ANSWER ID:360

Dated: 1 September 2013

1 About these terms

These are the terms and conditions for our supply of the MYOB Atlas Service to you, including our obligations to each other (Terms).

Some words in these Terms have particular meanings:

Business Day means a week day, except for a national public holiday in New Zealand.

Business means the business for which the application is made and accepted for MYOB Atlas. This would include, but is not limited to, sole traders, partnerships, companies and trusts.

Fees means fees and charges relating to the provision of the MYOB Atlas Service.

Loss or Claim means any loss, liability, action, proceeding, damage, cost or expense (including all reasonable legal costs and expenses), including liability in tort and consequential and economic losses.

MYOB Atlas or MYOB Atlas Service means any of the services, facilities or functionality which form part of MYOB Atlas and which we make available to you from time to time. This includes:

• hosting for your MYOB Atlas website; and
• the website creation software tool you use to create and maintain your MYOB Atlas website.

Personal Information means that term as defined in the Privacy Act. Basically, this is information about an identifiable individual.

Privacy Act means the Privacy Act 1993 as updated, amended or replaced from time to time.

Third Party means any person we have contracted with to help us provide the MYOB Atlas Service. This includes all service providers engaged by us for the delivery, maintenance and administration of MYOB Atlas.

we, us and our means MYOB Australia E1 Pty Ltd ACN 095 868 205 of 12 Wesley Court, Burwood East, VIC 3151.

you means the Business.

2 General terms

2.1 Eligibility and other important information

(a) MYOB Atlas is only available to genuine New Zealand businesses for the purpose of promoting and growing a business online. Only one MYOB Atlas Service is available per Business.

(b) The website you create using MYOB Atlas is subject to storage limitations associated with your chosen plan. Storage limits are outlined in the MYOB Atlas Learning Centre.

(c) Monthly charges for the pricing plan you select will be applied in accordance with these Terms. Details of the monthly pricing plan for your MYOB Atlas Service can be found by logging into your website and going to the My account page. This monthly charge will be applied in accordance with these Terms.

(d) To maintain your MYOB Atlas Service beyond the first 12 months, it is your responsibility to provide your payment information to us. Refer to section 5 below for more information.

(e) You can cancel your MYOB Atlas Service at any time. Refer to section 5 below for more information.

2.2 Responsibilities you have as a user of MYOB Atlas

(a) No interference with MYOB Atlas - you will not:

1. interfere with the operation of MYOB Atlas or overload the system;
2. reverse-engineer, reverse-assemble, decompile, or otherwise attempt to discover source code, formulas or processes in respect of the software behind MYOB Atlas;
3. sell, rent, distribute, copy, reproduce, alter, modify, create derivative works, or publicly display, any part of any content from MYOB Atlas except where we have given you permission; or
4. use MYOB Atlas (or allow it to be used) for any purpose other than to set up a website for the promotion of your business.

(b) Cooperation and limited authority in relation to Third Parties - you:

1. must do all things we consider appropriate to enable us to fulfil our obligations to Third Parties in relation to MYOB Atlas; and
2. authorise us to give a Third Party or other person any authority, consent or instruction in respect of MYOB Atlas, to enable us to provide the MYOB Atlas Service to you.

    

(c) Providing details to register for MYOB Atlas - Any details which you provide to us as part of the registration process for the MYOB Atlas Service must be correct. You must let us know of any changes to your details, and provide any proof of the change we require.

(d) Comply with laws and regulations - You must not use or permit the use of the MYOB Atlas Service in a way which contravenes any applicable laws or regulations.

2.3 Use of MYOB Atlas and intellectual property

(a) What you can do - Until your use of the MYOB Atlas Service is terminated, you have a non-exclusive and non-transferable right to use the MYOB Atlas Service in the way that we authorise from time to time.

(b) We retain our intellectual property rights - Except where specifically set out in these Terms, these Terms do not give you any intellectual property or other rights in any of our:

• software, documents, templates, marketing material, trademarks, business names, logos, trading styles, get-up, processes or methodologies; or
• other intellectual property,
• and you (including your staff, agents or contractors) must not otherwise use, reproduce or modify these intellectual property rights. Without limitation, you must not remove, obscure or amend any copyright or trade mark notices within the MYOB Atlas Service.

(c) You retain your intellectual property rights - These Terms do not give us any intellectual property or other rights in any of any content which you display on, or transmit through, the MYOB Atlas Service. To enable us to provide the MYOB Atlas Service to you, you grant to us a worldwide, non-exclusive and royalty free licence to reproduce, publically display and distribute any of the content which you display on, or transmit through, the MYOB Atlas Service.

(d) You are responsible for content

• you are solely responsible for the content which you display on, or transmit through, the MYOB Atlas Service;
• you acknowledge that we have the right to review any content on your MYOB Atlas website, which may result in removal of some or all of the content on your MYOB Atlas website;
• you must not use any trademarks, business names, logos, trading styles, or get-up, of any person in any way which is intended, or likely, to cause confusion about the ownership of those trademarks, business names, logos, trading styles, or get-up; and
• you are solely responsible for protecting any intellectual property or other rights which you have in any of any content which you display on, or transmit through, the MYOB Atlas Service.

2.4 Payment of Fees and Credit Card Authority

(a) You must pay us all Fees due to us in relation to your use of MYOB Atlas, on the due date.

(b) By giving you at least 20 Business Days' notice before the change takes effect, we may:

• change the amount of any Fee and introduce a new Fee; and
• change the circumstances in which, or frequency with which, a Fee is payable.

Section 8 tells you about the ways in which we can give you notice.

(c) You authorise us to deduct monthly or annual instalments and any other Fees payable to us in respect of your use of MYOB Atlas. You give us this authority by providing us with your credit card details.

(d) Debiting of Fees will occur in accordance with MYOB's Terms for Purchasing Online in Australia (but may occur at other times as required or permitted under these Terms) and can be in advance or in arrears as we determine. We will provide a monthly statement/tax invoice detailing the Fees that have been debited.

(e) Upgrading and downgrading:

• Monthly Subscriptions - the full monthly payment will be pro-rated for the remaining days in the current month. Subsequent recurring payments will then be processed on the first working day of the following month.
• Annual Subscriptions - the full annual payment will be pro-rated for the remaining days in the current month plus the next 11 months. Subsequent payments will be processed on the 1st day of the next annual period.

(f) It is your responsibility to ensure you have sufficient credit available on your nominated credit card to cover your monthly payment and that your card details are current and correct.

(g) If the debit to your card is declined, we will attempt to re-draw 3 times. If these attempts fail, we will advise you by email of the decline and your MYOB Atlas Service will be suspended.

(h) If you believe there has been an error in debiting your bank account or credit card, you should immediately contact the MYOB Accounts Department by phone on +61 3 9222 9782 or via email at accounts@myob.com so that we can resolve your query promptly.

2.5 Goods and services tax (GST)

All payments due to us unless already stated to be GST inclusive, are to be increased by the amount of any GST liability we have in relation to supplies we make to which those payments relate.

3 Domain name service

3.1 .co.nz domain name licence at no charge for 12 months

(a) If you agree to the .nz Domain Name Commission registrant obligations in the .nz Registrant Agreement available at http://myobatlas.com/pdfs/MYOB-Atlas-.nz-registrant-agreement.pdf, you can apply to register a .co.nz domain name at no charge for the initial 12 month license term.

(b) Registration of a .co.nz domain name at no charge is your responsibility and is limited to one domain name licence per genuine NZ business. Follow the prompts within MYOB Atlas.

(c) The initial .co.nz domain name licence is valid for 12 months, after which a renewal charge will apply for minimum of 12 months and up to a maximum of ten (10) years.

3.2 .nz domain name registrations

(a) You are entitled to transfer your domain name registration to another registrar, and we will facilitate such transfer for you according to our obligations under the Domain Name Commission's published policies (see http://www.dnc.org.nz).

(b) You are bound by the .nz Dispute Resolution Service Policy and Procedures in relation to your registered domain name, as well as such other dispute resolution policy which may be adopted by .nz DNC from time to time.

(c) Renewal of your .nz domain name licence is your responsibility. If you choose not to renew your .nz domain name, your website's address will revert to the myob.net domain name supplied during signup for MYOB Atlas.

(d) Any Fees in respect of the registration and/or renewal of a domain name licence are non-refundable.

3.3 Using a business-name.myob.net address or a pre-existing domain name

(a) Your MYOB Atlas website will automatically be assigned a temporary business-name.myob.net domain name.

(b) You may continue to use the temporary business-name.myob.net domain name.

(c) If you already have one or more domain names which you wish to use with your MYOB Atlas website, you can do so at no additional cost.

(d) You can purchase addition domain names at your own expense at any time.

4 Availability of the MYOB Atlas Service

The MYOB Atlas Service could be disrupted if systems failure occurs due to technology used by either us or Third Parties involved in providing the MYOB Atlas Service.

The MYOB Atlas Service may also be unavailable for short periods because of necessary or desirable system maintenance or upgrades. If this is needed, we will try to inform you beforehand.

Subject to the terms of section 6 below, we are not responsible or liable to the Business for any Loss or Claim arising from the MYOB Atlas Service or any part of it being delayed, disrupted or unavailable.

5 Termination

5.1 How can you end your participation in MYOB Atlas?

(a) You can cancel your participation in MYOB Atlas at any time during your free one-year period by giving us written notice. The effective date of termination will be 5 Business Days after you have provided notice. Your participation in MYOB Atlas will cease on the effective date of termination. Refer also to section 5.3 below for important content about what happens on the effective date of termination.

(b) To maintain your MYOB Atlas Service beyond the first 12 months, it is your responsibility to provide your payment information to us. If you do not provide that information to us, then your participation in MYOB Atlas will end on the last day of the free one-year period. You will have no further access to MYOB Atlas or your data after that date. The data will be deleted from our servers.

(c) You can cancel your paid subscription to MYOB Atlas at any time by giving us at least 5 Business Days written notice before the end of the current month of your subscription. The effective date of termination will be the last day of the current month of your paid subscription. During the notice period, you are still liable for any Fees in relation to your use of MYOB Atlas up to the effective date of termination. Your participation in MYOB Atlas will cease on the effective date of termination. Refer also to section 5.3 below for important content about what happens on the effective date of termination.

5.2 When we can terminate your participation in MYOB Atlas without prior notice

(a) Circumstances

These are the situations in which we can terminate your participation in MYOB Atlas without prior notice. We will notify you of your suspension or termination as soon as possible.

The situations are:

A breach occurs:

• you fail to remedy a material breach of these terms and conditions within 5 Business Days after we notify you of the breach; or

Something happens in relation to MYOB Atlas:

• in our opinion, a change to any Third Party arrangement necessary for MYOB Atlas renders the ongoing operation of MYOB Atlas substantially unworkable or non-functional;
• in our opinion, the actions of a regulator or a change in law or regulation makes the ongoing operation of MYOB Atlas substantially unworkable or non-functional; or
• we believe this is necessary either to protect the security, integrity or reputation of MYOB Atlas or any MYOB Atlas function, service or facility, or to otherwise protect our interests;

We have concerns about your Business:

• you go into liquidation, administration, insolvency, bankruptcy or such other similar arrangement with creditors, or in our opinion, it is reasonably likely you will do so; or

(b) Notification

• We will make reasonable attempts to notify you in writing (which includes by email) of the termination.
• We can reinstate a termination in our absolute discretion by written notice to you, and this takes effect on receipt or any later time specified in the notice, subject to you meeting any conditions set out in the notice.
• If you become aware that a circumstance which would permit us to terminate your participation or use under section 5.2(a) has arisen or may arise, you must advise us in writing as soon as possible.

5.3 Termination of MYOB Atlas Business Card subscriptions

(a) This section applies to MYOB Atlas participants who have subscribed to our non-paid MYOB Atlas Business Card Service.

(b) We can terminate your participation in MYOB Atlas when your MYOB Atlas Business Card webpage has been activated for 12 months or more, and:

• your MYOB Atlas Business Card webpage has either never had a .co.nz domain name attached to it; or
• you have a single .co.nz domain name attached to your MYOB Atlas Business Card webpage, which has expired.

(c) We will provide you with at least 20 Business Days' prior notice of the termination of your MYOB Atlas Service.

(d) The notification and reinstatement provisions outlined in section 5.2(b) above also apply to this section.

5.4 What happens on the effective date of termination?

(a) Your cancellation of your MYOB Atlas Service or our termination of your MYOB Atlas Business Card subscription - Should you choose to cancel your MYOB Atlas Service under section 5.1(a) above, or if you are an MYOB Atlas Business Card user who has had your participation in MYOB Atlas terminated under section 5.3 above, you will have no further access to MYOB Atlas or your data after the effective date of termination. The data will be deleted from our servers. We strongly recommend that you extract your data for archive purposes.

(b) Continuation of limitations on liability - Any limitations on liability which you have given under the Terms continue after termination in relation to your use of MYOB Atlas.

6 Liability, warranties, representations and indemnities

To the extent permitted by law:

(a) No warranty that MYOB Atlas is suitable for your needs

MYOB Atlas is a generic service and its capabilities are likely to change over time. This means that MYOB Atlas may not be, or may not remain, suitable for your needs.

You must assess the ongoing suitability of MYOB Atlas for you and your Business. We are not aware of your individual business needs and cannot provide any specific recommendations regarding your use of MYOB Atlas.

(b) Liability for other guarantees, conditions or warranties

our maximum aggregate liability to you:

• for failure to comply with a consumer guarantee in respect of the supply, failure to supply or unavailability of the MYOB Atlas Service; and
• for loss or damage suffered by you as a result of any misrepresentation, negligence, default or other breach of these Terms by us

is limited, at MYOB's option in its sole discretion to:

• the resupply of the MYOB Atlas Service; or
• the payment of the cost of resupply of the MYOB Atlas Service; and
• all representations, conditions, warranties and terms (including claims in relation to our performance, the performance of MYOB Atlas or any service associated with MYOB Atlas) that would otherwise be expressed or implied in these Terms, by general law, statute or custom are expressly excluded.

(c) When we and Third Parties will not be liable to you

We and Third Parties are not responsible or liable to you or the Business for:

• any Loss or Claim relating to the provision of data made available through MYOB Atlas, including delays, disruptions, inaccuracies or the loss of data;
• any Loss or Claim relating to your use of, or reliance upon, data provided to you through MYOB Atlas;
• the actions or inaction of Third Parties or other persons (including those which may be negligent or unauthorised) relating to MYOB Atlas;
• any Loss or Claim arising from a failure by us to comply with the Terms for any cause which could not reasonably be controlled or prevented by us; or
• any Loss or Claim arising from a failure by you or the Business to maintain archive records of your data.

(d) Indemnity to us and Third Parties

You indemnify us, our staff and Third Parties (Indemnified Parties) against any Loss or Claim suffered or incurred by the Indemnified Parties or any of them arising from your action including negligence, misrepresentation, fraud, breach of law or breach of the Terms.

(d) Consumer Guarantees Act

You acknowledge and accept that you are using the MYOB Atlas Service for the purposes of a business and the provisions of the Consumer Guarantees Act 1993 do not apply in relation to the provision of the MYOB Atlas Service.

7 Changes to Terms

(a) What can we do? We may change any of the Terms (including the Fees, which are specifically dealt with in section 2.4(b) above).

(b) Prior notice - We'll give you at least 10 days' prior notice (longer if required by legislation or any other code of conduct we subscribe to) of any change that is likely to materially affect or disrupt the manner in which you use MYOB Atlas.

(c) Urgent changes - However if we need to restore or maintain the security of MYOB Atlas immediately, we may change your use and access to MYOB Atlas without advance notice.

8 Notices

You agree that all communications between you and us in relation to MYOB Atlas will be by email or by us posting a notification on your MYOB Atlas website, unless another method is agreed to by the addressee.

Where these terms refer to you or us providing a notice in writing, this means that we or you can send an email. Any notice or other communication to or by a party by email is regarded as being given by the sender and received by the addressee when a delivery confirmation report is received by the sender which records the time that the email was delivered to the addressee's email address (unless the sender receives a delivery failure notification indicating that the email has not been delivered to the addressee).

If the delivery or receipt is on a day which is not a Business Day or is after 5.00pm (addressee's time) it is regarded as received at 9.00am on the following Business Day.

We may provide a notice or other communication to you by a posting to your MYOB Atlas website. That notice or other communication is regarded as being given by us and received by you when the posting is made to the MYOB Atlas website. We recommend that you regularly check your MYOB Atlas website for notices or other communications.

9 Legal

You should note a few things about the Terms:

(a) This is our complete agreement - The Terms and the documents incorporated by reference, including your application, contain the whole of the agreement between us and you in relation to MYOB Atlas. Any representations or warranties made by our staff before you are accepted for participation in MYOB Atlas are not effective unless expressly set out in the Terms. Any waiver of our rights or powers under these Terms may only be given in writing signed by our authorised officer.

(b) What happens if some of the Terms can't operate? If any part or provision of these Terms are void, unenforceable or illegal in a jurisdiction, that part or provision does not apply in that jurisdiction. However, the remainder of the Terms continue in operation in that jurisdiction unless this would alter the basic agreement between you and us, in which case we can terminate your use of MYOB Atlas at our election.

(c) No waiver by us - If we do not insist upon strict performance of any part or provision of these Terms, that waiver will not be deemed to be a waiver of a subsequent breach or default of these Terms.

(d) Assignment - You cannot assign or otherwise transfer the benefit of the agreement between us and you without our prior written consent. We can assign or otherwise transfer the benefit of the agreement between us and you.

(e) Which laws apply to the Terms? The Terms are governed by the laws of New Zealand and the courts of New Zealand have jurisdiction over the parties to the Terms (being you and us).

10 Your privacy

The collection of limited Personal Information is essential to our ability to provide MYOB Atlas. The collection, use and disclosure of your Personal Information by us is regulated by the Privacy Act and other laws which protect your privacy. For more about our policy on the management of your Personal Information, see MYOB s Group Privacy Statement which is available by request or by clicking the Privacy link on www.myob.co.nz.

If you are participating in the GetOnline campaign:

• You consent to the sharing of information including your Personal Information between us and Westpac New Zealand Limited (Westpac NZ) in relation to your application for and, if you are approved, the ongoing administration and marketing of the GetOnline campaign.

If you have identified yourself as an MYOB or Westpac customer:

• You consent to the sharing of information including your Personal Information with MYOB and/or Westpac NZ, as specified, for the purpose of improving product integration and your customer experience. Each marketing message sent to you by MYOB or Westpac NZ will describe a clear process to unsubscribe from further messages.

If you have opted to receive occasional updates from MYOB or Westpac:

• You consent to the sharing of information including your Personal Information between us and Westpac NZ for the purpose of marketing MYOB or Westpac NZ products to you. Each marketing message sent to you by MYOB or Westpac NZ will describe a clear process to unsubscribe from further messages.

We will monitor and record the browsing activity of visitors to your MYOB Atlas website. This data may be shared with you.

We may share your Personal Information with service providers we have retained to perform services on our behalf, such as providing web hosting or database management services, performing analyses, or sending communications for us. We do not authorise service providers to use or disclose the information, except as necessary to perform services on our behalf.

MYOB Atlas, Atlas by MYOB, the Atlas logo and the MYOB Atlas & Atlas logo are trade marks of MYOB Technology Pty Ltd