Effective starting: 01 September 2020
Terms and Conditions of Use
1. About the Application
1.1 Welcome to Cognitive View (the 'Application'). Compliance, Conduct risk monitoring & AFCA insights (the 'Services').
1.2 The Application is operated by Cognitive View Pty Ltd (ABN 54 629 780 338) trading as Cognitive View. Please read these terms and conditions (the 'Terms') carefully. By using, browsing, and/or reading the Application, this signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of the Application, or any of its Services, immediately.
1.3 Cognitive View reserves the right to review and change any of the Terms by updating this page at its sole discretion. When Cognitive View updates the Terms, it will use reasonable endeavours to provide you with notice of updates to the Terms. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for your records.
2. Acceptance of the Terms
You accept the Terms by using or browsing the Application. You may also accept the Terms by clicking to accept or agree to the Terms where this option is made available to you by Cognitive View in the user interface.
3. Subscription to use the Services
3.1 In order to access the Services, you must first purchase a subscription through the Application (the 'Subscription') and pay the applicable fee for the selected Subscription (the 'Subscription Fee'). As a customer, there should be a fee according to the subscription plan selected.
3.2. In purchasing the Subscription, you acknowledge and agree that it is your responsibility to ensure that the Subscription you elect to purchase is suitable for your use.
3.3. Once you have purchased the Subscription, you will then be required to register for an account through the Application before you can access the Services (the 'Account').
3.4. As part of the registration process, or as part of your continued use of the Services, you may be required to provide personal information about yourself (such as identification or contact details), including:
- (a) an email address
- (b) name
- (d) a telephone number
- (e) a password
3.5. You warrant that any information you give to Cognitive View in the course of completing the registration process will always be accurate, correct and up to date.
3.6. Once you have completed the registration process, you will be a registered member of the Application ('Member') and agree to be bound by the Terms. As a Member you will be granted immediate access to the Services from the time you have completed the registration process until the subscription period expires (the 'Subscription Period').
3.7. You may not use the Services and may not accept the Terms if:
- a) you are not of legal age to form a binding contract with Cognitive View; or
- (b) you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.
4. Your obligations as a Member
4.1. As a Member, you agree to comply with the following:
- (a) you will use the Services only for purposes that are permitted by:
- (i) the Terms; and
- (ii) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;
- (b) you have the sole responsibility for protecting the confidentiality of your password and/or email address. Use of your password by any other person may result in the immediate cancellation of the Services;
- (c) any use of your registration information by any other person, or third parties, is strictly prohibited. You agree to immediately notify Cognitive View of any unauthorized use of your password or email address or any breach of security of which you have become aware;
- (d) access and use of the Application is limited, non-transferable, and allows for the sole use of the Application by you for the purposes of Cognitive View providing the Services;
- (e) you will not use the Services or the Application in connection with any commercial endeavors except those that are specifically endorsed or approved by the management of Cognitive View;
- (f) you will not use the Services or Application for any illegal and/or unauthorized use which includes collecting email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the Application;
- (g) you agree that commercial advertisements, affiliate links, and other forms of solicitation may be removed from the Application without notice and may result in the termination of the Services. Appropriate legal action will be taken by Cognitive View for any illegal or unauthorized use of the Application;
- (h) you acknowledge and agree that any automated use of the Application or its Services is prohibited.
5.1. Where the option is given to you, you may make payment of the Subscription Fee by way of
- (a) Credit Card Payment ('Credit Card')
- (b) Braintree Pty Limited
5.2. All payments made in the course of your use of the Services are made using the above methods. In using the Application, the Services, or when making any payment in relation to your use of the Services, you warrant that you have read, understood, and agree to be bound by the Braintree terms and conditions which are available on their Application.
5.3. You acknowledge and agree that where a request for the payment of the Subscription Fee is returned or denied, for whatever reason, by your financial institution or is unpaid by you for any other reason, then you are liable for any costs, including banking fees and charges, associated with the Subscription Fee.
5.4. You agree and acknowledge that Cognitive View can vary the Subscription Fee at any time and that the varied Subscription Fee will come into effect following the conclusion of the existing Subscription Period.
6. Refund Policy
Cognitive View will only provide you with a refund of the Subscription Fee in the event they are unable to continue to provide the Services or if the manager of Cognitive View makes a decision, at its absolute discretion, that it is reasonable to do so under the circumstances. Where this occurs, the refund will be in the proportional amount of the Subscription Fee that remains unused by the Member (the 'Refund').
7. Copyright and Intellectual Property
7.1. The Application, the Services, and all of the related products of Cognitive View are subject to copyright. The material on the Application is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the Services and compilation of the Application (including but not limited to text, graphics, logos, button icons, video images, audio clips, Application, code, scripts, design elements, and interactive features) or the Services are owned or controlled for these purposes and are reserved by Cognitive View or its contributors.
7.2. All trademarks, service marks, and trade names are owned, registered /or licensed by Cognitive View, which grants you a worldwide, non-exclusive, royalty-free, revocable license whilst you are a Member to: and
- (a) use the Application pursuant to the Terms;
- (b) copy and store the Application and the material contained in the Application in your device's cache memory; and
- (c) print pages from the Application for your own personal and non-commercial use.
Cognitive View does not grant you any other rights whatsoever in relation to the Application or the Services. All other rights are expressly reserved by Cognitive View.
7.3. Cognitive View retains all rights, title and interest in and to the Application and all related Services. Nothing you do on or in relation to the Application will transfer any:
- (a) business name, trading name, domain name, trademark, industrial design, patent, registered design or copyright, or
- (b) a right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or
- (c) a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process), to you.
7.4. You may not, without the prior written permission of Cognitive View and the permission of any other relevant rights owners: broadcast, republish, upload to a third party, transmit, post, distribute, show, or play in public, adapt, or change in any way the Services or third party Services for any purpose unless otherwise provided by these Terms. This prohibition does not extend to materials on the Application which are freely available for re-use or are in the public domain.
9. General Disclaimer
9.1. Nothing in the Terms limits or excludes any guarantees, warranties, representations, or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
9.2. Subject to this clause, and to the extent permitted by law:
- (a) all terms, guarantees, warranties, representations, or conditions which are not expressly stated in the Terms are excluded; and
- (b) Cognitive View will not be liable for any special, indirect, or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or these Terms (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
9.3. Use of the Application and the Services is at your own risk. Everything on the Application and the Services are provided to you "as is" and "as available" without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors, and licensors of Cognitive View make any express or implied representation or warranty about the Services or any products or Services (including the products or Services of Cognitive View) referred to on the Application. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
- (a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or another harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorized access to records;
- (b) the accuracy, suitability, or currency of any information on the Application, the Services, or any of its Services-related products (including third-party material and advertisements on the Application);
- (c) costs incurred as a result of you using the Application, the Services, or any of the products of Cognitive View; and
- (d) the Services or operation with respect to links that are provided for your convenience.
If you are in the business of providing similar Services for the purpose of providing them to users for commercial gain, whether business users or domestic users, then you are a competitor of Cognitive View. Competitors are not permitted to use or access any information or content on our Application. If you breach this provision, Cognitive View will hold you fully responsible for any loss that we may sustain and hold you accountable for all profits that you might make from such a breach.
11. Limitation of liability
11.1. Cognitive View's total liability arising out of or in connection with the Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the Services to you.
11.2. You expressly understand and agree that Cognitive View, its affiliates, employees, agents, contributors, and licensors shall not be liable to you for any direct, indirect, incidental, special consequential, or exemplary damages which may be incurred by you, however, caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation, and any other intangible loss.
12. Termination of Contract
12.1. The Terms will continue to apply until terminated by either you or by Cognitive View as set out below.
12.2. If you want to terminate the Terms, you may do so by:
- (a) not renewing the Subscription prior to the end of the Subscription Period.
- (b) providing Cognitive View with 7 days' notice of your intention to terminate: and
- (c) closing your accounts for all of the services which you use, where Cognitive View has made this option available to you.
Your notice should be sent, in writing, to Cognitive View via the 'Contact Us' link on our homepage.
12.3. Cognitive View may at any time, terminate the Terms with you if:
- (a) you do not renew the Subscription at the end of the Subscription Period;
- (b) you have breached any provision of the Terms or intend to breach any provision;
- (c) Cognitive View is required to do so by law;
- (d) the provision of the Services to you by Cognitive View is, in the opinion of Cognitive View, no longer commercially viable.
12.4. Subject to local applicable laws, Cognitive View reserves the right to discontinue or cancel your membership at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Application or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts Cognitive View's name or reputation or violates the rights of those of another party.
13.1. You agree to indemnify Cognitive View, its affiliates, employees, agents, contributors, third-party content providers, and licensors from and against:
- (a) all actions, suits, claims, demands, liabilities, costs, expenses, loss, and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with Your Content.
- (b) any direct or indirect consequences of you accessing, using, or transacting on the Application or attempting to do so; and/or
- (c) any breach of the Terms.
14. Dispute Resolution
If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
A party to the Terms claiming a dispute ('Dispute') has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome, and the action required to settle the Dispute.
On receipt of that notice ('Notice') by that other party, the parties to the Terms ('Parties') must:
- (a) Within 12 days of the Notice endeavor in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
- (b) If for any reason whatsoever, 5 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon the selection of a mediator or request that an appropriate mediator be appointed by the President of the Australian Mediation Association or his or her nominee;
- (c) The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertaking to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
- (d) The mediation will be held in Victoria, Australia.
All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as "without prejudice" negotiations for the purpose of applicable laws of evidence.
14.5. Termination of Mediation:
If 3 months have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
15. Venue and Jurisdiction
The Services offered by Cognitive View is intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Application, you agree that the exclusive venue for resolving any dispute shall be in the courts of New South Wales, Australia.
16. Governing Law
The Terms are governed by the laws of Victoria, Australia. Any dispute, controversy, proceeding, or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted, and construed by, under, and pursuant to the laws of Victoria, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.
17. Independent Legal Advice
Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.
If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.
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