Share Based Payments End User Licence Agreement

Share-Based Payments (SBP) End User Licence Agreement

By accessing or using the Share-Based Payments or SBP solution, and the content and materials contained therein (the Solution), you agree to the following terms of this end user licence agreement (EULA). Please read these terms and conditions carefully before using the Solution.

  1. The term “we” or “us” refers to Deloitte Solutions Pty Limited (Deloitte). The term “you” refers to the user of the Solution or those users who you authorise to make use of the Solution (Authorised Users). You are responsible for adding or removing Authorised Users to or from your account and for ensuring that you take appropriate security measures to protect access to the Solution, including by protecting and administering access to username and password details.
  2. Share-Based Payments or SBP is a solution that provides a report on the fair value of an entity’s share based payments having regard to the requirements of the relevant Accounting Standard (Report) and is provided to you subject to the terms of this EULA. For the purpose of this Solution, fair value is defined as the amount for which an asset could be exchanged, a liability settled, or an equity instrument granted could be exchanged, between knowledgeable, willing parties in an arm’s length transaction (and having regard to the requirements of AASB 2).
  3. Your use of the Solution is defined under APES 225 Valuation Services (APES 225). It will be conducted in accordance with statements, standards and guidelines issued by the Accounting and Professional Ethics Standards Board including APES 225.  A description of the three types of valuation engagements as defined under APES 225 is provided below:
    1. Calculation Engagement means an Engagement to perform a Valuation and provide a Valuation Report where Deloitte and the Client agree on the Valuation Approaches, Valuation Methods and Valuation Procedures Deloitte will employ. A Calculation Engagement generally does not include all of the Valuation Procedures required for a Valuation Engagement or a Limited Scope Valuation Engagement
    2. Limited Scope Valuation Engagement means an Engagement to perform a Valuation and provide a Valuation Report where the scope of work is limited or restricted. The scope of work is limited or restricted where Deloitte is not free, as we would be but for the limitation or restriction, to employ the Valuation Approaches, Valuation Methods and Valuation Procedures that a reasonable and informed third party would perform taking into consideration all the specific facts and circumstances of the Engagement available to Deloitte at that time, and it is reasonable to expect that the effect of the limitation or restriction on the estimate of value is material. A limitation or restriction may be imposed by the Client or it may arise from other sources or circumstances. A limitation or restriction may be present and known at the outset of the Engagement or may arise or become known during the course of a Valuation Engagement. A Limited Scope Valuation Engagement may also be referred to as a “restricted-scope valuation engagement” or an “indicative valuation engagement”
    3. Valuation Engagement means an Engagement to perform a Valuation and provide a Valuation Report where Deloitte is free to employ the Valuation Approaches, Valuation Methods, and Valuation Procedures that a reasonable and informed third party would perform taking into consideration all the specific facts and circumstances of the Engagement available to Deloitte at that time. Where Deloitte has entered into a Valuation Engagement but during the course of performing the Valuation Engagement Deloitte becomes aware of a limitation or restriction that, if it had been known at the time the Engagement was entered into, would have made the Engagement or Assignment a Limited Scope Valuation Engagement then the Valuation Engagement will become a Limited Scope Valuation Engagement.
  4. By making use of the Solution, you acknowledge and agree that you should not rely on it, the information contained therein or any Report you receive (Output). You also acknowledge that the ultimate responsibility for the determination of the appropriate accounting treatment of the Output rests with you. We suggest you discuss any decision concerning the appropriate accounting treatment of the Output with your external auditor. Please also note that the Solution has a number of limitations, including that it is not appropriate for use where the relevant company (or that company’s comparators) has been listed on the ASX for less than one year unless you update the volatility in the solution manually. For further information please refer to the following: https://help.solutionsbydeloitte.com.au/hc/en-us/articles/115005518507-Expected-volatility-for-newly-listed-entities. If you have any questions regarding the Solution or your use of it, please contact the Deloitte Help Centre at https://help.solutionsbydeloitte.com.au.
  5. The Report will provide results based solely on the facts and other information provided to us by you and the Solution’s interpretation of the relevant Australian accounting pronouncements currently on issue. Please note that if the facts (including provision of a current and accurate ASX code), circumstances, assumptions or other information provided prove to be different or to change between the date of you entering information into the Solution and the date of the Report being received by you, the Report results may vary. We will not audit, test or otherwise verify any of the information you provide to us and you agree that we are entitled to assume that the information you provide to us is accurate, complete and not misleading in any way. We have no responsibility to update the Report for events and circumstances occurring after the date of the Report.
  6. In the event that new or revised Australian Accounting Standards or Interpretations are issued in the future, the appropriate accounting treatment of the Output should be reconsidered in light of such changes and/or new requirements. We are under no obligation however to update the Report for information provided subsequent to your receipt of the Report.
  7. The interpretation of Australian accounting pronouncements involves the exercise of professional judgement. In particular, many issues relating to Australian Equivalents to International Financial Reporting Standards presently remain subject to professional interpretation in the absence of relevant authoritative interpretations. Accordingly, the facts, circumstances, assumptions and conclusions used in the Solution may be viewed differently by others including the Australian Securities and Investments Commission (ASIC). In addition, due to the evolution of professional interpretation of Australian accounting pronouncements, the facts, circumstances, assumptions and conclusions used in the Solution may subsequently be viewed differently by us and/or others including the ASIC. We are under no obligation to update the Solution for changes in our interpretation of Australian accounting pronouncements.
  8. In accordance with the requirements of APES 225, we confirm that we have complied with the independence requirements of the standard and confirm we are independent for the purposes of our Work.
  9. In the delivery of these professional services we may also engage other Member Firms including the Deloitte Extended Delivery Centre (EDC) to assist with certain aspects of this engagement. EDC refers to Member Firms and their affiliates operating in India. We will at all times remain responsible for the work undertaken in the delivery of those services to you.
  10. You agree that you will not use the Report for financial reporting purposes. You are granted a non-transferable, limited, non-exclusive, revocable, royalty-free licence to access and use the Solution, including any Third Party Material, where applicable. You may only use the Solution for your internal financial reporting purposes, and for no other purpose, and must not (i) distribute, rebrand, market, relicense, sublicense, rent, lease, assign, re-package, license, sell, adapt, translate, enhance, copy, modify, decompile, disassemble, reverse engineer or translate of the whole or any part of the Solution; (ii) merge the Solution into any other platform or Solution or port any content from the Solution to any other platform or Solution; (iii) create derivative works based on the Solution; (iv) duplicate, sell or reproduce any of the content available through the Solution, or any portion thereof, except as permitted in the applicable licence grant set forth herein; and/or (v) use the Solution or any content contained therein to develop, licence, sublicence or otherwise make available any product or service that mimics, duplicates or competes with the features and/or functionality of the Solution. Third Party Material means data, databases, information, computer software and other materials which are owned by Morningstar, Inc or such other third party suppliers as may be specified from time to time (Third Party Supplier) and sublicensed to you pursuant to this EULA, and where the context requires, includes copies of the Third Party Material and any modifications or updates to the Third Party Material.
  11. You must ensure that at all times the Third Party Material contains any copyright notices or disclaimers that were affixed to the Third Party Material by us or by the Third Party Supplier. You acknowledge that (i) we do not warrant the accuracy of the data and/or software produced by a Third Party Supplier; (ii) as a condition of the supply by us of Third Party Material to you, the Third Party Supplier disclaims all warranties that they are permitted by law to disclaim in relation to the Third Party Material supplied by them and makes no representations as to the state, quality, condition, accuracy or completeness of the Third Party Material and that they are not under any liability to you for any loss or damage (including consequential loss or damage suffered by any person arising from your use of the Third Party Materials); (iii) you will advise us if you discover any errors in the Third Party Materials; (iv) you are a sub-licensee of the Third Party Supplier. You agree to comply with any reasonable direction given by us or the Third Party Supplier related to your use of the Third Party Material including, where applicable, complying with any future legislation and/or government policy which imposes binding restrictions or limitations relating to the supply of Third party Material; (v) You are responsible for yours and your Authorised Users’ compliance with the terms of any Third Party Supplier terms relating to your use of the Third Party Materials. We will provide these to you upon request; and (vi) the Third Party Supplier is, to the extent permitted by the Law of any relevant jurisdiction, an intended third-party beneficiary of, and entitled to enforce, this EULA in its own right.
  12. When you decide to purchase a subscription to the Solution, we will charge you a fee of $4,999 for a twelve month subscription, which provides you with one approved report (Licence Fee). Unless otherwise stated on the Solutions by Deloitte website, the Licence Fee excludes GST. You agree to pay any GST imposed on us, now or in the future in relation to this Agreement. Each type of subscription allows you to conduct draft calculations with the Solution until such time as you have exhausted your allocation of signed Reports as referred to above.
  13. In consideration for the Licence Fee, we shall provide support to you in the operation of the Solution via telephone or email during normal business hours (9am – 5pm in Victoria) excluding weekends and Victorian public holidays, provided that you (or your representative) has undertaken training in the use of the Solution from us or another trainer as agreed between us. If we have agreed, we will provide training in the use of the Solutions for the number of days agreed.
  14. You acknowledge and agree that neither the Solution nor the content contained therein constitute professional, tax or legal advice of any kind and do not consider your specific objectives, situation or needs. You further acknowledge and agree that you should not rely on the Solution or the information contained within the Solution. Our procedures and enquiries will not include verification work nor constitute an audit or a review engagement in accordance with standards issued by the Auditing and Assurance Standards Board (AUASB) or equivalent body and therefore the information used in undertaking our work may not be entirely reliable.
  15. You are responsible for any decisions that you make as a result of your use of the Solution. To the extent permitted at law, Deloitte accepts no duty of care or liability to anyone regarding the Solution or its contents.
  16. Any rights not expressly granted in this EULA are reserved by Deloitte and all implied licences are disclaimed.
  17. You confirm that you have, or have made necessary arrangements to have in place suitable hardware, software and access to the internet to enable you to use the Solution. You agree not to upload, post, email or otherwise send or transmit or introduce any material that contains software viruses or any other computer code, files or programs designed to interrupt, harm, damage, destroy or limit the functionality of any computer software or hardware or equipment linked directly or indirectly with the Solution or the Solution itself. You agree not to interfere with the servers or networks underlying or connected to the Solution or to violate any of the procedures, policies or regulations of networks connected to the Solution. You many not access the Solution in an unauthorised manner.
  18. You are responsible for complying with all applicable laws in relation to your use of, or access to, the Solution. You agree not to impersonate any other person while using the Solution, conduct yourself in an offensive manner while using the Solution, or use the Solution for any illegal, immoral or harmful purpose.
  19. By breaching the provisions of this EULA, you may commit a criminal offence under applicable laws. We may report any such breach to the relevant law enforcement authorities and we may cooperate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use the Solution will cease immediately.
  20. Each of us agrees to protect and keep confidential any Confidential Information that is given to us by the other. You acknowledge that we may provide certain Confidential Information to our third party service providers. However we will remain primarily liable for any use or disclosure of such Confidential Information by those third parties. Each of us also acknowledges that the terms of the Deloitte Privacy Policy will apply to your use of the Solution. The Deloitte Privacy Policy can be accessed here: http://www.deloitte.com/view/en_AU/au/privacy/index.htm. You further acknowledge that, to the extent of any inconsistency between this EULA and the Deloitte Privacy Policy, the terms of this EULA will prevail. Confidential Information means any information or material that is proprietary to or deemed to be proprietary to either party and is disclosed to the other party further to us providing you with the right to access and use the Solution in accordance with this EULA. For the avoidance of doubt, the Solution and any Third Party Material is considered Confidential Information of ours.
  21. All materials (including logos, company names, trademarks, images, software and content whether downloaded or not and any updates or amendments to those materials) (Materials) contained in the Solution are owned by Deloitte (or our affiliates and/or third party licensors, where applicable), unless indicated otherwise. You agree and acknowledge that the Materials are valuable property and that, other than any licence granted to you in this EULA, you shall not acquire any ownership rights in or to such Materials. The Materials may not be used except as provided for in this EULA and in any other agreement you execute with Deloitte or one of our authorised third party distributors of the Solution.
  22. THE SOLUTION IS PROVIDED TO YOU ON AN ‘AS IS’ BASIS AND TO the extent permitted BY APPLICABLE law, all terms, conditions, wArranties, undertakings, inducements or representations on any basis (including negligence) whether express, implied, statutory or otherwise relating in any way to the Solution are excluded BY DELOITTE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY OR COMPLETENESS OF RESPONSES. without limiting the foregoing, any liability under any condition, warrantY or representation that by law cannot be excluded is, where permitted by law, at our option, to repair or replace the Solution. to the extent permitted by law, all our liability is excluded in respect of any indirect or consequential loss incurred by you, in relation to the Solution and in any event for any loss of income or lost or corrupted data.
  23. You indemnify, defend and hold Deloitte, the Third Party Suppliers and each of those parties’ successors and permitted assigns (those indemnified) harmless of and from any damage, loss, cost or expense or any other liability of every nature, kind and description whatsoever (including, without limitation, consequential loss and reasonable attorneys’ fees and expenses) incurred or suffered by those indemnified, by reason of or resulting from or arising out of any claims arising from yours, or your Authorised Users’, use of the Solution, including any third party claims that arises as a result of a third party alleging infringement of the Intellectual Property Rights which arise from the use of the Third Party Materials in a manner or for a purpose not reasonably contemplated or not authorised by us or a Third Party Supplier.
  24. If Deloitte believes, in its sole discretion, that the Solution, or any part thereof, has become the subject of a claim of infringement, Deloitte, at its option and expense, may: (i) procure the right for you to continue to use the Solution; (ii) replace or modify the Solution so as to make it non-infringing; or (iii) discontinue the licence granted herein. The foregoing states the entire liability of Deloitte with respect to infringement of any copyrights, patent, licence or other property right by the Solution or any parts thereof.
  25. This EULA shall commence on the date on which you first access or use the Solution and shall continue until terminated in accordance with its terms. Your right to use the Solution shall terminate if (a) your agreement with Deloitte to use the Solution expires or terminates; or (b) you fail to comply with any of the material terms or conditions of this EULA, or the Deloitte Privacy Policy and do not cure such failure in a reasonable period of time after becoming aware of such non-compliance. Within five (5) business days of the expiration or termination of this EULA, you shall immediately discontinue all use of the Solution in whole or in part.
  26. Either of us may terminate this EULA at any time by giving the other 30 days’ prior written notice, or immediately if the other commits any material breach of this EULA that is either incapable of being remedied or is not remedied within 14 days of receipt of a notice requiring the breach to be remedied. We may terminate this EULA immediately if we identify circumstances that could cause us to have a conflict of interest.
  27. This EULA and the Deloitte Privacy Policy may be amended from time to time and by continuing to use the Solution, you agree to comply with those terms, as they are amended from time to time.
  28. Your use of the Solution and this EULA are governed by the laws of New South Wales, Australia.

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