CONSOLIDATED GROUP (NON-MEC GROUP) TSA USER AGREEMENT Dated CORNWALL STODART LAWYERS PERSON SPECIFIED IN THE ORDER FORM (OVERLEAF) CORNWALL STODART Level 10 114 William Street DX 636 MELBOURNE VIC 3000 Telephone: 9608 2000 Facsimile: 9608 2222 Reference:
CONSOLIDATED GROUP TSA USER AGREEMENT DATED 2012 BETWEEN AND CORNWALLS LAWYERS PTY LTD ACN 120 152 123 of Level 10, 114 William Street, Melbourne, Victoria, 3000 (Licensor) PERSON SPECIFIED IN THE ORDER FORM (OVERLEAF) (You) or (Licensee) BACKGROUND A B The Licensor is the owner of the Intellectual Property. The Licensor licenses the Licensee to use the Intellectual Property on the terms and conditions of this Licence. OPERATIVE PROVISIONS 1 DEFINITIONS AND INTERPRETATION 1.1 Definitions In this Licence, unless the contrary intention appears: Annual Fee means the fee of $6,160 paid by the Licensee in consideration of the Licensor providing an Annual TSA to the Licensee. Annual TSA means a licence for the Licensee to use the TSA without limit for the Licensee s clients within a period of 12 months of payment of the Annual Fee. Annual Update Fee means the fee of $1,950 paid by the Licensee in consideration of the Licensor providing an Annual Update TSA to the Licensee. Annual Update TSA means a licence for the Licensee to use the Update TSA. Cleared Funds means, if the Licensee pays the Fee by credit card, an approval by the Licensor s merchant facility provider, if the Licensee pays the Fee by cheque, receipt by the Licensor of Cleared Funds, or if the Licensee pays the Fee by cash, when the Licensor receives the cash. Consolidated Group has the meaning given to it in sections 703-5 and 703-15 of the Income Tax Assessment Act 1997 (Cth) (ITAA 1997). Fee means Single Fee, Single Update Fee, Multiple Fee, Multiple Update Fee, Annual Fee or Annual Update Fee.
2 Intellectual Property means the TSA and any amendments and/or variations to the TSA. Licence means this Licence Agreement. Multiple Fee means the fee of $2,600 for the use of the TSA for up to 5 Consolidated Groups or $3,700 for the use of the TSA for up to 10 Consolidated Groups, paid by the Licensee in consideration of the Licensor providing a Multiple TSA to the Licensee. Multiple TSA means a licence to use the Multiple TSA for up to the multiple uses paid. Multiple Update Fee means the fee of $785 to use the Multiple Update TSA for up to 5 Consolidated Groups or the fee of $1,170 to use the Multiple Update TSA for up to 10 Consolidated Groups, paid by the Licensee in consideration of the Licensor providing a Multiple Update TSA. Multiple Update TSA means a licence to use the Update TSA for the Licensee s clients for up to the multiple uses paid. Order means an order for a Single TSA, Single Update TSA, Multiple TSA, Multiple Update TSA, Annual TSA or Annual Update TSA (including the User Licence) which is sent by the Licensee electronically, by telephone or by post and accepted by the Licensor. Purchase means to obtain a TSA and/or Update TSA upon the Licensee paying the Licensor the respective fee with Cleared Funds. Single Fee means the fee of $1,950 paid by the Licensee in consideration of the Licensor providing a Single TSA to the Licensee. Single TSA means a licence to use the TSA once for the Single Fee. It can only be used for one Consolidated Group. Single Update Fee means the fee of $600 paid by the Licensee in consideration of the Licensor providing a Single Update TSA to the Licensee. Single Update TSA means a licence to use the Update TSA once for the Single Update Fee. TSA is the Licensor s proforma Tax Sharing Agreement that is the subject of this Licence Agreement and is licensed to the Licensee. Update TSA means the most current TSA prepared by the Licensor. 1.2 Interpretation In this Licence, unless the contrary intention appears: 1.2.1 headings are for convenience and do not affect interpretation; 1.2.2 any reference to a clause is a reference to a clause of this Licence, and references to this Licence include the Order and any order form, schedule, annexure, appendix or the like. 1.2.3 a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
2 CONSIDERATION 3 1.2.4 any reference to $ is to the lawful currency for the time being of the Commonwealth of Australia; 1.2.5 where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; 1.2.6 the singular includes the plural and vice versa; 1.2.7 the masculine includes the feminine and neuter genders; 1.2.8 the word person includes a firm, a body corporate, an unincorporated association or an authority; 1.2.9 a reference to a person includes a reference to the person s executors, administrators, successors, substitutes (including, but not limited to, persons taking by novation) and assigns; 1.2.10 the words include, including, for example, such as or cognate expressions are to be construed without limitation; and 1.2.11 where any time period is required to be calculated from a specified date, that date is not to be included in the calculation. In consideration of the Licensee forwarding a completed Order to the Licensor electronically, by telephone or by post the Licensee is taken to have accepted the terms of this Licence on the day the Order is accepted by the Licensor. The Licensor is taken to have accepted the Order on the day the Licensor receives Cleared Funds. 3 LICENCE 3.1 Grant of Licence The Licensor grants the following non-transferable Licence to the Licensee: 3.1.1 Single TSA, if the Licensee pays the Single Fee with Cleared Funds; 3.1.2 Single Update TSA, if the Licensee has previously purchased a Single TSA from the Licensor and pays the Single Update Fee with Cleared Funds; 3.1.3 Multiple TSA, if the Licensee pays the Multiple Fee with Cleared Funds; 3.1.4 Multiple Update TSA, if the Licensee has previously purchased a Multiple TSA from the Licensor and pays the Multiple Update Fee with Cleared Funds; 3.1.5 Annual TSA, if the Licensee pays the Annual Fee with Cleared Funds; and/or 3.1.6 Annual Update TSA, if the Licensee has previously purchased an Annual TSA from the Licensor and pays the Annual Update Fee with Cleared Funds.
4 3.2 Terms and Conditions By ordering and/or using the TSA the Licensee agrees to be bound by the terms of this Licence Agreement. 3.3 Completion of TSA The execution page and schedules of the TSA must be completed by the Licensee for use by the Consolidated Group for which the TSA is being prepared. 3.4 Citation of TSA If this Licence is for a Multiple TSA or Annual TSA, each copy of the TSA the Licensee makes must cite the original TSA as the source of that copy and the Licensee must not remove any copyright or credit notice included in the original TSA sent to the Licensee. 4 LICENCE FEE PAYMENT 4.1 Electronic or manual purchases of a Single TSA, Single Update TSA, Multiple TSA, Multiple Update TSA, Annual TSA or Annual Update TSA must be made by the methods offered by the Licensor in the order form unless otherwise expressly agreed to. 4.2 The Licensor will hand-deliver, email or post to the Licensee a TSA for use subject to the terms of this Licence within 24 hours of the Licensor receiving Cleared Funds. 5 PERMITTED USE OF ANNUAL TSA 5.1 Annual TSA can be used for the Licensee s clients without limit within a period of 12 months of payment of the Annual Fee. 5.2 Annual TSA can be used to update previous agreements prepared by the Licensee under any previous Annual TSA. 6 PERMITTED USE OF SINGLE UPDATE TSA Single Update TSA can only be used for the Consolidated Group for which the Single TSA previously purchased by the Licensee was used. 7 PERMITTED USE OF MULTIPLE UPDATE TSA 7.1 Subject to Clause 7.2, the Multiple Update TSA can only be used for the Consolidated Group(s) for which the Multiple TSA previously purchased by the Licensee was used. 7.2 If the Multiple TSA has not been used for all allocated uses, the Multiple Update TSA may be used for other Consolidated Group(s) for the amount of the unused allocations. 8 PERMITTED USE OF ANNUAL UPDATE TSA 8.1 Subject to clause 8.2, the Annual Update TSA can only be used for the Consolidated Group(s) for which the Annual TSA previously purchased by the Licensee was used.
5 8.2 If the Annual TSA, previously purchased by the Licensee, has not been used for the full 12 month period, the Annual Update TSA may be used for other Consolidated Group(s) for the remainder of that period. 9 RESTRICTIONS ON USE Except as expressly permitted under this Agreement, the Licensee must not: 9.1 convert the TSA into an electronic format other than the one in which it was supplied; 9.2 merge the TSA with any other document; 9.3 rent, lend, sell, or otherwise supply the TSA to any person other than Consolidated Groups who are the Licensee s clients and for whom the TSA is being prepared; and/or 9.4 sub-license, assign, novate or otherwise transfer the Licensee s rights under this Licence. 10 LICENSEE S OBLIGATIONS 10.1 The Licensee is not to prejudicially affect or contest the ownership of the Intellectual Property. 10.2 The Licensee acknowledges that it is responsible for: 10.2.1 Obtaining its own independent advice on the suitability of the TSA for the Licensee s purposes; and 10.2.2 Utilising the TSA in an appropriate manner. 10.3 The Licensee must use all reasonable endeavours to procure that any third party to whom it discloses the TSA shall comply with the terms and conditions of this Licence. 11 OWNERSHIP OF INTELLECTUAL PROPERTY 11.1 The TSA is protected by copyright owned by the Licensor. 11.2 The Licensee does not acquire ownership of copyright or other intellectual property rights in any part of the TSA by virtue of this Licence. 12 WARRANTIES AND LIMITATION ON LIABILITY 12.1 Licensor s Warranties The Licensor hereby warrants and represents to the Licensee as follows: 12.1.1 It is the absolute owner, free from any security or third party interest, of all intellectual property rights in and to the Intellectual Property. 12.1.2 The Intellectual Property is owned by the Licensor and the use thereof in accordance with the terms of this Licence by the Licensee does not and will not infringe any proprietary rights of any third party. As at the date of this Licence, the Licensor represents that it has not received any notice or claim from a third party alleging that the Intellectual Property to be provided by
6 the Licensor infringes any intellectual property rights of such third party. 12.1.3 The Licensor has the full power to enter into this Licence, to carry out its obligations under this Licence and to grant the rights and licences granted to the Licensee in this Licence. 12.2 No Licensor s Warranties The Licensor makes no warranties under this Licence Agreement, including without limitation, any warranty that: 12.2.1 the TSA is or will be complete or free from all errors; 12.2.2 information will continue to be available to the Licensor to enable the Licensor to keep the TSA up-to-date; and/or 12.2.3 the Licensor will give notification to the Licensee of changes and amendments to legislation and accounting standards affecting the operation of the TSA. 12.3 Limitations to Liability To the maximum extent permitted by law, the Licensor excludes all liability for all claims, expenses, losses, damages and costs made against or incurred or suffered by the Licensee directly or indirectly (including without limitation lost costs, profits and data) arising out of: 12.3.1 the Licensee s use or misuse of the TSA; 12.3.2 the Licensor s negligence or the negligence of its employees, contractors or agents, in connection with the performance of the Licensor s obligations under this Licence; and/or 12.3.3 any failure, or any use or misuse, of telecommunication and/or internet services. 12.4 The Licensee s Warranties The Licensee hereby warrants and represents to the Licensor as follows: 12.4.1 If purchasing a Single Update TSA the Licensee warrants that the Licensee has previously purchased a Single TSA or Single Update TSA. 12.4.2 If purchasing a Multiple Update TSA the Licensee warrants that the Licensee has previously purchased a Multiple TSA or Multiple Update TSA. 12.4.3 If purchasing an Annual Update TSA the Licensee warrants that the Licensee has previously purchased an Annual TSA or Annual Update TSA. 12.4.4 That the Licensee will use the TSA in accordance with the provisions of the ITAA 1997 and will not use it for or in connection with an arrangement, the purpose of which is to prejudice the recovery by the Commissioner of Taxation of some or all of the relevant tax liability of the head entity of the Consolidated Group as defined in section 721-10 of the ITAA 1997.
7 13 TERM AND TERMINATION 13.1 Term This Licence continues in full force and effect unless and until terminated under clause 13.2. 13.2 Termination by Breach 14 RECORD KEEPING A party (first party) may terminate this Licence if the other party breaches any provision of this Licence and fails to rectify that breach within 30 days after notice of that breach from the first party requesting that breach be remedied is given by the first party to the other party. The Licensee must keep adequate records in sufficient detail to enable the Licensee s compliance with this Licence to be verified. Auditors appointed by the Licensor may examine these records at any time during the Licensee s usual business hours. 15 JURISDICTION This Licence is governed by the law in force in the State of Victoria. Each party submits to the non-exclusive jurisdiction of the courts of Victoria. 16 AMENDMENT This Licence may only be amended by a document duly executed by the parties. By clicking Continue I accept the terms and conditions of the Licence.