Our Agreement with you
These General Terms are important. Please read them carefully and let us know if you have any questions. We’ve done our bestto explain it all without using too much jargon, so it’s clear what we expect from you and what you can expect from us.
When we say ‘MVSI, ‘us’, ‘our’, or ‘we’ in these General Terms, we’re referring to MVSI Pty Ltd and our subsidiary companies. (Affiliates)
When we say “Customer”, ‘you’ or ‘your’ in these General Terms, we’re referring to any organisation that uses the services, applications and websites of MVSI.
1. Definitions and Interpretation
1.1. Definitions
In this document unless the context otherwise requires the following words and expressions shall have the meaning attributed to them as follows:
"Business Day" means any day in which banks are opened and conduct normal trading operations in Sydney other than a Saturday or Sunday.
"Claim/s" includes all claims, actions, suits and demands.
"Commencement “Date" means the date specified in Item 2 of Schedule 1.
"Confidential “Information" includes:
a. materials and any other confidential information concerning each party or its services; and
b. pricing, methods, and processes
c. workshop materials, handouts and any information provided by one party to the other in writing or otherwise.
but excludes Confidential Information that is:
a. in the possession of the Recipient prior to execution of this Agreement without an obligation of confidentiality;
b. public knowledge (except because of a breach of this Agreement);
c. required to be disclosed by law or the rules of a stock exchange on which the securities of the Recipient or an Authorised Person are quoted;
d. independently developed by the Recipient without reference to the Confidential Information;
e. disclosed to the Recipient by a third party, who so far as the Recipient is reasonably aware, is not under a duty of confidentiality in respect of such Confidential Information; or
f. disclosed with the prior written consent of the Discloser.
"Consequential Loss" includes any indirect, incidental, special, economic or consequential loss, cost or damage, loss of business profits, revenue or opportunities, business interruption, loss of business information (including computer data), loss of business, loss of anticipated savings, loss of good will or loss due to delay.
“Customer” means the party defined in Item 1 of Schedule 1 of your agreement and includes its Related Bodies Corporate.
“Customer Information” means the records of the customers clients held within the system, including but not limited to data, notes, applications and verification reports.
"Fee" means the fee described in Item 3 of Schedule 1 of your contract.
"Intellectual Property" includes:
(a) any commercial information, industrial or intellectual property whether in material form or not) or rights of a proprietary nature, including without limitation:
(i) any copyright, invention, patent, design, trademark, service mark, domain name, idea, confidential information, trade secret, knowhow; or
(ii) any rights protected or recognized under any laws anywhere in the world related to the matters in sub clause (i) above; and
(iii) any information contained in Materials.
(b) Confidential Information.
"Loss" includes claims, losses, costs, expenses and damages (including Consequential Loss and legal costs and disbursements on a solicitor and own client basis) sustained or incurred, whether directly or indirectly or consequentially or in any other way.
"Materials" means any document or information whether printed or hard copy or stored in electronic format or by any other means which will be provided by MVSI in the course of delivering the Services.
"Modern Slavery Laws" means the Trafficking Victims Protection Act of 2000 and in any other jurisdiction any statute, ordinance, code or other law including regulations under them and any code of practice, membership rules or standards issued by relevant regulators or industry bodies, whether or not having the force of law, relating to Modern Slavery or similar matters and is applicable in the jurisdiction in which the Customer or MVSI is registered or conducts business or in which activities relevant to this Agreement are to be performed.
“Personal Information” has the meaning given to that term in the applicable Privacy Laws.
“Premium Partner” means a partner (reseller or otherwise) ofthe Customer to whom the Customer wishes to provide access to the System, and who is not a Related Body Corporate.
“Privacy Laws” means all legislation, principles, industry codes and policies, as amended or replaced from time to time, which relate to the collection, use, disclosure, storage or granting of access rights to Personal Information and includes UK GDPR, EU GDPR, The Privacy Act of 1974 and the privacy laws of each other country in which Personal Information is received, collected, held, used or disclosed by a party in connection with the Services, as applicable.
“Product” means collectively the documentation, sales materials, OnBoard software, and Systems containing but not limited to the OnBoard! client portal, and the OnBoard! applicant portal and the MVSI identity portal.
"Proprietary Information" includes Intellectual Property.
"Services" means those services defined in Item 4 of the Schedule or otherwise agreed between MVSI and the Customer in writing from time to time.
"System" shall have the same meaning as “Products”
"Taxes" means unless otherwise specified, fees payable pursuant to any quotation or other communication between MVSI and the Customer are exclusive of consumption and other Taxes however so named (GST, VAT, Sales Tax etc) mandated by a government jurisdiction and the fees payable by the Customer shall be increased by the amount of those Taxes.
"Term" means the period described in Item 5 commencing on the Commencement Date and ending on the Termination Date or the date when this Agreement is terminated.
"Termination Date" means the date described in Item 6 in Schedule 1 of your agreement.
1.2 Interpretation
(a) Words importing the singular shall include the plural and vice versa.
(b) A reference to a person shall include reference to a company and vice versa. A reference to any gender includes a reference to the other genders and each of them.
(c) A reference to a month means a reference to a calendar month.
2. Provision of Purchased Services
MVSI agrees to provide the Services to the Customer during the Term for the Fee, and will;
(a) make the Services available to Customer pursuant to this Agreement, and;
(b) provide the applicable MVSI standard support as described in appendix B of your contract for the Purchased Services to Customer at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Purchased Services available24 hours a day, 7 days a week, except for:
(i) planned downtime (of which MVSI shall give advance electronic notice), and;
(ii) any unavailability caused by circumstances beyond MVSI’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labour problem (other than one involving MVSI employees), Internet service provider failure or delay, Non-MVSI Application, or denial of service attack, and;
(c) provide a prior notice of 10 Business Days before issuing any System update which may in MVSI’s reasonable opinion materially alter the performance or functionality of the System; and
(d) provide the Services in accordance with laws and government regulations applicable to MVSI’s provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services).
3. Payment for Services
The Customer will pay MVSI for the Services in accordance with Item 7 of Schedule 1of your contract which may be varied from time to time by agreement between the parties and if varied, the terms and conditions set out in this Agreement will continue apply.
4. Delivery of Services
MVSI will use its best endeavors to deliver the Services in an expeditious manner however MVSI will have no liability for Consequential Loss or Loss as a consequence of any delay or failure to deliver the Services wholly or partly asa consequence of data or information being provided by third parties to MVSI upon which the Services are wholly or partly dependent.
5. Use of the System(s)
Subject to Customer's timely payment of the Fees and compliance with the terms and conditions of this Agreement, MVSI hereby grants Customer and it’s wholly owned subsidiaries a limited, non-exclusive, non-transferable, non-sub-licensable license during the term of this agreement to use the System for Customer's business purposes.
The Customer warrants to MVSI that, in connection with the provision of the Systems:
(a) It will ensure that all persons using the Service with its authority or by means of an account will comply with the terms of this agreement, and that it will maintain account management to ensure only authorised users have access to the Systems.
(b) It will take all reasonable precautions to ensure the security of access to the Systems and must not, under any circumstances, allow any third party or any person other than an Authorised User to access or use the Systems for any purpose without the prior written consent of MVSI.
(c) It agrees to inform MVSI as soon as reasonably practical if it becomes aware of any unauthorised use of the Systems by any person.
(d) It will not use the Systems in any way that will contravene any legal or regulatory provision including any provision resulting from an international agreement applicable to them.
(e) Customer from time to time may wish to sublicence the System to Customer partners for their use as a white label onboarding system, (Premium Partners), and on application and payment of the fees MVSI shall grant to Customer the right to sublicence the system to the Customer partner under the same terms and conditions herein.
6. No Warranty or Guarantee
The Customer acknowledges that the Services provided by MVSI are wholly or partly dependent upon information provided by third parties to MVSI. As a consequence, MVSI provides no warranty or guarantee of the accuracy of such information unless the information provided is incorrect and does not reflect the actual data held by third parties or contains a degree or error caused due to negligence or administrative error on part of MVSI or its personnel. To the extent permitted by law the Customer waives any right it may otherwise have against MVSI for any information contained within the Services being inaccurate or any Loss or Consequential Loss arising out of such information.
You also acknowledge that parts of the Services or the Product are supplied to youare dependent on websites or services that are out of our control. These include, but are not limited to:
Third Party Websites and services within those websites which are owned and controlled by other entities. Access to these websites and/or services may be blocked, withdrawn, modified and/or otherwise made inaccessible to you without notice either from ourselves or from the owners or controllers of those websites. Examples of third party websites and webservices used within our System includes but is not limited to Government owned corporate registers, regulator websites, and government owned identity verification websites.
7. Pricing and Availability of Services
Due to the nature of the services we provide, and the sourcing of data from third parties such as government agencies globally, prices and the availability of items are subject to change with 60 days written notice to the Customer, provided that any such increase will not be made more than once in any calendar year.
8. Statutory Obligations
8.1. MVSI, in the conduct of its business, is subject to law, regulations and other statutory obligations of the countries we operate in, in respect of information it collates in the course of providing the Services. The Customer acknowledges that the impact of the change in the law, regulations and other statutory obligations may change from time to time and MVSI reserves the right to cease or vary the provision of the Services arising out of directly or indirectly the change in such law, regulations orother statutory obligations. In that event MVSI will notify the Customer within5 business days. If the level of Services provided by MVSI are substantially and materially adversely affected by any such changes, the Customer may terminate this Agreement without notice to MVSI.
8.2. If the Customer terminates this Agreement, the following will occur:
8.2.1. Any annual fees paid by the Customer will be adjusted in proportion to the period of time over which the Services have been provided calculated on a daily basis.
8.2.2. The Customer is liable to pay for all Services provided up to the date of such termination.
8.2.3. MVSI will refund to the Customer any unused portion of Fees determined by the proportion of adjustment referred to above.
9. Termination suspension
9.1. Termination on notice
This agreement may be terminated on one month’s notice be either party.
9.2. Termination on default
9.2.1. Either party may terminate this Agreement upon the material default or breach of this Agreement by the other party:
(a) by providing a prior written notice clearly setting out the details of the breach and if such breach is not capable of remedy within thirty (30) days from the date of the notice; or
(b) upon thirty(30) days prior written notice if the breach can be remedied within thirty (30) days.
9.2.2. Once a party has received a notice of default, the defaulting party must use commercially reasonable efforts to remedy the default or breach within the time period set forth above. Failure to cure the default or breach within the cure period set forth above will result in the non-defaulting party’s right to terminate this Agreement immediately following the cure period without further notice.
9.3. Rights under termination
Termination of this Agreement for any reason will not affect any rights of either party against the other which accrued prior to the time of the termination or the provisions of this Agreement which expressly or by their nature survive termination
10.Consequencesof Termination
10.1. Upon termination, each party must promptly return to the other party all Confidential Information, software, documents, drawings or other materials brought into existence as a consequence of the proposed supply of the Services.
10.2. On or after termination, MVSI may issue a tax invoice for all Fees payable to MVSI and the Customer must pay those amounts within seven (7) days.
10.3. Termination of this Agreement does not limit or prejudice any rights or remedy that other party may have as a result of any breach of this Agreement prior to such termination.
10.4. Customer retains all rights to customers information. On termination, customer shall have 30 days to download the Customer Information from the System. In the event that the customer wishes tocomplete a data transfer electronically, customer and MVSI shall work together to affect same. Professional services fees may apply, at the then published rates.
11. Privacy and use of information
11.1. The parties agree to comply with any statute or regulation relating to the privacy of information enforced in any jurisdiction in which the Services are provided and the Customer will comply with the privacy statement of MVSI displayed on its website from time to time.
11.2. Both Parties will only use the information contained within the Services for the purposes for which it is intended and will keep confidential that information and not disclose same to any party other than to its legal representatives or as otherwise required by law or as necessary to comply with its obligations to its clients.
11.2.1. The Fair Credit Reporting Act (FCRA – 15U.S.C. §1681 et seq) governs the use of credit information provided and Customer agrees to be bound by the terms of permissible purpose and consent provided.
11.3. In respect to information contained within the services where the information is defined as Personal Information Customer agrees to act in accordance with the Privacy Laws, as if it were bound by them even if it may not be.
12.Modern Slavery
12.1. In performing its obligations in connection with this Agreement, MVSI will, and will ensure that each of its personnel and each of its Related Bodies Corporate:
(a) comply with applicable Modern Slavery Laws; and
(b) take reasonable steps to ensure that there is no Modern Slavery in MVSI’s supply chains or in any part of their business or the supply chains of MVSI’s Related Bodies Corporate or in any part of their businesses.
12.2. MVSI will comply (and ensure that its personnel and its Related Bodies Corporate comply) with any reasonable requests made by the Customer for assistance, for the provision of information or documents as required by the Customer to enable the Customer’s own compliance under or related to Modern Slavery Laws.
12.3. MVSI will immediately give written notice to the Customer if it becomes aware of a suspected or actual breach by it or its personnel of any Modern Slavery Law.
12.4. MVSI must complete and provide to the Customer the Compliance Statement on or within 7 (seven) days prior to the Commencement Date and on each anniversary of the Commencement Date during the Term.
12.5. MVSI represents and warrants that neither it nor it personnel or its Related Bodies Corporate:
(a) have been convicted of any offence involving Modern Slavery; and
(b) to the best of its knowledge, having made reasonable enquiries, have been or are the subject of any investigation, inquiry or enforcement proceedings by any government agency regarding any offence or alleged offence of, or in connection with Modern Slavery.
12.6. MVSI agrees to implement due diligence procedures for its own suppliers, subcontractors and other participants(together with other processes, procedures, investigations and compliance systems as deemed necessary) to ensure that there is no Modern Slavery in MVSI’s supply chains or in any part of their business.
13. Proprietary rights and Intellectual Property
13.1. The Customer acknowledges that all proprietary information and all right, title and interest therein are the sole property of MVSI and the Customer shall gain no right, title or interest in the proprietary information whatsoever.
13.2. The Customer must not and must not permit any person reasonably within its control nor procure any person to modify, copy or reproduce Proprietary Knowhow, Software Code, Software Processes, Materials and any other Confidential Information.
13.3. not disclose all or any portion of the specifications, techniques and information relating to the Services or the Product (including the use, functionality or performance of the Product) to any third parties, other than as permitted by this Contract.
13.4. The Customer will not disclose and will treat as confidential all negotiations, quoted charges and prices for the supply of Services to the Customer to the extent that same will not be disclosed to any party other than employees and legal and accounting advisors of and to the Customer.
13.5. MVSI may suspend the performance of its obligations under this Agreement and vary the relevant Quotation, if any third party alleges that any use, reproduction, modification or adaptation of information used in providing the Services infringes the rights of the third party.
14.Limitation of liability
14.1. To the maximum extent permitted by law, MVSI's entire liability for breach of this Agreement (including any term, condition or warranty implied by law and that cannot be lawfully excluded, other than a corresponding provision of any State Act is limited to supplying of the Services again or the payment of the cost of having the Services supplied again.
14.2. Without limiting clause 13.1, neither party is liable to the other party for Consequential Loss.
14.3. The Customer acknowledges that MVSI in providing the Services is not providing advice or passing judgment on an applicant’s suitability to enter into a commercial agreement by the Customer. Opinions expressed by MVSI will only relate to the likely validity of the information supplied by the candidate or a third party.
14.4. MVSI does not warrant that the provision of the Services will achieve an outcome or result suitable to or anticipated by the Customer and does not accept liability for any decision made by the Customer based wholly or partly upon the Services MVSI provides.
15.Forcemajeure
Each obligation of a party, other than the obligation to pay money, will be suspended during the time and to the extent that the party is prevented from or delayed in complying with that obligation by force majeure which amongst other matters but not limited to the event of war, civil war, export restrictions or trade restrictions as a result of political conditions, strikes, lockouts, operation breakdown, operating restrictions and/or similar events, making it impossible or unreasonable to comply with obligations under the contract. The parties are obliged to exchange the necessary information, without delay, to an appropriate and reasonable extent and adjust their obligations to the changed circumstances in good faith.
16.Assignment
A party must not assign or novate this Agreement or otherwise deal with the benefit of it or right under it, or purport to do so, without the prior written consent of each of the other party, such consent not to be unreasonably withheld.
17. Dispute Resolution
17.1. If a dispute arises out of or relates to this Agreement a party may not commence any court proceedings relating to the dispute unless he has complied with this clause except where the party seek surgent interlocutory relief.
17.2. A party claiming that a dispute ("the Dispute") has arisen under or in relation to this Agreement must give written notice to the other party specifying the nature of the dispute.
17.3. On receipt of that notice by the other party, the parties must endeavour to resolve the dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation or determination or similar techniques agreed by them.
18. Outsourcing-related terms
MVSI acknowledges that it is deemed to be a person to which the Customer outsources certain functions; for this purpose, MVSI shall:
18.1. promptly give notice to the Customer, if the directions given by Customer and (or) other circumstances may negatively affect or negatively affect the Services provided;
18.2. comply with the directions given by the Customer related to the order of provision of the Services, quality of the Services and (or) continuity of the Services after the end of the Agreement, including, for example, directions related to compliance with applicable law and (or) internal rules, particularly in respect of the KYC and AML obligations, of the Customer as they relate to the clients of the Customer;
18.3. promptly but not later than within 7 calendar days submit or provide access to all information related to the Services and(or) to the performance of this Agreement, to the extent this information is necessary for control, risk management or compliance purposes, to the Customer, to the persons indicated by the Customer (for instance, persons fulfilling the functions of internal and external audit) and (or), upon lawful request, to supervisory institution exercising supervision over the Customer;
18.4. inform in advance the Customer about all and any expected / plans, reorganizations that may negatively affect ability of MVSI to fulfil its obligations under this Agreement;
18.5. accept and observe instructions of the Customer relating to provision of the Services, including if the fulfilment of such instructions is necessary to guarantee the provision of the Services according to standards deriving from the law or Customer’s internal rules, or the quality or continuity of Customer’s activities;
18.6. comply with lawful requests of any supervisory institution exercising supervision over the Customer if such requests are related to exercise of its control over the Customer, including, for example, requests to submit or provide access to all information, data, databases and documents held by MVSI, requests to provide access to the premises of MVSI to conduct on-spot supervision, to provide access to the results of external audits performed with respect to MVSI and the right to give other directions and instructions necessary for exercising supervisory functions. Compliance with lawful requests of a supervisory institution shall be ensured to the extent as if the outsourced functions would be provided and compliance with the lawful requests of supervisory institution would be ensured by the Company itself;
18.7. if MVSI concludes and / or intends to conclude agreement with third party(-ies) under which such third party(-ies)would provide certain services and / or perform relevant functions that are assigned to MVS under this agreement, MVSI shall ensure the right of the Customer to receive all information from the third party(-ies) that is related to the performance of relevant functions assigned to the third party(-ies).
19. Jurisdiction
19.1. This Agreement is governed by and construed under the laws of the MVSI entity named in your agreement.
19.2. Each party by execution of this Agreement irrevocably, generally and unconditionally submits to the non-exclusive jurisdiction of the Courts in relation to both itself and its property.
19.3. Any provision of this Agreement which is invalid in any jurisdiction is invalid in that jurisdiction to that extent, without invalidating or effecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.
20. Entire Agreement
These terms and conditions, Schedule 1 and the Appendix A to your agreement contain the entire understanding between the parties concerning the subject matter of this Agreement and supersedes all prior communications between the parties.
