Acceptance (by notice of acceptance, invoicing or by performance by FDC Accounting Services of the order contained in the FDC Accounting Services Q&A Service Order Form (the "Order Form")) will result in an agreement (the "Subscriber Agreement") between FDC Accounting Services and the customer submitting the Order Form (the "Customer") on the following basis. No other contractual terms whatever, whether communicated to FDC Accounting Services before, at the time of, or after submitting an Order Form to FDC Accounting Services will form part of the contract between FDC Accounting Services and the Customer, unless agreed by FDC Accounting Services in writing. If for any reason other contractual terms do form part of the contract then, to the extent of any inconsistency, by submitting the Order Form, the Customer agrees that the terms of the Subscriber Agreement will prevail.
1.1 On receipt by FDC Accounting Services of payment of the Subscription Fee in accordance with clause 7, FDC Accounting Services will supply to the individual identified as the Customer's designated user on the Order Form ("Designated User") the FDC Accounting Services Q & A Service as more particularly described on the FDC Accounting Services Website (the "Service") for the term of this Agreement on the terms and conditions specified below.
1.2 FDC Accounting Services reserves the right to alter the Service from time to time. Changes to the Service will be advised on the FDC Accounting Services Website (www.fdcaccounting.com.au).
1.3 On receipt by FDC Accounting Services of payment of the Subscription Fee in accordance with clause 7, FDC Accounting Services will forward to the Designated User instructions in relation to online access (via the FDC Accounting Services Website) to the Service.
1.4 Customer may use the Service only through the Designated User. Customer may not change the Designated User without the prior written consent of FDC Accounting Services (which will not be unreasonably withheld).
1.5 FDC Accounting Services reserves the right to refuse to answer any question which it believes was not submitted by the Designated User.
1.6 Customer will ensure that none of its employees, other than the Designated User, attempt to use the Service.
2.1 During the term of this Agreement, the Designated User may submit a Reasonable Number (as defined in Clause 4) of Appropriate Questions (as defined in clause 3) to FDC Accounting Services via the Service.
2.2 FDC Accounting Services reserves the right to decline to answer questions (including Appropriate Questions) at its absolute discretion. Any such decision by FDC Accounting Services is final and not open for review.
2.3 FDC Accounting Services reserves the right to ask the Designated User to resubmit to FDC Accounting Services, as separate questions, any question submitted by the Designated User which is determined by FDC Accounting Services (in its absolute discretion) to be comprised of a number of questions.
2.4 Subject to clause 8 below, FDC Accounting Services will endeavour to:
a. respond to selected Appropriate Questions (which may be by way of a request for further information) within 2 Business Days of the date of receipt of the question; and
b. where a final answer is to be provided, this will normally be provided within 2 Business Days of the date of receipt of the question
provided that if a question is not received by 3.00pm on a day when banks in New South Wales are open for business ("Business Day") it will be taken to be received on the next Business Day.
2.5 The time periods referred to in subclause 2.3 are estimates only and FDC Accounting Services will not be liable to the Customer or to any third party if these estimated time periods are not met.
2.6 Where FDC Accounting Services provides to Customer any answer to a question submitted by Customer, that answer will be a final response to Customer's question. FDC Accounting Services reserves the right to refuse to communicate further with Customer in relation to any answer forwarded by FDC Accounting Services to Customer.
3.1 FDC Accounting Services will only answer questions which specifically in relation to Family Day Care tax and business related matters.
3.2 FDC Accounting Services reserves the right to determine in its absolute discretion what constitutes an Appropriate Question.
3.3 FDC Accounting Services is likely to determine that a question is NOT an Appropriate Question if the question:
a. does not relate specifically to a family day care tax related matter;
b. requires legal advice or opinions on a specific fact situation;
c. concerns a situation where a regulator or statutory authority (such as the ATO, APRA, ASIC, SCT, WorkCover or an occupational health and safety organisation) may become involved ;
d. calls for a recommendation as to a particular course of action;
e. requires a knowledge of background facts or underlying structure and legal relationships; or
f. is not a single question.
3.4 All questions submitted through the Service must be submitted either by the question and answer telephone service at 1300 785 726 or using the question template on the FDC Accounting Services Website and must disclose all material facts. All information set out in each question must be accurate and complete. FDC Accounting Services reserves the right to request further information prior to submission of an answer, but is under no obligation to do so.
3.5 FDC Accounting Services reserves the right to edit and censor questions submitted to the Service.
4.1 FDC Accounting Services reserves the right to determine in its absolute discretion what constitutes a reasonable number of questions to be submitted by Customer to FDC Accounting Services.
4.2 FDC Accounting Services is likely to determine that Customer has submitted more than a Reasonable Number of questions if:
a. Customer submits an average of more than 8 questions in extended period; or
b. Customer submits a large number of questions in a short period of time.
4.3 In the event Customer submits more than a Reasonable Number of questions FDC Accounting Services will be entitled, at its option, to either:
a. require Customer to pay to FDC Accounting Services a High User Charge which will be equal to 50 percent cent of the Subscription Fee for the current Initial Term or Renewal Term (as the case may be); or
b. terminate this Agreement by written notice to Customer and refund to Customer a pro rata amount of the Subscription Fee for the current Initial Term or Renewal Term (as the case may be) having regard to the number of days remaining in that term.
FDC Accounting Services reserves the right to publish in print and electronic format, any questions and answers provided by either party in the course of the Service. Before publishing such material FDC Accounting Services will use its best endeavours to remove all identifying factors with the aim of preserving confidentiality.
6.1 The term of this Agreement (the "Term") will commence on the date of receipt by FDC Accounting Services of the Subscription Fee and continue for the Initial Term specified in the Order Form. After that it will continue for further periods of time equivalent to the Initial Term (each a "Renewal Term") unless terminated by FDC Accounting Services or Customer by written notice to the other at least 30 days prior to the expiration of the Initial Term or the current Renewal Term.
6.2 Despite the provisions of clause 6.1, FDC Accounting Services is entitled to terminate this Agreement by written notice, without prejudice to any other rights it may have against Customer, if Customer defaults in its performance of any obligation under this Agreement and, where the default is capable of being remedied, it continues unremedied for 7 days after written notice specifying the breach and requiring remedy is given by FDC Accounting Services to Customer.
6.3 Without limitation to clause 6.2, FDC Accounting Services is entitled to terminate this Agreement immediately upon written notice to Customer, if FDC Accounting Services reasonably forms the view that Customer has permitted any person other than a Designated User to have access to the Service.
7.1 The Subscription Fee for the Initial Term is specified in the price list in the Order Form and is payable on submission of the Order Form to FDC Accounting Services (subject to a refund if FDC Accounting Services does not accept the order).
7.2 The Subscription Fee for each Renewal Term will be notified to Customer by FDC Accounting Services prior to the commencement of each Renewal Term, and must be paid by Customer to FDC Accounting Services prior to the commencement of each Renewal Term.
7.3 No refunds will be provided where termination of service occurs except at the absolute discretion of FDC Accounting Services.
8.1 Customer acknowledges that, because of the nature of the internet and the third party dependencies, FDC Accounting Services does not warrant that the provision of the Services or any part of them will be continuous, uninterrupted or error free. From time to time, the FDC Accounting Services Website may not be available due to upgrades or maintenance.
8.2 In no event will FDC Accounting Services be liable to Customer or any other person for any remote, indirect, consequential, special or incidental damages, including without limitation, damages resulting from loss of data, loss of profit or business interruption. This limitation will apply even if FDC Accounting Services has been advised of the possibility of such damages.
8.3 Without limiting any other provisions of this Agreement, FDC Accounting Services will not be liable to Customer or any third party for damage directly or indirectly caused to computer files through use of the FDC Accounting Services Website.
8.4 All answers and other information provided by FDC Accounting Services to Customer pursuant to this Agreement are subject to the following disclaimer
a. The answers provided by Q & A are general guidance and can only be constituted as tax and accounting information. The answers do NOT constitute taxation, legal or any other professional advice.
b. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult an Accountant , Tax Consultant or other legally qualified professional advisor if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.
9.1 To the extent permitted by law, FDC Accounting Services specifically disclaims all warranties whether express, implied, statutory or otherwise relating in any way to this Agreement, including, without limitation, any warranty that the Services provided under this Agreement are fit for a particular purpose. Customer acknowledges that it has exercised and relied upon its own skill in determining whether the Services provided under this Agreement meet its particular requirements, and that it has not relied on any statement or representation made on behalf of FDC Accounting Services or by FDC Accounting Services.
9.2 Where the law implies any term in this Agreement, which cannot be by law excluded, then that term is included in this Agreement. FDC Accounting Services' liability arising under or in relation to this Agreement (whether in contract, tort or otherwise) and including under any term implied into this Agreement, will be limited, at FDC Accounting Services option, to one of supplying of those services again, or the reasonable cost of supplying those services again.
9.3 Without limiting the effect of any other provision of this Agreement, the parties agree that the total liability of FDC Accounting Services to Customer arising in any circumstances, and whether under this Agreement or otherwise, will be limited to the amount of the Subscription Fee paid under this Agreement.
ach part of the FDC Accounting Services Website and all communications from FDC Accounting Services as part of the Services ("FDC Accounting Services Content") are protected by copyright unless otherwise indicated. FDC Accounting Services reserves all rights. Customer agrees not to copy, reproduce, alter, adapt, modify, translate, create relative works, transmit, storing electronic or other media or otherwise deal with the FDC Accounting Services Content, including each part of the FDC Accounting Services Content, except where expressly permitted to do so by FDC Accounting Services.
Customer agrees not to interfere with the proper working of the FDC Accounting Services Website. Customer agrees not to do anything that imposes an unreasonable or disproportionately large load on the FDC Accounting Services Website infrastructure.
FDC Accounting Services’ privacy policy governs the way FDC Accounting Services may use Customer's information. FDC Accounting Services’ privacy policy may be viewed at the FDC Accounting Services Website at http://www.fdcaccounting.com.au/admin/privacy_policy.html.
13.1 In the event that answers and information provided by FDC Accounting Services are used by Customer in advising its clients, Customer uses this information at Customer's own risk. Customer agrees that it will not forward information and answers provided by FDC Accounting Services to any third party.
13.2 Customer indemnifies FDC Accounting Services against any loss, action, proceedings, costs, claims and damages which may be caused directly or indirectly by:
a. any breach by Customer of its obligations under this Agreement; or
b. reliance by any third party on any advice given by Customer, which was derived directly or indirectly from any information (including answers) obtained from FDC Accounting Services.
14.1 In this Agreement unless the context otherwise requires references to clauses are to clauses of this Agreement, the singular includes the plural and vice versa, where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning, and a reference to any statute, includes any amendment, consolidation, modification, enactment or reprint of it or any statute replacing it.
14.2 The FDC Accounting Services Website is operated and controlled in Australia. The validity, interpretation and performance of this Agreement will be governed by the law of the State of New South Wales and of the Commonwealth of Australia. The parties submit to the non-exclusive jurisdiction of the Courts of the State of New South Wales and of the Commonwealth of Australia in respect of any dispute that arises in connection with this Agreement.
14.3 A notice or other communication required or permitted to be given by a party to another must be in writing and delivered personally, sent by post, postage pre-paid, or sent by facsimile transmission to that party from time to time. A notice or other communication will be taken, for the purposes of this Agreement, to have been given if: personally delivered, upon delivery; mailed on the expiration of 3 business days after posting; or sent by facsimile transmission, on the day sent (or, if that is not a business day, on the next business day).
14.4 Customer may not assign, sub-license or otherwise transfer the benefit of this Agreement without the prior written consent of FDC Accounting Services.
14.5 If Customer is in breach of its obligations under any other contract entered into with FDC Accounting Services, then FDC Accounting Services is entitled to withhold performance of any of its obligations under this Agreement and any other contract which FDC Accounting Services has with Customer until the breach has been remedied. FDC Accounting Services will not be liable for any damages or loss (consequential or otherwise) sustained by Customer as a consequence of the exercise of FDC Accounting Services rights pursuant to this clause.
14.6 Customer agrees that the terms and conditions of this Agreement are for the benefit of FDC Accounting Services and each of its employees, agents and contractors and are enforceable at the suit of any such person.
14.7 No failure or omission by either party to perform or observe the terms and condition of this Agreement will, except in relation to obligations to make payments under it:
a. give rise to any right of action or claim against the defaulting party; or
b. be treated for any purpose as a breach of this Agreement;
if such failure or omission arises from any cause reasonably beyond the control of that party.
14.8 The parties agree that clauses 5, 8, 9, 10, 12, 13, and 14, will survive termination of this Agreement and continue in force.
