MER Solutions Asia Pacific Pty Ltd ACN 623 196 994 ("MERS") is the owner and licensor of the BVIQ Application (“Application”) and associated services, including without limitation the Documentation as defined below (collectively the "Service"). Unless the context requires otherwise, a reference in this licence agreement to the Service incorporates a reference to the Application.
Your right to use this Service is conditional upon you agreeing to the terms and conditions set out below.
By using this Service, you will be deemed to have accepted them and entered into an agreement with MERS.
Acceptance will bind you and all your employees and any other person using the Service at your premises to the terms of the licence agreement with MERS.
If you do not wish to accept the terms, you must not access the BVIQ Application and you may not use the Service.
1.1 MERS grants you a non-exclusive, non-transferable and non sub-licensable limited licence to use the Application on
one device operated by you for the period set out in clause 8 (and any renewal thereof in accordance with that clause).
This licence extends to any accompanying documentation (including any online documentation, reports, questionnaires,
surveys, checklists) (“Documentation”) provided or generated by MERS in connection with the Service. That Documentation may not be copied, modified or used in any way not contemplated or expressly authorised by this licence agreement.
You must only use the Service strictly in accordance with the terms and conditions of this licence agreement. You may only acquire and make use of the Service for your own business’ needs. You may not make programs or materials resulting from the Service available to any third party for use in the third party’s business nor otherwise commercially exploit the Service (including by making it available to third parties). You must use reasonable efforts to prevent unauthorised third parties from accessing the Service.
In order to utilise the Service, you will need to register as a user. Upon registration MERS may collect information such as your name, address, email address and mobile phone number. You agree to provide accurate and complete information and to keep this information (as well as any credit card or other payment information required) updated when interacting with us.
You are solely responsible for any activity occurring on your account. You must maintain the security of your account details including passwords. If you suspect unauthorised use of your account or that your password is no longer secure, you must notify MERS immediately. You may not use another user’s account.
Other than for MERS’s obligation to give you access to the Service, if any consents (which may include, without limitation,
consents for MERS to access, use, store and disclose data to which MERS is provided access by you for the purpose of the Service) (“Your Data”) are required for MERS to provide the Service, you must procure those consents for MERS. MERS’s obligations to provide the Service are conditional on those consents having been procured. You shall comply with MERS’s reasonable requests for confirmation of this.
MERS may configure the Service and determine the manner of its internal technical support in its discretion. You agree to comply with such access and use procedures (including as to communications and security) as MERS notifies you from time to time.
You agree that MERS may use, disclose and transfer anonymised and/or aggregated data (including Your Data, if so anonymised and/or aggregated) for statistical, reporting and other business purposes provided that in doing so it must not use your personal information nor transfer, disclose or otherwise deal with same so as to be in breach of any privacy laws or regulations.
Except in the circumstances set out in clause 3.2 you agree to pay the licence fee that has been notified to you in respect of the Service. You are not entitled to use the Service until the licence fee has been paid (unless a fee-free licence is granted in accordance with clause 3.2).
MERS may on occasion and at its sole discretion agree to supply you with a temporary, fee-free licence, including but not limited to a trial licence, revocable at MERS's sole discretion, in respect of which no licence fee will be payable.
The Application may only be used on a device that meets the compatibility requirements notified by MERS from time to time. You agree that it shall be your responsibility to ensure that your devices meet such requirements and are maintained in good order.
You must supervise and control the use of the Application in accordance with the terms and conditions of this licence agreement and must ensure that your employees, sub-contractors and other agents who have authorised access to the Application are made aware of the terms and conditions of this licence agreement.
You may not re-sell, rent, sub-license or otherwise deal with your licence to the Service or the Application.
You may not give details of or allow any third party to use any passwords, account numbers or other access or security-related codes provided to you by MERS in connection with the use of the Service.
You undertake to:
not use the Service in a way that involves anything false, defamatory, harassing or obscene, that involves a contravention of any person’s rights, that may offend any laws or may otherwise be regarded by MERS on reasonable grounds to be unacceptable;
not copy, reproduce, translate, adapt, vary or modify the Application or Documentation without the express consent of MERS, except as expressly authorised by this licence agreement or Pt III Div 4A of the Copyright Act 1968 (Cth); and
not provide or otherwise make available the Application or Documentation in any form, except as expressly contemplated under this licence agreement, to any person without the written consent of MERS.
Any additional services to be provided by MERS to you (such as customisation of the Application) must be pursuant to an executed written statement (including any attachments and annexures) (“Work Order”) in the form required by MERS.
A Work Order is deemed to incorporate the terms of this Agreement and once executed will be deemed to be a contract executed between the Parties.
Before entering into a Work Order the Parties will discuss and agree any details necessary to complete the relevant Work Order. The Parties will negotiate in good faith and not unreasonably delay the execution of any Work Order.
Unless the context requires otherwise, references to “the Service” in this Agreement will be deemed to incorporate a reference to the services to be provided under any Work Order.
Except where expressly stated to the contrary, and except if and to the extent that any legislation (including the Australian Consumer Law) requires otherwise, the Service is provided to you on an "as is" basis and without any warranties from MERS, whether as to function, performance, reliability, stability, security or otherwise. In addition, to the extent permissible at law, MERS expressly excludes all liability in connection with any outcome following the use of the Service, including without limitation any report, analysis or other document or analysis generated through its use.
Without limiting clause 6.1, you agree and acknowledge that MERS expressly excludes any warranty that the Service presently facilitates or in future will facilitate (whether in whole or in part) the recordal of data or the performance of other compliance activities to the extent that may be required under legal and regulatory regimes that apply to your activities or that apply in respect of the data of the type that is to be entered by you into the Service.
Further, you agree and acknowledge that it shall be and remain your sole responsibility to ensure that you comply with all laws, regulations and standards regarding the recordal, storage, retrieval, use and reporting of such data or other applicable legal or regulatory compliance activities, and that this obligation may require you on an ongoing basis to assess whether the Service adequately and suitably enables such compliance and/or whether additional or alternative means are necessary or preferable.
You acknowledge that the Service cannot be guaranteed to be error free and you further acknowledge that the existence of any such errors will not constitute a breach of this licence agreement.
You agree and acknowledge that while MERS takes reasonable steps in this regard, the Service cannot be guaranteed safe from corruption or access through malicious third party hacking or similar activities.
If any statute (including the Australian Consumer Law) implies terms into this licence agreement which cannot be lawfully excluded, such terms will apply to this licence agreement, except that, to the extent permissible at law, the liability of MERS for breach of any such implied term will be limited, at the option of MERS to any one or more of the following:
the replacement of goods to which the breach relates or the supply of equivalent goods;
the repair of such goods;
the payment of the cost of replacing the goods or of acquiring equivalent goods; or
the payment of the cost of having the goods repaired.
Except as expressly provided to the contrary in this licence agreement, MERS (including its directors) will not be liable to you or any other person for any indirect, incidental, special, exemplary or consequential loss or damage, loss of profits or anticipated profits, loss of revenue, economic loss, loss of business opportunity, damage to goodwill, loss of data, deletion or corruption of electronical or digitally stored information or loss or damage resulting from wasted management time irrespective of whether:
The loss or damage is caused by or relates to breach of contract, statute, tort, (including negligence) or otherwise;
The possibility of such loss or damage was foreseeable; or
MERS or any other person was previously notified of the possibility of the loss or damage.
To the extent permissible at law, MERS shall not be liable for any loss or damage caused to any of your property or any property of a third party (including, without limitation any vessel, part thereof, and any cargo) as a result of any defect in or your use of the Service.
You acknowledge that you have exercised your independent judgment in acquiring the licence to use the Service and have not relied on any representation made by MERS which has not been stated expressly in this licence agreement.
You agree to indemnify MERS, its officers, agents and employees against any loss or damage occasioned to them as a result of any breach by you of the terms and conditions of this licence agreement.
The Application, the Service and any accompanying Documentation (including in electronic format) are the subject of copyright. You must not during or any time after the expiry or termination of this licence agreement do or permit any act which infringes that copyright, and, without limiting the generality of the foregoing, you acknowledge that you may not copy the Application or Service except as otherwise expressly authorised or acknowledged under this licence agreement.
You will indemnify MERS fully against all liabilities, costs and expenses which MERS may incur to a third party as a result of your breach of the copyright provisions of this licence agreement.
Subject to any lien that may arise due to any unpaid charges under this licence agreement, you retain ownership of the intellectual property in Your Data.
This licence agreement commences upon payment of the licence fee and shall remain in force for the period up to and including the expiry date notified by MERS to you prior to acceptance of this licence agreement, unless and until you renew it for one or more further periods by your payment of applicable renewal fee or fees.
Notwithstanding clause 8.1 MERS may immediately terminate this licence agreement:
if you are in breach of any term of this licence agreement;
if you, being a corporation, becomes the subject of insolvency proceedings; or
if you, being a firm or partnership is dissolved,
Upon termination under clause 8.2, your entitlement to use the Service shall cease and you must destroy any copies of any Documentation provided or otherwise return or dispose of such material in the manner directed by MERS.
Termination pursuant to this clause will not affect any rights or remedies which MERS may have otherwise under this licence agreement or at law.
Whilst MERS agrees that during the term of this licence agreement it may at its sole discretion use reasonable endeavours to maintain and support the Service, nothing in this licence agreement obliges MERS to maintain or support the Service whether by providing support, upgrades, enhancements or otherwise.
The benefit of this licence agreement must not be dealt with in any way by you (whether by assignment, sub-licensing or otherwise) without MERS's written consent. MERS may assign the benefit of this licence agreement upon notice to you.
Failure or neglect by either party to enforce at any time any of the provisions of this licence agreement will not be construed or deemed to be a waiver of that party's rights under this licence agreement.
In this licence agreement the term "Application" shall include a reference to all modifications, enhancements or updates to the Application and the term “Service” shall include a reference to all modifications, enhancements and updates to the Service made during the term of this agreement.
If any provision of this licence agreement is held invalid, unenforceable, or illegal for any reason the licence agreement shall remain otherwise in full force apart from such provisions, which shall be deemed deleted.
This licence agreement will be governed by and construed according to the laws of the State of Victoria, Australia and the parties submit to the exclusive jurisdiction of the Court.