Phoenix Live Terms and Conditions
1. Definitions
In these terms and conditions the following words have the meaning set out below unless the contrary intention clearly appears:Accrued Charges means all charges and fees incurred by the Client to the date on which the Client notifies AGDATA of the cancellation of a Service and any outstanding amounts.
AGDATA means AGDATA Australia Pty Ltd ABN 88 016 104 488
Agreement means the agreement between AGDATA and the Client for provision of the Service which agreement is comprised in the Application and these terms and conditions.
Application means the Client's application to AGDATA for provision of the Service.
Cancellation Date means:
a. the date thirty (30) days after the Client notifies AGDATA that the Client wishes to cancel the Service, unless AGDATA, in its sole discretion, agrees in writing to an earlier cancellation date.Client means the person who submits an Application to AGDATA and who acquires and uses the Service provided by AGDATA.
b. the date which is thirty (30) days after AGDATA notifies the Client that AGDATA will be cancelling the Service; or
c. as otherwise set out in the Agreement
Current Version means the version of the Phoenix Software being shipped by AGDATA to new clients from time to time.
Dataset means a set of books as seen by the Phoenix Software.
Fixed-Term Agreement means an Agreement (other than a month-to-month Agreement) between AGDATA and the client in which the Client agrees to use the Service provided by AGDATA for a specified period of time.
Logon means the unique User ID and password issued to the Client by AGDATA to access the Service.
Personnel includes a person or entities, employees, agents, contractors, assigns or other representatives.
Phoenix Software means all versions of the Phoenix software application designed and developed by AGDATA from time to time.
Service means utilising the Phoenix Software in conjunction with the Phoenix Live service, and any related goods and ancillary services provided or to be provided by AGDATA to the Client in connection with that service.
Service Start Date for the Service means the date on which AGDATA starts supplying that Service to the Client as will be notified by AGDATA to the Client after. The Client’s application to use that service has been approved by AGDATA.
Special Offer means an offer by AGDATA to supply the Service on terms and conditions expressly stated by AGDATA in writing at the time the Special Offer is made.
Supplier means any supplier of goods or services (including interconnection services) which are used directly or indirectly by AGDATA to supply the Service to the Client.
Tax means any value-added or goods and services tax, withholding tax, charge (and associated penalty or interest), rate, or duty (excluding capital gains tax) lawfully imposed by any authority from time to time.
2. Term
2.1. The Agreement commences when AGDATA accepts the Application and notifies the client in writing of the acceptance.2.2. AGDATA will commence providing the Service to the Client from the Service Start Date.
2.3. If the Agreement is not a Fixed-Term Agreement, AGDATA will provide the Service to the Client until the Service is cancelled by either party in accordance with the Agreement.
2.4. If the Agreement is a Fixed-Term Agreement, AGDATA will provide the Service to the Client for the period stated in the Fixed-Term Agreement or until the Service is cancelled in accordance with the Agreement, as the case may be.
2.5. If neither party cancels the Service at the end of the Fixed-term, AGDATA will continue to supply the Service to the Client on a month-to-month basis until the Service is cancelled in accordance with the Agreement.
3. Variation of Agreement
3.1. AGDATA may vary any part of the Agreement without the Client’s consent, however must notify the Client of all changes and must afford the Client 7 days to terminate the Agreement with AGDATA. If the Client terminates the Agreement, all amounts owing to AGDATA become immediately due and payable as at the date of termination.3.2. AGDATA, in its absolute discretion, may add to, alter, or remove any part of the Service at any time without notice.
3.3. AGDATA, in its absolute discretion, may alter the fees charged for the Service with thirty (30) days written notice.
4. Application for the Supply of Service
4.1. The Client must own at least one Phoenix Software Licence to become (and remain) eligible to use the Service.4.2. Upon AGDATA’s acceptance of the Client’s application to use the Service, the Client will be entitled to use any Phoenix Software license on the Service which it has previously purchased.
5. Privacy
5.1. AGDATA acknowledges that it does not own any data or information that a Client creates whilst using the Service. AGDATA will not edit, alter, or disclose any encrypted data from a Client’s Datasets unless requested in writing to do so by the Client.5.2. AGDATA reserves the right to disclose any information as required to satisfy any relevant law, regulation, mandatory governmental request or court order.
5.3. AGDATA may collect, use and make reference to any personal information about the Client when making a decision whether to start, stop or limit supply to the Client of personal credit, or the Service.
5.4. AGDATA may, if lawfully entitled or required to do so, use or disclose personal information about the Client to law enforcement agencies and/or government agencies.
5.5. If the Client does not provide part or all of the personal information requested by AGDATA in the Application then AGDATA may refuse to supply, or limit the supply to the Client of, personal credit or the Service.
5.6. AGDATA reserves the right to monitor usage patterns of Clients for statistical, marketing or commercial purposes. AGDATA will not disclose or sell any personal information or disclose the account details of Clients to any third party without first obtaining the Client’s written consent.
6. Using the Service
6.1. The Service always uses the Current Version of the Phoenix Software.6.2. Once the Client’s application has been approved their data will be loaded on to the Service. If the Client’s data is from an earlier version of the Phoenix Software it will be upgraded to the current release version of the Phoenix Software.
6.3. The use of the Service is strictly limited to the use of the Phoenix Software and storage of files directly required for the use of the Phoenix Software. A fixed amount of storage will be provided for each Client for their Phoenix Software related ancillary files. AGDATA, at its sole discretion, may increase or decrease this amount of storage at any time without notice. Files not directly related to the use of the Phoenix Software may be removed without notice. Attempts to store non-related files may be blocked.
6.4. The Client is permitted to use the Service for their exclusive benefit. Unauthorised use of the Service, or the on-selling of the Service is strictly prohibited, and may lead to the termination of the Service. If the Service is terminated pursuant to this clause, any unused entitlements will be forfeited by the Client.
6.5. The Client is solely responsible for the accuracy, quality, integrity, and reliability of all data stored as part of the Service. AGDATA shall not be liable or responsible for the deletion, corruption, destruction, damage, loss, or failure to store any data used as part of the Service.
6.6. Included with the Service is the capability to use up to 5 Datasets. Additional Datasets are available for an additional monthly fee.
6.7. The Client is responsible for all activities that occur under their Logon. If the Client becomes aware that the integrity of their Logon has been compromised by unauthorised use of their Service, or any other breach of security they are to notify AGDATA immediately. AGDATA shall not be responsible for any such breaches of security.
6.8. A Client is entitled to grant access rights to a third party to access the Client’s Datasets. By providing access to a third party to the Client’s Dataset, the Client accepts responsibility for all acts and omissions of the third party and will indemnify AGDATA, and its personnel against all losses suffered by the Client arising out of such access having been granted by the Client.
6.9. The Client shall not take nor permit any other person to take any action to circumvent or attempt to circumvent the security systems of the Service.
7. Fees & Charges
7.1. The Client must pay:7.1.1. The fees and charges for the Service, which are set out in the Agreement, Application or any Special Offer.
7.1.2. Any additional fees and charges noted in the Agreement or notified by AGDATA in accordance with this Agreement.
7.2. The Client must pay the fees and charges for the Service even if the. Client’s access to the Service has been interrupted for a period of time. Should the Client experience an interruption to the Service, the Client may be entitled to a pro-rata refund of the fee charged by AGDATA for the Service in accordance with the terms of the Agreement or as a legal right.
7.3. In addition to the fees charged by AGDATA to the Client for the Service, AGDATA may charge the Client administration fees and other similar charges including suspension fees, cancellation fees, late payment fees, payment dishonour fees or reconnection or reactivation fees and any other fee specified in the Agreement.
7.4. Telephone connection, ISP fees and charges are the Clients responsibility and are additional to the Service fees. The costs associated with connecting to the Service via the Internet are the Client’s responsibility.
8. Payments
8.1. Payment can only be made by Credit Card or Direct Debit. The Client acknowledges that the direct debit arrangement may take up to thirty (30) days from the date of the Client's request to put in place.8.2. Fees & Charges for the Service are processed monthly in advance on the first of the month. Depending on when AGDATA receives your application, the first month will be charged on a pro-rata basis to bring you into line with the usual monthly billing cycle aforesaid. If your application is processed on or before the 10th day of the month then the standard monthly charge will apply. If your application is processed on or between the 11th and 20th days of the month then 2/3 of the standard monthly charge will apply. If your application is processed on or between the 21st and the last day of the month then 1/3 of the standard monthly charge will apply.
8.3. If the Client's payment is not honoured for any reason, AGDATA may charge the Client a dishonour fee equal to the fees applied to AGDATA by the financial institution/s. An administration fee of $10.00 will be charged to the Client for attending to dishonoured payments.
8.4. If the Client has overpaid AGDATA for the service, AGDATA may, at its sole discretion, choose to credit the Client’s account to the value of the overpayment, refund the overpayment to the client or give the Client a partial credit and a partial refund. An administration fee of $10.00 will be charged to the Client for attending to refunds.
9. Cancelling the Service
9.1. AGDATA may cancel the Service at any time without liability if:9.1.1. there is an emergency requiring AGDATA to suspend or cancel the Service;
9.1.2. AGDATA reasonably suspects fraud or other illegal activity by the Client or any other person in connection with the Service utilized by the Client;
9.1.3. any amount owing to AGDATA in respect of the Service is not paid by its due date and the Client fails to pay that amount in full within ten (10) business days after AGDATA gives the Client a notice requiring payment of the outstanding amount;
9.1.4. AGDATA reasonably considers the Client to be a credit risk;
9.1.5. AGDATA is required to do so to comply with an order, instruction, request or notice of a regulator, an emergency services organisation, any other competent authority or by authorisation of or under law;
9.1.6. the Client is a company, the Client becomes insolvent or AGDATA has reason to suspect that the Client is at risk of becoming insolvent;
9.1.7. the Client dies;
9.1.8. if the Client is a partnership, the Client is dissolved or AGDATA has reason to suspect that the Client is at risk of being dissolved;
9.1.9. the Service is suspended for more than fourteen (14) days;
9.1.10. any Intervening Event prevents AGDATA from supplying the Service in accordance with the Agreement for more than fourteen (14) days.
9.2. Any outstanding fees and amounts are due and payable by the Client on the date the Service ends.
9.3. If the Service is cancelled as a result of circumstances reasonably attributable to the Client or as a direct result of the Client’s breach of the Agreement:
9.3.1. during the minimum term, the Client must pay AGDATA a cancellation fee or such higher amount as may be provided in clause 13; and
9.3.2. the Client must pay AGDATA all costs incurred to rectify the Client's breach of the Agreement.
9.4. Upon cancellation of the Service, AGDATA will provide backup copies of all of the Client’s Datasets used as part of the Service to the Client’s latest e-mail address. AGDATA’s responsibility under this clause is to send the backup data to the Client and does not extend to ensuring that backup data is received by the Client.
9.5. The Client’s Datasets will be retained by AGDATA for a period of not less than thirty (30) days from the Cancellation Date, after which time AGDATA will permanently remove and delete the Client’s Datasets from AGDATA’s equipment and records. The Client may request AGDATA to delete the Client’s Datasets any time, however such requests must be made in writing and delivered to AGDATA.
9.6. If the Client is using the Current Version of the Phoenix Software at the time the Client’s application to use the Service is accepted by AGDATA, upon cancellation of the Service by either party, AGDATA will provide the Client with a registered copy of the Current Version of the Phoenix Software equivalent to the Phoenix products being used by the Client on the Service. No additional charge will be levied upon the Client for the provision of such software pursuant to this clause.
9.7. If the Client is not using the Current Version of the Phoenix Software at the time the Client’s application to use the Service is accepted by AGDATA, the Client will, upon cancellation of the Service by either party, pay AGDATA’s standard fee to upgrade from the version of Phoenix software the Client was using immediately prior to using the Service to the Version of Phoenix Software the Client was granted access to when the Client commenced using the Service. Should the Client refuse to pay for the upgrade, AGDATA will provide the Client with an unregistered copy of the Current Version of the Phoenix Software that allows the Client to view their data.
10. Suspending the Service
10.1. AGDATA may suspend the Service at any time, without liability in any of the circumstances described in clause 9.1.10.2. If AGDATA suspends the Service, AGDATA may later cancel the Service for the same or a different reason.
10.3. If the Service is suspended as a result of circumstances attributable to the Client, the Client will be liable to pay AGDATA a suspension fee in the amount of $15.00 per month while the Service is suspended.
11. Liability
11.1. The Client is liable to AGDATA for any breach of the Agreement that causes loss to AGDATA.11.2. Nothing in the Agreement removes or limits any rights that the Client has under existing laws or regulations.
11.3. Under no circumstances will AGDATA or its Personnel be liable for or in relation to any defect, failure, omission or any other deficiency of the Service or the operation thereof caused by or contributed to by use of this Service in conjunction with any equipment in any configuration or network or in any environment exceeding or otherwise inconsistent with those approved in writing or prescribed by AGDATA.
12. General
12.1. Any notice or demand given pursuant to this Agreement shall be in writing and shall be delivered, posted, e-mailed or transmitted by facsimile:12.1.1. to the Client at the Client's e-mail address, address and/or facsimile number indicated on the Application or the Client's latest e-mail address, address and facsimile number notified to AGDATA in writing; and
12.1.2. to AGDATA at AGDATA's latest address and facsimile number indicated on AGDATA's website
