Terms of Use

General Terms and Conditions

This Agreement (the Agreement) comprises the Order Form, the General Terms and Conditions, and the schedules (the Data Processing Addendum, the Service Level Agreement, and the Pilot Program Terms (where applicable)). Together these documents form the entire agreement between the Supplier and the Customer in relation to the use of the Platform.

The parties may agree to additional or Supplementary Order Forms from time to time. Each such Order Form, upon execution or electronic acceptance, will be incorporated into and governed by this Agreement and will form part of the Agreement unless stated otherwise.

Order Forms may be completed via a web form on the Trancher website (for Starter and Professional subscriptions), or manually via email (for Enterprise subscriptions).

Background

This Agreement is between Trancher Pty Ltd ABN 55 695 101 092 (Supplier) and the person or legal entity that registers an account, electronically accepts this Agreement, signs an Order Form, or otherwise accesses or uses the Platform (Customer).

If an individual accepts this Agreement on behalf of a company, organisation or other legal entity, that entity will be deemed to be the Customer and that individual represents and warrants that they have authority to bind the entity to this Agreement.

1. Definitions and interpretation

1.1 In this Agreement, the following terms have the meanings set out below:

1.2 In this Agreement, unless the context otherwise requires:

1. (a) headings are for convenience only and do not affect interpretation;
2. (b) a reference to a statute includes all regulations and instruments made under it and any amendment or re-enactment;
3. (c) the singular includes the plural and vice versa;
4. (d) ‘includes’ and similar words are not words of limitation;
5. (e) a reference to a party includes its successors and permitted assigns; and
6. (f) where a party consists of more than one person, they are bound jointly and severally.

1.3 In the event of any inconsistency between the documents forming part of this Agreement, the following order of precedence applies (with the earlier listed document prevailing to the extent of the inconsistency):

1. (i) any Special Conditions set out in an Order Form;
2. (ii) the Order Form;
3. (iii) the Pilot Program Schedule (if applicable);
4. (iv) these General Terms and Conditions; and
5. (v) all other Schedules.

2. Grant of licence

2.1 Subject to the Customer’s compliance with this Agreement and payment of all Fees when due, the Supplier grants the Customer a non-exclusive, non-transferable, non-sublicensable, revocable licence during the Subscription Term to access and use the Platform solely for the Customer’s internal business compliance management purposes and in accordance with the Documentation.

2.2 The licence granted under clause 2.1 permits access only by the number of Authorised Users specified in the relevant subscription tier (see Schedule 3 – Pricing Schedule) or agreed by the parties. The Customer must not permit any person who is not an Authorised User to access the Platform.

2.3 The Customer may purchase additional Authorised User seats at the Supplier’s then-current rates by submitting a written request to the Supplier. Any additional seats will be charged on a pro-rata basis for the remainder of the then-current billing period and will be included in future renewals of the Subscription.

2.4 The licence granted under clause 2.1 expressly excludes any right to:

1. (a) copy, modify, adapt, translate or create derivative works of the Platform or Documentation;
2. (b) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code of the Platform;
3. (c) sub-licence, resell, distribute, transfer, assign or make the Platform available to any third party (other than Authorised Users in accordance with this Agreement);
4. (d) remove or obscure any proprietary notices on the Platform;
5. (e) use the Platform to build a competing product or service; or
6. (f) use the Platform in any manner that exceeds the scope of the licence granted in clause 2.1.

2.5 The Supplier reserves all rights not expressly granted under this Agreement.

3. Supplier obligations

3.1 The Supplier will use commercially reasonable efforts to make the Platform available in accordance with the SLA, except during planned maintenance windows notified to the Customer in advance.

3.2 The Supplier will implement reasonable technical and organisational security measures designed to protect Customer Data against unauthorised access, loss or destruction, as further described in the Data Processing Addendum at Schedule 1.

3.3 The Supplier may, in its sole discretion, make Updates to the Platform at any time. Updates may change, limit or remove features. The Supplier will use reasonable efforts to provide advance notice of material feature removals where practicable.

3.4 The Supplier will provide the level of customer support set out in Schedule 2 for the Customer’s selected Subscription Tier.

3.5 The Supplier does not provide legal, compliance, accounting or professional advice. The Platform is a software tool only. The Supplier does not guarantee that use of the Platform will ensure the Customer’s compliance with any specific law, regulation or regulatory requirement. The Customer is solely responsible for ensuring its use of the Platform meets its regulatory and compliance obligations. The Customer acknowledges that regulatory requirements may change, and the Supplier does not warrant that the Platform will always reflect the most current legal or regulatory requirements.

4. Customer obligations

4.1 The Customer must:

1. (a) ensure Authorised Users comply with this Agreement and are made aware of the terms applicable to their use;
2. (b) maintain the security and confidentiality of all login credentials and promptly notify the Supplier of any unauthorised access or suspected breach;
3. (c) use the Platform only in accordance with applicable law, this Agreement and the Documentation;
4. (d) ensure that all information the Customer provides to the Supplier is accurate, current and complete; and
5. (e) obtain all consents, authorisations and licences necessary for the Customer to provide Customer Data to the Supplier and to permit the Supplier to process it as contemplated by this Agreement.

4.2 The Customer is solely responsible for:

1. (a) determining its own legal and regulatory obligations and assessing whether the Platform is suitable for its compliance needs;
2. (b) ensuring its own compliance with applicable laws and regulatory obligations;
3. (c) the accuracy, quality, legality and appropriateness of all Customer Data;
4. (d) its compliance with Australian Privacy Law with respect to any Personal Information uploaded to the Platform;
5. (e) maintaining adequate back-ups of Customer Data independently of the Platform; and
6. (f) the acts and omissions of its Authorised Users as if they were the acts and omissions of the Customer.

4.3 The Customer must not use the Platform to:

1. (a) upload, transmit or store any data that infringes a third party’s Intellectual Property Rights;
2. (b) upload, transmit or store malicious code, viruses or harmful data;
3. (c) interfere with or disrupt the integrity or performance of the Platform or its underlying infrastructure;
4. (d) engage in any fraudulent, illegal or unauthorised activity;
5. (e) attempt to gain unauthorised access to any part of the Platform or its related systems; or
6. (f) use the Platform in a way that imposes an unreasonable or disproportionately large load on the Supplier’s infrastructure.

5. Fees and payment

5.1 The Customer must pay the Fees in the amounts and at the intervals specified in the Order Form and in accordance with the Pricing Schedule at Schedule 3.

5.2 If the Customer has selected monthly billing in the Order Form, Fees are payable monthly in advance from the Commencement Date. If the Customer has selected annual or biennial billing, Fees for the applicable Subscription Term are payable in advance on the Commencement Date and on each renewal of the Subscription Term.

5.3 The Supplier will issue invoices electronically to the Customer’s nominated billing contact. Where auto-charge is selected in the Order Form, the Customer authorises the Supplier to charge the nominated payment method via its third-party payment processor on each billing date without further notice.

5.4 All amounts payable under this Agreement are exclusive of GST. If any supply under this Agreement is subject to GST, the Supplier will issue a valid tax invoice and the Customer must pay the GST amount in addition to the relevant Fee.

5.5 The Customer must always maintain a valid payment method during the Subscription Term. If any payment is declined, reversed or otherwise fails, the Supplier may retry charging the Customer’s nominated payment method and any updated payment method provided by the Customer using the Supplier’s third-party payment processor. The Customer authorises the Supplier to make three attempts to process the payment. If payment remains outstanding after such attempts, the Supplier may take any of the actions specified in clause 5.6 below.

5.6 If any payment is not received by the due date, the Supplier may, without limiting its other rights:

1. (a) charge interest on the overdue amount at the Reserve Bank of Australia cash rate target as of the invoice date. Interest will be calculated daily on a simple interest basis from the due date until the date of actual payment;
2. (b) suspend the Customer’s access to the Platform in accordance with clause 10; and/or
3. (c) engage a debt collection agency or commence legal proceedings to recover the outstanding amount, with the Customer liable for all reasonable costs of recovery including legal costs on a solicitor-client basis.

5.7 The Supplier may increase the Subscription Fees no more than once in any 12-month period by providing the Customer with at least 30 days’ written notice, provided that any increase must be reasonable having regard to increases in operating costs, market conditions, or improvements to the Platform. If the Customer does not accept the increase, it may terminate this Agreement by giving written notice to the Supplier before the effective date of the increase, in which case no Early Termination Fee will apply.

5.8 All Fees paid are non-refundable except to the extent required by the Australian Consumer Law or expressly stated otherwise in this Agreement.

5.9 The Customer must raise any dispute in respect of an invoice within 14 days of receipt. Failure to raise a dispute within that period constitutes acceptance of the invoice. Disputed amounts must be the subject of a written notice to the Supplier setting out reasonable details of the dispute. Undisputed amounts remain payable by the due date.

6. Term and renewal

6.1 This Agreement commences on the Commencement Date and continues for the Initial Term specified in the Order Form. At the expiry of the Initial Term (and each Renewal Term), the Agreement will automatically renew for a further Renewal Term, unless either party gives written notice of non-renewal to the other no less than:

1. (a) 30 days before the end of the relevant term (for Month-to-Month subscriptions); or
2. (b) 60 days before the end of the relevant term (for 12-Month or 24-Month subscriptions).

6.2 If the Customer fails to give timely notice of non-renewal, the Agreement will automatically renew at the Fees applicable at the time of renewal (which may differ from those in the expiring term).

6.3 The Customer acknowledges that it is its responsibility to diarise and track renewal dates. The Supplier bears no responsibility for the Customer’s failure to give timely notice of non-renewal.

7. Intellectual property

7.1 All Supplier IP and the Platform is and remains the sole and exclusive property of the Supplier (or its licensors). Nothing in this Agreement transfers any Intellectual Property Rights in the Supplier IP to the Customer.

7.2 The Customer retains ownership of Customer Data. The Customer grants the Supplier a non-exclusive, royalty-free, worldwide licence during the Subscription Term to host, store, process, copy, transmit and display Customer Data as reasonably necessary to provide the Platform and perform its obligations under this Agreement.

7.3 The Supplier may use Customer Data to generate Aggregate Data, provided that such Aggregate Data does not reasonably identify the Customer or any individual. The Supplier owns all Aggregate Data and may use it for any lawful purpose including product improvement, benchmarking and analytics. Aggregate Data does not constitute Customer Data and the Supplier is not required to delete it upon termination.

7.4 If the Customer provides feedback, suggestions or ideas regarding the Platform (Feedback), the Customer assigns to the Supplier all right, title and interest in and to that Feedback, including all Intellectual Property Rights in the Feedback. To the extent any rights in the Feedback cannot be assigned, the Customer grants the Supplier a perpetual, irrevocable, worldwide, royalty-free, sub-licensable licence to use, reproduce, modify, incorporate and commercialise the Feedback without restriction or compensation to the Customer. For clarity, the Supplier may freely use Feedback to develop improvements, modifications or new features to the Platform and all Intellectual Property Rights in such improvements will belong solely to the Supplier.

7.5 The Customer will promptly notify the Supplier if it becomes aware of any actual or suspected infringement of the Supplier’s Intellectual Property Rights relating to the Platform.

8. Confidentiality

8.1 Each party must:

1. (a) keep the other’s Confidential Information confidential;
2. (b) not disclose Confidential Information to any third party except as permitted under this Agreement or with the other parties prior written consent; and
3. (c) use the other’s Confidential Information only to exercise its rights or perform its obligations under this Agreement.

8.2 Each party may disclose Confidential Information to its employees, officers, contractors and professional advisers on a need-to-know basis for the purposes of this Agreement, provided those persons are bound by obligations of confidentiality no less restrictive than those in this clause and the receiving party remains responsible for any breach of this clause by those persons.

8.3 A party may disclose Confidential Information to the extent required by law, regulation or a court or regulatory order, provided it gives the other party at least 10 Business Days notice (where permitted by law) and reasonably cooperates with any attempt to obtain a protective order.

8.4 Each party acknowledges that a breach of this clause 8 may cause irreparable harm for which monetary damages would be an inadequate remedy and that injunctive or other equitable relief may be appropriate.

8.5 The obligations in this clause 8 survive termination or expiry of this Agreement and continue for so long as the information remains Confidential Information.

9. Privacy and data

9.1 Each party must comply with Australian Privacy Law in connection with its activities under this Agreement.

9.2 The Supplier’s additional obligations with respect to Personal Information are set out in the Data Processing Addendum at Schedule 1, which is incorporated into this Agreement.

9.3 The Customer warrants that it has all necessary rights, consents and authorisations to collect, use and disclose Personal Information to the Supplier and to permit the Supplier to process Personal Information in accordance with this Agreement and the Data Processing Addendum.

9.4 The Customer must promptly notify the Supplier if it becomes aware of any actual or suspected security incident, breach of security, or unauthorised access relating to Personal Information or Customer Data in connection with the Platform.

9.5 The Customer is responsible for maintaining the security of its systems, login credentials and Authorised User access to the Platform.

10. Suspension

10.1 The Supplier may suspend the Customer’s access to the Platform (in whole or in part) immediately, without liability to the Customer, if:

1. (a) any Fees remain unpaid for more than 7 days after the due date;
2. (b) the Supplier reasonably believes the Customer or any Authorised User has breached clauses 2.4, 4.2 or 4.3 of this Agreement;
3. (c) suspension is necessary to protect the security, integrity or performance of the Platform or the Supplier’s other customers;
4. (d) the Supplier is required to do so by law or a regulatory authority; or
5. (e) a Force Majeure Event prevents or materially impairs the provision of the Platform.

10.2 The Supplier will use reasonable efforts to notify the Customer of a suspension and its reasons, before or promptly after suspension, except where prior notice is not practicable.

10.3 Access will be reinstated within a reasonable time after the circumstances giving rise to the suspension have been remedied to the Supplier’s reasonable satisfaction.

10.4 Fees will continue to accrue during any period in which the Platform is suspended due to the Customer’s breach of this Agreement or the Customer’s failure to pay Fees when due.

11. Termination

11.1 Either party may terminate this Agreement immediately by written notice if:

1. (a) the other party is in material breach of the Agreement and fails to remedy the breach within 14 days of receiving written notice specifying the breach; or
2. (b) the other party becomes insolvent, is placed into administration, liquidation or receivership, or makes any arrangement with its creditors.

11.2 The Supplier may terminate this Agreement immediately by written notice if:

1. (a) the Customer fails to pay any Fees that remain outstanding 30 or more days after the due date;
2. (b) the Customer commits a non-remediable breach; or
3. (c) in the Supplier’s reasonable opinion (acting in good faith), continued provision of the Platform to the Customer poses a material legal, reputational or security risk to the Supplier.

11.3 The Customer may terminate a 12-Month or 24-Month subscription for convenience by giving the Supplier 60 days’ written notice, subject to payment of an early termination fee equal to all Fees that would have been payable for the remainder of the then-current term, reflecting the Supplier’s genuine pre-estimate of the loss resulting from early termination (Early Termination Fee). For the avoidance of doubt, this clause 11.3 applies only to termination before the end of the then-current term. Termination at the end of a term is governed by clause 6.1. Month-to-Month subscriptions may be terminated in accordance with clause 6.1(a).

11.4 On termination or expiry of this Agreement for any reason:

1. (a) the licence granted under clause 2.1 immediately ceases and the Customer must immediately cease all access to the Platform;
2. (b) all Fees accrued but unpaid become immediately due and payable; and
3. (c) each party must cease using and return or destroy the other’s Confidential Information within 30 days (subject to each party’s rights to retain archival copies required by law or in automatic back-up systems provided the information is not accessed, recovered or used after termination and is deleted in the ordinary course of the recipient’s data management cycle).

11.5 Following termination or expiry, the Supplier will, on written request received within 30 days of the termination or expiry date, make Customer Data available for export in a commercially reasonable file format for a period of 30 days. After that 30-day period, the Supplier may delete Customer Data without further notice or liability. The Supplier may charge its then-current data export fee for this service.

11.6 Termination does not limit either party’s liability accrued prior to termination.

11.7 Clauses 1, 5.8, 7, 8, 9, 11.4, 11.5, 12, 13, 14, 15 and 19 survive termination or expiry of this Agreement.

12. Warranties and disclaimer

12.1 The Supplier warrants that:

1. (a) it has the right to grant the licence in clause 2.1;
2. (b) the Platform will operate substantially in accordance with the Documentation when used in accordance with this Agreement; and
3. (c) the Supplier will provide the Platform and related services with due care and skill and in compliance with laws applicable to the Supplier for its provision of the Platform.

12.2 Except as expressly provided in this Agreement and to the maximum extent permitted by law, the Supplier excludes all other representations, warranties, guarantees and conditions, express or implied, including any implied warranties of merchantability, fitness for a particular purpose or non-infringement. Any claim that the Platform infringes a third party’s intellectual property rights will be governed primarily by the indemnity in clause 14. The Supplier does not warrant that the Platform will be uninterrupted, error-free, secure, or available at all times, or that it will meet the Customer’s specific business, compliance or regulatory requirements.

12.3 The Platform is a general-purpose compliance management tool and does not constitute legal, regulatory or professional advice. The Supplier does not warrant that use of the Platform will ensure the Customer’s compliance with any specific law, regulation, standard or code.

12.4 The Customer warrants that:

1. (a) it has authority to enter into this Agreement;
2. (b) it has all necessary rights and consents in respect of the Customer Data;
3. (c) its use of the Platform will comply with all applicable laws; and
4. (d) the Customer Data and its use in the Platform will not infringe any third party rights or violate any applicable law.

Where a breach of clauses 12.4(b) or (d) gives rise to or is likely to give rise to a third-party claim against the Supplier, the Supplier’s rights in respect of that third-party claim will be governed by clause 14 and not by any separate warranty claim under this clause 12.4. This does not limit the Supplier’s right to bring a warranty claim for direct loss suffered as a result of a breach of clauses 12.4(b) or (d) where no third-party claim has been made.

12.5 Certain legislation, including the Competition and Consumer Act 2010 (Cth) (and the Australian Consumer Law), may imply guarantees and conditions or impose obligations that cannot be excluded. Nothing in this Agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by any legislation where to do so would cause part or all of this Agreement to be void or unenforceable (Non-Excludable Rights). The Supplier’s liability for breach of any Non-Excludable Right is limited, to the extent the Supplier is permitted to do so, to resupply of the relevant service or the payment of the cost of having those services resupplied.

12.6 Any analysis, reports, alerts, risk scores, recommendations or other outputs generated by the Platform are provided for informational purposes only and are intended to assist the Customer in its internal compliance processes. The Customer remains solely responsible for reviewing such outputs and for making all decisions relating to legal, regulatory or compliance obligations.

12.7 The Platform may incorporate or rely on data, content or services provided by third parties (including sanctions lists, identity verification services, public registries and other compliance data sources). As the Supplier does not control the creation, maintenance or distribution of such third-party data, it does not warrant and is not responsible for the accuracy, completeness, currency or reliability of that data, or for any errors, omissions or delays originating from those third-party sources. Where a Platform output is materially dependent on third-party data, the Customer acknowledges that the quality of that output is limited by the quality of the underlying third-party data and not by any failure of the Platform itself.

13. Limitation of liability

13.1 To the maximum extent permitted by law, in no event will either party be liable to the other for any:

1. (a) loss of profits, revenue or anticipated savings or opportunities;
2. (b) loss of data or corruption of data (other than as set out in clause 13.5);
3. (c) loss of business, contracts, goodwill or reputation;
4. (d) indirect, incidental, special, consequential, exemplary or punitive loss or damage;

whether arising in contract, tort (including negligence), breach of statutory duty or otherwise, even if that party has been advised of the possibility of such loss or damage. For the avoidance of doubt, nothing in this clause limits either party’s right to recover amounts expressly agreed as a Fee or charge under this Agreement, including any Early Termination Fee payable under clause 11.

13.2 Subject to clauses 13.3, 13.4 and 12.5, each party’s total aggregate liability to the other arising out of or in connection with this Agreement or the use of the Platform, whether in contract, tort (including negligence), breach of statutory duty or otherwise, in any 12-month period will not exceed the greater of:

1. (a) the total Fees paid by the Customer to the Supplier in the 12-months immediately preceding the first event giving rise to liability; or
2. (b) the annual Fees payable by the Customer under the Order Form for the then-current contract year.

13.3 The liability cap in clause 13.2 does not apply to:

1. (a) death or personal injury caused by a party’s negligence;
2. (b) fraud, fraudulent misrepresentation or wilful misconduct by a party or its personnel;
3. (c) breach of confidentiality obligations under this Agreement (each party’s aggregate liability for breach of its confidentiality obligations under this Agreement will not exceed two times the annual Fees payable under the Order Form in the contract year in which the breach occurred); or
4. (d) any liability that cannot be lawfully excluded under Australian law.

13.4 Where the Supplier fails to meet the service levels specified in the SLA, the Customer will be entitled to the remedies specified in Schedule 2. Those remedies are the Customer’s sole and exclusive remedy for the specific service level failures described in the SLA, but do not limit any other rights or remedies arising from a separate breach of this Agreement.

13.5 The Supplier is not liable for any Personal Information data breach, security incident or unauthorised access to Customer Data to the extent that the breach is caused by:

1. (a) a Third Party Service;
2. (b) a Sub-Processor acting outside the scope of the Supplier’s instructions;
3. (c) the Customer or any Authorised User; or
4. (d) any system, software or service not provided or controlled by the Supplier.

14. Indemnity

14.1 The Customer will indemnify, defend and hold harmless the Supplier and its officers, directors, employees and contractors from and against any claims, liabilities, damages, losses, costs and expenses (including reasonable legal costs on a solicitor-client basis) to the extent arising from:

1. (a) any breach of this Agreement by the Customer or any Authorised User, including use of the Platform not in accordance with the Documentation;
2. (b) any Customer Data infringing or allegedly infringing a third party’s Intellectual Property Rights or violating any applicable law (including privacy or data protection laws) or any contractual obligation;
3. (c) any third-party claim or costs arising from any regulatory investigation or enforcement action relating to the Customer’s or an Authorised User’s use of the Platform, to the extent caused by the Customer’s or Authorised User’s own acts or omissions; or
4. (d) any other act or omission of the Customer or its Authorised Users in connection with their use of the Platform that results in a third-party claim against the Supplier.

14.2 The Supplier will indemnify the Customer against any third-party claim alleging that the Platform (as provided by the Supplier and used in accordance with this Agreement) infringes that third party’s Intellectual Property Rights in any jurisdiction in which the Customer is authorised to use the Platform under this Agreement.

14.3 If a claim arises under clause 14.2, the Supplier may, at its option and expense:

1. (a) procure for the Customer the right to continue using the Platform;
2. (b) modify or replace the Platform so that it becomes non-infringing while providing substantially equivalent functionality; or
3. (c) if the above options are not commercially reasonable, terminate the affected services and provide a pro rata refund of any prepaid Fees for the unused portion of the Term.

14.4 The indemnity in clause 14.2 does not apply to claims arising from:

1. (a) modifications to the Platform not made by the Supplier;
2. (b) use of the Platform in combination with products or services not authorised in writing by the Supplier; or
3. (c) Customer Data.

14.5 A party seeking indemnification under this clause 14 (the Indemnified Party) must:

1. (a) notify the other party (the Indemnifying Party) of the claim in writing within 10 Business Days of becoming aware of the claim;
2. (b) give the Indemnifying Party prompt and complete control of the defence and settlement of the claim;
3. (c) provide all reasonable cooperation and assistance to the Indemnifying Party in the defence of the claim, at the Indemnifying Party’s reasonable cost and expense; and
4. (d) use reasonable endeavours to mitigate its losses in connection with the claim.

14.6 Where the Indemnifying Party has assumed control of the defence of a claim:

1. (a) it will appoint legal counsel of its choice and may conduct the proceedings and negotiate a settlement as it sees fit, acting reasonably and in good faith;
2. (b) it must keep the Indemnified Party reasonably informed of the progress of the claim and provide copies of material correspondence and pleadings upon request;
3. (c) the Indemnified Party may, at its own cost and expense, participate in the defence and settlement of the claim with its own legal counsel; and
4. (d) the Indemnifying Party must not settle any claim or make any admission of liability on behalf of the Indemnified Party without the Indemnified Party’s prior written consent (not to be unreasonably withheld, conditioned or delayed), unless the settlement involves only the payment of money damages by the Indemnifying Party, includes a full release of the Indemnified Party, and does not include an admission of fault by the Indemnified Party.

15. Dispute resolution

15.1 If a dispute arises out of or in connection with this Agreement (Dispute), the parties must follow the process in this clause 15 before commencing legal proceedings, except where urgent interlocutory or injunctive relief is sought. Unless otherwise agreed in writing, each party must continue to perform its obligations under the Agreement while the Dispute is being resolved.

15.2 Either party may give the other written notice of the Dispute (Dispute Notice). Within 10 Business Days of the Dispute Notice, senior representatives of each party must meet (in person, by telephone or video conference) and attempt in good faith to resolve the Dispute. All communications in connection with this process are made on a without prejudice basis and are confidential, and may not be used or disclosed in any subsequent proceedings except with the written consent of both parties.

15.3 If the Dispute is not resolved within 20 Business Days of the Dispute Notice (or such longer period as the parties agree in writing), either party may refer the Dispute to mediation by giving written notice to the other party (Mediation Notice). Upon referral, the parties must participate in mediation in good faith. The mediator will be agreed by the parties within 5 Business Days of the Mediation Notice. If the parties cannot agree on a mediator within that period, either party may request the appointment of a mediator by the Resolution Institute (or its successor body). The mediator will not have authority to impose a binding resolution on the parties. All mediation proceedings are conducted on a without prejudice basis and are confidential.

15.4 If the Dispute is not resolved within 30 Business Days of the Mediation Notice (or such longer period as the parties agree in writing), either party may commence court proceedings. If a party refuses or fails to participate in mediation within 10 Business Days of the Mediation Notice, the other party may commence court proceedings immediately.

15.5 The costs of the mediator will be shared equally between the parties unless the parties otherwise agree in writing. Each party will otherwise bear its own costs of the dispute resolution process.

16. Force majeure

16.1 Neither party will be liable to the other for any delay or failure to perform its obligations under this Agreement (other than payment obligations) to the extent directly caused by a Force Majeure Event, provided the affected party:

1. (a) notifies the other party in writing within 10 Business Days of becoming aware of the Force Majeure Event, including reasonable details of the nature, expected duration and impact of the event on the affected party’s obligations, provided that failure to notify within this period will not defeat the affected party’s rights under this clause except to the extent the other party is materially prejudiced by that failure;
2. (b) provides written updates to the other party every 10 Business Days during the continuance of the Force Majeure Event, including details of the steps being taken to mitigate the event and an estimated timeline for resumption of performance;
3. (c) uses reasonable efforts to mitigate the effect of the Force Majeure Event and to resume performance as soon as reasonably practicable; and
4. (d) promptly notifies the other party when the Force Majeure Event has ceased and normal performance has resumed.

16.2 If a Force Majeure Event continues for more than 90 days, either party may terminate this Agreement by giving 10 Business Days’ written notice to the other party. Termination under this clause will not give rise to any liability on either party other than for Fees accrued and unpaid as at the date of termination. For the avoidance of doubt, no Early Termination Fee will be payable as a result of termination under this clause.

17. Assignment

17.1 The Customer must not assign, transfer or otherwise deal with any of its rights or obligations under this Agreement without the Supplier’s prior written consent, not to be unreasonably withheld, conditioned or delayed. The Customer must also obtain the Supplier’s prior written consent before any change of control of the Customer takes effect. The Supplier must respond to any written consent request within 15 Business Days. If the Supplier does not respond within that period, consent will be deemed to have been given.

17.2 For the purposes of this clause, a change of control means any transaction or series of transactions resulting in a person or entity acquiring direct or indirect control of more than 50% of the voting rights or issued share capital of the Customer.

17.3 The Supplier may assign or transfer this Agreement, including all its rights and obligations, to a Related Body Corporate or to a purchaser of all or substantially all of the Supplier’s business or assets to which this Agreement relates, without the Customer’s consent, provided that:

1. (a) the Supplier gives the Customer at least 60 days prior written notice of the proposed assignment;
2. (b) the assignee executes a written deed of assumption confirming it is bound by all the Supplier’s obligations under this Agreement as a condition of the assignment taking effect; and
3. (c) the standard and continuity of service provided under this Agreement is not materially diminished as a result of the assignment.

17.4 Notwithstanding clause 17.3, the Customer may terminate this Agreement if the proposed assignee is a direct competitor of the Customer or if the Customer can reasonably demonstrate that the assignment poses a material conflict of interest, provided such notice is given within 30 days of receiving the Supplier’s notice under clause 17.3(a). Termination under this clause will not attract any Early Termination Fee.

18. Subcontracting and third-party service providers

18.1 The Supplier may engage subcontractors and third-party service providers (including cloud infrastructure providers) to assist in providing the Platform. The Supplier will ensure that all subcontractors and third-party service providers with access to Customer Data are bound by confidentiality, security and data protection obligations no less protective than those in this Agreement.

18.2 Subject to clause 18.3, the Supplier remains responsible for the performance of its subcontractors and third-party service providers to the same extent as if the Supplier had performed the relevant services itself.

18.3 The Supplier’s responsibility under clause 18.2 does not extend to the following categories of third-party provider, provided the Supplier has used reasonable care in selecting the relevant provider and continues to monitor their performance on an ongoing basis:

1. (a) payment processors or payment services providers used to process payments or direct debits;
2. (b) providers of identity verification, customer due diligence, sanctions screening or other regulatory data services integrated into the Platform;
3. (c) providers of cloud hosting, infrastructure, communications or other technology services supporting the Platform; or
4. (d) third-party products, integrations or services selected, enabled or requested by the Customer for use with the Platform.

In those circumstances, the Supplier’s liability for the acts, omissions, availability or performance of those providers is limited to the extent of the Supplier’s failure to exercise reasonable care in their selection or ongoing monitoring.

18.4 The Supplier will give the Customer not less than 30 days prior written notice of any change to a material third-party provider falling within clause 18.3(b), including the identity of the incoming provider and the expected transition date.

18.5 The Customer’s use of Third Party Services may be subject to the terms and conditions of the relevant third-party provider. The Supplier will make reasonable efforts to notify the Customer of any material third-party terms that affect the Customer’s use of the Platform.

19. Amendments

19.1 The Supplier may amend these General Terms and Conditions (excluding the Order Form) by giving the Customer at least 30 days’ prior written notice identifying the specific changes made, the reason for each change, and whether the Supplier considers any change to be a material adverse amendment.

19.2 If an amendment materially and adversely affects the Customer, including any increase in Fees, reduction in service level commitments, or change to the data handling, security or liability regime, the Customer may terminate this Agreement by written notice given before the effective date of the amendment, without incurring an Early Termination Fee. Continued use of the Platform after the effective date will not constitute acceptance of a materially adverse amendment where the Customer had no reasonable opportunity to migrate to an alternative service within the notice period.

19.3 The Supplier may implement amendments with reduced or immediate notice where required to address an emergency security vulnerability (with written notice given as soon as practicable) or to comply with a legally mandated requirement by a specified date (with as much prior notice as is reasonably practicable). No termination right arises from an emergency security amendment.

19.4 Amendments to the Order Form require the written agreement of both parties. In the event of any conflict between an amendment made under clause 19.1 and the Order Form, the Order Form prevails.

20. Notices

20.1 Notices under this Agreement must be in writing and addressed to the party’s contact details set out in the Order Form (or as updated by written notice). Notices may be given by:

1. (a) email (effective on transmission, unless the sender receives an automated delivery failure notice);
2. (b) hand delivery (effective on delivery); or
3. (c) prepaid post (effective 3 Business Days after posting within Australia or 7 days if posting outside of Australia).

21. General

21.1 Governing Law. This Agreement is governed by the laws of Victoria, Australia. Each party submits to the non-exclusive jurisdiction of the courts of Victoria.

21.2 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements, representations and understandings.

21.3 Waiver. A waiver of any right or remedy under this Agreement is only effective if given in writing. A failure or delay to exercise a right does not constitute a waiver.

21.4 Severability. If any provision of this Agreement is found to be invalid or unenforceable, that provision will be severed to the minimum extent necessary, and the remainder of the Agreement will continue in full force.

21.5 No Agency. Nothing in this Agreement creates a partnership, joint venture, employment or agency relationship between the parties.

21.6 Counterparts. The Order Form may be executed in counterparts (including electronic signatures), each of which constitutes an original.

21.7 Electronic Signatures. Electronic signatures applied to the Order Form (including via DocuSign or equivalent) are valid and binding.

21.8 Electronic Acceptance. This Agreement may be entered into electronically. By creating a Trancher account, clicking “I agree”, “Accept”, or a similar button or checkbox referencing this Agreement, or by accessing or using the Platform, the Customer agrees to be bound by this Agreement. If the individual accepting this Agreement does so on behalf of a company, organisation or other legal entity, that individual represents and warrants that they have authority to bind that entity to this Agreement, in which case “Customer” refers to that entity. The parties agree that this method of acceptance constitutes a valid and binding agreement for the purposes of applicable electronic transactions legislation, including the Electronic Transactions Act 1999.

Schedule 1 – Data Processing Addendum

This Data Processing Addendum (DPA) forms part of the Agreement between the Supplier and the Customer. Capitalised terms not defined in this DPA have the meanings given in the General Terms and Conditions.

DPA 1. Roles of the parties

DPA 1.1 The Customer is responsible for the Personal Information it uploads to the Platform and for ensuring that its collection and use of that Personal Information complies with applicable privacy laws. The Supplier will process such Personal Information on behalf of the Customer and in accordance with this DPA. The Supplier may also use Personal Information uploaded by the Customer to create Aggregate Data, provided that such data does not identify, and cannot reasonably be used to identify, the Customer or any individual. The Supplier may use such Aggregate Data for its own purposes, including analytics, product improvement and service optimisation.

DPA 1.2 The Supplier may also collect and process Personal Information of Authorised Users for its own purposes, including account management, security and product improvement. In doing so, the Supplier acts on its own behalf in relation to that Personal Information and will comply with applicable privacy laws and its Privacy Policy.

DPA 2. Types of personal information and purposes

DPA 2.1 The Customer may upload to the Platform Personal Information falling within the following categories:

1. (a) identification and contact information of individuals (including names, email addresses, job titles, details of identification documents such as driver licences and passports);
2. (b) financial and accounting information (including transaction records, financial reports, audit data);
3. (c) compliance-related records and documentation relating to individuals;
4. (d) any other information required from time to time to conduct due diligence on an individual for the purpose of complying with regulatory requirements.

DPA 2.2 The Supplier will process Personal Information only to the extent necessary to:

1. (a) provide the Platform and related services;
2. (b) comply with its legal obligations;
3. (c) enforce this Agreement; and
4. (d) generate Aggregate Data in accordance with clause 7.3 of the General Terms and Conditions.

DPA 2.3 The Supplier will not sell, rent or otherwise commercialise Personal Information.

DPA 3. Supplier’s data protection obligations

DPA 3.1 The Supplier will:

1. (a) process Personal Information only:
   1. (i) on and in accordance with the Customer’s documented instructions (including as set out in this Agreement and as given through the Customer’s use of the Platform);
   2. (ii) as required by applicable law; or
   3. (iii) to create Aggregate Data in accordance with clause 7.3.
2. (b) implement and maintain technical and organisational security measures appropriate to the risk, including (where appropriate) encryption, access controls, audit logging and regular security testing;
3. (c) implement logical controls designed to ensure that Customer Data is segregated from the data of other customers of the Platform;
4. (d) maintain reasonable backup procedures for Customer Data stored within the Platform in accordance with its standard operational practices;
5. (e) ensure persons authorised to process Personal Information are subject to appropriate confidentiality obligations;
6. (f) assist the Customer (at the Customer’s cost) in responding to access and correction requests received from individuals, to the extent the Supplier has the relevant information; and
7. (g) promptly notify the Customer of any Personal Information data breach affecting Customer Data (Notifiable Data Breach) in accordance with DPA 4.

DPA 3.2 The Supplier may store or process Customer Data outside Australia provided that it takes reasonable steps to ensure that any overseas recipient handles the Personal Information in a manner consistent with the Australian Privacy Principles.

DPA 3.3 The Supplier may disclose Personal Information where required by law or a binding order of a court or regulator. Where legally permitted to do so, the Supplier will use reasonable efforts to notify the Customer before making such disclosure.

DPA 4. Data breach notification

DPA 4.1 If the Supplier becomes aware of a Notifiable Data Breach affecting Customer Data, it will notify the Customer without undue delay and, where feasible, within 72 hours of becoming aware. The notification will include, to the extent known:

1. (a) a description of the nature of the breach;
2. (b) the categories and approximate number of individuals affected;
3. (c) the likely consequences; and
4. (d) the measures taken or proposed to address the breach.

DPA 4.2 The Customer is responsible for determining whether a breach meets the threshold for notification to the Office of the Australian Information Commissioner (OAIC) under the Notifiable Data Breaches scheme and for making any required notifications to the OAIC and affected individuals.

DPA 4.3 The Supplier will cooperate reasonably with the Customer in investigating and remediating the breach.

DPA 5. Sub-processors

DPA 5.1 For the purpose of this DPA, sub-processor means a third party engaged by the Supplier to process Personal Information on behalf of the Supplier in connection with the provision of the Platform (Sub-Processor).

DPA 5.2 The Customer authorises the Supplier to engage Sub-Processors to process Personal Information for the purposes of providing the Platform (Sub-Processor Consent). The Supplier will maintain an up-to-date list of Sub-Processors which can be provided to the Customer upon request. The Supplier will provide notice of material changes to Sub-Processors.

DPA 5.3 The Supplier will:

1. (a) ensure Sub-Processors are bound by contractual data protection obligations requiring them to protect Personal Information in accordance with the Australian Privacy Principles; and
2. (b) remain responsible for ensuring its Sub-Processors comply with those obligations, subject to the limitations and exclusions of liability set out in this Agreement.

DPA 5.4 For clarity, certain Third Party Services integrated with the Platform (including payment processors, infrastructure providers and external data providers) may independently process Personal Information in accordance with their own privacy policies and terms. References to Sub-Processors in this DPA do not expand the Supplier’s responsibility for Third Party Services beyond the limitations set out in this Agreement.

DPA 6. Return and deletion of data

DPA 6.1 On termination or expiry of this Agreement, the Supplier will make Customer Data (including Personal Information) available for export in accordance with clause 11.5 of the General Terms and Conditions.

DPA 6.2 After the 30-day export window has elapsed, the Supplier will delete or de-identify Customer Data (including Personal Information) within a reasonable period, except where retention is required by law or necessary for the establishment, exercise or defence of legal claims. The Supplier will confirm deletion in writing on request. Customer Data may remain in the Supplier’s backup systems for a limited period following deletion but will remain protected in accordance with this DPA until permanently overwritten.

DPA 7. Audit rights

DPA 7.1 No more than once per year, the Customer may (at its own cost) audit the Supplier’s compliance with this DPA, provided that:

1. (a) at least 30 days’ written notice is provided to the Supplier;
2. (b) the audit is conducted during Business Hours with minimal disruption;
3. (c) the Customer uses an independent auditor bound by appropriate confidentiality obligations; and
4. (d) the auditor does not access systems or data belonging to other customers.

DPA 7.2 In lieu of an on-site audit, the Supplier may satisfy this obligation by providing the Customer with its most recent third-party security certification or audit report under confidentiality conditions.

Schedule 2 – Service Level Agreement

This Service Level Agreement (SLA) forms part of the Agreement between the Supplier and the Customer. Capitalised terms not defined in this SLA have the meanings given in the General Terms and Conditions.

SLA 1. Uptime commitment

The Supplier will use commercially reasonable efforts to make the Platform available 99.5% of the time in each calendar month, excluding Excluded Downtime (Monthly Uptime Target).

SLA 2. Service credits

No service credit is payable where the Supplier meets or exceeds the Monthly Uptime Target of 99.5%. A service credit only becomes available where the Monthly Uptime Percentage falls below 99.5% in a calendar month, in which case the credit is calculated as follows:

Service credits are applied as a credit against the next invoice. They are not refundable as cash and may not exceed the monthly Subscription Fees for the affected month. To claim a service credit, the Customer must submit a written request within 14 days of the end of the affected calendar month.

SLA 3. Support

Priority classifications are determined by the Supplier using its reasonable discretion. Response times are targets only and do not form part of the Monthly Uptime commitment. The Supplier does not guarantee resolution within any particular timeframe.