(a) you will use the Platform and Services only for purposes permitted by the Terms and you will abide by any applicable law, regulation or generally accepted practices or guidelines regulating the Services in the relevant jurisdictions;
(b) you have the sole responsibility for protecting the confidentiality of your password and email address (Login details). The use of your password by any other person may result in the immediate cancellation or suspension of the Services;
(c) any use of your Registration Data by any other person, or third parties, is strictly prohibited. You agree to immediately notify XY of any unauthorised use of your Login Details or any breach of security of which you have become aware;
(d) your access to and use of the Platform is non-transferable;
(e) you must not use the Platform in connection with any other commercial enterprise without the prior written approval of XY;
(f) you must not use the Platform for any illegal or unauthorised purpose which includes collecting email addresses of other Members by electronic or other means for sending unsolicited email or unauthorised framing or linking to the Platform;
(g) commercial advertisements, affiliate links, and other forms of solicitation may be removed from the Platform without notice and may result in immediate termination of your membership or access to the Platform;
(h) you may not have more than one (1) active account. XY reserves the right to merge multiple accounts or to suspend or terminate your account and your access to the Platform if you create more than one (1) account, or if any information provided during the registration process or thereafter proves to be inaccurate, fraudulent, not current, out-of-date or incomplete;
(i) you must not send or post unauthorised communications such as spam or advertising on the Platform;
(i) you must not upload viruses or other malicious code on the Platform;
(k) you must not expressly or impliedly impersonate another Member or use another Member’s account or password;
(l) you must not post content (if access is available) that is hateful, threatening, defamatory, contains mature content or is otherwise inappropriate;
(m) you must use the Services in compliance with all local, state, and federal laws and regulations; and
(n) you must keep your Registration Data and contact information accurate and up to date.
(1 ) Except as required by the Australian Consumer Law, any fees paid under these Terms are non-refundable.
(2 ) XY will only offer a refund of the applicable fees if XY is unable to facilitate the supply of the Services or if the Manager of XY determines, in its absolute discretion, it is reasonable to do so.
(3 ) XY does not offer returns and refunds for ‘buyer’s remorse’ or if you have changed your mind.
(1 ) XY will process refunds in accordance with the Australian Consumer Law for major failures (‘Major Failures’) and minor failures (‘Minor Failures’).
(2 ) For example, a Major Failure occurs where you would not have bought the Services if you had known about the defect, the Services are significantly different to what was described, the Services are substantially unfit for their usual purpose or a purpose made known to you or the Services are unsafe. For major failures or major problems with the Services as defined under the Australian Consumer Law, you are entitled to a replacement or refund and compensation for reasonably foreseeable loss or damage.
(3 ) If the Services fail to be of acceptable quality, and the failure does not amount to a Major Failure (‘Minor Failure)’, we are entitled an opportunity to fix the minor problem if this is within a reasonable period of time. If we cannot fix the Minor Failure, you are entitled to cancel the contract with us and obtain a refund for the proportion of the Services not already consumed at the time of the cancellation.
(4 ) Our Services come with guarantees that cannot be excluded under the Australian Consumer Law. For Major Failures with the Services, you are entitled:
(1 ) In these Terms, Personal Information has the meaning as defined in any applicable Privacy Laws. Privacy Laws means the Privacy Act 1988 (Cth) and the Privacy Amendment (Notifiable Data Breaches) Act 2017 (‘NDB’).
(2 ) If a Member obtains Personal Information in the course of supplying or availing Services under these Terms, the Member must comply with its obligations under the Privacy Laws and not do any act or engage in any practice which would be a breach of the privacy principles as contained in the Privacy Act 1988 (Cth).
(1 ) Compulsory process. A party shall not start arbitration or court proceedings (except proceedings seeking interlocutory relief) in respect of a Dispute unless it has complied with this clause.
(2 ) Notification. A party claiming that a Dispute has arisen shall notify each other party to the Dispute giving details of the Dispute.
(3 ) Initial period – efforts to resolve Dispute. During the 30-day period after a notice is given (or longer period agreed in writing by the Parties to the Dispute) (Initial Period) each party to the Dispute (Disputant) covenants with the other to cooperate and take all reasonable steps necessary to attempt to resolve the Dispute.
(4 ) Mediation. If the Disputants are unable to resolve the Dispute within the Initial Period, each Disputant agrees that the Dispute shall be referred for mediation, at the request of any Disputant, to:
(a ) mediator agreed on by the Disputants; or
(b ) if the Disputants are unable to agree on a mediator within seven days after the end of the Initial Period, then the Parties must submit the dispute for mediation through the Chair of Resolution Institute (ACN 008 651 232) or the Chair’s designated representative and the Resolution Institute Mediation Rules shall apply to the mediation.
(5 ) Role of mediator. The role of any mediator is to assist in negotiating a resolution of the Dispute. A mediator may not make a decision that is binding on a Disputant unless that Disputant has so agreed in writing.
(6 ) Information. Any information or documentation disclosed by a Disputant under this clause shall be kept confidential and may not be used except to attempt to resolve the Dispute.
(7 ) Costs of mediation. Each Disputant shall pay its own costs of complying with this clause. The Disputants shall pay equally the costs of any mediator engaged.
(8 ) Location, timing and attendance. The mediation will be held in Sydney, Australia, within 30 days after expiry of the Initial Period. Each Disputant agrees to attend the mediation by a representative having full authority to resolve the dispute. At the mediation each Disputant may be represented by one or more legal representative.
(9 ) Failure to resolve. If the dispute fails to resolve at mediation or if one of the Disputants fails or refuses to attend the mediation, the mediator will be requested to inform each Disputant in writing that the mediation has been terminated without resolution (Mediation Termination Notice). Upon receipt of Mediation Termination Notice, the dispute resolution process will be terminated. A party to a dispute will only be entitled to pursue other remedies available to it at law or otherwise, after receipt of Mediation Termination Notice.
(10 ) Confidentiality. All communications concerning negotiations made by the Disputants 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 law of evidence.
(1 ) To the fullest extent permissible at law, XY is not liable for any indirect, punitive, incidental, special, consequential damages including without limitation any claims, losses, loss of profits, revenue, business or goodwill arising out of or in any way connected with the provision of or failure to provide any products and services, or otherwise arising out of the provision of products and services, whether based on these Terms, negligence, strict liability or otherwise.
(2 ) These Terms are to be read subject to any legislation that prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations. If such legislation applies, to the extent possible XY limits its liability as follows, at XY’s option:
(a ) for any claims relating to these Terms to the fees payable under these Terms for the preceding three (3) months;
(b ) in the case of products including any digital products (a) the replacement of the products or the supply of equivalent products; (b) the repair of the products; (c) the payment of the cost of replacing the products or of acquiring equivalent products or (d) the payment of having the products repaired; and
(c ) in the case of services including any digital services, the supply of the services again or the payment of the cost of having the services supplied again.
(3 ) XY does not accept any liability for the acts, omissions, or default, whether negligent or otherwise of any Members who use the Platform.
(4 ) This clause survives the termination or expiry of these Terms for whatever reason.
(1 ) The Terms will continue to apply until terminated by either you or by XY as set out below.
(2 ) If you want to terminate the Terms, you may do so by closing your Account for all the Platform and Services which you use subject to the agreed Minimum Subscription Period. You agree that refunds are not payable for the balance of the month in which you cancel your Account. You agree that you are responsible for making backups or downloading any Content in or associated with your Account.
(3 ) XY may at any time, terminate the Terms with you if:
(a ) you have breached any provision of the Terms or intend to breach any provision;
(b ) XY is required to do so by law; or
(c ) the provision of the Services to you by XY is, in the opinion of XY, no longer commercially viable.
(4 ) We may also without notice:
(a ) terminate your Account if there is no account activity associated with your Account for over 12 months, and
(b ) delete any Content associated with your Account and you agree that you are responsible for making backups of your data.
(5 ) Subject to local applicable laws, XY 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 Platform or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts XY’s name or reputation or violates the rights of those of another party.
(6 ) XY may, at its discretion and without liability to you, with or without prior notice and at any time, decide to limit, suspend, deactivate or cancel your Account if in its sole and absolute discretion, XY is concerned by any feedback about you, or considers your feedback rating to be problematic for other XY users.
Any failure on our part to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision.
An agreement under these Terms is for our benefit and Member benefit and is not intended to benefit or be enforceable by any third party.
If any provision or part of a provision of these Terms is found to be invalid, unenforceable or in conflict with the law, that part or provision is to be replaced with a provision which, as far as possible, accomplishes the original purpose of that provision otherwise it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions which will continue in full force and effect.
These Terms shall enure to the benefit of and be binding upon the parties and their respective successors, trustees, heirs, executors, administrators and permitted assigns or receivers but will not enure to the benefit of any other persons.
These Terms are governed by and construed in accordance with the laws of the State of New South Wales. You irrevocably and unconditionally submit to the non-exclusive jurisdiction of the Courts of the State of New South Wales and Courts of Appeal from them for determining any dispute concerning these Terms.
You may contact us through the contact details on our Platform.
DISCLAIMER: The XY Adviser website and all content contained on the website is limited to general information. It does not constitute legal, financial or other professional advice. XY Adviser does not hold an AFS licence and does not provide any financial services. Nothing on this website should be interpreted as financial advice. Before making any investment decision, XY Adviser recommends obtaining financial advice from a qualified financial adviser.