Terms of Service

Services V2.0

 

 

TERMS OF SERVICES - SERVICES V2.0, VALID OF SEPTEMBER 27, 2021

1. DEFINITIONS

  • Affiliates means (a) any entity controlling or controlled by either Party; and (b) any entity under common control with either Party, for so long as such common control continues to exist, where “control” means ownership either directly or indirectly of not less than 50% of the voting shares
  • Agreement means these Biarri Networks Terms of Service located at https://biarrinetworks.com/terms-of-service/services and any related Work Order
  • Biarri Networks means Biarri Networks Pty. Ltd., an Australian company, Biarri USA Inc., an American company, as described in a Work Order, and who is the contracting entity under this Agreement
  • Confidential Information means any information disclosed or made available in any form by the disclosing Party to the receiving Party under this Agreement (whether orally, in writing, electronically or on magnetic or other media), but only if one or more of the following circumstances apply:
    • such information is disclosed by the disclosing Party in writing, it is marked as confidential on disclosure;
    • such information is disclosed by the disclosing Party orally, it is identified as confidential at the time of disclosure and then summarized and designated as confidential in writing to the receiving Party within 30 days of disclosure;
    • such information is disclosed in any other manner, it is designated in writing as confidential at the time of disclosure; or
    • the nature of such information otherwise makes it clear that it is confidential, but excludes information that:
      • is or becomes publicly available, except by an act or omission of the receiving Party;
      • became known to the receiving Party without any breach of applicable confidentiality terms prior to disclosing Party’s disclosure of such information to receiving Party;
      • is demonstrably developed at any time by the receiving Party without use of such Confidential Information; or
      • is lawfully obtained at any time by the receiving Party from a third party without restrictions in its disclosure or use (and provided that such third party had also lawfully obtained the information and was authorized to make such a disclosure to the receiving Party).
  • Client means the organisation defined as the Client on the Work Order, or a 3rd party organisation introduced by the Client, depending on context.
  • Client Data means data which the Client uploads, transmits or creates and provides to Biarri through any medium or means.
  • Deliverables means inventions (whether or not patentable), discoveries, improvements, designs, documentation, and all other information or output delivered by Biarri or its employees, agents and representatives, to   either alone or in collaboration with third parties, in connection with the performance of its Services in relation to any Work Order.
  • Effective Date means the date of last signature on a Work Order executed by the Parties under these terms and conditions.
  • Fees means the charge(s) payable by the Client to Biarri Networks pursuant to this Agreement, as specified in the Work Order.
  • FOND means Biarri’s Fiber Optic Network Design software made available through Biarri’s online platform.
  • Force Majeure Event means any forces of nature, disruptions to the internet infrastructure, public bandwidth shortages, industrial action, acts of terrorism, protests, riots, civil commotion, fire, explosion, flood, epidemics, lockouts, strikes and action or inaction by a government agency (including any quasi-government agency) which causes a Party to be prevented or delayed in performing its obligations.
  • Intellectual Property Rights means patents, copyrights, trade secrets, and other proprietary rights recognized in any jurisdiction worldwide, and all applications and registrations therefor.

 

  • Party means either Biarri Networks or the Client as the context dictates, and Parties means Biarri Networks and the Client.
  • Project means a geographic region, city, or area for which Client wishes to engage Biarri to perform the Services.
  • Services means telecommunications design and engineering services as provided by Biarri and more fully defined in a given Work Order.
  • Work Order means the applicable order form for the provision of Services, relating to the provision of goods and services by Biarri Networks. Work Order also means a Project Confirmation Sheet, a Corporate Agreement, a Client Agreement, a Variation Agreement (to the extent that the same amends the scope of the original agreement) and any similar document by which the Parties agree the particulars of the Client’s use of Biarri Networks services.

2. WORK ORDER AND COMPLETION OF THE SERVICES.

  1. In consideration for any applicable Fees, Biarri Networks will provide the services to Client as defined in a Work Order pursuant to the terms and conditions of this Agreement.
  2. Each Work Order may state detailed procedures, practices, specifications, Deliverables, time frames, Fees or other particulars that will govern the Services rendered under each Work Order. In the event of any conflict between this Agreement and a Work Order, the terms contained in a Work Order will govern for that particular Project.
  3. All work will commence on, and be completed by any applicable date in a relevant Work Order. At Client’s request, Biarri will provide Client with written periodic progress reports on the Services.
  4. In the performance of the Services, Biarri will, at no additional cost to Client, ensure that Biarri complies with all applicable safety rules, regulations, laws and enactments including but not limited to local, city, state, federal, and the current provisions of the Occupational Safety and Health Act.
  5. Unless expressly authorized under this Agreement or by Biarri Networks in writing, the Client is not permitted to:
    1. reverse engineer, adapt, modify, create derivative works of, make additional copies of, separate, or further develop any materials as provided by Biarri Networks without written confirmation between the parties that these activities can occur;
    2. use any Materials as provided by Biarri Networks to compete with Biarri Networks, assist a competitor of Biarri Networks or develop competing products or services. Client is responsible for compliance with this Agreement by its employees, contractors and agents and is liable for all their acts and omissions.
  6. Client responsibilities:
    1. Client must grant Biarri and its subcontractors such access to the premises, equipment and resources (including human resources) as reasonably requested by Biarri or its subcontractors for the performance of the Services and Biarri’s obligations under this Agreement;
    2. Client must comply with all of its responsibilities as set out or defined in the Work Order;
    3. The Client understands and acknowledges that Biarri Networks’ ability to provide the Services is dependent on the Client undertaking any agreed obligations (or such reasonable obligations as may be advised to the Client by Biarri Networks). The Client acknowledges that failure to perform any such obligations may result in a failure to receive Services and/or additional costs being payable for the Services.
  7. Ownership. Client retains all of its right, title and interest in and to Client Data, and ownership of Client Data is not transferred to Biarri Networks under this Agreement.
  8. Right to Use. Client grants Biarri Networks a non-exclusive license, for the term of this Agreement, to use Client Data to perform the Services
  9. Warranty regarding Client Data and Use of the Services. The Client warrants that it has appropriate rights in Client Data and that the Client Data and the Client’s use of the Client Data will not violate applicable laws or this Agreement. Biarri Networks is not obligated to screen Client Data, although Biarri Networks reserves the right to screen Client Data and to remove/refuse use of, without warning, Client Data that it reasonably considers may breach this Agreement. Biarri Networks will notify the Client if Biarri Networks removes Client Data and will repost or return Client Data provided that, in Biarri Networks’ reasonable opinion, doing so would not place Biarri Networks at risk of loss or damage. To the extent permitted by law and subject to Section 11.3, Biarri Networks is not liable for any damage or loss caused by Biarri Networks’ decision to remove/refusal to use Client Data. The Client is entirely responsible for the content and delivery of Client Data, including without limitation, the accuracy, usefulness, timeliness and completeness of Client Data. The Client is responsible for ensuring Client Data is correctly addressed and on-time and does not represent a breach of any obligations to a third party or of law.
  10. If the Work Order includes provision of FOND to the Client, the Client acknowledges and accepts that the use of that software will be in accordance with the Acceptable Use Policy described in, and in accordance with, the FOND Terms Of Service available via https://biarrinetworks.com/tos/. 

3. CHANGE CONTROL.

  1. Client may request changes to a Work Order including changes to the Services, schedule, or specifications.
  2. Client’s request will be in writing and in sufficient detail to permit Biarri to determine the time, resources, and additional Fees, if any, associated with the requested changes. 
  3. All changes to a Work Order, including any additional Fees or terms will be documented in a Change Order signed by both Parties.

4. FEES AND EXPENSES.

  1. Biarri will submit invoices for Deliverables as defined and by the means specified in each Work Order.
  2. Unless otherwise specified in an executed Work Order, Clientmust pay Fees within 30 days of invoice date. In addition to any other rights available, Biarri may charge an additional 1.5% per month (or such lower amount as required by applicable law) for all Fees that are not paid on time.
  3. Fees are exclusive of any foreign or domestic governmental taxes or charges of any kind that may be applicable to this Agreement or any Work Order, including without limitation excise, sales, use, property, license, value-added taxes, goods and services tax, franchise, income, withholding or similar taxes, customs or other import duties or other taxes, tariffs or duties, other than taxes which are imposed based on the net income of Biarri Networks. Any such taxes which are otherwise imposed on payments to Biarri Networks will be the sole responsibility of the Client
  4. Unless otherwise specified in a Work Order, all amounts are to be paid in USD.
  5. This section will survive termination of the Agreement.

5. TERM AND TERMINATION.

  1. This Agreement will commence on the Effective Date and will continue until terminated by either Party upon thirty (30) days prior written notice to the other Party (“Term”). Upon termination of this Agreement, any open Work Orders will continue under the terms of this Agreement, unless otherwise terminated in accordance with the terms herein or in an applicable Work Order.
  2. On termination of this Agreement the Client must:
    1. immediately cease all use of and return to Biarri any property or documents which Biarri owns or in which Biarri has an interest (except to the extent that their continued use is required for any existing Work Order);
    2. immediately pay Biarri any outstanding Fees due to Biarri (but Biarri is under no obligation to refund to the Customer any portion or percentage of the Fees which might be unused at the date of termination); and
    3. promptly return any Confidential Information of Biarri in its possession, custody or control to Biarri.
  3. On termination of this Agreement Biarri will promptly return any Confidential Information of the Client in its possession, custody or control to the Client.
  4. Termination of this Agreement does not:
    1. prejudice any right of action or remedy of either party which accrued prior to termination; or
    2. affect any Work Order executed by the Parties during the Term unless otherwise agreed by the parties in writing.
  5. Notwithstanding the foregoing, either Party may immediately terminate this Agreement or any individual Work Order if the other Party (i) breaches a material provision of this Agreement or (ii) files for bankruptcy, goes into receivership, becomes insolvent, or makes an assignment for the benefit of creditors. 

6. INTELLECTUAL PROPERTY RIGHTS.

  1. Biarri and Client will continue to own all Intellectual Property Rights that such Party owned immediately prior to this Agreement or that such Party acquires or creates outside the scope of this Agreement. 
  2. Client hereby grants to Biarri a license to use Client’s Intellectual Property Rights provided to Biarri hereunder for the purpose of performing Services and for no other purpose.  Biarri will own all right, title and interest in and to all Deliverables, tangible or intangible, developed by Biarri during the term of this Agreement including all Intellectual Property Rights contained therein. Biarri grants Client a non-exclusive, royalty-free, world-wide, non-transferable license to use the Deliverables, solely for Client’s internal business.
  3. For the avoidance of doubt, Deliverables will not include Biarri’s pre-existing (prior to the Effective Date) proprietary information, methodologies, software, materials, concepts, or project tools used by Biarri to create the Deliverables or perform the Services. Deliverables also will not include software or other Intellectual Property Rights of a third party which are used to create or are embedded in any Deliverables. 
  4. Biarri warrants and represents that it has or will have the right, through written agreements with its employees, agents, representatives, and third-party providers to secure for Client the rights and licenses called for in this section. In the event Biarri uses any subcontractor or other third party to perform any of the Services or assist with any aspect of the Deliverables contracted for under this Agreement, Biarri agrees to enter into written agreements with such third party and to take other steps as are or may be required to secure for Client the rights and licenses called for in this section.
  5. This section will survive termination of the Agreement

7. CONFIDENTIAL INFORMATION.

  1. If the Parties have executed a mutual non-disclosure agreement, the terms and conditions of such agreement are hereby incorporated into this Agreement; provided Confidential Information may also be used by Biarri to perform Services and by Client to use Services.
  2. If no such agreement exists, both Parties acknowledge that the Confidential Information obtained by either Party pursuant to this Agreement may constitute valuable trade secrets of the disclosing Party. Each Party agrees to use Confidential Information solely in accordance with the provisions of this Agreement and not to disclose, or permit to be disclosed, either directly or indirectly, Confidential Information to any third party, without the other Party’s prior written consent. Each Party must use strict measures to protect the secrecy and avoid disclosure or unauthorized use of the other Party’s Confidential Information. Each Party must exercise the same degree of care to prevent disclosure of the Confidential Information as it takes to preserve and safeguard its own Confidential Information, but in any event, no less than a reasonable degree of care.
  3. Notwithstanding 7.2, neither Party will be in breach of this provision in circumstances where the Party is legally compelled to disclose the other Party’s Confidential Information or where the information is already in the public domain through no fault of the receiving Party, or is in the disclosing Party’s possession without a duty of confidentiality at the date of disclosure, or where the disclosing Party discloses the terms of this Agreement to its professional advisors, financiers, prospective financiers or partners or agents, Related Parties or where Biarri Networks discloses the fact the Client is a Client to potential clients.

8. COMPLIANCE WITH LAWS.

  1. In carrying out the Services, Biarri will comply with all federal, state, local, or, if applicable, foreign, laws, rules and regulations and will obtain all necessary permits or licenses that may be required in performance of the Services.
  2. This section will survive termination of this Agreement

9. WARRANTY.

  1. Mutual Warranties:
    1. Each party represents and warrants that there are no actions, suits or proceedings pending and served against it before any court or administrative agency that would materially impair such party's performance of its obligations under this Agreement and each party has disclosed to the other party any overtly threatened action, suit or proceeding with respect to such matter of which it is actually aware.
    2. Each party has full power and authority to execute, deliver and perform its obligations under this Agreement.  
    3. Each party represents and warrants that it will comply with all applicable laws, ordinances, rules, regulations or orders issued by any public or governmental agency, body or authority, whether Federal, state, local or otherwise, and has obtained all applicable permits and licenses required of such party in connection with its obligations under this Agreement.
  2. Biarri warrants and represents that (i) it has the proper skill, training and background to perform in a competent and professional manner the work set forth in each Work Order and (ii) all Services will be performed in accordance with such Work Order. 
  3. Client’s sole remedy for any breach of a warranty specified in this section will be for Biarri, at its own expense, to promptly re-perform the Services in question.
  4. EXCEPT FOR THE WARRANTIES SPECIFIED IN THIS SECTION BIARRI DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
  5. This section will survive termination of this Agreement

10. INDEMNIFICATION; NON-INFRINGEMENT.

  1. Subject to the limitations on liability set forth in Sections 12 and 13 of this Agreement, each of the Parties will be liable for and will indemnify, defend and hold the other Party, its parent, affiliates, officers and directors, harmless against any third party claim, loss or damage, including reasonable attorneys' and experts’ fees, incurred by reason of: 
    1. the death of or injury to any individual;  
    2. damage to or loss of personal or real property of the Party or a client thereof due to the negligence and/or willful acts or omissions of the other Party; or
    3. the negligent or illegal act or omission or the willful misconduct of the indemnifying Party or its employees, agents, or representatives. 
  2. Biarri will indemnify, defend, and hold Client, its parent, affiliates, officers, and directors harmless against any third party claim alleging that the use of the Deliverables, infringes, violates, or misappropriates the patent, copyright, trade secret, or other proprietary or legal rights of any third party. The indemnification provided in this Section 10.2 will not be subject to the limitations on liability set forth in Sections 12 or 13 hereof.
  3. Despite the obligations in Section 10.2 above, Biarri will not defend, indemnify, or hold harmless for any third party claim if: 
    1. Client made modifications to the Deliverables or portions thereof that caused the Deliverables to be infringing; or
    2. Client continued its allegedly infringing activity after being provided with modifications that would have avoided the alleged infringement.
  4. Under either of the aforementioned indemnifications Sections 10.1 and 10.2 the Party claiming the right to indemnification will notify the other Party in writing of a claim or suit as soon as practicable and, at the other Party’s expense, will provide reasonable cooperation in the defense or settlement of such claim or suit.
  5. This section will survive termination of the Agreement

11. INSURANCE.

  1. During the term of this Agreement, Biarri will, at its own cost and expense, obtain and maintain in full force and effect, the following insurance coverage:
    1. workers' compensation and disability insurance in statutory amounts;
    2. professional liability insurance with minimum limits of at least $10,000,000;
    3. general comprehensive liability insurance or suitable umbrella insurance with minimum single limit coverage of at least $10,000,000;
    4. any additional insurances as specified in applicable Work Orders.
  2. Upon request, Biarri will provide Client with proof of such coverage, and in the event such coverage changes or is canceled during the term of this Agreement, Biarri will immediately notify Client.

12. LIMITATION OF LIABILITY.

  1. Except as otherwise expressly provided in this Agreement, the liability of either Party under or in connection with this Agreement (including all Work Orders) for all losses, claims, suits, controversies, breaches or damages for any cause whatsoever (including but not limited to those arising out of or related to this Agreement) and regardless of the form of action or legal theory, will be limited to the actual direct out-of-pocket expenses that are reasonably incurred by the other Party and will not exceed five hundred thousand dollars ($500,000 USD).
  2. This section will survive termination of the Agreement

13. EXCLUSION. 

  1. IN NO EVENT WILL ANY PARTY TO THIS AGREEMENT OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL DAMAGES OR THE LIKE, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER EITHER PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  2. This section will survive termination of the Agreement

14.  SOLICITATION OF PERSONNEL. 

  1. During the term of this Agreement, each Party agrees that it will not solicit, nor attempt to solicit for itself or any third party directly or indirectly an employee/associate of the other Party without the prior written consent of that Party.  Neither Party will be deemed to be in violation of this section if an employee of one Party is hired by the other Party as a result of a response to a job posting advertisement made to the general public.
  2. This section will survive termination of the Agreement

15. NON-EXCLUSIVITY. 

  1. This Agreement does not grant Biarri an exclusive right to provide the Work to Client, nor will it be deemed to promise any minimum amount of Work Orders.
  2. Client may contract with any other person or entity for the procurement of like or similar services.
  3. This Agreement does not grant Client exclusive rights or access to Biarri’s Services, and both Parties acknowledge that Biarri provides Services similar in nature to those provided to Client to other companies, some that may be in competition with Client. Nothing in this Agreement is intended to limit Biarri's ability to provide such Services or hinder Biarri's rights to enter into similar Agreements with other companies in the future.

16. INDEPENDENT CONTRACTORS. 

The relationship of the Parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to create a partnership, joint venture, or other agency relationship between the Parties. 

17. SUBSIDIARIES OF CLIENT. 

Biarri agrees that Affiliate(s) of Client may execute Work Orders in accordance with the provisions of this Agreement, provided that Clientwill be liable for the acts and omissions of its Affiliates. 

18. ENTIRE AGREEMENT. 

This Agreement constitutes the complete and exclusive statement of agreement between the Parties, and supersedes and merges all prior proposals and all other agreements, oral and written, between the Parties relating to the subject matter of this Agreement. This Agreement may be modified only in writing signed by both Parties. 

19. NOTICES. 

Any notice given under this Agreement will be in writing and will be effective (i) upon receipt if delivered by hand or e-mail; or (ii) three (3) days after deposit in the U.S. mail, postage prepaid, certified mail return receipt requested, when addressed as follows:

To Biarri:

ATT: Legal

Biarri Networks Pty Ltd

9200 E Mineral Ave, Suite 100

Centennial, CO 80112

bn.legal@biarri.com

 

To Client:

The Client’s representative and email address will be as specified at registration or otherwise in writing to Biarri Networks.

 

Either Party may change its address at any time by giving written notice of the change to the other Party.

20. GOVERNING LAW. 

  1. Any dispute relating to the terms and conditions of this Agreement will be governed by the law of the State of Colorado.
  2. This section will survive termination of the Agreement

21. DISPUTE RESOLUTION.

  1. Negotiation. If any dispute arises between the Parties in respect of this Agreement, or any related document, a Party must issue a written notice to the other Party notifying them of the existence of a dispute; Within ten (10) business days of such notice each Party must assign a representative with authority to make commitments that would resolve the dispute. The Parties’ nominated representatives will meet within five (5) business days of their designation and must negotiate in good faith to resolve the dispute..
  2. Escalation. In the event that negotiations pursuant to 21.1 do not resolve the dispute within 15 Business Days (or such longer period as may be agreed between the Parties), the dispute will be referred to the respective chief executive officers (or their nominees – external counsel excluded) of each Party for good faith negotiations.
  3. Filing of Actions. Neither Party may file an action to resolve a dispute prior to 20 Business Days (or such other period as may be agreed between the Parties) after an escalation pursuant to 21.2.
  4. Injunctive Relief. Notwithstanding the foregoing, if either Party breaches, or threatens to breach the provisions of this Agreement concerning confidentiality or Intellectual Property Rights, each Party agrees that the non-breaching Party will have no adequate remedy at law and is therefore entitled to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages, in any court having jurisdiction.

22. ASSIGNMENT. 

  1. Neither Party may assign this Agreement or any of its rights or obligations hereunder without the other Party’s express written consent, which must not be unreasonably withheld.
  2. This section will survive termination of the Agreement

23. FORCE MAJEURE. 

With the exception of any payment obligations, neither Party will be liable for any delay or failure to perform its obligations pursuant to this Agreement to the extent such delay is due to a Force Majeure Event. With the exception of payment obligations, to the extent a delay or failure of a Party to perform its obligations is caused or anticipated due to a Force Majeure Event, the performance of that Party’s obligations will be suspended and neither Party will be liable to the other Party for a failure to perform its obligations as a result of a Force Majeure Event. If a delay or failure by a Party to perform its obligations due to a Force Majeure Event exceeds 3 calendar months, either Party may immediately terminate the Agreement without cause on providing notice in writing to the other Party.

24. SEVERABILITY. 

  1. If any term (or part of a term) of this Agreement is deemed invalid, illegal or unenforceable, the rest of this Agreement will remain in effect.
  2. This section will survive termination of the Agreement

25. NO WAIVER. 

  1. Neither Party will be deemed to have waived any of its rights under this Agreement by lapse of time, or by any statement or representation other than by an explicit written waiver executed by an authorized representative. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
  2. This section will survive termination of the Agreement

26. MODIFICATION. 

Except as otherwise set forth herein, this Agreement cannot be changed, modified, or otherwise varied except by written agreement signed by both parties.