WHISPLI GENERAL TERMS OF USE

Version dated 20/02/2018

In these General Terms of Use, we, us, our refer to Fraudsec Pty Ltd ACN 605 003 825 trading as Whispli.

Key terms used in these General Terms of Use are defined in clause 2.

 

PART A – USER TERMS

In this Part A, you, your refer to a User of Whispli.

If you are agreeing to these General Terms of Use for and on behalf of another entity under a valid and enforceable authority, for the purpose of these General Terms of Use, you refers to you personally and the entity you represent, as well as any person accessing Whispli by any method on your behalf or that entity’s behalf.

 

1.            Acceptance and duration of this Agreement

1.1          Acceptance
(a)            By using Whispli, you, as a User, accept and agree to:
(i)              these General Terms of Use;
(ii)             the Data Processing Addendum; and
(iii)            the Privacy Policy
(together this Agreement).

(b)            If a valid master service agreement exists between you and us, the terms of that agreement prevail over these General Terms of Use to the extent of any inconsistency between them.
(c)            Our Data Processing Addendum and our Privacy Policy address all matters regarding data and privacy when using Whispli. 
1.2          Duration
(a)            Upon acceptance of this Agreement, you are bound by its terms and you may use Whispli until:
(i)              you terminate this Agreement by giving us no less than 30 days’ notice in writing; or
(ii)             you or we terminate this Agreement by giving you no less than 30 days’ notice in writing; or
(iii)            we terminate this Agreement at any time, without notice, if in our absolute discretion we consider that you have breached any term of this Agreement.
(b)            Immediately upon termination, we will cease providing Whispli and any related services, and you must cease using Whispli.  
                                                                    

(c)            Within 30 days after termination of this Agreement, you must pay us all outstanding undisputed Fees due and owing as of the effective date of termination.

2.            Definitions and interpretation

In this Agreement, terms are defined throughout and otherwise:

Case Manager means a person authorised by the Client to manage the Whispli platform for and on behalf of the Client in accordance with the Client’s instructions;

Claim means any claim, demand, remedy, suit, action, proceeding, right of action, claim for compensation or claim for abatement of any monetary obligation, whether arising under contract (including this Agreement), in tort (including negligence), at common law, in equity, under statute, under an indemnity or otherwise;

Client means an organisation, business, association or other entity that subscribes to Whispli, either directly or through a Managed Service Partner and otherwise in accordance with this Agreement, to make the platform available to its Case Managers (or any of its related entities’ Case Managers) and to Informants;
Fees mean the fees and charges payable by a Client or a Managed Service Partner for access to, or use of Whispli as agreed between the Client or Managed Service Partner and us from time to time, but excludes any other fees or charges payable for other services provided by us from time to time;

Force Majeure Event means any event or circumstance, or a combination of events or circumstances, which is beyond our reasonable control, which by the exercise of due diligence we are not reasonably able to prevent or overcome and which has the effect of preventing us from providing Whispli or any related service or performing an obligation under this Agreement, and includes acts of God, strikes, lockouts, bans, slowdowns or other industrial disturbances, acts of enemy, wars (declared or undeclared), acts of terrorists, blockades or insurrections, riots and civil disturbances, arrest and restraint of rulers and peoples, fire or explosion, epidemic or quarantine, changes to any applicable law and interruptions to the availability of Whispli due to third-party services;

Informant means a stakeholder or person in the care of a Client that creates an Informant account to use Whispli;

Intellectual Property means all intellectual property and proprietary rights (including patents, trademarks, discoveries, inventions, improvements, know-how, trade secrets, confidential information, technical data, business data or formulae, computer programs, software, codes or databases, business processes, methodologies or systems, logos, marks, reputation, goodwill, trading name, drawings, designs or design rights, copyright or any material in which copyright exists, and any similar industrial or intellectual property rights) whether registered or unregistered, recorded or unrecorded, stored or incorporated in any medium of any nature or description;

Liability means all liabilities, damages, interest, fees, penalties, fines, assessments, forfeiture and expenses of whatever description (whether actual, contingent, current or prospective);

Loss means any loss, Liability, cost, expense, or damage, whether direct or indirect, present or future, fixed or ascertained, actual or contingent and whether arising under contract (including this agreement), in tort (including negligence), at common law, in equity, under statute, under an indemnity or otherwise;

Managed Service Partner means an entity approved by us to provide certain services to a Client in connection with Whispli;

Report means a report in relation to a Client submitted by an Informant using Whispli;

Reporting Information means any information related to a Report and includes an Upload;

Reporting Link means a URL or QR Code where a Report can be submitted to a Client;

Third Party means any person that is not a User, a Client or Whispli;

Upload means a file that has been uploaded to Whispli in relation to a Report; and

User means any person or entity that uses Whispli.

3.            How does Whispli work?


3.1          Whispli basics
(a)            Whispli is an online reporting solution for employees and other stakeholders.
(b)            Any User must register an account in Whispli to use Whispli.  The registration requirements vary depending on whether you are a Client, an Informant or a Managed Service Partner.
(c)            Users can be:
(i)              Clients: a person or an entity can subscribe to Whispli, either directly or through a Managed Service Partner and otherwise in accordance with this Agreement, to make the platform available to its Case Managers (or its related entities’ Case Managers) and to Informants;
(ii)             Case Managers: Case Managers can access Whispli to configure the platform, communicate securely with Informants, manage reports, cases, surveys, run analytics or any other use as they see fit (subject to this Agreement and the technical features made available by us);
(iii)            Informants: Informants can access the platform to communicate securely with a Client that has granted them access to use their Whispli platform to report potential misconduct, or respond to a survey, obtain approval for work related expenses or any other use as they see fit (subject to this Agreement and the technical features made available by us); or
(iv)           Managed Service Partners: an entity may be granted access to a Client account for the purpose of triaging incoming Reports, analysing Reports, interacting with Informants, or any other activities as agreed between the Client and the Managed Service Partner and may issue invoices and receives payment for Whispli and related services on our behalf.
(d)            Each category of User is not mutually exclusive (for example, a Case Manager may also be an Informant).
(e)            Fees are only payable by Clients and Managed Service Partners, not by Informants.
3.2          Whispli for Clients
Clients may perform the following:

(a)            subscribe and unsubscribe to the Whispli platform;
(b)            create Case Manager user profiles and assign permissions and restrictions on each user profile to allow the Informant to carry out any of the tasks listed above;
(c)            create and manage forms, automations, workflows
(d)            configure and manage a Client account, including:
(i)              creating a reporting link;
(ii)             creating and editing a description;
(iii)            creating and editing a message to be viewed by visitors to the reporting link;
(iv)           creating and editing a disclaimer on how a Report will be managed by a Client, and how this may affect an Informant;
(v)            limited customisation options for the look of the Whispli interface (including the reporting link) to align with the Client’s brand.
(vi)           download all Reports and Reporting Information;
(vii)          manage account and billing details if permitted; and
(viii)         such other features as may be added from time to time.
3.3          Whispli for Case Managers
Case Managers may for and on behalf of a Client or a Managed Service Partner:

(a)            send messages to an Informant;
(b)            receive messages from an Informant;
(c)            access Uploads;
(d)            manage the workflow for processing a Report by describing actions taken and updating the status of a Report; status options may include:
(i)              new;
(ii)             closed;
(iii)            delegated;
(iv)           assessed; investigated, resolved;
(v)            ignore; or
(vi)           any other status configured by the Client or Managed Service Partner from time-to-time;
(e)            have the option to remain anonymous on Whispli when communicating with an Informant;
(f)             update their User profile;
(g)            manage a Report or Case;
(h)            manage workflows; and
(i)              send and receive messages to and from other Case Managers within a Client account.
3.4          Whispli for Informants
Informants may:

(a)            decide to remain anonymous on Whispli using a Reporting Link or QR Code;
(b)            create an Informant account with the option to remain anonymous with respect to the relevant Client;
(c)            submit a Report;
(d)            submit Uploads; and
(e)            log back to their follow-up page (i.e. account) to send and receive messages with a Client.
3.5          Whispli for Managed Service Partners
Managed Service Partners may:

(a)            create accounts on behalf of Clients;
(b)            be invited to a Client account to view Reports and manage Cases;
(c)            receive and view Reports;
(d)            send messages to an Informant;
(e)            receive messages from an Informant;
(f)             access Uploads;
(g)            manage the workflow for processing a Report by describing actions taken and updating the status of a Report; status options may include:
(i)              new;
(ii)             closed;
(iii)            delegated;
(iv)           assessed; investigated, resolved;
(v)            ignore; or
(vi)           any other status configured by the Client or Managed Service Partner from time-to-time;
(h)            create and manage a Client account, including:
(i)              creating a reporting link;
(ii)             creating and editing a description;
(iii)            creating and editing a message to be viewed by visitors to the reporting link;
(iv)           creating and editing a disclaimer on how a Report will be managed by a Client, and how this may affect an Informant;
(v)            limited customisation options for the look of the Whispli interface (including the reporting link) to align with the Client’s brand.
(vi)           download all Reports and Reporting Information;
(vii)          create Case Manager user profiles for Whispli and assign permissions and restrictions on that user profile to allow the Informant to carry out any of the tasks listed above;
(viii)         manage account and billing details; and
(ix)           such other features as may be added from time to time.
 

4.            Using Whispli


4.1          Your obligations as a User
As a User:
(a)            you must comply with these General Terms of Use, the Data Processing Addendum and the Privacy Policy;
(b)            you must only use Whispli for its intended purpose as set out in this Agreement; and
(c)            all information you share on Whispli is true and correct to the best of your knowledge and belief.
4.2          User’s acknowledgments
As a User, you acknowledge and agree:
(a)            to the terms contained in Part B, Part C or Part D; although these terms may not apply directly to you, they may affect you;
(b)            that all information about an Informant is used and managed by the Informant or the Client, not us;
(c)            that an Informant account that is created by submitting a Report cannot be terminated or deleted by an Informant, however there is no obligation on an Informant to log in to Whispli or continue using Whispli once they have filed a Report, or supplied Reporting Information;
(d)            that you are using Whispli at your own risk;
(e)            that in the event that we come into possession of the identity or Personal Information of an Informant, we are under no contractual obligation to disclose such Personal Information to the Client under any circumstances; in limited circumstances, applicable laws may require us to disclose such Personal Information to certain Third Parties (such as law enforcement agencies); we refer you to our Data Processing Addendum for further details;
(f)             that Whispli is dependent on third-party services, including:
(i)              banks, credit card providers, BPAY;
(ii)             telecommunications services;
(iii)            hosting services;
(iv)           email services;
(v)            analytics services;
(g)            that we may suspend Whispli and any related service we may provide or obligation we may have during a Force Majeure Event; and
(h)            that we may restrict access to Whispli to certain locations where we are able to offer Whispli;
(i)              that any consent, authority or agreement given through Whispli is provided as an electronic transaction and will be binding;
(j)              that any request for a consent, authority or agreement you send to other Users through Whispli will be sent as an electronic transaction directly from your email address;
(k)            that Whispli:
(i)              may be hosted on servers located outside Australia and may also use email servers located outside of Australia. Such services may host or transmit a Report, or Reporting Information;
(ii)             is hosted by us and shall only be installed, accessed and maintained by us, accessed using the internet or other connection to our servers and is not available ‘locally’ from the User’s systems;
(iii)            is managed and supported exclusively by us via the hosting services used by us, and that no ‘back-end’ access to Whispli is available to you unless expressly agreed by us in writing;
(iv)           as a hosted and managed service, we reserve the right to upgrade, maintain, tune, backup, amend, add or remove features and exercises, redesign, improve or otherwise alter Whispli, however to the extent permitted by law, we will not do anything that would intentionally cause you to lose access to your User account or its content, or fundamentally decrease the utility of Whispli to you.
4.3          User’s warranties and indemnity
As a User, you represent and warrant to us that:
(a)            if you are agreeing to this Agreement for and on behalf of another person or entity, you have the authority to bind that person or entity;
(b)            all information you share on Whispli is true and correct to the best of your knowledge and belief,
and to the extent permitted by law, you indemnify us and will hold us harmless from any Loss suffered by us and against all Claims and Liabilities arising as a result of your use of Whispli.

5.            Intellectual Property


5.1          Our Intellectual Property
(a)            We own all rights (including Intellectual Property rights), title and interest in and to Whispli, all related software, technology, services, and all of our content provided in connection with Whispli (including (without limitation) any source code, analytics, suggestions, ideas, enhancements, requests, feedback and recommendations), as well as all related suggestions, ideas, enhancements, requests, feedback and recommendations provided by you to us during your use of Whispli.
(b)            Except as expressly provided for in this Agreement, you must not use any of our Intellectual Property without our prior written permission.
(c)            You warrant that you will not:
(i)              infringe any Intellectual Property rights through the use of Whispli;
(ii)             copy Whispli or the services that it provides for your own commercial purposes; or
(iii)            directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in Whispli or any documentation associated with it.
5.2          Licence to use Whispli
(a)            Provided you are not in breach of any terms of this Agreement and that you have paid the applicable Fees, you are granted a limited, non-exclusive and revocable licence to access and use Whispli for the duration of this Agreement, subject to any condition specified by us (including the number of Case Managers or volume of Users or transactions) as we see fit.
(b)            We may revoke or suspend your licence in our absolute discretion, including for breach of the terms and conditions in this Agreement by you or any of your Case Managers or Users.  We will ordinarily advise you of any suspension or revocation however we are under no obligation to do so.

6.            Confidential Information


In this clause 6

Confidential Information means all information (whether or not it is described as confidential) in any form or medium concerning any past, present or future business, operations or affairs of a party, including:

(a)            all technical or non-technical data, formulae, patterns, programs, devices, methods, techniques, plans, drawings, models and processes, source and object code, software and computer records;
(b)            all business and marketing plans and projections, details of agreements and arrangements with third parties, and customer and supplier information and lists;
(c)            all financial information, pricing schedules and structures, product margins, remuneration details and investment outlays;
(d)            all information concerning any employee, customer, contractor, supplier or agent of the relevant party;
(e)            the party's policies and procedures; and
(f)             all information contained in this document,
but excludes information that the other party can establish:
(g)            is known by or is in the other party's possession or control other than through a breach of this document and is not subject to any obligation of confidence; or
(h)            is in the public domain other than by a breach of this document or any obligations of confidence;
you are a Recipient and we are a Discloser with respect to our Confidential Information; and

we a Recipient and you are a Discloser with respect to your Confidential Information.

6.2          Confidentiality
Each Recipient must:

(a)            keep the Discloser’s Confidential Information confidential and not disclose it or allow it to be disclosed to any Third Party except:
(i)              with the prior written approval of the Discloser; or
(ii)             to officers, employees and consultants or advisers of the Recipient who have a need to know (and only to the extent that each has a need to know) for the purposes of this Agreement and are aware that the Confidential Information must be kept confidential; or
(iii)            as otherwise provided for under this Agreement; and
(b)            take or cause to be taken reasonable precautions necessary to maintain the secrecy and confidentiality of the Confidential Information.
6.3          Exceptions
The obligations of confidentiality under this Agreement do not extend to information:

(a)            disclosed to a Recipient, but at the time of disclosure is rightfully known to or in the possession or control of that Recipient and not subject to an obligation of confidentiality on the Recipient;
(b)            that is public knowledge (except because of a breach of this Agreement or any other obligation of confidence); or
(c)            required to be disclosed by law or any order of any court, tribunal, authority or regulatory body or in connection with the enforcement of this Agreement or by the rules of a recognised stock exchange.

7.            Limitation of Liability and indemnity


7.1          Limitation of Liability
To the extent permitted by law:
(a)            we accept no Liability for:
(i)              any improper use of Whispli;
(ii)             any action or omission resulting from the use of Whispli;
(iii)            any matter relating to any content or information shared on Whispli;
(iv)           any suspension of Whispli or any related service we may provide or obligation we may have during a Force Majeure Event;
(v)            any information contained on any linked Third-Party website; and
(b)            our aggregate Liability to you arising out of or in relation to Whispli is limited to your direct Loss and in the case of a Client, is further limited to the Fees you have paid us in the 12-month period immediately preceding the event giving rise to such Liability.
7.2          No representations or warranties
(a)            To the extent permitted by law:
(i)              we make no representation, warranty, or guarantee as to the reliability, accuracy, or completeness of any part of Whispli or the related services we may provide to you,
(ii)             we do not represent or warrant that:
(A)           your use of Whispli will be timely, uninterrupted, or error-free, or operate in combination with any other hardware, software, systems, or data;
(B)           Whispli will meet your requirements or expectations;
(C)           all non-conformities can be or will be corrected;
(D)           all services provided by us are strictly on an “as is” basis;
(iii)            except for the warranties expressly given in this Agreement, no term, condition, warranty, representation or covenant of any kind, or inducement to enter into this agreement, is given by us or any of our representatives in respect of any aspect of Whispli, or is implied in this Agreement; and
(iv)           all conditions, representations or terms implied or imposed by law are excluded.
(b)            Nothing in this Agreement excludes, restricts or modifies any condition, warranty or Liability which may at any time be implied by law, where to do so is unlawful and would render any provision of this Agreement void.  Where required to provide certain warranties at law, we may, if we are entitled to do so at law, elect to either:
(i)              re-supply certain services; or
(ii)             pay for the cost of re-supply of certain services.

8.            Dispute resolution

8.1          A party will not commence arbitration or court proceedings in respect of a dispute arising out of this Agreement, its breach or termination or a Claim as to its validity (Dispute) until it has complied with this clause 1 and unless it:
(a)            seeks equitable relief or urgent interlocutory relief; or
(b)            attempts in good faith to comply with this clause 8 but another party to the Dispute does not comply with this clause 8.          
8.2          A party claiming that a Dispute has arisen will notify the other parties to this Agreement in writing, within five Business Days of that Dispute arising, giving details of that Dispute.
8.3          Within the period of 5 Business Days following service of a notice under clause 8.2, the parties to the Dispute will meet (in person, on the telephone or otherwise) and negotiate in good faith using their best efforts to resolve the Dispute.
8.4          A settlement reached will be rendered into writing between the parties to the Dispute and will be binding.
8.5          Where the parties to the Dispute are unable to arrive at a settlement under clause 8.3, then they will, within 10 Business Days, attempt to settle the Dispute by mediation or conciliation administered by the Australian Commercial Disputes Centre (ACDC).
8.6          If an agreement is not reached following mediation or conciliation in accordance with clause 8.5, after a period of 20 Business Days a party to the Dispute may take any steps they choose, including arbitration conducted in Sydney (Australia), and administered by the ACDC.
8.7          The parties will not disclose information obtained during the Dispute resolution process to any other person or entity not involved in that Dispute, unless for the purpose of obtaining legal advice or where required by law or the rules of a recognised stock exchange.
8.8          This clause 8 survives termination of this Agreement and remains in full force and effect after its termination.

9.            General provisions

9.1          This Agreement constitutes the entire agreement between the parties and supersedes any prior conduct, arrangement, agreement or understanding in relation to its subject matter.
9.2          If a provision in this Agreement is unenforceable or invalid in any jurisdiction, it will be ineffective in that jurisdiction to the extent that it is unenforceable or invalid.  No provision in this Agreement will otherwise be affected in any jurisdiction. 
9.3          Unless provided to the contrary in this Agreement, each party will pay its own costs in relation to the negotiation, preparation, execution and performance of this Agreement.
9.4          The parties to this Agreement consent to the use of electronic communications as a means of communicating about this Agreement and the matters contained within it.
9.5          A notice or other communication to or by a party under this Agreement:
(a)            will be in writing;
(b)            may be delivered in person, by email or by post to an address of the recipient specified in this agreement or any new address of the recipient known to the sender;
(c)            subject to paragraph 8.4, is deemed to be effective:
(i)              if delivered in person, upon delivery to the recipient;
(ii)             if sent by email, one Business Day after the date shown on the email of the sender, unless:
(A) the sender receives an automated notification that the email has not been received by the intended recipient, in which case the notice is deemed to not have been served at the time of sending; or
(B) receipt is acknowledged by the recipient sooner than one Business Day, in which case the notice is deemed to have been served at the time the receipt is acknowledged;
(iii)            if posted, 6 Business Days after the date of posting to the addressee; and
(iv)           if delivered or received on a day which is not a Business Day, it is taken to have been delivered or received on the following Business Day and, if delivered or received after 4:00pm (addressee’s time), then notice is taken to have occurred at 9:00am on the following Business Day.
9.6          Unless provided to the contrary in this Agreement, a User is not capable of assigning, novating or encumbering any right or Liability under this Agreement without our prior written consent.
9.7          Unless provided to the contrary in this Agreement, no party is authorised to bind another party and nothing in this agreement is to be construed as creating an employment, agency, partnership, fiduciary or joint venture relationship between any of the parties.
9.8          Unless provided to the contrary in this Agreement, the rights and powers under this agreement are in addition to, and do not exclude or limit, any right or power provided by law or equity.
9.9          This Agreement binds and benefits the parties to this agreement, their successors and permitted assigns.
9.10       The laws of New South Wales, Australia govern this Agreement. 
9.11       Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in New South Wales, Australia and waives any right to claim that those courts are an inconvenient forum.
9.12       In this Agreement, unless the context requires otherwise:
(a)            the singular includes its plural and vice versa;
(b)            words denoting any gender include all genders;
(c)            headings are for convenience only and do not affect interpretation;
(d)            a reference to:
(i)              a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity;
(ii)             a party to this agreement or another document includes that party’s successors, permitted substitutes or permitted assigns;
(iii)            a particular time is to that time in Sydney, Australia;
(iv)           a reference to any agreement (including this Agreement) or document is to the agreement or document as amended, supplemented, novated or replaced from time to time;
(v)            a clause, paragraph, schedule or annexure is to a clause, paragraph, schedule or annexure in or to this agreement;
(vi)           this agreement includes any schedules and annexures to this agreement;
(vii)          writing includes any method of representing or reproducing words, figures, drawings or symbols in a visible or tangible form; and
(viii)         legislation (including subordinate legislation) or a provision of it is to that legislation or provision as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
(e)            words such as including or for example do not limit the meaning of the words preceding them;
(f)             an obligation or liability assumed by, or a right conferred on, two or more parties binds or benefits all of them jointly and each of them severally; and
(g)            nothing in this Agreement is to be interpreted against a party solely on the ground that the party or its advisers drafted it.

 

PART B – CLIENT TERMS

 

In this Part B, you, your refer to a Client of Whispli.

1.            Using Whispli as a Client


1.1          Your obligations as a Client
As a Client:

(a)            you must comply with these General Terms of Use, the Data Processing Addendum and the Privacy Policy;
(b)            you must create a Case Manager account for each of your Case Managers and you must pay the applicable Fee for each Case Manager account;
(c)            all Case Managers authorised or deemed to be authorised by you to use Whispli, must be over the age of 18 years and has full capacity to enter into a contract and use Whispli;
(d)            you are solely responsible for ensuring that your use of Whispli and your storage of Reporting Information in Whispli is compliant with all applicable laws;
(e)            you must ensure that your own privacy policy and other contractual documents regarding the handling and use of Informants’ information accurately reflect your use of Whispli;
(f)             you must ensure that all information that you make available through Whispli is accurate and up to date, including information supplied for:
(i)              creating and updating a Client account;
(ii)             creating and updating a Case Manager account;
(iii)            managing the workflow in response to a Report;
(iv)           communicating with an Informant; and
(v)            any other information that may be accessed by you or an Informant;
(g)            you must not disclose any information about an Informant to any other person unless it is absolutely necessary in order to investigate and reach a determination on a Report;
(h)            you must ensure all Personal Information you have access to through your use of Whispli is kept and used in accordance with all applicable laws in the relevant jurisdiction;
(i)              you must only use Whispli for its intended purpose as set out in these General Terms of Use;
(j)              you must not use Whispli for improper or unlawful purposes, such as to discriminate against or victimise Informants;
(k)            if you pay Fees to a Managed Service Partner, any Claim or request for service regarding Whispli must be made to the Managed Service Partner in the first instance.
1.2          Client’s acknowledgments
As a Client, you acknowledge and agree that:

(a)            your licence to use Whispli is subject to the payment of all necessary Fees;
(b)            a person who registers as a Client in Whispli warrants that he or she is an authorised representative of that Client with the requisite authority to bind the Client to this Agreement;
(c)            we may refuse to enable, suspend or delete a Client account if we are not satisfied that you have the requisite authority to register that Client;
(d)            in the event that we come into possession of the identity or Personal Information of an Informant, we shall be under no obligation to disclose such Personal Information to you under any circumstances.
1.3          Client warranties and indemnities
(a)            If you subscribe to Whispli for and on behalf of a Client, you warrant that you are an authorised representative of that Client with the requisite authority to receive and manage Reports in relation to that Client in accordance with this Agreement.
(b)            You warrant that all Case Managers authorised or deemed to be authorised by you to use Whispli, are over the age of 18 years and has full capacity to enter into a contract and use Whispli.
(c)            If you authorise any person who is under the age of 18 years or who is incapacitated (whether fully or partially, permanently or temporarily) to be Users (other than Case Managers), you warrant that you have obtained all necessary consents (including from their parents or guardians) before authorising those Users to use Whispli.
(d)            To the extent permitted by law, you indemnify us and will hold us harmless from any Loss suffered by us and against all Claims and Liabilities arising as a result of a breach of your obligations and warranties under this Agreement.
2.            Fees
2.1          Fees and charges
(a)            Fees payable for Whispli and any charges for certain services provided by us to you will be as agreed between you and us from time to time.
(b)            Fees are payable for each Case Manager account created by a Client.
(c)            Fees may be payable in selected currencies as available on Whispli from time to time.
(d)            You agree to pay all Fees and any charges for certain services provided by us to us as and when they fall due and to the extent permissible by law.
(e)            Where a Fee is paid for a particular term of licence to use Whispli, the User shall not be entitled to a pro-rata refund of any Fees if it elects to stop using Whispli within that term.
(f)             We may revoke or suspend your licence to use Whispli if you fail to pay the Fees and accept no Liability as a result.
(g)            Where we:
(i)              are required to perform any services for a User outside of what is set out in this Agreement or otherwise in writing; and
(ii)             are subject to delays caused by changes or complexities outside of our control (and not caused by our breach of this Agreement), then
you agree that we shall be entitled to charge you an additional amount that is reasonable for the service performed.
(h)            Value-added tax may apply to the Fees depending on your location.  Unless expressed otherwise, all Fees shall be deemed exclusive of value-added tax.
(i)              No refunds of Fees or charges for certain services provided by us are offered other than as specified in this Agreement or as required by law.
2.2          Invoicing and payment
(a)            We or a Managed Service Partner will issue a tax invoice to you for all Fees and any charges payable to us under this Agreement if we are required to do so under the applicable law.
(b)            The terms of payment set out in the tax invoice shall apply.
(c)            Should you dispute a tax invoice, you must notify we or Managed Service Partner that issued the invoice of the disputed item within 5 Business Days of the date of the tax invoice.  You must pay the amount of the tax invoice not in dispute within the prescribed payment period.
(d)            Overdue tax invoices shall accrue interest at the rate of 5% per month, or in default, the maximum rate of penalty interest prescribed by the applicable law.

 

PART C – INFORMANT TERMS

In this Part C, you, your refer to an Informant of Whispli.

1.            Using Whispli as an Informant


1.1          Your obligations as an Informant
If you are using Whispli as an Informant, you:

(a)            must comply with these General Terms of Use, the Data Processing Addendum and the Privacy Policy;
(b)            acknowledge that the Client will use the information supplied by the Informant to conduct an investigation into the matters disclosed by the Informant in the Report and Reporting Information;
(c)            must not use Whispli for malicious purposes toward a Client or any other person including for inappropriate or unlawful purposes, including:
(i)              defamation;
(ii)             blackmail;
(iii)            making false allegations of wrongdoing or unlawful activity; or
(iv)           threatening person or property;
1.2          Informant’s acknowledgments
If you are using Whispli as an Informant, you acknowledge and agree that:

(a)            you should not be required to pay any Fees or other charges in relation to your use of Whispli as an Informant;
(b)            once a Report or Reporting Information has been submitted, you, as an Informant, cannot remove a Report or rescind Reporting Information, nor request us to remove such Report or Reporting Information;
(c)            we bare no responsibility if you lose your anonymity in the event that anyone (including the Client or any employee) deduces your identity from the contents of a Report or Reporting Information;
(d)            it is your responsibility to login to Whispli to check messages from the Client;
(e)            any information shared by Whispli with a Client may be retained by the Client for the purpose of investigating a Report and making a determination in relation to the matters discussed in the Report;
(f)             Whispli may send you messages and Uploads on behalf of the Client;
(g)            all information about you is used and managed by you or the Client authorised by you to receive the Report and Reporting Information, not us;
(h)            the Client authorised by you to receive the Report and Reporting Information may have its own policy governing access to this information and the use of Whispli; it is your responsibility to determine whether such a policy exists, familiarise yourself with its content and abide by it prior to submitting a Report and throughout the investigation and determination process.
(i)              Whispli may be hosted on servers located outside Australia and may also use email servers located outside of Australia; such services may host or transmit an Informant’s Report and Reporting Information.
(j)              to the extent permitted by law, you may request to terminate your Informant account that is created by submitting a Report, however you have no obligation to log in to Whispli or continue using Whispli once you have filed a Report, or supplied Reporting Information;
(k)            any consent given or statement made by an Informant through Whispli is valid and binding unless and until revoked by you, and a Client may rely on such consent or statement without any need to further verify the veracity of that consent.
1.3          Informant warranties and indemnities
(a)            You warrant that all Reporting Information and the contents of a Report are true and correct to the best of their knowledge and belief.
(b)            You indemnify us and will hold us harmless against from any Loss suffered by us and against all Claims and Liabilities arising as a result of you submitting a Report and any Reporting Information.
(c)            We accept no Liability resulting from your failure to login to Whispli to follow the progress of your Report.
(d)            To the extent permitted by law, any Claim relating to your use of Whispli must be directed to the Client to whom the Client account or Informant account belongs.
(e)            To the extent permitted by law, you indemnify us and will hold us harmless from any Loss suffered by us and against all Claims and Liabilities arising as a result of a breach of your obligations and warranties under this Agreement.