CLOUD ACCOUNTING SERVICE
This is a
Retail Licence Agreement, which grants a Individual/SoleTrader or Company permission to use the Software for
the Individual or Company
exclusive use. By your first logon, accessing or
otherwise using the Software, you agree to be bound by the following terms.
If you do not agree to the terms, you may not use the Software.
If do not logon, access or otherwise use the Software within the first seven days, and promptly provide proof of payment, and any Licence Fee you have paid, the Licence fee less 25% will be refunded to you, and the account terminated.
1. Words with defined meanings
1.1 Unless defined elsewhere in this Agreement, a word or expression starting with a capital letter has the meaning given to that word or expression set out in clause 15 of this Agreement.
2.1 You acknowledge that you have sought independent professional advice in relation to the Software and Documentation, and that you are not relying on the advice or judgment of VillageMall. To the extent permitted by law, the Software and the Documentation are provided on the basis that:
(a) VillageMall, its officers, employees, contractors, agents and Authorised Distributors are not responsible for the results of any actions taken by you in reliance on information in the Software or Documentation, nor for any error or omission in the Software or Documentation;
(b) VillageMall, its officers, employees, contractors, agents and Authorised Distributors are not engaged in and do not represent by providing the Software and Documentation that they are providing any legal, accounting, professional or other advice or services; and
(c) VillageMall, its officers, employees, contractors, agents and Authorised Distributors are not responsible for the results of any actions taken by you in reliance on information contained in any third party software or data, embedded in or provided in conjunction with the Software or Documentation, nor for any error or omission in such third party software or data.
officers, employees, contractors, agents, resellers, ISV's and Accountant Web
Offce licencees do not
provide advice on the suitability of the Software for your specific Business or
Requirements. If offered, You may enter into a seperate Consultancy Agreement,
you acknowledge that this Agreement excludes the provision of any consultancy or
3. Grant of rights
3.1 Subject to your payment of the Licence Fee, VillageMall grants to you a non-exclusive licence ("Licence") during the Term to use the Software and Documentation, for your own internal purposes only, on the terms and conditions set out in this Agreement.
3.2 The Licence entitles a Individual or Company, as defined in the Corporations Act, to operate the Software for the Individual or Company. Any Individual or fee free service is limited to a single nominated access account, and a single licence for the Company. You must purchase the Software for each Company use and access.
3.3 If there is a limit to the number of Users of the Software, number of Companies, number of networks, or other restriction specified on the Invoice and in the Software, or otherwise imposed upon the Licence under this Agreement, the Licence to use the Software will be restricted accordingly. You may only increase the limits specified in the Invoice or Licence by paying such fees as are applicable to the increased limits. No reduction of Licence Fees will be provided in the event any limits are reduced during the Term.
3.4 At VillageMall's sole discretion, and upon request, VillageMall shall provide a free access account, to the Accountant Web office Software as authorised by you.
3.5 It is a condition of any
fee free service, that an Accountant Web Office licencee is linked to your
Service, and you grant
the Accountant Practice access to the account and its data data.
3.5.1 The provision of any value added services provided by the linked Accountant Practice is optional, and soley betwen the Individual or Company and the Accounting Practice.
3.6 The Licence entitles an Individual or single Company to
(i) use the Software for the single licensed Individual or Company, during the current Term,
4. Duration of agreement
4.1 This Agreement commences on the date of its acceptance by you and will continue in effect until the expiry of the current financial year on 30 June ("Term"), unless extended in accordance with clause 4.2, or terminated in accordance with clauses 4.3, 4.4 or 12. A Free individual Service will continue until Terminated.
4.2 Subject to clauses 4.3 and 4.4, before expiry of the Term, you will be invoiced, the then current Annual Renewal Fee, to extend the Term for further one year period. Upon VillageMall receiving payment for the invoice, the Term will be extended for a further period in accordance with clause 8.
4.3 The current Annual Renewal Fee must be paid, or arrangements for payment acceptable to VillageMall made, by the due date specified by VillageMall for the Term to be extended.
4.4 Without limiting any other right to terminate this Agreement under clause 12, VillageMall may terminate this Agreement upon expiry of any financial year, by giving you written notice on or before expiry of the then current financial year. VillageMall will not unreasonably terminate this Agreement.
5. Your obligations
5.1 You are not permitted to purchase the Software for use by another Company.
5.2 Subject to
this Agreement, and to any non-excludable provisions at law (including the
Copyright Act 1968 (Cth)), you must not, and must not allow or cause any other
(i) print, copy or reproduce the Software or Documentation by any means or in any form other than to make one copy of the for back-up and security purposes;
(ii) give, lease, rent, lend, assign (other than as expressly permitted under this Agreement), licence, sub-licence, transfer, distribute, disclose, disseminate, or publish the Software in any form to any other person or attempt to do any of these acts;
(iii) modify, adapt, alter, reverse engineer or decompile the Software; or modify or change the service data other than through use of the Software;
(iv) create or recreate, or attempt to create or recreate, the source programs, object programs or any other aspect of the Software in whole or in part.
(v) access, install or use the Software other then in accordance with this Agreement;
(vi) use the Software for sublicensing, timesharing, rental, facility management, service bureau usage, or third party training purpose.
5.3 You agree to indemnify and keep indemnified VillageMall, its officers, employees, contractors, agents and Authorised Distributors against any loss or damage incurred by them as a result of use of the Software or Documentation by you, your employees, contractors or agents that is not in accordance with this Agreement.
6. Configuration and installation
6.1 The Software is only available as a hosted service from VillageMall.
7. Use of software and documentation
7.1 Subject to your payment of the Licence Fee, applicable taxes and any other fees specified in the Invoice in full, upon first use of the Software pursuant to clause 6, you may use the Software and Documentation in accordance with the terms of this Agreement.
7.2 If the Term of this Agreement is not extended in accordance with clause 4.2, the Licence will automatically terminate on the expiry of the then current Term, and you acknowledge and agree that no further notice is required to you from VillageMall to effect such termination.
7.3 Use of the software beyond the Term is not permitted and access to the software is not available.
8.1 You must pay the Licence Fee, applicable taxes and any other fees listed in the Invoice in full.
8.2 You acknowledge that a Deposit, if taken, is non-refundable in the event that you do not pay the Balance or proceed with installation of the Software in accordance with clause 6.
8.3 The Annual Renewal Fee is invoiced annually in advance for each financial year commencing 1 July in the relevant year and ending 30 June in the subsequent year. Each year, on or before 1 July, VillageMall may increase the Annual Renewal Fee. You must pay the Annual Renewal Fee on or before 1 July of each year of the Term.
8.4 Without limiting any other right or remedy of VillageMall or its Authorised Distributors, interest on overdue amounts is payable by you at the rate of 2% per month, from the date the amount became overdue until it is paid in full, inclusive of interest. Interest accrues daily.
8.5 You must
pre-purchase an applicable Annual Fee license from the following 2014 price list,
before any access to the Software is provided.
Prices are firm for the duration of the Term, the current, and any renewal prices are available online here, and are incorporated by reference into this Agreement. You acknowledge that licence packs apply to a single Term, and any unused licences within a pack are non-refundable, non transferable.
|Cognition Accounting plus payroll, 5 staff||$50||$5|
|Cognition Accounting, plus payroll 20 staff||$100||$10|
8.6 Reasonable usage
As a shared service, VillageMall sets reasonable usage limits for each fund, to ensure a constant service level across all users of our service.
8.7 Excessive usage
Excessive use is a continuing and unreasonably disproportionate use of the service when compared to other users. Excessive use is defined as in excess of ten times the average usage of all customers with the same service.
If VillageMall determines excessive use, we may refuse you access to this feature and begin applying quota or other restrictions to your account.
To ensure we do not unreasonably restrict our customers, the following steps will occur if we consider that a service is showing excessive use:
We may contact individual customers identified as exceeding ten (10) times the average use of all customers, to discuss their usage requirements. Where a peak in usage occurs but is not expected to continue, no alternative arrangements are necessary.
If the excessive usage continues, a second contact may be made to discuss an alternative plan.
If the excessive usage continues, the customer may be informed that a quota will be activated on their service and that they may be charged excessive use penalties.
9. Intellectual property rights
9.1 All Intellectual Property Rights relating to or subsisting in the Software and Documentation, including all enhancements, modifications, alterations, customisations or adaptations to the Software (whether created by VillageMall or any other person), remain the property of VillageMall. The Licence granted under clause 3 does not make you the owner of the Software or Documentation nor does it cause any transfer of Intellectual Property Rights relating to or subsisting in the Software or Documentation.
9.2 You must not alter, change, remove, obscure or otherwise effect any modification to any notice or other indication of VillageMallís ownership of the Software and its Documentation or of its Intellectual Property Rights relating to or subsisting in the Software and Documentation.
9.3 You must ensure that each copy of the Software and Documentation in your possession bears such notices relating to VillageMallís ownership of the Software and Documentation and of its Intellectual Property Rights relating to or subsisting in the Software and Documentation as VillageMall may direct. In the absence of any specific direction by VillageMall, you must ensure that all notices appearing on the Software and Documentation are reproduced and maintained in their entirety on all copies made by you. 10.1 You acknowledge that VillageMall has no obligation to develop Updates. During the Term you may receive Updates (if any) for the Software, including instructions and/or Documentation that VillageMall considers reasonably necessary to assist in a smooth transition for use of any Update. Updates may include revisions to Documentation.
VillageMall provides you with an Update:
(i) the terms of this Agreement will continue to apply in all respects to the Update which will be deemed to be the Software or Documentation for the purposes of this Agreement;
ii) if requested by VillageMall, you must return the Software and Documentation (and all copies) that was used prior to the Update to VillageMall, or otherwise deal with it in accordance with VillageMallís reasonable directions.
10.4 Technical support and Updates will only be supplied so long as the Software is used under conditions and on operating environments for which the Software is designed.
10.5 The technical support provided under this Agreement is limited to online support of the Software by VillageMall during normal business hours. If you require any additional technical support, including telephone support outside normal business hours, VillageMall may, in its absolute discretion, provide that support to you at its then current rates for such services. A valid and operational email address is required for all support correspondence.
10.6 Any supplemental software code provided to you as part of the support services shall be considered part of the Software and subject to the terms of this Agreement.
10.7 You must provide VillageMall with reasonable assistance as requested by VillageMall for the purpose of providing you with maintenance and support.
10.8 If, in the course of obtaining maintenance and support services from VillageMall, you provide any personal information about an individual, including, personal information about any officer or employee, then you warrant that in providing such personal information you have complied with your legal obligations under the Privacy Act 1988 (Cth.), including the National Privacy Principles in Schedule 3 of that Act.
10.9 You consent
to VillageMall using any technical or confidential information which you provide
(i) to enable VillageMall to perform maintenance and support services; and
(ii) for its business purposes, including for the purpose of product support and development.
VillageMall agrees not to use such technical information in a form that personally identifies you, or where such information is comprised of information identified by you as Ďconfidentialí or subject to privacy laws, prior to consent being provided by you.
10.10 VillageMall is not required to support any third party software or data, whether or not the third party software or data is provided by VillageMall in connection with your use of the Software.
10.11 If VillageMall provides you with any third party software or data, then your use of that third party software or data is subject to such terms as may be imposed by the relevant third party and must only be used for the purposes for which it is provided.
10.12 You agree that VillageMall is not liable or otherwise responsible if a third party changes the terms (including as to payment) on which it licences any software or data. Without limiting the foregoing, it is your responsibility to pay any fees associated with your use of such third party software or data.
10.13 Notwithstanding any other provision of this Agreement, you agree to indemnify and keep indemnified VillageMall, its officers, employees, contractors, agents and Authorised Distributors against any third party claim or action (including but not limited to reimbursement of legal costs), loss, damage, or expense incurred by them as a result of a failure by you, your employees, contractors or agents to comply with this clause 10.
10.14 You shall not without VillageMall's prior written approval disclose to any third party the results of any benchmark test, or service review or any component thereof. You shall not post, or communicate, any screen shot, screen scraping, or any data displayed within the Service to any third party, website, social media site, or forum. A violation of this cause, shall be the basic for "termination with cause".
11. Warranties and limitation of liability
VillageMall warrants that:
(i) it has the full right, power and authority to enter into and perform this Agreement; and
(ii) to the best of its knowledge, the use by you of the Software or Documentation in accordance with this Agreement, will not infringe the Intellectual Property Rights or moral rights of any person, and VillageMall indemnifies and agrees to keep you indemnified from and against any loss, damages and expenses, including but not limited to, reasonable legal fees which you may suffer and incur as a result of any claim, action or proceeding arising directly from any breach of the warranty contained within this clause, provided that VillageMall is not liable for any indirect, consequential or economic loss or damage suffered by you in connection with this Agreement. The maximum amount claimable under this clause shall not exceed the total amount recived as payment, within any financial year, for the Software to VillageMall.
(i) the Software was developed without consideration of your specific objectives and needs; and
(ii) software in general is not error-free, and agree that the existence of errors in the Software will not constitute a breach of this Agreement by VillageMall
provides the Software and Documentation "as is".
11.3.1 VillageMall and its agents, licenssees and its licensors to the maxium extent permissable, make no warranty of any kind, whether express, implied, statutory or otherwise, including without limitation warranties of merchantability, fitness for a particular use. VillageMall assumes no responsibility for the use of the service(s), or the Internet used to connect to and to support the service. VillageMall and its licensors make no representations about any content or information made accessible by or through the service. VillageMall makes no representation that VillageMall (or any third party) will issue updates or enhancements to the service. VillageMall does not warrant that the functions contained in the service will be uninterrupted, error-free.
11.4 Except as expressly provided in this Agreement, no warranties are made with respect to the Software or Documentation by any person, including but not limited to VillageMall, any of its officers, employees, contractors, agents and Authorised Distributors.
11.5 In the event any third party software or data is provided with or embedded in the Software, notwithstanding anything to the contrary, no warranties are made by VillageMall, its officers, employees, contractors, agents, or Authorised Distributors, with regard to such third party software or data, including but not limited to its accuracy or reliability.
11.6 To the extent permitted by law, VillageMall or any of its officers, employees, contractors, agents or Authorised Distributors will not be liable to you for any loss, costs, expenses or damages incurred by you as a result of using the Software and Documentation.
Notwithstanding any other term in this Agreement, to the extent that consumers
have the benefit of certain rights or remedies under the Trade Practices Act and
similar state and territory laws in Australia, in respect of which liability may
not be excluded, then to the maximum extent permitted by law, such liability is
limited, at VillageMallís option, to:
(i) in the case of the Software, Documentation or other goods supplied under this Agreement:
A. replacement of the goods; or
B. correction of defects in the goods; or
C. the cost of having defects in the goods corrected; or
(ii) in the case of services provided under this Agreement, replacement of the services.
11.8 To the extent permitted by applicable law, VillageMall or any of its current or former officers, employees, contractors, agents or Authorised Distributors (Those Indemnified) will not be liable for any direct, indirect, general, special, incidental or consequential damages arising out of or in any way related to the provision of any goods or services by VillageMall or Those Indemnified, pursuant to this Agreement and including your use of or inability to use the Software or Documentation, even if VillageMall or any of Those Indemnified have been advised of the possibility of such consequence.
11.9 You acknowledge that any times quoted for delivery and installation of the Software and/or performance of maintenance and support services are estimates only, and that VillageMall accepts no liability whatsoever for failure to meet those estimated times.
11.10 You acknowledge that you are responsible for ensuring that your operation of the Software does not breach any laws, or obligation of confidentiality or privacy owed to any person, and for maintaining the security of any databases which are accessed, used or managed by the operation of the Software. You indemnify and keep indemnified VillageMall against any action, proceeding, claim, loss, injury or expense arising out of any failure by you to comply with your obligations in this clause
11.11 You achknowledge, that Villagemall does not offer bespoke Software, as such it is Your sole responsibility to ensure that the Software meets your requirements; VillageMall may at its descretion offer a trial period, if no trial period is offered, You have 7 days, from the date of your first access to advise Villagemall that the Software does not meet your unique requirements. VillageMall at its sole descrition may refund fees paid , wave the fees to be paid, less a oneoff setup and adminstrative fee of $50 per fund.
Agreement may be terminated immediately by written notice from VillageMall in
any of the following circumstances:
(i) if you are in breach of any term of this Agreement;
(ii) if you, being a corporation, become the subject of insolvency proceedings;
(iii) if you, being a firm or partnership, are dissolved;
(iv) if the Software is otherwise outside your effective control; or
(v) if there is a change in ownership which effectively alters control of you.
(vi) you do not access your Account for a period of 60 days.
12.2 You may terminate this Agreement by notice in writing to VillageMall in the event that VillageMall has breached a material term of this Agreement and failed to rectify such breach within 30 days of a notice requesting VillageMall to do so.
12.2.1 You may terminate this Agreement by notice in writing to VillageMall, 12 months before the expiry of the current Term.
termination of this Agreement:
(i) the Licence is revoked; and
(ii) you must immediately pay all fees, charges or other payments owing under this Agreement; and
(iii) you must either destroy or return any remaining copies of the Software and Documentation, in the manner directed by VillageMall.
12.4 Termination of this Agreement will be in addition to any other remedies which either party may have under this Agreement or otherwise and does not affect any rights or obligations that had accrued at the time of termination.
12.5 Termination for Cause. VillageMall or the Fund may terminate this Agreement upon ten (10) days written notice of a material breach of this Agreement, if such breach is not cured within such ten (10) day period; provided, however, that any willful unauthorised use, copying, disclosure, distribution, or sublicensing of the Software, in whole or in part, will be deemed a material breach of this Agreement that cannot be cured. Should this Agreement be terminated with cause, then all payments, up to and including the minimum term, shall immediately become due and payable.
12.6 Defaulting Party. The Defaulting Party will pay all costs and expenses including legal costs incurred by the party not in default in the rectification of that default. If that default results in the termination of this Agreement any legal or accounting costs and expenses which are incurred by the party not in default must be paid by the Defaulting Party within 7 days after demand is made by the party not in default.
13. Governing law and jurisdiction
13.1 This Agreement and the transactions contemplated by this Agreement are governed by the law in force in Queensland Australia.
13.2 Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Queensland Australia and courts of appeal from them.
14.1 If you purchase any additional modules of the Software from VillageMall, increase the limits under clause 3.3 of this Agreement, or if VillageMall otherwise agrees to alter the configuration of the Software, then the terms of this Agreement will continue to apply to your use of the Software as reconfigured.
14.2 You acknowledge that in entering into this Agreement you have not relied on any representations or warranties about its subject matter except as expressly provided by this Agreement.
14.3 This Agreement constitutes the entire agreement of the parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter.
14.4 Any Licence under this Agreement is solely for the use of the Practice as identified within the Invoice; You may not assign or transfer any Licence and any such attempted assignment shall be void. You may assign this Agreement and your rights and obligations under this Agreement with the prior written consent of VillageMall, provided that the assignee executes a deed of novation pursuant to which it agrees to be bound by the terms of this Agreement. Upon assignment of the Agreement, all existing Licences shall terminate with cause, no refund relating to any remaining Licence term shall be provided. This Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party.
14.5 A party may exercise a right, power or remedy at its discretion, and separately or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by a party does not prevent a further exercise of that right, power or remedy or an exercise of any other right, power or remedy. Failure by a party to exercise or delay in exercising a right, power or remedy does not prevent its exercise. A party is not liable for any loss caused by the exercise or attempted exercise of, failure to exercise, or delay in exercising the right, power or remedy.
14.6 A provision of, or a right created under this Agreement may not be waived or varied except in writing, signed by the party or parties to be bound.
14.7 The rights, powers and remedies provided in this Agreement are cumulative with and not exclusive of the rights, powers or remedies provided by law independently of this Agreement.
14.8 Neither party is liable for any breach of its obligations under this Agreement (other than an obligation to pay any moneys or to indemnify) if the breach resulted from a cause beyond its reasonable control.
14.9 If any provision of this Agreement is held to be invalid, unenforceable or illegal for any reason, this Agreement will remain otherwise in full force apart from such provision which will be deleted.
14.10 Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survive the termination of this Agreement.
14.11 Clauses 2, 5, 9, 10, 11, 12, 13, 14, and any other clause which by its nature is intended to continue, shall survive the termination of this Agreement for any reason.
15. Definitions and interpretation
15.1 The following words have these meanings in this Agreement unless the contrary intention appears.
Agreement means this Agreement as it may be amended from time to time, via the publishing on this site and your ongoing use of the Software. Should you not agree to any amendment to this Agreement, then you shall immediately notify VillageMall, and cease all access, or usage of the Software..
Annual Renewal Fee means the fee designated as such in the Invoice, as amended by VillageMall from time to time in accordance with clause 8.3.
Authorised Distributor means an entity appointed by VillageMall to maintain and support the Software and Documentation.
Balance means the residue of the Licence Fees payable after the deduction of the Deposit.
Deposit means the agreed amount of the Licence Fees initially payable in accordance with the Invoice..
Documentation means all manuals, handbooks, and other material, whether in hard copy or electronic form, in relation to the Software and its use, and provided by VillageMall under this Agreement.
Licence Fees means the total fees specified in the Invoice.
Fund means an ATO registered, Self Managed Superannuation Fund
Company means an entity as defined within the Corporations Act
VillageMall means VillageMall Operations Pty Ltd ACN 102 714 885.
Intellectual Property Rights means all intellectual property rights of whatever nature including all rights conferred under statute, common law or equity, including, without limitation, all copyrights, patent rights, trade mark rights, design rights, trade secrets, and all other intellectual property as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation of July 1967.
Invoice means VillageMallís or the Authorised Distributorís standard form invoice as sent to you in relation to your ordering of the Software or Updates.
Site means the geographical location of access address specified in the Invoice.
Software means the Service, as delivered by VillageMall from its hosted facilities, identified as the ĎSMSF Serviceí, as detailed in the Invoice and includes any Updates provided to you under this Agreement.
Updates means an change in the identifiable version of the Software by correcting bugs or errors, or by making minor improvements to the functionality of the Software, and includes new versions of the Software which VillageMall generally makes available to licencees of the Software that have entered into an agreement with VillageMall and paid the relevant Annual Renewal Fee. Updates do not include any new products, including new products based on the Software, which are licensed separately, and for which an additional charge, separate to the Annual Renewal Fee, is payable.
User means a uniquely identifiable named person, accessing any part or all of the Software at any given point in time. For the avoidance of doubt, any background tasks created or spawned by an individual user is not to be treated as a separate user. If, however, a background task or process created by a particular individual user is still running then that individual user is deemed to be accessing the Software at that point in time. The User account may not be shared and is for the exclusive use of the named person. User licences are not transferable, unused user licences are non-refundable.
15.2 In this
Agreement unless the contrary intention appears:
(i) the singular includes the plural and vice versa;
(ii) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; and
(iii) a reference to "you" is a reference to the customer or accounting practice specified in the Invoice.
15.3 Any marginal notes or headings are included for convenience and do not affect the interpretation of this Agreement.
Information regarding Accountants Web Ofifce
To protect your
interests we wish to clarify several situations where you need to exercise care:
Cognition is a service, which includes an integrated Accountants Web Office Back Office, as such an Accounting Practice, via AWO Softeware shall have access to your Cognition Accounting sevrice, in order to perform any optional Accounting Sevrices.
FREE Cognition Sevrices
All Free Cognition sevrices, are provided on the basis that the VillageMall promotional material may included in any content sent to third parties, this may include the offer of Cognition services, or identifying the use of Cognition Servrices in providing the services.
You acknowledge that all FREE services must have a Accountant Web Office back office account and that the Accoutnign Practice may access your Accounting data, all Accountign sevrices offered by said Accoutnign Practice are between you and the Accounting Practice.
© VillageMall Pty Ltd 2012-2014. All rights reserved.
Copyright in the Software and in the Documentation is owned by VillageMall Pty Ltd. ("VillageMall"). No part of the Software or the Documentation may be reproduced or copied in any form or by any means (graphic, electronic or mechanical, including photocopying, recording, taping or information storage and retrieval systems) without the prior written permission of VillageMall Pty Ltd.
The copyright in the Software and the Documentation is protected by Australian national copyright laws (including the Copyright Act 1968 (Cth)) and by international copyright treaties.