Terms & Conditions

Phoenix Desktop, Live, and Online Terms & Conditions

• 1. Definitions

  In these Terms and Conditions, the following words have the meaning set out below unless the contrary intention clearly appears:
  

  a. 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.

  b. Activation means a technical process that validates that the Client has a current Agreement or Fixed Term Agreement with AGDATA and that the Phoenix Software is being used according to the terms set out in that Agreement or Fixed Term Agreement.

  c. AGDATA means AGDATA Holdings Pty Ltd ABN 26 147 923 724

  d. Agreement means the agreement between AGDATA and the Client for provision of the Phoenix Software or the Service, which consists of the Application and these terms and conditions.

  e. AI means any artificial system designed or intended to generate outputs, predictions, content, recommendations, or decisions based on the input provided to it.

  f. Application means the Client’s application to AGDATA for the provision of the Service.

  g. Bank Feeds means transaction history shared from the Client’s bank/s via an accredited data recipient in accordance with the Competition and Consumer (Consumer Data Right) Rules 2020, which form part of the CCA, and is provided for the purpose of data entry and monthly account reconciliation.

  h. Cancellation Date means:

  1. the effective date of cancellation permitted under this Agreement (excluding termination for convenience by the Client, which is not permitted during a Term), unless AGDATA, in its sole discretion, agrees in writing to an earlier cancellation date.
  2. the date which is thirty (30) days after AGDATA notifies the Client that AGDATA will be cancelling the Agreement; or
  3. as otherwise set out in the Agreement

  i. CCA means the Competition and Consumer Act 2010.

  j. Client means the person who submits an application to AGDATA and who acquires and uses the Phoenix Software or the Service provided by AGDATA.

  k. Concurrent User means the number of concurrent logins to the Service from different Devices.

  l. Contact means any accountants, agents, assignees, consultants, employees, partners or relatives of a Client who are authorised by the Client to utilise the Phoenix Software or the Service and noted in AGDATA’s records.

  m. Current Version means the version of the Phoenix Software being sold by AGDATA to new clients from time to time.

  n. Data means any communications, including but not limited to emails, phone calls, and text messages, screenshots, subscription details and status, or contact information for Clients and Contacts.

  o. Data Repair means repairing incorrect information in a Set of Books and includes the following situations:

  1. 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.
  2. correcting data due to improper use of the Phoenix Software.
  3. providing assistance as a result of failing to correctly set up and/or install the Phoenix Software or hardware.

  p. Dataset means a set of books as seen by the Phoenix Software and identified by a dataset ID.

  q. Device means any computer, tablet or smartphone.

  r. File Library means the digital document storage designed to store and attach receipts, invoices and other documents to their associated transactions within the Client’s Dataset/s.

  s. 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 Phoenix Software or the Service provided by AGDATA for a specified period of time.

  t. Included Services means Bank Feeds and File Library.

  u. Intellectual Property means:

  1. patents and patent rights, rights of priority, mask work rights, copyrights, moral rights, trade secrets, know-how and any other form of intellectual or industrial property rights.
  2. any other protected rights or assets and any licences and permissions in connection therewith.
  3. trademarks, trade names, logos, service marks, designs and other designations of source.

  In each case 1, 2, or 3, recognised in any country or jurisdiction of the world, and whether or not registered or able to be registered and for the full period thereof, and all extensions and renewals thereof, and all applications for registration in connection with the foregoing.

  v. Logon means the unique User ID issued to the Client by AGDATA to access the Service and its associated password whether set by AGDATA or the Client.

  w. Nominated Payment Method means the credit card or bank account details provided by the Client for the payment to AGDATA for the provision of the Phoenix Software or the Service in accordance with the Agreement.

  x. Parent Company means Arcadea AG Holdings Pty Ltd, ACN 684 061 916, and Arcadea Group LLC.

  y. Personnel include a person or entities, employees, agents, consultants, contractors, assigns or other representatives of AGDATA and its Parent Company and any subsidiaries of the Parent Company.

  z. Phoenix Software means all versions of the Phoenix software application designed and developed by AGDATA from time to time and known as “Phoenix Financial Pro”, “Phoenix Financial”, “Phoenix Financial Lite”, “Phoenix Budget Planner”, “Phoenix Power Budgets”, “Phoenix Mapping”, “Phoenix Cropping”, “Phoenix Livestock”, and/or “Phoenix Weather” or other names as designated by AGDATA and listed on the Products page of the AGDATA website (www.agdata.com.au) from time to time.

  aa. Program Fault means an error, flaw, failure or fault which causes the Phoenix Software to produce an incorrect or unexpected result, or to behave in an unintended manner.

  bb. 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.

  cc. Service Start Date for the Service means the date on which AGDATA starts supplying the Phoenix Software or the Service to the Client, as will be notified by AGDATA to the Client after the Client’s application has been approved by AGDATA.

  dd. Special Offer means an offer by AGDATA to supply the Phoenix Software or the Service on terms and conditions expressly stated by AGDATA in writing at the time the Special Offer is made.

  ee. Supplier means any supplier of goods or services (including interconnection services) which are used directly or indirectly by AGDATA to supply the Phoenix Software or Service to the Client.

  ff. Support means technical support relating to the use and function of the Phoenix Software. Support does not include Data Repair, training, data entry, bookkeeping, taxation advice, payroll management, HR advice, employment law, network support, or general computer support, including but not limited to printer setup or configuration, internet setup or troubleshooting, hard drive failure or data recovery.

  gg. Support Incident means an advisory service provided by AGDATA to the client, whether by telephone, via online 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:

  1. information that resolves the issue being experienced by the client.
  2. information on how to obtain a solution that will resolve the issue being experienced by the client.
  3. advice that the issue being experienced by the client is a known Program Fault or an incompatibility issue with the Phoenix Software.
  4. information that identifies the issue being experienced by the client as one that is related to hardware or equipment.
  5. information that identifies the problem being experienced by the client as one that is related to a third-party product.

  hh. Training means any instruction given by AGDATA to the Client on how to utilise any aspect of the Phoenix Software.

  ii. 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. Application for the Supply of Phoenix Software or the Service

  a. Upon AGDATA’s acceptance of the Client’s application to use the Phoenix Software or the Service, the Client will be entitled to use the Phoenix Software or the Service, which the Client has nominated on their Application and the Client is paying for.

• 3. Term

  a. The Agreement commences when AGDATA accepts the Application and notifies the client in writing of the acceptance.

  b. AGDATA will commence providing the Phoenix Software or the Service to the Client from the Service Start Date.

  c. Unless otherwise agreed in writing, the initial term is one (1) year.

  d. If the Agreement is not a Fixed-Term Agreement, AGDATA will provide the Phoenix Software or the Service to the Client until the Agreement is cancelled by either party.

  e. If the Agreement is a Fixed-Term Agreement, AGDATA will provide the Phoenix Software or the Service to the Client for the period stated in the Fixed-Term Agreement or until the Agreement is cancelled, as the case may be.

  f. If neither party cancels the Agreement at the end of the Fixed-Term Agreement, this Agreement automatically renews for a successive one (1)-year term. If the Client does not instruct AGDATA to cancel the Fixed-Term Agreement prior to the expiry date of the Fixed-Term Agreement AGDATA will take payment for the renewed term via the Client’s Nominated Payment Method and the Agreement will continue in force until the Agreement is cancelled.

• 4. Variation of Agreement

  a. 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 fourteen (14) 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.

  b. AGDATA, in its absolute discretion, may add to, alter, or remove any part of the Phoenix Software or the Service at any time without notice.

  c. AGDATA, in its absolute discretion, may alter the fees charged for the Phoenix Software or the Service with fourteen (14) days written notice.

• 5. Privacy

  a. AGDATA acknowledges that it does not own any data or information that a Client creates whilst using the Phoenix Software or the Service.

  b. AGDATA will not edit, alter, or disclose any encrypted data from a Client’s Datasets unless agreed in writing by the Client.

  c. AGDATA reserves the right to disclose any information as required to satisfy any relevant law, regulation, mandatory governmental request or court order.

  d. AGDATA may collect, use and make reference to any personal information about the Client when deciding whether to start, stop or limit supply to the Client of personal credit, or the Phoenix Software or the Service.

  e. 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.

  f. 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 Phoenix Software or the Service.

  g. 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.

  h. AGDATA may utilise Data for the purposes of developing and training AI tools for use within its business, including via the provision of Data to Personnel. This excludes information contained in Datasets unless provided by the client for the purpose of AGDATA providing Support to the Client.

  i. Activation of the Phoenix Software by a Client associates the use of the Phoenix Software with a specific Device. During activation, the Phoenix Software will send information about the Phoenix Software and the Device to AGDATA. This information may include the version, license version, language and product key of the Phoenix Software, the internet protocol address of the device or computer and information derived from the Microsoft Windows installation on the device. By activating the Phoenix Software, you consent to the transmission of this information. Unless the Phoenix Software is activated, you have no right to use the Phoenix Software. This is to prevent unlicensed use. You are not permitted to bypass or circumvent the activation process.

  j. The Phoenix Software will communicate with AGDATA to verify the status of the Client’s Agreement. If the Phoenix Software is notified that the Agreement is not current or if it is unable to verify the status of the Agreement for a period of 30 days or any other period of time as determined by AGDATA in its sole discretion then the Phoenix Software will revert to trial mode and the Client will be unable to enter new data, create reports or print from the Phoenix Software. It is the sole responsibility of the Client to provide an internet connection to allow the Phoenix Software to verify the status of the Client’s Agreement.

• 6. Using the Service

  a. The Service always uses the Current Version of the Phoenix Software.

  b. Once the Client’s Application has been approved, they will be able to create a new dataset or load their existing data onto the Service. If the Client’s data is from an earlier version of the Phoenix Software, it will need to be upgraded to the current release version of the Phoenix Software. If the Client requires assistance with this, they may request Support from AGDATA.

  c. The use of the Service is strictly limited to the use of the Phoenix Software, associated banking activities and storage of files directly required for the use of the Phoenix Software. A fixed amount of temporary 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.

  d. 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.

  e. By default, the Service allows for one (1) Dataset. Additional Datasets are available for an additional monthly fee.

  f. By default, the Service allows for one (1) Concurrent User. Additional Concurrent Users are available for an additional monthly fee. Access to a Dataset by Professional Partners through the guest access system does not count toward a Client’s Concurrent User count.

• 7. Permitted Use

  a. The Client is permitted to use the Phoenix Software or the Service for their exclusive benefit or for the benefit of other Clients who use the Phoenix Software or the Service. Unauthorised use of the Phoenix Software or the Service, or the on selling of the Phoenix Software or the Service is strictly prohibited and may lead to the termination of the Agreement. If the Agreement is terminated pursuant to this clause, any unused entitlements will be forfeited by the Client.

  b. The Client is permitted to use the Phoenix Software or the Service for the term of the Agreement.

  c. The Client is responsible for all activities that occur using 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.

  d. 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.

  e. 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.

• 8. Fair Use of Included Services

  a. The Included Services are intended for reasonable business use only, and AGDATA may monitor usage to ensure that they are not being used for purposes outside of ordinary accounting or bookkeeping activities.

  b. If AGDATA, in its sole discretion, determines that a Client’s use of the Included Services is excessive, abnormal, fraudulent or otherwise inconsistent with the intended use, AGDATA may, with fourteen (14) days written notice to the Client:

  1. notify the Client of the excessive usage.
  2. require the Client to reduce usage.
  3. charge additional fees; or
  4. restrict access to the Included Services.

• 9. Software Upgrades and Support

  a. All software produced by AGDATA is modular, and from time to time, AGDATA will provide updates for those modules. To upgrade a module, the Client must first have a current Agreement to use the Phoenix Software module that is eligible for upgrade

  b. Upon upgrading, Clients and their Contacts may find it beneficial to undergo additional Training. If additional Training is required, such Training will be provided by AGDATA for a fee to be determined by AGDATA, calculated in accordance with its prevailing rates at the time.

  c. Clients may continue to use a version of the Phoenix Software without upgrading it, except where they are using that Phoenix Software via the Service. The permission to use a non-upgraded version of Phoenix Software shall automatically lapse when AGDATA, in its sole discretion, elects to cease providing Support for the non-upgraded version of the Phoenix Software or the Client’s Agreement has been cancelled or suspended. If the Client has informed AGDATA of its current contact details, AGDATA will provide the Client with thirty (30) days’ notice of its intention to cease providing Support and/or other services in relation to the subject Phoenix Software.

  d. AGDATA provides Support to Clients and their Contacts in accordance with clause 10 contained herein.

• 10. Support

  a. All clients with a registered Current Version of the Phoenix Software have access to free updates. These updates may be downloaded from within the Client’s installed and activated version of the Phoenix Software.

  b. There is an in-built Help System and Tutorial Videos which are accessed from the Help menu within the Phoenix Software.

  c. AGDATA provides Support for the Current Version and the version prior.

  d. AGDATA provides Support to its clients with a current Agreement relating to the use of the Phoenix Software. Support may include the provision of assistance to identify a Support Incident or Program Fault.

  e. 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.

  f. Data Repair is not classified as Support and is provided on request in accordance with AGDATA’s standard chargeable rates.

  g. Training is not classified as Support; however, training packages can be purchased separately. Clients are encouraged to contact AGDATA if they require Training.

  h. The provision of Support is not intended to be, nor should be interpreted as, the provision of accounting, taxation, legal, employment 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.

  i. Clients with a current Agreement are not charged for technical support even if the answer can be found in the supporting program documentation. Clients without a current Agreement who require technical support are charged on a per Support Incident basis.

  j. Support is not available where the Client’s use of the Phoenix Software could reasonably be considered by AGDATA to be fraudulent, to be contrary to the Permitted Use, or to adversely affect AGDATA or other AGDATA clients’ use of or access to the Phoenix Software or the Service. This includes:

  1. accessing the Phoenix Software on behalf of AGDATA clients without a valid Agreement, or otherwise allowing someone else to access or use the Phoenix Software.
  2. using the Phoenix Software in a way that an ordinary person could reasonably regard as being used in a manner that was not intended by AGDATA; or
  3. consistently using the Phoenix Software to address issues that have previously been addressed by Personnel, and which re-occur because of the client failing or refusing to follow advice provided by Personnel.

  k. If AGDATA determines that a Client’s use of Support and/or the Phoenix Software is unreasonable, AGDATA will contact the Client and discuss changing their usage so that it conforms to the terms contained herein. 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 in accordance with AGDATA’s standard rates.

  l. AGDATA Support is available through the support contact form on our website www.agdata.com.au/support/ or by emailing the team directly at tech@agdata.com.au or sending a text message to +61 480 004 005 or such other number as specified on AGDATA’s website at www.agdata.com.au from time to time. Responses will be attended to during normal Queensland business hours.

  m. Support is available from 8:45 am – 5:00 pm AEST, each business day. Support is unavailable on public holidays gazetted for Queensland or the Toowoomba Show Holiday.

  n. Each year, the AGDATA office is closed for a period over Christmas and New Year. During this period, support is only available via email, and only urgent support issues will be attended to. All other requests for support will be addressed when the office reopens in January.

• 11. Data Retention and Backups

  a. Clients are wholly responsible for the creation and storage of backups of the Phoenix Software except where they use the Phoenix Software in conjunction with the Service.

  b. AGDATA undertakes to take regular backups of the Service in the form of:

  1. real-time replication from the primary site to a secondary site.
  2. nightly incremental backups are stored on disk at the primary and secondary sites for one (1) week.
  3. full backups to disk are performed weekly at the tertiary site and retained for six (6) weeks. These weekly backups are also written to tape and retained for four (4) weeks.
  4. a full backup to disk is performed on the last day of every month and retained for six (6) months. This monthly full backup is also written to an archive backup tape, which is taken off-site and stored in a fourth separate location.

• 12. Fees and Charges

  a. The Client must pay:

  1. the fees and charges for the Service and/or the Phoenix Software, which are set out in the Agreement, Application or any Special Offer.
  2. any additional fees and charges noted in the Agreement or notified by AGDATA in accordance with this Agreement.

  b. The Client must pay the fees and charges for the Phoenix Software and/or the Service even if the Client’s access to the Phoenix Software or the Service has been interrupted for a period of time. Should the Client experience an interruption to the Phoenix Software and/or the Service, the Client may be entitled to a pro-rata refund of the fee charged by AGDATA for the Phoenix Software and/or the Service in accordance with the terms of the Agreement or as a legal right.

  c. In addition to the fees charged by AGDATA to the Client for the Phoenix Software or the Service, AGDATA may charge the Client administration fees and other similar charges, including but not limited to set up fees, suspension fees, cancellation fees, late payment fees, payment dishonour fees or reconnection or reactivation fees and any other fee specified in the Agreement.

  d. Telephone connection and ISP fees and charges are the Client’s responsibility and are additional to the Phoenix Software and/or the Service fees. The costs associated with connecting to the Service or verifying the Phoenix Software subscription via the Internet are the Client’s responsibility.

• 13. Payments

  a. Payment for a subscription can only be made by Credit Card or Direct Debit.

  b. Fees & Charges for the Phoenix Software or the Service are processed in advance and are processed on the anniversary day of the Service Start Date. If the anniversary day does not occur in the billing month, the charge will be applied on the last day of the billing month.

  c. 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.

  d. If the Client has overpaid AGDATA for the Phoenix Software or 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.

• 14. Cancelling the Agreement

  a. AGDATA may cancel the Agreement at any time without liability if:

  1. there is an emergency requiring AGDATA to suspend or cancel the Service.
  2. AGDATA reasonably suspects fraud or other illegal activity by the Client or any other person in connection with the Phoenix Software or the Service utilised by the Client.
  3. any amount owing to AGDATA in respect of the Phoenix Software or 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.
  4. AGDATA reasonably considers the Client to be a credit risk.
  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.
  6. if the Client is a company, the Client becomes insolvent or AGDATA has reason to suspect that the Client is at risk of becoming insolvent.
  7. the Client dies.
  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. the Service is suspended for more than fourteen (14) days.
  10. an event occurs which prevents AGDATA from supplying the Service in accordance with the Agreement for more than fourteen (14) days.
  11. the Client has a Basic Partner or Professional Partner subscription to the Phoenix Software or the Service and not used the Phoenix Software or the Service for a period of six (6) months.

  b. Any outstanding fees and amounts are due and payable by the Client on the date the Agreement ends.

  c. If the Agreement 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:

  1. during the minimum term, the Client must pay AGDATA a cancellation fee or such higher amount as may be provided in clause 13.d; and
  2. the Client must pay AGDATA all costs incurred to rectify the Client’s breach of the Agreement.

  d. If the Agreement is a Fixed-Term Agreement with a minimum term of twelve (12) months (or such other term as indicated on the Application) and 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.

  e. If the Client requests cancellation of the Agreement, 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 Phoenix Software or the Service prior to the Cancellation Date.

  f. Upon cancellation of the Agreement, 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 the backup data is received by the Client. A fee will apply for the provision of this service.

  g. If the Client uses the Phoenix Software in conjunction with the Service, 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 11.

  h. Upon cancellation of the Agreement by either party, the Client may download a trial version of the Phoenix Software 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 Dataset/s requires a current Agreement. Current fees as published on the AGDATA website at the time apply.

• 15. Suspending the Service

  a. AGDATA may suspend the Service at any time, without liability in any of the circumstances described in clause 14.a.

  b. If AGDATA suspends the Service, AGDATA may later cancel the Service for the same or a different reason.

  c. 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.

• 16. Liability

  a. The Client is liable to AGDATA for any breach of the Agreement that causes loss to AGDATA.

  b. Nothing in the Agreement removes or limits any rights that the Client has under existing laws or regulations.

  c. 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 Phoenix Software or of the Service or the operation thereof caused by or contributed to by use of the Phoenix Software or the 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.

• 17. Acceptance of the Terms and Conditions of Affiliated or Associated Software

  a. To the extent that any software program integrates with software belonging to a software provider other than AGDATA (referred to as “External Software”), the Client hereby agrees to abide by all terms and conditions that may be applicable to the External Software. By way of example, the Phoenix Software module called “Phoenix Mapping” integrates with Google Maps software, and accordingly, Clients are required to abide by the terms of use imposed on users of Google Maps.

  b. By using the Service, the Client is to comply with and consent to agrees to and accepts the Microsoft Terms of Use or such other terms and conditions as set out by Microsoft from time to time in relation to the Client’s use of Microsoft Windows as part of or in conjunction with the Service.

• 18. Copyright, Reproduction, and Use for Intended Purposes

  a. The Phoenix Software is Copyright (C) 2006-2025 by AGDATA Holdings Pty Ltd ABN 26 147 923 724, 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 in part.

  b. All manuals and all other written material relating to the Phoenix Software, supplied by AGDATA to the Client or Contacts, 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.

• 19. Intellectual Property

  a. The Client acknowledges and agrees that, as between AGDATA and the Client, all rights and/or Intellectual Property in the Phoenix Software belongs to and vests in AGDATA alone. Nothing in this agreement will be constructed as conferring upon the Client any right or interest in the Intellectual Property rights other than the license to use the Phoenix Software in accordance with the terms and conditions stated herein. The Client 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 Client which results in the infringement, or any challenge to the sole ownership by AGDATA of any of the Intellectual Property rights in the Phoenix Software by the Client, a Contact of the Client or a party being assisted by the Client.

  b. The Client is expressly prohibited from selling, leasing, lending, sub-letting, distributing or otherwise transferring, in any form, the Phoenix Software to any person, corporation or entity without the express written permission of AGDATA. It is illegal to make or distribute copies of the Phoenix Software except to make a backup copy for archival purposes only. Duplication of the Phoenix Software for any other reason, including sale, loan, rental, or gift, is illegal. The Phoenix Software is supplied to the Client solely for the management of the Client’s financial, trading and production data only.

  c. The Client is expressly prohibited from modifying, adapting, translating, reverse engineering, decompiling or disassembling the Phoenix Software or creating another computer program based, whether in whole or in part, on the Phoenix Software.

  d. The Phoenix Software may not be used to record or create financial, trading or production data belonging to any person or entity that the Client has no financial interest in. For the sake of clarity, the Phoenix Software may only be used by the Client for its own internal business purposes, and the Client must not provide the Phoenix Software or the benefit of the Phoenix Software to any other person or entity unless expressly agreed to by AGDATA.

  e. All modifications, improvements, and custom development made for or funded by a Client remain the exclusive property of AGDATA, and no assignment or joint ownership is created. The Client is responsible for ensuring its Contacts abide by the terms contained herein and is responsible for any loss or damage caused by the actions of the Contact as if the action/s were carried out by the Client.

• 20. General

  a. Any notice or demand given pursuant to this Agreement shall be in writing and shall be delivered, posted or e-mailed:

  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
  2. to AGDATA at accounts@agdata.com.au or 122 Russell Street, Toowoomba, Queensland 4350.

• 21. Applicable Law

  a. 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.

• 22. Limitation of Warranty

  a. All AGDATA software comes with guarantees that cannot be excluded under the CCA. The Client 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 Phoenix Software repaired or replaced if the Phoenix Software is not of an acceptable quality and the failure does not amount to a major failure. The Client must notify AGDATA of any alleged defect in the Phoenix Software as soon as reasonably possible after the defect becomes apparent and allow AGDATA to inspect the Phoenix 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

  b. AGDATA may make available access to third party data servers for use within the Phoenix Software, 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.

  c. 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 Phoenix Software or the Service), and AGDATA’s liability in respect of any warranties is limited to the fullest extent permitted by law.

  d. 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 Phoenix 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, Phoenix Software or the Service. AGDATA accepts no liability for faults arising from the improper use or faulty maintenance of the Phoenix Software or the Service, incorrect installation, improper operation beyond recommended specifications or contingent or consequential loss or damage in any situation whatsoever.

  e. If the Client is not a “Consumer” within the meaning of the CCA, AGDATA’s liability for any defect in or damage to the Phoenix Software is:

  1. limited to the value of any express warranty provided to the Client by AGDATA in AGDATA’s sole discretion.
  2. limited to any warranty to which AGDATA is entitled, if AGDATA did not manufacture the Phoenix Software.
  3. otherwise negated absolutely.

  f. If AGDATA is liable for a breach of any condition or warranty implied by the CCA in respect of the Phoenix Software or the Service, AGDATA’s liability is limited to, at the election of AGDATA:

  1. 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
  2. in respect of the supply of any goods (including but not limited to the supply of the Phoenix Software or the Service), either the replacement or repair of the goods in respect of which the breach occurred.
  3. or the refund of any money the Client has paid for the goods or services.

  g. Subject to the above, AGDATA’s liability for any loss or damage suffered by the Client in connection with the supply of any goods and/or services by AGDATA (including liability for any negligent act or omission), is limited to the fees paid or payable for the Service in the twelve (12) months immediately preceding the event giving rise to the claim. . 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).

  h. 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:

  1. the Client failing to properly use, operate and/or maintain any goods (including the Phoenix Software).
  2. the Client using the Phoenix Software and/or the Service for any purpose other than that for which they were designed and licensed or making any unauthorised modification to same.
  3. the Client continuing the use of the Phoenix Software or the Service after any defect became apparent or should have become apparent to a reasonably prudent person or user.
  4. the Client or its Contacts, employees, contractors and consultants failing to strictly follow any instructions, guidelines or manuals provided by AGDATA or any workplace health and safety legislation or guidelines, or to provide property procedures or training for its employees and contractors.
  5. any accident or act of God.

• 23. Privacy Act

  a. The Client 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 Client and AGDATA from time to time, or as required by law):

  1. the provision of goods or services to the Client.
  2. the marketing of goods or services by AGDATA and its Parent Company, Personnel, agents or distributors; and/or
  3. analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of goods and/or services; and /or
  4. processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
  5. the operation of the Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to any goods and/or services provided by AGDATA.

• 24. Severability

  a. 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.

Messaging Terms & Conditions

• 1. General

  When you opt-in to the service, we will send you a message to confirm your signup.

  By opting into messages, you agree to receive recurring automated marketing and informational text messages from Phoenix by AGDATA. Automated messages may be sent using an automatic telephone dialling system to the mobile telephone number you provided when signing up or any other number that you designate.

  Message frequency varies, and additional mobile messages may be sent periodically based on your interaction with Phoenix by AGDATA. Phoenix by AGDATA reserves the right to alter the frequency of messages sent at any time to increase or decrease the total number of sent messages. Phoenix by AGDATA also reserves the right to change the short code or phone number or alphanumeric sender where messages are sent

  Your usual message and data rates may apply. If you have any questions about your text plan or data plan, it is best to contact your mobile provider. Your mobile provider is not liable for delayed or undelivered messages.

  Your consent to receive marketing messages is not a condition of purchase.

• 2. Carriers

  Carriers are not liable for delayed or undelivered messages.

• 3. Cancellation

  Messages will provide instructions to unsubscribe either by texting STOP or through an included link. After you unsubscribe, we will send you a message to confirm that you have been unsubscribed and no more messages will be sent. If you would like to receive messages from Phoenix by AGDATA again, just sign up as you did the first time and Phoenix by AGDATA will start sending messages to you again.

• 4. Info

  For support regarding our services, email us at tech@agdata.com.au or, if supported, text “HELP” to us at any time and we will respond with instructions on how to unsubscribe. If we include a link in messages, we send you from Phoenix by AGDATA, you may also access instructions on how to unsubscribe and our company information by following that link.

• 5. Transfer of Number

  You agree that before changing your mobile number or transferring your mobile number to another individual, you will either click the “Opt Out” link in the text message from the original number or notify us of your old number at tech@agdata.com.au. The duty to inform us based on the above events is a condition of using this service to receive messages.

• 6. Privacy

  If you have any questions about your data or our privacy practices, please visit our https://www.agdata.com.au/privacy-policy/.

• 7. Messaging Terms Changes

  We reserve the right to change or terminate our messaging program at any time. We also reserve the right to update these Messaging Terms at any time. Such changes will be effective immediately upon posting. If you do not agree to a change to these Messaging Terms, you should cancel your enrolment with our messaging program. Your continued enrolment following such changes shall constitute your acceptance of such changes.