Building Interactive Pty Ltd – Building Interactive Service Terms
1.0 Defined terms & interpretation
1.1 Defined terms
In this document:
Additional Services means services outside the then current scope of the services provided by BI under this Agreement (for example, additional training services or support services required outside of Business Hours).
Advertising means an advertisement that is embedded within the Product and is visible to End Users.
After Hours means any time outside of Business Hours.
Agreement means the Agreement Details together with these Service Terms.
Agreement Details means the document entitled ‘Services Agreement – Agreement Details’ executed by BI and a person seeking the right to access and use the Product.
Apple means Apple Inc.
Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010(Cth).
BI means Building Interactive Pty Ltd (ABN 99 610 243 653).
Business Day means:
- for receiving a notice under clause 16, a day that is not a Saturday, Sunday, public holiday or bank holiday in the place where the notice is received; and
- for all other purposes, a day that is not a Saturday, Sunday, public holiday or bank holiday in Melbourne.
Business Hours means any time between 9.00am and 5.00pm on a Business Day.
Client means the entity identified as ‘Client’ in the Agreement Details.
Client Content means any content and materials (including trade marks and other branding) provided by Client to BI for incorporation into the Product.
Client Data means data, information (including Personal Information) and other materials entered or uploaded by Client into the Product.
Client User means any Personnel of Client who are authorised by Client to access and use the Product on its behalf, including to manage and monitor access and use of the Product by End Users and/or to enter or upload Client Data into the Product.
Commencement Date means the date on which the Agreement Details are signed by the Client or BI (whoever signs later).
Confidential Information of a Disclosing Party means:
(a) the following information, regardless of its form and whether the Receiving Party becomes aware of it before or after the date of this Agreement:
- information that is by its nature confidential;
- information that is designated by the Disclosing Party as confidential; and
- information the Receiving Party knows, or ought to know, is confidential;
(b) all notes and other records prepared by the Receiving Party based on or incorporating information referred to in paragraph (a); and
(c) all copies of the information, notes and other records referred to in paragraphs (a) and (b),
(d) in the case of BI, includes the Product (including any data stored in the Product that is not Client Data or Client Content); and
(e) in the case of Client, includes Client Data and Client Content,
but in all cases excludes information that:
(f) the Receiving Party creates (whether alone or jointly with any third person) independently of the Disclosing Party; or
(g) is public knowledge (otherwise than as a result of a breach of confidentiality by the Receiving Party or any of its permitted disclosees).
Disclosing Party means a party to this Agreement who discloses or makes available Confidential Information to the Receiving Party.
Documentation means the manual (currently called the ‘BI user manual’), available online at the website www.buildinginteractive.com using access credentials provided pursuant to clause 3.1, which sets out a description of the Product and instructions for its access and use, and includes changes (including additions) to that manual from time to time.
End User means any person authorised by Client to access and use the Product other than a Client User.
External Factors means factors beyond BI’s reasonable control that affect the operation of the Product, or on which such operation is dependent, including:
- telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
- negligent, malicious or wilful acts or omissions of third parties (including BI’s third party service providers);
- maintenance or repairs carried out by BI or any third party service provider in respect of any of the systems used in connection with the provision of the Product;
- services provided by third parties (including ISP Services) ceasing or becoming unavailable; and
- Force Majeure Events.
- the Setup Fees; and
- the Subscription Fees,
and any other amounts payable to BI under this Agreement, including fees for Additional Services agreed by the parties in accordance with the process set out in clause 6payable as specified by BI to Client from time to time.
Force Majeure Event is defined in clause 15.
Initial Term means 12 months (or any other period specified in the Agreement Details) commencing on the Subscription Commencement Date.
Initial Training means the training provided to support the Product which will be available online at the website www.buildinginteractive.com using access credentials provided pursuant to clause 3.1.
Insolvency Event means any of the following events:
(a) a party disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business;
(b) a party ceases to carry on business;
(c) a party ceases to be able to pay its debts as they become due;
(d) any step is taken by a mortgagee to take possession or dispose of the whole or any part of a party’s assets, operations or business;
(e) any step is taken to enter into any arrangement between a party and its creditors; or
(f) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person of the whole or any part of a party’s assets or business.
Intellectual Property Rights means all intellectual property rights, including the following rights:
- patents, copyright, rights in circuit layouts, designs, trade and service marks (including goodwill in those marks), domain names and trade names and any right to have confidential information kept confidential;
- any application or right to apply for registration of any of the rights referred to in paragraph (a); and
- all rights of a similar nature to any of the rights in paragraphs (a) and (b)that may subsist anywhere in the world (including Australia),
whether or not such rights are registered or capable of being registered.
ISP Services is defined in clause 4.4.
Personal Information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:
- whether the information or opinion is true or not; and
- whether the information or opinion is recorded in a material form or not.
Personnel means, in relation to a party, the officers, employees, contractors and agents of that party.
Product means the hosted software platform and mobile applications provided by BI to Client under this Agreement that enable Client to manage, monitor and make available data in relation to a Real Estate Community, as more particularly described in the Documentation.
Real Estate Community means the building, development, subdivision, hotel, resort, cruise ship or other community for which the Product is tailored and made available to Client under this Agreement, as set out in the Agreement Details.
Receiving Party means a party to this Agreement who obtains Confidential Information of the other party to this Agreement.
Renewal Term is defined in clause 3.3(b).
Setup Fees means the fees payable by Client for the Setup Services, as set out in the Agreement Details or otherwise specified to Client by BI from time to time.
Setup Services means the setup services described in the Agreement Details, and includes the conduct of the Initial Training.
Subscription Commencement Date means the date on which access to the Product is made available to End Users through it being launched in the app stores for both Apple and Android products.
Subscription Fees means the fees payable by Client for the access and usage rights granted in respect of the Product. as set out for the Initial Term in the Agreement Details and as varied from time to time under clauses 6.3 and 9.2.
Subscription Period means the Initial Term and all Renewal Terms.
Support Inquiry means any call, email or inquiry to use the Support Services.
Support Services means client support services by telephone or email provided by BI during Business Hours to support Client in the use of the Product, which exclude:
- support requited to remedy or rectify any faults in the Product arising due to External Factors;
- faults arising due to use of the Product in a manner that contravenes this Agreement, the Documentation or the instructions of BI’s support team; or
- the making of any changes to the Product (apart from the tailoring of content and functionality provided by BI as part of the Setup Services).
Term means the period commencing on the Commencement Date and ending on the effective date of termination of this Agreement under clause 13.
Users means the Client Users and the End Users.
In this Agreement, unless otherwise stated, or where the context otherwise requires:
- the singular includes the plural and vice versa, and a gender includes other genders;
- another grammatical form of a defined word or expression has a corresponding meaning;
- a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
- a reference to A$, $A, dollar or $ is to Australian currency;
- a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
- a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it;
- if a day on which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed of the event must occur on or by the next Business Day; and
- the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions.
Headings are for ease of reference only and do not affect interpretation.
2.0 Setup Services
Subject to Client’s payment of the Setup Fees in accordance with this Agreement, BI will provide the Setup Services to Client as soon as practicable after the Commencement Date (or at such later date as the parties may agree in writing).
2.2 Information and assistance
- acknowledges that the provision of the Setup Services will require Client to provide BI with certain information and access to Client’s systems, data and Personnel; and
- agrees to promptly provide BI with all such information and access at BI’s request.
3.0 Use of Product
3.1 Grant of licence
Subject to Client’s payment of the Fees in accordance with this Agreement, BI grants to Client a non-exclusive, nontransferable, revocable licence to allow:
- End User access and use of the Product; and
- Client User access to and use of aspects of the Product for administrative purposes,
3.2 Access credentials
BI will provide Client with access credentials and passwords in order for Client to permit End Users and Client Users to exercise the rights referred to in clause 3.1, provided:
- BI will only provide access credentials and passwords for End Users if Client informs BI that it wishes to require End Users to have login details to use the Product; and
- Client will be responsible for allocating and issuing the access credentials to Users.
3.3 Licence term
The licence granted to Client under clause 3.1 commences on the Subscription Commencement Date and will continue:
- for the Initial Term; and
- automatically for successive 12 month periods thereafter (each a Renewal Term),
unless this Agreement is terminated in accordance with clause 13.
4.0 Usage conditions and responsibility for Users
4.1 Compliance with directions
Client must comply with all reasonable directions issued by BI regarding access to and use of the Product.
4.2 Access and usage restrictions
Client must not (and must ensure that the Users do not):
- modify, add to, adapt, delete or amend any part of the Product without BI’s prior written consent;
- sell, translate, network, publish, commercialise, rent, lease, assign, transfer, loan, encumber, or otherwise distribute all or part of the Product, or any adaptation, modification, translation, localisation, port or derivative of all or part of the Product;
- reverse engineer, disassemble, or decompile any software forming part of the Product, unless permitted to do so by law, and then only strictly in accordance with the provisions or terms under which that right is given by such law;
- use the Product:
- other than in accordance with this Agreement;
- for any unlawful purpose; or
- in a manner than contravenes any applicable laws;
- remove, obscure or interfere with any copyright, acknowledgment, attribution, trade mark, warning, disclaimer statement, rights management information or serial numbers incorporated in or otherwise applied in connection with the Product;
- (except in respect of Client Data and Client Content) copy or download, in a systematic manner, any content, graphics, video, text or animation from the Product, or communicate or otherwise distribute such systematically-obtained content, graphics, video, text or animation (or allow any User to do so); or
- directly or indirectly, introduce or permit the introduction by its Personnel or any User of any virus, worm, trojan or other malicious code into the Product, or in any other manner whatsoever corrupt, degrade or disrupt the operation of the Product.
4.3 Responsibility for Users
- Client must ensure that each Client User keeps his or her username and password confidential and secure.
- agrees that it will be responsible and liable for the acts and omissions of each User in connection with the Product and this Agreement as if they were Client’s acts and omissions; and
- accepts all liability for any unauthorised use of any username and password issued to any Client User (other than any unauthorised use resulting from any negligent act or omission legally attributable to BI).
4.4 Equipment and third party services
Client is solely responsible for obtaining and maintaining (and ensuring that End Users obtain and maintain) all equipment, hardware and software, and all telecommunications services, required by Client and Users to access and use the Product, including access to an account for the provision of internet services (ISP Services) with an internet service provider.
5.0 Support Services
5.1 Provision of Support Services
Subject to Client’s payment of the Fees in accordance with this Agreement, BI will provide Client with Support Services during the Term. To avoid any doubt, any services outside the scope of the Support Services or Initial Training will constitute Additional Services.
6.0 Additional Services
6.1 Request for Additional Services
Where Client requests in writing that BI provide Additional Services in relation to the Product, BI will consider the Additional Services requested by Client and will notify Client within a reasonable period of time whether it is willing to provide those Additional Services.
Where BI is willing to provide those Additional Services, the parties will negotiate in good faith to agree a written proposal for the Additional Services. BI will be under no obligation to provide the relevant Additional Services unless a duly authorised representative of each party has signed that proposal.
6.3 Effect on Subscription Fees
If the proposal for Additional Services signed by the parties’ authorised representatives under clause 6.2 provides for any variation to the Subscription Fees, that variation will take effect in accordance with the proposal terms.
7.1 Advertising procured by Client
- Client may procure Advertising for uploading into the Product, subject to compliance with the relevant terms set out in the Agreement Details (including in relation to any revenue sharing) and the remainder of this clause 7.1.
- BI may elect not to permit Advertising procured by the Client to be displayed to End Users within the Product if, in BI’s view, that Advertising is inappropriate or may adversely affect BI’s name or reputation.
- Any Advertising procured by Client must meet any specifications set by BI, including as to the size and location within the Product of the Advertising.
7.2 Advertising procured by BI
- BI may (but is not obliged to) procure Advertising if this is permitted by, and on the terms set out in, the Agreement Details (including in relation to any revenue sharing).
- Client acknowledges and agrees that the Advertising may contain third party content. BI makes no representations that the content of any Advertising is accurate, up-to-date or complete. Client must not, and must ensure that Users do not, make any claim or bring any action against BI in relation to any Advertising.
8.0 Intellectual Property Rights
8.1 Client Data and Client Content
BI agrees that Client (and/or its third-party licensors) owns (and will retain) all rights, title and interest (including all Intellectual Property Rights) in Client Data and Client Content. Client grants to BI a non-exclusive license to store and use Client Data (including as aggregated and otherwise modified by BI or the operation of the Product) and Client Content in the Product (including in encrypted form) for the purpose of:
- enabling BI to perform its obligations under this Agreement; and
- except in relation to Personal Information, enabling BI to license the Product (or an updated or modified version of it) to a new client who has an interest in the Real Estate Community (including a developer, real estate agent, owner, property manager or owners’ corporation) after the end of the Term, including by permitting that client to grant sub-licences allowing access to and use of the Product (including the relevant Client Data and Client Content) by third parties.
8.2 Product,Documentation and Advertising
Client agrees that BI (and/or its third party licensors) owns (and will retain) all rights, title and interest (including all Intellectual Property Rights) in the Product, the Documentation and Advertising.
BI will invoice Client for the Fees as follows:
(a) Setup Fees will be invoiced:
- as set out in the Agreement Details; and
- otherwise from time to time as and when additional Setup Services are procured by Client; and
(b) Subscription Fees will, unless otherwise set out in the Agreement Details, be invoiced yearly in advance on the first day of each calendar month.
Client must pay each invoice issued under this Agreement in the manner, and within the timeframe, specified in that invoice.
9.2 Fee increases
BI may increase the Subscription Fees by not more than 5% annually by giving not less than 45 days’ prior written notice to Client.
9.3 Interest on late payments
If any amount payable under this Agreement is in arrears for more than thirty (30) days, BI reserves the right to charge interest on such overdue amounts, calculated daily at the Westpac Bank Indicator Rate plus 2% per annum from the due date until the outstanding amount is paid.
10.1 Defined terms
In this clause 10, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999(Cth) has the meaning given to it in that Act.
10.2 GST inclusive amounts
For the purposes of this Agreement, where the expressionGST inclusive is used in relation to an amount payable or other consideration to be provided for a supply under or in connection with this Agreement, the amount or consideration will not be increased on account of any GST payable on that supply.
10.3 Consideration GST exclusive
Any consideration to be paid or provided for a supply made under or in connection with this Agreement, unless specifically described in this Agreement as GST inclusive, does not include an amount on account of GST.
10.4 Gross up of consideration
Despite any other provision in this Agreement, if a party (Supplier) makes a supply under or in connection with this Agreement on which GST is imposed (not being a supply the consideration for which is specifically described in this Agreement as GST inclusive):
- the consideration payable or to be provided for that supply under this Agreement but for the application of this clause (GST exclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to the Supplier, an amount equal to the GST payable by the Supplier on that supply; and
- the amount by which the GST exclusive consideration is increased must be paid to the Supplier by the Recipient without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.
10.5 Reimbursement (net down)
If a payment to a party under this Agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense.
11.0 Confidentiality and privacy
11.1 Use of Confidential Information
A Receiving Party may use Confidential Information of the Disclosing Party only for the purposes of this Agreement.
11.2 Disclosure of Confidential Information
(a) Subject to clause 11.3, a Receiving Party must keep confidential all Confidential Information of the Disclosing Party and may only disclose the Confidential Information for the purposes of this Agreement, and then only to those persons who:
- have a need to know for the purposes of this Agreement (and only to the extent that each has a need to know); and
- before disclosure, have agreed in writing with the Receiving Party to comply with substantially the same obligations in respect of Confidential Information of the Disclosing Party as those imposed on the Receiving Party under this Agreement (aConfidentiality Undertaking).
(b) A Receiving Party must ensure that each person to whom it discloses Confidential Information of the Disclosing Party under this clause 11.2 complies with its Confidentiality Undertaking.
11.3 Disclosure required by law
If a Receiving Party is required by law to disclose any Confidential Information of a Disclosing Party to a third person (including government) the Receiving Party must:
(a) before doing so:
(i) notify the Disclosing Party; and
(ii) give the Disclosing Party a reasonable opportunity to take any steps that the Disclosing Party considers necessary to protect the confidentiality of that information; and
(b) notify the third person that the information is confidential to the Disclosing Party.
11.4 Compliance with privacy laws
Each party agrees that, to the extent that they come into possession of any Personal Information in the course of exercising their rights or performing their obligations under this Agreement, they will comply with the provisions of the Privacy Act 1988(Cth).
11.5 Remedy for breach of confidentiality or privacy obligations
Each party acknowledges that damages may be an insufficient remedy for a breach, or suspected breach by the Receiving Party of its obligations under this clause 11, and agrees that the Disclosing Party may seek such equitable relief (including injunctive relief) as is necessary to remedy or prevent such breach without having to prove or establish any special damage arising from such breach or suspected breach.
12.0 Exclusion, limitation of liability and indemnity
12.1 No exclusion or limitation
(a) To the extent that Client acquires goods or services from BI as a consumer within the meaning of the Australian Consumer Law, Client may have certain rights and remedies (including consumer guarantee rights) that cannot be excluded, restricted or modified by agreement.
(b) Nothing in this clause 12 operates to exclude, restrict or modify the application of any condition, warranty or provision implied by law, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law or any other statute where to do so would:
- contravene that statute; or
- cause any term of this Agreement to be void,
(c) To the extent permitted by law, BI’s liability in respect of Non-excludable Obligations is limited to:
- the repair or, if necessary, the replacement of, the goods; and
- the supplying again of any services,
supplied under this Agreement.
12.2 Exclusion of implied obligations and limitation of liability
Except in relation to Non-excludable Obligations:
- all conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied or imposed by custom, under the general law or by statute are expressly excluded under this Agreement; and
- BI’s liability to Client arising directly or indirectly under or in any way connected with this Agreement or the performance or non-performance of this Agreement (and whether arising under any statute, in tort (for negligence or otherwise), or on any other basis in law or equity), is limited as follows:
(i) BI excludes all liability for loss of revenue, loss of goodwill, loss of customers, loss of capital, downtime costs, loss of profit, loss of or damage to reputation, loss under or in relation to any other agreement, loss of data, loss of use of data, loss of anticipated savings or benefits, or any indirect, consequential or special loss, damage, cost or expense or other claims for consequential compensation, incurred by or awarded against Client in relation to the Product, or under or in any way connected with this Agreement; and
(ii) BI’s total aggregate liability in respect of the Product, or under or in any way connected with this Agreement, is otherwise limited to the amounts paid by Client to BI under this Agreement in the 12 months immediately preceding the date on which the claim giving rise to such liability arose.
12.3 No guarantee of access
Except in relation to Non-excludable Obligations, Client acknowledges and agrees that BI makes no representations, warranties or guarantees in relation to the availability, continuity, reliability or security of the Product (or any services provided in connection with the Product). BI will not be liable if the Product (or any services provided in connection with the Product) are unavailable for any reason, including directly or indirectly as a result of any External Factors.
Client indemnifies BI against all expenses, losses, damages and costs (on a solicitor and own client basis and whether incurred by or awarded against BI), that BI may sustain or incur as a result, whether directly or indirectly, of any claim by any person against BI in any way related to the Product.
12.5 Client Data and Client Content
Client acknowledges and agrees that Client is solely responsible for the accuracy and completeness of Client Data and Client Content.
13.1 Termination without cause
(a) Either party may terminate this Agreement without cause by giving not less than thirty (30) days’ notice prior to the expiry of:
- the Initial Term; and
- any Renewal Term.
(b) To avoid doubt, if neither party gives notice of termination within the timeframe specified in paragraph (a) above, then this Agreement will automatically renew:
(i) at the expiry of the Initial Term – for the Renewal Term; and
(ii) at the expiry of any Renewal Term – for a further Renewal Term,
and Client will be required to pay all applicable Fees for that Renewal Term in accordance with clause 9.
13.2 Termination for cause
Either party may terminate this Agreement immediately by notice in writing if the other party:
- breaches any term of this Agreement that is not capable of remedy;
- breaches any term of this Agreement that is capable of remedy and fails to rectify that breach within 14 days of receiving a notice from the first-mentioned party requiring it to do so; or
- suffers an Insolvency Event.
13.3 Rights and obligations on expiry or termination
On the date of expiry or effective termination of this Agreement:
- the licence granted under clause 3.1 terminates;
- Client must immediately cease using (and must procure that all of its Users immediately cease using) the Product; and
- Client must within thirty (30) days of such termination send to BI, or otherwise dispose of in accordance with BI’s directions, all of BI’s Confidential Information relating to the Product (including the Documentation) then in Client’s (or its Users’) possession or control.
- Client undertakes to BI that Client will not (either personally or through or on behalf of any other person or entity), during the Restricted Period, be engaged or involved (including indirect or direct engagement or involvement) in any business or activity which is the same as or similar to, or which competes with, the Restricted Business or any material part of the Restricted Business, anywhere in Australia.
- Paragraph (a) is to be construed and has effect as if it were a number of separate paragraphs which result from combining the undertaking in paragraph (a) with each period specified in paragraphs (c)(ii)(A), (c)(ii)(B), (c)(ii)(C), (c)(ii)(D) and (c)(ii)(E).
- In this clause 14:
- Restricted Business means BI’s software application business, or any significant part of that business, as it is conducted from time to time, and includes the development, hosting, support and/or distribution of any product that is the same as or similar to the Product; and
- Restricted Period means:
- the Term and 12 months following the expiry or termination of this Agreement;
- the Term and 9 months following the expiry or termination of this Agreement;
- the Term and 6 months following the expiry or termination of this Agreement;
- the Term and 3 months following the expiry or termination of this Agreement;
- the Term.
15.0 Force majeure
The non-performance or delay in performance by a party of any obligation in this Agreement is excused during the time and to the extent that such performance is prevented by a circumstance or event beyond its reasonable control (Force Majeure Event), provided that the party affected by the Force Majeure Event uses all reasonable endeavours to perform as soon as possible its obligations under this Agreement (including by the use of reasonable workarounds and interim measures). This clause 15 does not apply to any obligation to pay money.
- Any notice required or authorised to be given or served on a party under this Agreement must be in writing and delivered personally, by pre-paid express post, by facsimile or by email addressed to the relevant party.
- Notice will be deemed given on the date of personal delivery; if posted by pre-paid express post within the three (3) days of mailing; if sent by facsimile on receipt by the sender’s facsimile machine of notification from the receiver’s machine that all pages were successfully transmitted; and if sent by email, when the sender’s system registers that the email has passed the internet gateway of the sender’s system (and no delivery failure or out of office message is received by the sender within 1 hour of sending).
- This Agreement may be altered only in writing signed by each party.
- Each party must pay its own costs of negotiating, preparing and executing this Agreement.
- Client may not assign this Agreement (or any right under it) or purport to novate any of its obligations under this Agreement to another person without the prior written consent of BI.
- This Agreement may be executed in counterparts. All executed counterparts constitute one document.
- This Agreement is governed by the laws of Victoria, Australia and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria, Australia.
- This Agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.
18.0 Apple-specific terms and conditions
- Client further acknowledges and agrees to the provisions of this clause 18 with respect to Client’s use of the version of the Product that is compatible with the iOS operating system of Apple.
- is not a party to this Agreement and is not responsible for the Product nor the content contained in the Product;
- is not responsible for providing any maintenance or support services in respect of the Product and has no obligation whatsoever to furnish any maintenance or support services in respect of the Product;
- is not providing any warranties for the Product, except if applicable, to refund the purchase price for it;
- is not responsible for addressing any of Client’s claims in relation to the Product, including product liability claims, claims relating to a failure of the Product to conform with any legal or regulatory requirement, or claims arising under consumer protection legislation; and
- is not responsible for any claim that the Product or Client’s possession or use of the Product infringes any third party’s intellectual property rights, nor is Apple responsible for the investigation, defence, settlement or discharge of any such claim. Any inquiries or complaints relating to the use of the Product, including those pertaining to intellectual property rights, must be directed to BI.
- Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement and from the Commencement Date Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against Client. BI’s right to enter into, rescind or terminate any variation, waiver or settlement under this Agreement, however, is not subject to the consent of any third party.
- The licence granted to Client under this Agreement is limited to a non-transferable licence to use the Product on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by Client, or as otherwise permitted by the Usage Rules set out in Apple’s App Stores Terms of Service.