Your right to download and/or access and use QMGi Pty Ltd’s website in order to access content (“Data”) is subject to the terms and conditions of the agreement below (“Agreement”), which provides a legal document between you (the “Subscriber”) and QMGi Pty Ltd (“QMGi”). By downloading and/or accessing and using the Website you assert that you agree to these terms. If you do not agree to these terms, do not download and/or access and use the Website. Your agreement to abide by these terms in exchange for access is agreed by the parties to amount to valid contractual consideration.
“QMGi”in this Agreement shall refer to QMG Pty Ltd and or any of its subsidiaries, including but not limited to QMG Insight LLP in the United Kingdom.
“Territory” in this Agreement means Australia, USA, the UK and any other jurisdiction that a Subscriber is accessing the website from.
1.1. Grant of Licence.
QMGi grants Subscriber a non-exclusive, non-transferable, limited licence, as updated or modified from time to time, to download and/or access the QMGi website (“Website”) in order to access and use the content therein (“Data”).
1.2. Data Licence Restrictions.
(a) Subscriber may not distribute, transfer, sell, resell, rent, lease, lend, publish, transmit, retransmit, disseminate, broadcast, circulate, or sub-license or otherwise assign any rights to the Data in whole or in part, without written authorisation from QMGi.
(b) Subscriber may not distribute, transfer, sell, resell, rent, lease, lend, publish, transmit, retransmit, disseminate, broadcast, circulate, or sub-license or otherwise assign any rights to the Data in whole or in part outside of the Territory without written authorisation from QMGi, even to associated or affiliated companies.
(c) Subscriber may not reverse engineer, decompile, disassemble or otherwise attempt to discern the source code or any other components of the Website.
(d) Subscriber may not circumvent or bypass, modify, defeat, or tamper with any of the functions or protections of the Website and/or Data.
(e) Subscriber is solely responsible for maintaining the security of Website passwords.
(f) Subscriber may not reproduce all or any portion of the Website or the Data (except as expressly permitted in this Agreement) or any accompanying user documentation (“Documentation”), or modify, translate or otherwise create derivative works of the Website or the Data.
(g) Subscriber agrees to notify its employees and agents who may have access to the Website of the restrictions contained in this Agreement and to ensure their compliance with these restrictions. Additional terms may apply to some of the third party software available as part of the Website, and will govern usage of that third party software in the event of a conflict with this Agreement.
2.1 QMGi and Subscriber shall each comply with the provisions of the Privacy Act 1988 (Cth) or any such act or legislation of a similar nature that may apply in a different jurisdiction where a user is accessing this website (“the Privacy Act”) applicable to such party’s performance of its obligations under this Agreement.
2.2 In particular, but without limitation, Subscriber warrants that Subscriber has obtained all necessary consents or authorisation required to be able to disclose personal information about an individual (“Personal Information”) to QMGi to enable QMGi to fulfil its obligations under this Agreement and that use and disclosure of such Personal Information by QMGi in accordance with the terms of this Agreement will not result in a breach of the Privacy Act by the Subscriber or QMGi.
2.3 Subscriber expressly acknowledges and consents to:
(a) QMGi disclosing and transferring such Personal Information to affiliates and service providers who may, in certain instances, be located outside of Australia (including in the United States) to the extent required to provide access to, maintain and service the Website as part of QMGi’s information technology arrangements; and
(b) such third party service providers storing and processing of such Personal Information on servers located outside of Australia (including, but not limited to servers located in the United States).
2.4 Subscriber is responsible for ensuring that if a third party is required to disclose to QMGi personal information for the purposes of this Agreement on behalf of the Subscriber, or at the Subscriber’s request, such disclosure by the third party complies with the Privacy Act.
2.5 If QMGi is required to retain any personal information by Law, the Subscriber has taken all steps to ensure that QMGi is permitted to do so.
2.6 QMGi shall not disclose any personal information to third parties and shall only use such personal information for the purpose of providing services and or data to the Subscriber.
3. Intellectual Property.
Subscriber acknowledges and agrees that all right, title and interest in and to the Website and/or Data including supporting documentation, and any other related materials provided to the Subscriber either through the Website or by other means of distribution shall remain vested solely in QMGi and other intellectual property owners, if any, and Subscriber shall not hold itself out as having any ownership or other rights with respect thereto, except as specifically granted hereunder. Intellectual property as defined herein includes, but is not limited to patent, copyright, trademark, know how, trade secret and trade dress.
4. Confidential Information.The parties agree and acknowledge that any documents, and contents thereof related to the terms of this Agreement or the relationship between the parties to this Agreement, which are designated as confidential and provided to the other party during the term of this Agreement (“Confidential Information”) are valuable assets to the disclosing party. The parties will each take reasonable steps to ensure that the Confidential Information is not used or disclosed except as expressly permitted by this Agreement.
5. DISCLAIMER OF WARRANTIES, CONDITIONS, REMEDIES AND LIMITATION OF LIABILITY.
5.1 EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT AND OTHER THAN AS REQUIRED BY LAW, THE WEBSITE AND/OR DATA ARE PROVIDED “AS IS”, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OMISSIONS, COMPLETENESS, CURRENTNESS AND DELAYS. NEITHER QMGI NOR ITS AFFILIATES MAKE ANY WARRANTY, AND THERE IS NO CONDITION, THAT ACCESS TO THE WEBSITE AND/OR DATA WILL BE UNINTERRUPTED, SECURE, COMPLETE OR ERROR FREE. SUBSCRIBER ACKNOWLEDGES THAT PROVISION OF THE WEBSITE ENTAILS THE LIKELIHOOD OF SOME HUMAN AND MACHINE ERRORS, DELAYS, INTERRUPTIONS AND LOSSES, INCLUDING THE INADVERTENT LOSS OF DATA OR DAMAGE TO MEDIA. The performance of the Website varies with various manufacturers’ equipment with which it is used. Certain hardware or software used by Subscriber may not be capable of supporting the Website. QMGi does not warrant the level of performance of the Website or that earlier versions superseded by new versions (whether or not distributed to Subscriber) will continue to be capable of access to and use with QMGi Website or the Data.
5.2 Limitation of Liability.
In no event, other than as outlined in paragraph 6, shall QMGi’, or its officers’, employees’, directors’, parent’s, affiliates’ or subsidiaries’, liability to Subscriber arising out of or related to this Agreement, or the licensing, delivery, use or performance of the Website, Data, or services provided under this Agreement or any breach of this Agreement, whether based on an action or claim in contract or tort, including negligence, strict liability or warranty, except liability for bodily injury, exceed the subscription charges paid by Subscriber, for access to the Website and/or Data involved in the dispute, during the twelve (12) month period immediately preceding the event giving rise to such claim. In no event will QMGi and/or its affiliates be liable to Subscriber for any lost profits or other damages, including indirect, incidental, exemplary, punitive, special or consequential damages arising out of this Agreement or the use of the Website and/or Data licensed hereunder, even if QMGi and/or its affiliates have been advised of the possibility of such damages.
5.2.1 Failures Not Caused by QMGi.QMGi will not be responsible to the extent that the Website fails to perform as warranted due to one or more of the following: (1) the malfunction of software not provided by QMGi, (2) the malfunction of hardware, (3) Subscriber’s negligence or fault, (4) Subscriber’s failure to follow the instructions set forth in the Documentation, (5) material changes in the operating environment not authorised by QMGi, (6) modifications to or changes in the Website not made or suggested by QMGi (7) Subscriber’s failure to implement and maintain a proper and adequate backup and recovery system for the QMGi database or user files or (8) inadequate wireless connectivity. If QMGi discovers that a failure is caused by one of the above, QMGi reserves the right to charge Subscriber for its work in investigating such failure. At Subscriber’s request and at a fee to be agreed upon, QMGi will thereafter assist Subscriber in resolving such failure. It is Subscriber’s responsibility to develop and implement a proper and adequate backup and recovery system.
5.3 Remedy.The remedies in Paragraphs 6 and 7 are Subscriber’s exclusive remedies and are in lieu of all other legal or equitable remedies and all liabilities or obligations on the part of QMGi for damages (except for bodily injury) arising out of, relating to, or in connection with this Agreement, including, but not limited to, the licensing, delivery, installation, use or performance of the Website and/or Data or the integration of the Website with other software or hardware.
6.1 Infringement Claims.
At its sole expense shall defend, indemnify and hold Subscriber harmless from copyright, trademark, trade secret and patent infringement claims in Australia based upon the Website and/or Data in the form delivered by QMGi, including paying any judgment, attorney fees, costs and expenses associated with such claim.
Without limiting its obligations under Paragraph 6.1, in the event a claim of infringement or misappropriation is made against QMGi or Subscriber with respect to the Website, QMGi, for the purpose of settling such claim, may, at its option, in respect of such allegedly infringing Website use commercially reasonable efforts to substitute fully equivalent non-infringing data or information and/or modify the Website so that it no longer infringes but remains functionally equivalent.
QMGi’s obligation to indemnify Subscriber pursuant to this Paragraph 6 is contingent upon QMGi being given prompt notice and control of, and detailed information with regard to, any such claim, suit or proceeding. Subscriber shall have the right to participate at its own cost in the defence of any such claim or action through legal counsel of its choosing. Subscriber shall not settle any such claim or action without QMGi’s prior written consent.
6.4 This Paragraph 6 contains QMGi’s entire indemnification obligation and the exclusive remedies of Subscriber with regard to any claimed infringement arising out of or based upon the Website and/or Data.
7. Term and Termination.
7.1 This Agreement will continue for a 12 month period from the date you enter into this Agreement (“Commencement Date”).
7.2. Subscriber may terminate this agreement by providing 3 months notice in writing prior to the anniversary of Commencement Date, or any subsequent anniversary of the Commencement Date. In the absence of such written notice, the Agreement shall continue for a further 12 month period.
7.3 Sunscriber’s rights under this Agreement begin upon its download and/or access of the Website and continue until the Agreement is superseded, the Website (or supply of Data) is discontinued or otherwise no longer available, or the Agreement is terminated for breach. QMGi may terminate this Agreement immediately upon giving notice of termination to Subscriber if Subscriber commits a material breach of any obligation to QMGi under any other agreement between the parties. Subscriber may terminate this Agreement immediately upon uninstalling and deleting the Data from Subscriber’s devices and discontinuing its use.
7.4 Either party may terminate this Agreement immediately upon giving written notice of termination to the other party if the other party commits a material breach of this Agreement and such breach is not cured within thirty (30) days of notice of such breach to the breaching party by the non-breaching party. Notice may be provided electronically.
7.5Upon the termination of this Agreement, Subscriber’s licence and right to receive Data or access to the Website shall end immediately. Subscriber must also promptly delete any copies of Data held by it.
8. Payment and Payment Terms
8.1 Subscriber agrees to pay in full the amount specified on any invoice rendered by QMGi for access to the Website and/or Data within 30 days of the date of the invoice (unless we agree otherwise in writing). The applicable amounts will be stated in an order form delivered to Subscriber by QMGi which must be signed by the Subscriber and returned to QMGi prior to access to the Website and/or Data being provided. Subscriber is deemed to have accepted the amount in the order form by either signing it, or by logging on to the Website.
8.2 All figures are exclusive of GST, unless otherwise stated, and any GST amounts must be paid in addition.
8.3 Where payment is late, QMGi may suspend access to the Website and/or Data, and may charge interest daily on the outstanding amounts at the maximum amount permitted by law from time to time.
8.4 As an alternative to payment for access to the Website and/or Data as stated in clause 8.1 above, QMGi may permit access to the Website and/or Data in exchange for the Subscriber procuring that QMGi is the recipient of payments made under a commission sharing arrangement (or similar) with the Subscriber’s executing broker(s).
9. General Provisions.
9.1 Effect of Agreement.This Agreement embodies the entire understanding between the parties with respect to the Website, and Data not covered by separate agreements, and supersedes any and all prior understandings and agreements, oral or written, relating to the subject matter.
9.2 Force Majeure.QMGi shall not be liable for any delay or failure in performing hereunder if caused by factors beyond its reasonable control, such as acts of God, acts of any government, war or other hostility, civil disorder, the elements, fire, explosion, power failure, equipment failure, industrial or labour dispute, inability to obtain necessary supplies and the like.
9.3 Notices.Except as otherwise provided herein, all notices must be in writing to QMGi Pty Limited at Level 25, 360 Collins Street, Melbourne, 3000, Australia, Attention: Customer Services and to Subscriber at the email address provided by Subscriber. Subscriber agrees to receive electronic communications from QMGi related to Subscriber’s use of Website and/or Data. Subscriber agrees that this electronic communication will satisfy any legal requirement that notices be provided in writing.
9.4 Governing Law and Assignment.
This Agreement will be governed by and construed under the law of Victoria, Australia, without regard to conflicts of law provisions. The parties agree that the courts presiding in Victoria will have exclusive jurisdiction over any claim arising out of this Agreement and each party consents to the exclusive jurisdiction of such courts. Neither this Agreement nor any part or portion may be assigned, sub-licensed or otherwise transferred by Subscriber without QMGi’s prior written consent, such consent not to be unreasonably withheld or delayed. Any attempt to assign or transfer in violation of this Paragraph shall be null and void. Should any provision of this Agreement be held to be void, invalid, unenforceable or illegal by a court, the validity and enforceability of the other provisions will not be affected thereby. Failure of any party to enforce any provision of this Agreement will not constitute or be construed as a waiver of such provision or of the right to enforce such provision. The headings and captions contained in this Agreement are inserted for convenience only and do not constitute a part of this Agreement.
9.7 Audit.QMGi reserves the right to audit Subscriber’s use of the Website and or Data with respect to the obligations of this Agreement.
9.8 Survival.Paragraphs 3 through 10 shall survive any termination of this Agreement.
9.9 Changes to Agreement
QMGi may make changes to the terms and conditions in this Agreement from time to time to accommodate changes in law, business practice or the introduction of new products or services. If QMGi does make changes, it will notify Subscriber in writing at least 30 days before those changes take effect. Subscriber’s acceptance of further products and services and/or payment of further instalments due after the date it was notified of a change is deemed acceptance of those changes. If Subscriber does not want to accept the changes, it is entitled to terminate any ongoing subscription affected by written notice to QMGi before the changes take effect.
10. Maintenance and Support Services.
10.1 Maintenance Services.
Website may be periodically updated through enhancements or updates at QMGi’s sole option. Any requirement to suspend access to the Website shall be attempted outside of business hours and QMGi will use reasonable endeavours to provide reasonable notice of any such suspension.
10.2 Support Services.
QMGi will use reasonable efforts to provide support services for purposes of handling Subscriber’s questions relating to the operation of the Website (“Support Services”). Requests for Support Services should be sent to support@QMGi.com.au and reasonable endeavours shall be made to respond to such requests within 24 hours.
11. Access Security
11.1 QMGi will provide access to the service to the number of users specified on an order form who will be issued with a user name and password to access the Website (Authorised Users).
11.2 Subscriber must use reasonable endeavours to:(a) ensure that authorised users comply with the terms of this Agreement;(b) ensure that only the number of users specified on the order form have access to the Website;(c) ensure that authorised users do not disclose their logon id or network password to a third party;
11.3 Subscriber must notify us immediately if you suspect that the security of a logon id or of your own network has been compromised or if the service is being used in an unauthorised manner.
12. Ideas and Concepts.Any and all title, ownership rights, and intellectual property rights concerning any ideas, concepts, suggestions, materials and the like that Subscriber provides to QMGi regarding the Website shall become the exclusive property of QMGi and may be used for its business purposes in its sole discretion without any payment, accounting, remuneration or attribution to Subscriber.
13. Assignment.Subscriber may not assign Subscriber’s rights or obligations under this Agreement. QMGi may assign its rights and obligations under this Agreement at any time.
QMG Insight LLP is an appointed representative of WG Partners LLP which is authorized and regulated by the Financial Conduact Authority