Terms & Conditions
In this Agreement, unless the context otherwise requires:
"Applicable Laws" means any legislation relating to self managed superannuation funds;
"Fees" means the annual fees, expenses or charges payable under this Agreement calculated on the fees, charges and expenses published in our price list from time to time;
"Fund" means any self managed superannuation fund submitted by you for the purpose of the Subscription;
"party" or "parties" means you and/or us as the context suggests;
"Subscription" means the annual subscription to the System purchased by you or the trustees of your Funds on the terms and conditions of this Agreement;
"System” means the SUPERCentral web based document management service applied to the Funds as described at the Website;
"we" and "us" means SUPERCentral Pty Limited ACN 117 736 160;
"Website" means www.supercentral.com.au
"you" means the Adviser identified above
"your Funds" means the Funds in respect of which you are the then current accountant or financial adviser and which make use of the System.
2. PROVISION OF SERVICES
2.1 We will provide your Funds with a Subscription on the terms and conditions of this Agreement.
2.2 In consideration for the Subscription, you agree to procure payment to us of the Fees within 14 days of the due date specified in a tax invoice for our Fees by (in our discretion) email or post. Each payment is non refundable.
2.3 If we do not receive payment of the Fees in any year in respect of a Fund, we may assume that you or the Fund do not wish to renew the Fund’s Subscription and that we are under no obligation whatsoever to continue applying the System to that Fund.
2.4 Any Fund which does not renew Subscription may not do so at a later time until Fees are paid for all intervening years.
3.1 We own or are the authorised users of all intellectual property rights in connection with the System (including rights in relation to inventions, copyright, patents and trademarks) including any computer programs and software used in connection with the System process and any updates, enhancements, adaptations or new releases of the same.
3.2 Each party agrees to use its best endeavours to prevent the unauthorised use or copying of the System or any part thereof by any third party and to notify the other party as soon as it becomes aware of the same.
Each party agrees to keep confidential any information owned by the other party that could reasonably be regarded as confidential and to use it only for the purposes of this Agreement. This obligation will not apply to any information which a recipient already knew before disclosure or information which comes into the public domain (except by breach of confidentiality). If required by law a party may disclose, as required by the law, the confidential information of the other party.
5. YOUR OBLIGATIONS
5.1 you must promptly supply the materials and information (“the Information”) requested by us in order to apply the System to a Fund and we may assume and rely on the accuracy and completeness of the same unless we have actual knowledge to the contrary. We may cease to apply the System to any Fund if you fail to provide us with the Information we request from time to time and you will release us from all liability for failure to do so in such circumstances.
5.2 If any Fund is transferred to another accountant or financial adviser or any other third party, you must advise us of the same as soon as possible after the transfer of the Fund is brought to your attention.
All communications you receive from us will be sent electronically. We take no responsibility for communications you do not receive for any reason. you must keep us continually provided with your then current email address and the then current email address of each of your Funds.
7. WARRANTIES AND INDEMNITIES
7.1 you warrant that at all times during the term of this Agreement you have full power and authority to enter into and perform this Agreement as the agent for your Funds.
7.2 In respect of a Fund already using the System through a different adviser, if you advise us that you have been appointed that Fund’s new adviser in substitution for the old adviser, you warrant that you have been so appointed to the exclusion of the old adviser and that you have the necessary authority to advise us and be incorporated into the System as the adviser contact for the respective Fund, again to the exclusion of the old adviser.
7.3 We will (a) exercise the due care, skill and diligence of a reasonable person in carrying out our functions under this Agreement and (b) comply with all relevant statutory legislation to the extent that it may concern any of our powers, duties or functions under this Agreement.
7.4 you indemnify us against any costs, charges, losses, liabilities or expenses reasonably incurred by us arising either directly or indirectly out of, or in connection with (a) a breach of this Agreement by you; (b) a failure or delay by you to act on any recommendation made to you by us; or (c) any act, omission (including negligence or fraud) of you or one or more of your officers, representatives, agents or contractors. However, you will not be liable to us to the extent that the cost, charge, loss, liability or expense is caused or contributed to by our default, wilful misconduct or negligence.
8. LIABILITY AND SERVICE DISCLAIMER
8.1 The only terms implied into this Agreement are those which cannot be lawfully excluded. Where this Agreement involves the supply of goods or services which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, our liability for breach of those terms (other than section 69 of the Trade Practices Act) will be limited, at our option as the case may be, to any one or more of the payment of the cost of supplying the goods or services again or payment of the cost of the goods or services being supplied again.
8.2 Subject to Clause 8.1 and otherwise to the maximum extent permitted by law, our liability to you and your Funds for all loss or damage suffered or incurred by you and or your Funds in connection with this Agreement, the provision of the System (including all loss arising from any breach by us of this Agreement, our negligence or any breach of statute) is limited as follows:
we will not be liable to you or your Funds for any indirect or consequential loss (including loss of profit); or damage suffered or incurred by you or your Funds, or for any special or punitive damages, in relation to or arising out of the provision of the System, however caused, on any basis of liability, whether in an action in contract, strict liability, tort (including negligence) or otherwise, and whether or not you have been advised of the possibility of such damage; and
subject to Clause 8.1, our total and entire liability to you and any of your Funds for all loss or damage suffered or incurred by you in relation to or arising out of this Agreement, however caused, on any basis of liability, whether in an action in contract, strict liability, tort (including negligence) or otherwise, and whether or not the party has been advised of the possibility of such damage, shall be limited in the aggregate to the fees paid to us by you or your Funds for the Subscription, less:
all GST paid in relation to those Fees; and
all amounts already paid or payable to you or your Funds by us during that period for any other claims made by you or your Funds relating to this Agreement.
8.3 you warrant and represent that you and your Funds have not relied on any representations made by us which are not set out in this Agreement.
8.4 Subject to Clause 8.5, in purchasing a Subscription for an existing Fund, you warrant that the trustees and beneficiaries of the Fund understand, accept and agree that no legal review of the provisions of the current governing rules of the Fund (whether set out in a deed or deeds or otherwise) will be undertaken or arranged by us to determine whether:
the existing amendment powers conferred on the trustee permit the complete replacement of the current governing rules with the SUPERCentral Governing Rules;
the complete replacement of the current governing rules of the Fund can be effected by an amendment deed;
persons (other than the trustee and the current members) must consent to or be a party any amendment deed;
deletion of any particular provision of the current governing rules may or will have an adverse effect on the Fund (eg claw back of a previously granted revenue concession),
and that we are not liable in any way to any person for any detrimental effect of any kind caused by, arising out of or in any way relating to the supply of the System or the supply, execution or effect of an amendment deed supplied by us and that you and your Funds hereby release us from all liability whatsoever.
8.5 Clause 8.5 does not apply where the Subscription you purchase is in relation to an existing Fund and you purchase a premium conversion service for that Fund. If a premium conversion service is purchased for a Fund then we will arrange for our lawyers to undertake a legal review of the current governing rules of the Fund to determine whether the current governing rules can be completely replaced, whether the current SUPERCentral Governing Rules can be adopted, the parties which need to be involved in the amendment process and whether the removal of any particular provision of the current governing rules may have an adverse effect on the Fund.
8.6 In purchasing a Subscription for a Fund which will be formed, you warrant that the prospective members of that Fund understand, accept and agree that we have not and will not be undertaking or providing any advice as to whether a self managed superannuation fund is suitable or appropriate for the prospective members and we are not in a position to assess or form a view as to whether the prospective members are not disqualified from and have the aptitude, time or skills to participate in the management of a self managed superannuation fund.
8.7 It is a condition of this Subscription that you also obtain a release in the terms described in clause 8.4 from any trustee or beneficiary of a Fund.
8.8 We act as your agent when we appoint the law firm trading as TOWNSENDS BUSINESS & CORPORATE LAWYERS to check the documents we assemble for you based on your order and that law firm may be liable for loss, damage or costs you suffer or incur as a result of any incorrect, inappropriate, inaccurate or faulty drafting to which you have not contributed in any way.
9. SUPERCENTRAL NOT CONDUCTING LEGAL PRACTICE
9.1 In purchasing a Subscription for a Fund or for a Fund which is to be formed, you understand, accept and agree and you warrant that the members or prospective members understand, accept and agree that all deeds (whether deeds to form a new Fund or deeds to amend the governing rules of an existing Fund) provided by us in accordance with the Subscription have been prepared by our lawyers and have not (otherwise than to populate the deeds with the name of the relevant fund, information identifying the fund and details of the members) been modified by us in accordance with information provided by you.
10. NOTIFICATION RULES
10.1 We will need to notify the trustees of each Fund subscribing to the System of proposed updates to the SUPERCentral Governing Rules. We will provide notification by way of email. Where you have provided as the contact email address for this purpose an email address of your own, then you warrant to us that you have authority to accept such notice for and on behalf of the trustees of the Fund and that you will promptly advise the trustees of any proposed updates to the SUPERCentral Governing Rules.
11. INADVERTENT FAILURE TO NOTIFY OF AN UPDATE
11.1 If for any reason the trustees of a particular Fund which has a current Subscription are not provided with notice of a proposed Update to the SUPERCentral Governing Rules, you accept and you warrant that you have authority from the trustees of the Fund to accept that publication of the proposed Update of the SUPERCentral Governing Rules on the SUPERCentral website will be sufficient and effective notice of the proposed Update and that the proposed Update will apply to and take effect in relation to the Fund on and from the date notified on the SUPERCentral website.
12. FEES AND CHARGES
12.1 You will on demand by us pay interest on overdue Fees and expenses at 4 percentage points above the prevailing bank overdraft rate of an Australian bank as nominated by us. Interest will accrue on a daily basis from the due date up to the date of actual payment. For example if the prevailing bank overdraft rate is 5% per annum then you will pay interest on overdue Fees and expenses at the rate of 9% per annum.
12.2 Despite anything else in this Agreement, we reserve the right to amend the fees charges and expenses published in our price list from time to time, without prior notice.
13. GOODS AND SERVICES TAX
13.1 Goods and Services Tax (“GST”) means any law regulating GST in Australia and include A New Tax System (Goods and Services Tax) Act 1999 (“the Act”). Words defined in the Act have the same meaning in this Clause.
13.2 Unless otherwise indicated, our Fees are exclusive of GST.
13.3 If a payment to satisfy a claim or a right to claim under or in connection with this document gives rise to a liability to pay GST, the payer must pay, and indemnify the payee on demand against the amount of that GST.
13.4 If a party has a claim under or in connection with this document for a cost on which that party must pay GST, the claim is for the cost plus all GST (except any GST for which that party is entitled to an input tax credit).
13.5 If a party has a claim under or in connection with this document whose amount depends on actual or estimated revenue or which is for a loss of revenue, revenue must be calculated without including any amount received or receivable as reimbursement for GST (whether that amount is separate or included as part of a larger amount).
14.1 you may serve a notice on us at our office situated at Level 9, 65 York Street Sydney or such other address as we may advise you in writing.
14.2 We may serve a notice to you and your Funds at the address you advise us in writing from time to time.
14.3 Any notice, consent, approval or communication (“notice”) from a party in connection with this agreement may be given to the recipient party by
prepaid post or hand delivery to the their most recently advised address,
by facsimile to the most recently advised facsimile number, or
by email to the most recently advised email address,
provided that in respect of paragraphs (b) and (c) the sender’s fax machine or email software confirms receipt of the facsimile or email by the recipient party and that a copy of the original communication is sent by post to the recipient within 2 days of the date of the fax or email .
15.1This Agreement continues in respect of a Fund until such time as:
we elect to cease operating the System on giving 3 month’s written notice; or
in respect of any of your Funds you or the trustee of the Fund elects to withdraw that Fund from the System; or
the trustee of any of your Funds appoints an adviser other than you to provide the services you currently provide in respect of the Fund.
15.2 Termination of this Agreement will not prejudice the rights or liabilities of either party in connection with an act or omission which occurred before its termination. This clause and clauses 3, 4, 7 and 8 survive the termination of this Agreement.
15.3 Termination of the Agreement will not give rise to any refund for the unexpired portion of a subscription period which occurs prior to the termination.
16. APPOINTMENT OF DIFFERENT ADVISER
16.1 If the trustee of one of your Funds appoints a different adviser (New Avr) to provide the services you currently provide to the Fund, we are entitled to amend our records to make New Avr the respective adviser contact for the Fund in your stead and to thereafter communicate with New Avr in respect of that Fund.
16.2 you will and do hereby release us from any claim you may otherwise have against us in respect of any actions by us taken pursuant to sub-clause 16.1.
17.1 Nothing in this Agreement shall be taken to constitute or require us to provide superannuation or legal services or financial product advice to you or your Funds.
17.2 A party will not be liable for any non performance of its obligations (except payment) where that non performance results from matters beyond its reasonable control.
17.3 We may subcontract all or any part of the System.
17.4 We may assign or novate this Agreement to any third party without consent.
17.5 Unless otherwise specified, this Agreement may only be amended by agreement in writing signed by the parties.
17.6 This Agreement is governed by and must be construed in accordance with the laws of the State of New South Wales.
17.7 Any provision of this Agreement that is unenforceable in any jurisdiction will not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction provided that the material substance of this Agreement is not varied.
17.8 In this Agreement unless the contrary intention appears:
the singular includes the plural and vice versa;
the word "person" includes a firm, a body corporate, an unincorporated association, corporation or government authority or department;
words denoting one gender include every gender;
where any word or phrase is given a defined meaning any other part of speech or other grammatical form of that word or phrase has a corresponding meaning;
where the day on or by which any act matter or thing is to be done is a Saturday, Sunday or a public holiday such act matter or thing may be done on the next day which is not a Saturday, Sunday or public holiday;
headings are inserted for convenience and do not affect the interpretation of this Agreement;
a reference to a person includes a reference to the person's executors, administrators and successors;
a reference to a statute, code or other law includes regulations, proclamations, ordinances, by-laws and other instruments under it and includes all consolidations, amendments, re-enactments or replacements of any of them occurring at any time before or after the date of this Agreement;
a reference to this Agreement or another instrument or document includes any amendment, variation, replacement, novation of, supplement to or attachment to this Agreement or that instrument or document; and
attachments and schedules form part of this Agreement.