Terms of Use including Software Agreement

Definitions

These Terms of Use (including the 'Software Agreement') apply to anyone who visits the WorkflowMax website or uses any of our products or services. Your use of our website, products or services constitutes your acceptance of these Terms of Use. In these Terms of Use and generally on the WorkflowMax website.

"we", "our" or "us" means Xero Limited (which is listed on the Australian Securities Exchange (ASX)) and all current and future global subsidiaries of Xero Limited including, without limitation Xero (NZ) Limited (New Zealand), Xero, Inc. (United States), Xero Australia Pty Limited (Australia), and Xero (UK) Limited (United Kingdom);

"you" means you, the person using our Services;

"Intellectual Property Rights" includes without limitation any copyright, patents, trade marks, design rights or database rights, whether registrable or not, and whether registered or not, and also includes any other proprietary rights, trade secrets or rights of publicity, privacy or confidentiality;

"Licence" means the permission we give to you to use our Software products and which is given under the terms of the relevant Software Agreement;

"Services" means all products, goods or services we provide to you including our Website;

"Software" means the software we provide to you as part of our products and means for example the WorkflowMax software;

"Software Agreement" means the relevant licence agreement under which any of our Software products are purchased and comprises the terms and conditions contained in these Terms of Use which are expressly or by implication intended to apply to the licence of the Software;

"Website" means the WorkflowMax website;

"User" means a person setup to use the Services and is a person who can have all available or limited privileges in using the Software. It is possible to create a User who will never access the system, the functions of such a user will be performed by a user with a higher degree of security privileges.

Any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or bylaw made under that enactment.

The headings to the clauses of these Terms of Use are for convenience only and do not affect its interpretation.

In addition to these 'Terms of Use' other contractual terms may apply to some Services. It is important that you are familiar with all of the terms applying to your use of our Services.

Licence
We distribute all of our Software under 'commercial' licences. The User may operate the Software by logging in under the User's account only once at any given time and on only one server at a time (a 'per user' licence). Each licence is non-exclusive, non-transferable, temporary (for the period specified) and revocable.

Transferring Licences / Upgrades
Licences cannot be transferred to other parties. This applies to both general software and upgrades. Upgrade packages are applicable only to the company who purchased the original software.  Any upgrades are supplied subject to the same terms and conditions as the original software.

Distribution
We house all software on our owned/rented servers. Unauthorized distribution without prior consent is strictly prohibited.

Warranty/Refunds
These Terms of Use replace any previous Terms of Use. We accept no responsibility for problems arising from the use or abuse of any of our Services. No refunds will be made in any circumstances.   Our Services are provided on an 'as is' basis.  Any warranties whether express or implied including but not limited to warranties as to ownership, merchantability and fitness for purpose are hereby excluded to the maximum extent permissible by law.  In no event shall we be liable for any direct, indirect, incidental, special, exemplary or consequential damages, (including but not limited to procurement of substitute goods or services, loss of use, data, revenue, profits, contracts, business, anticipated savings, business interruption, loss of goodwill or reputation) however arising, including negligence, relating to these Terms of Use or the use of our Services.

In the event that we are held liable to you, our maximum total liability will be the total amount of the licence fee paid by you to us in the continuous 1 month period immediately prior to the bringing of such claim or $50 whichever is the greater.

Indemnity
You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, officers, directors, agents, and employees, harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your use of our Services or your breach of these Terms of Use, any applicable law or the rights of a third party.

Password and Security
You must maintain the confidentiality of any passwords in respect of your account and are fully responsible for all activities that occur under your password or account. You agree to notify us immediately of any disclosure or unauthorized use of your password or account or any other breach of security and to ensure that you exit from your account at the end of each session.

Ownership
You acknowledge that we or our suppliers own any Intellectual Property Rights which subsist in any aspect of our Website, products, goods or services.

Restrictions on Use of Software
You may not copy, publish, de-compile, or reverse engineer the Software or use the Software other than either (a) as is strictly necessary to facilitate the provision of the Services to you or (b) in accordance with any statutory rights you may have to do so.

Accuracy of Information, etc.
Your activities on our Website and any information provided by you to us including but not limited to any information provided in your registration details must not:

  • be false or misleading and you agree to keep us updated with any changes to that information;

  • be offensive, defamatory, indecent or in breach of any applicable laws or regulations;

  • infringe any third party's rights including but not limited to any third party Intellectual Property Rights;

  • create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other suppliers;

  • contain any computer viruses, macro viruses, trojan horses, worms or anything else designed to interfere with, interrupt or disrupt the normal operating procedures of a computer or to surreptitiously intercept, access without authority or expropriate any system, data or personal information;

  • cause the Website or any other Services to be impaired, interrupted, damaged or rendered less efficient or less effective.

Privacy:
We respect your privacy, the privacy of your data and the privacy of all users and visitors. All information and data entered by you into the system is treated as confidential. We will not sell, rent, lease, or give away your data, our user list, email addresses or any other personal information unless required by law to do so.  We will not contact you unless you opt-in to a user email list or have requested to be notified of bug-fixes or new features.

We may, from time to time, gather specific data from user browsers as they enter and exit the site. This information is standard, and contains data such as referring URL, pages viewed, and amount of time spent on the site. This data is used for internal calculations of traffic, platform, and download counts.

Any information collected may be used to investigate any possible breach of these Terms of Use or illegality.

We will endeavour to keep your information safe and secure. Unfortunately, due to the very nature and environment of the internet, we cannot ensure that all communications and personally identifiable information will never be disclosed.

Termination
Your Licence will terminate automatically on the expiry of the period for the applicable licence fee or in the case of failure to pay any required licence fee. We may terminate your Licence immediately and without notice in the event of any breach of these Terms of Use by you or on the occurrence of any external event requiring us to cease provision of the Services. Those clauses which are either expressly or by implication intended to survive termination shall survive termination including without limitation those clauses headed Indemnity, Ownership, Severance, Proper Law and Jurisdiction, Set-Off and Waiver.  Termination shall not affect any rights which have accrued prior to termination.

Notices
Any notice required to be given by us to you shall be sent to the e-mail address provided by you in your registration details or as updated by you from time to time in accordance with proper use of our Website.  Any such notice shall be deemed (a) to be notice in writing and (b) to have been received 24 hours after being sent.  Any notice required to be given by you to us under this Agreement shall be sent to the postal address provided under our contact details on our Website and as updated from time to time.

Force Majeure
We shall not be liable for any delay or failure in performing these Terms of Use which results from circumstances outside our reasonable control.

Third Parties
These Terms of Use are intended to confer a benefit on our proper assigns and successors but are not intended to confer any rights on any other third parties whether pursuant to the Contracts (Privity) Act 1982 or otherwise.

Severance
Any term or condition of these Terms of Use which is found to be unlawful, void or unenforceable shall to the extent required be severed and be rendered ineffective as far as possible without modifying the remaining terms and conditions.

Proper Law and Jurisdiction
If the information or Data You are accessing using the Services is solely that of a person who is a tax resident in New Zealand, then New Zealand law governs this Agreement and You submit to the exclusive jurisdiction of the courts of New Zealand for all disputes arising out of or in connection with this Agreement. If the information or Data You are accessing using the Services is solely that of a person who is a tax resident in Australia, then Australian law governs this Agreement and You submit to the exclusive jurisdiction of the courts of Australia for all disputes arising out of or in connection with this Agreement. In all other situations this Agreement is governed by the laws of New Zealand and You hereby submit to the exclusive jurisdiction of the courts of New Zealand for all disputes arising out of or in connection with this Agreement.

Set-Off
Where you have incurred any liability to us, whether under these Terms of Use or otherwise, we reserve the right to set-off the amount of such liability against any sum that would otherwise be due to you in relation to these Terms of Use.

Waiver
Any delay or failure by us in enforcing any right under these Terms of Use is not a waiver of that right and will not prevent that right or any other right or remedy from being exercised or enforced.

These Terms of Use were last updated at the close of business on 2 February 2018 to remove references to the New Zealand Stock Exchange (NZX) following our delisting from the NZX. On 5 February 2018 we will have a sole listing on the ASX. This change will be effective immediately.