Last updated: 10 October 2024
Welcome to BugHerd! We’re excited to have you on board.
Before you dive into our product, please review and accept our terms of service. These outline our commitment to you as a service provider and your responsibilities as a customer.
These terms apply to:
- Splitrock, the makers of BugHerd;
- Clients, who subscribe and pay for BugHerd; and
- Users, who are invited to use BugHerd by Clients.
Here are the highlights:
- Following your free trial, please select the BugHerd plan that suits you. Subscriptions are charged on a monthly (or yearly) basis and become active shortly after purchase. Prices are in US dollars.
- Subscriptions are non-refundable and exclusive of applicable taxes. Plans can be cancelled prior to renewal in your account settings.
- Subscriptions are charged based on the number of users of the Services. Sharing accounts is in violation of these terms.
- You can invite Guests to use BugHerd and they do not need to create an account, however, as the person inviting them, you are responsible for their use of the Services.
- If you are reading this because you were invited as a Member or Guest, you acknowledge and agree that your use of BugHerd is subject to these terms in your capacity as a Member or Guest user.
- Your privacy and security are our top priorities. To learn more, please review our Privacy Policy and Security Measures.
- We strive to carry out this service with due skill and care. Please contact us if you need assistance and we'll do our best to assist you.
These Terms of Service (terms) apply to the use of all BugHerd products and services provided by Splitrock Studio Pty Ltd ACN 147 992 032 (Splitrock, we or us). These terms must be accepted by all persons who use or subscribe to the Services, including via the BugHerd website, bugherd.com, and related websites under a Plan (the Client or you) and all Users who use the Services on behalf of the Client.
1 Definitions and Interpretation
1.1 Definitions
In these terms:
ADC means the Australian Disputes Centre or any other dispute resolution centre as mutually agreed upon by the Parties;
ADC Guidelines means the ADC Guidelines for Commercial Mediation in force from time to time which are incorporated into these terms by reference;
Business Day means:
(a) for determining when a notice, consent or other communication is given, a day that is not a Saturday, Sunday or public holiday in the place to which the notice, consent or other communication is sent; and
(b) for any other purpose, a day that is not a Saturday, Sunday or public holiday in Melbourne, Australia;
Client Data means any information provided by the Client in the course of using the Platform or Services;
Commencement Date means the date that these terms are agreed to by the Client or the date on which the Client first uses the Services, whichever is earlier;
Corporations Act means the Corporations Act 2001 (Cth);
Express Purpose means to use the Services, including the Platform, to collect, manage, and resolve issues with a website, design or deliverable which the Client has express authority to maintain;
Fees means the fees that the Client will pay to Splitrock for the Services in accordance with the selected Plan;
GST Law has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Infringement Claim means any dispute, claim, suit or action or proceeding (actual, threatened or potential) made by a third Party against the Client alleging that the whole or a part of the Platform or any of the Services or their respective supply, licence or use as authorised by these terms, infringes (or would infringe) another person’s Intellectual Property Rights or trade secrets, except to the extent that the infringement has been caused by the Client;
Insolvency Event means, for a person, being in liquidation or provision liquidation or under administration, having a controller (as defined in the Corporations Act) or analogous person appointed to it or any of its property, being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand, being unable to pay its debts or otherwise insolvent, dying, ceasing to be of full legal capacity or otherwise becoming incapable of managing its own affairs for any reason, taking any step that could result in the person becoming an insolvent under administration (as defined in section 9 of the Corporations Act), entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors, or any analogous event;
Intellectual Property Rights means all present and future rights conferred by statute, common law, equity or any corresponding law in or in relation to any copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable. These rights include:
(a) all rights in all applications to register these rights; and
(b) all renewals and extensions of these rights;
Internet means a global computer network consisting of interconnected networks using standardised communication protocols;
Losses means all losses, damages, liabilities, claims and expenses whatsoever (including reasonable legal costs and defence or settlement costs);
Material means material in any form, including documents, reports, products, equipment, information, data, software, software tools and software development methodologies and includes all releases, updates and amendments to the original Material made under these terms;
Payment Period means a period for which Splitrock will provide the Services for the Fee, being either one month or one year, depending on the timing of Fee payments under your Plan.
Personal Information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not:
(a) about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion; or
(b) about the affairs or personal particulars of a legal entity such as a company or a business,
which is received or learnt by the Client from any source as a consequence of or in performance of its rights and obligations under these terms;
Plan means Standard, Studio, Premium, Deluxe or other plan for use of the Platform that you subscribe for which specifies the amount of Fees to be paid when Fees are to be paid, and includes access to the Services as a free trial.
Platform means the proprietary software or web site owned and/or operated by Splitrock known as BugHerd that provides website bug identification and feedback tools through a web-based interface, as amended, updated, altered, modified or enhanced from time to time;
Privacy Laws means:
(a) the Privacy Act 1988 (Cth);
(b) any legislation (to the extent that such legislation applies to Splitrock or the Client or any other recipient of Personal Information) from time to time in force in any Australian jurisdiction (which includes the Commonwealth of Australia and any State or Territory of Australia) affecting privacy, personal information or the collection, handling, storage, processing, use or disclosure of personal data; and
(c) any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued thereunder, as amended from time to time;
Privacy Policy means the Privacy Policy of Splitrock, as updated or modified from time to time, and as available at https://bugherd.com/privacy;
Relevant Laws means all Commonwealth, Australian State or Territory and local legislation and any mandatory requirements, notices, orders or directions of any regulatory authority applicable to:
(a) the Services;
(b) Splitrock’s performance of its obligations under these terms; and/or
(c) the Client’s use and enjoyment of the Services;
Relevant Obligations means all Relevant Laws and for the avoidance of doubt includes ASIC regulatory guidelines;
Services means the services supplied (or to be supplied) by Splitrock to the Client, including the Platform, Support Services or any other services provided by Splitrock to the Client subject to these terms;
Splitrock Data means any content or data vesting in Splitrock, including data created by or using the Platform;
Support Services means services to be performed by Splitrock as reasonably required to provide ongoing email support to the Client regarding its use of the Platform, which services will be provided on a best effort basis and during business hours on a Business Day;
Term means the period commencing on the date on which you agree to these terms and expiring upon termination of these terms in accordance with these terms;
User means any client, customer, follower, employee, agent, representative, guest user, or otherwise a person associated with the Client, who uses the Platform, including as a Member under the Plan or as a Guest who is invited to use the Platform by the Client; and
User Data means any content or data created, related or uploaded to the Platform, including without limitation, any data or information input by a User into the Platform, or any data or information provided to the Client by a User via the Platform, including without limitation, images, information and location data.
1.2 Interpretation
In these terms the following rules of interpretation apply unless the contrary intention appears:
(a) headings are for convenience only and do not affect the interpretation of these terms;
(b) the singular includes the plural and vice versa;
(c) words that are gender neutral or gender specific include each gender;
(d) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(e) the words 'such as', 'including', 'particularly' and similar expressions are not used as, nor are intended to be, interpreted as words of limitation;
(f) a reference to:
(i) a person includes a natural person, partnership, joint venture,
government agency, association, corporation or other body
corporate;
(ii) a thing (including, but not limited to, a chose in action or
other right) includes a part of that thing;
(iii) a Party includes its successors and permitted assigns;
(iv) a document includes all amendments or supplements to that
document;
(v) a clause, term, Party, schedule or attachment is a reference
to a clause or term of, or Party, schedule or attachment to these
terms;
(vi) these terms includes all schedules and attachments to it;
(vii) a law includes a constitutional provision, treaty, decree,
convention, statute, regulation, ordinance, by-law, judgment, rule
of common law or equity and is a reference to that law as
amended, consolidated or replaced;
(viii) an agreement other than these terms includes an
undertaking, or legally enforceable arrangement or
understanding, whether or not in writing; and
(ix) a monetary amount is in United States dollars;
(g) an agreement on the part of two or more persons binds them jointly and severally;
(h) no rule of construction applies to the disadvantage of a Party because that Party was responsible for the preparation of these terms or any part of it;
(i) a term or expression starting with a capital letter:
(i) which is defined in the Corporations Act, but is not otherwise
defined in these terms, has the meaning given to it in the
Corporations Act; and
(ii) which is defined in the GST Law, but is not otherwise defined
in these terms or the Corporations Act, has the meaning given to
it in the GST Law; and
(j) references in these terms to a ‘User associated with the Client’ (or a similar phrase) is a reference to any person that uses the Platform that is a client, customer, follower, employee, agent, representative, or otherwise a person associated with the Client.
1.3 Non Business Days
If the day on or by which a person must do something under these terms is not a Business Day:
(a) if the act involves a payment that is due on demand, the person must do it on or by the next Business Day; and
(b) in any other case, the person must do it on or by the previous Business Day.
1.4 Inconsistency between documents
If there is an inconsistency between these terms and any document incorporated by reference into these terms, the provision in these terms will prevail to the extent of the inconsistency.
2 Services
2.1 Supply of Services
Splitrock will provide the Services to the Client during the Term in accordance with these terms.
2.2 General obligation
In providing the Services, Splitrock will:
(a) act at all times with due care, skill, competence, diligence and judgment; and
(b) act at all times in a highly professional and ethical manner.
3 Fees
3.1 Fees payable under Plan
When you subscribe for a Plan, you must pay the Fees in United States Dollars, in the amounts and at the times as set out in the Plan. All amounts paid to us are non-refundable, non-cancellable and non-creditable, to the extent allowed by any applicable law of Australia.
3.2 Automatic renewal of Plan
At the end of each Payment Period under your Plan (whether payment of Fees is monthly or annually), the Plan will automatically renew, and roll over for a new Payment Period, the same length as the preceding Payment Period. If you do not wish to continue receiving our Services beyond the end of a current Payment Period, you must terminate your Plan via your account before the end of the relevant Payment Period, and the Plan will not be renewed.
3.3 Payment method
Unless otherwise agreed by the Parties, all payments under your Plan must be by credit card. Where you have provided us with credit card details, you will be deemed to have authorised us to debit from your credit card the Fees stipulated in the Plan at the beginning of each Payment Period. It is your responsibility to ensure there are sufficient funds available to be drawn upon for any payment.
3.4 Changes to Fees
The Fees payable under your Plan may be changed at Splitrock’s full discretion, with 30 days’ notice to the Client of the change. After 30 days’ notice, we will apply the updated Fee to your Plan, and the updated Fee will be payable at the start of your next Payment Period.
3.5 Additional services
Where you request us to provide additional services from time-to-time outside of the Services during the Term, we may charge you additional fees for such services, as agreed between the Parties.
3.6 Failure to pay Fee
If the Client fails to pay any Fee when it is due, Splitrock may suspend the provision of the Services, including access to the Platform, to the Client, for as long as any Fees remain outstanding, without being responsible or liable during that period for the Platform and/or other Services.
4 Sales tax
Unless otherwise indicated, the Fees set out in your Plan shall be exclusive of all applicable sales, use, excise, value added and other similar taxes, (for example, GST).
5 Platform
5.1 Use of Platform
(a) As part of the Services, Splitrock will provide the Client with access to, and use of, the Platform.
(b) The number of Users is limited to the number of Users included in the Plan. If you require additional Users, you must pay any applicable extra charges or choose to upgrade your Plan.
(c) Except as expressly provided for in these terms, the Client may not use the Platform for any purposes other than the Express Purpose.
5.2 Disclaimer
(a) The Client agrees and acknowledges that:
(i) Splitrock does not and cannot control the flow of data to or
from the Platform and other portions of the Internet;
(ii) such flow depends in large part on the performance of
Internet services provided or controlled by third parties;
(iii) at times, actions or inactions of such third parties can impair
or disrupt the connection of the Platform to the Internet (or
portions thereof); and
(iv) Splitrock may schedule outages of the Platform for
maintenance from time to time, and will use reasonable
endeavours to notify the Client in advance of any planned
outages;
(v) although Splitrock will use commercially reasonable efforts to
take actions it deems appropriate to remedy and avoid such
events, Splitrock cannot guarantee that such events will not
occur.
(b) To the extent permitted by law, Splitrock disclaims any and all liability resulting from or related to the events described in clauses 5.2(a).
5.3 Overseas access
(a) Subject to paragraph (b) below, the Services may be accessed in Australia and overseas. Splitrock makes no representation that the Services, including the Platform, comply with the laws (including laws relating to Intellectual Property Rights, privacy or dispute resolution) of any country outside of Australia. If you access the Platform or otherwise use the Services from outside Australia, you do so at your own risk and you are responsible for complying with the laws in the place you access the Platform or otherwise use the Services.
(b) In the course of providing the Services, Splitrock observes applicable principles of the European Union General Data Protection Regulations (‘GDPR’).
6 Licensing
6.1 Exclusivity
The Parties acknowledge that the Platform is a proprietary product of Splitrock, and:
(a) the licence arrangement contemplated by these terms is non-exclusive; and
(b) Splitrock is in no way constrained or restricted in its continued use, development, sale, licensing or commercial supply of the Platform.
6.2 Licence to Platform
For the duration of the Term, Splitrock grants the Client a non-transferable, non-exclusive, non-sub-licensable, royalty-free, worldwide licence to access and use the Platform for the sole purpose of accessing the Services in the ordinary course of utilising the Services provided by Splitrock.
6.3 Licence to use Client Data and User Data
By agreeing to these terms:
(a) the Client, in respect of the Client Data and the User Data; and
(b) each User, in respect of the User Data only,
grants Splitrock a transferable, non-exclusive, sub-licensable, royalty-free, worldwide, perpetual licence to use, display, copy, modify, adapt and publish the User Data and/or Client Data (as applicable) in the ordinary course of providing the Services to the Client, and to improve, update, modify or upgrade the Platform or any other offering or services provided by Splitrock.
6.4 Retention of Client Data and User Data
(a) We may, at our sole discretion, retain Client Data and User Data in accordance with any requirements under Relevant Law or as required for audit and compliance purposes.
(b) The Client or a User (Requestor) may request that the Client Data or User Data pertaining to the Requestor be deleted at any time by notice to us, and we will delete that Client Data or User Data within 30 days of that notice, subject to any requirement to retain the data under any Relevant Law or court order.
(c) Where the relevant Plan is a free trial only, and the Client does not commence a Plan with payable Fees at the end of the free trial, then all Client Data and User Data provided to Splitrock by the Client or any User during the free trial Plan may be permanently deleted immediately following termination of the free trial Plan.
7 Representations and warranties
7.1 Mutual warranties
Each Party represents and warrants to the other Party that:
(a) it has full power and authority to enter into, perform and observe its obligations under these terms, and that its execution, delivery and performance of these terms has been duly and validly authorised by all necessary corporation action; and
(b) its obligations under these terms are valid, binding and enforceable.
7.2 Splitrock’s warranties regarding the Platform
Splitrock represents and warrants to the Client that:
(a) it and its personnel will perform the Services:
(i) in a timely manner;
(ii) in accordance with the highest level of professionalism in Splitrock’s industry
according to sound design and practices;
(iii) in strict conformance with the requirements and specifications stated in these
terms; and
(iv) in strict conformance with all Relevant Laws
(b) it is entitled to, and has the right and power to, supply the Platform and other Services to the Client;
(c) the Platform:
(i) as far as Splitrock is aware, complies with all Relevant Laws, and use of the Platform
in accordance with these terms will not, in and of itself, cause Splitrock, the Client or a
User to breach a Relevant Law; and
(ii) is not, as far as Splitrock is aware, the subject of any surveillance, inquiry, or
request for information from any regulator that is:
(A) current;
(B) pending or threatened; or
(C) might reasonably be expected to arise as a result of current circumstances.
7.3 Reliance on representations and warranties
(a) Each Party acknowledges that the other Party has executed these terms and agreed to take part in the transactions under these terms in reliance on the representations and warranties that are made in it, including in this clause 7.
(b) All representations and warranties given in these terms are made on the date of these terms and on a continuing basis. The Client must disclose to Splitrock any information which it becomes aware of during the Term of these terms which may cause a breach of a warranty given by the Client under this clause 7.
(c) If Splitrock breaches any of the above warranties, and without limitation of any of Splitrock’s other covenants or its representations, warranties, indemnification, and other service responsibilities, then the Client may:
(i) give Splitrock the opportunity, at Splitrock’s expense, to re-perform the
nonconforming services; or
(ii) reject the non-conforming Services and Splitrock must promptly refund to the Client
all amounts paid by the Client for such rejected Services or the Client may offset such
amount against other amounts owed to Splitrock.
These remedies are in addition to all other remedies at law or in equity or under these terms for damages, or otherwise and will not be deemed exclusive.
8 Intellectual property rights
8.1 Ownership of all Intellectual Property
Both Parties agree that Splitrock exclusively owns all Intellectual Property Rights in:
(a) the Platform; and
(b) the systems and background technology used to provide the Platform.
8.2 Client warranties
(a) The Client warrants and represents that, in the course of accessing or using the Platform and/or the Services, and by allowing, onboarding or providing access to Users to the Platform and/or Services, or otherwise, it will not:
(i) infringe any third party Intellectual Property Rights, including in the provision of
Client Data or User Data into the Platform;
(ii) use the Platform in any manner for any illegal or criminal purpose or activity or for
any purpose other than the Express Purpose;
(iii) modify, translate, make derivative works from, disassemble, reverse compile or
reverse engineer any part of the Platform for any reason whatsoever; or
(iv) remove, deface or destroy any copyright or other rights notices used on, or in
connection with the Platform and the Client acknowledges that any intentional and
malicious attempt to do so is a violation of the rights of Splitrock.
(b) The Client warrants and represents that:
(i) its use of the Platform or the Services has not been previously suspended by
Splitrock;
(ii) it is not a direct competitor of Splitrock or any of Splitrock’s products or services;
(iii) the Client bears all responsibility for use of the Platform by Users, and any act or
omission by a User that would constitute a breach of these terms if it were an act or
omission of the Client, will constitute a breach of these terms by the Client, provided
that the Client had reasonable knowledge of and control over such act or omission.
The Client indemnifies and holds harmless Splitrock for any losses in connection with
such a breach;
(iv) it will not, in any way or at any time, challenge or dispute Splitrock’s rights, title or
interest in the Platform or any Intellectual Property Rights connected to, or in, the
Platform; and
(v) Notwithstanding anything else in these terms, Splitrock's liability for any claim in
relation to these terms, the Platform, or the services provided (whether in contract,
tort, or otherwise) for any loss or damage of any kind (including loss of income, profits,
goodwill, direct or indirect or consequential loss), is limited (at Splitrock's option) to the
re-supply of the services or payment of the cost of re-supply, subject to any
guarantees, rights or remedies provided by the Australian Consumer Law which
cannot be excluded or limited. The Client indemnifies and holds harmless Splitrock for
any liability or loss suffered or incurred by Splitrock in connection with any claims
against Splitrock by the Client or a User in relation to the Platform, provided that such
claims are not due to Splitrock's negligence, breach of these terms, or intentional
misconduct.
8.3 Warranties
Splitrock warrants and represents to the Client that:
(a) the Platform does not and will not infringe the Intellectual Property Rights of any person or breach any trade secret or any obligations of confidence owed to any third party; and
(b) Splitrock has the right to license access to, and use of, the Platform to the Client.
8.4 Notification of potential Infringement Claims
Each Party must promptly notify the other if it becomes aware of any potential infringement of any Intellectual Property Rights or obligations of confidence relating to the Platform or any Client Data or User Data.
9 Splitrock Data
9.1 Materials provided to Client
Any Material that Splitrock provides to the Client, or a User related to the Client (including Splitrock Data), is and will remain the property of Splitrock.
9.2 Restrictions on Client use of Splitrock Data
(a) The Client must, and must procure that any User associated with the Client:
(i) not access, modify or delete Splitrock Data at any time for any reason, or otherwise
use, publish or copy Splitrock Data for any purpose, other than as:
(A) expressly permitted by these terms or Splitrock in writing; or
(B) required by law, by a court or any regulatory authority, provided that (unless
otherwise prohibited) prior to doing so the Client must promptly notify Splitrock in
writing to allow Splitrock to take all reasonable steps to resist such requirement;
(ii) not commercially exploit any Splitrock Data (other than as contemplated by, and for
the limited uses referred to in, these terms); and
(iii) if requested by Splitrock:
(A) securely destroy the Splitrock Data; and
(B) promptly certify to Splitrock, in a form acceptable to Splitrock, that the Client (or
User) has done so.
10 Privacy
10.1 Privacy obligations
If the Client (or a User associated with a Client) collects, uses, discloses, transfers or otherwise handles any Personal Information:
(a) it must comply (and procure that any such User complies) with the Privacy Laws; and
(b) it must not cause (or procure that any User causes) Splitrock to breach its Privacy Policy.
10.2 Survival of privacy obligation
The obligation of privacy imposed by these terms survives its expiration or earlier termination.
11 Indemnities and liability
11.1 Indemnity
Subject to clauses 11.2 and 11.3, each Party (Indemnifying Party) releases and indemnifies the other Party (Indemnified Party) against all Losses suffered or incurred by the Indemnified Party in connection with:
(a) any Infringement Claim caused or contributed to by the Indemnifying Party (or, where the Indemnifying Party is the Client, any User associated with the Client);
(b) any breach by the Indemnifying Party of these terms; and
(c) any negligent or wrongful act or omission of the Indemnifying Party.
11.2 Process for Infringement Claims
In the event of an Infringement Claim, the Client will:
(a) give Splitrock prompt written notice of the Infringement Claim;
(b) allow Splitrock control of the defence and related settlement negotiations (provided that Splitrock must not settle any Infringement Claim in a manner that is deliberately designed to adversely affect the Client); and
(c) provide to Splitrock all reasonable assistance, with costs to be mutually agreed upon.
11.3 Mitigation
The Client must take all reasonable steps to avoid or mitigate any loss or liability which it might suffer or incur in relation to these terms (including under an indemnity).
11.4 Consequential loss
Neither Party will be liable to another Party under these terms for any special, indirect or consequential loss or damage, which includes any loss of revenue, loss of investment returns, loss of profits, loss of opportunity, loss of goodwill, special or punitive damages or loss of contract.
11.5 Survival of indemnities
The indemnities contained in these terms continue notwithstanding the expiry or termination of these terms.
11.6 Limitation of liability
In the event of an action (e.g., a lawsuit, arbitration, or other legal (settlement or mediation) proceeding) between the Parties that arises from these terms or the Services, then the prevailing Party’s total aggregated recovery in respect of any Losses is capped at (i.e., will not exceed) the Fees paid or payable to Splitrock under these terms in respect of the then-current Term.
12 Termination
12.1 Termination for cause
Either Party may terminate these terms (or part of these terms) by written notice to the other Party if the other Party commits a material breach of these terms which is:
(a) incapable of being remedied; or
(b) capable of being remedied, but the other Party fails to remedy the breach within 30 Business Days after receiving notice from the other Party to do so.
12.2 Termination on non-renewal
Either Party may advise the other party by notice in writing or by termination of the Plan in that it does not wish to renew the Plan at the end of the then-current Payment Period, in which case these terms will terminate at the end of that current Payment Period.
12.3 Other termination rights
Splitrock may terminate these terms (in whole or in part) by written notice to the Client if:
(a) the Client fails to make payment of any amount to Splitrock, including any Fee; or
(b) an Insolvency Event occurs in relation to the Client, or the Client takes any step toward, or suffers or experiences any step in relation to, an Insolvency Event.
12.4 Consequences of termination by Splitrock
Where Splitrock terminates these terms, without limiting any right or remedy Splitrock may have under these terms or at law:
(a) each licence granted by Splitrock under these terms terminates immediately without the need for anything else to be done and all Intellectual Property Rights granted under such licences revert from the Client back to Splitrock; and
(b) the Client must promptly:
(i) stop using the Platform;
(ii) at its own cost destroy or deliver to Splitrock (at Splitrock’s election) all:
(A) to the extent applicable and practicable, copies of the Splitrock Data (contained
in any medium) and once delivered to Splitrock, uninstall and destroy any copies of
the Platform electronically stored by Splitrock; and
(B) other things incorporating the Splitrock Data.
12.5 Claims
The expiry or termination of these terms does not affect:
(a) any claim that a Party may have against the other Party;
(b) either Party’s rights in respect of any breach of these terms occurring before expiry or termination; or
(c) the obligations of the Parties to make a payment or perform any other act under these terms which was due before expiry or termination.
13 Disputes
13.1 Dispute Notice
If a dispute arises between the Client and Splitrock in relation to these terms, either of the Parties may by notice to the other Party specifying reasonable details of the dispute (Dispute Notice), refer the dispute for resolution in accordance with this clause 13.
13.2 Good faith discussions
(a) If a Dispute Notice is given, the Parties must meet and engage in good faith discussions with the bona fide objective of resolving the dispute by agreement.
(b) If the Parties are unable to resolve the dispute after a period of 10 Business Days (or such other period as may be agreed), either Party may escalate the dispute by notice to the other Party (Escalation Notice).
(c) If an Escalation Notice is given, senior managers of each Party must meet and engage in good faith discussions with the bona fide objective of resolving the dispute by agreement.
(d) If the Parties are unable to resolve the dispute after a period of 10 Business Days (or such other period as may be agreed), the Parties may by agreement refer the dispute to mediation in accordance with clause 13.3 or if the Parties do not agree to refer the dispute to mediation, either Party may commence legal proceedings.
13.3 Mediation
(a) The mediation must be conducted in private in accordance with the ADC Guidelines and the provisions of this clause 13.3. In the event of any inconsistency between them, clause 13.3 will prevail.
(b) Each Party must notify the other no later than 48 hours prior to mediation of the names of their representatives who will attend the mediation. No Party may refuse the other’s chosen representatives or limit the other’s representatives attending during the mediation.
(c) The terms of any mediation settlement agreement and any information relating to the existence, conduct, status or outcomes of the mediation is confidential and may be published or announced only with the consent of all relevant Parties and in terms agreed by those Parties.
(d) Each Party will bear its own costs of the mediation including the costs of any representatives, and each will bear half the costs of the mediator.
13.4 No legal proceedings
Neither Splitrock nor the Client may commence legal proceedings (other than for urgent interlocutory relief) in relation to any dispute unless the dispute resolution procedures set out in this clause 13 have been followed.
13.5 Continuation of agreement
Notwithstanding the existence of a dispute, the Parties must continue to perform their obligations under these terms.
14 General
14.1 Notices
Any notice, demand, consent or other communication (a Notice) given or made under these terms:
(a) must be in writing;
(b) to Splitrock, must be delivered by email to support@bugherd.com;
(c) to the Client, must be delivered by email to the email address provided when subscribing to the Services or creating an account for use of the Services; and
will be taken to be duly given or made on the day and at the time that the sender receives a delivery confirmation report (or similar) confirming that the email was delivered to the specified email address.but if the result is that a Notice would be taken to be given or made on a day that is not a business day in the place to which the Notice is sent or is later than 4.00pm (local time) it will be taken to have been duly given or made at the commencement of business on the next business day in that place.
14.2 Governing Law & Jurisdiction
These terms are governed by the laws of Victoria, Australia, and each Party submits to the jurisdiction of courts exercising jurisdiction there in connection with matters concerning these terms, but retains the right to object to such venues on reasonable grounds.
14.3 Operation of indemnities
(a) Each indemnity in these terms survives the expiry or termination of these terms.
(b) A Party may recover a payment under an indemnity in these terms before it makes the payment in respect of which the indemnity is given.
(c) If a provision of these terms is expressed to:
(i) indemnify;
(ii) exclude or limit any liability of; or
(iii) otherwise benefit,
a person who is not a Party to these terms, the Client agrees that Splitrock holds the benefit of that indemnity, exclusion, limitation or other benefit on trust for that person and may enforce these terms on their behalf and for their benefit.
14.4 Invalidity
(a) A word or provision must be read down if:
(i) any of these terms is void, voidable, or unenforceable if it is not read down;
(ii) these terms will not be void, voidable or unenforceable if it is read down; and
(iii) the provision is capable of being read down.
(b) A word or provision must be severed if:
(i) despite the operation of clause 14.4(a), the provision is void, voidable or
unenforceable if it is not severed; and
(ii) these terms will be void, voidable or unenforceable if it is not severed.
(c) The remainder of these terms has full effect even if clause 14.4(a) or 14.4(b) applies.
14.5 Cumulative Rights
The rights and remedies in these terms are in addition to other rights and remedies given by Law independently of these terms.
14.6 Entire Agreement
These terms contains the entire agreement between the Parties as at the date of these terms with respect to its subject matter and supersedes all prior agreements and understandings between the Parties in connection with it, except for any warranties, guarantees or other rights provided under the Australian Consumer Law which cannot be excluded, restricted or modified by agreement.
14.7 GST on claims
(a) If a Party provides a payment for or any satisfaction of a claim or a right to claim under or in connection with this document (for example, for misleading or deceptive conduct or for misrepresentation or for a breach of any warranty or for indemnity or for reimbursement of any expense) that gives rise to a liability for GST, that Party must pay, and indemnify the claimant against the amount of that GST.
(b) If a Party has a claim under or in connection with this document for a cost on which that Party must pay an amount for GST, the claim is for the cost plus the amount for GST (except any amount for GST for which that Party is entitled to an Input Tax Credit).
(c) If a Party has a claim under or in connection with this document whose amount depends on actual or estimated revenue or which is for a loss of revenue, revenue must be calculated without including any amount received or receivable as reimbursement for GST (whether that amount is separate or included as part of a larger amount).
14.8 Clauses which survive expiry or termination
Clauses 1, 6, 7, 8, 9, 10, 11, 12, 13 and 14 survive the expiry or termination of these terms, together with any other clause which by its nature is intended to do so.
14.9 No waiver
No failure to exercise nor any delay in exercising any right, power or remedy by a Party operates as a waiver. A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the Party granting that waiver unless made in writing.
14.10 Counterparts
These terms may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument. Delivery of an executed counterpart of a signature page of these terms by facsimile or by PDF file (portable document format file) will be effective as delivery of a manually executed counterpart of these terms.
14.11 Relationship between Parties
(a) Nothing in these terms:
(i) constitutes a partnership between the Parties; or
(iii) except as expressly provided, makes a Party an agent of another Party for any
purpose.
(b) A Party cannot in any way or for any purpose:
(i) bind another Party; or
(ii) contract in the name of another Party.
(c) If a Party must fulfil an obligation and that Party is dependent on another Party, then that other Party must do each thing reasonably within its power to assist the other in the performance of that obligation.
14.12 Assignment
Either Party may only assign, transfer or otherwise deal with its rights under these terms with the prior written consent of the other Party, and such consent shall not be unreasonably withheld or delayed.
14.13 Variation
Splitrock may, in its sole discretion, amend these terms from time to time. Where we update these terms, we will notify you, either via email or in-app notification upon your next login, as reasonably determined by us. Continuation of your use of the Platform and/or other Services after 30 days following the notification will constitute an agreement by you to be bound by the terms, as amended. .
14.14 Further assurances
Each Party must promptly execute all documents and do all other things reasonably necessary or desirable to give effect to the arrangements recorded in these terms.
14.15 Electronic execution
The Parties agree that this document may be executed electronically and electronically executed counterparts are intended to be legally binding and enforceable.
