Dated: 23 December 2011
These are the terms and conditions for our supply of the MYOB LiveAccounts Service to you, including our obligations to each other (Terms).
These Terms do not exclude, restrict or modify:
(i) 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);
(ii) the exercise of any right or remedy conferred by the ACL; or
(iii) the liability of MYOB for a failure to comply with any applicable consumer guarantees where to do so would:
(iv) contravene the ACL; or
(v) cause any part of these Terms to be void.
Some words in these Terms have particular meanings:
Bank Data Service or BDS 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 BDS and that is available for you to access as part of the MYOB LiveAccounts Service.
BankLink means Media Transfer Services Limited trading as BankLink.
Business Day means a week day, except for:
- a national public holiday;
- a day on which banks in Victoria or New South Wales are generally closed; or
- a public holiday in Victoria.
Business means the business for which the application is made and accepted for MYOB LiveAccounts. This would include, but is not limited to, sole traders, partnerships, companies and trusts.
Fees means fees and charges relating to the provision of the MYOB LiveAccounts Service.
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.
MYOB LiveAccounts Service means any of the services, facilities or functionality which form part of MYOB LiveAccounts and which we make available to you from time to time. This includes the BDS.
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).
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 the MYOB LiveAccounts Service. This includes BankLink and all other service providers engaged by us for the delivery, maintenance and administration of MYOB LiveAccounts.
User means a person authorised by you to use MYOB LiveAccounts (including a Professional Partner). MYOB LiveAccounts is a multi-user system.
we, us and our means MYOB Australia Pty Ltd ACN 086 760 198.
you means the Business, including each User.
(a) Unless you take adequate security precautions, it could be possible for an unauthorised person to gain access to your MYOB LiveAccounts Service. 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 LiveAccounts using your username and password; and
(3) you must be extra careful when accessing MYOB LiveAccounts from public computers.
(b) If you think anyone else might know your password you should reset your password from within MYOB LiveAccounts, or contact us as soon as possible to arrange a new password.
(c) You agree to be liable if your login details are used by an unauthorised person.
(a) No interference with MYOB LiveAccounts – You will not:
(1) interfere with the operation of MYOB LiveAccounts or overload the system;
(2) reverse-engineer, reverse-assemble, decompile, or otherwise attempt to discover source code, formulas or processes in respect of the software behind MYOB LiveAccounts; or
(3) copy, reproduce, alter, modify, create derivative works, or publicly display, any part of any content from MYOB LiveAccounts except where we have given you permission.
(b) 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 LiveAccounts; and
(2) authorise us to give a Third Party or other person any authority, consent or instruction in respect of MYOB LiveAccounts, to enable us to provide the MYOB LiveAccounts Service to you.
(c) Adding other Users – You can add other users to MYOB LiveAccounts. Their use of MYOB LiveAccounts is subject to these Terms, so we suggest that you provide them with a copy. You are responsible for their use of MYOB LiveAccounts. You can stop their access by removing them from your user list within MYOB LiveAccounts or by contacting us.
(d) Giving access to your Professional Partner - You can authorise a Professional Partner to have access to your MYOB LiveAccounts data. They will be able to view and modify your data. Their use of MYOB LiveAccounts is subject to these Terms, so we suggest that you provide them with a copy. You are responsible for their use of MYOB LiveAccounts. You can stop their access by removing them from your user list within MYOB LiveAccounts or by contacting us.
(e) Change of details – You must let us know of any changes to your details which you have provided to us in relation to MYOB LiveAccounts, and provide any proof of the change we require.
(a) What you can do – until your use of the MYOB LiveAccounts Service is terminated, you have a non-exclusive and non-transferable licence to use the MYOB LiveAccounts Service in the way that we authorise from time to time.
(b) 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.
(c) Intellectual property rights deriving from your use of MYOB LiveAccounts – You agree that any intellectual property rights in any systems, processes or methodologies developed by you which derive from your use of the MYOB LiveAccounts Service become our intellectual property.
If you are a trial user, you will be able to use MYOB LiveAccounts free of charge for 30 days. At the end of this period, you have the option of subscribing to MYOB LiveAccounts for a fee. If you do not subscribe, your access to MYOB LiveAccounts will be restricted. This means that you will have read-only access to reports for an additional 60 days. After this time, you will no longer be able to log in to MYOB LiveAccounts or access your data. If you do not subscribe, we strongly recommend that you extract your data for archive purposes.
(a) You must pay us all Fees due to us in relation to your use of MYOB LiveAccounts, on the due date. Fees are published on the MYOB LiveAccounts website.
(b) 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.
(c) You authorise us to deduct monthly instalments and any other Fees payable to us in respect of your use of MYOB LiveAccounts. You give us this authority by providing us with your credit card details.
(d) Debiting of Fees will ordinarily occur on the 1st Business Day of each month (but may occur at other times as required or permitted under these Terms) and can be in advance or in arrears as we determine. We will provide a monthly statement/tax invoice detailing the Fees that have been debited.
(e) The first payment will be pro-rated according to the end of the trial period for the appropriate number of days till the end of that month.
(f) It is your responsibility to ensure you have sufficient credit available on your nominated credit card to cover your monthly payment and that your card details are current and correct.
(g) If the debit to your card is declined, we will attempt to re-draw 3 times. If these attempts fail, we will advise you by email of the decline and You will be allowed 14 days to respond. Where the fees remain unpaid, we may suspend or terminate your use of MYOB LiveAccounts.
(h) If you believe there has been an error in debiting your credit card, you should notify us immediately at email@example.com so that we can resolve your query promptly. If we conclude that your credit card has been incorrectly debited, we will arrange a refund of the incorrect debit.
(a) 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.
(b) You must pay all duties (eg. stamp duty, other government charges or financial institution account fees) payable in relation to your participation in MYOB LiveAccounts. If we have paid them, they must be reimbursed by you on our request.
The following terms and conditions apply only to the use of the Bank Data Service:
1. Access to Bank Statement Information: under the BDS, you can receive Bank Statement Information for all nominated bank accounts that you have linked to the BDS. The time when that information will normally be available is described on the MYOB LiveAccounts web site. If you want to use the BDS, you will need to provide an authority form that will enable a Third Party to request your bank to provide Bank Statement Information to us.
2. Fees: if the bank whose accounts are linked to the BDS charges you directly for fees in connection with your account and your use of the BDS 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 BDS to you.
3. Fair Use Policy for the BDS: Although we do not currently apply a fee on the number of bank statement transactions received through the BDS, 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 clause, we reserve the right to charge for transactions if the total number of transactions in a month exceeds 100, at a rate not greater than $0.11 per transaction (including GST) in excess of 100 transactions.
The MYOB LiveAccounts Service could be disrupted if systems failure occurs due to technology used by either us or Third Parties involved in providing the MYOB LiveAccounts Service. Delayed receipt of Bank Statement Information could result in transactions not being available on a particular day.
The MYOB LiveAccounts Service 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 the MYOB LiveAccounts Service or any part of it being delayed, disrupted or unavailable.
You can cancel your participation in MYOB LiveAccounts by giving us at least 20 days written notice before the end of the current month of your subscription. The effective date of termination will be the last day of the current month of your subscription. .
Your participation in MYOB LiveAccounts 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 LiveAccounts up to the effective date of termination. Refer also to section 5.3 below for other important content about what happens on the effective date of termination.
These are the situations in which we can terminate your participation in MYOB LiveAccounts without prior notice. We will notify you of your suspension or termination as soon as possible.
The situations are:
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;
Something threatens MYOB LiveAccounts:
in our opinion, a change to any Third Party arrangement necessary for MYOB LiveAccounts renders the ongoing operation of MYOB LiveAccounts 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 LiveAccounts substantially unworkable or non-functional; or
we believe this is necessary either to protect the security, integrity or reputation of MYOB LiveAccounts or any MYOB LiveAccounts function, service or facility, or to otherwise protect our interests;
We have concerns about your Business:
we receive notification of a dispute from one or more of the directors or principals of 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) We will make reasonable attempts to notify you in writing (which includes by email) of the termination.
(2) We can reinstate a 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 terminate your participation or use under section 5.2(a) 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?
(a) Limited period for data extraction: you will have 30 days from the effective date of termination to extract your data from the MYOB LiveAccounts system, after which time you and other Users (including your Professional Partner) will have no further access to MYOB LiveAccounts or your data. The data will be deleted from our servers. We strongly recommend that you extract your data for archive purposes.
(b) 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 LiveAccounts.
Subject to section 1 and to the extent permitted by law:
(a) No warranty that MYOB LiveAccounts is suitable for your needs
MYOB LiveAccounts is a generic service and its capabilities are likely to change over time. This means that MYOB LiveAccounts may not be, or may not remain, suitable for your needs.
You must assess the ongoing suitability of MYOB LiveAccounts for you and your Business. We are not aware of your individual business needs and cannot provide any specific recommendations regarding your use of MYOB LiveAccounts.
(b) Liability for other guarantees, conditions or warranties
(i) 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 LiveAccounts or the service; and
(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:
(3) the resupply of MYOB LiveAccounts or the service (as applicable); or
(4) the payment of the cost of resupply of MYOB LiveAccounts or the service (as applicable); and
(ii) all representations, conditions, warranties and terms (including claims in relation to our performance, the performance of MYOB LiveAccounts or any service associated with MYOB LiveAccounts) that would otherwise be expressed or implied in these Terms by general law, statute or custom are expressly excluded.
(c) When we and Third Parties will not be liable to you
We and Third Parties (including BankLink) are not responsible or liable to you or the Business for:
(1) any Loss or Claim relating to the provision of the Bank Statement Information or system data made available through MYOB LiveAccounts, including delays, disruptions, inaccuracies or the loss of data;
(2) any Loss or Claim relating to your use of, or reliance upon, the Bank Statement Information or system data provided to you through MYOB LiveAccounts;
(3) the actions or inaction of Third Parties or other persons (including those which may be negligent or unauthorised) relating to MYOB LiveAccounts;
(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 archive records of your data.
(d) Indemnity to us and Third Parties
You indemnify us, our staff and Third Parties (including 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.
(a) What can we do? We may change any of the Terms (including the Fees, which are specifically dealt with in section 2.5(b) above).
(b) Prior notice- We'll 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 LiveAccounts.
(c) Urgent changes- However if we need to restore or maintain the security of MYOB LiveAccounts immediately, we may change your use and access to MYOB LiveAccounts without advance notice.
You will agree that all communications between you and us in relation to MYOB LiveAccounts will be by email or by us posting a notification on the MYOB LiveAccounts web site, 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 LiveAccounts web site. That notice or other communication is regarded as being given by us and received by you when the posting is made to the MYOB LiveAccounts web site. We recommend that you bookmark and regularly check the MYOB LiveAccounts web site for notices or other communications.
You should note a few things about the Terms:
(a) This is our complete agreement – The Terms and the documents incorporated by reference, including your application, contain the whole of the agreement between us and you in relation to MYOB LiveAccounts. Any representations or warranties made by our staff before you are accepted for participation in MYOB LiveAccounts are not effective unless expressly set out in the Terms. Any waiver of our rights or powers under these Terms may only be given in writing signed by our authorised officer.
(b) 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 LiveAccounts at our election.
(c) 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.
(d) 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.
(e) 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).
The collection of limited Personal Information is essential to our ability to provide MYOB LiveAccounts. 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, see our Group Privacy Statement which is available by request or by clicking the 'Privacy' link on www.myob.com.au.
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 BDS.
Notwithstanding the Group Privacy Statement, we may observe your use of MYOB LiveAccounts and access all information you input or can access through MYOB LiveAccounts. This will enable us to assist you with problems and make improvements for future versions of MYOB LiveAccounts and other products and services.
You must ensure that all Users read this 'Your privacy' section and the policies described above before using MYOB LiveAccounts or providing their Personal Information to us.
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 the MYOB LiveAccounts Service.
MYOB LiveAccounts, LiveAccounts and the LiveAccounts logo are trade marks of MYOB Technology Pty Ltd