Apricot Actuaries (A.S.A.P.) platform: Terms and conditions of use Version 1.0
These Terms and Conditions govern the access and use of services offered by ASAP Advice Pty Ltd (ABN 44 613 006 769) of 725 Sandy Bay Road, Sandy Bay, Tasmania, TAS 7005 (“A.S.A.P.”) via its secure online portal (“A.S.A.P. Platform”). They should be read in conjunction with A.S.A.P.’s Financial Services Guide which sets out important information about A.S.A.P.’s financial advice service.
By registering and accessing the Apricot Platform, you and any of your nominated representatives are deemed to accept and be bound by the Terms and Conditions. You should read these Terms and Conditions along with any other terms, notices or disclaimers contained elsewhere on the Website carefully before registering and using the Apricot Platform.
1. DEFINITIONS AND INTERPRETATION
1.1 In these Terms and Conditions:
(a) Administrator means the administrator of the Apricot Platform appointed by an Accountant User under clause 4.2.
(b) Business Day means a day that is not a Saturday, Sunday or declared public holiday in Tasmania.
(c) SoA means the Statements of Advice supplied by A.S.A.P. via the A.S.A.P. Platform
(d) Fees has the meaning given in clause 7.1.
(e) Interest Rate means an interest rate of the Reserve Bank of Australia cash rate plus 2 percentage points per annum.
(f) Accountant User means, as the context permits or requires:
a. an individual or entity registered to use the A.S.A.P. Platform pursuant to these Terms & Conditions;
b. a Representative as defined in clause (l) below;
c. a User appointed under these Terms and Conditions; and
d. an Administrator appointed under these Terms and Conditions.
(i) Personal Information means all information about a person which is “personal information” as defined in the Privacy Legislation.
(j) Privacy Legislation means the Privacy Act 1998 and any other legislation, principles, industry codes and policies relating to the handling of Personal Information.
(k) Records has the meaning given in clause 4.1(a).
(l) Representative means any person appointed as a representative of an Accountant User, including a director, officer, employee, agent, contractor or professional adviser.
(m) Service means the goods and services offered by A.S.A.P. via the A.S.A.P. Platform from time to time.
(n) User means a separate user profile created by an Accountant User in respect of a Representative. (o) User ID means a unique identification code and password for a User to enable the person to access the A.S.A.P. Platform.
(p) Website means the A.S.A.P. website located at www.asap-advice.com.au
1.2 In these Terms and Conditions, unless the contrary intention appears:
(a) a reference to a statute or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements or any of them;
(b) singular includes the plural and vice versan And a reference to any one gender includes each other gender (as the case may require);
(c) headings are for convenience only and do not affect interpretation;
(d) the word “person” includes a firm, corporation, body corporate, unincorporated association or any governmental authority, and includes a reference to the person’s executors, administrators, legal personal representatives, successors and permitted assigns;
(e) an agreement on the part of, or in favour of, two or more persons binds or is for the benefit of them or any one or more of them jointly and severally;
(f) “includes” means includes without limitation; and
(g) where a word or phrase is given a defined meaning in these Terms and Conditions, any other part of speech or grammatical form in respect of such word or phrase has a corresponding meaning.
2. APPLICATION OF TERMS AND CONDITIONS
2.1 These Terms and Conditions govern the access and use of the A.S.A.P. Platform via the Website, or on any desktop, mobile or other device.
2.2 By using the A.S.A.P. Platform, the Accountant User is deemed to accept and agree to be bound by these Terms and Conditions.
3. FUNCTION OF THE A.S.A.P. PLATFORM
3.1 To become an Accountant User, a person must complete the Accountant User registration details in the manner described on the Website or be otherwise registered by an A.S.A.P. representative.
3.3 The Accountant User may create separate user profiles for Representatives to enable access to the Accountant User’s account using a User ID.
3.4 A.S.A.P. reserves the right to introduce or vary any fees or payments associated with the A.S.A.P. Platform at any time.
4. USING THE A.S.A.P. PLATFORM
4.1 Each Accountant User is permitted to access and use the A.S.A.P. Platform which displays the Accountant User’s transactions and data (“Records”) via the A.S.A.P. Platform.
4.2 Each Accountant User that is an entity may appoint a User with special administrative access (Administrator). The Administrator is permitted to:
(a) administer all User IDs, add or revoke additional Users or Administrators;
(b) manage Accountant User registration details, including contact information, email addresses, postal addresses, the Accountant User’s corporate name, and any other information required by A.S.A.P. from time to time; and
(c) manage paid and unpaid invoices in respect of the Accountant User, including registered credit card information for the purposes of payments.
5.1 The Accountant User is solely responsible for the use, supervision, management and control of the Records accessed via the Accountant User’s account. The Accountant User must ensure that the Records are protected at all times from any form of unauthorised access, use or disclosure.
5.2 The Accountant User must take all reasonable steps to avoid unauthorised access to, or use of, the A.S.A.P. Platform, including by implementing appropriate internal policies and procedures regarding security.
5.3 The Accountant User is responsible for the confidentiality of their respective passwords (including but not limited to changing passwords from time to time and not releasing the information to third parties). The Accountant User must notify A.S.A.P. immediately if the Accountant User becomes aware of, or has any reason to believe, that there is any unauthorized use of the Accountant User’s account or any other breach of security.
5.4 A.S.A.P. reserves the right to suspend access or change access to the Accountant User’s account upon notification by or on behalf of the Accountant User that any password has been lost, stolen or otherwise compromised.
5.5 Each Accountant User acknowledges and accepts that any person accessing the A.S.A.P. Platform leaves an auditable trail, including:
(a) the date, time and duration of access; and
(b) the Records viewed,
and A.S.A.P. reserves the right to conduct audits in relation to access to the A.S.A.P. Platform from time to time.
6.1 In consideration for payment of the Fees, A.S.A.P. will prepare and supply the relevant Service to the Accountant User within the time specified on the Website or the A.S.A.P. Platform (or a reasonable time if no time is specified), in reliance on the information submitted by the Accountant User and their Client during the SoA application process.
6.2 Once an application is made for a Service, the Accountant User cannot cancel the application or assign its interests under these Terms and Conditions without A.S.A.P.’s express consent.
6.3 For the avoidance of doubt, A.S.A.P. may in its absolute discretion vary the Services offered from time to time.
7. TERMS OF PAYMENT
7.1 Unless otherwise agreed by A.S.A.P., the amounts payable for the relevant Service (Fees) are specified on the Website or the A.S.A.P. Platform and are payable:
(a) immediately upon placement of any order, by credit card; or
(b) within fourteen (14) days of receipt of a tax invoice, generated upon delivery of the Service by A.S.A.P..
7.2 The Accountant User acknowledges and accepts that any credit card information provided by the Accountant User in accordance with clause 7.1(a) will be collected by Stripe Payments Australia Pty Ltd (“Stripe”) via the Stripe payment facility and is subject to any terms and conditions specified by them, including, but not limited to, the terms and conditions available at the website: https://stripe.com/au/legal
7.3 If the Accountant User or their Client does not pay the Fees within the specified timeframe, then without prejudice to any other right or remedy available to A.S.A.P., A.S.A.P. may:
(a) withhold any Services ordered until such default is corrected;
(b) reject any further orders from the Accountant User until such default is corrected;
(c) charge the Accountant User interest on the unpaid amount at the Interest Rate, compounded daily, until payment is received in full. The Accountant User must pay the interest (if any) to A.S.A.P. within fourteen (14) days of receipt of a written demand from A.S.A.P.; and/or
(d) terminate or suspend access to the A.S.A.P. Platform in whole or in part in accordance with clause 9.1.
7.4 A.S.A.P. may vary the Fees from time to time in its absolute discretion, such variations to take effect immediately upon the revised Fee being specified on the Website or A.S.A.P. Platform.
8.1 The Accountant User acknowledges that:
(a) A.S.A.P. is not responsible for any problems, failures or technical malfunctions of any telephone lines or networks, online computer systems, servers or providers, computer equipment, software, or any other object or material, related to the Accountant User’s use of the A.S.A.P. Platform;
(b) no data transmission over the internet can be guaranteed as totally secure and any information the Accountant User submits via the A.S.A.P. Platform is transmitted at the Accountant User’s own risk;
(c) the Services are provided on an “as is” basis with all faults and without warranty of any kind to the extent permitted by law;
(d) the Accountant User is solely responsible for any and all activities and transactions performed under the Accountant User’s account by or on behalf of the Accountant User; and
(e) A.S.A.P. is in no way responsible or liable to the Accountant User in respect of any loss or damage caused to the Accountant User for decisions made on the basis of the Accountant User’s Records.
8.2 The Accountant User must ensure that the information supplied by the Accountant User (including any credit card details) are at all times up to date, accurate and not misleading. A.S.A.P. relies on the accuracy and completeness of information submitted by or on behalf of the Accountant User in the delivery of the Services.
9.1 Without limitation to any other right or remedy it may have, A.S.A.P. reserves the right to terminate or suspend access to the A.S.A.P. Platform in whole or in part, by an Accountant User, at any time without notice and without giving any reason.
9.2 The Accountant User may terminate their access to the A.S.A.P. Platform by contacting A.S.A.P. in writing, by telephone on 03 6240 1575 or by email on [email protected]
9.3 Where access to the A.S.A.P. Platform is terminated or suspended, the Accountant User must pay to A.S.A.P. any outstanding fees incurred by, or on behalf of, the Accountant User as at the date of termination or suspension (as applicable).
9.4 Termination of an Accountant User’s access to the A.S.A.P. Platform will not affect the accrued rights and remedies of either party.
10. RELEASE AND INDEMNITY
10.1 A.S.A.P. is in no way responsible for inaccurate or incomplete information supplied by an Accountant User. A.S.A.P. does not accept any responsibility for any use or misuse by an Accountant User of Records or content submitted by or on behalf of an Accountant User.
10.2 The Accountant User unconditionally releases A.S.A.P. from any liability, claims, demands or damages of any kind arising out of or in connection with any use of or access to the A.S.A.P. Platform by the Accountant User or any action taken or reliance upon any information provided by or on behalf of the Accountant User.
10.3 The Accountant User indemnifies and holds harmless A.S.A.P., its directors, officers, employees, agents (those indemnified) in respect of any loss, damage, costs or expenses suffered or incurred by those indemnified (including reasonable legal costs for investigating or defending any claim) related to or arising from:
(a) the Accountant User’s breach of these Terms and Conditions, the Conditions of Use or any applicable law;
(b) any defect in a Service as a result of inaccurate, incomplete, incorrect or otherwise defective information submitted by or on behalf of the Accountant User;
(c) any unauthorised acts, fraud, wilful default, dishonesty or negligence of the Accountant User; or
(d) any access to or use or misuse of the Records or the A.S.A.P. Platform by the Accountant User.
11. LIMITATION OF LIABILITY
11.1 To the fullest extent permitted by law, A.S.A.P. disclaims:
(a) all liability (including any indirect, special, incidental or consequential damage or loss) suffered or incurred by any person, whether directly or indirectly by reason of any use or misuse of, or reliance upon, the A.S.A.P. Platform or any Service, or any of the information on the A.S.A.P. Platform or a Service being inaccurate, incomplete, incorrect or misleading or deceptive, regardless of whether A.S.A.P. was aware or should have been aware of the possibility of such loss or damage; and
(b) any express or implied term, condition, guarantee, statutory or other warranty relating to the A.S.A.P. Platform or a Service, including but not limited to warranties and guarantees of acceptability, compliance with description, correspondence with sample, merchantability or fitness for purpose.
12.1 The Accountant User must comply at all times with all Privacy Legislation in respect of Personal Information collected, used, disclosed or submitted via the A.S.A.P. Platform.
12.2 The Accountant User consents to A.S.A.P. using any information provided or submitted by or on behalf of the Accountant User via the A.S.A.P. Platform, including any Personal Information, for the purpose of operating its business and for the purpose of offering goods and services to the Accountant User.
12.3 The Accountant User also acknowledges and agrees that:
(a) A.S.A.P. may use any Personal Information submitted via the A.S.A.P. Platform for statistical analysis and internal research purposes;
(b) if the Accountant User provides A.S.A.P. with Personal Information about third parties who are individuals:
(i) the Accountant User must ensure that the third parties are given information about the identity of A.S.A.P. and how A.S.A.P. handles Personal Information, including that they can contact A.S.A.P. to get access to their Personal Information; and
(ii) the Accountant User warrants that the third party has consented to the disclosure of its Personal Information to A.S.A.P., and to receiving communications regarding A.S.A.P.’s Services.
12.4 The Accountant User should also refer to the A.S.A.P. Financial Services Guide for further information about how we collect, use, maintain and disclose Personal Information.
13. DISPUTE RESOLUTION
13.1 If any dispute or difference arises in connection with these Terms and Conditions, then the parties will use their best endeavours to resolve the dispute or difference in accordance with this clause before initiating any court proceedings. This may include referring the dispute to senior management of each party.
13.2 If the parties cannot resolve a dispute within ten (15) Business Days of one party notifying the other of the existence of the dispute, the parties agree to mediate the dispute as follows:
(a) by agreeing the appointment of a mediator within ten (15) Business Days or if the parties cannot agree on the identity of a mediator, the mediator is to be appointed by the President of the Law Society of Tasmania or the President’s nominee within ten (10) Business Days thereafter;
(b) the mediation is to be held within ten (15) Business Days of the appointment of the mediator, unless otherwise agreed; and
(c) the parties will pay equal shares of the mediator’s fees.
13.3 If the mediation does not proceed within the agreed timetable or is not successful in resolving the dispute, the parties shall be entitled to refer the dispute to an appropriate Court or Tribunal in Tasmania.
13.4 Nothing in this clause 13 prevents a party from seeking urgent interlocutory relief.
14.1 In this clause 14:
(a) GST Law has the meaning in A New Tax System (Goods & Services Tax) Act 1999 and Regulations and any other similar or related Act or Regulation; and
(b) taxable supply, tax invoice, recipient, supplier and supply have the same meaning as defined in the GST Law.
14.2 Unless otherwise provided for in these Terms and Conditions or stated on the Website, any amount payable pursuant to these Terms and Conditions is expressed exclusive of GST.
14.3 If a supply made pursuant to these Terms and Conditions (or otherwise through the Website or the A.S.A.P. Platform) is a taxable supply, the recipient shall pay to the supplier, an additional amount equal to any GST payable on that supply in addition to and at the same time as any other amount that may be payable by the recipient to the supplier for that supply pursuant to these Terms and Conditions, or otherwise on demand. The supplier will provide to the recipient a valid tax invoice in the form prescribed by the GST Law no later than ten (10) Business Days of such payment.
15.1 Each party must do everything necessary or reasonably required by another party to give full effect to the purposes, and transactions contemplated by, these Terms and Conditions.
15.2 These Terms and Conditions may be amended by A.S.A.P. at any time, such amendments to take effect ten (10) Business Days after posting of the amendments on the Website.
15.3 Any notice required under these Terms and Conditions shall be served on the Accountant User in writing to the email contact details nominated by the Accountant User on registration.
15.4 The relationship between the parties is and will remain that of independent contractors, and nothing in these Terms and Conditions constitutes the parties as partners or joint venturers or constitutes any party as the agent of another party or gives rise to any other form of fiduciary relationship between the parties. Accountant Users must not present themselves as being able to provide financial product advice by using the A.S.A.P. Platform.
15.5 Any waiver of any provision of these Terms and Conditions is ineffective unless it is in writing and signed by the party waiving its rights. The failure of any party to enforce at any time any of the provisions of these Terms and Conditions must not be interpreted as a waiver of such provision.
15.6 If any provision of these Terms and Conditions is prohibited, invalid or unenforceable in any jurisdiction, that provision will, as to that jurisdiction, be ineffective to the extent of the prohibition, invalidity or unenforceability without invalidating the remaining provisions of these Terms and Conditions or affecting the validity or enforceability of that provision in any other jurisdiction.