TERMS & CONDITIONS OF BRAND BINARY’S WHATSAPP FOR BUSINESS MANAGEMENT SOLUTION
Last Updated 4th March 2020
Brand Binary ℅ Australian Cyber Corporation Pty Ltd (“Brand Binary”, “we”, “us”, or “our”) provides a Software as a Service (SaaS) based “Conversation Cloud” that allows our customers to store, manipulate, analyze and transfer messages between their business systems and their customers on a variety of Brand Binary-provided and third party messaging channels (the “Service”). A “Customer” is an entity with whom Brand Binary has an agreement to provide the Service.
This Brand Binary (℅ Australian Cyber Corporation Pty Ltd) Terms of Service (the “Agreement”) is an agreement between the Customer and Brand Binary (℅ Australian Cyber Corporation Pty Ltd), together the “Parties” and each, a “Party”, and is entered the date the Customer signs up for a Brand Binary account through the Brand Binary website (the “Effective Date”).
If you register for a Brand Binary account, you acknowledge your understanding of these terms and enter the Agreement on behalf of the Customer. Please make sure you have the necessary authority to enter into the Agreement on behalf of the Customer before proceeding.
BY USING ANY ELEMENT OF THE BRAND BINARY SOLUTION (INCLUDING THE WEBSITE, CUSTOMER ENGAGEMENT SOLUTION, ENTERPRISE SOLUTION, GOVERNMENT SOLUTION), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 16(j). IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE BRAND BINARY SOLUTION, INCLUDING USE OF ANY PART THEREOF. CUSTOMER REPRESENTS AND WARRANTS TO BRAND BINARY THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE BRAND BINARY SOLUTION ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO BRAND BINARY THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.
“Administrator Accounts” as defined in section 9.
“Administrative User” means an individual who is an employee or contractor of Customer and that Customer wishes to have access to and use of the Brand Binary Platform.
“Business” means either the Customer or Customer’s Client, as the case may be.
“Integrated Product” means any of the following: (i) Customer Application, (ii) Custom-Integrated Business Applications, and (iii) Pre-Integrated Third Party Business Applications.
“Chat Participant” means an individual who communicates with a Business (a “User”) or on behalf of a Business (an “Agent”) through the Brand Binary Platform.
“Conversation” means an exchange of any number of sent or received Brand Binary Messages between an individual Integrated Product and a Chat Participant in a month..
“Customer Account” as defined in section 9.
“Customer Application” means any software application or web site developed by Customer using or integrating with the Brand Binary SDK or APIs under the license terms of this Agreement.
“Customer’s Client” means any client of the Customer.
“Customer Data” means any data, information, content, records, and files that Customer (or any of its Administrative Users, Customer’s Clients or Chat Participants) loads, receives through, transmits to or enters into the Brand Binary Platform, and any data, information, content, records and files that the Brand Binary Platform obtains from Customer’s servers or systems or from third parties on Customer’s behalf, including any and all intellectual property rights in any of the foregoing.
“Custom-Integrated Business Applications” means any business software applications used by Customer to interoperate with the Brand Binary Platform through the Brand Binary API, where such software has been integrated with the Brand Binary API by Customer, but which software, for greater certainty, excludes Pre-Integrated Third Party Business Applications and Customer Application(s).
“Messaging Channels” means either (i) web, iOS, Android or other messaging channel enabled by a Brand Binary SDK, (ii) SMS or email that is integrated with the Brand Binary Solution, or (iii) a Third Party Messaging Platform that is integrated with the Brand Binary Solution.
“Modifications” means modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations, adaptations, and results from processing (including analyses, reports, databases, datasets, recommendations, and visual representations) in any form or medium, and “Modify” has a corresponding meaning.
“Personal Data” means any information relating to an identified or identifiable natural person any information relating to an identified or identifiable natural person (“Data Subject”)
“Pre-Integrated Third Party Business Applications” means third party business software used by Customer to interoperate with the Brand Binary Platform, where such software is already integrated with the Brand Binary Platform and is made available to Customer on the Brand Binary Website.
“Services” means the services provided by Brand Binary to Customer that facilitates the communication between a Business and Chat Participants through a variety of Messaging Channels (e.g. WhatsApp, SMS), as more particularly described on the Brand Binary Website.
“Brand Binary API” means the application programming interface, sample source code, tools, webhooks, instructions, documentation, other materials, and any Modifications thereto, made available by Brand Binary to Customer to assist Customer in developing its Customer Application that interoperates with the Brand Binary Platform.
“Brand Binary Message” means any communication sent or received between a Chat Participant and an Integrated Product using any component of the Brand Binary Solution.
“Brand Binary Platform” means the software, hardware, and systems used by Brand Binary to host and make the Services available for Customer’s use, including the Website, and any Modifications thereto.
“Brand Binary Property” is defined in section 5.
“Brand Binary SDKs” means the software development kits made available by Brand Binary for the development of software applications for each of iOS, Android, the web, and any Modifications thereto or future versions launched by Brand Binary for other platforms, that interoperate with the Brand Binary Platform, and “Brand Binary SDK” means any one of the foregoing software development kits, as the context requires.
“Brand Binary Solution” means: (i) the Brand Binary Platforms; (ii) the Brand Binary API; (iii) the Brand Binary SDKs, (iv) any Modifications to the preceding.
“Brand Binary Website” means any websites used by Brand Binary to provide the Brand Binary Services, including the website located at www.teeters.a2hosted.com/brandbinary/.
“Third Party Messaging Platforms” means any third party platform that may be used by Chat Participants to transmit and receive messages with a Business, including but not limited to WhatsApp, SMS, Facebook Messenger, WeChat, LINE, Telegram, Viber, and other platforms that Brand Binary may support in the future.
Brand Binary Platform
Provisioning of the Brand Binary Platform:
License to Brand Binary API
Subject to Customer’s compliance with the terms and conditions of this Agreement, Brand Binary grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable right and license during the Term to use the Brand Binary API solely (i) to enable the Customer Application to interoperate with the Brand Binary Platform or (ii) for developing or enabling Custom-Integrated Business Applications that will only be used by Customer to interoperate with the Brand Binary Platform in accordance with the terms of this Agreement and any other policies and guidelines published by Brand Binary from time to time.
License to Software Development Kits; EULA for Customer Application; Requirements for Customer Application
License Grant to Software Development Kit:
Subject to Customer’s compliance with the terms and conditions of this Agreement, Brand Binary grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable right and license during the Term to:
download, install and use the Brand Binary SDK from the Brand Binary Website and other sites linked from the Brand Binary Website solely to develop functionality within Customer Applications for facilitating communications between a Business and the Chat Participants through the Brand Binary Platform in accordance with the terms of this Agreement and any other policies or guidelines published by Brand Binary from time to time;
embed within the Customer Application the redistributable components of the Brand Binary SDK in object code form;
Additionally, Brand Binary grants Customers on paid subscriptions a limited, non-exclusive, non-transferable, non-sublicensable, revocable right and license during the Term to:
distribute the Brand Binary SDK to Customer’s Clients solely to enable Customer’s Clients to develop functionality in its software for facilitating communications between such Customer’s Clients and Chat Participants through the Brand Binary Platform in accordance with the terms of this Agreement and any other end-user license agreements, policies or guidelines published by Brand Binary from time to time.
End-User License Agreement for Customer Applications:
Customer may permit Chat Participants to use Customer Applications to communicate with Customer through the Brand Binary Platform. Customer will enter into an end-user license agreement (“EULA”) with such Chat Participants as a condition of such Chat Participant’s use of any Customer Applications. Customer will ensure that the EULA contain terms that are no less protective of Brand Binary and the Brand Binary Platform as the terms of this Agreement.
Brand Binary will retain the history of every SMS Conversation accessible for retrieval by Customer for a minimum of thirty (30) days.
WhatsApp (and any other encrypted chat services):
Brand Binary does not store any communication between the Customer and Customer’s client that happens over WhatsApp. Brand Binary only facilitates such communication however Facebook’s Data Retention & Security policy of WhatsApp For Business applies here.
During the Term, Customer hereby grants to Brand Binary a worldwide, non-exclusive, non-transferable and non-sub-licensable (other than to affiliates) royalty-free licence to use Customer’s trademarks and logos made available to Brand Binary by Customer as part of this agreement, solely in connection with the marketing, advertising, and promotion of the Brand Binary Solution, including listing the Customer and the Customer Application on the Brand Binary Website; and only in accordance with Customer’s reasonable trademark usage guidelines, as updated by Customer from time to time. Customer may require Brand Binary to cease using Customer’s trademarks and logos if, in the reasonable opinion of Customer, the continued display of Customer’s trademarks and logos would cause a materially adverse effect on Customer’s image and the goodwill associated therewith.
During the Term, Brand Binary grants to Customer a limited, non-exclusive, non-transferable and non-sub-licensable (other than to affiliates) royalty-free licence to use Brand Binary’s trademarks and logos made available to Customer by Brand Binary as part of this Agreement, solely in connection with the marketing, advertising, and promotion of the Brand Binary Solution, and only in accordance with Brand Binary’s reasonable trademark usage guidelines, as updated by Brand Binary from time to time. Brand Binary may require the Customer to cease using the Brand Binary’s trademarks and logos if, in the reasonable opinion of Brand Binary, the continued display of the Brand Binary’s trademarks and logos would cause a materially adverse effect on Brand Binary’s image and the goodwill associated therewith.
Reservation of Rights
Brand Binary expressly reserves all rights, title, and interest in, and Customer will not acquire any right, title or interest in: (i) the Brand Binary Solution (or any part thereof) and any other materials or content provided by Brand Binary under this Agreement, including any and all Modifications to any of the foregoing; and (ii) all intellectual property rights in any of the foregoing (clauses (i) and (ii) are collectively, the “Brand Binary Property”), in each case, subject to the license rights expressly granted under Section 2, 3, 4(a). All right, title and interest in the Brand Binary Property will remain with Brand Binary (or Brand Binary’s third party suppliers, as applicable). For greater certainty, the Brand Binary Property is licensed and not “sold” to Customer.
Customer shall retain all right, title, and interest to any modifications, extensions, or derivative works of the Brand Binary SDKs that Customer develops or has developed on its behalf (such modifications, extensions or derivative works, the “Customer Derivative Works”). The foregoing does not prevent Brand Binary from exploiting any Brand Binary Property, including any independently developed future developments, modifications, adaptations, changes, derivative works or new works, even if the foregoing is similar or functionally identical to the Customer Derivative Works. Accordingly, Customer will not assert, whether directly or indirectly, any of its intellectual property rights in or to the Customer Derivative Works against Brand Binary or any customers or clients of Brand Binary.
Brand Binary’s Right to Use Customer Data
Customer acknowledges and agrees that Brand Binary may store, use, reproduce, Modify, and transfer to its subcontractors, Customer Data, including Personal Data, solely in connection with delivering the Services under this Agreement. Customer further acknowledges and agrees that Brand Binary may store, use, reproduce, Modify, and transfer data that is not related to an identified or identifiable natural person, including aggregated or de-identified data, without limitation, for its internal business purposes, including but not limited to such purposes as analytics, quality assurance, product and service improvement, and new product and service development. Customer agrees to cause any Administrative User, Customer’s Client, and Chat Participant to agree to the same terms as this Section 7.
Customer Accounts; Use Restrictions
Upon Customer’s request, Brand Binary will issue one or more administrator accounts (the “Administrator Accounts”) to Customer that provides Customer with the capability to create accounts for use by individuals who are an employee or contractor of Customer and that Customer wishes to have access to and use of the Brand Binary Platform (each, an “Administrative User”). Customer will ensure that Administrative Users only use the Brand Binary Platform through their Customer Account. Customer will not share the Administrator Accounts with any other person and will not allow Administrative Users to share their Customer Account with any other person. Customer will promptly notify Brand Binary of any actual or suspected unauthorized use of the Brand Binary Platform. Brand Binary reserves the right to suspend, deactivate, or replace any Customer Account or Administrator Accounts if it determines that the Customer Account or Administrator Account, as applicable, may have been used for an unauthorized purpose.
Customer acknowledges and agrees that it is responsible for the activities and communications of all Administrative Users and Chat Participants on the Brand Binary Platform, and the compliance by all Administrative Users, Customer’s Clients and Chat Participants with this Agreement, and any guidelines and policies published by Brand Binary from time to time. Without limiting the generality of any of the foregoing, Customer will not, and will not permit any other person (including any Administrative Users, Customer’s Clients or Chat Participants) to:
use the Brand Binary Platform to send, upload, collect, transmit, store, use, disclose or process, or ask Brand Binary to obtain from third parties or perform any of the above with respect to, any
that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
that Customer or the applicable Administrative User, Customer’s Client or Chat Participant does not have the lawful right to send, upload, collect, transmit, store, use, disclose, process, copy, transmit, distribute and display;
that is false, intentionally misleading, or impersonates any other person;
that is bullying, harassing, abusive, threatening, vulgar, obscene, or offensive, or that contains pornography, nudity, or graphic or gratuitous violence, or that promotes violence, racism, discrimination, bigotry, hatred, or physical harm of any kind against any group or individual;
that is harmful to minors in any way or targeted at persons under the age of 16;
that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity); Or
that encourages any conduct that may violate, any applicable laws or would give rise to civil or criminal liability;
disable, overly burden, impair, or otherwise interfere with servers or networks connected to the Brand Binary Platform (e.g., a denial of service attack);
attempt to gain unauthorized access to the Brand Binary Platform;
use any data mining, robots, or similar data gathering or extraction methods, or copy, Modify, reverse engineer, reverse assemble, disassemble, or decompile the Brand Binary Solution or any part thereof or otherwise attempt to discover any source code, except as expressly provided for in this Agreement;
use the Brand Binary Solution for the purpose of building a similar or competitive product or service; or
use the Brand Binary Solution other than as permitted by this Agreement;
Fair Use Policy:
The Brand Binary Solution is intended to facilitate communications between Chat Participants and a Business in the context of marketing, selling and supporting the Business’ products and services. While Brand Binary sets no limits on the number of Messages that can be exchanged between any given Chat Participant and any given Business, in aggregate no Business shall exceed messages limit set within their account that may not be limited to because of account credit balance. Such usage of the Brand Binary Platform exceeds any usage limit, which may occur due to Brand Binary system flaw and/or intentionally violated our security policy by modifying our code/database and shall be deemed a violation of the terms of this Agreement and the Customer’s account will immediately be terminated or kept on hold until investigation completes internally by Brand Binary’s security team.
Email and Web Support
Customers will generally have access to Brand Binary’s technical support from 10:00am to 5:00pm AEST on weekdays (other than holidays observed by Brand Binary) through email support or through the web site using our chat widget on the website.
Fees and Payment
Customer will pay to Brand Binary the applicable fees described on the Brand Binary Website (the “Fees”) during the Term in accordance with the payment terms set out herein.
Third Party Messaging Platform Fees:
As Brand Binary connects with Third Party Messaging Platform’s API and their charges are added to Brand Binary’s Fees that are resold to the Customer. Brand Binary shall advise Customer in writing as to the applicable charges (monthly charges and Pay As You Go per message charges) for use of Brand Binary’s SaaS platform and Customer shall have the right to accept such charges or decline them and not use the associated service. In the event a Third Party Messaging Platforms imposes special requirements on Brand Binary beyond API integrations, including but not limited to hosting endpoints unique to that service, then Brand Binary shall have the right to charge Customer for this additional service and Customer shall have the right to accept such charges or decline them and not use the associated service.
All Fees shall be in U.S. Dollars as this currency is widely accepted around the world;
Brand Binary shall charge and invoice Customer the applicable Fees, in advance, by credit card, on the Effective Date and on every monthly anniversary thereafter;
Subject to section 11(d) below, payment obligations hereunder are not subject to any set-off or withholding rights whatsoever, any and all of which are hereby expressly waived by Customer.
Disputed Invoices or Charges. If Customer in good faith disputes any portion of a Brand Binary invoice or charge, Customer may provide a dispute notice to Brand Binary with written documentation identifying and substantiating the disputed amount within fifteen (15) days from receipt of the applicable invoice or charge, and if applicable, at the time it pays the undisputed portion of such invoice, withhold payment of such disputed portion. If Customer does not report or does not provide such substantiating documentation within that period, Customer shall be deemed to have waived its right to dispute any and all portions of that invoice. For greater certainty, Customer shall pay all undisputed amounts of that invoice in accordance with section 10 (b) above.
Except for bona fide disputed amounts, any failure to make a payment of any Fees or taxes in strict conformity with the requirements of this section 10 entitle Brand Binary to suspend, in whole or in part, access to Services, until such payment is received. Additionally, Brand Binary shall assess and Customer shall pay a charge, compounded monthly, of the lesser of (a) 2.5% per month (30% per year) or (b) the highest amount allowed by law on all past due amounts (except amounts disputed pursuant to section (c) above). Furthermore, upon any such failure all outstanding amounts shall become due and payable without further delay.
Certain Taxes. The Fees set out in this Agreement do not include applicable taxes, duties, withholdings, tariffs, levies, customs, capital or income taxes or other governmental charges or expenses, including but not limited to value added tax, sales tax, consumption tax and similar taxes or duties as well as any current or future municipal, state, federal or provincial taxes, and Customer will pay, indemnify and hold harmless Brand Binary from same, other than taxes based on the net income or profits of Brand Binary.
For purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient” and the Party disclosing such information will be the “Discloser" and “Confidential Information” means any and all information of Discloser disclosed by Discloser to Recipient or otherwise coming into the possession of Recipient during the Term that is marked as “confidential” or that a reasonable person would understand to be confidential; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient outside the scope of this relationship by personnel not having access to any Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations. Notwithstanding the foregoing the terms and conditions of this Agreement and all Brand Binary Property (including any part thereof), whether marked as “confidential” or not, will be Brand Binary’s Confidential Information will not be Customer’s Confidential Information.
Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose such Confidential Information of the Discloser to any person, except to its own personnel or affiliates having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Recipient will be deemed to have discharged its confidentiality obligations under this Section 11 (Confidential Information) if Recipient uses the same degree of care in safeguarding the Confidential Information of Discloser as it uses in protecting its own confidential information of a similar nature from unauthorized disclosure.
Exceptions to Confidentiality:
Notwithstanding Section 12(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its employees, accountants, internal and external auditors, legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services related to Brand Binary’s business; or (iii) in the case of Brand Binary, to potential assignees, acquirers or successors of Brand Binary if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Brand Binary.
Warranty; Disclaimer; Indemnity
Customer represents and warrants to, and covenants with, Brand Binary that (1) the Customer Data will only contain Personal Data in respect of which Customer has provided all notices and disclosures (including to each Data Subject), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable Brand Binary to provide the Services, including with respect to the collection, storage, access, use, disclosure and transmission of Personal Data, including by or to Brand Binary and to or from all applicable third parties (including third party providers of any Third Party Messaging Platforms); and (2) by connecting the WhatsApp Business Solution via the Brand Binary Platform, the Customer will be in compliance with the WhatsApp Business Solution Terms (https://www.whatsapp.com/legal/business-solution-terms/) at all times when accessing and using the WhatsApp Business Solution via the Brand Binary Platform.
EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE BRAND BINARY SOLUTION (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY BRAND BINARY TO CUSTOMER ARE PROVIDED “AS IS”, “AS AVAILABLE”. FURTHERMORE, ANY PARTS OF THE BRAND BINARY SOLUTION DELIVERED THROUGH THE EARLY ACCESS PROGRAM, OR UNDER A FREE SUBSCRIPTION PROGRAM OF ANY TYPE ARE EXCLUDED FROM ANY WARRANTIES PROVIDED WITHIN THIS AGREEMENT.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, BRAND BINARY HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. BRAND BINARY DOES NOT WARRANT THAT THE BRAND BINARY SOLUTION (OR ANY PART THEREOF) WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE, OR THAT ALL ERRORS CAN OR WILL BE CORRECTED. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, BRAND BINARY EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE BRAND BINARY SOLUTION (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
THIRD PARTY MESSAGING PLATFORMS, CUSTOMER APPLICATION, PRE-INTEGRATED THIRD PARTY BUSINESS APPLICATIONS, AND CUSTOM-INTEGRATED BUSINESS APPLICATIONS DISCLAIMER.CUSTOMER ACKNOWLEDGES THAT BRAND BINARY’S PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT IS DEPENDENT ON: (I) CUSTOMER HAVING TAKEN ALL STEPS NECESSARY TO ENABLE THE AVAILABLE INTEROPERABILITY BETWEEN THE BRAND BINARY PLATFORM AND ALL APPLICABLE THIRD PARTY MESSAGING PLATFORMS, CUSTOMER APPLICATION, PRE-INTEGRATED THIRD PARTY BUSINESS APPLICATIONS, AND CUSTOM-INTEGRATED BUSINESS APPLICATIONS (THROUGH USE OF THE BRAND BINARY API/SERVICE); AND (II) ACCESS TO SERVICES, SOFTWARE OR SYSTEMS OF THIRD PARTIES (INCLUDING THIRD PARTY SERVICE PROVIDERS OF ALL APPLICABLE THIRD PARTY MESSAGING PLATFORMS, PRE-INTEGRATED THIRD PARTY BUSINESS APPLICATIONS, AND CUSTOM-INTEGRATED BUSINESS APPLICATIONS) AND DATA STORED OR MAINTAINED THEREON (COLLECTIVELY, THE “EXTERNAL DEPENDENCIES”). BRAND BINARY IS NOT RESPONSIBLE FOR ANY EXTERNAL DEPENDENCIES AND WILL HAVE NO LIABILITY IN RESPECT OF ANY INTERFERENCE WITH CUSTOMER’S USE OR ANY USER’S USE OF OR ACCESS TO THE BRAND BINARY SOLUTION OR SECURITY OR PRIVACY BREACHES ARISING FROM OR ATTRIBUTABLE TO ANY EXTERNAL DEPENDENCIES, AND CUSTOMER WAIVES ANY AND ALL CLAIMS AGAINST BRAND BINARY (℅ AUSTRALIAN CYBER CORPORATION PTY LTD) IN CONNECTION THEREWITH.
Customer will defend, indemnify and hold harmless Brand Binary (℅ Australian Cyber Corporation Pty Ltd), its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party (including Administrative Users, Customer’s Client, and Chat Participants) liability (including damages, recoveries, deficiencies, interest, penalties and reasonable legal fees), directly or indirectly arising from or in connection with, or relating to: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; (iii) use of the Brand Binary Solution (or any part thereof) by Customer, any Administrative User, any Customer’s Client or any Chat Participant in combination with any Customer Applications or any third party software, application or service; (iv) misrepresentation, criminal behaviour or gross negligence on the part of Customer, any Administrative User, any Customer’s Client, or any Chat Participant; or (v) any actual or alleged infringement, violation or misappropriation of the rights of any person (including intellectual property or privacy rights) as a result of Customer’s, any Administrative User’s, any Customer’s Client or any Chat Participant’s use of the Brand Binary Solution (or any part thereof) contrary to the terms of this Agreement. Customers will fully cooperate with Brand Binary (℅ Australian Cyber Corporation Pty Ltd) in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Brand Binary (℅ Australian Cyber Corporation Pty Ltd).
Limitation of Liabilities
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF BRAND BINARY (℅ AUSTRALIAN CYBER CORPORATION PTY LTD) IN CONNECTION WITH OR UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER IN THE PRIOR 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR AU$500, WHICHEVER IS THE LESSER. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL BRAND BINARY’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL BRAND BINARY (℅ AUSTRALIAN CYBER CORPORATION PTY LTD) BE LIABLE TO CUSTOMER OR ANY USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; (IV) ANY COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
Term and Termination
This Agreement will commence on the Effective Date and continue to be in effect until your subscription has been terminated in accordance with the terms Customer agreed to on the Brand Binary website at time of signup (the “Term”). For greater certainty, if Customer has subscribed to an ongoing subscription, then such subscription will automatically renew at its expiry for the same period of time, at the then-current subscription rate described on the Brand Binary Website.
Termination For Convenience:
Either Party may elect to terminate this Agreement and your subscription to Brand Binary services as of the end of your then current Term by providing notice, on or prior to the date thirty (30) days preceding the end of such Term. For clarity, per section 15(a), unless this Agreement and your subscription is so terminated, your subscription will renew for a Term equivalent in length to the then expiring Term.
Refunds and Termination Charges:
No refunds or credits for Fees will be provided if you elect to terminate this Agreement prior to the end of your Term. If you terminate this Agreement prior to the end of your Term, or Brand Binary effects such termination pursuant to Section 15(d), in addition to other amounts you may owe Brand Binary (℅ Australian Cyber Corporation Pty Ltd), you must immediately pay any then unpaid Fees associated with the remainder of your Term. This amount will not be payable by you in the event you terminate as a result of a material breach of this Agreement by Brand Binary, provided that you provide advance notice of such breach to Brand Binary and afford Brand Binary not less than thirty (30) days to reasonably cure such breach as provided for in section 15(d).
Termination for Cause:
A Party may terminate this Agreement for cause (a) upon thirty (30) days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If this Agreement is terminated by you in accordance with this section, Brand Binary (℅ Australian Cyber Corporation Pty Ltd) will, to the extent permitted by applicable law, refund you any prepaid fees covering the remainder of the Term after the effective date of termination. If this Agreement is terminated by Brand Binary in accordance with this section, you will pay any unpaid fees covering the remainder of the Term. In no event will termination relieve you of your obligation to pay any fees payable to Brand Binary for the period prior to the effective date of termination.
The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 6 (Reservation of Rights), Section 7 (Brand Binary’s Right to Use Customer Data), Section 11 (Fees), Section 12 (Confidential Information), Section 13 (Warranty; Disclaimer; Indemnity), Section 14 (Limitation of Liabilities), Section 15(e) (Survival), and Section 16 (General Provisions).
Notices sent to either Party will be effective when delivered in person or by email, one day after being sent by overnight courier, or two days after being sent by first class mail postage prepaid to the official contact designated by the Parties and immediately after being received by the other Party’s server. Notices must be in writing and sent: (i) if to Brand Binary, to the address set out in the introductory paragraph of this Agreement; and (ii) if to Customer, to the current postal or email address that Brand Binary has on file with respect to Customer. Brand Binary may change its contact information by posting the new contact information on the Brand Binary Website. Customer is solely responsible for keeping its contact information on file with Brand Binary through the Brand Binary Platform current at all times during the Term.
Customers will not assign this Agreement to any third party without Brand Binary’s prior written consent, which consent will not be unreasonably withheld. Brand Binary may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent in connection with any merger or change of control of Brand Binary (℅ Australian Cyber Corporation Pty Ltd) or the sale of all or substantially all of Brand Binary’s (℅ Australian Cyber Corporation Pty Ltd’s) assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Any assignment in violation of this Section will be void. The terms of this Agreement will be binding upon permitted assignees. This Agreement will insure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.
Choice of Law:
This Agreement and any action related thereto will be governed by and construed in accordance with the substantive laws of the State of New South Wales, Australia, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Sydney, State of New South Wales, Australia and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
Except as otherwise provided in this Agreement, the Parties rights and remedies under this Agreement are cumulative. The term “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of Brand Binary in this Agreement means the right of Brand Binary to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the Customer.
Neither Party will be liable for delays caused by any event or circumstances beyond Brand Binary’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving Brand Binary employees), Internet service provider failures or delays, or the unavailability or Modification by third parties of third party websites.
Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
Customer’s relationship to Brand Binary is that of an independent contractor, and neither Party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Brand Binary (℅ Australian Cyber Corporation Pty Ltd).
This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all other communications, whether written or oral.
Subject to the following sentence, no amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, BRAND BINARY MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY BRAND BINARY, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER). IF CUSTOMER HAS PREPAID ANY FEES TO BRAND BINARY AND PROVIDES NOTICE TO BRAND BINARY WITHIN 30 DAYS OF THE EFFECTIVE DATE OF AN AMENDMENT THAT CUSTOMER WISHES TO EXERCISE ITS TERMINATION FOR CONVENIENCE RIGHT PURSUANT TO SECTION 15(b) OF THIS AGREEMENT, THEN BRAND BINARY WILL REFUND CUSTOMER AN AMOUNT ON A PRO-RATED BASIS CALCULATED BASED ON THE EFFECTIVE DATE OF TERMINATION UNTIL THE END OF THE PREPAID SUBSCRIPTION PERIOD.
It is the express wish of the Parties that this Agreement and all related documents be drawn up in English.
GENERAL TERMS OF CONDITIONS OF ALL BRAND BINARY’S SOLUTIONS
- You subscribe to our services for a specific term (annual, half-yearly, quarterly, or monthly), and your subscription expires at the end of term and will be automatically renewed, if recurring purchase option has been kept enabled. If you have cancelled recurring purchase, your subscription will not be automatically renewed.
- You can upgrade or downgrade the level of our services at any time of your usage. In both cases, the previous remaining advance payment (if any and calculated on a pro-rata basis) will be adjusted by increasing the period of the new subscription accordingly. If you wish for a refund, a decision will be made on a case-to-case basis.
- If you stop using our services in between the term, any refund (if applicable) will be governed by our Refund Policy.
- As per privacy policies of Brand Binary, you can request to permanently erase your account and all data at any time. You can also request to download a copy of all data. You can make these requests at [email protected]/brandbinary/
- If you use our paid services and sign-up with your company email ID, we can use your company logo on our websites, social media, and other marketing media for promotional purposes. However, you can revoke this consent at any time by sending us a request at [email protected]/brandbinary/
- We may modify the terms at any point of time, but will let you know in advance
- Please understand that by accepting these terms and conditions, Customer represents and warrants that the Customer is major and thus legally capable to enter into contract and in case Customer is acting on behalf of some business entity, Customer is duly authorized to enter into agreement on behalf of the entity Customer is representing. Customer also represents and warrants that the Customer is not a competitor of Australian Cyber Corporation Pty Ltd.
- Now therefore by clicking “I agree", ordering and/or using Australian Cyber Corporation Pty Ltd’s products and services, Customer agrees to be bound by all of the terms and conditions of this agreement (hereinafter referred to as the agreement).
- This agreement is entered between Australian Cyber Corporation Pty Ltd a company registered under Level 5, 4 Columbia Ct, Baulkham Hills, NSW 2153, Sydney, Australia and the payer or/and the recipient of services hereunder as identified as part of the subscription process for Australian Cyber Corporation Services hereinafter called as “Customer”.
- Now whereas Customer and Australian Cyber Corporation both hereby agree to the terms & conditions hereinafter mentioned:
SCOPE OF SERVICE
- Australian Cyber Corporation offers Brand Binary services (The Service) which includes the following:
- Product’s application interface (the “Generator”, “Saved QR Codes”, “Leads”, “Analytics”, “Advanced Settings”, “QR Code Generation API”, “QR Code Management API”). The service is hosted at a domain managed by the company.
- Product’s data collection and content delivery network.
- Support offered by the company primarily via email address [email protected] Binary.io, phone number +1-855-440-7400, and other customer support channels.
FREE TRIAL ACCOUNT
- If you register for a free trial account of the Service, we will make the Service (on a limited basis) available to you free of charge until the start date of your subscription or expiry of the free trial. If we include additional terms and conditions on the free trial account registration web page, those will apply as well. In the free trial account (i) the Service is provided “as is” and without warranty of any kind, (ii) we may suspend, limit, or terminate the Service for any reason at any time without notice, and (iii) we will not be liable to you for damages of any kind related to your use of the Service.
LAWFUL USE OF THE SERVICES
- Customer hereby agrees to use the services of Australian Cyber Corporation only in authorized manner as per terms of services/ package selected. In case it is found that use of services violates the terms of this agreement or any other law, rule or regulation enacted by the concerned authorities from time to time, Australian Cyber Corporation reserves its right to terminate the agreement with immediate effect.
AUSTRALIAN CYBER CORPORATION PTY LTD’s RESPONSIBILITIES, REPRESENTATIONS AND WARRANTIES
- In the performance of Services, Australian Cyber Corporation agrees to:
- Perform the Services to the best of its ability and with the degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances;
- Liaise with Customer through Customer’s coordinator on matters related to the Services;
- Notify Customer, whenever practicable, if expenses beyond the agreed charges may be incurred;
- Invoice Customer according to the terms of this Agreement and the applicable Service Schedule for the Services performed; and
- Proceed according to Customer’s reasonable instructions for the disposition of Customer’s Data and supplies on the termination of any Service Schedule.
Reasonable Attempts to Correct Errors on Notice
- Australian Cyber Corporation warrants that it will at its expense make commercially reasonable attempts to correct any errors for which Australian Cyber Corporation is directly and solely responsible by rerunning the Service, provided that the Data necessary to correct such errors is available to Australian Cyber Corporation; or at Australian Cyber Corporation’ option provide a credit to Customer equivalent to the charge that would have been applicable for correcting that portion of the Service that is in error, such credit will be only for errors due solely to malfunction of a system or Software provided by Australian Cyber Corporation or any error made by Australian Cyber Corporation’ personnel in the performance of the Service. To obtain the rerun Service or the credit, Customer must notify Australian Cyber Corporation in writing of such errors within fifteen days of receipt of the Services believed to contain the errors.
CUSTOMER’S RESPONSIBILITIES, REPRESENTATIONS AND WARRANTIES
- Customer agrees to:
- Provide all necessary Data and any special forms or other required materials or information to Australian Cyber Corporation on schedule or in a timely fashion to enable Australian Cyber Corporation to provide the Services;
- Ensure the accuracy, legibility, and completeness of all Data supplied to Australian Cyber Corporation and be solely responsible for the results obtained from Customer’s use of any of the Services;
- Liaise with Australian Cyber Corporation through a coordinator. Customer will identify, on matters related to the Services and authorize that coordinator to make decisions on behalf of Customer in relation to the implementation of this Agreement and the Services and any changes thereto;
- Comply with Australian Cyber Corporation’ security and operating procedures (as may be revised or amended by Australian Cyber Corporation from time to time) when Customer’s employees or agents are interfacing with Australian Cyber Corporation installed systems;
- Control, and be responsible for the use of, account information, user ids and passwords related to the Services and, where required, when interfacing with Australian Cyber Corporation installed systems;
- Customer represents and warrants to Australian Cyber Corporation that: (a) the information Customer has provided for the purpose of establishing an account with Australian Cyber Corporation is accurate, and (b) Customer has complied with and will continue to comply with all applicable privacy laws and has obtained and will continue to obtain the requisite privacy consents in the collection and use of all information that may be collected on any website or maintained on any server hosted by Australian Cyber Corporation.
TERM, TERMINATION AND SUSPENSION OF SERVICE
- The initial subscription term shall begin on the effective date of your Subscription and expire at the end of the period selected during the subscription process.
Termination by Customer
- Customer may terminate this Agreement before the end of the Term without liability (except for amounts due for Services provided up to the effective date of the termination) if “Australian Cyber Corporation” (a) fails to provide the Services in accordance with the terms of this Agreement, such failure causes material harm to Customer and “Australian Cyber Corporation” does not cure the failure within 10 days of receipt of notice in writing from Customer describing the failure in reasonable detail; or (b) materially violates any other provision of this Agreement and fails to cure the violation within 30 days of receipt of notice in writing from the Customer describing the violation in reasonable detail.
Termination by “Australian Cyber Corporation”
- “Australian Cyber Corporation” may terminate this Agreement before the end of the Term without liability (a) on 7 business days’ notice to Customer if Customer is overdue on the payment of any amount due under this Agreement; (b) if Customer materially violates any other provision of this Agreement and fails to cure the violation within 10 days’ notice in writing from “Australian Cyber Corporation” describing the violation in reasonable detail; or (c) immediately on written notice upon Customer becoming insolvent or bankrupt within the meaning of the Bankruptcy and Insolvency Laws.
- It is agreed that in case of termination, the fees owed to Australian Cyber Corporation as per this agreement will not be cancelled or waived. Customer’s data and account settings shall be irrevocably deleted within 30 days from the date of termination. It shall be Customer’s exclusive responsibility to secure all necessary data from Customer’s account prior to termination.
Suspension of Service
- Australian Cyber Corporation will be entitled to suspend the Service without liability if (a) Australian Cyber Corporation, acting reasonably, believes that the Service is being used in violation of this Agreement or any applicable law; (b) Customer is in breach of any material term of this Agreement including, without limitation, failing to pay invoiced amounts in full within 30 days of the Due Date. The Customer will not be able to access any files on Australian Cyber Corporation’ servers during a suspension of Service. Australian Cyber Corporation will use commercially reasonable efforts to give the Customer advance notice in writing of a suspension of Service unless a law enforcement or governmental agency directs otherwise or suspension without notice is necessary to protect Australian Cyber Corporation or its other customers. A suspension of Service under this subsection will not be considered a breach by Australian Cyber Corporation of the terms of this Agreement.
Term of suspension and retention of data
- Australian Cyber Corporation shall keep the account of customer suspended for the reasons stated in para (v) above for a maximum period of 1 Year, thereafter the account stands deleted and customers data/information shall be deleted from the database of Australian Cyber Corporation. But on special request and on being assured by the customer about resumption of services, Australian Cyber Corporation may extend the period of suspension and retain the data/information for further specified period of time as agreed.
Renewal of Term
- The paid subscription and this Agreement will automatically renew, if recurring purchase option has been kept enabled. If you have cancelled recurring purchase, your subscription will not be automatically renewed.
- Australian Cyber Corporation stores your payment information via its payments provider 2Checkout.
FEES, BILLING, TAXES, CHARGES
- The fees set forth in the order form created at the outset of “Customer’s” account shall be effective for the Initial Term, provided that Australian Cyber Corporation shall have the right to revise these fees at any time upon thirty (30) days written notice to Customer. In the event that Customer does not agree with such fee revision, Customer shall have the right to terminate this Agreement upon thirty (30) days written notice, provided that such notice of termination must be received within thirty (30) days of date of notice of the fee increase.
Billing and Payment Arrangements
- Australian Cyber Corporation will bill Customer on an annual/quarterly/half yearly/monthly or any other mutually agreed period basis for all recurring fees (refer the link for payment/subscription plans). One‐time fees, including late payment fees, invoice processing fees, and returned check fees may occur at any time. All requests for refunds will be dealt as per the company’s Refund Policy. Invoices/payments are irrevocably deemed final and accepted by Customer unless disputed or sought clarification within thirty (30) days from the date of issue. Customer shall at all times provide and keep current and up‐to‐date Customer’s contact, credit card, if applicable, and billing information on the administrative control panel.
Payment by Credit Card/ Wire Transfer/Cheque
- For payment Australian Cyber Corporation shall only provide an electronic invoice to Customer. Customer may view and print an invoice for Customer’s account. A request can be made for a PDF version of the invoice by sending an email to [email protected] Binary.io. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable at the beginning of the Initial Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party. Australian Cyber Corporation can allow any other mode of payment on special requests and circumstances of the Customer.
- Customer acknowledges that the all applicable taxes, duties or government levies whatsoever are included in the fees and expenses charged under this Agreement.
MODIFICATION OF TERMS AND CONDITIONS
- Australian Cyber Corporation may update, amend, modify or supplement the terms and conditions of this Agreement from time to time and will use reasonable efforts to notify Customer regarding the same. Customer is responsible for regularly reviewing the most current version of this Agreement at any time at http://Brand Binary.io/terms-conditions. If at any time Customer do not agree with any amendment, modification or supplement to the terms and conditions of this Agreement, Customer may terminate this Agreement for convenience as per Clause 4 mentioned aforesaid. Customer’s continued use of Customer’s account and/or the services after the notice period will be conclusively deemed to be acceptance by Customer of any such modifications or amendment.
LIMITED WARRANTY; LIMITATION OF DAMAGES
- Australian Cyber Corporation provides services “as is”. Customer expressly agrees that use of Australian Cyber Corporation services is at Customer’s sole risk. Australian Cyber Corporation and its subsidiaries, affiliates, officers, employees, agents, partners, vendors and licensors expressly disclaim all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non infringement. Customer hereby agree that the terms of this agreement shall not be altered due to custom or usage or due to the parties’ course of dealing or course of performance under this agreement.
- Australian Cyber Corporation and its subsidiaries, affiliates, officers, employees, agents, partners, vendors and licensors shall not be liable for any direct, indirect, incidental, special, punitive or consequential damages, including but not limited to damages for lost profits, business interruption, loss of programs or information, and the like, that result from the use or inability to use the services or from mistakes, omissions, interruptions, deletion of files or directories, errors, defects, delays in operation, or transmission, regardless of whether Australian Cyber Corporation has been advised of such damages or their possibility.
- Customer agrees that Customer’s sole remedy for any claims regarding the Services is limited to the credits set forth and agreed as per tariff plan opted by the Customer
- Customer is fully responsible for the content of the information and data passing through Australian Cyber Corporation ‘s network or using the Services and for all activities that Customer conduct with the assistance of the Services.
SOFTWARE AND INTELLECTUAL PROPERTY RIGHTS
- All Intellectual Property Rights, including any Software, owned by a party, its licensors or subcontractors as at the effective date of this Agreement shall continue to be owned by such party, its licensors or subcontractors and, except as expressly provided in this Agreement, the other party shall not acquire any right, title or interest in or to such Intellectual Property Rights. Australian Cyber Corporation shall own all right, title and interest in and to any materials created or developed by Australian Cyber Corporation or its subcontractors for its internal use or for assisting Customer in the provision of the Services and Customer shall own all right, title and interest in and to any Intellectual Property Rights resulting or based on any work product created or developed exclusively for Customer under this Agreement if fully paid for by Customer.
Right to use logo
- The customer agrees to let Australian Cyber Corporation use their organization’s logo in Australian Cyber Corporation’s customer list and at other places on its website (including but not limited to bbweb.io, Brand Binary.io, Brand Binary.in, scnv.io, and scnv.in).
License of Customer Software and Intellectual Property
- Customer agrees to grant to Australian Cyber Corporation, solely for Australian Cyber Corporation’s provision of the Services, a license during the Term to use any Intellectual Property Rights, including any Software, owned by or licensed to Customer by third parties and that is necessary for providing the Services to Customer and otherwise performing its obligations under this Agreement. With respect to any Intellectual Property Rights and Software used by Australian Cyber Corporation to provide the Services, Customer represents and warrants that: (a) Customer is either the owner of such Intellectual Property Rights or Software or is authorized by its owner to include it under this Agreement; and (b) Australian Cyber Corporation has the right during the Term to use such Intellectual Property Rights and Software for the purpose of providing the Services to Customer as contemplated by this Agreement.
No Assurance of Compatibility
- Customer acknowledges that Australian Cyber Corporation makes no representation, warranty or assurance that the Customer’s equipment and Software will be compatible with Australian Cyber Corporation’s equipment, Software and systems or the Services.
- Australian Cyber Corporation shall only disclose the Confidential Information to those of its employees and permitted agents and subcontractors who have a need to know and require access to the Confidential Information as may be reasonably necessary in the exercise of Australian Cyber Corporation’s rights and performance of the Services under this Agreement. Notwithstanding anything to the contrary in this Agreement, Australian Cyber Corporation will not be required to keep confidential, and may use or license without restriction, any ideas, concepts, know-how or techniques related to information processing which are developed by Australian Cyber Corporation in the performance of Services.
- Notwithstanding the foregoing, Australian Cyber Corporation shall be permitted to: (i) monitor Customer’s use of the Services; (ii) report to the appropriate authorities any conduct by Customer (or Customer’s customers or end users) that Australian Cyber Corporation reasonably believes violates any applicable law, (iii) provide any information, including Confidential Information, required by law or regulation to be disclosed, or in response to a formal or informal request from a law enforcement or government agency; and (iv) disclose that Australian Cyber Corporation is providing the Services to Customer and may include Customer’s name in promotional materials including press releases and on Australian Cyber Corporation’s website.
- Customer will defend, indemnify and hold harmless Brand Binary (℅ Australian Cyber Corporation Pty Ltd), its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party (including Administrative Users, Customer’s Client, and Chat Participants) liability (including damages, recoveries, deficiencies, interest, penalties and reasonable legal fees), directly or indirectly arising from or in connection with, or relating to: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; (iii) use of the Brand Binary Solution (or any part thereof) by Customer, any Administrative User, any Customer’s Client or any Chat Participant in combination with any Customer Applications or any third party software, application or service; (iv) misrepresentation, criminal behaviour or gross negligence on the part of Customer, any Administrative User, any Customer’s Client, or any Chat Participant; or (v) any actual or alleged infringement, violation or misappropriation of the rights of any person (including intellectual property or privacy rights) as a result of Customer’s, any Administrative User’s, any Customer’s Client or any Chat Participant’s use of the Brand Binary Solution (or any part thereof) contrary to the terms of this Agreement. Customers will fully cooperate with Brand Binary (℅ Australian Cyber Corporation Pty Ltd) in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Brand Binary (℅ Australian Cyber Corporation Pty Ltd).
- This Agreement shall be governed by and construed in accordance with the laws of NSW, Australia. Customer agrees, in the event any claim or suit is brought in connection with this Agreement, it shall be brought to the exclusive jurisdiction and venue of the courts of NSW, Australia. In any action to enforce this Agreement, including, without limitation, any action by Australian Cyber Corporation for the recovery of fees due hereunder, Customer shall pay reasonable attorney’s’ fees and costs in connection with such action.
- In the event that any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any of the other provisions of this Agreement, and this Agreement shall be construed as if such provision(s) had never been contained herein, provided that such provision(s) shall be curtailed, limited, or eliminated only to the extent necessary to remove the invalidity, illegality, or unenforceability.
- No waiver by Australian Cyber Corporation of any breach by Customer of any of the provisions of this Agreement shall be deemed a waiver of any preceding or succeeding breach of this Agreement. No such waiver shall be effective unless it is in writing signed by the parties hereto, and then only to the extent expressly set forth in such writing.
- Neither party may assign or transfer this Agreement or any rights or obligations hereunder, in whole or in part, except with the prior written consent of the other party, which shall not be unreasonably be withheld; provided that Australian Cyber Corporation may assign or transfer this Agreement, or any rights or obligations hereunder, in whole or in part: (i) to an affiliate of Australian Cyber Corporation, (ii) in connection with a merger, amalgamation or sale of all or a substantial part of the business of Australian Cyber Corporation, or (iii) for financing, securitization or other similar purposes, which assignments and/or transfers shall operate novation and discharge Australian Cyber Corporation hereunder. A change of control of Customer shall be deemed to be an assignment and transfer hereunder and shall be governed by the requirements of this provision.
- The terms and conditions along with privacy policies with all references, constitutes the sole and entire agreement of the parties to this agreement with respect to the subject matter contained herein, and supersedes all prior terms and conditions which were agreed by the Customer.
DATA PROCESSING ADDENDUM
- If you are a paying subscriber to the products and services of Australian Cyber Corporation, to the extent that Australian Cyber Corporation processes any Personal Information (as defined in the DPA) contained in End-User Data that is subject to the GDPR (as defined in the DPA), on your behalf, in the provision of the Service, the terms of the data processing addendum at Brand Binary DPA (“DPA"), which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms. For the purposes of the Standard Contractual Clauses attached to the DPA, when you are the data exporter, your agreeing to these Terms of Service shall be treated as signing of the DPA, including, without limitation, the Standard Contractual Clauses and their Appendices.
- The terms and conditions along with privacy policies with all references, constitutes the sole and entire agreement of the parties to this agreement with respect to the subject matter contained herein, and supersedes all prior terms and conditions which were agreed by the Customer.