17 Oct 2014
These are the terms and conditions for our supply of MYOB Kounta to you, including our obligations to each other (Terms).
About these terms
If you accept these Terms in Australia, these terms do not exclude, restrict or modify:
- the application of any provision of the Australian Consumer Law (whether applied as a law of the Commonwealth or any State or Territory of Australia) (ACL);
- the exercise of any right or remedy conferred by the ACL; or
- the liability of MYOB for a failure to comply with any
applicable consumer guarantees where to do so would:
- contravene the ACL; or
- cause any part of these Terms to be void.
Some words in these Terms have particular meanings:
ATO means the Australian Taxation Office.
Business Day means a week day, except for:
If you accept these Terms in Australia
- a national public holiday in Australia;
- a day on which banks in Victoria or New South Wales are generally closed; or
- a public holiday in Victoria.
If you accept these Terms in New Zealand:
- a national public holiday in New Zealand; or
- day on which banks in Auckland are generally closed.
Business means the business for which the application is made and accepted for MYOB Kounta. This would include, but is not limited to, sole traders, partnerships, companies and trusts.
Fees means the fees and charges relating to the provision of MYOB Kounta.
Inland Revenue means the Inland Revenue Department of New Zealand.
Kounta means Kounta Pty Ltd.
Loss or Claim means any loss, liability, action, proceeding, damage, cost or expense (including all reasonable legal costs and expenses), including liability in tort and consequential and economic losses.
MYOB Kounta means any of the services, facilities or functionality which form part of MYOB Kounta and which we make available to you from time to time.
Other Service means an application or service developed by a third party to integrate and be used in conjunction with MYOB Kounta.
Personal Information means that term as defined in the Privacy Act. Basically, this is information about an identifiable individual.
Privacy Act means the Privacy Act 1988 (Cth) (if you accept these Terms in Australia) or the Privacy Act 1993 (if you accept these Terms in New Zealand) as updated, amended or replaced from time to time.
Professional Partner means a person who provides consulting or similar services to you, and who you appoint as a User.
Tax Laws means the Taxation Administration Act 1953 (Cth) (if you accept these Terms in Australia) and Tax Administration Act 1994 (if you accept these Terms in New Zealand) as updated, amended or replaced from time to time, and any binding regulation, ruling or direction issued by the ATO or Inland Revenue (as applicable) from time to time.
Third Party means any person we have contracted with to help us provide MYOB Kounta. This includes Kounta and all other service providers engaged by us for the delivery, maintenance and administration of MYOB Kounta.
User means a person authorised by you to use MYOB Kounta (including a Professional Partner). MYOB Kounta is a multi-user system.
we, us and our means MYOB Australia Pty Ltd ACN 086 760 198 (if you accept these Terms in Australia) and MYOB NZ Limited, Company Number 902338 (if you accept these Terms in New Zealand).
you means the Business, including each User.
2.1 Protecting your username and password
- Unless you take
adequate security precautions, it could be possible for an
unauthorised person to gain access to your MYOB Kounta data. It
is important to take all reasonable precautions to ensure that
your username and password are not misused, and remain secure
and confidential. In particular:
- you must not tell anyone your username or password, including any member of your family;
- you must not let anyone else, whether acting as your agent or not, access MYOB Kounta using your username and password; and
- you must be extra careful when accessing MYOB Kounta from public computers.
- If you think anyone else might know your password you should reset your password from within MYOB Kounta, or contact us as soon as possible to arrange a new password.
- You agree to be liable if your login details are used by an unauthorised person.
2.2 Other responsibilities you have as a User
- No interference with MYOB Kounta –
You will not:
- interfere with the operation of MYOB Kounta or overload the system;
- use MYOB Kounta to process transactions on behalf of any non-User;
- reverse-engineer, reverse-assemble, decompile, or otherwise attempt to discover source code, formulas or processes in respect of the software behind MYOB Kounta;
- copy, reproduce, alter, modify, create derivative works, or publicly display, any part of any content from MYOB Kounta except where we have given you permission;
- use MYOB Kounta in a way that is prohibited by law, regulation or government order in any relevant jurisdiction, or in a way that violates a third party’s legal rights;
- use MYOB Kounta in a way that could harm or impair someone else’s use of it; or
- use MYOB Kounta to gain unauthorised access to any service, data, account or network by any means.
- Cooperation and limited authority in relation to Third
Parties – You:
- must do all things we consider appropriate to enable us to fulfil our obligations to Third Parties in relation to MYOB Kounta; and
- authorise us to give a Third Party or other person any authority, consent or instruction in respect of MYOB Kounta, to enable us to provide MYOB Kounta to you.
- Compliance with Tax Laws–it is your responsibility to retain your business records for tax compliance purposes. We are not liable for your failure to meet your retention obligations under the Tax Laws, in relation to any data that you input into MYOB Kounta. If you decide to terminate MYOB Kounta we strongly advise you to extract your data in its entirety as soon as possible following termination (see section 5.3 for further details). For specific advice regarding your ATO or Inland Revenue compliance obligations, please consult your professional advisor, the ATO (www.ato.gov.au) or Inland Revenue (http://www.ird.govt.nz/) as appropriate.
- Giving access to other Users – You can
authorise other people (including Professional Partners) to have
access to your MYOB Kounta data as Users. Depending to the
access rights you grant, other Users authorised by you will be
able to view and modify your MYOB Kounta data. You may give
other Users access to MYOB Kounta, subject to the following
- each User must have a unique password and username. Passwords and usernames must not be shared or used by more than one User;
- you are responsible for their use of MYOB Kounta;
- each User must comply with these Terms when using MYOB Kounta. We suggest that you provide them with a copy of these Terms; and
- you can stop a User’s access by removing them from your User list within MYOB Kounta or by contacting us.
- Change of details – You must let us know of any changes to your details which you have provided to us in relation to MYOB Kounta, and provide any proof of the change we require.
2.3 Use of MYOB Kounta and our intellectual property
- What you can do – until your use of MYOB Kounta is terminated, you have a non-exclusive and non-transferable licence to use MYOB Kounta in the way that we authorise from time to time.
- We retain our intellectual property rights – except where
specifically set out in these Terms, these Terms do not give you
any intellectual property or other rights in any of our:
- software, documents, templates, marketing material, trademarks, business names, logos, trading styles, get-up, processes or methodologies; or
- other intellectual property,
and you (including your staff, agents or contractors) must not otherwise use, reproduce or modify these intellectual property rights.
- Intellectual property rights deriving from your use of MYOB Kounta – You agree that any intellectual property rights in any systems, processes or methodologies developed by you which derive from your use of MYOB Kounta become our intellectual property.
2.4 MYOB Kounta Lite
- If you are a user of MYOB Kounta Lite, you will be able to access MYOB Kounta and process up to 10 transactions per day free of charge. To process more than 10 transactions per day you will need to subscribe to MYOB Kounta and pay Fees.If you do not subscribe, you will not be able to process more than 10 transactions in any 24 hour period.
2.5 Payment of Fees and Credit Card Authority
- You must pay us all Fees due to us in relation to your use of MYOB Kounta, on the due date. Fees are published on the MYOB website (myob.com.au or myob.co.nz).
- By giving you at least 20 days’ notice
before the change takes effect, we may:
- change the amount of any Fee and introduce a new Fee; and
- change the circumstances in which, or frequency with which, a Fee is payable.
Section 8 tells you about the ways in which we can give you notice.
- You authorise us to deduct monthly instalments and any other Fees payable to us in respect of your use of MYOB Kounta. You give us this authority by providing us with your credit card details.
- Debiting of Fees will ordinarily occur on the 1st Business Day of each month (but may occur at other times as required or permitted under these Terms) and can be in advance or in arrears as we determine. We will provide a monthly statement/tax invoice detailing the Fees that have been debited.
- The first payment will be pro-rated according to the end of the trial period for the appropriate number of days till the end of that month.
- It is your responsibility to ensure you have sufficient credit available on your nominated credit card to cover your monthly payment and that your card details are current and correct.
- If the debit to your card is declined, we will attempt to re-draw 3 times. If these attempts fail, we will advise you by email of the decline and you will be allowed 14 days to respond. Where the fees remain unpaid, we may suspend or terminate your use of MYOB Kounta.
- If you believe there has been an error in debiting your credit card, you should notify us immediately at firstname.lastname@example.org so that we can resolve your query promptly. If we conclude that your credit card has been incorrectly debited, we will arrange a refund of the incorrect debit.
2.6 Goods and services tax (GST) and duties
- All payments due to us (eg. Fees, reimbursement by you to us of any amounts or payments under indemnities), unless already stated to be GST inclusive, are to be increased by the amount of any GST liability we have in relation to supplies we make to which those payments relate.
- You must pay all duties (eg. stamp duty, other government charges or financial institution account fees, where applicable) payable in relation to your participation in MYOB Kounta. If we have paid them, they must be reimbursed by you on our request.
- Unless you take adequate security precautions, it could be possible for an unauthorised person to gain access to your MYOB Kounta data. It is important to take all reasonable precautions to ensure that your username and password are not misused, and remain secure and confidential. In particular:
- From time to time we may offer Other Services for MYOB Kounta.
- We make no warranties in relation to any Other Service offered in relation to MYOB Kounta, regardless of whether an Other Service is provided by a Professional Partner, Kounta or is otherwise recommended by us.
- We are not responsible for any Other Service that you may obtain or connect with MYOB Kounta. If you install or enable an Other Service for use with MYOB Kounta, you consent to use allowing the Other Service to access your data as required to enable MYOB Kounta and the Other Service to operate together. Any exchange of data or other interaction between you and a third party Other Service provider is solely between you and them. We are not responsible or liable for any disclosure, modification or deletion of your data as a result of any access to MYOB Kounta by a provider of an Other Service.
Availability of MYOB Kounta
- You are responsible for obtaining and maintaining internet access to allow you to use MYOB Kounta. This includes but is not limited to internet or ‘browser’ software versions that are compatible with MYOB Kounta. We are not responsible for notifying you of any upgrades, fixes or enhancements to any such software, or for any Loss or Claim arising from a compromise of data transmitted using networks or facilities which are not owned or operated by us.
- MYOB Kounta could be disrupted if systems failure occurs due to technology used by either us or Third Parties involved in providing MYOB Kounta.
- MYOB Kounta may also be unavailable for short periods because of necessary or desirable system maintenance or upgrades. If this is needed, we will try to inform you beforehand.
- Subject to the terms of section 6 below, we are not responsible or liable to you or the Business for any Loss or Claim arising from MYOB Kounta or any part of it being delayed, disrupted or unavailable.
- In order to maximise your business continuity and make it easier to comply with your record retention obligations, we encourage you to take steps to archive your business and financial records. This includes your invoices and receipts, and your business reports.
5.1 How can you end your participation in MYOB Kounta?
- You can cancel your participation in MYOB Kounta by giving us at least 20 days’ written notice before the end of the current month of your subscription. The effective date of termination will be the last day of the current month of your subscription.
- Your participation in MYOB Kounta will cease on the effective date of termination. However, during the notice period, you are still liable for any Fees in relation to your use of MYOB Kounta up to the effective date of termination. Refer also to section 5.3 below for other important content about what happens on the effective date of termination.
5.2 When we can terminate your participation in MYOB Kounta without prior notice
- Circumstances - These
are the situations in which we can terminate your participation
in MYOB Kounta without prior notice. We will notify you of your
suspension or termination as soon as possible. The situations
- A breach occurs:
- you fail to remedy a material breach of these terms and conditions within 5 Business Days after we notify you of the breach.
- Something threatens MYOB Kounta:
- in our opinion, a change to any Third Party arrangement necessary for MYOB Kounta renders the ongoing operation of MYOB Kounta substantially unworkable or non-functional.
- in our opinion, the actions of a regulator or a change in law or regulation makes the ongoing operation of MYOB Kounta substantially unworkable or non-functional; or
- we believe this is necessary either to protect the security, integrity or reputation of MYOB Kounta or any MYOB Kounta function, service or facility, or to otherwise protect our interests.
- We have concerns about your
- we receive notification of a dispute from one or more of the directors or principals of your Business;
- you go into liquidation, administration, insolvency, bankruptcy or such other similar arrangement with creditors, or in our opinion, it is reasonably likely you will do so; or
- there is a change in who owns or controls your Business.
- A breach occurs:
- Notification -
- We will make reasonable attempts to notify you in writing (which includes by email) of the termination.
- We can reinstate a termination in our absolute discretion by written notice to you, and this takes effect on receipt or any later time specified in the notice, subject to you meeting any conditions set out in the notice.
- If you become aware that a circumstance which would permit us to terminate your participation or use under section 5.2.a.3. has arisen or may arise, you must advise us in writing as soon as possible.
5.3 What happens on the effective date of termination?
- Data extraction –
- If you
end your participation in MYOB Kounta under section 5.1:
- Following the effective date of termination, you and other Users (including your Professional Partner) will have no further access to MYOB Kounta or your data. We may take steps to delete your data from our servers at any time after 60 days following the effective date of termination, whether or not you have extracted your data.
- We strongly recommend that you extract your data for tax compliance and archive purposes as soon as possible once you have given notice to us of your termination of MYOB.Kounta. Failure to extract and retain your data before termination may result in you being unable to comply with your record retention obligations to the ATO or Inland Revenue (as applicable).
we end your participation in MYOB Kounta under section
We’ll make reasonable attempts to contact you under section 5.2b) and arrange for you to be provided with your data if you request it.
- If you end your participation in MYOB Kounta under section 5.1:
- Continuation of limitations on liability - any limitations on liability which you have given under these Terms continue after termination in relation to your use of MYOB Kounta.
Liability, warranties, representations and indemnities
Subject to section 6.b (and section 1 if you accept these Terms in Australia) and to the extent permitted by law:
- No warranty that MYOB Kounta is
suitable for your needs -
- MYOB Kounta is a generic service and its capabilities are likely to change over time. This means that MYOB Kounta may not be, or may not remain, suitable for your needs.
- You must assess the ongoing suitability of MYOB Kounta for you and your Business. We are not aware of your individual business needs and cannot provide any specific recommendations regarding your use of MYOB Kounta
- Liability for
other conditions or warranties - Apart from any condition or
warranty that is expressly required by law, we provide no
warranty and make no claim in relation to our performance, the
performance of MYOB Kounta, or any service associated with MYOB
Kounta. In the event of any breach of a statutory condition or
warranty, if the legislation permits, our liability is limited
- The resupply of MYOB Kounta or the service (as applicable); or
- the cost of resupply of MYOB Kounta or the service (as applicable), and in any event will be limited to the fullest extent permitted by law.
- When we and Third Parties will not be liable to you - We
and Third Parties (including Kounta) are not responsible or
liable to you or the Business for:
- any Loss or Claim relating to the provision of the system data made available through MYOB Kounta, including delays, disruptions, inaccuracies or the loss of data;
- any Loss or Claim relating to your use of, or reliance upon, the system data provided to you through MYOB Kounta;
- the actions or inaction of Third Parties or other persons (including those which may be negligent or unauthorised) relating to MYOB Kounta;
- any Loss or Claim arising from a failure by us to comply with the Terms for any cause which could not reasonably be controlled or prevented by us; or
- any Loss or Claim arising from a failure by you or the Business to maintain archive records of your data.
- Indemnity to us and Third Parties -
- You indemnify us, our staff, and Third Parties (including Kounta) (Indemnified Parties) against any Loss or Claim suffered or incurred by the Indemnified Parties or any of them arising from your actions including negligence, misrepresentation, fraud, breach of law or breach of these Terms. You indemnify the Indemnified Parties for any Loss or Claim suffered or incurred from the unauthorised use of your Username or a Password.
- If the Indemnified Party caused or contributed to a Loss or Claim, then your liability under section 6.c.1 above is limited to the amount of the Loss or Claim which is directly attributable to your conduct.
- No warranty that MYOB Kounta is suitable for your needs -
Changes to Terms
- What can we do? We may change any of these Terms (including the Fees, which are specifically dealt with in section 2.5.b. above).
- Prior notice- We’ll give you at least 10 days’ prior notice (longer if required by legislation or any other code of conduct we subscribe to) of any change that is likely to materially affect or disrupt the manner in which you use MYOB Kounta.
- Urgent changes- However if we need to restore or maintain the security of MYOB Kounta immediately, we may change your use and access to MYOB Kounta without advance notice.
- You will agree that all communications between you and us in relation to MYOB Kounta will be by email or by us posting a notification on the MYOB website (myob.com.au or myob.co.nz), unless another method is agreed to by the addressee.
- Any notice or other communication to or by a party by email is regarded as being given by the sender and received by the addressee when a delivery confirmation report is received by the sender which records the time that the email was delivered to the addressee’s email address (unless the sender receives a delivery failure notification indicating that the email has not been delivered to the addressee).
- If the delivery or receipt is on a day which is not a Business Day or is after 5.00pm (addressee’s time) it is regarded as received at 9.00am on the following Business Day.
- We may provide a notice or other communication to you by a posting to the MYOB website (myob.com.au or myob.co.nz). That notice or other communication is regarded as being given by us and received by you when the posting is made to the MYOB website. We recommend that you bookmark and regularly check the MYOB website for notices or other communications.
You should note a few things about these Terms:
- This is our complete agreement – These Terms and the documents incorporated by reference, including your application, contain the whole of the agreement between us and you in relation to MYOB Kounta. Any representations or warranties made by our staff before you are accepted for participation in MYOB Kounta are not effective unless expressly set out in these Terms. Any waiver of our rights or powers under these Terms may only be given in writing signed by our authorised officer.
- What happens if some of these Terms can’t operate? If any part or provision of these Terms are void, unenforceable or illegal in a jurisdiction, that part or provision does not apply in that jurisdiction. However, the remainder of the Terms continue in operation in that jurisdiction unless this would alter the basic agreement between you and us, in which case we can terminate your use of MYOB Kounta at our election.
- No waiver by us – If we do not insist upon strict performance of any part or provision of these Terms, that waiver will not be deemed to be a waiver of a subsequent breach or default of these Terms.
- Assignment – You cannot assign or otherwise transfer the benefit of the agreement between us and you without our prior written consent. We can assign or otherwise transfer the benefit of the agreement between us and you.
- Which laws apply to the Terms? If you accept these Terms in Australia, these Terms are governed by the laws of Victoria and the courts of Victoria have jurisdiction over the parties to these Terms (being you and us). If you accept these Terms in New Zealand, these terms are governed by the laws of New Zealand and the courts of New Zealand have jurisdiction over the parties to these Terms (being you and us).
- We collect, disclose and use your Personal Information to provide the products and services you have asked for and associated support, respond to your enquiries or feedback and to promote the products and services offered by us and Third Parties. We may collect Personal Information from you, from public sources such as social media websites, and from Third Parties that provide us with marketing leads.
- To do these things, we may provide your Personal Information to our related companies, Third Parties and to people to whom we outsource functions. Some of the entities may be located in Australia, New Zealand, Singapore, India, Malaysia, the Philippines, the United States or other countries. If you do not provide your Personal Information, it may affect our ability to do business with you.
- You consent to us collecting, using and disclosing your Personal Information for the purposes set out in section 10.a above.
- If you accept
these terms in Australia - you can ask us not to use your
information to promote products and services by following the
process outlined in the MYOB
- update your preferences about the marketing and promotional material we send to you;
- request access to and seek correction of the Personal Information we hold about you;
- make a privacy complaint; and
- how we will deal with your complaint.
You can contact us about your privacy by email at email@example.com, or by post at "Privacy Officer", MYOB Australia Pty Ltd, PO Box 371, Blackburn Victoria 3130.
- If you
accept these Terms in New Zealand - please read the MYOB
handle your Personal Information. You can also ask us not to use
your information to promote products and services by contacting
the Privacy Officer using the details outlined below.
You can contact us about your privacy by email at firstname.lastname@example.org, or by post at “Privacy Officer”, MYOB NZ Limited, C/- Quigg Partners, Level 7, 36 Brandon Street, Wellington, 6011.
- You must ensure that all Users read this ‘Your privacy’ section and the policies described above before using MYOB Kounta or providing their Personal Information to us.
- If you provide any Personal Information about third party individuals to us, you must take reasonable steps to ensure that those individuals are aware of the matters in this ‘Your Privacy’ section and that we may collect, use and disclose their information to provide you with MYOB Kounta.
MYOB Kounta and the MYOB Kounta logo are trade marks of MYOB Technology Pty Ltd and Kounta Pty Ltd