SuperGuard 360 Service Terms & Conditions
1. How do we join up and on what basis?
To use the SuperGuard360 service provided by Professional Standards Mutual (ABN 79 162 287 729 and Authorised Representative number 473314) ("PSM", "we", "our" or "us"), your Self-Managed Super Fund ("Fund") must subscribe for the service ("Service") by following the registration prompts in the section titled "Register" on our website www.psm.com.au ("Website").
On successfully registering your Service subscription you will be issued a username and password which are required to access the Service and must be kept confidential.
By subscribing for the Service on behalf of your Fund, you agree that your Fund is bound by, and you represent that you have the authority to bind, your Fund to the terms and conditions set out in this document ("Terms"). References to "you" or "your" shall refer to you acting on behalf of your Fund or your Fund as the context requires.
2. Authorised users and use of SuperGuard360
Your subscription for the Service includes access for up to 4 other authorised users you elect (Authorised Users). Authorised users may be added or removed via our website. Each of the Authorised Users will be issued a username and password which they will require to access the Service and must keep confidential. You, and the Authorised Users, may only use the Service on behalf of the Fund. The Authorised Users must not do anything which is prohibited by, or omit to do anything required by, these Terms and you must procure that the Authorised Users are aware of, and comply with, these Terms.
3.1 Annual registration fee
You are required to pay the annual fee specified on www.superguard360.com.au and or www.psmutual.com.au ("Annual Fee"), on the date you register ("Registration Date") to use the Service and, if you want to continue to use the Service, on or before each renewal date thereafter. The Annual Fee entitles you to use the Service for the 12 month period commencing on the Registration Date or the 12 month period commencing on each renewal date (as applicable) ("Renewal Period"), unless your subscription is terminated in accordance with these Terms. We will contact you at least 60 days prior to each registration renewal date in order to confirm that you wish to renew your subscription and issue an invoice for the Annual Fee payable by the anniversary of your Registration Date. Please note that the Annual Fee may change from time to time.
All fees must be paid in Australian Dollars by electronic transfer, credit card or cheque.
Notwithstanding any other term of these Terms, if PSM does not receive the Annual Fee in cleared funds, then the Registration Date or Renewal Period (as applicable) shall not commence until PSM has received the fee in cleared funds.
For payments made by credit card, you authorise us to process payments to that credit card for all registration fees, unless you cancel your registration with effect from the next renewal.
If we agree with you to provide additional services not covered by the Service, we will agree separate fees with you in relation to those matters at the time.
Under these Terms,
- Any consideration or amount payable under the Terms, including any non-monetary consideration ("Consideration") is exclusive of GST.
- If GST is or becomes payable on a Supply made under or in connection with the Terms, an additional amount ("Additional Amount") is payable by the party providing consideration for the Supply ("Recipient") equal to the amount of GST payable on that Supply as calculated by the party making the Supply ("Supplier") in accordance with the GST Law.
- The Additional Amount payable under term 3.3(b) is payable without set off, demand or deduction at the same time and in the same manner as the Consideration for the Supply, and the Supplier must provide the Recipient with a Tax Invoice within 10 Business Days after the time of payment of the Additional Amount.
- If for any reason the amount of GST payable on a Supply made under or in connection with these Terms (taking into account any decreasing or increasing adjustments in relation to the Supply) varies from the Additional Amount payable by the Recipient under term 3.3(b):
- the Supplier must provide a refund or credit to the Recipient, or the Recipient must pay a further amount to the Supplier, as appropriate;
- the refund, credit or further amount (as the case may be) will be calculated by the Supplier in accordance with the GST Law; and
- the Supplier must notify the Recipient of the refund, credit or further amount within 10 Business Days after becoming aware of the variation to the amount of GST payable. Any refund or credit must accompany such notification or the Recipient must pay any further amount within 7 days after receiving such notification, as appropriate.
- Despite any other term in these Terms:
- if an amount payable under or in connection with these Terms (whether by way of reimbursement, indemnity or otherwise) is calculated by reference to an amount incurred by a party, whether by way of cost, expense, outlay, disbursement or otherwise ("Amount Incurred"), the amount payable must be reduced by the amount of any Input Tax Credit to which that party is entitled in respect of that Amount Incurred; and
- no Additional Amount is payable under term 3.3(b) in respect of a Supply made under or in connection with these Terms to which section 84-5 of the GST Law applies.
- Any reference in this term to an Input Tax Credit to which a party is entitled includes an Input Tax Credit arising from a Creditable Acquisition by that party but to which the Representative Member of the GST Group of which that party is a Member is entitled.
4. Scope of Services
- The Service includes both online and phone support as outlined on our Website. As part of our continual development program, the services comprising the Service may change, and we reserve the right to vary the Services, from time to time. Any variation of these Terms will be effective upon us giving you 60 days' prior notice. If any changes are materially adverse to you, you may terminate your use of the Service by giving us written notice within 30 days of receiving notice of the variation of these terms. Upon termination in accordance with this clause 4(a), you will receive a pro-rata refund of the Annual Fee based on the portion of the 12 month subscription period still remaining.
- Subject to the absolute discretion of PSM, you will not be permitted to use the Service in respect of any fact, matter or circumstances arising prior to the Registration Date or resulting from the same,that you would have been aware of, or ought to have been reasonably aware of, as at the Registration Date.
- You acknowledge and agree that any financial product advice provided through the Service will only be general financial product advice which has been prepared without taking into account your particular objectives, financial situation or needs. Accordingly, you agree to accept full responsibility for any decision you make after using the Service.
5. Service availability and security
All our servers are managed in a secure environment. However, from time to time, delays or interruptions may occur in respect of the Services. You acknowledge that we will not owe any liability to you for any such delay in providing, or interruptions to, the Service.
6. No fiduciary and no agency
You acknowledge and agree that:
- PSM will act solely as an adviser to you on an arms' length basis pursuant to these Terms;
- PSM does not owe any fiduciary duty in relation to the provision of the Services, whether to you, or to your directors, management, beneficiaries, security holders, creditors, future administrators, receivers, liquidators, or any other person (as applicable);
- you are solely responsible for making an independent judgment with respect to the Service, and any other matters relating to the Service;
- PSM will not act as your agent and will not hold itself out as your agent in connection with the Service, except in relation to specific matters which are defined expressly in writing by you and agreed to by PSM; and
- PSM will act as an adviser and must not be represented or held out by any person as an agent with any authority, actual or apparent, to bind you or to represent you in any agency capacity, except with PSM's express agreement in writing in relation to specific matters.
7. Your responsibilities
You acknowledge that the Service is dependent on the timely and full disclosure of all relevant information which must be true, accurate, complete and not misleading. Otherwise, the Service may be materially adversely affected. Accordingly, you agree that:
- you will provide PSM, its management and auditors and any other advisers with full and free access to your information and business records, as PSM may reasonably request in relation to the Service;
- you will promptly provide PSM with all information that is relevant to the provision of Service by PSM;
- you will keep your "My Investment Register" and "My Service Provider Registers" which are located on the secured pages of our Website that you and your Authorised Users can access.
- in respect of such information which has been supplied to PSM, you warrant and undertake to PSM that you have not obtained such information other than by lawful means and disclosure to PSM will not breach any agreement or duty of confidentiality owed to third parties;
- all information provided by you to PSM will be true, complete, accurate and not misleading, in all respects and we may rely on all information provided by you without any obligation to verify its accuracy or completeness;
- you will inform PSM promptly if any material advice or information provided by you, or on your behalf, ceases to be true, accurate, complete or not misleading, and will keep PSM informed of any material developments or proposals in relation to your business or operations that would likely affect the Service;
- if any advice or information provided to PSM by you or your professional advisers is untrue, inaccurate, incomplete or misleading, PSM will not be liable for any advice or services provided on the basis of such information;
- you will comply with all applicable laws and regulatory requirements in connection with the Service and will promptly notify PSM of any issues arising in connection with such laws and regulatory requirements during the term of the Service; and
- your accounting and legal advisers are responsible for advising on the accounting treatment and taxation and stamp duty consequences of the Service, the validity and enforceability of any agreements entered into relation to the Service and compliance with all legal and regulatory requirements relating to the Service. PSM will not be responsible for any of these matters.
8. Discretionary Compensation
- We may, in our absolute discretion, enter into arrangements with a self-managed super fund that has subscribed for the Service and has while eligible to use the Service suffered a Prescribed Loss (Qualifying Fund).
- You acknowledge that:
- where in our absolute discretion we enter into an arrangement referred to in clause 8(a), we will fund any payment made to a Fund under that clause and give no undertaking or representation that the extent of any payment will be equal to the total Prescribed Loss incurred; and
- there is no guarantee that even if your Fund is a Qualifying Fund that suffers a Prescribed Loss that you will receive any compensation from us.
- When exercising its discretion, we will take into account the specific circumstances of each Qualifying Fund and the extent of the Prescribed Losses suffered and seek to help Qualifying Funds who are, or whose beneficiaries are, the worst affected by the relevant circumstances.
9. Confidentiality and use of information
PSM will take all reasonable steps to preserve and protect the confidentiality of any material non-public confidential information obtained from you in relation to the Service, and will not use such information other than in connection with the provision of the Service to you.
However, PSM will:
- be free to make disclosures or announcements required by any law, regulation or order of a court or pursuant to an order, requirement or request of a regulatory body having authority over PSM, or pursuant to governmental action, or necessary in our view to seek to establish any defence in any legal proceeding or investigation or otherwise to comply with its own regulatory obligations;
- not be obliged to treat any information as confidential which is in the public domain when given, or which later comes into the public domain (otherwise than by breach of these Terms);
- be free to make any disclosure if you consent to such disclosure;
- be free to disclose such information to other members of the Rainmaker Group on the basis that such persons preserve and protect its confidentiality; and
- be free to make any disclosure to its professional advisers subject to those advisors agreeing to keep such information confidential.
Our obligations to treat information as confidential will, to the extent that it relates to confidentiality within PSM, be treated as discharged if no employee or executive, other than those employees or executives of PSM who may properly have access to such information without breaching PSM's internal procedures, actually has access to such information.
The Rainmaker Group shall not have any duty to disclose to you, or utilise for your benefit, any non-public information acquired in the course of providing services to any other person, engaging in any transaction (on its own account or otherwise) or otherwise carrying on its business.
10. Conflicts of Interest
- PSM, along with other members of the Rainmaker Group, in their capacity as principal or agent, carry on a wide range of commercial activities. It is possible that PSM or another member of the Rainmaker Group may be providing, or may in the future provide, financial or other services to other parties with conflicting interests to you.
- The Rainmaker Group has in place various procedures to effectively manage and deal with conflicts of interest. These include the day to day monitoring of conflicts of interests by a designated compliance officer, systematic reporting to the board of compliance matters and providing semi-annual risk and compliance reports to the board. If a conflict is considered to be material, it is recorded in the Rainmaker Group conflicts register. If the Rainmaker Group's compliance officer determines that there is no appropriate treatment measure available to adequately mitigate the conflict, the conflict is deemed to be unmanageable and must, and will, be avoided.
- The Rainmaker Group may also establish Chinese wall arrangements among its various divisions and business groups. You agree that these divisions and business groups of the Rainmaker Group may conduct their business without regard to your interests with respect to the Service.
- PSM reserves the right to terminate your Service subscription, with immediate effect, at any time if:
- you do not pay the Annual Fee;
- you breach any of these Terms; or
- you or your Fund suffer an Insolvency Event.
- You can terminate at any time by giving 7 Business Days' notice. Any notice to terminate the Service shall be in writing and signed by or on behalf of you and shall take effect on the later of the date it is received by PSM and the date specified in the notice.
11.2 Deemed Termination
Where you have indicated that you no longer wish to receive the Service, or otherwise suspend the Service, or where it is reasonable in the circumstances for PSM to conclude that you no longer wish to subscribe for the Service, you shall be deemed to have given written notice terminating the Service ("Deemed Termination"). PSM may, but is not obliged to, give written notice to you that Deemed Termination has occurred.
You agree that the terms and conditions relating to fees, confidentiality and use of information remain operative regardless of the termination of the Service.
11.4 Fees following termination
Notwithstanding any other provision of these Terms, other than clause 4.1(a):
- if the Service is terminated or suspended by either party (or there has been a Deemed Termination), PSM shall be entitled to receive or retain any amounts that have been paid or are due and payable to PSM by way of fees for the Service; and
- if you terminate or suspend the Service (or there has been a Deemed Termination), unless you terminate in connection with a material breach of these terms by PSM, PSM will be entitled to all fees set out in term 3.
12. Limitation of liability and indemnity
- This section 12 applies to the maximum extent permitted by law. This section 12 sets out, and you accept, the limitations which apply to PSM's liability to you should you or any other person, have reason to make a claim against PSM. The limitations and exclusions are accepted by you and PSM to be fair and reasonable, given the Service PSM is providing, the fees to which PSM is entitled and the circumstances in which those fees are payable.
- You acknowledge and agree that the Service will be provided by PSM and to the maximum extent permitted by law your only recourse is to PSM. All correspondence and written advice will be the advice of PSM and not the advice of its directors, officers, employees, agents or consultants in their personal capacity.
12.2 Limitation of liability
- No member of the Rainmaker Group nor their directors, officers, employees, agents or consultants in their personal capacity ("together the Indemnified Persons") shall be liable on any account for any consequential, special or indirect damages, economic loss, loss of profits or opportunities suffered or incurred by you, however caused, arising out of or in connection with the Service or information provided by PSM (including the information provided on the Website).
- You agree to hold harmless each Indemnified Persons against, and that each Indemnified Person shall not be liable to you in relation to, any Losses, however caused, arising directly or indirectly from, or in connection with the Service, or PSM's activities contemplated in the provision of the Service, other than gross negligence.
- All express or implied guarantees, warranties, representations, or other terms and conditions relating to these Terms or their subject matter, not contained in these Terms, are excluded to the maximum extent permitted by law. Nothing in these Terms excludes, restricts or modifies the application of the provisions of any statute (including the Australian Consumer Law and the ASIC Act) where to do so would contravene that statute (a Non-Excludable Provision). If PSM is liable for breach of a Non-Excludable Provision, and PSM is able to limit your remedy for such breach, PSM's liability is limited to the supply of the services again, or the payment of having services supplied again, whichever PSM, in its absolute discretion, elects.
- You agree that if you enter into an agreement with another person excluding or limiting the liability of that person in connection with the Service, PSM is not to be prejudiced by such agreement, and if any net liability of PSM is increased as a result, you will, without prejudice to your other obligations under this term 12, indemnify PSM to such extent.
12.3 Scope of limitation of liability
- If we are grossly negligent or any of the limitations of liability and indemnities set out above are not effective, or do not apply or are not available to any Indemnified Person (for any reason whatsoever), you acknowledge and agree that the maximum liability of the Indemnified Persons in aggregate will not exceed an amount equal to $10,000.
- The limitation of liability and indemnity in clauses 12.2 and 12.3 do not apply to Losses to the extent that they have been determined by a final judgment of a court of competent jurisdiction to have been caused directly by the recklessness, wilful misconduct or fraud of PSM or its members.
PSM will comply with all applicable legal and regulatory provisions in connection with the Service.
- Unless expressly stated otherwise in these Terms, a notice or other communication given under these Terms including, but not limited to, a notice of change, demand, consent or termination, to PSM or to you ("Notice"):
- must be in legible writing and in English;
- if to PSM, it must be must be signed by the sender (if an individual) or an Officer of the sender and addressed to PSM at the address or email address set out below or to any other address or email address as notified by PSM:
Address: Level 7 55 Clarence Street
Attention: Managing Director
Email: [email protected]
if to you, it must be sent by email to the email address provided by you when you subscribed for the Service,
and it is deemed to be received by the addressee in accordance with clause 13.2(b).
- Without limiting any other means by which the sender may be able to prove that a Notice has been received by the addressee, a Notice is deemed to be received:
- if delivered by hand, when delivered to the addressee;
- if sent by post, on the 3rd Business Day after the date of postage, or if to or from a place outside Australia, on the 7th Business Day after the date of postage; or
- if sent by email:
- when the sender receives an automated message confirming delivery; or
- 5 hours after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered,
whichever happens first,
but if the delivery or receipt is on a day which is not a Business Day or is after 5.00 pm (addressee's time) it is deemed to be received at 9.00 am on the following Business Day.
- Notices sent by email:
- must state the first and last name of the sender; and
- are taken to be signed by the named sender.
These Terms may only be varied in accordance with the procedure outlined in term 4.
The rights and obligations of each party under these Terms may only be assigned by, or with, our written consent.
13.5 Waiver & Non-Enforcement
- The waiver by any party of a breach of any of these Terms shall not be construed as a waiver of any succeeding breach or as a waiver of a provision of these Terms.
- The failure of a party, at any time, to require performance by the other party of any provision shall not affect that party's right to require such performance at any time in the future.
13.6 Entire agreement and understanding
These Terms set out the entire agreement and understanding between PSM and you in connection with the Service, and supersede all previous agreements (if any) between the parties relating to the Service. Each party acknowledges that, subscribing for the Service and agreeing to these Terms, it has not relied on any express or implied, oral or written representation, collateral contract, warranty or other assurance (except as provided for or referred to in these Terms) and waives all rights and remedies which might otherwise be available to it in respect thereof, except that nothing in these Terms will limit or exclude any liability of a party for wilful misconduct, misleading or deceptive conduct or fraud. Except as required by statute, no terms shall be implied into these Terms.
13.7 Applicable Law
These Terms are governed by the laws of the State of New South Wales, Australia. Both parties irrevocably submit to the exclusive jurisdiction of the Courts of New South Wales.
Each provision of these Terms is severable. If any provision of these Terms is found to be illegal, wholly or partly invalid or otherwise unenforceable then, from the date of the invalidity, illegality or unenforceability if the offending provision can be read down to make it legal, valid and enforceable without materially changing its effect, it must be read down to the extent necessary to achieve that result and otherwise the offending provision must be severed from these terms and conditions and the remaining provisions shall operate as if the severed provision had not been included.
14. Definitions and Interpretation
Annual Fee has meaning given to it in term 3.1.
Authorised Users has the meaning given to it in term 2.
Business Day means a day on which banks are open for business excluding Saturdays, Sundays and public holidays in Sydney, Australia.
Corporations Act means the Corporations Act 2001 (Cth).
Fund means your Self-Managed Super Fund.
Insolvency Event means the occurrence of any one or more of the following events in relation to any person:
- an application is made to a court for an order, or an order is made, that it be wound up, declared bankrupt or that a provisional liquidator or receiver or receiver and manager be appointed, and the application is not withdrawn, struck out or dismissed within 15 Business Days of it being made;
- a liquidator or provisional liquidator is appointed;
- an administrator is appointed to it under sections 436A, 436B or 436C of the Corporations Act;
- a Controller (as defined in section 9 of the Corporations Act) is appointed to it or any of its assets;
- a receiver is appointed to it or any of its assets;
- it enters into an arrangement or composition with one or more of its creditors, or an assignment for the benefit of one or more of its creditors, in each case other than to carry out a reconstruction or amalgamation while solvent;
- it proposes a winding-up, dissolution or reorganisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors;
- it is insolvent as disclosed in its accounts or otherwise, states that it is insolvent, is presumed to be insolvent under an applicable law (including under sub-section 459C(2) or section 585 of the Corporations Act) or otherwise is, or states that it is, unable to pay all its debts as and when they become due and payable;
- it is taken to have failed to comply with a statutory demand as a result of sub-section 459F(1) of the Corporations Act;
- a notice is issued under sections 601AA or 601AB of the Corporations Act and not withdrawn or dismissed within 15 Business Days;
- a writ of execution is levied against it or a material part of its property which is not dismissed within 15 Business Days being for an amount of in excess of $20,000;
- it ceases to carry on business or threatens to do so; or
- anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the events set out in the above paragraphs of this definition.
Losses means all liabilities, losses, costs (on a full indemnity basis), expenses (including executive time at usual charge out rates) and damages, including but not limited to full legal costs, arising directly or indirectly from or in connection with the Service, PSM's activities contemplated with respect to the Service, any Proceedings and any liability for any taxes (including any GST liability, net of any Input Tax Credits) in respect of any of the foregoing.
Officer means, in relation to a body corporate, a director or secretary of that body corporate.
Prescribed Loss means a loss in the value of a financial product held by the relevant Fund that satisfies all of the following criteria:
- relates to the period commencing after the investment has been held by the Fund, and noted as being continually held by the Fund in its "My investment Register", for 12 consecutive months; and
- relates to an investment to which the Fund's "My Service Provider Investment Register" accurately listed all service providers providing services or advice to you or the Fund in connection with the investment within 10 Business Days of recording the investment in the Qualifying Fund's "My Investment Register" and any subsequent changes to such service providers (including the engagement of a new service provider) were recorded within 10 Business Days of the relevant change occurring;
- was not caused or contributed to by, the relevant Fund or a person acting for, on behalf of, or on the instruction of, the relevant Fund; and
- which the relevant Fund was unable to successfully obtain compensation for by mediation or any another other legal process, reasonably undertaken.
Qualifying Fund has the meaning given in clause 8.1(a).
Proceedings means proceedings of any nature or kind and Includes the investigation of, preparation for, response to or negotiation of any claim or demand, defence of, bringing of, or appearance as a witness or in any other capacity in, any actual or potential claim or counter-claim, action, inquiry, investigation or other proceeding in relation to the Service or any other matter relating to PSM (whether or not a member of PSM is a party), any proceeding before any court or administrative body and any inquiry, investigation or examination by any regulator.
PSM means Professional Standards Mutual (ABN 79 162 287 729).
Rainmaker Group means the group formed by Professional Standards Mutual (ABN 79 162 287 729), Rainmaker Information (ABN 86 095 610 996), Financial Standard Pty Ltd (ABN 57 604 552 874) and Data Management & Integrity Systems (ACN 162 287 729).
Registration Date has the meaning given in clause 3.1.
Renewal Period has the meaning given to it in term 3.1.
Service means the SuperGuard360 service provided by Professional Standards Mutual.
Tax means a tax, levy, charge, impost, fee, deduction, compulsory loan or withholding any nature, including, without limitation, any goods and services tax (including GST), value added tax or consumption tax, which is assessed, levied, imposed or collected by a Government Agency, except where the context requires otherwise. This includes, but is not limited to, any interest, fine, penalty, charge, fee or other amount imposed in addition to those amounts, but excludes Duty.
Terms has the meaning given to it in term 1.
Website means www.psm.com.au.
In these Terms, the following rules of interpretation apply unless the contrary intention appears:
- headings are for convenience only and do not affect the interpretation of the Terms;
- the singular includes the plural and vice versa;
- where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
- the word 'including' and similar expressions are not used as, nor are intended to be, interpreted as words of limitation;
- a reference to:
- a person includes a natural person, partnership, joint venture, government agency, association, corporation or other body corporate;
- a company includes that company's employees, officers, agents, contractors, suppliers and sub-contractors;
- a party includes its successors and permitted assigns;
- a term or party is a reference to a term of, or party, to these Terms;
- a law includes:
and is a reference to that law as amended, consolidated, replaced, overruled or applied to new or different facts;
- any constitutional provision, treaty, decree, statute, regulation, by-law, ordinance or instrument;
- any order, direction, determination, approval, requirement, licence or licence condition made, granted or imposed under any of them;
- any judgment; and
- any rule or principle of common law or equity,
- an agreement other than these Terms includes an undertaking, or legally enforceable arrangement or understanding, whether or not in writing; and
- when the day on which something must be done is not a Business Day, that thing must be done on the following Business Day.