Terms of Service - 2020

INTRODUCTION

“Board Outlook” is a digital platform for board review and evaluation that provides analytics and insights into board capabilities and performance, director strengths and weaknesses and overall team dynamics to better improve board performance. Use of the “Board Outlook” platform is subject to these Terms of Service.

DEFINITIONS

The following terms are used regularly throughout these Terms of Service and have a particular meaning:

(a) ABN means Australian Business Number.

(b) Account means a registered account with the Software.

(c) Agreement means the agreement formed between the Users and Board Outlook under, and on the terms of, these Terms of Service.

(d) Board means the Board Members collectively.

(e) Board Member means an individual that is appointed as a director of an organisation that is linked to the Customer’s Account.

(f) Board Outlook means BoardOutlook Pty Ltd ABN 68 631 973 049.

(g) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Victoria, Australia.

(h) Commercial Terms means any additional terms agreed between Board Outlook and the Customer with respect to the Customer’s licence for the use of the Software, and includes any written proposal or quotation accepted by the Customer.

(i) Confidential Information means any written or verbal information that: i is deemed as confidential under this Agreement; ii a party informs the other party that it considers it confidential and/or proprietary; iii a party would reasonably consider to be confidential in the circumstances; and iv is personal information within the meaning of the Privacy Act and GDPR. but does not include information that a party can establish: v was in the public domain at the time it was given to that party; vi became part of the public domain, without that party’s involvement in any way, after being given to the party; vii was in party’s possession when it was given to the party, without having been acquired (directly or indirectly) from the disclosing party; or viii was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.

(j) Customer means the organisation to whom the Software is licensed to under this Agreement and any Commercial Terms.

(k) Fee means any fee charged by Board Outlook for access to and use of the Software.

(l) GDPR means the EU General Data Protection Regulation 2016/679.

(m) GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(n) Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property;

(o) Intellectual Property Rights means, for the duration of the rights in any part of the world, any Moral Rights, industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.

(p) Mobile Application Marketplace means an online marketplace for access to the Software and other applications for mobile devices, such as the App Store and Google Play.

(q) Moral Rights means: i Moral rights pursuant to the Copyright Act 1968 (Cth); ii Or any rights analogous to the rights set out in Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as amended from time to time).

(r) Privacy Policy means Board Outlook’s privacy policy as updated from time-to-time, which can be found at https://boardoutlook.com/legals/privacy-policy/.

(s) Privacy Act means the Privacy Act 1989 (Cth).

(t) Report means information or data generated via the Software based on Surveys.

(u) Site means Board Outlook’s website found at https://www.boardoutlook.com/ or such other URL used by Board Outlook from time-to-time.

(v) Software means the “Board Outlook” digital platform provided by Board Outlook and accessible at the Site and/or Mobile Application Marketplace.

(w) Software Data means all information provided within the Software by Board Outlook, including Reports.

(x) Survey means an online questionnaire to be completed via the Software for the generation of Reports.

(y) Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(z) User means any registered user of the Software authorised to access an Account by the relevant Customer, including Board Members.

(aa) User Data means all information, data, documents and other such materials entered into the Software by a User but does not include derivative data (including Reports and benchmarks).

1 AGREEMENT

1.1 The licence granted under these Terms of Service shall be ongoing until terminated in accordance with the terms of these Terms of Service and/or Commercial Terms.

1.2 The User agrees: (a) To use the Software in accordance with the terms of these Terms of Service and/or the Commercial Terms; and (b) If creating a Customer Account, that it is authorised to establish, maintain and, where applicable, pay for the Account.

1.3 The Customer agrees to pay the Fees in accordance with the pricing agreed in the Commercial Terms as and when they fall due; and

1.4 Where there is a conflict between these terms, and any Commercial Terms, the Commercial Terms shall prevail to the extent of the inconsistency.

2 USING THE SOFTWARE

2.1 General

(a) To access and use the Software: i The Customer’s Account must be set up and registered; and ii Individuals must register with the Software as a User.

(b) Board Outlook has no liability to the Customer for any User that: i Imports or exports any data to or from the Software; ii Shares any Reports or any information contained therein; and/or iii Accesses any User Data via the Software.

(c) Board Outlook may permit or deny the User an Account with the Software in its absolute discretion (although the User may generally obtain an account by registering with the Software and accepting these Terms of Service).

(d) For clarity, a User may use the Software in connection with multiple Customer Accounts.

2.2 Features

Subject to the Commercial Terms and any limitations on the Customer’s Account, Board Outlook shall provide the User with access to and use of the features as made available within the Software from time-to-time.

2.3 Surveys

(a) Users will be prompted to individually complete Surveys via the Software.

(b) The Customer will be responsible for determining when and how often Surveys are sent to Users for completion.

(c) The User must ensure that the Survey is completed accurately and truthfully, and by the User personally and not on their behalf or upon the instruction of any third party.

(d) The content of the Survey, in particular the questions asked of the User, remain the Intellectual Property of Board Outlook and the User must not copy, reproduce, vary, distribute or otherwise exploit the Survey without Board Outlook’s express prior written consent, or permit any third party to do so.

(e) Board Outlook may add, vary and/or remove elements of the Survey at its complete discretion.

(f) The User acknowledges and agrees that completed Surveys may be used by Board Outlook for research, developmental, statistical, analytical and/or archival purposes, subject to and in accordance with the Privacy Policy.

2.4 Reports

(a) Subject to (b) below, Reports will be provided to the Customer within the Software and the Customer will be responsible for determining the manner in which Reports are shared with Users.

(b) For certain reports with respect to the capability and behaviour of individual Board Members, Reports will only be made available to the Board Member the subject of the Report, and an anonymous aggregated capabilities Report made available to the Board.

(c) The User acknowledges and agrees that Reports remain the Intellectual Property of Board Outlook and Board Outlook may use the information within Reports for research, developmental, statistical, analytical and/or archival purposes, subject to keeping all information anonymous and not disclosing the identity of any Customer or User.

(d) The Customer must not rely on Reports prima facie without regard to other considerations and due diligence. Board Outlook will not be liable in any circumstances from any loss or injury suffered by any Customer or User as a result of decisions made on the basis of Reports.

(e) Board Outlook makes no representation that the Customer or any User will achieve particular results by relying on Reports.

3 SOFTWARE DATA

3.1 Board Outlook grants the User a limited, revocable, worldwide licence to access and use the Software Data on the terms of this Agreement.

3.2 The User agrees that, as consideration for its access to the Software, it shall not export any Software Data to be recompiled or assembled outside of the Software.

3.3 The use of Software Data may be further increased or restricted under any Commercial Terms between the Customer and Board Outlook, which shall apply to each User.

4 USER DATA

4.1 Board Outlook agrees to treat all User Data as Confidential Information under these Terms of Service, however the Customer agrees that Board Outlook is not responsible for the maintaining the confidentiality of any User Data by Users.

4.2 Board Outlook accepts no liability for the content of User Data.

4.3 Each User is responsible for the accuracy, quality and legality of any content uploaded by the User, and the User’s acquisition of it, and the Users that create, access and/or use User Data.

4.4 The Customer grants Board Outlook an immediate, worldwide, royalty-free licence to use and incorporate the User Data within the Software, for the purposes of providing the Software to the Customer, for the duration of this Agreement.

4.5 Board Outlook shall not access, use, modify or otherwise deal with User Data except where required by compulsion of law or upon the User’s authority (such as to provide support for the Software).

4.6 Board Outlook may delete User Data from its systems on termination of these Terms of Service.

4.7 For clarity, User Data does not include any Reports and benchmarks, which Board Outlook may continue to access and use at all times despite termination of this Agreement.

5 FEES AND SUSPENSION

5.1 The Customer shall be liable to pay the Fees to Board Outlook as set out in the Commercial Terms with Board Outlook.

5.2 Board Outlook may suspend the Customer’s Account should any Fees be outstanding to Board Outlook at any time. This may, in time, result in termination of access to the Software for all of a Customer’s Users.

5.3 The Customer agrees that Board Outlook shall not be liable in any way for any valid termination or suspension of the Customer’s access to the Software.

5.4 Board Outlook reserves the right to introduce or change any Fees from time-to-time by giving the Customer written notice. Any new or changed Fees will apply at the next transaction after the Customer has been given such notice.

5.5 If the Customer does not accept the introduction or change to any Fees, then it can simply terminate its Account.

6 GENERAL CONDITIONS

6.1 Licence

(a) By accepting the terms and conditions of these Terms of Service, the User is granted a limited, non-exclusive, non-transferrable and revocable licence to access and use the Software for the duration of these Terms of Service, in accordance with the terms and conditions of these Terms of Service and any Commercial Terms.

(b) Board Outlook may issue the licence to the User on further terms or limitations (including the number of users or volume of use or reports) as it sees fit.

(c) Board Outlook may revoke or suspend the User’s licence(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in these Terms of Service by the User.

6.2 Modification of Terms

(a) The terms of these Terms of Service may be updated by Board Outlook from time-to-time.

(b) Where Board Outlook modifies the terms, it will provide the User with written notice, and the User will be required to accept the modified terms in order to continue using the Software.

6.3 Software-as-a-Service

(a) The User agrees and accepts that the Software is: i Hosted by Board Outlook and shall only be installed, accessed and maintained by Board Outlook, accessed using the internet or other connection to Board Outlook servers and is not available ‘locally’ from the User’s systems; and ii Managed and supported exclusively by Board Outlook from Board Outlook servers and that no ‘back-end’ access to the Software is available to the User unless expressly agreed in writing.

(b) As a hosted and managed service, Board Outlook reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter the Software.

(c) Board Outlook shall not exercise its rights under clause (b) in a manner that would fundamentally decrease the utility of the Software to the Customer, other than in accordance with the terms of these Terms of Service.

6.4 Support

(a) Board Outlook shall provide reasonable support services in the manner agreed in the Commercial Terms and/or notified in writing to the Customer from time-to-time.

(b) Board Outlook reserves the right to require the payment of reasonable fees for non-standard support requests prior to the provision of such support.

6.5 Use & Availability

(a) The User agrees that it shall only use the Software for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by Board Outlook in its discretion.

(b) The User is solely responsible for the security of its username and password for access to the Software. The User shall notify Board Outlook as soon as it becomes aware of any unauthorised access of its Account.

(c) The User agrees that Board Outlook shall provide access to the Software to the best of its abilities, however: i Access to the Software may be prevented by issues outside of its control; and ii It accepts no responsibility for ongoing access to the Software.

6.6 Privacy

(a) Board Outlook maintains the Privacy Policy in compliance with the provisions of the Privacy Act and the GDPR with respect to personal information that it collects about the User and other individuals.

(b) The Privacy Policy does not apply to how the Customer handles personal information. If necessary under the Privacy Act and/or the GDPR, it is the Customer’s responsibility to meet the obligations of the Privacy Act and/or GDPR by implementing a privacy policy in accordance with law.

(c) The Software may use cookies (a small electronic file) to improve a User’s experience while browsing, while also sending browsing information back to Board Outlook. The User may manage how it handles cookies in its own browser settings.

6.7 Data

(a) Security. Board Outlook takes the security of the Software and the privacy of its Users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of Board Outlook’s systems or the information on them.

(b) Transmission. Board Outlook shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards and the Privacy Policy. It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.

(c) Storage. Data that is stored by Board Outlook shall be stored according to accepted industry standards, and the Privacy Policy.

(d) Backup. Board Outlook shall perform backups of its entire systems in such manner, at such times and intervals as is reasonable for its business purposes. Board Outlook does not warrant that it is able to backup or recover specific User Data from any period of time unless so stated in writing by Board Outlook.

6.8 Intellectual Property

(a) Trademarks. Board Outlook has moral, registered and unregistered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of Board Outlook.

(b) Proprietary Information. Board Outlook may use software and other proprietary systems and Intellectual Property for which Board Outlook has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of the Software.

(c) The Software. The User agrees and accepts that the Software is the Intellectual Property of Board Outlook and the User further warrants that by using the Software the User will not: i Copy the Software, or Software Data, or the services that it provides for the User’s own commercial purposes; and ii Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in the Software or any documentation associated with it.

(d) Content. All content (excluding User Data) submitted to Board Outlook, whether via the Software or directly by other means, becomes and remains the Intellectual Property of Board Outlook, including (without limitation) any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to the Software.

6.9 Third Party Dependencies

The User agrees and acknowledges that the Software has third party dependencies which may affect its availability, including (without limitation) internet service providers and hosting services, and that Board Outlook has no means of controlling the availability of such dependencies and shall not be liable for any interruptions to such.

6.10 Confidentiality

(a) Board Outlook agrees to keep all other User Content in the strictest confidence, and to the extent User Content is accessed and/or received by Board Outlook it shall be deemed as Confidential Information for the purposes of these Terms of Service.

(b) Each party acknowledges and agrees that: i the Confidential Information is secret, confidential and valuable to the disclosing party (Discloser); ii it owes an obligation of confidence to the Discloser concerning the Confidential Information; iii it must not disclose the Confidential Information to a third party except as permitted in these Terms of Service; iv all Intellectual Property rights remain vested in the Discloser but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and v any breach or threatened breach by the receiving party of an obligation under these Terms of Service may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.

(c) A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of: i any actual, suspected, likely or threatened breach by it of any obligations it has in relation to the Confidential Information. ii any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or iii any actual, suspected, likely or threatened theft, loss, damage, or unauthorized access, use or disclosure of or to any Confidential Information.

(d) The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is: i any actual, suspected, likely or threatened breach of a term of these Terms of Service; or ii any theft, loss, damage or unauthorized access, use or disclosure of or to any Confidential Information that is or was in its possession or control.

6.11 Liability & Indemnity

(a) The User agrees that it uses the Software at its own risk.

(b) The User acknowledges that Board Outlook is not responsible for the conduct or activities of any User and that Board Outlook is not liable for such under any circumstances.

(c) The Customer agrees to indemnify Board Outlook for any loss, damage, cost or expense that Board Outlook may suffer or incur as a result of or in connection with their User’s use of the Software to the extent such use is in connection with Customer’s Account (and not a User’s use of the Software generally which may be across multiple Accounts), including any breach by the User of these Terms, whether or not such use was authorised by the Customer.

(d) In no circumstances will Board Outlook be liable for any direct, incidental, consequential or indirect damages, personal injury, death, damage to property, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use the Software, and in particular any decisions made in reliance on Reports, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not Board Outlook knew or should have known of the possibility of such damage, loss, personal injury or death, or business interruption of any type, whether in tort, contract or otherwise.

(e) Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, Board Outlook and Board Outlook’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, Board Outlook’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at Board Outlook’s option to: i The re-supply of services or payment of the cost of re-supply of services; or ii The replacement or repair of goods or payment of the cost of replacement or repair.

6.12 Termination

(a) Either party may terminate these Terms of Service by giving the other party no less than 1 months’ written notice, and access to the Software shall terminate at the end of the Customer’s billing cycle active at the expiry of that notice period, unless the parties agree otherwise in the Commercial Terms.

(b) Termination of these Terms of Service is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of these Terms of Service up to the date of expiry or termination.

6.13 Dispute Resolution

(a) If any dispute arises between the parties in connection with these Terms of Service (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which: i Includes or is accompanied by full and detailed particulars of the Dispute; and ii Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.

(b) Within 10 Business Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) parties must meet (virtually or otherwise) and seek to resolve the Dispute.

(c) Subject to clause (d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.

(d) Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.

(e) Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.

6.14 Electronic Communication, Amendment & Assignment

(a) The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.

(b) The User can direct notices, enquiries, complaints and so forth to Board Outlook as set out in these Terms of Service. Board Outlook will notify the User of a change of details from time-to-time.

(c) Board Outlook will send the User notices and other correspondence to the details that the User submits to Board Outlook, or that the User notifies Board Outlook of from time-to-time. It is the User’s responsibility to update its contact details as they change.

(d) A consent, notice or communication under these Terms of Service is effective if it is sent as an electronic communication unless required to be physically delivered under law.

(e) Notices must be sent to the parties’ most recent known contact details.

(f) The User may not assign or otherwise create an interest in these Terms of Service without prior written consent of Board Outlook (which shall not be unreasonably withheld).

(g) Board Outlook may assign or otherwise create an interest in its rights under these Terms of Service by giving written notice to the User.

6.15 General

(a) Special Conditions. The parties may agree to any Special Conditions to these Terms of Service in writing.

(b) Prevalence. To the extent these Terms of Service is in conflict with, or inconsistent with, the terms of any other agreement between Board Outlook and the User, any Commercial Terms, or any special conditions made under these Terms of Service, as relevant, the terms of those other agreements or special conditions shall prevail.

(c) Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in these Terms of Service.

(d) Relationship. The relationship of the parties to these Terms of Service does not form a joint venture or partnership.

(e) Waiver. No clause of these Terms of Service will be deemed waived and no breach excused unless such waiver or consent is provided in writing.

(f) Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to these Terms of Service and the transaction facilitated by it.

(g) Governing Law. These Terms of Service are governed by the laws of Victoria, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.

(h) Severability. Any clause of these Terms of Service, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of these Terms of Service.

(i) Interpretation. The following rules apply unless the context requires otherwise: i Headings are only for convenience and do not affect interpretation. ii The singular includes the plural and the opposite also applies. iii If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning. iv A reference to a clause refers to clauses in these Terms of Service. v A reference to legislation is to that legislation as amended, re enacted or replaced, and includes any subordinate legislation issued under it. vi Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included. vii A reference to a party to these Terms of Service or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives). viii A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them. ix A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.

END TERMS OF SERVICE