Terms & Conditions

1. Introduction

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1.1 These Terms and Conditions (Terms) are entered into between Wych Limited NZBN 9429046988805, unless you are in Australia, in which case these Terms are between Activate Wych Pty Ltd ABN 92644746047 (together, we, us or our) and you, the person or entity that registered with us to use our API (you or your), together the Parties and each a Party.

 

​1.2 For the avoidance of doubt:

(a) if you are in Australia, then you are contracting with Wych Australia Pty Ltd ABN 92644746047;
(b) if you are in any other country, they you are contracting with Wych Limited NZBN 9429046988805;
(c) a reference to “we”, “our” or “us” is a reference to the entity that you are contracting with, depending on where you are based;
and
(d) Wych Limited NZBN 9429046988805 and Wych Australia Pty Ltd ABN 92644746047 are not jointly liable for any Liability arising under or in connection with these Terms.

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1.3 We are a regulated open banking infrastructure provider. We hold the necessary regulatory licences and accreditations to access consumer financial data from banks and other data holders. We provide API access, consent management, data aggregation services, and regulatory compliance services to enable you to access consumer financial data in accordance with applicable laws, including Consumer Data Rights.

 

1.4 If you are using the API on behalf of your employer or a business entity, you, in your individual capacity, represent and warrant that you are authorised to act on behalf of your employer or the business entity and to bind the entity and the entity’s personnel to these Terms.

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2. Acceptance and Term

2.1 You accept these Terms by the earlier of:

(a) confirming that you accept these Terms via the platforms or applications through which we provide these Terms to you, including our website;

(b) registering to use the API;

(c) accessing or using the API, or authorising or permitting any individual to access or use the API;

(d) confirming by email, or any electronic executions platform acceptable to us, that you accept these Terms; and Page 2 of 2

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(e) instructing us (whether orally or in writing) to proceed with the provision of the Services.
 

2.2 These Terms will commence on the Commencement Date and will continue until terminated in accordance with clause 15 (Term).

2.3 We may amend these Terms at any time, by providing written notice to you. By clicking “I accept” or continuing to use the API after the notice or 30 days after notification (whichever date is earlier), you agree to the amended Terms. If you do not agree to the amendment, you may terminate these Terms in accordance with clause 15.

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3. Registration

3.1 To access the API, you will need to complete a registration form on our website (Registration Request).

3.2 We will review your Registration Request and may contact you to obtain further details. We may, at our absolute discretion, accept or reject a Registration Request.

3.3 If we reject your Registration Request, we will provide you with written notice of your unsuccessful request within a reasonable amount of time and these Terms will immediately terminate.

3.4 If we accept your Registration Request, we will let you know via an email, which will include any relevant materials for you to access the API.

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4. Services

4.1 In consideration of your payment of the Fees, we will provide the Services in accordance with these Terms, whether ourselves or through our Personnel.

4.2 We provide access to our regulated open banking infrastructure, enabling you to retrieve consumer financial data from data holders through our APIs. The specific services, features, and support available to you are set out in your Package.

4.3 We will commence the provision of the Services within a reasonable time after the Commencement Date.

4.4 If these Terms express a time within which the Services are to be provided, you agree that such time is an estimate only, and creates no obligation on us to provide the Services by that time.

4.5 You agree that we may amend the Services, Packages or Fees at any time by providing written notice to you. If you do not agree to any amendment made to the Services, Packages or Price, and you can demonstrate the changes have an adverse impact on you, you may terminate these Terms in accordance with clause 15.

4.6 If you purchase Support Services from us when registering for our Services, or at any time during the Term, we agree to provide you with the Support Services, as set out in your Package. We will use commercially reasonable endeavours to make the Support Services available to you during the times as set out in your Package.

4.7 We will use commercially reasonable efforts to maintain availability and performance of the Services, but we do not guarantee any specific uptime or performance levels unless expressly set out in your Package. We are not liable for unavailability caused by third-party infrastructure, maintenance, or circumstances beyond our control.

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5. API Licence

5.1 Your use of the API and any data made available to you through use of the API (API Data) (including use of the API through a third-party application that uses the API) is subject to compliance with these Terms.

5.2 Subject to your compliance with these Terms, we grant you and your Authorised Users (as defined below) a non-transferrable, non- exclusive, revocable licence (without the right to sublicense) to use the API solely as necessary to allow you, once a Customer has consented, to access eligible financial data belonging to the Customer in relation to the request they have made (the Licence).

5.3 You may authorise your Personnel including any developers you contract with, acting in the ordinary course of business and directly working for or managed by you to access and use the API as a user (Authorised User). You must ensure that each user using or accessing the API does so in accordance with these Terms and you are liable for the acts or omissions of your Authorised Users.

5.4 Once your Registration Request has been approved, we will provide you with an account (Account) and issue you with API credentials which you must use to access the API (Access Credentials). You should keep your Access Credentials secure and confidential as you will be solely responsible for any activities occurring in relation to the Access Credentials.

5.5 We may replace your Access Credentials at any time with notice.

5.6 When you create an Account, you must also select an API package (Package). You may choose between different tiers of Packages with different services and different prices as set out on our website.

5.7 You may request multiple Access Credentials but we may prevent access to the API via the Account if you:

(a) have opened an excessive number of them;

or
(b) have created multiple Access Credentials to bypass any technical limits or restrictions of the API

as set out in the Documentation.

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5.8 We provide a free Sandbox Environment containing synthetic (non-production) data for testing and development purposes, which you may access indefinitely at no cost. You may also access your own financial data through the API for testing purposes at no cost, provided such access is solely for building and testing your integration and not for servicing your customers. Access to the production environment (which enables you to access real Customer data) requires an active paid Package. Payment obligations commence immediately upon your first access to the production environment or any real Customer data, regardless of whether you have active customers using your services.

5.9 If your Access Credentials are suspended, you must not attempt to circumvent such suspension by registering for new Access Credentials.

5.10 If we issue a token that permits you to access a Customer’s data (Access Token), you can only use that Access Token for the specific purpose for which you have been provided the Access Token and cannot use that Access Token with any other application. You must not sell, trade or give an Access Token to any third party without our prior written consent. You must take reasonable measures to safeguard Access Tokens and Access Credentials from unauthorised use or access.

5.11 You shall not (and shall not allow any third party, including your users or Personnel, to):

(a) analyse, reverse engineer, attempt to replicate the underlying ideas, algorithms and source code of the API;

(b) transmit any viruses, worms, defects, Trojan horses, malware or other computer programming that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system or data;

(c) remove, obscure, or alter any of our terms of service or any links to or notices of those terms;

(d) interfere with or disrupt the API or the servers or networks providing the API;

(e) defame, abuse, harass, stalk or threaten others; or

(f) use the API or any other technology in a manner that accesses or uses any information beyond what we allow under these Terms; that changes our services; that breaks or circumvents any of our technical, administrative, process or security measures; that disrupts or degrades the performance of our services or the API; or that tests the vulnerability of our systems or networks.

5.12 You acknowledge and agree that you are responsible for ensuring the security of any API Data, including any data or Personal Information relating to your Customers.

5.13 You must not use the API in violation of any law or regulation (including Consumer Data Rights and Privacy Laws), or rights of any person, including Intellectual Property Rights, rights of privacy or in any manner inconsistent with these Terms or any other of our agreements to which you are subject.

5.14 We do not guarantee any level of compatibility between the API and any of your Systems. You will be responsible for your own costs in relation to accessing the API and any other integration work or testing required to access the API.

5.15 We may, from time to time, perform such reasonable scheduled and emergency maintenance, modifications and updates in relation to the API in order to continue to supply the API to you (Maintenance). You agree that access to, or the functionality of all or part of the API, may need to be suspended for a time in order for us to perform the Maintenance, and to the maximum extent permitted by law, we will not be liable to you for any interruptions or downtime to the API as a result of any Maintenance.

 

We will use reasonable commercial endeavours to notify you of any Maintenance which may materially interrupt your use of the API. We may require you to make any changes to your Systems that are necessary and required as a result of such Maintenance, at your sole cost and expense and as soon as reasonably practicable after receipt of our notice.

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6. Your Obligations

6.1 You agree to:

(a) comply with these Terms, our reasonable requests or requirements, and all applicable Laws, including Consumer Data Rights and any applicable Privacy Laws; and

(b) provide all assistance, information, documentation, access, facilities, authorities, consents, licences and permissions reasonably necessary to enable us to comply with our obligations under these Terms or at Law.

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6.2 You acknowledge and agree that:

(a) your use of the API must be in accordance with our instructions, including the latest Documentation provided by us, and any reasonable requirements for best practice use communicated to you by us;

(b) the API provided to you will only allow you to access the API Data in relation to the Customer;

(a) you will obtain any consents, licences, permits and permissions from other parties as required for the Services to be provided (other than in respect of Third Party Inputs), at your cost, and provide us with the necessary consents, licences and permissions.

(c) the technical processing and transmission of the Services, including API Data, may be transferred unencrypted and involves transmissions over various networks, and changes to conform and adapt to technical requirements of connecting networks or devices; and

(d) you acknowledge that you are solely responsible for the goods or services you provide to Customers, we are not a party to any agreement between you and your Customers, we provide infrastructure services only and do not provide any services directly to your Customers, you are solely liable for your relationship with your Customers and any disputes arising from your services.

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7. Regulatory Compliance

7.1 We hold the necessary regulatory licences and accreditations to access consumer financial data. When you use the Services, you operate as our Representative under these licences.

7.2 If you are in Australia, you must also enter into our Consumer Data Right Agreement (CDR Agreement), which is a separate contract governing your regulatory obligations. Both these Terms and the CDR Agreement must remain in force for you to access production data.

7.3 We are required by regulators to conduct regular compliance audits of Representatives. You must participate in audits every 6 months and annually (or at such other intervals as we reasonably require), provide all information and documentation reasonably requested within 10 Business Days, demonstrate your compliance with applicable Laws, and promptly remedy any non-compliance identified. Failure to comply with audit requirements is a material breach and may result in immediate suspension or termination.

7.4 We must submit monthly reports to regulators about all Representatives. You must provide information reasonably required for our monthly reporting within 5 Business Days of our request, promptly notify us of any security incidents or compliance issues, and maintain accurate records of your use of the Services.

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8. Price and Payment Terms

8.1 Once you have registered for an Account and chosen a Package, you agree to pay the fee set out on the website (Fees).

8.2 Your Package includes a minimum monthly fee which is payable regardless of whether you make any API calls or have active Customers. The minimum monthly fee covers our ongoing costs, including maintaining your registration with regulators (where applicable), monthly regulatory reporting on your behalf, compliance monitoring and audit preparation, maintaining platform infrastructure and security, managing your Access Credentials, and maintaining our regulatory licences and insurance. These costs are incurred whether or
not you actively use the Services. In addition to the minimum monthly fee, you will pay usage-based fees as set out in your Package for API calls or data access exceeding the thresholds in your Package.

8.3 Your Package includes a minimum monthly fee which is payable regardless of whether you make any API calls or have active Customers.
 

The minimum monthly fee covers our ongoing costs, including maintaining your registration with regulators (where applicable), monthly regulatory reporting on your behalf, compliance monitoring and audit preparation, maintaining platform infrastructure and security, managing your Access Credentials, and maintaining our regulatory licences and insurance.

8.4 If you choose a pay as you go Package, and unless your Package is terminated in accordance with these Terms, your Package will continue on an ongoing monthly basis, and you will be charged the Fees for your usage on a monthly basis. Without limiting your rights under applicable Consumer Laws, you can cancel your Package at any time in accordance with the Termination clause of these Terms but the cancellation will only have effect from the following month.

8.5 You may opt for a Package which requires upfront payment in accordance with the offers available on our website. You acknowledge and agree that, to the maximum extent permitted by law, any Fees paid by you upfront are non-refundable.

8.6 The payment methods we offer for the Fees are set out on our website. We may offer payment through a third-party provider for example, Stripe. You acknowledge and agree that we have no control over the actions of the third-party provider, and your use of the third-party payment method may be subject to additional terms and conditions.

8.7 You must not pay, or attempt to pay, the Fees by fraudulent or unlawful means. If you make a payment by debit card or credit card, you warrant that you are authorised to use the debit card or credit card to make the payment.

8.8 If any payment has not been made in accordance with the payment terms set out in your Package, we may (at our absolute discretion):

(a) after a period of 5 Business Days, cease providing the Services, and recover, as a debt due and immediately payable from you, our additional costs of doing so (including legal fees, debt collector fees and mercantile agent fees); and/or

(b) charge interest at a rate equal to the Reserve Bank of Australia’s, or Reserve Bank of New Zealand’s (as applicable), cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for the payment.

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8.9 You agree that we may set-off or deduct from any monies payable to you under these Terms, any amounts which are payable by you to us (whether under these Terms or otherwise).

8.10 To the maximum extent permitted by law, the Fees are non-refundable and non-cancellable once paid.

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9. Warranties

9.1 You represent, warrant and agree that:

(a) there are no legal restrictions preventing you from entering into these Terms;

(b) all information and documentation that you provide to us in connection with these Terms is true, correct and complete;

(c) you have not relied on any representations or warranties made by us in relation to the Services (including as to whether the Services are or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms;

(d) the Services are provided to you solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, our Services to third parties without our prior written consent;

(e) any information, advice, material, work and services (including the Services) provided by us under these Terms does not constitute legal, financial, merger, due diligence or risk management advice;

(f) you will be responsible for the use of any part of the Services by you and any Authorised Users, and you must ensure that no person uses any part of the Services:

i. to break any Law or infringe any person’s rights (including Intellectual Property Rights);
ii. to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or
iii. in any way that damages, interferes with or interrupts the supply of the Services;

(g) you are not and have not been the subject of an Insolvency Event;

(h) if applicable, you hold a valid ABN or NZBN which has been advised to us; and

(i) if applicable, you are registered for GST purposes.

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10. Intellectual Property

10.1 As between the Parties:

(a) we own all Intellectual Property Rights in Our Materials;

(b) you own all Intellectual Property Rights in Your Materials; and

(c) nothing in these Terms constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials.

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10.2 As between the Parties, ownership of all Intellectual Property Rights in any New Materials, Improvements and Feedback will at all times vest, or remain vested, in us upon creation. To the extent that ownership of such Intellectual Property Rights in any New Materials, Improvements and/or Feedback do not automatically vest in us, you agree to do all acts necessary or desirable to assure our title to such rights.

10.3 You acknowledge and agree that we may use Feedback in any manner which we see fit (including to develop new features) and no benefit will be due to you as a result of any use by us of any Feedback.

10.4 For the Term, each Party grants to the other a non-exclusive, non-transferable, non-sublicensable, revocable and royalty free licence to use and reproduce:

(a) its Trade Marks; and

(b) any other Intellectual Property provided to the other Party, solely in connection with these Terms, or any other written directions provided by either Party.

10.5 We may, at any time and in our sole discretion, require you to display our Trade Marks in a prominent location on your website or marketing material or when otherwise making the API available to Customers.

10.6 Where a Party uses the other Party’s Intellectual Property in accordance with clause 9.4, that Party must ensure that the Intellectual Property is only used in accordance with any use guidelines provided by the Party that owns the Intellectual Property notified to them from time to time.

10.7 If you or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with these Terms, you agree to (and agree to ensure that your Personnel) consent to our use or infringement of those Moral Rights.

10.8 In the use of any Intellectual Property Rights in connection with these Terms, you must not (and you must ensure that your Personnel do not) commit any Intellectual Property Breach.

10.9 All API Data accessed through the Services is owned by the relevant Customer (end consumer) who provided consent for such access. Neither you nor we own the underlying consumer data. We cache and store API Data temporarily on your behalf to facilitate your access and use. You may only use API Data for the specific purposes for which the Customer provided consent and in accordance with applicable Laws.

10.10 This clause 9 will survive termination or expiry of these Terms.

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11. Confidential Information

11.1 Each Receiving Party agrees:

(a) not to disclose the Confidential Information of the Disclosing Party to any third party;

(b) to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and

(c) to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.

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11.2 The obligations in clause 9.1 do not apply to Confidential Information that:

(a) is required to be disclosed in order for the Parties to comply with their obligations under these Terms;

(b) is authorised to be disclosed by the Disclosing Party;

(c) is in the public domain and/or is no longer confidential, except as a result of a breach of these Terms; or

(d) must be disclosed by Law or by a regulatory authority, including under subpoena.

11.3 Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 10. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 10.

11.4 This clause 10 will survive the termination or expiry of these Terms.

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12. Consumer Laws

12.1 If you are based in New Zealand, you agree and represent that you are entering into these Terms for the purpose of trade. The Parties agree that to the maximum extent permitted by law:

(a) the New Zealand Consumer Guarantees Act 1993 and Fair Trading Act 1986 does not apply to the supply of the Services or these Terms;

(b) our warranties are limited to those set out in these Terms (if any), and all other conditions, guarantees or warranties whether express or implied by statute or otherwise (including any warranty under Part 3 of the New Zealand Contract and Commercial Law Act 2017) are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to an amount equal to the Fees paid by you in the previous 12 months; and

(c) it is fair and reasonable that the Parties are bound by this clause 11.1.

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12.2 If you are based in Australia, certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the provision of the Services by us to you which cannot be excluded, restricted or modified (Consumer Law Rights). Our Services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Services, you are entitled to cancel these Terms with us, and to a refund for the unused portion, or to compensation for its reduced value. You are also entitled to choose a refund or replacement for major failures with Services. If a failure with the Services does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the Services or to cancel the contract for the Services and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the Services. You agree:

(a) that if the ACL applies to you as a consumer, nothing in these Terms excludes your Consumer Law Rights as a consumer under the ACL. You agree that our Liability for the Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms; and

(b) subject to your Consumer Law Rights, we exclude all express and implied warranties, and all material, work and services (including the Services) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or on any other basis, except where expressly set out in these Terms.

12.3 This clause 11 will survive the termination or expiry of these Terms.

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13. Privacy

13.1 If you are in New Zealand, you must, and you must ensure that your Personnel and Authorised Users, at all times comply with the New Zealand Privacy Act 2020 and any other applicable legislation or privacy guidelines applicable to you in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with these Terms (New Zealand Privacy Laws).

13.2 If you are in Australia, you must, and you must ensure that your Personnel and Authorised Users, at all times comply with the Australian Privacy Principles, the Privacy Act 1988 (Cth) and any privacy or anti-spam Laws applicable to you in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with these Terms (Australian Privacy Laws).

13.3 Without limiting this clause 12, you must ensure that:

(a) you have collected, used, stored and otherwise dealt with Personal Information in accordance with all New Zealand Privacy Laws or Australian Privacy Laws, as applicable; and

(b) we are capable of collecting, using, storing and otherwise dealing with Personal Information, in the manner contemplated by these Terms, without infringing any third party rights or violating any New Zealand Privacy Laws or Australian Privacy Laws as applicable.

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13.4 Without limiting this clause 12, you agree to only disclose Personal Information to us if:

(a) you are authorised by the New Zealand Privacy Laws or Australian Privacy Laws, as applicable, to collect the Personal Information and to use or disclose it in the manner required by these Terms; and

(b) you have informed the individual to whom the Personal Information relates, that their Personal Information will be disclosed to us.

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13.5 You agree to:

(b) implement and make available a privacy policy and privacy collection notice to Customers detailing how you will collect, use, store and otherwise deal with Personal Information and the purpose for which Personal Information is being collected and who it may be disclosed to; and

(c) seek express consent from a Customer before using the API to access data about that Customer.

13.6 We agree to handle any Personal Information you provide to us, solely for the purpose of performing our obligations under these Terms, and in accordance with any applicable Laws and our Privacy Policy.

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14. Exclusions to liability

14.1 Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:

(a) any aspect of your interaction with a Customer;

(b) any Third Party Inputs; and

(c) your Systems.

14.2 This clause 13 will survive the termination or expiry of these Terms.

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15. Liability

15.1 Despite anything to the contrary, to the maximum extent permitted by law, you are liable for, and agree to indemnify us and hold us harmless in respect of any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with:

(a) a breach of any applicable Laws, including the Consumer Data Right and any applicable Privacy Laws; or
(b) any breach of clause 12 of these Terms.

15.2 Despite anything to the contrary, to the maximum extent permitted by law:

(a) neither Party will be liable for Consequential Loss;

(b) a Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by the other Party to mitigate its loss; and

(c) our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us resupplying the Services to you or, in our sole discretion, to us repaying you the amount of the Fees paid by you to us in the previous 12 months in respect of the supply of the relevant Services to which the Liability relates.

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15.3 This clause 14 will survive the termination or expiry of these Terms.

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16. Termination

16.1 Either Party may terminate these Terms at any time by giving 30 days’ notice in writing to the other Party (Termination for Convenience).

16.2 These Terms will terminate immediately upon written notice by:

(a) us, if:

(1) you (or any of your Personnel) breach any provision of these Terms and that breach has not been remedied within 10 Business Days of being notified by us;
(2) you fail to provide us with clear or timely instructions or information to enable us to provide the Services;
(3) for any other reason outside our control which has the effect of compromising our ability to provide the Services; or
(4) you are unable to pay your debts as they fall due; and

(b) you, if we:

(1) are in breach of a material term of these Terms, and that breach has not been remedied within 10 Business Days of being notified by you;
(2) provide you notice in accordance with clause 2.3 or 4.4;
(3) are unable to pay our debts as they fall due;
(4) you fail to participate in required audits or provide requested information in accordance with clause 7.3; or
(5) you breach clause 7.3.

16.3 Upon expiry or termination of these Terms:

(a) we will immediately cease providing the Services, and you must immediately cease accessing the API;

(b) you agree that other than where termination is due to our Termination for Convenience, our breach of these Terms or in accordance with clause 15.2(b)(1) or (2), and to the maximum extent permitted by law, any payments made by you to us are not refundable to you, and you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under these Terms;

(c) pursuant to clauses 15.2(a)(1), (2) or (4), you also agree to pay us our additional costs arising from, or in connection with, such termination; and

(d) you agree to promptly return (where possible), or delete or destroy (where not possible to return), our Confidential Information, Our Materials, New Materials and our Intellectual Property, and/or documents containing or relating to our Confidential Information, Our Materials, New Materials and our Intellectual Property.

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16.4 Where termination is due to our Termination for Convenience or our breach of these Terms, we agree to refund you for any prepaid unused Fees.

16.5 We will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to these Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on expiry or termination of these Terms.

16.6 Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.

16.7 This clause 16 will survive the termination or expiry of these Terms.

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17. General

17.1 Publicity: You agree that we may advertise or publicise the broad nature of our provision of the Services to you, including on our website or in our promotional material.

17.2 Amendment: These Terms may only be amended by written instrument executed by the Parties.

17.3 Assignment: A Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).

17.4 Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior
representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, and:

(a) the Parties are located in Australia, either Party may ask the Law Society of New South Wales to appoint a mediator; or

(b) the Parties are located outside of Australia, either Party may ask the Law Society of New Zealand to appoint a mediator.

The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

17.5 Entire agreement: These Terms contain the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.

17.6 Force Majeure: To the maximum extent permitted by law, we will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control.

17.7 Governing law: Where you are located outside of Australia, including in New Zealand, these Terms are governed by the laws of New Zealand. Where you are located in Australia, these Terms are governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New Zealand or New South Wales (as applicable) and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

17.8 GST: If and when applicable, GST payable on the Fees will be set out in your tax invoice. You agree to pay the GST amount at the same time as you pay the Fees.

17.9 Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

17.10 Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

17.11 Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.

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18. Definitions

In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them throughout the Terms, and:

ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.

Access Credentials has the meaning given to it in clause 5.4.

Access Token has the meaning given to it in clause 5.9.

Account has the meaning given to it in clause 5.4.

API means the application programming interface and associated code, tools, documentation and related material that we provide to you in relation to our Open Data software.

API Data has the meaning given to it in clause 5.2.

Business Day means, if you are in Australia, a day on which banks are open for general banking business in New South Wales, excluding Saturdays, Sundays and public holidays, and if you are anywhere else, a day on which banks are open for general banking business in Auckland, New Zealand, excluding Saturdays, Sundays and public holidays.

Commencement Date means the date on which these Terms are accepted in accordance with its terms.

Confidential Information includes information which:

(a) is disclosed to the Receiving Party in connection with these Terms at any time;
(b) is prepared or produced under or in connection with these Terms at any time;
(c) relates to the Disclosing Party’s business, assets or affairs; or
(d) relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms,

whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.

Consequential Loss includes any real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. The Parties acknowledge and agree that your obligation to pay us the Fees under these Terms will not constitute “Consequential Loss” for the purposes of this definition.

Consumer Data Rights means, if you are in Australia, the consumer data rights set out in Part IVD of the Competition and Consumer Act 2010 (Cth) and the Competition and Consumer (Consumer Data Right) Rules 2020, as amended, from time to time. If you are anywhere else, Consumer Data Rights means any similar or equivalent legislation to the Australian legislation that is in force, or may be introduced, in New Zealand, as amended, from time to time.

Consumer Law Rights has the meaning given in clause 11.2.

Customer means a user of your services which grants you access to their information through the API.

Disclosing Party means the party disclosing Confidential Information to the Receiving Party.

Documentation means any documentation that we provide to you from time to time in relation to the API.

Feedback means any idea, suggestion, recommendation or request by you or any of your Personnel or Authorised Users, your customers, whether made verbally, in writing, directly or indirectly, in connection with the Services.

Improvements means any development, modification, adaptation or improvement of Our Materials or any New Materials made by or on behalf of either Party (or any of their respective Personnel), or in respect of which Intellectual Property Rights are acquired by, either Party during the Term.

Insolvency Event means any of the following events or any analogous event:

(a) a Party disposes of the whole or any part of the Party’s assets, operations or business other than in the ordinary course of business;
(b) a Party ceases, or threatens to cease, carrying on business;
(c) a Party is unable to pay the Party’s debts as the debts fall due;
(d) any step is taken by a mortgagee to take possession or dispose of the whole or any part of the Party’s assets, operations or business;
(e) any step is taken for a party to enter into any arrangement or compromise with, or assignment for the benefit of, a Party’s creditors or any class of a Party’s creditors; or
(f) any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of a Party’s assets, operations or business.

 

Intellectual Property means any domain names; know-how, inventions, processes, trade secrets or Confidential Information; or circuit
layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and
any improvements, enhancements or modifications of, the foregoing.

Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not. Including in respect of Intellectual Property.
Intellectual Property Breach means any breach by you (or any of your Personnel) of any of our Intellectual Property Rights (or any breaches of third-party rights including any Intellectual Property Rights of third parties), including, but not limited, to you (or your Personnel):

(a) copying, altering, enhancing, adapting or modifying any of our Intellectual Property;
(b) creating derivative works from our Intellectual Property;
(c) providing or disclosing our Intellectual Property to, or allowing our Intellectual Property to be used by, any third party;
(d) assigning or transferring any of our Intellectual Property Rights or granting sublicenses of any of any of our Intellectual Property Rights, except as expressly permitted in these Terms;
(e) reverse engineering or decompiling any of our Intellectual Property Rights, except where permitted by Law; or
(f) using or exploiting our Intellectual Property for purposes other than as expressly stated in these Terms (including, without limitation, using our Intellectual Property for commercial purposes or on-selling our Intellectual Property to third parties).

Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with these Terms or the provision of the Services.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise.

Licence has the meaning given to it in clause 5.3.

Moral Rights has the meaning given in the Copyright Act 1968 (Cth) if you are in Australia, or the meaning given in the New Zealand Copyright Act 1994 if you are located anywhere else.

New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of us or you or any of your or our respective Personnel in connection with these Terms or the provision of the Services, whether before or after the date of these Terms.

Our Materials means all work, models, processes, technologies, strategies, materials, information, documentation, and services that we may provide to you under these Terms, and which may contain material which is owned by or licensed to us, and is protected by Australian and international laws.

Platform means our cloud-based open banking infrastructure, including our APIs and related systems and services.
 

Personal Information means information or an opinion, whether true or not and whether recorded in a material form or not, about an individual who is identified or reasonably identifiable.

Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents.

Production Environment means the live environment that enables access to real Customer data, as distinct from the Sandbox Environment.

Purpose means to allow you to, once a Customer has consented, to access eligible financial data belonging to the Customer in relation to the request they have made.

Privacy Laws means the Australian Privacy Laws or New Zealand Privacy Laws, as applicable.

Receiving Party means the party receiving Confidential Information from the Disclosing Party.

Sandbox Environment means our testing environment containing synthetic (non-production) data for development and testing purposes.

Services means providing you with access to our regulated open banking infrastructure, enabling you to retrieve consumer financial data from data holders through our APIs, and includes the specific services, features, and support set out in your Package.

Service Levels are as set out in your Package, and as amended from time to time.

Support Services has the meaning set out in your Package. System means all hardware, software, networks, telecommunications and other IT systems used by you from time to time.

Term means the term of these Terms, commencing on the Commencement Date and ending on the date on which these Terms are terminated in accordance with its terms.

Third Party Inputs means third parties or any goods or services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Services may be contingent on, or impacted by.

Trade Marks means signs, trade marks, service marks, brand names, rights in get up or trade dress, logos, slogans, stylizations, devices and similar rights, whether registered and unregistered and whether within or outside Australia.

Your Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licenced or developed by or on behalf of you or your Personnel before the Commencement Date and/or developed by or on behalf of you or your Personnel independently of these Terms.

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19. Interpretation

In these Terms, unless the context otherwise requires:

(a) a reference to these Terms or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
(b) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
(c) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
(d) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
(e) a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
(f) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
(g) if you are located in Australia, a reference to time is to local time in New South Wales, and if you are located anywhere else, a reference to time is to local time in Auckland, New Zealand; and
(h) if you are located in Australia, a reference to $ or dollars refers to the currency of Australia from time to time, and if you are located anywhere else, a reference to $ or dollars refers to the currency of New Zealand from time to time.

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