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Annual Update Service – Terms of use

Terms and conditions
1. Condition of use

1.1. You agree to this Agreement in consideration of the Fund receiving updated governing rules and other valuable and related services and documents as part of the Annual Update Service.
2. Services included as part of a Fund’s Subscription to the Annual Update Service

2.1. As part of a Fund’s Subscription to the Annual Update Service, the Fund is entitled to receive:
(a) at least one new set of updated SMSF governing rules and accompanying PDS materials per financial year;
(b) personalised trustee resolutions resolving to adopt the updated SMSF governing rules and accompanying PDS materials; and
(c) a personalised Fund homepage.
2.2. Each Subscription lasts until the next midnight 30 June (as measured with respect to the date the Subscription is paid).
2.3. You warrant to alert DBA Lawyers if the trusteeship or membership structure of the Fund changes.
2.4. You warrant to alert DBA Lawyers if the governing rules of the Fund are altered other than by way of the Annual Update Service.
2.5. You acknowledge that clauses 2.3 and 2.4 are important to ensure that the Materials provided to You for the Fund by DBA Lawyers are appropriately drafted.
2.6. If changes are made as discussed in clauses 2.3 and 2.4, DBA Lawyers makes no warranties or representations as to the legal effectiveness as to those changes.
2.7. If changes are made as discussed in clauses 2.3 and 2.4, that DBA Lawyers can be briefed to review the documentation evidencing the changes and then provide advice as to the legal effectiveness as to those changes. This is an additional service and additional charges may apply.
2.8. You acknowledge that Subscription to the Annual Update Service does not include the right to receive documentation drafted that will change the trusteeship or the membership structure of the Fund. If requested, DBA Lawyers can prepare such documentation. This is an additional service and additional charges may apply.
2.9. You acknowledge that a Fund’s personalised homepage is predominantly a convenient method of dispatching new SMSF governing rules and accompanying PDS materials, however, from time to time, DBA Lawyers may offer other ‘value added’ services via the Fund’s personalised homepage. Such services may include the ability to upload scanned copies of files, the ability to download templates of popular resolutions, access to latest SMSF news, etc.
3. Materials on the Annual Update Service

3.1. DBA Lawyers will make all practicable, reasonable and good faith efforts to retain and make available to You for the duration of the Fund’s Subscription to the Annual Update Service all relevant Materials including all governing rules, resolutions, invoices and other Materials that are made available to You as made as part of the Fund’s Subscription to the Annual Update Service. In turn, You warrant that You will always print, retain and store relevant Materials in physical form and that You will never rely on the materials being permanently available on the Annual Update Service.
3.2. You warrant that You indemnify DBA Lawyers entirely for any harm, loss, damage or costs that You may incur as a result of an unauthorised person gaining access to the Fund’s personalised homepage regardless of what that person does (including deleting scanned files that you have uploaded and/or merely seeing information).
3.3. You warrant that should the Fund’s Subscription lapse, DBA Lawyers may either destroy or indefinitely retain any Materials that it provided to You as part of the Fund’s subscription to the Annual Update Service as well as materials that You may have uploaded to the Fund’s personalised homepage.
3.4. You acknowledge that the Fund’s subscription to the Annual Update Service includes access to the Materials via its personalised homepage and that should the Fund’s subscription lapse, the Fund’s ability to access the Materials ceases. You warrant that should the Fund’s subscription lapse, You will first download all relevant Materials from the Annual Update Service.
3.5. You warrant that You and all other relevant parties to the Fund have read, understood and agreed to this Agreement. If You are an adviser to the Fund and You are instructing DBA Lawyers in respect of the Fund’s subscription to the Annual Update Service, You warrant that You are acting with the full consent, knowledge and approval 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.
4. Ownership

4.1. You acknowledge that the Fund has an indefinite single use licence to use the governing rules and other Materials supplied to the Fund by DBA Lawyers in respect of any period where the Fund maintains a subscription to the Annual Update Service.
4.2. This licence lasts indefinitely and does not expire, terminate or surrender should the Fund’s Subscription to the Annual Update Service lapse.
4.3. Neither You nor the Fund have a proprietary interest in the Materials provided to the Fund in respect of any period where Fund’s maintains a subscription to the Annual Update Service. Accordingly, neither You nor the Fund may grant licences, resell the Materials, rebadge the Materials, etc, unless DBA Lawyers’s express prior written consent is first obtained.
5. Pricing

5.1. The pricing in respect of the Annual Update Service is available on request from DBA Lawyers.
5.2. The annual resubscription fee (an ongoing fee) can be deceased at DBA Lawyers’s complete discretion. The annual resubscription fee can be only be increased if DBA Lawyers providing 3 months’ notice in accordance with clause 10.
6. Confidentiality

6.1. You warrant to only use the Materials in good faith and in respect of the Fund.
7. Variation

7.1. Provided that this Agreement is not altered to the detriment of You, this Agreement may altered unilaterally by DBA Lawyers.
7.2. Alternatively, the Agreement can be amended with the consent of You and DBA Lawyers.
8. Merger

8.1. The provisions of this Agreement shall not merge on the expiry, termination, surrender or abandonment of this Agreement.
9. Governing Law

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

10.1. Unless otherwise expressly stipulated in this Agreement, DBA Lawyers may deliver notice to You by placing an announcement on the Annual Update Service website or by email sent to the nominated contact person’s email address.
10.2. All notices and other communications required by this Agreement to be in writing shall be given by a duly authorised officer of the relevant party and shall be sent to the recipient by hand, pre-paid post (airmail if outside Australia), email or fax.
10.3. A notice or other communication shall be taken to be duly received:
(a) if sent by hand, when left at the address of the recipient;
(b) 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;
(c) if sent by fax, upon receipt by the sender of an acknowledgment or transmission report generated by the machine from which the fax was sent indicating that the fax was sent in its entirety to the recipient’s fax number; or
(d) 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.
10.4. All notices and other communications shall be sent to the address of the parties set out in this Agreement or to such other address, email or fax number as a party may from time to time notify to the other.
11. Execution

11.1. This Agreement is executed by DBA Lawyers by way of offering to You on the Annual Update Service and is executed by You by way of You using the Annual Update Service.
12. Severance

12.1. The provisions of this Agreement are and shall be construed as divisible and severable to the effect that if any provision or any part of the provision shall at any time be found or declared void or voidable by any party or invalid unenforceable or illegal the remaining part of the provision and all other provisions contained in this Agreement shall remain valid, binding and enforceable.
13. Further Assurances

13.1. The parties shall promptly do, execute and deliver, and cause any relevant third person to do, execute and deliver, all such other and further acts and instruments as are necessary to give effect to this Agreement.
14. Waiver

14.1. Waiver by a party of any particular breach or default or series of breaches or defaults in the performance by the other party of its several obligations pursuant to this Agreement or the failure, refusal or neglect by a party to exercise any right, power or option given to it pursuant to this Agreement or to insist upon strict compliance with the performance by the other party of any or all of its several obligations under this Agreement 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 exact and strict compliance with such provisions despite any rule of law or equity to the contrary.
15. Entire Agreement

15.1. 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 representations, promises, undertakings, arrangements, understandings and negotiations in respect of the matters dealt with in this Agreement unless the prior document expressly provides that it shall prevail over this Agreement. To the extent that any provision of this Agreement is inconsistent with anything contained in the Trust Agreement then the provisions of this Agreement shall prevail to the extent of any inconsistency.
16. Dispute resolution

16.1. If a dispute arises out of or relates to this Agreement (including any dispute as to breach or termination of the Agreement, or as to any claim in tort, in 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:
(a) mediation in accordance with clause 17 unless terms of settlement are entered into and then only to enforce the terms of settlement; and
(b) in the event of cessation of mediation, to arbitration in accordance with clause 18;
16.2. unless that litigation is solely to enforce terms of settlement entered into in accordance with clause 15, the decision of an arbitrator pursuant to clause 17 or to enforce this clause.
17. Mediation

17.1. A mediation shall proceed as follows:
(a) the party or parties wishing to resolve a dispute must give notice of intention to mediate the dispute to:
(i) the other party or parties; and
(ii) to a mediator selected by the President of the Law Institute of Victoria from the list of qualified mediators produced from time to time by the Law Institute of Victoria,
(b) which gives particulars of the matter in dispute;
(c) the parties must co-operate with the mediator in an effort to resolve the dispute;
(d) the mediator may engage an appropriately qualified expert to give an opinion on technical matters raised in the course of the mediation or which are relevant to the dispute;
(e) if the dispute is mediated successfully, the parties must sign a copy of the terms of settlement approved by the mediator;
(f) if the dispute is not resolved within 14 days after the mediator has commenced the mediation, or within such other period as is agreed to between the parties, the mediation shall cease and either party may commence arbitration when mediation ceases where no terms of settlement have been concluded by the parties in accordance with clause 16; and
(g) all costs of the mediator shall be borne equally between the parties to the mediation and shall be payable by the parties to the mediator directly.
17.2. Any terms of settlement concluded by the parties in accordance with this clause 17 are binding on the parties, and override the terms of this Agreement in the case of any conflict.
17.3. The terms of settlement concluded by the parties in accordance with this clause 17 may be tendered in evidence in any mediation, arbitration or legal proceeding.
17.4. The parties agree that any statement made by either party during the course of mediation, whether such statement is written or oral and whether made as between the parties or between any one or more parties and the mediator, are not admissible by the recipient of such statement in any arbitration or legal proceeding.
18. Arbitration

18.1. An arbitration that commences on the cessation of any mediation in accordance with clause 16 shall be referred to the arbitration of:
(a) a senior practitioner appointed by the President for the time being of the Victorian Branch of the Society of Certified Practising Accountants; or
(b) if the dispute concerns more than $40,000, a single arbitrator to be appointed by the President for the time being of the Institute of Arbitrators.
18.2. The awards or determinations made under this clause 18:
(a) may comprise or include an order for the costs of the dispute against any party; and
(b) shall be final and binding upon the parties.
18.3. Every arbitration made under this clause 18 shall be held in accordance with the provisions of the Commercial Arbitration Act 1984 (Vic).
19. Assignment

19.1. DBA Lawyers may transferred its rights, obligations, duties, entities and all other roles arising under this Agreement to a third party at DBA Lawyers’s discretion provided that this is not to Your determent.

20. Termination

20.1. This Agreement may be terminated by DBA Lawyers and the Annual Update Service may be ceased to be offered and/or ceased to be provided to the Fund or any other party if DBA Lawyers provides 3 months’ Notice to You and/or the Fund.
21. Interpretation

21.1. In this Agreement, unless there is something in the subject or context inconsistent with it:
(a) Words importing any one gender shall include the other genders.
(b) Words importing persons shall be deemed to include all bodies and associations, whether corporate or unincorporated and vice versa.
(c) Words (including defined terms) importing the singular shall include the plural and vice versa.
(d) 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.
(e) A reference to any party to this Agreement shall include that party’s successors in title, legal personal representatives and permitted assigns.
(f) References to any provision of the Agreement, law, regulation, temporary modification order, ruling, circular or guideline are references to that provision of the Agreement, law, regulation, temporary modification order, ruling, circular or guideline as amended, consolidated, supplemented or replaced from time to time.
21.2. Agreement means the terms and conditions.
21.3. Annual Update Service, AUS, Us and We all 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 (included written, electronic, verbal or otherwise) received from any employee, officer, agent, contactor, associate or any other entity associated with or related to DBA Lawyers.
21.4. DBA Lawyers and DBA both means DBA Lawyers Pty Ltd, ABN 74 120 513 037.
21.5. Fund means any or all of the trustee of any trust (particularly 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.
21.6. Materials include any governing rules, resolutions, invoices or any other documents or other information (electronic or otherwise) that We make available via the Annual Update Service and also include any electronic documents that You upload to the Annual Update Service.
21.7. SMSF includes 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).
21.8. Subscription includes as the context requires the annual ongoing fee (payable on 1 July each year) and in exchange for this fee the Fund receives up to 12 month’s access to a personalised homepage available at www.smsf.com.au/aus as well as miscellaneous services related thereto such as the provision of updated governing rules of an SMSF.
21.9. You includes 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 where applicable).