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). This EULA governs any Software or App made available to You at the time of registering to use the Services. By installing and/or using any Products, You agree to Terms. Please read the Terms carefully and in full prior to registering to use the Service. If You do not agree with the Terms please do not use the Service.
2. This EULA also sets out the terms upon which You are permitted to download, install and use Software 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.
1 Interpretation
1.1 Definitions
The definitions set out below apply to this document.
(a) Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
(b) Business Day means a day that is not a Saturday, Sunday or public holiday in Western Australia.
(c) Content or Data 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 Software or the Website.
(d) EULA means this document.
(e) Fees means the Initial Set-Up Costs and the Subscription Fees.
(f) 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.
(g) Hardware means the custom designed biosensing microchip to be implanted underneath the skin of an animal provided by VetChip, as updated or replaced from time to time.
(h) Initial Set-Up Costs means the fees payable by You for the implantation of the Hardware in Your animal, together with any initial set-up costs.
(a) 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).
(b) Loss means any loss, damage, cost, liability or expense however incurred (including liability to a third party).
(c) Privacy Policy means VetChip’s privacy policy (as amended from time to time) made available at https://www.vetchip.com.au/privacy-policy.
(d) Products means the Hardware and the Software.
(e) Services means the Products, the Website or associated goods and services We make available to You through the Website or Software.
(f) Software means all software and mobile applications licensed as part of the Services.
(g) Subscription Fees means the fees to be paid periodically to VetChip as set out in Your Subscription Agreement for the right to use the Software.
(h) Terms means the terms set out in this EULA, together with any terms and conditions made available through the Website or otherwise made available by VetChip (including the Privacy Policy), as amended from time to time.
(i) We, Us, Our or VetChip refers to Apsyrtus Biotechnology Pty Ltd t/a VetChip ACN 635 842 750.
(j) Website means the website “vetchip.com.au” and other websites We have or establish for Your use.
(k) 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
The interpretation rules set out below apply to this document unless the context requires otherwise.
(a) Words in the singular include the plural and vice versa.
(b) If a word or phrase is defined its other grammatical forms have corresponding meanings.
(c) Including, such as, for example and similar expressions are not words of limitation.
(d) A person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity.
(e) A person includes its executors, administrators, successors and permitted assigns.
(f) A gender includes all other genders.
(g) A document (including this document) includes the document as novated, amended or replaced and despite any change in the identity of the relevant parties.
(h) A statute includes a regulation under it and includes any consolidation, amendment, re-enactment or replacement of any of them.
(i) 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) Subject to You paying the Fees and complying with the Terms, VetChip grant You a non-exclusive, non-transferable and revocable licence to use the Services and the Content (including documents and materials) available or provided in or through the Software, 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) The licence granted to You allows You to access and display the Content only for your personal use and to receive our Services. 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 Content (or any part of it).
(c) As between the parties, We solely and exclusively own all right, title and interest in and to the Services and the Content, including all modifications and derivative works, together with any Intellectual Property Rights associated with the Services and the Content. Other than the licence granted to you, no other licences or rights are granted to You in respect of the Services and such Content. You must not use our copyrights or trademarks or any confusingly similar marks without our prior written consent (which may be given or withheld at our discretion).
(d) You must only use the Services strictly in accordance with this EULA and any applicable documentation, manuals and instructions (including written or oral instructions provided by VetChip).
(e) 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 Additional 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 Software as required, in order to continue use of the Products;
(iii) ensure You are authorised to use the Services to access the information and Data that You input into the Services, including any information or Data input into the Services by any person or third party You have authorised to use the Products;
(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 Content or your device has 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 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 Use of Products
(a) If You 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 Content, information, or services.
(c) We are not responsible for the accuracy, reliability, availability, effectiveness, or correct use of information You receive through the Services. 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. Please read and comply with all safety notices that accompany your use of the Services, including those located on our Website.
5 Consult your Veterinarian before using the Services
(a) 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.
6 Warranty and Exclusion of Liability
(a) 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..
(b) 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 or any Content accessed, including any errors or omissions in any Content;
(ii) any infringement by any 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 Content; and
(iii) any punitive, exemplary, consequential, incidental, indirect or special damages (including any personal injury, lost profits, business interruption, loss of programs or other data on your computer or otherwise) howsoever arising from or in connection with your use of the Services.
(c) You hereby release and agree to hold harmless VetChip, its licensors and suppliers and Apple and Google from any and all claims, demands, and damages of every kind and nature (including, without limitation, actual, special, incidental and consequential), known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with your use of the Services. 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.
(d) Nothing in this EULA excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by any applicable law which cannot lawfully be excluded or limited. This may include the Australian Consumer Law which contains guarantees that protect the purchasers of goods and services in certain circumstances.
(e) If any guarantee, warranty, term or condition is implied or imposed in relation to this agreement under the Australian Consumer Law or any other applicable legislation and cannot be excluded (a Non-Excludable Provision) and VetChip is able to limit Your remedy for a breach of the Non-Excludable Provision, then the liability of VetChip for breach of the Non-Excludable Provision is limited to one or more of the following at VetChip’s option:
(i) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or
(ii) in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.
(f) To the maximum extent permitted by law, 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.
7 Indemnity
(a) You agree to indemnify, defend and hold harmless VetChip for any Loss suffered or incurred by You arising out of or in connection with Your use or misuse of, or negligence relating to, the Services.
(b) Clause 7(a) does not apply to the extent that the Loss is caused or contributed to by VetChip’s gross negligence or unlawful conduct.
8 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 Software 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 Software. 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.
9 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; and
(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.
10 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 person or individuals who receive services or whose information is disclosed to us, in connection with the Services and/or this EULA, are aware that We may use and disclose information about You and each of them in accordance with our Privacy Policy.
11 Suspension and Termination
(a) To terminate an account, You must do so by sending a written notice to info@vetchip.com.au and providing us with one month’s written notice.
(b) We may terminate your account immediately, in our sole discretion, if:
(i) You breach any of these Terms;
(ii) We reasonably suspect that You are attempting to reverse engineer or hack the Software that is provided to you;
(iii) We consider that a request for a licence is inappropriate, improper or unlawful;
(iv) You fail to provide us with clear or timely instructions to enable us to provide You with a licence;
(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, We may suspend or terminate your use of Services and your rights of access to all or any Data.
(d) We may, without notice to You or any person:
(i) remove any 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 account or this EULA:
(i) You will remain liable for any accrued charges and amounts which become due for payment before or after termination; and immediately cease to use the Services;
(ii) You must delete all copies of the Software from all devices. It is Your responsibility to retrieve all necessary data from your account prior to termination; and
(iii) You must return the VetChip Implant to us if requested. This may involve making the animal available for the extraction of the device within a one month period.
(f) The rights, obligations and indemnities in clauses 2, 3, 4, 6 and this clause 11, 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.
12 Force Majeure
(a) Notwithstanding any other provision of this EULA, VetChip will not be 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.
13 General
13.1 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.
13.2 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.
13.3 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.
13.4 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.