Practice Sales and Services Agreement

This Agreement sets out the terms and conditions that apply when you use certain Services and Products as a professional advisor, such as an accountant or a bookkeeper. The Services and Products include practice software, client accounting software, and related support, implementation, configuration, integration, training, consulting and other professional services.

You enter into this Agreement when you sign a Supply Order with us that references or incorporates these terms and conditions. This Agreement lasts as long as any Supply Order is in force. You can terminate a Supply Order or this Agreement by following the instructions in clause 11.

We may change this Agreement, the Services, Products or Fees from time to time. We will notify you of any changes as explained in clause 4. You may have certain rights if you do not agree with the changes.

1. Structure and term of this Agreement

1.1 Term of Agreement

This Agreement begins when both parties sign the first Supply Order and lasts until it is ended by either party as per clause 11.

1.2. Supply Orders

(a) You may request Services from us at any time. If we agree to provide the Services, we will send you a Supply Order that outlines:

(i) the Services we will provide;

(ii) the Fees you need to pay;

(iii) the start and end date of the Supply Order and any Minimum Term;

(iv) any minimum spend or quantity obligations you have; and

(v) any other terms and conditions that apply to you or to the Users of the Product(s), such as Product Terms or Module Terms.

You can accept the Supply Order by signing and returning it to us. We will not supply Services to you without a signed Supply Order.

(c) Either party may request a change to a Supply Order by submitting a change request in writing to the other party. The change is only valid if both parties sign a new Supply Order (unless otherwise permitted under clause 4).

1.3 Term of Supply Order

(a) Each Supply Order starts on the effective date specified in the Supply Order and continues for the term specified in the Supply Order (such as any Minimum Term), subject to clause 1.3(b).

(b) Unless a Supply Order says otherwise, each Supply Order will renew automatically for another 12 months after:

(i) the Minimum Term end; or

(ii) if there is no Minimum Term, 12 months from the date the Supply Order starts;

unless:

(A) one party gives the other party written notice of non-renewal at least 90 days before the current term ends; or

(B) the Supply Order is terminated earlier in accordance with clause 11.

1.4 Order of priority

If any of these documents conflict with each other, the order of priority is as follows (from highest to lowest):

(a) the terms of a Supply Order;

(b) any applicable Module Terms;

(c) any applicable Product Terms;

(d) the terms of this Agreement; and

(e) the terms of our Privacy Policy, which is incorporated as part of this Agreement.

2. Our general obligations

2.1 Provision of Services

If a Supply Order requires us to provide Services, we will:

(a) supply the Services according to the terms of the Supply Order and this Agreement;

(b) use due care, skill and diligence and follow good business practice for the industry;

(c) use Personnel who are qualified, experienced and suitable for the task;

(d) comply with Applicable Laws when performing our obligations under this Agreement and any Supply Order; and

(e) be responsible for the performance of the Services, even if we subcontract some or all of them to a Third Party or an Affiliate.

2.2 Provision of Products

If a Supply Order requires us to provide Subscription Services or Maintenance Services for Products, we will:

(a) grant you and your Users a licence to access and use the Product(s) in accordance with clause 7.2(b) for the term specified in the relevant Supply Order and any Data Extraction Period;

(b) use reasonable commercial endeavours to ensure that the Product(s) meet any requirements set out in the relevant Supply Order and do not introduce any Harmful Code into any of your systems;

(c) provide you with Updates and New Releases that are generally available to other customers. We may automatically install certain Updates or New Releases, including those that are critical to the functionality or security of the Product(s). You may not be able to access, use or continue to use the Product(s) properly if we or you cannot install Updates and New Releases;

(d) include any instructions, changes to existing documentation and information about changes to equipment or operating system specifications that are reasonably necessary for installing or using the Updates and New Releases; and

(d) perform Scheduled Maintenance on the Product(s) and try to minimise disruption to you. We will give you at least 7 days written notice of any Scheduled Maintenance that may cause disruption to you. However, we may do emergency repairs, modifications or additions to the Product(s) without notifying you if they are business critical, outside our reasonable control, and necessary to protect the integrity or security of the Product(s).

2.3 Maintenance Services

If a Supply Order requires us to provide Maintenance Services, the following conditions apply:

(a) We will provide the Maintenance Services that you have paid for and that are specified in the Supply Order. These services are only for the Product(s) that we or our partners have developed and agreed to provide to you. They do not include any Third Party software.

(b) We will provide the Maintenance Services during the working hours of our support team, as advertised from time to time on our website (https://www.myob.com/au/contact-us/support) or other channels.

(c) If you want onsite support or installation of Updates and New Releases, your Supply Order must include a Maintenance Services option that explicitly includes these services. Otherwise, you will have to pay extra Fees for these services.

(d) If you request that we fix an error or modify the software, subject to the situations listed in clause 2.2(e) (for which we are not responsible for providing Maintenance Services), we will assess and attempt to resolve your request. Any such request must include a clear example of the error and the data that we need to recreate the problem.

(e) The following are the situations where we are not responsible for providing any Maintenance Services to fix any problem with the Product(s):

(i) You or anyone else misuse the Product(s);

(ii) The equipment on which the Product(s) are used or the operating software or equipment is faulty or different from what we specified;

(iii) The equipment or operating systems used with the Product(s) have configuration problems;

(vi) You use other software with the Product(s) or you fail to meet an obligation under this Agreement or any Supply Order;

(vii) Routers, firewalls, anti-virus or other software or hardware prevent or limit the connectivity and performance of the Product(s); or

(viii) You fail to install the latest Update or New Release.

If any of these situations occur, we may try to fix the issue for an extra Fee. Some examples of other services that are not part of our Maintenance Services and that we may agree to provide for an extra Fee are: supplying or maintaining any equipment, reconstructing data (unless the Product has an error), consultancy services, education and training services and professional services.

2.4 Service Levels

We will use reasonable commercial endeavours to meet any Services Levels specified in the Supply Order.

2.5 Suspension of Services

If we believe that the security of the Product(s), your Customer Data, or any critical Product function, service, or facility is at risk, we can suspend:

(a) your and your Users’ access to or use of the Product(s); or

(b) our performance of our obligations under this Agreement or any Supply Order.

We will notify you in writing as soon as we do so. We will also lift the suspension as soon as we reasonably can after resolving the issue(s) that caused it.

2.6 Disruption of Services

We aim to provide our Services with minimal interruptions, but sometimes they may be affected by factors outside our control. These factors include, but are not limited to:

(a) problems with internet or telecommunications services, such as outages, delays, congestion, failures or faults;

(b) actions or omissions of Third Parties that are harmful, negligent or wilful;

(c) maintenance or repairs carried out by any Third Party on the systems we use to deliver our Services; or

(d) services provided by Third Parties that stop or become unavailable.

We will do our best to inform you of any disruptions and resume the Services as soon as possible.

3. Your general obligations

3.1 Your general obligations relating to Services

When you enter into a Supply Order with us, you agree to:

(a) follow the terms and conditions of this Agreement and the Supply Order;

(b) use the Product(s) or Services consistent with Applicable Laws including Tax Laws, Industrial Relations Laws, and Privacy Laws, without violating our or any Third Party's Intellectual Property Rights;

(c) co-operate with us and provide us with the necessary information, access, and assistance to deliver the Services, including as applicable:

(i) letting us communicate with your Users or relevant Personnel;

(ii) giving us access to your software, systems, and documentation;

(iii) providing us with accurate and timely information; and

(iv) allowing us to enter your premises;

(d) be responsible for the actions of your Users or Personnel who use the Services;

(e) not interfere with the operation of the Product(s) or Services;

(f) not copy, modify, or display any content from the Product(s) or Services without our written permission;

(g) appoint a qualified and informed support representative to work with our Personnel and inform us of any changes;

(h) provide qualified and trained Personnel to operate the Services;

(i) ensure that any Third Party service providers that you engage are fully qualified, experienced and have a sufficient understanding of our Services, Products and required environments;

(j) comply with the specifications and recommendations detailed by us from time to time, including on our website, for any equipment and operating environment that you install and maintain;

(k) take an up to date backup or copy of all important data used in your business before we install or provide any Services to you; and

(l) not act in a manner that is abusive or disrespectful to our Personnel (including our customer support teams).

3.2 Your obligations relating to Subscription Services and Products

If you purchase Subscription Services or Maintenance Services from us under a Supply Order, you agree to the following:

(a) You are responsible for managing the permissions and level of access granted to each of your Users and changing their permissions or stopping their access when necessary.

(b) You must not allow any Access Credential to be used by more than one User.

(c) You must notify us immediately if you suspect that any Access Credential has been compromised or misused.

(d) You must comply with the terms and conditions of any licence agreement between you and any Third Party that provides other applications or products that you use in conjunction with our Product(s). You must also pay any fees owed to the Third Party in addition to the Fees owed to us under the relevant Supply Order.

(e) You must not attempt to reverse-engineer, reverse-assemble, decompile, or otherwise discover the source code, formulas, or processes of the Product(s).

(f) You must not introduce any Harmful Code to the Product(s).

(g) You must use the Product(s) only on equipment and operating environments that we have approved for that Product, as notified on our website and in accordance with our operating procedures.

(h) You must comply with any limitations on the Product licence that are specified in the relevant Supply Order.

(i) If the Product is an installed software, you may copy the software only for backup and security purposes.

(j) You must retain your Customer Data for compliance with the requirements of Government Agencies, Tax Laws, and Industrial Relations Laws.

We do not guarantee that any software or data storage solution is risk-free. We strongly recommend that you periodically extract your Customer Data for archive purposes in a format that is accessible outside of your Product.

3.3 You are responsible for your Users

You are responsible and liable for your Users’ compliance with this Agreement, especially clauses 3.1 - 3.2 and 6.4(b) and any Supply Order, and their actions or inactions related to this Agreement and any Supply Order.

3.4 Your Acceptance of Services

(a) If Services require Acceptance under the Supply Order, you must test the Services as soon as possible and tell us in writing about any major problems with the Services within 10 Business Days after we deliver the Services to you (or a longer period if we agree in writing).

(b) The Services will be considered as Accepted if:

(i) you do not tell us about any problems with the Services within the time limit in clause 3.4(a); or

(ii) you or your Users start using the Services or Deliverable(s) in a live or production environment.

3.5 Delays

If we have to delay or change the Services (including the completion of any Deliverables) because of:

(a) our right to suspend the Services under this Agreement or any Supply Order;

(b) any change in the timing or complexity of the Services that you or your Personnel or Users cause or contribute to; or

(c) any act or omission by you or your Personnel or Users,

then the dates for providing and accepting the Services in the Supply Order may also be delayed or changed. With written notice to you, we may adjust the Fees for any amended or revised Services that result from the situations in (b)-(c) above. Both parties will cooperate in good faith to agree on any changes to the Supply Order (including any change to Fees). If the parties cannot agree on the changes to the Supply Order in good faith within 10 Business Days of the date that notice was given, either party may end the Supply Order immediately by giving written notice.

4. Changes to the Agreement, Products or Services

4.1 Changes to the terms of this Agreement, Product Terms or Module Terms

We may change the terms of this Agreement, the Product Terms or Module Terms from time to time by giving you written notice. 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 act reasonably in exercising our right to make changes to the terms of this Agreement, the Product Terms or Module Terms.

4.2 Changes to Products or Services

We may change the Services from time to time, including by changing Product or Service features, functionality or inclusions. We will give you reasonable notice of any significant changes to your Product or Service. We will give you at least 30 days’ notice if the changes are likely to have a significant detrimental impact on how you use the Product or Service.

4.3 Changes to Fees

Unless otherwise agreed under the relevant Supply Order, we may vary the Fees after the expiry of the Minimum Term or any renewal term by giving you at least 30 days’ prior written notice. We will act reasonably in exercising our right to make any changes to Fees.

4.4 Discontinuing Subscription Services for a Product

Sometimes, we may decide to stop offering certain Products. This clause explains how this affects you if you are using Subscription Services for a discontinued Product.

(a) If we have a similar product to the one being discontinued, we will try to migrate your Customer Data and transfer your Subscription Services to that product. We will let you know at least 90 days in advance and give you a chance to opt out of the migration. If you don't opt out by the deadline, we will automatically migrate your Customer Data and Subscription Services to the similar product. We will be reasonable and fair in doing this.

(b) If we don't have a similar product to the one being discontinued, we will let you know at least 90 days in advance so that you can look for a replacement product. We will try to give you more notice if we can.

4.5 Your right to terminate if we make changes

If we notify you of changes under clause 4.1, 4.2 or 4.3, migration under clause 4.4(a) or Product discontinuation under clause 4.4(b), you have the right to terminate the relevant Supply Order before the changes take effect by giving us written notice of termination. If you terminate a Supply Order under this clause 4.5, you have a right to receive a refund of any Fees you paid to us in advance for:

(a) the period after the termination takes effect; and/or

(b) any Services not rendered to you under the relevant Supply Order.

We will promptly process the refund if the amount of the refund is not in dispute. If there is a genuine dispute about whether a refund is owed to you, or the amount of the refund, both parties must use reasonable endeavours to promptly resolve the dispute following clause 10.

5. Fees and Payment

5.1 Fees

You must pay us the Fees and any agreed Expenses as set out in the relevant Supply Order.

5.2 Invoicing Terms

We will issue a Tax Invoice to you for the Services as set out in the relevant Supply Order.

5.3 Payment Terms

You must pay each Tax Invoice by the due date and in the manner indicated in the Supply Order or Tax Invoice. If a due date is not specified in an invoice, you must pay the Fees within 14 days of the date of the invoice.

5.4 Direct Debit Authority

If you make payment to us via direct debit this clause applies. You authorise us to deduct periodical instalments of the Fees and any other Expenses payable by you to us in accordance with the Direct Debit Authority. Debiting of Fees will ordinarily occur on the due date specified in the relevant Tax Invoice, but may occur at other times if permitted under the Direct Debit Authority. It is your responsibility to ensure that you have sufficient credit or funds available in your nominated credit card or bank account to cover payments that are due to us; and that your credit card or bank account details are up-to-date. If we cannot debit Fees and other Expenses due to us from your credit card or bank account, we will notify you that your account has fallen into arrears and may attempt to re-draw up to three further times before the direct debit is considered to be dishonoured. You are responsible for paying any dishonour fee(s) charged by your financial institution. If your direct debit authority is cancelled or withdrawn, you must provide us with a replacement direct debit authority (unless we agree to another payment method).

5.5 Disputed amounts

If you dispute any amount in a Tax Invoice, you must pay us the undisputed portion and promptly notify us of your reasons for disputing the relevant amount. Both parties must use reasonable endeavours to resolve the dispute at their earliest possible convenience. If both parties cannot resolve the dispute, the matter must be resolved in accordance with clause 10. If the dispute is resolved and both parties agree, or if it is determined by a court of law, that any portion of the dispute amount is payable by you, then you must pay that portion to us within 14 days of resolution of the dispute.

5.6 Overdue amounts

Subject to clause 5.5, if any amount payable to us under this Agreement or any Supply Order has not been paid by you by the due date for payment:

(a) 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 this Agreement or the Supply Order is governed by the laws of Victoria, Australia) or at an interest rate equal to the official cash rate of the Reserve Bank of New Zealand plus five percent (if this Agreement or the Supply Order is governed by the laws of New Zealand); and/or

(b) (without prejudicing the other rights we have under this Agreement or any Supply Order) we may suspend the provision of the Services if you fail to make payment within 10 Business 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.

5.7 GST

(a) If GST is payable by a supplier (or by the representative member for a GST group of which the supplier is a member) on any supply made under or in relation to this Agreement or any Supply Order, the recipient must pay to the supplier an amount (GST Amount) equal to the GST payable on the supply. The GST Amount is payable by the recipient in addition to and at the same time as the net consideration for the supply.

(b) If a party is required to make any payment or reimbursement, that payment or reimbursement must be reduced by the amount of any input tax credits or reduced input tax credits to which the other party (or the representative member for a GST group of which it is a member) is entitled for any acquisition relating to that payment or reimbursement.

(c) This clause is subject to any other specific agreement regarding the payment of GST on supplies.

5.8 Where Fees are calculated based on User numbers

If your Fee is calculated in whole or part based on User numbers:

(a) you agree that we can audit your number of Users at our discretion but no more than once per quarter. You must provide such technical or physical access as we reasonably require to conduct the audit;

(b) if your number of Users increases by more than 5%, you must immediately notify us in writing. You must notify us in advance of the increase in User numbers where it is reasonably practicable to do so; and

(c) where an increase in User numbers means that your Fees increase, that increased Fee is payable from the date of User number increase regardless of whether you notified us of that increase at the time, and regardless of whether we have exercised our right to audit User numbers.

5.9 Supply Orders conditional upon your creditworthiness

We may require from you, and obtain from anyone else, information relating to your creditworthiness and may provide that information to, and check it with, credit reporting agencies and our related companies. You are entitled to see and request the correction of any such information held by us or our related companies. All our obligations relating to the supply of any Services are conditional on us becoming and remaining satisfied about your creditworthiness.

5.10 Credit limits and credit checks

You authorise us to the full extent permitted by Applicable Law to give and obtain from a credit reference organisation or other credit provider, information relating to your creditworthiness and to use that information.

5.11 Reinstatement charges after a discontinuation of Maintenance Services

(a) If you have terminated Maintenance Services and later ask us to reinstate Maintenance Services, then we may charge you a reinstatement Fee (in addition to the ongoing software maintenance services Fees) of either:

(i) an amount equal to the Maintenance Services Fees (at current rates) foregone by us for the period from termination to reinstatement; or

(ii) the licence Fees for the software for which you require Maintenance Services, as determined by us at our sole discretion.

(b) You must pay the reinstatement Fee prior to us reinstating the Maintenance Services, unless we agree otherwise.

6. Confidentiality, privacy and data security

6.1 Confidentiality

Each party will be receiving, possessing or otherwise acquiring Confidential Information of the other party. Both parties must take all reasonable steps to secure and keep secure all of the other party’s Confidential Information coming into its possession or control.

6.2 Compliance with Privacy Laws

Both parties agree to comply with the applicable Privacy Laws in relation to the provision and use of the Services.

6.3 Specific requirements

(a) You acknowledge and agree that you are responsible for the collection, use, storage and otherwise dealing with Personal Information related to your business and all matters relating to the Services. You must comply and ensure that all of your Personnel or Users comply, with the requirements of any Privacy Law in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with this Agreement or any Supply Order.

(b) Without limiting clause 6.3(a), you undertake for yourself, and on behalf of your Personnel or Users, to:

(i) obtain all necessary consents in accordance with applicable Privacy Laws from individuals (including your Users) in relation to any Personal Information that you supply to us under this Agreement or any Supply Order;

(ii) provide all notices in accordance with applicable Privacy Laws to individuals (including your Users) from whom you collect Personal Information;

(iii) ensure that any Personal Information transferred to us is complete, accurate and up to date; and

(iv) notify us immediately upon becoming aware of any breach of any Privacy Law that may be related to the collection, use, disclosure, storage or handling of the Personal Information under this Agreement or any Supply Order.

(c) Without limiting clause 6.3(a), you may only disclose Personal Information in your control to us if:

(i) you are authorised by applicable Privacy Laws to collect, use, disclose, store or handle the Personal Information in the manner required by this Agreement or any Supply Order; and

(ii) you have obtained the consent of the individual to whom the Personal Information relates to collect, use, disclose, store or handle the Personal Information in the manner required by this Agreement or any Supply Order.

(d) We will collect, use, disclose, store, and otherwise handle Personal Information in accordance with this Agreement, the relevant Supply Order, our Privacy Policy, and the applicable Privacy Laws.

6.4 Data Security

(a) We must:

(i) take reasonable precautions to prevent a Security Breach in relation to the Customer Data; and

(ii) promptly notify you if we become aware of an Eligible Data Breach to the extent permitted by Applicable Law (including under the Privacy Act).

(b) You are solely responsible for keeping any Access Credentials secure and confidential. You acknowledge and agree that:

(i) Access Credentials must not be shared or used by more than one User;

(ii) we will not be responsible for any Security Breach or Eligible Data Breach that is caused or facilitated by your conduct or failure to protect any Access Credentials, unless Applicable Law prohibits us from excluding our liability;

(iii) you must immediately notify us if you suspect that Access Credentials have been compromised.

(c) You acknowledge and agree that we may have to allow Third Parties, such as a Government Agency, to access and inspect information, documents and data that include your Customer Data. You agree to us giving such access to the extent that we are required to do so by Applicable Law.

6.5 Publicity

Neither party can make public statements or press releases about this Agreement or any Supply Order or their relationship without the other party's written consent. We can use your name, logo, or trade mark in our customer lists and marketing materials with your written consent.

7. Intellectual Property Rights

7.1 Customer Data: ownership and use

(a) You (and, if applicable, your clients and licensors) own the Customer Data.

(b) You are responsible for verifying and maintaining the accuracy of your Customer Data including all Imported Data.

(c) You grant us an irrevocable, non-exclusive, non-transferable, sublicensable, royalty-free licence to use the Customer Data:

(i) to enable us to perform our obligations under this Agreement or any Supply Order;

(ii) to develop and improve our products and services;

(iii) to identify, develop and deliver other functionality, products and services that may be of interest to you; and

(iv) for other purposes to which you expressly consent from time to time.

(d) You grant us a perpetual, irrevocable, non-exclusive, transferable, sublicensable, royalty-free licence to use anonymised or aggregated data that we create or derive from the Customer Data for any purpose, provided that such anonymised or aggregated data does not contain Personal Information or your Confidential Information.

(c) You warrant that you have obtained any necessary consents and have all necessary rights to grant us the licence to Customer Data under clause 7.1(c).

7.2 Products and Services: ownership and use

(a) We (and our licensors, where applicable) own the Intellectual Property Rights in the Products and Services including but not limited to software, source code, object code and our templates, documents, marketing material, trade marks, business names, logos, trading styles, get-up, processes and methodologies.

(b) Subject to payment of the Fees, we grant you a non-exclusive, non-transferable, non-sublicensable (other than to the Users), revocable, royalty-free licence during the term of the relevant Supply Order to access and use the Product and/or the Deliverables, and any Updates or New Releases, to the extent necessary and for the sole purpose of you receiving the benefit of the Services. This licence is subject to any limitations set out in the relevant Supply Order which may include limits on Users, user entities, sites, or other limits.

(c) In dealing with the licence to you under clause 7.2(b), you must not:

(i) purport to transfer or sub-licence your rights (with the exception of the BankLink Software, as set out in clause 15.3 below), in whole or in part, without our express written consent; or

(ii) split software licenses if your business is divided into two or more separate entities or changes because of partnership split, insolvency, or appointment of administrator.

7.3 Background Materials: ownership and use

(a) Each party retains all right, title and interest in its Background Materials.

(b) You grant to us:

(i) an irrevocable, non-exclusive, non-transferable, sublicensable, royalty-free licence during the term of this Agreement to access and use your Background Materials to the extent necessary and for the sole purpose of providing the Services and/or Deliverables; and

(ii) a perpetual, irrevocable, non-exclusive, transferable, sublicensable, royalty-free licence to use, modify, adapt, translate and otherwise exercise our rights in relation to clause 7.3(e).

(c) We grant to you a revocable, non-exclusive, non-transferable, non-sublicensable (other than to the Users), royalty-free licence during the term of this Agreement to access and use our Background Materials to the extent incorporated into (but not separate from) the Services or Deliverables for the sole purpose of obtaining the benefit of the Services.

(d) Any modification, adaptation, translation or derivative of our Background Materials will vest in, or are hereby assigned, to us immediately upon creation.

(e) Any modifications, adaptations, translations or derivatives of your Background Materials created or developed by or on behalf of us in the course of providing the Services will vest in, or are hereby assigned to, us immediately on creation.

7.4 Third Party Materials

(a) You acknowledge and agree that we may provide you with Product(s) or Deliverables that are, or include, Third Party Material. You must comply with, and will be solely responsible for your compliance with, the terms of the Third Party Licence for the Third Party Material.

(b) If required under a Supply Order, you must enter into the Third Party Licence directly with the relevant Third Party for the use of the Third Party Materials.

7.5 Intellectual Property Rights Indemnity

(a) Subject to you complying with clauses 7.5(b) and 7.5(c), we indemnify you from and against any liability suffered or incurred by you arising from or in connection with an IP Claim.

(b) If an IP Claim is made against you:

(i) you must promptly notify us of the IP Claim;

(ii) you must provide us with reasonable assistance and all information reasonably requested for defence of the IP Claim; and

(iii) you give us the right to defend and settle the IP Claim (provided that we may not settle an IP Claim without your prior consent, such consent not to be unreasonably withheld).

(c) If an IP Claim is successful, or if it is agreed that there is an infringement of the Intellectual Property Rights of a Third Party, then we may either, at our option and cost:

(i) modify the affected Services to render it, or your use, non-infringing within a reasonable period; or

(ii) render the relevant activity non-infringing by procuring the right or consent to exercise the relevant Intellectual Property Rights; and

if neither of the above remedies can be achieved, cease supplying the affected Product(s), remove any Deliverables and cease performing any Services that are agreed to infringe the Intellectual Property Rights of a Third Party, and we will refund you any Fees paid in advance for such infringing Product(s), Services or Deliverables not rendered.

(d) The indemnity in clause 7.5(a) will not apply to the extent that the IP Claim arises or results from one of the following:

(i) if we comply with your specific technical designs or instructions or include any content or other materials provided by you and the IP Claim specifically relates to the technical design, instructions or content provided by you;

(ii) the combination of the Product(s), Deliverables or Services and any other product, service, software, data, content, method or Background IP not provided by us, where the IP Claim specifically relates to the other product, service, data, content, method or Background IP not provided by us;

(iii) your (or your Users or Personnel’s) access or use of the Product(s), Deliverables or Services in a manner prohibited by us in writing, including access or use with any hardware, software or other services which are prohibited by us in writing; or

(iv) enhancements, adaptations, translations or modifications of the Product(s), Deliverables or Services by a person other than us or our Personnel.

8. Warranties and Indemnity

8.1 MYOB warranties

(a) We warrant to you that:

(i) we will use reasonable endeavours to provide the Services with all due care, skill, and diligence in accordance with good business practice for the industry;

(ii) we will perform the Services in accordance with this Agreement and each Supply Order in all material respects; and

(iii) the performance of our obligations under this Agreement and each Supply Order and the access and use of the Product(s), Services and/or Deliverables in accordance with this Agreement will not infringe the Intellectual Property Rights of any Third Party.

(b) Regarding our Products, we warrant to you that for the duration of the relevant Supply Order, the Product(s) we develop will operate in a material respect in accordance with any documentation that we supply with the Product(s), as long as you:

(i) use the Product on equipment and the operating environment approved in writing by us;

(ii) use the Product in accordance with the documentation provided by us from time to time;

(iii) maintain a software maintenance service; and

(iv) install the latest service pack, update, enhancement or upgrade provided by us from time to time.

8.2 Customer warranties

You warrant to us that:

(a) any information or materials you have provided us under this Agreement and any Supply Order (including prior to the effective date of the first Supply Order) are true, accurate, and are not misleading or deceptive;

(b) you have not engaged us to provide any Services in a way that will infringe any Intellectual Property Rights of any Third Parties; and

(c) in using the Product(s), Services or Deliverables, you will:

(i) ensure that the Intellectual Property Rights and other proprietary rights in the Product(s), Services or Deliverables are not infringed in any way; and

(ii) comply with our reasonable directions relating to your use of the Product(s), Services or Deliverables.

8.3 Mutual warranties

Each party represents and warrants that:

(a) it will comply with any obligations it has assumed under this Agreement and any Supply Order; and

(b) it will comply with all Applicable Laws in the performance of its obligations under this Agreement and any Supply Order.

8.4 Customer indemnity

You indemnify us against any Loss or Claim suffered or liability incurred by us arising from your negligence, misrepresentation, fraud, breach of law or material breach of this Agreement and any Supply Order. If we caused or contributed to a Loss or Claim, then your liability under this indemnity is limited to the amount of the Loss or Claim which is directly attributable to your conduct.

9. Liability

9.1 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 Supply Order, or any breach by us of this Agreement or any Supply Order however arising (whether for breach of this Agreement or a Supply Order, by way of indemnity, tort (including negligence), statute, custom, law or on any other basis), is limited to:

(a) the resupply of the Services; or

(b) the cost of re-suppling the Service,

and in any event will be limited to the fullest extent permitted by Applicable Law.

9.2 Where the Australian Consumer Law applies

(a) Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:

to cancel your service contract with us; and

to a refund for the unused portion, or to compensation for its reduced value.

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.

(b) This Agreement and any Supply Order do 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.

9.3 Where the New Zealand Consumer Guarantee Act and Fair Trading Act would otherwise apply

(a) For the purposes of section 5D of the NZ FTA and section 43 of the NZ CGA:

the goods and services provided to you under or in connection with this Agreement or any Supply Order are being provided and acquired in trade;

if the NZ FTA and/or NZ CGA applies to any goods or services supplied to you under or in connection withthis Agreement or any Supply Order, the parties agree to contract out of the NZ CGA and sections 9, 12A and 13 of the NZ FTA; and

all representations, conditions, warranties and terms 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).

(b) Except as specified in clause 9.3(a), this Agreement and any Supply Order 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.

9.4 When we will not be liable to you

(a) We are only responsible for providing the Services to you as agreed in writing. We are not liable for any Loss or Claim that you may suffer from any other causes or factors, such as:

(i) using the Services in a way that we did not approve or authorise, such as with unauthorised hardware, software, or other services;

(ii) making changes to the Services that we did not do or approve, such as enhancements, adaptations, translations, or modifications;

(iii) relying on any services, goods, or rights that you need to get from a Third Party, such as system design, configuration, integration, software maintenance, or Third Party licences;

(iv) not following the instructions or documentation that we provide for using the Services;

(v) having software or equipment that is not compatible with the Services, unless we supplied them to you;

(vi) not meeting your obligations under clause 3 of this Agreement;

(vii) having to comply with new or changed laws or regulations that affect your use of the Products;

(viii) not copying or backing up your Customer Data;

(ix) changing your business structure, such as by restructuring, splitting, merging, or acquiring another business;

(x) trying to migrate or convert any of your Customer Data that was corrupted before migration or conversion;

(xi) having faults, malfunctions, or defects in any Third Party Materials or services; or

(xii) experiencing telecommunications or power failures or faults, or poor or interrupted network or Internet connection.

(b) We will not be liable to you for any failure to provide the Services or meet Services Levels to the extent that the failure was caused or contributed to by:

(i) you, your Third Party providers, Personnel or Users;

(ii) a breach of obligations under this Agreement or any Supply Order by you or your Third Party providers, Personnel or Users; or

(iv) any of the circumstances set out in clause 2.5 (a)-(d), 3.5(a)-(c) or clause 9.4(a).

9.5 Mutual liability cap

In no event will either party’s aggregate cumulative liability (whether in contract, tort, negligence, statute or otherwise, including by way of any indemnity) arising under or in connection with this Agreement and all Supply Orders, exceed average monthly fees paid by you to us under all then-current Supply Orders, multiplied by six. This liability cap does not limit your liability to pay Fees to us under clause 5.

9.6 Mutual exclusion of liability for consequential loss

Except in accordance with clauses 9.2 and 9.3, 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.

9.7 Proportionate liability

Each party’s liability under the Agreement and any Supply Order (including under any indemnity) is reduced proportionately to the extent that such liability is caused or contributed to by the breach of this Agreement or the relevant Supply Order or the wrongful, unlawful or negligent act or omission of the other party or its Personnel.

9.8 Mutual duty to mitigate loss

Each party must use all reasonable endeavours to mitigate its losses.

10. Dispute Resolution

(a) If a party claims that a dispute has arisen, it must notify the other party in writing of the nature of the dispute as soon as is reasonably practicable (DisputeNotice).

(b) Neither party may start any legal proceedings relating to the dispute unless it has followed the steps in this clause 10, except to seek urgent equitable or interlocutory relief.

(c) The steps for resolving the dispute are as follows:

(i) Both parties must try to resolve the dispute within 10 Business Days after receiving the Dispute Notice, or a longer period if they mutually agree.

(ii) If the parties fail to resolve the dispute within that time, they must refer the dispute to nominated senior representatives of each party, who will meet and discuss the dispute promptly with the aim of resolving it.

(iii) If the nominated senior representatives fail to resolve the dispute within 10 Business Days after the referral, either party may submit the dispute to a mediator for consideration in accordance with the Guidelines for Commercial Mediation of the Australian Disputes Centre, which are part of this Agreement.

(d) Each party must pay its own internal and legal costs for complying with this clause 10. The mediator’s costs must be shared equally between both parties.

11. Termination

11.1 Termination for convenience

After expiry of any Minimum Term, either party may terminate a Supply Order at any time for any reason by giving the other party at least 90 days’ prior written notice to that effect.

11.2 Termination by non-renewal

Either party may terminate a Supply Order by giving the other party at least 30 days’ prior written notice of its intention not to renew the Supply Order for a further period.

11.3 Termination due to default

If an Event of Default occurs in relation to a party (DefaultingParty):

(a) 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 10 Business Days after the Default Notice is given to the Defaulting Party; or

(b) if the Defaulting Party does not comply with the notice within the relevant period referred to in clause 11.3(a) then the other party, without limiting its other rights and remedies, may terminate the Supply Order to which the Event of Default relates, by giving to the Defaulting Party notice with immediate effect.

11.4 Change in Law

We may immediately terminate a Supply Order by giving you written notice if a Government Agency issues a direction, or there is a change in Applicable Law, which makes the ongoing provision of the Services substantially unworkable or non-functional.

11.5 Your other termination rights

You have additional termination rights under clause 4.5. The termination rights in this clause 11 are in addition to your termination rights in clause 4.5.

11.6 Automatic expiration of this Agreement

Upon the termination or expiration of all Supply Orders under this Agreement, and the end of any Data Extraction Period, this Agreement will automatically expire.

11.7 Consequences of termination of a Supply Order

(a) Termination of a Supply Order will not affect this Agreement and any other Supply Orders which are in effect between us and you at the time of the termination and such other Supply Orders will continue in accordance with their respective terms, unless otherwise stated in the Supply Order.

(b) On the expiry or termination of a Supply Order for any reason:

you must pay any Fees that are due and payable to us for Services rendered to you (including those which may not have been invoiced prior to expiry or termination) under the relevant Supply Order up to the date of expiry or termination of the Supply Order;

(ii) the Supply Order will be at an end as to its future operation except for the enforcement of any right or claim in relation to the Supply Order that arises on, or has arisen before, the expiry or termination;

(iii) you must uninstall any Products supplied under the terminated Supply Order which are not owned by you; and

(iv) you must immediately cease using and return to us any of our Background Material and Confidential Information, at your risk and cost, or if such Background Material or Confidential Information is incapable of being returned, permanently destroying it (unless otherwise agreed in writing by the parties).

(c) If you terminate a Supply Order in accordance with clause 11.1 or we terminate a Supply Order under clause 11.3 due to your Event of Default, you must pay us the following:

(i) our Unavoidable Costs; and

(ii) if the termination is during the Minimum Term, the amount of Fees that would otherwise have been payable for the remaining period of the Minimum Term.

(d) Following expiry or termination of a Supply Order and any Data Extraction Period (if applicable), we may take steps to delete the Customer Data in relation to the relevant Supply Order in accordance with our standard data retention practices and procedures, whether or not you exercised your rights under clause 11.9(a) or otherwise extracted your Customer Data.

11.8 Consequences of termination of this Agreement

If this Agreement is terminated for any reason, any Supply Order that is still in force at the effective date of termination of this Agreement will automatically and simultaneously terminate on the same date.

11.9 Data extraction and disengagement

(a) We will give you 90 days after the effective date of expiry or termination of a Supply Order to extract your Customer Data from relevant Products to the extent we are permitted to do so under Applicable Law (Data Extraction Period). You may use the Product during the any Data Extraction Period only to the extent necessary for you to extract your data and for no other purpose. The terms of this Agreement, the relevant Supply Order and any relevant Product Terms or Module Terms apply to your Product use during any Data Extraction Period.

(c) Upon expiry or termination of a Supply Order, you may request that we provide you with disengagement services. You will be asked to sign a separate Supply Order for the disengagement services and you will be required to pay additional fees which will be charged at our then-current rates (unless otherwise agreed in writing by the parties).

11.10 Survival

Clauses 1.4, 5-13 and all other provisions that, by their nature, are intended to survive termination of this Agreement, will survive termination and expiry of this Agreement.

12. General terms

12.1 Contracting Entity and Governing Law

(a) Our legal name, address for service of notices, and the governing law and jurisdiction for this Agreement and any Supply Order are set out in the table below:

(b) This Agreement and any applicable Supply Order is governed by and construed under the Applicable Law of the jurisdiction set out in clause 12.1(a).

(c) The parties submit to the non-exclusive jurisdiction of the courts set out in clause 12.1(a).

12.2 Force Majeure Events

Neither party will be liable to the other party for any delay or failure to perform its obligations under this Agreement or any Supply Order as a result of a Force Majeure Event.

12.3 Relationship

Nothing in this Agreement or any Supply Order is intended to create a partnership, joint venture, or agency relationship between us and you, and each party agrees that they are entering into this Agreement and any Supply Order only as independent contractors.

12.4 Costs

Each party must pay its own costs in relation to:

(a) the negotiation, execution, performance or variation of this Agreement or any Supply Order; and

(b) the performance of any action by that party in compliance with any liability arising under this Agreement and any Supply Order unless otherwise agreed in writing by the parties.

12.5 Assignment

(a) You can assign, novate or otherwise transfer your rights and/or obligations under this Agreement and any Supply Order to an affiliated entity upon written notice to us, subject to no outstanding amounts being due for payment, and subject to the incoming customer completing such transfer forms as we may reasonably require (including completing any necessary identity or verification checks). Any purported assignment, novation or transfer that does not follow our prescribed process is invalid and you remain responsible for your obligations under this Agreement and any Supply Order.

(b) We may assign, novate or otherwise transfer our rights and/or obligations under this Agreement and any Supply Order to any of our affiliated entities, or to any entity that acquires all or substantially all of our business or assets related to the Product(s), and we will give you notice via email of any such assignment, novation or transfer.

(c) Subject to the foregoing, this Agreement and all Supply Orders will be binding upon, and inure to the benefit of the parties and their respective permitted successors and assignees.

12.6 Notices

(a) Any notice to or by a party under this Agreement and any Supply Order must be in writing and signed by the sender or, if a corporate party, an authorised officer of the sender.

(b) Any notice may be served by delivery in person or by post or transmission by email to the address or number of the recipient most recently notified by the recipient to the sender. Any email notices to us must be copied to legal@myob.com.

(c) Any notice is effective for the purposes of this Agreement and any Supply Order upon delivery to the recipient or production to the sender of a copy of the email sent before 4.00pm local time on a day in the place in or to which the written notice is delivered or sent or otherwise at 9.00am on the next day following delivery or receipt.

12.7 Third parties

This Agreement and each Supply Order confers rights only upon a person expressed to be a party, and not upon any other person.

12.8 Entire agreement

This Agreement, along with the relevant Supply Order, 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.

12.9 Further assurance

Each party must sign any document and perform any action necessary to give full effect to this Agreement and any Supply Order, whether before or after performance of this Agreement or any Supply Order.

12.10 Waivers

Any failure by a party to exercise any right under this Agreement or any Supply Order 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.

12.11 Remedies

The rights of a party under this Agreement and the relevant Supply Order are cumulative and not exclusive of any rights provided by Applicable Law.

12.12 Severability

Any provision of this Agreement or any Supply Order which is invalid in any jurisdiction is invalid in that jurisdiction to that extent, without invalidating or affecting the remaining provisions of this Agreement and the relevant Supply Order or the validity of that provision in any other jurisdiction.

12.13 Counterparts

This Agreement and any Supply Order may be signed in any number of counterparts, all of which taken together are deemed to constitute one and the same document. Each party consents to the use of electronic communications or means to sign this document in accordance with the Electronic Transactions Act 2000 (Vic) (as amended or replaced from time to time) (if this Agreement is governed by the laws of Victoria, Australia) or the Contract and Commercial Law Act 2017 (NZ) (as amended or replaced from time to time) (if this Agreement is governed by the laws of New Zealand).

12.14 Acting as trustee

If you enter into this Agreement or any Supply Order as trustee of a trust, you and your successors as trustee of the trust will be liable under this Agreement or the relevant Supply Order in your own right and as trustee of the trust. You warrant that, at the date of this Agreement and the date of any Supply Order, you have authority to exercise all powers and discretions conferred by the deed establishing the trust, and that the trust is a valid and subsisting trust.

13. Glossary

13.1 Definitions

In this Agreement:

Acceptance means, in respect of the Services, that such Services comply with its relevant specifications and documentation in all material respects;

Access Credential means any passwords or other log-in details allocated to individual Users and provided to you by us for the purpose of accessing and using the Services;

Affiliate has the same meaning as ‘related body corporate’ in the Corporations Act (if this Agreement or the applicable Supply Order is governed by the laws of Victoria, Australia) or ‘related company’ in the Companies Act (if this Agreement or the applicable Supply Order is governed by the laws of New Zealand);

Agreement means this sales and services agreement;

Applicable Law means all laws, rules and regulations in force from time to time in New Zealand (if you reside in New Zealand or your business is registered in New Zealand) or Australia (in all other cases).

Background Materials means:

any material, communications or technology which is pre-existing or created independently of a Supply Order which a party makes available for the performance of its obligations in respect of the Services; or

any information, communications, technology, software or other materials which are otherwise required for effective use of the Services; and

any improvements, enhancements, modifications, adaptations, extensions, developments, application of and all other technical advances made to the materials set out in (a) and (b) above, including those developed in performing the Services, whether or not protected by Applicable Law,

and in relation to you, your Background Materials includes any information, documentation, brands, logos and trade marks used by you to brand and promote yourself that have been provided by you or on your behalf to us for the purposes of the Services;

Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Melbourne, Australia (if this Agreement or the applicable Supply Order is governed by the laws of Victoria, Australia) or Auckland, New Zealand (if this Agreement or the applicable Supply Order is governed by the laws of New Zealand);

Companies Act means the Companies Act 1993 (NZ) (as amended or replaced from time to time);

Confidential Information means, in respect of a party:

information submitted or disclosed by the party or its Affiliates during negotiations, discussions and meetings relating to this Agreement or a Supply Order;

information that at the time of disclosure by a party or its Affiliates is identified to the other party as being confidential; and

all other information belonging or relating to a party or its Affiliates that is not generally available to the public at the time of disclosure other than by reason of a breach of this Agreement or any Supply Order or which the other party knows, or ought reasonably to be expected to know, is confidential to that first party;

Corporations Act means the Corporations Act 2001 (Cth) (as amended or replaced from time to time);

Customer Data means the data owned or supplied by you which is uploaded or generated by you in the course of using the Products;

Data Extraction Period has the meaning given to it in clause 11.9(a).

Deliverable means a deliverable specified in a Supply Order, excluding our Background Materials;

Direct Debit Authority means the direct debit authority signed by you, applicable to the Fees payable under a Supply Order;

Eligible Data Breach has the same meaning as is given to that term in the Privacy Act or the meaning given to “notifiable privacy breach” under the Privacy Act (as applicable);

Event of Default means, in relation to a party, the occurrence of any one or more of the following events or circumstances:

the party commits a material breach of its obligations under the Agreement or a Supply Order;

an Insolvency Event occurs in relation to the party;

a notice of deregistration of the party is given under sections 601AA(5) or 601AB(5) of the Corporations Act; a request is sent or delivered in accordance with section 318(1)(d) of the Companies Act, or a notice is issued under section 319 of the Companies Act; or

the party fails to pay by the due date any undisputed amount due and payable by it under a Supply Order;

Expenses mean out-of-pocket expenses incurred by us in connection with the provision of the Services, which have been approved in writing by you;

Fees mean the fees specified in the Supply Order and payable by you to us for provision of the Services;

Force Majeure Event means any fire, flood, earthquake, cyclone, act of God, riot, civil disorder, rebellion or revolution, war or terrorist act, epidemic or pandemic (whether declared or undeclared), any restrictions on the movement of individuals or goods imposed by a Government Agency, or other similar cause beyond the reasonable control of a party;

Government Agency means any government or any public, statutory, governmental (including a local government), semi-governmental or judicial body, entity, department or authority and includes any self-regulatory organisation established under statute in the relevant jurisdiction, including but not limited to the Australian Taxation Office or the New Zealand Inland Revenue Department;

GST means any tax, levy, charge or impost implemented under the GST Law or an Act of the Parliament of the Commonwealth of Australia or New Zealand substantially in the form of, or which has a similar effect to, the GST Law (as applicable);

GST Law has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended or replaced from time to time) (if this Agreement or the applicable Supply Order is governed by the laws of Victoria, Australia), or the Goods and Services Tax Act 1985 (NZ) (as amended or replaced from time to time) (if this Agreement or the applicable Supply Order is governed by the laws of New Zealand).

Harmful Code means a “back door”, “time bomb”, “logic bomb”, “Trojan Horse”, “worm”, “drop dead device”, “virus” or any other malware, spyware or computer software routine having the effect of permitting unauthorised access to or use of your systems or disabling, damaging, corrupting or erasing, or disrupting or impairing the normal operation of any part of your systems;

Industrial Relations Laws means all Applicable Laws, principles, or directions issued by a Government Agency relating to employment relations;

Insolvency Event means, in relation to a party, any one or more of the following events or circumstances:

being in liquidation or provisional liquidation or under administration;

having a controller or analogous person appointed to it or to any of its property where “controller” means a receiver, receiver and manager, administrator or liquidator (whether provisional or otherwise) of that person or that person’s property, or anyone else who (whether or not as agent for the person) is in possession, or has control, of that person’s property to enforce an encumbrance;

being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand;

if it fails to take the required action set out in a statutory demand (made in accordance with section 289 of the Companies Act) within 15 working days of the date of service (or such longer period as a court has ordered);

being unable to pay its debts or being otherwise insolvent;

becoming an insolvent under administration, as defined in section 9 of the Corporations Act;

entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors; or

any analogous event or circumstance under the laws of any jurisdiction;

Intellectual Property Rights means all present and future intellectual and industrial property rights conferred by statute, at civil, common law or in equity and wherever existing, including:

patents, designs, copyright, rights in circuit layouts, database rights, trade marks, know how, brand names, domain names, inventions, product names, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration;

any application or right to apply for registration of any of the rights in paragraph (a);

any registration of any of those rights or any registration of any application referred to in paragraph (a); and

all renewals and extensions of these rights;

IP Claim means a proven claim by a Third Party that the Services or their use, infringes the Intellectual Property Rights of that Third Party;

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;

Maintenance Services means the provision of updates, enhancements, and support for the Product(s) that we provide to you as specified in the relevant Supply Order. Unless otherwise stated in a Supply Order, Maintenance Services generally relate to installed software.

Minimum Term means the minimum term for Services (if any) specified in the relevant Supply Order;

Module means a subset of a Product, which includes additional features or functionality to a Product;

Module Terms means the additional terms and conditions applicable to a Module, as specified in a Supply Order;

New Release means software which has been produced primarily to provide an extension, alteration, improvement or additional functionality to a Product and which does not constitute an Update;

Personal Information has the same meaning as is given to that term in the Privacy Act;

Personnel in relation to a party, are the directors, officers, employees, agents or subcontractors of that party;

Privacy Act means the Privacy Act 1988 (Cth) (as amended or replaced from time to time) if this Agreement or the relevant Supply Order is governed by the laws of Victoria, Australia or the Privacy Act 2020 (NZ) (as amended or replaced from time to time) if this Agreement or the relevant Supply Order is governed by the laws of New Zealand;

Privacy Law means all applicable Commonwealth, State, Territory and New Zealand legislation, principles, industry codes and policies relating to the collection, use, disclosure, storage or granting of access rights to the Personal Information including the Privacy Act and includes the Australian or New Zealand Privacy Principles (as applicable) contained within the Privacy Act;

Privacy Policy means the MYOB Group Privacy Policy located at URL https://www.myob.com/au/privacy-policy or https://www.myob.com/nz/privacy-policy, as amended from time to time;

Product means the software or application the subject of licensing, Software Maintenance Services or Subscription Services, which may include one or more Modules, as specified in the relevant Supply Order;

Product Terms means the additional terms and conditions applicable to a Product, as provided to, and accepted by, you on accessing that Product. Product Terms may include an end user licence agreement;

Professional Services mean the professional services to be provided by us to you, as specified in the Supply Order. Professional Services may include installation services, implementation services, development services, training services, and consulting services;

Scheduled Maintenance means an interruption to the provision of the Services for the purpose of us undertaking any repairs, modifications, additions or other maintenance to the Services;

Security Breach means unauthorised access to or alteration of the Customer Data;

Service Levels means the agreed level of standard or quality for the Services, as set out in the relevant Supply Order;

Services means the services we agree to provide from time to time under this Agreement, including any Subscription Services, Support Services, Professional Services, Deliverables or other services described in the relevant Supply Order;

Subscription Services means the subscription services for the Product(s) that we provide to you, as specified in the relevant Supply Order. Unless otherwise stated in a Supply Order, Subscription Services generally relate to cloud software;

Supply Order means a written statement (including any schedules, annexures or attachments) for the provision of the Products or Services by us to you, substantially in the form approved by us from time to time;

Support Services mean the support services that we provide to you, as specified in the relevant Supply Order;

Tax Invoice has the meaning under GST Law;

Tax Laws means all applicable Commonwealth, State, Territory and New Zealand legislation, regulations, principles, or directions issued by a Government Agency relating to taxation in Australia or New Zealand, including but not limited to Taxation Administration Act 1953 (Cth) (as amended or replaced from time to time) in Australia or the Tax Administration Act 1994 (NZ) in New Zealand (as amended or replaced from time to time);

Third Party means any party other than us or you or our respective Affiliates;

Third Party Licence means the licence agreement of a Third Party licensor for the use of Third Party Material;

Third Party Material any material, communications, software or technology which is owned or licensed by a Third Party;

Unavoidable Costs means reasonable costs incurred by us, in connection with the performance of our obligations under this Agreement or any Supply Order or any agreement with any Third Party in connection with this Agreement or any Supply Order which cannot be cancelled, refunded or re-allocated to our other operations or business activities, including, for example labour and Third Party costs incurred to deliver a Supply Order then terminated by you;

Update means software which has been made generally available from time to time by us to our licensees produced primarily to overcome defects in the Product or to provide minor improvements to the performance or functionality, including bug fixes and patches but excludes a New Release;

User means your Personnel who is authorised to use the Product;

We or Us means MYOB Australia Pty Ltd (ABN 12 086 760 198) of Level 3, 168 Cremorne Street, Cremorne, VIC 3121, Australia or MYOB NZ Limited (Company Number 902338) of 801/50 Albert Street, Auckland Central, Auckland, 1010, New Zealand (as applicable); and

You means the party specified on the Supply Order as the ‘Customer’, and your has a corresponding meaning.

13.2 Interpretation

In this Agreement, unless the context requires otherwise:

(a) the headings of clauses and subclauses are only for convenience and do not affect the meaning;

(b) singular words include the plural and vice versa;

(c) a person includes any other legal entity and vice versa;

(d) if a word or phrase is defined, its other forms have the same meaning;

(e) a reference to a party to this Agreement includes its successors and permitted assigns;

(f) a reference to any agreement or document includes any changes to that agreement or document;

(g) an agreement, representation or, warranty by two or more persons binds and benefits them jointly and individually;

(h) if something must be done or paid under this Agreement on a day that is not a Business Day, it must be done or paid on the previous Business Day; and

(i) reference to a statute includes any regulations and amendments under that statute and any new statute that replaces or includes any of its provisions.

14. Additional terms: Data feeds

14.1 These terms apply to Data Feeds including bank feeds

(a) This clause 14 applies if you use Data Feeds in the Services.

(b) If you use Data Feeds as part of the Services, you agree to the following:

(i) Data Feeds are a service that we provide to import and process data from your and your clients' Data Suppliers.

(ii) You need to give us a written permission from the Data Supplier to use Data Feeds for your client.

(iii) We depend on the Data Supplier to send us the data. If they don't, we will let you know as soon as we can, but we are not responsible for any delays or problems.

(iv) You can stop using Data Feeds for a client or a Data Supplier by telling us 14 days in advance.

(v) We can also stop providing Data Feeds for a client or a Data Supplier by telling you 14 days in advance.

(c) In this clause 14:

“Data Feed” means a data feed from a Data Supplier or other application authorised by you. It includes bank feeds, invoice feeds and supplier feeds.

“Data Supplier” means an organisation authorised by you to supply us with Imported Data. This might include your bank, a customer, third-party software provider or a supplier.

“Imported Data” means data that is imported or transmitted into the Product from a Data Supplier or other application authorised by you. Imported Data falls within the broader category of Customer Data in this Agreement.

In the case of Data Feeds, any Data Supplier that you authorise to provide Imported Data to us is also a Third Party under these Terms.

15. Additional terms: Banklink

15.1 These terms apply to Banklink

This clause 15 applies if you use Banklink. In this clause 15:

BankLink Software means MYOB BankLink Practice, MYOB BankLink Books, MYOB BankLink Notes, MYOB BankLink Notes Online, MYOB BankLink PayablesPlus and MYOB BankLink InvoicePlus products;

‘ProvisionalAccount’ means functionality within the BankLink Software which allows the manual importation of electronic Data files which are not currently available via the automated Bank Feeds process;

15.2 BankLink Software Provisional Accounts

If requested, we will provide you with a Provisional Account(s) for your use with the BankLink Software, on the terms outlined in this clause 15.

(a) The Provisional Account functionality will be enabled as part of your Imported Data download process within the BankLink Software.

(b) You agree that where we make an automated Data Feed available in relation to the Imported Data that you use the Provisional Account functionality for under this clause, then the Provisional Account will convert as soon as practicable into a standard Data Feed and the standard processing Fees for the Data Feed will apply to that account.

(c) In consideration for the provision of the Provisional Account functionality, you will pay us the Provisional Account monthly account Fee and account load Fee set out in the BankLink Software Schedule for each Provisional Account that we supply to you. These Fees will be added to the existing MYOB invoice produced for you.

(d) If the relevant Supply Order or this Agreement is terminated for any reason you will no longer have access to the Provisional Account functionality in the BankLink Software.

(e) The parties agree that the Provisional Account will be considered BankLink Software for the purposes of these terms. This clause does not affect our right to charge for the Provisional Account functionality on the basis set out in this clause 15.

15.3 Sub-licence of BankLink Software

You may sub-licence the BankLink Software to your clients, provided that you:

(a) ensure that every client to whom you sub-licence the software is bound by the provisions of the BankLink End User Licence;

(b) provide no representations or warranties in respect of the software on our behalf; and

(c) ensure that your clients are aware that we do not support the software directly to them.

16. Additional terms: Training

16.1 These terms apply to training Services

This clause 16 applies if we are required to provide you with training Services under a Supply Order. In this clause 16:

Attendee means a person you enrol in a Course.

Credit means any credit provided by us to you which you can use as payment, or part payment, for other Courses that we offer. Credits are valid for a period of 12 months from date of issue, after which time they will expire.

Course means the online or in-person training that we provide. Courses may include classroom training, seminars, workshops, online seminars or self-paced learning.

Course Materials means any materials that we provide to you or your Attendees in connection with a Course, including any manuals, slide packs, Course documentation or other materials.

16.2 Payment for Courses

Course prices are published on our website and will be confirmed at the time of booking. You must pay for a Course at the time of booking and/or by the due date specified on the relevant invoice unless we offer you alternate payment terms for a Course.

Discounts on Course fees or Credits must be claimed at the time of booking, prior to payment being made.

16.3 Course Pre-requisites

It is important that Attendees satisfy any specified pre-requisites prior to commencing a Course, as time is not allocated to covering assumed knowledge during the Course.

16.4 Online on-demand training

Purchase of online on-demand training allows one individual Attendee access to a Course. Some Courses may only be made available for a limited time period after you enrol. If a time limit applies, it will be specified in the Course description and on our website. You are responsible for ensuring that Attendees complete the content within the allocated time period.

16.5 Rights to use Course Materials

Course Materials can only be used for an Attendee’s personal study and professional development purposes. You must not (and ensure that Attendees do not) copy, reproduce, alter, modify, create derivative works, or publicly display any part of any content from the Courses (including but not limited to the Course Materials) without our prior written consent. You and any Attendees are not permitted to commercially exploit the Course Materials, incorporate the Course Materials into your own training, or provide a copy of the Course Materials to anyone else. You must ensure that Attendees are made aware of, and agree to be bound by, these restrictions on the use of the Course Materials.

16.6 Cancelling your booking

(a) You can cancel your booking in writing at least 24 hours before the Course starts. You can choose to get either a full refund or a Credit. We will give you the refund or Credit within 30 days of your cancellation. You can use the Credit to buy other courses from us within 12 months. After that, it will expire.

(b) If you cancel less than 24 hours before the Course starts or you don't show up, you won't get any refund or Credit. This does not affect your rights under clauses 9.2, 9.3 and 16.9.

16.7 Requests for transfer between Courses

If you want to change your booking to a different Course or the same Course on a different date or time, you must let us know in writing at least 24 hours before the Course starts. We will try to accommodate your request, but there are some conditions that apply:

(a) If the new Course costs more than the original one, you will have to pay the difference by the deadline on the invoice we will send you.

(b) If the new Course costs less than the original one, you will not get a refund, but you will get a Credit for the difference. You can use this Credit to buy other Courses from us within 12 months. After that, the Credit will expire.

(c) Clauses 9.2, 9.3 and 16.9 of this Agreement still apply to your booking.

16.8 Requests for transfer to another Attendee for the same Course

You can transfer a booking from one Attendee to another Attendee if you notify us in writing at least 24 hours before the Course starts. You must make sure that the new Attendee meets any relevant Course pre-requisites.

16.9 Our discretion to offer transfers, Credits or refunds in other circumstances

We know that things don’t always go to plan, and unexpected things happen. In addition to any right you have to transfer bookings, or receive a Credit or a refund under clauses 9.2, 9.3 or this clause 16, we may choose to give you a transfer, Credit or refund in other circumstances (for example, if an Attendee has a valid medical certificate to show they were sick, or if they could not attend in-person training because their travel was cancelled due to reasons beyond their control).

16.10 Course cancellation by MYOB

Sometimes we may have to cancel a Course due to reasons beyond our control. If this happens, we will contact Attendees to arrange a transfer to a different Course. If you prefer, we will give you a refund.

Updated September 2023.