Terms & Conditions

Introduction

These terms and conditions (‘Terms’ or ‘Agreement’) form an agreement and apply when we, the Australian Financial Crimes Exchange Ltd (ACN 604 942 618) (“AFCX”, “we”, “our” and “us”), supply our Information Services and Information to you (“Customer”, “you” and “your”)

In this Agreement:

‘AFCX IQ Portal’ means the information sharing web portal through which you obtain access to Information and receive the Information Services.

‘Customer’ means a corporate entity that has been approved by us, in our sole discretion, as eligible to receive our Information Services.

‘Data Breach’ means any act or omission by you or your Personnel that compromises, either directly or indirectly and whether wholly or in part, the security, confidentiality or integrity of the Information, Information Services and/or the AFCX IQ Portal.

‘Laws’ means any statute, law, regulation, ordinance, rule, judgment, order, decree, by-law, approval, resolution, order, directive, guideline, policy or other similar form of decision of, or determination by, or any interpretation or adjudication, in each case, by any concerned Government agency having jurisdiction over the matter in question in Australia as may be applicable to the AFCX IQ Portal, the Parties, the Information or the subject matter of these Terms, as amended or replaced from time to time, including for the avoidance of doubt, the Privacy Laws.

‘Information’ means information (including any Personal Information) supplied or made available by the AFCX to you through the AFCX IQ Portal.

‘Information Services’ means the services provided by the AFCX from time to time via the AFCX IQ Portal pursuant to these Terms, including the provision of Information to you.

‘Personal Information’ has the meaning given to that term in the Privacy Act 1988 (Cth).

‘Personnel’ means an Australian-based employee, agent, contractor, officer, director, auditor and adviser of that Party, and includes your Registered Users.

‘Privacy Laws’ means the Privacy Act 1988 (Cth) and includes instruments and codes made under the Privacy Act, including any modification or re-enactment of it or legislation enacted in substitution for it (or any part of it).

‘Registered User’ means a person who is based in Australia and is authorised by a Customer to access the AFCX IQ Portal for and on behalf of the Customer.

‘Terms of Use’ means the terms governing your (and your Registered User’s) use of the AFCX IQ Portal, amended or substituted from time to time, a copy of the current version is here.
Terms used in this Agreement that are defined in the Privacy Act 1988 (Cth) have the defined meaning unless the context otherwise requires.

1.    Supply of Information & Information Services to You

1.1.    Subject to these Terms (including the payment of our fees & charges), after we accept your request to become a Customer, we shall make available and supply our Information Services to you while you remain a Customer.

2.    Limitations of the Information

2.1.    The provision of our Information Services involves processing and dealing with any Personal Information you submit to us. You acknowledge that the quality of the Information we are able to provide to you may be directly related and/or impacted by the information (or lack of information) you provide us in the search query in the AFCX IQ Portal.

2.2.    The Information disclosed to you is based on or may refer to information (or some information) that you or a third party has disclosed to us, including a suspicion or report that unlawful activity has or may have occurred.  The Information may also include details of victims of the relevant activity.  For further information on use of the Information, see 4 below. 

3.    Provision of Information Services

3.1.    We supply our Information Services via online means through communication links and networks, and the availability of our Information Services rely on the availability of those links and/or networks. We’ll use reasonable efforts to make sure our Information Services are available, but we’re not responsible if the links and/or networks or the AFCX IQ Portal are unavailable at any time, and we do not guarantee that our Information Services will be continuously available or supplied within a certain timeframe, or at all.

3.2.    To access the AFCX IQ Portal you will need to use an up-to-date operating system and software.

3.3.    You agree to comply with these Terms and follow any reasonable processes, policies and instructions we provide from time to time in relation to your use the AFCX IQ Portal, including our Terms of Use. If we change or introduce new our processes, policies or instructions and we think those changes will affect you, we’ll take reasonable steps to let you know.

4.    Your Use, Disclosure & Storage of the Information

4.1.    Your use of the Information

(a)    You can only use the Information Services and Information for your own internal business use and for the sole purpose of identifying, investigating, preventing and taking action in relation to actual or suspected fraud, fraudulent activity and/or financial crime.

(b)    You accept the Information on an ‘as is’ basis in respect of its accuracy, relevance, currency and completeness.  The AFCX IQ Portal may contain partial information or limited characteristics relating to individual, transaction or event, which may not be revealed if you don’t search the particular characteristics in the search query.  

(c)    The Information may be used as an indicator to undertake further investigation or assessment by you.  You should follow your standard processes and procedures when considering Information.  You are responsible for assessing the value and utility of the Information to you, and for any business and/or other decisions you make, regardless of whether you base them on or have regard to the Information or not.

(d)    The Information that we deliver electronically in the form of a search result can be securely saved onto your computer system or printed out for your internal files and processes. You agree that you will not reproduce, modify, save or adapt the Information in any other way.

(e)    You must not re-sell, re-package, commercially exploit or otherwise use the Information (or the Information Services) in any way other than as set out in this Clause 4.

(f)    The AFCX owns copyright in the compilation of the Information used in the supply of our Information Services to you, and in the search results we supply to you when you receive our Information Services. You shall not do anything to adversely impact or interfere with our intellectual property rights in relation to the Information or the AFCX IQ Portal.

4.2.    Disclosure of Information by you

(a)    The Information is confidential and valuable to us, and others. You shall keep the Information confidential and only disclose the Information to your Personnel who need to know and have obligations of confidence to you that are no less onerous than those set out in these Terms.  The Information, and the existence of the Information and these Terms, cannot be disclosed to any customer or potential customer of yours.

(b)    Your Personnel shall only use the Information to perform services for and on behalf of you and in accordance with the requirements in these Terms.  If any of your Personnel cease to provide services to you, you shall ensure that their access to the Information is promptly removed.

(c)    You agree to comply with Privacy Laws in relation to the Information. You will not do anything or omit to do anything with Personal Information within the Information that might or will cause the AFCX or any other customer of the AFCX to breach its or their obligations under Privacy Laws. 

4.3.    Storage of Information

(a)    You shall ensure that the Information is secure at all times; protected from misuse, interference, loss, unauthorised access, modification or disclosure; stored in a manner to reasonably protect the Information and in such a way that will identify if there has been a breach of confidentiality and the details of that breach; and treated in accordance with the requirements set out in these Terms.  You shall also use reasonable endeavours to ensure that you are not the subject of a Data Breach that may impact or adversely affect the Information.

5.    Information we collect from you

5.1.    You may be disclosing Personal Information to us in order to receive the Information Services.

5.2.    You agree to provide any notifications to individuals and obtain any consents that may be required under Privacy Laws or as a result of your commercial obligations with a person before you request our Information Services and disclose their personal information to us.  

5.3.    You warrant that your provision of information to us, and the use by us of that information in accordance with these Terms, will not infringe the intellectual property or other rights of any person.

5.4.    We collect information from you when you request and/or acquire our Information Services, such as that a search was undertaken by you on the AFCX IQ Portal.  

5.5.    You must provide us, at a minimum, information for two (2) fields in the search query. You agree to use all reasonable efforts to make sure that any information you give us is accurate, complete and fulsome.

5.6.    We do not retain and/or store the information that you enter in the search query field in the AFCX IQ Portal, but we may retain certain metadata that a search was undertaken and by whom and if a match was detected or not.  To the extent that the AFCX retains this information, you agree that the AFCX can use that as permitted by Privacy Laws and these Terms.

5.7.    For details of our Privacy Policy, see here.

6.    Breach by the Participant

6.1.    If you or any of your Personnel become aware of a breach of these Terms (including a Data Breach) (‘Event’), you shall take immediate action to:

(a)    notify us as soon as practicable, but in any event within 24 hours of becoming aware of the Event, providing as much detail as possible to the AFCX it to be informed as the effect or possible effect of the Event;

(b)    establish and implement appropriate steps to prevent further breach;

(c)    in respect of a Data Breach, promptly provide (but in any event within 24 hours of becoming aware of the Data Breach) us with information of the Data Breach, with sufficient details regarding, among other things, the circumstances, impacts, effect, extent and results of the Data Breach to enable the AFCX to take such action it deems appropriate, including to comply with any obligations it has under Privacy Laws, contractual arrangements with third parties or otherwise in relation to the Data Breach.

(d)    You will continue to keep us reasonably updated on your investigations regarding the Data Breach as and when information becomes available and fully co-operate with us and promptly provide, upon request, reasonable access to your systems and/or documentation in connection with any investigation of a Data Breach (except where the provision of access would cause you to breach the confidence of a third party or would cause you to breach Privacy Laws);

(e)    notify us of the proposed remediation steps in relation to the Incident described in this clause 4.1 as soon as reasonably practicable but in any event within five (5) business days after becoming aware of the Incident; and

(f)    provide the AFCX with estimated timeframes and reasonable updates regarding the implementation of those steps to ensure remediation of the Incident as soon as practicably possible.

7.    Contact Person

7.1.    You agree to make available to us one contact person within your organisation (and to promptly notify us if they leave or are replaced). That person will be responsible for liaising with us about the requirements of, and your obligations under, these Terms, as well as nominating, managing and supervising your Registered Users.

8.    Log In Credentials & Passwords

8.1.    For security and related reasons you must provide us with up-to-date and valid email addresses for any Registered User. If, for any reason, a Registered User changes their email address, you must notify us immediately.

8.2.    You (and each of your Registered Users) agree to keep any username(s), password(s) or other identifier(s) (‘Identifiers’) we give you or permit you to use in relation to the AFCX IQ Portal confidential and secret.

8.3.    You also agree that any Identifiers we give you will not be transferred between Registered Users or disclosed to any third party. You will promptly tell us if an Identifier has been compromised or is no longer required or if a Registered User should no longer have access to the AFCX IQ Portal or the Information Services.

8.4.    If we ask you to stop using certain Identifiers or use replacement Identifiers we provide, you agree to use those immediately.

9.    Training & Responsibility for your Personnel

9.1.    You are responsible for training your Registered Users on the obligations placed on a Customer under these Terms, and the Terms of Use.  

9.2.    You are responsible for the acts, statements and omissions of your Registered Users and Personnel, and all use of the Identifiers. You agree that if a Registered User breaches the Terms of Use, this constitutes a breach of these Terms.

10.    Our charges

10.1.    You must pay us:

(a)    any set up or joining fee we charge in relation to the AFCX IQ Portal, which is currently $AUD5,000 per organisation;

(b)    our charges for the Information Services as set out in our invoice, which are currently $AUD10,000 per annum;

(c)    any automation fee (if applicable);

(d)    our charges for additional Registered Users (if you have more than five Registered Users at any one time) of $350 per Registered User per annum (or part thereof); and

(e)    GST.

10.2.    We will tell you our current fees and charges (if they differ from the above) before you use our Information Services and will send you invoices for all our fees and charges.  

10.3.    If you add additional Registered Users part-way through your annual Membership period, we shall charge you the full additional Registered User fee(s) to provides the Registered User access to the Information Services up to the date of your Membership renewal for the Information Services.  

10.4.    Our fees are charged annually that you must pay in advance, commencing on the date we accept you as a Customer or in any automatic Membership renewal notice sent to you in accordance with these Terms, which will be automatically charged to you each year. The Membership renewal fee in any year will include the highest number of Registered Users you had at any one time during the previous term.

10.5.    Unless otherwise agreed in writing, all fees and charges are non-refundable.

10.6.    If you do not pay us by the due date for payment, this will constitute a breach of these Terms and we may remove your access to the AFCX IQ Portal, without further notice to you.

10.7.    You agree to keep confidential any other terms and conditions of supply of our Information Services to you, including additional fees, charges and pricing arrangements under these Terms and any other agreement between us, except to the extent that such terms are generally known to the public, other than as a result of your failure to comply with the obligations of confidentiality in these Terms.

11.    Ownership of Assets

11.1.    We warrant that the AFCX IQ Portal is owned and/or licensed by the AFCX and does not infringe the intellectual property rights of a third party.

11.2.    We have also developed information technology, software and documentation that we may use to provide the Information Services to you. We have copyright and other intellectual property rights in those things. You agree that you will not copy (in whole or in part) our intellectual property, modify, adapt, reverse engineer or knowingly infect or adversely affect any of them with viruses.

12.    Liability

12.1.    The Parties warrant that this Agreement constitutes a legal, valid and binding obligation on each party and that it has been accepted and/or signed by its authorised representative.

12.2.    As stated above, when we provide Information and the Information Services to you, we rely on information provided to us by others. While we aim to provide quality search results to you, you understand that we do not independently check information supplied to us by others, the Information or the compilation of Information by and results from the AFCX IQ Portal. You also understand that Information may be out of date and not comprehensive.

12.3.    To the greatest extent at Laws, the AFCX excludes all statutory or implied representations, conditions, warranties and terms relating to the Information, Information Services and these Terms. We are not liable to you or to anyone else for any loss or damage arising out of, or in connection with, the Information, the Information Services, the actions you take in relation to the Information and/or this agreement, including loss of profit or income or indirect, consequential, special or incidental loss or damage.

12.4.    To the greatest extent permitted under Laws, our total aggregate liability for any loss or damage not excluded under these Terms is limited to $10 in any year. Our total liability for any loss or damage under a statutory or implied representation, condition, warranty, term or guarantee that we are unable to exclude by Law, is limited to the extent permitted by Law, to us re-supplying the relevant services to you, or, at our option, us refunding to you the amount you paid us for the Information Service to which your claim relates.

12.5.    You indemnify us for any loss we suffer or liability we incur due to:

(a)    any misuse of the Information Services or the Information we supply you; and

(b)    a Data Breach and any breach of these Terms by you and/or your Personnel.

12.6.    Except where the matter relates to a breach by us of the warranty in clause 11.1, you agree to provide us with reasonable co-operation (at your own expense) in the handling of any dispute, complaint, investigation or litigation involving a third party, that arises as a result of your use of our Information Services including disputes, complaints, investigations or litigation that arises out of or relates to the Information supplied to you and/or action or inaction you take as a result of the Information. Your co-operation includes providing us, in a timely manner, with relevant documents and any other reasonable assistance that may be required in the course of dealing with such matters. It may, in some situations, involve you being joined as a party to litigation in addition to or instead of the AFCX.

12.7.    You shall co-operate with any reasonable request (including but not limited to a request by us to audit your compliance with your obligations under these Terms) of the AFCX concerning the provision of Information to you pursuant to these Terms, except to the extent that such co-operation would cause you to breach Laws or confidentiality obligations to third parties. In these circumstances, you agree to cooperate to the greatest extent possible. You also agree to co-operate with us and to deal with and address any suspected breaches arising from any audit conducted by or on behalf of us.

13.    Compliance with Laws

13.1.    The AFCX shall comply with Privacy Laws in the provision of any Personal Information in the Information Services.

13.2.    You agree to comply with Laws in respect of your receipt of the Information Services, use of the AFCX IQ Portal and in relation to the Information. You also agree to comply with Privacy Laws in respect of any Personal Information:

(a)    in the Information (whether or not you are bound to do so under Privacy Laws); and

(b)    you collect, use and disclose in connection with these Terms.

14.    Term & Termination

14.1.    This agreement continues and in the case of an annual subscription, automatically renews each year for another 12 months, unless and until either of the AFCX or you terminates it at any time by giving 30 days’ written notice to the other.

14.2.    Any outstanding fees or charges for the Information Services up to and including the date of termination, shall be payable by you within 7 days’ of receiving a request by the AFCX for payment.

14.3.    On termination of this agreement, clauses 4, 5.3, 5.6, 6.1, 7, 10, 11, and 12 and any definitions required to give effect to those clauses survive and you continue to be bound by them.

14.4.    The AFCX may, in our sole discretion, suspend or terminate this Agreement or the provision of the Information Services to you immediately without notice if:

(a)    do not pay our fees and charges within 30 days of us sending a valid tax invoice;

(b)    you become insolvent or have an administrator appointed;

(c)    you breach clause 4; experience a Data Breach, or provide a notification to us under clause 6.1;

(d)    you fail to promptly follow any reasonable direction from us with respect to the confidential and/or security of Information; and/or

(e)    we reasonably believe you are not complying with any or all of your obligations in these Terms including in relation to the Information, and this non-compliance is incapable of remedy or, if capable of remedy, is not rectified within ten (10) Business Days after we notify you of the non-compliance.

15.    General

15.1.    We may vary the terms and conditions of this agreement at any time upon provision to you of notice where this is necessary to comply with Law or because of a change of Law; and for any reason upon provision of not less than 40 days’ notice to you.

15.2.    You warrant that you will use your best endeavours to not be party to any act, matter or thing prejudicial to the goodwill, commercial reputation or overall public image of the AFCX.

15.3.    Headings are a guide only and the word "includes" or "including" do not limit any matter. Where there’s reference to any legislation or a provision of any legislation, it includes that legislation or provision as re-enacted or otherwise amended.

15.4.    We shall correspond with you at the last postal or email address you have given to us or that is in the AFCX IQ Portal. You must tell us if you change any contact details, or change the person you nominate under clause 1.5. You shall liaise with us using the contact details on our website from time to time. Communications sent by email before 5pm on a business day will be taken to be received that day. If sent after 5pm, it will be the next business day. For all other communications sent by post, receipt will be the fourth business day after posting and if sent by commercial courier, on the date and time receipt is signed.

15.5.    You may not assign, transfer or otherwise deal with your rights under this Agreement or allow any interest in them to arise or be varied, without the consent of the AFCX.

15.6.    The rights and remedies provided in this agreement are in addition to other rights and remedies given by law independently of this agreement. No delay or failure to exercise a right or remedy under this agreement prevents the exercise of that or any other right or remedy on that or another occasion.

15.7.    If any term of this agreement is unlawful and/or unenforceable, it will be severed from this agreement and the remainder of the agreement remains in force.  If there is a conflict between these Terms and any other agreement you have with us, unless we agree otherwise in writing, the provisions of this agreement shall govern your use of AFCX IQ Portal, and the receipt of the Information Services.

15.8.    The relationship between the AFCX and you will be that of a service provider and customer and this agreement is governed by the laws of New South Wales, Australia and both parties submit to the non-exclusive jurisdiction of the courts of New South Wales.