BPAY Customer Reference Number
Creation Tool
End user licence agreement (EULA)
This Agreement,
between you and BPAY Pty Ltd (ABN 69 079 137 518) ("BPAY") as licensor, governs your use of the Customer
Reference Number Creation Tool software which this Agreement accompanied and
the accompanying user documentation ("Software").
READ THE TERMS AND CONDITIONS OF THIS END
USER LICENCE AGREEMENT ("EULA") CAREFULLY BEFORE LOADING OR USING THE
SOFTWARE. THE SOFTWARE, INCLUDING ALL INTEGRATED FEATURES, MODULES AND
APPLICATIONS, IS COPYRIGHTED, AND IS LICENCED (NOT SOLD). BY CLICKING "ACCEPT"
WHEN INSTALLING THIS PROGRAM, OPENING THE PACKAGE CONTAINING THE LICENCED
MATERIALS, OR OTHERWISE INSTALLING THE PROGRAM, YOU ARE ACCEPTING AND AGREEING
TO THE TERMS OF THIS LICENCE AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY
THE TERMS OF THE LICENCE AGREEMENT, YOU SHOULD NOT OPEN OR INSTALL THE SOFTWARE.
IF YOU HAVE ACQUIRED THIS PROGRAM FROM A THIRD PARTY, PROMPTLY RETURN THE PACKAGE
IN UNOPENED FORM TO BPAY.
YOU MUST ALSO REMOVE THE PROGRAM FROM YOUR COMPUTER. THIS LICENCE AGREEMENT
REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE PROGRAM BETWEEN YOU AND BPAY AND IT SUPERSEDES
ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES. YOU
AGREE THAT THIS LICENCE AGREENMENT SHALL ALSO APPLY TO ANY UPDATES OR UPGRADES
OF THE SOFTWARE YOU ACQUIRE.
1
DEFINITIONS
"BPAY"
means BPAY Pty Ltd
ABN 69 079 137 518.
"BPAY Scheme", "Biller"
and "CIP" have the same meaning as given to those terms in the Biller
Agreement to which you are a party.
"Commencement Date" means the date on
which you first load the Software to any computer and agree to be bound by the
terms of this agreement.
"Intellectual Property Rights" means
copyright, trademark, design, patent, semi-conductor or circuit lay-out rights,
software, trade, business or company names, trade secrets, know-how,
confidential information and all intellectual property defined by Article 2 of
the Convention establishing the World Intellectual Property Organisation of
July 1967, and any right to register those rights whether created before or
after the Commencement Date, and whether existing in Australia or otherwise and
in all cases for the duration of those rights.
"Software" means the Customer
Reference Number Creation Tool provided by BPAY to you including all updates,
patches and new versions of that software and all materials (including
technical documents, instruction manuals and user guides) provided to you in
connection with that software.
2
ACKNOWLEDGEMENT
2.1
You acknowledge that:
(a)
you are a party to a
Biller Agreement to allow your participation in the BPAY
Scheme as a Biller (Biller Agreement)
(b)
to participate as a
Biller you must comply with certain technical standards, including the use of a
customer reference number that contains a "check digit";
(c)
the Software made
available under this EULA may be used to automatically create customer
reference numbers that include a check digit for use when acting as a Biller in
BPAY; and
(d)
there are a wide
variety of valid check digit generation routines that may be used in BPAY Payments, and a variety of commercial operators who may make available
other software similar to the Software, and that may be used instead of the
Software if you choose.
3
LICENCE
3.1
BPAY grants to you a non-exclusive non-transferable sub-licence to use the
Software in its capacity as a Biller in the BPAY
Scheme to create Customer Reference Numbers that include a check digit on the
terms of this agreement.
3.2
BPAY permits consultants or sub-contractors, who have contracted with you
to provide services to you, to use the Software but only for your benefit in
accordance with this agreement.
3.3
You may make no more
than two copies of the Software for back-up purposes provided that all back-up
copies of the Software are kept in safekeeping and are otherwise subject to the
provisions of this agreement and that any proprietary notice is reproduced in
or on the copies.
3.4
You may use the
Software in association with other software products but nothing in this clause
2.4 will derogate from the interest held by BPAY in
the Software, or operate as an assignment of Intellectual Property Rights in
the Software to you, and provided that you indemnify BPAY
against any damage suffered by Member arising from such use.
4
COPYRIGHT
4.1
You acknowledge that
all Intellectual Property Rights in the Software are owned and remain the
property of BPAY.
5
TERM AND TERMINATION
5.1
This agreement takes
effect on the Commencement Date and continues until you cease to be a Biller in
the BPAY Scheme or BPAY
terminates this agreement.
6
WARRANTY, LIMITATIONS
AND INDEMNITY
6.1
BPAY warrants that it has the right and authority to enter into and to
grant the sub-licence under this agreement.
6.2
You acknowledge that BPAY does not warrant that the Software is error free, correct, up to date
or of suitable quality and accuracy for the purposes required by you.
6.3
YOU USE THE SOFTWARE AT
YOUR OWN RISK. BPAY ACCEPTS NO LIABILITY HOWEVER IT ARISES
(INCLUDING WITHOUT LIMITATION FOR PROCESSING UNAUTHORISED OR ERRONEOUS
TRANSACTIONS) FOR ANY LOSS, DAMAGE OR INJURY IN CONNECTION WITH THE SUPPLY OR
USE OF THE SOFTWARE.
6.4
Nothing in this
Agreement is intended to modify or exclude BPAY’s liability
for a breach of non‑excludable conditions or warranties implied into this
Agreement by reason of any statutory enactment, including any state or
territory law. However, if BPAY breaches a condition or warranty implied
under any law which cannot lawfully be modified or excluded by this agreement
then, to the maximum extent permitted by law, BPAY
liability is limited, at BPAY option, to (a) resupply of the Software,
or (b) payment of the cost of having the Software supplied again.
7
SECURITY
7.1
You must maintain
adequate security measures for the Software and any technical and user
documentation and agree not to make copies in either digital or hard copy form
other than for use by you as a Biller in the BPAY
Scheme or for back-up purposes under clause 2.3.
7.2
You must promptly
notify BPAY if you becomes aware of any disclosure or
distribution of the Software in violation of the provisions of this agreement
by any person, and must give BPAY all necessary assistance in connection
with any proceedings instituted relating to that disclosure or distribution.
7.3
You must permit BPAY to verify the use of the Software by the Biller and inspect all
applicable record or media at all reasonable times in the company of you or a nominated
responsible officer.
8
CONFIDENTIALITY
8.1
You must keep
confidential all information relating to the coding, operation and workings of
the Software and may not disclose this information to any person except:
(a)
to employees, legal
advisers, auditors and other consultants of the party or its related bodies
corporate requiring the information for the purposes of this agreement; or
(b)
with the consent of BPAY; or
(c)
if the information is,
at the date of this agreement, lawfully in the possession of the recipient and
not as a result of a breach of confidence; or
(d)
if required by law.
8.2
If you disclose
information under clause 7.1(a) or (b) you must use all reasonable endeavours
to ensure that persons who receive confidential information from it do not
disclose it except in the circumstances permitted by clause 7.1.
8.3
If you have received
confidential information from BPAY under this agreement you must, on the
request of BPAY, immediately deliver to BPAY all documents or other materials (including software) containing or
referring to that information which are in your possession, power or control or
in the possession, power or control of persons who have received such
information from you under clause 7.1(a) or (b).
9
GENERAL TERMS
9.1
Governing Law
This Agreement is
governed and construed in accordance with the law in force in the State of New South Wales and the parties agree to submit to the non-exclusive jurisdiction of the
courts of that state.
9.2
No waiver
The failure of any
party to exercise or its delay in exercising any right, power or privilege
available to it does not operate as a waiver of that right, power or privilege
or preclude any other or further exercise that right, power or privilege or the
exercise by that party of any other right, power or privilege in this
agreement.
9.3
Assignment
No rights or
obligations of you may be dealt with in any way by you (whether by assignment,
sub-licence or otherwise) without BPAY’s prior written
consent. BPAY may freely deal with its rights and
obligations under this agreement.
9.4
Survival
Clauses 5, 7 and
indemnities given by you under this agreement survive termination of this
agreement.