In this agreement, the following definitions apply unless the context requires otherwise:
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Confidential Information means all information that We supply to You, or are supplied to You by a third-party, which relates to (a) Our business operational, financial, legal, marketing, or sales details and plans; (b) personal information related to Our directors, other officers, employees, and contractors; (c) Our intellectual property including all components and compilations of the Program and the Software such as but not limited to source code, text, audio, images, video, trademarks, and patents whether registered or not; (d) The existence and terms of this agreement and any other contract that We have entered into; (e) any information that We mark as being confidential; and (f) any information that a reasonable recipient would consider confidential judging by the nature of the content and context.
Program means all SMSF Audit Services products and applications made available to You by Us.
Software means the software We use to allow the Program to be made available for access by You.
We, Us, Our or similar words mean SMSF Audit Services Group Pty Ltd, ABN 99 641 366 369, trading as SMSF Audit Services.
You, Your means each person using the Program.
2. Term.
This agreement commences upon your first use of the username provided to You pursuant to clause 5, and continues as a license until terminated by either party in accordance with the terms of this agreement.
3. Access.
During the Term, We will make reasonable efforts to make the Program available to You 24 hours per day 7 days per week, but you should note the provisions of clause 9.
Use of the Program is limited to Your use only. Your account details, username and password must be kept confidential and cannot be shared. Please refer to Clause 9 regarding termination of accounts if You allow another person to use Your username and password.
4. Technical Support.
If You experience difficulties accessing or using our Program, our helpdesk can be contacted at this email address: info@smsfauditservices.com.au. We will use reasonable efforts to assist you within a
reasonable time, but You should note the provisions of clause 7.
5. Licence.
As Our audit services client, We agree to provide You with controlled access to the Program, in accordance with the terms of this agreement.
We shall provide you with a unique username with which to access the Program. You will be required to create a password for use in conjunction with Your username.
We will not have access to the password you create, and you acknowledge that You are wholly responsible for ensuring that You keep the password secure and not lose it. Your access to the Program may be stopped or delayed if you lose Your password or it becomes compromised.
We reserve the right to make changes to information in, and obtained through the use of, the Program, at any time and without notice.
We may monitor Your use of the Program to ensure You are using the Program in accordance with this agreement.
We retain the copyright, title and ownership of the Program and Software. You may not reverse engineer, decompile or disassemble the Software nor take any steps to defeat any software protection, except to the extent expressly permitted by any relevant law.
You must keep the username and password confidential and must not provide or allow them to be used or shared by another user. Please refer to Clause 9 regarding termination of accounts.
You must not rent, lease or lend any copy of the Software.
You must not modify or create derivative works based on the Software.
You must not embed or link to the Program or Software, or any component of them, into another website or software.
You must not sell access to the Program or the Software to any third party.
Without limiting your obligations under this agreement, you must not use the Program or Software for any purpose other than to upload documentation relevant to, or required for, our auditing services.
6. Confidentiality.
You agree to keep all Confidential Information strictly confidential, and not disclose that information to any person without Our prior written consent, and not use that information for purposes other than Your accounting purposes. This restriction will not apply to:
Any disclosure required by law; or
Any disclosure of Confidential Information which is in the public domain other than as a result of a breach of this agreement or a breach of any other obligation of confidence owed to Us by you or a third party; or
Any disclosure to your legal advisers strictly for the purpose of obtaining legal advice about your rights and obligations under this agreement.
b. Without limitation, You must not reproduce by any means (including electronically) any Confidential Information without our prior written consent.
7. Exclusion of liability and Warranties.
To the maximum extent permitted by law: The information in, and obtained from, the Program may include errors and We make no warranty that the information in or obtained through use of the Program is error free. We disclaim all liability (including for negligence) for Your acting or relying on any inaccurate information supplied by Us in connection with Our provision of the Program to You.
You acknowledge that the Program is provided "as is", and that We have not made, and that no person acting on Our behalf has made, any representation as to the suitability of the Program or any information provided or obtained by access to the Program for any particular purpose.
You acknowledge that We give no warranty in connection with the availability or reliability of the Program or your access to the Program. You agree to satisfy Yourself about such things at all times.
You acknowledge that We give no warranty in connection with the availability or response times, of the email support referred to in clause 4.
We disclaim all warranties as to the freedom of the Software, the Program or the data in the Program from any "back door", "time bomb", "Trojan Horse", "worm", "drop dead device", "virus" or other similar computer software routine or malicious code.
We exclude all implied warranties or conditions concerning any goods or services We supply or agree to supply. Our liability (including for negligence) for any breach by Us of any term or warranty required by law to be implied into this agreement is limited, at Our option, to:
for services, the supplying of the services again, or the payment of the cost of having the services supplied again; or
for goods, the replacement or supply of equivalent goods, the repair of such goods, the payment of the cost of replacing the goods or acquiring equivalent goods, or the payment of the cost of having the goods repaired.
We disclaim all liability (including for negligence), howsoever arising, in connection with this agreement or the provision of access to the Program (including the Software) by Us. You agree to release and discharge Us and each of Our employees, officers, contractors, agents and content partner from all actions, claims, charges, costs, expenses, losses, damages, and other liabilities arising (including consequential loss, loss of profit and other economic loss) out of or otherwise in connection with this agreement.
You acknowledge that We have not made, and that no person acting on Our behalf has made, any representation that use of the Program (or the Software) will not infringe any third party's intellectual property rights.
If any court or tribunal determines that We should be held liable notwithstanding sub-clauses (a) to (h) above, you agree that Our liability shall be:
limited to any professional fees that you have paid to us for our auditing services during the 6 months immediately prior to when the liability arose;
exclude any indirect or consequential damages, such as (but not limited to) loss of business opportunity, loss of goodwill, costs of lawyers and experts, and any damage that we could not reasonably have foreseen at the time of providing you with access to the Program and Software; and
be set off by any damage or loss arising from Your negligence, error or omission, or failure to mitigate your damage or loss.
If there is any conflict between a disclaimer or limitation of liability under this clause and the Australian Consumer Law, our disclaimer and limitations of liability under this clause shall only apply to the maximum extent allowed under the Australian Consumer Law.
8. Ownership of Intellectual Property
We own all property rights, including Intellectual property rights in the Program (including the Software). You acknowledge that all intellectual property rights in the Program and in the information generated through use of the Program are owned by Us.
You may not distribute the information (in any form) obtained from the Program or Your use of the Program to third parties, "mirror" or include the information on Your own server, or modify or re-use the information without Our prior written permission.
We grant You a non-exclusive, non-transferable licence for the Term to use the intellectual property rights subsisting in the Program from time to time for the purposes of Your use of the Program as permitted by this agreement.
We reserve all rights to the Software, the Program, the data contained in the Program, the documentation referred to in clause 6 and all rights subsisting in them.
9. Termination.
Without limiting any other right of termination under this agreement, either party may terminate this agreement at any time.
Without limiting any other right of termination under this agreement, We may terminate this agreement immediately on notice to You if:
You are in breach of this agreement;
You allow the username and password to be shared or used by another person.
You are insolvent, have an administrator appointed, are wound up, or an application is made to wind You up.
Upon termination Your access to the Program ceases immediately and You must return or destroy all Confidential Information that We may have provided to You.
10. General.
This agreement contains the entire agreement between You and Us with respect to its subject matter and supersedes all prior agreements and understandings between the parties in connection with it.
Your use of the Program signifies Your acceptance of these terms and conditions.
You may not assign or transfer any of Your rights or obligations under this agreement without Our prior written consent which may be given or withheld in our absolute discretion.
Any provision of this agreement that is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of this agreement nor affect the validity or enforceability of that provision in any other jurisdiction.
This agreement is governed by the laws of Victoria, Australia. Each party submits to the exclusive jurisdiction of courts exercising jurisdiction there in connection with this agreement.
11. Amending the Agreement.
We reserve the right to amend the terms and conditions of this agreement upon the provision of 1 month notice to You. Your continued use of the Program signifies Your acceptance of the new terms and conditions.