Terms of Service - Accounting software

Last updated: 27 April 2018. By registering for access to the Services and your continued use of the Services, you confirm you accept these Terms of Service and agree to be bound by them. These Terms of Service were last updated in April 2018. We may change these Terms of Service and will use reasonable endeavours to notify you of these changes. Your continued use of the Services following any changes indicate your acceptance of the changes.

1. Accounts

1.1 To access the Services, you must set up an account. You agree and acknowledge that:

all information you provide to Simplifi will be true, accurate, current and complete; and
if you create an account on behalf of another person, you are authorised to register to use the Services and agree to these Terms of Service on behalf of that person (without limiting your obligations under these Terms of Service).

1.2 You are responsible for maintaining the confidentially of your account and password and for all activity on or through your account (including unauthorised access by third parties) and you must not sell, transfer, license or assign your account, username, or any account rights.
1.3 You must notify Simplifi immediately of any unauthorised use of your account. Simplifi are not liable for any loss or damage arising in connection with any unauthorised use of your account.

2. Trial Period

2.1 If you are first time user of the Services, Simplifi may provide you with access to the Services for a Trial Period;
2.2 During the Trial Period:

the Services will be provided for evaluation only;
to the extent permitted by law and subject to consumer laws applicable to you, the Services are provided “as-is” and “as-available”, Simplifi does not make any warranties and exclude all liability arising from your use of the Services, including loss of data or Your Data; and
Simplifi may terminate your access to the Services during the Trial Period at any time.

2.3 At the end of the Trial Period:

you must pay the Fees as defined on our Website to continue using the Services;
any data entered or collected from the Services will be lost unless you purchase a Subscription

3. Services

3.1 Simplifi grants you a non-exclusive, non-transferable, limited licence to access and use the Services in accordance with your Subscription, including any new releases and updates of Services Simplifi may make available from time to time.
3.2 Simplifi may upgrade or update the Services at any time in its sole discretion
3.3 You acknowledge and agree that the Services do not constitute advice and you should seek legal, accounting or other relevant independent professional advice before taking any action in reliance on the Services.
3.4 You are solely responsible for:

determining whether the Services are suitable for your needs;
protecting Your Data, and taking appropriate measures to protect Your Data from accidental, unlawful or unauthorised access, use or disclosure;
complying with all applicable accounting, tax and other laws. You must check that storage of and access to Your Data will comply with all laws, including any laws requiring you to retain records

3.5 You must not:

use or access the Services in any unlawful way or for any illegal purpose;
use the Services in a manner that is excessive or unusual or creates an unfair burden on the provision of the Services, or similar services, to others (as judged in Simplifi’s reasonable discretion);
infringe the intellectual property rights, privacy or confidentiality of any third party;
impersonate any third person or attempt to impersonate any person when using the Services;
use the Services to distribute, send or publish any e-newsletters, bulk emails, unsolicited electronic messages or other forms of “spam”;
knowingly transmit any virus, worm or other disabling or malicious feature, or attempt to interfere with the operation of the Services;
use, modify or adapt the Service or any third party data in any way that is contrary to these Terms of Service;
on-sell, transfer, rent, lease or assign any copy of the Service to any third-party;
violate or attempt to violate any aspect of the security of the Services; or
modify, reverse engineer, disassemble, decompile, copy, or cause damage, disruption, unintended effect to, or interfere with, any portion of the features available through, or software in connection with Simplifi’s provision of the Services.

4. Support

4.1 Simplifi may update and carry out scheduled maintenance of the Services, so Simplifi may have to suspend access to, or functionality on, the Services from time to time. Simplifi will notify you of any scheduled maintenance that may interrupt the Services.
4.2 If You need technical help, please check the support provided online by Simplifi on the Website or failing that email us at support@simplifi-hq.com
4.3 If you initiate a support request, you grant Simplifi direct access to your account to provide you with such support.

5. Fees and payment

5.1 In consideration of Simplifi’s provision of the Service, you agree to pay Simplifi the fees as set out on the Website for the Subscription you have selected, plus any applicable taxes. Simplifi may change the Fees payable on notice to you.
5.2 Your Subscription will automatically renew, unless you give Simplifi notice prior to the end of the current term.
5.3 Where the service is terminated partway through a calendar month, the full monthly fee for that month will remain payable.
5.4 Simplifi will invoice you in advance for the provision of the Service. You will not be entitled to a refund of any Fees you have paid in advance.
5.5 You must nominate to have the Fees debited from your nominated bank account or paid by Debit/Credit card, and you authorise Simplifi to charge the ees to your nominated account/card each month.
5.6 If you fail to pay an invoice by the due date (as a result of a dishonoured payment on your nominated credit or debit card, bank account or otherwise), Simplifi may charge interest on overdue amounts at the rate of 1.5% per month, or the maximum amount permitted by law (whichever is greater) with interest accruing daily, and/or suspend your account and access to the Services until all overdue amounts are paid.

6. Third Party Products

6.1 The Services may contain features that interface with Third Party Products. If Third Party Products form part of your Subscription or Services, the following will apply:

your use of, and access to, any Third Party Products is subject to separate terms and conditions issued by the third party supplier of those products from time to time;
if requested, Simplifi will liaise with the third party supplier of the Third Party Products on your behalf;
Simplifi makes no representations or warranties in relation to any Third Party Products;
Simplifi may suspend your use of, or access to the Third Party Products if you breach the terms and conditions applicable to the Third Party Products or if Simplifi no longer uses such Third Party Products.

6.2 You acknowledge and agree Simplifi will make Your Data available to the providers of the Third Party Products subject to the terms of the Simplifi privacy policy.

7. Intellectual property rights

7.1 All copyright, database rights, trade marks and other intellectual property rights in The Service (including any such rights in our website) are either owned by or licensed to Simplifi and nothing in these Terms of Service shall transfer any ownership rights to you.
7.2 You grant Simplifi a non-exclusive licence to use Your Data for the purpose of performing Simplifi’s obligations under these Terms of Service.

8. Confidentiality and privacy

8.1 Each party must comply with applicable privacy law in connection with the collection, use, handling, disclosure, quality, security of and access to personal information that the party holds. Simplifi’s applicable Privacy Policies are at https://www.simplifi-hq.com/privacy-policy and you will be taken to have accepted that Privacy Policy by accepting these Terms of Service.
8.2 Both parties must keep all Confidential Information confidential and use such information for the sole purpose of performing the obligations under these Terms of Service.
8.3 Neither party may use or disclose the Confidential Information except:

to that party’s employees or advisers on a need-to-know basis and that party must ensure that such persons understand and comply with the obligations imposed by this clause 8;
as required by law, subject to that party notifying the other party immediately if that party becomes aware that such disclosure may be required; or
with the other party’s prior written consent.

9. Liability

9.1 Subject to clause (c) and to the fullest extent permitted by law:

the Services are provided “as-is” without warranty of any kind or representations regarding the use, performance or results of the use, of the Services;
in no event shall Simplifi be liable, whether such liability is based on breach of contract, tort (including negligence), statute or otherwise:
1. for any Third Party Products;
2. for any Consequential Loss, indirect, incidental, punitive or special losses of any kind (including loss of data, profit, business interruption or a security breach); and
3. any loss arising from activity on your account, including additional usage fees, loss of data or downtime caused by deliberate, inadvertent or unauthorised access by any party, or files that you upload, transmit, install or otherwise use in connection with the Services; and
Simplifi’s total aggregate liability in connection with all claims arising in relation to these Terms of Service whether in contract, tort (including negligence), statute or otherwise will not exceed the greater of (i) an amount equal to the Fees paid by you to Simplifi in the preceding 12 months prior to the date the claim is made; or (ii) NZD$500;

9.2 To the fullest extent permitted by law, where a mandatory term or statutory right cannot be waived, Simplifi’s liability is limited, at Simplifi’s option, to:

if the breach relates to goods:
the replacement of the goods or the supply of equivalent goods;
the repair of the goods;
the payment of the cost of replacing the goods; or
the payment of the cost of having the goods repaired; or

9.3 If the breach relates to services:

the supplying of the services again; or
the payment of the cost of having the services supplied again.

10. Security and Data

10.1 Simplifi will use reasonable precautions to prevent unauthorised disclosure of Your Data, but Simplifi shall not be responsible for any breach of its systems by any unauthorised third party unless such breach arises as a result of Simplifi’s gross negligence.
10.2 Simplifi does not represent or warrant that the Services are entirely secure, uninterrupted or error-free. You acknowledge that the public internet is an inherently insecure environment and rife with state sponsored hackers. While we suspect small business accounting is a low value target for hackers the risk remains. Having said that we’re cautious with security and aim to deliver a service in line with currently accepted security norms.

11. Suspension and termination

11.1 You may terminate the Services at any time by electronic notice via the Website.
11.2 Simplifi may terminate these Terms of Service on notice to you if you:

fail to remedy a breach within 7 days’ notice from Simplifi requesting the breach be remedied;
breach these Terms of Service and that breach is not capable of remedy; or

11.3 Upon the expiry or termination of these Terms of Service for any reason:

you must pay all outstanding Fees to Simplifi and any reasonable costs incurred by Simplifi as a result of the termination (including third party cancellation fees and administrative costs); and
Simplifi may (at its sole discretion) suspend for any definite or indefinite period of time, Your use of the Services, and access to all or any Data.

12. Force Majeure Event

12.1 If a Force Majeure Event occurs, the affected party must notify the other party and the obligations of the party will be suspended to the extent that they are affected by the relevant Force Majeure Event until that Force Majeure Event has ceased.
1 2.2 If a Force Majeure Event continues for more than 60 days, either party may terminate these Terms of Service.

13. Notices

13.1 All notices and consents relating to these Terms of Service must be in writing. A notice is deemed to have been received:

if posted by Simplifi on the Website, within 6 hours of the time of the post; or
if sent by email or by electronic message sent via the Services, when the sender receives an automated message confirming delivery or within 24 hours of that message being sent (as recorded on the device from which the sender sent the message).

13.2 If Simplifi needs to provide you with notice, consent or other communication under these Terms of Service, Simplifi will do so by sending a message to you via your account, sending an email and/or text message to the email address and/or mobile phone number specified on your account, posting a notice on Simplifi’s Website or through push notifications.

14. General terms

14.1 Nothing in these Terms of Service will be taken as giving rise to a relationship of employment, agency, partnership or joint venture.
14.2 Simplifi may sub-contract the performance of any part of the Services to any third party or assign these Terms of Service or any of Simplifi’s rights or obligations under these Terms of Service.
14.3 These Terms of Service contains the entire understanding between the parties concerning the subject matter of the agreement and supersedes all prior communications.
14.4 The failure of either party to enforce any provisions under these Terms of Service will not waive the right of such party thereafter to enforce any such provisions.
14.5 If any term or provision of these Terms of Service is held by a court to be illegal, invalid or unenforceable under the applicable law, that term or provision will be severed from these Terms of Service and the remaining terms and conditions will be unaffected.
14.6 These Terms of Service is governed by, and construed in accordance with the laws of New Zealand. The parties agree to submit to the non-exclusive jurisdiction
of the courts of New Zealand.
14.7 Neither party may assign, transfer or otherwise deal with these Terms of Service or any right under these Terms of Service without the prior written consent of the other party, which must not be unreasonably withheld.
14.9 Any warranty, indemnity, or obligation of confidentiality in these Terms of Service will survive termination. Any other term which by its nature is intended to survive termination of these Terms of Service survives termination of these Terms of Service.

15. Definitions and interpretation

15.1 In these Terms of Service:
Confidential Information means confidential, proprietary and commercially-sensitive information (irrespective of the form or the manner in which the information is disclosed, or the time of such disclosure) including information which:

is identified as confidential or ought to have been known to be confidential; and
relates to the business affairs and practices, including financial information, business opportunities, business plans, business processes and methodologies,
but does not include information which is in, or comes into, the public domain other than by a breach of these Terms of Service, or which is independently known to the other party as evidenced by its written record.

Consequential Loss means any loss that does not arise naturally in the ordinary course of things from the event or circumstance giving rise to the Loss. Force Majeure Event means any act, event or cause including earthquakes, cyclones, floods, fires, lightening, storms or other acts of God, strikes or industrial disputes, riots, terrorist acts, civil disturbances, breakages of machinery or industrial conditions or arising out of any other unexpected and exceptional cause, delays in transportation and dispositions or orders of governmental authority, which:

directly or indirectly results in a party being prevented from or delayed in performing any of its obligations under these Terms of Service; and
is beyond the reasonable control of that party.

Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, designs, patents, circuit layouts, plant varieties, business and domain names, confidential information, trade secrets, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registered, registrable or patentable.
Pre-Existing Materials mean any of materials existing at the date of these Terms of Service, including all trademarks, designs, design specifications, software, hardware or other documentation and materials used in Simplifi’s business or operations, including software, source code, scripts, materials, reports, diagrams, code, processes, methods, specifications and other works.
Simplifi means Simplifi-HQ Limited, a limited company registered in New Zealand, NZBN 9429046042019;
Services means the online accounting software available on the Website.
Subscription means the subscription type selected by you on the Website.
Third Party Products means any third party products and/or services, including band data feeds.
Your Data means the data, content, software, documents, files, information and materials you store, develop, host or publish on Simplifi’s infrastructure using the Services.
Website means Simplifi’s website www.simplifi-hq.com

15.2 In these Terms of Service:

a reference to a person includes a natural person, corporation, unincorporated association or partnership;
a reference to a party to these Terms of Service includes its executors, administrators, substitutes, successors and permitted assigns;
the headings in these Terms of Service are for convenience only and have no legal effect;
the singular includes the plural and vice versa;
other grammatical forms of a defined word or expression have a corresponding meaning;
“including” and similar words do not imply any limitation;
a reference to any agreement or document is a reference to that agreement or document (and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time; and
a reference to a statute includes a reference to that statute as amended or replaced from time to time.