AccountRight Live: Terms of Use - Australia

8 November 2012

1. About these terms

These are the terms and conditions for our supply of MYOB AccountRight Live to you, including our obligations to each other (Terms).

These terms do not exclude, restrict or modify:

  1. the application of any provision of the Australian Consumer Law (whether applied as a law of the Commonwealth or any State or Territory of Australia) (ACL);
  2. the exercise of any right or remedy conferred by the ACL; or
  3. the liability of MYOB for a failure to comply with any applicable consumer guarantees where to do so would:
    1. contravene the ACL; or
    2. cause any part of these Terms to be void.

Definitions

Some words in these Terms have particular meanings:

Bank Feeds or BF means the service which enables you to electronically receive daily or monthly updates of bank account transaction details for your nominated accounts, including your business account and credit card.

Bank Statement Information means the transaction information relating to any account linked to the BF and that is available for you to access as part of MYOB AccountRight Live.

BankLink means Media Transfer Services Limited trading as BankLink.

Business Day means a week day, except for:

(d)   a national public holiday;
(e)   a day on which banks in Victoria or New South Wales are generally closed; or
(f)   a public holiday in Victoria.
 

Business means the business for which the application is made and accepted for MYOB AccountRight Live Services.

Fees means fees and charges relating to the provision of MYOB AccountRight Live Services.

Loss or Claim means any loss, liability, action, proceeding, damage, cost or expense (including all reasonable legal costs and expenses), including liability in tort and consequential and economic losses.

Microsoft means Microsoft Regional Sales Corporation and Microsoft Operations Pte. Ltd, and includes any successor, assignee or replacement organisations.

Minimum Term means the minimum term of your subscription to MYOB AccountRight Live that you agree to when you subscribe.

MYOB AccountRight Live means the features and services which we make available to you from time to time and which comprise a bundle of features (including online features) and services which you choose to use with your MYOB AccountRight product.

Personal Information means that term as defined in the Privacy Act. Basically, this is information about an identifiable individual.

Privacy Act means the Privacy Act 1988 (Cth) as updated, amended or replaced from time to time.

Professional Partner means a person who provides bookkeeping, accounting or similar services to you, and who you appoint as a User.

Third Party means any person we have contracted with to help us provide MYOB  AccountRight Live Services. This may include Microsoft and all other service providers engaged by us for the delivery, maintenance and administration of MYOB AccountRight Live Services.

User means a person authorised by you to use MYOB AccountRight Live Services (including a Professional Partner).

We, us and our means MYOB Australia Pty Ltd ACN 086 760 198.

You means the Business, including each User.

2. General terms

2.1 Protecting your username and password

  1. Unless you take adequate security precautions, it could be possible for an unauthorised person to gain access to your MYOB AccountRight Live Services. It is important to take all reasonable precautions to ensure your username and password are not misused, and remain secure and confidential. In particular:
    1. You must not tell anyone your username or password, including any member of your family;
    2. you must not let anyone else, whether acting as your agent or not, access MYOB AccountRight Live Services using your username and password; and
    3. you must be extra careful when accessing MYOB AccountRight Live Services from public computers.
  2. If you think anyone else might know your password you should reset your password from within your MYOB AccountRight product, or contact us as soon as possible to arrange a new password.
  3. You agree to be liable if your login details are used by an unauthorised person.

2.2 Other responsibilities you have as a User

  1. No interference with MYOB AccountRight Live Services – You will not:
    1. interfere with the operation of MYOB AccountRight Live Services;
    2. reverse-engineer, reverse-assemble, decompile, or otherwise attempt to discover source code, formulas or processes in respect of the software behind MYOB AccountRight Live Services;
    3. copy, reproduce, alter, modify, create derivative works, or publicly display, any part of any content from MYOB AccountRight Live Services, except where we have given you permission;
    4. use MYOB AccountRight Live Services in way that is prohibited by law, regulation or government order in any relevant jurisdiction, or in a way that violates a third party’s legal rights;
    5. use MYOB AccountRight Live Services in a way that could harm or impair anyone else’s use of it;
    6. use MYOB AccountRight Live Services to gain unauthorised access to any service, data, account or network by any means;
    7. falsify any protocol or email header information (e.g. spoofing);
    8. use MYOB AccountRight Live Services to send “spam” or otherwise make available any offering designed to violate these Terms; or
    9. remove, modify, tamper with any regulatory or legal notice or link that is incorporated into MYOB AccountRight Live Services.
  2. Cooperation and limited authority in relation to Third Parties – You:
    1. must do all things we consider appropriate to enable us to fulfil our obligations to Third Parties in relation to MYOB AccountRight Live Services; and
    2. authorise us to give a Third Party or other person any authority, consent or instruction in respect of MYOB AccountRight Live Services, to enable us to provide MYOB AccountRight Live Services to you.
  3. Giving access to other Users - You can authorise other users (including a Professional Partner) to have access to your MYOB AccountRight Live Services data. Subject to the access rights you grant, they will be able to view and modify your data. Their use of MYOB AccountRight Live Services is subject to these Terms, so we suggest that you provide them with a copy. You are responsible for their use of MYOB AccountRight Live Services. You can stop or change their access rights by updating your user list within your MYOB AccountRight product or by contacting us.
  4. Change of details – You must let us know of any changes to your details which you have provided to us in relation to MYOB AccountRight Live Services, and provide any proof of the change we require.

2.3 Use of MYOB AccountRight Live Services and our intellectual property

  1. What you can do – until your use of MYOB AccountRight Live Services is terminated, you have a non-exclusive and non-transferable licence to use MYOB AccountRight Live Services in the way that we authorise from time to time.
  2. We retain our intellectual property rights – except where specifically set out in these Terms, these Terms do not give you any intellectual property or other rights in any of our:
    1. software, documents, templates, marketing material, trademarks, business names, logos, trading styles, get-up, processes or methodologies; or
    2. other intellectual property,

    and you (including your staff, agents or contractors) must not otherwise use, reproduce or modify these intellectual property rights.

  3. Third Party intellectual property rights – these Terms do not give you any intellectual property or other rights in any of the software or other intellectual property supplied by any Third Party as a part of MYOB AccountRight Live Services, and you (including your staff, agents or contractors) must not otherwise use, reproduce or modify these intellectual property rights.

2.4 Payment of Fees

  1. You must pay us all Fees due to us in relation to your use of MYOB AccountRight Live, on the due date and otherwise in accordance with the payment terms you have entered into with us. If you cancel your participation before the end of the Minimum Term, then you must pay to us the subscription fees for the remainder of that Minimum Term.
  2. If a another person (for example, a Professional Partner) who pays the Fees in relation to your use of MYOB AccountRight Live stops paying the Fees due to us, then you will need to pay the Fees due to us to continue your use of MYOB AccountRight Live.
  3. By giving you at least 20 Business Days’ notice before the change takes effect, we may:
    1. change the amount of any Fee and introduce a new Fee; and
    2. change the circumstances in which, or frequency with which, a Fee is payable.

Section 8 tells you about the ways in which we can give you notice.

  1. You authorise us to deduct the periodical instalments and any other Fees payable to us in respect of your use of MYOB AccountRight Live. You give us this authority by providing us with your credit card or other payment details. The authority continues after the end of the Minimum Term until your participation in MYOB AccountRight Live is terminated in accordance with these Terms.

2.5 Goods and services tax (GST) and duties

  1. All payments due to us (eg. Fees, reimbursement by you to us of any amounts or payments under indemnities), unless already stated to be GST inclusive, are to be increased by the amount of any GST liability we have in relation to supplies we make to which those payments relate.
  2. You must pay all duties (eg. stamp duty, other government charges or financial institution account fees) payable in relation to your use of MYOB AccountRight Live Services. If we have paid them, they must be reimbursed by you on our request.

3. Bank Feeds (BF)

The following terms and conditions apply only to the use of Bank Feeds:

  1. Access to Bank Statement Information - Using BF, you can receive Bank Statement Information for all nominated bank accounts that you have linked to the BF. If you want to use the BF, you will need to provide an authority form that will enable BankLink to request your bank to provide Bank Statement Information to us.
  2. Bank Accounts - You may only use the BF service for bank accounts attached to your Business.
  3. Fees - If the bank whose accounts are linked to the BF charges you directly for fees in connection with your account and your use of the BF in relation to that account, you are responsible for and must pay those fees. If you don’t do this, we may not be able to provide the BF to you.
  4. Fair Use Policy for Bank Feeds - Although we do not currently apply a fee on the number of bank statement transactions received through the BF, you acknowledge and agree that we may, in our sole discretion, apply a fee for excess transactions at any time. Without limiting our rights under this section, we reserve the right to charge for transactions if the number of transactions in a month exceeds 300, at a rate not greater than $0.10 per transaction in excess of 300 transactions.

4. Availability of MYOB AccountRight Live Services

MYOB AccountRight Live could be disrupted if system(s) failure occurs due to technology used by either us or Third Parties involved in providing MYOB AccountRight Live. Online services are subject to interruption, breakdown, viruses, delays, interception, interference and other errors involving communications networks, computer systems, servers, providers, computer equipment and software. Delayed receipt of Bank Statement Information could result in transactions not being available on a particular day.

In relation to any device which you use to access MYOB AccountRight Live, we recommend that you obtain and maintain up-to-date virus, security and intrusion prevention and scanning software which is specifically designed for all devices you use to access MYOB AccountRight Live.

MYOB AccountRight Live may also be unavailable for short periods because of necessary or desirable system maintenance or upgrades. If this is needed, we will try to inform you beforehand.

Subject to the terms of section 6 below, we are not responsible or liable to you or the Business for any Loss or Claim arising from MYOB AccountRight Live or any part of them being delayed, disrupted or unavailable.

In order to maximise your business continuity, we encourage you to take steps to back up and archive your data on a regular basis.

5. Termination

5.1 How can you end your participation in MYOB AccountRight Live Services?

You can cancel your participation in MYOB AccountRight Live by giving us at least 20 days written notice before the end of the current period of your chosen monthly or annual subscription. The effective date of termination will be the last day of the current period of your subscription.

Your participation in MYOB AccountRight Live will cease on the effective date of termination. However, during the notice period, you are still liable for any Fees in relation to your use of MYOB AccountRight Live up to the effective date of termination. If you cancel your participation before the end of the Minimum Term, then you must pay to us the subscription fees for the remainder of that Minimum Term. Refer also to section 5.3 below for other important content about what happens on the effective date of termination.

5.2 When we can suspend or terminate your participation in MYOB AccountRight Live Services without prior notice

  1. Circumstances

These are the situations in which we can suspend or terminate your participation in MYOB AccountRight Live without prior notice. We will notify you of your suspension or termination as soon as possible.

The situations are:

  1. A breach occurs:
    • you fail to remedy a material breach of these terms and conditions within 5 Business Days after we notify you of the breach;
  2. Something threatens MYOB AccountRight Live Services:
    • in our opinion, a change to any Third Party arrangement necessary for MYOB AccountRight Live Services renders the ongoing operation of MYOB AccountRight Live Services substantially unworkable or non-functional;
    • in our opinion, the actions of a regulator or a change in law or regulation makes the ongoing operation of MYOB AccountRight Live Services substantially unworkable or non-functional; or
    • we believe this is necessary either to protect the security, integrity or reputation of MYOB AccountRight Live Services or any MYOB AccountRight Live Services function, service or facility, or to otherwise protect our interests;
  3. There is a material change to your Business:
    • you go into liquidation, administration, insolvency, bankruptcy or such other similar arrangement with creditors, or in our opinion, it is reasonably likely you will do so; or
    • there is a change in who owns or controls your Business.
       

  1. Notification

    1. We will make reasonable attempts to notify you in writing (which includes by email) of the suspension or termination.
    2. We can reinstate a suspension or termination in our absolute discretion by written notice to you, and this takes effect on receipt or any later time specified in the notice, subject to you meeting any conditions set out in the notice.
    3. If you become aware that a circumstance which would permit us to suspend or terminate your participation or use under section 5.2(a)(3) has arisen or may arise, you must advise us in writing as soon as possible.

5.3 What happens on the effective date of termination?

  1. Limited period for data extraction: subject to any of our arrangements with Third Parties, you will have 30 days from the effective date of termination to extract your data from MYOB AccountRight Live. After the effective date of termination, you and other Users (including your Professional Partner) will be able to access it as read-only files or access it and amend it (read and write files), depending on the rights designated by us. We strongly recommend that you extract your data for archive purposes as soon as possible. We may take steps to delete your data from our servers at any time after 30 days following the effective date of termination, whether or not you have extracted your data.

     
    Licence and/or Subscription Company file access if MYOB AccountRight Live subscription terminated
    Desktop software licence and MYOB AccountRight Live subscription Read and write access on desktop only
    MYOB AccountRight Live subscription
    No desktop software licence
    		 Read only access on desktop only

     
  2. Continuation of limitations on liability: any limitations on liability which you have given under the Terms continue after termination in relation to your use of MYOB AccountRight Live.

6. Liability, warranties, representations and indemnities

Subject to section 1 and to the extent permitted by law:

  1. Liability for other guarantees, conditions or warranties
    1. Our maximum aggregate liability to you:
      1. for failure to comply with a consumer guarantee in respect of the supply, failure to supply or unavailability of MYOB AccountRight Live Services; or
      2. for loss or damage suffered by you as a result of any misrepresentation, negligence, default or breach of these Terms by MYOB,

      is limited, at MYOB’s option in its sole discretion to:

      1. the resupply of MYOB AccountRight Live Services; or
      2. the payment of the cost of resupply of MYOB AccountRight Live Services, and;

      and all representations, conditions, warranties and terms (including claims in relation to our performance, the performance of MYOB AccountRight Live or any service associated with MYOB AccountRight Live) that would otherwise be expressed or implied in these Terms by general law, statute or custom are expressly excluded (to the extent that such representations, conditions, warranties and terms can be excluded at law).

    2. You acknowledge and agree that nothing in these Terms is intended to limit any of the liability terms and exclusions set out in the software licence agreement for your MYOB AccountRight product.
  2. When we and Third Parties will not be liable to you

We and Third Parties (including Microsoftand BankLink) are not responsible or liable to you or the Business for:

  1. any Loss or Claim relating to the provision of the data (including Bank Statement Information) made available through MYOB AccountRight Live, including delays, disruptions, inaccuracies or the loss of data;
  2. any Loss or Claim relating to your use of, or reliance upon data (including Bank Statement Information) provided to you through MYOB AccountRight Live;
  3. the actions or inaction of Third Parties or other persons (including those which may be negligent or unauthorised) relating to MYOB AccountRight Live;
  4. any Loss or Claim arising from a failure by us to comply with the Terms for any cause which could not reasonably be controlled or prevented by us; or
  5. any Loss or Claim arising from a failure by you or the Business to maintain back up copies or archive records of your data
  1. Indemnity to us and Third Parties
  1. You indemnify us, our staff and Third Parties (including Microsoft and BankLink) (Indemnified Parties) against any Loss or Claim suffered or incurred by the Indemnified Parties or any of them arising from your action including negligence, misrepresentation, fraud, breach of law or breach of the Terms. You indemnify the Indemnified Parties for any Loss or Claim suffered or incurred from the unauthorised use of your Username or a Password.
  2. If the Indemnified Party caused or contributed to a Loss or Claim, then your liability under section (c)(1) above is limited to the amount of the Loss or Claim which is directly attributable to your conduct.

7. Changes to Terms

  1. What can we do? We may change any of the Terms (including the Fees, which are specifically dealt with in section 2.4(b) above).
  2. Prior notice - We’ll endeavour to give you at least 10 days’ prior notice (longer if required by legislation or any other code of conduct we subscribe to) of any change that is likely to materially affect or disrupt the manner in which you use MYOB AccountRight Live, except in circumstances where such a change is due to a change by a Third Party and we were not aware of the change in advance. In these circumstances we will endeavour to notify you in a reasonable time period after becoming aware of the change.
  3. Urgent changes - However, if we need to restore or maintain the security of MYOB AccountRight Live immediately, we may change your use and access to MYOB AccountRight Live without advance notice.

8. Notices

You will agree that all communications between you and us in relation to MYOB AccountRight Live will be by email, by notification through your MYOB AccountRight product or by us posting a notification on the MYOB website (myob.com), unless another method is agreed to by the addressee.

Any notice or other communication to or by a party by email is regarded as being given by the sender and received by the addressee when a delivery confirmation report is received by the sender which records the time that the email was delivered to the addressee’s email address (unless the sender receives a delivery failure notification indicating that the email has not been delivered to the addressee).

If the delivery or receipt is on a day which is not a Business Day or is after 5.00pm (addressee’s time) it is regarded as received at 9.00am on the following Business Day.

We may provide a notice or other communication to you by a posting to the MYOB website. That notice or other communication is regarded as being given by us and received by you when the posting is made to the MYOB website. We recommend that you bookmark and regularly check the MYOB website (myob.com) for notices or other communications.

9. Legal

You should note a few things about the Terms:

  1. Our complete agreement – The Terms, the software licence agreement for your MYOB AccountRight product and any other documents incorporated by reference, contain the whole of the agreement between us and you in relation to MYOB AccountRight Live. Any representations or warranties made by our staff before you are accepted for participation in MYOB AccountRight Live are not effective unless expressly set out in the Terms or the other documents specified above. Any waiver of our rights or powers under these Terms may only be given in writing signed by our authorised officer.
  2. What happens if some of the Terms can’t operate? ? If any part or provision of these Terms are void, unenforceable or illegal in a jurisdiction, that part or provision does not apply in that jurisdiction. However, the remainder of the Terms continue in operation in that jurisdiction unless this would alter the basic agreement between you and us, in which case we can terminate your use of MYOB AccountRight Live at our election.
  3. No waiver by us – If we do not insist upon strict performance of any part or provision of these Terms, that waiver will not be deemed to be a waiver of a subsequent breach or default of these Terms.
  4. Assignment – You cannot assign or otherwise transfer the benefit of the agreement between us and you without our prior written consent. We can assign or otherwise transfer the benefit of the agreement between us and you.
  5. Which laws apply to the Terms? The Terms are governed by the laws of Victoria and the courts of Victoria have jurisdiction over the parties to the Terms (being you and us).

10. Your privacy

  1. The collection of limited Personal Information is essential to our ability to provide MYOB AccountRight Live. The collection, use and disclosure of your Personal Information by us is regulated by the Privacy Act and other laws which protect your privacy. For more about our policy on the management of your Personal Information generally, see our Privacy Policy which is available by request or on the MYOB website at http://myob.com.au/pages/privacy-policy-1258090884370.
     
  2. You consent to the sharing of information including your Personal Information between us and Microsoft in relation to your use of MYOB AccountRight Live. You acknowledge and consent that MYOB, Microsoft and its agents may, in providing part of MYOB AccountRight Live transfer, host and process your information, including your Personal Information and any information entered into MYOB AccountRight Live, which may include the Personal Information of third parties (such as your employees, suppliers or contractors), in Singapore, the United States and other countries. You acknowledge that while service providers will often be subject to other confidentiality or privacy obligations, they may not in all cases be subject to the specific requirements of Australian privacy laws.
     
  3. You consent to the sharing of information including your Personal Information between us and BankLink in relation to your application for, and if you are approved, the ongoing administration of your use of the BF.
     
  4. Notwithstanding the Privacy Policy, we may observe your use of MYOB AccountRight Live and access all information you input or can access through MYOB AccountRight Live. This will enable us to assist you with problems and make improvements for future versions of MYOB AccountRight Live and other products and services. Microsoft may also use your data, including Personal information, to provide part of MYOB AccountRight Live. This includes Microsoft: (1) troubleshooting problems affecting the operation of the Microsoft services relevant to MYOB AccountRight Live; (2) improving features that detect and protect against emerging and evolving threats (e.g. malware); and (3) obtaining statistical data, trends and usage information for the purposes of providing, operating, maintaining and/or improving their service. For further information on how Microsoft may use your information please read their Windows Azure Platform Privacy Statement (current at the date of these Terms) at http://www.microsoft.com/online/legal/en-us/azure_privacy_statement.htm.
     
  5. You must ensure that all Users read this ‘Your privacy’ section and the policies described above before using MYOB AccountRight Live or providing their Personal Information to us.
     
  6. If you provide any Personal Information about third party individuals to us, you must take reasonable steps to ensure that those individuals are aware of the matters in this ‘Your Privacy’ section and that we may collect, use and disclose their information to provide you with MYOB AccountRight Live.
 

Copyright © MYOB Technology Pty Ltd. All rights reserved.