Terms & Conditions

Reckon APS+ Online SaaS Agreement

RECKON APS TERMS AND CONDITIONS

 

1         Acceptance

1.1     Reckon (we, us or our), owns the cloud-based software, including all instructions in hard copy or electronic form and any update, modification or release of any part of that software (Software) which is accessible through the Site, and may be available through other addresses and channels.

1.2     These terms and conditions (Terms):

(a)    set out the terms and conditions upon which we agree to grant you a right to use the Services (including the SaaS Services); and

(b)    are binding on you from the date on which you accept these Terms (Effective Date) until the date on which your Account and these Terms are intended to expire as set out in your Subscription (Term).

1.3     You accept these Terms by the earlier of:

(a)    confirming by email that you accept these Terms;

(b)    confirming that you accept these Terms via the platforms or applications through which we provide these Terms to you, including our Site;

(c)     instructing us (whether orally or in writing) to proceed with the provision of the Services; and

(d)    making part or full payment of the Fees.

 

2         Services

2.1     In consideration of your payment of the Fees (as set out in the Subscription), we will provide the Services in accordance with these Terms, whether ourselves or through our Personnel.

2.2     Free or Trial Account: We may offer you a free or trial Account with limited features designed to allow you to evaluate the Services and make sure it is right for you before signing up for a paid Subscription. Any trial period can change at any time without notice. We have the right to terminate any trial Account if you are found to be misusing the Services. At the end of any free or trial Account you must sign up to a Subscription in order to continue using the Services.

2.3     You agree that we may amend the Services (including any features) or the Fees at any time, by providing written notice to you. If you do not agree to any amendment made to the Services or the Fees, you may terminate these Terms in accordance with clause 20.1.

2.4     We agree that we will use reasonable effort to ensure all of our obligations under these Terms will be carried out:

(a)    by suitably competent and trained Personnel;

(b)    in an efficient and professional manner;

(c)     in accordance with any Service Level as set out in the Subscription.

2.5     You acknowledge and agree that:

(a)    the speed of internet access will vary and may be affected by factors beyond our control; and

(b)    the Services do not constitute advice and you should seek legal, accounting or other relevant independent professional advice before taking any action in reliance on the Services.

2.6     You are solely responsible for:

(a)    determining whether the Services are suitable for your needs;

(b)    complying with all applicable accounting, tax and other laws. You must check that storage of and access to Customer Data will comply with all laws, including any laws requiring you to retain records.

 

3         Accounts

3.1     We  will create an Account for you, in order for you and your Authorised Users’ to access and use the Services, including the SaaS Services.

3.2     Depending on the Services you have selected, you may be able to make changes to your Account (including to the number of Authorised Users) through the Site.

3.3     You must ensure that any information you provide to us, or we request from you, for your Account, is complete and accurate and you are authorised to provide this information to us.

3.4     You are the Account owner and regardless of any change in any contact details, you will remain responsible for your Account, as set out in these Terms.  If you wish to change the Account owner, you must provide us with a written request to transfer the ownership of the Account to the incoming party, which must also include the incoming party’s written consent to take over full responsibility for the Account, in a form acceptable to us.

3.5     It is your responsibility to keep your Account details confidential. You are responsible for all activity on your Account, including activity by Authorised Users  and for ensuring that any activities on your Account comply with these Terms.

3.6     We are not responsible for the management or administration of your Account or your Authorised Users.

 

4         Licence and restrictions on use

4.1     Subject to the payment of any applicable Fees and your and your Authorised Users compliance with these Terms, we grant you a non-exclusive, non-transferable, non-sublicensable (except as otherwise permitted under these Terms), personal and revocable licence to access and use the Services for the Term in accordance with any Authorised User limits, for your use and enjoyment of the Services, as contemplated by these Terms (Licence).

4.2     You must not and must ensure your Authorised Users do not access or use the Services except as permitted by the Licence and you must not (and must not permit any other person to) use the Services in any way which is in breach of any applicable Laws or which infringes any person’s rights, including Intellectual Property Rights, including to;

(a)    use the Services to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;

(b)    use the Services in any way that damages, interferes with or interrupts the supply of the Services;

(c)     introduce malicious programs into our hardware and software or Systems, including viruses, ransomware, malware, trojan horses and e-mail bombs;

(d)    reveal or allow others access to your Account’s password or authentication details or allow others to use your Account or authentication details (other than Authorised Users);

(e)    carry out security breaches or disruptions of a network, including accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);

(f)     use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the Services;

(g)    if applicable, send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages, or use the Services in breach of any person’s privacy (such as by way of identity theft or “phishing”); or

(h)    circumvent user authentication or security of any of our Services, networks, accounts or hosts or those of our other users.

4.3     The provision of the Licence is conditional upon you complying with the following:

(a)    at your cost, provide appropriate access devices, software, operating conditions, cabling, telephone lines, modems, firewalls, security and business grade internet connections at appropriate and efficient speeds and any other relevant specifications of which you may be advised and relevant business processes relating to your use and access to the Services required for you to access and otherwise receive the benefit of the Services;

(b)    all of our operating and security requirements and procedures relating to:

(1)  access and use of the Software and Services; and

(2)  in respect of passwords and other security information, as notified to you by us from time to time;

 

5         Authorised Users

5.1     You agree that the Licence permits you to access and use the Services in accordance with the number of Authorised Users, as set out in your Subscription (if applicable). Your Subscription may also set out other variables and limits in relation to the use of the Services (Variables).

5.2     You may, at any time, request for a variation or an increase in the number of Authorised Users or other Variables (Variation Request) by providing written notice (including by email) to us, or through your Account (where applicable).

5.3     We will not be obliged to comply with a Variation Request unless we accept the Variation Request, and you accept any variation to the Fee to effect the Variation Request (Fee Variation).

5.4     You may accept the Fee Variation in writing (including by email) and after your acceptance we will apply the Fee Variation to the current and any subsequent billing periods in the Term, which will be considered the new Fee for the purpose of these Terms.

 

6         Third Party Inputs

6.1     You agree that the provision of the Services may be contingent on, or impacted by, Third Party Inputs.

6.2     You agree that the Services may include Third Party Inputs that may interface, or interoperate with, the Services, including third party software or services.

6.3     To the extent that you choose to use such Third Party Inputs, you are responsible for:

(a)    the purchase of;

(b)    the requirements; and

(c)     the licensing obligations,

related to the applicable Third Party Input, including third party software and services.

6.4     You agree that the benefit of the Third Party Input’s interface, or interoperation with, the Services, is subject to your compliance with clause 6.3.

 

7         Additional Services

7.1     You may request Additional Services, including consulting services and additional modules on the Software as set out on the Site.

7.2     We may, at our discretion, provide you with written notice in the form of a scope of services, a proposal or a statement of work (as applicable) covering the requested and any further fee required for us to undertake the Additional Services, or will otherwise provide you with the relevant details as set out on the Site.

7.3     If you agree to the Additional Services, this will be reflected in the Fees payable to us in accordance with the payment section below.

7.4     You acknowledge and agree that Additional Services may be subject to separate terms and conditions, which must be accepted by you at the time of agreeing to receive the Additional Services, if you wish to receive the Additional Services.

 

8         Payment

8.1     You agree to pay us the Fees as set out in your Subscription, and any other amounts payable to us under these Terms, without set-off or delay, via credit card or any other payment method set out on the Site.

8.2     The Fees will be billed in arrears at the end of the relevant Subscription billing cycle (unless otherwise agreed between the Parties).

8.3     You are responsible for reviewing the pricing schedule, features and limits associated with your Subscription, which are available on the Site.

8.4     You must ensure your chosen payment method has sufficient funds to pay the Fees.

8.5     If any payment has not been made in accordance with these Terms, we may (at our absolute discretion):

(a)    immediately cease or suspend the provision of the Services, and recover as a debt due and immediately payable from you, our additional costs of doing so;

(b)    charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with these Terms; and

(c)    engage debt collection services and/or commence legal proceedings in relation to any such amounts.

8.6     If you rectify such non-payment within a reasonable time after the Services have been suspended, then we may, at our discretion, recommence the provision of the Services as soon as reasonably practicable.

8.7     The Fees are non-refundable. To the maximum extent permitted by law, there will be no refunds or credits for any unused Licence (or part thereof).

8.8     You agree that your Subscription will automatically renew at the end of the then-current Term, for a period equivalent to the prior Term of your Subscription, unless you give us notice prior to the end of the current Term.

 

9         Privacy and Communication

9.1     You are responsible for the collection, use, storage and otherwise dealing with Personal Information related to your business and all matters relating to the Customer Data.

9.2     You must, and must ensure that your Personnel and your Authorised Users, comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any privacy or anti-spam Laws applicable to you in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with these Terms.

9.3     We agree to handle any Personal Information you provide to us in accordance with these Terms and in accordance with any applicable Laws.

9.4     We may contact you via the platform for the Services, using in-Account notifications or via-off platform communication channels, such as text messages or email with functional notifications.

9.5     We may also send marketing and promotional material which may be of interest to you, using your contact details. You may opt out of receiving direct marketing messages at any time. Where you opt-out we will continue to send you functional communications relevant to your use of the Services.

 

10      Data Breach

10.1  To the extent the notifiable data breaches scheme under Part IIIC of the Privacy Act 1988 (Cth) (Notifiable Data Breaches Scheme) applies to us, if we become aware of a Customer Data incident (Customer Data Incident) we will:

(a)    retain system logs and other information that may be relevant to the Customer Data Incident, or to assessing the cause or impact of the Customer Data Incident; and

(b)    within 30 days, prepare an assessment to determine whether there are reasonable grounds to believe that a Customer Data Incident has occurred.

10.2  Where you suspect that a Customer Data Incident has occurred, we will, within 30 days of receiving notice from you that you suspect that a Customer Data Incident has occurred, prepare an assessment to determine whether there are reasonable grounds to believe that a Customer Data Incident has occurred, and the costs of such assessment must be paid by you.

10.3  If, as a result of our assessments as set out in clauses 10.1(b) or 10.2, we believe a Customer Data Incident has occurred that we consider to be notifiable under the Notifiable Data Breaches Scheme, we will notify you of the Customer Data Incident by telephone or email and provide notice to the Office of the Australian Information Commissioner of such Customer Data Incident in accordance with the Notifiable Data Breaches Scheme and we will be the sole Party to notify the individuals who are likely to be at risk of serious harm arising from the Customer Data Incident. Alternatively, where we do not have the contact details of affected individuals, we will provide you with a statement to provide to affected individuals.

 

11      Confidential Information

11.1  Subject to clause 11.2, the Receiving Party must (and must ensure that their Personnel do):

(a)    keep confidential; and

(b)    not use or permit any unauthorised use of,

all Confidential Information.

11.2  Clause 11.1 does not apply where:

(a)    the disclosure is required by Law; or

(b)    the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with these Terms and provided that you ensure the adviser complies with the terms of clause 11.1.

11.3  This clause 11 will survive the termination or expiry of these Terms.

 

12      Intellectual Property Rights

12.1  You agree that all Intellectual Property Rights:

(a)    in the Services, including the Software and SaaS Services;

(b)    in the Intellectual Property developed, adapted, modified or created by us, or our Personnel (including in connection with these Terms, the Services, the Software and the SaaS Services and any machine learning algorithms output from the Services); and

(c)     Feedback,

will at all times vest, or remain vested, in us (or, if applicable, our third party service providers).  To the extent that ownership of the Intellectual Property Rights do not automatically vest in us, you agree to do all acts necessary or desirable to assure our title to such rights.

12.2  You agree that we may use Feedback in any manner which we see fit (including to develop new features) and no benefit will be due to you as a result of any use by us of any Feedback.

12.3  You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use Your Materials, solely for the purposes for which they were developed and for the performance of our obligations under these Terms, as contemplated by these Terms.

12.4  You must not whether directly or indirectly, without our prior written consent:

(a)    copy or use, in whole or in part, any of our Intellectual Property;

(b)    reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our Intellectual Property to any third party;

(c)     reverse assemble, reverse engineer, reverse compile or enhance the Services;

(d)     attempt to discover the source code or object code or underlying structures, ideas, know how or algorithms in relation to the Services, the data or documentation;

(e)    breach any Intellectual Property Rights connected with the Services, including altering or modifying any of our Intellectual Property;

(f)     cause any of our Intellectual Property to be framed or embedded in another website; or create derivative works from any of our Intellectual Property;

(g)    resell, assign, lease, hire, sub-license, transfer, distribute or make available the Services to third parties;

(h)    “frame”, “mirror” or serve any of the Services on any web server or other computer server over the Internet or any other network; and

(i)   alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers or any other means of identification used on or in relation to the Services.

12.5  This clause 12 will survive the termination or expiry of these Terms.

 

13      Analytics

13.1  Despite anything to the contrary, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Services, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it:

(a)    does not contain identifying information; and

(b)    is not compiled using a sample size small enough to make the underlying Customer Data identifiable.

13.2  We, and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all Intellectual Property Rights in the foregoing.

 

14      Security and Data

14.1  You grant us a limited licence to copy, transmit, store and back-up or otherwise access the Customer Data during the Term and for a reasonable period after the Term to:

(a)    supply the Services (including for back-ups) to you (including to enable you, your Authorised Users and your Personnel to benefit from the Services);

(b)    diagnose problems with the Services;

(c)     enhance and otherwise modify the Services, and

(d)    as reasonably required to perform our obligations under these Terms.

14.2  You must, at all times, ensure the integrity of the Customer Data and that your provision of, and use of the Customer Data is compliant with all Laws.

14.3  You represent and warrant that:

(a)    you have obtained all necessary rights, releases and permissions to provide all your Customer Data to us and to grant the rights granted to us in these Terms;

(b)    the Customer Data is accurate and complete;

(c)     the Customer Data (and its transfer to and use by us as authorised by you) under these Terms does not violate any Laws (including those relating to export control and electronic communications) or rights of any third party, including any Intellectual Property Rights, rights of privacy, or rights of publicity; and

(d)    any use, collection and disclosure authorised in these Terms is not inconsistent with the terms of any applicable privacy policies.

14.4  We assume no responsibility or Liability for the Customer Data. You are solely responsible for the Customer Data and the consequences of using, disclosing, storing or transmitting it.  It is your responsibility to back up the Customer Data.

14.5  You acknowledge and agree that the operation of the Services is reliant on the accuracy of the Customer Data, and the provision of inaccurate or incomplete Customer Data by you may affect the use, output and operation of the Services.

14.6  We agree to use reasonable precautions to prevent unauthorised disclosure of the Customer Data.

14.7  Despite anything to the contrary, to the maximum extent permitted by law, the Services are provided “as-is” without warranty of any kind or representations regarding the use, performance or results of the use, of the Services.

 

15      Warranties

15.1  You warrant and agree that:

(a)    there are no legal restrictions preventing you from entering into these Terms;

(b)    you are not and have not been the subject of an Insolvency Event;

(c)     you will cooperate with us and provide us with all assistance, resources, data, people, information, facilities, access and documentation that is reasonably necessary to enable us to perform the Services and as otherwise requested by us, from time to time, and in a timely manner;

(d)    all information and documentation that you provide to us in connection with these Terms is true, correct and complete and that we will rely on such information and documentation in order to provide the Services;

(e)    you have not relied on any representations or warranties made by us in relation to the Services (including as to whether the Services are or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms

(f)     you will inform us if you have reasonable concerns relating to our provision of the Services under these Terms, with the aim that the Parties will use all reasonable efforts to resolve your concerns;

(g)    you are responsible for obtaining, and providing to us in a timely manner, any consents, licences, authorities and permissions from third parties necessary for the Services to be provided in accordance with these Terms, at your cost;

(h)    the Services are provided to you solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, our Services to third parties without prior written consent;

(i)     you will be responsible for the use of any part of the Services, and you must ensure that no person uses any part of the Services to break any Law or infringe any person’s rights (including Intellectual Property Rights) or in any way that damages, interferes with or interrupts the supply of the Services;

(j)     you have reviewed these Terms, including our Privacy Policy, and you understand them and will use the Services in accordance with them;

(k)    you have the authority to act on behalf of any person or entity for whom you are using the Services and you are deemed to have agreed to these Terms on behalf of any entity for whom you use the Services; and

(l)     you have all the hardware, software and services which are necessary to access and use the Services, including any required operating systems as set out on the Site.

 

16      Australian Consumer Law

16.1  Certain legislation, including the ACL, and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of our services which cannot be excluded, restricted or modified (Statutory Rights).

16.2  If the ACL applies to you as a consumer, nothing in these Terms excludes your Statutory Rights as a consumer under the ACL.  You agree that our Liability for the Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms.

16.3  Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including the Services) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or any other basis.

16.4  This clause 16 will survive termination or expiry of these Terms.

 

17      Indemnities

17.1  Except to the extent that the Liability arose from our negligent acts or omissions or any of our Personnel, you indemnify us and our Personnel against all Liability that we or any of our Personnel may sustain or incur as a result, whether directly or indirectly, of:

(a)    your or your Personnel’s breach of clauses 4, 6, 9, 11, 12, 14 and 15;

(b)    your or your Personnel’s negligent, unlawful or wilful acts or omissions in connection with these Terms.

 

18      Limitations on Liability

18.1  Despite anything to the contrary (except for clause 17) and to the maximum extent permitted by law:

(a)    neither Party will be liable for any Consequential Loss;

(b)    a Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel); and

(c)     our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us resupplying the Services to you or, in our sole discretion, to us repaying you the amount of the Fees paid by you to us in respect of the supply of the relevant Services to which the Liability relates.

18.2  This clause 18 will survive termination or expiry of these Terms.

 

19      Exclusions to Liability

19.1  Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability, caused or contributed to by, arising from or connected with:

(a)    loss of, or damage to, any property or any injury to or loss to any person;

(b)    the Computing Environment;

(c)     your or your Personnel’s acts or omissions;

(d)    any use or application of the Services by a person or entity other than you, or other than as reasonably contemplated by these Terms;

(e)    any work, services, goods, materials or items which do not form part of the Services (as expressed in these Terms), or which have not been provided by us;

(f)     any Third Party Inputs;

(g)    the Services being unavailable, or any delay in us providing the Services to you, for whatever reason; and/or

(h)    any event outside of our reasonable control.

19.2  You acknowledge and agree that:

(a)    you are responsible for all users using the Services, including your Personnel and your Authorised Users;

(b)    you use the Services and any associated programs and files at your own risk;

(c)       the technical processing and transmission of the Services, including Customer Data, may be transferred unencrypted and involves:

(1)    transmissions over various networks; and

(2)    changes to conform and adapt to technical requirements of connecting networks or devices;

(d)    we may use third party service providers to integrate with the Services or to host the SaaS Services. If the providers of third party applications or services cease to make their services or programs available on reasonable terms, we may cease providing any affected features without Liability or entitling you to any refund, credit, or other compensation;

(e)    the Services may use third party products, facilities or services. We do not make any warranty or representation in respect of the third party products, facilities or services;

(f)     we do not guarantee that any file or program available for download and/or execution from or via the Services is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used;

(g)    we are not responsible for the integrity or existence of any data on the Computing Environment, network or any device controlled by you, and your Authorised Users or your Personnel; and

(h)    we may pursue any available equitable or other remedy against you if you breach any provision of these Terms.

19.3  This clause 19 will survive termination or expiry of these Terms.

 

20      Termination

20.1  Either Party may terminate these Terms at any time by giving 30 days’ notice in writing to the other Party.

20.2  These Terms will terminate immediately upon written notice by:

(a)      us, if:

(1)    you (or any of your Personnel) breach any provision of these Terms and that breach has not been remedied within 10 Business Days of being notified by us;

(2)    you fail to provide us with clear or timely instructions or information to enable us to provide the Services;

(3)    for any other reason outside our control which has the effect of compromising our ability to provide the Services; or

(4)    you are unable to pay your debts as they fall due; and

(b)      you, if we:

(1)    are in breach of a material term of these Terms, and that breach has not been remedied within 10 Business Days of being notified by you; or

(2)    are unable to pay our debts as they fall due.

20.3  Upon expiry or termination of these Terms:

(a)    we will immediately cease providing the Services;

(b)    upon request, we will provide you to a read-only copy of your Customer Data on one occasion in the 12 months following the expiration or termination of these Terms;

(c)     we will be entitled to permanently delete all Customer Data within 12 months from expiry or termination of these Terms;

(d)    we will provide any further disengagement services at our then current rates, and such further disengagement support services must be agreed in writing by the Parties;

(e)    you agree that any payments made are not refundable;

(f)     you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under these Terms;

(g)    pursuant to clauses 20.2(a)(1), (2) or (4), you also agree to pay us additional costs arising from, or in connection with, such termination; and

(h)    immediately return (where possible) or delete or destroy (where not possible to return), any of our property (including any of our Confidential Information and Intellectual Property).

20.4  Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.

20.5  This clause 20 will survive the termination or expiry of these Terms.

 

21      GST

21.1  If GST is payable on any supply made under these Terms, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under these Terms and must be paid in addition to the consideration expressed elsewhere in these Terms, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.

21.2  If an adjustment event arises in respect of any supply made under these Terms, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued (if required), and any payments to give effect to the adjustment must be made.

21.3  If the recipient is required under these Terms to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.

21.4  The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

 

22      Territorial clauses – United Kingdom

If you are purchasing the Services in the United Kingdom and or are subject to the jurisdiction of England and/or English law, the following terms and conditions supplement these Terms of Use and also apply to you:

22.1  By accepting these Terms of Use you warrant that you are not a ‘Consumer’ (as defined by the Consumer Rights Act 2015) and that you will use the Services only for commercial and/or business purposes. You acknowledge that the Services are not provided for private or domestic use and warrant that you will make no such use of them.

22.2  You acknowledge and accept that you shall be responsible for the payment of all VAT (and/or similar sales or transaction taxes) that may be chargeable on the Fees.

22.3  Customer Data may contain data which is classified as be ‘personal data’ in the United Kingdom (as defined by Directive 95/466/EC or by Regulation 2016/679, the ‘GDPR’). Where that is the case both parties agree and acknowledge that you are and shall remain the ‘data controller’ and that Reckon shall be the ‘data processor’.

22.4  You warrant that you have all necessary consents and permissions to send Customer Data to Reckon for the purposes contemplated by these Terms.

22.5  Reckon will only process personal data that you provide to it in order to deliver the Services as contemplated by these Terms, or as you may specifically instruct it from time to time.

22.6  Customer Data may be stored in facilities which are located outside of the European Economic Area, by using the Service you are agreeing that Customer Data may be sent to such facilities and that you have obtained from all data subjects whose personal data you may send to Reckon all necessary consents and permissions to permit it to store such data in this way.

22.7  Reckon will not transfer Customer Data to third parties without first receiving your specific instructions to do so. If Reckon is for any reason legally obliged to transfer any personal data inherent in Customer Data to a third party it shall promptly notify you to the extent that it is legally permitted to do so.

22.8  In the event that any data subject chooses to exercise any statutory right in relation to any personal data contained within Customer Data, Reckon shall grant all reasonably requested assistance to you in order to assist you in complying with your statutory obligations.

22.9  You undertake to indemnify and hold harmless Reckon against all costs, claims, damages or expenses incurred by it which may be caused by any failure by you to comply with any obligation set out in this clause. You further agree that Reckon is reliant upon you for direction as to the extent to which it is entitled to use and process Customer Data; accordingly Reckon shall not be liable for any claim brought by any data subject which arises from any action or omission, to the extent that such action or omission resulted directly from your instructions.

 

23      Territorial Clauses – New Zealand

23.1  If you are purchasing the Services in New Zealand and or are subject to the jurisdiction of New Zealand and/or New Zealand law, the following terms and conditions supplement these Terms and also apply to you:

23.2  These Terms are subject to the consumer guarantees regime as set out in the Consumer Guarantees Act 1993 (NZ), as amended from time to time. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. These guarantees cannot be modified nor excluded by any contract, except in those circumstances contemplated by section 43(2) of the New Zealand Consumer Guarantees Act.

24      General

24.1    Access: The Services may be accessed in Australia and overseas. We make no representation that the Services comply with the Laws (including Intellectual Property Laws) of any country outside of Australia. If you access the Services from outside Australia, you do so at your own risk and you are responsible for complying with the Laws in the place you access the Services.

24.2   Amendment: We may update these Terms at any time with 30 days’ notice to you. Where we update these Terms we will notify you via an in-Account notification or via email. If you do not agree with any amendment you may terminate these Terms in accordance with clause 20.1.

24.3    Dispute: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

24.4    Email: You agree that we are able to send electronic mail to you and receive electronic mail from you. You release us from any Liability you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.

24.5   Entire agreement: These Terms contain the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.

24.6    Exclusivity: The Services will be provided to you on a non-exclusive basis.

24.7   Force Majeure: If a Force Majeure Event occurs, the affected party must notify the other party and the obligations of the party will be suspended to the extent that they are affected by the relevant Force Majeure Event until that Force Majeure Event has ceased.

24.8   Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to these Terms and their obligations under it.

24.9    Governing law: These Terms are governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts. These Terms of Use shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

24.10      Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 3 Business Days in the case of post, or at the time of transmission in the case of transmission by email.

24.11      Publicity: You agree that we may advertise or publicise the broad nature of our provision of the Services to you, including on our website or in our promotional material.

24.12      Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

24.13      Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions.

24.14      Subcontracting: We may subcontract the performance of any aprt of the Services to any third party.

 

25      Definitions

In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in these Terms, and:

Account means an account accessible to you and your Authorised Users to use the Services, including, the SaaS Services;

ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time;

Additional Services means any Services not set out in the Services description in the Subscription which we agree to provide to you;

Authorised User, if applicable, means a user permitted to access and use the Services under your Account, as further particularised in your Subscription;

Business Day means a day on which banks are open for general bank business in New South Wales, excluding Saturdays, Sundays and public holidays;

Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems;

Confidential Information includes information which:

(a)    is disclosed to the Receiving Party in connection with these Terms at any time;

(b)    is prepared or produced under or in connection with these Terms at any time;

(c)    relates to the Disclosing Party’s business, assets or affairs; or

(d)    relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms,

whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information;

Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise;

Customer Data means the information, materials, logos, documents, qualifications and other Intellectual Property or data inputted by you, your Personnel or your Authorised Users into the Services or stored by the Services or generated by the Services as a result of your use of the Services;

Disclosing Party means the party disclosing Confidential Information to the Receiving Party;

Fee or Fees means those fees due and payable by you for the Services, as set out on the Site, or as otherwise agreed between the Parties;

Feedback means any idea, suggestion, recommendation or request by you or any of your Personnel, your Authorised Users or your customers, whether made verbally, in writing, directly or indirectly, in connection with the Services;

Force Majeure Event means any act, event or cause including earthquakes, cyclones, floods, fires, lightening, storms or other acts of God, strikes or industrial disputes, riots, terrorist acts, civil disturbances, breakages of machinery or industrial conditions or arising out of any other unexpected and exceptional cause, delays in transportation and dispositions or orders of governmental authority, which:

(a)    directly or indirectly results in a Party being prevented from or delayed in performing any of its obligations under this Agreement; and

(b)    is beyond the reasonable control of that Party.

Insolvency Event means any of the following events or any analogous event:

(a)    a Party disposes of the whole or any part of the Party’s assets, operations or business other than in the ordinary course of business;

(b)    a Party ceases, or threatens to cease, carrying on business;

(c)     a Party is unable to pay the Party’s debts as the debts fall due;

(d)    any step is taken by a mortgagee to take possession or dispose of the whole or any part of the Party’s assets, operations or business;

(e)    any step is taken for a party to enter into any arrangement or compromise with, or assignment for the benefit of, a Party’s creditors or any class of a Party’s creditors; or

(f)     any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of a Party’s assets, operations or business;

Intellectual Property means any copyright, registered and unregistered trade marks, designs (whether or not registered or registrable), domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing;

Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property;

Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with these Terms or the provision of the Services, and includes the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth);

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise;

Licence is defined in 4.1;

Personal Information is defined in the Privacy Act 1988 (Cth) and also includes any similar term as defined in any other privacy law applicable to you;

Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents;

Subscription means the plan you choose, including the Fees, billing cycle, features and number of Authorised Users, as set out on the Site and post purchase, as set out within your Account;

Privacy Policy means any privacy policy set out on our Site;

Receiving Party means the party receiving Confidential Information from the Disclosing Party;

Reckon means:

(a)    in Australia, Reckon Limited ACN 003 348 730;

(b)    in New Zealand, Reckon New Zealand Pty Limited NZBN 94 29 033 586 205; and

(c)     in the United Kingdom, Reckon One Limited 03081021,

unless otherwise notified to you on the Site;

SaaS Services means our Software as a service as described in your Subscription and on the Site;

Services means the Software, the SaaS Services, and any other services as further particularised in the Subscription or otherwise requested throughout the Term;

Service Level means any service level relevant to your Subscription, as set out on the Site;

Site means each of our websites, including without limitation reckon.com, reckonone.com.au, reckonone.com and reckonone.co.nz, and also includes any order forms sent by us to you from time to time;

System means all hardware, software, networks and other IT systems used by a Party from time to time, including a network;

Third Party Inputs means third parties or any goods and services provided by third parties, including customers, end users, bank data feeds, suppliers, transportation or logistics providers or other subcontractors which the provision of the Services may be contingent on, or impacted by; and

Your Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of you or your Personnel before the Effective Date and/or developed by or on behalf of you or your Personnel independently of these Terms.

 

26      Interpretation

In these Terms, unless the context otherwise requires:

(a)     a reference to these Terms or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
(b)      a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
(c)      a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
(d)      no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
(e)      a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
(f)      a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
(g)     a reference to time is to local time in New South Wales; and
(h)     a reference to $ or dollars refers to the currency of Australia from time to time.

For any questions and notices, please contact us using the contact form on our website.

Last update: 20 July 2020