Terms and Conditions

 

These Terms and Conditions are intended to explain our obligations as a service provider and your obligations as a customer. Please read them carefully. They are binding on any use of service and apply to you from the time that MHS Automation provides you with access to the service.

 

  1. Definitions

 

1.1 In this Agreement, unless the context otherwise requires, the following terms shall have the following meanings;

  1. Business Day – means the day on which banks are open for business in Sydney, Australia, excluding a Saturday, Sunday or public holiday in Sydney, Australia.
  2. Business Hours – means 9am to 5pm on a business day.
  3. Confidential information – means the know how, but excluded those aspects of the know how which comprise:
    1. information which is already in the public domain;
    2. information which is or becomes available to the Licensees or the Licensees’ Representatives;
    3. information which is or becomes available to the Licensees or the Licensees’ Representatives from a third party lawfully in possession thereof and who has the lawful power to disclose such information to the Licensees or the Licencsees’ Representatives;
    4. information which is rightfully known by the Licensees or the Licensees’ Representatives prior to the date of disclosure by the Licensor; or
    5. information which is independently developed by the Licensees or the Licensees’ Representatives who have no knowledge of the relevant information disclosed by the Licensor under this Agreement;
  4. Know How – means all information, know how, manuals, designs, specifications, formulae, systems, techniques (including all or any drawings of equipment or machinery such as structural, mechanical, hydraulic and electrical specifications) relating to the method or process for manufacturing, using, marketing or selling products that are the subject of the Intellectual Property and, to the extent that the Licensor owns or is able to licence to others copyright in such manuals, designs, specifications and drawings, the copyright in that subject matter;
  5. GST – means any goods and services tax, value added tax or any other tax or charge of a like nature levied or imposed in Australia in relation to a supply (or deemed supply) of any goods, property (real or otherwise), service or any other thing.
  6. Intellectual Property Rights – means the statutory and other legally enforceable proprietary rights including, but not limited to, the Intellectual Property, trade marks, all or any further or other patents, circuit layouts, copyrights, confidential information, trade secrets and all other Intellectual Property Rights defined in Article 2 of the Convention establishing the World Intellectual Property Right Organisation dated 14 July 1967 as amended from time to time;
  7. Intellectual Property – means the Intellectual Property as specified in Item 2 of the Schedule.
  8. Licence Fee – means the fee payable in accordance with clause 2 and as specified in Item 1 of the Schedule;
  9. Licensee’s’ Representatives – means any officers, employees, contractors, agents or consultants of the Licensee;
  10. Term – means the period commencing on the date of this Agreement and continuing for the Term as specified in Item 4 of the Schedule unless validly terminated in accordance with this Agreement.

1.2 In this Agreement, unless the context otherwise requires;

  1. headings and underlinings are for convenience only and do not affect the interpretation of this Agreement;
  2. words importing the singular include the plural and vice versa;
  3. words importing a gender include any gender;
  4. other parts of speech and grammatical forms of a word or phrase defined in this Agreement have a corresponding meaning;
  5. an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate or any governmental agency;
  6. a reference to any thing (including, but no limited to, any right) includes a part of that thing;
  7. a reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing it and a reference to a statute includes all regulations, proclamations, ordinances and bylaws issued under that statute;
  8. a reference to a document includes all amendments or supplements to, or replacements or novations of, that document;
  9. a reference to a party to a document includes that party’s successors and permitted assigns; and
  10. no provision of this Agreement will be construed adversely to a party solely on the ground that the party was responsible for the preparation of this Agreement or that provision.
  1. Use of Software

MHS Automation grants you the right to access and use the service via the MHS Automation website with the particular user roles available to you according to your subscription type. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement. You acknowledge and agree that, subject to any applicable written agreement between the Subscriber and the Invited Users, or any other applicable laws:

  1. the Subscriber determines who is an Invited User and what level of user role access to the relevant organisation and Service that Invited User has;
  2. the Subscriber is responsible for all Invited Users’ use of the Service;
  3. the Subscriber controls each Invited User’s level of access to the relevant organisation and Service at all times and can revoke or change an Invited User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be an Invited User or shall have that different level of access, as the case may be;
  4. if there is any dispute between a Subscriber and an Invited User regarding access to any organisation or service, the Subscriber shall decide what access or level of access to the relevant data or service that Invited User shall have, if any.
  1. Your Obligations

3.1 Payment obligations

Each month an invoice will be issued for the Account Fee starting one month from the date you added your first organisation to your MHS Automation account. MHS Automation will continue invoicing you monthly until this Agreement is terminated. All MHS Automation invoices will be sent to you, or to your Accounts Department whose details are provided by you, by email. You must pay or arrange payment of all amounts specified in any invoice by the due date for payment and are payable within 14 days of the invoice date. You are responsible for payment of all taxes and duties in addition to the Account Fee.

3.2 General obligations

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 MHS Automation or condition posted on the website. You may use the service and website on behalf of others or in order to provide services to others but if you do so you must ensure that you are authorised to do so and that all persons for whom or to whom services are provided comply with and accept all terms of this Agreement that apply to you.

  1. Automated bank transaction data delivered into your MHS Automation account

Where available, automated bank account transaction data feeds are generally provided to you free of charge. However, MHS Automation reserves the right to pass on any charges related to the provision of bank feed data on a case-by-case basis at MHS Automation’s sole discretion. MHS Automation would first inform you via email to indicate what those charges are likely to be (as such charges may vary depending on your bank and your volume of bank feeds). You have the option to decide to discontinue use of automated bank feeds at any time. To exercise this option, you must give MHS Automation sufficient prior notice of which automated bank account transaction data feeds you want to discontinue. Upon receiving such notice MHS Automation will arrange for such feeds to be terminated in accordance with each bank’s usual practices.

  1. Access conditions

You must ensure that all usernames and passwords required to access the service are kept secure and confidential. You must immediately notify MHS Automation of any unauthorised use of your passwords or any other breach of security and MHS Automation will reset your password and you must take all other actions that MHS Automation reasonably deems necessary to maintain or enhance the security of MHS Automation’s computing systems and networks and your access to the services.

As a condition of these Terms, when accessing and using the services, you must:not attempt to undermine the security or integrity of MHS Automation computing systems or networks or, where the services are hosted by a third party, that third party’s computing systems and networks;

i. not attempt to undermine the security or integrity of MHS Automation computing systems or networks or, where the services are hosted by a third party, that third party’s computing systems and networks;

ii. 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;

iii. 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;

iv. 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

v. 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.

3.3 Usage limitations

Use of the Service may be subject to limitations, including but not limited to monthly transaction volumes and the number of calls you are permitted to make against MHS Automation’s application programming interface. Any such limitations will be advised.

3.4 Communication conditions

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. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the services, including (but not limited to): offers of goods or services for sale, unsolicited commercial e-mail, files that may damage any other person’s computing devices or software, content that may be offensive to any other users of the services or the website, or material in violation of any law (including material that is protected by copyright or trade secrets which you do not have the right to use).

When you make any communication on the website, you represent that you are permitted to make such communication. MHS Automation 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. As with any other web-based forum, you must exercise caution when using the communication tools available on the website. However, MHS Automation does reserve the right to remove any communication at any time in its sole discretion.

3.5 Indemnity

  1. The Licensor warrants and agrees with the Licensee that:
    1. no further licences will be granted to any other person in respect of the Territory for so long as the Licensee continue to perform its obligations under this Agreement during the Term;
    2. at the date of this Agreement the Licensor will be the legal and beneficial owner of the Intellectual Property and has good and marketable title thereto, and is free from liens, charges, mortgages and encumbrances.
  2. The Licensee acknowledges and agrees that the Intellectual Property is the exclusive property of the Licensor and the Licensee has no interest in or right to them except as herein provided.
  3. The Licensee must do all things reasonably necessary for the protection of any Intellectual Property the subject of this Agreement against de-registration or infringement.
  4. If a claim is made against the Licensee arising out of any alleged infringement of any Intellectual Property Rights of any third party then:
    1. The Licensee shall immediately notify the Licensor of the claim, whereupon the Licensor shall at the Licensee’s expense defend the claim and any legal proceedings;
    2. the Licensee’s shall give the Licensor all reasonable assistance in defending such claim.
  5. The Licensee must at all times indemnify the Licensor from and against all claims, demands, actions, proceedings, or prosecutions which may be made or commenced against the Licensor or in which the Licensor may be involved in consequence of or relating to the Licensee’s use of the Intellectual Property.  This indemnity extends to all costs, damages and expenses incurred by the Licensor in connection with the above.
  1. Confidentiality and Privacy

4.1 Except as provided in clause 2.1, the Licensee shall not, without the prior written consent of the Licensor, disclose or permit the disclosure of the Confidential Information to a third party.
4.2 The Licensee shall not be prohibited from disclosing or permitting the disclosure of the Confidential Information where the Licensees disclose the Confidential Information to the Licensee’s Representatives who need to know the relevant Confidential Information for the purpose of the Licensee fulfilling its obligations or exercising its rights under this Agreement; or

4.3 The Licensee shall not be prohibited from disclosing or permitting the disclosure of the Confidential Information to a third party where the Licensee is required to disclose the relevant Confidential Information by an order of a court of competent jurisdiction or by a governmental agency acting properly and within its authority or otherwise acting generally or by a stock exchange, and in each such case, the Licensee shall promptly notify the Licensor of the required disclosure and shall only disclose such part of the Confidential Information as is necessary to comply with the relevant requirements.

4.4 The Licensee shall use all reasonable endeavours to ensure that the Licensee’s Representatives complies with the confidentiality obligations imposed upon the Licensee under this Agreement.

  1. Intellectual Property

5.1 Any and all intellectual and industrial property rights throughout the world including, without limitation, and all rights in respect of or in connection with:

  1. any confidential information;
  2. copyright;
  3. inventions (including patents);
  4. trade marks, service marks;
  5. business names;
  6. domain names and websites;
  7. know how;
  8. any designs, layouts, systems, database;
  9. any other product or service produces using the methods or processes the subject of the know how including but not limited to the following;
    1. access to web portal of MHS Automation;

Whether or not now existing and whether or not registered or registerable and includes any right to apply for the registration of such rights and includes all renewals and extensions.

5.2 General

Title to, and all Intellectual Property Rights in the services, the website and any documentation relating to the services remain the property of MHS Automation (or its licensors).

5.3 Ownership of data

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 MHS Automation Account Fee when due. You grant MHS Automation a licence to use, copy, transmit, store, and backup 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.

  1. Backup of data

You must maintain copies of all data inputted into the service. MHS Automation adheres to its best practice policies and procedures to prevent data loss, including a daily system data backup regime, but does not make any guarantees that there will be no loss of data. MHS Automation expressly excludes liability for any loss of data no matter how caused.

 

  1. Third-party applications and your data

If you enable third-party applications for use in conjunction with the services, you acknowledge that MHS Automation may allow the providers of those third-party applications to access your data as required for the inter-operation of such third-party applications with the services. MHS Automation shall not be responsible for any disclosure, modification or deletion of your data resulting from any such access by third-party application providers.

  1. Warranties and Acknowledgements

6.1 Authority

You warrant that where you have registered to use the service on behalf of another person, you have the authority to agree to these Terms on behalf of that person and agree that by registering to use the service you bind the person on whose behalf you act to the performance of any and all obligations that you become subject to by virtue of these Terms, without limiting your own personal obligations under these Terms.

6.2 Acknowledgement

You acknowledge that:

  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 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).
  2. MHS Automation has no responsibility to any person other than you and nothing in this Agreement confers, or purports to confer, a benefit on any person other than you. If you use the services or access the website on behalf of or for the benefit of anyone other than yourself (whether a body corporate or otherwise) you agree that:
    1. You are responsible for ensuring that you have the right to do so;
    2. You are responsible for authorising any person who is given access to information or data, and you agree that MHS Automation has no obligation to provide any person access to such information or data without your authorisation and may refer any requests for information to you to address; and
    3. You will indemnify MHS Automation against any claims or loss relating to:’
      1. MHS Automation’s refusal to provide any person access to your information or data in accordance with these Terms,
      2. MHS Automation’s making available information or data to any person with your authorisation.
  3. The provision of, access to, and use of, the services is on an “as is ” basis and at your own risk.
  4. MHS Automation’s 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. MHS Automation is not in any way responsible for any such interference or prevention of your access or use of the services.
  5. MHS Automation 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. 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.
  7. You remain solely responsible for complying with all applicable accounting, tax and other laws. It is your responsibility to check that storage of and access to your data via the software and the website will comply with laws applicable to you (including any laws requiring you to retain records).

6.3 No warranties

MHS Automation gives no warranty about the services. Without limiting the foregoing, MHS Automation 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.

6.4 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.

  1. Limitation of Liability

7.1 To the maximum extent permitted by law, MHS Automation 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 MHS Automation’s negligence or failure to comply with these Terms, any claim by you against MHS Automation arising from MHS Automation negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Account 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.

  1. Termination

Termination by Licensor

8.1 Subject to clause 9.2 either party may terminate this agreement on three months’ notice in writing  or at the end of term as specified in Item 4 of the Schedule (‘Term’).

8.2 Without prejudice to any right or remedy which the Licensor may have against the Licensee for breach of this Agreement, the Licensor may terminate the licence to use the Intellectual Property and this Agreement at any time without notice to the Licensee: 

  1. if any fees payable under this Agreement are in arrears and the Licensee fails to pay such fees within 7 days of receipt of a notice from the Licensor calling upon the Licensees to pay the same;
  2. if the Licensee fails to perform or observe any of the terms of this Agreement that are required to be performed and observed by them and it fails to remedy such breach within 7 days of receipt of a notice from the Licensor requiring it to remedy such breach (such notice giving adequate particulars of the alleged default and of the intention of the party serving the notice to terminate this Agreement under this clause);
  3. if the Licensee ceases carrying on business;
  4. if any liquidator, receiver or receiver and manager enters into possession of any of the assets of the Licensee;
  5. an administrator is appointed to the Licensee pursuant to the Corporations Act 2001;
  6. if any distress or execution is levied upon any of the assets of the Licensee;
  7. if the Licensee goes into liquidation whether voluntary or compulsory (otherwise than for the purpose of amalgamation or reconstruction) or makes any composition with its creditors.

Effect of Termination by Licensor

8.3 Where this Agreement is terminated by the Licensor pursuant to clause 9 such termination will be without prejudice to any rights of the Licensor against the Licensee which may have accrued up to the date of such termination.

8.4 The termination of this Agreement shall be without prejudice to the right of the Licensee and any sub-licensee to the Intellectual Property and to complete binding contracts then in existence subject to the payment of fees thereon as stipulated in this Agreement.

8.5 Where this Licence is terminated pursuant to clause 9:

  1. the Licensor may by notice in writing require the Licensee to forthwith provide the Licensor with a list of customers of the Licensee or of any sub-licensee, and a list of distributors or agents of the Licensee or any sub-licensee and their respective addresses;
  2. all sub-licences (if any) will themselves terminate on expiry of a notice of termination, and the Licensee shall not (except as provided in this Agreement) thereafter be concerned with the Intellectual Property; and
  3. the Licensee shall immediately refrain from using the Intellectual Property and the Licensee shall cause to be removed from all reference to the Intellectual Property and the Licensee shall not in any way act or commit any conduct which could lead the public to be deceived or mislead into believing that the Licensee is connected with the Intellectual Property of the Licensor.
  4. The Licensee shall  immediately procure the return to the Licensor of all copies in the possession, power or custody of any authorised sub-licensee, subcontractor or other third party.

Trial policy:

8.6 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 must write a formal email to MHS Automation notifying them of your decision to terminate your account we will arrange for the termination to occur and billing to cease.

Prepaid Subscriptions:

  1. MHS Automation will not provide any refund for any remaining prepaid period for a prepaid Account Fee subscription.

No-fault termination:

  1. These Terms will continue for the period covered by the Account 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 Account Fee when due, unless either party terminates these Terms by giving notice to the other party at least 30 days before the end of the relevant payment period. If you terminate these Terms you shall be liable to pay all relevant Account Fees on a pro-rata basis for each day of the then current period up to and including the day of termination of these Terms.

Breach:

1. If you:

    1. breach any of these Terms (including, without limitation, by non-payment of any Account Fees) and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;
    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 Account Fees that are more than 30 days overdue); or
    3. You or your business become insolvent or your business goes into liquidation or has a receiver or manager appointed of any of its assets or if you become insolvent, or make any arrangement with your creditors, or become subject to any similar insolvency event in any jurisdiction,

2. MHS Automation may take any or all of the following actions, at its sole discretion:

    1. Terminate this Agreement and your use of the services and the website;
    2. Suspend for any definite or indefinite period of time, your use of the services and the website;
    3. Suspend or terminate access to all or any data.

3. For the avoidance of doubt, if payment of any invoice for Account Fees due in relation to any of your Billing Contacts, Billing Plans or any of your Organisations is not made in full by the relevant due date, MHS Automation may: suspend or terminate your use of the service, the authority for all or any of your organisations to use the service, or your rights of access to all or any data.

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 you will:

  1. remain liable for any accrued charges and amounts which become due for payment before or after termination; and
  2. immediately cease to use the Services and the Website.
  1. Help Desk

 

9.1 Technical problems

In the case of technical problems you must make all reasonable efforts to investigate and diagnose problems before contacting MHS Automation. If you still need technical help, please check the support provided online by MHS Automation on the website or failing that email us at suport@mhsautomation.com.

9.2 Service availability

Whilst MHS Automation intends that the services 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 development activity to take place.

If for any reason MHS Automation has to interrupt the services for longer periods than MHS Automation would normally expect, MHS Automation will use reasonable endeavours to publish in advance details of such activity on the website.

  1. General

Entire agreement

These Terms, together with the MHS Automation Privacy Policy and the terms of any other notices or instructions given to you under these Terms of Use, supersede and extinguish all prior agreements, representations (whether oral or written), and understandings and constitute the entire agreement between you and MHS Automation relating to the services and the other matters dealt with in these Terms.

Waiver

Failure by a party to insist upon the performance of any one or more of the conditions of this Agreement shall not be deemed to be a waiver of any right and remedies that the relevant party may have and will not be deemed a waiver of any subsequent breach or default. No provision of this Agreement will be deemed to have been waived by a party unless such waiver is in writing signed by an officer of that party giving notice in that behalf.

Delays

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.

No assignment

You may not assign or transfer any rights to any other person without MHS Automation’s prior written consent.

Governing law and jurisdiction

This Agreement is governed by and construed in accordance with the laws of the State of New South Wales and the Commonwealth of Australia as applicable and the parties submit to the non-exclusive jurisdiction of the courts of that state.

Severability

The invalidity or unenforceability of any one or more of the provisions hereof shall not invalidate or render unenforceable the remaining provisions of this Agreement.  Any illegal or invalid provision of this Agreement shall be severable and all other provisions shall remain in full force and effect.

Notices

10.1 Any notice or other communication, including but not limited to, any request, demand, consent or approval, to or by a party:

1. must be in legible writing and in English addressed as shown below:

if to the Licensor:

Address:      PO Box 157, Berkeley, NSW 2506

Attention:      MHS Automation

Phone:     1300 927 996

2. where the sender is a company, must be signed by an officer or under the common seal of the sender;

3. be regarded as being given by the sender and received by the addressee:

    1. if by delivery in person, when delivered to the addressee;
    2. if by post, 3 days from and including the date of postage; or

4. can be relied upon by the addressee and the addressee is not liable to any other person for any consequences of the reliance if the addressee believes it to be genuine, correct and authorised by the sender.

  1. Rights of third party

A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.