Terms of Subscription and Use of ONiX

1. Definitions

Unless the contrary intention appears, capitalised words and phrases have the meanings set out below:

  • Access Conditions means:
    • the conditions applicable to use of ONiX and the Artefacts described at clause 3.2; and
    • such further or other conditions as may be published on the Website from time to time;
  • Affiliate means, in relation to the Customer, any Person engaged in the business of finance or mortgage broking:
    • as franchisee or agent of the Customer; or
    • otherwise under or in connection with any arrangement, agreement, or understanding with the Customer;
  • Agreement means this agreement;
  • Artefacts means any document or information (in any medium) generated by use of ONiX;
  • Business Day means a day that is not a Saturday, Sunday or public holiday in Victoria;
  • Company means CYMCYL Pty Ltd;
  • Confidential Information means:
    • any proprietary information, data, trade secret, idea, know how (including a system, process, technique, formula or algorithm) or other information in any form anywhere in the world relating to ONiX;
    • the following information from the Company, regardless of its medium, form, or markings and whether the Customer became aware of it before or after this Agreement:
      • information that is by its nature confidential;
      • information that is designated in any as confidential; and
      • information that the Customer knows, or ought to know, is confidential;
    • the terms of this Agreement; and
    • all notes or other records based on, derived from or containing any of the information in paragraphs (a)–(c), made by the Customer or its Personnel, but does not include information that (whether before or after this Agreement):
      • was lawfully received from a third party free of any obligation of confidence at the time of its disclosure; or
      • is public knowledge (and has become so otherwise than as a result of a breach of confidentiality)
  • Data means all data, content and information (including Personal Information) owned, held, used or created by or on behalf of the Customer or its Affiliates that is stored using, or entered into, ONiX;
  • Eligible User means Personnel of the Customer or an Affiliate while employed or otherwise engaged by the Customer or Affiliate;
  • Fee means the moneys the Customer has agreed to pay to the Company for its subscription to ONiX;
  • GST has the same meaning as in A New Tax System (Goods and Services Tax) Act 1999 (Cth)
  • Intellectual Property means any copyright or other intellectual or industrial property or right anywhere in the world, whether subsisting now or in the future in or relating to ONiX including a right in or relating to:
    • any Confidential Information, proprietary information, trade mark (whether registered or not), trade name, trade secret, idea, know-how, literary work, artistic work, software or computer program or any other work or subject matter in which copyright, a moral right or any similar or analogous right may, or may upon creation of the work or subject matter, subsist;
    • a design, whether or not registered or registrable as a design or any similar or analogous right;
    • a product, process, method, technique or any other invention or discovery, whether or not registered or registrable as a patent, innovation patent or any similar or analogous right; or
    • any improvement, development or modification regarding anything referred to in paragraphs (a), (b) or (c) above;
  • Interface means a digital interface or application, platform, system or software used to connect a Product, or otherwise provide an Artefact, to the information technology systems used by the Customer, its Affiliate or an Eligible User;
  • ONiX means this platform as may be altered from time to time in accordance with clause 3.5(b) and includes:
    • any related Interface;
    • all manuals, guides, flow-charts (or other diagrams) describing and depicting the structure, application, inputs and/or outputs of ONiX; and
    • any object code, source code or other computer program, equation, formula or algorithm embedded in ONiX;
  • Person includes individuals, firms, companies, associations (whether incorporated or unincorporated), trusts, joint ventures, consortia or partnerships whether having separate legal personality or not;
  • Personal Information has the same meaning as in the Privacy Act 1988 (Cth)
  • Personnel includes officers, employees, agents, contractors, consultants and other representatives whatsoever;
  • Privacy Law means:
    • Privacy Act 1988 (Cth); and
    • any other applicable privacy law;
  • Purpose means quotation for stonemasonry products;
  • Security Interest means:
    • a 'security interest' as defined in the Personal Property Securities Act 2009 (Cth)
    • any third party rights or interests including a mortgage, lien, charge, pledge, assignment by way of security, security interest, encumbrance, title retention, preferential right or trust arrangement, claim, covenant, easement or any other security arrangement or any other arrangement having the same effect;
    • a right, interest or arrangement which has the effect of giving another person priority over creditors including any right of set-off;
    • an agreement to create any of the above or allow them to exist; and
  • Subscription means the agreement between the Company and the Customer to use ONiX governed by these terms;
  • Termination means the termination of a Subscription in the manner provided herein or under general law;
  • Third Party means a Person other than:
    • a party to this Agreement;
    • an Affiliate; and
    • Personnel of a party or an Affiliate;
  • Underlying Systems means the software, hardware, IT solutions, systems and networks by which ONiX is provided, including any Third Party applications, systems and networks;

2. Interpretation

Unless the contrary intention appears:

  • clause headings and the table of contents are inserted for convenience and do not affect interpretation;
  • a reference to a party includes that party's personal representatives, executors, administrators, successors, substitutes (including persons taking by novation) and permitted assigns;
  • a word or phrase derived from, or another form of, a defined word or phrase has a corresponding meaning;
  • the singular includes the plural and vice versa;
  • words importing one gender include all other genders;
  • time shall be of the essence and a reference to a time or date in connection with the performance of an obligation by a party is a reference to the time and date in Victoria, Australia, even if the obligation is to be performed elsewhere;
  • monetary references are to Australian Dollars and exclude any applicable GST.

Nothing in this Agreement shall be interpreted against the interests of ONiX only because that party was responsible for preparing this Agreement.

This Agreement constitutes the entire Agreement of the parties in respect of its subject matter and supersedes all prior discussions, undertakings and agreements.

If the Customer comprises more than one Person, the obligations of the Customer under this Agreement are joint and several.

3. Services

3.1 General

The Company will provide ONiX to the Customer, for its use and the use of its Affiliates.

Except as expressly set out herein, this Agreement does not grant to the Customer any other rights to, or interests in, ONiX or Artefacts whatsoever.

The Company's provision of ONiX to the Customer is non-exclusive, and nothing in this Agreement shall be read or understood to preclude the Company from supplying or licensing ONiX to another person.

3.2 Access Conditions

The Customer must not, and must procure that its Personnel and its Affiliates and their Personnel do not:

  • permit anyone but an Eligible User to:
    • use ONiX; or
    • have access to any Artefact;
  • use or commercially exploit ONiX or Artefacts other than:
    • in accordance with this Agreement; and
    • for the Purpose;
  • use ONiX and the Artefacts in a manner that:
    • is unlawful; or
    • infringes or otherwise interferes with the contractual or other rights of the Company or any Third Party;
  • transfer, assign or otherwise deal with or grant a Security Interest in, ONiX or an Artefact, or purport to do or give any of the foregoing;
  • attempt to circumvent or undermine any security measure within or associated with:
    • ONiX; or
    • such of the Underlying Systems as are not provided by the Customer or an Affiliate;
  • attempt to probe, scan, test or identify vulnerabilities or security measures within or associated with:
    • ONiX;
    • such of the Underlying Systems as are not provided by the Customer or an Affiliate;
  • attempt to view, access or copy any part of the Underlying Systems other than:
    • to which the Customer or an Affiliate is permitted access; and
    • to the extent necessary for Eligible Users to use ONiX in accordance with this Agreement;
  • attempt to decompile, disassemble, translate, reverse engineer or otherwise derive source code, underlying ideas, techniques, systems, frameworks, formulae or algorithms from ONiX or any Artefact by any means whatsoever, direct or indirect;
  • attempt to circumvent any restriction or suspension imposed on the Customer or an Eligible User under clause 3.3(c)
  • use ONiX in any way that may impair the functionality of the:
    • Product; or
    • Underlying Systems;
  • use ONiX by impersonating another Eligible User, by using any unique credentials supplied to them or otherwise;
  • attempt to alter, enhance, modify, translate or create any derivative works based on ONiX;

The Customer must, and must procure that its Personnel and its Affiliates and their Personnel:

  • are provided reasonable training and subjected to reasonable supervision to ensure that Eligible Users comply with the Access Conditions;
  • immediately inform the Company of any Eligible User who has ceased to be Personnel of the Customer or an Affiliate;
  • inform the Company of any Eligible User who has informed the Customer or its Affiliate of their intention to cease to be Personnel of the Customer or Affiliate, as the case may be, and the date thereof; and
  • immediately inform the Company (with full particulars) of any breach of the Access Conditions;

3.3 Reservations and suspension of access

The Customer acknowledges and agrees that the Company may:

  • require a prospective Eligible User to complete a process of registration whereby information (including possibly Personal Information) is provided;
  • require, as a condition of use of ONiX that further information (including possibly Personal Information) about the prospective Eligible User is provided;
  • require, as a condition of using ONiX, that an Eligible User from time to time and at any time:
    • accept or confirm acceptance of the Access Conditions;
    • acknowledge the confidentiality of Confidential Information of ONiX; and
    • acknowledge ownership of Intellectual Property of ONiX;
  • monitor and obtain information about Eligible Users' use of ONiX and the Underlying Systems;
  • suspend or restrict access to ONiX and such of the Underlying Systems as are not provided by the Customer or its Affiliate whenever it reasonably apprehends:
    • an actual or potential breach of this Agreement; or
    • that an individual is not, or has ceased to be, an Eligible User, in such manner as it may determine in its absolute discretion;

3.4 Authorisations

The Customer is solely responsible for obtaining any licence, authorisation, consent or other permission to enable it, its Affiliates and Eligible Users to use ONiX and the Artefacts in the manner contemplated by this Agreement in its jurisdiction.

3.5 Reliability and availability

The Company will use its best efforts to ensure that ONiX is available, but the Customer acknowledges and agrees that:

  • ONiX may be temporarily unavailable from time to time for the reasons described in paragraph (b)
  • ONiX depends upon, and interoperates, with the Underlying Systems and no warranty is given as to the compatibility, reliability or availability of the Underlying Systems;
  • ONiX is driven by software and no representation or warranty is made or given that ONiX or Underlying Systems are or will be secure, timely, compatible, uninterrupted or error-free; and
  • the Company will not be liable to provide any refund or reimbursement, nor for any loss or damage incurred, as a result of any temporary unavailability of ONiX contemplated by this paragraph (a).

The Company reserves the right to:

  • correct any errors in;
  • upgrade, maintain, tune or backup;
  • amend, add or remove features in, redesign, improve or otherwise alter, ONiX in its absolute discretion.

The Company will use reasonable efforts to inform the Customer of any planned or expected unavailability of ONiX and restore the availability of ONiX as soon as practicable.

The Customer is responsible for disseminating to Eligible Users any information received pursuant to paragraph (c).

4. Data

4.1 Access to Data

The Customer irrevocably grants to the Company a worldwide, non-exclusive, fully paid-up, transferable, licence to use, store, copy and modify the Data to provide, develop and maintain ONiX.

The Customer warrants that it has the right to give the licence in paragraph (a).

4.2 Analytical Data

The Company may use the Data and information about the Customer's and an Affiliate's use of ONiX to generate anonymised and aggregated statistical and analytical data which may be:

  • used internally for research and product development; and
  • supplied to third parties.

Title to and all Intellectual Property Rights in data generated consequent to paragraph (a) is and remains the property of the Company.

The rights conferred by this clause 4.2 shall survive Termination.

4.3 Privacy

The Customer acknowledges and agrees that, to the extent that the Data contains Personal Information, the Company is acting as the agent of the Customer for the purposes of a Privacy Law in collecting, holding and processing the Personal Information through ONiX.

It is the Customer's responsibility to obtain any consent relevant to paragraph (a).

It is the Customer's responsibility to de-identify, encrypt, or otherwise secure Personal Information before processing through ONiX.

4.4 Storage and backup

The Customer must keep a separate backup of all Data.

The Customer acknowledges and agrees that Data may be stored in, and accessed from, servers overseas.

5. Fees

5.1 Invoicing and payment

The Customer must pay the Fee to ONiX in advance each month.

5.2 Payment default

Access to ONiX may be suspended upon any default in the payment of Fees.

5.3 Increases in Fees

The Company may increase the Fees from time to time on 30 days' notice.

Notice under paragraph (a) may be given to the Customer:

  • to any email address provided by the Customer; or
  • by push notification or otherwise by message through ONiX;

6. Intellectual Property

6.1 Ownership

The Customer acknowledges and agrees that all rights and Intellectual Property in:

  • ONiX;
  • the use of "ONiX" (or anything substantially similar) as a trade mark (whether registered or not)
  • the use of "ONiX" (or anything substantially similar) as a business or company name (whether registered or not)
  • the Artefacts; and
  • such of the Underlying Systems as are not provided by the Customer, is and remains the property of the Company, and the Customer must not, in Australia or elsewhere:
    • assert or contest ownership of the same;
    • make or support any application to oppose registration or renewal by the Company of any Intellectual Property or otherwise inconsistent with the acknowledgment in this paragraph; or
    • assist anyone to do any of the things in paragraphs (vi) or (vii).

The Customer hereby assigns to the Company all Intellectual Property (including all present and future rights in and to all improvements, developments and modifications to or of ONiX or any Intellectual Property) created, developed or made by or on behalf of the Customer or its Affiliates, and must promptly execute all documents and do all other things which the Company reasonably requires for the purpose of assigning to it or registering or otherwise perfecting the assignment to it of such Intellectual Property anywhere in the world.

6.2 Feedback

If the Customer or its Affiliate provides any ideas, comments or suggestions relating to ONiX or the Underlying Systems, the Company may use or disclose the same for any purpose.

7. Confidentiality

7.1 Use

The Customer must:

  • keep confidential the Confidential Information;
  • use the Confidential Information solely (and only to the extent necessary) for the Purpose; and
  • not copy any Confidential Information unless necessary (and only to the extent necessary) for the Purpose;

7.2 Disclosure to Customer's Personnel

The Customer may disclose or copy Confidential Information to those of its Personnel, or its Affiliate or their Personnel, who, having regard to the Purpose:

  • have a need to know and have (and only to the extent that each has a need to know and have) the Confidential Information;
  • are made aware that it must be kept confidential; and
  • have agreed in writing with the Recipient to comply with the terms of this clause 7;

7.3 Disclosure to Third Parties

A Customer may disclose Confidential Information:

  • to such of its professional and expert advisors who, having regard to the Purpose:
    • have a need to know (and only to the extent that each has a need to know) the Confidential Information;
    • are aware that it must be kept confidential; and
    • have agreed in writing with the Customer to comply with the terms of this clause 7 as if they were a party to it;
  • where required by Law, and in that event it must:
    • promptly inform the Company of any such anticipated or required disclosure;
    • take any reasonable available steps to oppose its production;
    • disclose only so much of the Confidential Information as is reasonably necessary to comply with the requirement;
    • notifies the third party of its confidentiality; and
    • otherwise uses all reasonable efforts to preserve its confidentiality;

7.4 No detriment

Despite anything contained in this clause 7, no Confidential Information may be disclosed, used or copied to the detriment or possible detriment of the Company.

8. Liability

8.1 Acknowledgments

The Customer acknowledges and agrees that:

  • in entering into this Agreement, the Customer has not relied upon any representation, warranty, statement or promise except as set out in this Agreement;
  • it has entered into this Agreement after informing itself of the fitness of ONiX for the Purpose;
  • the accuracy and reliability of the Artefacts is a function of the completeness and accuracy of the Data;
  • ONiX is based on machine learning, being a form of artificial intelligence that explores the Data to identify patterns and aid in prediction;
  • ONiX is a predictive tool and Artefacts are predictions, not guarantees;
  • the provisions of this clause 8 are fair and reasonable and that the parties are bound by it;

8.2 Exclusions and modifications

To the fullest extent permitted by law, the Company disclaims and exclude every condition, guarantee, warranty implied or incorporated terms which would otherwise arise or be implied or incorporated.

Where legislation or a rule of law precludes paragraph (a), the liability of the Company to the Customer or its Affiliates is limited to (at the option of the Company):

  • supplying ONiX again; and/or
  • the costs of having ONiX Supplied again.

To the fullest extent permitted by law the Company shall not be liable to the Customer for any:

  • loss of profit, revenue, savings, use, data (including Data) or goodwill;
  • consequential or indirect loss; or
  • loss or damage arising from personal injury or death.

To the fullest extent permitted by law, the liability of the Company in respect of any guarantee under Part 3-2, Division 1 of the Australian Consumer Law is limited to the lesser of:

  • the supply of ONiX again; or
  • the cost of having ONiX supplied again.

No party shall be liable to another for any loss or damage to the extent that the same was caused by the fault of the other party.

Each party must take reasonable steps to mitigate any loss or damage suffered as a result of any breach of this Agreement, whether the Agreement has been terminated or not.

8.3 Third Party Applications

The Customer acknowledges that ONiX may incorporate Third Party applications or services unless expressly provided otherwise.

The Company gives no warranty (including as to fitness for any purpose) or makes any representation about, and to the fullest extent permitted by law assumes no liability whatsoever for, such Third Party applications or services.

The Customer grants to the Company permission to allow any such Third Party application or service and its provider access to such of the Data as is required for the interoperation of that application or service with ONiX, and to the fullest extent permitted by law the Company accepts no liability whatsoever for any disclosure, modification or deletion of Data resulting from such access.

8.4 Indemnities

The Customer indemnifies the Company against all liabilities, losses, damages, costs and expenses (including, without limitation, reasonable legal fees and disbursements and costs in investigation, litigation, settlement, judgment, interest, fines and penalties) sustained or incurred as a result, directly or indirectly, of:

  • any use of ONiX or the Underlying Systems by the Customer or their Affiliate contrary to the Access Conditions; and
  • any breach of clauses 6 or 7 by the Customer or their Affiliate.

The Company indemnifies the Customer against any claim or proceedings brought against the Customer in the Territory to the extent that the claim or proceeding alleges that the Customer's use of ONiX infringes a third party's Intellectual Property in the Territory, provided that the Customer:

  • promptly advises the Company in writing of such a claim;
  • makes no admission or liability;
  • gives the Company complete authority and information required to conduct and/or settle negotiations and litigation relating to the claim; and
  • any costs incurred or recovered are for the account of the Company.

The indemnity in paragraph (b) does not apply to the extent that a claim arises from or in connection with:

  • the Customer's breach of this Agreement; or
  • any Data;

9. Termination

9.1 Subscriptions

Customers may request their Subscription to be cancelled at any time and such request will take effect at the end of the month for which payment has already been made.

9.2 Consequences

Upon Termination, the Customer must immediately cease accessing and using, and procure that all its Personnel and its Affiliates and their Personnel cease accessing and using, all Confidential Information, ONiX, such of the Underlying Systems as it did not provide, and the Artefacts.

Termination shall not affect accrued rights.

The Access Conditions and clauses 6 and 7 are continuing and shall survive Termination.

10. Miscellany

10.1 Warranties

The Customer warrants that:

  • the persons accepting this Agreement are duly authorised to do so;
  • it is authorised to enter into and perform this Agreement;
  • it is capable of performing this Agreement;
  • it concludes this Agreement in its personal capacity and not as an agent or trustee (unless so described at the time of subscribing to ONiX); and
  • where the Customer concludes this Agreement as a trustee:
    • the trust is valid and subsisting;
    • the trustee is the sole trustee and is authorised to conclude this Agreement;
    • it does so for a proper purpose of the trust;
    • it has the right to be indemnified out of the trust assets for all liabilities under or in connection with this Agreement; and
    • it will promptly cease to use ONiX if it ceases to be the trustee;

10.2 Amendment

This Agreement is not amended unless in writing and signed by all parties.

10.3 Waiver

No:

  • failure to require performance of a term of this Agreement by the Company; or
  • delay or indulgence by the Company;

shall be a waiver of any right of the Company or of its right to require performance at a later time.

10.4 Rights

A party may exercise a right at its discretion and separately or together with another right.

If a party exercises a single right or only partially exercises a right, then that party may still exercise that right or any other right later.

If a party fails to exercise a right or delays in exercising a right, then that party may still exercise that right later.

The rights and remedies provided in this Agreement are cumulative with and not exclusive of the rights and remedies provided under general law.

10.5 Assignment

This Agreement is for the benefit of the parties and their successors and assigns.

The parties and their successors and assigns are bound by this Agreement.

The Customer may only assign its rights under this Agreement after it obtains the written consent of the Company.

The rights and obligations of the parties will survive any assignment.

10.6 Remedies

The Customer acknowledges that damages may not be an adequate remedy for the loss and damage arising from a breach of the Access Conditions or clauses 6 and 7 and that the Company may be entitled to seek injunctive or other equitable relief.

10.7 Notices

Notices to the Company must be emailed to: support@onix.ai

Notices to the Customer may be given to any email address provided by the Customer when subscribing for ONiX.

10.8 Applicable Law

This agreement shall be governed by the law applicable in Victoria, Australia.

The parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction in Victoria.

Contact for Notices:

Email: support@onix.ai