illion Open Data Solutions Services Agreement (Institutions)

Last Update: 8th June 2018

PROVISO SERVICES AGREEMENT (INSTITUTIONS) You are bound by all terms and conditions of this Proviso Services Agreement from the date you click "I Accept".
    1. The Services are provided by Proviso Pty Ltd ACN 166 277 845, an illion group company and also (a) illion Australia Pty Ltd (ABN 95 006 399 677) where you are accessing Services via a "" Proviso Website, or (b) illion New Zealand Marketing Services Limited (Co. No. 6398759) where you are accessing Services via a "", (Proviso, we, us and our).
    2. The Services are supplied to your business (Institution, you or your), and your customers, prospects or personnel who access the Services (End Users).
    3. The Services include: (a) automated data retrieval from banks and credit unions in Australia; (b) automated income and expense verification (c) the option to authorize automated bank statement retrieval; and (d) other products and services to facilitate dealings with institutions (Services), and are provided via the following websites:
      • (a);
      • (b);
      • (c);
      • (d);
      • (e);
      • (f); or
      • (g) other channels that allow you and End Users to access our Services,
      (each a Website).
    4. The Fees for the Services are set out on the Proviso Website (Fees). You must pay the Fees within 30 days of the date of invoice.
    5. The Services continue until either party gives 30 days prior written notice to cancel.
    1. The Services are supplied in accordance with the:
      • (a) terms of this services agreement (including the attached service terms) (Proviso Services Agreement); and
      • (b) user terms and conditions located at PROVISO END USER TERMS (End User Terms) - including the privacy policy PROVISO PRIVACY POLICY (Privacy Policy) and any other terms or policies referred to in those End User Terms.
    2. It is intended that the terms of this Proviso Services Agreement complement the End User Terms (both of which apply to you). However to the extent of any inconsistency, the terms of this Proviso Services Agreement prevail.
    1. You must ensure that your contract with each of your End Users:
      • (a) makes each End User aware that they will be using our Services;
      • (b) contains a hyperlink to our End User Terms and Privacy Policy (which you inform End Users will be accepted through their use of our Services); and
      • (c) does not misrepresent our Services, or impose any additional warranties or liability on us.
    2. You must also ensure each End User is 18 years of age or older, and meets the relevant identity verification requirements in the End User Terms.
  4. Permitted purpose & WARRANTY
    1. Subject to clause 4.2 you may lawfully use the Services and any information, including Personal Information, you obtain as a result in order to support the credit, credit assistance or similar services you provide to your clients (Permitted Purpose).
    2. You warrant that you have all the necessary consents and authorisations from the End User in relation to information you obtain as a result of using the Services, and you must comply with all relevant Privacy Laws.
    3. In order to provide services to you, we may need to acquire specialised services from other related entities within the illion group (illion Group Members). You acknowledge that we may transfer information about you (and the End User) to illion Group Members as reasonably necessary to receive those intra-group services. Each illion Group Member will hold and use that information in accordance with its own privacy policy.
  5. Branding
    1. For the duration of this Proviso Services Agreement, you grant us a world-wide, non-exclusive, royalty-free, revokable, non-transferable license to use and disclose your business name, logo / trademarks and other information you provide to us on the Portal in order to perform the Services. We will not use this information other than to provide the Services, and to validate information with your nominated referees.
    2. For the duration of this Proviso Services Agreement, we grant you a Territory-wide, non-exclusive, royalty-free license to use the Proviso / Bankstatements name and trademark (as applicable) on your business website and marketing documents including media items (whether published by Institution or a third party), solely for the purpose of showing that your are using the Services. Your use of the logo and name is strictly subject to branding guidelines (which we will issue from time to time) and in accordance with our directions. This licence ceases immediately upon expiry or termination of the Proviso Services Agreement.

Capitalised or other defined terms have the meaning given above, or as set out in clause 14 below.Fees, invoicing & payment

  1. Fees, invoicing & payment
    1. (Fees) We will charge you the Fees specified on the Website. All Fees are in Australian or New Zealand dollars, depending on the Territory, unless otherwise specified.
    2. (Invoices) We will invoice you as set out in the Proviso Services Agreement or on our Website. Each invoice will be a valid tax invoice for GST purposes.
    3. (Payment) You must pay each invoice in accordance with the payment terms in the Proviso Services Agreement.
    4. (Late Payment) If any Fees remain unpaid for more than 10 days beyond their due date, provided we have notified you in writing of this default and allowed you a further 2 days to pay, we may (without limiting our rights or remedies):
      • (a) immediately suspend the supply to you of any or all Products;
      • (b) charge interest at the Interest Rate on those outstanding Fees from the date on the invoice becomes overdue; and/or
      • (c) terminate the Proviso Services Agreement.
      • (d) treat all incurred amounts as due and payable immediately (even where we have previously agreed that you may defer payment);
      • (e) take action to recover those outstanding Fees or other amounts owing to us (including any interest), and all costs and expenses incurred in recovering them including all legal costs on a solicitor and own client basis; and
      • (f) if you are receiving debt collection services from us, we reserve the right to recover outstanding Fees from any debts that were collected on your behalf.
    5. (Fee Increases) You acknowledge and agree that:
      • (a) We may increase the Fees which apply to the Proviso Services Agreement by giving you at least 60 days’ written notice prior to the renewal date; and
      • (b) Notwithstanding clause 1.5(a) above:
        • (i) where a Service incorporates a third party product or service (e.g. a third party data supplier to us); and
        • (ii) during the Service Term, that third party increases the cost of their product or service to us;
        we may increase the Fees for that Service to incorporate that increase by 30 days’ written notice to you.
  2. (GST) If the supply of Services is a taxable supply then, at the same time as you pay the Fees, you will pay any GST payable for the taxable supply. All rebates, discounts or other reductions in price will be calculated on the GST exclusive price. The expressions above in italics have the meaning in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the Goods and Services Tax Act 1985 (NZ).
  3. Data & Service Disclaimer
    1. You acknowledge and agree that (in addition to any disclaimers in the Proviso Services Agreement or any End User Terms):
      • (a) all Products, Information, Software and Services are supplied on an "as is" and "as available" basis; and
      • (b) to the maximum extent permitted by law, we exclude all liability for inaccurate, incomplete, out of date or unavailable data;
      • (c) you are solely responsible for any decision made or not made in relation to any data, Product or Services.
    2. (Implied Warranties) To the maximum extent permitted by law, and subject to clause 3.3, any representation, warranty, condition, guarantee or undertaking that would be implied into the Proviso Services Agreement by legislation or otherwise is excluded.
    3. Nothing in the Proviso Services Agreement excludes, restricts or modifies any consumer guarantee, right or remedy conferred on you by the Consumer Law or any other applicable law that cannot be excluded, restricted or modified (‘Non-Excludable Obligation’). However to the fullest extent permitted by law, our liability for a breach of a Non-Excludable Obligation is limited, at our option, to the cost of supplying the Services again or payment of the cost of having the Services supplied again.
  4. Your Data
    1. In relation to all information you provide to us, including the data of your End Users we receive in providing the Services, (the "Customer Data"), you represent and warrant that (i) you hold all necessary legal rights, title, consents and authority to provide that Customer Data to us; (ii) the Customer Data is accurate, up to date and complete at the time it is provided; and (iii) you will supply Us with all relevant information to correct or update Customer Data.
    2. You must supply us with such Customer Data, being particulars of Individuals or organisations, required to supply or maintain the Services as we may reasonably specify from time to time.
    3. You grant us (and our Related Bodies Corporate) a non-exclusive, perpetual, irrevocable, royalty-free licence to use that Customer Data to fulfil our obligations under the Proviso Services Agreement, to validate and/or enhance our products and for any other purpose permitted by law.
    4. Nothing in the Proviso Services Agreement excludes, restricts or modifies any consumer guarantee, right or remedy conferred on you by the Consumer Law or any other applicable law that cannot be
  5. Compliance with Laws
    1. Each party must comply with all applicable laws including AML/CTF Laws and all Privacy Laws in the Territory and all privacy laws of each other country in which Personal Information is received, collected, held, used or disclosed by that party in connection with the Proviso Services Agreement. If you are excluded from the operation of all or part of any Privacy Laws, you agree to comply with those Privacy Laws (including any applicable credit reporting provisions) as if you were bound.
    2. (Eligible Data Breach) Each party warrants that it has in place:
      • (a) a system to detect and report when an event has occurred that may give rise to reasonable grounds to suspect an Eligible Data Breach has occurred; and
      • (b) a system to investigate and assess a suspected Eligible Data Breach within 30 days of becoming aware of a suspected breach, including a documented procedure for making an evaluation of each investigation.
    3. In the event of a suspected or actual Eligible Data Breach, a party must promptly notify the other and cooperate as reasonably necessary to comply with the Eligible Data Breach provisions of the Australian Privacy Act 1988 (and, if applicable, any equivalent requirements under New Zealand Privacy Laws from time to time) to minimise the impact of the Eligible Data Breach and to liaise on any necessary communications.
  6. Indemnity
    1. (Indemnity from us) Subject to clauses 6.2, 6.4 and 6.5, we indemnify you from any Third Party Claim against you which arises due to the Services violating a third party’s Intellectual Property Rights. This indemnity will not apply to the extent claims of infringement arise out of or are related to (i) a modification of or change to the Services by anyone other than us, (ii) a combination of the Services with any third party software or equipment to the extent that such combination is the cause of such infringement, (iv) a malfunction of computer hardware or software other than the Services; or (v) any act or omission by you.
    2. In the event the Services are alleged to infringe or misappropriate a third party’s Intellectual Property Rights, we may, at out sole option and expense, elect to do any one of the following: (i) modify the Services so they are non-infringing and functionally equivalent, (ii) replace the Services with non-infringing services which are functionally equivalent, or (iii) cancel the supply of the Services and terminate this agreement. This clause states Proviso’s sole and exclusive liability, and your sole and exclusive remedy, with respect to infringement by the Services of a third party Intellectual Property Rights.
    3. (Indemnity from you) Subject to clause 6.4 and 6.5, you indemnify us for Loss which we suffer or incur as a direct result of a Third Party Claim against us which arises due to:
      • (a) your Customer Data violating a third party’s Intellectual Property Rights;
      • (b) your breach of the Proviso Services Agreement; or
      • (c) the failure of your End Users to obtain finance or services from you, or any misrepresentation you make to those End Users.
    4. Each party’s liability under an indemnity is reduced to the extent that liability was caused or contributed by the other.
    5. An indemnified party must: (i) promptly give written notice to the indemnifying party of the Third Party Claim; and (ii) allow the indemnifying party to conduct the defence and settlement of that claim (provided the indemnified party is not detrimentally impacted).
  7. Limitation of Liability
    1. Subject to clause 7.2 and 7.3, and to the extent permitted by law:
      • (a) each party’s total aggregate liability to the other party arising under or in connection with the Proviso Services Agreement is limited to an amount not exceeding the lesser of (i) $100,000 or (ii) the total of all amounts paid by you under the Proviso Services Agreement during the 12 month period immediately preceding the date on which the first cause of action giving rise to such claims arose; and
      • (b) neither party shall be liable to the other for loss of profits or revenue (other than forming part of our Fees), loss of goodwill, loss of customers, loss of or damage to reputation, loss of use of data or any other indirect or special loss or damage incurred by the other party.
    2. (Exceptions) The limitations of liability in clause 7.1 do not apply to:
      • (a) the indemnities in clause 6;
      • (b) breach of clauses 5 (Compliance with Laws) or 8 (Confidentiality); or
      • (c) your violation of our or a third party’s Intellectual Property Rights (including your unauthorized distribution of the Software or a Product in breach of the terms of the Proviso Services Agreement).
    3. (Mitigation) A party must take all reasonable steps to avoid or mitigate any loss or liability which it might suffer or incur in relation to the Proviso Services Agreement (including under an indemnity).
  8. Confidentiality
    1. Each party: (a) may use Confidential Information only during the applicable Service Term and only for the purposes of the Proviso Services Agreement; and (b) must keep confidential all Confidential Information and only disclose Confidential Information of the other party to its Personnel who need to know for the purposes of providing the services and who have expressly agreed to keep that information confidential. To avoid doubt, the confidentiality obligations on us under the Proviso Services Agreement do not apply to Customer Data once that Customer Data forms part of any Product (as per the licence in clause 4.3).
    2. The confidentiality obligations in clause 8.1 do not apply to information that: (a) is or becomes legally in the public domain at the time of disclosure without a breach of clause 8.1; (b) is legally obtained from a third party; (c) was in already in the possession of a party at the time of disclosure without any associated obligation of confidentiality; (d) has been independently developed by a party; or (e) is required to be disclosed by law or the rules of a stock exchange.
  9. Changes to Services
    1. We reserve the right to withdraw, reconfigure, modify, and/or substitute (each a ‘Change’) all or part of any Product (‘Modified Product’) provided that such Change does not materially alter the performance or functionality of the Product provided to you (‘Original Product’).
    2. In addition to our rights under clause 9.1, we reserve the right to Change a Product as required due to new legislation, or new technologies, or where a third party changes the terms upon which that Original Product is supplied to us. If such Change materially alters the performance or functionality of an Original Product, we will notify you and allow you the option to terminate the Proviso Services Agreement within 30 days from our notice.
  10. Termination
    1. (Termination for cause) A party may terminate the Proviso Services Agreement immediately by written notice if the other party:
      • (a) breaches a term of the Proviso Services Agreement which is not capable of remedy or, where the breach is capable of remedy, fails to remedy the breach within 20 days of written notice of the breach;
      • (b) become bankrupt or insolvent, unable to pay its debts as they fall due or enters into or becomes subject to any form of insolvency administration or arrangements with its creditors.
    2. (Suspension) We may suspend all or part of the Proviso Services Agreement without prior notice if we reasonably suspect that you have breached a material term (until that material breach is resolved).
    3. Termination will not affect any rights accrued prior to termination.
    4. On termination or expiry of the Proviso Services Agreement: (i) each licence granted by us in respect of that Product also terminates or expires; and (ii) you must immediately cease using the relevant Products and delete or destroy all originals and copies of our Confidential Information and/or Software comprised in the Products and our Confidential Information, and certify to us that you have done so if we require it.
  11. Dispute Resolution
    1. If any dispute arises in relation to the Proviso Services Agreement, neither party may commence any court proceedings, unless and until: (i) the party raising the dispute has given the other party written notice of the dispute (providing a reasonable description of the issue); and (ii) 30 days has elapsed from the giving of the written notice, and the parties have not resolved the issue, during which time each party causes an authorised representative to attend a meeting. Each party must act in good faith to resolve the issue identified in the notice. This clause will not apply where a party a party seeks urgent interlocutory relief.
  12. Force Majeure
    1. Neither party shall be liable for non-performance or delays (other than a failure to pay) caused by a Force Majeure Event, provided notice is given to the other party as soon as practicable. If the Force Majeure Event continues for a period of 60 days or more, the party not relying on the Force Majeure Event may terminate the Proviso Services Agreement.
  13. General
    1. (Entire Agreement) The Proviso Services Agreement constitutes the entire agreement of the parties about its subject matter and supersedes all previous agreements and understandings.
    2. (Assignment) A party must not assign or novate the Proviso Services Agreement, except with the prior written permission of the other party (not to be unreasonably withheld). However we may assign our rights or novate this Agreement to any of our Related Bodies Corporate or in connection with a merger or consolidation involving us or the sale of substantially all of our assets.
    3. (Delay) No delay or failure by either party to exercise a right under the Proviso Services Agreement prevents the exercise of that right or any other right on that or any other occasion.
    4. (Severability) If any part of these terms is illegal or unenforceable, it will be severed from these terms and the remaining terms will continue in full force and effect.
    5. (No adverse construction) Nothing in the Proviso Services Agreement is to be interpreted against a party solely on the ground that the party put forward or drafted that document.
    6. (Survival) Any provision of the Proviso Services Agreement which is by its nature a continuing obligation will survive its termination.
    7. (Relationship) Our relationship is one of independent contractors. Nothing in this agreement creates any partnership, joint venture or employment relationship between the parties.
    8. (Laws) The Proviso Services Agreement is governed by the laws of Victoria, Australia (when the Territory is Australia), and the laws of New Zealand (when the Territory is New Zealand).
    9. (Interpretation) A word importing the singular includes the plural and vice versa, and a reference to a party includes that party’s successors, assigns and substitutes; and references to "including" shall be construed as "including, without limitation".
  14. Defined Terms
    • AML/CTF Laws means laws in the Territory relating to financial transaction reports, anti-money laundering and counter-terrorism financing and their associated rules and regulations.
    • Consumer Law, in Australia, is set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth); and in New Zealand, is set out in the Fair Trading Act 1986 (NZ) and the Consumer Guarantees Act 1993 (NZ).
    • Customer Data has the meaning given in clause 4.1.
    • Eligible Data Breach has the meaning given in the Australian Privacy Act 1988 (Cth).
    • Force Majeure Event means an external event beyond the reasonable control of a party, including, without limitation, acts of war, terrorism, civil commotion, epidemic, natural disasters, blockades, embargoes, strikes and lockouts, any other acts of god or act of any government or governmental agency.
    • Group Member means a Related Body Corporate of a party.
    • Confidential Information means all information that could be reasonably regarded in the circumstances as confidential and not part of the public domain, including, without limitation, information relating to the terms of this agreement or a party’s business affairs.
    • Information means any and all information supplied to you from time to time by us in connection with the Proviso Services Agreement.
    • Intellectual Property Rights means (a) all intellectual property rights, including current and future registered and unregistered rights, in respect of copyright, designs, circuit layouts, trade marks, trade secrets, patents, inventions, discoveries, know-how, confidential information; (b) applications for registration and the right to apply for registration, for any of the above; and (c) all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world.
    • Interest Rate means interest at lesser of 1% per month or the maximum interest rate permitted by applicable law.
    • Loss means liabilities, losses, damages, costs and expenses, but excludes the types of indirect and consequential loss specified in clause 7.1(b).
    • Permitted Purpose has the meaning in the Proviso Services Agreement.
    • Personal Information has the meaning in the Privacy Laws.
    • Personnel means officers, employees, agents and subcontractors.
    • Related Body Corporate means (a) where the Territory is Australia – the meaning given to that term in section 9 of the Corporations Act 2001; and (b) where the Territory is New Zealand – the meaning given to "Related Company" in section 2(3) of the Companies Act 1993.
    • Privacy Laws means the Privacy Act 1988 (Cth) in Australia and the Privacy Act 1993 (NZ) and any other applicable privacy laws, including any determination, code or guideline issued under those laws in the relevant Territory.
    • Product means a product supplied by us as part of the Services.
    • Software means a computer program or application supplied (in object code only) to the Customer either by local installation or remote access from time to time by us in connection with a Product, together with any associated documentation.
    • Territory means (a) Australia, if you are accessing Services via a "" Proviso Website; or (b) New Zealand, if you are accessing Services via a "" Proviso Website
    • Third Party Claim is any claim, suit, action or demand by a third party (including an End User), and will include a fine or penalty imposed by a government agency or industry regulator.

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