MYOB provides a broad range of Services relating to online accounting software, enterprise resource planning, payroll, workforce management and software for accountants and bookkeepers. You may request, and MYOB may agree to provide, the Services on the terms set out in this Agreement.
1.1 Term of Agreement
The Term of this Agreement starts on the Commencement Date and continues until terminated in accordance with clause 12.
1.2 Term of Order Form
a. Each Order Form starts on the Start Date and continues for the Minimum Term, unless otherwise extended in accordance with clause 1.2(b) or terminated in accordance with clause 12 or the terms of the Order Form.
b. Unless otherwise agreed in the Order Form, at the end of a Minimum Term, an Order Form will automatically renew for successive terms of 12 months each unless either you or MYOB notifies the other party in writing of its intention not to renew the Order Form at least 90 days prior to the end of the Minimum Term or any renewal term.
2. Order Forms
You may from time to time request MYOB to provide Services by executing an Order Form in accordance with this clause 2.
2.2 Execution of Order Forms
a. On your reasonable request, MYOB will prepare a draft Order Form for the Services requested by you. The draft Order Form will set out the Fees payable for the Services and any of your minimum spend or minimum quantity obligations.
b. You may accept the draft Order Form by executing and returning it to MYOB. The Order Form will form part of this Agreement on execution by both parties.
c. MYOB will not be required to provide any Services without an executed Order Form.
2.3 Additional terms and conditions
The following additional terms and conditions may apply to a Product, the Services or an Order Form (as applicable), as specified in the Order Form:
a. Product Terms;
c. Module Terms; and
c. Order Terms.
2.4 Order of priority
In there is a conflict between any of the following documents, the priority of the documents will be as follows (listed in descending order of precedence):
a. Product Terms;
b. Module Terms;
c. Order Terms;
d. the terms of an Order Form;
e. the terms and conditions in the body of this Agreement; and
any other documents referred to in, or incorporated by reference in, this Agreement or any of its schedules, exhibits or annexures.
a. Subject to clause 2.5(b), any Changes to the Services, including to add or remove a Module, will be agreed by you and MYOB under a new Order Form.
b. If specified in an Order Form, either you or MYOB may request a Change to the Order Form by:
submitting a Change Request to the other party; and
MYOB providing you with an amended Order Form.
c. The Change will not be binding on you and MYOB until a new Order Form or amended Order Form is executed by both parties.
3.1 Provision of the Services
a. During the Term, MYOB must provide the Services:
in accordance with the relevant Order Form and this Agreement;
with all due care, skill, diligence and expertise;
using suitably qualified, experienced and appropriate Personnel; and
in accordance with applicable Laws.
b. You acknowledge and agree that MYOB may subcontract any or all of the provision of Services to a Third Party. MYOB will remain responsible for the performance of the subcontracted portion of the Services.
If specified in the Order Form, MYOB will grant a licence to the Product to you and your Users.
3.3 Subscription Services
a. If specified in the Order Form, MYOB will provide the Subscription Services. Subscription Services may include:
access and use of the Product by you and your Users;
access to Support Services by you and your Users; and
provision of any Updates or New Releases as and when made available by MYOB.
b. You acknowledge that MYOB may set minimum usage volumes in respect of the Subscription Services as set out in the Order Form.
c. MYOB must use reasonable endeavours to ensure that the Product:
will not introduce any Harmful Code into any of your systems; and
will conform to any other requirements set out in the Order Form in all material respects.
3.4 Support Services
a. If specified in the Order Form, MYOB will provide the Support Services.
b. You acknowledge and agree that MYOB will have no liability to you, and no obligation to provide the Support Services, for any error, problem or defect arising from or in connection with:
your or your Users’ access or use of the Product or Deliverable in a manner not authorised by MYOB in writing, including access or use with any hardware, software or other services not authorised by MYOB in writing;
enhancements, adaptations, translations or modifications of the Product or Deliverable by a person other than MYOB;
faults, malfunction or defect in any Third Party Material; or
telecommunications or power failure or fault, or defective network or Internet connection.
3.5 Updates and New Releases
a. During the Term, MYOB may provide you with Updates and New Releases in respect of the Subscription Services where the Update or New Release is made available generally by MYOB.
b. At MYOB’s option, MYOB may either:
automatically install the Update or New Release for the Subscription Services without further notice to you; or
if reasonably requested by you, install the Update or New Release for you and on your behalf, at your cost.
c. You acknowledge and agree that certain Updates or New Releases are critical to the functionality or security of the Subscription Services. If we are unable to install Updates or New Releases, or if you are unable or unwilling to install Updates or New Releases, you may be unable to properly obtain, install, update, access, use or continue to access or use the Subscription Services.
3.6 Scheduled Maintenance
a. MYOB may interrupt the provision of the Services to undertake any Scheduled Maintenance, provided that MYOB must use reasonable endeavours to minimise disruption to you.
b. In the event that any Scheduled Maintenance will cause or is likely to cause disruption to you, MYOB must provide you at least seven (7) days’ written notice of the Scheduled Maintenance.
c. Notwithstanding clause 3.6(b), MYOB may undertake emergency repairs, modifications, additions or other maintenance to the Services without notification to you where such repairs, modifications, additions or other maintenance to the Services are business critical, outside the reasonable control of MYOB, and necessary to safeguard the integrity or security of the Services.
3.7 Service Levels
If specified in the Order Form, the Services will be provided in accordance with the Service Levels. However, MYOB will not be required to meet a Service Level if the failure to meet a Service Level was caused or contributed to by:
a. a Force Majeure Event;
b. you, your third party providers, Personnel or Users;
c. a breach of obligations under this Agreement by you or your third party providers, Personnel or Users; or
d. any of the circumstances set out in clause 3.4(b).
3.8 Professional Services
If specified in the Order Form, MYOB will provide the Professional Services.
a. If the Services or Deliverables require Acceptance under the Order Form, this clause 3.9 will apply.
b. You must promptly conduct the applicable tests, and must give written notice to MYOB of any material defects in the Services or Deliverables within 10 Business Days from the date the Services or Deliverables are provided to you.
c. The Services or a Deliverable will be deemed to have been Accepted if:
you do not provide MYOB with the relevant notice under clause 3.9(b); or
the Service or Deliverable is used in a live or production environment.
4. Client Obligations
You undertake to:
a. do all things reasonably necessary to enable MYOB to perform its obligations under this Agreement including performing any works, providing any information, providing any equipment, or completing any other dependencies as reasonably required by MYOB from time to time;
b. provide MYOB with all assistance and co-operation in the performance of this Agreement required by MYOB from time to time, including providing MYOB with:
access to your premises, as and when required by MYOB;
accurate and timely forecasting information as it relates to the provision of the Services;
access to your relevant Personnel or Users, on reasonable notice; and
all information, software, systems and documentation as is otherwise necessary for MYOB;
c. appoint and maintain sufficient numbers of appropriately qualified Personnel to liaise with MYOB in relation to the performance of this Agreement; and
d. perform any obligations specified in an Order Form.
4.2 Compliance with Laws
You acknowledge and agree that:
a. you will use the Services in a manner compliant with all applicable Laws, including Tax Laws, Industrial Relations Laws, and Privacy Laws;
b. you are responsible for retaining your Customer Data for compliance with the requirements of the relevant Government Agency, and Tax Laws and Industrial Relations Laws generally; and
c. MYOB is not liable for your failure to meet your retention obligations under the Tax Laws or Industrial Relations Laws, in relation to any Customer Data.
4.3 Acceptable Use
You must, and must ensure that your Personnel and Users will, not:
a. interfere with the operation of the Services;
b. reverse-engineer, reverse-assemble, decompile, or otherwise attempt to discover source code, formulas or processes in respect of the Product underlying the Services, except as provided for by the customisation features in the Services;
c. copy, reproduce, alter, modify, create derivative works, or publicly display, any part of any content from the Services, except where MYOB has given you permission in writing;
d. use the Services in way that is prohibited by Law in any relevant jurisdiction, or in a way that violates a Third Party’s rights, including any Intellectual Property Rights; or
e. introduce any Harmful Code to the Services.
You acknowledge that if the completion of Deliverables or the provision of the Services is delayed or is required to be altered because of the following:
a. if MYOB suspends the provision of the Services in accordance with its rights under this Agreement;
b. if MYOB is required to provide the Services in circumstances other than those expressly or reasonably anticipated in this Agreement or stated in the relevant Order Form;
c. if there is a change in the timing or complexity of the Services caused or contributed to by you;
d. as a result of any act or omission by you or your Personnel or Users,
then you acknowledge and agree that:
e. the dates for provision and acceptance of Deliverables as set out in the Order Form or otherwise agreed, may be delayed or changed by the mutual written agreement of you and MYOB, on such terms as you and MYOB agree; and/or
f. acting reasonably MYOB may increase the Fees relating to the provision of any amended or revised Deliverables or Services which are required as a result of any of the circumstances set out above.
5. Fees and Payment
You must pay MYOB the Fees and any agreed Expenses as set out in the relevant Order Form.
5.2 Invoicing Terms
MYOB will issue a Tax Invoice to you for the Services in accordance with the Invoicing Terms.
5.3 Payment Terms
You must pay each Tax Invoice in accordance with the Payment Terms.
5.4 Direct Debit Authority
You authorise MYOB to deduct periodical instalments of the Fees and any other Expenses payable by you to MYOB in accordance with the Direct Debit Authority.
5.5 Disputed amounts
If you dispute any amount in a Tax Invoice, you must pay MYOB the undisputed portion and promptly notify MYOB of its reasons for disputing the relevant amount. You and MYOB must use reasonable endeavours to resolve the dispute at their earliest possible convenience. In the event you and MYOB cannot resolve the dispute, the matter must be resolved in accordance with clause 11. If the dispute is resolved and you and MYOB 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 MYOB within 14 days of resolution of the dispute.
5.6 Overdue amounts
Subject to clause 5.4, if any amount payable to MYOB under this Agreement has not been paid by you by the due date for payment, and MYOB has provided written notice of such failure and you has not paid, MYOB may:
a. 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) or, if you accept this Agreement in New Zealand, the interest rate equal to the official cash rate of the Reserve Bank of New Zealand plus five percent; or
b. suspend the provision of the Services under the Order Form to which the unpaid amount relates to.
5.7 Fee review
Unless otherwise agreed under the Order Form, MYOB may vary the Fees under an Order Form after the expiry of the initial Minimum Term or any renewal term by giving you at least 30 days’ prior written notice.
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, 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.
6. Intellectual Property Rights
6.1 Licence to Product and/or Deliverables
MYOB grants you a non-exclusive, non-transferable, non-sublicensable (other than to the Users), revocable, royalty-free licence during the relevant Minimum Term or renewal term to access and use the Product and/or the Deliverables, and any Updates or New Releases, to the extent necessary and for the sole and limited purpose for you to receive the benefit of the Services.
6.2 Licence to Background Materials
a. Each of you and MYOB retains all right, title and ownership in its Background Materials.
b. You grant to MYOB:
an irrevocable, non-exclusive, non-transferable, sublicensable, royalty-free licence during the Term to access and use your Background Materials to the extent necessary and for the sole purpose of providing the Services and/or Deliverables; and
a perpetual, irrevocable, non-exclusive, transferable, sublicensable, royalty-free licence to use, modify, adapt, translate and otherwise exercise its rights in relation to clause 6.2(e).
c. MYOB grants to you a revocable, non-exclusive, non-transferable, non-sublicensable (other than to the Users), royalty-free licence during the Term to access and use MYOB’s Background Materials to the extent incorporated into (but not separate from) the Services and/or Deliverables for the sole purpose of obtaining the benefit of the Services and/or Deliverables.
d. Any modification, adaptation, translation or derivative of MYOB’s Background Materials will vest in, or are hereby assigned, to MYOB immediately upon creation.
e. Any modifications, adaptations, translations or derivatives of your Background Materials created or developed by or on behalf of MYOB in the course of providing the Services and/or Deliverables will vest in, or are hereby assigned to, MYOB immediately on creation.
6.3 Third Party Licence
a. You acknowledge and agree that MYOB may provide you with Product 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 agreed by you and MYOB under the Order Form, you must enter into the Third Party Licence directly with the relevant Third Party for the use of the Third Party Materials.
7.1 Confidentiality obligations
Each of you and MYOB will be receiving, possessing or otherwise acquiring Confidential Information of the other party. Each of you and MYOB must take all reasonable steps to secure and keep secure all of the other party’s Confidential Information coming into its possession or control.
Subject to MYOB obtaining your prior written consent, MYOB may reference you by name and use your logo in all customer lists and in sales and marketing communications.
8.1 Compliance with Privacy Laws
Both parties agree to comply with the applicable Privacy Laws in relation to the provision and use of the Services.
8.2 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.
b. Without limiting clause 8.2(a), you undertake for yourself, and on behalf of your Personnel or Users, to:
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 MYOB under this Agreement;
provide all notices in accordance with applicable Privacy Laws to individuals (including your Users) from whom it collects Personal Information;
ensure that any Personal Information transferred to MYOB is complete, accurate and up to date; and
notify MYOB 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.
c. Without limiting clause 8.2(a), you may only disclose Personal Information in your control to MYOB if:
you are authorised by applicable Privacy Laws to collect the Personal Information and to collect, use, disclose, store or handle the Personal Information in the manner required by this Agreement; and
you have expressly informed and have obtained the written consent of the individual to whom the Personal Information relates after expressly informing them that in order to provide goods or services to them it might be necessary for you to disclose their Personal Information to MYOB and other Third Parties, including to MYOB and other Third Parties located outside of Australia or, if you accept this Agreement in New Zealand, New Zealand, and that MYOB or such Third Parties may not be required to protect the information in a way that, overall, provides comparable safeguards to the Privacy Act.
8.3 Data Security
a. (a) MYOB must:
take reasonable precautions to prevent a Security Breach in relation to the Customer Data; and
promptly notify you if it becomes aware of an Eligible Data Breach to the extent permitted by Law (including under the Privacy Act).
b. You are solely responsible for keeping any Access Credentials secure and confidential. You acknowledge and agree that:
Access Credentials must not be shared or used by more than one User;
MYOB will not be responsible for any Security Breach or Eligible Data Breach resulting from or otherwise aided by your conduct or failure to maintain the confidentiality of any Access Credentials but only to the extent not prohibited by applicable Law; and
you must immediately notify MYOB if it has any reason to believe that the confidentiality of any Access Credential has been compromised.
c. You acknowledge and agree:
that MYOB may be required by Law to permit Third Parties, such as a Government Agency, to access and inspect your premises and any data under your possession or control (including Customer Data); and
to MYOB permitting such Third Parties to access and inspect such premises and data for that purpose.
9. Warranties and Indemnity
9.1 Client warranties
You warrant to MYOB that:
a. any information or materials you have provided to MYOB under this Agreement (including prior to the Commencement Date) are true, accurate, and are not misleading or deceptive in any way;
b. you have not engaged MYOB to provide any Services that could infringe any Intellectual Property Rights of any Third Parties; and
c. in using the Services, you must:
ensure that the Intellectual Property Rights and other proprietary rights in the Services are not infringed in any way; and
comply with the directions of MYOB.
9.2 MYOB warranties
MYOB warrants to you that:
a. it will use reasonable endeavours to provide each Service with all due care, skill, and diligence in accordance with good business practice for the industry;
b. it will perform each Service and provide each Deliverable in accordance with this Agreement and each Order Form in all material respects; and
c. the performance of MYOB’s obligations under this Agreement and the access and use of the Services and/or Deliverables in accordance with this Agreement will not infringe the Intellectual Property Rights of any Third Party.
9.3 Disclaimer of warranty
You expressly acknowledge and agree that:
a. any representation, warranty, condition or undertaking that would be implied in this Agreement by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by Law;
b. MYOB expressly disclaims and excludes any and all warranties (whether express or implied), and offers no indemnities or guarantees, in respect of Third Party Materials (including in relation to the availability, suitability, performance, interoperability with your system, or fitness for a particular purpose);
c. for the purposes of section 5D of the NZ FTA and section 43 of the NZ CGA:
the Services, Products and Deliverables provided to you under or in connection with this Agreement are being provided and acquired in trade;
if the NZ FTA and/or NZ CGA applies to any Services, Products or Deliverables 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
it is fair and reasonable for the parties to be bound by this clause; and
d. nothing in this Agreement excludes, restricts or modifies any condition, warranty, right or remedy conferred on you and MYOB by the Competition and Consumer Act 2010 (Cth) (as amended or replaced from time to time), the NZ CGA, the NZ FTA or any other applicable Law that cannot be excluded, restricted or modified by agreement.
9.4 Intellectual Property Rights Indemnity
a. (a) Subject to you complying with clauses 9.4(b) and 9.4(c), MYOB indemnifies you from and against any liability suffered or incurred by you arising from or in connection with an IP Claim.
b. (b) If an IP Claim is made against you:
you must promptly notify MYOB of the IP Claim;
you must provide all reasonably requested information and assistance to MYOB required for MYOB to defend the IP Claim; and
you give MYOB the right to defend and settle the IP Claim (provided that MYOB 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 the Third Party, then MYOB may either, at its option and cost:
modify the affected Service or Deliverable to render it, or your use, non-infringing within a reasonable period; or
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, remove any Deliverables and cease performing any Services that are agreed to infringe the Intellectual Property Rights of a Third Party, and MYOB may refund to you any Fees paid in advance for such infringing Services or Deliverables not rendered.
d. The indemnity in this clause 9.4 will not apply to the extent that the IP Claim arises or results from one of the following:
if MYOB complies with your specific technical designs or instructions or includes any content or other materials provided by you and the IP Claim specifically relates to the technical design, instructions or content provided by you;
the combination of any other product, service, software, data, content, method or Background IP not provided by MYOB and the Services, Deliverables or Products; or
any of the circumstances set out in clause 3.4(b).
10.1 Limitation of liability
To the maximum extent permitted by Law:
a. the maximum aggregate liability of either you or MYOB for all proven losses, damages and claims arising out of this Agreement (inclusive of all Order Forms), including under an indemnity, a liability for breach, in negligence or in tort or for any other common law or statutory action, is limited to the average monthly Fees paid by you to MYOB under the then-current Order Forms, multiplied by 12; and
b. neither you nor MYOB is liable for Consequential Loss sustained by the other party under or in connection with this Agreement.
10.2 Proportionate liability
To the extent permissible by Law, your or MYOB’s liability under the Agreement (including under an indemnity) 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 other party or its Personnel.
10.3 Duty to mitigate
Each party must use all reasonable endeavours to mitigate its liability.
11. Dispute Resolution
a. (a) If either you or MYOB claim that a dispute has arisen, that party must give written notice to the other party specifying the nature of the dispute and you and MYOB must submit themselves to the dispute resolution procedure specified in this clause 11.
b. (b) You and MYOB agree that if a dispute arises out of or relates to this Agreement, neither you nor MYOB may commence any legal proceedings relating to the dispute unless it has complied with the provisions of this clause 11 except to seek urgent equitable or interlocutory relief.
c. (c) When a dispute arises between you and MYOB in relation to this Agreement, then:
all amounts payable by you to MYOB which are not in dispute must be paid in accordance with the Order Form;
if you and MYOB cannot resolve the dispute within 10 Business Days after notice has been given, then the dispute is to be referred to the respective senior representatives or their nominees of you and MYOB (jointly referred to in the remainder of this clause 11 as senior representatives) for resolution; and
if the senior representatives cannot resolve the dispute within 10 Business Days after referral, then you and MYOB must submit the dispute to a mediator for consideration in accordance with the Guidelines for Commercial Mediation of the Australian Disputes Centre, which are taken to be incorporated into this Agreement.
d. Each of you and MYOB must pay its own internal and legal costs in relation to complying with this clause 11. The mediator’s costs are to be shared equally between you and MYOB.
12.1 Termination for convenience
After the Minimum Term, you may terminate an Order Form at any time for any reason by giving MYOB at least 90 days’ prior written notice to that effect.
12.2 Termination due to default
If an Event of Default occurs in relation to you or MYOB (Defaulting Party):
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 20 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 12.2(a) then the other party, without limiting its other rights and remedies, may terminate the Order Form to which the Event of Default relates, by giving to the Defaulting Party notice with immediate effect.
12.3 Change in Law
MYOB may immediately terminate an Order Form by giving you written notice if a Government Agency issues a direction, or there is a change in Law, which makes the ongoing provision of the Services substantially unworkable or non-functional.
12.4 Consequences of termination
a. Termination of an Order Form will not affect this Agreement and any other Order Forms which are in effect between MYOB and you at the time of the termination and such other Order Forms will continue in accordance with their respective terms, unless otherwise stated in the Order Form.
b. Upon the termination or expiration of all Order Forms issued under this Agreement, this Agreement will automatically expire.
c. On the expiry or termination of an Order Form for any reason:
you must pay any Fees that are due and payable (including those which may not have been invoiced prior to expiry or termination) for the Services under that Order Form up to the date of expiry or termination;
the Order Form will be at an end as to its future operation except for the enforcement of any right or claim in relation to the Agreement that arises on, or has arisen before, the expiry or termination;
subject to you complying with your obligations under clause 12.4(c)(i), you will be entitled to retain and use that part of the Deliverable provided by MYOB and paid for in full by you on or before the date of expiry or termination;
you must immediately cease using and return to MYOB any part of the Deliverable that is not paid for by you in full, at your risk and cost;
you must immediately cease using and return to MYOB any of MYOB’s 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; and
you may extract your Customer Data from the Services as soon as possible and in any event no later than 90 days following the effective date of expiry or termination.
d. If you terminate an Order Form in accordance with clause 12.1 or an Order Form is terminated by MYOB in accordance with clause 12.2 due to your Event of Default, you must pay MYOB the following:
MYOB’s Unavoidable Costs; and
if the termination is during the Minimum Term, the Minimum Term Amount in respect of the Order Form.
e. Following expiry or termination of an Order Form, MYOB may take steps to delete the Customer Data in relation to the relevant Order Form in accordance with MYOB’s standard data retention practices and procedures, whether or not you exercised your rights under clause 12.4(c)(vi).
Upon expiry or termination of an Order Form in accordance with clause 12.1, you may request MYOB to provide disengagement services. Unless otherwise agreed by you and MYOB, disengagement services will be provided under a separate Order Form at MYOB’s then-current Fees.
Clauses 7, 8, 9.4, 10, 11, 12, 13, 14 and all other provisions that, by their nature, are intended to survive termination of this Agreement, will survive termination and expiry of this Agreement.
13. General provisions
13.1 Contracting Entity and Governing Law
a. The reference to MYOB, the address for service of notices for MYOB, and the governing law and jurisdiction for this Agreement is as follows:
Location of Client
Address for Service of Notices
Governing Law and Jurisdiction
MYOB Australia Pty Ltd
PO Box 73, Richmond Victoria 3121
MYOB NZ Limited
MYOB NZ Limited, C/- Quigg Partners, Level 7, 36 Brandon Street, Wellington, 6011
Elsewhere in the world
MYOB Australia Pty Ltd
PO Box 73, Richmond Victoria 3121
b. This Agreement is governed by and construed under the Law set out in clause 13.1(a).
c. Any legal action in relation to this Agreement against any party or its property may be brought in any court of competent jurisdiction set out in clause 13.1(a).
d. Each party by execution of this Agreement irrevocably, generally and unconditionally submits to the non exclusive jurisdiction of any court specified in this provision in relation to both itself and its property.
13.2 Force Majeure Events
Neither you nor MYOB will be liable to the other for any delay or failure to perform its obligations under this Agreement as a result of a Force Majeure Event.
You must not, and must not cause any of your Personnel or Users to, without the prior written consent of MYOB, solicit, entice away or attempt to entice away any employee of MYOB that is engaged in the performance of Services under an Order Form within a 12-month period after that employee ceases to be engaged in the performance of that Order Form.
Nothing in this Agreement is intended to create a partnership, joint venture, or agency relationship between you and MYOB, and each of you and MYOB agree that they are entering into this Agreement only as independent contractors.
Each of you and MYOB must pay its own costs in relation to:
a. the negotiation, preparation, execution, performance, amendment or registration of, or any consent given or made; and
b. the performance of any action by that party in compliance with any liability arising, under this Agreement, or any agreement or document executed or effected under this Agreement, unless this Agreement provides otherwise.
a. You must not assign, transfer or novate any right or liability under this Agreement without the prior consent of MYOB.
b. MYOB may assign, transfer or novate any right or liability under this Agreement without your prior written consent:
in connection with a merger, acquisition or sale of all or a substantial part of MYOB’s assets; or
to any affiliate, related body corporate or as part of a corporate restructure, and following such an assignment, transfer or novation, the assignee is deemed substituted for MYOB as a party to this Agreement, and you release MYOB from all of its rights and obligations under this Agreement.
c. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective permitted successors and assignees.
a. Any notice to or by a party under this Agreement 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 MYOB must be copied to firstname.lastname@example.org.
c. Any notice is effective for the purposes of this Agreement 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.
MYOB may vary the terms of this Agreement from time to time by giving you at least 30 days’ prior written notice.
13.9 Third parties
This Agreement confers rights only upon a person expressed to be a party, and not upon any other person.
13.10 Pre-contractual negotiation
This Agreement incorporates the entire agreement between you and MYOB in relation to its subject matter, and supersedes and excludes any prior or collateral negotiation, understanding, communication or agreement by or between the parties in relation to that subject matter.
13.11 Further assurance
Each of you and MYOB must execute any document and perform any action necessary to give full effect to this Agreement, whether before or after performance of this Agreement.
Any failure by either you or MYOB 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.
The rights of a party under this Agreement are cumulative and not exclusive of any rights provided by Law.
Any provision of this Agreement which is invalid in any jurisdiction is invalid in that jurisdiction to that extent, without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.
This Agreement may be executed in any number of counterparts, all of which taken together are deemed to constitute one and the same document. Each of you and MYOB consents to the use of electronic communications or means to execute this document in accordance with the Electronic Transactions (Victoria) Act 2000 (Vic) (as amended or replaced from time to time) or, if you accept this Agreement in New Zealand, the Contract and Commercial Law Act 2017 (NZ) (as amended or replaced from time to time).
13.16 Acting as trustee
If you enter into this Agreement as trustee of a trust, you and your successors as trustee of the trust will be liable under this Agreement in your own right and as trustee of the trust. Nothing releases you from any liability in its personal capacity. You warrant that at the date of this Agreement 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.
14. Definitions and interpretation
In this Agreement:
Acceptance means, in respect of the Services or a Deliverable, that such Services or Deliverables complies with its relevant specifications and documentation in all material respects;
Access Credential means any passwords or other log-in details provided to you by MYOB for the purpose of accessing and using the Services;
Agreement means these terms and conditions, an Order Form, and any schedules, recitals, attachments or annexures;
Assumptions has the meaning given to the term in the Order Form;
Background Materials means:
a. any material, communications or technology which is pre-existing or created independently of an Order Form which a party makes available for the performance of its obligations in respect of the Services or Deliverables; or
b. any information, communications, technology, software or other materials which are otherwise required for effective use of the Deliverables; and
c. 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 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 MYOB for the purposes of the Services;
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in the applicable governing law and jurisdiction set out in clause 13.1(a);
Change means any variation to all or part of an Order Form;
Change Request means a written request by a party for a Change, substantially in the form approved by MYOB from time to time, which will include any additional information reasonably necessary to enable the other party to properly assess the request;
Commencement Date means the date this Agreement both MYOB and you execute the first Order Form;
Companies Act means the Companies Act 1993 (NZ) (as amended or replaced from time to time);
Confidential Information means, in respect of a party:
a. information submitted or disclosed by either you or MYOB during negotiations, discussions and meetings relating to this Agreement or an Order Form;
b. information that at the time of disclosure by a party is identified to the other party as being confidential; and
c. all other information belonging or relating to a party that is not generally available to the public at the time of disclosure other than by reason of a breach of this Agreement or which the other party knows, or ought reasonably to be expected to know, is confidential to that first party;
Consequential Loss means 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;
Controller means, in relation to a person:
a. a receiver, receiver and manager, administrator or liquidator (whether provisional or otherwise) of that person or that person’s property; or
b. 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;
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 Services;
Deliverable means a deliverable specified in an Order Form, excluding MYOB’s Background Materials;
Direct Debit Authority means the direct debit authority executed by you, applicable to the Fees payable under an Order Form;
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:
a. the party commits a material breach of its obligations under the Agreement or an Order Form;
b. an Insolvency Event occurs in relation to the party;
c. 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
d. the party fails to pay by the due date any undisputed amount due and payable by it under an Order Form;
Expenses mean out-of-pocket expenses incurred by MYOB in connection with the provision of the Services, which have been approved in writing by you;
Fees mean the fees specified in the Order Form and payable by you to MYOB 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), or, if you accept this Agreement in New Zealand, means the Goods and Services Tax Act 1985 (NZ) (as amended or replaced from time to time).
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 Australian and New Zealand Laws, principles, or directions issued by a Government Agency relating to employment relations in Australia or New Zealand (as applicable);
Insolvency Event means, in relation to a party, any one or more of the following events or circumstances:
a. being in liquidation or provisional liquidation or under administration;
b. having a Controller or analogous person appointed to it or to any of its property;
c. being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand;
d. 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);
e. being unable to pay its debts or being otherwise insolvent;
f. becoming an insolvent under administration, as defined in section 9 of the Corporations Act;
g. entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors; or
h. 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:
a. 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;
b. any application or right to apply for registration of any of the rights in paragraph (a);
c. any registration of any of those rights or any registration of any application referred to in paragraph (a); and
d. all renewals and extensions of these rights;
Invoicing Terms means the terms setting out when MYOB may issue a Tax Invoice to you, as specified in an Order Form;
IP Claim means a proven claim by a Third Party that the Services, the Deliverables or their use, infringes the Intellectual Property Rights of that Third Party;
a. principles of law or equity established by decisions of courts;
b. statutes, regulations or by-laws of the Commonwealth, a State, a Territory, New Zealand or a Government Agency; and
c. requirements and approvals (including conditions) of the Commonwealth, a State, a Territory, New Zealand or a Government Agency that have the force of law;
Minimum Term means the term of each Order Form, as specified in the relevant Order Form;
Minimum Term Amount means the amount of Fees that would otherwise have been payable for the period from the Start Date and the end of the Service Term in relation to an Order Form;
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 an Order Form;
MYOB means the contracting entity specified in clause 13.1;
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;
NZ CGA means the Consumer Guarantee Act 1993 (NZ) (as amended or replaced from time to time);
NZ FTA means the Fair Trading Act 1986 (NZ) (as amended or replaced from time to time);
Order Form means a written statement (including any schedules, annexures or attachments) for the provision of the Services by MYOB to you, substantially in the form approved by MYOB from time to time;
Order Terms means additional terms and conditions applicable to an Order Form, as specified in that Order Form;
Payment Terms means the terms setting out when you must pay a Tax Invoice, as specified in an Order Form;
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) or, if you accept this Agreement in New Zealand, the Privacy Act 2020 (as amended or replaced from time to time);
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;
Product means the software or application the subject of licensing or Subscription Services, which may include one or more Modules, as specified in the Order Form;
Product Terms means the additional terms and conditions applicable to a Product, as provided to, and accepted by, you on accessing that Product;
Professional Services mean the professional services to be provided by MYOB to you, as specified in the Order Form. Professional Services may be installation services, implementation services, development services, training services, and consulting services;
Related Entity has the meaning given to that term in the Corporations Act;
Scheduled Maintenance means an interruption to the provision of the Services for the purpose of MYOB 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 Order Form;
Start Date means the earlier of the activation of the Services for the first time or the commencement date of an Order Form as specified in the relevant Order Form;
Services means the services that MYOB agrees to provide under this Agreement from time to time. Services include the Subscription Services, Support Services, Professional Services and such other services as set out in the relevant Order Form;
Subscription Services means the subscription services for the Product to be provided by MYOB to you, as specified in the relevant Order Form;
Support Services mean the support services to be provided by MYOB to you, as specified in the relevant Order Form;
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 in New Zealand (as amended or replaced from time to time);
Term means the term of this Agreement, as described in clause 1.1;
Third Party means any party other than MYOB or you;
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 MYOB, in connection with the performance of its obligations under this Agreement or any agreement with any Third Party in connection with this Agreement which cannot be cancelled, refunded or re-allocated to MYOB’s other operations or business activities, including, for example labour and Third Party costs incurred to deliver a change request or Order Form, then terminated by you;
Update means software which has been made generally available from time to time by MYOB to its 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; and
You means the person specified on the Order Form as the ’Customer’, and Your has the corresponding meaning.
In this Agreement, unless the context requires otherwise:
a. clause and subclause headings are for reference purposes only;
b. the singular includes the plural and vice versa;
c. words denoting any gender include all genders;
d. a reference to a person includes any other entity recognised by law and vice versa;
e. where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
f. any reference to a party to this Agreement includes its successors and permitted assigns;
g. any reference to any agreement or document includes that agreement or document as amended at any time;
h. the use of the word includes or including is not to be taken as limiting the meaning of the words preceding it;
i. the expression at any time includes reference to past, present and future time and performing any action from time to time;
j. an agreement, representation or warranty by two or more persons binds them jointly and severally and is for the benefit of them jointly and severally;
k. a reference to an exhibit, annexure, attachment or schedule is a reference to the corresponding exhibit, annexure, attachment or schedule in this Agreement;
l. a reference to a clause described, prefaced or qualified by the name, heading or caption of a clause, subclause, paragraph, schedule, item, annexure, exhibit or attachment in this Agreement means a cross reference to that clause, subclause, paragraph, schedule, item, annexure, exhibit or attachment;
m. when a thing is required to be done or money is required to be paid under this Agreement on a day which is not a Business Day, the thing must be done and the money paid on the immediately preceding Business Day; and
n. a reference to a statute includes all regulations and amendments to that statute and any statute passed in substitution for that statute or incorporating any of its provisions to the extent that they are incorporated.
Updated July 2021.