1.1 By accessing the Service, the Subscriber agrees to be bound by these terms and conditions.
1.2 Etax permits the Subscriber to access the Service during the Term in the volumes acceptable to Etax.
1.3 The Subscriber must:
(a) only use the Data or any other material accessed through the Service for the Subscriber’s personal use and not use the Service on behalf of, or to provide services to, a third party; and
(b) keep the Subscriber’s password to the Service secure, and ensure that no person other than the Subscriber logs into the Service using the Subscriber’s password.
1.4 The Subscriber acknowledges nothing in this agreement is intended to give the Subscriber any Intellectual Property Rights in material accessed through the Service or any other Intellectual Property Rights of Etax.
1.5 The Subscriber acknowledges and agrees that:
(a) the Data and Service may not be error free, and Etax makes no representation and gives no warranty that the Service will contain any particular data, function in any particular way or be available at any particular time; and
(b) the Service may not be available from time to time.
1.6 The Subscriber authorises Etax to monitor the Subscriber’s use of the Service and to use information relating to the Subscriber’s use of the Service to market products or services to the Subscriber.
1.7 The Subscriber must ensure that all information entered by the Subscriber into the Service is complete and accurate at all times during the Term.
1.8 The Subscriber acknowledges that Etax is relying on the completeness and accuracy of the Subscriber Material, and if the Subscriber does not provide complete and accurate Subscriber Material, Etax may be unable to provide the Service.
1.9 The Subscriber must retain a copy of all data relating to the Subscriber stored through the Service, so that all such data can be recovered by the Subscriber if that data can no longer be accessed through the Service.
2.1 The Subscriber grants Etax a non-exclusive, perpetual, global, transferable licence (including the right to sublicense) to use and modify the Subscriber Material, including without limitation to provide the Subscriber Material to third parties through the Service.2.2 The Subscriber represents and warrants, and it is a condition of this agreement that:
(a) the Subscriber has all necessary consents (including without limitation consents required by the Privacy Act 1988 (Cth)) to permit Etax to use the Subscriber Material as contemplated by clause 2.1;
(b) exercise of the rights contemplated by clause 2.1 will not infringe the Intellectual Property Rights of any third party; and
(c) the Subscriber Material will be complete and accurate.
3 Term and termination
3.1 This agreement commences on the date the Subscriber first accesses the Service and continues for the Initial Period and each Rollover Period until terminated under this clause 3. 3.2 Each party may terminate this agreement on expiration of a Rollover Period by written notice to other party by at least 30 days prior to the expiration of the Initial Period or that Rollover Period.
3.3 If a party commits a material breach of this agreement and fails to remedy that breach within 30 days of receiving written notice from the other party requiring it to do so, then the other party may terminate this agreement by written notice to the party in breach, in which case this agreement will terminate immediately.
3.4 The Subscriber expressly waives any rights it may have to terminate this agreement except as contemplated by clause 3.2.
3.5 Etax may suspend the Subscriber’s access to the Service or terminate this agreement without notice from time to time, including without limitation if Etax suspects that the Subscriber is in breach of this agreement.
3.6 The Subscriber acknowledges that Etax may terminate this agreement or suspend access to the Service under this clause 3 without considering the impact of such action on the Subscriber.
3.7 On termination of this agreement:
(a) the Subscriber must not access the Service; and
(b) accrued rights or remedies of a party are not affected.
3.8 Clauses 2, 4 and 5 survive termination of this agreement.
4 Liability and indemnity
4.1 Other than as contemplated by clause 1.1 and subject to clauses 4.5 and 4.7 Etax is not liable for any loss or damage, however caused (including, without limitation, by the negligence of Etax), suffered or incurred by the Subscriber in connection with this agreement.4.2 Any liability of Etax for any loss or damage, however caused (including, without limitation, by the negligence of Etax), in connection with particular Services is limited to endeavouring to resupply those Services.
4.3 The limitation set out in clauses 4.1 and 1.1 is an aggregate limit for all claims, whenever made.
4.4 For clarity, and without limiting clauses 4.1 and 1.1 the parties agree that clauses 4.1 and 1.1 are to apply in connection with a breach of this agreement, anticipated breach of this agreement or other conduct regardless of the seriousness or nature of that breach, anticipated breach or other conduct.
4.5 Subject to clause 4.7, Etax is not liable for any Consequential Loss however caused (including, without limitation, by the negligence of Etax) suffered or incurred by the Subscriber in connection with this agreement.
4.6 Except as contemplated by clause 4.7, nothing in this agreement is intended to limit any rights of the Subscriber under the Competition and Consumer Act 2010 (Cth).
4.7 If the Competition and Consumer Act 2010 (Cth) or any other legislation provides that there is a guarantee in relation to any good or service supplied by Etax in connection with this agreement and Etax’s liability for failing to comply with that guarantee cannot be excluded but may be limited, then clauses 1.5, 4.1, 1.1, 4.5, 4.8 and 9.9 do not apply to that liability and instead Etax’s liability for such failure is limited to (at Etax’s election):
(a) in the case of a supply of goods, Etax replacing the goods or supplying equivalent goods, repairing the goods, paying the cost of replacing the goods or of acquiring equivalent goods, or paying the cost of having the goods repaired; or
(b) in the case of a supply of services, Etax supplying the services again or paying the cost of having the services supplied again.
4.8 The Subscriber is liable for, and indemnifies Etax from and against, all loss or damage (including, without limitation, legal costs) however caused suffered or incurred by Etax in connection with any act or omission of the Subscriber, including, without limitation, any illegal or negligent act or omission of the Subscriber;
4.9 Each indemnity contained in this agreement is a continuing obligation notwithstanding:
(a) any settlement of account; or
(b) the occurrence of any other thing,
and it is not necessary for Etax to incur expense or make payment before enforcing or making a claim under an indemnity.
5 Confidential Information
5.1 Each party must keep the Confidential Information of the other party confidential, and not use that Confidential Information other than for the purpose of providing or receiving the Service.5.2 Clause 5.1 does not apply to any Confidential Information that is:
(a) in the public domain other than due to a breach of this agreement; or
(b) required to be disclosed by law.
6 Authorised use and reliance
The Subscriber must:
(a) use the Service in accordance with any acceptable use or other policies displayed on the Website or otherwise notified by Etax to the Subscriber from time to time;
(b) not access the Service for the purpose of creating a website similar to the Website;
(c) not defame or harass any person using the Service or use foul language;
(d) only use the Service in accordance with all applicable laws;
(e) not attempt to access any part of the Website that is restricted by privacy settings or otherwise;
(f) not rely on the Data, and must verify the Data by reference to an independent source before making a decision on the basis of the Data;
(g) comply with all applicable laws and ensure that its employees, agents and independent contractors comply with all applicable laws when using the Service; and
(h) without limiting clause 6(g), not use the Service for an anticompetitive purpose in contravention of the Competition and Consumer Act 2010 (Cth).
6.2 The Subscriber acknowledges that Etax does not endorse and is not responsible for the content of any advertisements displayed on the Website.
7 Costs, stamp duty and GST
7.1 Each party must meet or pay its own legal costs and disbursements in respect of the preparation, negotiation and execution of this agreement.7.2 The Subscriber must pay all stamp duty (including penalties and interest) assessed or payable in connection with this agreement.
7.3 The Subscriber is responsible for and must pay all taxes, duties and government charges imposed or levied in Australia or overseas in connection with the performance of this agreement.
7.4 If a Supply made under or in connection with this agreement is a Taxable Supply, then at or before the time the consideration for the Supply is payable:
(a) the Recipient must pay the Supplier an amount equal to the GST for the Supply (in addition to the consideration otherwise payable under this agreement for that Supply); and
(b) the Supplier must give the Recipient a Tax Invoice for the Supply.
7.5 For clarity, the GST payable under clause 7.4 is correspondingly increased or decreased by any subsequent adjustment to the amount of GST for the Supply for which the Supplier is liable, however caused.
7.6 Where a Supply made under or in connection with this agreement is a Progressive or Periodic Supply, clause 7.4 applies to each component of the Progressive or Periodic Supply as if it were a separate Supply.
7.7 Capitalised terms used in this clause 7 that are not defined in this agreement have the meaning given in the New Tax System (Goods and Services Tax) Act 1999 (Cth).
8 Force Majeure
Etax will not be:
8.1 in breach of this agreement as a result of; or
8.2 liable for,
any failure or delay in the performance of its obligations under this agreement to the extent that such failure or delay is wholly or partially caused, directly or indirectly, by a Force Majeure Event or any act or omission of the Subscriber.
9.1 This agreement is subject to the laws of Queensland and the Commonwealth of Australia.
9.2 The parties irrevocably submit to the non-exclusive jurisdiction of the courts of Queensland.
9.3 A notice under this agreement may be given by email.
9.4 In the interpretation of this document, no rule of construction applies to the disadvantage of the party preparing the document on the basis that it put forward this document or any part of it.
9.5 The Subscriber must not assign, in whole or in part, or novate the Subscriber’s rights and obligations under this agreement without the prior written consent of Etax.
9.6 Etax may amend this agreement from time to time by making the amended terms available on the Website, in which case the Subscriber will be deemed to have accepted the amended terms by accessing the Service after those terms have been published.
9.7 Etax may assign its interest under this agreement.
9.8 Each provision of this agreement will be read and construed as a separate and severable provision or part and if any provision is void or otherwise unenforceable for any reason then that provision will be severed and the remainder will be read and construed as if the severable provision had never existed.
9.9 This agreement represents the parties’ entire agreement, and supersedes all prior representations, communications, agreements, statements and understandings, whether oral or in writing, relating to its subject matter.
9.10 The Subscriber warrants that it has the capacity and all necessary authority to enter into this agreement.
9.11 Where this agreement contemplates that Etax may consent to, elect, determine, approve, nominate, decide or consider any matter or thing, Etax may provide such consent or make such election, determination, approval, nomination, decision or consideration in its absolute discretion and conditionally or unconditionally without being required to give reasons or act reasonably unless this agreement expressly requires otherwise.
Confidential Information of a party means the terms of this agreement and any information:
(a) relating to the business and affairs of that party;
(b) relating to the customers, clients, employees, sub contractors or other persons doing business with that party;
(c) which is by its nature confidential;
(d) which is designated as confidential by that party; or
(e) which the other party knows, or ought to know, is confidential,
and includes all trade secrets, knowhow, financial information and other commercially valuable information of that party.
Consequential Loss means indirect loss, loss of revenues, loss of reputation, loss of data, loss of profits, consequential loss, loss of actual or anticipated savings, loss of bargain, lost opportunities, including, without limitation, opportunities to enter into arrangements with third parties and loss or damage in connection with claims against the Subscriber by third parties.
Data means information obtained by the Subscriber through the Service, including without limitation the Subscriber Material.
Etax means Etax Accountants Pty Ltd ACN 083 958 150.
Force Majeure Event means any occurrence or omission outside a party’s control and:
(a) a physical natural disaster including fire, flood, lightning or earthquake;
(b) war or other state of armed hostilities (whether war is declared or not), insurrection, riot, civil commotion, act of public enemies, national emergency (whether in fact or in law) or declaration of martial law;
(c) internet delay or unavailability;
(d) epidemic or quarantine restriction;
(e) failure of a third party service provider (including without limitation a third party hosting the Website);
(f) ionising radiation or contamination by radioactivity from any nuclear waste or from combustion of nuclear fuel;
(g) confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any government agency;
(h) law taking effect after the date of this agreement; and
(i) strike, lock-out, stoppage, labour dispute or shortage including industrial disputes that are specific to a party or the party’s subcontractors.
Initial Period means 12 months or such other period agreed between the parties in writing.
Intellectual Property Rights means all industrial and intellectual property rights, both in Australia and throughout the world, including, without limitation, any copyright, trade or service marks, patents, registered and unregistered trade marks, registered designs, trade secrets, know-how, moral rights, rights in relation to semiconductors and circuit layouts, formulations, components, concentrations, protocols, trade, business or company name, indication or source or appellation of origin, or other proprietary right, or right to registration of such rights;
Rollover Period means the period of 12 calendar months commencing on the expiration of the Initial Period and each subsequent period of 12 calendar months.
Service means access to the services on the Website made available by Etax to the Subscriber from time to time excluding the lodgement of any tax return.
Subscriber means you.
Subscriber Material means:
(a) all material uploaded into the Service by the Subscriber or otherwise provided by the Subscriber or any third party (including clients of the Subscriber) to Etax in connection with the Subscriber’s use of the Service; or
(b) provided by the ATO to Etax or the Subscriber in relation to the Subscriber,
including without limitation documents, reports, technical information, and data stored by any means.
Supplier means the entity making the Supply.
Supply has the meaning given in the New Tax System (Goods and Services Tax) Act 1999 (Cth).
Term means the term contemplated by clause 3.1.
Website means the websites made available by Etax to You from time to time which includes as of the date of this agreement www.etax.com.au, www.etaxlocal.com.au and associated websites.