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Stake Super Administration Service Agreement
Stake SMSF Pty Ltd ACN 648 283 532 (‘Stake Super’, ‘we’, ‘us’, ‘our’) is a self-managed super fund (‘SMSF’) establishment and administration service.
Customers who join Stake Super either by creating an SMSF or transferring an SMSF to Stake Super agree to the terms of this SMSF Administration Service Agreement (‘Agreement’) which governs your engagement of Stake Super as your SMSF service provider.
When establishing an SMSF via Stake Super or transferring an existing SMSF to Stake Super, you will be referred to Stakeshop Pty Ltd (‘Stake’) to enable your trading account and bank account to be set up in order to use the Stake Website and/or App. Please read the applicable Terms & Conditions, Disclaimers and Financial Services Guide for more information.
We reserve the right to amend the Agreement from time to time. Any amendments which apply to existing Stake Super customers shall come into effect 20 days after publication of the amendment on the Website. If the amendment is required for urgent technical, risk, or regulatory compliance reasons, the amendment will come into effect immediately upon publication on the Website.
1.1 Under this Agreement, Stake Super will provide the following services:
- Establishment of an SMSF with the Australian Taxation Office (‘ATO’) and the Australian Securities and Investment Commission (‘ASIC’) (except in the case of transferring SMSFs);
- Creation of your Stake Super account and referral to Stake to enable your trading account, Airwallex account and Macquarie account (if required for certain superannuation rollovers);
- Provide information or assistance on the establishment, operation, structuring or valuation of your SMSF;
- Provide information or assistance on certain taxation matters in relation to your SMSF;
- Facilitation of the independent audit of your SMSF conducted by an independent auditor partner of Stake Super’s choice; and
- Lodgment of the SMSF annual return for your fund (lodgment by Stake Super as the registered tax agent).
1.2 Stake Super is not licensed to provide financial product advice or arrange dealings in financial products under the Corporations Act. This specifically applies to any financial products which are established if you instruct Stake Super to set up and administer an SMSF, or when you transfer an existing SMSF to Stake Super. Stake Super provides its services under a ‘no advice model’. This means we do not provide financial product advice or taxation advice. You should consider seeking advice from the holder of an Australian Financial Services Licence holder before making a decision in respect of financial products. Taxation is only one of the matters that must be considered.
1.3 Stake Super may refer you to Australian Group Insurances (‘AGI’) who is the policy owner and administrator of the SMSF Master Insurance Plan issued by the insurer, AIA Australia Limited. This allows Stake Super customers to receive a quote and apply for life risk insurance for their SMSF with AGI. Stake SMSF Pty Ltd receives a referral commission equal to 30% per annum of the insurance premium paid by its customers who sign up for SMSF life risk insurance with AGI.
2.1 You agree to pay the fees applicable for the provision of Stake Super services and authorise Stake to withdraw these fees from your Stake AUD wallet with Airwallex. This includes payment of third party fees associated with your SMSF, for example ATO and ASIC fees/levies and insurance premiums (if applicable).
2.2 You must ensure that there are sufficient funds in your wallet to cover any fees. If your fees remain outstanding for more than 30 days, we reserve the right to take any action we deem necessary, including taking other steps to recover the fees from you and suspending or closing your account.
2.3 All Stake Super fees are charged in AUD. You can view our annual fee pricing here.
2.4 In the case of SMSFs established by Stake Super, your initial annual fee will be paid upfront when you join Stake Super or a deferred initial annual fee may be withdrawn from your Stake AUD wallet with Airwallex within 30 days of the date Stake Super processes your application. In the case of existing SMSFs transferred to Stake Super, your initial annual fee will be withdrawn from your Stake AUD wallet with Airwallex within 30 days of the date Stake Super processes your application. For all following years, the annual fee will be withdrawn on the third day of the month following the anniversary of your Stake Super account creation date. If there are insufficient funds in your Stake AUD wallet with Airwallex, we may issue an invoice for payment.
2.5 If you use your SMSF to invest in assets outside of Stake, additional accounting and audit fees will be charged as part of your annual fees. We may also charge additional fees where we reasonably consider that more work is required than is standard. We will use our best endeavours to notify you of any additional fees as soon as we become aware of them and in any event, prior to such additional fees being incurred.
2.6 In the event Stake Super is appointed to complete outstanding tax returns from prior financial years, an additional annual fee will be charged in respect of each outstanding tax return from each prior financial year.
2.7 We reserve the right to change and amend the fees published in our annual fee pricing from time to time and will provide 20 days notice of any such changes which apply to existing Stake Super customers.
3. Representations, Warranties and Obligations
3.1 The accounts and assets of your SMSF are held in your name(s) as Trustee and under your control.
3.2 As Trustee (including as Director of a corporate trustee) you agree that you will:
- ensure that any activity of your SMSF is in compliance with the rules contained within the SMSF Trust Deed of the fund and applicable laws;
- only use the funds within your Stake Super AUD wallet (Airwallex bank account) for transactions relating to the SMSF and will not be used for personal banking purposes;
- retain sufficient funds in your Stake Super AUD wallet to pay regular outgoings (insurance) and annual fees under this Agreement;
- pay any tax or regulatory fees relating to your SMSF on or before the due date;
- do all things reasonably necessary to give full effect to this Agreement, including without limitation executing documents;
- ensure that all investments are made in the Trustee’s name; and
- provide us with any documentation or information requested for the completion of your accounts, SMSF annual return or compliance audit including the issuance of the annual report by the independent auditor of the fund within 14 days. If we are required to contact you on more than two occasions to provide requested documentation or information, we reserve the right to pass on additional costs resulting from our time spent obtaining this information.
3.3 Further, you represent and warrant that:
- the information you give us is complete and correct;
- this Agreement will bind you in your capacity as a trustee of the trust;
- you have authority to enter into this Agreement;
- your instructions are lawful; and
- that you are over the age of 18.
4. Tax Agent
4.1 You authorise Stake Super to be appointed as a Tax Agent on behalf of your Fund. In addition, you authorise Stake Super to replace or change the nominated Tax Agent for your Fund from time to time as long as this Agreement remains in force.
4.2 We will ensure any Tax Agent nominated will remain appropriately registered as a Tax Agent and comply with the code of professional conduct as set out in the Tax Agent Services Act 2009.
4.3 All taxpayers including your SMSF have certain rights and obligations when a Tax Agent is appointed including:
- the Trustee(s) of the fund have sole responsibility for the timely and accurate lodgment of the SMSF Annual Returns (income tax returns) of the fund;
- the Trustee(s) of the fund have an obligation to keep proper records that will substantiate the taxation returns prepared and which will satisfy the substantiation requirements of the taxation laws. Failure to keep such records could result in claims being disallowed, additional tax being imposed, and the imposition of penalty or general interest charges; and
- the Trustee(s) of the fund are responsible for the accuracy and completeness of the particulars and information required to comply with the various taxation laws.
4.4 Your rights as a taxpayer include:
- the right to seek a private ruling, the right to object to an assessment by the Commissioner and the right to appeal against an adverse decision by the Commissioner; and
- certain time limitations may exist for you to exercise these rights. Should you wish to exercise these rights at any time you should contact the Tax Agent.
5.1 Except to the extent that any loss is directly caused or contributed to by us, you agree to indemnify us, our service providers, officers, employees, agents and our related bodies corporate for any losses arising directly or indirectly out of:
- all claims made against us or suffered by us as a direct or indirect result of you failing to comply, or failing to comply in sufficient time, with any of your responsibilities with respect to your SMSF. You acknowledge and confirm that, for the purposes of this Agreement, any reference to the obligations of you applies to both you as the Trustee and you as a member of the fund;
- your use of Stake Super;
- our acting on your instructions; and
- your failure to comply with this Agreement or any applicable laws.
6. Our Liability
6.1 We will exercise all reasonable care and skill in the provision of our services. However, we, our directors, service providers, officers, agents or related bodies corporate are not liable for any actions, claims, demands, proceedings, liabilities, losses, damages, costs and expenses (except resulting from or caused by our negligence, fraud or dishonest) due to:
- us acting upon, or refusing to act upon, your instructions;
- your default;
- any legal action;
- error, omission, non-receipt or invalidity in your instructions;
- any events or circumstances we cannot reasonably control;
- any delay, interruption, omission, failure, error or fault by us in passing on and executing your instructions;
- faults, errors, defects, failures in our systems, or loss of access to your account;
- a change in any applicable law;
- our decision to cease providing Stake Super; and
- any tax, fees, levies or fines issued by the ATO or ASIC with regards to the SMSF or trustee company of the SMSF.
6.2 To the extent permitted by law, you release us, our directors, employees, service providers, officers, agents and related bodies corporate from all liability in respect of any loss and expenses incurred by you. We, and our staff, will not be responsible or liable for any claims that arise, whether directly or indirectly, as a result or consequence of you breaching the provisions of the SMSF Trust Deed of the fund or any applicable laws which result in the fund being deemed non-compliant with the Superannuation Laws; or you failing to comply, or failing to comply in sufficient time, with any of your responsibilities pursuant to the provisions of this Agreement.
6.3 We do not exclude or limit the application of any statute where it would be unlawful to do so.
8.1 As part of this Agreement we will prepare various electronic records and notes consistent with our internal quality control systems. These records remain the property of Stake Super and will be retained by us to support any future queries on work completed.
8.2 Any original source records provided by the Trustee to Stake to assist in the completion of the Services will be returned to the Trustee upon completion of the Services for the relevant financial year. Where appropriate we will make copies to retain for our records.
9. Termination and Dispute Resolution
9.1 This Agreement remains in force from the financial year in which it is signed and for future years until terminated in accordance with the Agreement. This Agreement may be terminated by either Party for any reason by giving 30 days’ notice in writing to the other party.
9.2 If the Agreement is terminated, each party will remain liable for any outstanding fees under this Agreement or under any separate agreement. Following termination of the Agreement, not all information maintained by us will belong to you. For example, file notes, working papers, or internal emails will remain our property. If the Agreement is terminated, we will provide all appropriate information to you or an alternative service provider nominated by you within 30 days.
9.3 Notwithstanding the foregoing, we reserve the right to retain documents and information if there is money owing to us under this Agreement. We may also be required by law to retain certain information for a period of seven (7) years.
9.4 This Agreement will continue to be enforceable against the Trustee’s estate until the Agreement is terminated by the Trustee’s estate representative.
9.5 If a dispute arises as in relation to any aspect of this Agreement or the performance thereof and the dispute cannot be resolved between us, then the parties agree to resolve the dispute by mediation.
9.6 The mediator shall be as agreed or failing agreement within 7 days by a mediator nominated by the President of The Law Society of New South Wales. The costs of the mediation shall be met equally.
10.1 Set Up Fee - When you submit an application for Stake Super to establish a new SMSF on your behalf, you are required to pay our upfront set-up fee either before Stake Super processes your application or to pay our deferred set-up fee within 30 days of the date Stake Super processes your application. The set-up fee is used to pay a company registration fee to ASIC for your special purpose trustee company as well as the associated legal documents, including the SMSF Trust Deed. Except as set out below, the set-up fee is non-refundable, even if the ATO does not accept registration of your SMSF. The first year’s annual fee includes the set-up fee referenced in this section
10.2 Stake Super will only refund the set-up fee if you meet all of the following criteria:
- you notify us in writing that you no longer wish to register an SMSF within 24 hours of paying the set-up fee;
- we have not yet commenced work on the Trust Deed; and
- we have not yet commenced work related to the ASIC ABN submission.
10.3 Annual Fees - Your Stake Super annual fees are withdrawn annually from your Stake Super AUD Wallet (Airwallex bank account) on the anniversary date of your Stake Super application. If there are insufficient funds in your Stake AUD wallet with Airwallex, Stake Super may issue an invoice for payment via an external bank account (or similar) An annual fee will only be refunded if all of the below criteria are met:
- a notification has been received by Stake Super in writing from the trustee(s) of the relevant SMSF that the ongoing service is being terminated at least 30 days prior to the date the annual fee is due;
- no financial accounts or SMSF annual return has been prepared for the financial year that the annual fee relates to; and
- no audit work has been performed for the financial year that the annual fee relates to.
11. Authority Delegation
11.1 Access to relevant information and data from third parties including banks and other financial institutions is essential for the efficient delivery of our services.
11.2 You agree to delegate to Stake Super the ability to complete third party data authorities on your behalf to:
- enable investment, transaction and account data to be electronically fed to our nominated administration platform(s);
- to obtain required reports or documentation for the completion of your SMSF annual return or audit where the provision of the authority does not include the authorisation of payment of monies from the Stake Super AUD wallet or dealing in anyway with the acquisition or disposal of investments or assets of the SMSF (i.e. the authority is read-only); and
- to complete the paperwork to apply for/open accounts in order to provide the Stake Super services to you.
12. Scheduling of Work
12.1 Certain Stake Super services are subject to specific lodgment dates. To allow us to comply with lodgment dates we rely on your timely provision of information. We will schedule your work to be completed at a suitable month throughout the financial year taking into consideration various factors.
12.2 Stake Super is not responsible for any losses resulting from delays, omissions, interruptions or late submissions where they are caused by circumstances beyond our reasonable control or by your failure to provide information within the time period requested by us.
13. Scope of Service
13.1 If there is more than one individual acting as Trustee personally or as Directors of a corporate Trustee, then each individual is deemed to be an agent of each other individually and you each authorise and direct us to accept instructions from any one individual without the need to seek confirmation of those instructions from any other individual.
13.2 Each of you agree, jointly and severally, to pay our tax invoices. Our costs are payable up to the termination of the services and for any work that we are required to do for you after termination.
14.1 You may not assign, transfer or novate any of your rights or obligations under this Agreement without our written consent, which may be withheld.
14.2 We may assign, transfer or novate any or all of our rights or obligations under this Agreement by giving ten Business Days written notice to you.
14.3 In the event of an assignment, transfer or novation:
You will have the same rights and obligations under this Agreement against the new party as you had against us prior to the assignment, transfer or novation;
The new party has the same rights and obligations against you that we had prior to the assignment, transfer or novation;
14.4 We, our related bodies corporate and our third party service providers are released from any obligations arising on or after the date of the assignment, transfer or novation.
15.1 Either party may provide notice to the other party by electronic communication such as email. Notices sent by electronic communication will be treated as having been received one hour after being sent.
15.2 You may request that we provide notices to you by post. If you do so, the notice will be treated as having been received two business days after posting. If we have your email, we will use this as the default communication and reserve the right to use email exclusively.
15.3 You must ensure that:
You provide us with a valid email address;
The details you provide to us remain up to date;
That you notify us of any change to your details.
16.1 If any provision of this agreement is deemed unlawful, void or unenforceable, then that provision shall be deemed severable from the remaining provisions and shall not affect their validity and enforceability.
17.1 A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy.
18. Governing Law
18.1 This Agreement shall be governed and construed in accordance with the laws of New South Wales, Australia. The parties agree to irrevocably submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.
19. Entire Agreement
19.1 This Agreement is the entire agreement and understanding between the parties on everything connected with the subject matter and supersedes any prior understanding, arrangements, representation or agreements between the parties as to the subject matter contained in this agreement.