Terms & Conditions
End User Licence Agreement
These terms and conditions are applicable between the Client and Bite Business Pty Ltd A.C.N. 623 872 631 (“Bite”).
The parties agree as follows:
1.1 Upon acceptance of this Agreement, the Client agrees to be bound by the terms and conditions of this Agreement.
2.1 In this Agreement, unless a contrary intention appears, the definitions set out below will apply:
2.1.1 Account: means any accounts or instances created by or on behalf of the Client or Client Users within the Bite Services.
2.1.2 Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with such party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
2.1.3 Agreement: means these terms and conditions together with any ordering documents such as a Statement of Work (“SOW”).
2.1.4 Applicable Data Protection Law: includes the Privacy Act 1988 (Cth), the Data Privacy Act 2018 (UK) and the General Data Protection Regulation (EU).
2.1.5 AWS Services means Amazon Web Services used to host Bite Software as part of the Bite Services; the Client acknowledges and accepts the AWS terms defined athttps://aws.amazon.com/service-terms/.
2.1.6 Bite means Bite Business Pty Ltd A.C.N. 623 872 631.
2.1.7 Bite Group means Bite, together with all its Affiliates.
2.1.8 Bite Services means the Bite Software delivered by Bite to the Client in accordance with this Agreement and made available online by Bite via the applicable the Client login link, including, individually and collectively, the Bite Software, updates, application programming interfaces and Documentation that the Client has purchased or deployed or to which the Client has subscribed that are provided under this Agreement, excluding however Third Party Services, including without limitation, AWS Services.
2.1.9 Bite Software means object or otherwise executable code of all and any Bite Group's software products, including subsequent software releases, evaluation versions, beta versions, and associated Documentation in addition to the dedicated, secure datacentre infrastructure that will be deployed and managed by Bite to host the Client's Bite software instance for the Client's use.
2.1.10 Bite's Website meanshttps://bitehq.com.
2.1.11 Client User: means any individual (including those of the Client's Affiliates) using the Bite Services through the Client's Account as an agent and/or administrator as identified through a unique login.
2.1.12 Confidential Information: means all information disclosed by the Client to Bite or by Bite to the Client which is in tangible form and labelled “confidential” (or with a similar legend) or is information, regardless of form, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, information relating to Bite's security policies and procedures. For purposes of this Agreement, this Agreement as well as Service Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that:
(a) was already known to the receiving Party at the time of disclosure by the Disclosing Party;
(b) was or is obtained by the receiving Party from a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information;
(c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or
(d) was or is independently developed by the receiving Party without the use of the Disclosing Party's Confidential Information.
2.1.13 Currency means Australian Dollars.
2.1.14 Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Bite Services or describing Pricing Plans, as applicable, provided or made available by Bite to the Client via any channel including the Bite support portal including all user manuals, training materials, support information, technical documentation, white papers, release notes, system requirements and guidelines.
2.1.15 Fees means the fees published from time to time on Bite's Website.
2.1.16 Intellectual Property Rights means all present and future rights conferred by statute, common law and equity, in relation to copyright, trademarks, designs, patents, circuit layouts, business product and domain names, inventions and confidential information and other results in the industrial, commercial, scientific, literary or artistic fields whether or not capable of being registered or patentable.
2.1.17 Jurisdiction means Australia.
2.1.18 Malicious Software means malicious software including viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, packet bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
2.1.19 Personal Data: means any information relating to an identified or identifiable natural person where an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity, or otherwise as defined by the Applicable Data Protection Law.
2.1.20 Pricing Plan means the pricing plans available from time to time on Bite's Website.
2.1.21 Process: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
2.1.23 Support and Maintenance: means support and maintenance for the Bite Software and the associated AWS Services; Bite will:
(a) acknowledge all messages sent to Bite's service management team at firstname.lastname@example.org within two hours; and
(b) endeavour to resolve all support and maintenance queries as quickly as reasonably practicable.
2.1.24 Term means the term determined in accordance with clause 13.
2.1.25 Third Party Services: means third party products, applications, services, software, networks, systems, directories, websites, databases, key management services and information which a Bite Service links to, or which the Client may connect to or enable in conjunction with a Bite Service, including, without limitation, Third Party Services which may be integrated directly into the Client's Account by the Client or at the Client's direction; third party services include AWS Services.
3.1 The following rules apply to the interpretation of this Agreement unless the context requires otherwise:
3.1.1 headings are for convenience only and do not affect interpretation;
3.1.2 the singular includes the plural and vice versa;
3.1.3 if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
3.1.4 a reference to a party to this Agreement includes the party's successors, permitted substitutes and permitted assigns (and, where applicable, the party's legal representatives);
3.1.5 a reference to legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it.
3.1.6 a reference to an amount is in the Currency, unless otherwise indicated in this Agreement; and
3.1.7 if a party consists of more than on person or entity, the parties shall be jointly and severally liable for the obligations imposed by this Agreement.
4. SUBSCRIPTION AND SERVICES
4.1 In consideration of payment to Bite by the Client of the Fees, Bite:
4.1.1 grants the Client a non-exclusive, non-transferable subscription to use the Bite Software during the Term;
4.1.2 will provide the Bite Services via an Amazon Web Services (AWS) data centre; and
4.1.3 will provide Support and Maintenance;
4.2 During the Term and subject to compliance by the Client and Client Users with this Agreement, the Client has the right to access the Bite Services for the Client's internal business purposes. The Client may extend the Client's rights, benefits and protections to the Client's Affiliates and to contractors or service providers acting on the Client's or the Client's Affiliates' behalf, so long as the Client remains responsible for the Client's compliance, including Client Users' compliance, pursuant to this Agreement.
5. BILLING AND PAYMENTS
5.1 Fees for the Bite Services are payable in accordance with the payment terms set out from time to time on the Bite Website and in the absence of such, payable in accordance with invoicing cadence set out in the Pricing Plan selected by the Client.
5.2 If the Client chooses to upgrade the Client's Pricing Plan, any incremental Fees shall be charged from the date upon which the Client upgrades the Client's Pricing Plan for the remaining period of the Client's then current Term, charged to the Client's Account and due and payable upon implementation of such upgrade. In any future Term, the Client's Fees will reflect any such upgrade.
5.3 No refunds or credits for Subscription Fees or other fees or payments will be provided to the Client if the Client elects to downgrade the Client's Pricing Plan. Downgrading the Client's Pricing Plan may cause loss of content, features, or capacity of the Bite Services as available to the Client under the Client's Account, and Bite does not accept any liability for such loss.
5.4 Unless otherwise stated, Bite's charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). The Client is responsible for paying Taxes except those assessable against the Bite Group measured by its net income. Bite will invoice the Client for such Taxes if Bite believes Bite has a legal obligation to do so and the Client agrees to pay such Taxes if so invoiced.
5.5 Payments by Client's customers:
5.5.1 Bite uses a third-party payment platform (which at the date of this agreement is Stripe:https://www.stripe.com) (“the Payment Provider”) to process credit and debit card transactions;
5.5.2 the Client acknowledges and agrees that by using the Bite Services, all payments will be processed by Bite's Payment Provider;
5.5.3 the Client shall be responsible for paying any processing fees chargeable by the Payment Provider (which at the date of this Agreement can be found on Stripe's websitehttps://www.stripe.com);
5.5.4 the Client agrees that they shall not utilise their own third-party payment platform to process transactions with respect to the Bite Services;
5.5.5 Bite is not liable for loss or damage from errant or invalid transactions processed using Bite's Payment Provider; this includes transactions that were not processed due to a network communication error, or any other reason;
5.5.6 if the Client processes a transaction, it is the Client's responsibility to verify that the transaction was successfully processed;
5.5.7 the Client must not process stolen credit cards, or unauthorized credit cards through Bite's Payment Provider; and
5.5.8 in the event a customer of the Client or a Client User disputes a payment made via Bite's Payment Provider, the Client shall provide all and any assistance to Bite to resolve such dispute and the Client shall be liable for all and any fees payable to Bite's Payment Provider in relation to any such dispute and the Client shall indemnify and hold harmless all and any costs incurred by Bite in relation to such dispute.
6. SUSPENSION OF SERVICE
6.1 Bite reserves the right, in Bite's reasonable discretion, to temporarily suspend the Client's access to and use of a Service by the Client and Client Users if:
6.1.1 the Client fails to pay Fees when due and such Fees remain outstanding for a period of 14 days after the due date; or
6.1.2 Bite suspects or detects any Malicious Software connected to the Client's Account or use of the Bite Service by the Client or Client Users.
7. SERVICE LEVEL AGREEMENT
7.1 Bite shall provide the Bite Services levels set out in Bite's Service Level Agreement.
8. CLIENT OBLIGATIONS
8.1 In order to access the Bite Services, the Client must ensure it meets system requirements as advised by Bite from time to time.
8.2 A high-speed internet connection is required for proper transmission of the Bite Services. The Client is responsible for procuring and maintaining the network connections that connect the Client's network to the Bite Services, including, but not limited to, “browser” software that supports protocols used by Bite, including the Transport Layer Security (TLS) protocol or other protocols accepted by Bite, and to follow procedures for accessing services that support such protocols. Bite is not responsible for notifying the Client or Client Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Service Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Bite. Bite assumes no responsibility for the reliability or performance of any connections as described in this clause.
8.3 In the Client's use of the Bite Services the Client agrees not to:
8.3.1 license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Bite Services available to any third party, other than Client Users in furtherance of the Client's internal business purposes as expressly permitted by this Agreement;
8.3.2 use the Bite Services to Process data on behalf of any third party other than Client Users;
8.3.3 modify, adapt, or hack the Bite Services or otherwise attempt to gain unauthorised access tothe Bite Services or related systems or networks;
8.3.4 falsely imply any sponsorship or association with Bite or the Bite Group,
8.3.5 use the Bite Services in any unlawful manner, including, but not limited to, violation of anyperson's privacy rights;
8.3.6 use the Bite Services to send unsolicited or unauthorised bulk mail, junk mail, spam, otherforms of duplicative or unsolicited messages, or messages that directly or indirectly support pyramid schemes or other fraudulent activities;
8.3.7 use the Bite Services to store or transmit files, materials, data, text, audio, video, images orother content that infringes on any person's Intellectual Property Rights;
8.3.8 use the Bite Services in any manner that interferes with or disrupts the integrity orperformance of the Bite Services and its components;
8.3.9 attempt to decipher, decompile, reverse engineer or otherwise discover the source code ofany Bite Software making up the Bite Services;
8.3.10 use the Bite Services to knowingly post, transmit, upload, link to, send or store any contentthat is (or directly or indirectly supports activities that are) unlawful, racist, hateful, abusive, libellous, obscene, or discriminatory;
8.3.11 use the Bite Services to knowingly post transmit, upload, link to, send or store any MaliciousSoftware;
8.3.12 use or launch any automated system that accesses a service (i.e., bot) in a manner that sendsmore request messages to a Bite Services server in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser;
8.3.13 allow Client Users to share access credentials with any person; or
8.3.14 attempt to use, or use the Bite Services in violation of this Agreement.
8.4 As between the Client and Bite, the Client is responsible for compliance with the provisions of this Agreement by Client Users and for any and all activities that occur under the Client's Account. Without limiting the foregoing, the Client is solely responsible for ensuring that the use of the Bite Services to store and transmit Service Data is compliant with all applicable laws and regulations as well as any Applicable Data Protection Laws, privacy policies, agreements or other obligations the Client may maintain or enter into with Client Users. The Client also maintains all responsibility for determining whether the Bite Services or the information generated within the Bite Services is accurate or sufficient for the Client's purposes. Subject to any limitation on the number of individual Client Users available under the applicable Pricing Plan(s) to which the Client subscribed, access to and use of the Bite Services is restricted to the specified number of individual Client Users permitted under the Client's subscription to the Bite Services.
8.5 The Client agrees and acknowledges that each Client User will be identified by a unique username and password (“Login”) and that a Client User Login may only be used by one (1) individual. Traditional or full-time Client User subscriptions are for designated individuals only and a Login cannot be shared or used by more than one individual but may be reassigned to new individuals replacing former individuals who no longer require ongoing use of the Bite Services.
8.6 The Client and Client Users are responsible for maintaining the confidentiality of all Login information for the Client's Account. The Client agrees and acknowledges that the Client may not use the Bite Services, including but not limited to application programming interfaces, to circumvent the requirement for an individual Client User Login for each individual who uses the Bite Services; Processes data; or absent a license from Bite or otherwise, Processes data related to interactions originating from a Third Party Service that provides functionality similar to functionality provided by the Bite Services and which would, pursuant to this Agreement, require an individual Client User Login if utilising the Bite Services for such interaction.
8.7 Bite reserves the right to periodically verify that the Client's use of the Bite Services complies with the Agreement including, without limitation, by accessing the Client's Account. Should Bite discover that the Client's use of a Bite Service is not in compliance with this Agreement, Bite reserves the right to charge the Client, and the Client agrees to pay for, said usage in addition to other remedies available to Bite.
8.8 The Client acknowledges that Bite may modify the features and functionality of the Bite Services during the Term.
8.9 The Client may not access the Bite Services if the Client is a direct competitor of the Bite Group, except with Bite's prior written consent. The Client may not access the Bite Services for competitive purposes.
9. BETA VERSION OF THE BITE SOFTWARE
9.1 From time to time, Bite may make a beta of the Bite Software available to the Client at no charge in order to give the Client a preview of upcoming releases and an opportunity to provide feedback to Bite. the Client may choose to try such beta versions in the Client's sole discretion. Beta versions are intended for evaluation purposes and not for production use and are not supported. Beta versions are not considered “Services” under this Agreement; however, all restrictions, Bite's reservation of rights and the Client's obligations concerning the Bite Services, and use of any Third Party Services shall apply equally to the Client's use of beta versions. Unless otherwise stated, any beta version trial period will expire upon the earlier of one year from the trial start date or the date that a version of the beta version becomes generally available without the applicable beta versions designation. Bite may discontinue beta versions at any time at Bite's sole discretion and may never make them generally available. Bite will have no liability for any harm or damage arising out of or in connection with a beta version. Bite makes no warranties with respect to the beta versions and the Client must not use the beta versions for live cases.
10. CONFIDENTIALITY AND PRIVACY
10.1 Each Party will protect each other's Confidential Information from unauthorised use, access or disclosure in the same manner as each protects its own Confidential Information.
10.2 Except as otherwise expressly permitted pursuant to this Agreement, each Party may use each other's Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement and shall disclose such Confidential Information:
10.2.1 solely to the employees and/or non-employee service providers and contractors who have a need to know such Confidential Information and who are bound by terms of confidentiality intended to prevent the misuse of such Confidential Information;
10.2.2 as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or
10.2.3 as reasonably necessary to comply with any applicable law or regulation.
10.3 As between the Parties, all Service Data Processed under the terms of this Agreement shall remain the property of the Client. Except for where Bite collects:
10.3.1 the contact information of Client Users, which may include Personal Data, in the ordinary course of Bite providing the Bite Services to the Client; and
10.3.2 Personal Data about visitors to Bite's Site, under no circumstances will Bite act, or be deemed to act as a “controller” (or equivalent concept) of data processed within the Bite Services under Applicable Data Protection Law.
10.4 The Client agrees that the Client is responsible for notifying Client Users that Personal Data collected, stored, used and/or processed by the Bite Group, as described in this Agreement, is collected, stored, used and/or processed in compliance with the Applicable Data Protection Laws.
10.5 The Client agrees that the Bite Group and Third Party Service providers that are utilised by the Bite Group to assist in providing the Bite Services to the Client shall have the right to access the Client's Account and to use, modify, reproduce, distribute, display and disclose Service Data and the Personal Data of the Client's Client Users to the extent necessary to provide or improve the Bite Services, including, without limitation, in response to the Client's support requests. Any Third Party Service providers utilised by the Bite Group will only be given access to the Client's Account and Service Data as is reasonably necessary to provide the Bite Services and will be subject to confidentiality obligations which are commercially reasonable. Each party (notifying party) agrees to promptly notify the other party once the notifying party becomes aware of a breach affecting the other party's Confidential Information.
10.6 Bite receives and stores any information that the Client knowingly provides to Bite. For example, through the registration process for Bite's Services and/or through the Client's Account settings, Bite may collect Personal Data such as the Client's name, email address, phone number and third-party account credentials. In addition, Bite may communicate with the Client and Client Users.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 Each Party shall retain all rights, title and interest in and to all its respective trademarks, patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”).
11.2 Bite owns the Intellectual Property Rights in the Bite Software.
11.3 Bite grants to the Client a non-exclusive, non-transferable subscription licence to use the Bite Software during the Term in accordance with this Agreement.
11.4 The rights granted to the Client and Client Users to use the Bite Services under this Agreement do not convey any additional rights in the Bite Services or in any Intellectual Property Rights associated with the Bite Services of the Intellectual Property Rights.
11.5 Subject only to limited rights to access and use the Bite Services as expressly stated in this Agreement, all rights, title and interest in and to the Bite Services and all hardware, Bite Software and other components of or used to provide the Bite Services, including all related Intellectual Property Rights, will remain with the Bite Group and belong exclusively to the Bite Group.
11.6 The Client shall not attempt to decipher, decompile, reverse engineer or otherwise discover the source code of the Bite Software.
11.7 The Bite Group shall have a fully paid-up, royalty- free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Bite Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback Bite receive from the Client, Client Users or other third parties acting on the Client's behalf.
11.8 Bite names and logos used or displayed in or on the Bite Services are registered or unregistered trademarks of Bite (collectively, “Marks”), and the Client may use applicable Marks provided the Client does not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Bite, Bite's services or products.
12. THIRD PARTY SERVICES
12.1 The Client may not enable, access or use Third Party Services without Bite's express written consent. If the Client decides to enable, access to or use of Third Party Services without Bite's express written consent, be advised that the Client's access and use of such Third Party Services are governed solely by the terms and conditions of such Third Party Services, and Bite does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Third Party Services, including, without limitation, their content or the manner in which they handle, protect, manage or Process data (including Service Data) or any interaction between the Client and the provider of such Third Party Services.
12.2 Bite cannot guarantee the continued availability of such Third Party Service features, and may cease enabling access to them without entitling the Client to any refund, credit, or compensation, if, for example and without limitation, the provider of a Third Party Service ceases to make the Third Party Service available for interoperation with the corresponding Service in a manner acceptable to Bite. The Client irrevocably waives any claim against Bite with respect to such Third Party Services.
12.3 Bite is not liable for any damage or loss caused or alleged to be caused by or in connection with the Client's enablement, access or use of any such Third Party Services, including any key management services (and where any data is lost due to loss of encryption keys or where encryption keys are not effective to decrypt data), or the Client's reliance on the privacy practices, data security processes or other policies of such Third Party Services. The Client may be required to register for or log into such Third Party Services on their respective websites.
12.4 By enabling any Third Party Services, the Client is expressly permitting Bite to disclose the Client's Login, as well as Service Data as necessary to facilitate the use or enablement of such Third Party Services.
13. TERM AND TERMINATION
13.1 The term of this Agreement commences when the Client accepts a Pricing Plan on the Bite Website and continues until terminated in accordance with this Agreement.
13.2 The Client may terminate this Agreement by cancelling the Pricing Plan on the Bite Website, in which case, the Fees shall be applicable for the balance remaining on the Pricing Plan for that billing cycle.
13.3 Either party may terminate for convenience at any time during the Term by providing one (1) month's notice in writing to the other party.
13.4 Either party may terminate this Agreement for cause:
13.4.1 upon written notice to the other Party of a material breach if such breach remains uncured at the expiration of fourteen (14) days from the date of the breaching Party's receipt of such notice;
13.4.2 either party ceases its business; or
13.4.3 if the other Party becomes the subject of an insolvency event, receivership, liquidation or assignment for the benefit of creditors.
13.5 If this Agreement is terminated by the Client in accordance with this clause, Bite will, to the extent permitted by applicable law, refund the Client any prepaid fees covering the remainder of the Term following termination. If this Agreement is terminated by Bite in accordance with this clause, the Client will pay any unpaid fees covering the remainder of the Term. In no event will termination relieve the Client of the Client's obligation to pay any fees payable to Bite for the period prior to termination.
14. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
14.1 Each Party represents that it has validly entered into this Agreement and has the legal power to do so.
14.2 Bite warrants that during an applicable Term the Bite Services will perform materially in accordance with the applicable Documentation.
14.3 Except as specifically set out in clause 14.2, the Bite Services, including all server and network components, are provided on an “as is” and “as available” basis, without any warranties of any kind to the fullest extent permitted by law, and Bite expressly disclaims any and all warranties, whether express or implied, including, but not limited to, any implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement. The Client acknowledges that Bite does not warrant that the Bite Services will be uninterrupted, timely, secure, error-free or free from viruses or other malicious software, and no information or advice obtained by the Client from Bite or through the Bite Services shall create any warranty not expressly stated in this Agreement.
15. LIMITATION OF LIABILITY
15.1 Under no circumstances, whether in contract, tort, negligence or otherwise, will:
15.1.1 Bite or the Bite Group be liable to the Client or any the Client Affiliate for any lost profits, lost sales or business, lost data, business interruption, loss of goodwill, costs of cover or replacement, or for any type of indirect, incidental, special, exemplary, consequential or punitive loss or damages, or any other indirect loss or damages incurred by the Client or any the Client Affiliate in connection with this Agreement regardless of whether Bite has been advised of the possibility of or could have foreseen such damages; or
15.1.2 the Client or any Client Affiliate be liable to Bite or the Bite Group for any lost profits, lost sales or business, lost data, business interruption, loss of goodwill, costs of cover or replacement, or for any type of indirect, incidental, special, exemplary, consequential or punitive loss or damages, or any other indirect loss or damages incurred by Bite or the Bite Group in connection with this Agreement regardless of whether the Client has been advised of the possibility of or could have foreseen such damages.
15.2 Notwithstanding anything to the contrary in this Agreement, the Bite Group's aggregate liability to the Client, any Affiliate, or any third party arising out of this Agreement, the Bite Services, shall in no event exceed the Fees paid by the Client during the twelve (12) months prior to the first event or occurrence giving rise to such liability. The Client acknowledges and agrees that the essential purpose of this clause 15 is to allocate the risks under this Agreement between the parties and limit potential liability given the Fees, which would have been substantially higher if Bite were to assume any further liability other than as set forth in this Agreement. Bite has relied on these limitations in determining whether to provide the Client with the rights to access and use the Bite Services provided for in this Agreement. The limitation of liability provided for in this Agreement will apply in aggregate to the Client and its Affiliates and shall not be cumulative.
15.3 Any claims or damages that the Client may have against Bite shall only be enforceable against Bite and not any other entity or its officers, directors, representatives or agents.
16.1 To the maximum extent permitted by applicable law, the Client agrees to release, defend (at Bite's option), indemnify, and hold Bite and its Affiliates and subsidiaries, including but not limited to, Bite Payments, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with:
16.1.1 the Client's breach of this Agreement;
16.1.2 the Client's improper use of the Bite Services; and/or
16.1.3 the Client's breach of any laws, regulations or third party rights.
16.2 Bite will indemnify and hold the Client harmless from and against any claim brought by a third party against the Client by reason of the Client's use of a Service as permitted hereunder, alleging that such Service infringes or misappropriates a third party's valid patent, copyright, trademark or trade secret (an ‘IP Claim'). Bite shall, at Bite's expense, defend such IP Claim and pay damages finally awarded against the Client in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Bite for such defence, provided that:
16.2.1 the Client promptly notifies Bite of the threat or notice of such IP Claim;
16.2.2 Bite will have the sole and exclusive control and authority to select defence lawyers, anddefend and/or settle any such IP Claim; and
16.2.3 the Client fully cooperates with Bite in connection therewith. If use of a Service by the Client or Client Users has become, or, in Bite's opinion, is likely to become, the subject of any such IP Claim, Bite may, at Bite's option and expense, procure for the Client the right to continue using the Bite Services as set forth in this Agreement;
16.2.4 replace or modify the Bite Services to make it non-infringing; or
16.2.5 if options 16.2.3 or 16.2.4 are not commercially reasonable or practicable as determined by Bite, terminate the Client's subscription to the Bite Services and repay the Client, on a pro- rata basis, any Fees previously paid to Bite for the corresponding unused portion of Term for such Service.
16.3 Bite will have no liability or obligation under this clause with respect to any IP Claim if such claim is caused in whole or in part by:
16.3.1 compliance with designs, data, instructions or specifications provided by the Client;
16.3.2 modification of the Bite Services by anyone other than Bite; or
16.3.3 the combination, operation or use of the Bite Services with other hardware or software where a Bite Service would not by itself be infringing.
16.4 The provisions of clause 16.2 state the sole, exclusive and entire liability of Bite to the Client and constitute the Client's sole remedy with respect to an IP Claim brought by reason of access to or use of a Service by the Client or Client Users.
16.5 The Client will indemnify and hold Bite harmless against any claim:
16.5.1 arising from or related to use of a Service by the Client or Client Users in breach of this Agreement; or
16.5.2 alleging that the Client's use of the Bite Services or the Client's Service Data infringes or misappropriates a third party's valid patent, copyright, trademark or trade secret; provided
(a) Bite promptly notifies the Client of the threat or notice of such claim;
(b) the Client will have the sole and exclusive control and authority to select defence lawyers, and defend and/or settle any such claim (however, the Client shall not settle or compromise any claim that results in liability or admission of any liability by Bite without Bite's prior written consent); and
(c) Bite fully cooperates with the Client in connection therewith.
17.1 Bite shall maintain during the term of this the following minimum levels of cover:
17.1.1 Employer's liability insurance to statutory limits;
17.1.2 Professional indemnity insurance with a reputable insurer in such amounts as Bite believes to be prudent and customary for the business in which Bite is engaged; and
17.1.3 Cyber Insurance with a reputable insurer in such amounts as Bite believes to be prudent and customary for the business in which Bite is engaged.
18. DATA BREACH MANAGEMENT
18.1 Any unauthorised access to Service Data will constitute a data breach (Data Breach) for the purposes of this Agreement.
18.2 A Data Breach will include but not be limited to:
18.2.1 exposure of Service Data to the public due to a security breach of any form, for example, caused by Malicious Software, third-party hacking or phishing;
18.2.2 loss of Service Data due to security breaches;
18.2.3 unauthorised modification to Service Data by third parties; or
18.2.4 negligent exposure, loss or modification of Service Data.
18.3 In the event of a Data Breach, the affected Party must immediately inform the other Party of the Data Breach, as well as the steps taken to remedy the Breach.
18.4 The Parties reserve all rights in respect of any damage or losses arising out of a negligent Data Breach by either Party.
19.1 Any written notice given under these terms shall be deemed to have been given and received:
19.1.1 by handing the notice to the other party, in person;
19.1.2 by leaving it at the address of the other party;
19.1.3 by sending it by registered post to the address of the other party;
19.1.4 if sent by email to the other party's last known email address.
19.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
20. DISPUTE RESOLUTION
20.1 Any dispute arising out of or in connection with this Agreement (a Dispute) shall be referred by either party to the other party for resolution.
20.2 If the Dispute cannot be resolved by the persons referred to in clause 19.1 within ten (10) Business Days after the Dispute has arisen, either party may give written notice to the other party that a Dispute has arisen (the Notice). If the Dispute is not resolved by agreement in writing between the parties within ten Business Days after the date of the Notice, the Dispute shall be resolved in accordance with clause 19.3.
20.3 A Dispute may at the request of Bite or the Client be referred to mediation. Any reference to mediation shall be made in accordance with the procedures of the Australian Disputes Centre (ADC). The mediation shall be conducted by a single mediator appointed by the parties or, if the parties to the dispute are unable to agree on the identity of the mediator within 21 days after the date of the request that the Dispute be resolved by mediation, or if the person appointed is unable or unwilling to act, the mediator shall be appointed by the IDRC on the application of either party. The mediation shall be conducted in the capital city of the country specified in the Jurisdiction, in English. Mediation is without prejudice to the rights of the parties in any future proceedings. The costs of the mediation, including the fees and expenses of the mediator shall be borne equally by the parties.
20.4 This clause 19 is without prejudice to either party's right to seek interim relief (such as an injunction) against the other party through the courts within the Jurisdiction to protect its rights and interests, or to enforce the obligations of the other party.
21. GOVERNING LAW
21.1 This Agreement shall be governed by the laws of the Jurisdiction, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in a court of general jurisdiction within the Jurisdiction. the Client agrees to submit to the exclusive personal jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to this Agreement or access to or use of the Bite Services by the Client or Client Users.
22. PROHIBITED ACTIVITIES
22.1 Clients, Client Users and their Affiliates will violate this Agreement when they engage in any of the following activities:
22.1.1 using the Bite Services to violate any law, statute, ordinance or regulation governing Bite or the Client's business or activities, including without limitation the laws and regulations governing export control, unfair competition, false advertising, consumer protection, issuance or sale of securities, child pornography, obscenity, trade in firearms, spamming, privacy, data transfer, and telecommunications;
22.1.2 using the Bite Services in a manner which presents a material security or privacy risk or will interfere materially with the continued operation of a data centre or the Bite Services;
22.1.3 using the Bite Services in a manner that infringes another's copyrights, patents, trademarks, service marks, trade names, trade secrets or other intellectual property rights or rights of publicity, including failing to obtain all required permissions to receive, upload, download, display, distribute, or execute programs or perform other works or derivative works protected by intellectual property laws or removing or altering applicable copyright, trademark or patent notices;
22.1.4 using the Bite Services in a tortious manner, including without limitation engaging in libel, defamation, harassment, misappropriation of trade secrets, intentional misrepresentation or fraud, or publication of private information without the permission of the person(s) involved;
22.1.5 introducing Malicious Software to the Bite Services; and/or
22.1.6 intentionally omitting, deleting, forging or misrepresenting transmission information, including headers, return addressing information and IP addresses, in violation of applicable law; using the Bite Services to gain illegal or unauthorised access to other computers or networks through hacking or other means; assisting in or permitting any persons to engage in any of the activities described above.
22.2 Upon becoming aware of harmful activity, Bite reserves the right to take remedial action, up to and including termination of client's use of the Bite Services. clients agree to cooperate with Bite in any reasonable corrective action that Bite deems necessary to ensure compliance or prevent further harm. Failure to cooperate with such corrective or preventive measures is a violation of this Agreement.
23.1 Entire Agreement: This Agreement constitutes the entire agreement, and supersede any and all prior agreements between the Client and Bite with regard to the subject matter hereof. This Agreement shall apply in lieu of the terms or conditions in any statement of work or other order documentation the Client or any entity which the Client represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either Party with respect to the subject matter hereof. There are no oral promises, conditions, representations, understandings, interpretations, or terms of any kind between the Parties, except as may otherwise be expressly provided herein.
23.2 Variation: This Agreement may be amended by agreement between the parties in writing.
23.3 Severability: If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
23.4 Relationship of the Parties: The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
23.5 Survival: The obligations of confidentiality and protection of Intellectual Property Rights shall survive termination of this Agreement.