Tall Emu CRM and MYOB CRM
These terms and conditions (Terms) apply to your use of Tall Emu CRM or MYOB CRM (collectively, Product) and any Services we provide you with. By purchasing a Subscription Plan, using the Product, or accepting a quote for Services we provide, you agree to be bound by these Terms. These Terms are a binding contract between us and you.
|Read these Terms carefully as they outline your legal rights and obligations.
Words that are capitalised have defined meanings. You can find a list of defined words and their meanings in the Glossary at the end of this document.
When you sign up for a Subscription Plan, you can choose whether to sign up on a rolling monthly or yearly basis. You can terminate or cancel your Subscription Plan by following the instructions in section 8.2(a).
We might make changes to our Terms, Subscription Plans or Fees from time to time. See section 6 for information about when we will let you know about changes, and what rights you have if we make changes.
1. Using the Product or engaging us to provide you with Services
1.1 These Terms apply to the Product and any Services we provide you with
We agree to supply, and you agree to use, the Product and any Services in accordance with these Terms.
1.2 Requesting a Quote
If you request Services, we will send you a quote. The quote will specify any Services that will be supplied to you, any Fees you are required to pay, when the Services will be supplied, and other terms and conditions that apply. You can accept a Quote by signing and returning it to us. If you accept a Quote, we will supply the Services with due care, skill and diligence, using suitably qualified and experienced personnel.
1.3 Choosing a Subscription Plan that is right for you
Descriptions of the Subscription Plans we offer are available on our website. This includes descriptions of any product and support inclusions and limitations. The Fees you are required to pay are also set out on our website and will be disclosed to you before you sign-up for a Subscription Plan.
The Product is accessible primarily by compatible web browsers. However, from time to time, we may offer software features that you can install on compatible computers or mobile devices.
1.4 Your responsibilities
Do’s and Don’ts
As a Subscriber, you must:
- Provide current contact details. You must ensure that we have your up-to-date contact details. You can update your contact details by contacting us via Live chat or emailing us at [email protected].
- Control access under your Subscription Plan and ensure your User list remains up-to-date. You control who has access to the Product under your Subscription Plan, and which Users can view and modify your Subscriber Data.
You can add or remove Users, or change their level of access or permissions at any time by following these instructions.
You are responsible for the acts or omissions of your Users. You must ensure that your Users are aware of, and comply with, these Terms.
If a User leaves your business, it is your responsibility to remove their access to the Product.
- Pay Fees. You must pay Fees for your Subscription Plan and any Services in accordance with section 7.
- Provide accurate data. You are responsible for verifying the accuracy and completeness of any Subscriber Data that you or your Users input into the Product.
- Backup Data. There is an inherent risk of data loss with any technology. You should regularly backup your records and Subscriber Data.
- Keep your own records. You should retain a copy of your business records and Subscriber Data.
- Comply with Applicable Law. It is your responsibility to comply with Applicable Law, including retaining records for compliance purposes. If your Subscription Plan is terminated or cancelled, you should extract your Subscriber Data in its entirety as soon as possible by following the instructions set out in section 8.3(d).
- Make sure that the Product is right for you. Product features and functionality may change over time. Your needs may also evolve. This means that the Product may not be, or may not remain, suitable for your needs. You must assess the ongoing suitability of your Subscription Plan and the Product to meet your needs.
As either a Subscriber or User, you must:
- Keep your username and password secure and confidential.You should never:
- tell anyone your username and password; or
- let anyone else, whether acting as your agent or not, access the Product using your username and password.
You should be particularly careful when accessing the Product from a public computer or over public Wi-Fi.
If you think anyone else might know your login credentials, you should reset the affected password.
When accessing the Product as either a Subscriber or User, you must not:
- use the Product in a way that contravenes any Applicable Law or violates a third party’s legal rights;
- interfere with the operation of the Product;
- sell, commercialise, lease, loan or otherwise distribute the Product to third parties;
- reverse-engineer, decompile, or otherwise attempt to discover source code, formulae or processes in respect of the software behind the Product;
- copy, reproduce, alter, modify, create derivative works, or publicly display, any part of any the Product content (except in respect of Subscriber Data or where we have given you prior written consent);
- use the Product in any way which is: harmful, threatening, abusive, vulgar, obscene or otherwise objectionable;
- upload any material (including pdf. and .jpg files) into the Product that: contains Personal Information of any individual without that individual’s express or implied consent; or infringes the Intellectual Property Rights of any third party;
- directly or indirectly introduce, or permit the introduction into the Product of, any software viruses or other malicious computer code, files or programs, or in any other manner whatsoever corrupt, interrupt, destroy or limit the functionality of the Product;
- use the Product to send “spam” or otherwise make available any offering which violates these Terms;
- remove, modify or tamper with any copyright, acknowledgment, attribution, trade mark, warning, disclaimer, regulatory or legal notice or link that is incorporated into the Product; or
- act in a manner that is verbally or physically abusive, threatening or amounts to bullying or harassment of any of our employees, contractors or agents (including our customer support teams).
1.5 Product Support
You can also contact our customer support team by emailing [email protected], or logging into the Product, clicking on the HELP icon at the top right, and choosing ‘Contact Us’.
The Product may be disrupted during certain periods due to circumstances or events beyond our reasonable control, including as a result of:
- internet service provider or telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
- negligent, malicious or wilful acts or omissions of third parties;
- maintenance or repairs carried out by any third party in respect of any of the systems used in connection with providing the Product or Other Applications; or
- services provided by third parties ceasing or becoming unavailable.
1.7 System maintenance
The Product may also be disrupted during certain periods due to system maintenance or repairs. Where the Product is unavailable because of system maintenance or repairs, we will notify you beforehand except in cases where urgent system maintenance or repairs are needed to maintain critical Product functionality or security.
1.8 Beta Features
(a) From time to time, we may offer you access to “beta”, “pilot” or “proof of concept” features (Beta Features) for testing and evaluation purposes. Due to their nature, Beta Features may contain bugs, errors or other defects, and disrupt access to, or cause loss or corruption of your Subscriber Data. If you choose to use Beta Features or deploy the Beta Features in a production environment, you do so at your own risk. Subject to sections 9.2 and 9.3, the Beta Features are provided “as is” and we do not have an obligation to provide any bug fixes, error corrections, patches or updates to the Beta Features. We may discontinue provision of the Beta Features by giving you prior written notice (and will give you as much notice as we reasonably can).
(b) We may request feedback from you or you Users about the Beta Features. Feedback is voluntary, and you grant us a perpetual, worldwide, non-exclusive, irrevocable, royalty free licence to use and exploit that feedback for any purpose, including developing, improving or promoting our products and services. You warrant that you have obtained any necessary consents and have all necessary rights to grant us the licence to feedback under this section 1.8(b).
2. Other Applications
2.2 Access to Subscriber Data
If you install or enable any Other Application for use with the Product, you consent to us allowing the Other Application to access your Subscriber Data as required to enable the Product and the Other Application to operate together. Any exchange of data or other interaction between you and the Other Application provider is between you and them. We are not responsible or liable for any disclosure, modification, or deletion of your Subscriber Data as a result of any access to the Product by the Other Application provider (except to the extent caused or contributed to by a breach of Applicable Law or these Terms by us or a Third Party acting on our instructions).
3. Data Feeds
3.1 How do Data Feeds work?
- Data Feeds work by you authorising a Data Supplier to provide us with Imported Data. A Data Supplier might require you to give a hard copy authority form to set up the Data Feed.
- Use of Data Feeds may be subject to additional terms imposed by the Data Supplier.
3.2 Data Suppliers
- may be paid a commission or fee for providing us with your Imported Data;
- may not be under any obligation to provide us with your Imported Data and may have a right to stop doing so at any time without notice to either you or us; and
- are not a party to any agency, partnership or joint venture relationship with us.
3.3 How you can end your use of Data Feeds
If you wish to terminate or cancel your Data Feeds but continue to use the Product, you must advise the Data Supplier, and confirm how long the Data Supplier will take to process the termination or cancellation. For example, the Data Supplier may require at least 14 days to terminate or cancel the Data Feeds.
3.4 When Data Suppliers can terminate or cancel your Data Feeds
- Data Suppliers may have a right to terminate or cancel your Data Feeds at any time, for any reason (unless they have agreed otherwise with you in writing).
- Your Data Feeds will be automatically terminated or cancelled when your Subscription Plan is terminated or cancelled.
3.5 Fees for Data Feeds
If Data Suppliers charge you any fees related to your Data Feeds or associated accounts, as a Subscriber, you are responsible for and must pay those fees in addition to any Fees which must be paid to us for the Product or any Services we provide you with. If you do not make required payments to the Data Supplier by the due date for payment, they may not allow us to provide the Data Feeds to you.
4. AI Features
From time to time, we may offer machine learning or other artificial intelligence features (AI Features) which rely on third party software. As AI is a rapidly evolving area of technology, AI Features will be offered as Beta Features and section 1.8 will apply. You should not rely on the accuracy or completeness of any output from AI Features. Use of any AI Features is at your own risk.
5. Data, IP and privacy
5.1 What you own: Subscriber Data
(a) Ownership of Subscriber Data
As the Subscriber, you (and, if applicable, your third-party licensors) own your Subscriber Data.
(b) Licence to Subscriber Data
As the Subscriber, you grant to us a non-exclusive and royalty-free licence to use the Subscriber Data:
- to enable us to perform our obligations under these Terms;
- to develop and improve our products and services;
- to identify, develop and deliver other functionality, products and services that may be of interest to you; and
- for other purposes to which you expressly consent from time to time.
(c) Necessary rights in Subscriber Data
You warrant that you have obtained any necessary consents and have all necessary rights to grant us the licence to Subscriber Data under section 5.1(b).
(d) Accuracy and completeness of Subscriber Data
Your Subscriber Data is entered by you and your Users. You are responsible for verifying and maintaining the accuracy of your Subscriber Data.
(e) Use of anonymised or aggregated data
As the Subscriber, you grant to us a royalty-free and irrevocable licence to use anonymised or aggregated data that we create or derive from your Subscriber Data in perpetuity for any purpose, provided that such anonymised or aggregated data does not contain any Personal Information.
5.2 What we own: our IP
- Ownership of our Intellectual Property Rights
We (and our licensors, where applicable) own the Product, including but not limited to software, source code, object code, and our templates, documents, marketing material, trade marks, business names, logos, trading styles, get-up, processes, methodologies and any of our other Intellectual Property Rights.
- Licence to use the Product
Subject to payment of the Fees, we grant you as the Subscriber and your Users a non-exclusive, revocable, and non-transferable licence to use the Product in the way that we authorise. This licence continues until the end of the Data Extraction Period described in section 8.3(d), after your Subscription Plan is terminated or cancelled in accordance with these Terms. Your licence to use any Beta Features can also be terminated or cancelled in accordance with section 1.8.
Each party must take reasonable steps to secure and keep secure any Confidential Information belonging to the other party which is in its possession, custody or control and must not disclose it to any third party except where permitted under these Terms.
This section 5.3 does not apply to Confidential Information which a party is required to disclose under Applicable Law, pursuant to any order, direction or request made by any court of competent jurisdiction, regulatory body or Government Agency, or under the rules of any recognised stock exchange.
5.4 Data security
(a) We must take reasonable precautions to prevent a Security Breach in relation to the Subscriber Data.
(b) Each party must promptly notify the other party if it becomes aware of an Eligible Data Breach of Subscriber Data as required under the Privacy Act.
5.5 Collection, disclosure and use of Personal Information
- Privacy consent
6. Changes to these Terms, the Product, Services or Fees
6.1 Changes to these Terms
We may change these Terms by giving you written notice. If the changes are significant or are likely to have a detrimental impact on you, we will give you notice at least 30 days before the changes take effect. We will act reasonably in exercising our right to change these Terms.
6.2 Changes to the functionality of the Product or your Subscription Plan
We may change the Product or your Subscription Plan, including by adding or removing product features (including Beta Features), or changing the inclusions or limitations in our product or support tiers. If changes to the Product or your Subscription Plan are likely to have a detrimental impact on how you use the Product, we will give you written notice at least 30 days before the changes take effect, subject to section 1.8. Section 1.8 describes when we will notify you about changes to Beta Features.
6.3 Changes to Fees for your Subscription Plan
We may change the amount of any Fee, introduce a new Fee, and/or change the circumstances in which, or frequency with which, a Fee is payable. We will give you written notice at least 30 days before the changes take effect. We will act reasonably in exercising our right to make any changes to Fees.
6.4 Discontinuing the Product
(a) If we discontinue the Product and we make subscriptions for any substantially similar product(s) available for sale generally to customers at the time in the relevant jurisdiction, we may propose to migrate you to a substantially similar product after the end of your current subscription period. We will give you written notice at least 60 days before any proposed migration and we will give you a reasonable opportunity to opt out of the migration. If you do not opt out before a date nominated in the notice, we will automatically migrate your Subscriber Data and transfer your Subscription Plan to a substantially similar product. We will act reasonably in making any migration under this section 6.4.
(b) If we discontinue the Product, and do not make subscriptions for any substantially similar product(s) available for sale generally to customers at that time, we will give you written notice at least 60 days’ before the effective date of discontinuation so that you can arrange for replacement product(s) or service(s).
6.5 Changes to the Services, including Fees you are required to pay for the Services
Either party can request a change to the Services at any time, by submitting a change request in writing to the other party. The parties will work together in good faith to agree on changes to the Services (including any changes to Fees). If the parties cannot agree on the changes within 10 Business Days, either party may terminate the Services with immediate effect by giving written notice to the other party and section 6.6(b) will apply.
6.6 Your rights if we make changes
(a) If you do not agree with the changes that we make under sections 6.1—6.4, you have a right to terminate your Subscription Plan before the changes take effect. You can terminate your Subscription Plan by contacting our customer support team by contacting us via Live chat or emailing us at [email protected]. Termination will take effect at the end of the month (or on another date agreed with you).
(b) If you exercise your right to terminate or cancel your Subscription Plan in accordance with section 6.6(a), or the Services are terminated or cancelled in accordance with section 6.5, you will be entitled to receive a refund for any Fees you prepaid for the period after the termination or cancellation takes effect. We will promptly process the refund if the amount of the refund is not in dispute. If there is a genuine dispute about whether a refund is owed to you, or the amount of the refund, both parties must use reasonably endeavours to promptly resolve the dispute.
(b) If you continue to use the Product after being notified of changes to these Terms under section 6.1, you are bound by the updated Terms from the effective date of the updated Terms.
7. Fees and payment
When you select your Subscription Plan, you will be informed of the pricing, product tier inclusions and limitations which are relevant to your Subscription Plan.
Subscription Fees will be charged in advance of the applicable subscription period. Your first invoice will also include a one-off onboarding Fee.
Fees for Services will be set out in the quote(s) we send you. Fees for Services must be paid in advance before we carry out any work (unless otherwise agreed with you).
7.2 Free Trial
We may make the Product available to new subscribers for a free trial period (Trial). At the end of the Trial, you will have the option of subscribing to the Product for a fee.
7.3 Payment Terms
You must pay any Fees by the due date stated on the relevant invoice (unless otherwise agreed with you).
If you choose to sign up for a Subscription Plan on a rolling monthly basis, you must provide us with a Direct Debit Authority in accordance with section 7.4.
- choose to sign up for a Subscription Plan with a rolling 12 month term; or
- engage us to provide you with Services,
you can either provide us with a Direct Debit Authority in accordance with section 7.4 or pay via electronic funds transfer.
7.4 Direct Debit
(a) Direct Debit Authority
If you provide us with your credit card or other payment details and sign electronically to confirm that you agree to the Direct Debit Authority, you authorise us to deduct any Fees payable to us in respect of your Subscription Plan, use of the Product or Services we provide you with. If your Direct Debit Authority is cancelled or withdrawn, you must provide us with a replacement direct debit authority (unless we agree to another payment method).
(b) Recurring Payments
When you purchase a Subscription Plan, you agree that you are authorising recurring payments, and payments will be made to us by the method and at the recurring intervals you have agreed to, until the end of the month in which the Subscription Plan is terminated or cancelled.
(c) Processing Fee payments
- Debiting of Fees will ordinarily occur on the invoice due date (but may occur at other times if permitted under your Direct Debit Authority). We will provide you with invoice(s) detailing the Fees that will be debited from your account.
- It is your responsibility to ensure that you have sufficient credit or funds available in your nominated credit card or bank account to cover payment of any Fees, and that your credit card or account details are up to date.
- If we cannot debit your Fees from your credit card or bank account, we will notify you that your account has fallen into arrears and may attempt to re-draw up to 3 further times before the direct debit is considered to be dishonoured.
- You are responsible for paying any dishonour fee(s) charged by your financial institution.
- You can update your credit card or bank account details at any time by contacting us via Live chat or emailing us at [email protected]. Following any update, you authorise us to continue to charge the applicable credit card or bank account, including for any outstanding Fees accrued by you or your Users in connection with your Subscription Plan, use of the Product or the Services.
(d) Late payment
If undisputed Fees remain unpaid for a period of 30 days after you receive a written notice from us requiring you to pay the outstanding Fees, we may suspend or terminate your Subscription Plan or the Services in accordance with section 8.2(b).
(e) If there has been a problem
If you believe there has been an error in debiting your credit card or bank account, you should notify us immediately at [email protected] so that we can resolve your query promptly. If your credit card or bank account has been incorrectly debited by more than it should have been, we will arrange a refund of the incorrect debit. If there is a genuine dispute about an amount that was debited from your account, and you have notified us about the dispute, we will hold the amount on trust for you pending the outcome of a dispute resolution process. If there is a genuine dispute about an amount due for payment that has not been debited from your account, and you have notified us about the dispute, we will not debit the disputed amount until after the outcome of a dispute resolution process.
7.5 Goods and services tax (GST)
All Fees are subject to GST. If a Fee is stated as being GST inclusive, then it already includes the GST. If a Fee does not say it is GST inclusive, then we will add GST to the amount.
8. Term and Termination
8.1 Automatic renewal
When you sign up for a Subscription Plan, you can choose whether to sign up on a rolling monthly basis or for a rolling 12 month term.
- If you sign up on a rolling monthly basis, your Subscription Plan will automatically renew at the end of each month for a further one-month period, unless your Subscription Plan is terminated in accordance with these Terms.
- If you sign up for a rolling 12 month term, your Subscription Plan will automatically renew at the end of each 12 month period for a further 12 month period, unless your Subscription Plan is terminated in accordance with these Terms.
You are required to give us notice at least 10 days before the end of your current subscription period if you do not want to renew your Subscription Plan, to give us sufficient time to process your request.
If you sign up for a rolling 12 month term, we will notify you before any upcoming renewal date.
(a) As a Subcriber, how can you terminate or cancel your subscription or the Services?
- For any reason
You can terminate or cancel your Subscription Plan at the end of your current subscription period for any reason, or no reason, by notifying us at least 10 days before renewal of your Subscription Plan, so that we have sufficient time to process your request. This can be done by contacting us via Live chat or emailing us at [email protected]. As long as you notify us at least 10 days before the end of your subscription period, the effective date of termination or cancellation will be the last day of the current subscription period. If your Subscription Plan is terminated or cancelled, you and your Users will continue to have access to your Subscription Plan until the end of your subscription period and the end of the Data Extraction Period.
We do not provide refunds or credits for any partial subscription periods unless expressly set out in these Terms, where otherwise required under Applicable Law or otherwise agreed with you.
You can choose to stop using Beta Features immediately upon written notice to us.
- For our breach
As a Subscriber, you can terminate or cancel your Subscription Plan or the Services by providing notice if we fail to remedy a material breach of these Terms within 10 days of you giving us notice of the breach in writing.
- If we make changes
Sections 6.5 and 6.6(a) set out the rights you have to terminate or cancel your Subscription Plan and/or the Services if changes are made to these Terms, your Fees, the Product, your Subscription Plan or the Services.
If we suspend performance of our obligations under these Terms, you have a right, during the period of suspension, to terminate or cancel your Subscription Plan or the Services immediately upon written notice to us.
You can also terminate or cancel your Subscription Plan or the Services immediately upon written notice to us if we cease to be able to pay all of our debts as they fall due, become insolvent, go into liquidation or administration, or such other similar arrangement with creditors, or cease to carry on business (subject to any stay requirements under Applicable Law).
(b) How can we suspend, terminate or cancel your subscription or the Services?
- For any reason
We can terminate or cancel your Subscription Plan at the end of the current subscription period for any reason, by providing you with at least 60 days’ written notice before renewal of your Subscription Plan.
We can terminate or cancel Beta Features by giving you prior written notice in accordance with section 1.8.
- For your breach
We can suspend, terminate or cancel your Subscription Plan or the Services by providing written notice if you fail to remedy a material breach of these Terms within 10 days after we give you written notice of the breach, including without limitation where:
- Fees are overdue; or
- there is a change in who owns or controls the Subscriber where we were not notified in advance about the change in ownership or control, and the new owners have failed to satisfy our reasonable identity and credit check requirements or failed to provide information that we reasonably require to make changes to the Subscriber’s account.
We can suspend your Subscription Plan or the Services immediately (and will notify you as soon as we reasonably can) if we believe it is reasonably necessary either to protect the security of the Product or the Subscriber Data or any critical the Product functionality. We will lift any suspension as soon as we reasonably can after resolution of the issue(s) giving rise to the suspension, subject to section 1.8.
We can suspend, terminate or cancel your Subscription Plan or the Services immediately upon written notice to you (and will notify you as soon as we reasonably can) if as a Subscriber, you cease to be able to pay all your debts as they fall due, become insolvent, go into liquidation or administration, bankruptcy or such other similar arrangement with creditors, or cease to carry on business (subject to any stay requirements under Applicable Law).
8.3 What happens on Termination or cancellation of your Subscription Plan or the Services?
(a) End of your Subscription Plan
Unless otherwise specified in these Terms or mutually agreed with you in writing, termination or cancellation of your Subscription Plan is effective on the last date of your current subscription period. After termination or cancellation of your Subscription Plan is effective:
- you and your Users must cease use of the Product; and
- you and any Users will only be able to access Subscriber Data for the Data Extraction Period and may not have access to Subscriber Data after the Data Extraction Period ends.
(b) Payment of Fees still owing
After termination or cancellation of your Subscription Plan or the Services, you must pay any Fees that are due and payable to us up to the date of termination or cancellation.
(c) Continuation of limitations on liability
Any limitations on liability which apply under these Terms continue after termination or cancellation of your Subscription Plan or the Services.
(d) Accessing archived Subscriber Data after termination or cancellation of your Subscription Plan
We strongly recommend that, as a Subscriber, you extract your Subscriber Data for compliance and archive purposes either prior to termination or cancellation of your Subscription Plan or as soon as possible following termination or cancellation of your Subscription Plan. Failure to extract and retain your Subscriber Data may result in you being unable to comply with your record retention obligations under Applicable Law. You acknowledge and agree that:
- You will have 30 days from the effective date of termination or cancellation of your Subscription Plan to extract your Subscriber Data from the Product (Data Extraction Period) for no additional charge.
- After the Data Extraction Period, you and your Users will not have any further guaranteed access to the Product or your Subscriber Data.
- If you need to access your archived Subscriber Data records after the end of your Data Extraction Period, contact us via Live chat or by emailing us at [email protected]. Access to archived Subscriber Data may be subject to additional fees and charges and require that you have an active Subscription Plan to view the records. We cannot guarantee that we will be able to recover your historical Subscriber Data, which is why you should keep your own records and copies of Subscriber Data. We may delete Subscriber Data after the Data Extraction Period in accordance with our data retention policies.
9. Liability, Warranties and Indemnities
9.1 Limits to our liability
Our liability to you for any breach by us of these Terms is, if permitted by the Australian Consumer Law (ACL), Consumer Guarantee Act 1993 (NZ CGA) and/or Fair Trading Act 1986 (NZ FTA) (as applicable), limited to:
- the resupply of the Product or the Services (as applicable); or
- the cost of re-suppling the Product or the Services (as applicable),
in respect of which the breach occurred, and otherwise will be limited to the maximum extent permitted by Applicable Law.
9.2 Where the Australian Consumer Law applies
(a) Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
- to cancel your service contract with us; and
- to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done, you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
(b) These Terms do not exclude, restrict or modify the application of any part of the ACL, or the exercise of any right or remedy conferred by the ACL.
9.3 Where the New Zealand Consumer Guarantee Act and Fair Trading Act would otherwise apply
(a) For the purposes of section 5D of the NZ FTA and section 43 of the NZ CGA:
- the goods and services provided to you under or in connection with these Terms are being provided and acquired in trade;
- if the NZ FTA and/or NZ CGA applies to any goods or services supplied to you under or in connection with these Terms, the parties agree to contract out of the NZ CGA and sections 9, 12A and 13 of the NZ FTA; and
- all representations, conditions, warranties and terms that would otherwise be expressed or implied in these Terms by general law, statute or custom are expressly excluded (to the extent that such representations, conditions, warranties and terms can be excluded at law).
(b) Except as specified in section 9.3(a), these Terms do not exclude, restrict or modify the application of any part of the NZ CGA or NZ FTA, or the exercise of any right or remedy conferred by the NZ CGA or NZ FTA.
9.4 When we will not be liable to you
To the maximum extent permitted under Applicable Law and subject to sections 9.2 and 9.3, we are not responsible or liable to you for:
- the contents of the Subscriber Data;
- any Loss or Claim relating to provision or use of the Subscriber Data, Imported Data, Exported Data or system data made available through the Product;
- any Loss or Claim relating to the operation of Third Party applications or the actions or inaction of Third Parties, Other Application providers or other persons (including those which may be negligent or unauthorised) relating to the Product; or
- any Loss or Claim arising from a failure by you, as the Subscriber, or your Users to maintain archive records of your Subscriber Data,
except to the extent caused or contributed to by a breach of Applicable Law or breach of these Terms by us or any Third Party acting on our instructions.
9.5 We indemnify you for IP Claims
Subject to you complying with this section 9.5, we indemnify you from and against any Loss or Claim incurred by you arising directly from or in direct connection with a claim by a third party that the Product or its use infringes the Intellectual Property Rights of that third party (“IP Claim”). If an IP Claim is made against you, you must promptly notify us of the IP Claim and give us the right to defend and settle the IP Claim. We will not settle an IP Claim without your prior consent (such consent not to be unreasonably withheld or delayed). You must provide reasonable assistance with our defence of the IP claim. The indemnity in this section 9.5 will not apply to the extent that the IP Claim arises or results from your (or your Users’) access or use of Product in a manner prohibited by us in writing or in breach of these Terms.
9.6 You indemnify us for third party claims relating to your use of the Product
You indemnify us against any Loss or Claim we incur directly from or in direct connection with a third party claim or action against us relating to your (and your Users’) use of the Product.
9.7 Limitation of Liability
(a) Liability cap
In no event will either party’s aggregate cumulative liability (whether in contract, tort, negligence, statute or otherwise) exceed an amount equal to the Fees paid by you to us during the 12-month period preceding the event or occurrence giving rise to such liability.
This limitation does not apply to liability:
- that cannot be excluded or limited under Applicable Law;
- arising out of or in connection with sections 9.2—9.3 and 9.5—9.6; or
- arising out of or in connection with a party’s gross negligence, fraud or wilful misconduct.
(b) Consequential loss excluded
In no event will either party be liable for any consequential, incidental, indirect, special, exemplary or punitive damages, losses, or expenses (including but not limited to business interruption, loss of data, lost business, loss of revenue or lost profits) even if it has been advised of the possibility of such damages.
9.8 Proportionate liability
To the extent permissible under Applicable Law, each party’s liability under these Terms (including under an indemnity) is reduced proportionately to the extent that such liability is caused or contributed to by the breach of these Terms or the wrongful, unlawful or negligent act or omission of the other party or its directors, officers, employees, agents or subcontractors.
9.9 Duty to mitigate
Each party must use all reasonable endeavours to mitigate its Losses.
10. General terms
Where we are required to give you a notice under these Terms, we can give notice either via email or in-product notification.
10.2 Entire agreement
These Terms and the documents incorporated by reference, including any Fee increases notified to you, supersede any previous written agreements between us in connection with the Product.
10.3 What happens if some of these Terms can’t operate?
If any part of these Terms is void, unenforceable or illegal in a jurisdiction, that part does not apply in that jurisdiction. However, the remainder of the Terms continue in operation in that jurisdiction and the validity or enforceability of the remainder of these Terms is not affected.
10.4 No waiver
If a party does not insist on strict performance of any part of these Terms, that waiver will not be deemed to be a waiver of a subsequent breach of these Terms.
10.5 Assignment by you
You can assign, novate and otherwise transfer your rights and/or obligations under these Terms to an affiliated entity, subject to your account being up to date and the incoming subscriber completing such transfer forms as we may reasonably require (including completing any necessary identity or verification checks). If you wish to transfer your Subscription Plan and Subscriber Data to someone else, contact us via Live chat or by emailing us at [email protected] and we will guide you through the process of having your Subscription Plan and Subscriber Data transferred. Any purported assignment, novation or transfer that does not follow our prescribed process is invalid and you remain responsible for your obligations under these Terms.
10.6 Assignment by us
We may assign, novate or otherwise transfer our rights and/or obligations under these Terms to any of our affiliated entities, or to any entity that acquires all or substantially all of our business or assets related to the Product, and we will give you written notice of any such assignment, novation or transfer.
10.7 Which laws apply to the Terms?
If you reside in New Zealand, or your business is registered in New Zealand, these Terms are governed by the laws in force in New Zealand and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand. Otherwise, these Terms are governed and construed by the laws of the state of Victoria, Australia and the parties submit to the non-exclusive jurisdiction of the courts of the state of Victoria, Australia.
10.8 Disputes and Customer Complaints
As a Subscriber, you are responsible for resolving any disputes with your Users. If you have any questions, complaints or claims that you wish to raise with us you can contact us by emailing us at [email protected]. Most disagreements can be resolved informally and efficiently within our customer resolutions team.
The following expressions have the following meaning:
- Applicable Law means all laws, rules and regulations in force from time to time in New Zealand (if you reside in New Zealand or your business is registered in New Zealand) or Australia (in all other cases).
- Beta Features has the meaning given to it in clause 1.8(a).
- Confidential Information means, in respect of a party, information belonging or relating to that party that is submitted or disclosed by that party to the other party in connection with your use of the Product that is not generally available to the public (other than by reason of a breach of these Terms by the other party) and: (i) at the time of disclosure, is identified by the first party as being confidential; or (ii) which the other party knows, or ought reasonably to be expected to know, is confidential to that first party.
- Data Extraction Period has the meaning given to it in clause 8.3(d).
- Data Feed means a data feed from a Data Supplier or Other Application authorised by you. It includes bank feeds, invoice feeds and supplier feeds.
- Data Supplier means an organisation authorised by you to supply us with Imported Data. This might include a customer, third-party software provider or a supplier.
- Direct Debit Authority means the direct debit authority signed by you for payment of the Fees.
- Eligible Data Breach means that term as defined in the Privacy Act.
- Exported Data means data exported, extracted or transmitted from the Product to a storage destination or organisation nominated by you. It includes data transmitted to Other Applications and exported data files.
- Fees means those fees relating to your Subscription Plan or the Services as disclosed to you when you initially signed-up for the Subscription Plan or accepted a quote; and any changes to those fees as communicated to you or agreed with you in accordance with these Terms.
- Imported Data means data that is imported or transmitted into the Product from a Data Supplier or Other Application authorised by you.
- Intellectual Property Rights means all present and future intellectual property rights, including patents, copyright, designs, trade marks, know how and moral rights.
- Loss or Claim means any loss, liability, claim, action, proceeding, damage, compensation, cost or expense (including all reasonable legal costs and expenses), including liability in tort.
- Other Application means any application or service offered by a third party to integrate and be used in conjunction with the Product.
- Personal Information means that term as defined in the Privacy Act. This includes information about an identifiable individual.
- Privacy Act means the Privacy Act 1988 (Cth) as amended or replaced from time to time (if you or your employees or customers reside or are located in Australia or your business is registered in Australia) or the Privacy Act 2020 (NZ) as amended or replaced from time to time (if you or your employees or customers reside in or are located in New Zealand or your business is registered in New Zealand).
- Security Breach means unauthorised access to or alteration of the Subscriber Data.
- Services means any services to be provided by the Product to you, including any implementation, development, training or consulting services.
- Subscriber means the business that subscribes to the Product. A Subscriber may be a sole trader, partnership, company, trustee acting on behalf of a trust or another type of organisation or entity.
- Subscriber Data means data, information, text, graphics, images or works of authorship of any kind (including Imported Data), information (including Personal Information) and other materials entered or uploaded by you, Users or a Data Supplier (as applicable) into the Product.
- Subscription Plan means any subscription plan for the Product that we make available from time to time, as described on our website.
- Tall Emu CRM and MYOB CRM means any and all of the services, features and functionality comprising the product advertised as either ‘Tall Emu CRM’ or ‘MYOB CRM’ which we make available from time to time. This includes the base product as well as Data Feeds within the Product and any Beta Features.
- Tax Laws means: (if you reside in Australia or your business is registered in Australia) A New Tax System (Goods and Services) Act 1999 (Cth) and the Taxation Administration Act 1953 (Cth) or similar laws and any binding regulation, ruling or direction issued by the Australian Taxation Office as amended or replaced from time to time; or (if you reside in New Zealand or your business is located in New Zealand) the Goods and Services Tax Act 1985 (NZ) and the Tax Administration Act 1994 (NZ) or similar laws and any binding regulation, ruling or direction issued by the Inland Revenue Department of New Zealand as amended or replaced from time to time.
- Third Party means any person we have engaged to help us provide the Product. This includes any other service providers engaged by us to assist in the delivery, maintenance and administration of the Product. In the case of Data Feeds, any Data Supplier that you authorise to provide Imported Data to us is also a Third Party under these Terms.
- User means a person authorised by the Subscriber to use the Product.
- We, us and our means the Product Pty Ltd (ABN 82 099 970 868), an MYOB company.
- You and your means the Subscriber and/or User, as the context requires.
Last updated: October 2023