Terms of Service

These Terms of Service went live on 26 October 2023 for all new Customers of BoardOutlook from this date (with phased implementation for existing Customers). Please see our Legals page for more information. You may access the prior version of these Terms here.

Effective date 26 October 2023

 

INTRODUCTION

"BoardOutlook" 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 "BoardOutlook" platform is subject to these Terms of Service and the applicable Commercial Terms.

Where the Customer acquires access to BoardOutlook through a BoardOutlook Partner, the Customer acknowledges that by accepting the Commercial Terms provided by the Partner, or by accessing BoardOutlook, the Customer is entering into a contract with the Company for the provision and use of BoardOutlook on the basis of these Terms of Service. Partners are not authorized to modify these Terms of Service or make any promises or commitments on the Company’s behalf, and the Company is not bound by any obligations to the Customer other than as set out in these Terms of Service.

For all other Customers, these Terms of Service form part of and are incorporated into the Customer Agreement between the Customer and the Company for the provision and use of BoardOutlook and related services.

For Users accessing BoardOutlook, then their access is pursuant to the contract between the Company and the organisation on behalf of which such User is authorised to access BoardOutlook. The Customer acknowledges that each User will be required to accept the BoardOutlook User Acceptance Terms as part of signing up for an Account and accessing BoardOutlook.

Depending on where the Customer is located, certain country-specific provisions at clause 7 below (Country Specific Provisions) will replace or supplement the equivalent provisions in these Terms of Service as appropriate. The Country Specific Provisions will prevail in the event of a conflict or inconsistency with any clause in the remainder of this Agreement.

DEFINITIONS

The following terms are used regularly throughout these Terms of Service and have a particular meaning: (a) Account means a registered account within BoardOutlook.

(b) Agreement means the agreement formed between the Customer and Company under these Terms of Service, and where applicable, the Customer Agreement.

(c) Agreement Date means the date specified as such in the Commercial Terms, or if no such date is specified, then the date that the Customer accepts these Terms of Service.

(d) Applicable Data Protection Laws means any applicable laws relating to the protection of personal information or personal data, including without limitation, for Customers located in Australia, the Australian Privacy Act 1998 and, for Customers located in the United Kingdom or European Union: (i) the EU General Data Protection Regulation 2016/679 (“GDPR”); (ii) the GDPR as it forms part of the law of England and Wales by virtue of the European Union (Withdrawal) Act 2018 (“UK GDPR”); and (iii) the Data Protection Act 2018 , all as may be amended or superseded from time to time.

(e) Benchmark, Aggregated and Algorithmically Created Data means: i) data that is produced through aggregation and anonymisation of User Data (from Customer’s Users, and Users of the Company’s other customers); ii) aggregated statistics created from Customer and other customers (and their respective User’s) usage of BoardOutlook that do not identify any customer or User; and iii) other benchmark data within BoardOutlook that has been provided by the Company.

(f) Board means the Board Members collectively.

(g) Board Administrators means the relevant nominated representatives of the Customer who are responsible for administering the BoardOutlook platform on behalf of the Customer (including, but not limited to responsibility for User management).

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

(i) BoardOutlook means the “BoardOutlook” digital platform provided by the Company and accessible at the Site and/or Mobile Application Marketplace.

(j) BoardOutlook Partner means an authorised partner or reseller of the Company.

(k) 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.

(l) Company means the relevant entity specified in the Customer Agreement, or if no Customer Agreement applies: for a Customer or User located in Australia, BoardOutlook Pty Ltd (Australian Business Number 68 631 973 049); or for a Customer or User located in the United Kingdom or European Union, BoardOutlook Limited (Registration Number 15084847); and for all other Customers or Users, BoardOutlook Pty Ltd (Australian Business Number 68 631 973 049).

(m) Commercial Terms means: (i) for Customers that acquire access to BoardOutlook through a BoardOutlook Partner, the terms and conditions provided by the BoardOutlook Partner; and (ii) for all other Customers, the terms agreed between the Company and the Customer under the Customer Agreement.

(n) 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 or personal data within the meaning of the Applicable Data Protection Laws, 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. BoardOutlook and the Software Data are the Confidential Information of the Company.

(o) Consultation Services means any additional services provided by the Company to the Customer pursuant to this Agreement as agreed between the parties from time-to-time, but excluding the Licence Inclusions.

(p) Consumption Tax means any value-added or consumption taxes (including VAT), goods and services taxes (including GST), and any other taxes analogous to them in any jurisdiction applicable to the Company or Customer.

(q) Customer means the organisation to whom BoardOutlook is licensed under this Agreement.

(r) Customer Agreement means the document provided by the Company to the Customer that sets out the Fees and other details of the Customer’s access to BoardOutlook.

(s) Data Processing Agreement means the BoardOutlook data processing agreement found on our Site, as modified by the Company from time to time.

(t) Fee means any fee charged by the Company for access to and use of BoardOutlook and provision by the Company of any Consultation Services, as set out in the Commercial Terms.

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

(v) Initial Licence Term means 12 months from the Licence Commencement Date, unless an alternative period is specified in the Commercial Terms.

(w) Insolvency Event means:

i. the body corporate is liquidated, whether compulsorily or voluntarily (other than for the purpose of amalgamation or reconstruction whilst solvent);

ii. the body corporate becomes unable to pay its debts as they fall due or is unable to pay its debts within the meaning of the applicable insolvency laws;

iii. the body corporate enters into any arrangement with creditors;

iv. an application or order is made for the winding up or dissolution of, or the appointment of a provisional liquidator, to the body corporate or a resolution is passed, or steps are taken to pass a resolution for the winding up or dissolution of the body corporate otherwise than for the purpose of an amalgamation or reconstruction that has the prior consent of all Shareholders;

v. the body corporate becomes subject to external administration within the meaning of applicable insolvency law, including having a receiver or administrator appointed over all or any part of its assets or where a body corporate gives notice of intention to appoint an administrator; or

vi. anything analogous (such as analogous bankruptcy processes) or having a substantially similar effect to the events specified above occurs in relation to a party, including the court appointment of a receiver.

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

(y) 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.

(z) Licence has the meaning given in clause 6.1(a) of these Terms of Service.

(aa) Licence Commencement Date means the date on which access to BoardOutlook is first made available to the Customer, unless an alternative date is specified in the Commercial Terms.

(bb) Licence Inclusions means the modules of BoardOutlook that are included in the Licence for the Customer, as specified in the Commercial Terms.

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

(dd) 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).

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

(ff) Renewal Licence Term means 12 months, unless an alternative period is specified in the Commercial Terms.

(gg) Report means the presentation of Report Data using the Report Interface on BoardOutlook or via Downloadable Report.

(hh) Report Interface means the software and/or print interface for presenting data generated from Surveys (including layout, design, user experience).

(ii) Report Data means information or data generated via BoardOutlook based on User Data in Surveys in combination with Benchmark, Aggregated and Algorithmically Created Data.

(jj) Downloadable Report means a PDF extract of a Report available to download from BoardOutlook via the “Download PDF” button (noting that access to Downloadable Reports may be restricted for certain Customers or Users by agreement with the Customer via the Commercial Terms).

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

(ll) Software Data means all information provided within BoardOutlook by the Company, including Benchmark, Aggregated and Algorithmically Created Data.

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

(nn) Term means the Initial Licence Term and all Renewal Licence Terms, unless terminated earlier in accordance with the terms of this Agreement.

(oo) User means any registered user of BoardOutlook authorized to access an Account by the relevant Customer, including Board Members.

(pp) User Data means all information, data, documents and other such materials entered into BoardOutlook by a User but does not include derivative data (including Benchmark, Aggregated and Algorithmically Created Data).

(qq) VAT means value added tax or any equivalent tax chargeable in the UK or elsewhere.

1. AGREEMENT

1.1. This Agreement is effective as of the Agreement Date and continues for the Initial Licence Term, unless terminated earlier in accordance with the terms of this Agreement or renewed in accordance with clause 1.2.

1.2. On expiry of the Initial Term, and subject to earlier termination in accordance with the terms of this Agreement, the Agreement will automatically renew for successive Renewal Licence Terms unless either party notifies the other party at least 60 days before expiry of the Initial Licence Term or the then current Renewal Licence Term in order to terminate before commencement of the next Renewal Licence Term.

1.3. The Company will provide written notice of renewal to the Customer prior to the last date by which the Customer may elect not to renew. In practice, the Company will use reasonable endeavours to send the notification at least 90 days before the renewal date (i.e. 30 days before the last date by which the Customer may elect not to renew). For Customers who have acquired access through a BoardOutlook Partner, this notice may be provided by the BoardOutlook Partner.

1.4. The Customer agrees, warrants, and undertakes: (a) to use and ensure that its Users use BoardOutlook in accordance with the Agreement; and (b) if creating an Account, that it is authorised to establish, maintain and, where applicable, pay for the Account.

1.5. The Customer agrees to pay the Fees in accordance with the pricing and payment terms agreed in the Commercial Terms as and when they fall due.

1.6. Where there is a conflict between these terms, and the Customer Agreement, the Customer Agreement shall prevail to the extent of the inconsistency.

2. USING BOARDOUTLOOK

2.1. General

a. To access and use BoardOutlook: i) the Customer’s Account must be set up and registered; and ii) individuals must register with BoardOutlook as a User connected to an Account.

b. If the Customer acquires access to BoardOutlook through a BoardOutlook Partner, then the Customer is solely responsible for: i) any access by the BoardOutlook Partner to the Customer’s account; and ii) any related rights or obligations in the Customer’s applicable Commercial Terms with the BoardOutlook Partner.

c. The Company has no liability to the Customer for the actions or omissions of any User in: i) Importing or exporting any data to or from BoardOutlook; ii) Sharing any Reports or any information contained therein; and/or iii) Accessing any User Data via BoardOutlook .

d. The Company may (acting reasonably) permit or deny an individual an Account within BoardOutlook (although individuals may generally obtain an Account through being provisioned as a User by a Customer and accepting the ‘User Acceptance Terms’ presented on registering for an Account).

e. For clarity, a User may use BoardOutlook in connection with multiple Customer Accounts. The Customer is responsible for any use of BoardOutlook by a User in connection with the Customer’s Account.

2.2. Features

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

2.3. Surveys

a. Users will be prompted to individually complete Surveys via BoardOutlook.

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

c. The Customer must take steps to ensure that the Survey is completed accurately and truthfully by Users.

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

e. The Company may add, vary and/or remove elements of the Surveys at its complete discretion.

f. The Customer acknowledges and agrees that completed Surveys may be used by the Company for research, developmental, statistical, analytical, commercial and/or archival purposes, subject to keeping all information anonymous and not disclosing the identity of any Customer or User.

2.4. Reports

a. Subject to (b) below, Reports will be provided to the Customer within BoardOutlook and the Customer will be responsible for determining the manner in which Reports are shared with Users and for making any decisions and drawing any conclusions based on the Reports. The Reports shall not be regarded as actionable advice and the Company does not assume a duty of care in relation to the decisions and/or conclusions made by the Customer or a User based on a Report.

b. For certain Reports with respect to the capability and/or behaviour of individuals, the Company may restrict the availability to that individual and/or that individual and the chair of the Board only. The Customer agrees any such restrictions are necessary to ensure market level director trust in BoardOutlook and will not seek to engineer workarounds or distribute outside the system.

c. In the event of any dispute as to who is authorised to view or release Reports, the Company will seek clarification from and defer to the decision of the current chair of the Board of the Customer.

d. The Customer acknowledges and agrees that the Report Interface and all Benchmark, Aggregated and Algorithmically Created Data within Reports remain the Intellectual Property of the Company.

e. Furthermore, the Customer acknowledges and agrees that the Company may use aggregated and anonymized User Data to create Benchmark, Aggregated and Algorithmically Created Data, which may be used for research, developmental, statistical, analytical, commercial and/or archival purposes, subject to keeping all information anonymous and not disclosing the identity of any Customer or User.

f. The Customer must not rely on Reports prima facie without regard to all other relevant considerations and due diligence. The Company 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.

g. The Company makes no representation that the Customer or any User will achieve particular results by relying on Reports.

2.5. Software updates and feedback

a. The Company will provide updates on product functionality and new releases to any Users designated as Board Administrators, in addition to the chair of the board and any other directors on request. Whilst Users may unsubscribe from these updates, these updates may contain critical information around changing functionality of the product, and choosing not to receive these updates may impact the Customer’s ability to realise full value from the product.

b. As part of ensuring a high-quality product that meets the Customer’s needs, the Company may ask Users to complete a NPS (Net Promoter Score) exercise no more than once per year via email or phone. NPS results for any Customer Board will always be available to the chair and any Board Administrators on request.

c. The Company may invite selected users to participate in advisory or feedback groups. If an individual User chooses to take part in these groups, the Customer acknowledges that any feedback, suggestions or ideas provided by the User are given with an unlimited, non-revokable, non-exclusive and worldwide licence to use and exploit in any way the Company sees fit.

2.6. Service delivery and support

a. As part of delivering a high-quality service to Customers and Users, the Company will maintain Customer and User contact details, meeting notes and any implementation/support notes as part of the Company’s CRM software. As directors may sit across multiple boards, the Company will generally maintain individual entries in the Company’s CRM software for individual Users linked to multiple boards. General and non-confidential information with respect to Users stored in CRM will not be considered as User Data or owned by the Customer, and will not be subject to the terms of any Customer Agreement (including deletion on termination).

b. Where the Company has support interactions with the Customer or any User that address Report interpretation, understanding or debriefs, the Company will store notes from these interactions as part of the CRM software. Such notes will not be considered User Data. Under certain circumstances (including but not limited to where the Company judges there may be a risk of subsequent legal proceedings), the Company will store these notes beyond termination of the Customer Account. Any storage beyond termination will be dealt with in accordance with the Privacy Policy and annual data privacy audits assessing the Company’s ongoing need to retain this information.

3. SOFTWARE DATA

3.1. The Company grants the Customer a limited, revocable, worldwide licence to access and use, and allow its Users to access and use, the Software Data on the terms of this Agreement.

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

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

4. USER DATA

4.1. The Company agrees to treat all User Data as Confidential Information under these Terms of Service, however the Customer agrees that the Company is not responsible for the acts or omissions of Users in relation to maintaining the confidentiality of any User Data.

4.2. The Company accepts no liability for the content Users provide as part of User Data.

4.3. The Customer and each User are 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 and shall procure for the Company an immediate, worldwide, royalty-free licence to use and incorporate the User Data within BoardOutlook, for the purposes of providing BoardOutlook to the Customer, for the duration of this Agreement.

4.5. The Company 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 BoardOutlook).

4.6. The Company will delete User Data from its systems on termination of the Agreement, as more particularly described in clause 6.12(g).

4.7. For clarity, User Data does not include any Benchmark, Aggregated and Algorithmically Created Data which the Company may continue to access and use at all times despite termination of this Agreement.

5. FEES, PARTNERS AND SUSPENSION

5.1. Subject to clause 5.2, the Customer shall be liable to pay the Fees to the Company as set out in the Commercial Terms.

5.2. If the Customer acquires access to BoardOutlook through a BoardOutlook Partner, the Customer will pay the Fees to the BoardOutlook Partner, as agreed between the Customer and the BoardOutlook Partner under the Commercial Terms.

5.3. The Company may suspend the Customer's Account and any User’s access should any Fees be outstanding to the Company at any time (including if the Company does not receive the corresponding payment in respect of the Fees from a BoardOutlook Partner, where applicable). This may, in time, result in termination of access to BoardOutlook for all of a Customer's Users.

5.4. The Customer agrees that the Company shall not be liable in any way for any valid termination or suspension of the Customer's access to BoardOutlook.

5.5. The Company 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 take effect at the start of the next Renewal Term (so long as the Renewal Term is due to commence at least three months after the Customer has been given such notice).

5.6. If the Customer does not accept the introduction or change to any Fees, then the Customer shall have the right to terminate the Agreement in line with the termination provisions of these terms prior to the next Renewal Term.

6. GENERAL CONDITIONS

6.1. Licence

a. By accepting the terms and conditions of this Agreement, the Customer is granted a limited, non-exclusive, non-transferrable and revocable licence to allow its Users to access and use those modules of BoardOutlook included in the Licence Inclusions, for the internal business purposes of the Customer, for the Term, in accordance with the terms and conditions of these Terms of Service and any additional terms in the Commercial Terms, but only for as long as the Users remain authorized users of the Customer (the “Licence”).

b. The Company may issue the Licence to the Customer on further terms or limitations (including the number of users or volume of use or reports) as it sees fit.

c. The Company may revoke or suspend the Customer’s Licence(s) if it reasonably believes that the Customer or any of its Users are in breach of this Agreement.

6.2. Modification of Agreement

a. The terms of the Agreement may be modified or updated by the Company from time­ to-time.

b. Where the Company modifies the terms, it will provide the Customer with 20 Business Days of written notice (except where the modification is to introduce country specific terms for a new jurisdiction that does not apply to the Customer). Except to the extent set out in clause 6.2(c), all modifications to the terms will take effect when the Company publishes them on the Site.

c. Where the modifications would have a substantial and detrimental impact on the Customer, the Customer may within 20 Business Days of receiving notice of such modifications (Objection Period), object to the modifications in writing and ask the Company to agree to reasonable amendments to the modifications. If the Company agrees to the amendments, these may be recorded separately in the Customer Agreement. If the Company declines to make such amendments within 20 Business Days from receipt of the Customer’s objection (Discussion Period), the Customer shall have the right to terminate this Agreement by providing written notice to the Company within 10 Business Days of the expiry of the Discussion Period. If no objection is received in writing from the Customer within the Objection Period, or the Customer continues to use BoardOutlook beyond the Discussion Period and does not exercise its right to terminate despite the Company declining to make amendments to address the Customer’s objection, the Customer will be taken to have agreed to the modification to the terms.

6.3. Software-as-a-Service

a. The Customer agrees and accepts that BoardOutlook is: i hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the Company’s servers and is not available 'locally' from the Customer’s or a User’s system; and ii managed and supported exclusively by the Company from the Company’s servers and that no 'back-end' access to BoardOutlook is available to the Customer or a User unless expressly agreed in writing.

b. As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter BoardOutlook.

c. The Company shall not exercise its rights under clause 6.3(b) in a manner that would fundamentally decrease the utility of BoardOutlook to the Customer, other than in accordance with the terms of these Terms of Service.

6.4. Support

a. The Company 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. The Company 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 Customer agrees that it shall only use BoardOutlook 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 the Company in its discretion.

b. The Customer is solely responsible for the security of its and their username(s) and password for access to BoardOutlook. The Customer shall notify the Company as soon as it becomes aware of any unauthorised access of its Account or any User Account.

c. The Customer agrees that the Company shall provide access to BoardOutlook to the best of its abilities, however: i) access to BoardOutlook may be prevented by issues outside of its control; and ii) it accepts no responsibility for ongoing access to BoardOutlook. The Customer acknowledges and agrees that the access to and use of BoardOutlook is subject to (and the Company shall not be responsible or liable for any issue with or interruption in the availability of) third party communications networks and the internet.

6.6. Privacy

a. The Company and the Customer will comply with all Applicable Data Protection Laws.

b. The Company maintains the Privacy Policy in compliance with the provisions of Applicable Data Protection Laws with respect to personal information that it collects about the Customer, Users and other individuals as a data controller.

c. The Privacy Policy does not apply to how the Customer handles personal information. If necessary under the Applicable Data Protection Laws, it is the Customer's responsibility to meet the obligations of the Applicable Data Protection Laws by implementing a privacy policy in accordance with law.

d. Where the Customer is located in the United Kingdom or European Union, to the extent the Company processes personal data on behalf of the Customer, the parties shall comply with the Data Processing Agreement.

6.7. Data

a. Security. The Company takes the security of BoardOutlook and the privacy of users of BoardOutlook very seriously. The Customer warrants and undertakes that the Customer and each of its Users shall not do anything to prejudice the security or privacy of the Company's systems or the information on them.

b. Transmission. The Company 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 and Customer to ensure that any transmission standards meet the User's and Customer’s operating and legal requirements.

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

d. Backup. The Company shall perform backups of its entire systems in such manner, at such times and intervals as is reasonable for its business purposes. The Company 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 the Company.

6.8. Intellectual Property

a. Trademarks. The Company has moral, registered and unregistered rights in its trade marks and the Customer and its Users shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.

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

c. BoardOutlook. The Customer agrees and accepts that BoardOutlook is the Intellectual Property of the Company and the Customer further warrants that by using BoardOutlook the Customer and its Users will not: i) copy BoardOutlook, or Software Data, or the services that it provides for the Customer’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 BoardOutlook or any documentation associated with it (unless expressly permitted by law).

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

e. Reservation of Rights. Other than any rights specifically granted to the Customer under this Agreement pursuant to the Licence, the Company reserves all of its Intellectual Property Rights.

6.9. Third Party Dependencies

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

6.10. Confidentiality

a. The Company agrees to keep all User Data in the strictest confidence, and to the extent User Data is accessed and/or received by the Company, 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 a confidentiality obligation under the Agreement 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 unauthorised 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 of the Discloser it there is: i) any actual, suspected, likely or threatened breach of the confidentiality terms of the Agreement; or ii) any theft, loss, damage or unauthorised access, use or disclosure of or to any Confidential Information that is or was in its possession or control.

6.11. Liability

a. The Customer agrees that it uses BoardOutlook at its own risk.

b. The Customer acknowledges that the Company is not responsible for the conduct or activities of any User and that the Company is not liable for any such conduct or activities under any circumstances.

c. The Customer agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with their User's use of BoardOutlook to the extent such use is in connection with Customer's Account (and not a User's use of BoardOutlook 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. Subject to clause 6.11(e), in no circumstances will the Company be liable under this Agreement for any 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, business interruption, or any other similar or analogous loss, including such losses resulting from the User’s access to, or use of, or inability to use BoardOutlook, 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 the Company knew or should have known of the possibility of such damage, loss, personal injury or death.

e. Unless otherwise agreed by the Company under the applicable Customer Agreement, under no circumstances shall the Company’s total aggregate liability under and in connection with the Agreement (and whether such liability arises in contract, tort (including, but not limited to, negligence and breach of statutory duty), misrepresentation, or otherwise) exceed $20,000.

f. Nothing in this Agreement shall limit or exclude the liability of the Company to the extent that it may not be lawfully limited or excluded.

6.12. Termination

a. Either party may terminate this Agreement by giving the other party no less than 60 days written notice to the other party, provided that the effective date of termination is at the expiry of the Initial Licence Term or any Renewal Licence Term, unless the parties agree otherwise in a Customer Agreement.

b. Either party may immediately terminate this Agreement by written notice to the other party where:

i. the other party is in material breach of the Agreement and has been notified in writing of the breach and has not remedied that breach within 20 Business Days of the notice;

ii. the other party commits a material breach of the Agreement which is incapable of remedy;

iii. the other party repetitiously, wilfully, or recklessly commits a breach of the Agreement; and/or

iv. the other party suffers an Insolvency Event.

c. Termination of this Agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this Agreement up to the date of expiry or termination.

d. On expiry or termination of this Agreement, the Customer may retain Downloadable Reports that it downloaded prior to expiry or termination, but must only use and reproduce such Downloadable Reports for the Customer’s record keeping and/or regulatory compliance purposes. All provisions of this agreement with regard to the Company’s Intellectual Property Rights in, and the confidentiality of, any Benchmark, Aggregated and Algorithmically Created Data included in a Downloadable Report shall survive as long as these are retained. The Customer will not be able to download any Downloadable Reports from the Site after expiry or termination of this Agreement.

e. Where the Company terminates the Agreement for cause pursuant to clause 6.12(b), or the Customer terminates this Agreement pursuant clause 6.12(a), then the Company shall be relieved of the obligation to provide any services or access to BoardOutlook to the Customer, without affecting any other rights it accrues before termination.

f. Where the Customer terminates the Agreement for cause pursuant to clause 6.2(c) or 6.12(b), or the Company terminates this Agreement pursuant to clause 6.12(a), then the Company shall be relieved of the obligation to provide any services or access to BoardOutlook to the Customer, and the Customer relieved from its obligation to pay any further Fees, and the Customer shall be entitled to a pro-rata refund for Fees paid in advance by the Customer for the period following the effective date of termination.

g. Where the Agreement expires or is terminated for any reason, the Company will delete all User Data within the earlier of 30 days after the effective date of expiry or termination, or as soon as reasonably possible after the Customer (or the BoardOutlook Partner (where applicable) on the Customer’s behalf) provides written confirmation that deletion will not compromise any regulatory or compliance obligations.

6.13. Dispute Resolution

a. If any dispute arises between the parties in connection with the Agreement (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. Notices

a. The Customer can direct notices, enquiries, complaints and so forth to the Company using the following contact details: Address: PO BOX 18016, Collins Street East 8003, Victoria, Australia; Email: Team@boardoutlook.com. The Company will notify the Customer of a change of details from time-to-time.

b. The Company will send the Customer notices and other correspondence using the contact details set out in the Customer Agreement (if applicable) or provided by the BoardOutlook Partner, unless the Customer notifies the Company of a change to such details from time-to-time. It is the Customer’s responsibility to notify the Company of any update to its contact details as they change.

c. A consent, notice or communication under the Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.

d. The parties acknowledge and agree that this Agreement is binding upon each party if executed digitally and conveyed by electronic communication.

6.15. General

a. Assignment. The Customer may not assign or otherwise create an interest in the Agreement without prior written consent of the Company (which shall not be unreasonably withheld).

b. The Company may assign or otherwise create an interest in its rights under the Agreement by giving written notice to the Customer.

c. Liability for Expenses. Each party must pay its own expenses incurred in negotiating, executing, stamping, and registering this Agreement.

d. Prevalence. To the extent these Terms of Service are in conflict with, or inconsistent with, the terms of the Customer Agreement (if applicable), the terms of that Customer Agreement shall prevail.

e. Entire Agreement. The Agreement provides the entire understanding between the parties and supersedes all prior Agreements, arrangements, promises, assurances, warranties, representations, and communications, whether oral or written, relating to its subject matter.

f. 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 the Agreement Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

g. Relationship. The relationship of the parties to the Agreement does not form a joint venture or partnership.

h. Waiver. No clause of the Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.

i. Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to the Agreement and the transaction facilitated by it.

j. Governing Law. The Agreement is governed by the laws of Victoria, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.

k. Severability. Any clause, provision, or part provision of the Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of the Agreement.

l. 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.

7. Country Specific Terms

7.1 Australia

Where the Customer is based in Australia, the following country specific clauses will apply:

Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories in Australia and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company's related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company's liability for breach of any warranty or condition that cannot be excluded is restricted, at the Company'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.

7.2 United Kingdom and European Union

Where the Customer is based in the UK, the following country specific clauses will apply:

a. Applicable Law and Jurisdiction: The following provision will replace clause 6.15(i) “Except as otherwise provided, the Agreement is governed by and should be construed in accordance with the laws of England and Wales. Each of the parties hereby submits to the non-exclusive jurisdiction of the courts of England and Wales”.

b. Liability: The following provision will replace clause 6.11(d) and (e): “Nothing in this Agreement limits or excludes any liability which and to the extent that it cannot legally be limited or excluded, including but not limited to liability for i) death or personal injury caused by negligence, ii) fraud or fraudulent misrepresentation and/or iii) breach of the terms implied by clause 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

In no circumstances will the Company be liable for any direct, incidental, consequential or indirect loss or damage, 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 or Customer’s access to, or use of, or inability to use BoardOutlook, 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 the Company knew or should have known of the possibility of such damage, loss, or business interruption of any type, whether in tort, contract or otherwise.

Apart from those that cannot lawfully be excluded, the Company and the Company's related entities exclude all conditions and warranties that may be implied by law or course of dealing. To the extent permitted by law, the Company's liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company'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”.

c. Business Days: the definition of Business Days in the Agreement is replaced with “a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in London, England”.

d. Third Party Rights: The following provision shall be added as a new clause 6.15(m): “Unless it expressly states otherwise, this Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement”.