Bitwise Agronomy Customer Agreement

By downloading, installing, copying, accessing or using the Software, you agree to the terms of this Customer Agreement. If you are accepting these terms on behalf of another person or company or other legal entity, you represent and warrant that you have full authority to bind that person, company or legal entity to this Agreement.
If you do not agree to this Agreement, you must cease usage of the Software, or any of Bitwise Agronomy’s products or services, immediately.

1  Definitions
The following definitions apply unless the context requires otherwise.
Software means Bitwise Agronomy’s application, GreenView, used for the creation of Machine Learning (ML) models and image capture, as further described in the Master Services Agreement or the Work Order, licensed by you pursuant to this Agreement and it includes but is not limited to any and all improvements, developments, modifications, derivatives and variations of such Software and/or Software from time to time and where the context permits, it includes any Documentation.
Bitwise Agronomy means Bitwise Agronomy Pty Ltd (ACN 636 001 182).
Business Day means a day on which banks are generally open for business in Tasmania, other than a Saturday, Sunday or public holiday.
Confidential Information means the confidential information of a party and includes information relating to, in the case of Bitwise Agronomy:

1. its personnel, policies and business strategies;
2. the terms upon which the Software and other products have been supplied, installed and/or supported pursuant to this Agreement;
3. the pricing and payment terms set out in this Agreement;
4. the design and content of the Software and the Documentation; and
5. any information made available to you via the Software and/or the Website.

Your Material means the Data and any Material which is owned by you or in which the Intellectual Property Rights are owned by you.
Data means all and any information, data, materials and other items (other than computer software) stored in, processed by or retrieved through the Software, or intended to be stored in, processed by or retrieved from, the Software, excluding any statistics relating to the performance of the Software;
Documentation means the authorised user guides and manuals that are delivered or made available by Bitwise Agronomy to you for use with the Software.
Force Majeure means a circumstance beyond the reasonable control of a party and which results in that party being unable to observe or perform an obligation on time under this Agreement (other than an obligation to make a payment). Such circumstances include but are not limited to:

1. acts of God, lightning strikes, earthquakes, floods, droughts, storms, tempests, mud slides, washaways, explosions, fires and any natural disaster;
2. acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution
3. disease and a pandemic.

 
Intellectual Property Rights means all intellectual property rights and proprietary rights (whether registered or unregistered) including but not limited to: any processes, formulae, technology, systems, reports, drawings, specifications, computer software (including source codes and object codes), blue-prints, patents, discoveries, inventions, improvements, trade secrets, technical data, research data, know-how, logos, registered and unregistered trade marks and service marks, registered and unregistered designs, design rights, rights in circuit layouts, copyright and the right to keep confidential information confidential and any other rights in the nature of intellectual property rights.
Master Services Agreement means the agreement of the same name entered into between the Users and Bitwise Agronomy. This is only applicable to projects.
Material means Bitwise Agronomy’s present and future Intellectual Property Rights, document templates, report definitions, software (including source and object code), inventions, and other materials in any media whatsoever.
New Material means material that is specifically created, written, developed or otherwise brought into existence by or on behalf of Bitwise Agronomy for the sole purpose of providing the Software or the New Releases to you.
New Release means:

1. a new release of the Software providing for a significant change in the technology; and/or
2. a new generally available version of the Software containing corrections of programming errors and/or functional enhancements.

Representative means any officer, employee, agent, consultant, contractor or other representative.
Work Order means an order issued by Bitwise Agronomy pursuant to the Master Services Agreement confirming the Software to be licensed to you.
Use means to directly or indirectly activate the processing capabilities of the Software, load, execute, access, utilise, store, employ the Software, or display information resulting from such capabilities.
Users means you or your Representative who have Use of the Software.
Website means the website at https://www.bitwiseag.com

2  Licence Grants and Restrictions

1. Subject to the terms and conditions of this Agreement, Bitwise Agronomy hereby grants to you a non-exclusive, non-transferable right to access and use the Software solely for your own internal business operations and as listed in the Master Services Agreement or the Work Order.
2. Except as otherwise expressly permitted under this Agreement, you must not (and must not allow a third party) to:
   1. reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Software or any portion thereof;
   2. distribute, transfer, grant sub-licences to, or otherwise make available the Software or any portion thereof to third parties, including as an Software service provider, service bureau, or rental source, unless otherwise authorised in writing by Bitwise Agronomy;
   3. embed or incorporate in any manner the Software into other Softwares of yours or third parties, other than as authorised in applicable Documentation or by Bitwise Agronomy

in writing;

1. create modifications to or derivative works of the Software;
2. reproduce the Software;
3. attempt to modify, alter, or circumvent any licence control and protection mechanisms within the Software;
4. use or transmit the Software in violation of any applicable law, rule, or regulation; (h) demonstrate the Software to a competitor of Bitwise Agronomy;
5. intentionally access, use, or copy any portion of the Documentation or the Software to directly or indirectly develop, promote, distribute, sell, or support any product or service that is competitive with the Software; or
6. remove, obscure, or alter any copyright notices or any name, trademark, service mark, tagline, hyperlink, or other designation included on any display screen within the Software (the “Bitwise Agronomy’s Marks”).

You shall be responsible for all damages and liabilities incurred as a result of such actions.

3 New Releases
3.1 The terms of this Agreement will govern any New Releases that Bitwise Agronomy may provide,
unless such New Releases are accompanied by a separate licence agreement in which case the terms of that separate licence agreement will govern.
 
4  Your Obligations

1. You will comply with and will be responsible for your Users’ compliance with the terms and conditions of this Agreement and all applicable laws and regulations with respect to use of the Software. You shall be responsible for all damages and liabilities incurred by Bitwise Agronomy as a result of a failure to comply with this clause.
2. You are responsible for procuring, installing, configuring, and maintaining all hardware and operating systems required to run the Software, as set forth in the Documentation.
3. You acknowledge that the operation of the Software may not always be completely error free and without interruption. You must:
   1. implement verification measures in accordance with best industry practice; and
   2. keep in force throughout the term of this Agreement appropriate insurance against any loss that may be suffered in the event of any failure, defect or error in the Software. Bitwise Agronomy is not liable for any loss suffered by you as a result of a failure to comply with this requirement.
4. You may print and make such number of copies of the Documentation as you reasonably require to use the Software in accordance with this Agreement. All copies are the property of Bitwise Agronomy (or its third party licensors) and must contain all proprietary notices that appear on the original copy.
5. You are solely responsible for any data, text, files, information, images, graphics, and other content or materials that the Users upload to the Software (collectively, “User Data”).
6. To ensure compliance with this Agreement, if Bitwise Agronomy reasonably believes that you have breached this licence, you agree that upon reasonable advance written notice, Bitwise

Agronomy or any of its authorised representative shall have the right to inspect and access any of your business premises, computer systems and records kept in relation to the Software. Any such inspection will be conducted during normal business hours or other times agreed by you, at your principal place of business. If you have breached the term of this licence, then you will pay for all costs related to the inspection, including any third party costs.
 
5  Intellectual Property

1. Any Intellectual Property Rights:
   1. in the Software;
   2. database(s) design;
   3. in the Documentation;
   4. in any changes, modifications, developments or enhancements made to the Software or the Documentation by Bitwise Agronomy or anyone else (including your specific modifications);
   5. arising from Bitwise Agronomy's provision of the Software; and
   6. on the Website,

​ are owned and are the sole property of Bitwise Agronomy or its licensors.

1. Bitwise Agronomy will indemnify you against any finally awarded damages or settlement amounts approved by Bitwise Agronomy arising out of or in connection with a claim that the use of the Software in accordance with this Agreement infringes a third party's copyright or an Australian patent, provided that you:
   1. ​notify Bitwise Agronomy immediately of any infringement or claim of which it is aware and does not make any admissions without Bitwise Agronomy's prior written consent;
   2. at Bitwise Agronomy's request and expense, allow Bitwise Agronomy to conduct and/or settle all negotiations and litigation resulting from any such claim,
   3. assist and fully co-operate with Bitwise Agronomy in the defence or settlement of the claim; and
   4. do not take and ensure that no other entity or Representative takes any action that prejudices Bitwise Agronomy's ability to defend or settle the claim.
2. Notwithstanding anything to the contrary in this Agreement, Bitwise Agronomy is not responsible or liable for any infringement of a third party’s Intellectual Property Rights if the infringement would not otherwise exist except for:
   1. the use of the Software with any other software or equipment;
   2. any corrections to or modifications of the Software database other than by Bitwise Agronomy;
   3. modifications to the Software in compliance with your specifications or requirements; (d) a failure to promptly implement a New Release made available by Bitwise Agronomy; (e) any breach of this Agreement by you, or any unauthorised use, access or

modification to the Software by you or a third party,
and in such circumstances, Bitwise Agronomy's obligations under clause 5.2 do not apply.
 

1. If the Software is or is likely to become the subject of a claim of infringement, Bitwise Agronomy

may at its sole discretion:

• procure for you the right to use the Software or the affected part of it;
• replace or modify the Software to make it non-infringing; or
• require the return of the Software.  

1. ​If Bitwise Agronomy's use or possession of the Software is determined by an independent tribunal of fact or law to infringe the Intellectual Property Rights of a third person, you must cease using the Software immediately.
2. To the extent permitted by law and subject to clause 10.5, clauses 5.2 to 5.5 state Bitwise Agronomy's entire liability and your sole and exclusive remedies for any claim of infringement of third party's rights.
3. Bitwise Agronomy acknowledges that title to, and Intellectual Property Rights in, all Your Material remains in you.
4. All enhancements and modifications to Your Material shall be deemed New Material for the purposes of this Agreement, and all such enhancements and modifications to the New Material immediately vest in Bitwise Agronomy.
5. Bitwise Agronomy hereby grants a non-exclusive, non-transferable, royalty-free, perpetual licence to you to use and modify the New Material created by Bitwise Agronomy in the provision of the Software. This clause does not apply to any Material or Intellectual Property Rights which are brought into existence by Bitwise Agronomy or on behalf of Bitwise Agronomy which is not for the sole purpose of the provision of the Software to you, including but not limited to, any processes, methods, material (including modifications, updates or enhancements to Bitwise Agronomy’s presently existing and future Intellectual Property Rights or Existing Material whether in respect to you or any other client of Bitwise Agronomy).

 
6  Liability

1. Subject to clauses 6.2, 6.4 and 10.5 and otherwise to the extent permitted by law:
   1. the total aggregate liability of Bitwise Agronomy to you for loss or damage arising from or in relation to this Agreement, whether arising from breach of contract, tort (including negligence), in equity or otherwise, is limited to the fees paid by you to Bitwise Agronomy’s for the 6-month period immediately preceding the event giving rise to the loss or damage;
   2. Bitwise Agronomy is not liable to you for:
      1. any loss of data, goodwill, interest, revenues, profits, contracts or any inaccuracy of data; or
      2. any indirect, special, incidental, consequential, exemplary, punitive, or aggravated damages or loss; or
      3. any internal costs and expenses (whether director indirect) howsoever incurred, arising from the negligence of, or any breach of this Agreement by, Bitwise Agronomy or its

Representatives even if Bitwise Agronomy has been advised of the possibility that
such damages may occur; and

1. Bitwise Agronomy is not liable for loss or damage arising from third party products or services.

 

1. Nothing in this Agreement limits Bitwise Agronomy's liability to an individual for death or personal injury caused by a negligent or wilful act or omission of Bitwise Agronomy or its Representatives.
2. No warranty, condition or term (“term”) applies to this Agreement unless it is set out in this Agreement or is implied by law and cannot be excluded, modified or restricted. Without limiting clause 6.4:
   1. the Software is supplied on an “as is” basis; and
   2. the Software is suitable for use in Australia only. If you intend to use the Software in, or in relation to, any other jurisdiction it does so at its own risk.
3. If:
   1. any term is implied into this Agreement by law, and the law prohibits the exclusion, restriction or modification of that term or liability under it, then that term shall be deemed to be included in this Agreement;
   2. a statutory guarantee applies to goods or services supplied under this Agreement;

then, to the extent permitted by law, Bitwise Agronomy's liability for breach of that term or guarantee is limited to (at Bitwise Agronomy's option)

1. in relation to services, re-supplying the services or paying for them to be re-supplied; and
2. in relation to goods, re-supplying them, or paying for having them re-supplied.

 

1. You will at all times indemnify and hold harmless Bitwise Agronomy and its Representatives from and against any loss, costs (including reasonable legal costs and expenses) or liability incurred or suffered by Bitwise Agronomy or its Representatives arising from any proceedings against Bitwise Agronomy or its Representatives where such loss, costs or liability was caused by:
   1. a breach by you of your obligations under this Agreement (or any other applicable licence terms);
   2. any wilful, unlawful or negligent act or omission of you or your Representatives; or
   3. a claim by a third party alleging an infringement of that third party's Intellectual Property Rights if such infringement relates to an act or omission of you, your Representatives or a User.

 
7  Confidentiality 

1. Except as provided in this clause, a party must not, without the prior written approval of the other party, disclose the other party's Confidential Information.
2. A party is not in breach of clause 7.1:
   1. in circumstances where it is legally compelled to disclose the other party's Confidential Information; or
   2. if it discloses Confidential Information (other than of a technical nature) to its related companies, solicitors, auditors, insurers and accountants or in the case of Bitwise Agronomy, to third parties solely for the purposes of performing this Agreement.
3. Each party must take all reasonable steps to ensure that its employees, agents and sub-contractors do not make public or disclose the other party's Confidential Information.

 

1. Each party agrees to promptly notify the other party of any unauthorised access to or disclosure of the Confidential Information.
2. The receiving party agrees that any breach of this clause may cause irreparable harm to the disclosing party, and such disclosing party shall be entitled to seek equitable relief in addition to all other remedies provided by this Agreement or available at law.
3. You must on demand return to Bitwise Agronomy any Documentation supplied by Bitwise Agronomy in connection with this Agreement.

 
8  Termination

1. This Agreement becomes effective when you click on the “Accept” button when using the Software, or by signing the Master Services Agreement, or when you in any other way use the Software, which constitutes your acceptance of this Agreement. Once accepted, this Agreement remains valid until terminated by you or Bitwise Agronomy.
2. You may terminate this Agreement in accordance with the terms and conditions of the Master Services Agreement.
3. Bitwise Agronomy may terminate this Agreement or suspend your Use of the Software if:
   1. you fail to comply with any of the terms and conditions of this Agreement or the Master Services Agreement;
   2. Bitwise Agronomy is required to do so by law;
   3. the provision of the services to you by Bitwise Agronomy is, in the opinion of Bitwise Agronomy, no longer commercially viable.
4. You agree that, upon termination, you shall cease usage of the Software. Clause 5, 6, 7 and 9 and any other clauses which are capable of having effect after the expiration or termination of this Agreement will continue to remain in full force and effect.

 
9  Dispute Resolution

1. Negotiation

Except as is expressly provided for in this Agreement, if there is a dispute or difference between the parties arising out of or in connection with this Agreement (“Dispute”), then within five (5) Business Days of a party notifying the other party in writing of the Dispute, a senior representative from each party must meet and use all reasonable endeavours acting in good faith to resolve the Dispute by joint discussions.

1. Mediation
   1. If the Dispute is not settled within thirty (30) days of notification under clause 9.1, the parties must submit the Dispute to mediation administered by the Australian Disputes Centre.
   2. The Australian Disputes Centre's Guidelines for Commercial Mediation apply to any mediation under this Agreement and the parties must comply with those rules.
   3. Any mediation meetings and proceedings under this clause must be held in Launceston, Tasmania.
2. Arbitration
   1. This arbitration clause applies if you are not based in Australia.

 

1. In the event that the Dispute is not resolved at the conclusion of the mediation, both parties are prohibited from instituting legal proceedings concerning the subject matter of the Dispute and the Dispute, controversy or claim arising out of, relating to or in connection with this Agreement, including any question regarding its existence, validity or termination, will be resolved by arbitration in accordance with the ICC Rules of Arbitration (or any rules which supersede these rules). The seat of arbitration shall be Launceston, Tasmania, Australia. The language of the arbitration shall be English. The number of arbitrators shall be one.
2. This clause 9.3 may be used as a bar to legal proceedings issued in any Court in any country which has ratified the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.
3. Court proceedings and other relief

A party may not start court proceedings in relation to a Dispute until it has exhausted the procedures in this clause, unless the party seeks injunctive or other interlocutory relief.

1. Continuation of rights and obligations

 
Despite the existence of a dispute or difference, each party must continue to perform this Agreement.

​10 General Provisions

1. Force Majeure

Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of a Force Majeure event. If the Force Majeure event is not lifted within 12 months then the Parties have the right to terminate the contract. The party relying on the Force Majeure event will provide regular updates to the other party.

1. Announcements

 
Bitwise Agronomy may identify you as a customer of Bitwise Agronomy and a user of the Software on Bitwise Agronomy's published customer lists, web site, and in its marketing and advertising materials and announcements. You have the right to request removal as a identified customer and user of the Software
 
Bitwise Agronomy may also include non-confidential information about your business and implementation of the Software. Bitwise Agronomy may release updated information from time to time.

1. Assignment
   1. The terms of this Agreement shall be binding on the parties and their successors.
   2. Bitwise Agronomy and you may assign its rights and obligations under this Agreement:
      1. to a third party if any part of Bitwise Agronomy’s business or your business is sold or transferred to that third party; and/or
      2. provided that Bitwise Agronomy or you (as applicable) can demonstrate that the assignee is able to perform its obligations under this Agreement.

Bitwise Agronomy and you may not otherwise assign its rights under this Agreement without the consent of the other party and such consent will not be unreasonably withheld or delayed.

1. Any attempted assignment, transfer, or delegation in violation of the foregoing shall be null and void.
2. Entire Agreement

 
The Agreement, the Master Services Agreement or the Work Order (whichever applies to you), and any variations to it embody the entire understanding and agreement between the parties as to its subject matter. All previous negotiations, understandings, representations or warranties (“Other Understandings”) in relation to the subject matter of this Agreement are superseded by this Agreement. You acknowledge and agree that in entering into this Agreement it is not relying on any Other Understandings (including any express warranties) which are not expressly set out in this Agreement.

1. Limitation of Liability
   1. Bitwise Agronomy gives no express warranties, guarantees, or conditions. Bitwise Agronomy exclude all implied warranties and conditions, including those of merchantability, fitness for a particular purpose, and non-infringement, except as limited by law. If Bitwise Agronomy breaches any warranty required by law, it will, at its election, either:
      1. repair or replace the Software at no charge; or
      2. accept return of the Software for a refund of the amount paid, if any. Bitwise Agronomy if you acquired the Software directly from Bitwise Agronomy may also repair or replace supplements, updates, and replacement of the Software or provide a refund of the amount you paid for them, if any. These are your only remedies for breach of warranty.
   2. Bitwise Agronomy’s liability will not be responsible for any problems that you cause, that arise when you fail to follow instructions, or that are caused by events beyond the reasonable control of Bitwise Agronomy. Clause 10.5 will apply to any supplements, updates, or replacement software that you may receive from Bitwise Agronomy, including New Releases.
2. Compliance with the Australian Consumer Law

If the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) applies to any supply of goods or services under this Agreement, nothing in this Agreement excludes, restricts or modifies a guarantee, right, liability or remedy to the extent that to do so would render a term void or be a breach of the Competition and Consumer Act 2010 (Cth).

1. Waiver

 
A failure to exercise or a delay in exercising any right, power or remedy under this Agreement does not operate as a waiver. A single or partial exercise or waiver of the 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.

1. Severability
   1. Any provision in this Agreement that is invalid or unenforceable in any jurisdiction is to be read down for the purpose of that jurisdiction, if possible, so as to be valid and enforceable, and otherwise shall be severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions of this Agreement, so long

as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any party.

1. Upon such determination, the parties shall negotiate in good faith in an effort to agree upon such a suitable and equitable provision to affect the original intention of the parties.
2. Governing law & Jurisdiction
   1. This Agreement is governed by and is to be construed in accordance with the laws of Tasmania.
   2. With respect to any legal action or proceedings which may be brought with respect to this Agreement or any transaction contemplated by this Agreement (each, a Relevant Action), each party irrevocably and unconditionally:
      1. submits to and accepts, for itself and in respect of its assets, the non-exclusive jurisdiction of courts exercising jurisdiction in Launceston, Tasmania in connection with matters concerning this Agreement; and
      2. agrees that it will not object to the venue or claim that the Relevant Action has been brought in an inconvenient forum.
   3. The United Nations Convention on Contracts for the International Sale of Goods (and any adopting legislation) does not apply to this Agreement.
3. Limitation of action

Subject to clause 10.5 and to the maximum extent permitted by law, other than in relation to a claim for breach of Bitwise Agronomy's Intellectual Property Rights, no claim can be made under this Agreement more than two (2) years after:

1. the discovery of the circumstances giving rise to the claim; or
2. the effective date of termination of this Agreement.

 

1. Order of Priority

If you enter into a Master Services Agreement with Bitwise Agronomy and the terms and conditions of the Master Services Agreement conflict with the terms and conditions of this Agreement, then the terms and conditions specified in this Agreement shall prevail.