By registering to use the Service you acknowledge that You have read and understood these Terms and have the authority to act on behalf of any person for whom You are using the Service. You are deemed to have agreed to these Terms on behalf of any entity for whom you use the Service.
These Terms were last updated on [6 Jan 2014].
1.2) "Access Fee"
means the monthly fee (excluding any taxes and duties) payable by You in accordance with the fee schedule set out on the Website (which Vistr may change from time to time on notice to You).
1.3) "Confidential Information"
includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Service but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.
means any data inputted or imported by You into the Website.
1.5) "Intellectual Property Right"
means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
means the online business financial forecasting and financial management services made available via the Website. The services provided by Vistr may change from time to time at the sole discretion of Vistr).
means the Internet site at the domain www.vistr.com.au or any other site operated by Vistr.
means Vistr Pty Ltd (ABN: 461 6715 0389).
1.9) "Invited User"
means any person or entity, other than the Subscriber, that uses the Service with the authorisation of the Subscriber from time to time.
means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service.
means the Subscriber, and where the context permits, an Invited User. "Your" has a corresponding meaning.
2) USE OF SOFTWARE
Vistr grants You the right to access and use the Service via the Website with the particular user roles available to You. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement. The Subscriber determines and, at all times, controls who is an Invited User to the relevant organisation.
3) YOUR OBLIGATIONS
3.1) Payment obligations:
3.1.1) An invoice for the Access Fee will be issued to you at the time of purchase. Vistr will continue invoicing You monthly for the Service until this Agreement is terminated in accordance with clause 8).
3.1.2) The Service is billed in advance on a monthly or yearly basis, as determined by you, and those fees are non-refundable.
3.1.3) All fees are inclusive of Australian GST but exclusive of all other taxes or duties.
3.1.4) Unless you notify Vistr before the end of the applicable subscription period that you want to cancel, your subscription will automatically renew at the end of the then-current period, and you authorise us to collect the then-applicable subscription fee using any credit card or other payment mechanism we have on record for you.
3.2) General obligations:
3.2.1) You must only use the Service and Website for Your own lawful internal business purposes, in accordance with these Terms and any notice sent by Vistr or condition posted on the Website.
3.3) Access conditions:
3.3.1) You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You must immediately notify Vistr of any unauthorised use of Your passwords or any other breach of security and Vistr will reset Your password.
3.3.2) As a condition of these Terms, when accessing and using the Services, You must:
3.3.2.a) not attempt to undermine the security or integrity of Vistr's computing systems or networks or, where the Services are hosted by a third party, that third party's computing systems and networks;
3.3.2.b) not use, or misuse, the Services in any way which may impair the functionality of the Services or Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website;
3.3.2.c) not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;
3.3.2.d) not transmit, or input into the Website, any: files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and
3.3.2.e) not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website except as is strictly necessary to use either of them for normal operation.
3.4) Communication Conditions:
3.4.1) As a condition of these Terms, if You use any communication tools available through the Website (such as any forum, chat room or message centre), You agree only to use such communication tools for lawful and legitimate purposes.
3.4.2) When You make any communication on the Website, You represent that You are permitted to make such communication. Vistr is under no obligation to ensure that the communications on the Website are legitimate or that they are related only to the use of the Services.
You indemnify Vistr against: all claims, costs, damage and loss arising from Your breach of any of these Terms or any obligation You may have to Vistr, including (but not limited to) any costs relating to the recovery of any Access Fees that are due but have not been paid by You.
4) CONFIDENTIALITY AND PRIVACY
4.1.1) Unless the relevant party has the prior written consent of the other or unless required to do so by law:
4.1.1.a) Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.
4.1.1.b) Each party's obligations under this clause will survive termination of these Terms.
4.1.1.c) The provisions of clauses 4.1.1.a) and 4.1.1.b) shall not apply to any information which:
4.1.1.c(i) is or becomes public knowledge other than by a breach of this clause;
4.1.1.c(ii) is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
4.1.1.c(iii) is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
4.1.1.c(iv) is independently developed without access to the Confidential Information.
4.1.2) You agree and understand that Vistr may use information stored in the Service, queries made through the Service or other information to provide You with advertising that Vistr deems to be relevant to you. If Vistr offers advertising to You on the Website, Vistr will give You the right to opt-out of the advertisements.
4.1.3) You agree and understand that Vistr may collect Your information on an anonymous basis to create Vistr Industry Benchmarks to improve the Service to all users. Your information will always be anonymous and will never be released as a single data point. Organisations and businesses making up the Vistr Industry Benchmark will always remain anonymous to all other Vistr users.
5) INTELLECTUAL PROPERTY
Title to, and all Intellectual Property Rights in the Services, the Website and any documentation relating to the Services remain the property of Vistr
5.2) Ownership of Data:
5.2.1) Title to, and all Intellectual Property Rights in, the Data remain Your property. However, Your access to the Data is contingent on full payment of the Vistr Access Fee when due. You grant Vistr a licence to use, copy, transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the Services and for any other purpose related to provision of services to You.
5.2.2) You grant Vistr a licence to use Your information to create Vistr Industry Benchmark, and to publish the Vistr Industry Benchmark to other users of Vistr on an anonymous basis
6) WARRANTIES AND ACKNOWLEDGEMENTS
You acknowledge that:
6.1.1) You are authorised to use the Services and the Website and to access the information and Data that You input into the Website, including any information or Data input or imported into the Website by any person you have authorised to use the Service. You are also authorised to access the processed information and Data that is made available to You through Your use of the Website and the Services (whether that information and Data is Your own or that of anyone else).
6.1.2) The provision of, access to, and use of, the Services is on an "as is" basis and at Your own risk.
6.1.3) Vistr does not warrant that the use of the Service will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. Vistr is not in any way responsible for any such interference or prevention of Your access or use of the Services.
6.1.4) Vistr is not Your accountant and use of the Services does not constitute the receipt of accounting advice. If You have any accounting questions, please contact an accountant.
6.1.5) It is Your sole responsibility to determine that the Services meet the needs of Your business and are suitable for the purposes for which they are used.
6.1.6) You remain solely responsible for complying with all applicable accounting, tax and other laws.
6.1.7) NEITHER VISTR NOR THE SERVICE IS INTENDED TO PROVIDE LEGAL OR TAX ADVICE. VISTR IS NOT INTENDED TO BE USED FOR PERSONAL FINANCE. VISTR IS NOT A FINANCIAL PLANNER, BROKER OR TAX ADVISOR. The Service is intended only to assist your business in its financial organization and decision-making and is broad in scope. Your business financial situation is unique, and any information and advice obtained through the Service may not be appropriate for your situation. Accordingly, before making any final decisions or implementing any financial strategy, you should consider obtaining additional information and advice from your accountant or other financial advisers who are fully aware of your individual circumstances.
6.2) No warranties:
Vistr gives no warranty about the Services. Without limiting the foregoing, Vistr does not warrant that the Services will meet Your requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
6.3) Consumer guarantees:
You warrant and represent that You are acquiring the right to access and use the Services for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Services, the Website or these Terms.
7) LIMITATION OF LIABILITY
7.1) To the maximum extent permitted by law, Vistr excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of information, Data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service or Website.
7.2) If You suffer loss or damage as a result of Vistr's negligence or failure to comply with these Terms, any claim by You against Vistr arising from Vistr's negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Access Fees paid by You in the previous 12 months.
7.3) If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate these Terms in accordance with Clause 8).
When You first sign up for access to the Services You can evaluate the Services under the defined trial usage conditions, with no obligation to continue to use the Services. If You choose to continue using the Services thereafter, You will be billed from the day You first added Your billing details into the Services. If You choose not to continue using the Services, You may delete Your organisation in the 'Settings' section of the Services.
8.2) Prepaid Subscriptions
Vistr will not provide any refund for any remaining prepaid period for a prepaid Access Fee subscription.
8.3) No-fault termination:
These Terms will continue for the period covered by the Access Fee paid or payable under clause 3.1). At the end of each billing period these Terms will automatically continue for another period of the same duration as that period, provided You continue to pay the prescribed Access Fee when due.
8.4.1) breach any of these Terms (including, without limitation, by non-payment of any Access Fees) and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;
8.4.2) breach any of these Terms and the breach is not capable of being remedied (which includes (without limitation) any breach of clause 3.4 or any payment of Access Fees that are more than 30 days overdue); or
8.4.3) You or Your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed over any of its assets, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction,
Vistr may take any or all of the following actions, at its sole discretion:
8.4.4) Terminate this Agreement and Your use of the Services and the Website;
8.4.5) Suspend for any definite or indefinite period of time, Your use of the Services and the Website;
8.4.6) Suspend or terminate access to all or any Data.
8.5) Accrued Rights:
8.5.1) Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You will:
8.5.1.a) remain liable for any accrued charges and amounts which become due for payment before or after termination; and
8.5.1.b) immediately cease to use the Services and the Website.
8.6) Expiry or termination:
Clauses 3.1), 3.4), 4), 5), 6), 7), 8) and 9) survive the expiry or termination of these Terms.
9.1) Entire agreement:
If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
9.4) No Assignment:
You may not assign or transfer any rights to any other person without Vistr's prior written consent.
9.5) Governing law and jurisdiction:
The laws of the State of New South Wales, Australia will apply to these Terms.
If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.
Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Vistr must be sent to email@example.com or to any other email address notified by email to You by Vistr. Notices to You will be sent to the email address which You provided when setting up Your access to the Service.
9.8) Rights of Third Parties:
A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.