1. Introduction

1.1 This document sets out the terms and conditions of a legally binding contract between you and biNu in relation to your submission of an app to be published and distributed through the biNu Platform (“this agreement”).

1.2 To publish and distribute your app on the biNu Platform, you must first agree to these terms and conditions by clicking to accept or agree to these terms and conditions.

1.3 If you are accepting or agreeing to these terms and conditions on behalf of another person, you warrant that you have the authority to bind that person to these terms and conditions.

2. Definitions and interpretation

2.1 In this agreement, the following definitions apply unless the context requires otherwise:

“app” means the software program developed by you to be published and distributed through the biNu Platform, including any bug fixes, updates, upgrades, modifications, enhancements, supplements to, revisions, new releases and new versions of such software program.

“biNu”, “we”, “us” and “our” are references to biNu Pty Limited (ACN 132 439 448), a company registered in Victoria, Australia under the Corporations Act 2001 (Cth).

“biNu Credit” means a right granted by biNu to users that can be exchanged for, amongst other things, content, functionality and services within an app that is available through the biNu Platform.

“biNu Platform” means the platform created and operated by biNu through which, amongst other things, developers may publish and distribute apps.

“biNu Mark” means the biNu name and logo, as displayed on biNu’s website.

“Dev Central website” means that part of biNu’s website known as Dev Central and which is currently at http://developer.binu.com/.

“Law” means any law, regulation, statutory instrument, ordinance or other regulatory requirement, any order, directive, proclamation or determination by any person or body having appropriate jurisdiction, and any generally accepted practice or guideline in the relevant jurisdiction.

“user” refers to a person who uses your app through the biNu Platform.

“you” and “your” are references to any person who has publishes and distributes one or more apps on the biNu Platform in accordance with this agreement.  If you are accepting or agreeing to these terms and conditions on behalf of another person, then “you” and “your” includes such other person.

“your Marks” means your trade names, trade marks, service marks, logos, domain names, app description and screenshots of your app.

2.2 In this agreement:

(a) the terms “included”, “including” and similar expressions when introducing a list of items shall be taken to be followed by the words “without limitation”;

(b) “person” includes a natural person, partnership, firm, body corporate, trust, joint venture, association, governmental or local authority or agency or other entity;

(c) a provision of this agreement is not to be construed against a party solely on the ground that the party is responsible for the preparation of this agreement or a particular provision; and

(d) a reference to a word includes the singular and the plural of the word and vice versa.

3. Your app

3.1 To register apps to be published and distributed through the biNu Platform, you must first register with biNu as a developer through biNu’s Dev Central website.

3.2 Your registration with biNu as a developer is only for your use and you are responsible for keeping your developer registration and app identification and credentials (whether issued to you by biNu or chosen by yourself) secure and confidential.

3.3 You will be solely responsible for all apps that are submitted under your developer registration identification and/or credentials.

3.4 Further requirements (including technical requirements) for registering, testing, publishing and distributing apps through the biNu Platform are set out on biNu’s Dev Central website.

3.5 You may submit updates to your apps.  These updates form part of your app and are subject to this agreement.

3.6 Subject to clause 3.8, you are solely responsible for all content made available through your app, including advertisements, user-generated content and any content hosted, streamed or otherwise delivered to users by third parties.

3.7 Except as otherwise expressly provided for in this agreement, biNu acknowledges that it obtains no right, title or interest under this agreement in or to your app, including any intellectual property rights which subsist in your app.

3.8 biNu may from time to time publish on its Dev Central website, or otherwise make available to you, a policy or policies relating to material which is prohibited from being displayed or made available through any apps on the biNu Platform.  Your app must adhere to such policies.

3.9 You are solely responsible for:

(a) licensing to users the right to access and use your app;

(b) support and maintenance of your app; and

(c) addressing any complaints from users about your app.

3.10 biNu reserves the right, but is not be obliged, to review or evaluate your app to determine whether it complies with this agreement and other policies made available to you (if any).

3.11 biNu has no obligation to ensure that any app that you register and publish is made available through the biNu Platform.

3.12 biNu has sole discretion in making decisions relating to the placement and promotion of apps through the biNu Platform (including the placement of apps on the biNu Platform home screen).

3.13 You acknowledge and agree that biNu does not provide hosting services for your app and you are solely responsible for procuring your app to be hosted on either your own or a third party’s servers (including the payment of any third party’s costs of doing so).

4. Use of biNu Platform by you

4.1 You are permitted to use the biNu Platform only for the purposes that are expressly permitted by this agreement.

4.2 Your app and your marketing of your app must comply with all applicable Law and must not infringe the intellectual property and other rights of any third party.

4.3 If you are required to obtain any licences, clearances or regulatory approvals to publish, distribute or market your app, you must do so before registering the app with biNu.

4.4 Without limiting the generality of foregoing provisions of this clause 4, if your app enables access to, the collection of and/or the use of users’ user names, passwords or personal information, you must:

(a) maintain a privacy policy which complies with applicable Law;

(b) inform users of your privacy policy;

(c) inform users that the information will be collected, accessed and/or used by you, and how the information will be used, stored and disclosed;

(d) not use that information outside of the biNu Platform; and

(e) only use that information for the purposes for which the user has given you permission to do so.

4.5 You must not engage in any activity in connection with the biNu Platform which interferes with, disrupts, damages or accesses in an unauthorised manner the devices, servers, networks, and other property or services of biNu or any third party, including permitting any virus, malware or spyware to be distributed via your app.

4.6 You acknowledge and agree that the biNu Platform is the property of biNu and biNu may, at its sole discretion, vary or cease to provide the biNu Platform at any time.  You are not entitled to any compensation, indemnity, damages or other payment from biNu if biNu ceases to provide or make available the biNu Platform.

5. Appointment of biNu as agent and licence to biNu

5.1 You appoint biNu as your agent to make your app available through the biNu Platform and to collect and process on your behalf any amounts you decide to charge users in connection with the use of your app.

5.2 You acknowledge and agree that you, as principal, will be solely liable for all claims, losses, liabilities, costs and expenses related to your app.

5.3 You grant to biNu a worldwide, non-exclusive, royalty-free licence to:

(a) make your app available to users through the biNu Platform; and

(b) copy, install, perform, display and use your app for administrative purposes in connection with the operation of the biNu Platform and the provision of your app through the biNu Platform.

5.4 You further grant to biNu a worldwide, non-exclusive, royalty-free licence to use, reproduce, display and publish your name and your Marks in connection with the publication and distribution of your app on the biNu Platform, in any marketing campaigns, announcements, presentations, developer lists and press releases for your app or the biNu Platform, or to otherwise meet its obligations under this agreement.  biNu will cease use of your name and your Marks under this clause 5.4 if you cease to publish apps through the biNu Platform.

5.5 You represent and warrant to biNu that you either own, or have the right to use for the purposes of the app and licence in accordance with clause 5.3, all intellectual property rights and other proprietary rights in and to your app (including in any content of your app).

6. Licence by biNu

6.1 biNu grants to you a worldwide, non-exclusive, non-transferable, royalty-free licence to, for only as long as your app continues to be made available through the biNu Platform, use the biNu Mark solely in connection with advertising the availability of your app through the biNu Platform.

6.2 You must not and must procure that your employees, officers, agents, contractors and joint venturers do not:

(a) use the biNu Mark for any purpose other than permitted pursuant to clause 6.1;

(b) use the biNu Mark in any way which would tend to allow it to become generic, lose their distinctiveness or become liable to mislead the public;

(c) do anything that would adversely affect or be likely to adversely affect the validity or enforceability of the biNu Mark, biNu’s title to the biNu Mark, or the goodwill or reputation in the biNu Mark or of biNu;

(d) use the biNu Mark accompanied by any other trade marks (whether registered or not) or words unless:

(i) the biNu Mark is sufficiently distinguished from the surrounding and adjacent marks and words; and

(ii) biNu is clearly identified as the owner of the biNu Mark;

(e) indicate in your use of the biNu Mark that the mark is used other than under the authority of biNu;

(f) adopt or use any names, symbols or marks which includes, is substantially identical or deceptively similar to, or is a simulation or colourable imitation of, the biNu Mark, or unfairly competes with the biNu Mark;

(g) register or apply for registration, in any part of the world, of the biNu Mark or any names or marks, incorporating, or which are substantially identical or deceptively similar to, the biNu Mark; or

(h) use the biNu Mark in any part of the world as part of any corporate, business or trading name or style, domain name or email address, or register as a corporate, business or trading name or style, domain name or email address, the biNu Mark or any names or marks which incorporating, or which are substantially identical or deceptively similar to, the biNu Mark.

6.3 You must ensure that your use of the biNu Mark complies with all standards and directives prescribed and issued by biNu from time to time.

6.4 You acknowledge and agree that biNu is the owner of the biNu Mark and all goodwill in the biNu Mark.  All goodwill arising from your use of the biNu Mark pursuant to this agreement will vest in biNu.

7. User information

7.1 biNu may collect statistics and other information about the usage of your app and the biNu Platform.

7.2 biNu may, at its discretion, provide you with aggregate data about the usage of your app or the biNu Platform to assist you in improving your app.  Any such data is collected and maintained in accordance with biNu’s privacy policy in effect from time to time.

7.3 You acknowledge and agree that biNu is not required to provide you access to any personal information collected by biNu from users of the biNu Platform.

8. App removal

8.1 Subject to clause 8.2, you may remove your app from publication and distribution through the biNu Platform at any time, in accordance with the procedure set out on biNu’s Dev Central website or otherwise made available to you.

8.2 If users have used biNu Credits to pay for any part of, or functionality, content or service within or through, your app, you must not remove your app from the biNu Platform until you have delivered or provided in full the products or services that the users have paid for.  However, the foregoing does not prevent you from removing your app due to an allegation of or actual infringement of a third party’s intellectual or proprietary rights, or an allegation of or actual breach of applicable Law, and you have provided written notice to biNu of the reasons for your removal of your app.

8.3 If you remove your app from the biNu Platform in the circumstances permitted in clause 8.2, biNu may, at its discretion, refund affected users the amounts equivalent to the biNu Credits used by them for the products or services that they will not receive as a result of you removing your app, and you must reimburse biNu in full for the amount of such refund.

8.4 biNu may remove or suspend the availability of your app from the biNu Platform, and/or bar or suspend you from the biNu Platform, at its sole discretion, including if biNu determines that your app, its contents or any part thereof:

(a) infringes or may infringe the intellectual property rights or other rights of a third party;

(b) breaches or may breach any applicable Law;

(c) breaches this agreement or any of biNu’s policies;

(d) may create a liability for, or harm to, the business or reputation of biNu, other developers or biNu’s associates;

(e) could cause harm to users or their devices, third parties or any network; or

(f) is required to be removed to comply with any order or determination of a court or governmental or statutory agency or body.

9. Pricing and payment

9.1 You are entitled to designate the price (if any) to be charged to users (or any particular class or group of users) for using your app or any part thereof, or to acquire additional content, functionality or services within your app.

9.2 You may elect to support purchasing options for users from within your app or use the biNu Credits payment system to do so.  If you choose to support purchasing options other than biNu Credits, you are solely responsible for ensuring that you obtain all consents and approvals required for doing so and that such options comply with applicable Laws.

9.3 If you choose to use the biNu Credits payment system, you must ensure that biNu Credits are not used to purchase, redeem or exchange for, or obtain physical goods or Currency from within your app.  “Currency” means any form of currency, credits, points, resource or other items or units recognised by a group of persons as representing a particular value and that can be transferred or circulated as a medium of exchange.  You must also not utilise the biNu Credits payment system to sell virtual currency or other stored value item that can be used in an app other than the app where the transaction was completed.

9.4 The amount of the Attributed Value of all biNu Credits used by users to purchase content, functionality or services within your app (“biNu Credit Receipts”) will be remitted on a monthly basis in US$ to the bank account nominated by you, provided that if such amount is less than US$50, then biNu may elect to carry forward the amount payable to you to subsequent months until the total amount payable to you is at least US$50.

9.5 The “Attributed Value” is, as at the effective date of this agreement, US$0.01 per one biNu Credit, or such other amount as determined from time to time by biNu (and published on its website).

9.6 biNu may offset any amounts owed by you to biNu against any amount payable by biNu to you pursuant to clause 9.4

9.7 biNu is not responsible for any delay, loss or misapplication of payment because of incorrect or incomplete information supplied by you or a bank or for failure of a bank to credit your account. biNu is not responsible for any fees, charges or withholdings imposed by your bank or any other third party in connection with the remittance of any amount to you in accordance with clause 9.4

9.8 You are responsible for collecting, registering for and remitting to the appropriate tax authority any sales, use, consumption, value added, goods and services tax and any other similar taxes, if any, applicable to your app and any payments (including by biNu Credits) made within your app or in connection with any biNu Credit Receipts. biNu is not obligated to remit any such tax, although if it determines that it is required to do so, then biNu will deduct the amount of such taxes from the amount payable to you pursuant to clause 9.4. If any such taxes are applicable to any payments (including by biNu Credits) made within your app, you must designate the purchase price to include such applicable taxes.

9.9 If your app generates more than one million “HTTP get requests” per day from the biNu proxy server, you must pay to biNu a fee of US$10 per day for each additional million “HTTP get requests” per day (or part thereof) generated by your app.

10. Termination

10.1 This agreement will continue until terminated by either you or biNu in accordance with the remaining provisions of this clause 10.

10.2 Either you or biNu may terminate this agreement for convenience by giving at least 30 days’ written notice to the other party.

10.3 biNu may at any time terminate this agreement with immediate effect if:

(a) you have breached a material provision of this agreement;

(b) biNu is required by Law to do so; or

(c) biNu decides to no longer provide the biNu Platform.

10.4 You are not entitled to any compensation, indemnity, damages or other payment from biNu as a result of biNu terminating this agreement in accordance with clause 10.3 and termination of this agreement will be without prejudice to any other rights or remedies that biNu may have under this agreement, or under the law or equity.

10.5 Clauses 2, 5.2, 5.5, 6.4, 8.3, 9.4 to 9.10 (both inclusive), 10.4, 11, 12, 13, 15 and this clause 10.5 will survive the termination or expiration of this agreement.

11. Warranties

11.1 You warrant to biNu that:

(a) you have full power and authority to enter into and perform your obligations under this agreement;

(b) your obligations under this agreement are valid and binding and are enforceable against you in accordance with its terms;

(c) your entry into and performance of this agreement does not violate your constitution, any existing Law, or any document or agreement to which you are a party or which is binding upon you or your assets;

(d) you have all licences, permits and authorities of any kind necessary to publish and distribute your app through the biNu Platform;

(e) you are solvent, are able to pay your debts as and when they fall due, have not ceased to do business and, if you are an entity, have not applied to be dissolved, wound-up or deregistered; and

(f) the information you provide to biNu under or in connection with this agreement is true, accurate, current and complete.

12. Disclaimer and limitation of liability

12.1 You acknowledge and agree that your use of and access to the biNu Platform is at your sole risk (including in relation to any loss of data or damage to your computer systems) and the biNu Platform is provided “as-is”, “with all faults” and “as available”.  To the extent permitted by applicable Law, biNu disclaims all warranties and representations, express or implied, including of merchantability, fitness for a particular purpose and non-infringement, in relation to the biNu Platform and any other services or information provided by biNu to you in relation to biNu Platform and this agreement.

12.2 To the fullest extent permitted by law:

(a) in no event will biNu, or its employees, officers, agents, contractors and joint venturers, be liable to you for any indirect loss, consequential loss, loss of profits, loss of revenue, loss of goodwill, loss of data, exemplary damages, punitive damages, or special damages arising out of or in connection with this agreement and/or your use of and access to the biNu Platform; and

(b) biNu’s liability to you for any and all action, claim, demand, loss, damage and/or expense arising out of or in connection with this agreement and/or your use of and access to the biNu Platform, whether in contract, tort (including negligence) or otherwise, will be limited to the lower of:

(i) EUR10; and

(ii) at biNu’s sole discretion, to one or more of the following:

(A) the supplying of the services again; or

(B) the payment of the cost of having the services supplied again.

13. Indemnity

13.1 You indemnify biNu and its employees, officers, agents, contractors and joint venturers (each an “Indemnified Person”) and will keep each Indemnified Person indemnified on demand from and against all actions, claims, demands, losses, damages and expenses of whatever form or nature, including legal fees and or other costs and disbursements that an Indemnified Person sustains or incurs as a result of or in connection with:

(a) any negligent or fraudulent act or omission or wilful misconduct by you or any of your employees, officers, agents, contractors or joint venturers;

(b) any breach of this agreement by you;

(c) any breach by you of any of the warranties given by you to biNu (including in clause 11);

(d) any breach of Law by you or any of your employees, officers, agents, contractors or joint venturers;

(e) any damage to any property, or injury or death to any person, to the extent caused or contributed to by use of your app or inability to use your app (or any content in your app);

(f) the infringement by your app of the proprietary or personal right of a third party; and/or

(g) any claims by any tax authority based on non-payment or under-payment of any sales, use, consumption, value added, goods and services or other similar tax, including any associated penalties and interest, relating to the publication and distribution by you of your app through the biNu Platform.

13.2 biNu holds the benefit of clause 13.1 on trust for each Indemnified Person.

14. Amendments to terms and conditions

14.1 You acknowledge and agree that biNu may update, vary or amend these terms and conditions at any time in its sole discretion.  biNu will notify you by email or post a notification on the biNu Dev Central website of any updates, variations or amendments to these terms and conditions.

14.2 By submitting an app and/or any related materials for publication and distribution through the biNu Platform, you agree to be bound by the terms and conditions of this agreement then in effect (and by any updates, variations or amendments thereof).

15. General

15.1 (Assignment)  biNu may assign, transfer or novate this agreement or a right or obligation under this agreement at any time without consent from you.  You may not assign, transfer or novate this agreement or a right or obligation under this agreement without the prior written consent of biNu.

15.2 (Subcontract)  biNu may subcontract or delegate the performance of any of its obligations, or exercise of any of its rights, under this agreement to third parties at any time without consent from you.

15.3 (Consent)  Except where this agreement expressly states otherwise, a party may, in its discretion, give conditionally or unconditionally or withhold any approval or consent under this agreement.

15.4 (Entire agreement)  These terms and conditions and biNu’s policies referred to in these terms and conditions (in each case, as in effect from time to time) constitute the entire agreement between the parties in connection with their subject matter and supersede all previous agreements or understandings between the parties in connection with their subject matter.

15.5 (Severability)  If the whole or any part of a provision of this agreement is invalid or unenforceable in a jurisdiction it must, if possible, be read down for the purposes of that jurisdiction so as to be valid and enforceable.  If however, the whole or any part of a provision of this agreement is not capable of being read down, it is severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this agreement or affecting the validity or enforceability of that provision in any other jurisdiction.

15.6 (Enforcement of indemnities)   It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity conferred by this agreement.

15.7 (Waiver)  A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy.  A single or partial exercise by a party of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy.  A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.

15.8 (Relationship)  Except where this agreement expressly states otherwise, this agreement does not create a relationship of employment, trust, agency or partnership between the parties.

15.9 (Not exclusive)  This agreement is non-exclusive, and nothing in this agreement restricts you or biNu for entering into other similar agreements with other platforms or app developers.

15.10 (Remedies cumulative)  The rights provided in this agreement are cumulative with and not exclusive of the rights, powers or remedies provided by law independently of this agreement.

15.11 (Exercise of rights)  A party may exercise a right, at its discretion and separately or concurrently with another right.

15.12 (English language)  The parties intend for this agreement to be written and interpreted solely in English.  Any notices required to be given under this agreement must be in English.

15.13 (Governing law and jurisdiction)  This agreement will be governed by and construed in accordance with the law for the time being in force in New South Wales, Australia and the parties, by entering into this agreement, are deemed to have submitted to the exclusive jurisdiction of the courts of New South Wales, Australia.