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Licence

About the PhoenixAI licence

PHOENIXAI MARKET DATA SYSTEM ("System") Access and Licence Agreement
...Aerarius Indicium Pty Ltd (ABN 84 102 210 748) ("Aerarius")

IMPORTANT NOTICE
The System, including the Software and all associated or accompanying documentation, is protected in Australia by the Copyright Act 1968 (Cth) and by corresponding legislation in other countries. Aerarius reserves all rights to take action in respect of any breach of copyright.

Your access to and use of the System, and all related rights, are subject to the following terms and conditions, including any associated or accompanying notices setting out the applicable Charges payable by You.

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.
Any access to or use of the System by You is conditional upon You accepting, without modification, addition or variation, these terms and conditions. Activation of any Software by You or access to or other use of any component of the System by You will be taken as irrevocable acceptance by You of these terms and conditions and will give rise to an agreement between You and Aerarius comprising these terms and conditions by which You will be legally bound.

These terms and conditions, current as at 1 April 2003, remain in effect unless and until they are varied or replaced in accordance with clause 10.2.

Words and phrases which commence with capital letters generally have defined meanings as set out in clause 11.

1. TERM

a. The Agreement commences when You are taken to have accepted these terms and conditions, as described above. The Agreement continues in force until it is terminated in accordance with clause 6.

b. The minimum term for subscription to each of the PhoenixAI On Time, Real Time, All the Time - Package 1, PhoenixAI Real Time On Demand - Package 2, and PhoenixAI Delayed Data any Time - Package 3 and any other package that may be made available from time to time and which will be displayed at the PhoenixAI website is three Months.

2. SUBSCRIPTION, ACCESS TO AND USE OF SYSTEM AND DERIVED INFORMATION

2.1 Subscription

You hereby subscribe for access to the System.

2.2 Access to System

Aerarius will provide You with access to the System:

a. from the time of Activation until this Agreement is terminated in accordance with clause 6 or otherwise; and

b. otherwise upon and subject to the provisions of this Agreement.

2.3 Access to Derived Information

Aerarius, for itself and on behalf of its Affiliates, grants You a non-exclusive licence to access and use the Derived Information and any documentation that accompanies the Software:

a. from the time of Activation until this Agreement in terminated in accordance with clause 6 or otherwise; and

b. otherwise upon and subject to the provisions of this Agreement.

2.4 Activation

a.The System is taken to be activated on a computer by You when You:

1. provide Aerarius with Your full name, address and other details requested by Aerarius so that You can be registered as a subscriber; and.

2. run the Software and input the unique access code or username and password provided to You by Aerarius for the first time

b. You must notify Aerarius of any changes to any information provided by You under clause 2.4(a) (1) within 7 days after the change occurs.

2.5 Restrictions on use of System and Derived Information

You must not:

a. use the System or any Derived Information in any manner or for any purpose that is unlawful;

b. use the System or any Derived Information in any way which violates any right of Aerarius whether arising under this Agreement or otherwise;

c. restrict or inhibit any person who is authorised to access or use the System or any Derived Information from doing so;

d. access or use the System to post or transmit any unlawful, threatening, abusive, defamatory, obscene, vulgar, pornographic, profane or indecent information of any kind, including, without limitation, any material which may constitute or encourage anyone to commit a criminal offence, which may give rise to civil liability or may otherwise violate any law;

e. access or use the System to post or transmit anything which contains, or which may contain, a virus or any other material which may be of a contaminating or destructive nature in relation to the Software;

f. delete or amend any statement or other information on the System or attempt to do so, or otherwise tamper or attempt to tamper with the System;

g. give to any person the unique access code referred to in clause 2.4(a)(2) or by any other means permit or allow any person to access the System, unless Aerarius has first approved expressly in writing of such access; or

h. copy or modify any documentation relating to or accompanying the System or the Software in any manner not expressly authorised by this Agreement.

2.6 Use of Derived Information – restrictions specified by Affiliates

You must comply with and observe all restrictions and conditions on the use of any Derived Information of which You may be given notice by an Affiliate, or by Aerarius on behalf of an Affiliate, from time to time.

2.7 Continuing application

Clauses 2.5 and 2.6, and Your obligations under them, will continue to apply notwithstanding any termination of this Agreement.

3. CHARGES

3.1 Payment of Charges, variation and deposit

a. You agree to pay to Aerarius as and when described in this Agreement the Charges in consideration for Your access to and use of the System and the Derived Information.

b.The Charges will be the amounts notified to You by Aerarius from time to time by publication at its PhoenixAI website or by notice otherwise given by Aerarius in accordance with this Agreement.

c. Aerarius reserves the right to review and vary Charges and the basis upon which they are applied or calculated at any time, including without limitation to reduce the level of access to the System to which payment of a particular Charge entitles You. A variation to Charges or to the basis upon which they are applied or calculated will not take effect until 14 days (or such longer period as Aerarius may specify) after the date the notice has been given.

d. In addition to any Charges payable to Aerarius, You must make available to Aerarius by way of credit card authorisation or direct debit authority an amount of $50, or such greater amount as Aerarius may require from time to time, to be held as a credit from which Aerarius may draw to satisfy any Additional Charges incurred by You. If at any time Aerarius draws upon that amount, You also authorise Aerarius to draw a top-up amount to restore the deposit to the amount held before such drawing. You must promptly (and in any case within 7 days after notification by Aerarius) make available such further funds or grant such authorities as may be necessary to enable Aerarius to do so.

3.2 Initial Charge

The initial charge includes

a. the fee for Your licence to use the Software; and

b. the right to subscribe for a minimum three months subscription for Your access to and use of the System and the Derived Information.

Payment of the initial charge must be made before:

a. Aerarius will provide You with an access code to Activate the System; and

b. You Run the Software or Activate the System.

3.3 Subscription Charges

The following Charges relate to the use of the PhoenixAI On Time Real Time All the Time - Package 1, PhoenixAI Real Time On Demand – Package 2 and the PhoenixAI Delayed Data any Time – Package 3 subscriptions or any other package that may become available and which will be detailed on the PhoenixAI website:

a. an initial subscription charge is payable to cover the first three months usage in advance to Aerarius for access to and use of the System and the Derived Information. With a new subscription however the first month is allowed as a free trial month. Thus the first subscription will require a drawing against Your credit card of two monthly subscription charges. The fourth Month's subscription is due not more than three Months after Your initial Activation of the System and subsequent Monthly charges at Monthly intervals thereafter;

b. You must pay or direct the payment of the Monthly subscription Charge in advance to Aerarius by providing to Aerarius and keeping current a credit card authorisation.

3.4 Additional Charges

If, during any Month, You access the System (which includes obtaining Reports generated by the System) at a level greater than the access level permitted by Your subscription and notified by Aerarius to You, You must pay (as well as the subscription charges payable under clause 3.3) such Additional Charges as have been notified by Aerarius in accordance with clause 3.1. Any Additional Charges so payable:

a. will, if less than any minimum amount specified by Aerarius at its Phoenix AI website or by notice otherwise given by Aerarius in accordance with this Agreement, be increased to an amount equal to such minimum amount;

b. will be drawn down by Aerarius from the funds or authority held by Aerarius from You pursuant to clause 3.1(d). After so drawing, Aerarius will issue a tax invoice to You in respect of the Additional Charges.

c. will also be drawn against your credit card authorisation to top up your credit account with Aerarius when the Monthly subscription Charges for the following Month are due or, in the case of subscription termination, in accordance with clause 6;

4. SOFTWARE

4.1Installing and running Software

You may:

a. Run a copy of the Software, on more than one computer to allow you to access your account from multiple locations;

b. also store or install the Software (or a copy of the Software) on a Storage Device used to Run the Software on other computers ("Network Computers") attached to the Storage Device, provided You first acquire multiple licences from Aerarius on the same terms and conditions (with any necessary modifications) as this Agreement for additional users for each Network Computer.

4.2 Limited right to make copies of the Software

After installing copies of the Software on a computer (or subject to clause 4.1(b), a Storage Device) You may retain the original media on which Aerarius provided the Software and use it for backup or archival purposes.

4.3 Restrictions

You must not at any time:

a. sell, re-sell, lend or rent the Software or offer it for sale, re-sale, lease or rental;

b. decompile, disassemble, reverse-engineer, copy, create a derivative work from or otherwise use the Software, the System or any Derived Information other than as provided in this Agreement;

c. by any act or omission, cause or give rise to circumstances in which the Software, the System or any Intellectual Property owned by Aerarius is or may be endangered, jeopardised or prejudicially affected; or

d. disclose or divulge to any person any Derived Information, or any information, drawing, specification, plan or document containing any Derived Information or relating to the System or the Software, except as may be reasonably necessary to demonstrate, install and service the Software or any future version of the System for the purposes of this Agreement.

This clause 4.3, and Your obligations under it, will continue to apply notwithstanding any termination of this Agreement.

4.4 New versions or upgrades

New versions or upgrades of the Software may be issued by Aerarius from time to time. Such new versions or upgrades may involve changes to this Agreement, including (without limitation) changes to the basis upon which the System or the Derived Information may be accessed and used. If Aerarius offers You the right to use a new version or upgrade of the Software You must either:

a. accept the new version or upgrade of the Software, in which case You must use it in accordance with such terms and conditions as may be notified to You by Aerarius; or

b. terminate this Agreement by giving Aerarius notice in accordance with clause 6.3.

5. INTELLECTUAL PROPERTY RIGHTS

5.1You acknowledge that Aerarius is the owner of the Aerarius Intellectual Property and that Your only rights in respect of the System, the Software and the Derived Information are those expressly granted to You in this Agreement. You agree that:

a. You will not at any time infringe any Aerarius Intellectual Property or do or cause to be done any act which directly or indirectly leads to such infringement;

b. without limiting paragraph (a), You will not reproduce or copy the Software or the access code, except as may expressly be authorised by this Agreement;

c. the Derived Information and all Intellectual Property therein belongs to and remains the property of Aerarius or its Affiliates (as the case may be);

d. You do not have any licence or right to use any trademark related to or displayed by or on the System or comprised of or contained within the Derived Information without the express written permission of Aerarius or the owner of the trademark, if Aerarius does not own it;

e. nothing in this Agreement or on or related to the System is to be construed as authorising You to use any trademark related to or displayed by or on the System or comprised of or contained within the Derived Information;

f. You will not, at any time, directly or indirectly, do or cause to be done anything which infringes the trademarks referred to in paragraphs (d) and (e) or diminishes their value to their owner or is likely to give rise to such infringement or diminution.

5.2 Clause 5.1, and Your obligations under it, will continue to apply notwithstanding any termination of this Agreement.

6. SUSPENSION AND TERMINATION

6.1 Suspension by Aerarius

If any amount payable by You to Aerarius under this Agreement or otherwise is overdue by more than 14 days, Aerarius may (without the need for prior notice and without limiting its rights under clause 6.2) suspend Your rights to use and access the System and the Derived Information, and all other rights otherwise enjoyable by You under this Agreement. Such suspension will continue (unless Aerarius in its absolute discretion decides otherwise) until the payment in full of all outstanding amounts, or until this Agreement is terminated in accordance with clause 6.2.

6.2 Termination by Aerarius

Aerarius may terminate this Agreement by notice to You (or Your personal representative if appropriate in the circumstances set out in paragraph (d)), effective immediately, if:

a. any Charges payable by You to Aerarius under this Agreement are overdue by more than 14 days; or

b. You are a corporation which becomes the subject of insolvency proceedings, or the appointment of a receiver or receiver and manager;

c. You are a firm or partnership which is dissolved;

d. You, being a natural person, die or become the subject of bankruptcy proceedings;

e. You are in breach of any of the provisions of this Agreement; or

f. Aerarius otherwise elects to do so in its absolute discretion.

6.3 Termination by You

Subject to clause 1(b), You may only terminate this Agreement by providing notice to Aerarius of Your intention to terminate. If Aerarius receives such a notice from You:

a. this Agreement will terminate at the end of the current subscription fee invoiced period, unless Aerarius terminates this Agreement sooner;

b. within 7 days of receipt of the notice, Aerarius shall send to You a statement of outstanding Charges; and

c. You must pay any outstanding Charges to Aerarius in full within 14 days of the date of the statement.

6.4 No refund

Following termination of this Agreement the balance of any unused funds remaining to Your credit and provided to Aerarius under clause 3.1(d), after deduction of any outstanding or accrued Additional Charges and any other amounts You owe to Aerarius, will be refunded to You. Apart from such refund, You acknowledge that Aerarius is under no obligation to refund all or any part of any Charges, or costs associated with any Charges, which You have paid to Aerarius under this Agreement, including any payments made in advance. This acknowledgment continues to bind You notwithstanding termination of this Agreement.

6.5 Effect of termination

Termination of this Agreement:

a. does not extinguish, prejudice or otherwise affect any rights or obligations which are expressed in this Agreement to continue in effect after or notwithstanding termination;

b. does not affect any right or remedy one Party has against another due to any breach of this Agreement; but

c. will terminate all other rights and obligations under this Agreement.

6.6 Obligations on termination

On and from termination of this Agreement, You must cease to access or use the System and the Derived Information in any way;

This clause 6.6, and Your obligations under it, will continue to apply notwithstanding any termination of this Agreement.

7. PRIVACY

7.1 Purpose of Privacy statement

Aerarius values highly Your right to privacy and that of all of its customers. This statement explains Your privacy rights and the rights and obligations of Aerarius in relation to Your personal information.

7.2 Your rights

a. You are not obliged to give Aerarius any of the personal information requested in the application form or in any other document or communication relating to Your purchase of, or subscription to, any software or services from Aerarius. However, without this information, Aerarius may not be able to process the application or provide an appropriate level of service to You.

b. You may request access, at any time, to personal information held by Aerarius about You and ask Aerarius to correct it if You believe it is incorrect or out of date.

7.3 How Aerarius may use Your personal information

Aerarius may use Your personal information for one or more of the following purposes:

a. processing Your purchase or application;

b. administering and managing Your account; and

c. facilitating Aerarius's internal business operations, including fulfilment of any legal requirements and confidential systems maintenance and testing.

7.4 Disclosure of Your personal information

Aerarius may disclose Your personal information if it is necessary to do so in one or more of the following circumstances:

a. disclosure to external service providers of Aerarius who provide services for the purposes only of Aerarius's business, on a confidential basis, for example a mailing house;

b. disclosure to securities exchanges and regulatory authorities in any jurisdiction;

c. disclosure in connection with a proposed sale or acquisition of an interest in a business;

d. disclosure to any complaints body to whom a complaint relating to Aerarius's products or services is referred;

e. disclosure if requested by You or where the law requires or permits Aerarius to do so;

f. disclosure where required under any statutory or appropriate regulatory authority.

By proceeding with Activation or otherwise accessing or using any of the Software, the System or the Derived Information, You authorise Aerarius to collect, maintain, use and disclose Your personal information in the manner set out in this clause 7.

8. LIABILITY OF AERARIUS

8.1 Exclusion of implied terms

You acknowledge that in entering into this Agreement, You do not do so on the basis of, and You do not rely on, any representation, warranty or other provision except as expressly provided herein. All conditions, warranties or other terms implied by statute or common law are hereby excluded to the fullest extent permitted by law.

8.2 Disclaimer

a. Your access to and use of the System, the Software and the Derived Information is at Your sole risk. You acknowledge and agree that the System, the Software and the Derived Information are provided to You on an "as is – where is" basis.

b. Without limiting clauses 8.1 and 8.2(a), Aerarius makes no warranty of any kind whatsoever relating to the System, the Derived Information or the Software including, without limitation, as to:

1. non-infringement of third party rights, merchantability, fitness for any particular purpose or use, accuracy or completeness in respect of the Derived Information;

2. the reliability, quality or availability of the System or the Derived Information through the Internet;

3. the absence of viruses or other contaminating or destructive properties in the Software; or

4. any references in the System to a website operated by a third party, access to or the contents of the website, or any hyperlink to gain access to the website.

c. Neither Aerarius nor its Affiliates will be responsible in any circumstances for any loss, damage, expense, claim or liability which You incur or suffer as a result of or in connection with Your use, or the results of any use, of the System, the Software or the Derived Information. You release Aerarius and each of its Affiliates from all responsibility for any such loss, damage, expense, claim or liability.

d. You acknowledge and agree that:

1. the Internet and telecommunication lines used to access the Internet are beyond the control of Aerarius;

2. Aerarius does not and is unable to exert any control over other users of the Internet and telecommunication lines used to access the Internet;

3. the hyperlinks and other pointers to websites maintained by others that are on the System, and the websites themselves, are not under the control of Aerarius; and

4. the hyperlinks and other pointers to websites maintained by others that are on the System are provided as a convenience only, are not endorsed by Aerarius in any way. If You use them, You do so entirely at Your own risk.

8.3 Limitation of liability

a. The total liability of Aerarius and its Affiliates for:

1. any breach of or in connection with this Agreement;

2. any breach in tort (including negligence);

3. any claim, loss, damage or liability incurred or arising in any way in relation to the Software;

4. any failure by Aerarius or any other person to provide access to the System or to the Derived Information;

5. any other act or omission by Aerarius, or any of its Affiliates, of any kind under or in connection with this Agreement,

will not exceed $100 for all claims and causes of action. In addition, in the case of a defective product or service provided under this Agreement, Aerarius's liability is further limited, at its option, to the supply of the product or service again, or the payment of the cost of having it supplied again.

b. No action, regardless of form, arising out of or pertaining to this Agreement may be brought by You against Aerarius or any of its Affiliates more than 3 Months from the date such cause of action arises.

c. Neither Aerarius nor any of its Affiliates is liable to You or any other person for any indirect, consequential or incidental loss or any special or punitive damages caused or contributed to by Aerarius or any Affiliate under or in connection with this Agreement or the provision of any of the products or services referred to in this Agreement.

8.4 Subject to law

The exclusions, disclaimers and limitations of liability contained in this clause 8 apply only to the extent that they are not prohibited by law.

8.5 Indemnity

You indemnify and will keep indemnified and hold harmless Aerarius, its Affiliates, agents, employees, officers and subcontractors from and against any loss, damage, claim, cost or expense resulting directly or indirectly from Your use of or access to the Software, the System and the Derived Information, or from any breach, default or failure by either Party to perform its obligations under this Agreement.

8.6 Disclaimer - Investment Advice

The Derived Information is based on information about securities that is publicly available. In order to allow users to interpret this information, the System produces technical indicators by applying formulae. These indicators are then presented in charts. These indicators do not in themselves indicate whether a security should be bought or sold and, therefore, should not be regarded as advice to do so. You acknowledge that:

a. The Derived Information is not suitable to be acted upon as investment advice; and

b.it is advisable to seek, and You will seek, independent advice before making any investment decisions relying on the Derived Information provided.

8.7 Post-termination operation

Clause 8, and Your obligations and acknowledgements under it, will continue to apply notwithstanding any termination of this Agreement.

9. NOTICES

a. Every notice given by one Party to another under this Agreement must be in writing and must be given in one of the ways set out in paragraph (b).

 

b. A Party may send a notice to the other Party in one of the following ways:

1. by hand;

2. by facsimile transmission;

3. by registered mail;

4. by e-mail or electronic newsletter;

5. in the case only of a notice by Aerarius to You, by Aerarius may post the notice on the Support section of the PhoenixAI Data website at http://www.phoenixai.com.au/contacts_p2.asp.

 

c. It is Your responsibility to check the web page referred to in paragraph (b) (5) for any updates daily, and You acknowledge that You will do so.

 

d. A notice is deemed to be given:

1. if sent by hand, at the time of receipt;

2. if sent by facsimile transmission, at the time recorded on the transmission report unless:

i. the intended recipient promptly informs the sender that the transmission was received in an incomplete or garbled form; or

ii. the transmission report of the sender indicates a faulty or incomplete transmission;

3. if sent by registered mail, at the time that the recipient or its agent acknowledges receipt;

4. if sent by e-mail or electronic newsletter, at the time the sender's computer records the e-mail as having been sent, unless the intended recipient promptly informs the sender that the e-mail was received in an incomplete or garbled form;

5. if a published notice at the PhoenixAI Data website, on the day after publication.

 

e. If delivery or receipt is not on a Business Day or, if receipt is later than 5:00 pm local time at the place of delivery on a Business Day, then the notice is deemed to have been received on the next Business Day.

f. Notices must be sent:

1. in the case of notices to Aerarius, to:

PhoenixAI,
Level 1, 651-653 Doncaster Road,
Doncaster VIC 3108
Australia

Facsimile: +61 3 9855 9533

E-mail: support@phoenixai.com.au

2. in the case of notices to You, to Your address, facsimile number or e-mail address as supplied to Aerarius.

g. A Party may at any time change its address, facsimile number or e-mail details for service of notices by giving the other Party notice of the amended details.

10. GENERAL

10.1 Governing law and jurisdiction

This Agreement is governed by the laws of the State of Victoria, Australia.

10.2 Amendment

From time to time, Aerarius may make amendments to this Agreement by providing You with notice of the change. You must comply with such amended terms, or if You do not wish to do so, You should cease using the System and exercising any other rights under this Agreement immediately.

10.3 Waiver

A provision of this Agreement, or a right created under it, may not be waived except by the execution of an instrument in writing by the Party giving the waiver.

10.4 Exercise of a right

a. A Party may exercise a right:

1. at its discretion; and

2. separately or together with another right.

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

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

10.5 Assignment

a. This Agreement is for the benefit of, and binds, You and Aerarius and their permitted successors and assigns.

b. You may only assign Your rights under this Agreement if You obtain the written consent of Aerarius and comply with any conditions to subject to which the consent is given. Aerarius may give or withhold consent, and may impose such conditions, as it thinks appropriate in its absolute discretion.

10.6 Severance

a. If a provision of this Agreement is void, voidable, unenforceable or illegal, but would not be void, voidable, unenforceable or illegal if it were read down and it is capable of being read down, then the provision must be read down.

b. If a provision is incapable of being read down to save it and the provision would not be void, voidable, unenforceable or illegal if words were severed, then those words must be severed.

c. In any other case, the whole provision must be severed.

d. If a provision is read down or words are, or the provision is, severed, the remainder of this Agreement continues in full force and effect.

10.7 Costs and Taxes

a. Unless expressly stated otherwise, each amount (including each Charge) specified as payable under this Agreement is expressed as a GST exclusive amount.

b. If Aerarius makes a taxable supply in connection with this Agreement, then You must at the time of paying for the taxable supply pay the amount of any GST payable in respect of the taxable supply. Aerarius will provide You with a valid tax invoice in respect of any taxable supply it makes to You in connection with this Agreement.

c. Words and phrases which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended) have the same meaning when used in paragraphs (a) and (b).

d. Each Party must bear its own costs in relation to the negotiation, preparation and execution of this Agreement.

11. DEFINITIONS

In this Agreement, unless the context requires otherwise:

a. "Activates" or "Activation" means activating the System on a computer as described in clause 2.4.

b. "Additional Charges" means those Charges described as such in clause 3.4.

c. "Aerarius" means Aerarius Indicium Pty Ltd (ACN 102 210 748).

d. "Aerarius Intellectual Property" means Intellectual Property in the PhoenixAI Market Data System, Aerarius websites, Software, accompanying documentation and the access code.

e. "Affiliate" means, with respect to Aerarius, an entity with whom Aerarius has a current licence agreement or other contract to provide and/or carry Derived Information.

f. "Agreement" means the agreement between You and Aerarius comprising these terms and conditions and commencing at the time specified in clause 1(a). It includes, but is not limited to, information about Charges payable by You to Aerarius, and variations to these Charges, as notified by Aerarius to You from time to time in accordance with clause 3.1.

g. "Business Day" means:

1. for the purpose of sending or receiving a notice, a day on which banks are open for business in the city where the notice, or other communication, is received; and

2. for all other purposes, a day on which banks are open for business in Melbourne, Victoria, Australia,

and in each case excludes a Saturday, Sunday or a public holiday in the relevant city.

h. "Charges" means those amounts which You are required to pay to Aerarius under clause 3 of this Agreement and any other relevant provisions, including the Additional Charges.

i. "Derived Information" means all data and other information provided by Aerarius, or its Affiliates, accessible through use of the PhoenixAI Market Data System.

j. "Intellectual Property" includes copyright in any work and any rights in respect of any design or trademark.

k. "Month" means calendar month.

l. "Party" means You or Aerarius (as the case requires).

m. "PhoenixAI”, “PhoenixAI Market Data System" or "System" means the computer programs and systems developed by Aerarius able to be accessed by use of the Software, being a communications and analytical computer-based system that permits the access, analysis and manipulation of Derived Information. Throughout this agreement any reference to PhoenixAI is to be taken to also mean reference to Liberty Data market information systems.

n. "Report" means any of, as appropriate, AAP, RWE and ASX Company Announcements.

o. "Run" means, in relation to the Software, to install, use, access, display or load a copy of the Software on a computer, computer system or on any Storage Device.

p. "Software" means:

1. the object code versions of the computer programs that Aerarius has developed;

2. any upgrades of, or supplements to, those programs and systems provided by Aerarius from time to time; and

3. any associated media, printed materials, manuals and "online" or electronic documentation.

q. "Storage Device" means any device or system on which computer Software can be Run, including a network server.

r. "You" means the subscriber to the PhoenixAI Market Data System and service or that person or entity who, having read the terms and conditions of this Agreement, accepts and agrees to be bound by such terms and conditions by clicking the "I accept" button within the Software, and "Your" has a corresponding meaning.



PhoenixAI Scanner- Inquisitor Access and Licence Agreement


The following terms and conditions, and the accompanying information about Charges payable by you to Aerarius for purchase and use of the Phoenix Scanner - Inquisitor which is sold by Aerarius licensed from Gryphon Learning Pty Ltd, represent an Agreement between you and Aerarius Indicium Pty Ltd.

PLEASE READ THE TERMS AND CONDITIONS CAREFULLY. All use of this service is conditional upon your acceptance, without modification, of the terms, conditions and notices contained in this Agreement. The PhoenixAI Scanner – Inquisitor and all accompanying documentation is protected by copyright laws and may only be used in accordance with this Agreement. By activating the Phoenix Scanner - Inquisitor, you will be taken to have accepted the Agreement and be legally bound by it.

1. Term
This Agreement commences when you are taken to have accepted its terms, as described above, and continues in force until it is terminated in accordance with clause 6.

2. PhoenixAI Scanner – Inquisitor and Derived Information
2.1 PhoenixAI System Subscription
In order to activate and use the Phoenix Scanner - Inquisitor you need to have a current subscription to the PhoenixAI System.
2.2 Grant of Non-Exclusive Licence to access and use Phoenix Scanner - Inquisitor.
Subject to this Agreement, Aerarius provides You with a non-exclusive licence to access and use the Phoenix Scanner - Inquisitor; starting from the time you Activate the Phoenix Scanner - Inquisitor on a computer until this Agreement is terminated.

2.3 Grant of Non-Exclusive Licence to Access and use Derived Information
Subject to this Agreement, Aerarius, for itself and on behalf of its Affiliates, grants you a non-exclusive licence to access and use the Derived Information and any documentation that accompanies the Software starting from the time you Activate the Phoenix Scanner - Inquisitor on a computer until this Agreement is terminated.

2.4 Activation
(a) You are taken to have Activated the Phoenix Scanner - Inquisitor on a computer when you:
(1) provide Aerarius with your full name, address and other details requested by Aerarius so that you can be registered as a licensed user and
(2) run the Software and input the unique access code provided to You by Aerarius for the first time
(b) You must notify Aerarius of any changes to any information You have provided to Aerarius under clause 2.4(a)(1) within 7 days after the change occurs.
2.5 Restrictions on use of the Phoenix Scanner - Inquisitor and Derived Information
You must not:

(a) use the Phoenix Scanner - Inquisitor or any Derived Information in any manner or for any purpose that is unlawful or in any manner that violates any right of Aerarius;
(b) restrict or inhibit any other user from using the Phoenix Scanner - Inquisitor or any Derived Information;
(c) post or transmit during access to the Phoenix Scanner - Inquisitor any unlawful, threatening, abusive, defamatory, obscene, vulgar, pornographic, profane or indecent information of any kind, including, without limitation, any act which may constitute or encourage anyone to commit a criminal offence, or which may give rise to civil liability or may otherwise violate any law;
(d) post or transmit during access, to the Phoenix Scanner - Inquisitor, anything which contains, or may contain a virus or other contaminating or destructive property to Software;
(e) delete or amend any statement or other information on the Phoenix Scanner - Inquisitor or tamper with the Phoenix Scanner - Inquisitor or attempt to do so; or
(f) give the unique access code, referred to in clause 2.4(a) (2), to any other person, or allow any other person to access the Phoenix Scanner - Inquisitor using your access details without Aerarius's express written permission;
(g) copy or modify any of the documentation accompanying the Software in any manner not expressly authorised by this Agreement.
(h) This clause will continue to apply after termination of this Agreement.
2.6 Restrictions on and conditions of use of Derived Information specified by Affiliates
If at any time an Affiliate, or Aerarius on behalf of an Affiliate, gives you notice of any restrictions or conditions as to your use of any Derived Information, you must comply with and observe those restrictions and conditions.

3. Charges
There are no ongoing charges payable to Aerarius for using the Phoenix Scanner - Inquisitor. It is your responsibility to maintain a current subscription to the PhoenixAI System.

4. Licence and restrictions
4.1 Installing and Running the Software
You may:

(a) Run one copy of the Software on a single computer.
(b) store or install one copy of the Software on a Storage Device used only to Run the Software on other computers attached to the Storage Device, provided that You acquire a licence from Aerarius on the same terms and conditions (with any necessary modifications) as those set out in this Agreement for each separate computer on which the Software is Run from the Storage Device.
4.2 Limited right to make Copies of the Software
After installing one copy of the Software, You may keep the original media, on which the Software was provided by Aerarius, solely for backup or archival purposes.

4.3 Restrictions
You must not:

(a) sell, re-sell, lend or rent the Software.
(b) decompile, disassemble, reverse-engineer, copy, create a derivative work or otherwise use the Phoenix Scanner - Inquisitor, Derived Information or Software, except as provided in this Agreement.
(c) directly or indirectly perform any act or omission that may endanger, jeopardise or prejudicially affect the Software, the Phoenix Scanner - Inquisitor or any Intellectual Property owned by Aerarius.
(d) at any time, divulge any information, drawing, specification, plan or document in relation to the design or specifications of the Phoenix Scanner - Inquisitor, Derived Information or Software, except as may be reasonably necessary to demonstrate, install and service the Software or future product for the purposes of this Agreement.
The obligations on you pursuant to this clause will survive termination of this Agreement and continue to bind you.

4.4 New Versions or Upgrades of the Software
Aerarius may, from time to time, issue new versions or upgrades of the Software, which may involve changes to the basis on which the Phoenix Scanner - Inquisitor or Derived Information may be accessed and used. If Aerarius offers you the right to use a new version or upgrade of the Software you must either:

(a) accept the new version or upgrade of the Software, in which case You must use it in accordance with the terms and conditions of this Agreement in substitution of the previous version of the Software; or
(b) terminate this Agreement by giving Aerarius Written Notice in accordance with Clause 6.3.
5. Acknowledgement of Ownership of Intellectual Property
You acknowledge and agree that, except for any rights expressly granted to You to use or access the Phoenix Scanner - Inquisitor, Software or Derived Information in this Agreement:

(a) the Aerarius Intellectual Property belongs to and remains the property of Aerarius;
(b) You must not, at any time, directly or indirectly, do or cause to be done, any act which infringes any Aerarius Intellectual Property and, without limiting the foregoing, you specifically acknowledge that you may not reproduce or copy the Software or the access code, except as otherwise expressly authorised by the Agreement;
(c) the Derived Information and all Intellectual Property therein belongs to and remains the property of Aerarius or its Affiliates (as the case may be);
(d) You do not have any licence or right to use any trademark displayed by or on the Phoenix Scanner - Inquisitor or in the Derived Information without the express written permission of Aerarius or the owner of the trademark, if Aerarius does not own it;
(e) nothing in the Phoenix Scanner - Inquisitor will be construed as granting you any licence or right to use any trademark displayed by or on the Phoenix Scanner - Inquisitor or in the Derived Information;
(f) You must not, at any time, directly or indirectly, do or cause to be done anything which does, or may, infringe those trademarks or diminish the value of those trademarks to Aerarius. The obligations on You pursuant to this clause will survive termination of this Agreement and continue to bind you.
6. Termination
6.1 When Aerarius may terminate
Aerarius may immediately terminate this Agreement if:

(a) Aerarius provides you with Written Notice of its intention to terminate the Agreement;
(b) You are in breach of any of the terms or conditions of this Agreement.
6.2 When you may terminate
You may terminate this Agreement at any time by destroying all copies of the software in your possession.
6.3 No refund
You acknowledge that Aerarius is under no obligation to refund all or any part of any Charges or price you have paid for this software.

6.4 Effect of termination
Termination of this Agreement:

(a) will not prejudice or otherwise affect any rights or obligations, expressed in this Agreement, in relation to any period after the date of termination;
(b) will not affect any right or remedy one Party has against another due to any breach of this Agreement; but
(c) will terminate all other rights and obligations under this Agreement.
6.5 Your obligations on termination
On termination of this Agreement, You must:

(a) cease to access the Phoenix Scanner - Inquisitor or Derived Information in any way.
(b) cease to use the Software in any way.
7. Privacy Statement
7.1 What this statement is about
Your right to privacy is important to us. This statement explains your privacy rights and our rights and obligations in relation to your personal information.

7.2 Your rights
(a) You need not give us any of the personal information requested in the application form or any other document or communication relating to your purchase of any software or services from Aerarius. However, without this information, we may not be able to process your application or provide an appropriate level of service.
(b) You may request access, at any time, to personal information held by us about you and ask us to correct it if you believe it is incorrect or out of date.
7.3 How we use your personal information
We use your personal information to:

(a) Process your purchase or application;
(b) Administer and manage your activation; and
(c) Facilitate our internal business operations, including fulfilment of any legal requirements and confidential systems maintenance and testing.
7.4 Our right to disclose your personal information
We may disclose your personal information if it is necessary to do so in the following circumstances:

(a) To our external service providers that provide services for the purposes only of our business, on a confidential basis, for example a mailing house;
(b) To securities exchanges and regulatory authorities in any jurisdiction;
(c) In connection with a proposed sale or acquisition of an interest in a business;
(d) To any complaints body to whom a complaint relating to our products or services is referred;
(e) If you request us to do so or where the law requires or permits us to do so.
8. Disclaimer and Limitation of Liability
8.1 Exclusion of implied terms
Each Party acknowledges that, in entering into this Agreement, it does not do so on the basis of, and does not rely on, any representations, warranty or other provision except as expressly provided herein, and all conditions, warranties or other terms implied by statute or common law are hereby excluded to the fullest extent permitted by law.

The acknowledgments provided in this clause will survive termination of this Agreement and continue to bind you.

8.2 Disclaimer
(a) You acknowledge and agree that access to the Phoenix Scanner - Inquisitor and the Derived Information is provided to you on an "as is" basis and that your use of the Phoenix Scanner - Inquisitor and the Derived Information is at your sole risk.
(b) Aerarius makes no warranty of any kind whatsoever relating to the Phoenix Scanner - Inquisitor, the Derived Information or the Software including, without limitation, as to:
(1) non-infringement of third Party rights, merchantability, fitness for any particular purpose or use, accuracy or completeness in respect of the Derived Information, except as expressly set out in this Agreement;
(2) the reliability, quality or availability of the Phoenix Scanner - Inquisitor or the Derived Information through the Internet;
(3) the absence of viruses or other contaminating or destructive properties in the Software; or
(4) any references in the Phoenix Scanner - Inquisitor to a website operated by a third party, access to or the contents of the website, or any hyperlink to gain access to the website.
(c) You acknowledge and agree that neither Aerarius nor its Affiliates will be held responsible to you for any use, or the results of any use, of the Phoenix Scanner - Inquisitor or Derived Information.
(d) You acknowledge and agree that:
(1) the Internet and telecommunication lines used to access the Internet are beyond the control of Aerarius;
(2) Aerarius does not and is unable to exert any control over other users of the Internet and telecommunication lines used to access the Internet;
(3) the hyperlinks and other pointers to websites maintained by others that are on the Phoenix Scanner - Inquisitor, and the websites themselves, are not under the control of Aerarius; and
(4) the hyperlinks and other pointers to websites maintained by others that may be on the Phoenix Scanner - Inquisitor are provided as a convenience only, are not endorsed by Aerarius in any way and, if you use them, you do so entirely at your own risk.
The acknowledgments and disclaimers provided in this clause will survive termination of this Agreement and continue to bind you.

8.3 Limitation of liability
(a) The total liability of Aerarius and its Affiliates for:
(1) any breach of this Agreement, or
(2) any breach in tort (including negligence), or otherwise
(3) any breach in connection with this Agreement, or
(4) any claims, loss or damage incurred in any way relating to the Software, or
(5) any breach in the provision of access to the Phoenix Scanner - Inquisitor or the Derived Information, or as a result of
(6) any act or omission by Aerarius, or any of its Affiliates, under or in connection with this Agreement
will not exceed $100 for all claims and causes of action and, in the case of a defective product or service provided under this Agreement, is limited at the option of Aerarius to the supply of the product or service again, or the payment of the cost of having it supplied again.

(b) No action, regardless of form, arising out of or pertaining to this Agreement may be brought by you against Aerarius or any of its Affiliates more than 3 Months from the date such cause of action arises.
(c) Neither Aerarius nor any of its Affiliates is liable to you or any other person for any indirect, consequential or incidental loss or any special or punitive damages caused or contributed to by Aerarius or any Affiliate under or in connection with this Agreement or the provision of any of the products or services referred to in this Agreement.
This clause will continue to apply after termination of this Agreement.

8.4 Subject to law
No exclusion of implied terms, or disclaimer, or limitation of liability contained in this clause applies to the extent that it is prohibited by the law.

8.5 Indemnity
You will use the Software and access the Phoenix Scanner - Inquisitor at your own risk and You will indemnify and keep indemnified Aerarius and hold harmless Aerarius, its agents, Affiliates, employees, and subcontractors against any loss, damage, cost or expenses resulting either directly or indirectly from the use of the Software or access to the Phoenix Scanner - Inquisitor or a breach or default or failure by either Party to perform its obligations under this Agreement.

The indemnities provided in this clause will survive termination of this Agreement and continue to bind you.

8.6 Disclaimer Regarding Investment Advice
The Derived Information is based on information about securities that is publicly available. In order to allow users to interpret this information, the Phoenix Scanner - Inquisitor produces technical indicators by applying formulae. These indicators are then presented in charts. These indicators do not in themselves indicate whether a security should be bought or sold and, therefore, should not be regarded as advice to do so.

(a) The Phoenix Scanner - Inquisitor provides factual information. It does not take into account the investment objectives, financial situation and particular needs of any particular person.
(b) Before making an investment decision on the basis of the Phoenix Scanner - Inquisitor prospective investors must recognise that the information is not suitable to be acted upon as investment advice; and it is advisable to seek, and You will seek, independent advice before making any investment decisions relying on the Derived Information provided.
This clause will continue to apply after termination of this Agreement.

9. Written Notices
(a) A Party may send a notice:
(1) by hand;
(2) by facsimile transmission;
(3) by registered mail;
(4) by e-mail or electronic newsletter;
(b) A notice is deemed to be given:
(1) if sent by hand, at the time of receipt.
(2) if sent by facsimile transmission, at the time recorded on the transmission report unless:
(A) the intended recipient promptly informs the sender that the transmission was received in an incomplete or garbled form; or
(B) the transmission report of the sender indicates a faulty or incomplete transmission.
(3) if sent by registered mail, at the time that the recipient or its agent acknowledges receipt.
(4) if sent by e-mail or electronic newsletter, at the time the sender's computer records the e-mail as having been sent, unless the intended recipient promptly informs the sender that the e-mail was received in an incomplete or garbled form.
(5) If delivery or receipt is not on a Business Day or, if receipt is later than 5:00 pm local time at the place of delivery on a Business Day, then the notice is deemed to have been received on the next Business Day.
(c) A notice to a Party must be sent:
(1) in the case of Aerarius, to
The Managing Director, Aerarius Indicium Pty Ltd, Level 1, 651-653 Doncaster Road, Doncaster VIC 3108
(2) in your case, to your address, facsimile number or e-mail address as supplied to Aerarius, or in such other way as the Party may notify the other Party in writing.
10. General
10.1 Governing law and jurisdiction
(a) This Agreement is governed by the laws of the State of Victoria, Australia.
(b) The Parties submit to the non-exclusive jurisdiction of the courts of Victoria, Australia.
10.2 Amendment
From time to time, Aerarius may make amendments to this Agreement by providing you with Written Notice of the change (as defined in clause 9). You will be obliged to comply with such amended terms, should you wish to continue using the products and services of Aerarius.

10.3 Waiver
A provision of this Agreement, or a right created under it, may not be waived except by a Written Notice by the Party granting the waiver.

10.4 Exercise of a right
(a) A Party may exercise a right:
(1) at its discretion; and
(2) separately or together with another right.
(b) If a Party exercises a single right, or only partially exercises a right, then that Party may still exercise that right or any other right later.
(c) If a Party fails to exercise a right or delays in exercising a right, then that Party may still exercise that right later.
10.5 Assignment
(a) This Agreement is for the benefit of the Parties and their successors and assigns.
(b) The Parties and their successors and assigns are bound by this Agreement.
(c) You may only assign your rights under this Agreement after You obtain the written consent of Aerarius.
10.6 Severance
(a) If a provision of this Agreement is void, voidable, unenforceable or illegal, but would not be void, voidable, unenforceable or illegal if it were read down and it is capable of being read down, then the provision must be read down.
(b) If a provision is incapable of being read down to save it and the provision would not be void, voidable, unenforceable or illegal if words were severed, then those words must be severed.
(c) In any other case, the whole provision must be severed.
(d) If a provision is read down or words are, or the provision is, severed, the remainder of this Agreement continues in full force and effect.
10.7 Costs and Taxes
Notwithstanding anything to the contrary contained in this Agreement:

(a) if any GST (goods and services tax) is imposed on or in respect of any products or services or payment for products or services provided by Aerarius to You under this Agreement, Aerarius may charge You for the amount of the GST so imposed and You must, on demand, pay the amount of GST to Aerarius, or as otherwise directed by Aerarius, in addition to any other amount payable by You under this Agreement;
(b) each Party must bear its own costs in relation to the negotiation, preparation and execution of this Agreement.
11. Definitions
In this Agreement, unless the context requires otherwise:


"Activates" or "Activation" means activating the Phoenix Scanner - Inquisitor on a computer as described in clause 2.4.

"Affiliate" means, with respect to Aerarius, an entity with whom Aerarius has a current licence Agreement or other contract to provide and/or carry Derived Information.

"Aerarius" means Aerarius Indicium Pty Ltd (ABN 84 102 210 748).

"Aerarius Intellectual Property" means Intellectual Property in the PhoenixAI Scanner - Inquisitor, PhoenixAI websites, Software, accompanying documentation and the access code.

"Business Day" means:

(a) for the purpose of sending or receiving a notice, a day on which banks are open for business in the city where the notice, or other communication, is received; and
(b) for all other purposes, a day on which banks are open for business in Melbourne, Victoria, Australia.
(c) The definition in this clause does not include a Saturday, Sunday or a public holiday in the relevant city.
"Charges" means those fees and extras charged to You by Aerarius in accordance with clause 3.

"Derived Information" means all data and other information provided by Aerarius, or its Affiliates, accessible through use of the Phoenix Scanner - Inquisitor.

"Gryphon Learning Intellectual Property" means Intellectual Property in the Gryphon Learning Multimedia, Gryphon Learning websites, Software, accompanying documentation and the access code.

"Phoenix Scanner - Inquisitor" means the computer programs and systems owned by Aerarius, licensed under Gryphon Learning also known as the Gryphon Scanner able to be accessed by use of the Software, being a communications and analytical computer-based system that permits the access, analysis and manipulation of Derived Information;

"Gryphon Learning" means Gryphon Learning Pty Ltd (ACN 098 597 427).

"Intellectual Property" includes copyright in any work, a right to any design or trademark.

"Month" means calendar Month.

"Party" means you or Aerarius (as the case requires) and "Parties" means you and Aerarius.

"PhoenixAI, PhoenixAI Market Data System" or "System" means the computer programs and systems developed by Aerarius able to be accessed by use of the Software, being a communications and analytical computer-based system that permits the access, analysis and manipulation of Derived Information.

"Run" means, in relation to the Software, to install, use, access, display or load a copy of the Software on a computer, computer system or on any Storage Device;

"Software" means:

(d) the object code versions of the computer programs that Aerarius has developed.
(e) any upgrades of, or supplements to, those programs and systems provided by Aerarius from time to time; and
(f) any associated media, printed materials, manuals and "online" or electronic documentation.
"Storage Device" means any device or system on which computer Software can be Run, including a network server.

"This Agreement" means this Access and Licence Agreement.

"Written Notice" means notice given by either Party in accordance with clause 9.

"You" or “Your” means that person or entity who, having read the terms and conditions of this Agreement, accepts and agrees to be bound by such terms and conditions by activating the Software.