Westpac QuickSuper SMSF Gateway Service Agreement Effective as at 12 May 2014 1 of 8
1. Acknowledgement and acceptance of terms 1.1 Before registering to use the Service, please read through these Terms. From 1 July 2014 access to and use of the Service will be provided to you on these Terms, subject to you paying your Subscription Fee. By accepting these Terms during the online registration process, you agree to be bound by these Terms. 1.2 We reserve the right to amend these Terms (including the Fees payable for the Service) at any time. We will notify any such changes on the Website. We will also notify you when you access the Service for the first time following a change. Your continued use of the Service following the posting and notification of changes will mean you accept and agree to the changes. 1.3 References in these Terms to we, us and our are references to Westpac Banking Corporation ABN 33 007 457 141 whose registered office is at 275 Kent Street, Sydney, New South Wales 2000. 2 Service 2.1 The Service will provide you with an electronic service address that enables you from 1 July 2014 to receive Superannuation Transaction Messages initiated via the Superannuation Transaction Network from a Gateway Operator that is a provider of electronic address services and that has subscribed to the Superannuation Data and Gateway Services Standards for Gateway Operators transacting with the Superannuation Transaction Network dated 26 July 2013 as amended from time to time ( the Standards ). 2.2 In connection with your use of the Service, we may also send you service announcements, administrative messages or other marketing information. 2.3 To receive Messages via the Service you agree that you must inform all relevant employers about your Subscription to the Service and any other information they require to ensure they are in a position to send you Messages via the Service. You acknowledge that delivery of the Service is conditional on you satisfying this sub-clause 2.3. 2.4 We may from time to time introduce other services that form part of, or complement, the Service. Such additional services may be made available to you with or without charge. We will notify you, and obtain your consent, before providing any service that attracts an additional charge. You will be entitled to opt in to receive any new service functionality at your discretion, and to opt out of some of these communications. 2.5 Subject to you complying with your payment obligations under these Terms at all times, we will provide the Services to you on these Terms during the Subscription Term unless your Subscription has expired or been terminated pursuant to clause 16. 2.6 Prior to expiry of your Subscription Term we will send you a reminder notice prompting you to subscribe to the Service for a subsequent term. 3 Registration 3.1 You need to register to be able to use the Services. To be entitled to register online, you must be a trustee of a self-managed super fund who is required by the Superannuation Data and Payment Standards 2012 issued by the Australian Taxation Office from time to time to receive contributions from employers from 1 July 2014. 3.2 Your nominated user who is granted access to the Portal must be an individual with an Australian residential address, valid email address and be authorised to act on your behalf. 3.3 On successful receipt of payment of the Fees, we will provide you with access to your nominated user to use the Services from 1 July 2014. 3.4 You agree to provide true, accurate, current and complete information about yourself as part of your registration and to promptly update your registration information to keep it true, accurate, current and complete. If you do not keep your information current your use of the Service may be affected and you may not be able to use the Service to full advantage. 3.5 If you provide any information that is untrue, inaccurate, not current or incomplete, or if we have reasonable grounds to suspect that such information may be untrue, inaccurate, not current or incomplete, we may in our sole discretion suspend or terminate your Service and refuse any and all current or future use of the Service (or any other service we may offer from time to time) on written notice to you. 4 Password 4.1 In advance of 1 July 2014 you will be provided with a logon name and password to enable you to use the Services. You must not share your username and password with any other person, and you must ensure that it remains secure. Your username and password is non-transferable, and your username cannot be changed. 4.2 Whilst we may implement multi-factor authentication, it does not guarantee against unauthorised use of the Service. You are solely responsible for any use of Service using your username and password, whether or not such use has been authorised by you. You agree to immediately notify us of any unauthorised use or suspected unauthorised or fraudulent use of your Service or any other breach of security. 5 Restrictions 5.1 These Terms relate solely to the use of the Services for your own internal business requirements. Without limitation, you are not permitted to provide the Services on an application service provider basis, sub-licence or resell the Services or to use the Services to provide any outsourcing. 5.2 The Service will only display the last eighteen (18) months of Messages received via the Portal. We recommend you regularly print or save your Messages for future reference. 2 of 8
6 Use of the Services 6.1 We will make reasonable efforts to make the Services available except for: (a) planned downtime for maintenance and upgrades, or (b) any unavailability caused by circumstances beyond our control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving our employees), or Internet service provider failures or delays. 6.2 We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Data. We shall not disclose your Data except as compelled by law or as expressly permitted in writing by you. We will not access or modify your Data except as permitted by these Terms or at your request. 6.3 You will be responsible for maintaining the accuracy and integrity of your Data at all times and for making backup copies of Data and for archiving Data. Except as otherwise provided in these Terms, we may delete your Data from the Portal after eighteen (18) months. 6.4 We will be entitled to access the Portal and your Data at any time in order to: (a) perform any maintenance on the Portal which we consider necessary; (b) perform any work on the Portal which is required under any applicable laws; (c) determine whether you are complying with your obligations under these Terms; and (d) to remove any material, Information or Data we consider has entered onto the Portal in breach of the terms of these Terms. 7 Service limitations You acknowledge and agree that: (a) the internet is accessible to anyone with the appropriate technical capability and that it is impossible to totally protect the Portal (including your Data and any of your business or other Information contained in your Data) from the actions of third parties, including other users of the Portal; (b) you are responsible for ensuring that your own business Information and information technology systems are protected against the actions of third parties; (c) you are responsible for ensuring that your connection to the Portal is secure; (d) your purchase of the Subscription has not been made on the basis of any representations made by us regarding future functionality or features of the Services; (e) we do not warrant that your use of the Portal will be free from any interruption or delay, nor do we warrant that the Portal will be free from any errors, defects or faults. We may temporarily suspend availability of the Portal where upgrades, repair or maintenance are (in our absolute discretion) required. We will use reasonable efforts to provide prior notice. Our sole obligation in relation to any unavailability, errors or defects affecting the Portal will be to use commercially reasonable efforts to repair or correct the Portal (as the case may be); (f) all rights in the Software are licensed by us and you must not at any time make any statement or do anything which is inconsistent with our license; (g) you are responsible for ensuring Messages sent to your Portal are read and acted upon as required. If you are unable to access the Portal on a regular basis or for an extended period of time, it is your responsibility to make alternate arrangements; and (h) we have no control over, and do not assume any responsibility or liability in respect of, the content of Messages sent via the Service. If you disagree with the content of any message you are responsible for raising your objections with the Provider. 8 Third party content and links to other websites 8.1 You acknowledge that Messages and content provided or generated by Providers, and certain other content listed on the Website, is not ours ( Third Party Content ). The Third Party Content and the layout of the Third Party Content is the sole responsibility of the third party entity that makes it available to you via the Service. While we may review Third Party Content to determine whether it is unlawful or violates our policies, we are not obliged to review, and we do not accept any liability whatsoever in connection with, the Third Party Content and we make no representations to you about its appropriateness, accuracy, currency and completeness. 8.2 All Third Party Content including referral buttons and embedded hyperlinks does not amount to a recommendation or endorsement by us or our respective directors, employees, agents or representatives. 8.3 The Service and Third Party Content may also contain hyperlinks and other pointers to Internet websites operated by third parties. These linked websites are not under our control, and we are not responsible for the contents of any linked website or any hyperlink contained in a link to a website. We provide these hyperlinks to you for your convenience only, and the inclusion of any link does not imply any endorsement of the linked website or its contents by us. Your use of any link to another website is entirely at your own risk. 3 of 8
9 Indemnity You agree to indemnify us and our directors, employees, agents and representatives from any claim or demand, including reasonable legal costs, made by any third parties against us due to or arising out of your wilful, negligent or fraudulent acts or omissions and any breach of these Terms by you, except to the extent that the relevant loss or damage is due to or arises out of our acts or omissions, including our breach of these Terms or other matters within our control. 10 Mutual Warranties Each party warrants that: (a) it has the full power and authority to enter into these Terms and perform their obligations hereunder; and (b) it will not transmit to the other any Malicious Code. 11 Your Warranties 11.1 You warrant that: (a) you will not change, modify, delete, interfere with or otherwise deal with any third party s Data; (b) you will ensure that all people who use the Portal with your permission or consent comply with these Terms; (c) all material uploaded, displayed or transmitted by you in connection with your use of the Services will not be false, offensive, defamatory, threatening, obscene, unlawful or infringe any third party s rights (including without limitation their Intellectual Property rights); (d) you will not use the Services in a way which disrupts, interferes with or restricts the use of the Portal by any third party or otherwise contravenes any applicable laws (including without limitation, laws relating to privacy) or otherwise than as contemplated by these Terms; (e) you will not obtain or attempt to obtain a copy of the Software or upload any codes or scripts onto the Portal or transmit via the Services any Information which contains Malicious Code; (f) you are solely responsible for maintaining the confidentiality and security of your password(s) and you will be responsible for any loss or damages arising (directly or indirectly) as a result of your failure to do so; (h) you will not do any other thing in connection with the System which is not expressly authorised by these Terms; (i) (j) you will not email, transmit or otherwise make available any content received via the Portal that you do not have a right to make available under law or under contractual or fiduciary relationships; you will not engage in the practices of screen scraping, database scraping, data mining or any other activity with the purpose of obtaining lists of users or other information from the Portal or use web bots or other similar data gathering or extraction methods, or permit or enable another party to do so; (k) you will not interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service, including using any device or software; or (l) intentionally or unintentionally violate any applicable local, state, national or international law. 11.2 You undertake and agree, if you are a trust, to: (a) comply with the terms of the trust and the duties as trustee of the trust; (b) use the Service in accordance with this Agreement exclusively for: (i) proper trust purposes; and (ii) not do anything which may result in the loss of your right to indemnity from the trust assets or the termination of the trust. 11.3 You represent and warrant that if you are a trust: (a) you are validly existing under the laws of the place of formation and have taken all necessary action to authorise entry into and performance of this Agreement; (b) you are properly appointed as trustee of the trust; (c) you have a full right to indemnity from the trust assets in respect of the Agreement; (d) none of the trust assets have been resettled or set aside; and (e) the trust has not terminated nor has any event for the vesting of the assets occurred. (g) you will not do anything which is inconsistent with our rights in the System under these Terms, including without limitation removing any trade marks, copyright or other proprietary notices contained in or appearing on any material you download from the Portal or downloading the Software from the Portal; 4 of 8
12 Exclusion of warranties To the maximum extent permitted by law Westpac disclaims all warranties with regard to the information and applications contained on the website and your use of the website, including all implied warranties of merchantability and fitness. In no event shall Westpac, its contractors, agents, or employees be liable for any damages whatsoever (including special, indirect or consequential) arising out of or in connection with the use or performance of the website whether in contract, at common law or in equity, or on any other basis. These Terms do not exclude any liability which any law requires Westpac to accept. If Westpac becomes liable for any breach of any condition of these Terms or warranty, Westpac s liability shall be limited at its option, to any one or more of the following: (a) in the case of goods, to anyone it determines of the following: replacement of the goods or the supply of equivalent goods; repair of the goods; payment of the cost of replacing the goods or acquiring goods; or payment of the cost of having the goods repaired; and (b) in the case of services, to either supplying the services again or payment of the cost of having the services supplied again. 13 Privacy You understand that by agreeing to these Terms, which include our Privacy Policy you consent and agree to the collection and use of certain information (including personal information) about you and your use of the Service in accordance with our Privacy Policy. Our Privacy Policy sets out how we handle and protect your information. 14 Fees and Payment Subscription to the Service is subject to your successful payment of the Fees. The Fees for the Service can be found on the Website If you fail to pay the Fees by the due date Westpac may cancel your subscription to the Service. 15 GST 15.1 Unless the contrary intention appears, words or expressions used in this clause 15 which are defined in the A New Tax System (Goods and Services Tax) Act 1999 have that same meaning. 15.2 All states prices and amounts are payable under these Terms as consideration have been calculated without including an amount for GST (unless GST-inclusive amounts have been specified). In addition to any GST-exclusive amounts payable the customer must pay an amount equivalent to the GST applicable to the taxable supply (the GST Amount ). The GST Amount is to be calculated by multiplying the GST-exclusive amount by the GST rate applicable to the supply at the time that supply is made. The GST Amount shall be paid to Westpac at the same time and in the same manner as the relevant consideration is otherwise required to be paid or provided. 15.3 Westpac, as the supplier of a taxable supply under these Terms, will issue a compliant tax invoice to you. 15.4 If a supply made under these Terms is treated as not subject to GST but is or becomes a taxable supply Westpac may charge and recover from the customer in addition to any other consideration, an amount equivalent to the GST payable in respect of that taxable supply. 15.5 If in relation to a supply made under these Terms an adjustment event occurs that gives rise to an adjustment, the price of that supply (including any GST Amount) will alter accordingly and where necessary a payment will be made to reflect the price adjustment. 15.6 If any party is required to pay, reimburse or contribute to the other party an amount paid or payable in respect of an acquisition from a third party, the GST-exclusive amount for payment, reimbursement or contribution to the other party shall be the acquisition price paid by the acquiring party, less any input tax credit it is entitled to claim. 15.7 Sub-clauses 15.5 and 15.6 of these Terms shall survive termination of these Terms. 5 of 8
16 Suspension and Termination 16.1 You may terminate your access to the Service by submitting a written request to quicksuper@westpac.com.au. Termination of your access to the Service will be effective within a reasonable period of your request. No refund of any Fees will be made to you. 16.2 We have the right (in our absolute discretion) at any time to notify you that your use of the Services is for a purpose which we consider does not comply with these Terms. In the event that we give you such notification, we will (in our absolute discretion) delete the offending Data or temporarily suspend providing you Services and give you 14 days to remedy the nature of our concerns. Your failure to do so within 14 days of such notification will entitle us to cancel the offending Subscriptions without any further notification to you. 16.3 We may terminate, limit your access to or suspend your Services and access to the Portal at any time. Where ever possible, we will provide you with reasonable written notice. The grounds for such termination, limitation of access or suspension will include, but not be limited to: (a) discontinuance or material modification to the Services (or any part thereof) or a strategic decision of Westpac; (d) have a receiver appointed (except for the purposes of reorganisation or amalgamation); (e) pass a resolution for or become subject to a winding up order; or (f) a request by law enforcement or other government agencies require the termination. 16.5 Upon receiving notice of termination of these Terms under clause 16.2-4, you must: (a) immediately cease using the Services; and (b) make alternate arrangements with Providers for the subsequent delivery of messages. Except as provided for under 15.1, all Fees paid to us under these Terms are not refundable. Termination will not relieve you of the obligation to pay any Fees due to us prior to termination. Termination of these Terms under this clause will not limit us from pursuing any other remedies available to us. 16.6 We will make available to you for download a file of your Data. We shall have no obligation to maintain or provide any of your Data to you after a reasonable period of time. We will, as far as permitted by law and to the extent practicable, delete all of your Data in our possession or under our control. (b) Westpac suspects that someone other than your nominated user is accessing the Portal in your name; (c) Westpac has reasonable grounds to suspect that you have fraudulently processed transactions, or have knowingly allowed fraudulent transactions to be processed using the Service; (d) it is necessary for Westpac to carry out urgent repairs; (e) Westpac is required to do so by an order, instruction or request of any government agency or emergency services; (f) Westpac reasonably believes that your connection to the Service will or may cause technical incapacity to the Service and that such incapacity would or may continue unless your access or use is suspended or terminated; or (g) there is a Planned Outage or unplanned outage including, but not limited to, a force majeure event. 16.4 We will be entitled to terminate these Terms with immediate effect where: (a) the Subscription Term has expired and you have failed to pay Fees for a subsequent Subscription Term; (b) you materially breach any of your obligations under these Terms and fail to remedy such breach within 14 days of receiving written notice of the breach; (c) become insolvent, makes any assignment in or proposal under bankruptcy law, makes any other assignment for the benefit of creditors; 6 of 8
17 Survival The following clauses will survive termination or expiration of these Terms: clauses 1.2, 9, 13, 18, 20-25. 18 Intellectual Property Rights 18.1 All Intellectual Property rights in the Services and the technology used to provide the Services (including but not limited to the Software, Portal, Website and any materials We provide to you under these Terms) are licensed or owned by us and will not be transferred to you under these Terms. 18.2 You shall not copy, reproduce, adapt or otherwise infringe our or our service providers Intellectual Property rights in, any part of the Portal, Services or the technology used to provide the Services except as expressly permitted by these Terms. 18.3 Subject to applicable copyright laws, you will exclusively own the Intellectual Property rights in your Data that is created by you as part of your use of the Services and messages that are sent to you from Providers (together Your Content ). You grant us and our service providers a non- exclusive, irrevocable, worldwide and royalty free licence to host and reproduce Your Content for the purposes of providing the Service. 19 Notices 19.1 Any notice to be given under these Terms by us will be sent by e-mail to the email address you provide for registration (or otherwise as notified to us in writing). 19.2 You must direct any notices to us at quicksuper@westpac.com.au 19.3 Notices will be deemed to have been received by the addressee upon the sender receiving confirmation from the addressee or the addressee s computer system of successful transmission. 20 Assignment and Subcontracting We may assign or subcontract any of our rights or obligations in performing the Services under these Terms at any time without your prior written consent. 21 Waiver Failure by either party to exercise or enforce any term of these Terms will not be deemed a waiver of enforcement of that term or any other term. Other than as stated in these Terms, the remedies provided are in addition to any other remedies available to a party at equity or law. 22 Entire agreement These Terms constitutes the entire agreement of the parties with respect to its subject matter and supersedes all prior agreements, communications, representations and understandings related to its subject matter. 23 Governing law These Terms is governed by the laws of the State of New South Wales. The parties irrevocably submit to the non- exclusive jurisdiction of the Courts of the State of New South Wales, Australia. 24 Enforceability Any provision of these Terms that is prohibited or unenforceable in a jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of these Terms nor affect the validity or enforcement of that provision in any other jurisdiction. 25 Defined Terms and Interpretation 25.1 Definitions Business Hours means the hours between 8.00am and 6.00pm Monday to Friday Australian Eastern Standard Time (AEST) on all days except national Australian holidays which (at the date of this Agreement) are New Years Day, Australia Day, ANZAC Day, Good Friday, Easter Monday, Christmas Day and Boxing Day. Data means Information contained in Messages, Information you enter into the System and the results of processing Information as part of your use of the Services. Gateway Operator has the same meaning as under the Standards. Information includes, but is not limited to all Data, records, reports, documents, manuals provided to you in connection with the Services. Intellectual Property includes: (a) all rights of ownership created under or by copyright, design registration, business name registration, patent registration and trade mark registration; (b) the exclusive entitlement to claim ownership of rights created under or by copyright, design registration, business name registration, patent registration and trade mark registration; (c) the exclusive entitlement to register designs, business names, patents and trademarks, and 7 of 8
(d) all other rights in intangible property including rights in present and future intangible property and rights in information granted by law or equity from time to time under the law of any jurisdiction throughout the world. Malicious Code means code which contains a virus, worm, Trojan horse or any other harmful or malicious component or program. Message or Superannuation Transaction Message means a message relating to a Superannuation Transaction. Parties means Westpac and you. Planned Outage means a period of time, other than an unscheduled interruption, that Westpac may interrupt the supply of the Service for routine maintenance or upgrading or other similar processes relevant to, networks. So far as possible, Planned Outages will: (a) occur outside Business Hours; (b) be for the shortest possible time on each occasion; (c) be after reasonable notice has been given by notification on the Website. Portal means browser based user interface available from the Website and all related information technology infrastructure used in providing the Service to you. Terms means the terms of this SMSF Gateway Service agreement. you means the applicant of the Service who satisfies the registration requirements set out in clause 3.1. We, us, our or Westpac means Westpac Banking Corporation ABN 33 007 457 141. Website means quicksuper.westpac.com.au/smsf 25.2 Interpretation The following rules apply to these Terms unless the context requires otherwise: (a) The singular includes the plural and vice versa. (b) Headings are for ease of reference only and do not affect interpretation of the Agreement. (c) A reference to a party includes its employees, agents, representatives and sub-contractors and any servant or agent of its sub-contractors. (d) A reference to legislation or to a provision of legislation includes a modification or re- enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it. (e) Use of the words includes or including means without limitation and the use of these or similar words shall not limit the meaning of the general words. Privacy Policy means the Westpac privacy policy available at http://www.westpac.com.au/privacy/privacy-policy/ Providers means an employer or fund who sends Messages to self-managed super funds via the Service. Service means the provision of services by Westpac to you as set out in clause 2.1. Software means any software that is used to provide any part of the Services. SMSF means self-managed superannuation fund. Subscription means your right to use the Services under these Terms. Subscription Term means twelve (12) months (or such other period agreed to by us) from the date of successful completion of registration. Superannuation Transaction has the same meaning as under the Standards. Superannuation Transaction Network has the same meaning as under the Standards. System means the Website, Portal and Software.. 2014 Westpac Banking Corporation ABN 33 007 457 141. 8 of 8 WPBW1232 (04/14) 386579