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These Terms and Conditions of Use were last updated on 05 September, 2023. Collectively they are referred to as this Agreement.
Welcome to AssetAccountant, an online software-as-a-service asset register designed to manage fixed and leased assets for both accounting and taxation purposes (the Subscription Services) either directly or integrated with software for financial accounting, statutory financial reporting and tax compliance.
The Terms and Conditions of Use set out our mutual rights and obligations in relation to any use of AssetAccountant.
By using AssetAccountant, you agree to follow and be bound by these Terms and Conditions of Use.
Where you are using AssetAccountant integrated with software for financial accounting, statutory financial reporting and tax compliance, the terms and conditions of that software also apply, and the minimum requirements are the greater of those specified in either.
If you do not agree to all the Terms and Conditions of Use, you must not use AssetAccountant.
Please read these Terms and Conditions of Use carefully before registering to use AssetAccountant.
Any use of AssetAccountant is subject to these Terms and Conditions of Use, and by using AssetAccountant, you agree to be bound by them.
We may vary these Terms and Conditions of Use from time to time, which are effective upon their posting on the AssetAccountant Website or as otherwise notified to the Subscriber or Authorised User in writing (including by email or other electronic means).
You will ensure that you have read, understood and agreed to the most recent terms posted on the AssetAccountant Website or as otherwise notified to you.
1. Definitions and Interpretations
1.1Β Β In this Agreement, unless the context requires otherwise, it is specified otherwise, or it is contrary to applicable regulation:
Additional Support Services means further support services for the Subscription Services provided to Subscriber if it has purchased such support as part of its subscription to the Subscription Services;
Administration Portal means the portal accessible within the Subscription Services by users authorised by the Subscriber that allows the Subscriber to:
(a) add, remove or change Authorised Users;
(b) add, remove or change Subscription Services;
(c) configure Subscription Services; and
(d) add, remove or change details in relation to the Subscriberβs account with AssetAccountant;
Affiliate means any entity that controls, is controlled by or is under common control with a party;
Anonymised means data from which all Subscriber Data and any other data that identifies any other entity has been removed, so that it is no longer possible to re-identify an individual or other entity from the information;
Arbitration Legislation means the Commercial Arbitration Act 2013 (Qld) and the Resolution Institution Arbitration Rules;
AssetAccountant Website means www.asset.accountant or any subdomains or other URL address notified to Subscriber by AssetAccountant from time to time;
Authorised Users means, where Subscriber is using the Subscription Services:
(a) for its own internal business purposes, any employee, contractor, officer or agent of Subscriber who is authorised by Subscriber to access and use the Subscription Services and Documentation; or
(b) to provide accounting and/or tax services (including where Subscriber is a licensed auditor) to its clients, only employees, contractors, officers or agents of Subscriber but not the Subscriberβs clients other than set out in Clause 2.1; and
(c) as a client of Subscriber where Subscriber is an accounting firm. Such Authorised Users may only be provided with Read-Only Access as granted under Clause 2.1.
Basic Support Services has the meaning given to that term in Clause 3.3;
Business Day means a day other than a Saturday, Sunday or public holiday in Brisbane, Australia;
Calculations has the meaning given to that term in clause 10.4(e);
Claim has the meaning given to that term in clause 10.9;
Confidential Information has the meaning set out in clause 9.2;
Dispute has the meaning given to that term in clause 13.1;
Documentation means the documentation (if any) made available to Subscriber by AssetAccountant (whether in hardcopy or electronic form) which sets out a description of the Subscription Services and the user instructions for the Subscription Services;
Effective Date means the date that AssetAccountant provides Subscriber with access to the Subscription Services;
End User Terms and Conditions means the relevant terms and conditions of this Agreement that apply to the Authorised Usersβ access and use of the Subscription Services, and any other terms that are made available through the Subscription Services (as may be amended from time to time by AssetAccountant);
Force Majeure Event means an event as described under clause 14.1;
Harmful Code means any thing or device (including any software, code, file or program) which may:
(a) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device;
(b) prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by rearranging, altering or erasing the program or data in whole or part or otherwise); or
(c) adversely affect the user experience, including worms, trojan horses, malware, viruses and other similar things or devices.
Intellectual Property Rights means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual property rights, whether registered, in the course of being registered or unregistered and any analogous rights worldwide;
Intellectual Property Warranty has the meaning set out in clause 10.1(b);
Jurisdiction means the Commonwealth of Australia;
Other Services means any other services AssetAccountant agrees to provide to Subscriber as set out in clause 3.7;
Other User Data has the meaning set out in clause 7.4;
Personal Data means any information, including information in electronic form, relating to a living person who can be identified:
(a) from that information; or
(b) from that information and the use of additional information, taking into account all means reasonably likely to be used by anyone to identify the person directly or indirectly; and
includes, without limitation, first and last names, ID numbers, including government-issued identifiers, personal dates such as birth dates, email addresses, location data, internet protocol address or other online identifiers and information concerning race, ethnicity or mental or physical health. For clarity, Personal Data includes personal data that is publicly available and excludes personal data that has been Anonymised so that it is no longer possible to re-identify an individual from the information, taking into account all means reasonably likely to be used by AssetAccountant or anyone else to re-identify an individual;
Privacy Policy means AssetAccountantβs privacy policy accessible from the AssetAccountant Website at https://www.asset.accountant/privacy-policy/, within the Subscription Services, or other URL address notified to Subscriber by AssetAccountant from time to time. If there is any inconsistency between the Privacy Policy and these Terms of Use, these Terms of Use will prevail to the extent of any inconsistency;
Purpose means the set up, maintenance and management of fixed asset registers for:
(a) Subscriber and/or any Affiliates in jurisdictions where AssetAccountant may make the Subscription Services available; or
(b) where Subscriber provides accounting services in the course of its business, some or all of that Subscriberβs clients;
Read-Only Access means access to the Subscription Services where the relevant Authorised User may only view the data held within AssetAccountant and may not interact with the data in any other way.
Services means the Subscription Services, Basic Support Services, Additional Support Services (where applicable) and Other Services (where applicable);
Subscriber means the entity that has entered into this Agreement with the relevant AssetAccountant Entity for the provision of the Subscription Services;
Subscriber Data means the data inputted, imported, and/or uploaded, by Subscriber for the purpose of using the Subscription Services or facilitating Subscriberβs use of the Subscription Services, including, where applicable, Authorised Usersβ data and Personal Data;
Subscription Fee means:
(a) the subscription fee payable by Subscriber to AssetAccountant for the access and use of the Subscription Services by Authorised Users;
(b) such other fee for functionality, entity numbers, data volumes or anything else Subscriber has subscribed for,
where fees payable are set out on the AssetAccountant Website at https://www.asset.accountant/;
Subscription Level has the meaning given to that term in clause 3.3;
Subscription Services has the meaning described at the beginning of this Agreement, which is accessible via the AssetAccountant Website;
Term means the term commencing on the Effective Date and ending on termination or expiry of this Agreement in accordance with the terms of this Agreement;
Third Party Provider has the meaning set out in clause 10.5(b).
1.2 In this Agreement, unless the context requires otherwise:
(a) words importing one gender include the others;
(b) words importing the singular or plural number include the plural and singular number respectively;
(c) headings are inserted for the sake of convenience of reference only and do not affect the interpretation of this Agreement; and
(d) a person includes any individual, corporation, unincorporated association, government department or municipal authority.
2. Access to Subscription Services
2.1 AssetAccountant grants to Subscriber a non-exclusive, non-transferable right to:
(a) access and use the Subscription Services that Subscriber has subscribed to, and the relevant Documentation; and
(b) permit the Authorised Users to access and use the Subscription Services and the Documentation,
during the Term, solely for the Purpose, all on the terms and conditions set out in this Agreement.
For the avoidance of doubt, where Subscriber is an accounting firm providing relevant services to its clients, any employee, contractor, officer or agent of that client may be an Authorised User save that, under the grant of this right, they may only be provided with Read-Only Access.
2.2 Subscriber will:
(a) ensure that only Subscriber and Authorised Users access and use the Subscription Services and the Documentation;
(b) keep secure logins and passwords for Subscriberβs access and use of the Subscription Services and Documentation and keep such logins and passwords confidential;
(c) procure that the Authorised Users keep secure logins and passwords for their access and use of the Subscription Services and Documentation and keep such logins and passwords confidential;
(d) procure that the Authorised Users comply with the End User Terms and Conditions and acknowledges that:
(i) AssetAccountant will have no liability to Authorised Users (whether direct or indirect) arising out of or in connection with their use of the Subscription Services;
(ii) any act or omission of Authorised Users relating to the use of the Subscription Services will be treated as Subscriberβs act or omission; and
(iii) AssetAccountant may terminate or change any access privileges or authority Subscriber has granted to any Authorised User if AssetAccountant considers that the relevant Authorised User is in breach of this Agreement or puts Subscriber in breach of this Agreement;
(e) permit AssetAccountant to actively monitor and audit the Subscription Services to establish whether the Subscription Services are being used in accordance with this Agreement;
(f) promptly disable any login account if AssetAccountant discovers that any login details have been provided to any party that is not an Authorised User;
(g) on demand, pay to AssetAccountant an amount of any underpayment of Subscription Fees discovered by AssetAccountant; and
(h) be responsible for determining the level of access that each Authorised User has to access and use the Subscription Services, and Subscriber acknowledges that AssetAccountant will not be responsible for Subscriberβs use of, inability to use, or incorrect use of, the Subscription Services arising out of or in connection with:
(i) any act or omission of the Authorised Users; or
(ii) Subscriber incorrectly granting a level of access to an Authorised User, which that Authorised User is not entitled to.
2.3 Subscriber will not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(i) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Subscription Services and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Subscription Services;
(b) access all or any part of the Subscription Services and Documentation to build a product or service which competes with the Subscription Services and/or the Documentation;
(c) use the Subscription Services and/or Documentation to provide services to third parties (other than to Authorised Users in accordance with this Agreement) except to the extent such use is included in the functionality of the Subscription Services;
(d) make the Subscription Services and/or Documentation available to any third party except the Authorised Users;
(e) attempt to undermine the integrity or security of:
(i) the Subscription Services; or
(ii) AssetAccountantβs, or any third partyβs systems, networks or resources used in the provision of the Subscription Services;
(f) attempt to gain unauthorised access to any information or materials other than those to which Subscriber has been given express permission to access as part of the Subscription Services;
(g) attempt to obtain, or assist third parties in obtaining, access to the Subscription Services and/or Documentation, other than as provided under this clause 2; or
(h) access, store, distribute or transmit any Harmful Code, and AssetAccountant may, without liability to Subscriber, disable Subscriberβs access to the Subscription Services if Subscriber is in breach of this clause.
2.4 Subscriber will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Subscription Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify AssetAccountant.
2.5 If the Authorised User is authorised by the Subscriber as an administrator of the Subscriberβs account with AssetAccountant, that Authorised User may access the Administration Portal.
2.6 Use of the Subscription Services may be subject to limitations, including but not limited to monthly transaction volumes, data limits, user limits and other limits as described in the Documentation. Any changes to these restrictions will be advised to Subscriber in writing.
2.7 Use of the Subscription Services may be available through a compatible mobile device with Internet access and may require software to be installed on those devices. Subscriber agrees that it is solely responsible for meeting these requirements, including any applicable changes, updates and fees as well as the terms of any agreement with its mobile device and telecommunications provider.
3. Services
3.1 AssetAccountant will, during the Term, provide the Subscription Services and make available the Documentation to Subscriber on and subject to the terms of this Agreement.
3.2 AssetAccountant will use commercially reasonable endeavours to provide the Subscription Services.
3.3 AssetAccountant will provide Subscriber with basic helpdesk and/or other services in relation to the Subscription Services (Basic Support Services). Subscriber may change its Subscription Level to include the provision of Additional Support Services.
3.4 Basic Support Services shall consist of an online support system, accessible by Subscriber. Subscriber must make all reasonable efforts to investigate and diagnose technical problems using the online support system. If Subscriber cannot diagnose an issue, Subscriber may raise a support tickets by:
(a) using the functionality within the support system at https://support.asset.accountant; or
(b) sending an email to support@asset.accountant.
AssetAccountant will use reasonable commercial efforts to respond to support tickets within one business day.
3.5 Subscriber acknowledges that AssetAccountant regularly upgrades and updates the Subscription Services and that the Subscription Services are continually evolving. AssetAccountant may update, upgrade and/or vary the Subscription Services at any time provided that the changes do not cause a breach of the security obligations set out in this Agreement.
3.6 Subscriber will, where required, upgrade its software and/or equipment to make efficient use of the Subscription Services. AssetAccountant will provide Subscriber with reasonable notice of any such upgrades required by the Subscriber.
3.7 Subscriber may request AssetAccountant to provide additional services related to its use of the Subscription Services (βOther Servicesβ). AssetAccountant, at its sole discretion may agree to provide these Other Services, and if it so agrees, shall agree related fees before commencing the Other Services. Subscriber notes that AssetAccountant does not provide legal, financial, accounting, tax, real estate or other professional services or advice and AssetAccountant does not provide services related to underlying Subscriber Data.
4. Change in Authorised Users and Subscription LevelsΒ
4.1 Subscriber may add, remove or change the number of Authorised Users by accessing and using the Administration Portal. AssetAccountant will grant, remove or change access to the Subscription Services and the Documentation for the relevant Authorised Users as soon as practicable in accordance with the provisions of this Agreement.
4.2 The parties acknowledge and agree that Subscriber may choose different subscription options or levels where offered by AssetAccountant as part of the Subscription Services (Subscription Level). If Subscriber changes its Subscription Level, no refunds will be paid or credits provided if the Subscription Fees for the new Subscription Level are lower than the Subscription Fees paid for the previous Subscription Level. If Subscriber changes to a Subscription Level where the Subscription Fees are more than the Subscription Fees for the previous Subscription Level, the balance already paid for the rest of the term for the previous Subscription Level will be credited to Subscriberβs account for the new Subscription Level. AssetAccountant will charge Subscriber for any net amount due as a result of the change to Subscription Level and Subscriberβs renewal date for the new Subscription Level will be reset to the next available billing day.
4.3 If Subscriber downgrades its Subscription Level, that may cause the loss of content, or features or capacity in relation to the Subscription Services. If Subscriber chooses to change its Subscription Level, AssetAccountant does not accept any liability for the resulting loss of data, content, features or capacity.
5. Subscriberβs ObligationsΒ
5.1 Subscriber will:
(a) provide AssetAccountant with all necessary cooperation in relation to this Agreement, and all necessary access to such information as may be required by AssetAccountant, so that AssetAccountant can provide the Services including but not limited to Subscriber Data, security access information and configuration services. Subscriber warrants that it is authorised to provide the foregoing information and/or access to AssetAccountant so that AssetAccountant can provide the Services to Subscriber;
(b) comply with all applicable laws and regulations in respect of the collection, use and disclosure of personal information that is included in Subscriber Data with respect to the use of the Subscription Services and its activities under this Agreement;
(c) ensure that it, and its Authorised Users, use(s) the Subscription Services and the Documentation in accordance with this Agreement and the End User Terms and Conditions;
(d) be responsible for all acts and omissions of the other Authorised Users as if those acts and omissions are those of Subscriber;
(e) ensure that its network and systems comply with the relevant specifications as may be specified by AssetAccountant from time to time; and
(f) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to AssetAccountant’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Subscriberβs network connections or telecommunications links or caused by the internet.
6. Charges and PaymentΒ
6.1 Subscriber will pay to AssetAccountant the Subscription Fees for the Subscription Services in accordance with this clause 6.
6.2 AssetAccountant will issue a valid tax invoice to Subscriber for the Subscription Fees at the end of each billing period (or, where relevant, at the time the credit card is billed) as set out on the AssetAccountant Website at https://www.asset.accountant/. Where payment by Subscriber is not made by credit card, invoices will be issued 30 days in advance of the relevant renewal day and payment of each invoice will be due 30 (thirty) days following the date of the invoice. Payment details will be specified on the invoice.
6.3 If Subscriber fails to pay any invoice when due then without prejudice to any other rights and remedies of AssetAccountant:
(a) AssetAccountant may, without liability to Subscriber, disable access to all or part of the Subscription Services, and AssetAccountant will be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and/or
(b) interest will accrue on such due amounts at an annual rate equal to 2% over the then current base overdraft rate of AssetAccountant’s bankers calculated from the due date until the date the amount is paid in full.
6.4 If Subscriber disputes in good faith the whole or any portion of any valid tax invoice, Subscriber will pay the portion of the valid tax invoice that is not in dispute, but may withhold payment of the disputed portion until the dispute is resolved.
6.5 All amounts stated or referred to in this Agreement are exclusive of GST and any other taxes, levies and duties (if any), which will be paid for by Subscriber.
6.6 If Subscriber is required by law to deduct or withhold taxes or charges from the amounts due to AssetAccountant under this Agreement, Subscriber will ensure that the amount due to AssetAccountant is increased so that the payment actually made to AssetAccountant equals the amount due to AssetAccountant as if no such taxes or charges had been imposed.
6.7 AssetAccountant may change the Subscription Fees at any time by giving Subscriber at least 30 daysβ prior written notice.
6.8 CPI Adjustment: Annual Subscription Fees will be increased in line with the Consumer Price Index published by the Australian Bureau of Statistics (https://www.abs.gov.au/statistics/economy/price-indexes-and-inflation/consumer-price-index-australia/latest-release). Note: There will be no change in the annual Subscription Fee if there is a fall in the CPI.
6.9 Subscriber shall allow AssetAccountant to add Subscriberβs name and logo to a list of AssetAccountant customers for reasonable use in marketing and promotion materials, collateral, presentations and publications.
6.10 Accounting Firm packages are available to partner accounting firms who meet each of the following requirements:
(a) The relevant partner agrees to be a part of the AssetAccountant Partner Program (terms available upon request);
(b) The accounting firm must be available to implement AssetAccountant;
(c) The firm must have referred at least one client within the prior 12 month period.
(d) Accounting Firm packages are for use by the accounting firm only. Clients of the relevant accounting firm may be given βview onlyβ access to the register by being invited as βRegister Guestsβ in the system.
7. Subscriber Data and SecurityΒ
7.1 AssetAccountant acknowledges and agrees that Subscriber and/or the other Authorised Users will own all rights, title and interest in and to all of the Subscriber Data and will have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Subscriber Data.
7.2 Where Subscriber Data comprises personal information or data (as may be defined in privacy legislation in the relevant Jurisdiction), AssetAccountant’s Privacy Policy at https://www.asset.accountant/privacy-policy/, will apply.
7.3 AssetAccountant may use Subscriber Data for the purpose of:
(a) performing AssetAccountant’s obligations under this Agreement;
(b) ensuring that Subscriber is complying with this Agreement;
(c) ensuring that the Authorised Users are complying with the End User Terms and Conditions;
(d) improving or enhancing the Subscription Services; and
(e) performing data analysis, machine learning, or cross entity analysis, on an Anonymised basis, including in the manner contemplated in clause 7.5, provided that AssetAccountant complies with its confidentiality obligations under clause 9.
7.4 AssetAccountant’s Subscription Services may offer Subscriber the ability to benchmark Subscriber Data against the data provided by other users of the Subscription Services (Other User Data) and to receive the results of such benchmarking. AssetAccountant will provide at least 30 days notice when the Services include this functionality. If Subscriber does not wish to benefit from the benchmarking offered by AssetAccountant’s Subscription Services, Subscriber may opt-out to decline to participate in the benchmarking by selecting the relevant option in the Administration Portal or such other location within the Subscription Services. If Subscriber is involved in any benchmarking exercises, Subscriber agrees to AssetAccountant using Subscriber Data to benchmark against Other User Data. AssetAccountant may, from time to time, provide Subscriber with such benchmarking results. AssetAccountant does not systematically and/or independently verify Subscriber Data or Other User Data entered into the Subscription Services by Subscriber or other users of the Subscription Services. Therefore, Subscriber acknowledges that any benchmarking or other report generated by the Subscription Services may not be accurate, and under no circumstances does AssetAccountant guarantee the accuracy of any reports generated by the Subscription Services, or accept liability for any form of loss or damage arising out of Subscriberβs use of reports generated through the use of the Subscription Services.
7.5 Each party will take appropriate technical, physical and organisational security measures and safeguards against unauthorised or unlawful processing of the Subscriber Data or its accidental loss, destruction or damage and AssetAccountant will, as part of these measures, back-up Subscriber Data on a regular basis. Subscriber acknowledges that if there is any loss or damage to Subscriber Data, the Subscriberβs sole and exclusive remedy will be for AssetAccountant to use reasonable commercial endeavours to restore the lost or damaged Subscriber Data from the latest back-up of such Subscriber Data maintained by AssetAccountant. AssetAccountant will not be responsible for any loss, destruction, alteration or disclosure of Subscriber Data caused by any third party.
7.6 Each party will notify the other party as soon as reasonably practicable if it becomes aware of any security breach resulting in loss, destruction, or damage to Subscriber Data, and AssetAccountant will immediately make available appropriately skilled personnel to Subscriber to address such breach or occurrence.
7.7 Unless otherwise agreed between the parties in writing, AssetAccountant is under no obligation to prepare or complete security assessments or questionnaires for Subscriber.
8. Intellectual Property Rights
8.1 Subscriber acknowledges and agrees that AssetAccountant and/or its licensors own all Intellectual Property Rights:
(a) in, or created during the performance of, the Services (except Subscriber Data); and
(b) in the Documentation, together with all modifications, enhancements and other developments to the Services and Documentation (whether or not recommended or suggested by Subscriber).
8.2 Except as expressly stated in this Agreement, this Agreement does not grant Subscriber any rights to, or in, the Intellectual Property Rights, or any other rights or licences in respect of the Services or the Documentation.
8.3 AssetAccountant acknowledges and agrees that, subject to clause 8.1, Subscriber owns the Intellectual Property Rights in Subscriber Data. Subscriber grants to AssetAccountant a non-exclusive right to use Subscriber Data in the manner set out or contemplated in this Agreement, and to perform its obligations under this Agreement.
8.4 AssetAccountant confirms that it has all the rights in relation to the Subscription Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
9. Confidentiality
9.1 Each party will treat as confidential all information obtained from the other pursuant to this Agreement. Neither party will divulge such information to any persons (except to its employees (for whom that party will be responsible) and then only to those employees who need to know) without the other partyβs prior written consent.
9.2 In relation to either party, Confidential Information means any information relating to the business or affairs of that party and includes, without limitation, its designs, drawings, manufacturing know how, object codes, source codes, planned modifications to hardware or software, planned enhancements to hardware or software, product knowledge, quality standards, research and development, unpublished specifications, technical information, pricing, manipulated data, business plans, business processes, methodologies, techniques, general know-how, costs and margins, customer lists, financial data, internal price information, market research, marketing plans, sales forecasts and trade secrets, and in the case of Subscriber, includes the Subscriber Data and personal information of individuals provided to AssetAccountant by Subscriber.
9.3 The obligations of confidentiality set out in this Agreement will not apply to Confidential Information which:
(a) is authorised by the disclosing party in writing to not have obligations of confidentiality attached;
(b) at the time of execution of this Agreement is in the public domain or subsequently enters the public domain through no fault on the part of the receiving party or any other person who has similar confidentiality obligations owed to the disclosing party;
(c) the receiving party can show by written record was in the receiving partyβs lawful possession prior to disclosure and had not been obtained by the receiving party from the disclosing party;
(d) the receiving party can show by written record has been lawfully disclosed to the receiving party by a third party having the right to disclose it; or
(e) is independently developed by the receiving party without the benefit or use of any of the disclosing partyβs Confidential Information or knowledge derived from such Confidential Information.
9.4 If the recipient of any Confidential Information is required by any applicable law, court or authority, or professional association, to disclose such Confidential Information to any person, it will:
(a) give the disclosing party prompt written notice of the disclosure, where practicable before it occurs, so that the disclosing party has sufficient opportunity to prevent the disclosure through appropriate legal means;
(b) disclose only that part of the Confidential Information which the recipientβs legal advisors consider is legally required to be disclosed; and
(c) use all reasonable endeavours to obtain an assurance that the Confidential Information disclosed will be treated confidentially by the recipient.
9.5 Subject to clause 11.4(d), each party will on demand and, in any event, on termination of this Agreement, deliver to the other party all Confidential Information and any other document supplied by or obtained from the other party.
9.6 This clause 9 will survive termination of this Agreement.
10. Warranties and Liability
10.1 AssetAccountant warrants that:
(a) the Subscription Services will function substantially as described in the Documentation; and
(b) to the best of its knowledge and belief the Subscription Services do not infringe the copyright of any third party (Intellectual Property Warranty) and AssetAccountant will indemnify Subscriber against any loss or damage that Subscriber incurs arising out of a breach by AssetAccountant of the Intellectual Property Warranty.
10.2 If the Subscription Services do not function substantially in accordance with the Documentation, AssetAccountant will, at its option, either:
(a) modify the Subscription Services to conform to the Documentation; or
(b) provide a workaround solution.
If neither of the options in paragraphs (a) or (b) is commercially feasible, either party may terminate this Agreement by giving written notice to the other party, in which case AssetAccountant will refund to Subscriber all Subscription Fees prepaid to AssetAccountant for unused Subscription Services. Such correction or substitution constitutes Subscriberβs sole and exclusive remedy for any breach of the warranty set out in clause 10.1.
10.3 AssetAccountant will not be liable for a breach of the warranty in clause 10.1 to the extent of any non-conformance which is caused by use of the Subscription Services contrary to the Documentation and any other AssetAccountant instructions, or modification or alteration of the Subscription Services by any party other than AssetAccountant or AssetAccountant’s duly authorised contractors or agents.
10.4 AssetAccountant does not warrant:
(a) that Subscriberβs use of the Subscription Services will be uninterrupted or error-free;
(b) that the Subscription Services, Documentation and/or the information obtained by Subscriber through the Subscription Services will always be available, either in its current form or at all;
(c) that AssetAccountant will support, maintain or continue to offer the Subscription Services;
(d) that the Subscription Services, Documentation and/or the information obtained by Subscriber through the Subscription Services will meet Subscriberβs requirements; and
(e) the accuracy, correctness, reliability and completeness of any information, formulae, or calculation provided through the use of the Subscription Services (together referred to as Calculations). Subscriber acknowledges the results from any Calculations are for informational purposes only, and that the assumptions used and figures generated are for purposes of illustration and reference only, and are subject to change depending on a variety of factors, which may not have been taken into account in the computation. To the maximum extent permitted by law, AssetAccountant will not be liable for any form of loss or damage, arising out of or in connection with Subscriberβs reliance on and use of the Subscription Services. Subscriber agrees that it will not rely solely on the Calculations and will carry out its own calculations (other than by using the Subscription Services) to verify the accuracy, correctness, reliability and completeness of the Calculations.
10.5 Subscriber acknowledges that:
(a) AssetAccountant is not Subscriberβs accountant, tax or other professional advisor and Subscriber is solely responsible for ensuring the accuracy and correctness of any inputs (including Subscriber Data), output or result from Subscriberβs use of the Subscription Services;
(b) AssetAccountant may rely on the provision of services by third parties (including data centre, electricity, telecommunications and outsourcing providers) in order to provide the Subscription Services (Third Party Providers) and that the Subscription Services may be subject to limitations, delays and other problems inherent in the use of such services provided by Third Party Providers; and
(c) AssetAccountant will not be responsible for any delays, delivery failures, or any other loss or damage arising out of or in connection with any services provided by Third Party Providers, including any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet.
10.6 Each party warrants that it is in compliance with all laws, including privacy laws, applicable to the performance of its obligations under this Agreement.
10.7 Except as expressly set out in this Agreement, the Subscription Services and the Documentation are provided on an βas isβ basis and all representations, conditions or warranties (whether express or implied, statutory or otherwise, and including warranties of merchantability and fitness for a particular purpose) in respect of the Subscription Services and Documentation are expressly excluded.
10.8 Subscriber will indemnify AssetAccountant against all costs, losses, expenses and damages arising out of or in connection with, or incurred through:
(a) any claims by a third party against AssetAccountant resulting from use of the Subscription Services and the Documentation by Subscriber and/or other Authorised Users; and
(b) any breach of this Agreement by Subscriber.
10.9 Except where AssetAccountant has liability to Subscriber under clause 10.1(b) and unless stated otherwise in this Agreement, AssetAccountant will not be liable to Subscriber under the law of tort, contract or otherwise for any claim, damages or liability (collectively referred to as a Claim), including loss of profits, loss of revenue, loss of data, or any direct, indirect, consequential or special loss or damage suffered or incurred by Subscriber, however caused, arising out of or in connection with this Agreement.
10.10 If, despite clause 10.9, AssetAccountant is found liable for any Claim (including where AssetAccountant has liability to Subscriber under clause 10.1(b)), then to the maximum extent permitted by law, AssetAccountant’s liability arising out of all Claims under this Agreement will not exceed in aggregate an amount equal to the Subscription Fees actually paid by Subscriber to AssetAccountant in the 12 months prior to time the liability arises.
10.11 Subscriber acknowledges and agrees that no Authorised User (other than Subscriber) may make a claim in relation to this Agreement provided that where any Authorised User suffers any loss or damage which, if suffered by Subscriber, would be recoverable from AssetAccountant then Subscriber may make that claim on the Authorised Userβs behalf. Subscriber will indemnify AssetAccountant against any claims made by any Authorised User in relation to this Agreement.
11. Term and Termination
11.1 This Agreement is in full force and effect during the Term.
11.2 Either party (Terminating Party) may terminate this Agreement without cause as follows:
(a) where the Subscriber is accessing the Services through a monthly contract, by giving the other party at least:
(i) 30 daysβ prior written notice, where Subscriber is the Terminating Party; or
(ii) 120 daysβ prior written notice, where AssetAccountant is the Terminating Party.
(b) where the Subscriber is accessing the Services through a contract other than a monthly (eg, annual) contract, by giving the other party at least:
(i) 30 daysβ prior written notice in advance of the subsequent renewal date, where Subscriber is the Terminating Party; or
(ii) 120 daysβ prior written notice in advance of the renewal date beyond which the Services will no longer be available to the Subscriber, where AssetAccountant is the Terminating Party.
11.3 Either party may terminate this Agreement if the other party:
(a) is in material breach of this Agreement and fails to remedy such breach within 14 days of receiving notice from the other party specifying the breach and requiring it to be remedied; or
(b) goes into liquidation or has a receiver or statutory manager appointed of any of its assets, becomes insolvent or makes any arrangement with creditors.
11.4 On termination of this Agreement for any reason:
(a) all licences granted under this Agreement will immediately terminate and Subscriber must cease using the Subscription Services and the Documentation;
(b) each party will return, and make no further use of, any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(c) Subscriber will be responsible for exporting a copy of the Subscriber Data using download functionality within the Subscription Services prior to termination of this Agreement. If any Subscriber Data is not available AssetAccountant will provide this to Subscriber within 30 Business Days of Subscriberβs request provided such request is made prior to termination of this Agreement. Subscriber acknowledges that exported Subscriber Data cannot be used as a restore function and may not be suitable for import or upload as part of any subsequent subscription to the Subscription Services and/or any other third party system;
(d) Provided that AssetAccountant is complying with relevant laws and regulations and has met its obligations under clause 11.4(c), following termination of this Agreement, AssetAccountant:
(i) will, after 90 days, permanently delete any Subscriber Data from any of its production or other systems; or
(ii) may at its discretion and by providing at least 30 daysβ prior written notice to Subscriber, permanently delete any Subscriber Data from any of its production or other systems;
(e) Subscriber acknowledges and agrees that:
(i) it may not be reasonably practical to permanently delete Subscriber Data where such Subscriber Data is held in backups (12 months maximum retention after termination of this Agreement); and
(ii) permanently deleted Subscriber Data cannot be recovered;
(f) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination (including clauses 7.3 and 11.4) will not be affected or prejudiced;
(h) except where Subscriber has terminated in accordance with clause 11.3, Subscriber will:
(i) not be entitled to a refund of any Subscription Fees prepaid to AssetAccountant for unused Subscription Services; and
(ii) be liable to pay the Subscription Fees on a pro-rata basis for each day up to and including the date of termination of this Agreement to the extent that Subscriber has not paid for the use of the Subscription Services on those days;
(g) notwithstanding clause 11.4(b) AssetAccountant may retain and continue to use after termination of this Agreement any aggregated and Anonymised data that is derived from the Subscriber Data.
12. Subcontracting
12.1 AssetAccountant may subcontract any of its obligations under this Agreement without obtaining Subscriberβs prior written consent.
12.2 Where AssetAccountant subcontracts or transfers any of its material obligations under this Agreement it will provide Subscriber with at least 30 days prior written notice of the subcontract or transfer.
12.3 AssetAccountant will not be relieved from any of its liabilities or obligations under this Agreement as a result of any subcontracting.
13. Disputes
13.1 If a dispute arises out of or relates to this Agreement (Dispute), a party may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with the following paragraphs of this clause, except where the party seeks urgent interlocutory relief.
13.2 A party claiming the Dispute has arisen must give written notice to the other party specifying the nature of the Dispute.
13.3 On receipt of that notice, the parties will use all reasonable endeavours to resolve the Dispute by discussion, consultation, negotiation or other informal means.
13.4 If the Dispute is not resolved within 15 Business Days of the notice being given pursuant to clause 13.2 (or within such further period agreed in writing by the parties), either party may, by giving written notice to the other party, require the Dispute to be determined by the arbitration of a single arbitrator. The arbitrator will be appointed by the parties or, failing agreement within 5 Business Days of the notice requiring arbitration, by the President of the Law Institute of Queensland, on application of either party. The arbitration will be conducted as soon as possible and in accordance with the provisions of the Arbitration Legislation.
14. Force Majeure
14.1 AssetAccountant will have no liability to Subscriber under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, failure of a utility service or transport or telecommunications network or service of a Third Party Provider, act of God, war, riot, civil commotion, malicious damage, epidemic, pandemic, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors, provided that Subscriber is notified of such an event and its expected duration. A strike, lockout or labour dispute involving a partyβs personnel does not excuse that party from its obligations under this Agreement.
15. General
15.1 This Agreement constitutes the entire agreement of the parties about its subject matter and supersedes any previous understanding or agreements on that subject matter.
15.2 This Agreement will not be deemed to create a partnership, joint venture or agency relationship of any kind between the parties.
15.3 If any part or a provision of this Agreement is judged invalid or unenforceable in a jurisdiction it is severed for that jurisdiction and the remainder of this Agreement will continue to operate.
15.4 A provision or a right under this Agreement may not be waived except in writing signed by the party granting the waiver.
15.5 A party may exercise a right, power or remedy under this Agreement 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 under this Agreement does not prevent a further exercise of that or of any other right, power or remedy.
15.6 This Agreement may be varied by AssetAccountant at any time, effective upon the posting of modified terms on the AssetAccountant Website, within the Subscription Services or as otherwise notified to Subscriber in writing (including by email). Subscriber will ensure that it has read, understood and agreed to the most recent terms posted on the AssetAccountant Website, within the Subscription Services or as otherwise notified to Subscriber.
15.7 Subscriber will not, and will procure that other Authorised Users will not, assign, transfer or otherwise deal with this Agreement or any of its rights or obligations under this Agreement, whether in whole or in part, without the prior written consent of AssetAccountant.
15.8 Notices and other communications under this Agreement are to be given in writing by email, personal delivery or by post and must be sent to the correct email or address of the receiving party. The email address for email notices to AssetAccountant is legal@assetaccountant.com.au.
15.9 A notice or communication in relation to this Agreement will be deemed to be received:
(a) in the case of a letter, on the third Business Day after posting;
(b) in the case of email, on the Business Day on which the email is successfully delivered; and
(c) in the case of personal delivery, when delivered.
15.10 This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Australia, and where relevant, the State of Queensland, Australia. If Subscriber seeks to bring any claim or other action against AssetAccountant arising out of or in connection with this Agreement, then Subscriber must bring that claim or other action against AssetAccountant in Queensland, Australia.
15.11 If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
15.12 Subscriber shall not assign the benefit of this Agreement without AssetAccountant’s written consent. Subscriber may not assign or transfer any rights to any other person without AssetAccountant’s prior written consent.
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