have subscribed for the Services under a Free Plan, and you have not actively used the Services for six months or more, the Provider may immediately terminate the Agreement by giving written notice of termination to the Customer. If you have subscribed for the Services under a Free Plan which is for a limited, trial period and, at the end of that trial period, you do not subscribe to another available Subscription Plan, the Agreement will terminate automatically upon the expiry of that trial period.

16. Effects of termination

16.1. Upon termination of the Agreement, all the provisions of the Agreement will cease to have effect, save that the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 4.8, 7.6 to 7.8, 11, 12, 14, 16, 19 and 20.

16.2. Termination of the Agreement will not affect either party's accrued liabilities and rights as at the date of termination.

17. Notices

17.1. Any notice given under the Agreement must be in writing (whether or not described as “written notice” in the Agreement) and must be sent by post, or sent by email, (or as notified by one party to the other in accordance with this Clause).

18. Force Majeure Event

18.1. Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under the Agreement (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure Event.

18.2. A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under the Agreement, will:

1. 1. 1. 1. forthwith notify the other; and 
         2. will inform the other of the period for which it is estimated that such failure or delay will continue. 

18.3. The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.

19. General

19.1. No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.

19.2. If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect.  If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted). 

19.3. The Agreement may not be varied except in accordance with Clause 2 or by a written document signed by or on behalf of each of the parties.

19.4. The Provider may freely assign any or all of its contractual rights and/or obligations under the Agreement to any Affiliate of the Provider or any successor to all or a substantial part of the business of the Provider from time to time. As part of any such assignment, the Provider will procure from the assignee an undertaking to perform those of the Provider's obligations under the Agreement which have been assigned. The Customer may not assign any of its rights or obligations under the Agreement without the prior written consent of the Provider (such consent not to be unreasonably withheld).

19.5. The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party.  The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.

19.6. Subject to Clause 12.1, the Agreement (including the Acceptable Use Policy) constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter. 

20. FileInvite Contracting Entity, Governing Law and Jurisdiction

20.1. The table appearing at the end of this Clause 20 prescribes, based on the location of the Customer's address as recorded in the Customer's registered account on the Platform:

1. 1. 1. 1. the FileInvite entity which is the party to the Agreement with the Customer ("FileInvite Contracting Entity");
         2. the laws which will govern the Agreement and its construction ("Governing
            Laws"); and
            1. the courts which will have jurisdiction to adjudicate any dispute arising under or in connection with the Agreement ("Governing Courts").

20.2. The Agreement will be governed by and construed in accordance with the applicable Governing laws, and the applicable Governing Courts will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement. 

These terms were last updated on 2 April 2024.

Schedule 1

Acceptable Use Policy

(1) This Policy

This Acceptable Use Policy (the “Policy”) sets out the rules governing the use of the Platform and our web services available via https://app.fileinivte.com (the “Service”) and any content that you or an End User may submit to the Service (“Content”).

By using the Service, you agree to the rules set out in this Policy.

(2) General restrictions

You must not use the Service in any way that causes, or may cause, damage to the Service or impairment of the availability or accessibility of the Service, or any of the areas of, or services on, the Service (either generally, or for any other users).

You must not use the Service:

1. 1. 1. in any way that is unlawful, illegal, fraudulent or harmful; or 
      2. in connection with any unlawful, illegal, fraudulent or harmful purpose or activity. 
          

(3) Licence

You grant to us a worldwide, irrevocable, non-exclusive, royalty-free licence to publish, and distribute your Content on and in relation to the Service.

(4) Unlawful and illegal material

You must not use the Service to store, host, transmit or send Content that is illegal or unlawful, or that will or may infringe a third party's legal rights, or that could give rise to legal action whether against you or us or a third party (in each case in any jurisdiction and under any applicable law).  

Content (and its use on the Service) must not:

1. 1. 1. be libellous or maliciously false;
      2. be obscene or indecent;
      3. infringe any copyright, moral rights, database rights, trade mark rights, design rights, rights in passing off, or other intellectual property rights;
      4. infringe any rights of confidence, rights of privacy, or rights under data protection legislation;
      5. constitute negligent advice or contain any negligent statement;
      6. constitute an incitement to commit a crime;
      7. be in contempt of any court, or in breach of any court order;
      8. be in breach of racial or religious hatred or discrimination legislation;
      9. be blasphemous;
      10. be in breach of official secrets legislation; or
      11. be in breach of any contractual obligation owed to any person.

You must not submit any Content that is or has ever been the subject of any threatened or actual legal proceedings or other similar complaint.

(5) Data mining

You must not conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to the Service.

(6) Harmful software

You must not use the Service to promote or distribute any viruses, Trojans, worms, root kits, spyware, adware or any other harmful software, programs, routines, applications or technologies.

You must not use the Service to promote or distribute any software, programs, routines, applications or technologies that will or may negatively affect the performance of a computer or introduce significant security risks to a computer.

(7) Marketing and spam

Content must not constitute spam.

You must not use the Service to transmit or send unsolicited commercial communications. 

You must not use the Service to market, distribute or post chain letters, ponzi schemes, pyramid schemes, matrix programs, "get rich quick" schemes or similar schemes, programs or materials.

(8) Gambling

You must not use the Service for any purpose related to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.

(9) Hyperlinks

You must not link to any website or web page containing material that would, were it posted on the Service, breach the preceding terms of this Policy.

(10) Breaches of this Policy

We reserve the right to edit or remove any Content in our sole discretion for any reason, without notice or explanation.

Without prejudice to this general right and our other legal rights, if you breach this Policy in any way, or if we reasonably suspect that you have breached this Policy in any way, we may:

1. 1. 1. delete or edit any of your Content;
      2. send you one or more formal warnings;
      3. temporarily suspend your access to a part or all of the Service; and/or
      4. permanently prohibit you from using a part or all of the Service.

(11) Banned users

Where we suspend or prohibit your access to the Service or a part of the Service, you must not take any action to circumvent such suspension or prohibition (including without limitation using a different account).

(12) Monitoring

Notwithstanding the provisions of this Policy, we do not actively monitor Content.

(13) Report abuse

If you become aware of any material on the Service that contravenes this Policy, you must notify us by email.