Bit Leave Pty Ltd (ACN 658 677 108)
Background
These General Terms set out the terms under which Bit Leave provides, and the Client procures, either or both of SaaS Services and Professional Services, each as agreed in an Order or Statement of Work.
Operative provisions
1. Definitions and interpretation
1.1 Definitions
Unless the contrary intention appears, the following words in these General Terms have these meanings:
Assumptions means the assumptions set out in an applicable Order or Statement of Work.
Australian Consumer Law means all applicable laws, regulations or codes protecting consumers, including but not limited to the Competition and Consumer Act 2010 (Cth).
Beneficiary means:(a) the entity named as such in the Order or Statement of Work; or(b) if no entity is named as the "Beneficiary" in the Order or Statement of Work, the Client.
Business Day means a weekday other than a public holiday in New South Wales, Australia.
Claim means any claim, notice, demand, action, proceeding, litigation, prosecution, arbitration, investigation, judgment, award however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a party to this document.
Client means the entity named as such in the Order or Statement of Work.Cloud Host has the meaning given in clause 6.2(a).
Confidential Information means information of or provided by a party whether before or after the date of the Contract, that is by its nature confidential information; is designated by that party as confidential; or that the other party knows or ought to know is confidential, but does not include information which is or becomes, without a breach of confidentiality, public knowledge.
Contract has the meaning given in clause 2.1(c) and 2.2(c).
Contract Year means each successive 12-month period from the commencement of a Contract.
CPI means the Australian consumer price index (all groups, Sydney) as published by the Australian Bureau of Statistics or, if that index ceases to be published, a replacement index reasonably selected by Bit Leave.
Deliverables means the results and outputs of the Services, including any reports referred to in the Services.
Documentation means specifications and user guides relating to the SaaS Services which Bit Leave makes available from time to time.
End User means any of the Client's Personnel, Beneficiary's Personnel or other third parties permitted by the Client to access and use the SaaS Services.
Expenses means all travel, accommodation, and other third party costs reasonably incurred by Bit Leave in connection with a Contract.
Fees means the amount specified in the Order or Statement of Work as being payable for the Services.
Force Majeure Event means an event that is beyond the reasonable control of a party; which materially affects the performance of any of the party's obligations under the Contract; and which could not reasonably have been foreseen or prevented.
General Terms means the terms and conditions contained within this document, including any amendments and restatements.
Intellectual Property Rights means all copyright, trade mark, design, patent, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of the Contract both in Australia and throughout the world.
IPR Claim has the meaning given in clause 4.10(a).
Liabilities means all liabilities, debts, obligations, interest, fees, penalties, fines, assessments, forfeiture and expenses of whatever description (whether actual, contingent or prospective).
Loss means any loss, damage, cost or expense, including in respect of any Claim or Liability and including legal fees and disbursements and the costs of investigation, litigation, settlement, judgment, interest and penalties.
Material means tangible and intangible information, documents, reports, software (including source and object code), inventions, data and other materials in any media whatsoever owned or licensed by a party, whether existing now or created, written, developed or otherwise brought into existence by or on behalf of a party in the course of the Contract, and, in the case of:
(a) the Client, includes the Source Data and Rules; and
(b) Bit Leave, includes the Deliverables and Rules Schedule.
Order means the order setting out the SaaS Services which the Client agrees to procure, and Bit Leave agree to provide to the Client, as further described in clause 2.2.
Payment Terms has the meaning given it in the Order or Statement of Work.
Personal Information has the meaning given in the Privacy Act 1988 (Cth).
Personnel in respect of a party, means that party's officers, employees, contractors (including subcontractors) and agents.
Privacy Laws means all applicable laws, regulations or code protecting individuals' privacy, including but not limited to the Privacy Act 1988 (Cth) and the Australian Privacy Principles in Schedule 1 of that Act.
Professional Services means the professional or consulting services which Bit Leave has agreed to provide the Client under a Contract.
Reporting Period has the meaning given in the Order or Statement of Work.
Related Entities has the meaning given to it in the Corporations Act 2001 (Cth).
Rules means the instructions, parameters, rules, assumptions and similar information, which the Client provides (or procures the provision of) to Bit Leave.
Rules Schedule has the meaning given in clause 5(a)(i).
SaaS Services means the software-as-a-service service which Bit Leave has agreed to provide the Client under a Contract.
Services means the SaaS Services and Professional Services, as applicable.
Security Breach has the meaning given in clause 6.2(f).
Source Data means the data supplied by or on behalf of the Client and/or Beneficiary, in respect of which the Services are to be performed, under a Contract.
Statement of Work or SOW means the document setting out the Professional Services and/or SaaS Services which the Client agrees to procure, and Bit Leave agrees to provide, as further described in clause 2.1.
Term, in respect of a Contract, means the term set out in the applicable Order or Statement of Work.
Third Party Licence Terms means the terms and conditions on which the licensor of a Third Party Product makes it available.
Third Party Products means the products listed as such in the Order, Statement of Work or Documentation, and which may include open source software.
User Account means an End User account associated with a unique user name and password, through which the End User may access and use the SaaS Services, as permitted under the Contract.
Variation Order has the meaning given in clause 11(a).
1.2 Interpretation
In these General Terms, unless the contrary intention appears, the following rules of interpretation apply:
(A) (singular and plural) words in the singular includes the plural (and vice versa);
(B) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(C) (person) a reference to "person" includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity
(D) (party) a reference to a party includes that party's executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(E) (document) a reference to a document (including these General Terms) is to that document as varied, novated, ratified or replaced from time to time;
(F) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(G) (includes) the word "includes"" and similar words in any form is not a word of limitation;
(H) (time of day) a reference to time is a reference to time in Sydney, Australia; and
(I) (adverse interpretation) no provision of these General Terms will be interpreted adversely to a party because that party was responsible for the preparation of these General Terms or that provision.
1.3 References to "Client" and "Beneficiary"
Under these General Terms:
(A) the Client may procure Services from Bit Leave, for the Client's own benefit. This includes, for example, the Client procuring Services in respect of the Client's own business, or the business(es) of the Client's Related Entities, or some other entity in which the Client has an interest or prospective interest. In this situation, the "Client" and "Beneficiary" under these General Terms is intended to refer to the same entity (as indicated in the SOW); and
(B) a Client may procure Services from Bit Leave, for the ultimate benefit of another entity. This includes, for example, where the Client is a law firm and it is procuring Services as part of its own provision of legal services to its own client. In this situation:
(i) the "Client" is intended to refer to the entity procuring Services from Bit Leave (in the previous example, the law firm). The Contract is between Bit Leave and the Client; and
(ii) the "Beneficiary" is intended to refer to the entity to whom the Client is providing its services (in the previous example, the law firm's client). No legal relationship exists between Bit Leave and the Beneficiary, other than as expressly agreed between Bit Leave and the Beneficiary, each as indicated in the SOW.2.
Statements of Work and Orders
2.1 Statements of Work
(A) From time to time, the parties may agree a statement of work in the form specified by Bit Leave (Statement of Work).
(B) The purpose of the Statement of Work is to set out the Professional Services and/or SaaS Services that the Client has agreed to procure, and that Bit Leave has agreed to provide.
(C) Upon execution of the Statement of Work by both parties, a binding contract between the Client and Bit Leave consisting of these General Terms, the Statement of Work and any documents attached to the Statement of Work (Contract) will come into existence.
(D) To the extent of any inconsistency between a Statement of Work and these General Terms, the Statement of Work will take precedence.
2.2 Orders
(A) From time to time, the Client may request that Bit Leave provides it with SaaS Services by completing and submitting an order, in the form specified by Bit Leave (Order).
(B) The purpose of the Order is to set out the SaaS Services that the Client has agreed to procure, and that Bit Leave has agreed to provide.
(C) Upon acceptance of an Order by Bit Leave, a binding contract between the Client and Bit Leave consisting of these General Terms, the Order and any documents attached to the Order (also, a Contract) will come into existence.
(D) To the extent of any inconsistency between an Order and the terms of these General Terms, the Order will take precedence.
3. Professional Services
3.1 Application
This clause applies where the parties enter into a Contract for Professional Services.
3.2 Provision of Professional Services
Bit Leave will provide Professional Services to the Client pursuant to the Contract. The Professional Services are those services expressly described as such in the relevant Statement of Work, and exclude anything not expressly described in the Statement of Work, or described as an exclusion in the Statement of Work.
3.3 Timing
(A) Bit Leave will use reasonable endeavours to provide the Professional Services within any time frames set out in a Statement of Work or, if no time frames are set out, within a reasonable time.
(B) If the Client or a Beneficiary causes Bit Leave any delay in providing the Professional Services, including as contemplated in clause 8, then in addition to being relieved of its obligation to provide the Professional Services (for a period reflecting the delay caused by the Client or Beneficiary), Bit Leave may also charge the Client for Bit Leave’s reasonable costs incurred as a result.
4. SaaS Services
4.1 Application
This clause applies where the parties enter into a Contract for SaaS Services.
4.2 Provision of SaaS Services
Bit Leave will make the SaaS Services available to the Client pursuant to, and subject to, the Contract, during the Term.
4.3 Licence to access the SaaS Services
(A) Bit Leave owns all rights, titles and interests, including all Intellectual Property Rights, in and to the SaaS Services and Documentation, and any other materials provided by Bit Leave to the Client (and its End Users) through the provision of the SaaS Services. This includes all improvements, enhancements, and modifications to, and derivative works of, any of the foregoing.
(B) In consideration of the Fees and subject to the Client's (and its End Users') ongoing compliance with the Contract, Bit Leave grants to the Client a limited, non-exclusive, non-transferable right for the Client and its End Users to access and use the SaaS Services and Documentation during the Term, for the Beneficiary's internal business purposes. The Client and its End Users may only access and use the SaaS Services through the URL designated by Bit Leave and only with valid User Accounts granted to the Client and its End Users by the Client. The Client has no right to receive a copy of or install the SaaS Services (or any of the underlying software that comprises the SaaS Services).
4.4 Documentation
The Documentation sets out further information relating to the provision of the SaaS Services. Bit Leave may update the Documentation from time to time.
4.5 Support
The SaaS Services include support services as set out in the Documentation. Where the Documentation sets out service levels applicable to the support services, Bit Leave will use reasonable endeavours to provide the Services in accordance with those service levels.
4.6 Updating the SaaS Services
Bit Leave may change the SaaS Services from time to time. If Bit Leave makes a material change to the SaaS Services, it will inform the Client. If the changes have a materially detrimental effect on the functionality of the SaaS Services, the Client may terminate the relevant Contract by notifying Bit Leave in writing accordingly at any time during the 30-day period after such changes have been made.
4.7 End Users
(A) The Client will ensure that its End Users comply with the Client's obligations under the Contract, and the Client is responsible for its End Users' acts and omissions as if they were those of the Client.
(B) The Client is responsible for protecting the confidentiality of the passwords and other details used to access its User Accounts. Bit Leave may cancel a User Account if its credentials are used by a person other than the relevant End User. The Client is responsible for any use of the SaaS Services through the Client's User Account(s). The Client must not permit, authorise or enable anyone other than its End Users to access the SaaS Services through its User Account.
(C) The Client will promptly notify Bit Leave in writing if:
(i) any changes to its End Users' access rights or permissions are required;
(ii) the Client becomes aware that the confidentiality of the details used to access its User Accounts or passwords is compromised, or
(iii) the Client becomes aware of any unauthorised use of the SaaS Services.(D) The Client may not license or transfer its rights in relation to the SaaS Services.
4.8 Acceptable use
The Client will not and will ensure that its End Users will not:
(A) use the SaaS Services for any purpose that is not permitted by the Contract;
(B) infringe Bit Leave's or its licensors Intellectual Property Rights;
(C) decompile, decipher, disassemble, reverse engineer or otherwise decrypt the SaaS Services or any underlying software except to the extent permitted by non-excludable laws;
(D) use the SaaS Services to provide services to a third party (other than the Beneficiary) or allow any third party (other than the Beneficiary) to access or use the SaaS Services in any way not expressly agreed in writing by Bit Leave in advance;
(E) integrate or interoperate the SaaS Services with other software, hardware or data used or licensed by the Client without obtaining any necessary permits, consents or licences required;
(F) modify or create a derivative work from the SaaS Services;
(G) use the SaaS Services in a way prohibited by law;
(H) copy the SaaS Services, or frame, scrape, store, publish, transmit or distribute the SaaS Services, in a manner that is inconsistent with the Contract;
(I) use or refer to the SaaS Services in developing any goods or services that compete with the goods or services provided by Bit Leave;
(J) use the SaaS Services to spam or distribute malware, for any offensive, harassing, fraudulent or defamatory purpose, or to violate the rights of others;
(K) upload any material to the SaaS Services which contains any viruses or other harmful code;
(L) use the SaaS Services to try to gain unauthorised access to or disrupt any service, device, data, account or network, or in a way that could harm the SaaS Services or impair anyone else's use of them;
(M) breach or attempt to bypass any security measures of the SaaS Services, including in relation to any penetration or security testing (or by authorising or directing anyone to do the same);
(N) remove, obscure or modify any trade marks, copyright notices or disclaimers as they appear in the SaaS Services; or
(O) disrupt or interfere with the SaaS Services, the systems and infrastructure that Bit Leave uses to provide the SaaS Services, or any other users of the SaaS Services.
4.9 Suspension
Bit Leave may suspend the use of or access to the SaaS Services (including to User Accounts) from time to time:
(A) to perform routine or emergency maintenance;
(B) to implement service changes and upgrades to the SaaS Services;
(C) if it reasonably believes that the Client's or its End User's use of the SaaS Services could adversely impact other clients' or their end users' use of the SaaS Services or the hosting environment, such as the servers used to provide the SaaS Services;
(D) if there is suspected unauthorised third party access to the SaaS Services;
(E) if it reasonably believes that suspension is required to comply with applicable law;
(F) if it becomes aware of any actual or potential IPR Claim;
(G) to mitigate issues caused by any acts or omissions of third parties or issues with any internet infrastructure; or
(H) if the Client is in breach of the Contract, or if the SaaS Services are, in Bit Leave's opinion, being misused.
Bit Leave will use its reasonable endeavours to limit any such suspension to the minimum extent necessary in the circumstances.
4.10 Intellectual property indemnity
(A) Bit Leave will defend any claims against the Client alleging that the SaaS Services infringe a third party's Intellectual Property Right in Australia (“IPR Claim”) and indemnify the Client for any judgements awarded against the Client arising from an IPR Claim that will not be appealed, or any final settlement approved by Bit Leave.
(B) When Bit Leave becomes aware of any actual or potential IPR Claim, Bit Leave may at its sole discretion:
(i) modify or replace any part of the SaaS Services with functionally equivalent features and performance;
(ii) obtain rights for the Client to continue using the SaaS Services; or
(iii) terminate the relevant Contract and issue a refund for the Fees (if any) prepaid for the Services on a pro-rata basis.The Client agrees to abide by Bit Leave's decision and, if directed by Bit Leave, to stop using the SaaS Services.
(C) This indemnity is conditional on the Client:
(i) having complied with and continuing to comply with the Contract;
(ii) notifying Bit Leave promptly of any actual or threatened IPR Claim;
(iii) giving Bit Leave control of the defence and settlement of the IPR Claim;
(iv) complying with all of Bit Leave's reasonable requests in defending or settling the IPR Claim;
(v) taking all reasonable steps to mitigate the amount of the Client's loss; and
(vi) except with Bit Leave's prior written consent, not making any admission or acting in a way that may be prejudicial to any litigation or negotiation of the IPR Claim.
(D) This indemnity does not cover IPR Claims arising from:
(i) the combination of the SaaS Services with products or services not provided by Bit Leave;
(ii) modification of or work performed on the SaaS Services by any person other than Bit Leave;
(iii) the Client's breach of the Contract; or
(iv) Third Party Products.
4.11 No sensitive information to be stored
The Client must not use the SaaS Services to collect, store, process or otherwise deal with any sensitive personal information, including any:
(A) debit or other payment card data subject to the Payment Card Industry Data Security Standards (PCI DSS);
(B) patient, medical or other health information; or
(C) any information that is “sensitive information” under the Privacy Act 1988 (Cth).
5. Rules and Rules Schedule
(A) The Client will provide, or procure the provision of, the Rules to Bit Leave, based on the instruments listed in the Order or Statement of Work, by the following process:
(i) in the case of Professional Services, the Client will complete, or procure the completion of, a form provided by Bit Leave (for example, a Microsoft Excel document) that sets out the Rules. Bit Leave will assist the Client to complete, or procure the completion of, this form so that it may be processed by Bit Leave's platform. Where the Client is a different entity from the Beneficiary, the Client will be responsible for obtaining the Beneficiary's approval and providing relevant feedback to Bit Leave. Once approved, this document will comprise the Rules Schedule; and
(ii) in the case of SaaS Services, the Client will instruct Bit Leave of the Rules. This may include completing a Rules Schedule (following the same process in paragraph clause 5(a)(i)).or by such other process provided for in a Statement of Work or Order, or notified by Bit Leave from time to time.
(B) The Client acknowledges and agrees that Bit Leave cannot provide the Services until the Rules have been provided, and, if applicable, the Rules Schedule has been approved.
(C) Once provided or approved, the Rules and, if applicable, Rules Schedule may only be changed in accordance with clause 11, even if there is a change in any law, or a change to any applicable awards, enterprise agreements or other applicable instruments.
(D) The Services will be provided based on the Rules Schedule or, if no Rules Schedule applies, on the Rules provided by the Client in accordance with this clause 5. Bit Leave does not verify that the Rules or Rules Schedule is consistent or complies with any specific legislative or regulatory obligations of the Client or Beneficiary, or any contracts (including individual flexibility arrangements).
(E) The Client expressly acknowledges that Bit Leave is not providing legal, tax or any other advice. Any reliance placed on the Deliverables or outputs of the Services is entirely at the risk of the Client and the Beneficiary. Except to the extent that Bit Leave has not correctly applied the Rules Schedule (of if no Rules Schedule applies, the Rules provided by the Client in accordance with this clause 5) to the Source Data:
(i) the Client irrevocably releases Bit Leave from any and all Liability associated with any reliance placed on the Deliverables or outputs of the Services (whether by the Client, the Beneficiary or a third party), whether such liability arises in contract, tort (including negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis; and
(ii) the Client indemnifies Bit Leave from and against any Loss suffered by Bit Leave in connection with a Claim by the Client, the Beneficiary or any third party which is based on the Client's, the Beneficiary's or any third party's reliance on the Deliverables or outputs of the Services.
6. Source Data6.1 Source Data
(A) Bit Leave does not acquire ownership of any Source Data. The Client grants (or must procure the grant to) Bit Leave and its Personnel the right to use, store and modify the Source Data in connection with the provision of the Services.
(B) The Client will provide (or procure the provision of) the Source Data so that it is available at the times and in the format set out in the SOW, the Documentation or otherwise communicated to the Client by Bit Leave from time to time.
(C) The Client acknowledges that the SaaS Services (if applicable) are not intended to hold or maintain master or original information and agrees that Bit Leave will not be responsible for maintaining a backup of Source Data.
(D) The Client will not provide (or procure the provision of) any data to Bit Leave unless that data is reasonably required by Bit Leave to deliver the Services.
(E) Bit Leave may use Source Data on an aggregated, anonymised basis for its internal business purposes (including to analyse and improve the Services, and for research and development). No individual, Client or Beneficiary will be able to be identified in such aggregated, anonymised data.
(F) Bit Leave is not responsible for:
(i) any error or omissions in the Source Data; or
(ii) any errors in the Deliverables or outputs of the Services resulting from any errors or omissions in the Source Data, including where Bit Leave provides any data validation support services as part of the Professional Services.
The Client acknowledges and agrees that the Deliverables are dependent upon the quality of Source Data and the Services may need to be reperformed if the Source Data contains errors or omissions, and such reperformance may be at additional cost.
6.2 Hosting Source DataTo the extent Bit Leave hosts Source Data in relation to either the Professional Services or the SaaS Services:
(A) the Client acknowledges that Source Data may be hosted by Bit Leave's third party hosting provider(s) (each a Cloud Host) who may, in turn, provide the Source Data to their contractors, in order to provide the relevant hosting services. Bit Leave will only use a Cloud Host which it believes to be reliable and reputable;
(B) Bit Leave will ensure that it only uses Cloud Hosts who store data inside Australia to store Source Data, however, there may be circumstances in which Bit Leave, the Cloud Host and each of their respective Personnel access Source Data from outside those locations. Any such access or use will otherwise comply with the requirements of the Contract;
(C) Bit Leave will not be liable for a failure to comply with the Contract or any Loss arising from an act or omission of a Cloud Host or their contractors, except where (and to the extent) the Cloud Host is similarly liable to Bit Leave for that act or omission.
(D) Bit Leave will use its best efforts to establish and maintain appropriate safety and security procedures and safeguards against the unauthorised use, destruction, loss or alteration of that Source Data;
(E) Bit Leave cannot guarantee that there will never be unauthorised use, destruction, loss, damage or alteration to that Source Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference; and
(F) Bit Leave will notify the Client promptly after Bit Leave learns of any actual or suspected loss, misappropriation or unauthorised access to, or disclosure or use of that Source Data (Security Breach). Bit Leave will promptly investigate each actual or suspected Security Breach and provide reasonable updates to the Client in connection with that investigation.
7. Services for the benefit of a Beneficiary
7.1 Services
Where an Order or Statement of Work expressly states that the Beneficiary is a different entity from the Client, then:
(A) the Client must not use those Services or any Deliverables for the benefit of any person (including itself), other than the Beneficiary; and
(B) the Client remains solely liable for its obligations under the Contract, including the payment of all amounts under clause 10.
7.2 Legal Professional Privilege
(A) Bit Leave acknowledges that the Client or, if applicable, the Beneficiary may seek to claim legal professional privilege over the Deliverables and other communications between the Client, the Beneficiary and Bit Leave.
(B) Bit Leave will comply with any reasonable directions or protocols relating to the preservation of legal professional privilege which the Client notifies Bit Leave of in writing.
7.3 No relationship between Beneficiary and Bit Leave
Where an Order or Statement of Work expressly states that the Beneficiary is a different entity from the Client:
(A) the parties acknowledge and agree that no contractual relationship is created between Bit Leave and a Beneficiary as a result of the Contract (other than as expressly agreed in writing between Bit Leave and the Beneficiary);
(B) as between Bit Leave and the Client, the Client is solely responsible for:
(i) making the Beneficiary aware of the terms of the Contract that are relevant to the services that the Client is procuring for the Beneficiary (including Bit Leave's scope of work, the Assumptions and the basis on which Bit Leave charges for the Services);
(ii) ensuring the Beneficiary complies with the terms of the Contract, to the extent applicable to it; and(iii) ensuring that it performs the contractual obligations it has with its Beneficiary; and
(C) the Client must procure that the Beneficiary does not bring any Claim against Bit Leave in connection with any Services or Deliverables and the Client indemnifies Bit Leave from and against any Loss suffered by Bit Leave in connection with a Claim brought by the Beneficiary against Bit Leave, where such Claim relates or is connected to any of the Services or Deliverables.
8. Client obligations
8.1 Provide information
The Client will provide (or procure the provision of), in a timely manner, any information or instructions reasonably requested by Bit Leave in connection with the Services. Bit Leave will be entitled to rely on, and will not verify, any information or instructions provided by the Client or on its behalf.
8.2 Assumptions
(A) Bit Leave enters into Contracts and determines the Fees on the basis of the Assumptions. If any of the Assumptions proves to be inaccurate then:
(i) Bit Leave will not be liable for any failure to perform the affected Services to the extent caused by an Assumption being inaccurate; and
(ii) to the extent that the performance of the Services becomes more difficult or involves greater expense, Bit Leave may suspend the provision of the affected Services until:
(A) the Assumptions become accurate; or
(B) the parties agree a variation to the Contract in accordance with clause 11.
9. Third Party Licences
(A) The Client acknowledges that access to, and use of, the SaaS Services or Deliverables may be dependent upon the Third Party Products.
(B) Where specified in the Documentation, the Third Party Products will be made available as part of the SaaS Services. Otherwise, Bit Leave will assist the Client to procure the Third Party Product, unless otherwise agreed.
(C) The Client acknowledges and agrees that:
(i) the Client's (and its End Users') use of the Third Party Product will be subject to the Third Party Licence Terms; and
(ii) Bit Leave is not responsible for the Third Party Products (including their performance, availability and security).
10. Payments
10.1 Fees
Unless otherwise specified in an SOW, the Client must pay the Fees, Expenses and all other amounts under the Contract in accordance with the Payment Terms and, if not specified, then in accordance with any instructions on Bit Leave's invoice, and otherwise within two weeks of the date of issue of Bit Leave's invoice.
10.2 GST
Unless otherwise indicated, all amounts expressed in the Contract are exclusive of GST. In respect of all taxable supplies by Bit Leave, the Client must pay GST in addition to the amount subject to Bit Leave providing a tax invoice.
10.3 Review
At 1 July each year, Bit Leave may increase the Fees under each Contract by the greater of:
(i) the change in the CPI for the previous 12 months and
(ii) 3%.
10.4 Unpaid amounts
If an invoice is not paid, in full, in accordance with clause 10.1, Bit Leave may:
(A) suspend all or part of the Services, under that Contract or any other Contract between the parties, until the overdue amount is paid in full;
(B) charge interest on the unpaid amount at the rate not exceeding the then current cash rate target, as fixed by the Reserve Bank of Australia, plus 2 percentage points, at the date the invoice was issued, calculated daily on a compound basis; and/or
(C) under that Contract or any other Contract between the parties, require payment of all Fees in full in advance before providing the Services.
11. Variations
(A) Where:
(i) the Client proposes or requires a change (including any additions or removals) to:
(A) the Rules or Rules Schedule;
(B) any Source Data (including scope and format);
(C) the scope of Professional Services (including any timings);
(D) reporting requirements or dashboards;
(E) the instruments or nominated employees specified in an Order or Statement of Work;
(F) the Term or Reporting Period; or
(G) any other aspect of a Contract;
(ii) any of the Assumptions are not accurate; or
(iii) there is a change to any law, applicable award, enterprise agreements or other applicable instruments, then Bit Leave may issue a draft variation order setting out the required changes (and any consequential variations to the Contract), including to the Fees, Expenses, Payment Terms and any delivery schedule (Variation Order).
The Client will provide any information reasonably requested by Bit Leave to prepare the Variation Order.
This clause 11(a) does not limit the ability of the parties to seek or agree a Variation Order in any circumstance not listed in paragraphs (i) to (iii) above.
(B) A Variation Order will have no effect until agreed by the parties in writing. If the parties are unable to agree on a Variation Order, the Contract will continue unaffected.
12. Intellectual property
12.1 Material
Each party retains ownership of all of its Material and nothing in the Contract transfers ownership or assigns any Intellectual Property Rights in the Material of a party to the other party.
12.2 Licence
(A) Bit Leave grants to the Client and Beneficiary a perpetual, irrevocable, non-transferable, worldwide and royalty-free licence to use the Deliverables and Bit Leave's Material to the extent incorporated in the Deliverables, in each case for the purpose of the Client and Beneficiary accessing and using the Deliverables for the internal business purposes of the Beneficiary. For clarity, this clause 12.2(a) does not apply to the SaaS Services, Documentation or other material in respect of which clause 4.3 applies.
(B) The Client grants to Bit Leave (and its Personnel) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use and adapt the Client's Material (including the Source Data) to the extent reasonably required for Bit Leave to perform its obligations under the Contract. Where the Client is a different entity from the Beneficiary, the Client must also procure that the Beneficiary grants to Bit Leave (and its Personnel) a licence to the Client's Material that is owned or licensed by the Beneficiary, on the same terms as this clause 12.2(b).
12.3 Logo and trademarks
Provided that such use is not disparaging or misleading:
(A) and unless expressly notified otherwise by the Client, Bit Leave may use the Client's name, logo and trademarks to advertise and market that it provides services to the Client. Where the Client is a different entity from the Beneficiary, the Client must also procure that the Beneficiary grants to Bit Leave the right to use the Beneficiary's name, logo and trademarks on the same terms as this clause 12.3(a); and
(B) the Client may use, and may sublicense the Beneficiary to use, Bit Leave's name, logo and trademarks to advertise that they directly or indirectly use Bit Leave's services.
13. Confidentiality and privacy
13.1 Confidentiality
(A) Subject to clause 13.1(c), the parties undertake that they and their respective Personnel will not, without the prior written consent of the other party:
(i) disclose the Confidential Information of the other party to any person other than their Personnel or advisers (or those of the Beneficiary) in compliance with clause 13.1(b); or
(ii) use the Confidential Information of the other party for their own or a third party's benefit, other than to exercise their rights or perform their obligations under a Contract.
(B) Each party must take all reasonable steps to ensure that the Confidential Information of the other party is only disclosed to such of its Personnel or advisers (or those of the Beneficiary) as required to enable the performance of the Contract or for the party to receive the benefit of the Contract, and that in any event such Personnel, advisors and the Beneficiary are bound by an obligation of confidence in respect of that Confidential Information equivalent to that of this clause 13.
(C) If either party is requested or becomes legally compelled to disclose any of the other party's Confidential Information, that party will (subject to any regulatory restrictions) provide the other party with prompt notice so that the other party may seek such protective order or other remedy as it thinks appropriate.
13.2 Privacy
(A) Each party must:
(i) comply with the Privacy Laws when collecting, using and disclosing Personal Information under the Contract; and
(ii) only collect, use or disclose Personal Information where it is necessary for providing or receiving the services in connection with the Contract or otherwise permitted under the Contract.
(B) The Client must ensure that all necessary disclosures and consents required under Privacy Laws have been made or obtained to allow for:
(i) the disclosure of Personal Information (including that forming part of the Source Data) to Bit Leave; and
(ii) Bit Leave to access and use that Personal Information in the manner envisaged by the Contract, and, where the Client is a different entity from the Beneficiary, also procure that the Beneficiary has done so.
14. Limitation of Liability
14.1 Non-Excludable Provision
(A) All express or implied guarantees, warranties, representations, or other terms and conditions relating to the Contract or its subject matter, not contained in the Contract, are excluded from the Contract to the maximum extent permitted by law.
(B) Nothing in the Contract excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by any legislation which cannot lawfully be excluded or limited. This may include the Australian Consumer Law which contains guarantees that protect the purchasers of goods and services in certain circumstances.
(C) If any guarantee, warranty, term or condition is implied or imposed in relation to the Contract under the Australian Consumer Law or any other applicable legislation and cannot be excluded (a Non-Excludable Provision), and Bit Leave is able to limit the Client's remedy for a breach of the Non-Excludable Provision, then Bit Leave's liability for breach of the Non-Excludable Provision is limited to one or more of the following at its option:
(i) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or
(ii) in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.
14.2 Limitation
(A) Subject to its obligations under the Non-Excludable Provisions and to the maximum extent permitted by law, Bit Leave's maximum aggregate liability for all causes of action that arise in a Contract Year under or relating to a Contract or its subject matter, whether in contract, tort (including without limitation negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, is limited to an amount equal to the Fees paid by the Client under that Contract during that Contract Year.
(B) In calculating Bit Leave's aggregate liability under this clause, any amounts paid or the value of any goods or services replaced, repaired or supplied by Bit Leave for a breach of any Non-Excludable Provision will be included.
14.3 Exclusions
Subject to its obligations under the Non-Excludable Provisions and to the maximum extent permitted by law, Bit Leave is not liable for, and no measure of damages will, under any circumstances, include:
(A) special, indirect, consequential, incidental or punitive damages;
(B) liability for loss of revenue, profits, savings, goodwill, bargain or opportunities, or loss or corruption of data; and
(C) except to the extent that Bit Leave has not correctly applied the Rules Schedule (or if no Rules Schedule applies, the Rules provided by the Client in accordance with clause 5) to the Source Data, any Loss suffered by the Client or Beneficiary in placing their reliance on the Deliverables or outputs of the Services, whether in contract, tort (including negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, whether or not such Loss was foreseeable and even if advised of the possibility of the Loss.
14.4 Contribution
(A) The Client's liability for Loss will be reduced proportionately to the extent that Loss is caused or contributed to by Bit Leave or its Personnel.
(B) Bit Leave's liability for Loss will be reduced proportionately to the extent that Loss is caused or contributed to by the Client, its Personnel, its End Users or the Beneficiary.
15. Dispute resolution procedure
(A) Except in respect of applications for urgent interlocutory relief, a party must not commence proceedings in relation to a dispute under the Contract without first following the dispute resolution procedure in this clause.
(B) If a party requires resolution of a dispute, it must promptly provide written notice of the dispute to the other party, setting out full details of the dispute, including the factual and legal basis for the claim and estimates and particulars of any Loss.
(C) Within five (5) Business Days after providing notice of the dispute, each party must nominate a representative with authority to bind that party to attempt to resolve the dispute in good faith.
(D) If the dispute is not resolved within twenty Business Days after appointment of the parties' representatives then, unless otherwise agreed, either party may refer the dispute for mediation in Sydney, Australia in accordance with the Resolution Institute's mediation rules and the chair of Resolution Institute or their nominee will select the mediator. All third-party costs of the mediation will be shared equally by the parties.
16. Termination
16.1 Termination for breach
Either party may terminate the Contract in whole or in part immediately by written notice to the other if the other party is in material breach of a Contract, and:
(A) that breach is incapable of being remedied; or
(B) that breach is capable of being remedied but the other party has failed to do so within 30 days of receiving notice from the terminating party specifying the breach and requiring it to be remedied.
16.2 Termination for insolvency
The Contract may be terminated immediately by notice in writing from a party if one or more of the following events occurs in respect of the other party:
(A) any resolution or order is made or proposed in respect of that party being wound up, except for a solvent reconstruction with the first party's prior written consent;
(B) a controller, administrator, liquidator, provisional liquidator, receiver or receiver and manager or any similar official is appointed to, or takes possession or control of, it or any of its assets;
(C) it enters into, resolves, or seeks to enter into, an arrangement with any of its creditors, or any process is filed seeking approval of any such arrangement;
(D) it is insolvent, or it stops or suspends or threatens to stop or suspend the payment of all or a class of its debts or the conduct of all or a substantial part of its business; or
(E) anything having a substantially similar effect to any of the above events happens to it under the law of any jurisdiction, and, where the Client is a different entity from the Beneficiary, Bit Leave may also exercise its right to terminate a Contract under this clause 16.2 if any of the above-listed events occurs in respect of the Beneficiary.
16.3 Effect of TerminationUpon termination of the Contract:
(A) the Client must promptly pay:
(i) all Bit Leave's Fees in relation to Services already performed;
(ii) except where the Contract has been terminated by the Client for Bit Leave's breach, all Fees in relation to Services which Bit Leave would have performed had the Contract run its full Term; and
(iii) any Expenses irrevocably incurred by Bit Leave in respect of the Contract, prior to the date of termination;
(B) in the case of SaaS Services, the Client must cease using the SaaS Services;
(C) unless otherwise specified, all Third Party Licences granted under the Contract will terminate; and
(D) each party must return or destroy (at the other party's election) all Confidential Information of the other party in the party's possession or control, except to the extent a copy is required to be kept by law and subject then to an ongoing obligation of confidentiality under clause 13. And where the Client is a different entity from the Beneficiary, the Client must procure that the Beneficiary returns or destroys Bit Leave's Confidential Information in the Beneficiary's possession or control on the same terms as this clause 16.3(d).
16.4 Survival
Any provision of these General Terms which, by its nature, would reasonably be expected to apply after the termination, shall survive and be enforceable after such termination, including clauses 1, 2.1(d), 2.2(d), 4.8, 6.1(e), 6.1(f), 7, 8.2, 9(c), 10, 12.1, 12.2(a), 12.3, 13, 14, 15, 16.3, 16.4, 17, 18 and 19.
17. Force majeure
(A) If a party becomes unable, wholly or in part, to carry out an obligation under the Contract (other than an obligation to pay money) due to a Force Majeure Event, that party must:
(i) give the other party prompt written notice setting out all reasonable details of the Force Majeure Event, including the probable extent to which, and duration for which, that party will be unable to perform or be delayed in performing its obligation(s); and
(ii) use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible.
(B) Subject to compliance with clause 17(a), the relevant obligation(s) will be suspended during the Force Majeure Event to the extent affected by the Force Majeure Event.
18. Notices
18.1 Form of notice
A notice or other communication to a party under the Contract must be:
(A) in writing and in English; and
(B) sent to the party at one or more of the addresses set out in the relevant Order or Statement of Work, as otherwise notified from time to time.
18.2 How notice must be given
A notice must be given by one of the methods set out in the table below and is regarded as given and received at the time set out in the table below.
Method - When notice is regarded as given and received
By hand - On delivery
By pre paid post in the same country - On the third Business Day after the date of posting
By pre paid post in another country - On the fifth Business Day after the date of posting by airmail
By email to the nominated email address - Unless the party sending the email knows or reasonably ought to suspect that the email was not delivered, on sending.
Provided that if a notice is received after 5pm on a Business Day, it is deemed to be delivered on the next Business Day.
19. General
(A) (Governing law) The Contract is governed by the law applying in New South Wales and each party irrevocably submits to the exclusive jurisdiction of the courts of that state. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
(B) (Waiver) No party to the Contract may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
(C) (Further acts) Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to the Contract.
(D) (Severability) If any provision is found to be unenforceable, the remainder of the Contract will be enforced to the fullest extent possible.
(E) (Subcontractors) Bit Leave may use subcontractors to perform the obligations of the Contract and for the other purposes set out in the Contract. Bit Leave remains responsible for the performance of its obligations, except as set out in the Contract.
(F) (Assignment) A party cannot assign, novate or otherwise transfer any of its rights or obligations under the Contract without the prior written consent of the other party.
(G) (Entire agreement) The Contract embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of the Contract.
These Terms were last updated in December 2022
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