Terms & Conditions
Subscription Terms & Conditions
1.1 To be read in conjunction with the AGDATA Australia Technical Support Policy below.
1.2 The minimum term for a Phoenix Subscription is 12 months.
1.3 Monthly subscription is ongoing and will be automatically charged each month.
1.4 Monthly subscription is only available via Credit Card or Direct Debit.
1.5 AGDATA cannot guarantee that there will not be a delay in the return of a members support call. Support response time may vary, however Phoenix Subscriber phone calls take precedent. AGDATA reserves the right to limit the duration and use of the freecall number if it becomes unreasonable.
1.6 Major upgrades released during the subscriber’s term will be provided to subscribers using current media delivery methods at our discretion.
1.7 Minor updates may not be provided via CD and only be available via download.
1.8 AGDATA does not guarantee there will be an upgrade released during each 12 month subscription period.
1.9 Phoenix Subscription support does not cover hardware issues or Data Repair, only the functionality of Phoenix.
1.10 Free program upgrades and updates does not include additional Phoenix modules or other products launched by AGDATA that the user has not purchased.
1.11 Unpaid accounts may result in the deactivation of software.
Phoenix Live and Phoenix Online Terms & Conditions
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 Holdings Pty Ltd T/A AGDATA Australia ABN 26 147 923 724
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.
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
Client means the person who submits an Application to AGDATA and who acquires and uses the Service provided by AGDATA.
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 or Phoenix Online services, 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.
2.1. 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 fourteen (14) days written notice.
4. APPLICATION FOR THE SUPPLY OF SERVICE
4.1. Upon AGDATA’s acceptance of the Client’s application to use the Service, the Client will be entitled to use the Phoenix Software modules on the Service which the Client has nominated on their Application and the Client is paying for.
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 or for the benefit of other Clients who use the Service. Unauthorised use of the Service, or the onselling 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 regular Service is the capability to use a number of Datasets nominated at the time of Application. Additional Datasets are available for an additional monthly fee.
6.7. AGDATA may offer a complimentary Advisers version of the Service which does not include any Datasets, only the ability to access the Datasets of Clients who have granted access rights to their Dataset.
6.8. 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.
6.9. 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.
6.10. 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.
6.11. AGDATA undertakes to take regular backups of the Service in the form of:
6.11.1. Real time replication from the primary site to a secondary site.
6.11.2. Incremental backups performed nightly to disk and retained for two (2) weeks.
6.11.3. Full backups to disk are performed weekly every Saturday and retained for six (6) weeks. This backup is also written to tape which is taken off-site and retained for four (4) weeks in a third separate location.
6.11.4. A full backup to disk is performed on the first day of every month and retained for six (6) weeks. This monthly full backup is also written to tape which is taken off-site and stored indefinitely in a third separate location.
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.
8.1. Payment for a monthly subscription can only be made by Credit Card or Direct Debit.
8.2. Fees & Charges for the Service are processed monthly in advance and are processed on the anniversary day of the Service Start Date. Where the anniversary day does not occur in the billing month, the charge will apply on the last day of the billing month.
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 may 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.
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 five (5) 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.
9.1.11. the Client has a Complimentary Adviser subscription to the Service, and not used the Service for a period of six (6) months.
9.1.12. the Client has a Complimentary Adviser subscription to the Service, and has cancelled their Phoenix Accountants Network Subscription.
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. If the Client requests cancellation of the Service, the Client's Logon will remain active until the Cancellation Date. It is the Client's responsibility to retrieve any and all copies of their information from the Service prior to the Cancellation Date.
9.5. Upon cancellation of the Service, the Client may request AGDATA provide backup copies of all 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. A fee will apply for the provision of this service.
9.6. 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. Historical copies of the Client’s Datasets will be retained on AGDATA backups as described in clause 6.11.
9.7. Upon cancellation of the Service by either party, the Client may download a trial version of Phoenix Desktop from the AGDATA website for the purpose of restoring the Client’s backups and viewing their data. To be able to edit, modify or print from their data requires a Phoenix subscription. Subscription fees as published on the AGDATA website at the time apply.
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 while the Service is suspended.
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.
12.1. Any notice or demand given pursuant to this Agreement shall be in writing and shall be delivered, posted or e-mailed::
12.1.1. to the Client at the Client's e-mail address or address indicated on the Application or the Client's latest e-mail address or address notified to AGDATA in writing; and
12.1.2. to AGDATA at AGDATA's latest e-mail address or address indicated on AGDATA's website at www.agdata.com.au.
13. SPECIAL TERMS & CONDITIONS
13.1. The Agreement is a Fixed-Term Agreement with a minimum term of twelve (12) months (or as indicated on the Application). Therefore, if the Agreement is terminated during the minimum term for any reason the Client shall be liable to pay to AGDATA a cancellation fee equivalent to the sum of the monthly access charge payable to AGDATA multiplied by the number of months (or part of a month) in the unexpired portion of the minimum term.
13.2. By using the Service the Client is to comply with and consent to agrees to and accepts the Microsoft SPLA End User License Terms and Phoenix Desktop Terms & Conditions as detailed on AGDATA's website at www.agdata.com.au
Phoenix Desktop Terms & Conditions
1. License Agreement
1.1. This license agreement is between AGDATA Holdings Pty Ltd trading as AGDATA Australia (AGDATA) and the person, corporation, association or entity whose details have been provided to AGDATA at the time of purchasing a license to operate any Software Program produced or supplied by AGDATA (the Licensed User).
1.2. Use of any software supplied by AGDATA, including but not limited to software programs known as “Phoenix Financial Pro”, “Phoenix Financial”, “Phoenix Financial Lite”, “Phoenix Budget Planner”, “Phoenix Power Budgets”, “Phoenix Mapping”, “Phoenix Cropping”, “Phoenix Livestock”, “Phoenix Grazing” and/or “Phoenix Weather” (hereinafter referred to collectively as "the Software" and hereinafter referred to individually as “the Software Program”) is subject to the terms and conditions stated in this License Agreement.
1.3. Activation of a Software Program by a Licensed User associates the use of the Software Program with a specific device or computer. During activation, the Software Program will send information about the Software Program and the device or computer to AGDATA. This information includes the version, the license version, language and product key of the Software Program, the internet protocol address of the device or computer and information derived from the Microsoft Windows installation of the device. By activating the Software Program, you consent to the transmission of this information. Unless the Software Program is activated, you have no right to use the Software Program. This is to prevent unlicensed use. You are not permitted to bypass or circumvent the activation process.
1.4 BEFORE ACTIVATING ANY SOFTWARE, PLEASE READ THIS LICENSE AGREEMENT VERY CAREFULLY. BY ACTIVATING A SOFTWARE PROGRAM, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT ACTIVATE ANY SOFTWARE SUPPLIED BY AGDATA. Instead, return the Software to the place of purchase together with all packaging, manuals and other material, documents or information provided to you at the time of purchase. A repackaging and/or a restocking fee may apply.
2. Permitted Use
2.1. Subject to these Terms & Conditions and in consideration for the payment of the applicable License Fee to AGDATA for each Software Program that the Licensed User intends to activate, AGDATA grants to the Licensed User a non-exclusive and non-transferable license to use the respective Software Program on one computer (the Authorised Computer) from the date the Licensed User purchased the license until such time as the license expires in accordance with these Terms & Conditions. All Software Programs are licensed, not sold to the Licensed User. This License Agreement only gives you some rights to use the features of one or more Software Programs for which you have paid the applicable subscription fee. Some functionality is only available for a fee in addition to the applicable subscription fees. Any such additional fees and charges to the Licensed User are specified at the time of enabling such functionality within the Software. By way of example, Bank Feeds may only be available for additional charge.
2.2. All AGDATA Software is supplied for installation onto one Authorised Computer only, and the Licensed User shall take all necessary steps to ensure that the Software is not installed or copied onto any computer other than the Authorised Computer unless in accordance with these Terms & Conditions. For the sake of clarity, all AGDATA software is licensed on a per copy per device basis. A hardware partition or blade is considered to be a separate device.
2.3. Hardware or software that you may use to pool connects, reroute information or reduce the number of devices or users that directly access or use AGDATA Software (sometimes referred to as “multiplexing” or “pooling”) does not reduce the number of licenses you need to operate the Software or a Software Program.
2.4. If you are licensed to use a Software Program on a subscription basis, your rights to use the Software Program are limited to the subscription period.
3. COPYRIGHT, REPRODUCTION & USE FOR INTENDED PURPOSE
3.1. The Software is Copyright (C) 2006-2017 by AGDATA Holdings Pty Ltd trading as AGDATA Australia, 122 Russell Street, Toowoomba, QLD, 4350, Australia. The program code of the Software is subject to strict copyright and remains the sole property of AGDATA. The Licensed User is hereby expressly prohibited from, or enabling a third party to adapt, disassemble, decompile, or reverse engineer the Software or a Software Program, whether in whole or part.
3.2. All manuals and all other written material relating to a Software Program, supplied by AGDATA to the Licensed User are also subject to strict copyright. No part of those manuals or materials may be reproduced, stored in a retrieval system, or transmitted in any form without the prior written permission of AGDATA Australia.
3.3. The Licensed User acknowledges and agrees that, as between AGDATA and the Licensed User, all rights and/or intellectual property in any Software or Software Program belongs to and vests in AGDATA alone. Nothing in this agreement will be constructed as conferring upon the Licensed User any right or interest in the intellectual property rights other than the license to use the Software Program in accordance with the terms and conditions stated herein. The Licensed User hereby agrees to indemnify AGDATA against all liabilities, costs and expenses that AGDATA may incur as a result of any act or omission by the Licensed User which results in the infringement, or any challenge to the sole ownership by AGDATA of any of the intellectual property rights in the Software or a Software Program, by the Licensed User or a party being assisted by the Licensed User.
3.4. The Licensed User is expressly prohibited from selling, leasing, lending, sub-letting, distributing or otherwise transferring, in any form, the Software to any person, corporation or entity without the express written permission of AGDATA. It is illegal to make or distribute copies of the Software except to make a backup copy for archival purposes only. Duplication of the Software for any other reason including sale, loan, rental, or gift is illegal. The Software is supplied to the Licensed User solely for the management of the Licensed User`s financial, trading and production data only.
3.5. The Licensed User is expressly prohibited from modifying, adapting, translating, reverse engineering, decompiling or disassembling the Software and/or any Software Program, or creating another computer program based, whether in whole or in part, on the Software or any Software Program.
3.6 No Software Program may be used to record or create financial, trading or production data belonging to any person or entity that the Licensed User has no financial interest in. For the sake of clarity, a Software Program may only be used by a Licensed User for its own internal business purposes and the Licensed User must not provide any Software Program or the benefit of any Software Program to any other person or entity unless expressly agreed to by AGDATA.
4. ACCEPTANCE OF TERMS & CONDITIONS OF AFFILIATED OR ASSOCIATED SOFTWARE
5. Bank Feeds
5.1. By registering for Bank Feeds the Licensed User is giving their bank, other nominated financial institution, or data aggregator (hereinafter referred to collectively as "Bank Feed Providers" and hereinafter referred to individually as “Bank Feed Providers”) permission to provide AGDATA transactional data for the account/s that the Licensed User nominates. The Licensed User may be required to provide the Bank Feed Provider a hardcopy authority or consent form as evidence of their permission.
5.2. The Licensed User may only use Bank Feeds for accounts attached to their business. Bank Feeds are only available for a Licensed User who holds a current Phoenix Live subscription or Phoenix Desktop subscription as specified on the AGDATA website (www.agdata.com.au). The Licensed User’s Bank Feeds will be automatically cancelled when their subscription is cancelled.
5.3. AGDATA may pay the Licensed User’s Bank Feed Provider fees for providing transactional information. The Licensed User’s Bank Feed Provider may stop supplying AGDATA with transactional information without notice to AGDATA or the Licensed User. No form of agency, partnership, joint venture or any other form of relationship exists between the Licensed User’s Bank Feed Provider and AGDATA.
5.4. The Licensed User may cancel a Bank Feed by advising their Bank Feed Provider in writing.
5.5. AGDATA may charge fees in addition to the Licensed User’s Phoenix Live subscription or Phoenix Desktop subscription for supplying for bank feeds. The fees and charges to supply a Bank Feed to the Licensed User are specified at the time of applying for the Bank Feed from within the Phoenix program. AGDATA, in its absolute discretion, may alter the fees charged for Bank Feeds with 14 days written notice.
6. INSTALLATION, RE - ACTIVATION & ADDITIONAL ACTIVATIONS
6.1. An Internet connection is required for all activation processes of the Software.
6.2. AGDATA Software may automatically deactivate if a Software Program is transferred from an Authorised Computer to a replacement computer or if significant changes are made to the Authorised Computer on which the Software Program was initially activated. If that occurs, please contact AGDATA for a new activation code.
6.3. The Licensed User may elect to deactivate the Software or a Software Program on the Authorised Computer and subsequently activate the Software or a Software Program (as the case may be) on another computer free of charge, provided both the original Authorised Computer and the secondary computer are connected to the internet and the Licensed User carries out that process in accordance with AGDATA’s requirements specified in the published Help System within the Software. Upon deactivation of the Software or a Software Program on the Authorised Computer and subsequent activation of same on the secondary computer, the secondary computer will become (and take the place of) the Authorised Computer, for the purpose of this License Agreement.
6.4. In the event a Licensed User wishes to run Software or a Software Program on an additional computer (that is, have more than one Authorised Computer), an additional subscription for the secondary activation may be purchased and will be offered by AGDATA at a discounted rate.
7. SOFTWARE UPGRADES & TECHNICAL SUPPORT
7.1. All Software produced by AGDATA is modular and therefore, from time to time, AGDATA will provide updates for those modules. To upgrade a Software Program, the Licensed User must first be licensed to use the Software Program that is eligible for upgrade. Upon the upgrade being installed, this agreement takes the place of the agreement for the Software Program that you upgraded from. After you upgrade a Software Program, you may no longer use the Software Program that you upgraded from.
7.2. Upgrades may require the Licensed User to undergo additional training. If additional training is required, such training will be provided by AGDATA for a fee to be determined by AGDATA, to be calculated in accordance with its prevailing rates at that time.
7.3. A Licensed User may continue to use a version of any Software Program without upgrading it. The license to use non-upgraded version of any Software Program shall automatically lapse when AGDATA, in its sole discretion, elects to cease providing technical support for the non-upgraded version of the Software Program or the Licensed User’s subscription has lapsed. If the Licensed User has informed AGDATA of its current contact details, AGDATA will provide the Licensed User with 30 days’ notice of its intention to cease providing Technical Support and/or other services in relation to the subject Software Program.
7.4. AGDATA provides technical support to Licensed Users in accordance with its Technical Support Policy, a copy of which can be obtained from the Support page of the AGDATA website (www.agdata.com.au).
8. SUSPENSION OR TERMINATION OF LICENSE
8.1. AGDATA hereby expressly reserves the right to suspend or terminate the Licensed User’s license for the Software or any Software Program if, in AGDATA’s reasonable opinion:
- The Licensed User is in substantial breach of these Terms & Conditions;
- The Licensed User remains financially indebted to AGDATA for a period of 14 days after AGDATA has submitted a written demand for payment;
- It is permitted to do so pursuant to these Terms & Conditions.
9. APPLICABLE LAW
9.1. This agreement is governed by the law of Queensland and the courts of Queensland have jurisdiction in respect of any disputes or matters arising between the parties in respect of this agreement. It is expressly agreed that this agreement was entered into at the principal office of AGDATA, being Russell Street, Toowoomba, Queensland.
10. LIMITATION OF WARRANTY
10.1. All AGDATA Software comes with guarantees that cannot be excluded under the Competition and Consumer Act 2010 (“the CCA”). The Licensed User is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage, and is entitled to have the Software repaired or replaced if the Software is not of an acceptable quality and the failure does not amount to a major failure. The Licensed User must notify AGDATA of any alleged defect in the Software as soon as reasonably possible after any such defect becomes evidence and allow AGDATA to inspect the Software. AGDATA excludes any and all conditions, warranties and terms implied by statute, general law, international convention or custom, except any implied condition or warrant the exclusion of which would contravene the provisions of any statute or cause any part of this agreement to be void. Under various State, Territory and Commonwealth law (including the CCA), certain statutory guarantees and warranties are implied and may not be excluded or avoided by AGDATA (“non-excluded warranties”). Nothing in this agreement purports to modify or exclude any non-excluded warranties.
10.2. AGDATA may make available access to third party data servers for use within one or more Software Programs, however AGDATA does not warrant or guarantee the continuity of such service. AGDATA expressly reserves the right to withdraw access at any time without notice.
10.3. Except as expressly set out in this agreement and the non-excluded warranties, AGDATA gives no warranties and makes no other representations (including but not limited to the quality or suitability of the Software or a Software Program), and AGDATA’s liability in respect of any warranties is limited to the fullest extent permitted by law.
10.4. Unless otherwise specified by AGDATA or required as a matter of law, all warranties given by AGDATA are limited to the replacement or repair of the Software and excludes cartage charges to or from AGDATA’s premises. Unless required by law as part of a non-excluded warranty, AGDATA shall not be liable for labour, travelling and any other incurred expenses in the removal and/or re-installation of any data, Software or Software Program. AGDATA accepts no liability for faults arising from the improper use or faulty maintenance of the Software or a Software Program, incorrect installation, improper operation beyond recommenced specifications or contingent or consequential loss or damage in any situation whatsoever.
10.5. If the Licensed User is not a “Consumer” within the meaning of the CCA, AGDATA’s liability for any defect in or damage to the Software or a Software Program is:
- Limited to the value of any express warranty provided to the Licensed User by AGDATA in AGDATA’s sole discretion;
- Limited to any warranty to which AGDATA is entitled, if AGDATA did not manufacture the Software or the Software Program;
- Otherwise negated absolutely.
10.6. If AGDATA is liable for a breach of any condition or warranty implied by the CCA in respect of the Software or a Software Program, AGDATA’s liability is limited to, at the election of AGDATA:
- In respect of any service provided by AGDATA, either the resupply of the service or the payment of the cost of having the service resupplied; and
- In respect of the supply of any goods (including but not limited to the supply of Software or any Software Program), either the replacement or repair of the goods in respect of which the breach occurred;
- Or the refund of any money the Licensed User has paid for the goods or services.
10.7. Subject to the above, AGDATA’s liability for any loss or damage suffered by the Licensed User in connection with the supply of any goods and/or services by AGDATA (including liability for any negligent act or omission), shall be limited to the price paid for the goods or service and AGDATA shall under no circumstance be liable for consequential or indirect damages arising out of or in connection with this agreement (including, without limitation, loss of profits or damage suffered as a result of claims by any third person).
10.8. AGDATA shall not be liable for any defect, damage or liability which may be caused or partly caused by or arise as a result of:
- the Licensed User failing to properly use, operate and/or maintain any goods (including Software and/or a Software Program);
- the Licensed User using the Software and/or a Software Program for any purpose other than that for which they were designed and licensed, or making any unauthorised modification to same;
- the Licensed User continuing the use of any Software or Software Program after any defect became apparent or should have become apparent to a reasonably prudent person or user;
- the Licensed User, its employees or contractors failing to strictly follow any instructions, guidelines or manuals provided by AGDATA or any work place health and safety legislation or guidelines, or to provide property procedures or training for its employees and contractors;
- any accident or act of God.
11. PRIVACY ACT
11.1. The Licensed User agrees that personal credit information provided may be used and retained by AGDATA for the following purposes (and for other purposes as agreed between the Licensed User and AGDATA from time to time, or as required by law):
- the provision of goods or services to the Licensed User;
- the marketing of goods or services by AGDATA, its agents or distributors; and/or
- analysing, verifying and/or checking the Licensed User’s credit, payment and/or status in relation to the provision of goods and/or services; and /or
- processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Licensed User; and/or
- the operation of the Licensed User’s account and/or the collection of amounts outstanding in the Licensed User’s account in relation to any goods and/or services provided by AGDATA.
12.1. If any provision of this agreement is held to be invalid, unenforceable or illegal, the offending provision will be severed from this agreement and the remaining parts of this agreement shall remain in full force and effect.
Microsoft SPLA End User License Terms
This document governs the use of Microsoft software, which may include associated software, media, printed materials, and “online” or electronic documentation (individually and collectively, “Products”) provided by AGDATA Holdings Pty Ltd (hereinafter referred to as “Customer”). Customer does not own the Products and the use thereof is subject to certain rights and limitations of which Customer must inform you. Your right to use the Products is subject to the terms of your agreement with Customer, and to your understanding of, compliance with, and consent to the following terms and conditions, which Customer does not have authority to vary, alter, or amend.
“Client Software” means software that is installed on a Device that allows the Device to access or utilize the Products.
“Device” means each of a computer, workstation, terminal, handheld PC, pager, telephone, personal digital assistant, “smart phone,” server or any other hardware where software can be installed that would allow End User to interact with the Product.
“End User” means an individual or legal entity that obtains Software Services directly from Customer, or indirectly through a Software Services Reseller.
“Redistribution Software” means the software described in Paragraph 4 (“Use of Redistribution Software”) below.
“Software Services” means services that Customer provides to you that make available, display, run, access, or otherwise interact, directly or indirectly, with the Products. Customer must provide these services from data center(s) through the Internet, a telephone network or a private network, on a rental, subscription or services basis, whether or not Customer receives a fee. Software Services exclude any services involving installation of a Product directly on any End User device to permit an End User to interact with the Product.
2. OWNERSHIP OF PRODUCTS
The Products are licensed to Customer from an affiliate of the Microsoft Corporation (collectively “Microsoft”). Microsoft Products are protected by copyright and other intellectual property rights. Products and other Product elements including but not limited to any images, photographs, animations, video, audio, music, text and “applets” incorporated into the Products are owned by Microsoft or its suppliers. You may not remove, modify or obscure any copyright trademark or other proprietary rights notices that are contained in or on the Products. The Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Your possession, access, or use of the Products does not transfer any ownership of the Products or any intellectual property rights to you.
3. USE OF CLIENT SOFTWARE
You may use the Client Software installed on your Devices only in accordance with your agreement with Customer and the terms under this document, and only in connection with the Software Services, provided to you by Customer. The terms of this document permanently and irrevocably supersede the terms of any Microsoft End User License Agreement that may be presented in electronic form during the installation and/or use of the Client Software.
4. USE OF REDISTRIBUTION SOFTWARE
In connection with the Software Services provided to you by Customer, you may have access to certain “sample,” “redistributable” and/or software development software code and tools (individually and collectively “Redistribution Software”). You may use, copy and/or install the Redistribution Software only in accordance with the terns of your agreement with Customer and this document and/or your agreement with Customer.
You may not make any copies of the Products; provided, however, that you may (a) make one copy of Client Software on your Device as expressly authorized by Customer; and (b) you may make copies of certain Redistribution Software in accordance with Paragraph 4 (Use of Redistribution Software). You must erase or destroy all such Client Software and/or Redistribution Software upon termination or cancellation of your agreement with Customer, upon notice from Customer or upon transfer of your Device to another person or entity, whichever occurs first. You may not copy any printed materials accompanying the Products.
6. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY
You may not reverse engineer, decompile, or disassemble the Products, except and only to the extent that applicable law, notwithstanding this limitation, expressly permits such activity.
7. NO RENTAL
You may not rent, lease, lend, pledge, or directly or indirectly transfer or distribute the Products to any third party, and may not permit any third party to have access to and/or use the functionality of the Products except for the sole purpose of accessing the functionality of the Products in the form of Software Services in accordance with the terms of this agreement and any agreement between you and Customer.
Without prejudice to any other rights, Customer may terminate your rights to use the Products if you fail to comply with these terms and conditions. In the event of termination or cancellation of your agreement with Customer or Customer’s agreement with Microsoft under which the Products are licensed, you must stop using and/or accessing the Products, and destroy all copies of the Products and all of their component parts within thirty (30) days of the termination of your agreement with Customer.
9. NO WARRANTIES, LIABILITIES OR REMEDIES BY MICROSOFT
Microsoft disclaims, to the extent permitted by applicable law, all warranties and liability for damages by Microsoft or its suppliers for any damages and remedies whether direct, indirect or consequential, arising from the Software Services. Any warranties and liabilities are provided solely by Customer and not by Microsoft, its affiliates or subsidiaries.
10. PRODUCT SUPPORT
Any support for the Software Services is provided to you by Customer or a third party on Customer’s behalf and is not provided by Microsoft, its suppliers, affiliates or subsidiaries.
11. NOT FAULT TOLERANT
The Products are not fault-tolerant and are not guaranteed to be error free or to operate uninterrupted. You must not use the Products in any application or situation where the Product(s) failure could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (“High Risk Use”).
12. EXPORT RESTRICTIONS
The Products are subject to U.S. export jurisdiction. Customer must comply with all applicable laws including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information, see www.microsoft.com/exporting/.
13. LIABILITY FOR BREACH
In addition to any liability you may have to Customer, you agree that you will also be legally responsible directly to Microsoft for any breach of these terms and conditions.
14. INFORMATION DISCLOSURE
You must permit Customer to disclose any information requested by Microsoft under the Customer’s Agreement. Microsoft will be an intended third party beneficiary of your agreement with Customer, with the right to enforce provisions of your agreement with Customer and to verify your compliance.
Technical Support Policy
AGDATA Australia is committed to providing the best available technical support to its clients.
All clients with a registered Current Version of Phoenix have access to free updates. These updates may be downloaded from within the client’s installed and activated version of Phoenix.
There is an in-built Help System and Tutorial Videos which are accessed from the Help menu within Phoenix.
Current Version: The current version of Phoenix is the version being sold by AGDATA to new clients at that point in time.
Data Repair: Repairing incorrect information in a Set of Books and includes the following situations:
a. where the client’s records have become corrupted due to external factors, including but not limited to, hardware failure, faulty backups, attempted access of data files using software other than Phoenix;
b. correcting data due to improper use of the software;
c. providing assistance as a result of failing to correctly set up and/or install Phoenix or hardware.
Phoenix: The range of software products offered by AGDATA as listed on the Products page of the AGDATA website (www.agdata.com.au).
Program Fault: An error, flaw, failure or fault which causes Phoenix to produce an incorrect or unexpected result, or to behave in an unintended manner.
Support Plan: No longer relevant. All Phoenix Subscriptions now get free support.
Support Incident: an advisory service provided by AGDATA to the client, whether by telephone, via on-line interaction, by email or by other means, in relation to the technical use and application of Phoenix, excluding Data Repair, where the client is provided with one or more of the following:
a. Information that resolves the issue being experienced by the client;
b. Information on how to obtain a solution that will resolve the issue being experienced by the client;
c. Advice that the issue being experienced by the client is a known, Program Fault or an incompatibility issue with Phoenix;
d. Information that identifies the issue being experienced by the client as one that is related to hardware or equipment;
e. Information that identifies the problem being experienced by the client as one that is related to a third-party product.
Training: Any instruction given by AGDATA to the client on how to utilise any aspect of Phoenix.
2. Supported Versions of Phoenix
AGDATA provides Technical Support for the Current Version and the version prior.
3. What is covered as technical support?
AGDATA provides technical support to its clients relating to the use of Phoenix. Technical Support may include the provision of assistance to identify a Support Incident or Program Fault.
AGDATA does not provide advice or support in relation to hardware or any software (including, but not limited to, email programs, web browsing programs or security programs) that are not produced by AGDATA.
Data Repair is not classified as technical support, and is provided on request in accordance with our standard chargeable rates.
Training is not classified as technical support; however, training packages can be purchased separately. Clients are encouraged to contact AGDATA if they require additional training support.
It is important to note that the provision of Technical Support is not intended to be, nor should be interpreted as, the provision of accounting, taxation or financial advice by AGDATA. AGDATA does not provide such advice. If a client requires advice on such matters, AGDATA recommends engaging the services of a licensed, professional advisor.
4. What is chargeable technical support?
Any assistance or support provided by AGDATA to the client that is not the result of a Program Fault is charged in accordance with AGDATA’s prevailing rates at that time.
5. What is not chargeable technical support?
Any assistance or support provided to a client by AGDATA to rectify a Program Fault will not be charged to the client. AGDATA will repair Program Faults prioritised according to severity. High priority Program Faults will be repaired in the Current Version. Program Faults of a lower priority will be repaired at AGDATA’s discretion.
If a Program Fault is found in the version preceding the Current Version, no software updates will be provided for the superseded version. If a high priority Program Fault is found to exist in the Current Version of Phoenix, the Program Fault will be repaired in the Current Version and released as a free update for all registered users of the Current Version.
Users of older versions will be required to upgrade to the Current Version to access the repair. Fees for upgrades will be notified via direct correspondence with the Licenced User.
If AGDATA is unable to provide the client with a solution to a Program Fault, no support charges shall apply.
AGDATA will not apply any charges to assist clients to install a current version of Phoenix on computers running a correctly installed and configured version of Microsoft Windows or to assist clients to set up and connect to Phoenix Live or to the Phoenix Warehouse.
6. Charging Policy
Due to the user-friendly nature of Phoenix, many users are self-reliant and require little to no on-going support. To ensure our clients have access to the most up-to-date information regarding Phoenix, the inbuilt Help System is included in each program update. Clients are encouraged to review these resources before seeking technical support.
To ensure equality and fairness for all our clients, AGDATA’s Technical Support is charged on a “user pays” basis. Therefore, our clients may choose to address any technical issues free of charge by accessing the resources referenced above, or by contacting us and incurring a fee for that support.
Clients with a current Subscription are not charged for technical support even if the answer can be found in the supporting program documentation. Clients without a current Subscription who require technical support are charged on a per Support Incident basis.
7. What happens if a support technician is unavailable when I call?
Clients with a current Subscription
If a client calls and a support technician is not available AGDATA will take their details and the first available support technician will return their call. Priority is given to clients with a Subscription.
Clients without a current Subscription
If a client calls and a support technician is not available, the client will be asked to call back in 15 to 20 minutes.
If a support technician is not available when the client calls a second time, AGDATA will take their details and a support technician will return their call.
Support Call Priority
Clients with a current Subscriptions receive priority both for incoming calls as well as call-backs.
8. Fair Use Policy
AGDATA wish to ensure that all clients can access technical support assistance within a reasonable period. Accordingly, we have created a Fair Use Policy which applies to usage of the technical support service for those clients with a current Subscription.
It is “unreasonable use” of the Subscription where a client’s use of that service is reasonably considered by AGDATA to be fraudulent use, to be contrary to the way the Subscription is intended to be used (“Intended Use”), or to adversely affect AGDATA or other AGDATA clients’ use of or access to the Subscription.
“Fraudulent use” shall include, but not be limited to, accessing the Subscription on behalf of AGDATA clients without a valid Subscription, or otherwise allowing someone else to access or use the Subscription.
Amongst other things, use that is contrary to the Intended Use, includes:
a. using the Subscription in a way that an ordinary person could reasonably regard as being used in a manner that was not intended by AGDATA;
b. consistently using the Subscription to address issues that have previously been addressed by a support technician and which re-occur because of the client failing or refusing to follow advice provided by a support technician.
If AGDATA determines that a client’s use of technical support and/or the Subscription is unreasonable, AGDATA will contact the client and discuss changing their usage so that it conforms to the Fair Use Policy. If the unreasonable use continues after that time, the client will be notified in writing and shall, for the period stated in the said notice, be charged for ongoing support services in accordance with AGDATA’s standard rates.
9. How to access technical support
AGDATA has telephone technical support available from 8:45am – 5:00pm AEST, each business day except for Tuesday when support is available from 9:00am – 5:00pm AEST. Support is unavailable on public holidays gazetted for Queensland.
Each support call will be put through to the first available appropriate technician.
Each year the AGDATA office is closed for a period over Christmas and New Year. During this period support is only available via email or fax and only urgent support issues are attended to during this period. All other requests for support will be attended to when the office re-opens.
Clients with a current Subscription have access to a 1800 number and are recommended to utilise that number when support is required. Clients who do not have a current Subscription may seek support by calling AGDATA on 07 4632 8488.