Important – Please Read Carefully
This end user licence agreement (“Licence Agreement” or “agreement”) constitutes a legal agreement between the end user and / or their nominated representative (“you”) and MYOB in relation to the MYOB Greentree Software (“Software”). The Software includes the bundle of features, functionality and services (including the source code, object code, interface design, database structures, applications, documentation, training material, procedures and processes) that MYOB makes available from time to time.
If you make this agreement in New Zealand then the agreement is with MYOB NZ Limited and is governed by the laws of New Zealand. If you make this agreement in Australia or any other country then this agreement is with MYOB Australia Pty Ltd and is governed by the laws applicable in Victoria, Australia. Each of MYOB NZ Limited and MYOB Australia Pty Ltd (as applicable) is referred to as “MYOB”, “we” or “us”.
By installing, copying or otherwise using the Software, you agree to follow and be bound by the terms of this Licence Agreement. If you do not agree, do not install, copy or use the Software.
MYOB may change this agreement or the relevant fees from time to time, as explained in sections 1 and 10.2. You can terminate this agreement if you do not accept certain changes as outlined in section 11.3.
1. Changes to this Agreement
(a) We may change the terms and conditions of this agreement from time to time by notifying you in writing. We will give you at least 30 days written notice if the changes are significant or are likely to have a detrimental impact on you. We will be reasonable and fair when we make any changes to the terms and conditions.
(b) If we make a change to this Agreement that is detrimental to you (including a change in fees), you have termination rights (see section 11.3).
2. Grant of Licence
(a) Upon your acceptance of this Licence Agreement, MYOB grants you a non-exclusive, non-transferable licence to use the Software in accordance with the terms of this agreement. You understand and accept that the Software is only to be used in Australia and New Zealand (as the case may be).
(b) Your continued use of the Software is subject to payment of any fees specified by MYOB or your MYOB Greentree Business Partner. Refer to section 10 for further information.
(c) All right, title, ownership and interest including the intellectual property rights in and to the Software (including any updated or modified version of the Software and any modifications done for you) shall remain and continue to be held by MYOB or its licensors.
(d) Evaluation Client Access Licence: If you have permission from MYOB to evaluate the Software, you may install the Software on a temporary basis for evaluation purposes only. Unless otherwise stated, the evaluation period is limited to 60 days from the date the Software is installed (“Evaluation Period”). Upon completion of the Evaluation Period your licence to use the Software expires. During the Evaluation Period, the Software is provided on an “as is” basis.
3. Licence Restrictions
You may not:
(a) permit other individuals to use the Software except under the terms of this Licence Agreement and (if applicable) any master service agreement between you and MYOB directly relating to the supply of the Software from MYOB to you (“MYOB Master Service Agreement”);
(b) modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law) or create derivative works based on the Software;
(c) copy the Software (except for back-up or archival purposes);
(d) resell, rent, lease, transfer, or otherwise transfer rights to the Software unless expressly permitted by us;
(e) remove any proprietary notices or labels on or in the Software; or
(f) use the Software in a way that contravenes any applicable law, or breaches MYOB’s intellectual property rights or the intellectual property rights of any third party.
4. Licencing levels and configuration
(a) Your initial licencing levels and other Software configuration (“Software Configuration”) will be as specified on the relevant order form or other notification provided to you. Your Software Configuration can be viewed at any time within the Software under ‘Registration Details’ field.
(b) You agree to:
(i) comply with all limitations within your Software Configuration, as specified by MYOB or your MYOB Greentree Partner; and
(ii) not use any means to avoid or undermine the intent of the limitations of your Software Configuration (e.g. by using “multiplexing” or “pooling” software or hardware).
5. Jade Software
(a) Aspects of the Software have been developed using JADE software developed by Jade Software Corporation (“JSC”). All intellectual property rights subsisting in JADE and the trademarks JADE™ are owned by JSC or its related companies.
(b) MYOB is authorised to license JADE Database Server Connections (number of allowable concurrent connections to the JADE database server) to end users.
(c) MYOB grants you a licence for Database Server Connections solely for the purpose of running the Software for your internal business purposes and such licence will end when this Licence Agreement comes to an end or is otherwise terminated.
6. Product Maintenance
MYOB provides improvements and enhancements to the Software from time to time, including Software updates and bug fixes (Product Maintenance). Refer to section 10 for further information about fees, including fees that relate to Product Maintenance.
7. Software Performance monitoring
You understand and accept that the Software may contain performance monitoring tools, which MYOB may use for the purpose of:
(a) monitoring the performance of the Software (including through in-product surveys);
(b) generating and storing statistics in relation to your use of the Software; and
(c) checking your compliance with the terms of this agreement.
8. Third Party Software or Services
8.1 Third Party Software Products
Except where expressly stated otherwise:
(a) this agreement does not grant you any rights in relation to any third party software products acquired in conjunction with the Software, for example third party database products; and
(b) you are responsible for obtaining the necessary licences for such third party software products as you may require. You acknowledge that the licensing scheme for third party software products may not correspond with the licensing scheme for the Software.
Other applications or services may be developed by third parties to be used in conjunction with the Software. If you install or enable third party applications for use with the Software:
(c) you consent to us allowing the third party applications to access your data as required to enable our Software and the third party application to operate together.
(d) Any exchange of data or other interaction between you and a third party provider is solely between you and them.
(e) Unless otherwise expressly stated in this agreement or required by law, we are not responsible for any third party applications that you may obtain or connect to the Software.
8.2 Work Performed by Third Parties
You may, as part of your installation or ongoing operation of the Software, separately engage the services of a third party service provider such as a MYOB Greentree Business Partner. These services are supplied independently of MYOB and to the extent permitted by law MYOB accepts no responsibility or liability in respect of the services provided to you by any MYOB Greentree Business Partner.
9. Licence for QlikTech Products
(a) This section 9 only applies to End Users that have obtained a licence through MYOB or its affiliates to use certain product(s) owned by QlikTech International AB and its affiliates (QlikTech Products). Qliktech Products include Greentree branded products which use QlikTech technology, such as “Greentree IQ, Powered by QlikTech”.
(b) In order to comply with our agreement with QlikTech, we must impose certain additional conditions upon End Users using QlikTech Products. These conditions are set out in this section 9.
For the purposes of this agreement, QlikTech Products fall within the definition of Software. In the case of any inconsistency with other terms of this agreement, this section 9 prevails.
(c) MYOB grants you a non-exclusive, non-transferable, perpetual and non-assignable licence to the QlikTech Product(s) for your internal business purposes.
(d) If your QlikTech Products are distributed on a subscription, Software as a Service (SaaS) or Application Service Provider model, your licence shall not be perpetual.
(e) You are prohibited from using QlikTech Products other than in accordance with the provisions of this agreement. For the avoidance of doubt, this prohibition is only intended to apply to QlikTech products or services licensed through MYOB or its affiliates.
(f) The scope of your QlikTech Product licence will depend on the product in question. There are broadly two categories:
(i) (If you have acquired a Greentree Only licence) You are prohibited from using QlikTech Products in any way other than integrated with the data structures of Greentree and QlikView table files. Under no circumstances whatsoever may you use the QlikTech Products independently or separated from the Greentree product. Other third party data sources cannot be connected; or
(ii) (If you have acquired an Extended Data Use licence) Unlike the Greentree only licence, you are permitted to connect additional data sources. ‘Additional data sources’ means SAP, Oracle, Salesforce or similar transactional applications.
(g) We reserve the right to conduct audits at your premises to ascertain whether the use of the QlikTech Product(s) complies with the provisions of this agreement. Please note that MYOB must reserve this right in order to comply with its agreement with QlikTech.
(h) You shall have no ownership rights in the QlikTech Products. Ownership of the QlikTech Products and the copyright and all other intellectual property rights in, and associated with, the QlikTech Products shall remain at all times with QlikTech or its licensors. You shall not have any rights in the trademarks, service marks or designs of QlikTech, all of which remain the exclusive property of QlikTech.
(i) You shall ensure that any copy of a QlikTech Product is:
(i) produced only in accordance with the terms of this agreement and for your own benefit; and
(ii) clearly marked on the copy that such copy is subject to copyright and confidentiality,
and that a written list is maintained of the number of copies and place of storage.
(j) You may not sub-license, publish, display, disclose, rent, lease, modify, loan, distribute, or create derivative works of the QlikTech Products or any part thereof. You may not transfer the QlikTech Products except as provided in this agreement.
(k) You may not reverse engineer, decompile, disassemble, translate, or adapt the QlikTech Products, nor shall you attempt to create the source code from the object code of the QlikTech Product software unless explicitly permitted by applicable and mandatory law.
(l) You shall have no right to grant sub-licences or to assign the benefit or burden of the agreement in whole or in part. Further, you shall discontinue use and destroy or return all copies of the QlikTech Products on termination of this agreement.
10. Fees
10.1 Your obligation to pay fees
Unless otherwise stated, we will invoice you and require payment in advance for any fees payable under this agreement, at a frequency stated in the applicable quotation or other disclosure.
10.2 Changes to fees
By giving you at least 30 days’ notice before the change takes effect, we may change:
(i) the amount of any fee or introduce a new fee; and
(ii) the circumstances in which, or frequency with which, a fee is payable.
Section 16 tells you about the ways in which we can give you notice. Please also refer to your rights to terminate our agreement set out in section 11.3.
10.3 If you use the Software on a subscription basis:
(a) You agree to pay all subscription fees due in relation to Software. Depending on the circumstances, such fees may be payable directly to MYOB or through your MYOB Greentree Business Partner.
(b) Payment of subscription fees entitles you to Product Maintenance (see section 6).
(c) The nature of the fees (including any calculation method and invoicing period) will be disclosed to you at the time you first subscribe for the Software. MYOB is entitled to vary its fees in accordance with section 10.2, noting you will have termination rights in that case (see section 11.3).
10.4 If you have purchased the Software upfront:
(a) Product Maintenance is not included in your upfront licence fee. We strongly recommend that you subscribe for Product Maintenance while using the Software.
(b) As a condition of your licence, you are required to subscribe for Product Maintenance for this first year after first acquiring the Software. The relevant fee will be disclosed at the time you acquire the Software. Such fees will be payable directly to MYOB unless otherwise specified.
(c) Product Maintenance fees are charged on an annual basis. Unless an exception applies (see sections 11.3, 11.4 and 13.2), you will still be liable for the applicable fees for the full year if you decide to terminate your access to Product Maintenance during the annual term.
10.5 Where Fees are calculated based on User numbers
If your Fee depends on how many users you have:
(a) you agree to let us check your number of users whenever we want but no more than once every three months. You must give us the access we need to do the check;
(b) if your number of users goes up by more than 5%, you must notify us in writing immediately. You must tell us before the number of users goes up if you can; and
(c) where an increase in user numbers means that your Fees increase, that increased Fee is payable from the date of users number increase regardless of whether you told us of that increase at the time, and regardless of whether we have exercised our right to audit users numbers.
10.6 Other important information about fees
(a) Unless otherwise stated in this agreement, if you terminate your:
(i) Ongoing Software subscription during a subscription period – you will be required to pay fees until the effective date of termination.
(ii) Product Maintenance during an annual term - you will be required to pay fees for the full annual term.
(b) Unless otherwise stated in this Agreement or required by law:
(i) payment obligations are non-cancellable and fees paid are not refundable;
(ii) if you authorise an upgrade to your Software configuration, the difference in fees between the existing and upgraded Software configuration will be charged on a pro-rata basis for the remainder of the relevant billing period. Your fees will be increased to reflect your upgrade in the next billing period;
(iii) if you authorise a downgrade to your Software configuration, your fees will be decreased in the next billing period.; and
(iv) if you change your Software configuration to a different Software configuration of the same value, we will continue to charge you the same fees, and will adjust the Software configuration to the new Software configuration.
(c) If you exceed the level of inclusions that you’ve paid for as part of your Software configuration, we will charge you for that excess in your next billing period (at the then current prices).
(d) If any amount payable to us under this agreement has not been paid by you by the due date for payment:
(i) we may charge interest on the amount outstanding at the penalty interest rate fixed under the Penalty Interest Rate Act 1983 (Vic) as amended or replaced from time to time (if the laws of Victoria, Australia apply to this Agreement) or at an interest rate equal to the official cash rate of the Reserve Bank of New Zealand plus five percent (if the laws of New Zealand apply to this Agreement); and/or
(ii) (without prejudicing the other rights we have under this agreement) we may suspend the supply of the Software (including the supply of Product Maintenance or registration codes) if you fail to make payment within 14 days of receiving a reminder notice from us requiring you to do so. We will lift any suspension as soon as we reasonably can after all outstanding amounts have been paid.
11 Termination and Suspension
11.1 Termination for convenience
After expiry of any minimum term specified in your order form, you may terminate your Licence at any time for any reason by giving MYOB or your MYOB Greentree Partner at least 90 days’ prior written notice to that effect.
11.2 Termination by non-renewal
Either party may terminate this Licence by giving the other party at least 90 days’ prior written notice of its intention not to renew the Licence for a further period.
11.3 Your right to terminate if we make certain changes
If we make a change to this agreement that is detrimental to you (including a change in fees), you can choose to end this agreement within a reasonable time after we tell about the change. To do this, you need to give us 7 days written notice. If you end the agreement under this section 11.3, you will not have to have the fees for the period after the effective date of termination. You will also be entitled to a refund for any fees prepaid for the period after the effective date of termination.
11.4 Termination due to default
(a) “Event of Default” means, in relation to a party, the occurrence of any one or more of the following events or circumstances:
(i) the party commits a material breach of its obligations under this agreement or an MYOB Master Service Agreement;
(ii) the party ceases to be able to pay its debts as they become due;
(iii) the party is subject to any step to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person of the whole or any part of the party’s assets or business; or
(iv) a notice of deregistration of the party is given under sections 601AA(5) or 601AB(5) of the Corporations Act (Au), a request is sent or delivered in accordance with section 318(1)(d) of the Companies Act (NZ), or a notice is issued under section 319 of the Companies Act (NZ).
(b) If an Event of Default occurs in relation to a party (“Defaulting Party”):
(i) the other party may give a notice (“Default Notice”) to the Defaulting Party specifying the Event of Default and requiring the Defaulting Party to remedy the default within 30 days after the Default Notice is given to the Defaulting Party; and
(ii) if the Defaulting Party does not comply with the notice within the relevant period then the other party, without limiting its other rights and remedies, may terminate this agreement by giving to the Defaulting Party notice with immediate effect.
(c) If you end the agreement under section 11.4(b), you will not have to have the fees for the period after the effective date of termination. You will also be entitled to a refund for any fees prepaid for the period after the effective date of termination.
11.5 Suspension by MYOB
We can suspend your Licence or access to Product Maintenance without prior notice in certain situations if necessary. If we cannot notify you beforehand, we will do so as soon as possible thereafter. The situations are as follows:
(a) A breach occurs – If you commit a material breach of this Agreement.
(b) Ongoing operation of the Software – If in our reasonable opinion:
(i) the ongoing operation of the Software is rendered substantially unworkable or non-functional;
(ii) the actions of a regulator or a change in law or regulation makes ongoing operation of the Software substantially unworkable or non-functional; or
(iii) it is necessary to protect the security, integrity, operations or reputation of the Software, or any Software function, service or facility, or otherwise protect our interests.
We will lift the suspension as soon as we reasonably can after resolving the issue(s) that caused it.
11.6 Termination by MYOB
We may terminate your Licence or access to Product Maintenance with immediate effect by giving notice if any of the events in section 11.5(b) occur.
12. Warranties
(a) We warrant that the Software, as updated and when properly used, will perform substantially in accordance with its documentation and that the Software will be free from other material defects in materials and workmanship provided the Software is used in accordance with the terms of this agreement, the documentation and any reasonable directions that we give you related to the Software.
(b) We will take reasonable care in providing the Software but we do not warrant that the Software is bug or error free.
(c) The Software will not operate in compliance with legislation in jurisdictions other than Australia and New Zealand.
13. Limitation of liability
13.1 Limits to our liability
Our liability to you for any non-compliance with a statutory guarantee, or loss or claim arising out of or in connection with the supply of goods or services under this agreement, or any breach by us of this agreement however arising (whether in contract, tort, negligence, statute or otherwise), is limited to:
(a) the resupply of the Software or related services; or
(b) the cost of re-suppling the Software or related services,
and in any event will be limited to the fullest extent permitted by applicable law.
13.2 Where the Australian Consumer Law (“ACL”) applies
(a) Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law (“ACL”). For major failures with the service, you are entitled:
(i) to cancel your service contract with us; and
(ii) to a refund for the unused portion, or to compensation for its reduced value.
(b) You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done, you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
(c) This agreement does not exclude, restrict or modify the application of any part of the ACL, or the exercise of any right or remedy conferred by the ACL.
13.3 Where the New Zealand Consumer Guarantee Act ("NZ CGA”) and Fair Trading Act (“NZ FTA”) would otherwise apply
(a) For the purposes of section 5D of the NZ FTA and section 43 of the NZ CGA:
(i) the goods and services provided to you under or in connection with this agreement are being provided and acquired in trade;
(ii) if the NZ FTA and/or NZ CGA applies to any goods or services supplied to you under or in connection with this agreement, the parties agree to contract out of the NZ CGA and sections 9, 12A and 13 of the NZ FTA; and
(iii) all representations, conditions, warranties and terms that would otherwise be expressed or implied under this agreement by general law, statute or custom are expressly excluded (to the extent that such representations, conditions, warranties and terms can be excluded at law).
(b) Except as specified in section 13.3(a), this agreement does not exclude, restrict or modify the application of any part of the NZ CGA or NZ FTA, or the exercise of any right or remedy conferred by the NZ CGA or NZ FTA.
13.4 When we will not be liable to you
(a) We will not be liable to you for any error, problem or defect arising from or in connection with:
(a) your or your users’ access or use of the Software in a manner not authorised by us in writing, including access or use with any hardware, software or other services not authorised by us in writing;
(i) enhancements, adaptations, translations or modifications of the Software not made by us;
(ii) faults, malfunction or defect in any Other Applications not supplied by us; or
(iii) telecommunications or power failure or fault, or defective network or Internet connection.
(b) We will not be liable to you to the extent that a failure to deliver the Software or related services was caused or contributed to by:
(i) you, your third party providers, personnel or users;
(ii) a breach of obligations under this agreement by you, your third party providers, personnel or users; or
(iii) any of the circumstances set out in section 11.5(b).
13.5 Mutual liability cap
Except in accordance with sections 13.2 and 13.3, in no event will either party’s aggregate cumulative liability (whether in contract, tort, negligence, statute or otherwise) arising under or in connection with this agreement, exceed an amount equal to the fees paid by you to us in the 12 months immediately prior to the event that triggered liability.
13.6 Mutual exclusion of liability for consequential loss
Except in accordance with sections 13.2 and 13.3, in no event will either party be liable for any indirect loss (not being a loss which arises naturally as a result of a breach of this agreement or other event giving rise to the relevant claim) or any loss which is consequential, special, punitive, exemplary or incidental, and includes loss of reputation, loss of goodwill, lost profits, lost revenue, loss of or damage to data, loss of use (including loss of use by third parties), any failure to realise anticipated savings and loss of opportunities, wasted staff costs, or costs of procurement or substitution of goods and/or services.
13.7 Proportionate liability
Each party’s liability under the agreement is reduced proportionately to the extent that such liability is caused or contributed to by the breach of this agreement or the wrongful, unlawful or negligent act or omission of the other party or its personnel.
13.8 Mutual duty to mitigate loss
Each party must use all reasonable endeavours to mitigate its losses.
14. Privacy and data
14.1 Privacy
(a) You are responsible for the collection, use, storage and other dealings with Personal Information related to your Business. You must comply, and ensure that your personnel or Users comply, with Privacy Laws in relation to any Personal Information that you or they handle in connection with this Agreement, including any Personal Information that you or they provide to us under or in connection with this Agreement. This includes, but is not limited to, obtaining all necessary consents under Privacy Laws.
(b) If you provide Personal Information about third parties to us, you must ensure that those individuals have given appropriate consents as required by Privacy Law.
14.2 Protection of your data
You acknowledge that the data stored on third party products (such as database servers and hardware) is your responsibility to maintain, archive, backup, report from and similar, and to undertake whatever is necessary to ensure the protection of and access to the information, beyond the use of the Software.
15. Privacy Disclosure Statement
(a) We collect, disclose and use your Personal Information to provide and support MYOB Greentree, and to promote products and services from us and our partners. We may get Personal Information from you, from public sources like social media, and from third parties that give us marketing leads.
(b) We may share your Personal Information with our related entities and with third parties that we hire to help us. These entities may be in Australia, New Zealand or other countries. If you do not give us your Personal Information, we may not be able to do business with you.
(c) You agree to let us collect, use and disclose your Personal Information for the reasons above.
(d) You can access our privacy policies at myob.com/privacy. These policies include additional information on how we handle Personal Information, and how to contact us with privacy questions or complaints.
(e) If you are in Australia, you can email us at privacy@myob.com or write to us at “Privacy Officer”, MYOB Australia Pty Ltd, PO Box 73, Richmond Victoria 3121.
(f) If you are in New Zealand, you can email us at privacy@myob.com or write to us at “Privacy Officer”, MYOB NZ Limited, Level 5, Eden 5, 12 Normanby Road, Mount Eden, Auckland 1024.
16. Notices
(a) You will agree that all communications between you and us in relation to the Software or related services will be:
(i) by email;
(ii) in-product notification by us; or
(iii) through your MYOB Greentree Partner.
(b) 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).
(c) 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.
17. Legal
You should note a few things about this Agreement:
(a) Entire agreement. This Agreement constitutes the entire agreement between us and you in relation to its subject matter, and supersedes any prior written agreement by the parties in relation to that subject matter.
(b) What happens if this Agreement can’t operate? If any part or provision of this Agreement is void, unenforceable or illegal in a jurisdiction, that part or provision does not apply in that jurisdiction. However, the remainder of the Agreement will continue in operation in that jurisdiction unless this would alter the basic agreement between you and us, in which case either party may terminate this Agreement.
(c) No waiver by us – Any failure by a party to exercise any right under this Agreement does not operate as a waiver and the single or partial exercise of any right by that party does not preclude any other or further exercise of that or any other right by that party.
(d) Assignment – You cannot assign or transfer the benefit of this Agreement without our written consent. We will not unreasonably withhold consent. We may ask the proposed assignee to pass our reasonable identity or credit checks before we agree to the assignment. We may assign, novate or otherwise transfer our rights and/or obligations under this agreement to a related entity, or any entity that acquires all or most of our business or assets related to MYOB Greentree. We will give you notice if we do this. This Agreement will apply to and benefit the parties and their permitted successors and assignees.