End User Licence Agreement

Background
1. This End User Licence Agreement (EULA) is a legal agreement between You and Apsyrtus Biotechnology Pty Ltd t/a VetChip (VetChip)and governs your use of the VetChip Platform.
2. We provide the Services to our customer (Customer) under Terms and Conditions agreed between us and the Customer (Terms). You have been granted access to the Services via the Customer.
3. By accessing or using the Platform, or checking the box next to 'I agree', You agree to be bound by and comply with this EULA. Please read this EULA carefully and in full prior to accessing the Platform. If You do not agree with the EULA, please do not access the Platform.
4. This EULA also sets out the terms upon which You are permitted to download, install and use the Platform on your iOS or Android device. Apple, Inc. (including its subsidiaries, Apple) and Alphabet, Inc. (including its subsidiaries, Google) are not responsible for any obligations under this EULA or any obligations concerning this EULA whatsoever. In this regard, the parties acknowledge that Apple and Google have no obligation whatsoever to provide any maintenance and support services with respect to the App.
5. You may only use the Services if you are the individual assigned to the account through which you are accessing the Services.

1 Interpretation

1.1 Definitions

The definitions set out below apply to this document.

(a) Business Day means a day that is not a Saturday, Sunday or public holiday in Western Australia.

(b) Content means all text, files, images, graphics, illustrations, information, data (including any personal information), trademarks, works of authorship, features, functions, audio, video, photographs and other content and material on or available via the Platform.

(c) Confidential Information means, in relation to each party (for the purposes of this definition, ‘disclosing party’), all information disclosed by or on behalf of the disclosing party, concerning or relating to information, which, by its nature or by the circumstances of its disclosure, is or could reasonably be expected to be regarded as confidential, medically or commercially sensitive, but excluding any such information which is:

• publicly known;
• disclosed to the other party without restriction by a third party (other than the disclosing party) and without any breach of confidentiality by that third party; or
• developed independently by other party without reliance on any of the disclosing party's confidential information.

(d) Consequential Loss means any of the following: loss of revenue; loss of profits; loss of opportunity to make profits; loss of business; loss of business opportunity; loss of use or amenity, or loss of anticipated savings; loss of data; special, exemplary or punitive damages; and any loss which does not directly and naturally flow in the normal course of events from the occurrence of the event giving rise to the liability for such loss, whether or not such loss was in the contemplation of the parties at the time of entry into this EULA, including any of the above types of loss arising from an interruption to a business or activity.

(e) Device Data means all data collected from an animal by a Device.

(f) EULA means this document.

(g) Force Majeure Event means any event preventing the performance of any provision of this EULA arising from or attributable to acts, events, omissions or accidents that are beyond the reasonable control of the parties, such as (without limitation) any abnormally inclement weather, fire, explosion, earthquake, subsidence, structural damage, epidemic or other natural physical disaster, failure or shortage of power supplies, military operations, public disorder, industrial action, act or threatened act of terrorism and/or any legislation, regulation, ruling, decision or omission (including failure to grant any necessary permissions) of any relevant authority, including any court, government agency or governing body.

(h) Device means the custom designed biosensing microchip provided by VetChip to the Customer under the Terms to be implanted underneath the skin of an animal.

(i) Intellectual Property Rights means all intellectual property rights and related rights anywhere in the world, registered or unregistered and whether registrable or not, including without limitation:

(i) patents, copyrights (including future copyright), rights in circuit layouts, designs, source code, trademarks, know-how, inventions;
(ii) all rights to have information (including trade secrets, know-how, operating procedures and technical information) kept confidential; and
(iii) any application or right to apply for registration of any of the rights referred to in clauses 1.1(a)(i) and 1.1(a)(ii).

(j) Loss means any loss (including Consequential Loss), claims, actions, liabilities, damages, expenses, diminution in value or deficiency of any kind whether direct, indirect, consequential or otherwise.

(k) New IP means any and all Intellectual Property Rights created in the course of, or connection with, the provision of the Services and the performance of the services under the Terms.

(l) Platform means all the VetChip web and mobile applications.

(m) Privacy Policy means VetChip’s privacy policy (as amended from time to time) made available at https://www.vetchip.com.au/privacy-policy.

(n) Services means the Platform, our Devices, or associated goods and services We make available to You.

(o) We, Us, Our or VetChip refers to Apsyrtus Biotechnology Pty Ltd t/a VetChip ACN 635 842 750.

(p) Website means the website “vetchip.com.au” and other websites We have or establish for Your use.

(q) You or Your means any user of the Services, including any entity You may represent that downloads, installs, uses or otherwise accesses the Services.

1.2 Interpretation

(a) The interpretation rules set out below apply to this document unless the context requires otherwise.
(b) Words in the singular include the plural and vice versa.
(c) If a word or phrase is defined its other grammatical forms have corresponding meanings.
(d) Including, such as, for example and similar expressions are not words of limitation.
(e) A person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity.
(f) A person includes its executors, administrators, successors and permitted assigns.
(g) A gender includes all other genders.
(h) A document (including this document) includes the document as novated, amended or replaced and despite any change in the identity of the relevant parties.
(i) A statute includes a regulation under it and includes any consolidation, amendment, re-enactment or replacement of any of them.
(j) A regulation includes an instrument of a statutory character such as a rule, by-law, ordinance or proclamation.

1.3 Headings

Headings do not affect the interpretation of this document.

1.4 No disadvantage

No interpretation rule will apply to any part of this document to the disadvantage of a party merely because that party put forward the part or would otherwise benefit from it.

2 Licence and Restrictions

(a) VetChip grants You a non-exclusive, non-transferable, revocable, limited right to access and use the Platform, the Device Data and the Content (including documents and materials), including, in the case of any mobile application provided by VetChip, on any iOS or Android device that You own or control, and as permitted by the usage rules set out in the Apple App Store and Google Play Terms of Service, but only solely in connection with your receipt of our Services.
(b) Except as expressly permitted in this EULA, You must not circulate, reproduce, retransmit, distribute, disseminate, sell, publish, broadcast and/or communicate to the public or any person any such Device Data (or any part of it).
(c) You must only access and use the Services strictly in accordance with this EULA and any applicable documentation, manuals and instructions (including written or oral instructions provided by VetChip).
(d) You are solely responsible for the manner in which You use the Services and agree that VetChip will have no liability to You in respect of any and all Loss suffered or incurred by You directly or indirectly arising from or in connection with failure to strictly comply with this clause 2 or clause 3.

3 Obligations

(a) You must:

(i) cooperate with VetChip and comply with any reasonable instructions provided by VetChip from time to time;
(ii) install updates and new releases of the Platform as required, in order to continue use of the Products;
(iii) ensure You are authorised to use the Services to access the Device Data and Content;
(iv) ensure that all consents and all other rights that are necessary are obtained from the relevant third party to enable a person nominated by You to sync their devices with any information that We may provide to You as part of our Services;
(v) immediately notify us if You are aware of, or have any reason to suspect of believe that, any Device Data, Content or your Device or account credentials have been lost, compromised or misused in any way; and
(vi) comply with all applicable laws in relation to Your use of the Services.

(b) You must not:

(i) use the Services (in whole or in part) for any purpose other than as expressly permitted in this EULA;
(ii) sell, rent, lease, transfer, sub-licence, provide service bureau or timeshare services, distribute or otherwise make the Services available to a third party for any reason;
(iii) modify, translate, copy, reverse engineer, decompile, disassemble, re-engineer or otherwise create (whether directly or indirectly) the source code of the Services or its structural framework;
(iv) modify or create derivative works of the Services; and
(v) perform any act which infringes the Intellectual Property Rights which subsist in the Services;
(vi) request or send email invitations through the Services without the relevant recipient's consent;
(vii) use or otherwise post content or take any action in respect of materials, photos and other content that We may provide to You through the Services that may or will infringe or violate the rights of a third party or that may or will otherwise violate any applicable laws (including court orders);
(viii) access or use the Services in an unlawful way or for an unlawful purpose;
(ix) do anything (or fail to take action) that would otherwise result in us or any other person breaching any law or obligation;
(x) facilitate or encourage any breaches of this EULA or our policies (including our Privacy Policy);
(xi) post unauthorised commercial communications (such as spam) through the Services;
(xii) collect Device Data or Content or information using automated means (such as harvesting bots, robots, spiders, or scrapers) without our prior permission through or in connection with the Services;
(xiii) upload viruses or other malicious code to the Services;
(xiv) solicit login information or access an account related to the Services belonging to a third party;
(xv) do anything (or take any action or fail to take any action) that may disable or impair the proper working or appearance of the Services or our systems;
(xvi) do anything misleading, malicious, or discriminatory through the Services;
(xvii) attempt to gain unauthorised access to any user accounts or computer systems or networks used in connection with the Services;
(xviii) allow or permit others, directly or indirectly, to perform any of the actions referred to above.

4 Intellectual Property Rights

(a) You do not obtain any ownership rights in our Intellectual Property Rights under this EULA or the Terms.
(b) Any New IP that is created will be immediately owned by, vest in, and (to the extent required) assigned to, us.
(c) You must not do anything that infringes our Intellectual Property Rights.

5 Confidentiality

(a) A party must not, without the other party's prior written approval, disclose the other party’s Confidential Information.
(b) Each party must take all reasonable steps to ensure that its personnel do not make public or disclose the other party's Confidential Information.
(c) Each party must on demand, return to the other party any Confidential Information supplied by the other party in connection with this EULA.
(d) Each party must use commercially reasonable efforts to ensure the other party's Confidential Information in its custody is protected at all times from unauthorised access or use by a third party, and from misuse, damage or destruction.
(e) You must comply with all security regulations, procedures and directions we give you from time to time relating to our Confidential Information or access to our Confidential Information.
(f) A party is not in breach of this clause 5 in circumstances where it is legally required to disclose the other party's Confidential Information.
(g) Notwithstanding any other provision of this clause 5, a party may disclose Confidential Information to its personnel for the purpose of performing its obligations under this EULA

6 Use of Products

(a) If You use or rely on the Services, You do so solely at your own risk.
(b) Our goal is to provide helpful and accurate information via the Services, but We make no endorsement, representation, or warranty of any kind about any Device, Device Data, Content, information, or Services.
(c) You acknowledge and agree the nature of the Device or Services remains developmental and are not ready for commercial use or distribution. We are not responsible for the accuracy, reliability, availability, effectiveness, or correct use of Device Data or information You receive through the Services. Device Data, Content and the Services may change from time to time or vary by geographic location.
(d) Use of the Services should not replace your good judgment and common sense.

7 Consult your Veterinarian before using the Services

The VetChip Service is not intended to diagnose, treat, cure, or prevent any disease. If Your animal has any medical condition, You should consult your veterinarian before using the Services. If your animal experiences a medical emergency, stop using the Services and consult your veterinarian. We are not responsible for any health problems that may result from your use of the Services.

8 Warranty and Exclusion of Liability

(a) You warrant to us that:

(i) you have the full right and title to enter into this EULA;
(ii) you have not withheld any information from us that may affect our decision to enter into this EULA;
(iii) you have reviewed and are satisfied with the content of this EULA (and if necessary, obtained independent advice from a relevant expert) before entering into it; and
(iv) you will comply with all applicable laws, standards and regulations in respect of your access to or use of the Services.

(b) We do not guarantee that the Services (or any part of them) will be provided on a continuous basis or that either of them (or any part of them) are fault free. You acknowledge and agree that the Services are provided "as is" and "as available" and, to the maximum extent permitted by law, without any warranty of any kind, express or implied. Furthermore, Apple or Google have no obligations under any warranty or under this EULA in relation to use of any mobile application provided by VetChip.

(c) To the maximum extent permitted by law, We exclude all other warranties, rights, remedies and liability to You or a third party for breach of contract, negligence or breach of any other law. Under no circumstances will We or any licensor or supplier or Apple or its subsidiaries, or Google or its subsidiaries be liable in any way for:

(i) your use of the Services, Data, or Content accessed, including any errors or omissions in any Content; or
(ii) any infringement by any Data or Content of the Intellectual Property Rights or other rights of third parties, or for any loss or damage of any kind incurred as a result of the use of any Data or Content; and
(iii) any Consequential Loss howsoever arising from or in connection with your use of the Services.

(d) Apple and Google have no obligations under this EULA including no obligation to indemnify You for any third party claims, any responsibility for the operation of any mobile application provided by VetChip, or any provision of maintenance or support for any mobile application provided by VetChip.

(e) To the maximum extent permitted by law:

(i) in no event will VetChip be liable to you for any Consequential Loss, even if VetChip has been made aware of the possibility of such consequential loss prior to entering into the agreement; and
(ii) For any liability which cannot lawfully be excluded, but can be limited, our aggregate liability is limited to the actual damages You incur in reasonable reliance of the Services up to AUD$100.

9 Indemnity

(a) You agree to indemnify, defend and hold harmless VetChip for any Claims against us, Loss suffered or incurred by You or VetChip arising out of or in connection with Your breach of this EULA, or use or misuse of, or negligence relating to, the Services.
(b) Clause 9(a) does not apply to the extent that the Loss is caused or contributed to by VetChip’s gross negligence or unlawful conduct.

10 Amendments

(a) VetChip may, from time to time, amend the terms of this EULA in its absolute discretion. Such changes will be effective with, or as applicable without prior notice to You. We may make these changes or updates by updating the version of this EULA displayed by the Platform and/or by updating the version of this EULA online. You can review the most current version of this EULA by accessing it at https://vetchip.com.au/EULA. Your continued use of the Services following any changes to this EULA constitutes Your complete and irrevocable acceptance of any and all such changes. If future changes are unacceptable to You, You must stop using the Services.
(b) VetChip, in its sole and absolute discretion, may modify or update the Platform. You agree that VetChip personnel may access the VetChip Products to install modifications or updates and that the VetChip Products may install or download such modifications or updates automatically.

11 Links to Third Party Sites

You may link to third party sites through the use of the Services. The third party sites are not under the control of VetChip. You acknowledge and agree that:

(a) if You click on any such link, You are entering such third party's site;
(b) We have no responsibility or control for any such third party site;
(c) any such links does not imply affiliate, endorsement or adoption by us of the linked site or other information on that site; and
(d) We are not liable in any way for any loss or damage incurred as a result of any such links.

12 Data and Records

VetChip or our service providers may collect, retain and use records and other data and information relating to your use of the Services, including the history of use. You agree and will ensure that any individuals who receive services or whose information is disclosed to us, in connection with the Services and/or this EULA, are aware and accept that We may use and disclose personal information about You and each of them in accordance with our Privacy Policy.

13 Suspension and Termination

(a) To terminate Your account, You must send a written notice to info@vetchip.com.au and notify us.

(b) We may terminate your account immediately, in our sole discretion, if:

(i) The Customer or You are in breach any of this EULA or the Terms;
(ii) We reasonably suspect that You are attempting to reverse engineer or hack the Platform;
(iii) We consider that a request for access to the Platform is inappropriate, improper or unlawful;
(iv) You fail to provide us with clear or timely instructions to enable us to provide You with access to the Platform;
(v) We consider that our working relationship has broken down including a loss of confidence and trust;
(vi) actual or intentional verbal or written abuse is presented;
(vii) where an order for the appointment of a trustee in bankruptcy or analogous step is taken against you;
(viii) or for any other reason outside our control which has the effect of compromising our ability to provide You with the required Services within a required timeframe.

(c) If payment of fees and/or charges are not made in full by the relevant due date by the Customer, We may suspend or terminate your use of Services and your rights of access to all or any Device Data.

(d) We may, without notice to You or any person:

(i) remove any Device Data, Content or information that is provided or made available through the Services if We believe that it violates this EULA or any of our policies;
(ii) withdraw, suspend or discontinue the Services or any functionality or feature of the Services;
(iii) refuse to provide access to the Services or any Content to any person, or to prohibit any person from using the Services or receiving any such Content, at any time at our discretion; and/or
(iv) maintain, delete or destroy all Content and materials provided or made available through the Services.

(e) Upon termination of your Customer's account or this EULA:

(i) You must immediately cease using the Services;
(ii) You must delete all copies of the Platform from all devices. It is Your responsibility to retrieve all necessary Device Data from your account prior to termination; and

(f) The rights, obligations and indemnities in clauses 2, 3, 4, 6, 9 and this clause 13, together with any other obligations which are expressed to, or by their nature, survive expiry or termination of this EULA will survive termination or expiry of this EULA. Termination or expiry of this EULA does not affect any rights which accrued before the date of expiry or termination.

14 Force Majeure

(a) Notwithstanding any other provision of this EULA, VetChip will not be required to perform, nor liable for any failure to perform, its obligations under this agreement where that performance is delayed, prevented, restricted or interfered with as a result of a Force Majeure Event.
(b) In the case of a Force Majeure Event, VetChip will use all reasonable efforts to minimise the effect of the Force Majeure Event and resume performance in accordance with this agreement as soon as possible after the Force Majeure Event has stopped.

15 General

15.1 Governing law

This document is governed by the laws of Western Australia. The parties submit to the non-exclusive jurisdiction of the courts of Western Australia.

15.2 Severance

If any part of this document is void, unenforceable or illegal but would not be void, unenforceable or illegal if it were read down or severed, it is to be read down or severed accordingly, and the remainder of this document will continue to apply to the full extent possible.

15.3 Waiver

No failure or delay on the part of a party in exercising any right, power or remedy under this document will operate as a waiver.

15.4 Assignment

(a) VetChip may assign this agreement and its rights hereunder, without consent, to a third party as part of the merger, acquisition, reorganisation or sale of the whole or a substantial part of VetChip’s business or assets.
(b) You must not assign Your rights under this agreement without the prior written consent of VetChip.