Terms and Conditions
Holley Nethercote Pty Ltd (ACN 068 367 046) trading as Holley Nethercote Compliance agrees to provide access to this site and the HN Hub, and the Services to the Subscriber, on the following terms and conditions (the Terms).
By accessing the HN Hub or using the Services, you agree to be bound by these Terms. These Terms constitute a binding agreement between you and us and govern your use of this site, the HN Hub and the Services. If you do not agree to these Terms, then you must not access or use this site, the HN Hub or any of its Services.
NOTE: You must scroll to the end of these terms and conditions to accept that you have read and understood them.
1. Definitions and Interpretation
In these Terms, unless inconsistent with the context:
(a) AFSL means Australian Financial Services Licensee.
(b) Agreement means the:
(ii) Accepted Application Form; and
(iii) Direct Debit Request Service Agreement.
(c) Accepted Application Form means an Application Form in respect of which we have issued a Subscription Confirmation.
(d) Application Form means the online subscription form accessed through this site and completed by you.
(e) Business Day means a day other than a Saturday or Sunday, public holiday or bank holiday in Melbourne, Victoria.
(f) Commencement Date means the date on which you first are provided access to the HN Hub or use the Services.
(g) Commitment Period means in respect of a Subscription, the period of time specified in a Subscription Confirmation or an agreement between you and us to vary a Subscription as the “Commitment Period” and if no such period of time is specified:
(i) for any Subscription that includes access to User Documents – 18 months starting on whichever is the later of:
(A) the date specified in the Accepted Application Form as the first day of the Subscription, and
(B) the date the first Subscriber Fee is paid; or
(ii) for any Subscription that is taken up in connection with you engaging us to assist you in applying for a new Australian Financial Services Licence or new Australian Credit Licence in circumstances where:
(A) you are a corporate authorised representative and you are applying for Financial Planner Authorisations; or
(B) you are a corporate credit representative and you are applying for authorisations to engage in credit activities other than a credit provider,
the term of the subscription is 24 months starting on whichever is the later of:
(C) the date specified in the Accepted Application Form as the first day of the Subscription, and
(D) the date the first Subscriber Fee is paid; or
(iii) for any Subscription other than one described in clause 1.1(g)(i) – 3 months starting on whichever is the later of:
(A) the date specified in the Accepted Application Form as the first day of the Subscription, and
(B) the date the first Subscriber Fee is paid.
(h) Confidential Information of a party includes:
(i) the Application Form;
(ii) the Direct Debit Service Agreement;
(iii) Subscriber Fee;
(iv) all information disclosed to the other party, whether in writing, electronically or orally, including as part of the Services;
(v) all information which is marked as confidential, or which is disclosed on a confidential basis or which a reasonable person would consider to be confidential; and
(vi) any and all information concerning, or in any way connected with, that party’s business, or business affairs,
but does not include any information which is in the public domain except due to a breach of any obligation of confidence, or information which is lawfully in the possession of a party prior to receiving the same from the disclosing party.
(i) Corporations Act means the Corporations Act 2001 (Cth) as amended from time to time.
(j) Credit Legislation has the meaning in section 5 of the National Consumer Credit Protection Act 2009 (Cth) as amended from time to time.
(k) Direct Debit Service Agreement means the agreement entered into with our payment gateway provider – Payrix.
(l) Financial Planner Authorisations means an Australian Financial Services Licence that includes financial product advice and dealing authorisations other than managed discretionary accounts, margin lending facilities, derivatives, complaints handling & settling, deal by issuing authorisations, and custodial or depository services.
(m) Financial Services Laws has the meaning in section 761 of the Corporations Act.
(n) GST has the meaning given to that term in the GST Act.
(o) GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended).
(p) HN Hub means the website through which you can access the Services and/or User Documents.
(q) Holley Nethercote Compliance means Holley Nethercote Pty Ltd (ACN 068 367 046) trading as Holley Nethercote Compliance.
(r) Holley Nethercote Lawyers means Holley Nethercote Pty Ltd (ACN 068 367 046) trading as Holley Nethercote Lawyers.
(s) Intellectual Property means all intellectual property rights, including, without limitation, any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual property rights, whether or not registered, in all parts of the world.
(t) Insolvency Event means, in respect of any person, that person:
(i) being placed into bankruptcy, liquidation, administration, receivership or statutory management or having an official assignee, liquidator, receiver, trustee, manager, administrator, statutory manager or similar appointed in respect of it or all or any of its business or property;
(ii) being unable, or presumed by law unable, to pay its debts as they fall due;
(iii) entering into an assignment for the benefit of or entering into or making any arrangement or composition with, its creditors;
(iv) being subject to a resolution or any proceeding for the winding up or liquidation of that person (whether on a voluntary or involuntary basis) other than for a bona fide solvent reconstruction and other than where such resolution or proceeding is formally discharged or dismissed in full within 10 Business Days of the initiation thereof; or
(v) being subject to any event which is analogous to any of the events listed in paragraphs (i) to (iv).
(u) Ipso Facto Laws means the moratorium in the Corporations Act on contractual provision which allows one party to terminate or modify the operation of the contract upon the occurrence of a specified insolvency related event in respect of another party.
(v) Law means all Acts of Parliament, and all regulations, by-laws, awards and orders made under any Act and the lawful requirements of public, municipal and other competent authorities, in any way applicable to the Agreement.
(w) Materials means all procedures, tools, training webinars, manuals, frequently asked questions, materials, policies, documents, software, information and services which form part of the Services and all drafting and content comprised therein.
(x) party means Holley Nethercote Compliance or you and parties means both of them.
(y) Permitted Purpose means the bona fide operation of a financial services business by you.
(z) Services means the services specified in a Subscription Confirmation and includes all Materials forming part of those services.
(aa) Subscriber means the person specified in the Subscription Confirmation as the subscriber.
(bb) Subscriber Fee means the fee specified in the Subscription Confirmation.
(cc) Subscription means your subscription to the Services.
(dd) Subscription Confirmation means the notice you receive from us which confirms that we have accepted your Application Form.
(ee) Subscription Period means the period from the first date of the Subscription, as determined by the Commitment Period, until the Subscription expires or terminates in accordance with this Agreement.
(ff) Terms means these terms and conditions.
(gg) Third Party Services means any services, tools, materials or software which are provided to the Subscriber as part of the Services, but does not include third parties with whom you contract directly.
(hh) Third Party Service Provider means the person or entity which provides the Third Party Service.
(ii) User Data means all of the data that you upload into a User Document, including all text and other data that you enter into any User Document;
(jj) User Document means copies of the Materials generated by or downloaded from the HN Hub or otherwise obtained by you using the Services.
(kk) you, your means, as the context permits, the person who is accessing the site or the HN Hub, and/or the Subscriber.
(ll) we, us, our means Holley Nethercote Compliance.
In these Terms, unless the contrary intention appears:
(a) headings are for ease of reference only and do not affect the meaning of the Agreement;
(b) the singular includes the plural and vice versa;
(c) words importing a gender include other genders;
(d) a defined word or expression has corresponding effect in relation to its other grammatical forms;
(e) a reference to a document or agreement, including the Agreement, includes a reference to that document or agreement as novated, altered or replaced from time to time;
(f) a reference to any legislation includes a reference to that legislation as amended, re-enacted, consolidated or replaced at any time;
(g) words and expressions importing natural persons include partnerships, bodies corporate, associations, governments and governmental and local authorities and agencies; and
(h) a reference to a Party includes a reference to their successors and permitted assigns.
2. HN Hub Usage Terms
2.1 HN Hub Account
(a) You may create an HN Hub account free of charge at any time.
(b) If you have created a free HN Hub account but you do not have a Subscription:
(i) and you wish to close your HN Hub account, you may do so by emailing us as email@example.com.
(ii) we may at any time terminate your HN Hub account or your access to the HN Hub; and
this Agreement will terminate on the date the HN Hub account is closed, or the date we terminate your HN Hub account or your access to the same.
(a) Information contained on the HN Hub constitutes an invitation to treat only.
(b) By placing an order to purchase a User Document, webinar or workshop through the HN Hub, you make an irrevocable offer to us to purchase that User Document, webinar or workshop on, and subject to, these Terms.
(c) We will endeavour to supply the User Document, webinar or workshop you have offered to purchase to you, however, we reserve the right in our discretion at any time prior to us delivering your order for a User Document, webinar or workshop, to cancel all or part of that order.
(d) Without limiting clause 2.2(c), we are not required to supply a User Document, webinar or workshop to you unless and until you have paid for that User Document, webinar or workshop in full, in accordance with the payment directions we give in connection with your offer to purchase that User Document, webinar or workshop.
(e) All orders for and usage of User Documents, webinars or workshops are subject to these Terms.
3. Currency of Materials
You agree that:
(a) by providing you with any User Documents or Services, we are not providing any legal advice or legal services to you. If any legal advice or legal services are provided, they are provided by Holley Nethercote Lawyers;
(b) at our sole discretion, we may amend, change or update the Materials at any time;
(c) Materials will not reflect any changes to Financial Services Laws or Credit Legislation which occur or come into force after the date those Materials are published on the HN Hub; and
(d) we do not warrant or give any representation that the Materials consider any taxation regimes (including Australian taxation regimes) or Financial Services Laws or Credit Legislation (including licensing regimes) of any jurisdiction other than in Australia.
4. Subscriptions to the Services
4.1 Provision of Services
We will provide the Services to you for the Commitment Period in accordance with, and subject to, these Terms.
4.2 Offer and Acceptance
(a) We may in our sole and complete discretion accept or refuse to accept an Application Form you submit to us.
(b) Without limiting clause 4.2(a), we may refuse to grant an AFSL holder more than one Subscription at any given time and you must not submit an Application Form to us if you are an AFSL holder who holds a current Subscription.
(c) We are not obliged to provide any Services to you unless and until:
(i) we provide you with a Subscription Confirmation; and
(ii) you have paid the Subscriber Fee in accordance with this Agreement.
4.3 Engagement of Third Party Service Providers
We may, at our sole discretion, and from time to time, decide to engage a Third Party Service Provider to provide part or all of the Services to you.
5. Your Obligations
5.1 Obligation to pay the Subscriber Fee
In consideration for providing you with the Services, you must pay the Subscriber Fee to us.
5.2 Your obligations
(a) ensure that all of the information provided by you in the Application Form is accurate; and
(b) notify us via email if any of the information provided by you in the Application Form changes, within 14 Business Days of the change occurring.
6. Pricing and Payment
6.1 Method of payment
Unless a Subscription Confirmation expressly provides otherwise, you must pay the Subscriber Fees via direct debit from either a bank account or credit card via our payment gateway.
6.2 Calculation of payment
Unless a Subscription Confirmation expressly provides otherwise, Subscriber Fees:
(a) are calculated and payable monthly in advance; and
(b) are exclusive of GST.
6.3 Costs and charges for failed payments
If any direct debits fail due to incorrect or incomplete information provided by you, due to you having insufficient funds or due to a circumstance outside of our control, any charges incurred by us by our payment gateway due to the failed direct debit will be debited to your account on the date of your next monthly deduction.
7. Your Subscription
The Subscription commences on and continues for the Commitment Period.
7.2 Renewal of Subscription
Upon expiry of the Commitment Period, where the Agreement provides that you pay the Subscriber Fee:
(a) monthly in advance – the Subscription will automatically renew for successive periods of 1 month on the same terms and conditions save that you may terminate the Subscription at any time for no cause by giving us at least 30 days’ notice in writing; or
(b) annually in advance or on any other payment terms other than those described in clause 7.2(a) – the Subscription will end, unless you agree in writing to renew or extend the Subscription for another year (or such other period and on such other terms as may be agreed).
8. Confidential Information
8.1 Confidential Information
A party (the recipient party) must keep all Confidential Information of the other party (the disclosing party) that the disclosing party communicates to the recipient party, whether during or prior to the date of this Agreement, confidential and must not:
(a) use that Confidential Information except to perform and comply with its obligations under, and have the benefit of, this Agreement; or
(b) disclose that Confidential Information except:
(i) to its employees, legal advisers, auditors and other consultants requiring the information for the purposes of this Agreement;
(ii) with the prior written consent of the disclosing party;
(iii) if required by Law; or
(iv) to the extent it is required to be disclosed in connection with legal proceedings relating to this Agreement.
9. Intellectual Property
9.1 Intellectual Property
(a) As between you and us, all Intellectual Property in the HN Hub, the User Documents (except for any User Data), webinars, workshops and the Services is solely owned by us.
(b) As between you and us, all Intellectual Property in any User Data is solely owned by you.
(c) Except as expressly provided in this Agreement or as otherwise agreed between the parties:
(i) your use of or access to the HN Hub, the User Documents, webinars, workshops and/or the Services, including any modifications or enhancements thereto, does not transfer any Intellectual Property to you or grant you any right, title or interest to or in the Intellectual Property in the HN Hub, the User Documents or the Services; and
(ii) use of the Intellectual Property in the HN Hub, the User Documents and the Services is prohibited.
9.2 Grant of Licence
We hereby grant to you a limited, non-exclusive, non-sublicensable, non-transferable worldwide, royalty-free licence to use:
(a) the HN Hub, and
(b) if you are a Subscriber, the Services during the duration of the Subscription Period,
for the Permitted Purpose, subject to this Agreement.
9.3 User Documents
Subject to your continued compliance with this Agreement, we grant you a perpetual, royalty-free, non-sublicensable licence to:
(a) download, keep, use and reproduce all User Documents validly purchased by you (whether as part of a Subscription or as a one-off purchase) in accordance with our Terms; and
(b) if you are entitled to receive a User Document in MS Word format, make or permit to have made, manual edits to that User Document (including any addition to, and/or deletion from, that User Document) after the User Document has been delivered or made available to you by us,
provided that such conduct is undertaken solely and exclusively for the Permitted Purpose for which the relevant User Documents were first created.
9.4 Prohibited acts
(a) You must not:
(i) exploit (including sell, offer for sale, commercialise or dispose of) any of the Intellectual Property in the HN Hub, the Services or the User Documents;
(ii) supply or offer to supply or distribute or offer to distribute, any of the Intellectual Property in the HN Hub, the Services or the User Documents to any third party, except for the Permitted Purpose; or
(iii) create a database of the Intellectual Property in the HN Hub, the Services or the User Documents except for your own lawful and personal use;
(b) use the Services or any User Documents for any purpose or in any manner other than for the Permitted Purpose;
(c) use the Services or any User Documents in any way that could damage the reputation of Holley Nethercote Compliance or the goodwill or Intellectual Property of Holley Nethercote Compliance subsisting in or related to the HN Hub, the Services and/or the User Documents;
(d) permit any third party to use the Services or any User Documents without our prior express written consent;
(e) assign, sublicence or otherwise deal in any other way with any of your rights under these Terms without our prior writing consent;
(f) disclose or share your password(s) to your HN Hub account to any third party;
(g) copy, reproduce, translate, adapt, vary or modify the Services or any User Documents or create any derivative works based upon the HN Hub, the Services or the User Documents except to the extent permitted under these Terms;
(h) disassemble, decompile or reverse engineer the HN Hub or attempt to do so;
(i) modify or remove any copyright or proprietary notices pertaining to the Services or the User Documents; or
(j) engage in conduct that in the opinion of Holley Nethercote Compliance acting reasonably, indicates an intention to misuse and/or misappropriate the Services or any User Documents.
9.5 Notification of misuse
You must notify us immediately if you become aware of any breach of our Intellectual Property, or any unauthorised use of the Services or the User Documents.
If a party makes a supply under or in connection with the Agreement in respect of which GST is payable, the consideration for the supply but for the application of this clause (GST exclusive consideration) is increased by an amount equal to the GST exclusive consideration multiplied by the rate of GST prevailing at the time the supply is made.
10.2 Input tax credits
If a party must reimburse or indemnify another party for a loss, cost or expense, the amount to be reimbursed or indemnified is first reduced by any input tax credit the other party is entitled to for the loss, cost or expense, and then increased in accordance with clause 10.1.
If a payment is to be made by a party for a taxable supply made under or in connection with this Agreement or any variation to it, then the supplier must provide a tax invoice which complies with the requirements of the GST Act.
11.1 Indemnity by You
You indemnify us against all claims, costs, damage and loss arising from any claims made by a third party that any variation or addition you make to any User Documents or information or material which you have submitted to us breaches a Law or infringes any third party rights (including, but not limited to, claims in respect of defamation, invasion of privacy, breach of confidence, infringement of copyright or infringement of any other intellectual property right).
12. Limitation of Liability
12.1 Limitation of our Liability
(a) Whilst we have taken reasonable steps to ensure the accuracy, currency, availability, correctness and completeness of the information contained in the User Documents and the Services, the Services and the User Documents are provided on an "as available" basis and we do not give or make any warranty or representation of any kind, whether express or implied. The use of the User Documents and Services is at your sole risk.
(b) To the fullest extent permitted by Law, all conditions, warranties and other terms which otherwise are or might be implied by statute, common law, or equity and which are capable of being excluded by agreement, are excluded.
(c) Notwithstanding any other provision in this Agreement, our maximum liability to you will not in any circumstances exceed an amount equal to twice the Subscriber Fees you have paid for the Services in the previous 18-month period.
13.1 Termination for cause by us
(a) you breach any term of this Agreement and fail to remedy that breach within 10 Business Days after we notify you of the breach, or if the breach is not capable of remedy; or
(b) you suffer an Insolvency Event; or
(c) you engage in any conduct or activity which, in our reasonable opinion, may cause our name or reputation to be brought into disrepute,
then subject to the Ipso Facto Laws, we may, by giving written notice to you:
(d) terminate this Agreement and your use of the Services with immediate effect; or
(e) immediately suspend for any definite or indefinite period of time, your use of the Services.
13.2 Termination for cause by you
(a) we breach any term of this Agreement and fail to remedy that breach within 10 Business Days after you notify us of the breach, or if the breach is not capable of remedy; or
(b) we suffer an Insolvency Event,
then subject to the Ipso Facto Laws, you may, by giving written notice to us, terminate this Agreement.
13.3 Consequences of Termination
(a) Upon termination of this Agreement, the Subscription (if any) ends.
(b) Rights which accrue prior to termination of this Agreement continue to have effect after termination.
(c) The following clauses survive termination of this Agreement: clauses 1, 5.1, 8, 9, 10, 11, 12, 13.3 and 15.
14. Changes to this Agreement or the Services or Materials
14.1 Right to vary
(a) We may make any modifications, alterations, changes or variations to any term of the Agreement (including any change to the Subscriber Fee) by notifying you via email of the details of the change or modification.
(b) Any change or modification made pursuant to clause 14.1(a) will take effect after 30 days after the date on which you are notified of that change or modification.
(c) If the change or modification made pursuant to clause 14.1(a) is not required by Law and either:
(i) increases the Subscriber Fee; or
(ii) has a material adverse effect on your use of the Services; or
(iii) reduces the scope of the Services; or
(iv) results in an increase or expansion of your obligations under this Agreement or our rights against you,
then you may terminate your Subscription by giving 30 days’ written notice to Holley Nethercote Compliance, such notice to be given within 60 days of receipt of the notice referred to in clause 14.1(b).
(d) Notwithstanding clause 14.1(c), you do not have a right to terminate this Agreement where the modification, alternative or change is associated with or involves changing, updating, modifying or removing any part of the Materials, where we do so pursuant to our obligation under clause 3.1.
(a) Each Party bears its own legal and other costs and expenses in relation to preparation, negotiation and execution of the Agreement.
(b) Neither party will be liable to the other for any breach or failure to perform any of its obligations under the Agreement where such breach or failure is caused by natural disaster, act of war or terrorism, riot, governmental action, internet outages or disturbances or malicious third party act, that is beyond the party’s reasonable control (Force Majeure Event) provided that the affected party uses its best endeavours to mitigate the Force Majeure Event. If the Force Majeure Event continues for more than 10 Business Days, the Party not suffering the Force Maeure Event may terminate the Agreement immediately by giving notice to the other party.
(c) The Agreement does not constitute or give rise to any partnership, joint venture or agency relationship of any kind between the Parties.
(d) A Party will have no right or authority expressed or implied to bind the other Party to any other agreement, obligation or undertaking.
(e) The provisions of the Agreement will be deemed to be severable and any invalidity of any provision of the Agreement will not affect the validity of the remaining provisions of the Agreement.
(f) No waiver of any breach, or failure to enforce any provision, of this Agreement at any time by either Party will in any way limit or waive the right of such Party to subsequently enforce and compel compliance with the provisions of this Agreement.
(g) Any provision in this Agreement, which is or becomes unenforceable, illegal or invalid for any reason, will be severed and will not affect the enforceability, legality, validity or application of any other provision which will remain in full force and effect. Nothing in this Agreement is intended to have the effect of contracting out of any applicable Laws, except to the extent permitted by such Laws.
(h) Any notice or communication required or permitted to be made or given to a Party under this Agreement must be sent in writing to that Party’s email address set out in the Application Form or to such other address as notified to the other Party in accordance with this clause.
(i) Notices or communications given in accordance with clause 15(h) are taken to be received at the time shown in a delivery confirmation report generated by the sender’s email system.
(j) You must not assign or purport to assign any rights under this Agreement without our prior written consent. If we sell, transfer, assign or otherwise dispose of our business or any part of our business which includes the provision of the Services, you agree that we may assign, transfer or novate the Agreement or a right under the Agreement by providing you with written notice.
(k) The Agreement is governed by, and is to be construed in accordance with, the laws in force in the State of Victoria, Australia. Each Party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria and any courts which have jurisdiction to hear appeals from any of those courts, and waives any right to object to any proceedings being brought in those Courts.
(l) To the extent of any inconsistency, the terms of the following documents will prevail in the following order of priority:
(i) the Application Form which is the subject of a Subscription Confirmation;
(ii) these Terms; and
(iii) the Direct Debit Service Agreement.