1.2. You acknowledge that you have read, understood and agreed to be bound by the terms of this agreement.
2.1. The Willed Platform is a technology platform that allows you to create your own estate planning solutions using our forms and other information. Willed is not a law firm and we are not providing you with any legal, financial, taxation or other advice. No lawyer-client relationship is created between you and Willed in connection with your access to, and use, of the Willed Platform and the Services. Any information that you provide to us will not be subject to lawyer-client privilege. If you are unsure whether our estate planning solutions are suitable for your personal circumstances, we recommend that you seek further specialised legal advice by contacting our affiliated law firm, Vault Legal (www.vaultlegal.com.au) or another law firm. The Willed Platform and our role in providing you with access and use of the Willed Platform and the Services should be construed strictly in this context only.
2.2. By subscribing to the Willed Platform, Willed grants you a non-exclusive, non-transferable, personal, limited, revocable and non-sublicensable licence to access and use the Willed Platform for domestic and personal use. Unless we provide you with written notice, you are not entitled to access and use the Willed Platform and the Services for any commercial, business or re-sale purpose.
2.3. You will not acquire or be entitled to any rights other than those rights expressly set out in this agreement.
3.1. Willed reserves the right to change any provision of this agreement in any way and we may, in our absolute discretion, add or remove any Services provided in connection with the Willed Platform by providing reasonable notice to you in writing or by otherwise posting it on the Willed Platform.
3.2. If you do not agree to these changes, you may terminate the agreement by providing us with written notice, no later than 14 days after the date you received written notice of the changes or the changes were posted on the Willed Platform.
This agreement commences on the date you create a Willed Account using the Account Login page (Commencement Date), and continues until terminated in accordance with its terms (Term).
5.1. You must create a unique account (Willed Account) to access and use the Willed Platform and the Services.
5.2. Your Willed Account will be operated by a username and password (Password) which you may change at any time by you. You are solely responsible for the activity conducted on your Willed Account. We may at any time request that the owner of the Willed Account provide identification to verify their identity.
5.3. In order to open a Willed Account or otherwise access and use the Willed Platform and the Services, you must be over 18 years of age and legally able to enter into contractual relations. If you are not over 18 years of age, you should not access or use the Willed Platform and the Services. We reserve the right to ask for proof of age from you and your Willed Account may be suspended until satisfactory proof of age is provided.
5.4. In relation to your Willed Account, you undertake that you will:
(a) not disclose your Password to any third party and take reasonable measures to prevent the disclosure of your Password to any third parties, except you knowledge and agree that Willed may disclose your username and Password to your Executors with your consent or without your consent after you have died if reasonably required by your Executors to administer your Estate. You are liable for your use of the Willed Platform through the Willed Account or Password. Please notify us immediately if you become aware that your Willed Account or Password is being used without authorisation, or as a result of any other security breach relating to your Willed Account or Password;
(c) not impersonate another account holder or provide false identity information to gain access to or use the Willed Platform.
5.5. Willed has the right to suspend or terminate any Willed Account or your access or use of all or any part of the Willed Platform, at any time, if, in our opinion, you have failed to comply with any of the provisions of this agreement.
6.1. Subject to your compliance with the terms of this agreement, Willed shall use reasonable endeavours to provide you with access to and use of the Willed Platform and the Services.
6.2. In the event that Willed fails to provide you with access and use of the Willed Platform and the Services accordance with clause 6.1, we will use reasonable endeavours to correct any such non-conformance, or provide you with an alternative means of accomplishing the desired performance. The foregoing constitutes your sole and exclusive remedy for any breach of clause 6.1.
7.1. To access and use the Willed Platform and the Services, you must:
(a) open a Willed Account via the Willed Platform;
(b) provide us with all necessary co-operation and Your Data to facilitate and provide the Willed Platform and the Services;
(c) obtain and maintain all hardware, software and communications equipment necessary to access and use the Willed Platform and the Services, including adequate security and safety measures;
(d) ensure that all information is true, accurate and not misleading;
(e) comply with all reasonable directions, policies and guidelines of Willed as advised from time to time; and
(f) carry out all of your responsibilities set out in this agreement in a timely and efficient manner.
7.2. You must not:
(a) modify, alter, adapt, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Willed Platform in any way, or otherwise learn the source code or algorithms underlying the Willed Platform;
(b) violate Willed’s Intellectual Property Rights;
(c) access all or any part of the Willed Platform solely in order to build a product, service or code which competes with the Willed Platform; or
(d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Willed Platform or the Services available to any third party, except you may permit your Executor to access the Willed Platform for the sole purpose of administering your Estate;
(e) not us, submit, post, store, distribute or transmit any viruses, worms, trojans or other malicious code, or any material when using the Willed Platform that may corrupt, damage, degrade or disrupt the operation of the Willed Platform and the Services.
8.1. The fee for our Services is displayed on our Website as well as on the payment page of the Willed Platform (Fees). The Fees shall be payable in Australian Dollars and are inclusive of GST. To the extent permitted by Relevant Laws, you agree that all Fees payable to Willed are non-refundable.
8.2. The Fees displayed on the Website and on the payment page of the Willed Platform are current at the time of issue. The Fees are subject to change effective immediately upon posting to the Website or on the payment page of the Willed Platform. You agree to pay the Fees current at the time of payment.
8.3. Once payment is processed, you will be able to download, print and sign your Will and upload Your Data to your Willed Account.
8.4. Payment of the Fees can be made by means of credit card or direct debit. We use a third party payment processor, Stripe, to process payments made to us. By making payment of our Fees, you agree to provide Willed with accurate and complete billing information, and you authorise Willed to your share billing information with Stipe for the purpose of processing your payment.
8.5. We may, at our absolute discretion and without notice, change the payment methods that can be used to purchase our Services on, or via, the Willed Platform, at any time.
9.1. Using the Willed Platform does not give you (or anyone else) ownership of, or any right, title or interest in the Willed Platform (or any Intellectual Property Rights contained therein), any information, Content or technology that may be provided to, or accessed by, you in connection with your use of the Willed Platform as all information on the Willed Platform belong to, and remain owned by Willed or our licensors (Willed IP).
9.2. All Intellectual Property Rights discovered, developed, modified, enhanced or which otherwise comes into existence as a result of, for the purposes of, or in connection with, the Willed Platform or the Will IP will automatically vest in, and are assigned to Willed.
9.3. By publishing, posting, transmitting or uploading Your Data on, or via, the Willed Platform, you grant Willed for the Term a royalty-free, non-exclusive, transferable and worldwide licence to use Your Data that you make available to Willed (and all Intellectual Property Rights contained therein) for the purpose of providing you with access to, and use of the Willed Platform and the Services.
9.4. All trade marks, logos, trade dress and service marks on the Website and Willed Platform are either trade marks or registered trade marks of Willed, and may not be copied, imitated, or used, in whole or in part.
10.1. To the maximum extent permitted by Relevant Laws, Willed excludes all express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), in connection with the use of the Services purchased on, or via, the Willed Platform, the provision and use of the Willed Platform or the Website.
10.2. Nothing contained in this Agreement excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Competition and Consumer Act 2010 (Cth) or any other national, State or Territory legislation where to do so is unlawful.
10.3. You acknowledge and agree that to the extent permitted by Relevant Laws, Willed make no representations, warranties or guarantees:
(a) in relation to the availability, continuity, reliability, accuracy, currency or security of the Willed Platform and the Services (or any products or services provided in connection with the Willed Platform or Services, including Third Party Products or Services); or
(b) that the Willed Platform and the Services (or any products or services provided in connection with the Willed Platform or Services, including Third Party Products or Services) are error-free, virus free or is suitable for any particular purpose or use under any specific conditions, and so is provided on an “as is” basis.
10.4. Willed will not be liable if the Willed Platform is, or becomes unavailable for any reason, including directly or indirectly as a result of:
(a) telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
(b) negligent, malicious or wilful acts or omissions of third parties (including third party service providers);
(c) maintenance (scheduled or unscheduled) carried out by us or any third party service provider, including in respect of any of the systems or network used in connection with the provision of the Willed Platform;
(d) services provided by Third Party Providers ceasing or becoming unavailable; or
(e) a Force Majeure Event.
10.5. You warrant, acknowledge and agree that your use of the Willed Platform and the Services have not been made on the basis of any representations made by Willed in relation to the functionality or features of the Willed Platform or the Services (or any products or services provided in connection with the Willed Platform or the Services, including Third Party Products or Services).
10.6. You assume sole responsibility for any estate planning solutions or results obtained from, or outcomes arising from, your access to, and use of, the Willed Platform and the Services, and for any Wills generated from such use. We do not endorse, approve or review the content of the Will generated by you and therefore Willed shall have no liability to you, your Estate, your Executors, your Beneficiaries or anyone else for any:
(a) decision by you to bequeath any property under your Will, appoint an Executor, Guardian, or Beneficiary under your Will, or the failure by you to bequeath any property under your Will, appoint an Executor, Guardian or Beneficiary under your Will;
(b) Loss or Claim arising from any intestacy, or any view or wish expressed by you in your Will; or
(c) Loss caused by errors or omissions in any of Your Data or instructions provided or uploaded to the Willed Platform by in connection with the Services.
11.1. To the fullest extent permitted by Relevant Laws, Willed, our Related Bodies Corporate and our Personnel will not be liable to you, your Estate, your Executor, your Beneficiaries or any third party for any Consequential Loss arising out of, relating to or connected to the provision or use of the Services, the Willed Platform (or any products or services provided in connection with the Willed Platform or the Services, including Third Party Products or Services) or this agreement, regardless of the cause of action on which they are based, even if advised of the possibility of such damage occurring.
11.2. Under no circumstances will our aggregate liability, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed the Fees paid by you to us under this agreement.
11.3. You agree to defend, indemnify and hold us, our Related Bodies Corporate and our Personnel (collectively, the Indemnified) harmless from and against any and all Losses and Claims that may be brought against the Indemnified or which the Indemnified may pay, sustain, or incur as a direct or indirect result of, or arising out of:
(a) the access to, and use of, the Services or the Willed Platform (or any products or services provided in connection with the Willed Platform or Services, including Third Party Products or Services) by you or anyone else;
(b) any breach of any third party’s Intellectual Property Rights or other rights caused by you; or
(c) any breach by you of this agreement.
12.1. Subject to clause 12.2 and save as required by law, all information (including Personal Information) supplied by you to us or otherwise brought to our attention, in relation to your Will, your Estate, your Executors, your Beneficiaries, your pets, the Guardians appointed by you, your assets and liabilities or any other terms of this agreement are confidential and will not be disclosed by us to a third party. This includes, without limitation, information provided to you in any form (including written and electronic) and by any means (including on, or via, the Willed Platform).
12.2. Willed may collect Personal Information directly from you when you set-up a Willed Account, when you access or use the Website, the Willed Platform or the Services (or any products or services provided in connection with the Willed Platform or the Services, including Third Party Products or Services), when you purchase a Will on, or via, the Willed Platform, or when you contact us for any reason. Personal information we collect and use may include the name, address, email address and date of birth of you, your Executors and your Beneficiaries. Online payments are handled by Stripe. We do not store your credit card or banking details. Please check the Stripe website (https://stripe.com/au/privacy) for details of their privacy policies.
13.1. We may, in our absolute discretion and without notice, terminate, suspend or block your access to your Willed Account, the Website, the Willed Platform or our Services for any reason (or no reason), including as result of, or in connection with:
(a) any breach of this agreement by you;
(b) request by law enforcement, court or other government agencies;
(c) the discontinuance of the Website, the Willed Platform or the Services (or any part thereof); or
(d) scheduled or unscheduled maintenance works, service outages, technical or security failures or excessive server load on the technical equipment used by us or our Third Party Providers, and we will not be liable to you, your Estate, you Executors, your Beneficiaries or any third party arising out of, or in connection with, any such suspension or termination.
13.2. On termination of this agreement for any reason (without liability to you, your Estate, your Executors, your Beneficiaries or anyone else):
(a) Willed shall no later than 5 days after the effective date of the termination of this agreement, permanently delete your Willed Account (except for your contact details) and all Your Data stored on the Willed Platform, except that before Your Data is deleted you may elect to download the then most recent back-up of Your Data;
(b) all licences to use the Willed Platform and the Services and rights of access granted under this agreement will immediately terminate; and
(c) you will have no right to access or use the Services or the Willed Platform.
14.1. You acknowledge that the Willed Platform and the Services may use Third Party Products and Services in order to provide you with access to, and use of, the Willed Platform and the Services. Willed may disclose your information (including Personal Information) to our Third Party Providers for the purpose of performing functions on our behalf and to deliver the Willed Platform and our Services to you.
14.2. To the maximum extent permitted by Relevant Laws, Willed make no representations, warranties or guarantees and shall have no liability or obligation whatsoever in relation to the content or use of any such Third Party Products and Services.
Willed shall have no liability to you, your Estate, your Beneficiaries, your Beneficiaries or any third person under this agreement if we are prevented from or delayed in performing our obligations, by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications or hosting network, act of God, war, riot, pandemic, epidemic, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of hosting or data centre providers or other suppliers or sub-contractors (including Third Party Providers) (Force Majeure Event).
The parties must, before resorting to court proceedings (except interlocutory or interim relief), refer any dispute under or relating to this agreement initially to a nominated representative of each party to endeavour to resolve the dispute within 20 days. If the dispute is not resolved with this period, then either party may initiate court proceedings. Notwithstanding the existence of a dispute, each party must continue to perform its obligations.
17.1. By using the Willed Platform, you accept that communication with us will be mainly electronic. We will contact you by email or provide you with information by posting notices on the Website.
17.2. You acknowledge that all contracts, notices, information and other communication we may provide electronically comply with any legal requirements that such documents be in writing.
17.3. Notice will be deemed received and properly served immediately when posted on the Willed Platform or 24 hours after an email is sent to you. As proof of service, it is sufficient that the email was sent to the email address specified by you in your Will Account.
If you have any questions about this agreement, please contact us via [email protected]
19.1. A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
19.2. If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, then the other provisions shall remain in force.
19.3. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, then the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
19.4. This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangements, understandings or agreements between them relating to the subject matter which they cover, except that if you appoint Willed as your professional executor, the terms of the executor services provided by Willed are governed by the Willed Professional Executor Terms and Conditions.
19.5. Neither party shall, without the prior written consent of the other party (which will not be unreasonably withheld), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement, except that Willed may assign, sell or transfer its rights or obligations under this agreement to Related Bodies Corporate or bona fide third party purchaser of the Willed’s business.
19.6. Nothing in this agreement is to be construed as constituting a partnership, employment relationship, joint venture, or any other form of association between the parties in which 1 party may be liable for the acts or omissions of any other party.
19.7. If there is any inconsistency between this agreement and the term of any other document referred to in this agreement, this agreement shall prevail to the extent of any inconsistency.
19.8. The laws of the state Victoria, Australia govern this this agreement. The parties agree to submit to the exclusive jurisdiction of the courts of Victoria, Australia.
20.1. In this agreement, unless the context otherwise requires:
(a) Account Login means the account login page used by you to access and use the Willed Platform;
(b) Beneficiary means the person who benefits from your Will, and includes potential or contingent beneficiaries;
(c) Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whether present or future, fixed or unascertained, actual or contingent, at law, in equity, under statute or otherwise;
(d) Commencement Date has the meaning in clause 4;
(e) Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties at the Commencement Date as a likely result of breach of the agreement (i) indirect, consequential, incidental, special, remote or unforeseeable loss, damage, cost or expense; (ii) loss of revenue, profit, income, bargain, opportunity, use, production, customers, business, contract, goodwill, or anticipated savings, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, loss of or corruption to data, loss of use of data (including Your Data); (iii) loss of inheritance, loss of opportunity to inherit, loss of bequeathment or legacy, loss of opportunity to receive a bequeathment or legacy, costs (including legal costs) to apply for probate or letters of administration; (iv) costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by an actual or potential Beneficiary or third party; or (v) loss or damage of the nature set out above in clauses (i) to (iv) (inclusive) that is incurred or suffered by, or to, a Beneficiary or a third party;
(f) Content means all the information, text, materials, graphics, logos, button icons, images, video and audio clips, trade marks (whether registered or not) layout, arrangement, graphical user interface, look and feel, databases, functionality and control features of the Willed Platform;
(g) Developed IP has the meaning in clause 9.2;
(h) Estate means all of your assets and liabilities;
(i) Executor means an adult person or entity appointed to administer your Estate after you have died;
(j) Fees has the meaning in clause 8.1;
(k) Force Majeure Event has the meaning in clause 15;
(l) Guardian means an adult who is appointed by you to look after your children if you and the other parent of your children dies;
(m) GST has the meaning in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
(n) Intellectual Property Rights means all confidential information, designs, copyright, derivative works, trade marks, trade mark applications, patents, patent applications, semi-conductor or circuit layout rights, operations, software or systems, inventions, discoveries, trade names, service marks, and domain names, trade secrets, know-how, technical information, specification, rights in goodwill, rights in confidential information or other intellectual property rights, whether under statute, common law, equity, custom or usage, and whether registered or unregistered and including all applications for, and renewals or extensions of, such rights and all similar rights which subsist or will subsist now or in future in any part of the world;
(o) Loss means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including all legal and other professional costs including Consequential Loss;
(p) Personal Information means information or an opinion (including information or an opinion forming part of a database) whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion, disclosed to or made available to Willed in the course of providing the Services;
(q) Personnel means any officer, employee, agent, contractor, sub-contractor or consultant of Willed (including Third Party Providers);
(r) Related Bodies Corporate has the meaning in the Corporations Act 2001 (Cth);
(s) Relevant Laws means any relevant rules of common law, principles of equity, international, federal, state and local laws, statutes, rules, regulations, proclamations, ordinances and by-laws and other subordinate legislation, rulings, or legal requirements and includes wills, probate and administration legislation.
(u) Services means the estate planning solutions provided by Willed to you under this agreement, which compromises the following: (i) accessing and using the Willed Platform to create and download your Will; and (ii) uploading and storing Your Data;
(v) Third Party Providers means a third party provider of Third Party Products and Services, such as hardware and software providers, hosting providers, internet service providers, web developers, payment processors, estate planning lawyers and customer service providers;
(w) Third Party Products and Services means software, products, services or content (including all Intellectual Property Rights contained therein) that: (i) are provided by Third Party Providers; (ii) interoperate with the Services or the Willed Platform; and/or (iii) may be identified as third party products;
(x) Will means the legal binding document which sets out your wishes regarding the distribution of your assets and the care of any of your minor children;
(y) Willed Account has the meaning in clause 5.1;
(z) Willed means Willed Pty Ltd (ACN 638 925 032) and where the context permits, includes our Personnel and Related Bodies Corporate;
(aa) Willed IP has the meaning in clause 9.1;
(bb) Willed Platform means the online platform managed and operated by Willed, and used by you to create your own estate planning solutions, including the application and database software, the system and server software used to provide the online platform, the computer hardware on which that application, database, system and server software is installed, and all intellectual property contained therein, provided or otherwise made available by Willed or used by you;
(cc) you or your has the meaning in clause 1.1; and
(dd) Your Data means all data, information, documents, photographs and videos: (i) uploaded to, transmitted by or stored on the Willed Platform by you; or (ii) generated by the Willed Platform as a result of the use of the Services by you.
20.2. In this agreement:
(a) the singular includes the plural and vice versa;
(b) a gender includes all genders;
(c) a party means a party to this agreement;
(d) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(e) the words ‘including’, ‘such as’, ‘for example’ or similar, is not intended as a term of limitation; and
(f) all monetary amounts are expressed in Australian Dollars ($AUD) unless expressly stated otherwise.
Update: April 2020