SaaS Agreement

TaxTank Software as a Service (SaaS) Agreement​

TaxTank Pty Ltd ABN. 43 633 617 615

When accepted by you, these Terms form a legally binding contract between the parties defined below. If you are entering into these Terms on behalf of an entity, such as your employer or the company you work for, you represent that you have the legal authority to bind that entity.

Parties

TaxTankPty Ltd ABN 43 633 617 615
(TaxTank, “us”, “we”)The Subscriber
(Customer, “End User”, “You”, “Your”, “Organisation”, “Accountant”, “Associate Accountant”)

Background

1.  TaxTank has developed cloud-based Software, which they use to provide a Service for Subscribers.
2.  The Subscriber wished to create an Account to use the Service.
3.  The Subscriber agrees to be bound by the Terms and Conditions within this Agreement, and any other documents under reference.

Operative provisions

1. Interpretation

1.1  Definitions

Unless the terms and conditions of the Agreement explicitly state otherwise, expressions used in the Agreement have the following meanings:

Account means the Subscriber’s account to use the Software.

Accountant means an End User who has registered with the Software for an ‘Accountant’ Account and who holds all the required qualifications to assert that they are a registered Accountant, Tax Agent or Financial Advisor in the jurisdiction in which they operate.

Account Sign-Up means the process through which a user creates an account on the Software by entering the information requested by us, and agrees to all terms, including (but not limited to) this Agreement, the Terms of Use and the Privacy Policy.

Agreement means the legally binding contract arising between the parties under this document.

Associated Accountants means, any End Users listed as part of an Organisation within the Software, who has an active Subscription,and to whom you guarantee understand and agree to the terms of this Agreement.

Commencement Date means the date the parties execute this Agreement.

Confidential Information means information that is by its nature confidential, including but not limited to information relating to the:

1. (a)  personnel, policies, practices, clientele or business strategies of the parties;
2. (b)  Intellectual Property Rights of either party;
3. (c)  the terms of the Agreement; But does not include information:
4. (d)  already rightfully known to the receiving party at the time of disclosure by the other party;or
5. (e)  in the public domain (including information made publicly available via a mechanism in the Software by you) other than as a result of disclosure by a party in breach of its obligations of confidentiality under the Agreement.

Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than the cost of repair), loss of opportunity or expectation loss, loss in relation to taxation or other punitive actions by a regulator, and any other form of consequential, special, indirect, punitive or exemplary loss or damages.

Cost means any costs, expenses, losses, damages, claims, demands, proceedings, and other liability.

End User means an individual who completes the Account Sign-Up process and accesses the Software in any capacity on any device.

End User Client means an End User who has engaged an Organisation or Accountant and consented to share their data with that Accountant or Accountant’s Organisation.

Fee means any amount payable by you to us in connection with this Agreement as stipulated by us from time to time and as initially set out in clause 6.1.

Free Tier means the list of features provided without cost and detailed within the Services from time to time.

Individual means an End User who has registered for a standard, ‘individual’ Account within the Software including Accountants, Associated Accountants, End Users or Associated End Users.

1. (a)  the appointment of an administrator, a receiver, or receiver and manager in respect of that party;
2. (b)  an application to a court or an order for the winding up of the party;or
3. (c)  the occurrence of anything analogous or having a substantially similar effect to any of the preceding events.

Intellectual Property Right means all present and future rights conferred by statute, common law or equity in or in relation to business names, circuit layouts, computer software, confidential information, copyright, designs, domain names, formulas, inventions, know how, patents, plant varieties, recipes, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.

Malicious Code means any code, program, script, software, file, thing or device which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including viruses, exploits, malware, logic bombs, denial of service attacks, flood or mail bombs, back-doors and other similar things or devices.

Organisation means an Accounting Firm subscription registered within the Software and to which administrators or Accountants can invite and manage other Accountants, Associated Accountants and End Users.

Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth).

Privacy Law means:

1. (a)  the Privacy Act 1988 (Cth); and
2. (b)  any code registered under the Privacy Act 1988 (Cth) or Australian Privacy Principles.

Privacy Policy means our privacy policy, which is available on our Website at (www.taxtank.com.au/privacy-policy) or as amended by us from time to time.

Representative includes an employee, agent, officer, director, auditor, advisor, researcher, partner, consultant, contractor, sub-contractor or related entity of that person or of a related body corporate of that person.

Service means any service we provide by way of the Software and as set on our website located at (www.taxtank.com.au).

Software means the cloud-based online service TaxTank,licensed to TankTank Pty Ltd ABN.43 633 617 615, hosted and detailed at the domain (www.taxtank.com.au) and incorporating a number of ‘Tanks’ including (but not limited to) any or all of the below:

1. a) Work Tank
2. b) Property Tank
3. c) Sole Tank
4. d) Spare Tank

Submitted Materials means any material including documents, information or data provided by you to us in connection with the Software and Service.

Subscription means:

1. a. a licence purchased by the End User for themselves;
2. b. a licence purchased for the End User by an Organisation (on behalf of the End User); or
3. c. a licence purchased by an Accountant and any Associated Accountants (if applicable); to access and use the Services.

Subscription Period means the period of time an End User may access the Services.

Term means the period of time as set out in clause 2.1.

Terms of Use means the agreement between us and the End User setting out the Terms of Use, which is available on our website (www.taxtank.com.au/terms-of-use).

Unforeseen Event means an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware, a ransomware attack or other malicious code.

Website Terms of Use means the terms of use found at (www.taxtank.com.au/terms-of-use) as amended from time to time.

1.2  Interpretation

In this Agreement:

1. (a)  headings are for convenience only and do not affect interpretation; and unless the context indicates a contrary intention:
2. (b)  an obligation or liability assumed by, or a right conferred on, two or more parties binds or benefits all of them jointly and each of them severally;
3. (c)  the expression “person” includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), a partnership and a trust;
4. (d)  a reference to any party includes that party’s executors, administrators, successors and permitted assigns, including any person taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
5. (e)  a reference to any statute or to any statutory provision includes any statutory modification or re-enactment of it, or any statutory provision substituted for it, and all ordinances, by-laws, regulations, rules and statutory instruments (however described) issued under it;
6. (f)  words importing the singular include the plural (and vice versa), and words indicating a gender include every other gender;
7. (g)  references to parties, clauses, schedules, exhibits or annexures are references to parties, clauses, schedules, exhibits and annexures to or of this Agreement, and a reference to this Agreement includes any schedule, exhibit or annexure to this Agreement;
8. (h)  where a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
9. (i)  references to payments to any party to this Agreement include payments to another person upon the direction of such party;
10. (j)  all payments to be made under this Agreement will be made through a third-party payment provider (such as Stripe) or by other immediately available funds;
11. (k)  the word “includes” in any form is not a word of limitation.

2. Agreement length

2.1  Term

This Agreement will commence on the Commencement Date and will continue:

1. (a)  for the Term; or
2. (b)  until the date of termination of this Agreement in accordance with clause 17.

2.2  Holdover

If this Agreement is not terminated at least 30 days prior to the expiry of the then-current Term, this Agreement will automatically renew for a period equal to the current Term.
3. Licence

3.1  Accountants or Associated Accountants

Where you are using or plan to use the Software or Services as an Organisation with Accountants or Associated Accountants, all obligations or terms thatapply to you under this agreement will also apply to anyAssociated Accountants. You agree and warrant to us that, as a material term of the Licence in this clause 3 and your use of the Software and Services, you will do all acts and things necessary to:

1. (a)  ensure Accountants or Associated Accountants are aware of their obligations under this Agreement;
2. (b)  ensure Accountants or Associated Accountants understand and agree to the terms of this Agreement;
3. (c)  have policies and procedures in place to actively enforce the terms of this agreement and prevent any breach;
4. (d)  inform us of any breach of these terms, particularly those related to security, privacy and data management; and
5. (e)  otherwise ensure, to the fullest extent possible, that you and any Accountants or Associated Accountants do not breach the terms of this Agreement, Terms of Use or Privacy Policy as amended from time to time.

3.2 Licence

We grant to you a limited, non-transferrable, non-exclusive and revocable licence to access, use and upload data to the Services, subject to the terms and conditions of this Agreement.

3.3 Licence conditions

The grant of the licence in clause 3.2 is subject to and conditional upon the following:

1. (a)  Where you are an Individual User:
   1. a)  successfully completing the Account Sign-On;
      b)  purchasing a subscription for any features which are not included in a Free Tier;
      c)  complying at all times with the requirements of this Agreement, the Terms of Use and Privacy Policy.
2. (b)  Where you are an Organisation, Accountant or Associated Accountant:
   1. a)  successfully completing the Account Sign-On;
   2. b)  purchasing Subscriptions equal to the number of Accountants or Associated Accountants who use the system on or after the Commencement Date in your Organisation for any features which are not included in a Free Tier;
   3. c)  purchasing Subscriptions equal to the number of End Users who have subscribed to the Services through your Organisationand are using features which are not included in a Free Tier; and
   4. d)  ensuring that you and all End Users in your Organisation comply at all times with the requirements of this Agreement, the Terms of Use and Privacy Policy.
3. (c)  Your continued acceptance of these Terms as amended and updated from time to time.
4. (d)  You and any Associated Accountants complying with our reasonable directions at all times.

3.4  Licence restrictions

The grant of the licence in clause 3.2 is subject to the following restrictions:

1. (a)  You must comply with the obligations set out in Clause 7 (Your Obligations).
2. (b)  You must comply with all requirements listed in this Agreement, other referenced documents, relevant legislation, and any lawful directions we give you.
3. (c)  Where you are an Organisation, you must ensure that you and any Accountants or Associated Accountants comply with all requirements listed in this Agreement, other referenced documents, relevant legislation, and any lawful directions we give them.
4. (d)  You must agree (and continue to agree) to our Website Terms of Use and Privacy Policy as amended from time to time.

3.5  Our right to suspend

We reserve the right to limit or suspend your licence to use the Services or Softwareif you breach any of your obligations in this Agreement.
4. Relationship

4.1  Sub-contractors

You acknowledge and agree that we may subcontract any of our obligations of this Agreement to a third party (or multiple third parties) without notification to or consent from you.

4.2  Relationship

You have no authority to act for or bind us except as specifically provided in this Agreement or with our express written consent.
5. Submitted Material

5.1 Submitted Material

1. (a)  You must not submit or cause to be submitted to the Software or Services:
   1. a)  any material that you do not own or have the right to use;
      b)  any confidential information of any third party that you have not obtained the express consent of the third party for;
      c)  any material that is illegal, unlawful, improper, harmful, threatening, unlawful, defamatory, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, hateful, or otherwise objectionable;
      d)  any material that infringes the Intellectual Property Right of a third party;
      e)  any material that would breach any privacy, security or anti-money laundering obligations, such as duties under the Privacy Act;
      f)  any material that is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
      g)  any material that causes damage or injury to any person or property;
      and we reserve the right, without incurring any liability to you, to disable your access to any material that we consider, in our sole discretion, breaches the provisions of this clause (or, if we deem it necessary, the Services).
2. (b)  You grant us a non-exclusive, royalty-free licence to use any material supplied by you in connection with this clause 5.1 for our commercial and business purposes, including the commercial and business purposes of any of our associated bodies corporate.

6. Payment

6.1  Fees

1. (a)  You will pay us the fee in accordance with our website (www.taxtank.com.au/pricing), promotion, and/or any other fees that are required for the Services to which you have subscribed from time to time.
2. (b)  All amounts and fees stated or referred to in this agreement are:
   1. a)  non-cancellable and non-refundable (subject to clause 15.1(d)); and
      b)  inclusive of GST, which shall be shown on our invoice(s) at the applicable rate.
3. (c)  You must register a valid payment method on the Software upon signing.

6.2  Our right to change Fees

We may amend the Fees at any time by providing 30 day’s notice to you.

6.3  GST wording

Words defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this clause.
7. Your Obligations

7.1  Positive obligations

During the term of the Agreement, you must:

1. (a)  where you are an Organisation, inform any End User Clients, Accountants and Associated Accountants that the Services:
   1. a)  are provided by us; and
   2. b)  are subject to terms and conditions as set out in this Agreement and the Terms of Use;
2. (b)  not to do anything that will have an adverse effect on us, the Services or Software;
3. (c)  comply with any and all terms and requirements of the Services outlined in this Agreement and associated links and documents;
4. (d)  ensure that you use the Services in accordance with the terms of this agreement and any other terms (such as our Terms of Use and Privacy Policy) and, where you are an Organisation, shall be responsible for any Accountant or Associated Accountant’s breach of this agreement;
5. (e)  ensure that you, and where you are an Organisation, you and any Accountants or Associated Accountants, do not (in use of the Services) breach any laws, regulations, policies or other legal instruments;
6. (f)  do all acts and things necessary to ensure that you, and where you are an Organisation, you and any Accountants or Associated Accountants, do not breach the terms of this Agreement, which may include (but not be limited to) implementing policies, procedures, monitoring software and training; and
7. (g)  not publish or otherwise communicate any review of, or information about, the Services (which is not publicly available) to any third party without the prior written consent of us, except as specifically provided for in an agreement with us, including this Agreement.

You will be responsible for the breach of any obligation in this clause except to the extent the breach is caused by our negligent act.

7.2  Restrictions

Except as we expressly permit under this agreement, you shall not:

1. (a)  access all or any part of the Services in order to build a product or service which competes with the Services;
2. (b)  use the Services to provide services to third parties;
3. (c)  license, sell, rent, lease, transfer, assign, distribute, display, disclose, commercially exploit or otherwise make the Services available to any third party (except for Accountants and Associated Accountants listed as part of an Organisation);
4. (d)  take any action which imposes or may impose (in our judgement) an unreasonable or disproportionately large load on our, or our third-party providers’, infrastructure;
5. (e)  interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services;
6. (f)  attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services and Software (as applicable) in any form or media or by any means; or
7. (g)  attempt to reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Software; or
8. (h)  bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services);
9. (i)  attempt to obtain, or assist third parties in obtaining, access to the Services other than as provided under this agreement; or
10. (j)  otherwise take any action in violation of any guidelines, policies or supplemental documentation which shall be applicable to the Services from time to time;

and shall not permit any other person to do the above acts, howsoever related to you.

7.3  Must dispute certain enforcement instruments

Where you are served with a Technical Assistance Request, Technical Assistance Notice or Technical Capability Notice under the Telecommunications Act 1997 or a Computer Access Warrant under the Surveillance Devices Act 2004 (Cth) which would compel you to access, or provide access to, our Services on behalf of any third party, you shall take all actions available to you to dispute such a notice. Any dispute shall include a submission that, where the notice or warrant relates to our services, that notice should instead be served on us.

7.4  Fair use

You shall not use, or permit any other person to use:

1. (a)  any method to circumvent the provisions of this agreement or to obtain Services in excess ofthose in which you have purchased;and
2. (b)  any mechanism to exceed the amount of resources assigned to you (or conceal any such activities).

7.5  Our right to suspend

We reserve the right to limit or suspend the access of any individual or association to the Services if any individual or association is in breach of clause 7.1.

7.6  Audit

If required by us, you will provide us reasonable access to your records, systems or hardware for the purposes of ensuring compliance with this Agreement.
8. Privacy

8.1  Privacy Policy

1. (a)  You agree and consent to our handling of Personal Information in accordance with our Privacy Policy (www.taxtank.com.au/privacy-policy).
2. (b)  Were serve the right to amend the Privacy Policy at any time.
3. (c)  Where you are an Organisation, youacknowledge and agree that you must inform any End User Clients, Accountants and Associated Accountants:
   1. a)  of our Privacy Policy;
   2. b)  that the End User’s Personal Information will be disclosed to us.
4. (d)  We reserve the right to immediately terminate this Agreement if you are in breach of clause 8.1(c).

8.2  Privacy obligations– TaxTank

If Personal Information is disclosed to us in the course of this Agreement, we agree that we will not:

1. (a)  sell the Personal Information to any third party in a form which has not been sufficiently de-identified so that it no longer represents information by which the End User could be personally identified by the third party; or
2. (b)  distribute or disclose identifiable Personal Information to any third party other than:
   1. a)  if you are an Organisation, displaying your name and logo on our website as ‘Accountants’, ‘Partners’ or similar;
   2. b)  to our personnel and/or related bodies corporate;
   3. c)  service providers who require the information in the provision of providing those services to the party;

   who will only use the Personal Information for the purposes contemplated by this Agreement.

8.3  Privacy obligations – Organisations and Individuals

If Personal Information is disclosed to you, you agree that you will not:

1. (a)  sell the Personal Information to any third party in any form; or
2. (b)  distribute or disclose Personal Information to any third party other than:
   1. a)  to your Accountants or Associated Accountants listed as part of your Organisation; or
      b)  service providers who require the information in the provision of providing services to you, your Organisation, Accountants or your Associated Accounts;

   who will only use the Personal Information for the purposes contemplated by this Agreement.

8.4  No warranty

1. (a)  We make no warranties or guarantees that the manner in which we manage Personal Information is compliant with any foreign privacy laws and it is your sole and absolute responsibility to ensure you are compliant with any foreign privacy laws in your use of the Software.
   (b) In the event that you request changes to the Services in order to achieve compliance, you acknowledge and agree that you will be liable for all work performed by us.

8.5  The Privacy Act

For the purposes of clause 8.2 and 8.3, the term disclose is to have the same meaning as defined in the Privacy Act 1988 (Cth).
9. Intellectual Property

9.1  Our Intellectual Property Rights

1. (a)  All title, ownership rights and Intellectual Property Rights, including copyright in relation to the Service and the Software, is owned or used under licence by us.
2. (b)  Without our express prior written consent, you undertake that you will not and will not permit any person to:
   1. a)  interact with our trade mark (whether registered or not) that could cause any adverse effect to our ownership and/or rights to the intellectual property; or
      b)  copy or reproduce, or create an adaptation or translation of, all or part of the Software in any way, except to the extent that reproduction occurs automatically through the ordinary use of the Software in accordance with this Agreement;
      c)  incorporate all or part of the Software in any other webpage, site, application or other digital or non-digital format. For the avoidance of doubt, you may incorporate images of the Software into hard or soft copy documents for training or communication purposes;
      d)  sell, license, sublicense, lease, rent, distribute, disclose, permit access to, or transfer to any third party, whether for profit or without charge, any portion of the Software on any medium(subject to other rights explicitly granted under this Agreement);
      e)  do anything that will infringe the Intellectual Property Rights of any third party; or
      f)  attempt to do any of the above.

9.2  Your Intellectual Property

Nothing in this Agreement will transfer ownership of the Submitted Material to us.

9.3  Threats and action

If you become aware of any infringement or threatened infringement of any Intellectual Property Rights, you must give us notice pursuant to clause 24.1, including full particulars of the infringement. We may, in our absolute discretion, institute and prosecute an action against the in fringer.

9.4  Provide all assistance

You must execute all documents and do all things reasonably necessary to aid and co-operate in the prosecution of any actions brought by us under this clause.

9.5  Survival of obligation

The operation of this clause survives the termination of this Agreement.
10. Software

10.1  Hosting the Software

1. (a)  You acknowledge and agree that:
   1. a)  the Software and Services are accessible online and are built as ‘cloud-based’ applications;
   2. b)  we require elements of the Softwareto be hosted by a third-party provider; and
   3. c)  this is reasonable considering the nature of the Software and Services, and that we would not be able to deliver the Services in their current or future form and to the standard necessary if we did not utilise the hosting services of third-party providers.
2. (b)  We use Amazon Web Services (https://aws.amazon.com) as a third-party provider for elements of the Software and delivery of the Services. Servers are:
   1. a)  managed and maintained by Amazon;
   2. b)  where possible, located in Australian data centres; and
   3. c)  secured by Amazon software and technology.
3. (c)  You release and indemnify us fully for any damages you or an Associated Accountant incursas a result of the mismanagement, negligence or any other acts or omissions by Amazon in their provision of servers, hosting and cloud technology to us.
4. (d)  You acknowledge that as Amazon is a reputable and ‘enterprise-grade’ vendor, our use of their services and reliance on their technology is reasonable in the circumstances. If you do not agree with this assertion at any time, your sole and exclusive remedy is to terminate your use of the Software and Services.Your continued use of the Services and storing of your data (including Personal Information and Submitted Material) is taken as a current and continuing agreement to the acknowledgements in this clause10.1.
5. (e)  We reserve the right to nominate a different server, third-party provider or cloud-based architecture at any time in our sole discretion.

10.2  Software not locally available

You acknowledge and agree that the Software will only be accessible using the Internet (or other connection to third party servers) and will not be available “locally” from your own servers or within your own local operating system environments.

10.3  Parts of the services controlled by third parties

You acknowledge and agree that the Software is operated from servers owned and controlled by a third party. As such, you acknowledge that certain functions are out of our control, including (but not limited to):

1. (a)  cloud services for servers;
2. (b)  proprietary and internal code, which may include bugs, errors and exploits;
3. (c)  actions by malicious, state-sponsored and hostile actors;
4. (d)  hardware and connection failure; and
5. (e)  data storage and backup.

10.4  Change of Services

We reserve the right to upgrade, maintain, tune, backup, amend, add to or remove items from, redesign, improve or otherwise alter the Services (including offering new Services) at our sole and absolute discretion.

10.5  Unintentional inaccessibility

1. (a)  From time to time, without notice, access to all or part of the Services may be disrupted or limited. During such an interruption, we will use reasonable endeavours to restore access to the Services as soon as practicable. Nothing in this agreement gives us any obligation or liability to you in any way whatsoever for unintentional inaccessibility.
2. (b)  We make no guarantees as to the uptime or availability of the Services or Software. You acknowledge that you will always ensure that you have means through which to access any material you have submitted to the Services.

10.6  Intentional inaccessibility

We reserve the right to make some or all of the Services inaccessible from time to time as is required for upgrades, maintenance and updates. We will use reasonable endeavours to provide you with advance notice of any inaccessible period, but you accept this may not always be possible and we are not liable for any harm or damage you may suffer during an interruption.

10.7  Errors

1. (a)  You acknowledge and agree that there may be technical or administrative errors in the information on the Software, including but not limited to errors with respect to product description, calculations and availability.
2. (b)  We reserve the right to do any of the following, at our absolute discretion, without notice:
   1. (i)  Correct any errors in the Software
   2. (ii)  Make the Software or Services inaccessible to work on errors
   3. (iii)  Update the Software
   4. (iv)  Remove and/or replace parts of the Software
   5. (v)  Move or re-organise data from one part of the Software to another
   6. (vi)  Any other act or thing reasonably necessary to ensure errors are corrected, and the Software continues to operate as intended.

10.8  Security responsibilities

We will take reasonable steps to ensure the Software is secure from unauthorised access,consistent with generally accepted industry standards in our industry.For clarity, these obligations shall only include taking reasonable measures to:

1. (a)  secure our physical premises from unauthorised access;
2. (b)  restrict access to critical parts of Service infrastructure to employees, contractors, and third parties who are required to have access; and
3. (c)  implement recommendations from advisors provided to us from time to time in relation to securing the Software and Services.

10.9  Publishing of content and Service data

Except as expressly permitted through this Agreement, you must not publish, share or otherwise disseminate any content, data, graphs, visualisations or information provided to you through the Services outside the confines of the Software, without our written permission.

10.10  Delivery of support and maintenance

We will provide support and maintenance services in respect of the Services via email only, and will endeavour to respond within 24 hours (if that time period falls on a business day), or otherwise as soon as possible thereafter.
11. Data

11.1  Terms of Use to apply

Where not specifically dealt with in this Agreement, we will collect, store and use your data in accordance with our Privacy Policy (www.taxtank.com.au/privacy-policy) and Website Terms of Use (www.taxtank.com.au/terms-of-use) as amended from time to time.

11.2  Required information

1. (a)  The Services concern financial information and integration with a number of financial services and third-party applications. In your use of the Services, we may require Personal Information to:
   1. a)  ensure we can appropriately interact with those third-party applications;
   2. b)  provide other users to whom you wish to engage with in the Services the information necessary for them to perform their functions; and
   3. c)  comply with any applicable laws and regulations, including any anti-money laundering, counter-terrorism or know your customer requirements.
2. (b)  The Personal Information you may be required to provide for the continued use of the Software and Services includes (but is not limited to) your:
   1. a)  full name;
   2. b)  email address;
   3. c)  postal and/or residential address;
   4. d)  tax file number;
   5. e)  date of birth;
   6. f)  payment information;
   7. g)  property and asset information;
   8. h)  document information; and
   9. i)  bank account details.

11.3  Storage of data

1. (a)  When using the Services, any Submitted Materials or other End User data is:
   1. a)  transferred using the Secure Socket Layer (SSL) protocol to the servers on which the Software is hosted; and
   2. b)  encrypted at rest (once it arrives on the server).
2. (b)  All Service and Software data is backed up regularly using Amazon’s backup procedures. While we make all efforts to ensure backups occur regularly, we make no guarantees that data provided to the Services will be backed up at any particular interval of time, nor that the backups are safe from hostile, malicious or state-sponsored cyber-attacks.
3. (c)  Most Submitted Materials will be attached to a transaction in the software or stored on the Software using the ‘Spare Tank’ functionality, which provides storage for documents within the Software. The Spare Tank will be subject to the same data, security and privacy terms as set out elsewhere in this Agreement.
4. (d)  You acknowledge the following in relation to the Submitted Materials and Spare Tank:
   1. a)  The software and Spare Tank are designed as a permanent or ultimate storage solution, but despite our best efforts, we cannot rule out the possibility of data becoming lost or unrecoverable due to unforeseen issues or hostile actions.
   2. b)  You must ensure you have copies of all Submitted Materials on a physical device under your control.
   3. c)  The software is designed to assist End Users, Organisations, Accountants and Associated Accountants to providing each other with easy access to documents that are stored elsewhere.
   4. d)  It is expected that any documents which are of value or importance to both parties will be promptly downloaded to offline storage from the software or Spare Tank.
   5. e)  We may restrict the amount of storage allowed under free accounts (or any other account level) at our absolute discretion. Where applicable, we will provide options to upgrade to additional storage.
   6. f)  The software or Spare Tank are not a substitute for industry-grade, personally encrypted document storage.
   7. g)  You release us from all liability, responsibility, or obligations in relation to any data loss due to your reliance on the software or Spare Tank as a sole means of document storage.

11.4  Use of data

1. (a)  By using the Software and providing Customer Material and End User data in your interaction with the Services, you understand,acknowledge, and agree that we may:
   1. a)  use that data in any way necessary to ensure you have the appropriate access and use of the Services;
   2. b)  aggregate, distribute, prepare derivative works of, display, perform or otherwise use the data in connection with the Services, Software or our business;
   3. c)  share data with any third parties to whom we rely upon in providing the Services or running the Software;
   4. d)  share data with any third parties to whom you allow within your account as an Integration;
   5. e)  use your data to provide better recommendations and targeted advertising within the Services;
   6. f)  share data with any of our related bodies corporate for the purposes of furthering our commercial and business interests; and
   7. g)  share data with our partners, affiliates and other associated third-parties in a manner consistent with our Privacy Policy and Terms of Use.
2. (b)  You grant us an irrevocable, perpetual, non-restrictive, royalty free, transferable, assignable worldwide, fully paid, sublicensable licence to use any data you provide to us in your use of the Services for the purposes listed in 11.4(a) and any other purposes listed in this Agreement. This licence shall survive the termination of this Agreement.
3. (c)  For clarity, the above licence in clause 11.4(c) does not affect your other ownership or licence rights in the Submitted Materials, including the right to grant additional licences in writing, unless otherwise agreed. You represent and warrant that you have, and will continue to have, all necessary rights to grant the licences in this clause 11 without infringing or violating any other rights (including Intellectual Property rights), assignments, licences or agreements which may apply to the Submitted Materials.
4. (d)  We reserve the right to access, read, preserve and disclose any information we believe is reasonably necessary to:
   1. a)  satisfy any applicable law, regulation, legal process, or governmental request;
   2. b)  enforce these terms, including investigation of potential violations;
   3. c)  detect, prevent, or otherwise address fraud, security, or technical issues;
   4. d)  respond to user support requests; or
   5. e)  protect the rights, property, or safety of us, our users, and the public.

11.5  Data exporting

1. (a)  While the Services and Software may allow users to export certain aspects of the Submitted Material, nothing in this Agreement should be construed as an entitlement to export Submitted Material from the Services at will.
2. (b)  The ability to remove any Submitted Material or other content on the Services which relates to an End User in a downloadable and/or human readable format is wholly dependent on:
   1. a)  the current functionality of the Software;
   2. b)  the status of any servers, infrastructure or other storage medium used to deliver the Services;
   3. c)  the features available to the End User in question under their subscription model; and
   4. d)  our absolute discretion to enable export functionality from time to time.
3. (c)  You acknowledge and agree that the Software and Services are not a substitute for keeping complete records on your own storage medium and/or in hard copy, and warrant to us that you will not use it as such. At best, the Software and Services are designed to augment your own financial management procedures and provide you with new ways to interact with information that you have already stored and backed up elsewhere.

11.6  End User acknowledgements

You acknowledge and agree that:

1. (a)  the Services may be subject to limitations, delays, and other problems inherent in the use of communications facilities (such as network outages, congestion, and hardware failures);
2. (b)  we may perform periodic penetration testing on the Services to satisfy our internal security standards;
3. (c)  information you request from us may not be available or may not be provided at the time of request, and we don’t guarantee that any information provided will be comprehensive or complete;
4. (d)  unless otherwise agreed to in writing, you shall be responsible for the preservation of your data, including any Submitted Material. Even where we do provide backup services, you must also take measures to safeguard and secure your data. Unless agreed in writing, you acknowledge and agree that we shall have no responsibility to preserve any data and no liability for any data, including Submitted Material, which may be lost or unrecoverable;
5. (e)  subject to our Website Terms of Use and Privacy Policy as published from time to time, and clause 8.3(b), we may include your name and trademarks in a list of subscribers, online content or promotional materials. You also agree that we may verbally communicate your status as a customer of ours from time to time; and
6. (f)  we will not be responsible for any End User having appropriate devices and internet connections to access the Services. We will not be responsible for any physical devices, internet connections, communications or anything else used to connect to or access the Services.

12. Security

12.1  Sufficient security

You shall use proper security measures in connection with your use of the Services. This shall include (but not be limited to) the following:

1. (a)  Setting strong passwords and access control mechanisms.
2. (b)  Safeguarding access to all logins and passwords (preferably with an industry-grade two-factor or hardware authentication system).
3. (c)  Verifying the trustworthiness of persons with account access information.
4. (d)  Implementing any relevant procedures recommended by the Department of Industry, Innovation and Science (see https://www.business.gov.au/Risk-management/Cyber-Security) and the Australian Cyber Security Centre (see https://www.acsc.gov.au/ and https://cyber.gov.au) from time to time.

Where you are an Accountant, you shall also ensure that, within your organisation, you are:

1. (e)  performing regular checks on user accounts;
2. (f)  implementing appropriate policies and procedures to safeguard access within your organisation; and
3. (g)  undertaking adequate security training with all Associated Accountants.

12.2  Notifiable Data Breaches

You shall notify in the manner specified in clause 24.1 within 48 hours if you learn of any security breaches relating to the Services. If the breach(es) could constitute a Notifiable Data Breach under Part IIIC of the Privacy Act, you shall notify us within 3 hours of the breach (suspected or confirmed) coming to your attention. You shall aid us fully in any subsequent investigation or legal action taken as a result of the breach.

12.3  Malicious Code

It is your responsibility to protect your systems and the areas of the Services which are under your control from Malicious Code.

12.4  Internet Services

You are responsible for the security of any and all Internet connections used to access the Services, and the security of any device on which the Services are accessed.

12.5  Cyber attacks

While we may take reasonable measures to secure the Software and the infrastructure on which the Services run from cyber-attacks and Malicious Code, new attack vectors and exploits are created or used by malicious actors every day. By using the Services, you acknowledge that we cannot be expected to anticipate these new vectors but can only employ industry-standard measures to mitigate the risks. Where we are actively employing measures to combat cyber-crime and an exploit or data loss occurs, you agree to hold us completely harmless for any consequences of same.

12.6  Cyber insurance

We strongly recommend you obtain and maintain electronic and computer crime insurance to the appropriate level assessed by a reputable insurance company.

12.7  Indemnity

You release and indemnify us for any claim, action or liability resulting from your failure to comply with this clause 12. You acknowledge that while we may secure the Software as part of the Services, we are unable to protect you from a failure to properly secure your systems, practice good digital hygiene, or where you are an Accountant, educate your Associated Accountants.
13. Third Party Content and Services

13.1  Accessing linked content and services

1. (a)  The Services may permit you to link to or access other websites, services or resources on the Internet. When you access third party resources, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness, or any other aspect of such websites or resources. The inclusion of any link or integration to third party services does not imply our endorsement or any association between us and their operators.
2. (b)  You further acknowledge and agree that we will not be responsible or liable, directly or indirectly, for any damage or loss caused (or alleged to be caused) by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource.
3. (c)  We will not be responsible for any third-party advertising content displayed on the interface of the Software. Any link on the Software to a third-party website, or decision to accept any third party offer, is entirely at an Individual’s or Association’sown risk.

13.2  Third party Integrations

1. (a)  In delivering the Services, we may offer augmented functionality through interfacing, providing or obtaining data, or otherwise co-operating with a third party and their software and/or services (Integration).
2. (b)  The Software currently integrates with several parties for enhanced functionality within the Services, including (but not limited to) the following Integrations:
   1. a)  Corelogic provides information on real estate data, metrics, growth and suburban statistics, and is used in providing some Property Tank functionality within the Services. Our integration with Corelogic also allows certain graphing and visualisation functionality used within the Services. Your use of Corelogic Integrations within the Services is subject to the terms specified in clause 13.3.
   2. b)  Stripe handles credit card payments and allow you to pay for the Services with a regular subscription plan.
   3. c)  Basiq provides account aggregation services (Open Banking) for use integrating with bank accounts and other financial entities.
   4. d)  Cognito provides secure sign up, sign in and access control for your account.
3. (c)  Several of the Integrations may have access to some Submitted Material, Private Information and End User data. By using the Services, you expressly authorise us to provide any Submitted Material, Private Information and End User data to Integrations for the purpose of providing the Services.
4. (d)  You acknowledge that the third parties who control the Integrations may:
   1. a)  use Submitted Material, Private Information and End User data to improve their services;
   2. b)  to the extent permitted by law, use, sell, license, distribute and disclose de-identified and/or aggregated Submitted Material, Private Information and End User data; and
   3. c)  perform fraud screening, verify identities and verify Submitted Material, Private Information and End User data for use across their network;
      and agree to the Integrations performing all of the above functions.
5. (e)  While we offer the Integrations and may have agreements with the third parties to whom they relate, we only have control over the Integrations to the extent permitted by our Software.

13.3 Corelogic

1. (a)  By using the Services and Corelogic product data, you confirm you have read and accepted the following terms in relation to our Integration with Corelogic:
   1. a)  The End User Terms and Conditions located at https://www.corelogic.com.au/resources/pdf/misc/rpdata-terms-conditions-integrators.pdf
   2. b)  The Corelogic License Agreement located at https://www.corelogic.com.au/about-us/terms-and-conditions
   3. c)  The Corelogic Privacy Policy located at http://www.corelogic.com.au/about-us/privacy-policy.html.

14. Warranty

14.1  Exclusion of express warranties

Subject to our obligations in respect of the provision of the Software and Services under this Agreement, we make no warranties or guarantees:

1. (a)  the Software and/or Services will be accessible at all times, uninterrupted or error free;
2. (b)  any of the Software is without bugs or viruses;
3. (c)  any of the technical information is without error or inaccuracy;
4. (d)  the Software is immune to unauthorised access or security breach; and
5. (e)  in respect of the retention of, or continued accessibility of, any data.

14.2  Warranties as to capacity

Each party represents and warrants to the other that:

1. (a)  it has full power and authority to execute this Agreement and observe and perform all of its obligations;
2. (b)  it is not aware of any thing, matter, or circumstance which may prevent it from fulfilling its obligations under this Agreement; and
3. (c)  it is not insolvent and no receiver, receiver and manager, provisional liquidator, liquidator, or other officer of the court has been appointed in relation to all or any of its affairs or material assets.

15. Limitation of liability

15.1  Consumer Law

1. (a)  You acknowledge and agree that:
   1. a)  we are not responsible for the conduct or activities of any other user of the Services; and
   2. b)  where you are an Accountant, Organisation, or individual with an ABN, you are entering into and acquiring goods or services under this Agreement for commercial purposes and not for domestic, personal, or household use.
2. (b)  If you are a consumer within the meaning of the Consumer Law, there are certain rights (such as the consumer guarantees implied by the Consumer Law) that cannot by law be excluded (Non-Excludable Conditions). This clause is subject to those Non-Excludable Conditions.
3. (c)  Subject to the application of any applicable Non-Excludable Condition and to the maximum extent permitted by law, we:
   1. a)  exclude from this Agreement all guarantees, conditions and warranties that might but for this clause be implied into this Agreement;
   2. b)  exclude all liability to you for any Costs, expenses, losses and damages suffered or incurred directly or indirectly by you in connection with this Agreement, including using the Services, whether that liability arises in contract, tort, or under statute; and
   3. c)  will not, under any circumstances, be liable to you for any Consequential Loss.
4. (d)  If our liability under this Agreement cannot be lawfully excluded, to the maximum extent permitted by law, our liability for breach of any Non-Excludable Condition is limited:
   1. a)  in the case of goods, to (at our option) the replacement of the goods or the supply of equivalent goods; the repair of the goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired;
   2. b)  in the case of services, to (at our option) the supplying of the services again; or the payment of the cost of having the services supplied again.

15.2 Costs

We exclude all other liability to you for any Costs, including Consequential Loss, suffered or incurred directly or indirectly by you in connection with the Agreement, the Software and/or the Services, in connection with:

1. (a)  the occurrence of an Unforeseen Event;
2. (b)  reliance on technical advice, modelling or calculations provided by us;
3. (c)  the infringement or claimed infringement by any person other than us or our Representatives of the Intellectual Property Rights or moral rights of any person in connection with the Agreement;
4. (d)  any loss or damage to property, personal injury, or death arising directly or indirectly in connection with the Agreement;
5. (e)  any unauthorised activity in relation to the Software or Services by any Individual or Organisation;
6. (f)  Your use of or reliance on the Software and/or Services for a purpose other than the business purposes of you or the reasonably expected purpose of the Software and/or Services; or
7. (g)  Your failure to fulfil your obligations under the Agreement.

The foregoing limitation applies however the Costs are caused, whether they arise in contract, tort (including by our negligence), or under statute.

15.3 Third party Integrations

1. (a)  We make no guarantee as to the safety, security, merchant ability, fitness, reliability or usability of any third party Integrations on the Services.
2. (b)  Where you suffer any damages, loss or injury due to the acts or omissions of an Integration, your sole and exclusive remedy is to pursue the owner of that Integration for those damages. You release and discharge us for all liability relating to any Integration, except to the extent where we have contributed to any damage, loss or injury.

15.4 Not liable for Consequential Loss

We are not liable under this Agreement for any Consequential Loss arising out of a breach of this Agreement, including (without limitation) any liability under the indemnity in clause 15.1(b).
16. Indemnity

16.1  Indemnity

You indemnify and will keep us and our Representatives indemnified against all liability arising from claims for:

1.  libel, slander, defamation, product disparagement or indecent, false, misleading or deceptive conduct;
2. (b)  any breach of clause 5 (Submitted Material);
3. (c)  any breach of clause 7 (Your Obligations);
4. (d)  any breach of clause 8 (Privacy), 10 (Software), 11 (Data) and 12 (Security);
5. (e)  any breach of the provisions of this clause 16.1;
6. (f)  infringement of Intellectual Property Rights;
7. (g)  piracy, counterfeiting, plagiarism, or unfair competition;
8. (h)  invasion of the right of Privacy; and
9. (i)  any incorrect, fraudulent or false information provided by you.

16.2  The obligations in this clause 16 survive termination of this Agreement.

17. Termination

17.1  Termination by notice

Either party may terminate this Agreement by providing the other party 30 days’ notice.

17.2  Termination by Account Management

You may terminate this Agreement by selecting the “Cancel” option in Account Management in the Services after suspending or downgrading your Account. Termination will take effect one month after you have selected the “Cancel” option, unless you choose to reinstate your account within that period.

17.3  Immediate termination by us for default

We may terminate this Agreement immediately by notice to you if:

1. (a)  an Insolvency Event occurs in relation to you;
2. (b)  you commit any breach of any of your obligations under this Agreement and:
   1. a)  the breach is incapable of being remedied;
   2. b)  if you fail to pay the Fees, including if your chosen payment method is unable to make payment, when we are unable to bill your account after repeated attempts to redraw that amount;
   3. c)  if the breach is capable of being remedied, you have failed to remedy the breach after the receipt of the notice; or
   4. d)  you have been issued a notice of default more than three times during a 12 month period.

18. Individuals and End Users

18.1  Excluding Accountants or Associated Accountants who are part of an Organisation.

1. (a)  Nothing in this Agreement or the provision of the Software or Services should be considered as creating a client/accountant or client/financial advisor relationship, or the provision of any type of financial or professional advice. We recommend always seeking the advice of a suitably qualified professional prior to making any financial decisions, including decisions that may be assisted by or based upon functionality offered within the Software.
2. (b)  By using the Software and Services, you agree that we are not in any way holding ourselves out to be financial advisors or accountants, and that the Software or Services should not be considered as performing the function of such professional advisors. At most, the Software and Services are designed to assist you in collating information that could be presented to your Accountant or advisors for their assistance.
3. (c)  While the Services and Software allow interaction with Accountants and advisors, some of which you may elect to assist you through the Services, any such relationship is strictly between you and the Accountant or advisor. The Software is only a means through which you may interact and share information with Accountants and other advisors, and does not create any kind of fiduciary duty with regards to any such relationship.
4. (d)  You agree and acknowledge that, where you engage the services of any Accountant through the Software:
   1. a)  we are not a party to that relationship;
   2. b)  you carry all of the risk associated with that relationship;
   3. c)  you will ensure you agree to an engagement with that Accountant; and
   4. d)  we have no liability for, and responsibility or control over, the advice provided to you in your relationship with an Accountant.

18.2  Software limitations

1. (a)  The Services and Software are entirely reliant and can only display user-specific content based upon Submitted Materials and End User data. We are not responsible for any actions you or any other party take based on the Services, particularly where those actions relate to incorrect or incomplete Submitted Materials or End User data.
2. (b)  Estimated tax positions and any other scenario analysis provided through the Services and Software are a guide only and should not be solely relied upon in submission of any formal material to a regulator or the Australian Taxation Office.
3. (c)  The Software is:
   1. a)  provided on an ‘as is’ basis;
   2. b)  not designed to perform any functions outside those expressly advertised;
   3. c)  largely dependent on any Submitted Material and End User data which you submit or upload; and
   4. d)  unable to differentiate between accurate and inaccurate information uploaded or allocated by an End User (or any other party).

18.3  Adherence to current tax laws and accounting standards

1. (a)  While we make efforts to build the Software to comply with current tax laws and accounting standards within the jurisdiction(s) that the Software is expressly offered in, we make no guarantees that the Software will be fully compliant with those laws and standards.
2. (b)  You are responsible for ensuring that any information submitted to a regulatory body or taxation department (including the Australian Taxation Office) is accurate. You acknowledge and agree that the Software is not a substitute for professional advice of any kind and is designed as a tool to assist you in organising your monetary affairs, not as an ‘automatic’ or ‘complete’ submission device for your yearly accounts.
3. (c)  You warrant to us that you will always check all information and ensure you verify any calculations separate to the Software.
4. (d)  We do not guarantee or warrant that the software will be compliant with any legislation, including taxation legislation, at any particular time, and you expressly release and indemnify us in relation to same.
5. (e)  Where you invite or give access to any third party advisor, you warrant to us that you will ensure they are aware of this Agreement, and particularly the terms contained in this clause 18, and have them agree to same. Where you provide them with access to information derived from using the Software or Services, you will similarly ensure they are aware of the limitations of the Software and will not provide advice of any kind to you based solely on data provided to you through the Software.

19. Organisations

19.1  Applies to Organisations and Accountants or Associated Accountants who are part of an Organisation.

This clause 19 applies only to End Users who are classified and/or registered as Accountants within the Software. Any reference to “you”, “your” or Accountant in this clause shall only be construed as relating to an Accountant within the definition of this Agreement.

19.2  Additional functionality

1. (a)  Where you register for the Services as an Organisation, Accountant or Associated Accountant, you may be permitted to access a number of additional functions. These include (but are not limited to) the following:
   1. a)  Creating or editing an Organisation
   2. b)  Managing associated End Users
   3. c)  Accessing extra metrics
   4. d)  Being able to see the financial data of an End User Client
   5. e)  Managing Accountants and Associated Accountants
   6. f)  Being able to export End of Financial Year (EOFY) reports
      g)  Accepting invitations from End Users
   7. h)  Communicating with End Users
   8. i)  Editing End User data (dependent upon any restrictions by the End User)
   9. j)  Creating files and inviting other End Users to those files
   10. k)  Allocating End Users (who may or may not be current clients of the Organisation or Accountant) to a particular Accountant or Associated Accountant within the Organisation, and
   11. l)  Sharing data.
       (Additional Functions)
2. (b)  Access to Additional Functions will be dependent on your Subscription level at any time, and we reserve the right to add or remove functions from any Subscription level at our complete discretion.
3. (c)  You may request that we add Additional Functions from time to time, but nothing in this Agreement shall give us any obligation or bind us in any way to build additional functionality into the Services or Software.

19.3  Retaining clients

1. (a)  The Software may allow Organisations or Accountants to retain End Users as clients within the Services themselves. Prior to engaging any End Users and using the Services, you must provide the End User with a copy of your engagement letter or brochure, which shall include all terms required under any rules, legislation, licences which you hold, or other relevant requirements.
2. (b)  Any engagement used for clause 19.3 must include adequate terms concerning the use of End User data by the Organisation, Accountants and Associated Accountants, and should detail:
   1. a)  privacy obligations;
   2. b)  data storage and use procedures; and
   3. c)  security.

19.4  Profiles

1. (a)  The Services may permit Organisations and Accountants to develop public ‘profiles’ for themselves, through which End Users may garner information about their services (Profiles).
2. (b)  Any Organisations and Accountants must not, in any content displayed on their profile:
   1. a)  breach copyright or intellectual property of any third party;
   2. b)  publish offensive, vulgar, discriminatory, or defamatory material;
   3. c)  publish statements about competitors or other Accountants/Organisations;
   4. d)  engage in any misleading or deceptive conduct;or
   5. e)  attempt to induce End Users to engage them with material which is untrue, inaccurate or in breach of any professional obligations.

19.5  Software not a substitute for professional diligence

The Software and Services are provided to enable Organisations, Accountants and Associated Accountants to visualise and share information in new ways. It is not a substitute for any professional practices currently in use by an Organisation or Accountant, nor should it be relied upon to perform any functions where the Organisation or Accountant should reasonably be required to exercise their own professional judgement and reasoning.

19.6  Software not to be relied upon for Accountant/client relationship

While the Software provides functionality to exchange information and text-based conversations with End Users, it should not be a substitute or relied upon as the sole means of contact between an Organisation or Accountant and their client. You agree and warrant that you will always establish a meaningful relationship with any clients independent of the Software.

19.7  Security expectations

You are expected at all times to take measures to secure all End User data associated with your clients and your Organisation. This includes the requirements in Clause 12 and commissioning regular security audits of your Organisation and systems, aided by a reputable cyber-security firm.

19.8  Risk of harm

You must take no action that a reasonable person would consider risks harm to us, the Software, Services, or an End User, except where you are complying directly with a law or regulation.
20. Effects of Termination

20.1 When termination occurs with notice

If this Agreement is terminated in accordance with clause 17.1, this Agreement will terminate at the expiry of any then-current Subscription Periods.

20.2 When termination occurs without notice

If this Agreement is terminated in accordance with clause 17.13, this Agreement will terminate immediately. Effects of Termination

On termination of this Agreement, the licence will terminate and you must immediately:

1. a)  cease all activities related to the promotion of the Services;
2. b)  destroy all documents and other materials (including all copies) in your possession relating to the Software or Services;
3. c)  do any further things as may be reasonably required by us to protect our right, title and interest in the Services.

21. Dispute Resolution

1. (a)  You will follow the Dispute Resolution procedure set out in the Terms of Use.
2. (b)  Any dispute between an End User and an Organisation or Accountant, or an End User and another End User, must be resolved on the basis of any agreements between those parties, or failing that, in good faith. We take no responsibility for, and will not take part in, any dispute involving Individuals or Organisations, except where that dispute relates directly to an issue with the Software or us.
3. (c)  In the event of any issue which relates directly to us or the Software, your sole and exclusive remedy is the following procedure:
   1. a)  Within seven (7) days of the issue, you must notify TaxTank Support at the notice address (refer clause 24.1).
   2. b)  You must detail your issue in writing in as much detail as possible.
   3. c)  We will then review your issue and seek your further input if needed.
   4. d)  We will make a decision in relation to the dispute at our discretion and provide you that decision in writing.
4. (d)  You agree that any decision we make is final and you will be bound by it. You indemnify us fully for any and all expenses we incur as a result of you failing to abide by our decision and continuing the dispute (including any subsequent legal proceedings).
5. (e)  You agree that, where you breach the above clause 21(d) and continue the dispute after a decision has been made, you will first contact us and seek in good faith to arrange a mediation for the relevant issue.

22. Confidentiality

22.1  Confidentiality

1. (a)  A party will not, without the prior written approval of the other party, disclose the other party’s Confidential Information.
2. (b)  A party will not be in breach of this confidentiality clause in circumstances where it is legally compelled to disclose the other party’s Confidential Information.
3. (c)  Notwithstanding any other provision of this clause, a party may disclose the terms of the Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
4. (d)  Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of the Agreement, do not make public or disclose the other party’s Confidential Information.

22.2  Breach notifications

A party must notify the disclosing party in writing, giving full details known to it immediately, when it becomes aware of any actual, suspected, likely or threatened:

1. (a)  breach by any person of any obligation in relation to the Confidential Information; or
2. (b)  theft, loss, damage, or unauthorised access, use, or disclosure of or to any Confidential Information.

22.3 Survival

The obligations under this clause 22 survive termination of the Agreement.
23. Linked Properties

23.1  Linking property

1. (a)  As part of the Services, an End User can choose to share statistics, records, management and other functionality for a property within their portfolio with other End Users through a property ‘link’.
2. (b)  For each linked property, there will be an original manager (Inviter) and those who are invited by the Inviter (Invitee).
3. (c)  Once an Inviter shares a property in the Services with an Invitee, that Invitee will be permitted access to all features, data, and records in relation to that property. Access will be ‘read only’ or ‘edit’ at the inviter’s discretion.

23.2  Inviter acknowledgements

Where an Inviter invites an Invitee to share access to a property, the Inviter acknowledges and agree to the following:

1. (a)  The Invitee will have access to all features, data, bank accounts, records, integrations and any other information that you have access to in relation to the linked property.
2. (b)  As far as the Services are concerned, you and any Invitee will be equally entitled to all information, functionality and data in relation to that linked property.
3. (c)  you are solely responsible for managing access to your property entries by other End Users with edit access
4. (d)  Where you no longer wish an Invitee to have access to the linked property, you may ‘un-link’ them, which will remove their shared access within the Services to that property, however:
   1. a)  the Invitee will retain all shared data in relation to that property up until the date that you revoked them from the link;
   2. b)  a user will be notified if unlinked from a property and will have an option to duplicate the property in their account to continue using TaxTank for that property independently;
   3. c)  once a duplicate property is made you will be unable to re-establish the Invitee’s link to the property later (i.e.the ‘unlinking’ process is permanent and cannot be reversed);

23.3  Invitee Acknowledgements

Where an Inviter invites an Invitee to link a property with your account (and any associated accounts, integrations and financial data), you acknowledge and agree that:

1. (a)  your tax position may be affected;
2. (b)  you will receive access to sensitive data in relation to the Inviter and a physical property, including (but not limited to) bank accounts, records, financial information and confidential documents;
3. (c)  the Inviter can provide an Invitee ‘read only’ or ‘edit’ access to a linked property;
4. (d)  you will have full access to all features in relation to the linked property within the Services;
5. (e)  you will not do anything to damage, harm or put at risk the interests of the Inviter in relation to the Property, except where you have their express permission to do so;
6. (f)  while you will be afforded similar functionality to the Inviter within the Services, the Inviter will have discretion to remove your access from the linked property at any time (and at their complete discretion);
7. (g)  where your access to a linked property is revoked:
   1. a)  you will be permitted to duplicate all data in relation to the linked property (up until the time of your removal)on your own account to enable ongoing and independent use;
   2. b)  you will be unable to re-establish a link to that Inviter (for that property) within the Services;
   3. c)  we take no responsibility in relation to the linking and unlinking of properties, and you agree that your sole recourse when a property is unlinked is to take the matter up with the Inviter; and
   4. d)  where you have rights in the linked property, you will ensure that you have the ability to receive all required information in relation to that property separately from the Services; and
8. (h)  we will take no action to prevent an Inviter terminating access to a property.

23.4  Our role

1. (a)  Our sole and exclusive role in relation to linking properties is to provide the linking functionality to End Users as part of the Services.
2. (b)  Linked property functionality is provided ‘as-is’ and we make no warranties in relation to its suitability for any property management or regulatory compliance.
3. (c)  We will not be responsible for any disputes, claims, damages or loss suffered by either party in relation to a linked property.
4. (d)  We are not obliged to provide any support or assistance in relation to disputes over linked properties and you expressly relieve us of responsibility regarding same.

24. General

24.1  Notices

1. (a)  Any communication under or in connection with this Agreement:
   1. 1)  must be to the addressee to:
      TaxTank Support
      1505 / 56 Scarborough Street, Southport QLD 4215, Australia
      Email: Support@taxtank.com.au
      or where the functionality exists, sentvia a message or support ticket within the Services and/or Software;
   2. 2)  must be in writing;
   3. 3)  where it is delivered or sent by email to the addressee, must besent in accordance with clause 4); and
   4. 4)  if sent or delivered in the manner provided in 3), must be treated as given to or received by the addressee in the case of:
      1. a.  delivery by email, when the message has been delivered to the email address of the addressee;
      2. b.  delivery by message, when the message is marked as read within the Services;
         but if delivery is made after 5.00pm on a business day,it must be treated as received on the next business day in that place.
2. (b)  Any and all correspondence, including notices, delivered under this agreement shall, in the absence of any provisions to the contrary (or unless otherwise agreed) be governed by the Electronic Transactions (Queensland) Act 2001 (Qld).
3. (c)  In relation to any unforeseen event or downtime notices, it is sufficient for the purposes of this Agreement that we provide information about such occurrences on our Website.

24.2  Unforeseen event

A party is not responsible for any loss arising out of any occurrence or condition beyond its control, including but not limited to acts of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware or other malicious code.

24.3  Assignment

1. (a)  You may only assign, encumber, declare a trust over or otherwise create an interest in your rights under this document with our consent.
2. (b)  We may assign, encumber, declare a trust over or otherwise create an interest in its rights under this document without your consent, and may disclose to any potential holder of the right or interest any information relating to this document or any party to it.

24.4  Amendment

We may amend this Agreement by providing you14 days’ written notice.

24.5  Liability for expenses

Each party must pay its own expenses incurred in negotiating, executing and registering this document.

24.6  Giving effect to this document

Each party must do anything (including execute any document), and must ensure that its employees and agents do anything (including execute any document), that the other party may reasonably require to give full effect to this document.

24.7  Waiver of rights

A right may only be waived in writing, signed by the party giving the waiver, and:

1. (a)  no other conduct of a party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right;
2. (b)  a waiver of a right on one or more occasions does not operate as a waiver of that right if it arises again; and
3. (c)  the exercise of a right does not prevent any further exercise of that right or of any other right.

24.8  Relationship

Nothing in this Agreement is intended to create or be construed as creating a relationship of agency, joint venture or partnership between any of the parties. Unless expressly stated in this Agreement, no party may act as agent of or in any way bind another party to any obligation.

24.9  Warranties as to capacity

Each party represents and warrants to the other that:

1. (a)  it has full power and authority to execute this Agreement and observe and perform all of its obligations herein;
2. (b)  it is not aware of any thing, matter, or circumstance that may prevent it from fulfilling its obligations under this Agreement; and
3. (c)  it is not insolvent and no receiver, receiver and manager, provisional liquidator, liquidator, or other officer of the court has been appointed in relation to all or any of its affairs or material assets.

24.10  Operation of this document

1. (a)  This document contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect.
2. (b)  Any right that a person may have under this document is in addition to, and does not replace or limit, any other right that the person may have.
3. (c)  Any provision of this document which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this document enforceable, unless this would materially change the intended effect of this document.

24.11  Inconsistency with other documents

If this document is inconsistent with any other document or agreement between the parties, this document prevails to the extent of the inconsistency.

24.12  Reliance

Neither party has entered into any contract under this Agreement in reliance on or as a result of any representation, promise, statement, conduct or inducement by the other otherwise than as set out in this Agreement.

24.13  Counterparts

This Agreement may be agreed to in any number of counterparts including where they are exchanged by email containing this Agreement as an unalterable attachment. All counterparts together will be taken to constitute one instrument.

24.14  Consents

Where this Agreement states that our consent or approval is required, we may:

1. (a)  give or withhold that consent or approval in our absolute discretion; and
2. (b)  give that consent or approval subject to conditions, unless this Agreement expressly states otherwise.

24.15  Liability of parties

If a party consists of more than one person:

1. (a)  an obligation of that party is a joint obligation of all of those persons and a several obligation of each of them;
2. (b)  a right given to that party is a right given jointly and severally to each of those persons, and if exercised by one of them, is deemed to be exercised jointly; and
3. (c)  a representation, warranty or undertaking made by that party is made by each of those persons.

24.16 Survival

The obligations set out under clauses 5, 7, 8, 9, 11, 12, 14, 15, and 22 survive termination of this Agreement.

24.17 Governing law

The laws of Queensland, Australia govern this Agreement. The parties submit to the non exclusive jurisdiction of courts exercising jurisdiction there.