Licence agreement

Reckon Elite Software End User Licence Agreement (Agreement)

 Warning: Permission to use the Reckon Elite Software ("Elite") and documentation is conditional upon you, the Customer, agreeing to the terms set out below. Do not install Elite until you have read and accepted all the terms of this licence. Installation of Elite will be deemed to be your acceptance of the following terms.

If you do not wish to accept these terms either (a) return this package to Reckon Limited, ACN 003 348 730 trading as Reckon Elite ("Reckon", we or our) within fourteen (14) days of purchase or (b) do not install Elite and notify Reckon within fourteen (14) days of purchase that you wish to apply for a refund; and any licence fee you may have paid will be refunded to you. Please note that in the case of (b), refunds are only granted for genuine business reasons.

1              Licence   

The intellectual property, including copyright and trademarks, (Intellectual Property) in Elite and its documentation is owned by Reckon.

1.1          Subject to the terms of this licence Reckon grants you a non-exclusive, irrevocable (except for breach), non-transferrable, non- sublicensable, Australia-wide, licence for the Licence Period to install and use Elite on:

(a)           A Single Computer:  on a single computer only, including but not limited to desktop, laptop, tablet or other device, unless you have obtained a licence for use on a terminal server; or

(b)          A Terminal server: on the terminal server for the number of users as agreed in writing by Reckon.

1.2          The Licence Period is for one year only, which includes access to the previous year's version. Provided Reckon offers Elite for licence and upon payment of the appropriate licence fees at the end of one year, the Licence Period will be extended for another year and so on.

2       Your obligations   

You hereby undertake:

1.3 

(a)           Not to copy, reproduce, translate, adapt, vary, modify, de-compile, disassemble, reverse engineer, create derivative works of, modify, sub-license, rent, lease, re-sell, loan, share or distribute Elite, relevant Login, password or other access details or its documentation other than as expressly authorised by this licence;

(b)          Not to use Elite for or in connection with a service bureau operation, hosting or other services by internet or by any other means;

(c)           To supervise and control the use of Elite in accordance with the terms of this licence to ensure that your officers, employees, sub-contractors and other agents who have authorised access to Elite are made aware of the terms of this licence;

(d)          Not to provide or otherwise make available Elite in any form to any person and to advise Reckon in writing within seven (7) days of you becoming aware of any person using Elite who is not licensed by Reckon to do so.

1.4          You acknowledge that Intellectual Property rights subsists in Elite and in any documentation and that those Intellectual Property rights belongs to Reckon.

1.5          You shall not during or any time after the expiry or termination of this licence permit any act, which infringes our Intellectual Property rights.

1.6          You shall indemnify Reckon fully against all liabilities, costs (on a solicitor and own client basis) and expenses, which Reckon may incur to a third party as a result of your breach of our Intellectual Property rights.

1.7          You acknowledge we may audit the copies of Elite in use or possession by you including the number of computers upon which Elite is being used and the number of users. If the audit reveals underpaid or unpaid fees due to us, we will send you an invoice payable within 14 days. If the invoiced amount is 5% or more of the Fees, you must pay the auditors cost within 14 days of our invoice.

2              Data Collection & Privacy

2.1          You acknowledge and agree that Reckon collects information from you when registering, activating and validating Elite. Additional information may also be collected in relation to your use of Elite. Reckon handles personal information in accordance with the Privacy Act 1988 (Cth) and the applicable Privacy Principles, Privacy Act 1993 (NZ) and or the General Data Protection Regulation (EU) 2016/679 (GDPR) as amended from time to time, as applicable (collectively Privacy Laws). For details on how we collect, use, disclose and store your personal information and how you can contact us if you want to access or correct personal information please refer to Reckons Privacy Policy on our website www.reckon.com.

2.2          We may disclose that information to third party service providers who help us deliver Elite and related services (including information technology service providers, data storage, web-hosting and server providers, professional advisors, payment systems operators and our business partners) or as required by law. If you do not provide this information we may not be able to provide Elite or services to you.  In certain circumstances, we may disclose your Personal Information to third parties located, or who store data, outside Australia.

2.3          Our Privacy Policy contains further information about:

(a)           how we store and use your Personal Information;

(b)          how you can access and seek correction of your Personal Information;

(c)           how you can make a privacy-related complaint; and

(d)          our complaint handling process. By providing personal information to us, you consent to us collecting, holding, using and disclosing your Personal Information in accordance with our Privacy Policy.

2.4          Notwithstanding anything to the contrary in this Agreement or elsewhere, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of Elite and related the Services, in an aggregated and anonymized format (Analytics). You agree that we may make such Analytics publicly available, provided that it: (i) does not contain identifying information; and (ii) is not compiled using a sample size small enough to make the underlying data identifiable. We and/or our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content provided in connection with the Analytics, including all intellectual property rights in the foregoing.

3              Data Protection

3.1          This clause shall only apply if and to the extent that the GDPR applies to any of the Data with which you use Elite and related Services. If this clause applies, the provisions Schedule 1 - Data Processing Agreement shall apply.

3.2          We are the controller in respect of personal data and sensitive personal data, such as account registration details, that we collect directly from users of the Services (End Users) and which we use for the purposes of our business.

3.3          You are the controller and we are the processor in respect of any other personal data and sensitive personal data that is uploaded by End Users including data, templates, information, content, code, video, images or other material of any type.

3.4          To the extent that Elite or related services comprise the processing of personal data or sensitive personal data where we are the processor and you are the controller and the processing of personal data or sensitive personal data is subject to the GDPR:

(a)           you will comply with the requirements of the GDPR as the same apply to you as controller of the personal data or sensitive personal data; and

(b)          the provisions of Schedule 1 - Data Processing Agreement to this Agreement shall apply.

 

4              Data Breach Incidents

4.1          To the extent the Notifiable Data Breaches scheme under Part IIIC of the Privacy Act 1988 (Cth) applies to us and we become aware of a Data Incident, we will:

(a)           notify you of the Data Incident by telephone and email;

(b)          retain system logs and other information that may be relevant to the Data Incident, or to assessing the cause or impact of the Data Incident;

(c)           provide all information we deem relevant to the Data Incident reasonably requested by you for the purpose of investigating the Data Incident; and

(d)          immediately take all action reasonably necessary to:

(1)           mitigate the impact of the Data Incident (including to restore or recover any lost data); and

(2)           prevent any repeat of the Data Incident in the future.

4.2          If we suspect that a Data Incident has occurred, we will, within 30 days, prepare an assessment to determine whether there are reasonable grounds to believe that a Data Incident has occurred.

4.3          Where you suspect that a Data Incident has occurred, we will, within 30 days of receiving notice from you of your suspicion, prepare an assessment to determine whether there are reasonable grounds to believe that a Data Incident has occurred, the costs of such assessment must be paid by you.

4.4          If we believe a Data Incident has occurred it, we will provide notice to the OAIC of such Data Incident and we will be the sole Party to notify the individuals who are likely to be at risk of serious harm arising from the Data Incident.

4.5          This clause 4 is subject to our Privacy Policy.

4.6          In clauses 2, 3 and 4 the following words shall mean:

(a)           Controller has the meaning given in the GDPR;

(b)          Data means information supplied to us by you through your use of our Services and Software including Personal Information that we generate, collect, process, store or transmit under this Agreement;

(c)           Data Incident means any actual or suspected:

(1)           breach of our obligations relating to protection of Data under this Agreement;

(2)           unauthorised access to, or unauthorised disclosure of, any Data; or

(3)           loss of Data, including where Data is damaged or corrupted so that it becomes unusable

where, as determined by us, the access or disclosure is likely to result in serious harm to one or more individuals and we have not been able to prevent the likely risk of serious harm with remedial action; and

(d)          Processor has the meaning given in the GDPR.

 

 

5              Support

5.1          Reckon shall provide electronic support for Elite. Should you wish to use other support services, such as telephone support, and if any charges apply in relation to such other support services, you agree to pay the then published rates in relation to such services which are supplied pursuant to the terms and conditions set out in this Agreement. Any period of support notified in the published rates shall be automatically renewed unless either party advises the other party in writing or by email that it does not intend to continue with such support prior to the expiration of the term. 

5.2          Reckon will provide technical support for Elite only (and for the avoidance of doubt this does not include support for third party hardware or software, which remains the responsibility of the relevant third party) on the latest version of Elite, including any subsequent upgrades released for Elite.

5.3          Reckon cannot provide support for third party software applications (for example database inquiry applications and their impact on data integrity) used in conjunction with Elite or to repair or modify any data or database infrastructure caused by the use of any third party software application.

5.4          Onsite & Remote SupportReckon shall provide onsite and remote support (Consulting Support Services) in accordance with the then current Reckon Elite Onsite & Remote Technical Support policy and for the fees as published in the policy, which is available on request.

(a)           By requesting and accepting the Consulting Support Services you agree:

(1)           to the terms and conditions of this Agreement, including but not limited to this clause 5;

(2)           to pay for the basis of our actual time incurred (minimum of 2 hours) based on fees published in the Reckon Elite Onsite & Remote Technical Support policy;

(3)           any expenses;

(4)           any cancellation fees;

(5)           you must notify us of any hardware upgrades and software platforms upon which your IT systems operate within a reasonable time of a consultant arriving to provide Consulting Support Services;

(6)           you must ensure your technical support person is present or able to be contacted for the full period that the consultant is engaged to provide the Consulting Support Services; and

(7)           if you require the installation of third party software and/or third party hardware as part of the Consulting Support Services, you authorise the consultant to accept on your behalf the terms of any licence agreement with a third party software and/or third party hardware licensor which requires acceptance as part of the installation process. If you wish to see the terms of any third party software and/or third party hardware licence in advance you must notify us at least 3 business days prior to the scheduled date for installation of the applicable third party software and/or hardware.

(b)          Confidentiality: Reckon acknowledges that data it accesses to enable it to provide the Consulting Support Services may contain information you consider confidential (the "Confidential Information") and that Reckon will have access to such Confidential Information in connection with the performance of any Consulting Support Services.

(1)           Confidential Information does not include information that:

(A)          becomes a matter of public knowledge;

(B)          is rightfully received from a third party without a duty of confidentiality;

(C)          is independently developed by Reckon or a third party; or

(D)          is required to be disclosed by Reckon pursuant to applicable law or government order.

(2)           During the course of the Consulting Support Services, Reckon will limit access to the Confidential Information to persons with a need to know, and will use commercially reasonable efforts to prevent the unauthorized use, dissemination, or disclosure of the Confidential Information.

(3)           All Confidential Information shall remain your property.

(c)           Limited Warranties: Except as required by the Consumer Guarantees, Reckon disclaims all warranties with respect to any Consulting Support Services, whether express implied, written, oral or statutory, including without limitation, warranties of merchantability and fitness for a particular purpose. You acknowledge sole responsibility for retaining originals of any files, data or other materials delivered to Reckon to perform Consulting Support Services.

(d)           Cancellation of Consulting Support Services: If you have requested Consulting Support Services and you subsequently request cancellation before those Consulting Support Services are performed then a cancellation fee is payable by you if a cancellation request is received within 3 business days of the scheduled date for performance of those Consulting Support Services unless we are able to re-deploy the consultant who has been booked to perform those Consulting Support Services. Further, you will be liable for any non-refundable portion (which may be 100% in some instances) of any expenses suffered, sustained or incurred by us in connection with a booking which is cancelled.

(e)           By accepting the Consulting Support Services you agree to the terms and conditions of this Agreement, including but not limited to this clause 5.

 

6              Upgrades   

Reckon may, in its sole discretion, make upgrades available from time to time via the web site at http://www.reckonelite.com.au. Other upgrades, which include new functionality, may be available upon request for a fee. To the extent permitted by law, nothing in this Agreement imposes an obligation on Reckon to rectify any software or documentation errors in Elite or to provide you with any corrections, modifications, enhancements or other form of upgrades in relation to Elite.

7              Disclaimer and acknowledgments   

You acknowledge that: Supplied with Elite are certain operating instructions and a failure to follow these instructions carefully could result in erroneous data being produced by Elite; You should check all final results provided by Elite for any anomalies; Elite does not check for all anomalies and data incorrectly entered may be processed without question; and Elite is licensed to you on the understanding that, subject to the warranties below, Reckon is not responsible for the results of any actions taken, either by you or a third party relying on figures supplied or not supplied by EliteYou are responsible for checking the impact of any third party software you use in conjunction with Elite, in particularly the impact on your data and the database infrastructure within Elite.

8              Limited Warranty  

8.1          Elite comes with guarantees that cannot be excluded under the schedule 2 of the Competition and Consumer Act 2010 (Cth) as amended from time to time (Consumer Guarantees), or other similar legislation of a state or territory of Australia (collectively Consumer Laws). You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

8.2          Except as required by applicable Consumer Laws, Elite is provided to you on an "as is" basis and without any representations by Reckon or any of its authorised distributors regarding the use, performance or results of the use, of Elite. While Reckon has endeavoured to make sure that Elite works substantially as per the specifications published by Reckon from time to time at www.reckon.com, Reckon does not guarantee that Elite will work on all computer hardware platforms or configurations and makes no warranty that Elite will be error free, that its use will be uninterrupted or be fit for your purpose.

8.3          Reckon does not guarantee connections to web based services and servers as these may be dependent upon third party networks and security measures over which Reckon has no control.

8.4          Reckon does not and cannot warrant the quality of any third party software applications (for example database inquiry applications and their impact on data integrity) used in conjunction with Elite, nor their suitability for the purpose provided. It is your sole responsibility to make appropriate enquires and satisfy yourself as to the quality and fitness for purpose of any third party software applications, and in the case of database inquiry applications to satisfy yourself that data integrity is maintained.

9              Limitation of liability

9.1          Certain laws, including the Consumer Laws, may imply certain guarantees, conditions and warranties into this Agreement or impose certain guarantees, conditions and warranties by law and give you certain rights and remedies that cannot be excluded or modified. This clause 9 and the limited warranties provided in clause 8, do not exclude or modify any of those rights if to do so would contravene those laws or make any part of this Agreement void.

9.2          To the full extent permitted by law, Reckon excludes all conditions, warranties and rights that may be implied into this Agreement. If conditions, warranties or other rights for your benefit are implied in this Agreement or otherwise conferred by law and it is not lawful to exclude, restrict or modify them, then those conditions, warranties and other rights will (but only to the extent required by law) apply to this Agreement.

9.3          Reckon's (and its distributors') liability for breach of any implied conditions or warranties that cannot be excluded is limited, to the extent permitted by law and at the option of Reckon, to replacing or re-supplying the goods or services or their equivalent again or the payment of the cost of having the goods or services or their equivalent replaced or supplied again.

9.4          Except as required by the Consumer Laws, other than as set out in clause 9.2 and to the full extent permitted by law:

(a)           Reckon (and its authorised distributors) will not be liable to you or any other person for any indirect loss, damages, liability, costs or expenses suffered by you or any other person relating to the performance or non-performance of Elite  or the supply of Elite or in connection with, but not limited to, any online services, use of tax tables or provision of technical support (whether by telephone or remote access or other means), nor for any property damage caused by Elite or Reckon services; and

(b)          Reckon's maximum liability for all claims, damages, losses and expenses in the aggregate arising in connection with this Agreement, the supply of Elite or the Consulting Support Services is limited to the amount paid by you for Elite.

9.5          You agree that Reckon (and its authorised distributors) will not be liable, other than as expressly set out in this Agreement, and that you will indemnify Reckon (and its authorised distributors) from any liability, loss, damage, costs or expenses which you may suffer or incur as a result of any claims made against you by third parties arising from your use of Elite, other than when such claim has arisen from our breach of applicable Privacy Laws.

9.6          Use of Elite is not provision of professional advice. The information contained in Elite may contain features designed to assist you in complying with the requirements of the relevant legislation, eg: BAS and imposing the Goods and Services Tax (the "GST") or the equivalent in the user's home country. These features in Elite have been developed with regard to the GST laws and regulations and guidelines provided by the Australian Taxation Office (the "GST Laws") as at the date of development of Elite. The GST Laws are subject to change and Elite may not be correct at the date upon which you make use of Elite. While the features will assist in GST calculations, Reckon does not warrant that the Australian Taxation Office or the user's home country tax office will agree with such calculations. The help contained in Elite is not a substitute for professional advice. All applicable laws are extremely complex in nature and if you are not a professional user, then legal and accounting advice should be obtained before taking any action in reliance on EliteElite is also not financial product advice. If Elite contains features to assist with superannuation guarantee requirements, then while Reckon will use reasonable efforts to make sure that it is up to date, Reckon does not warrant that the relevant reports will be compliant with legal requirements, as these change from time to time.

9.7          In addition any tax tables or other tax updates that might be supplied with Elite are also changed from time to time and if you are not a professional, you should consult with your professional adviser before relying on the tax tables or other tax updates. Reckon does not warrant that the tax tables are up to date at your date of purchase. In providing you with the tax tables, Reckon is not engaged in rendering legal, accounting or other professional services. If legal advice or other expert assistance is required, and you are not yourself a professional, you should seek the service of a competent professional.

9.8          Reckon has no responsibility for recommendations. Reckon, its employees, agents, contractors and the authors disclaim any and all liability and responsibility to any person, whether a user of Elite or not, in respect of anything (including, without limitation, any error in or omission from Elite) and of the consequences of any actions taken or omitted to be taken in reliance, whether wholly or partially, upon all or any part of the content, recommendations or help contained in Elite.

9.9          To the full extent permitted by law, Reckon and its authorised distributors disclaim all liability for any corruption of data, inability to access data, loss of data, introduction of viruses, breach of privacy, or downtime as a result of or arising from the use of any online link available between Elite and another server including without limitation in connection with any online services.

9.10       Reckon makes no warranty or representation in connection with the Online Services, the responsibility for which rests with the relevant provider of such Online Services.

9.11       Elite and or the services may use, or be reliant or contingent on, the operation of third party products, facilities or services (Third Party Inputs). We do not make any warranty or representation, and to the maximum extent permitted by law, will have no liability, in respect of any failure of the Services or breach of this Agreement as a result of any Third Party Inputs.

 

 

 

10        Duration   

10.1       If this Agreement is extended then the terms and conditions of this Agreement shall apply with any necessary licence modifications. This Agreement may be immediately terminated with notice in the following circumstances: if you become the subject of insolvency proceedings and you fail to pay any fees due to us on time; if you, being a firm or partnership, are dissolved; or if you destroy Elite and documentation for any reason.

10.2       This Agreement may be immediately terminated with notice by either if the other Party breaches any term of this Agreement and fails to remedy such breach within 7 days of request from the non-breaching party.

10.3       Reckon reserves the right to suspend the provision of Elite and or the services unless its accounts are promptly paid. You indemnify and keep use indemnified against any claim or liability (including third party claims) arising where suspension occurs and for all costs incurred (including administrative costs, debt recovery agency and/or solicitor fees, charges and disbursements) in recovering or attempting to recover any overdue moneys due to us from you.

10.4       Upon termination, you or your representative shall destroy any remaining copies of Elite and documentation or otherwise return or dispose of such material in the manner directed by Reckon. Termination pursuant to this clause shall not affect any rights or remedies, which Reckon may have otherwise under this licence or at law.

11        Available Features

11.1       Features included in this version of the Software may be removed or changed in future versions of the Software. By downloading a new version of the Software and agreeing to the terms and conditions for that new version you are agreeing to purchase that version of the Software based on the features included in that then current version.

11.2       The Services may contain access to, or features that interface with, third party online or downloadable services (Third Party Services). Where Third Party Services are available, separate terms and conditions with the provider of the Third Party Services may apply. Charges may apply for the use of Third Party Services. Except as required by the Consumer Guarantees, access to Third Party Services may be withdrawn by Reckon at any time. Reckon does not make any recommendations in relation to the Third Party Services.

12        Licence Fees   

To the extent permitted by law, the licence fee does not include any taxes, charges, levies or duty which may be payable on the supply of such goods and services including without limitation any GST, stamp duty or otherwise. To the extent permitted by law, you are responsible for such taxes, charges, levies and duties and shall pay same to Reckon upon request.

13        Assignment   

You may only transfer all your rights and obligations under this Agreement to another party if you have first obtained our prior written approval. Your licence will then be terminated. If Elite is licensed in multiples of two or more (for example a pack) it may only be transferred in its entirety. Individual licences to such components cannot be transferred. We may transfer or assign all our rights and obligations under this Agreement without your consent.

14        Waiver   

Failure or neglect by Reckon to enforce at any time any of the provisions of this Agreement shall not be construed or deemed to be a waiver of Reckon's rights under this licence.

 

15        Severability   

If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force apart from such provision or part provision, which shall be deemed, deleted.

16        Force Majeure

We will not be liable for any delay or failure to perform our obligations under this Agreement if such delay is due to any event beyond our reasonable control (Force Majeure Event). We will provide you with prompt notice of the occurrence of any Force Majeure Event. If we are delayed from performing our obligations due to such a circumstance for a period of at least 30 days, we may terminate our Agreement with you by giving you five business days' notice in writing.

17        Dispute

You agree to co-operate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of Elite or our services, including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us.

18        Entire Agreement   

This Agreement constitutes the entire agreement between the parties for the subject matter referred to in this Agreement. Any prior arrangements, agreements, representations or undertakings are superseded. No modification or alteration of any clause of this Agreement will be valid except in writing signed by each party.

19        Governing law   

This Agreement will be governed by and construed according to the law of the State of New South Wales, Australia. The parties irrevocably submit to the exclusive jurisdiction of the Courts of New South Wales, Australia.


 

Schedule 1                    Data Processing Agreement

The provisions of this Schedule 1 (Data Processing Agreement) form part of the Agreement to the extent that clause 3 of the Agreement applies.

We shall:

(a)           process personal data only on documented instructions from the controller, including with regard to transfers of personal data to a third country or an international organisation, unless required to do so by European Union or the national law of an EU member state to which the processor is subject; in such a case, the processor shall inform the controller of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;

(b)          ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

(c)           implement appropriate organisational and technical measures as required pursuant to Article 32 (security of processing) of the GDPR;

(d)          respect the conditions for engaging another processor referred to in paragraphs 2 and 4 of Article 28 (processor) of the GDPR;

(e)          taking into account the nature of the processing, assist the controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the controller's obligation to respond to requests for exercising the data subject's rights laid down in Chapter III of the GDPR;

(f)            assist the controller in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of the processing and the information available to the processor;

(g)           at the choice of the controller, delete or return all the personal data to the controller after the end of the provision of services relating to processing, and delete existing copies unless EU law or the national law of an EU member state or another applicable law, including any Australian state or Commonwealth law to which the processor is subject requires storage of the personal data;

(h)          make available to the controller all information necessary to demonstrate compliance with the obligations laid down in Article 28 (processor) of the GDPR and allow for and contribute to audits, including inspections, conducted by the controller or another auditor mandated by the controller (in each case at the controller's cost).

 

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