Terms of Service

Software V1.0

 

 

BIARRI NETWORKS SERVICES TERMS OF SERVICE - V1.0, Valid as of January 1, 2016 to September 26, 2021

1. DEFINITIONS

  • Agreement means this Biarri Networks Terms of Service located at www.biarrinetworks.com/servicestos/  and any related Service Order
  • Biarri means Biarri Networks Pty Ltd, and, unless expressly included in the Agreement, excludes any Affiliates
  • Biarri Networks Affiliate means (a) any entity controlling or controlled by Biarri Networks; and (b) any entity under common control with Biarri Networks, 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.
  • Business Day means a day that is not a Saturday, Sunday or holiday observed by Biarri Networks in Denver Colorado, USA or a Biarri Networks company-wide shutdown as may be advised in advance from time to time.
  • Client means the organisation defined as the Client on the Work Order Authority, 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.
  • Confidential Information means any non-public information disclosed by either Party to the other Party in writing which is designated as “confidential” or “proprietary” (or with a similar legend), or that is disclosed orally and confirmed in writing as confidential within a reasonable time. Even if not so marked, the Parties agree that Client Data and the terms of this Agreement are Confidential Information.
  • Effective Date means the date the Client accepts this Agreement by authorising the WOA
  • Fees means the charge(s) payable by the Client to Biarri Networks pursuant to this Agreement, as specified in the WOA.
  • 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.
  • Materials and Material means all manuals, data, documents, deliverables and information which are prepared, written, made accessible, provided or developed by Biarri Networks or its licensors in connection with the Services, including help and support documentation.
  • Party means either Biarri Networks or the Client as the context dictates, and Parties means Biarri Networks and the Client.
  • Privacy Statement means the Biarri Networks Privacy Statement, which is applicable to data received by Biarri Networks, from Biarri Networks customers and Users of its web sites, and which is available at: www.biarrinetworks.com/privacy/ and as may be updated by Biarri Networks from time to time in any manner that complies with then-current applicable laws.
  • Services means the services described in Section 2 of this Agreement.
  • Work Order Authority (WOA) means the applicable order form for the provision of Services, relating to the provision of goods and services by Biarri Networks, and as further described at Section 16.2. Work Order Authority 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. SERVICES

  • Services and Schedule. In consideration for any applicable Fees, Biarri Networks will provide the services as defined in the WOA pursuant to the terms and conditions of this Agreement.
  • Restrictions. Unless expressly authorized under this Agreement or by Biarri Networks in writing, the Client is not permitted to:
    • 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;
    • 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.
  • Term of License or Service. Biarri Networks will provide each Service from the Effective Date for any period specified in an agreed WOA.
  • Client Responsibilities.
    • grant Biarri and its subcontractors such access to the premises, equipment and resources (including human resources) of the Customer as reasonably requested by Biarri or its subcontractors for the performance of the Services and Biarri’s obligations under this agreement;
    • comply with all of its responsibilities as set out or defined in the WOA;
    • Other Obligations. 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.
  • 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.
  • Right to Use. Client grants Biarri Networks a non-exclusive license, for the term of this Agreement, to use Client Data to accommodate Client’s authorized use of the Services
  • 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.

3. FEES

  • Fees. Unless otherwise specified in this Agreement or the duly executed WOA, the Client must pay Fees:
    • Within 30 days of invoice date
    • by the means specified in the WOA. If the Client fails to pay any amount payable by it under this Agreement, in addition to any other rights, Biarri Networks will be entitled to charge the Client interest on the overdue amount, payable by the Client immediately on demand, from the due date up to the date of actual payment at a rate equal to the maximum amount permitted by applicable law of the state in which the associated project exits and, in no case, higher than the maximum amount permitted under federal law, and such interest shall accrue daily, be calculated weekly and be compounded monthly. With the exception of any outstanding or overdue Fees, periodic Fees will cease to be payable when the Client advises Biarri Networks that the Agreement has expired in accordance with its terms, or this Agreement is terminated whichever is sooner.
  • Taxes. All Fees specified hereunder do not include and are net of any foreign or domestic governmental taxes or charges of any kind that may be applicable to this Agreement, 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 shall be the sole responsibility of the Client.
  • Currency. All amounts are quoted and to be paid in USD unless otherwise specified in the WOA.

4. ACCEPTABLE USE OF THE SERVICES

  • WOA where FOND is included : If the WOA includes provision of the FOND™ to the Client, the Client acknowledges and accepts that the use of that platform shall be in accordance with the Acceptable Use policy described in the FOND Terms Of Service via https://biarrinetworks.com/tos/
  • This section 4.0 applies to the Client who receive Services from Biarri Networks. A User’s failure to comply with this Policy may lead to suspension or termination of the Services at Biarri’s absolute discretion.
  • All Users must use the Services in accordance with the Agreement and in accordance with all applicable laws.
  • In addition, a user must not use the Services in any fashion that would, or assist others to:
    • upload, download, post, transmit, store or otherwise make available any Data that is unlawful, harassing, threatening, harmful, defamatory, libellous, abusive, violent, obscene, vulgar, invasive of another’s privacy, hateful or racially or ethnically offensive;
    • collect or store personal data without permission;
    • promote in any way illegal or unwelcome or unsociable activities;
    • access the Services or disclose any information about the Services to any country that is subject to United States export control restrictions;
    • attempt to breach or circumvent Biarri Networks security;
    • use the Services or knowledge of the Services to assist Biarri Networks competitors; or
    • undertake promotions or undertake commercial activity not connected with the business purposes the Services are intended to support.

5. CONFIDENTIALITY

  • Obligation. 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 shall use strict measures to protect the secrecy and avoid disclosure or unauthorized use of the other Party’s Confidential Information. Each Party shall 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.
  • Exceptions. Notwithstanding the foregoing, 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.

6. PERSONAL INFORMATION AND CLIENT DATA

  • Use of Personal Information: In the course of receiving the Services under this Agreement, Client may disclose to Biarri Networks Personal Information in connection with the Client’s employees, directors, officers, customers or suppliers, and/or other users of the Services. Biarri Networks may also otherwise be provided with access to Personal Information in the course of delivering the Services. Where the Client provides Personal Information to Biarri Networks, the Client is responsible for confirming that its disclosure and/or provision of Personal Information to Biarri Networks, and Biarri Networks’ storage and/or use of such Personal Information in the manner contemplated under this Agreement is permissible under relevant Privacy Legislation. Biarri Networks collects Personal Information directly from the relevant individual(s) and Biarri Networks is solely responsible for ensuring that all acts (including collection, storage, use and disclosure) are in accordance with its Privacy Statement and otherwise permissible under the relevant Privacy Legislation.
  • Protection of Personal Information: Biarri Networks will use commercially reasonable efforts to protect Personal Information from loss, destruction or unauthorized use or access, utilizing technical, physical and administrative security measures consistent with Good Industry Practice. For the purpose of this Section 6. Personal Information And Client Data, Personal Information is not data that is in any way created or extracted from Client Data with respect to a Project or Client Data that the Client uploads or transmits (other than Personal Information provided as part of any registration processes or procedures).

7. USER COMMUNICATIONS

  • Biarri Networks may share Personal Information with third parties to perform business functions and services on its behalf including in connection with the use of the Services (such functions may include hosting servers, providing legal, accounting, marketing, research or other support services); or as required or permitted by law.
  • These third parties may be located in various countries across the globe. Where Biarri Networks does make information or data available to third parties to perform business functions and services on behalf of Biarri Networks, all such parties will be obligated to maintain the security and confidentiality of the Personal Information and to process the data in accordance with Biarri Networks’ instructions.
  • Biarri Networks either by itself or through third party service providers, will act only as a data processor and will not re-use or re-disclose Personal Information for unrelated purposes outside the provision of the Services.
  • Biarri Networks will conclude appropriate data protection contracts with all such third parties, to ensure appropriate levels of data protection is accorded to the data at all times.

8. INTELLECTUAL PROPERTY RIGHTS

  • Services. Except for Materials specified under an associated WOA, The Client acknowledges and agrees that Biarri Networks and its licensors own all right, title and interest in and to the Services, including all Intellectual Property Rights therein and thereto, including any materials or software that may be developed by Biarri Networks in the performance of the Services. No transfer of any Intellectual Property Rights occurs pursuant to this Agreement. This Agreement is not a sale and does not convey to Client any rights of ownership in or related to the Material or the Services, or any Intellectual Property Rights therein.
  • Feedback. Notwithstanding anything to the contrary in this Agreement, Biarri Networks has and retains the exclusive right to own, use and disclose, in the course of its business, all feedback provided by Client with respect to the Services and Materials.

9. SUSPENSION FOR BREACH

  • Without affecting any other rights and obligations in this Agreement or at law or equity (including a right of termination and a right to claim damages), Biarri Networks may suspend the delivery of any or all of the Services if the Client commits a breach of this Agreement and does not remedy that breach within seven days (and in the case of a breach of Section 3. Fees, Biarri Networks may further require all Fees to be payable in advance).

10. LIMITED WARRANTY AND DISCLAIMERS

  • Limited Warranty. Biarri Networks warrants to Client that Biarri Networks will use reasonable professional skill and care in providing all Services. Biarri Networks’ sole liability and Client’s sole remedy for any failure to so perform the Services will be for Biarri Networks to re-perform such Services.
  • Disclaimers. CLIENT ASSUMES ALL RESPONSIBILITIES FOR SELECTION OF THE SERVICES TO ACHIEVE CLIENT’S INTENDED RESULTS, FOR THE USE OF, AND RESULTS OBTAINED FROM, THE SERVICES, AND FOR TAKING APPROPRIATE MEASURES TO PREVENT LOSS OF DATA. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 10.1 Limited Warranty ABOVE AND SUBJECT TO THE TERMS OF SECTION 10.3 Legislation, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Biarri Networks: (A) DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE; (B) SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (C) DOES NOT WARRANT THAT THE MATERIALS WILL BE ERROR-FREE OR THAT THE SERVICES WILL BE UNDERTAKEN WITHOUT INTERRUPTIONS. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

11. LIMITATION OF LIABILITY

  • TO THE MAXIMUM EXTENT PERMITTED BY LAW Biarri Networks WILL NOT BE LIABLE FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, CONSEQUENTIAL LOSS, OR DAMAGES, LOSS OF PROFIT, INTEREST, REVENUE, BUSINESS, GOODWILL, SAVINGS OR ANTICIPATED PROFIT OR ANY LOSS OF, OR DAMAGE TO, ANY CLIENT DATA, OR LOSS OF OR INTERRUPTION TO THE CLIENT’S BUSINESS, IN EACH CASE ARISING OUT OF OR IN ANY WAY CONNECTED TO THE SERVICES INCLUDING, WITHOUT LIMITATION, LOSS OR DAMAGE CAUSED BY A COMPUTER VIRUS OR OTHER MALWARE, AND IN EACH CASE REGARDLESS OF WHETHER Biarri Networks WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  • TO THE MAXIMUM EXTENT PERMITTED BY LAW AND SUBJECT TO REGARDLESS OF WHETHER A CLAIM ARISES IN CONTRACT, TORT (INCLUDING IN NEGLIGENCE) OR OTHERWISE, UNDER NO CIRCUMSTANCES WILL Biarri Networks’ (INCLUDING ITS OFFICERS, EMPLOYEES, CONTRACTORS, AFFILIATES AND AGENTS): (A) LIABILITY IN ANY MONTH BE GREATER THAN 100% OF THE MONTHLY FEE SPECIFIED IN THE WOA FOR A SINGLE MONTH.
  • The Client and Biarri Networks agree that the disclaimer, exclusions and limitations in this Agreement are fair and reasonable given the amount of Fees paid by the Client and the number of Clients receiving the Services. The Fees charged for the Services are calculated on the basis of the validity of the indemnities, limitations and exclusions in this Agreement. Increased liability on the part of Biarri Networks would result in higher Fees. YOU ACKNOWLEDGE THAT THE FEES REFLECT THIS ALLOCATION OF RISK AND THAT THE DISCLAIMER, EXCLUSIONS AND LIMITATIONS ARE ESSENTIAL ELEMENTS OF THIS AGREEMENT.

12. INDEMNITIES

  • Biarri Networks Indemnity.
    • Obligation. Biarri Networks shall defend or at its option settle any third party claim, action or proceeding brought against Client alleging that the Services as delivered to Client and used as authorized in this Agreement, infringes any Intellectual Property Right of a third party and Biarri Networks shall pay any final judgments awarded or settlements entered into; provided that Client provides Biarri Networks with:
  • prompt written notice of such claim;
  • sole control over the defense and settlement of such claim; and
  • all necessary information and assistance (at Biarri Networks’ expense) to defend and/or settle such claim. Client may participate in the defense of a claim asserted hereunder after Biarri Networks has assumed the defense or settlement, provided that Client shall bear any legal fees and expenses or other costs it incurs in so participating. Biarri Networks shall not be liable for any costs or expenses incurred by Client by acting without Biarri Networks’ prior written authorization. Biarri Networks may not settle or compromise any claim under this SECTION 12.1 that requires Client to admit liability or pay any money without Client’s prior written consent, which consent shall not be unreasonably withheld or delayed.
  • Limit on Indemnity. Notwithstanding the foregoing, but subject always to SECTION 13.3 Termination for insolvency, Biarri Networks will have no liability for infringement claims arising from:
  • combination of the Materials with other software or products not provided by Biarri Networks, if the infringement would not have occurred if the Material had not been so combined;
  • the modification of the Services or Materials, in whole or in part, by anyone other than Biarri Networks, if the infringement would not have occurred but for such modification; or
  • use by Client of any specified release of the Services or Materials after Biarri Networks notifies Client that continued use may subject Client to such claim of infringement, provided Biarri Networks provides Client with a replacement release.
  • Replacement Materials. If any portion of the Materials is held, or in Biarri Networks opinion is likely to be held, to infringe or misappropriate a third party’s Intellectual Property Rights, or use of the Services is otherwise enjoined, then Biarri Networks may at its sole option and expense, within a commercially reasonable period of time:
  • procure for Client the right to continue using the Materials;
  • replace the Materials with non-infringing Materials; or
  • in the event that neither of the foregoing is reasonably practicable, terminate this Agreement and refund a reasonable portion of the Fees paid by Client with respect to the Materials.
  • Entire Liability. TO THE EXTENT PERMITTED BY LAW, THIS SECTION 12 STATES THE ENTIRE LIABILITY AND OBLIGATION OF Biarri Networks, AND THE SOLE AND EXCLUSIVE REMEDY OF CLIENT, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY THE SOFTWARE OR DOCUMENTATION.
  • Client Indemnity. The Client shall defend or, at its option, settle any third party claim, action or proceeding brought against Biarri Networks, any Biarri Networks Affiliate or any Biarri Networks Related Entity alleging that;
    • the Client has breached any law or regulation in the use of the Services or the Client Data, or
    • the Client has misused any Client Data or infringe any third party Intellectual Property Rights in the use of the Client Data, and Client shall pay any final judgments awarded or settlements entered into; provided that Biarri Networks provides Client with:
  • prompt written notice of such claim;
  • sole control over the defense and settlement of such claim; and
  • all necessary information and assistance (at Client’s expense) to defend and/or settle such claim. Biarri Networks may participate in the defense of a claim asserted hereunder after the Client has assumed the defense or settlement, provided that Biarri Networks shall bear any legal fees and expenses or other costs it incurs in so participating. Client shall not be liable for any costs or expenses incurred by Biarri Networks by acting without Client’s prior written authorization. Client may not settle or compromise any claim under this SECTION 12.2 that requires Biarri Networks to admit liability or pay any money without Biarri Networks’ prior written consent, which consent shall not be unreasonably withheld or delayed.

13. TERMINATION

  • Termination for Convenience. Either Party may terminate this Agreement without penalty upon 30 days prior written notice to the other.
  • Termination for Breach. Either Party may terminate this Agreement in the event that
  • either Party commits a material breach of this Agreement and where such breach is capable of remedy, fails to remedy the breach within 30 days of receiving written notice from the other Party; or
    • the Client’s access has been suspended under Section 9 and has not taken the necessary action to restore access within a further 23 days. A failure to make payment by the due date of an amount greater than 10% of Fees (whether singly or in aggregate) constitutes a material breach.
  • Termination for Insolvency. Biarri Networks may terminate this Agreement immediately by notice in writing if:
    • the Client is unable to pay its debts as and when they become due or becomes, threatens or resolves to become or is in jeopardy of becoming insolvent or subject to an order, proceedings or resolution for liquidation or dissolution (unless for the purposes of amalgamation or reconstruction,) or entering into a compromise or arrangement with, or assignment for the benefit of any of its members or creditors, or an administrator is appointed to the Client, a resolution that an administrator be appointed to it is passed or proposed, or any other steps are taken to appoint an administrator to the Client or the Client is wound up or liquidated, voluntarily or otherwise other than for the purpose of amalgamation or reconstruction whilst solvent or any event occurs having a substantially similar effect to any of the preceding events;
    • the Client, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
    • the Client, being a natural person, dies; or
    • there is a change of control of Client.
  • Payment in the Event of Termination. In the event that:
    • Biarri Networks terminates this Agreement pursuant to this SECTION 13; or
    • the Client indicates it is unwilling or unable to continue to perform its obligations, (each a “Termination Event”), without prejudice to Biarri Networks’ rights and remedies hereunder, the Client will be required to pay Biarri Networks all outstanding Fees un-invoiced as at the date of the Termination Event, unless otherwise agreed in writing. The parties agree that this payment is a genuine pre-estimate of Biarri Networks’ loss and damage arising as a consequence of the Termination Event.
  • Effect of Termination : The termination of this agreement does not affect the continuation of any previously executed WOA, unless that WOA is also terminated or the terms of that WOA specify otherwise.
  • On termination of this agreement the Client must:
    • 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 WOA);
    • 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
    • promptly return any Confidential Information of Biarri in its possession, custody or control to Biarri.
  • On termination of this agreement Biarri will promptly return any Confidential Information of the Customer in its possession, custody or control to the Customer.
  • Termination of this agreement does not:
    • prejudice any right of action or remedy of either party which accrued prior to termination; or
    • affect any WOA executed by a Customer during the Term unless otherwise agreed by the parties in writing.
  • Survival. Sections 6, 3, 4,6, 8,10.2, 11, 12, 14, 15 and 16 shall survive termination.

14. GOVERNING LAW AND DISPUTE RESOLUTION

  • Governing Law And Jurisdiction. This Agreement is governed by the laws of the state of Delaware, USA and the Client submits to the non-exclusive jurisdiction of that state and waives any right it might have to claim that those courts are an inconvenient forum.
  • Dispute Resolution.
    • Negotiation. If any dispute arises between the Parties in respect of this Agreement, or any related document, a Party must: (a) issue a written notice to the other Party notifying them of the existence of a dispute; and (b) use good faith efforts to resolve the dispute through negotiation.
    • Escalation. In the event that negotiations pursuant to SECTION 14.2 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.
    • 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 SECTION 14.2.2
    • 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.

15. MISCELLANEOUS

  • 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.
  • Entire Agreement.
    • Document Contains Entire Agreement. The documents comprising this Agreement contain the entire agreement between the Parties concerning its subject matter. The Client must authorise a WOA in order for the services to be undertaken. No other document will constitute an agreement between the parties.
    • Amendments to WOA and Client’s Standard Terms and Conditions Have No Effect. Any amendments to a WOA or this Agreement not expressly accepted in writing by an authorized Biarri Networks officer and the Client’s standard terms and conditions (if any) attached to, enclosed with, or referred to in, any purchase order are expressly excluded from and shall not form part of the Agreement.
    • Amendments to this Agreement. Biarri Networks may modify this Agreement or any additional terms that apply to the WOA with 14 days notice. Such changes will be communicated digitally to Clients. Changes will not apply retroactively and will become effective no sooner than fourteen days after they are posted. However, in certain circumstances, changes addressing new functions for a Service or changes made for legal reasons will be effective immediately. If you do not agree to the modified terms for a Service, Client shall inform Biarri Networks, immediately by notice their intentions on pursuing the services. If Client does not comply with these terms, and action is not taken immediately, Biarri Networks reserves the rights that are applicable, such as, but not limited to, taking action in the future. If a term is not enforceable, this will not affect any other terms.
    • No Reliance on Representations. The Client warrants that it has not relied on any representation, undertaking, statement or understanding which has not been stated expressly in this Agreement or upon any descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced by Biarri Networks.
  • Independent Contractor. Biarri Networks is not a party to any transactions Clients enter into with one another using the Services. Under this Agreement, Biarri Networks and its personnel will never be the employee, agent or partner of a Client, and is not engaged in a joint venture with a Client. Clients agree to waive to the maximum extent possible any and all rights they may have against Biarri Networks arising out of any transaction or dealings they conduct with another Client or third party through the Services.
  • Subcontracting And Assignment.
    • Subcontracting. Biarri Networks may sub-contract the delivery of Services under this Agreement; provided that Biarri Networks shall remain liable to the Client for the provision of such Services.
    • Assignment. Neither Party may assign this Agreement, whether by operation of law or otherwise, without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed; except that Biarri Networks may assign all or part of this Agreement to an Biarri Networks Affiliate on notice to the Client. Any attempted assignment in violation of this provision will be null and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their permitted successors and assigns.
  • Waiver. A right may only be waived in writing, signed by the Party giving the waiver, and: no other conduct of a Party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right; a waiver of a right on one or more occasions does not operate as a waiver of that right if it arises again; and the exercise of a right does not prevent any further exercise of that right or of any other right.
  • Modification. The provisions of this Agreement will not be varied, except by express written agreement and by making explicit reference to this Agreement.
  • Severability. If any provision or part-provision of this Agreement is held invalid, unenforceable or illegal by any court or tribunal for any reason, the Agreement will remain otherwise in full force apart from such provisions or part provisions which will be deemed deleted or modified to the minimum extent necessary to remove the invalidity, unenforceability or illegality.
  • Client Reference. Biarri Networks may not issue any press release regarding the Client’s use of the Services without the prior written consent of the Client (not to be unreasonably withheld, delayed or conditioned). However, Biarri Networks may use the Client’s name and logo and refer to the fact that the Client is a client of Biarri Networks in its annual report, list of references or presentations to actual or potential clients without the Client’s consent.
  • United States Export Controls. The Services uses software and technology that may be subject to United States export controls. The Client agrees that Client will not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of, the Services or any technical information about the Services to any country for which such export or re-export is restricted by any applicable U.S. regulation or statute, without the prior written consent, if required, of the government entity that has jurisdiction over such export or re-export. Biarri Networks and its licensors make no representation that the Services are appropriate or available for use in other locations. If Client uses the Services from outside of the U.S., Client is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. A failure to comply with this Section will be regarded as a material breach incapable of remedy.
  • No Third Party Beneficiaries. No provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity any rights, remedies or other benefits as a third party beneficiary.
  • Language Of Agreement. This Agreement has been written in the English language and, in the event of any conflict between the English-language version and any translation of this Agreement, the English-language version will prevail.

16. NOTICES

  • Method of Communication. A notice, consent or other communication under this Agreement is only effective if it is: (a) in writing, sent by or on behalf of and at the express instruction of the person giving it; (b) addressed in accordance with SECTION 16.2 to the person to whom it is to be given; and (c) sent via email.
  • Addresses. The Client’s representative and email address will be as specified at registration or otherwise in writing to Biarri Networks. Biarri Networks’ representative for notice will be “Biarri Networks Legal Team” and the email address is bn.legal@biarri.com.