PLEASE READ THIS MERIDIAN 86 END USER LICENSE AGREEMENT CAREFULLY. BY CLICKING “ACCEPT” AND USING THE SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT.
IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU SHOULD CLICK “CANCEL” AND YOU WILL NOT BE ABLE TO USE THE SOFTWARE.
MERIDIAN’S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ACCEPTANCE OF THE PROVISIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS, CONDITIONS OR PROVISIONS. IF THIS AGREEMENT IS CONSIDERED AN OFFER BY MERIDIAN, ACCEPTANCE IS EXPRESSLY LIMITED TO THE PROVISIONS OF THIS AGREEMENT.
1.1 In accordance with this Agreement, Meridian grants to the User a non-exclusive, non-transferable licence to use the Software for the Term.
2.1 Calculation. For each Period during the Term, Meridian will calculate the Fees payable by the User (if any) in respect of the Software during that Period and in accordance with the Price List;
2.2 Payment. The Fees in any Invoice will be due and payable by the User in advance and in accordance with the Payment Policy; PROVIDED THAT if the User disputes the amount of any Invoice rendered by Meridian, the User must notify Meridian in writing before the due date of that Invoice, stating the reasons for the dispute.
2.3 Variation of Payments. Notwithstanding this Clause 2, during the Term, Meridian may by giving notice to the User:-
(a) add, change or remove any accepted method of payment, which modifications will be immediately effective; and
(b) increase or vary the Price List; PROVIDED THAT such increases or variations to the Price List will take effect:-
(i) from the next Period commencing after the notice is given; or
(ii) immediately upon the consent of the User.
3 THE USER’S OBLIGATIONS
3.1 Use of the Software. In relation to the User’s use of the Software, the User hereby undertakes to Meridian that the User will:-
(a) use the Software in accordance with the provisions of this Agreement and any AUP;
(b) refrain from:-
(i) providing, selling, renting, leasing, assigning or otherwise making available the Software or any Confidential Information in any form to any other person; and
(ii) providing or allowing access to the Software or the User’s Username and Password by any other person;
(iii) using the Software in contravention of this Agreement, an AUP or for any Prohibited Use;
(c) take all steps necessary to prevent unauthorised use of the Software, including ensuring that the User’s Username and Password are kept secure and not disclosed to any other person.
3.3 Backup and Maintenance. Notwithstanding that Meridian may perform routine maintenance and backup operations in respect of the Software and the Website at the time and from time to time, the User acknowledges that:-
(a) the User is solely responsible for:-
(i) the maintenance and backup of all data created by the User using the Software; and
(ii) all necessary Equipment in order to access the Software or the Website; and
(b) subject to Clause 8, Meridian will not be held liable for any loss or damage suffered by the User due to:-
(i) the User’s failure to backup any data; or
(ii) a fault, error or failure of the User’s Equipment.
4 MERIDIAN’S OBLIGATIONS
4.1 Basic Services. During the Term, subject to any Suspension or Termination, Meridian will:-
(a) provide the User with access to the Software; and
(b) ensure that the Software is maintained and available to a reasonable standard.
4.2 Additional Services. During the Term, subject to any Suspension or Termination, Meridian may offer to the User additional services in relation to the Software the terms and conditions of which additional services will be separately agreed.
5.1 The User’s Warranties. The User warrants to Meridian that the User:-
(a) has exercised independent judgment in acquiring the Software and have not relied on any representation made by Meridian which has not been stated expressly in this Agreement, or upon any descriptions or illustrations or specifications contained in any document including catalogues or publicity material produced by Meridian;
(b) is over the age of eighteen (18) years and is of full legal capacity to enter into and be bound by this Agreement.
5.2 Meridian’s Warranties. Subject to Clause 8, Meridian warrants to the User that the Software is of merchantable quality and is fit for its intended purpose, however, the User acknowledges Meridian does not warrant and cannot guarantee that the Software will be:-
(a) free from errors; or
(b) not subject to scheduled and unscheduled outages caused by faults or maintenance or other reasons whether within or beyond Meridian’s control.
5.3 The User further acknowledges that the existence or occurrence of any such errors, outages or incompatibilities, whether notified to the User or not, will not constitute a breach by Meridian of this Agreement, except for such errors, outages or incompatibilities caused by the negligence of Meridian.
5.4 Cross-Browser Compatibility. Subject to Clause 8 and notwithstanding that Meridian may at its sole discretion test the Software for compatibility with the latest publicly-available versions of the:-
(a) Microsoft® Internet Explorer®; and
(b) Mozilla® Firefox®;
browser software, Meridian does not warrant that the Software will be compatible with previous or future versions of the said browser software, or with any other software.
5.5 Third Party Websites. Subject to Clause 8, and notwithstanding that Meridian may at the time and from time to time provide links from the Software or Website to websites controlled by third parties, Meridian will not be held responsible for any Liability suffered by the User in relation to the use by the User of any such third party websites.
6 IP RIGHTS
6.1 The User acknowledges that the Software is the subject of the IP Rights, and that Meridian is authorised to deal with the IP Rights.
6.2 The User specifically undertakes to Meridian that the User will not at any time during the Term or after the Termination or expiry of its Licence:-
(a) modify, adapt, translate, reverse engineer, decompile or disassemble the Software;
(b) reproduce the Software except as otherwise expressly authorised by this Agreement; or
(c) conduct or permit any act which infringes the IP Rights in respect of the Software.
6.3 No Assignment. Nothing in this Agreement will be construed to be an assignment of any right, title or interest in or to the IP Rights, which the parties acknowledge will remain solely the property of Meridian and/or its licensors.
7.1 The User hereby indemnifies Meridian against all:-
(a) Liabilities which Meridian suffers; and
(b) Claims made by any third party against Meridian,
by reason of, or in connection with:-
(c) a matter which constitutes, or in circumstances that constitute, a breach of, or inaccuracy in, any of the User’s warranties or any other covenant, undertaking or representation made by the User in this Agreement;
(d) any breach or failure by the User to fulfil its obligations under this Agreement;
(e) the Suspension or Termination by Meridian of the Licence arising as a result of the User’s breach of this Agreement;
(f) any Prohibited Use of the Software by the User.
7.2 Grant of Indemnity The indemnity referred to in Clause 7.1 will be granted whether or not legal proceedings are instituted and, if such proceedings are instituted, irrespective of the means, manner or nature of any settlement, compromise or determination.
7.3 Notification of Claims. Meridian will notify the User as soon as reasonably practicable after becoming aware of anything which is or may be reasonably likely to give rise to a Claim by Meridian under Clause 7.1.
8 LIMITATION OF LIABILITY
8.1 Subject to Clause 8.2 and to the extent permitted by the Trade Practices Act 1974 (Cth) (“TPA”) and relevant state legislation:-
(a) Meridian’s sole obligations under this Agreement are as set out in Clause 4 and
(b) in no event will Meridian be liable for any other claims or damages including, but not limited to, claims for faulty design, negligent or misleading advice, damages arising from loss or use of the products, and any indirect, special or consequential damages or injury to any Person, corporation or other entity.
8.2 If the Software or any service provided to the User by Meridian in accordance with the Agreement is supplied to the User as a ‘consumer’ of goods or services within the meaning of that expression in the TPA or similar state legislation, then:-
(a) the User will have the benefit of certain non-excludable rights and remedies in respect of the Software or such services; and
(b) nothing in this Agreement excludes or restricts or modifies any condition, warranty, right or remedy which pursuant to the TPA or similar legislation is so conferred;
PROVIDED THAT if the products or services provided by Meridian to the User in accordance with this Agreement are products or services not ordinarily acquired for personal, domestic or household use or consumption pursuant to s 68A of the TPA and similar provisions of relevant state legislation, Meridian limits its liability to:-
(c) the supplying of the products or services again; or
(d) the payment of the cost of having the products or services supplied again.
8.3 Subject to Clause 8.2, Meridian will not be:-
(a) liable for default or failure in performance of its obligations pursuant to this Agreement resulting directly or indirectly from acts of God, civil or military authority, acts of public enemy, war, accidents, fires, explosions, earthquakes, floods, the elements, strikes, labour disputes, shortage of suitable parts, components, materials including ink, chemicals and paper, labour or transportation or any other cause beyond Meridian’s reasonable control.
(b) held responsible for any Liability caused by, or suffered by the User in relation to, an error or defect in the Software or errors or faults caused by any person.
9.1 Amendments. Subject to Clause (a), this Agreement may not be amended or modified except in writing agreed between the parties; PROVIDED THAT:-
(a) Meridian at its sole discretion may amend or update this Agreement at the time and from time to time by:-
(i) giving notice of the amendment to the User; and
(ii) making an amended copy of this Agreement available to the User on the Website, or providing the User with an amended copy of this Agreement;
(b) any variation in the Price List, Invoicing or Payments will be effected in accordance with Clause 2.3; and
(c) the User will be deemed to have accepted the amended Agreement if the User continues to use the Software ten (10) Business Days after the notice is given.
10 TERMINATION AND SUSPENSION
10.1 Termination by either party. Either party may Terminate the Licence for any reason by giving notice to the other party.
10.2 Suspension by Meridian. Notwithstanding Clause 10.1, Meridian may immediately and without prior notice to the User at its sole discretion Suspend the Licence if:-
(a) the User uses the Software for any Prohibited Purpose;
(b) the User fails to pay any Invoice on or before its due date;
(c) the User is subject to an Insolvency Event; or
(d) the User is in breach of any provision of this Agreement, and such failure or breach is not remedied by the User within seven (7) days of notice by Meridian;
PROVIDED THAT if the Licence is Suspended by Meridian, and the User fails to comply with any Suspension Conditions (referred to in Clause 10.3) within the deadline for compliance specified by Meridian, or if no deadline is specified within a reasonable time, Meridian may immediately Terminate the Licence.
10.3 Effect of Suspension. Upon Suspension of the Licence for any reason:-
(a) Meridian may immediately suspend, deny or otherwise restrict access to the Software;
(b) Meridian will issue to the User a suspension notice in which notice Meridian may specify:-
(i) the reason(s) for the Suspension;
(ii) a period of Suspension; and/or
(iii) any conditions with which the User must comply (“Suspension Conditions”) and a deadline for such compliance;
10.4 Effect of Termination. Upon Termination of the Licence for any reason:-
(a) Meridian may:-
(i) immediately suspend, deny or otherwise restrict access to the Software;
(ii) delete, remove or destroy any of the Websites, data or information relating to the User’s use of the Software and under Meridian’s control;
(b) the User’s rights to use the Software will immediately terminate;
(c) the User:-
(i) acknowledges that unless Meridian otherwise agree to do so at its sole discretion, Meridian is under no obligation to transfer or duplicate the User’s data to any other format, location or platform;
(ii) will return to Meridian any Confidential Information provided by Meridian;
(iii) will immediately pay to Meridian the balance of any outstanding Invoices.
10.5 Termination does not affect rights. Termination pursuant to this Clause 10 will not affect any rights or remedies which either party may have otherwise under this Agreement or at law.
10.6 Co-operation with authorities. Notwithstanding this Clause 10, Meridian reserves the right to co-operate with appropriate legal and regulatory authorities (“authorities”) in investigations of claims of unlawful activity or Prohibited Use involving the use of the Software by the User including:-
(a) monitoring of communications; and
(b) acting in compliance with any lawful direction of such authorities in relation to any actual or suspected Prohibited Use.
11.1 Survival. Clauses 6, 7, 8 and 10 survive the Termination or expiry of the Licence and this Agreement.
11.2 Assignment or sub-licence.
(a) The User may not assign, sub-licence or otherwise deal with in any way its rights and obligations under this Agreement without Meridian’s prior written consent.
(b) Meridian may assign, sub-licence, sub-contract or novate Meridian’s rights and obligations under this Agreement at any time by notice in writing to the User.
11.3 Relationship of Parties. The User hereby agrees with Meridian that nothing in this Agreement creates a relationship of principal and agent, partnership, joint venture or employment between Meridian and the User.
11.4 No waiver. Failure or negligence by either party to enforce at any time any of the provisions of this Agreement will not be construed or deemed to be a waiver of that party's rights under this Agreement
11.5 Jurisdiction. This Agreement will be governed by and construed according to the law of the State of Queensland in the Commonwealth of Australia, and all disputes will be heard by the appropriate courts in Brisbane, Queensland.
11.6 Notices. Any notice which a party may wish to give under this Agreement which is addressed to the last known address of the intended recipient set out in this Agreement.
(a) by prepaid registered mail, will be deemed to have been properly given five (5) Business Days thereafter;
(b) by facsimile or email will be deemed to have been properly given (if transmitted during business hours of the receiving instrument) within one (1) hour and if not during business hours of the receiving party, 9:00am on the next Business Day,
unless actual receipt at an earlier date or time is established. Proof that:-
(c) an email or facsimile was sent; or
(d) a letter was properly addressed and deposited;
will be sufficient evidence of service on the intended recipient.
11.7 Entire Agreement. This Agreement sets forth the entire Agreement and understanding between the parties as to the subject matter of this Agreement and merges all prior discussions and Agreements between them, and the parties will not be bound by any conditions, definitions, warranties or representations in respect of the subject matter of this Agreement other than those contained in this Agreement.
11.8 Time of the essence. Time will in all cases and in every respect be deemed to be of the essence of this Agreement, such that all time periods nominated in this Agreement will apply strictly.
11.9 Force Majeure. Meridian is not liable for any failure to perform Meridian’s obligations under this Agreement which arises out of any event of Force Majeure.
11.10 Severability. If any provision of this Agreement is to any extent held by any Court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement will not be affected and will remain in full force and effect.
11.11 No withholding. The User agrees that the User will not on any grounds of alleged non-performance by Meridian of any of its obligations under this Agreement or for any other reason, withhold payment of any Fees due whatsoever.
11.12 Costs. The User will indemnify Meridian against all taxes, charges, licence fees, stamp duty or assessments required to be paid in relation to the provision of the Software pursuant to this Agreement, excluding tax payable on Meridian’s net income.
11.13 Further Assistance. Each party will do all such acts, matters and things and execute such further Agreements and other documents as may be necessary or desirable for the purpose of giving effect to this Agreement.
12.1 Unless the context otherwise requires, the following expressions will have the meanings set out below:-
this Agreement between the User and Meridian together with all schedules and amendments and any other Agreement expressed to be supplemental to this Agreement;
AUP (Acceptable Use Policy)
that Acceptable Use Policy (if any) as published by Meridian at the time and from time to time and in relation to the use by the User of the Software;
each and every day of the week excluding Saturday, Sunday and a Public Holiday in the State of Queensland;
those fees (if any) as calculated by Meridian at the time and from time to time with reference to the Price List in respect of each Period and in accordance with Clause 2;
means a circumstance beyond Meridian’s reasonable control which results in Meridian being unable to observe or perform on time, an obligation under this Agreement, including but not limited to:-
(a) acts of God, lightning, strikes, earthquakes, floods, storms, explosions, first and any natural disaster;
(b) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; or
that goods and services tax imposed pursuant to A New Tax System (Goods and Services Tax) Act 1999 (Cth) and associated regulations and legislation;
in relation to a party to this Agreement, any one or more of the following occurs:-
(a) an order or court application is made, or the party passes a resolution, for:-
(i) winding up; or
(ii) the appointment of a controller, provisional liquidator, trustee for creditors or in bankruptcy;
(b) an administrator, liquidator, receiver, receiver-manager or controller is appointed to the party or any of its property;
(c) the holder of a security interest takes possession of any of the party’s property;
(d) the party is taken under s459F(1) of the Corporations Act to have failed to comply with a statutory demand;
(e) the party is taken under s40 of the Bankruptcy Act 1966 (Cth) to have failed to comply with a bankruptcy notice;
(f) the party becomes or is taken to become insolvent or unable to pay its debts, suspends payment of its debts, ceases or threatens to cease to carry on a material part of its business;
(g) the process or any court or authority is invoked against the party or its property to enforce a judgement or order for the payment of money or the recover of property, unless the party can demonstrate to the other party’s satisfaction that there is no substantial basis for such order or judgement;
(h) the party dies, loses full legal capacity or otherwise becomes unable to manage its own affairs for any reason;
(i) the party takes any step that could result in the party becoming an insolvent under administration (as that expression is defined in the Corporations Act);
(j) the party takes any step toward entering into a compromise or arrangement with, or assignment for the benefit of its members or creditors;
(k) any analogous event;
unless such event or events take place as part of a solvent reconstruction, amalgamation, merger or consolidation that has been notified to and approved by the other party;
that tax invoice (inclusive of GST) to be rendered by Meridian to the User in accordance with Clause 2 and respect of the Fees for each Period within the Term;
each and every one of those rights of intellectual property including patents, patent applications, Trade Marks, copyright, designs (whether registered or not), circuit layout rights, know-how and trade secrets subsisting in the Software and the Website as upgraded or developed from time to time and anywhere in the world, which IP Rights are owned by or licensed to Meridian;
that end user licence granted by Meridian to the User in respect of the Software in accordance with this Agreement;
Meridian 86 Pty Ltd (ACN 130 864 121);
that password either allocated to or chosen by the User at the time and from time to time and in respect of their access to the Software;
that policy in relation to the issue and payment of Invoices as published by Meridian at the time and from time to time on the Website or at such other location as notified to the User at the time and from time to time;
during the Term, each and every period of twelve (12) calendar months:-
(a) commencing on the date of this Agreement and each anniversary thereafter; and
(b) concluding upon the Termination or expiry of the Licence,
or as otherwise notified to the User by Meridian;
includes any person, trust, firm or company and each and every one of their successors;
that list of prices in respect of each component of the Software and any additional services provided by Meridian at the time and from time to time, and as set out in Schedule 1;
any malicious, harmful, unlawful, illegal or otherwise prohibited use of the Software or any Website, including but not limited to:-
(a) transmission of mass unsolicited email or spam, distribution or promotion of software, information or services that have the primary purpose of encouraging or facilitating unsolicited commercial e-mail or spam;
(b) infringement of any third party rights including copyright, trade marks, patents and other intellectual property rights;
(c) publication or dissemination of information that:-
(i) constitutes slander, libel or defamation, dissemination of sexually explicit, hateful, vulgar, racially, ethnically or otherwise objectionable materials as determined by Meridian in its sole discretion;
(ii) threatens any Person with bodily harm, constitutes harassment or abuse, or solicits the performance of acts or services that are illegal under applicable law.
(iii) publicises the personal information or likeness of a Person without that Person's consent or
(iv) otherwise violates the privacy rights of any Person;
(d) disruptive or abusive activity, including:-
(i) causation of denial of service attacks against any Person or to otherwise degrade or impair the operation of the servers and facilities of any Person;
(ii) subversion, or assisting others in subverting, the network, security or integrity of any Person’s systems, facilities or equipment;
(iii) unauthorised access to the computer networks of any Person;
(iv) provision of passwords or access codes to Persons not authorised to receive such materials by the operator of the system requiring the password or access code;
(v) forgery, impersonation, theft of identity;
(vi) distribution of any virus, worm, Trojan horse, or computer code intended to disrupt services, destroy data, destroy or damage equipment, or disrupt the operation of the Software or any other system;
(vii) port scans or other invasive procedures against any server;
(viii) use that causes or is likely to interruption or interference with the internet usage of any Person;
(e) use that may subject Meridian to unfavourable Claims or Liabilities, or otherwise adversely Meridian’s public image, reputation or goodwill; or
(f) any use in violation of an AUP;
that web-based software for the purpose of goal setting and management provided by Meridian to the User in accordance with this Licence and including any upgrades, updates, patches, modules or modifications made by Meridian at the time and from time to time;
the date upon which the User:-
(a) accepts this Agreement; or
(b) first uses the Software,
whichever is the first to occur;
suspension of the Licence in accordance with Clause 10; and Suspend and Suspended will have a corresponding meaning;
that period of time from the Start Date until Termination;
that termination of the Licence in accordance with Clause 7; and Terminate will have a corresponding meaning;
each and every one of those names (whether registered or unregistered as a trade mark or a business name) associated with the Software and Meridian’s activities;
that username either allocated to or chosen by the User and in respect of their access to the Software;
that website conducted by Meridian and located at <http://www.lifetick.com> through which the Software is provided;
12.2 Any reference to one gender will include a reference to other genders and the singular will include the plural and vice versa.
12.3 A reference in this Agreement to any Act of Parliament or any section thereof will be read as though the words "or any statutory modification or re-enactment thereof or any statutory provisions substituted therefore" were added to such reference.
PRICE LIST - LIFETICK Free Full version Goals Maximum of 4 Unlimited Navigate Included Included Status Not included Included Journal Limited Included Reporting Limited Included Full version Where the User resides within Australia (includes GST) AU$39.00 for 1 year AU$59.00 for 2 years AU$119.00 for 5 years Where the User resides outside Australia US$39.00 for 1 year US$59.00 for 2 years US$119.00 for 5 years PRICE LIST - LIFETICK COACH Users managed under a Lifetick Coach account are not liable to pay for access to Lifetick during their period as users within that account. This is included in the fee payable for Lifetick Coach by the Lifetick Coach account holder. Where the User resides within Australia (inclusive of GST) SWIFT - Manage up to 5 users using 1 coach AUD$14.00 per month NIMBLE - Manage up to 12 users using 3 coaches AUD$29.00 per month TACTICAL - Manage up to 25 users using 5 coaches AUD$49.00 per month STRATEGIC - Manage up to 50 users using 10 coaches AUD$79.00 per month EPIC - Manage up to 100 users using 20 coaches AUD$129.00 per month HEROIC - Manage up to 200 users using 40 coaches AUD$199.00 per month LEGENDARY - Manage up to 500 users using 100 coaches AUD$299.00 per month Where the User resides outside Australia SWIFT - Manage up to 5 users using 1 coach US$14.00 per month NIMBLE - Manage up to 12 users using 3 coaches US$29.00 per month TACTICAL - Manage up to 25 users using 5 coaches US$49.00 per month STRATEGIC - Manage up to 50 users using 10 coaches US$79.00 per month EPIC - Manage up to 100 users using 20 coaches US$129.00 per month HEROIC - Manage up to 200 users using 40 coaches US$199.00 per month LEGENDARY - Manage up to 500 users using 100 coaches US$299.00 per month