Last Revised: March 1, 2021
USE OF THE SERVICE IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND VOYANT'S PRIVACY AND SECURITY POLICIES, WHICH MAY BE VIEWED AT HTTP://WWW.PLANWITHVOYANT.COM.
IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED HEREIN, THE PARTIES AGREE AS FOLLOWS.
Voyant provides web based financial planning products and services, including Voyant Advisor (the "Service"). Advisor desires to obtain access to the Service, pursuant to the terms and conditions of this Agreement.
2. Advisor Administrator
Advisor shall designate one (1) contact and one (1) alternate as the responsible party for communication with Voyant during the term of this agreement (Advisor's "Voyant Administrator"). Advisor's Voyant Administrator shall have the authority to bind the Advisor, including without limitation by agreeing to updates to this Agreement and/or privacy and security policies from time to time. It is Advisor's obligation to ensure that its Voyant Administrator reads and understands such updates. Advisor shall act hereunder through Advisor's Voyant Administrator, except that another duly authorized representative of Advisor may change Advisor's Voyant Administrator by giving written notice to Voyant in accordance with the terms hereof.
3. Authorized User Accounts
Advisor's Voyant Administrator may establish accounts for Advisor's employees or independent contractors to use the Service on behalf of Advisor ("Authorized Users"). Each Authorized User shall acknowledge this Agreement and affirm its obligations hereunder, when such Authorized User first accesses its account set up by the Administrator in accordance with the instructions provided by Voyant. Advisor shall be responsible for any breach of this Agreement or Voyant's security or privacy policies by an Authorized User. Advisor shall immediately notify Voyant in the event that Advisor or an Authorized User becomes aware of any violation of the terms of this Agreement or such policies. Advisor is solely responsible for determining the skill, competence, character and other attributes of its Authorized Users.
4. Advisor Assistance
Advisor shall provide Voyant with all information and assistance as reasonably required for Voyant to activate and operate the Service for Advisor pursuant to this Agreement. Advisor grants Voyant all rights or licenses necessary for Voyant to use such information in connection with the provision of the Service. Advisor's complete and accurate billing and contact information has been provided in connection with the establishment of the Service, and Advisor agrees to notify Voyant of any changes to such information. When establishing an account for an Authorized User, Advisor shall provide complete and accurate registration information for each Authorized User.
5. Privacy & Security; Disclosure
6. License Grant
Subject to the terms and conditions of this Agreement including without limitation the restrictions set forth below, Voyant hereby grants Advisor a non-exclusive, non-transferable right to use the Service, solely for Advisor's own internal use. All rights not expressly granted to Advisor are reserved by Voyant and its licensors.
7. Advisor Conduct and Restrictions
Advisor may not access the Service if Advisor is a direct competitor of Voyant, except with Voyant's prior written consent following Advisor's disclosure to Voyant of Advisor's status as a competitor. In addition, Advisor may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. Advisor shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Voyant Content (defined in section 12 below) in any way or use it in a service bureau or any other manner to provide services to a third party; (ii) copy, translate, modify or make derivative works based upon the Service or the Voyant Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Voyant Content on any other server or wireless or Internet-based device; (iv) reverse engineer, de-compile, disassemble, or otherwise attempt to derive the source code of the Service including without limitation in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service; or (v) remove, obscure, or alter any copyright notice, trademarks, logos and trade names, or other proprietary rights notices affixed to, or contained within the Service.
Advisor further agrees to not use the Service to:
|(a)||upload, post, email, transmit or otherwise make available any text, files, images, links, works of authorship, software, music, sound, photographs, graphics, video, messages, tags, or other materials that are unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable (in each case as determined by Voyant);|
|(b)||harm minors in any way;|
|(c)||impersonate any person or entity, including, but not limited to, a Voyant official, forum leader, guide or host, or falsely state or otherwise misrepresent Advisor's affiliation with a person or entity;|
|(d)||forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content (defined in section 12 below) transmitted through the Service;|
|(e)||upload, post, email, transmit or otherwise make available any text, files, images, links, works of authorship, software, music, sound, photographs, graphics, video, messages, tags, or other materials that Advisor does not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);|
|(f)||upload, post, email, transmit or otherwise make available any text, files, images, links, works of authorship, software, music, sound, photographs, graphics, video, messages, tags, or other materials that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;|
|(g)||upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail", "spam", "chain letters", "pyramid schemes", or any other form of solicitation;|
|(h)||upload, post, email, transmit or otherwise make available any material that contains software viruses, worms, Trojan horses or any other computer code, scripts, agents, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;|
|(i)||disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other users of the Service (each, a "User") are able to type, or otherwise act in a manner that negatively affects other Users' ability to engage in real time exchanges;|
|(j)||interfere with or disrupt the Service or servers or networks connected to the Service, disobey any requirements, procedures, policies or regulations of networks connected to the Service, or use the Service for any fraudulent purpose;|
|(k)||intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the Australian Securities & Investments Commission, any rules of any national or other securities exchange, including, without limitation, the Australian Securities Exchange, and any regulations having the force of law;|
|(l)||provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) that it listed by the Australian government on the consolidated list of persons and entities subject to financial sanctions under Australia's sanctions law;|
|(m)||"stalk" or otherwise harass another person or User;|
|(n)||provide false identity information to gain access to or use the Service;|
|(o)||send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights;|
|(p)||attempt to gain unauthorized access to the Service or its related systems or networks; and/or|
|(q)||collect or store personal data about other Users in connection with the prohibited conduct and activities set forth in paragraphs a through p above.|
Advisor understands that the Service and software embodied within the Service may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by Voyant and/or content providers who provide content to the Service. Advisor may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorized reproduction, publication, further distribution or public exhibition of the Voyant Content or other materials provided on the Service, in whole or in part, is strictly prohibited.
8. Advisor Responsibilities
Advisor is responsible for all activity occurring under Advisor's account and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Advisor's use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. Advisor shall protect the confidentiality of all account information, including Advisor's and each Authorized User's user name and passwords, and shall be solely responsible for exiting or logging off of the Service. Advisor shall: (i) notify Voyant immediately of any unauthorized use of any password or account or any other known or suspected breach of security; and (ii) report to Voyant immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Advisor or Authorized Users to infringe another party's rights.
9. Charges and Payment of Fees
If Advisor has signed up for a free trial, Voyant will not invoice Advisor for the period of the free trial. Voyant will not have any obligation to provide the Service outside the period of the free trial until Advisor has paid the first annual Service Fee and this is processed by Voyant in accordance with this section 9.
Voyant shall invoice Advisor for the Service and for any other applicable fees incurred by the Advisor from time to time. The Service fee is (subject to this section) the fee specified on the Voyant Website as at the commencement of this Agreement multiplied by the then-current number of Authorized Users. Fees other than the Service fee shall be provided upon Advisor request to firstname.lastname@example.org. Responses shall be provided within 1 Business Day (as defined in section 26). Additional fees may include without limitation setup fees and service charges as well as fees for renewal terms of this Agreement, fees for additional Authorized Users and fees for lead generation and access, as described below.
Each individual Authorized User must have their own distinct user account login. Authorized Users MAY NOT share user account logins in an effort to hide and lower the number of Authorized Users utilizing the Service.
Voyant shall charge Advisor Voyant's then current referral fee for each third party Voyant user ("Client") referred to Advisor or any Authorized User through the Service. In addition, for so long as Advisor or any Authorized User has access to such Client through the Service, Voyant shall charge Advisor Voyant's then current monthly Client access fee.
All fees are due and payable in Australian dollars within thirty (30) days of receipt by Advisor of the Voyant invoice. Advisor acknowledges that fees for the Service shall be paid in advance on an annual basis, and that the Service will not be initiated until the first annual Service fee is received and processed by Voyant. All payment obligations are non-cancellable and all amounts paid are nonrefundable, unless Advisor terminates this Agreement as a result of a breach by Voyant or because of a unilateral variation to the terms of this Agreement by Voyant, in which case Voyant will, within 60 days of the termination of this Agreement occurring, refund to Advisor any payments made by Advisor in respect of the period following the date of termination.
You must provide Voyant with valid credit card details or a direct debit authorisation to facilitate the payments contemplated hereby.
The charge for any renewal term for the Service will be equal to the then-current number of Authorized Users times the fee for the Service in effect during the prior term (calculated on an annual basis), unless Voyant has given Advisor at least 30 days prior written notice of a fee increase, which notice may be given by publishing the increased fee on the Voyant Website, which shall be effective upon renewal and thereafter.
All fees are exclusive of applicable goods and services, sales, excise, or use taxes ("Taxes"). In addition to the fees payable in accordance with this Agreement, the Advisor must pay any Taxes that are payable in connection with the Service and Voyant will provide a Tax invoice for any payment of Taxes as required by law.
Fees for Authorized Users' access to the Service will be subject to the following: (i) the access of additional Authorized Users will be coterminous with the then current term; (ii) the fee(s) for the added Authorized Users shall be the then current, generally applicable fee and payable for the remaining period of the then current term of this Agreement prior to the added Authorized User commencing use of the Service; and (iii) Authorized Users added in the middle of a billing month will be charged in full for that billing month.
10. Non-Payment and Suspension
In addition to any other rights granted to Voyant herein, Voyant reserves the right to suspend or terminate this Agreement and Advisor's (and any Authorized Users') access to the Service if Advisor's account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Advisor will continue to be charged for Authorized Users during any period of suspension. If Advisor or Voyant initiates termination of this Agreement, Advisor will be obligated to pay the balance due on Advisor's account computed in accordance with the Charges and Payment of Fees section above. Advisor agrees that Voyant may charge such unpaid fees to Advisor's credit card or bank account by direct debit or otherwise bill Advisor for such unpaid fees.
11. Intellectual Property Ownership
Voyant alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Voyant Content and the Service, any modifications, improvements, upgrades, derivative works related thereto, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Advisor, any Authorized User, or any other party relating thereto. Advisor and each Authorized User agree to assign any right, title, and interest it may have in the foregoing to Voyant on creation. This Agreement is not a sale and does not convey to Advisor or any Authorized User any rights of ownership in or related to the Service, the Voyant Content, or any intellectual property rights related thereto. The Voyant name, the Voyant logo, and the product names associated with the Service are trademarks of Voyant or third parties, and no right or license is granted hereby to use them.
12. Content, Account Information and Data
Voyant does not claim any ownership rights in the text, files, images, links, works of authorship, software, music, sound, photographs, graphics, video, messages, tags, or other materials that Advisor or any Authorized User posts to the Service (collectively, "Advisor Content"). After such Advisor Content is posted to the Service, Advisor continues to retain all ownership rights in such Advisor Content. By posting or having posted any Advisor Content on or through the Service, Advisor and any Authorized User hereby grants to Voyant a perpetual, non-exclusive, fully-paid, royalty-free, fully sublicensable, transferable, irrevocable worldwide license to use, modify, publicly perform, publicly display, reproduce, exploit and distribute such Advisor Content (in whole or in part). Advisor represents and warrants that: (i) Advisor owns the Advisor Content or otherwise has the right to grant the license set forth in this section, and (ii) the posting of the Advisor Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person or entity. Advisor agrees to pay for all royalties, fees, and any other monies owing any person or entity by reason of any Advisor Content posted to or through the Service.
The Service contains content of Voyant or our licensors ("Voyant Content"). ("Voyant Content", "Advisor Content" and any other text, files, images, links, works of authorship, software, music, sound, photographs, graphics, video, messages, tags, or other materials that any other User posts to the Service is collectively referred to as the "Content"). Voyant Content is protected by copyright, trademark, and other laws, and Voyant (or our licensors) owns and retains all rights in Voyant Content. Voyant does not control all of the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of the Content. Advisor agrees that Advisor must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, Advisor acknowledges that Advisor may not rely on any Content created by Voyant or submitted to Voyant, including without limitation information in Voyant Community and in all other parts of the Service. To the extent permitted by law, under no circumstances will Voyant be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.
The following is a partial list of the kind of Content that is illegal or prohibited to post on or through the Service ("Prohibited Content"). Voyant reserves the right to investigate and take appropriate legal action against anyone who, in Voyant's sole discretion, violates this provision. Without liability of any kind, Voyant may reject, refuse to post, or delete any Advisor Content that in the sole judgment of Voyant violates this Agreement or which may be offensive, illegal or violate the rights, harm, or threaten the safety of any person. Prohibited Content includes, but is not limited to Content that, in the sole discretion of Voyant; is patently offensive and promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; harasses or advocates harassment of another person; exploits people in a sexual or violent manner; contains nudity, violence, or offensive subject matter or contains a link to an adult website; solicits personal information from anyone under 18; provides any telephone numbers, street addresses, last names, URLs or email addresses; promotes information that Advisor or any Authorized User knows is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music, video, photos or links to pirated files; contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page); furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses; solicits passwords or personal identifying information for commercial or unlawful purposes from other Users; involves commercial activities and/or sales without Voyant's prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; or includes a photograph of another person that Advisor or any Authorized User has posted without that person's consent.
Advisor acknowledges, consents and agrees that Voyant may access, preserve and disclose Advisor's account information and Advisor Content if required to do so by law or in a good faith belief that such access preservation or disclosure is permitted by law and is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any Content violates the rights of third parties; (d) respond to Advisor requests for customer service; or (e) protect the rights, property or personal safety of Voyant, the Users and the public.
Voyant does not own any data that Advisor or any Authorized User submits to the Service in the course of using the Service ("Advisor Data"). Advisor accepts sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Advisor Data, and Voyant shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Advisor Data arising in connection with Advisor or any Authorized User's use of or access to the Service except to the extent otherwise provided in this Agreement. Advisor and each Authorized User grants and agrees to grant to Voyant a perpetual, irrevocable, transferable, sublicensable, royalty-free, non-exclusive license to use the Advisor Data (a) in order to provide the Service; (b) for statistical use (provided that such data is not personally identifiable); and (c) as necessary to monitor and improve the Service.
Advisor understands that the technical processing and transmission of the Service, including Advisor's Advisor Content and Advisor Data, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
13. Third Party Interactions
During use of the Service, Advisor and any Authorized User may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity (and any terms, conditions, warranties or representations associated with such activity), is solely between Advisor or Authorized User and the applicable third-party. Voyant and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between Advisor and/or Authorized User and any such third-party. Voyant does not endorse any third party or any sites on the Internet that are linked through the Service. Voyant provides links and access to third parties only as a matter of convenience, and in no event shall Voyant or its licensors be responsible for any advice, content, products, or other materials on or available from such advisors or sites. Advisor recognizes that certain third-party providers of ancillary software, hardware or services may require an agreement to additional or different licenses or other terms prior to Advisor's use of or access to such software, hardware or services.
14. Termination and Expiration
This Agreement commences on the Effective Date. The initial term is one year. Upon the expiration of the initial term, this Agreement will automatically renew for successive renewal terms equal in duration to the initial term. Either party may terminate this Agreement, effective only upon the expiration of the then current term, by notifying the other party in writing at least five (5) Business Days prior to the date of the expiration of the then current term.
In the event this Agreement is terminated or expires, Voyant will make available to Advisor a file of the Advisor Data within 30 days of termination if Advisor so requests at the time of termination or expiry. Advisor agrees and acknowledges that Voyant has no obligation to retain the Advisor Data, and may delete such Advisor Data, more than 30 days after termination.
Upon termination of this Agreement, sections 11, 12, 17, 18, 19, 21 and 26 shall survive and remain in effect and all other rights and obligations shall cease.
15. Termination for Cause
A party may terminate this Agreement immediately by written notice if the other party breaches a term of this Agreement which is not capable of remedy, or where the breach is capable of remedy, fails to remedy the breach within 20 Business Days of a written notice of the breach. Upon termination of the Agreement, Voyant will terminate Advisor's and any Authorized User's password, account, and use of the Service.
16. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement and the person agreeing to this Agreement by clicking the "I ACCEPT" button on behalf of the Advisor has the legal power and authority to execute the Agreement on behalf of, and bind, the Advisor. Advisor represents and warrants that Advisor has not falsely identified itself nor provided any false information to gain access to the Service.
Advisor shall indemnify and hold Voyant, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Advisor Data and/or Advisor Content infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by Advisor of Advisor's representations and warranties or unauthorized use by Advisor or any Authorized User of the Service; or (iii) a claim arising from the breach by Advisor or an Authorized User of this Agreement.
Advisor acknowledges that the Service, the terms of this Agreement including without limitation pricing, and any other proprietary or confidential information provided to Advisor or any Authorized User by Voyant ("Voyant Confidential Information") constitutes valuable proprietary information and trade secrets of Voyant. Advisor agrees to preserve the confidential nature of the Voyant Confidential Information by retaining and using it in trust and confidence, solely for Advisor's internal use and subject to the terms hereof, and by using the same degree of protection that Advisor uses to protect Advisor's own confidential information, but in no event less than reasonable care. Voyant shall have the right to obtain an injunction (without having to post a bond or prove actual damages) to prevent any breach or continued breach of this section. Advisor agrees to promptly report any breaches of this section to Voyant.
19. Disclaimer of Warranties
VOYANT AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. VOYANT AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET ADVISOR'S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY ADVISOR THROUGH THE SERVICE WILL MEET ADVISOR'S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
THE SERVICE AND ALL CONTENT IS PROVIDED TO ADVISOR STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY VOYANT AND ITS LICENSORS.
Nothing in this Agreement restricts, excludes or modifies any consumer guarantee, right or remedy conferred on the Advisor by the Consumer Laws or any other applicable law that cannot be excluded, restricted or modified ("Non-Excludable Obligation"). To the maximum extent permitted by law, Voyant's liability for a breach of a Non-Excludable Obligation in respect of the Service is limited, at Voyant's option, to the cost of supplying the Service again, or payment of the reasonable cost of having the Service supplied again.
For the purpose of this section 19, "Consumer Laws" means all applicable laws relating to consumer protection, including provisions set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
20. Internet Delays and Force Majeure
VOYANT'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. VOYANT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. Neither party shall be in default for failing to perform any obligation hereunder if such failure is caused solely by supervening conditions beyond the parties' respective control, including without limitation acts of God, civil commotion, strikes, terrorism, failure of third party networking equipment, failure of the public Internet, power outages, labor disputes or governmental demands or restrictions.
21. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL VOYANT'S AGGREGATE LIABILITY TO THE ADVISOR EXCEED AN AMOUNT EQUAL TO THE FEES ACTUALLY RECEIVED BY VOYANT HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE APPLICABLE CLAIM.
IN NO EVENT SHALL EITHER PARTY OR VOYANT'S LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF VOYANT OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
The disclaimers and limitations of liability set forth in this Agreement shall apply irrespective of any failure of essential purpose of any limited remedy. Advisor and Voyant each acknowledge and agree that the limitations of liability provisions of this section reflect an informed, voluntary allocation between them of the risk associated with Advisor's use of the Service. In the absence of these provisions, Voyant would not have made the Service available for the fees charged.
22. Local Laws and Export Control
The Service uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies. No software may be downloaded from the Service and the Service may not be otherwise used, exported or re-exported by Advisor in violation of U.S. export laws.
Software contained within the Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000
Voyant and its licensors make no representation that the Service is appropriate or available for use in locations other than Australia. If Advisor or any Authorized User uses the Service from outside Australia, Advisor is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to Australian law is prohibited.
Voyant may give notice by means of a general notice on the Service via electronic mail to Advisor's e-mail address on record in Voyant's account information. Advisor may give notice to Voyant at any time via electronic mail to the email address specified for contact on the Voyant Website.
Notice shall be deemed to have been given upon the expiration of 12 hours after sending (if sent by email).
24. Modification to Terms
Voyant reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service (including its privacy and security policies) at any time, effective upon the expiry of 30 days after written notice of the modification is provided to Advisor (which may be provided by notice on the Voyant Website). If the Advisor does not agree with any such modification, Advisor may terminate this Agreement, without penalty, by written notice to Voyant within such 30 day period. Continued use of the Service after any such 30 day period shall constitute Advisor's consent to such changes and agreement to be bound, provided however that if Voyant imposes a fee for continued use of the Service (which may only apply after this Agreement is renewed for a further term), Advisor will be required to enter into a Click-to-Accept modification hereto and supply payment information in order to be bound by such modification and continue access to the Service for any further term.
25. Assignment; Change in Control
Neither party may assign this Agreement except with the prior written approval of the other party provided that Voyant may assign or novate this Agreement to any of its related bodies corporate (as defined in the Corporations Act 2001 (Cth)), or in connection with a merger, consolidation, reorganisation or sale of its assets without the consent of the Advisor.
This Agreement shall be governed by the laws of New South Wales, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the courts of New South Wales and any courts competent to hear appeals from those courts.
Business Day means any day that is not a Saturday, Sunday, gazetted public holiday or bank holiday in New South Wales and concludes at 5.00pm on that day.
No text or information set forth on any other purchase order, preprinted form or document shall add to or vary the terms and conditions of this Agreement.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
No joint venture, partnership, employment, or agency relationship exists between Advisor and Voyant as a result of this agreement or use of the Service.
The failure of Voyant to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Voyant in writing.
This Agreement comprises the entire agreement between Advisor and Voyant and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
Questions or Additional Information:
If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to email@example.com.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date. By clicking the "I ACCEPT" below, Advisor agrees to the terms of this Agreement.