In order to access and use this website, which is owned and operated by Intervet Australia Pty Ltd (known as MSD Animal Health) at mvol.com.au (the Website), you must first agree to the MyVetOnline® Program Agreement terms and conditions below (the Terms and Conditions).
Unless otherwise specified, the Terms and Conditions do not apply to any other websites operated by MSD Animal Health.
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless the context requires otherwise, the following terms have the following meanings:
(a) "Agreement" means the terms and conditions set out in this document and includes all Schedules to this Agreement.
(b) "Authorised User" means an individual authorised by Customer to access and use the Customer's Login Information for the purposes of accessing or using the Website and/or any Products or Services on Customer’s behalf, as set forth in clause 3.1.
(c) "Claims and Losses" means any and all first party and third party claims, counterclaims, complaints, disputes, demands, causes of action, liabilities, losses, obligations, damages (including without limitation personal and bodily injuries and property damage), legal fees, costs, expenses, and disbursements, including reasonable attorneys’ fees and court costs, of any nature or kind, whatsoever and howsoever arising, whether known or unknown, whether in law or in equity or pursuant to contract or statute, and whether in any court of law or equity or before any arbitrator or other body, board or tribunal.
(d) "Content" means the contents of this Website, including but not limited to all information (in text, graphical, video and audio forms), images, icons, software, designs, applications, on-line tools, calculators, models, data, and other elements made available on or through the Website and/or Products and Services and any materials associated with any of the above.
(e) "Customer" means a person who accesses and uses the Website.
(f) "Customer Data" means electronic mail, messages, e-mail addresses and other data and information confidential to the Customer including but not limited to client lists and client details (other than data and information created by or on behalf of MSD Animal Health) uploaded, downloaded, communicated, obtained, received or transmitted by Customer through or using the Website and/or any Products or Services.
(g) "Customer's Login Information" means Customer's username and password and any other security information which Customer requires to access and use the Website and/or any Products or Services.
(h) "Customer Representative" has the meaning specified in clause 3.3.
(i) "Customer Trade Marks" means Customer's registered and unregistered trade marks, business names and trade names submitted by Customer to MSD Animal Health for display on the Website.
(j) "Customer Website" means a customised webpage or group of webpages generated by Customer using the Website Builder Service provided on the Website and which is/are hosted on the Website.
(k) "Eligibility Conditions" has the meaning in clause 2.1.
(l) "IP Rights" means:
(i) all rights conferred by statute, common law or in equity and subsisting anywhere in the world in relation to:
(A) registered and unregistered copyright;
(B) inventions (including patents, innovation patents and utility models);
(C) confidential information, trade secrets, technical data and know-how;
(D) registered and unregistered designs;
(E) registered and unregistered trade marks; and
(F) circuit layout designs, topography rights and rights in databases, whether or not any of these is registered, registrable or patentable;
(ii) any other rights resulting from intellectual activity in the industrial, commercial, scientific, literary or artistic fields which subsist or may hereafter subsist;
(iii) any right to grant the use of any of the above;
(iv) any applications and the right to apply for registration of any of the above
but excluding moral rights, and similar personal rights, which by law are non-assignable and excluding also non-assignable rights of performers under Part XIA of the Copyright Act 1968 (Cth) and similar non-assignable rights of performers under foreign laws, and excluding any non-transferable licence or other right to use any of the above granted by a third party.
(m) "MSD Animal Health" means MSD Animal Health and its associated and affiliated companies and service providers and all of their respective past, present and future directors, officers, employees, agents, representatives, service providers, suppliers, sub-contractors, licensors, successors, permitted assigns, and all other related, associated, or connected persons, jointly and severally.
(n) "Parties" means Customer and Intervet Australia Pty Ltd, each of which is referred to individually as a "Party".
(o) "Proceedings" means third party actions, suits, proceedings, and hearings of any nature and kind in any court of law or equity or before any arbitrator or other body, board or tribunal.
(p) "Products and Services" means the products and services set forth on the Registration Form (varying according to program level) which are supplied by MSD Animal Health to Customer pursuant to this Agreement but excludes any Veterinary Products.
(q) "Registration Form" means the registration form for veterinary clinics accessible from the MyVetOnline® program online registration page of the Website at mvol.com.au.
(r) "Technical Support" means such remote (telephone or on-line) troubleshooting, advice and assistance as MSD Animal Health may in its discretion make available generally in resolving technical problems with the Website. Technical Support does not include support and assistance regarding Customer’s computer equipment or related services (including Internet access) or on-site support at Customer’s facilities, and is subject to the limitation that not all technical problems can or will be corrected or resolved or within any specific time period.
(s) "Term" has the meaning specified in clause 8.1.
(t) "Usage Guidelines" has the meaning specified in clause 4.2(c).
(u) "Veterinary Products" means such products for use in the course of or otherwise associated with the caring and treatment of animals, including but not limited to vaccines and pharmaceuticals.
(v) "VetPlan Agreement" means the Agreement for Companion Animals Participation in VetPlan Program between Customer and MSD Animal Health.
(w) "Webmail Services" means the browser-based e-mail service offered as part of the Products and Services.
(x) "Website" means the website found at the URL mvol.com.au.
(y) "Website Builder Service" means the products and services offered by MSD Animal Health to enable Customer to generate the Customer's Website.
2. PRODUCTS AND SERVICES
2.1 Eligibility for Products and Services
(a) MSD Animal Health may, at its sole discretion, impose or change any conditions on Customer's eligibility to access or use any or all of the Products and Services, from time to time ("Eligibility Conditions").
(b) It is an Eligibility Condition that Customer may only access or use the Products and Services for so long as the VetPlan Agreement remains in force.
2.2 Changes/Termination of Website
MSD Animal Health may in its sole discretion change, discontinue, suspend, restrict, amend or terminate all or any part of the Website and/or Products and Services immediately and without any notice or liability to Customer or any other person.
MSD Animal Health endeavours to provide accurate information on and through the Website and/or Products and Services, but errors may occur and information may become out of date. MSD Animal Health does not guarantee the accuracy, completeness or timeliness of the Website and/or Products and Services.
2.4 Levels of Products and Services
(a) MSD Animal Health provides three program levels of Products and Services:
(ii) Mail Enabled; and
(iii) Fully Integrated.
(b) Descriptions of the Products and Services included in the different program levels of Products and Services are contained in the Registration Form.
(c) MSD Animal Health agrees to provide Customer all of the Products and Services included in the program level of Products and Services which Customer has chosen on the Registration Form, other than those Products and Services which the Customer is not eligible for as a result of Customer's failure to meet the Eligibility Conditions in accordance with clause 2.1 above.
(d) Customer may change its chosen program level of Products and Services at any time during the Term upon providing 30 days of prior written notice to MSD Animal Health.
2.5 Australian Residents Only
Use of the Website and/or Products and Services is restricted to residents who are currently located in Australia. MSD Animal Health does not warrant that access or use of the Website and/or Products and services complies with the laws of any jurisdiction outside of Australia.
2.6 Client Materials
(a) MSD Animal Health may provide Customer, as part of all levels of Products and Services , at its sole discretion, copies of materials in electronic and paper format which may be distributed or other wise made available by Customer to its clients and potential clients including information sheets, forms, newsletters and reminder cards ("Client Materials"), solely in connection with and for the purposes of the supply or prospective supply of the Products and Services.
(b) MSD Animal Health endeavours to ensure but cannot warrant that MSD Animal Health's provision of the Client Materials for use by Customer in accordance with the Agreement will not infringe any third party rights.
(c) MSD Animal Health grants Customer a non-exclusive, royalty-free, non-transferrable, non-assignable, non-sublicensable, revocable licence to use the Client Materials:
(i) in Australia, during the Term; and
(ii) in accordance with any instructions communicated by MSD Animal Health to Customer from time to time regarding the use of the Client Materials.
(d) Customer will not change or modify the Client Materials except for such changes and modifications (such as adding Customer’s clinic stamp or adding case-specific comments) as are expressly permitted in accordance with any instructions communicated by MSD Animal Health to Customer.
(e) MSD Animal Health may in its discretion change, modify, or replace all of the Client Materials at any time, and upon being notified by MSD Animal Health, Customer will promptly destroy all previous Client Materials in Customer’s possession, power or control and comply with all such changes at its sole cost.
(f) Upon reasonable prior written notice, MSD Animal Health, or its duly appointed representative, shall have the right of access to any premises or facilities of the Customer during normal business hours to conduct any reasonable inspection and/or review of the Client Materials to determine whether Customer is in compliance with this Agreement including any Usage Guidelines.
2.7 Technical Support
MSD Animal Health will use commercially reasonable efforts to make available and provide Technical Support to Customer, as part of all levels of Products and Services. Customer will make initial requests for Technical Support to the MSD Animal Health sales representative responsible for Customer’s account or by such other methods as MSD Animal Health may advise from time to time. MSD Animal Health will provide Technical Support only to Customer’s Customer Representative.
2.8 Products and Services
Subject to the provisions of this Agreement, MSD Animal Health will make available to the Customer the Products and Services. MSD Animal Health may in its discretion make available to the Customer additional products and additional services subject to this Agreement and such additional terms as the Parties may agree in writing.
3. ADMINISTRATION AND SECURITY
3.1 Authorised Users
(a) Access to and use of certain of the Products and Services requires use of Customer’s Login Information. Customer will only disclose Customer’s Login Information to Authorised Users.
(b) With Customer's express consent, an Authorised User may appoint other Authorised Users of Customer who may access and use the Customer's Login Information.
(c) Customer will make every effort to limit the number of Authorised Users. MSD Animal Health is not under any obligation to verify the actual identity or authority of any person using Customer’s Login Information. MSD Animal Health may, acting reasonably, immediately restrict, suspend or terminate (in whole or in part) the permission granted to any or all Authorised Users to access and use of the Website and/or the Products and Services.
(d) Customer is fully and solely responsible and liable for, and bears all risks relating to, all acts or omissions by Authorised Users and all use and misuse of Customer’s Login Information. Customer warrants that it will ensure all Authorised Users comply with this Agreement and all laws.
(e) Customer authorises MSD Animal Health to rely and act upon all instructions and information provided by Authorised Users ("Authorised Instructions") as information and instructions properly authorised by Customer, without inquiry regarding the authenticity or accuracy of the Authorised Instructions or the identity or authority of the persons giving them.
(f) Customer is solely responsible and liable for:
(i) ensuring the truth, accuracy and completeness of all Authorised Instructions provided to MSD Animal Health;
(ii) ensuring that Authorised Instructions achieve the intended purpose; and
(iii) any and all loss, damage, delay and costs that MSD Animal Health or any other person may incur as a result of any Authorised Instruction.
(g) Customer will restrict access to and use of the Products and Services to its Authorised Users. Customer may not assign, sublicense, or re-sell its access to or use of the Products and Services (other than the Veterinary Products) or any portion thereof.
Customer is solely responsible for:
(a) obtaining, provisioning, configuring, maintaining, paying for and protecting against loss and damage all equipment (including computer hardware, software and telephone lines) and services (including telephone services and Internet access) necessary for Customer to access and use the Website and/or the Products and Services;
(b) scanning for and preventing the receipt and transmission of viruses, trojan horses, worms or other destructive or disruptive components;
(c) maintaining a complete and current backup of all data and information contained on Customer’s computer system prior to accessing or using the Website and/or the Products and Services; and
(d) maintaining a complete and current backup of all Customer Data.
3.3 Customer Representative
Customer will designate an individual (the "Customer Representative") on the Registration Form as its primary contact regarding performance of this Agreement and is authorised by Customer to request and receive Technical Support. Customer may change the Customer Representative upon notice to MSD Animal Health. Customer will ensure that the Customer Representative has suitable qualifications and expertise regarding computer software and electronic mail systems.
3.4 Google Places Listing
Where Customer does not have an existing Google Places Listing, Customer authorises MSD Animal Health to claim Google Places Listing on Customer's behalf in accordance with the information Customer provides on the Registration Form.
MSD Animal Health makes no representation, warranty or condition and the Customer is solely responsible for ensuring that:
(a) the Website, the Customer Website and the Products and Services will be compatible with Customer’s computers and related equipment and software;
(b) the Website, the Customer Website and the Products and Services will be available or will function without interruption or be free of errors or that any errors will be corrected;
(c) the Website, the Customer Website and the Products and Services will meet customer’s Customer’s requirements;
(d) the information in or derived from the Website, the Customer Website and the Products and Services will be accurate, complete, sequential or timely;
(e) certain or any results may be obtained through the access to or use of the Website, the Customer Website and the Products and Services ;
(f) access to and use of the Website, the Customer Website and the Products and Services, will be free of viruses, Trojan horses, worms or other destructive or disruptive components; or
(g) access to and use of Website, the Customer Website and the Products and Services will not infringe any rights of any person,
and MSD Animal Health disclaims any and all liability regarding such matters to the fullest extent permitted by law.
(a) Customer is solely responsible and liable for setting-up, maintaining and regularly reviewing security arrangements concerning Customer’s access to and use of the Website and/or the Products and Services.
(b) Customer warrants that it will ensure that Authorised Users keep the Customer’s Login Information secure and secret at all times and take reasonable steps to prevent any other person from using the Customer’s Login Information.
(c) Customer warrants that it will ensure that neither Customer nor any Authorised Users do anything that will compromise the security of the Website and/or the Products and Services Customer will immediately notify MSD Animal Health if Customer discovers or suspects any unauthorised use of the Website and/or the Products and Services, or if Customer knows or suspects Customer’s Login Information has been lost or stolen or becomes known to any unauthorised person.
(d) If MSD Animal Health, in its absolute discretion, considers a password to be insecure or to have been used inappropriately, MSD Animal Health may immediately cancel the password without notice.
(e) Customer will, and will cause its Authorised Users to, comply with reasonable requests from MSD Animal Health to assist in identifying breaches of security or other wrongful conduct.
(f) All Customer's Login Information remain the property of MSD Animal Health, and may be cancelled or suspended at any time by MSD Animal Health acting reasonably. The use of Customer's Login Information does not restrict access by MSD Animal Health to information which can only be accessed or used by using Customer's Login Information.
MSD Animal Health may in its absolute discretion (but with no obligation to):
(a) monitor any use or attempted access or use of the Website and/or the Products and Services by Customer without any further notice or liability to Customer or any other person; and
(b) adapt, modify or remove any Content (including removing or disabling any links to websites other than the Website) as MSD Animal Health reasonably sees fit.
4. OWNERSHIP OF RIGHTS
4.1 Ownership of Website and Content
(a) Subject to the provisions of this Agreement, all right, title, interest and ownership, including IP rights in and to the Website and the Content remain with the owner of the Website and the Content.
(b) Customer warrants that it will only use the Website and Content in the manner expressly set forth in this Agreement or expressly permitted by the Website.
(c) Customer warrants that it will not copy, reproduce, republish, upload, post, transmit, modify, index, frame, deep-link, catalogue, mirror, distribute, sell or resell in any way the Website without the express prior written consent of MSD Animal Health.
(d) Customer warrants that it will not do any act in respect of any part or all of the Content of which the right to do so is exclusive to the owner of the Content, including without limitation the right to reproduce, communicate to the public, publish or distribute the Content, without the express prior written consent of the owner of the Content.
(e) Customer acknowledges that Customer's access to and use of the Website and Content does not transfer to Customer any ownership or other rights in the Website or the Content.
(f) To the extent Customer has any moral rights in any Content, Customer unconditionally and irrevocably consents, to the fullest extent permitted by law, to any infringement of its moral rights by MSD Animal Health (or its permitted substitutes or assigns) and acknowledges that its consent has been genuinely given.
4.2 Ownership of Trade Marks and Names
(a) MYVETONLINE®, mvol.com.au, INTERVET®, SCHERING-PLOUGH®, MSD®, Merck®, MERCK SHARP & DOHME®, MSD Animal Health and other names and logos including product and company names and logos appearing on Products or displayed in connection with Services, including on the Website and on Client Materials, whether registered or unregistered trade-marks, service marks, domain names and trade names (the "MyVetOnline Marks") are trade-marks, service marks, domain names and trade names owned by MSD Animal Health or its licensors.
(b) MyVetOnline Marks appear on some or all Products and are displayed in connection with some or all Services, including Client Materials, the Customer Website and the domain name used for the Customer Website. MSD Animal Health grants Customer a limited, restricted, non-exclusive, royalty-free, non-transferrable, non-assignable, non-sublicensable, revocable license during the Term to use the MyVetOnline Marks only in Australia and only in the manner in which, and on the Products and in connection with the Services with which, the MyVetOnline Marks are provided by MSD Animal Health for the purposes of this Agreement.
(c) Customer warrants that it will not make any use of the MyVetOnline Marks except as expressly provided in this Agreement or in a manner consistent with reasonable guidelines and policies communicated in writing by MSD Animal Health to Customer from time to time (the "Usage Guidelines").
(d) Customer acknowledges the validity of the MyVetOnline Marks and MSD Animal Health’s ownership of the MyVetOnline Marks and the goodwill pertaining to the MyVetOnlinet Marks.
(e) Customer agrees that the benefit and goodwill associated with use of the MyVetOnline Marks by Customer will enure entirely to MSD Animal Health. Customer absolutely and irrevocably assigns to MSD Animal Health all right, title, and interest Customer may now have or may hereafter acquire in, to or associated with the MyVetOnline Marks and all related goodwill, other than Customer’s limited and restricted right to use the MyVetOnline Marks pursuant to this Agreement.
(f) Customer will not itself and will not assist, permit, or encourage any other person to commit any act or omissions that might impair, jeopardize, violate or infringe the MyVetOnline Marks or MSD Animal Health’s interest in, to or associated with the MyVetOnline Marks, including but not limited to:
(i) challenging the validity of the MyVetOnline Marks or MSD Animal Health’s interest in, to or associated with the MyVetOnline Marks; or
(ii) claiming, using, applying to register or registering any trade mark, service mark, trade name, copyright, design, telephone number or Internet domain name that is identical or confusingly similar to the MyVetOnline Marks, or that is derived from or based on the MyVetOnline Marks, or which incorporates the MyVetOnline Marks or any portion of them.
(g) Customer shall mark all uses of the MyVetOnline Marks with the TM or ® symbol as instructed by MSD Animal Health. When using, advertising or displaying the MyVetOnline Marks, Customer shall not alter or deface the MyVetOnline Marks in any manner including by way of adding or deleting any written or figurative element to the MyVetOnline Marks.
(h) MSD Animal Health may in its discretion change, modify or replace any or all of the MyVetOnline Marks at any time, and Customer will promptly comply with any such changes at its sole cost. Customer will cease using the MyVetOnline Marks immediately upon expiration or termination of this Agreement, or at any time sooner upon written request by MSD Animal Health.
(i) Customer grants to MSD Animal Health, a world-wide, non-exclusive, royalty free, unrestricted and fully sublicensable right to use, reproduce, publish, translate, distribute and display the Customer Trade Marks on the Website.
(j) At MSD Animal Health's request, Customer will execute and deliver to MSD Animal Health such instruments and take such actions as may be required to carry out the grant of licence referred to in clause 4.2(i) above.
4.3 Ownership of Customer Website
(a) Subject to clause 4.3(e), Customer hereby assigns to MSD Animal Health all its right, title, interest and ownership including IP Rights in, to and associated with:
(i) the Website, including the Customer Website; and
(ii) any Content, to the extent Customer has created and/or becomes an owner of any Content in connection with or arising out of Customer's access or use of the Website and/or Products or Services, including without limitation any ideas, suggestions, comments, questions and any other information or data and the Customer expressly acknowledges such Content is not confidential.
(b) Clause 4.3(a) does not apply to any Customer Data, Customer Trade Marks or any website owned or operated by Customer that is not a Customer Website.
(c) Customer agrees that its access and use of the Website including its generation of the Customer Website does not transfer to Customer any ownership or other rights in the Customer Website, except for the limited right to access and use the Customer Website during the Term and in accordance with this Agreement.
(d) The Customer Website may not be copied, imitated, reproduced, republished, uploaded, posted, transmitted, modified, indexed, catalogued, mirrored framed, deep-linked, or distributed in any way, in whole or in part, without the express prior written consent of MSD Animal Health.
(e) Where Customer chooses to operate a website under a domain name other than one which ends in '.mvol.com.au', Customer will be solely responsible for all liabilities and costs (including without limitation registration, maintenance or hosting costs) connected with the domain name and MSD Animal Health agrees that it will have no right, title, interest or ownership (other than as a result of the operation of law) in that same domain name.
4.4 Ownership of Customer Data
(a) MSD Animal Health agrees that no right, title, interest and ownership including IP rights in, to and associated with Customer Data will be transferred to MSD Animal Health as a result of Customer's entry into this Agreement and access and use of the Website and/or Products and Services.
(b) However, Customer agrees that MSD Animal Health may access and use Customer Data during the Term for the purpose of providing the Products and Services.
(c) Upon termination, MSD Animal Health will use reasonable endeavours to allow Customer a reasonable period of time to migrate all Customer Data from the Website, at Customer's own cost and risk. Thereafter, MSD Animal Health will provide notice to Customer indicating that MSD Animal Health will delete all Customer Data and Customer acknowledges MSD Animal Health will then be entitled to delete all Customer Data.
4.5 Ownership of Software
As between the Parties, MSD Animal Health holds and will retain all right, title, interest and ownership including IP rights throughout the universe in, to and associated all software and technology used to provide the Products and Services and related documents and information.
4.6 Reservation of Rights
All rights not expressly granted under this Agreement are reserved to the Parties.
5. CUSTOMER'S WARRANTIES AND INDEMNITIES
5.1 Acceptable Uses
(a) Customer warrants that it will ensure that all use of the Website and Products and Services by Customer and Authorised Users complies with all applicable laws and this Agreement, and does not infringe the rights, including the intellectual property rights and privacy rights, of other persons.
(b) Customer warrants that it will not:
(i) engage in any act that constitutes or encourages a violation of any applicable law or regulation, including regulations in respect of veterinarians (or any applicable code of conduct);
(ii) make or post any statement that defames, impersonates or invades the privacy of any person;
(iii) commit any act that infringes the rights of any person, including the intellectual property or contractual rights of others;
(iv) commit any act connected with the transmission of "junk mail", "spam" or the unsolicited mass distribution of e-mail of any nature, or with any unethical marketing practices;
(v) provide links from the Website to websites other than the Website which are unlawful, immoral, potentially prejudicial to the reputation, goodwill, credibility or trust of MSD Animal Health, or otherwise notified by MSD Animal Health from time to time as being inappropriate;
(vi) take any action that imposes an unreasonable or disproportionately large load on the infrastructure connected with the Website or otherwise interfere with, damage, manipulate, disrupt, disable, modify or impair any device, software system or network connected to or used in relation to the Website and/or the Products and Services, or assist any other person to do any of these things; or
(vii) harm or illegitimately interfere with the access or use of the Website and/or the Products and Services by MSD Animal Health or any other person.;
5.2 Information and Communications
(a) Customer represents and warrants that all information Customer and Authorised Users provide to MSD Animal Health is true, accurate, current and complete and MSD Animal Health may rely on this information.
(b) Customer authorises MSD Animal Health to accept communications it receives from Customer and Authorised Users by means of the Website or email as if those communications had been issued directly by Customer and for MSD Animal Health to respond to those communications by means of the Website, email or other communications.
(c) Communications sent to MSD Animal Health by means of the Website or email are not effective unless and until accepted by an authorised MSD Animal Health representative.
5.3 Content and Compliance with Laws
Customer is solely responsible and liable for the content of all Customer Data and other communications sent or received by Customer and Authorised Users using the Products and Services.
5.4 Customer Website
The Customer Website may be used only for lawful purposes in accordance with this Agreement. MSD Animal Health may, at its sole discretion, establish usage and server storage capacity limits applicable to Customer’s use of the Products and Services, including the Webmail Services.
5.5 No Modification or Removal by Customer
Customer warrants that it will not modify any of the content of the Website or remove or alter any visible or non-visible identification, marks, notices or disclaimers placed on the Website or Client Material by MSD Animal Health without MSD Animal Health's express prior written consent.
5.6 Authority and Capacity
Customer warrants that it has full power, authority and capacity to enter into and perform Customer's obligations under this contract and to carry out the transactions contemplated by this contract.
(a) Customer will indemnify, defend and hold harmless MSD Animal Health from and against any and all Claims and Losses and Proceedings directly or indirectly arising from, connected with or relating to any of:
(i) use of the Products and Services by Customer, Authorised Users, or any other person for whom Customer is under this Agreement or in law responsible;
(ii) negligence, misconduct, breach or violation of this Agreement by Customer, Authorised Users, or any other person for whom Customer is under this agreement or in law responsible, including without limitation the breach by Customer of any Customer's warranties; and
(iii) use by third parties or Customer of any Content created or posted by Customer, the Customer Website or Customer Data.
(b) Customer will assist and co-operate with MSD Animal Health in the defence and settlement of all such Claims and Losses and Proceedings.
6. LIMITATION OF MSD ANIMAL HEALTH'S LIABILITY
6.1 General Disclaimer
(a) MSD Animal Health does not accept any liability for use of the Products and Services. Use of the Products and Services is at Customer’s own risk.
(b) The Products and Services are provided on an "as is" and "as available" basis and with all faults, and without any representations, warranties, conditions or guarantees of any nature or kind whatsoever, whether express, implied or statutory, or arising from custom or trade usage or by any course of dealing or course of performance, including any representations, warranties, conditions or guarantees of or relating to accuracy, accessibility, availability, capacity, completeness, delays, durability, errors, fitness for a particular purpose, lack of negligence, viruses or other harmful component, interrupted service, merchantability, non-infringement, performance, quality, results, security, service, timeliness, title, uninterrupted service, viruses or workmanlike effort, all of which are disclaimed by MSD Animal Health to the fullest extent permitted by law.
(c) Customer will remain solely and exclusively responsible for Customer’s access or use of the Website and/or the Products and Services and the control, security and confidentiality of Customer Data. While MSD Animal Health takes all reasonable precautions to protect Customer Data, Customer acknowledges that the Internet is not a secure medium, may be inherently unreliable and subject to interruption or disruption, and may be subject to inadvertent or deliberate breaches of security and accordingly MSD Animal Health cannot guarantee the security of any information that is being transmitted through the Website.
6.2 No Responsibility for Customer Data
(a) Customer is solely responsible for, and bears all risks and liabilities associated with, all Customer Data. MSD Animal Health does not exercise any control whatsoever over Customer Data and has no obligation to monitor, screen, block, filter, police or edit Customer Data for compliance with applicable laws or acceptable use policies.
(b) MSD Animal Health is under no obligation to verify the identity of users of the Products and Services. MSD Animal Health is not responsible or liable for unauthorised access to or alteration, theft or destruction of Customer Data through accident, fraudulent means or devices, or any other method, regardless of whether such damage occurs as a result of MSD Animal Health’s negligence.
6.3 No Responsibility for Compliance With Laws And Regulations
Customer is solely responsible and liable for ensuring that its use of the products and services complies with applicable laws and regulations.
6.4 Sole Remedy
If Customer is dissatisfied with any Products and Services, or MSD Animal Health’s policies, guidelines or practices, Customer’s sole and exclusive remedy is to terminate this Agreement pursuant to clause 8 and cease using the Products and Services.
6.5 Liability Exclusion
Notwithstanding any other provision of this Agreement and to the maximum extent permitted under law, under no circumstances will MSD Animal Health be liable to Customer or any other person for any indirect, incidental, consequential, special, punitive or exemplary loss or damage, including loss or unauthorised use of data (including Customer Data and personal information), or economic loss including loss of business or profit (including anticipated) and any loss by reason of delay, defective or faulty materials or workmanship, negligence or any act or matter or thing done, permitted or omitted by MSD Animal Health., arising from, connected with, or relating to the Website and/or Products and Services (including unavailability of products and services), this Agreement, the termination of this Agreement or otherwise, whether in contract, tort or strict liability even if MSD Animal Health has been advised of the possibility of such potential loss or damage being incurred.
6.6 Liability Limitation and Release
(a) In no event will MSD Animal Health’s aggregate liability under this Agreement exceed $50.
(b) Customer acknowledges that Products and Services available through the Website are subject to change at any time without notice. Listed Products or Services may not be available immediately or at all.
(c) Customer acknowledges that neither MSD Animal Health nor any person purporting to act on its behalf has made any representation or given any promise or undertaking which is not expressly set out in writing or incorporated by statute, whether as to the fitness of the goods for any particular purpose or any other matter. Customer further acknowledges that Customer alone is responsible for determining the fitness of the Products for the purpose for which the Customer intends to use them.
(d) MSD Animal Health may provide links to other websites from the Website.
(i) Customer acknowledges these websites are managed and operated under the responsibility of their respective corporations or individuals. They are not under the control of MSD Animal Health and MSD Animal Health cannot and does not assume any responsibility for the content or operation of those websites.
(ii) By providing such links, MSD Animal Health does not indicate that it encourages or endorses the use of those websites or any products or services provided through those websites or is otherwise associated with the managers, operators or owners of those websites.
(a) Customer agrees that MSD Animal Health may collect personal information about Customer, its Authorised Users or individuals who are or are employed by officers of Customer, in order to enable Customer to access or use the Website and/or the Products and Services and for related purposes, including invoicing Customer and also to provide updates about MSD Animal Health's Products and Services, including by electronic means.
(c) Customer authorises MSD Animal Health to disclose to other persons aggregated, non-identifiable information regarding the use of the Website and/or the Products and Services by Customer.
(d) Customer expressly consents to MSD Animal Health to use collected personal information to:
inform Customer about MSD Animal Health activities, products and services;
send Customer information, news or updates which Customer may be interested in;
seek Customer's views on MSD Animal Health products and services; and
improve MSD Animal Health products and services.
8. TERM, TERMINATION AND SUSPENSION
(a) This Agreement will be effective as of the date of this Agreement until the end of the current year (the "Initial Term") and thereafter automatically renewed for additional one (1) year periods (each a "Renewal Term"), unless terminated earlier pursuant to this Agreement.
(b) The Initial Term and all Renewal Terms are referred to as the "Term".
(c) MSD Animal Health is not obligated to agree to any Renewal Term, and MSD Animal Health may require, as a condition of any Renewal Term, Customer to agree to additional Eligibility Conditions.
8.2 Services Suspension
MSD Animal Health may in its absolute discretion immediately suspend providing the Products and Services to Customer without any prior notice to Customer or any other person if Customer or any Authorised User violates this Agreement.
8.3 Termination for Cause by Either Party
Either Party may terminate this Agreement effective immediately upon delivery of notice of termination to the other Party if the other Party:
(a) materially breaches this Agreement or any other agreement entered into by the Customer with MSD Animal Health; and
(b) has not remedied the breach within fifteen (15) days after receipt of a notice (the "Default Notice") from the non-breaching Party identifying the breach and stating the non-breaching Party’s intention to terminate this Agreement if the breach is not remedied within fifteen (15) days (the "Cure Period").
8.4 Termination for Cause by MSD Animal Health
MSD Animal Health may in its absolute discretion terminate this Agreement immediately upon delivery of notice to Customer if:
(a) Customer fails to fulfil any Eligibility Conditions; or
(b) Customer becomes bankrupt, takes any step or proceeding available to it for the benefit of insolvent debtors, becomes insolvent or takes any step or proceeding for its liquidation, dissolution or winding up.
8.5 Termination for Convenience
(a) Customer may terminate this Agreement immediately upon delivery of written notice to MSD Animal Health.
(b) MSD Animal Health may terminate this Agreement immediately upon delivery of written notice to Customer.
8.6 Effect of Expiration or Termination
Immediately upon expiration or termination of this Agreement, Customer will cease using the Products and Services (including Client Materials) and the MyVetOnline Marks, and Customer will either destroy or return to MSD Animal Health, at MSD Animal Health's election, all unused Products (including all Client Materials).
The following provisions of this Agreement, will survive termination of this Agreement and remain in full force and effect: clauses 4, 5, 6, 7, and 9 and paragraphs 3.7, 8.6 and 8.7.
9. GENERAL PROVISIONS
9.1 Force Majeure
MSD Animal Health will not be liable for any delay in performing or failure to perform any obligations under this Agreement to the extent performance is delayed or prevented due to any cause beyond MSD Animal Health’s reasonable control, including:
(a) any act of God, fire, explosion, lightning, storm, flood, earthquake, accident, or natural disaster;
(b) war, terrorism, hostilities, civil war, insurrection, riot, civil unrest, commotion or acts of a public enemy;
(c) labour shortages, strikes, lock-outs, or other labour, industrial or trade action, disputes, disruption or disturbances (whether involving its employees or those of any other person);
(d) theft, sabotage, malicious damage, fraud, epidemic, or quarantine restrictions;
(e) material shortages or rationing;
(f) general failure, malfunction or unavailability of power, utilities, telecommunications, data communications, or related services;
(g) action, inaction, demand, order, restraint, restriction, requirement, prevention or hindrance by any government or court; or
(h) applicable law or regulation.
Any delay or failure of this kind will not be deemed to be a breach of this Agreement by MSD Animal Health, and the time for MSD Animal Health’s performance of all affected obligations will be extended by a period that is reasonable in the circumstances.
9.2 Relationship of Parties
The Parties are independent contractors, and nothing in this Agreement will create or be construed to create a partnership, joint venture, agency, employment, or other similar relationship between the Parties.
Customer may not assign, transfer, delegate, sub-license or grant all or any part of this Agreement or its entitlements, rights, duties or obligations without MSD Animal Health’s prior written consent, which consent may be withheld in its absolute discretion. Any purported transfer in violation of this paragraph 9.3 will be null and void.
MSD Animal Health may, in its absolute discretion and without any prior notice to Customer, engage sub-contractors to perform any or all of MSD Animal Health’s obligations under this Agreement.
9.5 No Third Party Beneficiaries
Unless otherwise expressly provided in this Agreement, no provisions of this Agreement are intended to or will be construed to confer upon or give to any person other than Customer and MSD Animal Health, and their respective successors and permitted assigns, any rights, remedies, or other benefits under or by reason of this Agreement. Without limiting the generality of the foregoing, Authorized Users will not have any rights under this Agreement.
Any notice given under this Agreement will be in writing and delivered by personal delivery, courier or facsimile to MSD Animal Health at its head office address at 94-105 Harpin Street, Bendigo East, Vic 3550 and to Customer at the address and facsimile indicated on the Cover Page, or at such other addresses and facsimile numbers as designated A notice delivered personally or by courier will be deemed to have been received on the next business day following the date of such delivery. A notice delivered by facsimile will be deemed to have been received on the next business day following the date of transmittal and acknowledgement of receipt by the recipient’s fax machine.
9.7 MSD Animal Health’s Records
MSD Animal Health’s records regarding Customer’s and Authorized Users’ access to and use of the Products and Services and any communications through the MyVetOnline Website or e-mail are, unless shown to be wrong, conclusive evidence of such access to and use of the Products and Services and of such communications. Customer agrees not to object to the admission of MSD Animal Health’s records as evidence in any legal proceeding on the ground that the records are not originals, are not in writing, are hearsay, are electronic, or are documents containing information extracted from a computer.
9.8 No Waiver
No consent or waiver by either Party to or of any breach or default by the other Party in its performance of its obligations under this Agreement will be deemed or construed to be a consent to or waiver of a continuing breach or default or any other breach or default of those or any other obligations of that Party. No consent or waiver will be effective unless in writing and signed by both Parties.
The rights and remedies of either Party under this Agreement are cumulative and not exclusive of any other rights or remedies to which either Party may be lawfully entitled, and the Parties will be entitled to pursue any and all of their respective rights and remedies concurrently, consecutively and alternatively.
If any provision of this Agreement is invalid or unenforceable for any reason, the remaining provisions will continue in full force and effect.
This Agreement will enure to the benefit of and be binding upon the Parties and their successors and permitted assigns. This Agreement also benefits MSD Animal Health’s associated and affiliated companies.
9.12 Governing Law
This Agreement will be governed by, and construed in accordance with Victorian law.
9.13 Dispute Resolution
Any dispute between the Parties relating to this Agreement will be determined by the courts of Australia. The Parties irrevocably submit to the exclusive jurisdiction of those courts.