(Parties): These terms and conditions (Terms) apply to the Customer and Binary Beer Pty Ltd ACN: 616 173 614 (Binary) (and together the parties) in relation to the agreement (as defined on page 2).
(Term): These Terms apply to the parties on and from the date that Binary commences any work under or in relation to the Project set out in this scope of work unless either party terminates the agreement earlier under these Terms (Term).
(Public announcements): Binary Beer may promote its relationship with the Customer without the prior written consent of the Customer.
(Termination): Either party may terminate the agreement at any time immediately on written notice to the other party, if that other party breaches these Terms. The parties must endeavor to settle any dispute in good faith between nominated representatives before termination notice is issued.
The parties agree that any intellectual property right (being any intellectual and industrial property rights throughout the world) belonging to a party prior to entering this agreement is provided under a royalty free, revocable license by that party to the other solely for the purposes of carrying out this agreement, and is not intended to constitute any transfer of an right, title or interest in the intellectual property right without further deed of assignment or license between the parties.
The Customer acknowledges that intellectual property rights in any information or material provided by Binary remain the exclusive property of Binary, its related bodies corporate, or any subcontractor.
The Customer must not infringe the intellectual property rights of Binary, its related bodies corporate, or any subcontractor.
The Customer agrees not to reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the services or the site or extract any ideas, algorithms, or procedures from them.
Binary grants to the Customer a license for the term to use any intellectual property rights provided as part of the services.
If the services include the provision of information to be passed on to third persons by the Customer, the Customer may be granted the limited right to publish to those third persons the information only with Binary’s prior written consent, which Binary may withhold or condition in its absolute discretion.
Binary gives no warranty as to the accuracy of any information published by the Customer.
The Customer indemnifies Binary in respect of any costs it incurs or claims by a third person in relation to information prepared, and published or supplied by the Customer. This clause 5.8 is not subject to the limitations on liability contained in clause 9.
Binary indemnifies the Customer in respect of any costs it incurs or claims by a third party that the use by the Customer, its officers, employees or contractors (affected persons) of the services in accordance with the provisions of this agreement infringes the intellectual property rights of any person. This clause 5.9 is not subject to the limitations on liability contained in clause 9, but liability will be proportionately reduced to the extent that the costs or claims were caused or contributed to by the affected persons.
(Data): All data collected by or on behalf of Binary Beer or generated under or in connection with the Project (Data) is, as between Binary and the Customer, owned by the Customer as Customer Materials. Binary Beer must take reasonable steps to protect Customer Data from unauthorized access, use or disclosure. Binary is entitled to use of the data collected for the purpose of developing products and services. Additionally, the Customer grants Binary a royalty free license to use redacted/deidentified data.
(Confidentiality): Each party must only use and disclose the Confidential Information of the other party for the sole purpose of complying with its obligations in the agreement, and may only otherwise use or disclose the Confidential Information of the other party: with the consent of the other party; as required by legislation, a court order or the rules of a stock exchange on which the disclosing party’s securities are listed or quoted; or in the case of the Customer, to its related entities. Confidential Information of a party means: information of a confidential nature relating to or developed in connection with the business or affairs of that party which is disclosed to, learnt by, or which otherwise comes to the knowledge of or into possession of, the other party; information designated by that party as confidential; information regarding clients, customers, employees, contractors of or other persons doing business with that party; but in no case includes information which is or becomes generally available to the public other than as a result of breach of confidence or this agreement.
(Representations and warranties): Both parties represent and warrant to the other party that as at the date of this scope of work and on a continuing basis: they have the right to enter into and perform the Project; they have or will obtain all required licenses, permits and other approvals required to perform the Project; performance of the Project will not infringe the rights of any third party; they will perform the Project in an efficient, professional and businesslike manner, using reasonably skilled and experienced individuals; they will comply with all industry standards and laws applicable to the Project and these Terms; and they will not do anything prejudicial to the goodwill, reputation or overall public image of either party or any of either parties products, customers, suppliers or partners.
(Liability): Except in the case of gross negligence or willful misconduct the Customer will not be liable to Binary for any loss (whether direct or indirect) suffered or incurred by Binary under or in relation to the Project or the agreement. The Customer acknowledges that in delivering some aspects of the Project, Binary relies on third party providers and in particular, cellular data service being accessible by the sensors to provide accurate analytic data. The Customer agrees that Binary will not be liable for any losses incurred due to data connectivity issues and the Customer will not make any claim against Binary in respect of losses (including refusing to pay invoices) incurred as a result of the Customer entering this agreement, except where Binary’s gross negligence or willful misconduct has caused such loss.
(General): Neither party may assign any of their rights under the agreement without the prior consent of the other party. The agreement represents the entire agreement between the parties in relation to its subject matter and supersedes all prior discussions, negotiations, understandings or agreements between the parties in relation to the subject matter of the agreement. The agreement is governed by the laws of the state of New South Wales (NSW), Australia. Each party submits to the exclusive jurisdiction of the courts of NSW, Australia and the courts of appeal from them in respect of any proceedings arising under or in connection with the agreement. A provision of the agreement, or right, power or remedy created under it may not be varied or waived except in writing signed by the party or parties to be bound. If the whole or any part of a provision of the agreement is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction, but the remainder of the agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction if not affected. Each party must, at its own expense, do all things and execute all documents necessary to give full effect to the agreement and the transactions contemplated by it. The agreement may be executed in any number of counterparts which, when taken together, constitute one instrument. In the agreement references to ‘includes’ or ‘including’ is read as if followed by the words ‘without limitation’.