Subscription Terms & Conditions
Please read these Subscription Terms and Conditions (T&Cs) carefully as they govern your access to, and use of, any services provided by Finka Solutions Pty Ltd (ACN 648 641 427) (“finka”, “we”, “us” and “our”) to you, including those subscribed to via our website or in a subscription order form (the “Services”). By accepting a Subscription or by using the Services, you agree to be bound by these T&Cs.
1. Services generally
(a) We offer our Services on a term-based subscription basis (a “Subscription”).
(b) We will provide you with access to the Services, subject to these T&Cs.
(c) We may provide you with materials as part of the Services (“Materials”). You must not use the Services or any Materials in any way whatsoever except as permitted under these T&Cs.
(d) If the Services include the ability to download:
(i) templates and associated Materials that have been prepared for us by third party legal practitioners (“Templates”); or
(ii) other documents and associated Materials such as, for example, fact sheets (“Documents”),
(together, “Templates”) you must not use the Templates in any way whatsoever except as permitted under these T&Cs.
(e) A username and password is required to access some of the Services (“Login Details”). Where we provide you with Login Details, those Login Details may only be used by you. You must not reveal those Login Details to any other person. You are responsible for maintaining the security of your Login Details and we will not be liable for any loss or damage from a failure to do so.
(f) You must comply with all applicable laws in relation to your use of the Services and the Materials.
(g) You must not reverse engineer or decompile any part of the Services, including the Templates, unless permitted by law, or remove, alter or obscure any disclaimers or identification, copyright, trademark or other proprietary notices, labels or marks on any Materials.
(h) We reserve the right at any time to offer new services and/or features, introduce improvements to, modify or discontinue, temporarily or permanently, any Services or any part of them (a “Change”). Where you have an existing Subscription and we believe that a Change may be materially detrimental to you, we will provide you with reasonable written notice of up to 30 days of that Change. Where a Change is materially detrimental to you, you may no later than 30 days after the Change comes into effect terminate your Subscription by giving us notice in writing, in which case your Subscription will terminate 30 days after your termination notice is received and we will refund you any Fees (as defined in clause 5 of these T&Cs) paid in advance for the period beyond the date of termination. Where you do not have an existing Subscription, we may make a Change at any time without notice.
2. Term and termination
(a) Where you take out a Subscription, your Subscription will be for a minimum period of twelve (12) months or such other period agreed by the parties in writing commencing on:
(i) where you Subscribe via our website, the date that you complete the subscription process on our website; or
(ii) where you Subscribe via a subscription order form, the commencement date specified in that subscription order form, or if no such date is specified then the date that both parties execute the subscription order form,
(“Initial Term”). Upon the expiration of the Initial Term, your Subscription will automatically extend for successive terms of twelve (12) months, provided that either party may terminate the Subscription at any time after expiry of the Initial Term by giving not less than 30 days’ notice in writing to the other.
(b) If you materially breach these T&Cs, breach clause 4 of these T&Cs, or fail to pay any Fees (as defined in clause 3 of these T&Cs) by the due date:
(i) we may immediately suspend your Subscription or On-Demand Access by giving notice you until you remedy that breach; and/or
(ii) and where that breach is capable of remedy, if you fail to remedy that breach within 14 days of receipt of a notice from us specifying the breach and requiring it to be remedied, we may immediately terminate the Subscription or On-Demand Access by notifying you accordingly.
(c) Termination of your Subscription or On-Demand Access will result in the deactivation or deletion of your account, and the forfeiture and relinquishment of all of your rights to the Services and (subject to your continuing rights under clauses 4(c) and 4(d) of these T&Cs) any Materials.
(d) If your Subscription or On-Demand Access is terminated at any time, you must pay all Fees up to and including the date of termination.
(e) You may download:
(i) Templates which you have completed; and
(ii) Any other materials that you have uploaded to our platform and which remain stored on our platform,
(“Your Materials”) during the Subscription period and for 30 business days after termination of the Subscription or at the time you use our On-Demand Access (as applicable).
(f) In the unlikely event that we cease operations for any reason and you have an existing Subscription, we will use reasonable endeavours to ensure that our platform remains accessible to you for you to download Your Materials for a period of twelve (12) months. No Storage and Access Fee will be payable in such circumstances.
3. Fees
(a) Subject to paragraph (b), you may only use the Services and any Materials on the payment of:
(i) the fees set out on our website, where you have Subscribed;
(ii) the fees set out in the subscription order form, where you have Subscribed via a subscription order form; and
(iii) any excess usage fees referred to in paragraph (c),
(collectively the “Fees”).
(b) All Fees are in Australian Dollars (“AUD”) and are exclusive of goods and services tax (“GST”).
(c) If we cannot charge your payment method for any reason (such as expiration or insufficient funds), and you have not cancelled your Subscription, you remain responsible for any uncollected amounts and any payment dishonour fee that may apply, and we will attempt to charge the payment method as you may update your payment method information. This may result in a change to the start of your next Subscription period and may change the date on which you are billed for each period. We reserve the right to cancel your Subscription if we are unable to successfully charge your payment method to renew your Subscription.
(d) Where you have an existing Subscription, we reserve the right to vary (including introduce) any Fees at any time after expiry of the Initial Term by giving you not less than 30 days’ notice in writing. Any such notice may be provided prior to the expiry of the Initial Term provided that the variation only takes effect after the expiry of the Initial Term. If you do not agree to the variation, you may no later than the date the variation takes effect terminate your Subscription by giving us notice in writing, in which case your Subscription will terminate 30 days after your termination notice is received, the Fees will not be varied, and you will be entitled to a refund of any Fees paid in advance for the period beyond the date of termination. Where you do not have an existing Subscription, we may vary (including introduce) any Fees at any time without notice.
4. Processing and Payment
(a) We will process your Subscription as promptly as possible. Your payment details must be verified before your Subscription can be activated.
(b) If your initial payment authorisation is revoked, your Subscription will be terminated. We reserve the right to reject any Subscription order at any time.
(c) Payment for Subscriptions will be direct debited from your nominated financial institution or payment method. All Subscriptions automatically renew until cancelled.
(d) It is your responsibility to provide valid payment details, and ensure that your payment details are up to date.
(e) If your payment method is invalid, or your payment is otherwise rejected, your Subscription may automatically be cancelled and unlimited access revoked. If your Subscription is cancelled due to such a payment issue, we makes no guarantee that the same Subscription at the same price will still be available to you.
(f) You may pay by credit card or debit card at the time of Subscription. If you pay by credit card, we may add a credit card surcharge (currently 0.5% but subject to annual review) which reflects no more than the costs of acceptance to us of processing your payment Subscription charges. You may also pay by direct debit after your Subscription has been activated. There is no surcharge for payments by debit card or direct debit.
5. Intellectual property
(a) The Materials contain proprietary information that is owned by or licensed to us, and is protected by applicable intellectual property and other laws, including but not limited to copyright.
(b) We grant you a non-transferable, non-sublicensable and non-exclusive licence to access, use and distribute any Materials that are not Templates during the Subscription period for your own internal business purposes.
(c) We grant you a non-transferable, non-sublicensable (except as described in paragraph (d)), non-exclusive licence to use and modify any Templates completed and downloaded by you for your own business purposes.
(d) We grant you a right to sublicence the licence granted to you by us under paragraph (c) to third parties provided such use by third parties is directly related to your business and/or for the purpose of working with you in connection with projects created by you.
(e) You must only use and/or sublicence completed and/or downloaded Templates for your business and for projects created by your business or directly related to your business.
6. Privacy
We may collect personal information (as that term is defined in the Privacy Act 1988 (Cth)) in our provision of the Services (“Personal Information”). We are committed to protecting Personal Information and our Privacy Policy located at finka (www.finka.me) contains information regarding our collection, use, disclosure and protection of Personal Information. Where you provide us with Personal Information, you must ensure that you have the right to disclose it to us, and for us to use and disclose that Personal Information as described in our Privacy Policy, including having made any notifications or obtained any consents that may be required to enable this to occur.
7. Statistical data
We may collect and prepare de-identified and aggregated statistical data related to the use of our products and services to administer and monitor the use of our products and services, for our internal business improvement purposes, benchmarking, market and industry research, and for use in commentary, media releases and other publications. We agree not to take any steps which will deliberately cause de-identified information to become personal information.
8. Disclaimer
(a) We are not a legal adviser. We are not the author of, and have no editorial control over, any Templates or any information contained in any Templates. The Templates have not been prepared with regard to any of your particular circumstances. You must satisfy yourself as to the content and appropriateness of any Templates for your purposes, and we make no warranty as to the form, content or appropriateness of any Templates for you or your circumstances. You s should obtain your own independent legal advice and rely on such advice when using any Templates.
(b) We make no guarantee or warranty as to the accuracy or applicability of the information contained on the finka website, the Templates or any Documents created from your use of the finka website.
(c) We offer a mechanism by which you may seek and obtain legal advice from a legal services provider in relation to the Services, including any Templates. Most advice sought via this mechanism can or will be provided by Cole Media and Entertainment Law Pty Ltd (ABN 22 162 066 220). Where advice is to be provided by another legal service provider, that legal service provider’s terms and conditions will apply and the legal service provider will be responsible for providing you with a copy of them at the time. You acknowledge that we are not responsible for the provision of, or the content or appropriateness of, any legal advice provided via this mechanism for you or your circumstances.
(d) You acknowledge and agree that the Services and Materials do not constitute or contain personal or general advice for the purpose of the Corporations Act 2001 (Cth) and that we, our employees and advisers do not offer any legal, accounting, tax or other professional advice or services in connection with the provision of the Services and Materials.
9. Limitation of liability
(a) All express or implied guarantees, warranties, representations, or other terms and conditions relating to these T&Cs or its subject matter, not contained in these T&Cs, are excluded from these T&Cs to the maximum extent permitted by law. To the maximum extent permitted by law, we do not warrant that the Services or Materials will be error-free, that defects will be corrected, or that they will be fit for you or your particular purpose or suitable for use in other jurisdictions.
(b) Nothing in these T&Cs excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by any legislation which cannot lawfully be excluded or limited. This may include the Australian Consumer Law which contains guarantees that protect the purchasers of goods and services in certain circumstances.
(c) If any guarantee, warranty, term or condition is implied or imposed in relation to these T&Cs under the Australian Consumer Law or any other applicable legislation and cannot be excluded (a “Non-Excludable Provision”), and we are able to limit your remedy for a breach of the Non-Excludable Provision, then our liability for breach of the Non-Excludable Provision is limited to one or more of the following at our option:
(i) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or
(ii) in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.
(d) Subject to our obligations under the Non-Excludable Provisions and to the maximum extent permitted by law, under no circumstance will we be liable to you on account of any claim under or in connection with these T&Cs, whether based in contract, negligence or other tort, breach of any statutory duty or otherwise, for any special, consequential, indirect, incidental or exemplary damages, or for any loss of profits, revenue, interest, goodwill or for any loss of or interruption to your business, whether or not foreseeable and even if we have been advised of the possibility of such damages. Subject to our obligations under the Non-Excludable Provisions and to the maximum extent permitted by law, where in the performance of our Services, we are liable to you for the loss of or damage to your data, whether based in contract, negligence or other tort, breach of any statutory duty or otherwise, your sole and exclusive remedy in relation to that loss or damage will be to require us to restore the affected data to the last available back up.
(e) Subject to our obligations under the Non-Excludable Provisions and to the maximum extent permitted by law, our aggregate liability of any kind whatsoever for all causes of action arising under or in connection with this Agreement or the Services in any calendar year, whether based in contract, negligence or other tort, breach of any statutory duty or otherwise, will not exceed two times the total Fees paid or payable by you during that calendar year.
(f) You must indemnify us and our employees, officers, agents and contractors from and against any claims, proceedings and losses arising out of a claim by a third party as a result of your wilful misuse of any Services or your wilful breach of these T&Cs.
10. Severability
If any part of these T&Cs is or becomes illegal, invalid or unenforceable, it will not affect the validity or enforceability of any other provisions.
11. Waiver
The failure of a party to pursue its rights with respect to a default or breach of these T&Cs does not constitute a waiver of the right to enforce its rights with respect to the same or any other breach.
12. Force majeure
Neither party is responsible for any delay in its performance or its failure to perform due to causes beyond its reasonable control.
13. Assignment
You must not assign your rights or obligations under these T&Cs without our prior written consent.
14. Entire Understanding
These T&Cs are the entire agreement and understanding between the parties and supersede any prior negotiation, arrangement, understanding or agreement with respect to the subject matter hereof. Notwithstanding the foregoing, nothing in these T&Cs limits any liability either party may have in connection with any representations or other communications (either oral or written) made in relation to the Services, where such liability cannot lawfully be excluded.
15. Variation
Any variation (including introduction) of Fees will be governed by clause 3. Where you have an existing Subscription, we reserve the right to amend these T&Cs at any time by giving you not less than 30 days’ written notice. If you do not agree to those amendments, you may no later than the date the amendment takes effect terminate your Subscription on written notice to us, in which case your Subscription will terminate 30 days after your termination notice is received, any amendments to these T&Cs will not take effect, and you will be entitled to a refund of any Fees paid in advance for the period beyond the date of termination. Where you do not have an existing Subscription, we may amend these T&Cs at any time without notice.
16. Governing law
These T&Cs will be governed by and construed in accordance with the laws in force in the State of New South Wales and the parties irrevocably submit to the jurisdiction of courts sitting in the State of New South Wales.
Date of last revision: 17 August, 2023
