Annual Update Service – Terms of use

Last updated: 15 December 2023

Under the Legal Profession Uniform Law Application Act 2014 (Vic) (Act), We (DBA LAWYERS PTY LTD) must provide you with a disclosure statement and a costs agreement. We outline below your rights and the terms and conditions on which you engage us. Further information about our services and costs is available from www.dbalawyers.com.au and https://online.dbalawyers.com.au/login (Website).

Condition of use

1. You agree to the terms and conditions of the Annual Update Service in in this Agreement.

Services included in the Annual Update Service

2. As part of a Fund’s Subscription to the Annual Update Service, the Fund is entitled to receive:

2.1   a new set of updated SMSF governing rules and accompanying PDS materials per financial year; and

2.2   personalised trustee resolutions resolving to adopt the updated SMSF governing rules and accompanying PDS materials.

3. Each Subscription lasts until the next 30 June at 11:59 pm (as measured with respect to the date the Subscription is paid in respect of the financial year).
4. You warrant to notify DBA Lawyers if:

4.1   there is any change of trustee or membership of the Fund; or

4.2   the Fund’s governing rules are varied other than by way of the Annual Update Service.

5. You acknowledge that a Subscription does not cover documentation to change a trustee or member of the Fund. If requested, We can prepare such documentation. There is an additional charge for this service.
6. If any changes are made to trustees, members or the governing rules of the Fund, We:

6.1    can be instructed to prepare those documents or to review and provide advice on any changes. There is an additional charge for this service.

6.2    makes no warranties or representations as to the legal effectiveness of those changes unless

Materials on the Annual Update Service

7. We will make reasonable efforts so You can access for the duration of the Fund’s Subscription the Materials as part of the Fund’s Subscription. In turn, You warrant that You will always print, retain and store relevant Materials in physical and electronic form and that You will never rely on the Materials being permanently available on the Annual Update Service website.

8. You will not require DBA Lawyers to compensate You for any loss, damages or costs incurred as a result of Your actions that result in any unauthorised access to the Fund’s personalised homepage or any of the Materials (including merely viewing the information, or copying or deleting information that You have uploaded).

9. Should the Fund’s Subscription lapse:

9.1    the Fund’s ability to access the Materials ceases;

9.2    You will download all relevant Materials from the personalised homepage before the Fund’s Subscription lapses; and

9.3    We may either delete any Materials provided to You as part of the Fund’s Subscription as well as any materials that You have uploaded to the Fund’s personalised homepage.

Ownership and copyright

10. You warrant to only use the Materials in good faith and in respect of the period where the Fund maintains a paid-up Subscription.
11. The Fund obtains a non-exclusive single licence to use the Materials we supply in respect of the period where the Fund maintains a Subscription.
12. Neither You nor the Fund have any copyright nor any other intellectual property interest in the Materials that we licence or provide to the Fund. Accordingly, You or the Fund cannot sell, license, rebrand or otherwise exploit the Materials unless you obtain DBA Lawyers’ prior written consent is obtained.

Pricing

13. Pricing is available on the DBA Lawyers’ website.
14. The annual Subscription fee can be increased if we provide 3 months’ notice. If You do not wish to continue Your Subscription under the increased price, you must provide notice to cancel Your Subscription within the 3 month period.
15. The annual Subscription fee can be decreased at DBA Lawyers’ discretion.
16. There is no refund for cancelling or ceasing to use the Annual Update Service.

Understood the agreement

17. You warrant and confirm that You and all other relevant parties to the Fund have read, understood and agree with the terms and conditions in this Agreement.
18. If You are an adviser or agent to Fund and You are instructing DBA Lawyers in respect of the Fund’s Subscription, You warrant that You are acting with the full consent, knowledge and approval of the trustee of the Fund and You warrant that You will only give DBA Lawyers instructions to which all relevant parties to the Fund agree and consent.

Variation

19. Provided that this Agreement is not varied to Your detriment, this Agreement may be varied unilaterally by DBA Lawyers with 3 months’ notice to You.
20. If You do not wish to continue the Annual Update Service under any proposed variation, You must provide notice to cancel Your Subscription within the 3 month period.
21. The Agreement can also be amended with the consent of You and DBA Lawyers.

Merger

22. The provisions of this Agreement do not merge on the expiry, termination, surrender or abandonment of the Subscription or this Agreement.

Governing Law

23. This Agreement shall be governed and construed in accordance with the laws of the State of Victoria and the parties submit to the jurisdiction of the courts of that State and of the Commonwealth of Australia.

Notices

24. All notices and other communications required by this Agreement must be in writing and sent either by email or by pre-paid post (airmail if outside Australia). We may also notify You via the Fund’s personalized homepage.
25. A notice or other communication shall be taken to be duly received:

25.1    if sent by email, on the expiration of 24 hours after sending without receipt of a message indicating an error in the address to which the email was sent or any other email malfunction;

25.2    if sent by pre-paid post, 5 days (if posted to an address in Australia) or 10 days, if addressed elsewhere) after the date of posting; and

25.3    if placed on the Fund’s personalized homepage, 24 hours after it is added to that homepage.

Execution

26. This Agreement is executed by DBA Lawyers by way of offering to You a Fund-specific homepage on the Annual Update Service and is executed by You by way of You using the Annual Update Service.

Severance

27. The provisions in this Agreement are to be construed as divisible and severable and to the extent that any provision is found void, invalid unenforceable or illegal the remaining part of the provision and all other provisions contained in this Agreement shall remain valid, binding and enforceable.

Waiver

28. Waiver by a party of any particular breach or default shall not constitute a waiver of all or any of the provisions of this Agreement with respect to any subsequent or continuing breach of it or a waiver by that party of its rights at any time thereafter to require strict compliance with such provisions despite any rule of law or equity to the contrary.

Entire Agreement

29. This Agreement constitutes the entire agreement of the parties in respect of the matters dealt with in this Agreement and supersedes and extinguishes all prior agreements and representations.

Dispute resolution

30. If a dispute arises out of or in any way relates to this Agreement (including any dispute as to breach or termination of the Agreement, or as to any claim in tort, equity, or pursuant to any statute), the Parties agree that no recourse to arbitration or litigation will be made until the matter is referred to mediation in accordance with clause 31 unless terms of settlement are entered into and then only to enforce the terms of settlement.

Mediation

31. The parties must endeavor to settle any dispute in connection with this Agreement by mediation. Such mediation is to be conducted by a mediator who is independent of the parties and appointed by agreement of the parties or, failing agreement within 7 days of receiving any party’s notice of dispute, by a person appointed by the Chair of the Resolution Institute ABN 69 008 651 232 (http://www.resolution.institute), or the Chair’s designated representative.
32. The Resolution Institute Mediation Rules as set from time-to-time by the Resolution Institute shall apply to the mediation.
33. It is a condition precedent to the right of either party to commence arbitration or litigation other than for interlocutory relief that it has first offered to submit the dispute to mediation.

Assignment

34. We may assign or transfer our rights, obligations, duties, entitlements and all other roles arising under this Agreement to a third party.

Termination

35. We may terminate this Agreement and the Annual Update Service ceases to be provided to the Fund or any other party if we provide 3 months’ notice to You and/or the Fund.
36. You may terminate this Agreement by providing 3 months’ notice to DBA Lawyers.

Interpretation

37. In this Agreement, unless the context requires otherwise:

37.1    Words importing persons shall be deemed to include all natural persons, companies, bodies and associations, whether corporate or unincorporated and vice versa.

37.2    Words (including defined terms) importing the singular shall include the plural and vice versa.

37.3    The headings in this Agreement are for convenience and reference only and shall not be construed as affecting the meaning or interpretation of this Agreement.

37.4    A reference to any person includes their successors in title, legal personal representatives and permitted assignees.

37.5    References to any provision of the Agreement or law includes a reference to that provision as amended, consolidated, supplemented or replaced from time to time.

38. Agreement means the terms and conditions contained in this document.
39. Annual Update Service or AUS mean all of the services provided on and via the websites located www.smsf.com.au and/or any website or website as well as any other services or materials (including written, electronic or otherwise) received from any employee, officer, agent, contractor, associate or any other entity associated with or related to DBA Lawyers.
40. DBA Lawyers and DBA both means DBA LAWYERS PTY LTD ABN 74 120 513 037.
41. Fund means any or all of the trustee of any trust (particularly SMSFs or superannuation trusts) or the trust itself as the context requires or any other entity that wishes to engage DBA Lawyers to receive services as part of the Annual Update Service.
42. Materials means any governing rules, resolutions, invoices or any other document or other information (electronic or otherwise) that We make available via the Annual Update Service and includes any electronic document that You upload to the Annual Update Service.
43. SMSF means a self managed superannuation fund as defined in the Superannuation Industry (Supervision) Act 1993 (Cth) and, as the context requires, can also include any term or concept that might replace SMSF in the future (eg, in the same way that SMSF replaced ‘excluded funds’ in 1999).
44. Subscription means the agreement to pay an annual ongoing fee (payable on 1 July each year) for one SMSF to receive up to 12 months’ access to the Annual Update Service.
45. You means the trustees of the relevant Fund, members of the Fund, any relevant advisers to the Fund, and any other relevant interested or relevant parties to the Fund (eg, standard-employer sponsor).