Welcome to the Mercator Ikuü Platform.
IMPORTANT NOTICE
The App and any other app, software, product, document or service provided by us to you for use of the Mercator Ikuü Platform are provided on the terms and conditions of this Agreement.
Permission to use the Software is conditional upon you agreeing to the terms and conditions of this Agreement set out below as well as our Privacy Policy.
The Software is only offered to you on condition that you have read and accepted all of the terms and conditions of this Agreement and our Privacy Policy and wish to become a licensee of the Software.
BY DOWNLOADING, INSTALLING, ACCEPTING AN INVITATION TO VIEW OR OTHERWISE USING THE SOFTWARE, YOU ACKNOWLEDGE AND AGREE THAT YOU ACCEPT ALL TERMS AND CONDITIONS OF THIS AGREEMENT AND OUR PRIVACY POLICY.
IF YOU DO NOT ACCEPT, THEN YOU MUST NOT DOWNLOAD, INSTALL, ACCEPT AN INVITATION TO VIEW OR OTHERWISE USE THE SOFTWARE.
1. Licence
We grant you a personal, non-exclusive, non-transferrable, revocable licence to use the Software strictly in accordance with the following terms and conditions of this Agreement.
You acknowledge that there is no transfer of title or ownership to you of the Software or of any updates, modifications or new releases.
Except to the extent required by law, we are not obliged to support the Software, whether by providing updates or otherwise. However, the Mercator Ikuü Platform or Software may be periodically updated by us from time to time and you agree that such updates may require you to update your Device in order to use the Mercator Ikuü Platform, Software or Approved Mercator Ikuü Products.
The terms of this Agreement govern any updates provided by us or third parties that replace and/or supplement the Mercator Ikuü Platform or Software. You agree that such updates will consequently form part of the Mercator Ikuü Platform or Software unless accompanied by a separate licence and user agreement in which case those terms will govern such updates.
We will notify you of any updates to the Mercator Ikuü Platform or Software, and any updates to this Agreement, via the App, by sending push notifications to your Device or to the email address you use with your Account. You should therefore ensure that your email address is valid and promptly updated if it changes.
You may only use the Software with the Mercator Ikuü Platform and Approved Mercator Ikuü Products.
2. Services/Mercator Ikuü Platform
The services which form part of this Agreement means the services provided under this Agreement to allow you to remotely access and interact with Approved Mercator Ikuü Products on your Device using the Software (Mercator Ikuü Platform).
We may change, vary, suspend or cease the Mercator Ikuü Platform in whole or part to the extent we reasonably determine from time to time in connection with the maintenance, operation, technical needs, security, supply, provision or your use of, the Mercator Ikuü Platform, Software or Approved Mercator Ikuü Products. Other than to the extent required by law, you agree that we will not be liable to you for any of the foregoing.
3. Lawful Use, Access & Security
Your User Obligations
You shall not, or let any other person, use the Mercator Ikuü Platform, Software or Approved Mercator Ikuü Products, or your Device (in connection with the Mercator Ikuü Platform, Software or Approved Mercator Ikuü Products) in order to obtain any unauthorised access of any kind or for any unlawful, illegal or improper purposes.
You are responsible for and agree to do the following:
(a) provide current, complete and accurate information when creating an account, and update your Account information as necessary to keep it current, complete and accurate;
(b) ensure the safekeeping, confidentiality and security of your Device and Account, including protecting your Device and Account against unauthorised access and taking all necessary precautions to keep your password secure;
(c) download updates of the Software to your Device;
(d) make sure that all settings, required network communication, entries, and changes necessary to operate the Mercator Ikuü Platform or Software on, or in connection with, your Device are enabled and correct, including allowing and enabling push notifications to be sent to your Device;
(e) immediately delete, or request deletion, of Mobile IDs or other forms of identification from your Device in connection with the Mercator Ikuü Platform and Software if the Device is lost, to be sold, transferred or assigned to someone else, or when you cease to use the Mercator Ikuü Platform; and
(f) comply with all applicable laws in connection with the use of the Mercator Ikuü Platform, Software and Approved Mercator Ikuü Products.
You acknowledge and agree that when you provide access to another party to your Device or Account, its security may be affected.
You also acknowledge and agree that we are not required to enquire as to the authenticity of use of the Mercator Ikuü Platform, Software or Approved Mercator Ikuü Products in connection with your Account, and that you are liable for all (authorised and unauthorised) use in connection with your Account.
To the fullest extent permitted by law, you agree to release and indemnify us for any use (whether authorised or unauthorised) in connection with your Account.
If you find that your Account is accessed or used by an unauthorised third party, you must immediately notify us by email at: customercare@mercator.com.au and follow our instructions to address the unauthorised access. To the fullest extent permitted by law, we shall not be liable for any problems or claims that may result from your failure to notify us of such a fact, to follow our instructions or to otherwise secure your Device and Account.
Access
When you activate certain features of the Mercator Ikuü Platform or Approved Mercator Ikuü Products we may need to access certain parts of your Device, including: access to the Bluetooth function and location on your Device or the accessories or information on your Device in order to use a feature of the Mercator Ikuü Platform or Approved Mercator Ikuü Products.
Use of the Mercator Ikuü Platform, Software or Approved Mercator Ikuü Products may require access to third party goods and services such as mobile network connection, roaming, third party websites, etc., and we are not liable or responsible for those services or any additional terms or costs associated with such services. The use of such third party goods and services is at your own risk and cost in all things.
Shared Services
As part of the Mercator Ikuü Platform you can provide authorisation and access to your Account to another person and thereby grant that person access to Approved Mercator Ikuü Products that you lawfully control (Recipient). The authorisation feature may include notice to the Recipient that the person who authorised the Recipient’s access can monitor a Recipient’s use of the Account. All information is collected and processed in accordance with our Privacy Policy.
You also acknowledge that a Recipient will only be able to use the Account for the Mercator Ikuü Platform, Software or Approved Mercator Ikuü Products when the administrator of that Account (i.e. the person who gave you or a Recipient permission to use the Account) grants you or the Recipient permission. You acknowledge that the administrator of that Account can remove your and the Recipient’s access to the Mercator Ikuü Platform and Software at any time without notice to you or the Recipient and you and any Recipient understand your or the Recipient’s access and use of the Mercator Ikuü Platform may terminate immediately thereafter.
If you provide a Recipient with access to your Account, you are responsible for and agree to do the following:
(a) getting proper consent from and informing any Recipient of the monitoring feature as well as your collection and processing of personal information of the Recipient;
(b) granting access to your Account to the right person. We shall not be held responsible for the correctness of the identification number or the name of the person you have provided to us. We have no obligation to verify any phone numbers, email addresses or the identity of a Recipient; and
(c) use of the Mercator Ikuü Platform, Software or Approved Mercator Ikuü Products in compliance with this Agreement by any Recipient under 18 years of age.
If you are a Recipient of access to an Account, you may have already agreed to the terms of this Agreement when installing the Software and/or using the Mercator Ikuü Platform and all terms of this Agreement and Privacy Policy apply to your use of the Account you use as a Recipient.
4. Approved Mercator Ikuü Products
Approved Mercator Ikuü Products means our products and other products approved by us to use the Mercator Ikuü Platform to remotely interact with the product.
Approval of such products is solely for the use of the Mercator Ikuü Platform and is not an endorsement or sponsorship by us of the standard, quality, functionality, performance, safety or otherwise of such products or the supplier of such products.
To the maximum extent permitted by law, we do not accept responsibility for injury, death, loss or damage of any kind (including direct, indirect, special or consequential loss or damage of any kind, loss or profits, loss or corruption of data, business interruption or indirect costs) arising in any way with the use of Approved Mercator Ikuü Products supplied by third parties.
5. Privacy
You acknowledge that any personal information we collect, hold, use or disclose in connection with this Agreement is subject to the terms of our Privacy Policy.
Our Privacy Policy is available at ikuu.com.au/privacy and is incorporated by reference and applies to this Agreement and your use of the Mercator Ikuü Platform, Software and Approved Mercator Ikuü Products.
We also collect information when the Mercator Ikuü Platform or Approved Mercator Ikuü Products connects to the Mercator Ikuü Platform servers (including to offload information). You understand and consent that the Mercator Ikuü Platform and Approved Mercator Ikuü Products may transmit any and all of the information collected from their use when they connect to the Mercator Ikuü Platform servers, irrespective of whether or not you sign-in and/or use the App.
The Mercator Ikuü Platform and Software are not directed to children under the age of 13, and we do not knowingly collect personal information from children under 13. If you are under the age of 13, please do not attempt to register an Account with us or provide any personal information about yourself to us. If you are a parent or legal guardian and choose to share your Account with a child, you acknowledge, authorise and consent to the use of your Account by your child and you authorise us to and agree that we may collect, hold, use and disclose personal information relating to your child’s use of the Mercator Ikuü Platform, Software and Approved Mercator Ikuü Products solely in accordance with the terms of this Agreement and our Privacy Policy.
6. Licensee’s obligations
You hereby undertake to us:
(a) to not copy, monitor, or in any manner alter, modify, reproduce, translate, adapt, vary or reverse engineer, reverse compile or attempt to derive the composition or underlying information or structure of all or any part of the Mercator Ikuü Platform, Software and Approved Mercator Ikuü Products;
(b) to not provide or otherwise make available your Account, the Mercator Ikuü Platform, Software or Approved Mercator Ikuü Products in any form to any person other than as expressly permitted by this Agreement;
(c) to not register false information in applying for or amending your access to the Mercator Ikuü Platform, Software and Approved Mercator Ikuü Products or use the information of a third party without proper authorisation;
(d) to not use or otherwise import or export the Mercator Ikuü Platform, Software and Approved Mercator Ikuü Products except as authorised by applicable law and to obtain all necessary approvals and licences to use the Mercator Ikuü Platform, Software and Approved Mercator Ikuü Products;
(e) to only use Approved Mercator Ikuü Products in accordance with the manufacturers’ recommendations and instructions;
(f) to not use the Mercator Ikuü Platform and Software on any Device that you do not own or control, and not to distribute any part of the Mercator Ikuü Platform or Software in any medium or make the Mercator Ikuü Platform or Software available over a network where they could be used by multiple devices at the same time;
(g) to not rent, lease, lend, sell, redistribute or sublicence the Mercator Ikuü Platform or Software or a Device on which the Software is installed;
(h) to not delete, change or modify in any way any intellectual property or intellectual property notices contained in the Mercator Ikuü Platform, Software or Approved Mercator Ikuü Products;
(i) to not download any software or introduce any programs or content to the Device which may impact the functionality and security of the Mercator Ikuü Platform or Software (including ‘rooting’ or ‘jailbreaking’ the Device or introducing viruses);
(j) to not use or launch any automated system, including robots, spiders or other automatic device or manual process to monitor or copy the Mercator Ikuü Platform, Software or Approved Mercator Ikuü Products; and
(k) to not introduce to the Software, Mercator Ikuü Platform or Approved Mercator Ikuü Products any viruses, worms, time bombs, and/or other computer programming routines that are intended to damage, detrimentally interfere with, intercept or expropriate any system, data or information or any content that may create liability for us or cause us to lose (in whole or in part) the services of our suppliers.
Any attempt to do any of the above by you or someone who has access to your Device or Account (whether authorised or unauthorised) is a violation by you of our rights, and, if relevant, of our licensors and third party suppliers of Approved Mercator Ikuü Products, and is a breach of this Agreement.
7. Intellectual Property
You acknowledge that the Mercator Ikuü Platform, Software, associated trade marks and Approved Mercator Ikuü Products are the subject of intellectual property rights belonging to us, our licensors or third party suppliers of Approved Mercator Ikuü Products. This Agreement does not transfer to you any ownership, right, title or interest in or to any intellectual property rights in the Mercator Ikuü Platform, Software, associated trade marks or Approved Mercator Ikuü Products other than the right to use the Mercator Ikuü Platform and Software on the terms of this Agreement. You will not during or any time after the expiry or termination of this Agreement do or permit any act which infringes those intellectual property rights.
You must not use any of our registered and unregistered names, logos, service, trade marks and other marks owned, adopted or used now or in the future by us in connection with the Mercator Ikuü Platform, Software or Approved Mercator Ikuü Products supplied by us, or any other names, logos, service, trade marks and other marks, or combination of names, logos, service, trade marks and other marks substantially identical, deceptively similar to or closely resembling any of them, without our prior written consent.
8. Indemnity
To the maximum extent permitted by law, you agree to indemnify and keep us fully indemnified from and against any and all suits, actions, claims, demands, losses, liabilities, damages, costs and expenses which we may suffer or incur arising in any way in connection with a breach by you or a Recipient of this Agreement.
9. Warnings
The Mercator Ikuü Platform, Software and Approved Mercator Ikuü Products are not certified for and do not operate as emergency response services and are not monitored for emergency services.
You should not use the Mercator Ikuü Platform or Software with Approved Mercator Ikuü Products, other than in accordance with the manufacturers’ recommendations for such Approved Mercator Ikuü Products. Without limiting the foregoing, electrical and electronic products (including their location and condition and are free and clear of any covering, obstruction or other unsafe or dangerous situation) should always be checked before they are turned on, off, adjusted or otherwise changed or scheduled to be turned on, off, adjusted or otherwise changed to ensure that they are not being turned on, off, adjusted or otherwise changed in unsafe or dangerous situations.
You should take your own precautions to ensure that your use of the Mercator Ikuü Platform, Software and Approved Mercator Ikuü Products do not expose you to risk of viruses or other forms of interference which may damage your Device, computer, smart home system, internet connection or other services or devices.
We do not warrant the accuracy, adequacy or completeness of information contained in any materials associated with the Software, Mercator Ikuü Platform and Approved Mercator Ikuü Products, and, to the maximum extent permitted by the law, we do not accept responsibility for any loss or damage (including consequential loss or damage) suffered as a result of reliance by you on the accuracy or currency of those materials.
As with most software and except to the extent required by law, it cannot be warranted that the Software and consequently the Mercator Ikuü Platform or Approved Mercator Ikuü Products will be free of defects or perform or be error free.
You are responsible for backing up your personal data that you provide to us for use of the Mercator Ikuü Platform and Approved Mercator Ikuü Products.
We guarantee all of our products and services to the extent required, and in accordance, with applicable laws. To the maximum extent permitted by law, we otherwise do not accept responsibility or liability for any of the foregoing.
10. Disclaimer
To the maximum extent permitted by law, any condition or warranty which would otherwise be implied into this Agreement is hereby excluded.
To the maximum extent permitted by law and subject to the following paragraph of this Clause 10, you agree that we have no liability, and will not be liable, to you or any other person whether in contract, tort or otherwise for any costs, expenses, injury, death, loss or damage of any kind (including direct, indirect, special or consequential loss or damage of any kind, loss or profits, loss or corruption of data, business interruption or indirect costs) you or any other person may suffer or incur (whether by our negligence or fault or otherwise, except where we have purposefully acted in bad faith) arising in any way in connection with the use of the Software, Mercator Ikuü Platform and Approved Mercator Ikuü Products by you.
If rights are conferred upon you or obligations are imposed upon us by certain Federal or State legislation which cannot be excluded, the provisions of this Clause 10 shall be read subject to those rights or obligations, and to the extent permitted by such legislation we hereby expressly limit our liability under any such legislation to the maximum extent permitted by law.
Subject to the preceding paragraph of this Clause 10, you agree that our liability (which cannot be limited beyond the following provisions) is limited to:
(a) in the case of the supply of goods by us, any 1 or more of the following (at our option):
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the costs of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the costs of having the goods repaired; or
(b) in the case of the supply of services by us, any 1 or more of the following (at our option):
(i) the supply of the services again; or
(ii) the payment of the costs of having the services supplied again.
Without reducing the effect of, and subject always to, the preceding provisions of this Clause 10, our total aggregate liability (if any) to you arising in any way in connection with the use of the Software, Mercator Ikuü Platform and Approved Mercator Ikuü Products supplied by us will not, in any event, exceed the normal recommended retail price for the Software, Mercator Ikuü Platform and Approved Mercator Ikuü Products recommended by us or the amount invoiced by us to you in connection with the purchase or use of the Software, Mercator Ikuü Platform and Approved Mercator Ikuü Products by you pursuant to which any such liability we may have to you arises.
11. Term
This Agreement continues but may be terminated by us if you or a Recipient is in breach of any term of this Agreement. You may terminate this Agreement by removing or otherwise deleting your Account via the App.
Upon termination:
(a) We may delete, directly or indirectly via a third party, the Mercator Ikuü Platform or Software or any other applications, programs or information in connection with same and stored on your Device.
(b) You and any Recipient shall immediately cease all use of the Mercator Ikuü Platform and Software and delete any remaining copies, in part or in full, of the Software.
(c) You will no longer be able to control your Approved Mercator Ikuü Products with the Mercator Ikuü Platform or Software.
Termination pursuant to this Clause 11 will not affect any rights or remedies which either you or us may otherwise have under this Agreement or at law.
12. Assignment
You shall not assign any of your rights, privileges or obligations hereunder without our prior written consent.
We may assign all or part of our rights and obligations under this Agreement to any of our related body corporates or successors or to any third party that is a successor to those assets of ours used in the provision of the Software or the Mercator Ikuü Platform.
13. Waiver
No waiver by us of any provision of or right of ours under this Agreement shall be effective unless it is in writing signed by us and such waiver shall be effective only in the specific instance and for the specific purpose for which it was given. No failure or delay by us to exercise any right under this Agreement or to insist on strict compliance by you with any obligation under this Agreement, and no custom or practice of the Parties at variance with the terms of this Agreement, shall constitute a waiver of our right to demand exact compliance with this Agreement.
14. Force Majeure
Neither Party shall be responsible or liable to the other for any loss, damage, detention or delay caused by limitations of availability, production, hold ups, fire, strike, civil or military authority, governmental restrictions or controls, insurrection or riot, acts of God, acts of terrorism, lockout, tempest, accident, breakdown of machinery, or any other cause which is unavoidable or beyond its reasonable control, nor in any event for consequential loss or damages arising out of such loss, damage, detention or delay.
15. Amendments
Except as otherwise provided by this Agreement, this Agreement may be amended only by a document, notification or communication authorised by us.
16. Severability
Any provision of this Agreement which is or becomes prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective and severed to the extent thereof without invalidating any other provision of this Agreement, and any such prohibition or unenforceability shall not invalidate such provision in any other jurisdiction.
17. Entire Agreement
This Agreement, together with our Privacy Policy, constitutes the entire agreement between the Parties concerning the subject matter of this Agreement and supersedes any and all prior agreements, representations, statements, negotiations, understandings, proposals, undertakings, tender, bid or response, oral or written, or other material produced by us which is not expressly set out in this Agreement.
18. Governing Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws in which the respective entity comprising us is incorporated, and the Parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of that jurisdiction; provided however that this Agreement may also be enforced by us in any other jurisdiction anywhere in the world.
The Parties to this Agreement hereby to the extent permitted by law specifically exclude the application of the United Nations Convention on Contracts for the International Sale of Goods and the incorporation of any express or implied terms of said United Nations Convention, and specifically exclude as well the interpretation of this Agreement or any part hereof in accordance with said United Nations Convention.
19. Non-merger
Your continuing warranties, covenants and indemnities in this Agreement shall not merge on termination of this Agreement and shall survive for our benefit thereafter.
20. Miscellaneous
Nothing in this Agreement shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law and which by law cannot be excluded, restricted or modified.
Account means the Mercator Ikuü Platform account you open in order to use the Software in accordance with this Agreement and includes reference to all your account details including your username, password and any other personal identifiers associated with your account.
Agreement means this Mercator Ikuü Platform App Licence and User Agreement.
App means the application which you need to install in order to use the Mercator Ikuü Platform and which is your tool to activate the Mercator Ikuü Platform, remotely interact with your Approved Mercator Ikuü Products and manage your settings for the Mercator Ikuü Platform.
Device means your smart phone, portable device or other device with network communication, to which the Software is downloaded or issued and which is used for the Mercator Ikuü Platform.
updates means updates, upgrades, enhancements, modifications, amendments and other changes.
Software means the App and any other app, software, product, document or service provided by us to you for use of the Mercator Ikuü Platform.
we, us or our means Mercator Pty. Ltd. ACN 005 946 958 (incorporated in Australia).
you or your means any person who access or uses the Mercator Ikuü Platform or Software.
(a) Words importing the singular include the plural and vice versa.
(b) Words importing a gender include every gender.
(c) References to ”include”, “including” and like words are by way of example only and are without limitation.
(d) References to any document (including this Agreement) are references to that document as amended, consolidated, supplemented, novated or replaced from time to time.
(e) Headings are for convenience only and shall be ignored in construing this Agreement.
(f) References to Parties or to a Party shall be a reference to the parties or a party to this Agreement and includes references to their or its respective successors, permitted assigns, executors and administrators.
(g) References to law shall include references to any constitutional provision, treaty, decree, convention, statute, act, regulation, rule, ordinance, subordinate legislation, rule of common law and of equity and judgment and shall include the requirements of any applicable stock exchange.
(h) References to any law are references to that law as amended, consolidated, supplemented or replaced from time to time.
(i) References to any person include references to any individual, company, body corporate, association, partnership, firm, joint venture, trust and governmental agency.
(j) 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.
(k) Each of the obligations of the Parties contained in this Agreement shall be separate and independent and save as expressly provided shall not be limited by reference to any other provision of this Agreement.