You indicate your acceptance to these Terms by clicking on an “I Accept” button or check box or by accessing the biNu Services (whichever occurs earlier) (the date of such acceptance, being the “Effective Date”). By accepting these Terms, you agree to them and you represent to us that you are lawfully able to enter into and be bound by contracts. If you are accepting these Terms on behalf of a company or other entity, you represent that you have authority to bind such entity to these Terms.
Section 20 contains definitions of certain terms used in these Terms.
- Provision of biNu Services
- During the Term and subject to this Agreement, biNu grants to you and you accept from biNu, a non-exclusive, non-transferable, personal and non-sublicensable limited licence and right to access and use the biNu Services.
- You may be required to create an account to access the biNu Services. You are responsible for all activities that occur under your account, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents) and, except to the extent caused by our breach of this Agreement, we and our related bodies corporate are not responsible for unauthorised access to your account. You will contact us immediately if you believe an unauthorised third party may be using your account or if your account information is lost or stolen.
- Changes to biNu Services and APIs
- We may make changes to, or discontinue, any of the biNu Services (including changing, removing or adding to features or functionality) from time to time at our discretion. We will use commercially reasonable efforts to notify you in advance of any material changes to or discontinuation of any biNu Services.
- We may make changes to, or discontinue, any components or APIs for the biNu Services from time to time but will use commercially reasonable efforts to continue supporting the previous version of any component or API changed or discontinued for 12 months after the change or discontinuation, except if (a) doing so would pose a security or intellectual property issue; (b) doing so is economically or technically burdensome; or (c) the change or discontinuation is needed to comply with the law or requests of any Government Agency.
- Third Party Services
- The biNu Services may include services developed, provided or maintained by third party service providers (“Third Party Services”). In addition to this Agreement, your access to and use of any Third Party Services is also subject to any other agreement separate from this Agreement that you may enter into (or may have entered into) relating to those Third Party Services (“Third Party Service Agreement”). The terms of any Third Party Service Agreement will apply to the applicable Third Party Services provided under that Third Party Service Agreement and where applicable, this Agreement.
- Third Party Services may be subject to additional Fees as set out on our website.
- As we may not have tested or screened the Third Party Services, your use of any Third Party Services is at your sole risk.
- Your obligations
- Other than the express obligations of biNu set out in this Agreement, you are solely responsible for all activities required by or otherwise related to the development, production, delivery, updating, maintenance and promotion of Your Services. Without limitation to the foregoing, you are solely responsible for:
- the technical operation, technical support and user service matters in relation to Your Services;
- the content and materials related to Your Services, including compliance of such content and materials with applicable law;
- the terms and conditions and fees and charges applicable to Your Services; and
- any claims relating to Your Services.
- You are responsible for End Users’ use of Your Services and, as applicable, the biNu Services. You must notify biNu promptly if you become aware of any End User engaging in (or if you believe any End User has or is engaging in) any activity that is unlawful, fraudulent, malicious or violates the rights of any third party or breaches this Agreement. We may ask you to terminate such End User’s access to Your Services which is provided using the biNu Services.
- You must promptly fix any bugs in Your Services or software that causes the biNu Services to be accessed in a way that is not consistent with the Services Documentation or is otherwise detrimental to the performance of the biNu Services.
- You are responsible for properly processing and handling notices you receive from any person claiming that Your Services or an End User’s content in connection with the biNu Services violates such person’s rights, including any breach of copyright.
- You are responsible for properly configuring and using the biNu Services and taking your own steps to maintain appropriate security, protection and backup of Your Services, which may include the use of encryption technology to protect Your Services from unauthorized access and routine archiving of Your Data.
- Licences from you
- You grant to us a non-exclusive, royalty-free, worldwide licence during the Term to reproduce, distribute, publicly perform, publicly display and digitally perform Your Data in connection with the provision of the biNu Services to you. You acknowledge and agree that this may involve transmissions of Your Data over various third party networks and changes to conform and adapt to technical requirements of connecting networks and devices.
- In addition to section 1, you grant to us a non-exclusive, non-transferable, worldwide, perpetual, royalty-free licence to collect, analyse and use data relating to the biNu Services derived from, or related to, Your Data, including for the generation of reports for internal, external and public use (provided that the data is anonymised or aggregated).
- Fees and payment
- In consideration for providing you a licence and right to the biNu Services pursuant to this Agreement, you agree to pay to biNu the Fees set out on the pricing schedule on the biNu website, unless otherwise agreed in writing between you and us. biNu has the right to modify the Fees by giving at least 30 days’ written notice to you.
- Unless otherwise stated, Fees listed on the pricing schedule on the biNu website are exclusive of applicable taxes and duties, including GST, VAT and applicable sales tax. You will provide us any information we reasonably request to determine whether we are required to collect any GST or sales tax from you. You will otherwise be responsible for payment of any taxes (other than taxes based on biNu’s net income), fees, duties and charges, and any related penalties or interest, arising from the payment of Fees or the delivery or use of the biNu Services.
- If any deduction or withholding is required by law, you will notify us and will pay us any additional amounts necessary to ensure that the net amount that we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required. Additionally, you will provide us with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority
- We will calculate and bill you the Fees on a monthly basis. You must pay the Fees billed using one of the payment methods set out on the pricing schedule on the biNu website.
- All payments to us must be made without setoff or counterclaim, and without any deduction or withholding. If any deduction or withholding is required by law, you must notify us and will pay us any additional amounts necessary to ensure that the net amount that we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required. Additionally, you must provide us with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
- Any Fees which are not paid within 15 days of the due date for payment may be subject to interest payable by you at the rate of 1.5% per month or the highest rate allowable by law, whichever is less, calculated and compounded daily from the date the amount is due until the date the amount is paid.
- Without limitation to section 6, we may suspend the provision of some or all of the biNu Services to you immediately upon notice in writing to you if you fail to pay any Fees by their due date for payment.
- Usage restrictions and reservation of rights
- Other than as expressly provided by this Agreement, the licence and rights granted by biNu to you to access and use the biNu Services does not permit you to (directly or indirectly, in whole or in part):
- modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the biNu Services;
- reverse engineer, disassemble, or decompile the biNu Services or apply any other process or procedure to derive the source code of any software included in the biNu Services;
- copy, sub-license, sell, assign, transfer, loan, lease or distribute any of the biNu Services or biNu Materials;
- access, use or copy any part of the biNu Services to directly or indirectly develop, promote or support any product or service that competes with the biNu Services (or a substantial part thereof);
- remove any identification, patent, trade mark, copyright or other notice from the biNu Services or biNu Materials;
- interfere with or disrupt the integrity or performance of the biNu Services or Third Party Services;
- attempt to gain unauthorised access to the biNu Services or any data contained therein;
- disclose or publish, without biNu’s prior written consent, performance or capacity statistics or the results of any benchmark test performed on the biNu Services;
- use the biNu Services, including to deliver Your Services, in any manner that violates any law, rule, regulation or any other legal or regulatory requirement imposed by any Government Agency; or
- use, reproduce, distribute or permit others to use, reproduce or distribute any biNu Materials for any purpose other than as expressly permitted by this Agreement.
- You acknowledge and agree that except for the rights and licences expressly granted under this Agreement, biNu retains all right, title and interest in and to the biNu Services, biNu Materials, biNu Marks and any derivatives, modifications or improvements thereof. Nothing in this Agreement or otherwise shall be construed as conferring upon you by implication, operation of law, estoppel or otherwise, any other licence or right.
- Without limiting section 2, biNu is the owner of the biNu Marks and all goodwill in the biNu Marks. You must not use any of the biNu Marks without our prior written consent. All goodwill arising from your use of the biNu Marks pursuant to our consent will vest in us. You must not do anything that, in our reasonable opinion, is likely to adversely affect our title in or to the biNu Marks or the goodwill or reputation in the biNu Marks.
- You must not directly or indirectly: (a) make any use of any logo or trade mark similar to, or which might mislead or cause confusion with, any of the biNu Marks; or (b) register or apply for registration of the biNu Marks or any names or marks, incorporating, or which are substantially identical or deceptively similar to, any of the biNu Marks.
- Term and termination
- This Agreement commences on the Effective Date and will continue until terminated in accordance with this Agreement (“Term”).
- Either party may terminate this Agreement for any reason by providing at least 30 days’ notice in writing to the other party.
- Either party (“non-defaulting party”) may terminate this Agreement immediately upon notice in writing to the other party (“defaulting party”) if there is a material default or breach of this Agreement by the defaulting party, and:
- the non-defaulting party has not remedied the default or breach within 15 days’ of a notice in writing by the non-defaulting party to remedy the default or breach; or
- the default or breach is not capable of remedy.
- We may also terminate this Agreement or suspend the provision of some or all of the biNu Services to you immediately upon notice in writing to you if:
- a Force Majeure Event affecting us occurs;
- if we believe, acting reasonably, that providing the biNu Services could create a substantial economic or technical burden or material security risk for us; or
- in order to comply with applicable law or a request of a Government Agency.
- Upon termination of this Agreement for any reason:
- any licence and all rights granted to you under this Agreement immediately terminate and we will discontinue the provision of the biNu Services;
- you remain responsible for all Fees payable in respect of the period up to the date of termination;
- sections 2, 6, 7, 9, 10, 11, 12, 13, 17, 18, 19 and (as applicable) 20, and this section 8.5 will continue to apply; and
- we will make available to you any post-termination assistance that we generally make available to all customers, provided that such assistance will not be provided if we terminate this Agreement for cause under section 3.
- Upon suspension of the provision of some or all of the biNu Services to you:
- you remain responsible for all Fees payable in respect of the period up to the date of suspension for the suspended biNu Services;
- you remain responsible in accordance with this Agreement for all Fees payable in respect of the biNu Services that have not been suspended;
- this Agreement otherwise continues to apply in respect of the biNu Services that have not been suspended; and
- we may, in our sole discretion, recommence the provision of the suspended biNu Services to you, in which case, this Agreement will apply in accordance with its terms in respect of the recommenced biNu Services.
- biNu represents and warrants to you that it has full power and authority to enter into this Agreement and to perform its obligations under it.
- In addition, biNu represents and warrants to you that the biNu Services will conform substantially to the specifications set out in the applicable Services Documentation. However, biNu does not warrant that use of the biNu Services will be error-free or interrupted.
- Section 2 does not apply if any of the biNu Services provided to you are used in material variation from this Agreement or the Services Documentation, any biNu Services has been modified without our prior written consent, or any defect has been caused by any of your or a third party’s equipment, software or services.
- To the extent permitted by applicable law, your sole and exclusive remedy in the event of a breach by biNu of section 2 is, at the option of biNu, for biNu to re-perform the affected biNu Services or refund to you the Fees you have actually paid for the affected biNu Services during the month in which the relevant breach occurred.
- You represent and warrant to biNu that: (a) you have full power and authority to enter into this Agreement and to perform your obligations under it and, if you are accepting this Agreement on behalf of a company or other entity, you have full power and authority to bind that entity to the terms of this Agreement; and (b) you own or have a licence to all right, title, and interest in and to Your Services, and to grant the licences under section 5.
- Except to the extent expressly set out in section 9 and to the fullest extent permitted by applicable law, the biNu Services are provided to you on an “as is” and “as available” basis and biNu (and its related bodies corporate, if any) expressly disclaims any and all warranties and representations of any kind with respect to any subject matter of this Agreement (other than as expressly set out in this Agreement), whether express, implied, statutory, or arising from course of dealing or usage of trade, including, without limitation, any warranties of fitness for a particular purpose, merchantability, title, non-infringement or quiet enjoyment, that the biNu Services will be uninterrupted, error free or free of harmful components, or that any content (including Your Data or third party content) will be secure or not otherwise lost or damaged.
- You will indemnify and hold harmless, biNu and its related bodies corporate, and each of their respective, employees, officers, directors, agents, contractors, advisers and representatives (each, a “biNu Indemnified Party”) from and against all claims, liabilities, losses, damages, costs and expenses incurred by any of them in connection with:
- any breach of this Agreement by you (including a breach of section 5 or 4.2);
- your or an End User’s access or use of the biNu Services in breach of this Agreement or in violation of any applicable international, federal, state and local treaty, law, rule, regulation or ordinance;
- any claim by an End User; or
- any claim for breach of intellectual property or other rights in relation to Your Services or Your Data,
in each case, except the extent that such claim, liability, loss, damage, cost or expense is caused or contributed to by a biNu Indemnified Party.
- biNu will indemnify and hold harmless, you and your related bodies corporate, and each of your respective, employees, officers, directors, agents, contractors, advisers and representatives (each, a “Customer Indemnified Party”) from and against all claims, liabilities, losses, damages, costs and expenses incurred by any of them in connection with:
- any breach of this Agreement by biNu (including a breach of section 1); or
- any violation by biNu of any applicable international, federal, state and local treaty, law, rule, regulation or ordinance,
in each case, except the extent that such claim, liability, loss, damage, cost or expense is caused or contributed to by a Customer Indemnified Party. For the avoidance of doubt, the indemnity in this section 11.2 does not apply to a breach of section 9.2.
- Limitations of liability
- To the fullest extent permitted by applicable law, neither biNu nor any of its related bodies corporate will be liable under or in connection with this Agreement for any indirect, special, consequential or economic loss (including loss of profits, loss of goodwill, loss of business, loss of data or anticipated savings).
- In addition, to the fullest extent permitted by applicable law, the aggregate maximum liability of biNu and its related bodies corporate under or in connection with this Agreement is the aggregate of the Fees actually paid by you to biNu in the 12 months immediately prior to the occurrence of the event(s) giving rise to the relevant claim.
- In this Agreement, “Confidential Information” means, in respect of a party, all confidential information relating to that party including information in relation to that party’s operations, business, products, services, employees, customers and suppliers and the terms of this Agreement, whether in documentary or electronic form, that is not generally available to the public at the time of disclosure other than by reason of a breach of this Agreement or another confidentiality obligation, or that is in fact, or should reasonably be regarded as, confidential to that party, but does not include information which is available in the public domain unless that information enters the public domain as a result of a breach of confidence by the other party.
- Each party (“Recipient”) acknowledges that the Confidential Information of the other party (“Discloser”) constitutes the Discloser’s valuable and proprietary information and that any unauthorised disclosure or use of it could result in considerable damage being suffered by the Discloser.
- A Recipient must:
- at all times maintain the confidentiality of the Discloser’s Confidential Information and not directly or indirectly disclose or communicate the Discloser’s Confidential Information to any third party without the Discloser’s prior written approval (except to such of its employees, directors, officers, agents, advisers, contractors or representatives who have need to know such Confidential Information and who have agreed to maintain the confidentiality of the Confidential Information);
- not use any or all of the Discloser’s Confidential Information for any reason other than the performance of the Recipient’s obligations under this Agreement;
- not copy, reproduce or take extracts of any of the Discloser’s Confidential Information except to the extent necessary to perform the Recipient’s obligations under this Agreement; and
- do all things necessary to safeguard the confidentiality of the Discloser’s Confidential Information.
- This Agreement does not prevent a Recipient from disclosing the Discloser’s Confidential Information if that disclosure is required by applicable law or the rules of a stock exchange. A Recipient must give the Discloser notice of any such disclosure and the opportunity to take such action as the Recipient reasonably requires to contest the disclosure and/or seek confidential treatment of the Discloser’s Confidential Information.
- Modifications to this Agreement
- We may modify or revise this Agreement (including the Fees) from time to time, by posting the modifications or a revised version on the biNu website. By continuing to use the biNu Services after the effective date of any modifications or revisions to this Agreement, you agree to be bound by the modified or revised Agreement. If you consider the modification or revision to be unacceptable to you, you may elect to terminate this Agreement on 30 days’ notice in writing to us.
- Force Majeure Event
- Neither party shall be responsible for any failure to perform its obligations under this Agreement (other than the obligation to pay money) if such failure is caused by acts of God, natural disasters, war, acts of terrorism, labour disputes or other industrial disturbances, revolutions, lack or failure of transportation facilities, lack or failure of telecommunications or other public utilities, or other causes that are beyond the reasonable control of the relevant party (“Force Majeure Event”).
- Import and export compliance
- In connection with this Agreement, each party will comply with all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, you are solely responsible for compliance related to the manner in which you choose to use the biNu Services, including your transfer and processing of any of Your Data, and the provision of Your Services to End Users.
- Any notice to be given by either party to the other may be sent by email, post or in person to the address of the other party (as appearing on our website or in your account setup documentation or associated with your account) or such other address as such party may from time to time have communicated to the other in writing. If sent by email, the notice will be deemed to be served on receipt of an error free transmission report; if sent by post, the notice will be deemed to be served three business days (as calculated in New South Wales, Australia) following the date of posting; and if delivered in person, the notice will be deemed received when delivered.
- Any process or other document relating to litigation, administrative or arbitral proceedings in relation to this Agreement may be served by any method contemplated by section 1 or by any other means authorised by law.
- All communications and notices to be made or given pursuant to this Agreement must be in the English language.
- Governing law
- This Agreement will be governed by and construed in accordance with the law for the time being in force in the State of New South Wales, Australia, and the parties, by entering into this Agreement, are deemed to have submitted to the exclusive jurisdiction of the courts of that State. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
- Subject to section 2, neither party will, without the other party’s prior written approval, assign, sub-contract or sub-license this Agreement or any payment or any other right, benefit or interest thereunder.
- biNu may, without your consent, assign, sub-contract, novate this Agreement or any payment or any other right, benefit or interest thereunder:
- to any entity which is owned or controlled by biNu, or to a related body corporate of biNu; or
- upon biNu’s sale, transfer, assignment or other divestiture or disposition (for the purposes of this section, a “transfer”) of a part or the majority of its business that this Agreement relates to, to the entity or person that the business is transferred to.
- We and you are independent contractors and nothing in this Agreement will create a partnership or joint venture between you and us, and you acknowledge that you have no right to assume or create any obligations of any kind whatsoever or to make any representations or warranties, whether express or implied, on our behalf or to bind us in any respect.
- Any indemnity or obligation of confidentiality in this Agreement is independent and survives termination of this Agreement. Any other term which by its nature is intended to survive termination of this Agreement survives termination of this Agreement.
- To the extent that any express provision of this Agreement is expressed to be for the benefit of:
- a related body corporate of biNu, or an employee, officer, director, agent, contractor, adviser or representative of biNu or of our related body corporate, biNu holds the benefit of that provision for that person;
- a related body corporate of you, or an employee, officer, director, agent, contractor, adviser or representative of you or of your related body corporate, you hold the benefit of that provision for that person.
This Agreement does not otherwise create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
- Nothing in this Agreement gives rise to or creates any rights against any individual or entity that is not a party to this Agreement.
- Each party shall use its reasonable endeavours to cause each of its related bodies corporate to comply with the terms and conditions of this Agreement.
- This Agreement contains the entire understanding between us and you concerning the subject matter of this Agreement and supersedes all prior agreements, understandings and communications between us and you (whether written or verbal).
- A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise by a party of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
- A party may exercise a right, at its discretion and separately or concurrently with another right.
- If the whole or any part of a provision of this Agreement is invalid or unenforceable in a jurisdiction it must, if possible, be read down for the purposes of that jurisdiction so as to be valid and enforceable. If however, the whole or any part of a provision of this Agreement is not capable of being read down, it is severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
“API” means an application program interface.
“biNu Marks” means any trade marks, service marks, service or trade names, logos, and other designations of biNu and its related bodies corporate that we may make available to you in connection with this Agreement or the biNu Services.
“biNu Materials” means the Services Documentation, any content embodied in or used in connection with the implementation, operation, maintenance or provision of the biNu Services and all intellectual property rights embodied therein (and all derivative works, improvements, updates, modifications or translations thereof).
“biNu Services” means biNu’s services provided under this Agreement, as may be described from time to time in the Services Documentation.
“End User” means any individual or entity that directly or indirectly through another user accesses, uses, views, interacts with our otherwise consumes Your Services.
“Fees” means the fees and charges that you are obligated to pay to biNu for the provision of the biNu Services to you, as set out on the biNu website from time to time.
“Government Agency” means any government or any governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in Australia (whether federal, state or local) or any other part of the world.
“related body corporate” of a body corporate means a holding company of that body corporate, a subsidiary of that body corporate or a subsidiary of the holding company of that body corporate.
“Services Documentation” means the developer guides, getting started guides, user guides, quick reference guides, and other technical and operations manuals and specifications for the biNu Services, in written and electronic form, made available from time to time on biNu’s website.
“Term” means the term of this Agreement described in section 8.1.
“Your Data” means your data or content.
“Your Services” means any features, websites, applications or other portals, content, products or services that you make available or deliver using the biNu Services.
Published: 4th February, 2017
Last updated: 28th February, 2017