This agreement is made between Half Pine Pty Ltd ACN: 601 064 626 trading as Half Pine and you ("the Client").
- Headings are for convenience only and do not affect interpretation.
- In this Agreement, unless the context otherwise requires:
- words importing the singular include the plural and vice versa;
- a reference to anything (including, but not limited to, any right) includes a part of that thing but nothing in this clause 1 (A) (b) implies that performance of part of an obligation constitutes performance of the obligation;
- the term ‘related body corporate’ has the meaning given to that term under the Corporations Act;
- an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any government agency;
- use of the term “including” does not in any way limit the clause to that which is listed
- a reference to a person includes that person’s successors and legal personal representatives.
- Fee means the daily service fee, (excluding any taxes and duties) payable monthly by the Client in accordance with the amount shown on the todays5things.com website. The fee will be calculated based on recommendations provided. Should 5Things not be able to provide recommendations there will be no daily fee.
- Client is the entity named above and includes its subsidiaries, or the business it represents if the entity named above is a natural person.
- Confidential Information includes all information exchanged between the parties to this Agreement, whether in writing, electronically, or orally, including the 5Things service and which may include information collected through connected API services, but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party, which is independently known or developed by the Recipient or provided by someone who is not bound by a duty of confidentiality.
- Data means any data provided by Client, or their representative either added through the 5Things website or collected via the MYOB API integration.
- Intellectual Property Right means any patent, trademark, 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.
- Service means the service provided by 5Things through the collection of data from MYOB on behalf of the Client, delivered by email.
- Terms means this document and the conditions on which the Client accepts the 5Things service.
- Website means the internet pages available on the domains www.todays5things.com and https://app.todays5things.com or any other website operated by Half Pine Pty Ltd.
- Integration means the connection of between 5Things and the Clients MYOB accounting software through the use of the MYOB API.
- MYOB is a trademark belonging to MYOB Technology Pty Ltd. Half Pine is granted permission to use this name, logo and mark as per the MYOB Developer program at developer.myob.com
- Stripe is a trademark belonging to Stripe.com. Half Pine is granted permission to use this name, logo and mark as per the subscription to use Stripe as the payment gateway for collection of Client fees.
2. Use of Services
2.1 5Things email
The Client, on subscription to 5Things, agrees to receive from Half Pine Pty Ltd a daily (sent Monday to Friday) email which contains the 5 daily recommendations for any given client business. Half Pine Pty Ltd will send HTML and TEXT format emails and will never send any emails which contain attachments. Half Pine Pty Ltd will honour the Australian communications acts to ensure safe email delivery, but can not accept responsibility for any malicious email actions.
2.2 5Things website
Half Pine grants the right to use the website at todays5things.com in order for the Client to subscribe to, update settings and connect the 5Things service to the Clients MYOB accounting services.
2.3 Exclusive Client Remedy
If the Client is not satisfied with the Service, their sole and exclusive remedy is to terminate these Terms in accordance with clause 8 "Termination".
3. Client Obligations
3.1 Payment obligations
- Beta fee: During the 5Things beta there will be no charge. The client is required to provide a credit card to activate the service, however this will not be charged during the beta period.
- Normal fee: At the conclusion of the beta period 5Things will commencing charging the Client. The expectation is the fee will be $1 per day for any day which recommendations are sent. The Client will be charged once a month in arrears. In Australia the monthly fee will attract GST. There will be no GST for clients from other countries. Should a Client “Terminate” their service during the first month, there will be NO charge. Should a Client re-register their account within 6 months, any outstanding fees will be charged. Should an account be inactive for 6 months and then reactivated, the account will be reset and charging will commence afresh.
Half Pine reserve the right to introduce different prices at any given time
- Credit card: The Client is obligated to provide a Credit Card to enable the 5Things service. This card data is collected by 5Things using the stripe.com service. Half Pine Pty Ltd will charge the provided card fees as defined in 3.1 (a) and on calendar anniversary. Should the Client dispute the amount charged in any such instance, the Client should give written notice to Half Pine and request a refund within 7 days of the credit card being charged.
3.2 General obligations
The Client must only use the 5Things service for lawful internal business purposes, in accordance with this Agreement and any notice sent by Half Pine or condition posted on the website. It is the Client responsibility to ensure full compliance with all laws and regulations that may apply to them. 5Things is a service rendered on data gathered from the Client’s MYOB accounting software. It is the Client’s responsibility to ensure compliance with any and all MYOB terms and conditions of connected services.
3.3 Access conditions
- Access to the 5Things service is granted through the use of the Client MYOB my.myob credentials. Access is granted and revoked through services provided by MYOB.
- 5Things is not accessed through any username or password outside the MYOB open authentication solution.
- Should the Client’s my.myob credentials be compromised it is the Client’s responsibility to inform Half Pine Pty Ltd. Half Pine Pty Ltd will revoke the access granted, immediately terminating the MYOB api data collection service. The Client is responsible for re-initiating the 5Things service once their my.myob credentials have been secured. As per the fees outlined in 3.1 (b) the client will not be charged during this time should no recommendations be delivered.
- The Client shall not
- attempt to undermine the security or integrity of Half Pine Pty Ltd computing systems or networks or, where the Services are hosted by a third party, that third party's computing systems and networks;
- 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;
- attempt to gain unauthorised access to any materials other than those to which the Client have been given express permission to access or to the computer system on which the Services are hosted;
- attempt to connect to any other MYOB accounting data which they do not have explicit permission upon which they can have 5Things render recommendations;
- attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs or hardware used to deliver the Services or to operate the Website except as is strictly necessary to use either of them for normal operation.
The Client indemnifies Half Pine Pty Ltd, it’s directors, all employees and associated service providers against all claims, costs, damage and loss arising from their breach of any of these Terms or any obligation the Client may have to Half Pine Pty Ltd, including any costs relating to the recovery of any Access Fees that are due but have not been paid by the Client.
4. Confidentiality and Privacy
Unless the relevant party has the prior written consent of the other or unless required to do so by law or regulations:
- Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with this agreement. Neither party will 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 this Agreement.
- Half Pine Pty Ltd will where possible ensure that personally identifiable information gathered on behalf of the 5Things service will be stored encrypted within any Half Pine Pty Ltd database. This encryption of data extends beyond the Client data, to ensure that Half Pine Pty Ltd encrypts any information contained within the Clients accounting data that could result in the identification of any person. The Client grants Half Pine Pty Ltd the permission to decrypt this information for the provision of use within the 5Things service.[a][b][c][d]
- The provisions of clauses 4.1 (a) and 4.1 (b) shall not apply to any information which:
- is or becomes public knowledge other than by a breach of this clause;
- is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
- is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
- is independently developed without access to the Confidential Information.
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 Half Pine Pty Ltd.
5.1 Ownership of Data
Title to, and all Intellectual Property Rights in, the Data remain the Client’s property. However, the Client’s access to the Data is contingent on full payment of any Half Pine Pty Ltd fees when due. The Client grants Half Pine Pty Ltd a licence to view, use, investigate, normalise, copy, transmit, store, and back-up their information and Data for the purposes of enabling Half Pine Pty Ltd to provide the 5Things services and for any other purpose related to provision of Services to the Client.
The Client agrees to allow Half Pine Pty Ltd to perform data normalisation and anonymisation of data and allows Half Pine to publish the results of statistical analysis of the Data collected by the 5Things system.
5.2 Backup of Data
5.3 Third-party applications and their data
The 5Things service is a read only third-party service of data provided through the MYOB api on behalf of the Client. Half Pine Pty Ltd shall not be responsible for any disclosure, modification or deletion of Data resulting from any such access through the MYOB provided API.
6. Warranties and Acknowledgements
The Client warrants that where the Client has registered to use the 5Things service on behalf of another person, the Client has the authority to agree to these Terms on behalf of that person and agrees that by registering to use the Service the Client binds the person on whose behalf the Client acts to the performance of any and all obligations that the Client become subject to by virtue of these Terms, without limiting the Client's own personal obligations under these Terms.
The Client acknowledges that:
- The Client is authorised to use the 5Things Services and the MYOB API to access the information and Data that the Client has input into their MYOB accounting software in order to use the 5Things service. The Client is also authorised to access the todays5things.com website in order to update their subscription at any time.
- Half Pine Pty Ltd has no responsibility to any person other than the Client and nothing in this Agreement confers, or purports to confer, a benefit on any person other than the Client. If the Client uses the Services or accesses the Website on behalf of or for the benefit of anyone other than themselves (whether a body corporate or otherwise) the Client agrees that:
- The Client is responsible for ensuring that the Client has the right to do so;
- The Client is responsible for authorising any person who is given access the Data, and the Client agrees that Half Pine Pty Ltd has no obligation to provide any person access to the Data without their authorisation and may refer any requests for information to the Client to address; and
- The Client will indemnify Half Pine Pty Ltd against any claims or loss relating to:
- Half Pine Pty Ltd's refusal to provide any person access to the Data in accordance with these Terms,
- Half Pine Pty Ltd's making available the Data to any person with their authorisation.
- The provision of, access to and use of the Services is on an "as is" basis and at the Client’s own risk.
- Half Pine Pty Ltd does not warrant that the use of the Service will be uninterrupted or error free. 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. Half Pine Pty Ltd is not in any way responsible for any such interference or prevention of their access or use of the Services.
- It is the Client’s sole responsibility to determine that the Services meet the needs of their business and are suitable for the purposes for which they are used.
- The Client remains solely responsible for complying with all applicable accounting, tax, Industrial Relations and other laws and regulations.
Half Pine Pty Ltd gives no warranty about the Services. Without limiting the foregoing, Half Pine Pty Ltd does not warrant that the 5Things Service will meet the Clients 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.
6.4 Consumer Guarantees
The Client warrants and represents that they 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
To the maximum extent permitted by law, Half Pine Pty Ltd excludes all liability and responsibility to the Client (or any other person) in contract, tort, negligence, or otherwise, for any loss (including loss of information, Data, profits or savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service or Website.
If the Client suffers loss or damage as a result of Half Pine Pty Ltd's negligence or failure to comply with these Terms, any claim by the Client against Half Pine Pty Ltd arising from Half Pine Pty Ltd's negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Fees paid by the Client in the previous 6 months.
8.1 No-fault termination
These Terms will continue for the period covered by the Fee paid or payable under clause 3.1 “Payment Obligations”. At the end of each billing period these Terms will automatically continue for another period of the same duration as that period, provided the Client continues to pay the prescribed Fee when due, unless either party terminates this agreement. The Client may terminate the service by cancelling through the todays5things.com website. Should Half Pine wish to terminate the service it will do so by giving notice to the Client at least 15 days before the next billing date. If the Client terminates these Terms the Client shall be liable to pay all relevant Fees on a pro-rata basis for each day of the then current period up to and including the day of termination of this Agreement.
If the client:
- breaches any of this Agreement, including, without limitation, by non-payment of any fees and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;
- breaches any of this Agreement and the breach is not capable of being remedied which includes, without limitation, any payment of Fees that are more than 30 days overdue; or
- becomes insolvent or goes into liquidation or has a receiver or manager appointed of any of its assets or if the Client’s directors become insolvent, or make any arrangement with their creditors, or become subject to any similar insolvency event in any jurisdiction, Half Pine may take any or all of the following actions, at its sole discretion:
- Terminate this Agreement and their use of the Services;
- Suspend for any definite or indefinite period of time, their use of the Service;
- Suspend or terminate access to all or any Data.
- Take any of the actions in sub-clauses (a), (b) and (c) of this clause 8.2 “Breach” in respect of any or all other persons whom the Client has authorised to have access to their information or Data.
8.3 Accrued Rights
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 the Client will:
- remain liable for any accrued charges and amounts which become due for payment before or after termination; and
- Immediately cease to use the Services.
8.4 Expiry or Termination of the Agreement
Clauses 3.1, 3.2, 3.4, 4, 5, 6, 7, 8 and 10 survive the expiry or termination of these Terms.
9. Help Desk
9.1 Technical Problems
In the case of technical problems the Client must make all reasonable efforts to investigate and diagnose problems before contacting Half Pine Pty Ltd including support provided online by Half Pine Pty Ltd on the Website. Given the email If the Client still needs technical help, they may email Half Pine Pty Ltd at email@example.com
9.2 Service Availability
Whilst Half Pine Pty Ltd intends that the 5Things website should be available 24 hours a day, seven days a week, it is possible that on occasions the Services or Website may be unavailable to permit maintenance or other activity to take place. Half Pine Pty Ltd will endevour to email the 5Things service to the Client 5 days a week, Monday to Friday. It is possible that on occasions the services required to deliver these will be unavailable, or delayed.
If for any reason Half Pine Pty Ltd has to interrupt the Services for longer periods than Half Pine Pty Ltd would normally expect, Half Pine Pty Ltd will use reasonable endeavours to publish in advance details of such activity on the Website. The Client will only be charged on days when the 5Things Service is able to successfully email the recommendations.
10.1 Entire agreement
These Terms, together with the terms of any other notices or instructions given to the Client under these Terms, supersede and extinguish all prior agreements, representations, and understandings, whether oral or written, and constitute the entire agreement between the Client and Half Pine Pty Ltd relating to the 5Things services and the other matters dealt with in these Terms.
If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. The failure, delay, relaxation or indulgence on the part of a Party in exercising any power or right conferred upon it by this deed does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other or further exercise of it or the exercise of any other power or right under this deed. A power or right may not be waived except in writing, signed by the party to be bound by the waiver.
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, including delay caused by the other party. This clause does not apply to any obligation to pay money.
10.4 No Assignment
The Client may not assign or transfer any rights under this Agreement to any other person without Half Pine Pty Ltd’s prior written consent.
10.5 Governing law and jurisdiction
These Terms shall be governed by and construed in accordance with the law of Australia in the state of Victoria. Disputes arising in connection with this agreement shall be subject to the exclusive jurisdiction of the Victorian Courts.
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. If such a purpose is also invalid, unenforceable or in conflict with the law, it is severable from the Agreement and the remainder of the Agreement will be binding on the parties.
Any notice given under these Terms by either party to the other must be in writing by post and will be deemed to have been given on transmission. Notices to Half Pine Pty Ltd must be sent to Half Pine Pty Ltd registered address. Notices to The Client will be sent to the email address which The Client provides when setting up their access to the Service.
10.8 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.
These Terms may be executed in counterparts and the counterparts will be considered to form one agreement.