Audit Assistant Limited (“Audit Assistant”) offers a web-based software product designed to allow accountancy firms to manage their audit, review and compilation work, and to assist in the production of work-papers compliant with Financial Reporting, Compilation, Auditing, Compliance, Agreed Upon Procedures and Review Engagement Standards (“the Service”).
Audit Assistant will provide you with the Service on the terms and conditions set out in this Agreement. By accessing and using the Service, you agree to this Agreement.
For each section a plain English summary is included in italics.
- The Service
We will let you use Audit Assistant.
- The Service will be made available by Audit Assistant to you and will be accessible via a unique firm URL assigned on sign up.
- Audit Assistant will from to time and at its discretion introduce upgrades and updates to the Service.
- Access Conditions
The access is for you alone, and you cannot use it to do illegal or harmful things.
- Audit Assistant grants to you a non-exclusive and non-transferrable right to use the Service, subject to the terms of this Agreement.
- You may create additional User-Logins to grant additional Users access to the Service on the following terms:
- All additional Users must be your employees, contractors or authorised reviewers.
- If you create a User-Login for an additional User, or give an additional User details for a pre-existing User-Login, you grant that User authority to use the Service.
- You must ensure that any User given access to the Service by you or your employees complies with all of your obligations under this Agreement. A breach of any of the terms of this Agreement by an additional User is deemed to be a breach by you.
- The Service allows you to grant limited access to third-party users without UserLogins. You are responsible for monitoring any third party access and content added to the Service.
- You will be billed monthly at your monthly billing date based on the service plan you have selected.
- You must not:
- Attempt to compromise or undermine the security or integrity of any computing networks or systems used by Audit Assistant;
- Use or misuse the Services in a way which may impair Audit Assistant’s provision of the Service to any other customer;
- Attempt to gain unauthorised access to any materials other than those which you have been given express permission to access;
- Use the Service to transmit or upload:
- Files that may damage any computer or network;
- Content that may be offensive;
- Data to which you do not own the copyright or have permission to use or which infringes any third-party intellectual property rights;
- Any other data, the transmission or upload of which would be in violation of any law;
- Attempt to copy, disassemble, decompile, modify or reverse engineer any computer program or network used to provide you with the Service;
- Sublicense the Service except with express permission from Audit Assistant Limited.
- If you become aware of any breach of clause 2.4 you must immediately inform Audit Assistant. Audit Assistant may at its discretion require you to remedy the breach (clause 9.1b) or terminate this agreement (clause 9.1a).
- Through the use of web services and APIs, the Service interoperates with a range of third party service features. Audit Assistant does not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, Audit Assistant may cease to make available that feature to you. To avoid doubt, if Audit Assistant exercises its right to cease the availability of a third party feature, you are not entitled to any refund, discount or other compensation.
We let you store data on the service. We might need to access that data to provide the service. It is your responsibility to obtain any necessary consent from other people if you store their data or personal information. We backup data every day, and keep those backups for two years but you should not rely on us for that.
- You acknowledge that:
- Audit Assistant may require access to your data to exercise its rights and perform its obligations under these Terms; and
- to the extent that this is necessary but subject to clause 7, Audit Assistant may authorise a member or members of its personnel to access your data for this purpose.
- You must arrange all consents and approvals that are necessary for Audit Assistant to access your data as described in clause 3.1. You acknowledge and agree that to the extent your data contains personal information, in collecting, holding and processing that information through the Service, Audit Assistant is acting as your agent for the purposes of the Privacy Act 2020 and any other applicable privacy law. You must obtain all necessary consents from the relevant individual to enable Audit Assistant to collect, use, hold and process that information in accordance with these Terms.
- You agree that Audit Assistant may store, process and access your data in New Zealand, Australia the United States of America.
- The technical processing and transmissions involved in providing you with the Service may result in your data:
- being transferred over various networks and in various countries not limited to those named in clause 3.3 (any such transfers will be encrypted where practicable); and
- changing to confirm and adapt to the technical requirements of connecting networks or devices.
- Audit Assistant backs up all data inputted into the Service at least every day, and will use reasonable efforts to make those backups available to you in the event of data loss. However, Audit Assistant is not a backup service. Audit Assistant makes no guarantee as to the integrity or availability of backups. On completion of any work, it is your responsibility to download and backup the PDF files generated by the Service.
- For the purpose of providing the service to you and ensuring continuity of service and resilience, Audit Assistant will retain copies of its backups for at least two years but no more than seven years.
- You acknowledge that:
- Fees and Payment Terms
You have to pay us for the service, and training, and we can change the cost from time to time.
- You must pay to Audit Assistant the Access Fee in advance.
- Audit Assistant will provide the Service to you from the time that you first pay it the Access Fee. Audit Assistant will invoice you monthly, until this Agreement is terminated in accordance with clause 9.
- You must pay all amounts specified in any invoice issued by Audit Assistant within 10 days of the invoice date.
- All fees payable by you under this Agreement are exclusive of GST. You must pay GST (if any) to Audit Assistant on the day you pay any fees under this Agreement.
- Audit Assistant may change the Access Fee by giving notice to you at least 60 days’ beforehand.
- If you require any training, file review or customising work and Audit Assistant agrees to provide such service, you must pay for that service in addition to the Access Fee.
- If you request the restoration of any files deleted by you, and if backups of those files are available, you must pay the backup restore fee (set from time to time in Audit Assistant’s discretion) in addition to the Access Fee.
- Intellectual Property Rights
Our intellectual property remains ours, and your data remains yours.
- As between you and Audit Assistant, all rights, title and interest, including all Intellectual Property Rights, relating to the Service, including software and documentation (including without limitation all upgrades, updates, improvements, enhancements, modifications and derivative works of any of them) remain with Audit Assistant.
- You may make reasonable copies of user documentation to support your use of the Service, but must use such copies for the sole purpose of your own use of the Service, and must destroy those copies upon termination of this Agreement.
- Audit Assistant claims no right or interest in your data other than a right to store and process your data in conjunction with providing you the Service.
If you breach someone else’s rights or the law and we get sued, you have to cover our costs.
- You indemnify Audit Assistant against:
- All liabilities, claims, costs, damage and loss (including the actual legal fees charged by its solicitors) and loss of any other kind arising from any actual or alleged claim by a third party that any of your data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the data is objectionable, incorrect or misleading..
- Any costs it incurs loss (including the actual legal fees charged by its solicitors) relating to the recovery of any Access Fee that is due from you but has not been paid.
- You indemnify Audit Assistant against:
- Confidentiality and Privacy
Either of us might obtain confidential information of the other. It must be kept confidential.
- In this clause:
- “Confidential Information” means information relating to the technology, technical processes, business affairs or finances of the other or of any affiliate of the other or of any suppliers, agents, distributors, licensees or customers of the other where such Confidential Information was received during the period of this Agreement.
- “Recipient party” means the party receiving such Confidential Information.
- “Observe Function” means the ability Audit Assistant employees have to log in to your account and access your data.
- Each party, in its capacity as recipient party, undertakes and agrees to treat as secret and confidential and not at any time for any reason whatsoever to disclose or permit to be disclosed to any person or otherwise make use of or permit to be made use of any Confidential Information of the other party.
- The obligations of confidence referred to in this clause do not extend to any Confidential Information which:
- is or becomes generally available to the public otherwise than by reason of a breach by the recipient party of the provisions of this subclause;
- is known to the recipient party and is at its free disposal prior to its receipt from the other party;
- is subsequently disclosed to the recipient party without obligation or confidence by a third party owing no such obligations to the other party in respect of such information;
provided that if the recipient party is legally required to disclose any Confidential Information the recipient party will:
- immediately notify the other party of such requirement unless prohibited by law;
- fully co-operate, at the other party’s cost, with all legal actions taken by the other party to avoid or limit such disclosures;
- if the recipient party cannot avoid such disclosure, the recipient party will:
- only disclose such portions of the Confidential Information as is legally required;
- use its reasonable endeavours to obtain assurances that such information will be treated as confidential by any person to whom it is disclosed.
- If you request support from Audit Assistant, you grant Audit Assistant the right to use the Observe Function, subject to clause 7.2. That use shall be for the sole purposes of troubleshooting and providing you with assistance. Audit Assistant will not use the Observe Function unless support is requested and will not modify your data unless modification is requested by you and any such data copied for support purposes will be deleted once support is completed.
- You grant Audit Assistant the right to monitor and record the usage patterns, trends and other statistical data relating to your use of the Service.
- In this clause:
- Warranties and Liabilities
Except for promising that we are a real company, we do not give you any warranties and our maximum liability to you in any case is however much you have paid us in the last 12 months.
- Audit Assistant warrants that:
- it is legally incorporated under the laws of New Zealand; and
- it has the power and authority to enter into this Agreement.
- Except as is expressly set out above, all terms, conditions, representations and warranties are excluded to the maximum extent permitted by law.
- Audit Assistant disclaims any warranty that its interpretations or representations of legislation, or auditing or accounting standards displayed within the Service are accurate or comprehensive. You accept sole responsibility for ensuring that you comply with any applicable standards.
- If you are entering this agreement on behalf of a company or other entity, you warrant that you have the power and authority to enter into this Agreement.
- You acknowledge that you have carried out appropriate investigations and relied on your own knowledge or independent advice or both in assessing the risk, contingencies and circumstances that could affect your decision to enter into this Agreement and use the Service.
- You acknowledge that in entering into this Agreement that you are acquiring the Service for the purposes of a business, and agree that:
- To the maximum extent permissible by law the Consumer Guarantees Act 1993 and any other applicable consumer protection legislation will not apply to the supply of the Service or this Agreement.
- It is fair and reasonable that the parties are bound by this clause 8.6.
- Except to the extent excluded by law, Audit Assistant excludes all liability to you (whether by damages or otherwise) for any consequential, economic or indirect loss or damage arising out of this Agreement or the Service or in connection with either of them. This exclusion applies whether Audit Assistant’s liability arises in contract, tort (including negligence) or otherwise.
- Subject to clause 8.9, in the event that any exclusion or limitation of liability contained in these terms is invalid for any reason or does not apply, Audit Assistant’s maximum aggregate liability to you or breach of any term of this Agreement or arising out of the provision of the Service (whether in contract, tort or otherwise) is limited to the Access Fee received from you for provision of the Service in the 12 months preceding the date liability arose.
- Audit Assistant is not responsible for any failure to provide the Service where such failure is caused, or contributed to, by an event outside Audit Assistant’s reasonable control.
- Neither party is liable to the other under or in connection with these Terms or the Service for any:
- loss of profit, revenue, savings, business, use, data (including your data), and/or goodwill; or
- consequential, indirect, incidental or special damage or loss of any kind.
- Audit Assistant uses a global network to provide the Service to you. Audit Assistant does not provide any guarantee and has no liability to you in respect of the communications and computer links between you and Audit Assistant allowing access to the Provider Service.
- Audit Assistant warrants that:
This agreement may be cancelled by giving 30 days’ notice, or earlier if there is a breach of this agreement.
- Audit Assistant may terminate this Agreement if:
- You breach clause 2.4; or
- You breach any of these terms and do not remedy the breach within 14 days of after being given notice of the breach; or
- Any amount due to Audit Assistant by you remains unpaid more than 30 days after it falls due.
- Either party may terminate this Agreement by giving the other party 30 days’ notice.
- On the Effective Date of Termination of this Agreement you must stop using the Service.
- If this Agreement is terminated, clause 5 will still govern the retention of your data, but:
- Audit Assistant will delete your data upon request.
- If you have not previously requested deletion, you may request a copy of your data. The post-termination retrieval of that data is conditional on your payment in full of any amounts overdue plus a reasonable fee determined by Audit Assistant to compensate Audit Assistant for the storage of your data and making it available to you.
- If this Agreement is terminated, Audit Assistant will not refund you any amount already paid by you.
- Termination of this Agreement is without prejudice to any obligations or rights of either party accrued prior to such termination. If this Agreement is terminated, you remain liable for any accrued charges.
- Termination of this Agreement does not affect any provision of this Agreement which is intended to come into effect on or continue in effect after such termination. Those provisions include (but are not limited to) clauses 5, 6 and 7.
- Audit Assistant may terminate this Agreement if:
We can change this agreement and to continue using the service you must agree to those changes. This agreement sets out the whole contract between us.
- We may change this Agreement at any time by notifying you of the change by email or by posting a notice on the Website. Unless stated otherwise, any change takes effect from the date set out in the notice. You are responsible for ensuring you are familiar with the latest Agreement. By continuing to access and use the Service from the date on which the Terms are changed, you agree to be bound by the changed Terms. These Terms were last updated on 7 October 2020.
- Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure. Force Majeure means an event that is beyond the reasonable control of a party, excluding:
- an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
- a lack of funds for any reason.
- You may not assign your rights under this Agreement without the prior consent of Audit Assistant, to be given in its sole discretion.
- This Agreement is governed by the laws of New Zealand and the parties agree to submit to the exclusive jurisdiction of the Courts of New Zealand.
- In the event that any one or more of the provisions in this Agreement is declared invalid by any Court of competent jurisdiction, this Agreement will be read as if such provision had not been inserted.
- This Agreement sets out everything agreed by the parties relating to the Service, and supersedes and cancels any prior agreements or undertakings. The parties have not relied on any representation, warranty or agreement relating to the Service that is not expressly set out in this Agreement. Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986, and that it is fair and reasonable that the parties are bound by this clause 10.6.
- No right under this Agreement will be deemed to be waived except by notice in writing signed by each party. A waiver does not prejudice rights in respect of any subsequent breach.
- The following terms have the following meanings:
“Access Fee” means the fee for the Service (excluding any taxes or duties) payable by you in accordance with your subscription type and the fees set out on The Website.
“Client” means any audit, review or other client that you create in the Service, whether or not you use the Service to do work for that client.
“Effective Date of Termination” means the expiry of any relevant time frame for termination under clause 10. If there is no time frame, it means the day and time notice is given of termination.
“GST” means the goods and services tax imposed by the Goods and Services Tax Act 1985.
“Intellectual Property Rights” means any intellectual property rights recognised by law including without limitation protected through legislation (such as patents, copyrights, trademarks) or arising from protection of information as a trade secret, confidential information, and all trade secrets, know-how and other intellectual property.
“Subscription type” means the level of subscription and payment chosen in the registration process, or as altered subsequently by agreement with Audit Assistant.
“The Website” means the Audit Assistant website at http://www.auditassistant.com, the unique Audit Assistant URL provided to you upon signup, and any related webpages or documentation.
“The Parties” means you and Audit Assistant Limited.
“User” means any person using or intending to use the Service.
“User-Login” means a login and password that allows access to the Service.
“You” means the person or entity who registers to use the Service and includes any entity or agent authorised by that person to use the Service. If the person who registers to use the Service does so on behalf of a company or other entity, that person warrants they have authority to bind that company or other entity to this Agreement, and in that case “you” refers to the company or other entity. “Your” has a corresponding meaning.
“Your data” means your own data as input by you while using the Service.
- References to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended, re-enacted or consolidated and to all statutory instruments made pursuant to it.
- Words denoting the singular will include the plural and vice versa.
- The words “in particular”, “include” and “including” will not be construed as terms of limitation. The words “day” and “month” mean “calendar day” and “calendar month” unless otherwise stated. The words “writing” and “written” mean “in documented form”, whether electronic or hard copy, unless otherwise stated.
- The symbol “$” means New Zealand dollars.
- The headings and italicised clause summaries in this Agreement are for convenience only and will not affect the interpretation of any provision of this Agreement.
- References to this Agreement or any other document will include any permitted and authorised variation, amendment or supplement to such document.
- The following terms have the following meanings: