ProSpend Software Pty Ltd. ABN 73 002 087 489 (“ProSpend”, the “Software” or “We”) provides expense management software, invoice processing, applications and other related financial tools and services. These offerings are provided by ProSpend through the website www.prospend.com and/or related websites (collectively the “Site”) and, together with any related software, tools and services provided in connection with the Application for Site, the “ProSpend Service” . These offerings are available only for business or commercial use.
This Software Subscription Agreement explains ProSpend’s obligations as a software provider and Your obligations as a Customer. This Software Subscription Agreement is binding on any use of the software and will apply to You on execution of this Agreement.
1.1 “ProSpend”, “We” or “Us” is owned and operated by ProSpend Software a Proprietary Limited Company.
1.2 “You” or “Your, or “Customer” means the company or other legal entity accepting this Agreement
1.3 “Users” means an individual who is authorised by You to use the Software and to whom You have (or We at Your Request) have supplied a user identification and password. Users may include, Your employees, consultants, contractors and agents, and third parties with which You transact business.
1.4 “Documentation” means online user guides, documentation, and help and training materials, as updated from time to time, accessible via the login to the applicable Software or as otherwise provided by us to you
1.5 “Your Data” means electronic data and information submitted by or for You to the Software or collected and processed by or for You using the Software and includes Your company information, payment information, expense report data, transaction information and other User data.
1.6 “Your Database” means the unique instance on our servers that stores and controls Your Data.
1.7 “Service” means the provision of the expense management software, invoice processing, applications and other related financial tools and services through the Site together with any related software, tools and services provided in connection with the ProSpend Service.
1.8 “Our Property” means the Software, the Site, and all other software, hardware, technology, documentation, and information provided by Us in connection with the Software.
1.9 “Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacking attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars)
2. Use, Access, Registration
2.1 Use – By signing this Agreement, You (1) agree to the following terms and conditions of this Agreement as identified in this Agreement, (2) represent and warrant that You are authorised to sign this Agreement, and (3) agree that You will be responsible for the acts and omissions of Your Users who use the Software.
2.2 Access and Registration. You will provide accurate, current and complete information (including about Users) in any registration, payment or other Account-related forms that You provide to Us and agree to maintain the security of Your User name(s) and password(s). You will maintain and promptly update Your information to keep it accurate, current and complete. You understand that any person with Your username(s) and password(s) may be able to access Your Data. You accept all risks of unauthorised access to Your Data based on Your sharing or loss of a username and password, or circumvention of a user password via guessing attacks. You will promptly notify Us if You discover or otherwise suspect any security breaches related to the Software.
3. Term, Start Date, Implementation, Termination, Cancellation, survivability
3.1 Term. The Subscription begins from the date of this Agreement and will continue in effect in perpetuity unless and until terminated with sixty (60) days’ advance written notice to the non-terminating party, or otherwise pursuant to these terms (the “Term”
3.2 Termination. If You breach any of these Terms of Service, We will have the right to suspend, disable or terminate your Account or terminate this Subscription Agreement. In the event We terminate this Agreement all rights granted to You under this Agreement shall immediately terminate, including the right to access and use the Software by all Your users and you will remain liable for any and all amounts due hereunder.
3.3 Cancellation. Without limiting your legal rights, after the Initial Term you may terminate this Agreement with 60 days notice. Termination will be effective 60 days after ProSpend’s receipt of the written notice.
A monthly subscription fee will apply for the final 60 day term and will be invoiced at the average monthly rate that has been invoiced during the previous six months.
If You cancel Your Subscription, we will assume that You have exported all Your Data You require. Should You require access to the Software to retrieve Your Data past the 60 days notice, you will be required to pay a monthly fee for continued use to retrieve Your Data which will be calculated by Us and averaged on the previous 12 month’s monthly subscription fees. The access to the Software for retrieval of Your Data will be sufficient to export all Data reasonably required by You.
3.4 Survivability. Termination of this Agreement shall not be construed to waive or release any claim that a party is entitled to assert at the time of such termination, and the following sections will continue to apply: Grant of Rights (b), Ownership, Restrictions, Warranties and Limitations, Indemnification, and General Provisions.
4. Payment, Disputes
4.1 Payment. We will invoice you monthly for each month’s fees or charges to its account in accordance with the fees, charges, and billing terms as defined in this Agreement. The fees will be invoiced in the first seven days after the month end and You must pay such invoices within 14 days of their receipt.
Except as otherwise specifically provided in this Agreement, all payment obligations cannot be cancelled and all amounts paid are non-refundable. You may add ProSpend Services by executing an addendum to this Agreement. All pricing terms are confidential, and You agree not to disclose them to any third party.
Where You fail to pay any such invoice within 30 days of its receipt, We may charge You Interest on any outstanding amounts at the rate of 6% per annum, calculated monthly from the date on which such payment was due.
4.2 We reserve the right to withdraw Your access to the Software if You do not pay the fees or charges when due. We will give You at least 14 days’ prior notice that Your account is overdue and advise that non-payment may result in suspending access to the Software.
4.3 Payment disputes. We will not exercise Our rights under this section ‘Payment’ if You are disputing the applicable charges reasonably and in good faith and are cooperating to resolve the dispute.
Unless the relevant party has the prior written consent of the other or unless required to do so by law, each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with this Agreement. 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 this Agreement. Each party’s obligations under this clause will survive termination of the Agreement.
Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
Our Confidential Information includes any information regarding the design, specifications, components, functionality or operation of the software, payment terms and pricing of the Service.
Your Confidential information includes Your Data, provided, however that You hereby grant to ProSpend a worldwide, royalty-free, non-exclusive licence to use data generated as a result of Your use of the ProSpend service solely for purposes of (a) maintaining and improving the ProSpend Service and (b) providing You with access to special product offers and promotions and we will not provide third parties with your contact information.
However, Confidential Information does not include any information that:
- is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;
- was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party;
- is received from a third party without breach of any obligation owed to the Disclosing Party;
- was independently developed by the Receiving Party.
6.Availability, Data Security, Provision, Support, Force Majeure
6.1 Availability. We will use commercially reasonable efforts to make the Software available 24 hours a day, 7 days a week, but do not guarantee 100% availability.
For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:
- a Force Majeure Event;
- a fault or failure of the internet or any public telecommunications network;
- a fault or failure of the Customer’s computer systems or networks;
- any breach by the Customer of this Agreement;
- planned downtime for maintenance carried out in accordance with this Agreement.
6.2 Planned downtime. At times we will schedule planned downtime to carry out maintenance and system upgrades. We shall give at least 8 hours electronic notice and shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday Eastern Standard time.
6.3 Data Security & Storage. We will maintain administrative, physical and technical safeguards to protect the security and integrity of the Software and protect against the accidental or unauthorised access, use, alteration or disclosure of Your Data.
There is no limit on amount of data You can store in the Software and we will retain data for 7 years 6 months at which time we then archive the data. You will be able to retrieve archived data for an additional fee.
6.4 Provision. We may, at Our option, issue a New Release of the Software at any time and New Releases may include, without limitation; new versions of the Software which correct defects in the Software; and new versions of the Software which We may elect to release as enhanced versions of the Software, which may include new functionality, but which will, during the Initial Term, not have reduced functionality from the Software provided by Us at the commencement of this Agreement.
6.5 Support. During the Subscription Period, We will provide You the following support:
- Documentation Access to our extensive online documentation including help screens and training manuals.
- Regular emails from Us
- Unlimited support for users with Administrators and Payer access rights for the duration of the subscription period. Support events can be logged by telephone, email or through Our online support software.
6.6 Force Majeure Event. If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:
- promptly notify the other;
- inform the other of the period for which it is estimated that such failure or delay will continue;
- A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event;
- If a delay or failure to perform a party’s obligations due to Force Majeure exceeds thirty (30) days, either party may immediately terminate this Agreement on providing notice to the other party.
7.1 Grant of Rights. Subject to the terms of this Service Agreement: (a) We grant You a non-exclusive, non-transferable, worldwide right during the term of the Service Agreement to access and use the Service solely for your internal business or commercial purposes as contemplated by this Service Agreement; and (b) You hereby give Us a non-exclusive, worldwide right (i) to use Your Data as necessary to provide the Service, and (ii) to create aggregated or redacted forms of Your Data that do not identify You or any users of an Account so as to enable us to provide the Services. . This permission also extends to trusted third parties we work with to provide the Services, for example our storage space and receipt and invoice data extraction; and (c) We warrant that as a course of business ProSpend has entered into confidentiality agreements with its trusted third parties that it works with to provide Services.
7.2 Ownership. We own and retain all right, title, and interest in and to Our Property provided by Us in connection with the Software; (b) all ideas, know-how, and techniques that may be developed, conceived, or invented by Us during its performance under this Agreement. You own and retains all right, title, and interest in and to Your Data and all intellectual property rights therein.
7.3 Use Restrictions. Except as expressly permitted under this Agreement, You shall not do any of the following: (a) sell, distribute, sublicense, broadcast, or commercially exploit Our Property or any rights under the Agreement, including without limitation any access or use of Our Property on a software bureau basis or for any Customer processing software (such as for any third parties on a rental or sharing basis); (b) introduce any infringing, obscene, libelous, or otherwise unlawful data or material into the Software; (c) copy, modify, or prepare derivative works based on Our Property; (d) reverse engineer, decompile, disassemble, or attempt to derive source code from Our Property ; or (e) remove, obscure, or alter any intellectual property right or confidentiality notices or legends appearing in or on any aspect of any Our Property.
7.4 You acknowledge that by using the ProSpend Service You and your Users are bound by Google’s Terms of Service when using the mileage feature.
8. Warranties, Limitations, Exclusions of Liability
8.1 Warranties. Each party represents, warrants, and covenants to the other party that: (a) it has the authority to enter into this Agreement, to grant the rights granted by it under this Agreement, and to perform its obligations under this Agreement; (b) it will comply with all applicable laws and regulations that may be in effect during the term of this Agreement as they apply under this Agreement; and (c) Your Data and Software, and the use thereof, does not and will not infringe, or constitute an infringement or misappropriation of, any intellectual property rights, privacy rights or other proprietary rights of a third party or breach the terms of any agreement . We warrant that we have all intellectual property rights and authorisations required from any person to provide You with the Software and we will indemnify You in respect of any claims for breach of intellectual property rights against you resulting from Your use of the Software in accordance with the terms of this Agreement.
We warrant that the ProSpend Service will be supplied with due care and skill, be of acceptable quality and reasonably fit for purpose.
8.2 Limitations. You acknowledge that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, ProSpend gives no warranty or representation that the ProSpend Service will be wholly free from defects, errors and bugs but does warrant that the Software will be sufficient for You to operate in the manner prescribed in our online manuals, and will be reasonably free from defects, errors and bugs and will be fit for its purpose.
You acknowledge that complex software is never entirely free from security vulnerabilities and subject to the other provisions of this Agreement, ProSpend gives no warranty or representation that the ProSpend Service will be entirely secure.
You acknowledge that any information provided by the ProSpend Service cannot be considered legal, financial, accountancy or taxation advice.
8.3 Limitations and exclusions of liability. The limitations and exclusions of liability set out in this clause and elsewhere in this Agreement:
- are subject to this clause; and
- govern all liabilities arising under the Agreement or relating to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in the Agreement.
We do not exclude or limit Our liability where that would be against the law. Our liability is limited as follows.
- We are responsible to You only for direct losses and damages that are reasonably foreseeable and result either from Our failure to exercise reasonable care and skill or are in breach of this Agreement;
- Where allowed by law, We are not liable for any indirect, incidental, punitive, exemplary or consequential damages, or loss of the service or data;
- Where allowed by law, the limit of our liability to You is 100% of the amount you have paid under Your current Service Agreement.
9.1 Contacting Us.
Phone: +61 2 9672 6880
Post: PO Box 4561, North Rocks NSW 2151
9.2 Relationship of Parties. We and You are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between us.
9.3 Assignment. Neither party may assign or transfer this Agreement without the prior written consent of the other party, and any attempted assignment without such consent will be void.
9.4 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
9.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
9.6 Entire Agreement. This Agreement contains the entire agreement and understanding between Us and You with respect to the subject matter thereof and supersedes all prior agreements, negotiations, representations, and proposals, written and oral, relating to such subject matter.
9.7 Amendments. This Agreement shall not be deemed or construed to be modified, amended, or waived, in whole or in part, except in writing signed by both parties. .
9.8 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New South Wales, Australia.
9.9 Interpretation. This Agreement will not be construed in favor of or against any party by reason of the extent to which any party participated in the preparation of this Agreement.
Protecting your privacy and keeping your personal information confidential is very important to us. We’re bound by the Privacy Act 1988, including the Australian Privacy Principles (APPs) set out in the Act, when we handle your personal information.
This notice applies across all websites that we own and operate and all services we provide, including our online and mobile accounting and financial services products, and any other apps or services we may offer (for example, events or training).
This notice outlines how we maintain your privacy when handling your personal information if you’re a client, a visitor to one of our websites or a member of the public in Australia.
What is personal data?
We only collect personal information from you that is necessary to do business with you.
The personal information that we collect about you includes your name and email address, place of work and sometimes your telephone number. We also collect your payment information, such as your credit card and ABN. If you subscribe to our direct entry feed, we’ll collect your account details so that you and your authorised contacts can transmit information to your nominated accounts.
How we collect your personal information
We collect most personal information directly from you, when you:
- order and/or register for a product or service;
- activate and use a company file, product or service;
- interact with our client support and sales teams;
- use our website, community forum or social media sites;
- complete a form for us, for example when you register for our competitions, training, events and newsletters;
- interact with members of our authorised partner and certified consultant programs;
- complete our surveys or product testimonials; or
- apply for a job with us.
We may also collect personal information about you:
- that is publicly available from sources such as social media websites
How we use and disclose your personal information
We use your personal information to:
verify your identity;
provide you with the products and services you’ve asked for;
help us operate, protect, improve and develop our products and services and customise your experience;
assist your authorised contacts;
provide technical support to you and your authorised contacts;
keep you informed about our products and services ;
enable secure access to our websites;
respond to any feedback, queries or complaints; and
fulfil any legal and regulatory obligations; and
process a job application that you’ve submitted.
Disclosure to third parties
These third parties assist us by performing functions such as data processing. They may also provide products and services that integrate with or complement our solutions.
Each of the third parties that we contract with is carefully selected and is only authorised to use your personal information in a secure way that’s necessary for them to perform their service to us.
Some of our related companies and third parties that we share information with may be located outside of Australia, in the Philippines and New Zealand.
We’ll also disclose your personal information if we are required by law or permitted by the Privacy Act to do so.
Aggregated data is general data about groups of people which doesn’t personally identify you or anyone else, for example – the number of people that use a product in a particular industry. We use aggregated data to:
- help us to understand how you use our products and services and improve your customer experience;
- tailor the way that we communicate with you about our products and services so that we can interact with you more effectively; and
- create helpful insights for the business community.
- We sometimes share aggregated data with our business or industry partners.
Security of your data
We typically hold the personal information that we collect either on electronic databases or as hard copy documents.
The security of your personal information is fundamental to the way that we do business. We take all reasonable steps to protect the personal information that you give us from unauthorised access, use or disclosure, in line with industry standards.
We do this by employing a range of security measures to protect the personal information that we hold. For example our web pages that request sensitive information employ encryption technologies such as Secure Sockets Layer (SSL).
You can confirm that a data-entry page uses encryption by checking that:
- the page address in the web browser’s tool bar or status bar begins with https://; or
- the padlock icon in the web browser’s tool bar or status bar is locked.
If you’re a registered user of any of our websites, you can control access to your account with a username and password of your choice. You should choose a strong password and keep it protected from others to prevent unauthorised access.
We’re also committed to protecting your information offline. All of your personal and business information, not just personal information and sensitive information is subject to access controls.
Whilst we take all reasonable measures to protect your personal information when it’s in our hands, it’s important to note that we’re unable to guarantee the security of the internet as a whole. If you’re using your product and service online, please ensure that you’re doing so in a secure environment. In addition, if you use email to send and receive your personal information, please be aware that the information may be less secure in transit.
Your personal information gives you authorised access to our websites so that you can update your details, access online help or perform financial transactions. For some products, you may be able to authorise other people (such as your employees, accountant or bookkeeper) to access, add and manage information on your behalf.
Our websites may contain links to third party websites, which don’t belong to us and are beyond our control. Please note we’re not responsible for and can’t guarantee the privacy of these third party websites.
International Data Transfers
When we share data, it may be transferred to, and processed in, countries other than the country you live in – such as Australia, where our data hosting provider’s servers are located. These countries may have laws different to what you’re used to. Rest assured, where we disclose personal data to a third party in another country, we put safeguards in place to ensure your personal data remains protected.
For individuals in the European Economic Area (EEA), this means that your data may be transferred outside of the EEA. Where your personal data is transferred outside the EEA, it will only be transferred to countries that have been identified as providing adequate protection for EEA data (like Australia), or to a third party where we have approved transfer mechanisms in place to protect your personal data.
The length of time we keep your personal data depends on what it is and whether we have an ongoing business need to retain it (for example, to provide you with a service you’ve requested or to comply with applicable legal, tax or accounting requirements).
We’ll retain your personal data for as long as we have a relationship with you and for a period of time afterwards where we have an ongoing business need to retain it, in accordance with our data retention policies and practices. Following that period, we’ll make sure it’s deleted or anonymised.
It’s your personal data and you have certain rights relating to it. You have a right to
- know what personal data we hold about you, and to make sure it’s correct and up to date
- request a copy of your personal data, or ask us to restrict processing your personal data or delete it
- If it’s marketing communications, you can ask us to not send you these at any time by following the unsubscribe instructions contained in the marketing communication
- object to our continued processing of your personal data
- You can exercise these rights at any time by sending an email to email@example.com
Unit 110, Nexus Building, 4 Columbia Court
Bella Vista NSW 2153
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