End user licence agreement and terms and conditions

RECITALS

A. Censea Software Corporation Pty Ltd (the Licensor ) has agreed to provide to you (the Licensee, being a natural person or legal entity) a non-exclusive, non-transferrable and revocable licence to use the BarBooks accounting software package (the Licence).

B. The Licence encompasses the current version of the BarBooks accounting software package, and, subject to the terms and conditions set forth hereinbelow, any updates, patches, other plug-ins or mobile versions of the BarBooks software accounting package that the Licensor may release from time to time (together, BarBooks).

C. The Licensee has agreed to purchase the Licence on the terms and conditions set forth hereinbelow (the EULA). In particular, by downloading, installing and using BarBooks, the Licensee agrees to be bound by the EULA. In the event that the Licensee does not agree with any part of the EULA, he, she or it may not download, install or use BarBooks.

OPERATIVE PART

1. LICENCE

1.1. The Licensor hereby agrees to grant the Licensee a non-exclusive licence to download, install and use BarBooks.

1.2. Subject to this EULA, the Licensee may download, install and use BarBooks for one free trial of 14 days’ duration (or such other greater period as the Licensor, in its absolute discretion, may grant from time to time). At the expiry of that period, the Licensee must either:

1.2.1. purchase a continuing licence to use BarBooks in accordance with clause 2 below; or 1.2.2. cease to use BarBooks and must uninstall it from his, her or its system.

1.3. This Licence permits the Licensee to use BarBooks on as many devices as he, she or it wishes. However, the use of BarBooks must in each case be by the Licensee or for his, her or its own benefit. The Licensee must not allow, permit or encourage any third party to use BarBooks for that third party’s benefit, unless the third party has entered into a separate EULA with the Licensor.

1.4. The Licence commences on the date of acceptance of this EULA (which acceptance is communicated by the Licensee downloading, installing and using BarBooks) and ends upon termination.

1.5. The Licence granted by this clause (and this EULA) is non-exclusive, non-transferrable (either by sublicense, transfer, assignment or otherwise) and may be terminated by the Licensor in the circumstances set forth hereinbelow.

2. PAYMENT

2.1. From the expiry of any free trial, the Licensee must pay to the Licensor in advance a monthly or annual fee (as applicable) for the use of BarBooks (the Licence Fee).

2.2. The Licence Fee is subject to, but exclusive of, any Goods and Services Tax (or other value-added tax), which must also be paid by the Licensee to the Licensor in accordance with the applicable taxation legislation.

2.3. The Licence Fee (and any Goods and Services Tax or other value-added tax) is payable by the Licensee to the Licensor in such amount, in such manner and by such method as the Licensor may from time to time direct. In particular, the Licensee hereby authorises the Licensor to debit from his, her or its nominated debit or credit account the amount of the Licence Fee on the due date for payment.

2.4. The Licensor may increase the Licence Fee for any future monthly or annual period (as applicable) at any time in its absolute discretion upon the giving of 30 days’ notice. The Licensor may also charge the Licensee an additional Licence Fee (in an amount determined by the Licensor in its absolute discretion) for any additional service or software module developed by it (as designated and identified by the Licensor in its absolute discretion), upon the giving of 30 days’ notice. Such additional Licence Fee may be charged on an annual or monthly basis by the Licensor according to the form of subscription selected by the Licensee, or as the Licensor may in its absolute discretion determine.

2.5. The Licence Fee is payable by the Licensee whether or not a tax invoice/ receipt has first been issued by the Licensor in respect of the Licence Fee. However, the Licensor will issue to the Licensee a tax invoice/ receipt for each payment of the License Fee within a reasonable time of the due date for such payment.

2.6. In the event that the Licensee fails to pay any part of the Licence Fee and such failure continues for more than 7 days from the due date for payment, the Licensor may charge interest on the unpaid amount at the rate of 4% above the Reserve Bank cash target rate from time to time. However, before such interest can be charged, the Licensor must notify the Licensee in writing of its intention to charge interest, and provide the Licensee with 7 days from the date of that notification within which to pay the outstanding amount in satisfaction of which no interest will become payable. This restriction applies only to the first charge made for interest. Any subsequent charges for interest may be made by the Licensor without prior notification in its absolute discretion.

3.UPDATES AND SUPPORT

3.1. The Licence granted to the Licensee by this EULA includes all updates, patches or other plug-ins to BarBooks, and any mobile versions of BarBooks, which may be released by the Licensor from time to time. The Licensor undertakes to inform the Licensee of any update, patch, or other plug-in a reasonable time after its release and the Licensee hereby authorises the Licensor to contact him, her or it for that purpose. The Licensee hereby agrees that he, she or it must download and install any such update, patch or plug-in within a reasonable time after its release. Any such update is subject to the terms and conditions contained in this EULA.

3.2. The Licence granted to the Licensee by this EULA includes the basic BarBooks platform and any additional service or software module (as designated and identified by the Licensor in its absolute discretion) developed and made available by the Licensor from time to time and subscribed to by the Licensee. However, notwithstanding any other provision contained in this EULA, any such additional service or software module will not be considered to form part of the basic BarBooks platform subject to the basic Licence Fee but will instead be made available for licence to the Licensee as an add-on or plug-in upon the payment of an additional Licence Fee in accordance with clause 2.4 above.

3.3. Any additional service or software module developed by the Licensor and made available to the Licensee pursuant to clause 3.2 above will be provided on an opt-out basis. The Licensor will notify the Licensee of the addition of such module, any additional Licence Fee payable and of the opportunity for the Licensee to opt-out of the module before any additional Licence Fee becomes payable in accordance with clause 2.4 above. Such notification may be provided either in written correspondence (which may be sent to the electronic mail address notified by the Licensee to the Licensor) or through an in-app notification.

3.4. Payment of the Licence Fee by the Licensee, and the grant of the Licence pursuant to this EULA, includes the provision to the Licensee of reasonable technical support in a form decided by the Licensor from time to time in its absolute discretion. Any such technical support is subject to the terms and conditions herein.

3.5. The Licensor will use its best endeavours to correct within a reasonable time any error, defect or problematic functionality experienced by the Licensee in his, her or its use of the current version of BarBooks. The Licensee acknowledges that the Licensor does not undertake to provide any support for superseded versions of BarBooks. In this regard, the Licensee acknowledges his, her or its obligation to keep BarBooks updated in accordance with the provisions in clause 3.1 above.

3.6. In order to assist the Licensor in providing the reasonable technical support referred to in clauses 3.4 and 3.5 above, the Licensee must clearly communicate the nature of the problem to the Licensor and provide the Licensor with as much evidence of error, defect or problematic functionality as possible including, for example, screen dumps where appropriate, so that the Licensor can use its best endeavours to correct the problem.

4. INTELLECTUAL PROPERTY AND OTHER RIGHTS

4.1. Notwithstanding any other provision of this EULA, the copyright and other intellectual property in BarBooks remains the property of the Licensor. The Licensee acquires no interest or right in BarBooks otherwise than as expressly set forth herein.

4.2. The Licensee acquires no interest or right in, or to use, any trademark owned by the Licensor or BarBooks by entry into this EULA.

4.3. The Licensor hereby reserves its exclusive right to grant licences to third parties to download, install and use BarBooks.

4.4. The Licensee hereby permits the Licensor to implement and use technical measures to remotely monitor the Licensee’s use of BarBooks to ensure there is no unauthorised or unlicensed use of BarBooks and no breach of this EULA.

4.5. The Licensee must not alter, modify, adapt or translate BarBooks in any way whatsoever, nor permit any part of BarBooks to become incorporated into any other software program. The Licensee must not reverse-engineer, decompile or disassemble BarBooks except to the extent to which such reverse-engineering, decompiling or disassembling is permitted by law. The Licensee is permitted to use content delivered to it through the BarBooks platform only on the platform.

4.6. The Licensee hereby licenses to the Licensor, its subsidiaries, and any third party service providers engaged by the Licensor as described in clause 5.7 below (Service Provider), any information, data, passwords, materials or other content (collectively, Content) the Licensee provides through or to the BarBooks platform. The Licensor, its subsidiaries, and/or Service Provider may use, modify, display, distribute and create new material using such Content to provide the platform and services to the Licensee. By submitting Content, the Licensee agrees, or promises that the owner of such Content has expressly agreed, that without any time limit, and without the payment of any fees, the Licensor, its subsidiaries, and/or Service Provider may use the Content for the purposes set out in this EULA. As between the Licensor and Service Provider, the Licensor owns the Licensee’s confidential account information.

5. WARRANTIES AND SERVICE PROVIDERS

5.1. The Licensee acknowledges that:

5.1.1. BarBooks, including any additional software or service modules, has not been guaranteed by the Licensor to be error free, may contain errors and that any errors in BarBooks are not a breach of this EULA;
5.1.2. BarBooks has not been developed to meet the Licensee’s individual requirements;
5.1.3. it is the Licensee’s responsibility to ensure that BarBooks meets his, her or its requirements; and
5.1.4. for the purposes of clause 5.1.3 above, he, she or it has been provided with a reasonable period (including the duration of any free trial) to examine BarBooks before being required to pay the Licence Fee in accordance with the terms of this EULA and is satisfied as a result of that examination that BarBooks is suitable for that purpose.

5.2. In the event that the Licensor is unable within a reasonable time to correct an error, defect or problematic functionality in BarBooks in accordance with clause 3.5 above, the Licensor may in its absolute discretion refund the whole or part of the Licensee Fee paid by the Licensee.

5.3. The Licensee acknowledges and agrees that, subject to clause 5.2 above and to the fullest extent permitted by law, the Licensor is not to be liable for any other loss or damage suffered by the Licensee as a result of its downloading, installing or using BarBooks (or any additional software or service module), whether such loss or damage is direct or indirect, consequential or otherwise whatsoever, and any such liability otherwise subsisting is hereby expressly negatived. This includes, without limitation, any loss suffered by the Licensee as a result of the operation of any taxation law or its administration, in connection with the provision of GST calculation and lodgement services by the Licensor’s subsidiary, Barrister Administration Services Pty Ltd. The Licensee agrees to indemnify the Licensor, its subsidiaries, and Service Provider and their affiliates from any and all claims, liability, damages, expenses and costs (including, but not limited to, legal fees on a solicitor and own client basis) caused by or arising from the Licensee’s use of the BarBooks platform and service (including any additional software or service modules), any violation by the Licensee of these terms or the Licensee’s infringement, or infringement by any other user of its account, of any intellectual property or other right of anyone.

5.4. Our goods come with guarantees that cannot be excluded under the Australian Consumer Law.

5.5. Subject to clause 5.4 above, all warranties other than those expressly set forth herein are hereby negatived to the fullest extent permitted by law.

5.6. The Licensee warrants that it has provided true, accurate, current and complete information about itself and its accounts maintained at other web sites or providers (if applicable) and agrees to not misrepresent its identity or account information. The Licensee agrees to keep its account information, and its Content, up to date and accurate. The Licensee acknowledges that, in providing BarBooks (and any other additional service or software module), the Licensee is warranting to the Licensor that the information (including Content) it provides is accurate and complete. In connection with the provision of GST calculation and lodgement services by the Licensor’s subsidiary, Barrister Administration Services Pty Ltd, the Licensee (a) specifically warrants that the Content provided by it will be complete and ready for processing and lodgement by no later than 14 days after the end of each calendar quarter, and (b) agrees that it will comply with any reasonable requirement imposed on it by the Licensor for the provision of these services.

5.7. The Licensor may deploy code developed by third party Service Providers or develop linkages with software or services provided by third party Service Providers in order to enhance the BarBooks platform or provide additional services to the Licensee. By using the BarBooks platform and service, the Licensee authorises the Licensor and Service Provider to access third party sites designated by the Licensee, on its behalf, to retrieve information requested by it, and to register for accounts requested by it. For all purposes hereof, the Licensee hereby grants the Licensor and Service Provider a limited power of attorney, and the Licensee hereby appoints the Licensor and Service Provider as its true and lawful attorney-in-fact and additionally as agent, with full power of substitution and resubstitution, for it and in its name, place and stead, in any and all capacities, to access third party internet sites, servers or documents, retrieve information, and use the Licensee’s information, all as described above, with the full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with such activities, as fully to all intents and purposes as the Licensee might or could do in person. The Licensee acknowledges and agrees that when the Licensor or Service Provider accesses and retrieves information from third party sites, the Licensor and Service Provider are acting as the Licensee’s agent, and not the agent or otherwise on behalf of the third party. The Licensee agrees that third party account providers shall be entitled to rely on the foregoing authorisation, agency and power of attorney granted by it. The Licensee understands and agrees that the BarBooks platform and service is not endorsed or sponsored by any third party account providers accessible through the BarBooks platform and service.

5.8. To the extent that BarBooks contains code that was not developed by the Licensor, the Licensor warrants that it holds any necessary licences to use that code and is authorised to sublicence it for use by the Licensee in accordance with this EULA.

6. PRIVACY

6.1. This EULA, and the relationship between the Licensor and the Licensee, is subject to the Licensor’s privacy policy. That policy can be accessed at http://www.barbooksaustralia.com/privacy-policy/

7. TERMINATION

7.1. In the event that the Licensee does not agree to pay the Licence Fee, does not agree to pay any increase in the Licence Fee that may be imposed by the Licensor from time to time, or the method of payment provided by the Licensee to the Licensor is dishonoured, and such failure to pay is not remedied within 7 days to the satisfaction of the Licensor, the Licensor may terminate the Licence in its absolute discretion.

7.2. In the event the Licensee offers to remedy any failure to pay outside of the 7 day period of grace provided for by clause 7.1, the Licensor will consider, in its absolute discretion, whether or not the offered remedy is adequate and ought result in the continuation of the Licence notwithstanding the provisions of clause 7.1.

7.3. The Licensor may also, in its absolute discretion, terminate the Licence without prior notice in the event that the Licensee breaches any other term or condition in this EULA.

7.4. The Licensor may also terminate the Licence in the event that it is placed into external administration, or passes a resolution for its winding up.

7.5. The Licensee may terminate the Licence upon the giving of 30 days’ written notice.

7.6. In the event that the Licence is terminated, the Licensee (and any personal or executive assistant or bookkeeper employed by the Licensee to operate BarBooks on his, her or its behalf) must delete BarBooks from his, her or its system, and may not at any time in the future download, install or use BarBooks unless he, she or it has:

7.6.1. paid to the Licensor any outstanding Licence Fee that is due and owing (together with any interest that is payable in accordance with clause 2 above); and
7.6.2. remedied, or offered to remedy, to the satisfaction of the Licensor, any other breach of this EULA.

7.7. There shall be no refund of any part of the Licence Fee already paid by reason of any termination of the Licence.

7.8. Any termination of the Licence or EULA will not affect accrued rights of the parties, nor will it affect any provision of this EULA which is by its terms intended to come into force upon, or in consequence of, such termination.

8. MISCELLANEOUS

8.1. This EULA is subject to the laws of New South Wales. In the event of any dispute, the Licensor and the Licensee hereby submit to the exclusive jurisdiction of the Courts of New South Wales.

8.2. This EULA constitutes the entire agreement between the Licensor and the Licensee and supersedes all previous or contemporaneous oral or written communications with respect to BarBooks or the subject-matter of this EULA.

8.3. To the fullest extent permitted by law, the express terms of this EULA supersede and exclude all warranties, conditions, terms, undertakings or obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise.

8.4. The Licensee expressly acknowledges and warrants that it has not entered into this EULA in reliance upon any representation made by the Licensor or any of its employees, agents or directors, and has only relied upon the terms of this EULA and his, her or its own inquiries in deciding to enter into this EULA and download, install and use BarBooks.

8.5. No delay by the Licensor in enforcing or exercising any of its rights under this EULA will prejudice or restrict the rights of the Licensor to enforce or exercise those rights and shall not be interpreted to be a waiver of those rights.

8.6. In this EULA:

8.6.1. any reference to legislation is a reference to that legislation as modified from time to time; and
8.6.2. any reference to a party includes a reference to its successors in title and permitted assigns; and
8.6.3. headings are for reference purposes only and are not to be used in the interpretation of this EULA.

8.7. Notwithstanding that the whole or any part of this EULA may prove to be illegal or unenforceable, the remaining provisions of the EULA shall remain in full force and effect.

8.8. The terms of this EULA may be varied or altered by the Licensor from time to time. The Licensee agrees that its continued use of BarBooks following such variation or alteration, and the continued payment of the Licence Fee, will constitute sufficient acceptance of any such variation or alteration. The Licensee acknowledges that updating this EULA and making its terms accessible to the Licensee through the provision of a link on the log-in page for the BarBooks app will be deemed to be sufficient notification of the revised terms for the purposes of this clause.