Standard Terms and Conditions

1.Definitions and interpretation

1.1In these Terms, unless the context otherwise requires, the following expressions have the following meanings:

1.2All references to a statutory provision shall be construed as including references to:

(a) any statutory modification, consolidation, or re-enactment;

(b) all statutory instruments or orders made pursuant to it; and

(c) any statutory provision of which it is a modification, consolidation, or re-enactment.

1.3Except where the context otherwise requires:

(a) words denoting the singular include the plural and vice versa;

(b) words denoting any gender include all genders; and

(c) words denoting persons include firms and corporations and vice versa.

1.4Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase, or term preceding those terms.

1.5A reference to “$” is to Australian dollars.

2.Service Commencement

2.1The Services will commence on the Go Live Date. Subscription Fees will not be payable until the Go Live Date, unless otherwise set out in the Fee Schedule.

2.2We will provide the Services with effect from the Go Live Date and on a continuous basis for the Term, subject to the remaining provisions of this Agreement.

2.3Registration of this account will occur through Your Bad Bilby representative.

3.Nature and variation of the Services

3.1The available Services and their features are intended to evolve over time based on factors such as feedback, and new data sets which Bad Bilby source and include as available data to all users.

3.2We may add to or remove the available Services from time to time. If you have paid in advance for a removed Service we will refund any unused portion of Subscription Fees paid for the Services. We will give You at least 90 days’ written notice of any material removal of, or reduction in, Services. During the Initial Term, We will not remove or materially reduce the core functionality of the Bad Bilby Platform in a way that would prevent Your continued productive use of the Services, except where required by law or where a third-party dependency ceases as contemplated by clause 11.4(a).

Where a removal occurs during the Term, We will:

(a) provide reasonable transition assistance as set out in clause 11.9(b); and

(b) refund any prepaid but unused Subscription Fees for the removed Service.

3.3We will use commercially reasonable efforts to make the Bad Bilby Platform available with a target monthly availability of 99% measured as a percentage of total minutes in a calendar month. The availability target excludes:

(a) scheduled maintenance, for which We will provide reasonable advance notice and which will generally be performed outside Australian business hours;

(b) emergency maintenance necessary to preserve the security, integrity or operability of the Platform;

(c) unavailability caused by factors outside Our reasonable control (including failure of public internet, Your own systems or third-party services that are not Our sub-processors); and

(d) any period during which Your access is suspended in accordance with this Agreement.

3.4We may make changes to operational aspects for the Services such as how You access the Services or reset Your password.

3.5We will provide reasonable technical support in respect of the Services during Australian business hours on Business Days via email and other channels notified by Us from time to time. We will use reasonable efforts to respond to support enquiries within one Business Day.

3.6The Services incorporate artificial intelligence and machine learning capabilities, including large language models provided by third-party suppliers. You acknowledge that:

(a) outputs generated by such capabilities (Outputs) are probabilistic and may contain errors, omissions, inaccuracies or unexpected results;

(b) Outputs must not be relied upon as the sole basis for material commercial, financial, legal, regulatory, safety or operational decisions without independent human review and verification; and

(c) We do not warrant the accuracy, completeness or fitness for purpose of any Output.

4.Fees and invoicing

4.1Unless otherwise agreed:

(a) the amounts payable for the Services are as set out in the Fee Schedule;

(b) Subscription Fees will be charged for the Services on an ongoing basis;

(c) Set-up Fees are payable in advance; and

(d) once a Service has been set-up, any Set-up Fees paid for that Service is non-refundable.

4.2Unless expressly stated otherwise, all amounts payable under these Terms are expressed exclusive of all applicable Taxes.

4.3If GST or any other Tax is payable as a consequence of any supply made (or deemed to be made) by one Party to the other in connection with the Agreement, the Party receiving the supply must pay to the Party making the supply an amount equal to the Tax payable in respect of the supply, in addition to the price, or other consideration (if any) required to be paid.

4.4We will issue invoices using the relevant Contact Details provided by you.

4.5We may use third party service providers to process payments including payments made by credit card. Any terms applying to those third parties including their privacy practices will be identified on the registration page in the payment details section.

5.Use of Services and Your responsibilities

5.1You must ensure that each User only accesses and uses the Services as permitted under the Agreement.

5.2You are responsible for all access to and use of the Services made using the username, passwords and other login details associated with Your account for the Services.

5.3You are responsible for maintaining Your internet access, IT infrastructure and all other technology, communications, social media accounts and other matters needed in order for You to access and use the Services.

5.4You must ensure that the Services are only accessed and used in relation to your business and for no other purpose. This right is non-transferable.

5.5You must ensure that the Contact Details and all other details We hold about You are correct, complete and up-to-date.

5.6You warrant that You have all necessary rights, licences and consents to upload Source Data to the Bad Bilby Platform, and that Our use of Source Data in accordance with this Agreement will not infringe any third party rights or breach any applicable law.

5.7You must ensure that all usernames and passwords used to access the Services are kept secure and confidential. You must immediately notify Us of any unauthorised use of Your passwords or any other breach of security.

5.8You must ensure that all access and use of the Services, does not:

(a) undermine or attempt to undermine the security or integrity of the Bad Bilby platform or, where the Services are hosted by a third party, that third party’s computing systems;

(b) misuse or use or attempt to misuse or use the Services in any way which may impair the functionality of the Services;

(c) gain or attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access; or

(d) modify, copy, adapt, reproduce or reverse engineer any computer programs used to deliver the Services or attempt to do any such activity;

(f) use the Services for any high-risk application where errors or failures could lead to death, personal injury, severe property damage, or material harm, including medical, life-safety, emergency response, or regulated financial advice contexts, without appropriate human oversight;

(h) breach any applicable law, including laws relating to sanctions, export controls, privacy, or unlawful discrimination; or

5.9You are responsible for reviewing, verifying and determining the appropriateness of any Output for Your intended use. You acknowledge the matters set out in clause 3.6.

5.10You warrant that You will not upload Personal Information, health information, or other regulated or sensitive data to the Bad Bilby Platform without Our prior written agreement. Where the Parties agree to processing of Personal Information, the Parties will execute a separate data processing addendum before any such processing commences.

6.Confidentiality

6.1Each Party (Recipient) must keep the Confidential Information of the other Party (Discloser) confidential, must not use Confidential Information except for the purposes of exercising its rights or performing its obligations under this Agreement, and must not disclose Confidential Information to any third party except to its personnel, professional advisers, and contractors on a need-to-know basis where that person is bound by confidentiality obligations substantially equivalent to those in this clause 6.

6.2The obligations in this clause 6 survive expiry or termination of this Agreement for a period of five years, or indefinitely in respect of Confidential Information constituting a trade secret.

6.3A Recipient may disclose Confidential Information to the extent required by law, regulation, or order of a court or regulator, provided that (where permitted) the Recipient gives the Discloser reasonable prior notice and a reasonable opportunity to seek protective relief.

6.4On termination of this Agreement, or on reasonable written request, each Recipient must return or destroy Confidential Information of the Discloser in its possession or control, other than copies (a) retained for legal, regulatory or bona fide record-keeping purposes, or (b) held in automated back-up systems in the ordinary course, provided that in each case the confidentiality obligations in this clause 6 continue to apply.

7.Privacy and Security

7.1We maintain a privacy policy (available at [insert URL]) which sets out Our general practices for handling personal information.

7.2We will implement and maintain reasonable technical and organisational security measures appropriate to the nature of the Source Data, designed to protect against unauthorised access, loss, alteration or disclosure of Source Data. These measures include encryption of data in transit and at rest, role-based access controls adhering to the principle of least access, firewalls, anti virus and malware, two factor authentication, discrete databsases for each Pod owner with row level security, regular backups, logging, and regular review of Our security practices.

7.3Source Data will be hosted in Australia. We may use third party sub-processors (including infrastructure, analytics and AI model providers) to support provision of the Services. A current list of material sub-processors will be made available to You on reasonable request.

7.4We will notify You without undue delay, and in any event within 72 hours, after We become aware of a Security Incident affecting Your Source Data. We will provide reasonable information about the incident and reasonable assistance to You in connection with any obligations You may have under the Privacy Act 1988 (Cth) or other applicable law.

8.Intellectual Property Rights

8.1All Intellectual Property Rights in the Services, the Bad Bilby Platform and any documentation relating to the Services remain the property of Us or Our licensors.

8.2You retain all Intellectual Property Rights You have in in the Source Data.

8.3You grant Us a non-exclusive, royalty-free, worldwide licence to use, copy, transmit, store and back-up the Source Data and Configuration for the sole purpose of providing You with the Services and enabling You to access and use the Services as contemplated by the Agreement.

8.4You warrant that all Source Data You provide to Us may be used as contemplated in clause 8.3 and that such use will not infringe the rights of any third party. You indemnify Us for all losses and costs We incur as a result of any claim made against Us by a third party that use of Your Source Data as contemplated by the Agreement infringes the third party’s rights.

8.7If You provide Us with feedback, suggestions or ideas about the Services (Feedback), You grant Us a perpetual, irrevocable, royalty-free, worldwide licence to use and develop the Feedback without restriction. We are not obliged to use any Feedback.

9.Liability

9.1Whilst We shall use all reasonable endeavours to ensure that all Services are free from viruses and errors, We provide no guarantee that they will be free from such defects.

9.2Subject to clauses 9.3 and 9.4, Our aggregate liability to You in contract, tort (including negligence), statute, or otherwise arising under or in connection with the Agreement is capped for all claims in any 12 month period at the greater of: (a) the total Subscription Fees paid by You to Us in the 12 months immediately preceding the first event giving rise to the claim

9.3Subject to clause 9.4, We exclude all liability to You in contract, tort (including negligence), statute, or otherwise arising under or in connection with the Agreement for loss of income or revenue; loss or interruption of business; loss of up time; loss of profits; third party claims; loss of or damage to software; loss of data (except to the extent caused by Our breach of clause 7); loss due to the introduction of a computer virus or other malware; loss of anticipated savings; loss of goodwill; loss of traffic; or any liability for any indirect or consequential loss or damage incurred by You in connection with the Services; or any other indirect or consequential loss or damage, however arising.

9.5The limitations on Our liability contained in the Agreement are made to the full extent permitted by law. Nothing in the Agreement restricts the effect of warranties or conditions which may be implied by law or any other rights or remedies which cannot be excluded, restricted or modified. Subject to those laws, to the extent to which We are entitled to do so, Our liability under such implied conditions or warranties or other rights or remedies, shall be limited at its option to:

(a) the supplying of the services again; or

(b) the payment of the cost of having the services supplied again.

10.Variation of Terms

10.1Except as expressly permitted by this Agreement (including clauses 3.2, 4.8 and 10.2), no variation of this Agreement is effective unless agreed in writing signed by both Parties.

10.2We may by notice to You vary this Agreement unilaterally only to the extent the variation:

(a) relates to operational or technical matters and is not materially adverse to You;

(b) is necessary to comply with applicable law or the requirements of a regulator; or

(c) updates Our privacy policy.

Any variation under this clause 10.2 will take effect not less than 30 days after notice, and where the variation is material and adverse to You, You may terminate this Agreement on written notice within 30 days of receipt of the variation notice, with a refund of prepaid but unused Subscription Fees.

11.Term, renewal and termination

11.1This Agreement commences on the date of execution and, unless terminated earlier in accordance with its terms, continues for the Initial Term. At the end of the Initial Term, and at the end of each Renewal Term, this Agreement will automatically renew for successive Renewal Terms of 12 months unless either Party gives written notice of non-renewal at least 60 days before the end of the then-current Term.

11.2On expiry of this Agreement (whether at the end of the Initial Term or any Renewal Term), Your access to the Services will cease in accordance with clause 11.9.

11.3If We vary the Agreement under clause 10.2 and that variation takes effect before Your paid up subscription period expires, You may by written notice to Us elect to cancel Your subscription for the Services at any time before the variation takes effect.

11.4We may terminate this Agreement:

(a) by giving You not less than 90 days’ notice if a third party upon which Services depends ceases to support the underlying platform or basis for the Services, or materially changes their commercial terms such that continued provision is not commercially viable; and

(b) after the Initial Term, by giving You not less than 180 days’ written notice.

11.5Either Party may terminate this Agreement immediately by notice to the other Party if the other Party: (a) commits a material breach of this Agreement that is incapable of remedy, or that is capable of remedy and is not remedied within 30 days of receiving written notice requiring remedy; or (b) becomes insolvent or is the subject of an insolvency event.

11.6We may suspend immediately by giving notice to You if You:

(a) have failed to pay fees when due and have not remedied the non-payment within 14 days of written notice;

(b) breach the Agreement and fail to remedy that breach within 14 days of receiving notice from Us to do so (where the breach is capable of remedy);

(c) become insolvent or otherwise unable to pay Your debts when due or You cease to carry on business; or

(d) breach clause 5.8 (Acceptable Use) in a manner that presents a material risk to Us or to any third party.

11.7Our suspension under clause 11.6 does not take away Our right to terminate this Agreement. In the suspension notice We will specify what You must do to have the suspension lifted and the deadline to do so. If You do not comply with this notice, We may exercise Our right to terminate this Agreement.

11.8Unless agreed otherwise, if this Agreement is terminated, You are not entitled to a refund of any Set-up Fee. On early termination by You for Our material breach under clause 11.5, or by Us under clause 11.4(a), We will refund prepaid but unused Subscription Fees for any period after the termination date.

11.9On expiry or termination of this Agreement, We will:

(a) repay You any unused portion of the Subscription Fees You have paid. However, if cancellation is under clauses 11.6 or 11.4(c), We may deduct from that amount any amount We are owed by You and pay You the remainder; and

(b) make available to You, for a period of 30 days following the termination or expiry date, a machine-readable export of Your Source Data and Configuration in a commercially reasonable format, and provide reasonable transition assistance of up to 10 hours at no additional charge. Further transition assistance is available on a time-and-materials basis at Our then-current rates. Following the 30 day period, We may delete Your Source Data and Configuration, subject to clause 6.4.

11.10The following clauses survive expiry or termination of this Agreement, together with any clause that by its nature is intended to survive: 1 (Definitions), 6 (Confidentiality), 8 (Intellectual Property), 9 (Liability), 11.8 to 11.10, 16 (Entire Agreement), 19 (Dispute Resolution), and 21 (Governing Law).

12.Force Majeure

12.1Neither We nor You shall be liable for any failure to, or delay in, performing Ours or Your respective obligations under the Agreement where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: civil unrest, fire, flood, storms, earthquakes, pandemics, acts of terrorism, acts of war, governmental action, or any other event that is beyond the reasonable control of the Party in question.

13.No Waiver

No failure or delay by either Party in exercising any of its rights under the Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of the Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.

14.Further Assurance

Each Party shall execute all such further deeds and documents and do all such further things as may be necessary to carry the provisions of the Agreement into full force and effect.

15.Costs

Subject to any provisions to the contrary, each Party to the Agreement shall pay its own costs of, and incidental to, the negotiation, preparation, execution, and carrying into effect of the Agreement.

16.Entire Agreement

16.1The Agreement contains the entire understanding between the Parties as to its subject matter and supersedes and excludes all prior and other discussions, specifications, representations, communications and arrangements relating to the Services including, but not limited to, those relating to performance or results that ought be expected from Services, other than any non-disclosure or confidentiality agreement previously entered into between the Parties, which continues in force in accordance with its terms.

16.2Each Party acknowledges that, in entering into the Agreement, it does not rely on any representation, warranty, or other provision except as expressly provided in the Agreement, and all conditions, warranties, or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

17.Severance

In the event that one or more of the provisions of the Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) shall be deemed to be severed from the remainder of the Agreement. The remainder of the Agreement shall be valid and enforceable.

18.Assignment and change of control

18.1Neither Party may assign, novate or transfer this Agreement, or any of its rights or obligations under it, without the prior written consent of the other Party, such consent not to be unreasonably withheld, conditioned or delayed.

18.2Despite clause 18.1, either Party may assign or novate this Agreement, on written notice to the other Party, to: (a) an affiliate; or (b) a successor in a bona fide change of control, merger, or sale of substantially all of the Party’s assets, provided that the assignee is not a direct competitor of the other Party.

18.3This Agreement binds the Parties and their respective successors and permitted assigns.

19.Complaints and Dispute Resolution

19.1Any complaints made about the Services or a dispute relating to the Agreement should be addressed to the “Customer Service Manager” in writing, by email to [customer service email to be inserted] or by post to the address for Us specified above.

19.2If You are not satisfied by Our response, the Parties shall attempt to resolve any dispute arising out of or relating to the Agreement through negotiations directly or between their appointed representatives who have the authority to settle such disputes. If such negotiations do not resolve the matter within thirty (30) Business Days of receipt of a written invitation to negotiate, the Parties will attempt to resolve the dispute in good faith through an agreed alternative dispute resolution procedure.

19.3Nothing in this clause shall prohibit either Party or its affiliates from applying to a court for interim injunctive relief.

20.Notices

20.1All notices given by Us may be given by email to the address notified by You to Us. It is Your obligation to keep that email address current and correct. A notice sent by email is deemed received on the next Business Day after sending, unless the sender receives an automated delivery failure notification.

20.2Unless otherwise stated, notices given by You must be delivered to Us in writing or email.

21.Governing Law

The Agreement is governed by the laws of the State of New South Wales and each Party submits to the exclusive jurisdiction of the courts of that State.