Australian Terms and Conditions
These Terms were last updated on 19 May 2025.
These terms and conditions govern the relationship between Bactosure Solutions Limited (BSL, we, us or our) and the Customer.
BSL is the developer and provider of the Bactosure Solution and is accredited by International Accreditation New Zealand (IANZ) under ISO/IEC 17025.
BSL intends to establish an Australian subsidiary, Bactosure Australia Pty Ltd (BAPL), as the local contracting party for Australian customers. Once incorporated, the rights and obligations under this agreement may be novated to BAPL, and services will continue to be performed by BSL as subcontractor. In these Terms, any person who accesses or uses the Bactosure Solution is referred to as you or your.
These Terms set out our, and your, rights and obligations in relation to your use of the Bactosure Solution. Please read these Terms carefully before subscribing to use or access the Bactosure Solution.
By subscribing to use or access the Bactosure Solution you agree to follow and be bound by these Terms (including our Privacy Policy). If you cannot agree to what is contained in these Terms, you must not access or use the Bactosure Solution.
These Terms may be varied by us at any time, effective upon the posting of modified terms on the Bactosure Website or as otherwise notified to you in writing (including by email). You will ensure that you have read, understood and agreed to the most recent version of these Terms. Your continued use of the Bactosure Solution after we have posted or otherwise notified you of the modified terms will be taken as your agreement to them.
1. Use Restrictions
1.1 From the date that you agree to these Terms until the termination of these Terms, we grant you a non-exclusive, revocable, non-transferable and non-sublicensable right to access and use (and to enable Authorised Users to access and use) the Bactosure Solution and Documentation (if any) solely to carry out microbiological tests to detect bacteria for your own personal or internal business purposes (Purpose) in accordance with all applicable laws and the terms of these Terms.Community
1.2 You acknowledge and agree that:
(a) you will be responsible for determining which of your Authorised Users can access and use the Bactosure Solution;
(b) you, and your Authorised Users, will create an account to access the Bactosure Solution by setting up accounts on the Bactosure Website or downloading the Bactosure App, and accepting the Bactosure App Terms;
(c) you will ensure that your Authorised Users comply with these Terms, and such other terms and conditions (including, all training materials and safety guidelines for the Bactosure Solution) as we may notify to you in writing from time to time (the Terms of Use); (d) any act or omission of Authorised Users relating to the use of the Bactosure Solution will be treated as your act or omission. Without limiting our other rights and remedies, we can terminate any authority or access you have granted to any of your Authorised Users if we consider that they have put you in breach of the Terms of Use;
(e) you are responsible for the safe and proper disposal of microbiological test samples performed through the Bactosure Solution; and
(f) you will obtain any licences, authorisations or consents to enable us to carry out our obligations under the Terms of Use (including in relation to any Customer Data provided to us in connection with the Terms of Use).
1.3 You will (and will ensure that your Authorised Users):
(a) comply with all applicable laws (including, all safety regulations or guidelines issued by your local regulator) with respect to use of the Bactosure Solution and the disposal of microbiological test samples performed through the Bactosure Solution;
(b) keep the logins and passwords for access to, and use, of the Bactosure Solution and Documentation secure and confidential;
(c) use all reasonable efforts to prevent any unauthorised access to, or use of, the Bactosure Solution and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify us;
(d) allow us at any time to audit your or your Authorised Users use of the Bactosure Solution to establish whether the Bactosure Solution is being used in accordance with the Terms of Use; and
(e) promptly disable any login account if we discover (through undertaking the audits referred to in clause 1.3(d)) that any login details have been provided to any third party.
1.4 You will not access the Bactosure Solution to build a product or service which is the same or similar to, or otherwise competes with the Bactosure Solution.
1.5 You will be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to our data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.
1.6 You must, and must ensure that your Authorised Users involved in carrying out microbiological tests while accessing the Bactosure Solution: (a) act impartially (and in a manner that safeguards impartiality);
(b) not allow commercial, financial or other pressures to compromise impartiality; and (c) act in full compliance with the standards set out in ISO/IEC 17025:2017 (or any other replacement standard).
BSL reserves the right, at their sole discretion, to withdraw any test report that is prepared as a result of your use of the Bactosure Solution where a breach of this clause 1.6 is identified. Where we withdraw a report, it will be clearly marked to indicate a breach of impartiality, and no reference to Bactosure s laboratory accreditation will be displayed. You agree that neither you or your Authorised Users will undermine the credibility of testing or the reports, including by suggesting that a report is accredited, editing a report, or removing any mark we include. To the maximum extent permitted by law, you agree that we and BSL will not be liable to you for any losses, costs, damages or expenses (Losses) that you or your Authorised Users suffer due to the withdrawal of a report or where a report is not recognised as compliant because of a breach of this clause 1.6.
1.7 Where BSL reasonably believes that continued processing of a test may compromise result integrity, regulatory compliance, or BSL s accreditation, BSL may, via BAPL, suspend analysis or reporting until the issue is resolved.
1A. Novation to BAPL
1A.1 The Customer acknowledges that this agreement is initially entered into with BSL, a company incorporated in New Zealand and accredited under ISO/IEC 17025 by International Accreditation New Zealand.
1A.2 BSL intends to incorporate an Australian subsidiary, BAPL, to support operations and customer engagement in Australia.
1A.3 Upon incorporation of BAPL, BSL may novate this agreement to BAPL by providing the Customer with written notice. From the date specified in that notice:
(a) BAPL will become the contracting party to this agreement in place of BSL;
(b) All rights and obligations of BSL under this agreement will transfer to BAPL; and
(c) BSL will continue to perform all microbiological testing services as a subcontractor to BAPL.
1A.4 The Customer agrees that no further action is required on their part to give effect to this novation, and the Customer’s rights and obligations will continue without interruption.
2. Support
2.1 We will provide you with reasonable remote technical support and assistance (as reasonably determined by us) during Business Hours in respect of: (a) any support requests made by you or an Authorised User via email to [email protected] or via the chat portal on the Bactosure Website; and (b) any user related errors we discover from proactively monitoring the use of the Bactosure Solution.
2.2 We will endeavour to respond to support requests submitted in accordance with clause 2.1(a) within 48 Business Hours of receiving that request.
3. Device
3.1 The Bactosure Solution includes a bacterial testing device (Device). The Device can only be used in conjunction with the Bactosure Solution. The Device remains BSL s property at all times.
3.2 We will deliver the Device to your location(s) and on the date(s) as agreed between you and us in writing. Time of delivery of the Device is approximate only and will not be of the essence. Delivery will be completed when the Device is unloaded at the location agreed between you and us. The risk of damage to or loss of the Device will pass to you on delivery. We will invoice you for the reasonable delivery costs of the Device.
3.3 We make no representations and give no warranties as to the fitness or suitability of the Device for any purpose, other than for detecting the bacteria based on the type of subscription you have selected on the Bactosure Website. All implied statutory or common law terms, conditions and warranties as to the Device are excluded to the fullest extent permitted by law.
3.4 You:
(a) must ensure (and must procure that your Authorised Users ensure) that the Device is used only for the Purpose and you comply with all instructions and recommendations that we provide; and
(b) acknowledge that any applicable warranty in relation to the Device will depend on you ensuring it remains at all times in good working order and condition as set out in any Documentation.
3.5 You must not (and must procure that your Authorised Users do not):
(a) without our prior written consent, service, repair, deface, or remove any identification from, the Device; or
(b) except to the extent permitted by law, reverse-engineer, decompile, disassemble or modify the Device.
3.6 You must not sell, pledge, hire, dispose, sublet or create or permit any Security Interest (that is not in our favour) in the Device, or any other interest in the Device, without our prior written consent. You will protect the Device from distress or seizure.
3.7 You acknowledge that if you dispose of or otherwise deal with the Device in breach of clause 3.6, that our interest (including any Security Interest) continues despite the disposal or dealing.
3.8 You must not use or install the Device in any manner that would lead to the Device becoming a fixture to land.
3.9 You acknowledge and agree that these Terms of Use constitute a security agreement for the purposes of section 20 of the Personal Property Securities Act 2009 (Cth) (PPSA), and that your possession of the Device under these Terms of Use constitutes a PPS Lease under section 13 of the PPSA (where applicable).
3.10 You acknowledge that the Device remains the property of BSL (or its nominee), and that title and ownership of the Device does not transfer to you at any time. You must not purport to sell, assign, transfer, or otherwise deal with the Device in any manner inconsistent with our ownership.
3.11 You grant us a security interest in the Device and all proceeds derived from its use, as security for your obligations under these Terms of Use, including payment of fees and return of the Device.
3.12 You agree that we may register one or more financing statements on the Personal Property Securities Register (PPSR) to protect our security interest in the Device.
3.13 You undertake to:
(a) promptly do all things (including executing documents) and provide all information we reasonably require to perfect and maintain the priority of our security interest under the PPSA;
(b) not register a financing change statement or demand without our prior written consent;
(c) notify us at least 30 days prior to any change in your name, address, or other details relevant to the PPSR registration.
3.14 (f) To the maximum extent permitted by law, you:
(a) waive your right to receive any notices under sections 95, 118, 121(4), 130, 132(3)(d), and 132(4) of the PPSA;
(b) waive your rights under sections 142 and 143 of the PPSA;
(c) agree that sections 125, 129(2), 132, and 135 of the PPSA do not apply.
3.15 Nothing in these Terms of Use constitutes a consent by us to any other security interest attaching to, or subsisting over, the Device or any proceeds.
3.16 If the Device is lost, stolen or damaged beyond economic repair (Affected Device), you must immediately notify us and within a reasonable period of time (as determined by us) of such notification (or us otherwise becoming aware), and you must pay to us the full replacement cost of the Affected Device (such replacement cost to be reasonably determined by us). If you do not pay us the full replacement cost by the date specified by us, then we will treat the outstanding amount as a debt to us and may refer it to a third party provider for debt recovery.
3.17 You must do everything necessary to protect our title to and Security Interest in the Device, including advising the Authorised Users and other third parties of our ownership of and (if applicable) our Security Interest in the Device.
3.18 If we reasonably determine that it is appropriate to repossess a Device in accordance with the Terms of Use, then you authorise us or any third party authorised by us to enter any land or premises where we reasonably believe the Device is located and remove the Device.
4. Customer Data
4.1 You acknowledge and agree that as between you and us, you own the Customer Data. You grant, or will procure that your licensors grant, us and BSL a royalty-free, non-exclusive, transferable, sub-licensable right to:
(a) access, use, modify and store the Customer Data as required to provide the Bactosure Solution in accordance with the Terms of Use;
(b) process and use Customer Data and information about your (including your Authorised Users ) use of the Bactosure Solution to generate anonymised and aggregated statistical and analytical data (Bactosure Analytical Data); and (c) process and use Customer Data to comply with our or BSL s legal obligations (for example, where we are required by law to report certain test results to public health agencies).
4.2 For clarity, if this agreement is novated to BAPL, the reference to we in this clause 4 will include BAPL, and BSL will continue to process Customer Data in accordance with these Terms as subcontractor.
4.3 The Bactosure Analytical Data (and any Intellectual Property Rights in respect of the Bactosure Analytical Data) are, and will remain at all times, BSL property. Except as expressly provided in the Terms of Use, you are not granted any Intellectual Property Rights, or any other rights or licences, in respect of the Bactosure Analytical Data. We and BSL may use the Bactosure Analytical Data for our own purposes, including (without limitation) to improve and/or enhance the delivery of the Bactosure Solution to you and our other customers, or assist in the delivery of new products or services. The Bactosure Analytical Data may also be provided to other third party service providers or entities involved in the delivery or testing of drinking water (subject to any agreement that we may enter with those providers or entities). We and BSL provide Bactosure Analytical Data to third party service providers to ensure that microbiological issues in water bodies and infrastructure can be detected and access to clean drinking water is promoted in the communities where we provide the Bactosure Solution.
4.4 You agree that we and BSL may process Customer Data: (a) on servers located in Australia, New Zealand and the United States of America, and Customer Data may be accessed from those locations; and
(b) where the Customer Data includes Personal Information, in accordance with our Privacy Policy.
4.5 Each party must, and must ensure that its users and other personnel who have access to Personal Information in the course of providing or accessing the Bactosure Solution will, comply with the Privacy Act 1988 (Cth) and the Australian Privacy Principles, where applicable, when dealing with any Personal Information provided by a party to the other under this Agreement.
4.6 You will have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data inputted or provided by you or your Authorised Users for the purpose of using the Bactosure Solution.
5. Fees
5.1 You will pay the Fees, in advance, on a three-monthly, six-monthly, or annual basis as chosen by you at sign up to use the Bactosure Solution on the Bactosure Website. Unless otherwise agreed in writing, all Fees will be charged to your nominated debit or credit card on the due date for payment and are non-refundable (except where a refund under clauses 10.2(b) or 10.6(a) applies). If you do not provide us with your debit or credit card details, then we will provide you with an invoice for the Fees.
You agree that you will pay our invoice within 30 days of the date of the invoice.
5.2 If you fail to pay any Fees when due, then (without prejudice to any of our other rights and remedies) we may, without liability to you, disable access to all or part of the Bactosure Solution, and will be under no obligation to provide the Bactosure Solution to you while the outstanding Fees remain unpaid.
5.3 All amounts stated on the Bactosure Website as the Fees are exclusive of value added or goods and services tax (if any), and will be invoiced in the currency stated on the Bactosure Website when you choose your subscription model. If you are required by law to deduct or withhold taxes or charges from the amounts due to us under the Terms of Use, you will ensure that the amount due to us is increased so that the payment actually made to us equals the amount due to us as if no such taxes or charges had been imposed. For the avoidance of doubt, you are responsible for all import taxes or duties associated with the delivery of any part of the Bactosure Solution or Additional Materials (as defined in clause 5.5 below) to you.
5.4 We may change the Fees by giving you at least 30 days written notice prior to the end of your then current Subscription Period. If you do not wish to pay the changed Fee, you may terminate your access to the Bactosure Solution by giving notice to us at least five Business Days prior to the effective date of the changed Fees.
5.5 Depending on the length of the Subscription Period you select on the Bactosure Website, we will regularly provide you with sample bags and test media to use in connection with the Bactosure Solution (Additional Materials). Unless otherwise agreed in writing, the fees for the Additional Materials and the delivery costs will be invoiced to you. You agree that you will pay our invoice for Additional Materials within 30 days of the date of the invoice. Once we have received payment of our invoice, we will arrange for delivery of the Additional Materials to you. Delivery will be completed when the Additional Materials are provided to you at the location agreed between you and us. The risk of damage to or loss of the Additional Materials will pass to you on delivery.
6. Intellectual Property Rights
6.1 You acknowledge and agree that we or our licensors own all Intellectual Property Rights in the:
(a) Bactosure Solution and Documentation; and
(b) Bactosure Analytical Data,including any modifications or enhancements (together, Bactosure IP).
Except as expressly stated in the Terms of Use, we do not grant you any Intellectual Property Rights in or to, or any other rights or licenses in, the Bactosure IP.
6.2 You acknowledge and agree that the Bactosure IP may include open source software that has been contributed by third parties and all Intellectual Property Rights in that software remains with those third parties.
6.3 You may provide us with comments, suggestions and other feedback regarding the Bactosure IP, including but not limited to usability, missing features, functional errors, and bug reports (Feedback). You agree that any Feedback provided to us may be used by BSL and us for any purpose and, without compensation of any kind to you, and BSL will be the sole owner of any and all software, documentation, improvements or other items developed by us that may relate to such Feedback.
6.4 You must not use, copy, modify or distribute the Bactosure IP without our prior written consent, and you agree that we and BSL may take enforcement action directly against you or any third party to protect the Bactosure IP.
6.5 This clause 6 will survive termination of the Terms of Use.
7. Confidentiality
7.1 Subject to clause 7.2, the Recipient must:
(a) keep any Confidential Information of the other party confidential and secure;
(b) only use the other party s Confidential Information to exercise its rights and perform its obligations under the Terms of Use; and
(c) only disclose the other party s Confidential Information to its employees, agents and contractors who need to know it for those purposes, ensuring they keep it confidential.
7.2 The obligations of confidentiality in clause 7.1 will not apply to information that:
(a) the Recipient has prior written consent from the other party to disclose and/or use;
(b) the Recipient can clearly show was independently available to it, and without restriction on the Recipient, from a third party with the right to disclose it; or
(c) is in the public domain through no fault of the Recipient or any other person to whom the Recipient discloses the information.
7.3 In order for BSL to provide the Bactosure Solution, both parties agree to provide Confidential Information to BSL. We will contract with BSL so that the obligations in this clause 7 apply to them.
7.4 Without limiting our or BSL s rights in relation to Customer Data set out in clause 4.1(c), where the Recipient is obliged by law, a regulator or the rules of any stock exchange to disclose the other party s Confidential Information, the Recipient may do so provided that the Recipient has (to the extent legally permitted) first advised the other party of this obligation, has allowed the other party reasonable time to avoid the disclosure having to be made, and the Recipient only discloses Confidential Information to the extent that it is obliged to do so.
7.5 Subject to clause 7.6, the Recipient must immediately, on the reasonable request of the other party, return, destroy or delete (at the Recipient s option) all documents or other materials containing the other party s Confidential Information which is in the Recipient s possession, power or control or in the possession, power or control of persons who have received Confidential Information from it under clauses 7.1(c), unless the Recipient has a right under the Terms of Use or under applicable law, to retain it, and the Recipient will provide confirmation in writing to the other party once the Confidential Information has been destroyed or deleted (if applicable).
7.6 The obligation in clause 7.5 does not apply to:
(a) copies of any Confidential Information held in an electronic storage system where it is not reasonably possible to delete this information (in which case the Recipient agrees not to access that Confidential Information, unless required by law); and
(b) its own board papers which, for legitimate reasons, refer to or contain the Confidential Information.
7.7 Notwithstanding any other provision of this clause 7, we and BSL may also publicly refer to or publicise your use of the Bactosure Solution to promote it, including:
(a) your name;
(b) how the Bactosure Solution has been used by you; and
(c) by resharing on the Bactosure Website or social media, any social media posts you make relating to your use of the Bactosure Solution or any project in respect of which you have used Bactosure Solution.
7.8 This clause 7 will survive termination of the Terms of Use.
8. Warranties
8.1 We warrant to you that to the best of our knowledge and belief the provision of the Bactosure Solution will not infringe the copyright of any third party. For the avoidance of doubt, this warranty does not extend to any Customer Data stored or processed in, or used to configure, the Bactosure Solution, which remains your responsibility.
8.2 Subject to clause 8.1 and those warranties or representations that cannot be excluded by law, the Bactosure Solution and Documentation are provided on an as is basis and all representations, conditions or warranties (whether express or implied, statutory or otherwise, and including warranties of merchantability and fitness for a particular purpose) are expressly excluded. Nothing in these Terms excludes, restricts or modifies any consumer guarantee, right or remedy conferred by the Competition and Consumer Act 2010 (Cth) (including the Australian Consumer Law) or any other applicable law that cannot be excluded, restricted or modified by agreement.
8.3 Without limiting clause 8.2, we do not warrant:
(a) that your use of, or access to, the Bactosure Solution will be uninterrupted or error-free;
(b) that the Bactosure Solution, Documentation and/or the information obtained by you through the Bactosure Solution will: (i) always be available, either in its current form or at all;
(ii) meet your specific requirements; or
(iii) be accurate where you use the Bactosure Solution other than as set out in the Documentation or otherwise reasonably directed by us;
(c) that the Bactosure Solution will operate with any specific software or equipment not provided or recommended by us; or
(d) that we will maintain or continue to offer or support the Bactosure Solution.
8.4 We make no representations and give no warranties as to the fitness or suitability of the Additional Materials for any specific purpose, other than the Additional Materials will be fit to operate as part of the Bactosure Solution. Subject to clause 8.5, if any part of the Additional Materials fails to operate as part of the Bactosure Solution in the manner set out in the Documentation (a Defect), we will provide you with replacement Additional Materials.
8.5 To the extent that a Defect is a result of your or your Authorised Users failure to use the Additional Materials in accordance with the Documentation, you will be responsible for the cost of replacement Additional Materials.
8.6 If you or we (acting reasonably) are made aware that the provision of the Bactosure Solution infringes the copyright of any third party, we will use reasonable endeavours to, at our election, either:
(a) obtain for you the right to continue to use the Bactosure Solution or impacted component of it in accordance with the Terms of Use; or
(b) replace or modify the Bactosure Solution or impacted component of it so that it becomes non-infringing,but in each case we must ensure that the remedy does not materially adversely affect the Bactosure Solution, or your use of it, and where we determine acting reasonably that (a) (b) above are not reasonably commercially available or feasible, we may terminate the Terms of Use and refund to you the portion of any prepaid Fees for access to the Bactosure Solution that have not been provided at the date of termination.
8.7 Clause 8.6 sets out your sole and exclusive remedy in respect of the provision of the Bactosure Solution infringing the copyright of any third party or any other breach of the warranty set out in clause 8.1.
8.8 You acknowledge that BAPL does not perform any accredited testing activities. All laboratory testing is performed solely by BSL under its ISO/IEC 17025 accreditation. To the maximum extent permitted by law, BSL disclaims all warranties not expressly stated herein.
9. Indemnity and Liability
9.1 You will indemnify us and BSL against all Losses that we incur arising out of or in connection with any claim by a third party against us that relates to your, or your Authorised Users, use of the Bactosure Solution or a breach of the Terms of Use. However, this indemnity will not apply to Losses that are incurred because of a failure of the Bactosure Solution to perform in accordance with the Documentation or where we have breached our obligations under the Terms of Use.
9.2 Subject to clause 9.4, neither party will be liable to the other party under the law of tort, contract or otherwise for any:
(a) indirect or consequential loss arising out of, or in connection with, the Terms of Use; and
(b) loss of revenue, loss of profit, data loss or corruption, liquidated damages, penalties, fines, implementation delays, arising out of, or in connection with, the Terms of Use.
9.3 Subject to clause 9.4 and to the extent permitted by applicable law, the maximum liability of either party to the other party for any and all claims under the Terms of Use whether in contract, tort (including negligence) or for any other common law or statutory cause of action, is limited in aggregate to the total Fees paid by you to us under the Terms of Use in the 6 months immediately preceding the event or occurrence giving rise to the claim.
9.4 Clauses 9.2 and 9.3 will not apply to limit:
(a) either party’s liability for a breach of clause 7 (Confidentiality);
(b) the remedy available to you for our infringement of a third party s copyright set out in clauses 8.6 and 8.7;
(c) either party’s liability for an infringement of the other party’s Intellectual Property Rights;
(d) either party s liability under an indemnity given by that party under the Terms of Use; (e) your obligation to pay any Fees or other charges under or in connection with the Terms of Use; and/or
(f) your breach of your obligations under clause 1 (Use Restrictions).
9.5 We will not be liable to you for any loss suffered by you:
(a) as a result of any breach of the Terms of Use, or any negligent act or omission of you or an Authorised User (including any unpermitted use of the Bactosure IP or any component of it); or
(b) to the extent that loss arises (whether in whole or in part) as a result of a delay by you in the performance of your obligations.
9.6 You acknowledge that:
(a) we may rely on the provision of services by third parties (including data centre and telecommunications providers) in order to perform our obligations under these (Third Party Input Providers); and
(b) while we will use all reasonable efforts to have Third Party Input Providers provide services in accordance with the terms that they may have agreed with us we will not be responsible for any delays, delivery failures, penalties, liquidated damages, or any other loss or damage arising out of or in connection with any services provided by Third Party Input Providers, including any delays, delivery failures, penalties, liquidated damages, or any other loss or damage resulting from the transfer of data over communications networks and facilities (including the internet).
10. Subscription Period and Termination
10.1 Your subscription to the Bactosure Solution continues for the period as selected by you on the Bactosure Website (Subscription Period). At the end of a Subscription Period, the subscription will continue for a further period of the same duration provided you pay the applicable Fees in respect of that further period. If we change the Fees following the process set out in clause 5.4, and you do not wish to pay the changed Fee, then you may terminate your access to the Bactosure Solution by giving notice to us at least five Business Days prior to the effective date of the changed Fees.
10.2 We may terminate your access to the Bactosure Solution:
(a) at the end of your then current Subscription Period by providing you with written notice at least 30 days prior to the expiry of your then current Subscription Period;
(b) at any time on 60 days prior written notice to you, in which case we will refund any Fees pre-paid to us for unused access to the Bactosure Solution; or
(c) immediately, along with your access to all or any Customer Data, if you fail to pay the Fees when due.
10.3 You may terminate your access to the Bactosure Solution, at any time and for any reason, by giving us five Business Days notice. For the avoidance of doubt, if you terminate your access to the Bactosure Solution in accordance with this clause 10.3, then the consequences of termination in clauses 10.5 and 10.6(b) will apply.
10.4 Either party may terminate the access to the Bactosure Solution if the other party: (a) is in material breach of the Terms of Use and, where the breach is capable of remedy, fails to remedy such breach within 14 days of receiving notice from the other party specifying the breach and requiring it to be remedied; or (b) goes into liquidation or has a receiver or statutory manager appointed of any of its assets, becomes insolvent or makes any arrangement with creditors.
10.5 On termination of access to the Bactosure Solution for any reason:
(a) you will pay all Fees up to and including the effective date of termination;
(b) all licences granted under the Terms of Use will immediately terminate and you must cease, and must ensure that your Authorised Users cease, using the Bactosure Solution and the Documentation; and
(c) each party will return, and make no further use of property, software, Documentation and other items (and all copies of them) belonging to the other party;
(d) you must promptly deliver the Device in good working order and condition (fair wear and tear excepted) to us at a location specified by us, and if you do not do so, we can (at our election) repossess the Device at your cost or issue an invoice to you for the full replacement value of the Device (as reasonably determined by us). If you do not pay us the full replacement value of the Device by the date reasonably specified by us, then we will treat the outstanding amount as a debt to us and may refer it to a third part for debt recovery; and
(e) we will delete or purge any Customer Data in our possession or control no later than 30 days following termination of all of the Terms of Use. It is your responsibility to export a copy of the Customer Data in a meaningful way prior to termination.
10.6 Where access to the Bactosure Solution is terminated:
(a) by you in accordance with the Terms of Use (but not where you terminate for convenience according to the process in clause 10.3), then we will refund to you any Fees that have been paid in advance that relate to a period after the effective date of termination; or
(b) by you for convenience according to the process in clause 10.3 or by us for your material breach of the Terms of Use, then we may retain any Fees that have been paid in advance.
10.7 Termination of the Terms of Use will not affect the provisions of the Terms of Use which are intended to continue, or should reasonably continue, after termination (whether expressly stated so or not). Termination will not affect any claim by either party against the other party arising out of any breach or failure under the Terms of Use prior to termination.
11. Disputes
11.1 If a dispute arises out of or relates to the Terms of Use (Dispute), a party may not commence any court proceedings relating to the Dispute unless it has complied with the following paragraphs of this clause 11, except where the party seeks urgent interlocutory relief.
11.2 The party claiming the Dispute has arisen must give written notice to the other party specifying the nature of the Dispute. On receipt of that notice, the parties will use all reasonable endeavours to resolve the Dispute by discussion, consultation, negotiation or other informal means.
11.3 If the Dispute is not resolved within 15 Business Days of the notice being given pursuant to clause 11.2 (or within such further period agreed in writing by the parties), either party may commence court proceedings relating to the Dispute.
12. Subcontracting
12.1 We may subcontract any of our obligations under the Terms of Use without obtaining your prior written consent.
12.2 If we use a subcontractor in respect of the Terms of Use, we are not relieved of any of our liabilities or obligations under the Terms of Use.
13. Changes
13.1 Subject to clauses 5.4 and 13.3, any change to these Terms requested by either party is only effective if expressly agreed in writing by both parties (including over email).
13.2 You acknowledge that:
(a) in providing the Bactosure Solution, we utilise various third party inputs which we are not the only purchaser and/or consumer of and as such these inputs are subject to change without our approval;
(b) there may be circumstances where there is change to applicable law that may, in our reasonable opinion, materially affect our ability to provide the Bactosure Solution, the manner or cost of providing the Bactosure Solution or the manner in which you are able to use the Bactosure Solution;
(c) the Bactosure Solution is provided on a one-to-many software-as-a-service basis and we may add, remove, change, update, upgrade and/or disable features and capabilities temporarily or permanently from time to time (together, Updates). You may be required to install Updates to the Bactosure Solution or to update or upgrade the devices that you or your Authorised Users use to access the Bactosure Solution or the operating system running on those devices in order to continue to use the Bactosure Solution properly or at all.
Unless Supplier specifies otherwise, Updates will be provided at no cost, and any change to the Bactosure Solution arising out of the above situations is a Required Service Change.
13.3 We will give you notice of any Required Service Change as soon as we become aware of it or the need for it. You will be deemed to have accepted a Required Service Change unless you, acting reasonably, notify us of a material adverse impact on your use of the Bactosure Solution as a result on the Required Service Change within 15 Business Days of the date that we provide you with notice of the change.
13.4 If the parties, acting reasonably, are unable to agree a solution to address the material adverse impact referred to in clause 13.3 within 15 Business Days of our receipt of your notice given under clause 13.3, then either we or you may terminate the Terms of Use by giving notice to the other, or the parties may agree in writing to extend the period for finding a solution.
13.5 Clauses 13.3 and 13.4 sets out the sole and exclusive remedies in respect of any Required Service Change.
14. General
14.1 In these Terms:
(a) Additional Materials has the meaning set out in clause 5.5;
(b) Affected Device has the meaning set out clause 3.9;
(c) Authorised User means any employee, officer, agent, delegate and/or contractor of you who is aged 18 years old or older and who accesses the Bactosure Solution;
(d) App Terms means the terms of use for the Bactosure App as accepted by each Authorised User on downloading the Bactosure App;
(e) Bactosure, we, us and our mean Bactosure Solutions Limited (BSL), until such time as this agreement is novated to Bactosure Australia Pty Ltd (BAPL) pursuant to clause 1A, from which point BAPL shall assume the role of we , us and our for the purposes of these Terms.
(f) Bactosure Analytical Data has the meaning as set out in clause 4.1(b);
(g) Bactosure App means the mobile application we make available to Users pursuant to the App Terms;
(h) Bactosure Entity means Bactosure Solutions Limited; (i) Bactosure IP has the meaning set out in clause 6.1;
(j) Bactosure Solution means the microbiological testing solution for drinking water we provide to you under these Terms, initially by BSL and, after novation, by BAPL, comprising (a) the Device, (b) the Additional Materials when those materials are used as part of the Bactosure Solution, (c) the Bactosure App, (d) the Documentation, and (e) the software, hardware, systems and technology owned by or licensed to us that enable us to provide the Bactosure Solution, but not including any third party inputs;
(k) Bactosure Website means our website at au.bactosure.com, or any other URL address for our website that we notify you of from time to time;
(l) BSL means Bactosure Solutions Limited
(m) Business Day means a day other than a Saturday, Sunday or public holiday in Sydney, Australia;
(n) Business Hours means 9:00 am to 5:00 pm in Sydney, Australia on each day that is a Business Day; (o) Confidential Information means information, verbal or written, including documents, plans, software, market research data, product literature, trade secrets, processes, technical information, know-how, documentation, Intellectual Property Rights and any financial and commercial information (including, without limitation, pricing and pricing models) relating to either party or, where a party is a business, that party s related or associated companies. For the avoidance of doubt, Bactosure Analytical Data is our confidential information and Customer Data is your confidential information;
(p) Customer Data means any information or data (including Personal Information) that:
(i) is submitted, uploaded or input into the Bactosure Solution by you or an Authorised User; or
(ii) is provided to us to enable your use of the Bactosure Solution,and any modified form of that information that is created through the use of the Bactosure Solution, but excludes Bactosure Analytical Data;
(q) Defect has the meaning given in clause 8.4;
(r) Device means the testing device provided to you and your Authorised Users to test for bacterial pathogens and which forms part of the Bactosure Solution;
(s) Dispute has the meaning set out in clause 11.1;
(t) Documentation means the documentation (if any) made available to you by us, which sets out a description of, and user instructions for, the Bactosure Solution and Additional Materials;
(u) Feedback has the meaning set out in clause 6.3;
(v) Fees means the fees and charges that we charge to you for the Bactosure Solution (including for the Subscription Period, the Device and the Additional Materials) and any associated delivery costs for the Device and Additional Materials;
(w) Intellectual Property Rights means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual property rights, whether registered, in the course of being registered or unregistered and any analogous rights worldwide;
(x) Losses has the meaning set out in clause 9.1;
(y) Personal Information means any information relating to an identified or identifiable natural person;
(z) PPSA means the Personal Property Securities Act 2009 (Cth);
(aa) PPSR means the Personal Property Securities Register established under the PPSA;
(bb) Purpose has the meaning set out in clause 1.1;
(cc) Recipient means a party that receives Confidential Information;
(dd) Required Service Change has the meaning as set out in clause 13.2;
(ee) Security Interest means a security interest as defined in the PPSA;
(ff) Subscription Period has the meaning as set out in clause 10.1;
(gg) Terms means the Bactosure Solution Terms (as may be updated from time to time) and which forms part of the Terms of Use;
(hh) Terms of Use has the meaning as set out in clause 1.2(c);
(ii) Third Party Input Providers has the meaning as set out in clause 9.6(a); and
(jj) Updates has the meaning as set out in clause 13.2(c).
14.2 The Terms of Use together with any documents referred to in them, constitute the entire agreement of the parties about its subject matter and supersedes any previous understanding or agreements on that subject matter. The Terms of Use will apply to the exclusion of any other terms and conditions, including those contained or referred to in any communication that you may send to us. In the event of any conflict or inconsistency between these Terms and any other document, these Terms will prevail.
14.3 Neither we nor BSL will be liable to you for any delay or failure in performance of our obligations under these Terms to the extent caused by an act of God, epidemic, pandemic, natural disaster, fire, flood, war, embargo, strike, labour dispute, equipment failure, or any other event beyond the reasonable control of the affected party.
14.4 The Terms of Use will not be deemed to create a partnership, joint venture or agency relationship of any kind between the parties.
14.5 If any part or a provision of the Terms of Use is judged invalid or unenforceable in a jurisdiction it is severed for that jurisdiction and the remainder of the Terms of Use will continue to operate.
14.6 A provision or a right under the Terms of Use may not be waived except in writing signed by the party granting the waiver.
14.7 You will not assign, transfer or otherwise deal with the Terms of Use, or any of your rights or obligations under the Terms of Use, whether in whole or in part, without our prior written consent.
14.8 Any notice you send must be sent to [email protected]. Any notice we send will be sent to the email address you provided when you subscribed for the Bactosure Solution or any update to this address that you notify us of.
14.9 The Terms of Use will be governed by and construed in accordance with the laws of New South Wales. If you wish to bring any claim or other action against us arising out of or in connection with the Terms of Use, then you must bring that claim or other action against us in New South Wales.
