Important – Read Carefully
This End User Agreement (“Agreement”) constitutes a legal contract between the End User and or their nominated representative (“you”) and MYOB in relation to the MYOB Exo software (“Software”). The Software includes any software, media, accompanying documentation and direct or indirect write access to the MYOB Exo table structures.
If you make this agreement in Australia then this agreement is with MYOB Australia Pty Ltd and is governed by the laws applicable in Victoria, Australia.
If you make this agreement in New Zealand or any other country then the agreement is with MYOB NZ Limited and is governed by the laws of New Zealand. Each of MYOB NZ Limited and MYOB Australia Pty Ltd is referred to as “MYOB” as applicable.
By installing, copying or otherwise using the Software, you agree to follow and be bound by the terms of this Agreement. If you do not agree, do not install, copy or use the Software.
1. Changes to this Agreement
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.
If we make a change to this Agreement that is detrimental to you, you have termination rights (see section 8.2).
2. Grant of Licence
Upon your acceptance of this Agreement, MYOB grants you a non-exclusive, non-transferable licence to use the Software in accordance with the terms of this Agreement (“Licence”). You understand and accept that the Software is only to be used in Australia and New Zealand (as the case may be).
Your continued use of the Software is subject to payment of any fees specified by MYOB or your Exo Business Partner. Refer to section 7 for further information.
You may:
(a) install and use the Software on the number and types of computers as per the Licence Type; and
(b) copy the Software for back-up and archival purposes on condition that any copy contains all of the original Software’s proprietary notices. While you remain validly licensed you shall receive any updates (which may contain enhancements to the functionality and improve the performance of the Software) as issued by MYOB from time to time.
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.
3. Licence Restrictions
You may not:
(a) permit other individuals to use the Software except under the terms of this 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; or
(e) remove any proprietary notices or labels on or in the Software.
4. Licence Types
The Software is licensed through a number of different Licence types, to which the additional rights and restrictions set out below apply:
(a) Database Licence: If you have purchased a Licence of the Software you may install the MYOB Exo Database on the hard disk of one computer (“Server”) and set up and configure the Database using the Software configuration tools (“MYOB Exo Config”). Additional copies of the Software and the MYOB Exo Databases may only be made for archival and backup purposes, of the licensed user only.
(b) Client Access Licence: A connection to the database requires the purchase of a Client Access Licence. The maximum number of users or workstations that may directly or indirectly access or otherwise utilise the Database at any given point in time may not exceed the number of Client Access Licences that you have purchased. Use of software or hardware that reduces the number of users directly accessing or utilising the Server installed Software (sometimes called “multiplexing” or “pooling” software or hardware) does not reduce the number of Client Access Licences required.
On payment of the Annual Licence Fee as detailed in section 7, a licence code will be issued for a Client Access Licence. This Client Access Licence allows you to install the Software on the single workstation for access to the Database installed on the Server. The maximum number of users that may directly or indirectly access or otherwise utilise Server-installed Database or the Software at any given point in time may not exceed the total number of Client Access Licences that you have purchased.
(c) 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.
(d) Demonstration Licence: The demonstration version of MYOB Exo Business is not licensed for an implementation or processing transactions for any business.
5. Third Party Software Products
This Agreement does not grant you any rights in relation to any third party software products required in conjunction with the Software, for example third party database products. 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. This licence does not include licences to any third party database server software that is required to correctly operate 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, any exchange of data or other interaction between you and a third party provider is solely between you and them. 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.
6. Third Party Services
You may ,as part of your installation of the Software, separately engage the services of an MYOB Enterprise Solutions Partner (“Exo Business Partner”). These services are supplied independently of MYOB.
7. Annual Licence Fees
The Annual Licence Fee allows you to continue to use the Software. You agree to pay the Annual Licence Fee from the Start Date. The registration code(s) expire 12 months after the Start Date and payment will need to be received prior to the annual anniversary to continue using the Software.
The Annual Licence Fee is as per the current MYOB Exo price List. MYOB will provide you with a licence code representing the Client Access Licence to allow full use of the Software once MYOB receives payment of the Annual Licence Fee.
All licence changes that effect calculation of the Annual Licence Fee (including user numbers) must be notified to MYOB at least 60 days prior to the anniversary of the Start Date.
If your Annual Licence 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 users 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.
8. Termination and Suspension
8.1 Termination by non-renewal
Either party may terminate this Agreement by giving the other party at least 60 days’ prior written notice of its intention not to renew the Licence and this Agreement for a further period.
8.2 Your right to terminate if we make certain changes
If we make a change to this Agreement that is detrimental to you, 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 8.2, 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.
8.3 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;
(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 14 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 8.3(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.
8.4 Suspension by MYOB
We can suspend your Licence or access to the Software 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.
8.5 Termination by MYOB
We may terminate your Licence and this Agreement with immediate effect by giving notice if any of the events in section 8.4(b) occur.
9. Warranties
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.
We will take reasonable care in providing the Software but we do not warrant that the Software is bug or error free.
The Software will not operate in compliance with legislation in jurisdictions other than Australia and New Zealand.
10. Limitation of liability
10.1 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.
10.2 Where the Australian Consumer Law (“ACL”) applies
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:
(a) to cancel your service contract with us; and
(b) 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.
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.
10.3 Where the New Zealand Consumer Guarantee Act ("NZ CGA”) and Fair Trading Act (“NZ FTA”) would otherwise apply
For the purposes of section 5D of the NZ FTA and section 43 of the NZ CGA:
(a) the goods and services provided to you under or in connection with this Agreement are being provided and acquired in trade;
(b) 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
(c) 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).
Except as specified in section 10.3(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.
10.4 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:
(i) 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;
(ii) enhancements, adaptations, translations or modifications of the Software not made by us;
(iii) faults, malfunction or defect in any Other Applications not supplied by us; or
(iv) 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 8.4(b).
10.5 Mutual liability cap
Except in accordance with sections 10.2 and 10.3, 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 your Annual Licence Fee.
10.6 Mutual exclusion of liability for consequential loss
Except in accordance with sections 10.2 and 10.3, 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.
10.7 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.
10.8 Mutual duty to mitigate loss
Each party must use all reasonable endeavours to mitigate its losses.
11. Privacy and data
11.1 Privacy
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.
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.
11.2 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.
The Software contains software locking or disabling features, which may activate upon attempted use of the software in breach of this Agreement. You should backup your data on media not associated with the Software to reduce the risk of any loss of data that might result from the activation of such features.
12. Privacy Disclosure Statement
We collect, disclose and use your Personal Information to provide and support MYOB Exo, 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.
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.
You agree to let us collect, use and disclose your Personal Information for the reasons above.
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.
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.
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.
13. Notices
You will agree that all communications between you and us in relation to the Software or related services will be: by email; in-product notification by us; or through your Exo Business Partner.
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). Any email notices to MYOB must be copied to legal@myob.com.
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.
14. Legal
Any terms used in this Agreement, unless defined otherwise, have the following meaning:
Annual Licence Fee means the annual fee payable by you in order to continue to use the Software after the Renewal Date.
End User, you or your includes (as applicable) the legal entities specified in the schedule of this document and or your nominated representative(s).
Licence Type means the type of Licence grant including the licence types set out in section 3.
Start Date is the date nominated in the execution schedule for commencement of Annual Licence Fees.
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.
If any provision of this Agreement is found void or unenforceable, the remainder will remain valid and enforceable according to its terms unless this would alter the basic agreement between you and us, in which case either party may terminate this Agreement.
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.
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 Exo.
We will give you notice if we do this. This Agreement will apply to and benefit the parties and their permitted successors and assignees.
This Agreement may be executed as an agreement by the End User’s authorised representative or the End User directly.