THIS AGREEMENT IS A BINDING LEGAL DOCUMENT BETWEEN US AND YOU GOVERNING THE USE OF OUR WEBSITE AND OUR SERVICES.
YOUR RIGHT TO ACCESS OUR WEBSITE OR TO USE OUR SERVICES IS CONDITIONAL UPON YOU ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT.
YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT BY:
(a) CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT WHEN REGISTERING ONLINE WITH US; OR
(b) EXECUTING A SUBSCRIPTION ORDER REFERRING TO THIS AGREEMENT.
IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT:
(a) YOU DO NOT HAVE THE RIGHT TO ACCESS OUR WEBSITE OR USE OUR SERVICES; AND
(b) YOU MUST NOT ACCESS OUR WEBSITES OR DOWNLOAD OR USE OUR SERVICES.
IF YOU AGREE WITH, AND ACCEPT, THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOUR USE OF OUR SERVICES DEMONSTRATES YOUR CONTINUING ACCEPTANCE OF THIS AGREEMENT.
THIS AGREEMENT IS EFFECTIVE BETWEEN YOU AND US AS OF THE DATE OF YOUR ACCEPTING THIS AGREEMENT, BEING THE DATE:
(a) YOU CLICKED A BOX INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT WHEN REGISTERING ONLINE WITH US; OR
(b) YOU EXECUTED A SUBSCRIPTION ORDER REFERRING TO THIS AGREEMENT.
THIS AGREEMENT WAS LAST UPDATED ON 01 JULY 2022.
1 Definitions and interpretation
1.1 Definitions
The following definitions apply where used in this Agreement unless the context requires otherwise:
Account means an account created by You when registering Your details with Us for the purpose of using Our Services.
Agreement means this document and any annexures or schedules attached to it.
Approved SMSF Auditor has the same meaning as in the SIS Act.
ASIC means the independent Australian government body known as the Australian Securities and Investments Commission that acts as Australia’s corporate regulator and enforces company and financial services laws to protect Australian consumers, investors and creditors.
Associated Entity has the meaning given to that term in the Corporations Act 2001 (Cth).
Business Day means any day excluding Saturdays, Sundays and public holidays declared in New South Wales.
Cloudoffis File means One Audit Job Per Financial Year or One SMSF Sorted Client Per Financial Year or One Workpaper File of Tax Sorted Client.
Content means information obtained by Us from publicly available sources or third-party content providers and made available to You through the Services.
Effective Date means the date of Your acceptance of this Agreement.
GST means a goods and services tax, or a similar value added tax, levied or imposed under the GST Law.
GST Law has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and words and expressions defined in the GST Law have the same meaning in clauses concerning GST.
Intellectual Property Rights means all rights pertaining, but not limited, to trademarks, service marks, logos, patents, copyrights, processes know-how, registered designs, text, graphics, photos or web-interactive features or other like rights or any rights to apply for registration of any of the former under Australian Laws or foreign Laws and international conventions.
Laws means and includes the provisions of any statutes, acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements of any:
(a) Australian Commonwealth, state and local government departments, bodies, and public authorities or other authority; or
(b) foreign laws and international conventions.
Privacy Policy means Our policy relating to the privacy of Your personal information processed pursuant to the terms of this Agreement as updated or modified from time to time.
Registered SMSF Auditor means an Approved SMSF Auditor who is registered by ASIC as an Approved SMSF Auditor.
Related Body Corporate has the meaning given to that term in the Corporations Act 2001 (Cth).
Services means the services that are ordered by You under a Subscription Plan chosen by You and made available to You online by Us through Our Website and include Our cloud-based software enabling You:
- to perform, automate and provide SMSF Audits for, and on behalf of, Your clients; and/or
- to perform, automate and provide Professional Tasks for, and on behalf of, Your clients.
SIS Act means the Superannuation Industry (Supervision) Act 1993 and corresponding regulations.
SMSF means self-managed superannuation fund as defined in the SIS Act.
SMSF Audit means the auditing of an SMSF, in accordance with the regulatory requirements and standards imposed by the SIS Act.
Subscription Order means a hard-copy ordering document or online order entered between You and Us specifying the Services to be provided by Us to You under Your chosen Subscription Plan.
Subscription Plan means the plan selected by You when registering with Us online or when executing a Subscription Order entitling You to specific features and options of the Services including access to a minimum number of Cloudoffis Files.
Subscription Term means the period which the customer agrees to while subscribing to a plan.
Support Policy means Our policy relating to Our support to You in providing Our Services to You as updated or modified from time to time.
Professional Task means any professional task, other than an SMSF Audit, provided by You to Your clients through Our Website under a Subscription Plan using Our cloud-based software.
Terms of Service means the terms of this Agreement as updated or modified from time to time.
Third Party Services means any services (including software programs), facilities or information (including purchased information) provided by external parties to Us or to You which are necessary or recommended by Us to enable You to properly conduct SMSF Audits using Our Website and Services.
User means an individual or entity authorized by You to use the Services, in accordance with Your Subscription Plan, that has been supplied with user identification and password by You (or by Us at Your request) and includes but is not limited to Your employees, consultants, contractors, agents or third parties with which You transact business.
We, Us or Our means GetOnCloud Pty Ltd T/as Cloudoffis Australia ACN 601 942 698.
Website means Our website, www.cloudoffis.com.au, accessed via the internet, mobile telephone or other device or any other website through which We make Our Services available.
You or Your means;
(a) if an individual is accepting this Agreement, such individual; or
(b) if an individual is accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which the individual is accepting this Agreement, and Related Bodies Corporate and Associated Entities of that company or entity.
Your Data means any data, information, documentation or material (electronic or otherwise) submitted by You, or for You, to the Services or in relation to the Services.
1.2 Interpretation
In this Agreement, unless the contrary intention appears:
(a) the clause headings are for ease of reference only and shall not be relevant to interpretation;
(b) a reference to a clause number is a reference to its subclauses;
(c) words in the singular number include the plural and vice versa;
(d) words importing a gender include any other gender;
(e) a reference to a person includes bodies corporate and unincorporated associations and partnerships;
(f) a reference to a clause is a reference to a clause or subclause of this Agreement;
(g) a reference to a subclause is a reference to a subclause of the clause in which that reference is made;
(h) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(i) a reference to a schedule includes a reference to any part of that Schedule which is incorporated by reference;
(j) monetary references are references to Australian currency.
2 General
(a) We provide Our Website and Services to You under the terms of this Agreement and Your chosen Subscription Plan as specified in Your Subscription Order.
(b) By accessing, registering for, using or downloading Our Website and Services, You agree to the terms of this Agreement.
(c) You agree that You are only permitted to use Our Services if You agree to the terms of this Agreement, Privacy Policy and Support Policy.
(d) If You do not agree to the terms of this Agreement, Privacy Policy and Support Policy You must not access and do not have the right to use Our Website and You must not download or use Our Services.
3 Privacy Policy
Our Privacy Policy:
(a) lists Our privacy practices about Your personal information; and
(b) can be found on our website.
4 Our Support Policy:
(a) lists provisions about Our general support to You; and
(b) can be found on our website.
5 Compliance and disclosure
(a) You agree that We have the right to contact You and seek more information from You in connection with:
(i) Your compliance of the terms of this Agreement; and
(ii) Your Data, activities or content placed by You to the Services or in respect of Our Services.
(b) By accessing Our Websites and using Our Services, You acknowledge and agree that:
(i) We may keep records of Your Data, activities or content placed by You to the Services in connection with Our Services;
(ii) We may disclose Your Data, activities or content placed by You to the Services in connection with Our Services if required to do so by any Law or in good faith that such action is reasonable and necessary to:
- comply with any Law;
- enforce the terms of this Agreement;
- respond to any claims that Your activities in connection with Your Data, activities or content placed by You to the Services in connection with Our Services violate the rights of third parties; or
- to protect Our rights, property, Intellectual Property Rights or personal safety or the rights, property, Intellectual Property Rights or personal safety of other users of Our Services or the public generally.
6 Third-Party Owned Facilities
(a) You agree and acknowledge that:
(i) Our Services may contain links to third-party owned websites, or We may use third-party owned facilities such as data storage, access to information/searching services, data security and/or direct payment facilities that are not owned or controlled by Us (“Third-Party Owned Facilities’); and
(ii) Third-Party Owned Facilities may be necessary or appropriate for Your access to, or Your use of, or Our Services.
(iii) Microsoft 365 for the web is Microsoft Service and use of Microsoft 365 for the web is subject to Microsoft’s terms and privacy policy.
(b) You agree and acknowledge that:
(i) Our use of Third-Party Owned Facilities is used only for integration with Our Services and to facilitate the provision of Our Services to You;
(ii) Your right to make use of any Third-Party Owned Facilities is governed by the terms of the relevant third party licences, agreements, policies or terms of use and not by this Agreement;
(iii) You are liable for any payments due to the relevant third party in connection with any Third-Party Owned Facilities provided to You, or to Us on Your behalf, when You access or use Our Services; and
(iv) We are not responsible for:
- the content, licensing requirements, privacy policies, or practices of any Third-Party Owned Facilities;
- any transactions between You and the relevant third party, or for any problems or delays caused by outages of the third party’s servers or connectivity;
- any payments due to the relevant third party in connection with any Third-Party Owned Facilities provided to You, or to Us on Your behalf, when You access or use Our Services; and
- for any loss or damage caused to You due to a fault, action or inaction caused by any Third-Party Owned Facilities.
(c) BY USING OUR WEBSITE AND SERVICES, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, YOU SPECIFICALLY RELEASE US FROM ANY AND ALL LIABILITY ARISING FROM YOUR USE OF, OR INTERACTION WITH, ANY THIRD-PARTY OWNED FACILITIES.
7 Modification of terms
(a) You agree and acknowledge that:
(i) If there is a need to update or modify the terms of service, privacy policy or support policy, we will give you 30 days’ notice prior to making any changes, this will not affect any client’s current subscription agreement;
(ii) all updates to the Terms of Service, Privacy Policy or Support Policy will be effective from the day such updates are posted online on Our Website via the links labeled ‘Terms of Service’, ‘Privacy Policy’ and ‘Support Policy’;
(iii) it is Your responsibility to regularly visit and review the Terms of Service, Privacy Policy and Support Policy.
(b) If You do not agree to modifications or updates to Our Terms of Service, Privacy Policy or Support Policy then You must cancel Your Subscription Plan and stop using Our Services.
(c) You acknowledge that Your continued use of Our Services after We have posted updated Terms of Service, Privacy Policy or Support Policy signifies Your agreement and acceptance to be bound by such updated Terms of Service, Privacy Policy and Support Policy.
8 Grant of licence and access
(a) We will make the Services and Content available to You pursuant to the terms of this Agreement and in accordance with Your chosen Subscription Plan as specified in the Subscription Order.
(b) The Services are Our sole property and are licenced to You, not sold.
(c) We will grant You a worldwide, non-transferable, non-exclusive, revocable licence to use Our Services only under the condition that You agree to abide by the terms and conditions specified in this Agreement.
(d) You agree that:
(i) the licence granted to You under this Agreement must be used for its intended purpose only and in accordance with Your chosen Subscription Plan; and
(ii) the Services licenced to You under this Agreement exclude Content.
(e) We reserve all additional rights, including all Intellectual Property Rights, industrial, and proprietary rights that are not specifically granted to You under this Agreement.
9 Access to Our Services
(a) While We use reasonable endeavors to ensure that Our Services are available continuously, We do not make any representations or warranties that Your access to Our Services will be uninterrupted, timely, secure or error free.
(b) Your access to Our Services may be suspended without notice in the case of system failure, maintenance or repair of Our servers or facilities or for any reason beyond Our control.
(c) We do not warrant that We will continue to make the Services available generally or at all and You agree that We have the right at any time to change any material appearing on Our Website or Services notwithstanding that such changes may necessitate new or altered equipment needed to access or use Our Services.
10 Licence restrictions
10.1 Prohibited material
(a) You must not, and must not allow any third-party, including Your Users, to use the Services or Website to display, store, process or transmit or permit use of the Services or Website to display, store, process or transmit:
(i) material that infringes or misappropriates a third party’s Intellectual Property Right or other proprietary right;
(ii) hate‐related or violent material, and/or material advocating discrimination against individuals or groups;
(iii) obscene, excessively profane material or otherwise objectionable material;
(iv) material advocating or advancing criminal hacking, cracking, or phishing;
(v) material related to illegal drugs or paraphernalia;
(vi) malicious material;
(vii) unlawful software;
(viii) malicious code, such as viruses, worms, time bombs, Trojan horses and other harmful or malicious files, scripts, agents or programs; or
(ix) material that violates, encourages or furthers conduct that would violate any applicable Laws, including any criminal Laws, or any third‐party rights, including publicity or privacy rights.
10.2 Copy restrictions
(a) You agree not to infringe Our Intellectual Property Rights and to the extent permitted by applicable Laws, You agree not to:
(i) decompile, disassemble, or electronically transfer Our Services to third parties;
(ii) modify Our Services in any way;
(iii) reverse engineer, or permit others to reverse engineer, Our Services;
(iv) copy the user manuals, help features, user forums and other documentation associated with Our Services;
(v) rent, lend, publicly perform, present, broadcast or distribute Our Services;
(vi) make derivative works of Our Services;
(vii) translate Our Services into another computer language;
(viii) use Our Services on a device that You do not own or control;
(ix) permit multiple users to share a single user name to Our Services; or
(x) copy, modify, transfer, or use Our Services in a way that is not specifically permitted by Us under this Agreement.
10.3 Prohibited actions
(a) You must not use Our Services or Website to, nor allow Your Users or any third‐party to use Our Services or Website to generate or facilitate unsolicited commercial email (spam), including but not limited to:
(i) sending communications or email in violation of any anti‐spam Laws;
(ii) imitating or impersonating Us, another person or his, her or its email address, or creating false accounts for the purpose of sending spam;
(iii) data mining or harvesting any web property to find email addresses or other user account information;
(iv) sending unauthorized mail via open, third‐party servers;
(v) sending email to users who have requested to be removed from a mailing list;
(vi) selling to, exchanging with, sharing with or distributing to a third-party personal information, including the email addresses of any person without such person’s knowing and continued consent to such disclosure; or
(vii) sending unsolicited emails to significant numbers of email addresses belonging to individuals and/or entities with whom You have no pre-existing relationship.
(b) You must not use Our Services or Website to, nor allow Your Users or any third‐party to use Our Services or Website to, carry out any of the following activities:
(i) undergo excessive use of CPU time, bandwidth, network capacity, disk IO, or storage space;
(ii) use “warez,” including pirated software, ROMs, emulators, phreaking, hacking, phishing, password cracking or cheating, IP spoofing, etc.;
(iii) use or launch any automated system on Our network, including (without limitation) “robots” or “spiders”;
(iv) use BitTorrent’s or related technology on Our servers;
(v) use a false email return address to confuse other users;
(vi) attempt to access other accounts that do not belong to You;
(vii) undergo any act that interferes with the Services of another user;
(viii) circumvent security measures on the network or Our Services;
(ix) engage in illegal activities or engage in activities harmful to Our operations, Our Services or other customers and users;
(x) use Our Services to collect or use any personally identifiable information including, without limitation, account names, email addresses, or other such information;
(xi) engage in terroristic activities;
(xii) send or store infringing, obscene, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or that violates any third-party Intellectual Property Rights or privacy rights; or
(xiii) provide false data on any of the Services, including fraudulent use of credit card numbers.
(xiv) conduct or forward multi‐level marketing, such as pyramid schemes and the like;
(xv) generate or facilitate SMS, MMS, or other text messages or push notifications in violation of any applicable Laws including anti-spam, telemarketing or telephone consumer protection Laws;
(xvi) use Our Services in any manner that violates any applicable industry standards, third party policies or requirements;
(xvii) transmit material that may be harmful to minors;
(xviii) illegally transmit another person’s or entity’s Intellectual Property Rights or other proprietary information without such owner’s permission;
(xix) impersonate another person, entity or Us (via the use of an email address or otherwise) or otherwise misrepresent such person, entity or Us or the source of any email;
(xx) violate the rights (such as rights of privacy or publicity) of others;
(xxi) promote, facilitate or encourage illegal activity;
(xxii) interfere with other users’ enjoyment of Our Services;
(xxiii) engage in activity in connection with illegal peer‐to‐peer file sharing;
(xxiv) engage in or promote gambling, or run a gambling operation;
(xxv) “mine” bitcoins and other cryptocurrencies;
(xxvi) sell, distribute or export illegal or prescription drugs or other controlled substances or paraphernalia;
(xxvii) access Our Services and/or Website in a manner that violates Our Terms of Service;
(xxviii) operate an “open proxy” or any other form of Internet proxy service that is capable of forwarding requests to any end user or third party‐supplied Internet host;
(xxix) perform significant load or security testing without first obtaining Our written consent;
(xxx) remove any copyright, trademark or other proprietary rights notices contained in or on the service or reformat or frame any portion of the web pages that are part of the service’s administration display;
(xxxi) access a third-party web property for the purposes of web scraping, web crawling, web monitoring, or other similar activity through a web client that does not take commercially reasonable efforts to identify itself via a unique user agent string describing the purpose of the web client and obey the robots exclusion standard (also known as the robots.txt standard), including the crawl‐delay directive;
(xxxii) use Our Services in any manner that would disparage Us; or
(xxxiii) Use the Einstein Bot feature to communicate with any third party without clearly communicating that the individual is speaking with a bot.
10.4 Breach of this clause leads to immediate termination
(a) You agree and acknowledge that if You breach any of the conditions specified in this clause 10, We may immediately:
(i) terminate Your Subscription Plan and cancel Our Services to You; and
(ii) pursue legal action for any loss or damage suffered by Us or Our Related Body Corporates without prior notice to You.
(b) Your obligations under this clause 10 will survive termination or expiry of this Agreement.
11 Intellectual Property Rights
You agree and acknowledge that:
(a) by registering for, and being granted a licence to use, Our Services, You are not granted any rights, or a license, to Our Intellectual Property Rights in relation to the Services or Website.
(b) the content provided in the Services, including Our Intellectual Property Rights in relation to the Services or Website, is owned by, or is licensed to, Us;
(c) the content provided in the Services, including Our Intellectual Property Rights in relation to the Services or Website, is provided to You for Your information, and use only; and
(d) You must not, and You will not, use, manipulate, copy, reproduce, transmit, distribute, broadcast, display, sell, license or otherwise exploit for any purpose whatsoever the content provided in the Services, including Our Intellectual Property Rights in relation to the Services or Website.
12 Data
12.1 Your Data
(a) You agree and acknowledge that:
(i) Your Data is owned by You or Your client;
(ii) We do not own any of Your Data;
(iii) You are fully responsible, and have full legal liability, for the quality, integrity, legality, accuracy, intellectual property ownership, reliability, appropriateness, or the right to use all Your Data to the Services or in relation to the Services;
(iv) there are limitations to Our Services’ ability to assist in Your business; and
(v) Our Services do not detect faulty or aberrant input data, do not take into account all of the matters that should be considered in decision making regarding matters of relevance to Your business and should not be used as a substitute for Your independent and appropriately qualified decisions regarding matters of relevance to Your business.
(vi) We will retain Your Data for 90 days following the expiry or termination of your subscription or you explicitly delete a client, during which time you may request us to retrieve Your Data if you wish to by downloading it, fees may apply. After that 90 day period, we will delete Your Data from our systems and you will not be able to retrieve it. We exclude all liability in relation to your inability to retrieve Your Data after this 90 day period and you waive any and all claims against us in relation to your inability to retrieve Your Data after this 90 day period.
(b) You further agree and acknowledge that We are not responsible for:
(i) the quality, integrity, legality, accuracy, intellectual property ownership, reliability, appropriateness, or Your right to use all Your Data to the Services or in relation to the Services; and
(ii) for the deletion, correction, destruction, damage, loss or failure to store Your Data.
(c) You agree that We have the right to:
(i) make a reasonable number of copies of Your Data (including electronic copies) for Our records and job purposes, and to comply with Our professional and statutory record keeping obligations; and
(ii) retain all Your Data until payment is made of all outstanding fees payable to Us by You.
13 Accounts
13.1 Your Account
(a) When You sign up for Your Account, You are required to give Us true, accurate, current and complete information about You in all required fields of Our registration form.
(b) If Your information changes during the Subscription Term from the information provided to Us when signing up for Your Account, You have the responsibility and obligation to update Your Account to reflect these changes.
(c) If Your Account information is not complete, current, or accurate, You will be in breach of the terms of this Agreement and We will have the right (at Our sole discretion) to suspend or terminate Your Account.
14 Fees and payment terms
14.1 Subscription Plan and fees
(a) We calculate and invoice the fees payable by You in advance monthly in accordance with Your chosen Subscription Plan as specified in the Subscription Order or with any changes made to Your Subscription Plan.
(b) You acknowledge and agree that:
(i) once You select and purchase a Subscription Plan You are liable to pay all fees specified in Your chosen Subscription Plan irrespectively of whether You used any of the Cloudoffis Files specified in Your Subscription Plan during the Subscription Term;
(ii) all fees quoted are exclusive of GST and payable in Australian Dollars;
(iii) the fees are based on the Services purchased as specified in Your Subscription Plan and not Your actual use of any Cloudoffis Files;
(iv) Your payment obligations cannot be cancelled and fees paid are non-refundable;
(v) You cannot downgrade Your Subscription Plan by electing to decrease the number of Cloudoffis Files specified in Your Subscription Plan chosen as at the Effective Date;
(vi) You can upgrade Your Subscription Plan chosen as at the Effective Date by choosing to increase the Cloudoffis Files available to You and, if You do so, You will be liable for additional fees as specified and quoted to You at the time of the upgrade; and
(vii) any unused Cloudoffis Files during the Subscription Term cannot be rolled over to a renewed term unless otherwise stated in the subscription order.
(viii) For SMSF Sorted, if you reactive a client within 18 months from the date it was deactivated, a full fee will be charged from the date it was deactivated as if it was an active client.
(c) We do not represent or warrant that a particular Subscription Plan will be offered indefinitely and reserve the right to change the fees for, or the features and options of, a particular Subscription Plan at anytime.
14.2 Payment
(a) When purchasing a Subscription Plan, You:
(i) must provide accurate and complete information for payment of the fees by direct debit from Your bank account or from a credit card that You are authorized to use; and
(ii) must promptly notify Us of any changes to Your invoicing, bank account and/or credit card details.
(b) We do not accept personal cheques, cash, or other monetary consideration in exchange for Our Services.
(c) BY REGISTERING ONLINE OR BY EXECUTING A SUBSCRIPTION ORDER FOR A SUBSCRIPTION PLAN, YOU AUTHORIZE US OR OUR AGENT TO CHARGE YOUR BANK ACCOUNT OR CREDIT CARD ON A RECURRING MONTHLY BASIS (‘AUTHORIZATION’) FOR:
(i) THE APPLICABLE SUBSCRIPTION PLAN FEES;
(ii) ANY APPLICABLE GST; AND
(iii) ANY OTHER CHARGES INCURRED IN CONNECTION WITH YOUR USE OF OUR SERVICES INCLUDING:
(A) ANY CREDIT CARD TRANSACTION CHARGES; AND
(B) ANY DISHONORED OR FAILED PAYMENT FEES AND REASONABLE LEGAL COSTS INCURRED BY US OR OUR AGENT TO COLLECT ANY AMOUNTS THAT ARE NOT PAID BY YOU WHEN DUE; AND
(C) ANY PAYMENTS DUE TO A THIRD PARTY IN CONNECTION WITH ANY THIRD-PARTY OWNED FACILITIES PROVIDED TO YOU, OR TO US ON YOUR BEHALF.
(d) The Authorization continues through the applicable Subscription Term and any renewed term until the Termination of this Agreement.
(e) You agree:
(i) to allow Us to charge Your bank account or credit card on a monthly basis in advance for providing the Services for the charges specified in the Subscription Order; and
(ii) to allow Us to charge Your bank account or credit card, as needed, for additional costs or other charges that You may accumulate in connection with Your use of Our Services; and
(iii) to allow Us to charge Your bank account or credit card, as needed, for any payments due to a third party in connection with any Third-Party Owned Facilities provided to You, or to Us on Your behalf, when You use Our Services.
(f) If You incur additional fees in connection with the Services, We will charge You in the payment period directly following the month where the additional fees were accumulated.
14.3 Billing policy
(a) Payments made by You in connection with the Services are not refundable.
(b) We will not give pro-rated refunds for unused or incomplete Cloudoffis Files if You cancel Your account in the middle of a billing cycle.
(c) We do not grant upgrade/downgrade refunds, nor do We grant refunds for unused or incomplete Cloudoffis Files during the Subscription Term or any renewed term.
14.4 Upgrades
(a) You agree to pay for all upgrades to Your Subscription Plan.
(b) If You upgrade Your Subscription Plan, We will automatically charge Your bank account or credit card with the new fees on Your next billing cycle.
(c) If You upgrade Your Subscription Plan in the middle of a billing cycle, a pro-rated amount for the upgrade will be assessed and payable immediately.
14.5 Additional fees and taxes
(a) We are not responsible for any additional bank fees, interest charges, finance charges, overdraft charges, currency exchange fees or other fees payable by You as a result of Us invoicing You.
(b) You agree that You are responsible for paying all taxes, including GST, imposed by federal, state or local governmental entities on the transactions contemplated by this Agreement.
(c) When We have the legal obligation to pay or collect taxes for which You are responsible, including GST, the appropriate amount will be invoiced and paid by You unless You provide Us with a valid tax exemption certificate authorized by the appropriate tax authority.
14.6 Automatic renewal/increased fees
(a) For Auditomation, if You continue to use the Services beyond the expiry of the Subscription Term, Your Subscription Plan will renew automatically unless You notify Us otherwise in writing at least thirty (30) prior to the expiry of the Subscription Term.
(b) For Auditomation, during the renewed term of Your Subscription Plan, We have the right to change the fees charged to You.
(c) For SMSF Sorted and Tax Sorted, the Subscription Term will automatically renew every month. You can cancel your subscription anytime by giving 30 days’ notice.
(d) For SMSF Sorted and Tax Sorted, we have the right to change the fees charged to You. We will give you 30 days’ notice prior to making any changes.
14.7 Non-payment and suspension
(a) All payments by You must be made in advance of receiving Our Services.
(b) If We do not receive payment of fees, in full, for Our Services within three (3) Business Days of processing Your bank account or credit card, We retain the right, without notice, to suspend or terminate all Services under this Agreement.
14.8 Late payment fees and collection costs
(a) You agree:
(i) that if any fees are not paid when due they will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable Law, whichever is less, determined and compounded daily from the date due until the date paid;
(ii) that amounts due to Us may not be withheld or offset by You for any reason against amounts due or asserted to be due from Us; and
(iii) to reimburse Us for any costs or expenses (including, but not limited to, reasonable legal costs) incurred by Us to collect any amount that is not paid by You when due.
(b) We may accept payment in any amount without prejudice to Our right to recover the balance of the amount due or to pursue any other right or remedy.
15 Term and termination
15.1 Term of Agreement
(a) For Auditomation, this Agreement commences on the Effective Date and continues until the expiration or termination of Your Subscription Plan.
(b) For Auditomation, the Subscription Term will automatically renew for an additional term of one (1) year unless You give Us written notice of non-renewal at least thirty (30) days before the expiry of the Subscription Term.
(c) For SMSF Sorted and Tax Sorted, the Subscription Term will automatically renew every month. You can cancel your subscription anytime by giving 30 days’ notice.
15.2 Termination or cancellation by Us
(a) You agree that We have the right, at Our sole discretion, to terminate Your Subscription Plan or Your use of the Services and may withhold, remove and/or delete Your Data without notice if:
(i) You breach the terms of this Agreement; or
(ii) You become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
(b) A breach of this Agreement includes, but is not limited to, Your non-payment of fees and Your failure to abide by the terms and conditions of this Agreement.
(c) If We terminate Your Subscription Plan:
(i) Your right to use the Services will stop immediately;
(ii) You will be responsible for backing up Your Data within thirty (30) days from the date of termination;
(iii) You will not have any access to Your Data except for the purpose of backing them up within thirty (30) days from the date of termination; and
(iv) You will remain liable for any unpaid fees covering the remainder of the Subscription Term.
(d) You acknowledge and agree that if We terminate Your Subscription Plan:
(i) You will not be entitled to any pro-rated refunds for unused or unfinished Cloudoffis Files; and
(ii) You will not be relieved of Your obligation to pay any fees payable to Us for the period covering the remainder of the Subscription Term.
15.3 Termination by You
(a) If You terminate Your Subscription Plan:
(i) You will be responsible for backing up Your Data within thirty (30) days from the date of termination;
(ii) You will not have any access to Your Data except for the purpose of backing them up within thirty (30) days from the date of termination; and
- b) You acknowledge and agree that if You terminate Your Subscription Plan:
(iii) You will not be entitled to any pro-rated refunds for unused or unfinished Cloudoffis Files; and
(iv) You will not be relieved of Your obligation to pay any fees payable to Us for the period covering the remainder of the Subscription Term.
15.4 Expiry of Subscription Term
(a) If Your Subscription Plan expires without being renewed:
(i) Your right to use the Services will stop immediately;
(ii) You will be responsible for backing up Your Data within thirty (30) days from the expiry date of the Subscription Plan;
(iii) You will not have any access to Your Data except for the purpose of backing them up within thirty (30) days from the expiry date of the Subscription Plan; and
(iv) You will remain liable for any unpaid fees in respect of the expired Subscription Term.
(b) You acknowledge and agree that if Your Subscription Plan expires without being renewed:
(i) You will not be entitled to any pro-rated refunds for unused or unfinished Cloudoffis Audits or Professional Tasks; and
(ii) You will not be relieved of Your obligation to pay any fees payable to Us in respect of the expired Subscription Term.
16 Representations and warranties
16.1 Our representations and warranties
(a) We represent and warrant that in providing the Services to You under this Agreement:
(i) We have the authority and are legally able to form a binding contract with You;
(ii) We will conform to generally accepted industry standards and practices;
(iii) We are equipped, qualified and sufficiently experienced to provide You with the Services; and
(iv) We are sufficiently staffed and equipped to fulfill Our obligations under this Agreement.
(b) We do not represent or warrant that We are:
(i) an Approved SMSF Auditor; or
(ii) a Registered SMSF Auditor.
16.2 Your representations and warranties
(a) By registering for and using Our Services:
(i) You agree that when You use the Services, it is Your responsibility to:
- ensure that You provide full and accurate information in relation to each Cloudoffis File to be performed through the Services; and
- review each Cloudoffis File generated through the Services to ensure that each Cloudoffis File You generate through the Services is accurate and complies with the SIS Act and any other Laws.
(ii) You represent and warrant that if You do not provide full and accurate information in relation to each Cloudoffis File to be performed through the Services You may compromise the quality and accuracy of the generated Cloudoffis File as the quality and accuracy of a Cloudoffis File generated through Our Services depends on the quality and accuracy of the information You input to the Services.
(iii) You represent and warrant that You are financially able to pay the fees required under this Agreement and any additional fees that may be assessed at a later date;
(iv) You represent and warrant that You are legally able to form a binding contract with Us, and You are not prevented from receiving Our Services under any Laws;
(v) By registering for Cloudoffis SMSF Auditomation, You represent and warrant that You are an Approved SMSF Auditor;
(vi) By registering for Cloudoffis SMSF Auditomation, You represent and warrant that You are a Registered SMSF Auditor;
(vii) By registering for Cloudoffis SMSF Auditomation, You represent and warrant that Your ASIC Registered SMSF Auditor registration number is valid and subsisting;
(viii) You agree that You have no authority to bind Us or Our Related Bodies Corporate to any contract or create any liability against Us or Our Related Bodies Corporate in any way or for any purpose.
(ix) You agree to provide current and accurate personal information, contact and bank account or credit card details, and other information as part of the registration process for access to Our Services;
(x) You agree to be solely responsible for all content on Your Account including Your username and password which are personal to You and should not be used by any other individual or entity.
(xi) You agree to be solely responsible for maintaining the confidentiality of Your Account information, and You are responsible for all activities that occur under Your Account.
(xii) You agree that You are solely responsible for backing up Your Data and that We are not liable for any loss or damage that arises from Your failure to back up Your Data.
(xiii) You agree to immediately notify Us of any unauthorized use of Your Account or any other breach of security and that We are not liable for any loss or damage arising from Your failure to provide Us with such information or to keep Your Account secure.
(xiv) You agree that Your Data is Your sole responsibility and that We do not claim ownership to, or responsibility for, Your Data.
(xv) You agree to use Our Services only for purposes that are legal proper and according to the terms of this Agreement and any applicable policies or guidelines.
(xvi) You agree that You will not engage in any activity that interferes with or disrupts Our Services or servers or networks connected to Our Services.
(xvii) You agree that We have the right, but not the responsibility, of monitoring or reviewing any activity in relation to Our Services.
(xviii) You agree that You are responsible for the conduct of Your Users of Your Account.
(xix) You agree that You are responsible for Your Data that is created, transmitted, stored, or displayed by, from, or within Your Account while using Our Services.
(xx) You agree that You are responsible for any consequences, legal or otherwise, that arise from Your use of the Services.
17 Indemnities
By accessing, registering for, using, or downloading Our Services You agree to indemnify Us, defend Us and hold Us harmless including Our Related Bodies Corporate, Associated Entities, officers, employees, agents, successors, assigns, suppliers, or licensors from any liability, loss, claim and expense (including legal costs) related to:
(a) any claim due to or arising out of Your breach of this Agreement, including but not limited to a claim arising out of a breach of Your representations or warranties made under this Agreement;
(b) Your use of and/or access (or any use or access by a third party on Your Account) to Our Website or Services;
(c) Your violation of any third party right, including without limitation, any Intellectual Property Rights, copyright, property, moral or privacy right; or
(d) the unavailability of Our Website or Services.
18 Limitation of liability
18.1 Disclaimer of consequential damages
(a) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, WE AND OUR RELATED BODIES CORPORATE, ASSOCIATED ENTITIES, OFFICERS, EMPLOYEES, AGENTS, DIRECTORS, SUCCESSORS, ASSIGNS, SUPPLIERS OR LICENSORS WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, COVER, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, GOODWILL, WORK STOPPAGE, LOST PROFITS OR LOSS OF BUSINESS, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES, AND WHETHER SUCH CLAIMS ARE MADE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL REMEDY.
(b) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE OR OUR RELATED BODIES CORPORATE, ASSOCIATED ENTITIES, OFFICERS, EMPLOYEES, AGENTS, DIRECTORS, SUCCESSORS, ASSIGNS, SUPPLIERS OR LICENSORS BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY OF THE FOLLOWING:
(i) YOUR USE OF THE SITE, DOCUMENTATION OR OUR SERVICES;
(ii) ERRORS, MISTAKES, OR INACCURACIES OF THE SERVICES AND/OR CONTENT;
(iii) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE AND/OR SERVICES;
(iv) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN;
(v) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVERS AND/OR THIRD-PARTY PROVIDERS;
(vi) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE AND/OR SERVICES BY ANY THIRD PARTY;
(vii) ANY LOSS OF YOUR DATA FROM OUR WEBSITE AND/OR SERVICES;
(viii) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA OUR WEBSITE AND/OR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL REMEDY, AND WHETHER OR NOT WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND/OR
(ix) THE DISCLOSURE OF INFORMATION PURSUANT TO THIS AGREEMENT OR OUR PRIVACY POLICY.
18.2 Cap on damages
(a) OUR TOTAL LIABILITY TO YOU FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR TO YOUR USE OF OUR WEBSITE AND/OR SERVICES (INCLUDING WITHOUT LIMITATION WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE REMEDY, WILL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO US FOR OUR SERVICES GIVING RISE TO THE CLAIM UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE FIRST EVENT GIVING RISE TO THE LIABILITY, OR $100, WHICHEVER IS GREATER.
(b) THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THE LIMIT SPECIFIED IN THE ABOVE CLAUSE.
(c) YOU AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAWS, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH OUR SERVICES IS TO CANCEL YOUR ACCOUNT AND SUBSCRIPTION PLAN WITH US AND STOP USING OUR SERVICES.
(d) YOU AGREE THAT THE PROVISIONS OF THIS AGREEMENT LIMITING OUR LIABILITY WILL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT.
19 Internet delays
(a) OUR SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS THAT ARE ASSOCIATED WITH THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.
(b) YOU AGREE THAT WE WILL NOT BE HELD RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS AS SPECIFIED IN THE ABOVE CLAUSE.
20 Warranty disclaimer
(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, OUR SERVICES ARE PROVIDED ‘AS IS’ WITHOUT WARRANTIES, CONDITIONS, REPRESENTATIONS OR GUARANTIES OF ANY KIND, EITHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
(b) WE DO NOT WARRANT THAT OUR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SERVICES WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA.
(c) YOU AGREE THAT:
(i) YOUR USE OF OUR SERVICES IS AT YOUR SOLE RISK; AND
(ii) NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR OUR AUTHORIZED REPRESENTATIVES WILL CREATE ANY WARRANTY.
21 Operation of Law
If any Laws do not allow the limitations of liability specified in this Agreement then such limitations of liability shall apply to the maximum extent permitted by Law and Our liability shall be limited or excluded as permitted under mandatory applicable Law.
22 Resolution of disputes
(a) Should a dispute arise between You and Us, We encourage You to contact Us directly to seek a resolution to the dispute.
(b) If there is a dispute about this Agreement that cannot be resolved between You and Us, You agree that both You and Us will seek the assistance of an arbitrator appointed by an appropriate authority in order to resolve the dispute.
(c) The costs of resolving any dispute by arbitration will be borne by You and Us equally.
23 No agency
You acknowledge and agree that no joint venture, partnership, employment or agency relationship is intended or created between You and Us under the terms of this Agreement.
24 Notices
You agree that We may provide You with notices, including those regarding changes to the terms of this Agreement or Privacy Policy or Support Policy, by email, regular mail, or postings on Our Website or Services.
25 Miscellaneous
25.1 Entire agreement
(a) This Agreement constitutes the entire agreement between You and Us and governs Your use of Our Services, superseding any prior agreements between You and Us for the use of Our Services.
(b) You agree that You may be subject to additional terms and conditions, rules, regulations, and applicable Laws that may apply when You use Our Website and Services.
25.2 Choice of law and jurisdiction
(a) The terms of this Agreement and the relationship between You and Us are governed by the laws of the State of New South Wales.
(b) You and We agree to submit to the personal and exclusive jurisdiction of the courts located within the State of New South Wales.
25.3 Location and data transfers
(a) Our Services and the servers that make Our Services available may not be located in the country where You live and are governed by Australian Laws.
(b) By using Our Services, You agree to the transfer, collection, processing, storage and use of Your Data by Us in any location.
25.4 Assignment
(a) We may assign or transfer (whether by merger, reorganization, consolidation, intellectual property, or otherwise) this Agreement or any obligation incurred under this Agreement.
(b) We may assign this Agreement without Your consent to a Related Body Corporate or Associated Entity that currently exists or that may be created in the future.
25.5 Waiver and severability
(a) If any provision of this Agreement is illegal or unenforceable, that provision is severed from this Agreement and the other provisions remain in force.
(b) If We do not enforce any right or provision in this Agreement, it does not create a waiver of those rights of provisions unless they are acknowledged or agreed by Us in writing.