1.              OVERVIEW

1.1           This Agreement constitutes the terms and conditions between Equilize Horse Nutrition Pty. Ltd. ACN 109 081 601 (Equilize, we, our or us) and you (you, your or user) with respect to your use of the Software. 

1.2           Please read this Agreement carefully as it contains important terms that affect you and your use of the Software.  

1.3           By clicking “I Agree”, “I Accept” or similar, activating the Software or using the Software, you agree to be bound by this Agreement.  

1.4           We may engage third parties, including cloud service providers, to provide you with the Software.

1.5           You acknowledge that we may require that you pay a fee to access and use the Software or certain features of the Software. If any such fees are payable, we will notify you of the amount of those fees and any applicable payment terms before you access and use the Software (or the relevant features of it, as applicable). You may also be charged for other in-app purchases.

2.              DEFINITIONS AND INTERPRETATION

2.1           Definitions 

In this Agreement: 

Affiliate means any relative or Related Entity of you, or any body corporate, trust or other entity that you Control.

Agreement means this document including any amendments and modifications to this document from time to time.  

Commencement Date means the earlier of the date that the user:

(a)            accesses the Software; or

(b)            agrees to be bound by the terms of this Agreement in accordance with clause 1.3.

Control has the meaning given in section 50AA of the Corporations Act and Controlled has a corresponding meaning.  

Corporations Act means the Corporations Act 2001 (Cth). 

Enhancements means any improvement, enhancement or other modification to any aspect of the Software, including to its operation, user interface, look-and-feel, design, performance and/or its functionality. 

Equilize IP is defined in clause 8.1.

Intellectual Property Rights means: 

(a)            patents, designs, trademarks and service marks (whether registered or unregistered) and any applications for, or rights to apply for, registration of any patent, design, trademark or service mark; 

(b)            circuit layout rights;  

(c)            copyright (including copyright, and future copyright, in software, websites, databases and advertising and other promotional materials); 

(d)            all rights to have information (including trade secrets, know how, operating procedures and technical information) kept confidential; and 

(e)            all other rights or protections having similar effect anywhere in the world. 

Licence is defined in clause 4.

Moral Rights has the meaning given under the Copyright Act 1968 (Cth) and includes any similar rights existing in other countries.  

Personal Information has the meaning given to that term in section 6 of the Privacy Act 1988 (Cth).

Personnel means officers, employees, secondees, agents and contractors. 

Related Entity has the meaning given to that term in section 9 the Corporations Act. 

Server means our computing infrastructure and software used to make the Software available to the user.  

Software means the app known as MyHappy.Horse developed by Equilize and the Software IP in it (including all source and object code) hosted on the Server excluding any User Data.  

Software IP means all the Intellectual Property Rights contained within the Software. 

Software Output is defined in clause 8.1.

Term is defined in clause 3.

User Data means all information, materials, data, text, logos, images, documents and/or content that you provide or upload onto the Server or the Software apart from the Equilize IP.

2.2           Interpretation

In this Agreement the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:

(a)            headings and subheadings are for convenience only and do not affect the interpretation of this Agreement;

(b)            references to a party to any agreement or document include that party's permitted assignees and successors;

(c)            words denoting the singular include the plural and words denoting the plural include the singular;

(d)            the word "person" includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any government agency;

(e)            any promise, agreement, representation or warranty given or entered into on the part of two or more persons binds, and is for the benefit of, them jointly and each of them severally;

(f)             specifying anything in this Agreement after the terms "include", "including", "includes", "for example", "such as" or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary;

(g)            this document or a provision of it is not to be read against a party solely because that party was responsible for preparing or proposing it; and 

(h)            where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

3.              TERM

This Agreement commences on the Commencement Date and continues unless terminated in accordance with clause 13 (Term). 

4.              GRANT OF LICENCE 

Subject to and in accordance with the terms and conditions set out in this Agreement, we grant you a non-transferable, non-sublicensable, non-exclusive and revocable licence to use the Software for the Term (Licence).  

5.              USE OF LICENCE 

5.1           Eligibility

(a)            The Software is not intended for anyone under the age of 18. If you are under the age of 18 and wish to use the Software, you agree and acknowledge that you will:

(i)             procure that your parent or guardian:

(A)           creates an account in their name by providing the details in clause 5.2(a); and

(B)           agrees to this Agreement; and

(ii)            only use the account created by your parent or guardian as per clause 5.1(a)(i) above to access the Software.

(b)            If you are a parent or guardian who is agreeing to this Agreement to allow a minor to use the Software as contemplated by clause 5.1(a), you agree to ensure that such minor complies with this Agreement in relation to their use of the Software.

5.2           Your access and use of the Software

(a)            When you register to use the Software, you will be asked to enter the following details:

(i)             your full name;

(ii)            your email address; and

(iii)           your password.

(b)            You are solely responsible for keeping your login and password details (Credentials) confidential. You must not share your Credentials with any other person.

(c)            Without limiting any rights which we may otherwise have, we reserve the right to take any and all action, as we deem necessary or reasonable, to ensure the security of the Software and your account, including without limitation, terminating your account or requesting additional information to authorise transactions on your account.

(d)            You agree to be responsible for any act or omission of any users that access the Software using your account that, if undertaken by you, would be a breach of this Agreement.

(e)            Subject to you complying with the restrictions on use set out in this agreement (including in clause 5.3), you may use the Software for your own personal use or for commercial use.

5.3           Restrictions on use  

(a)            You must: 

(i)             use the Software in accordance with all applicable laws and regulations in the jurisdiction in which you are located; and

(ii)            use the Software in accordance with this Agreement.

(b)            You agree and acknowledge that:

(i)             you must make an additional in-app purchase for each additional horse (after the first horse) for which you generate feeding plans and use the Software (Additional Horse).  You must not generate feeding plans or use the Software for an Additional Horse unless you have made this in-app purchase.  We will notify you separately of the amount required to be paid for this in-app purchase;

(ii)            you will be solely responsible for the internet connectivity required for the Software; and

(iii)           you are solely responsible for any User Data you upload to the Software and the consequences of doing so.

(c)            You agree that you will not: 

(i)             copy, share, assign, sub-licence, transfer, lease, rent, sell, distribute, install or otherwise provide the Software to any other entity or person (including, without limitation, on a white-label basis) without our prior written consent. In the event that such consent is given then it would be the subject of a further agreement and related commercial terms;  

(ii)            use the Software or allow the Software to be used with or in conjunction with any application where product failure could lead to injury to persons, loss of life or severe property, financial, commercial, reputational or environmental damage;

(iii)           permit any Personnel or Affiliate, whether acting directly or indirectly on your behalf, to make copies of the Software or breach any of the restrictions set out in this clause or elsewhere in the Agreement;

(iv)           modify, copy or create derivative works based on the Software; 

(v)            remove any Intellectual Property Rights notices that accompany the Software;

(vi)           frame or mirror any content forming part of the Software; 

(vii)          reverse engineer the Software; 

(viii)         access the Software in order to build a competitive product or service; 

(ix)           train or develop any artificial intelligence or machine learning algorithms or software using the Software;

(x)            allow the Software to become the subject of any charge, lien or encumbrance;

(xi)           offer a service that is based on the use of the Software; or

(xii)          access the Software to copy any ideas, features, functions or graphics of the Software.

(d)            Unless otherwise expressly permitted in this Agreement, you may not and may not permit a third party to:

(i)             use or provide our service or the Software on a white-label or re-branded basis, or otherwise, for the benefit of any third party (other than to the extent third parties are expressly permitted to receive our service or the Software under this Agreement); or

(ii)            use the Software or our third party providers’ property to train any artificial intelligence or machine learning algorithms or software or create any derivative works, compilations or collective works or in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

(e)            We reserve the right to suspend, cancel, or otherwise deny access to users and accounts who use the Software:

(i)             to engage in any act that would disrupt the access, availability and security of the Software including but not limited to:

(A)           tampering with, reverse-engineering, or hacking the Software or our servers that host the Software;

(B)           modifying, disabling, or compromising the performance of the Software; or

(C)           overwhelming, or attempting to overwhelm our infrastructure that hosts the Software by imposing an unreasonably large load on our systems that consume extraordinary resources;

(ii)            in such a way as to compromise the integrity of our system, including probing, scanning and testing the vulnerability of our system unless expressly permitted by us;

(iii)           to misrepresent or defraud any user or member of the public through phishing, spoofing, manipulating headers or other identifiers, impersonating anyone else, or falsely implying any sponsorship or association with us or any third party; or

(iv)           to access or search any part of the Software other than our publicly supported interface.

(f)             We also reserve the right to suspend, cancel, or otherwise deny access to users and accounts who breach this Agreement.

(g)            We do not guarantee the performance of the Software. We will try to ensure that the Software remains accessible but, from time to time, the Software may be inaccessible, unavailable or inoperable for any reason, including:

(i)             equipment malfunction;

(ii)            periodic maintenance procedures, upgrades or repairs (whether scheduled or unscheduled) which we may undertake at our discretion; and

(iii)           other causes beyond our control, including interruption or failure of telecommunications or digital transmission links, hostile network attacks, the unavailability, operation or inaccessibility of the Software or interfaces, network congestion or other failures.

(h)            We cannot and do not guarantee uninterrupted, virus, error or risk-free access to the Software.

6.              USER DATA 

(a)            You have the ability to upload User Data to the Software.

(b)            If you have any Moral Rights in any User Data, you irrevocably consent to us engaging in any act or omission that would otherwise infringe your Moral Rights, including not attributing authorship to you.

(c)            When you post, upload, submit or send User Data to or through the Software, you grant us a worldwide, royalty-free, non-exclusive, perpetual, irrevocable licence to use, store, reproduce, modify, create derivative works, communicate, publish and distribute such User Data for the limited purpose of providing, operating, promoting and improving the Software and to develop new services. This licence continues even if you stop using the Software or if this Agreement terminates.

(d)            You represent and warrant that you have all rights, licenses, and permissions needed to post, upload, submit or send the User Data to or through the Software and to grant the licence and rights referred to in the previous paragraph.

(e)            You must indemnify us and hold us harmless from any Claims or legal actions related to a breach of clause 6(d).

(f)             We do not guarantee the confidentiality of any communications made by you through the Software. We do not guarantee the security of data transmitted over the Internet or public networks in connection with your use of the Software.

(g)            When using or accessing the Software, you must not provide us with any User Data, including any personal information (as defined under the Privacy Act 1988 (Cth)) contained in User Data, which violate, misappropriate, or infringe the rights of any third party, applicable law or this Agreement.

(h)            We acknowledge that, as between the parties, all intellectual property rights in your User Data are owned by you or your licensors.

(i)              You may voluntarily provide any comments, suggestions, ideas or recommendations (collectively, Feedback) to us, and if so, you grant us a worldwide, royalty-free, non-exclusive, perpetual, irrevocable, transferable right to use any Feedback you provide to us in relation to the Software in any manner and for any purpose.

7.              COLLECTION OF INFORMATION

(a)            You acknowledge that we may, directly or indirectly through your use of the Software, collect and store information regarding your use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, and we may use such information to:

(i)             improve the performance of the Software or develop Enhancements to the Software;

(ii)            verify your compliance with the terms of this Agreement; and

(iii)           enforce our rights, including all Intellectual Property Rights in and to the Equilize IP.

(b)            If your User Data or other information we collect contains Personal Information, we will process your Personal Information in accordance with our Privacy Policy which can be found here [HWL Note: insert hyperlink].

8.              INTELLECTUAL PROPERTY

8.1           Reservation of rights  

(a)            All Intellectual Property Rights in the Software and any reports, information or other material produced by the Software (Software Output) (together Equilize IP) are the sole property of Equilize (or its licensors, if applicable) and nothing in this Agreement constitutes a transfer of the ownership of such Intellectual Property Rights from Equilize to you or to any other party.

(b)            You agree that damages may be an inadequate remedy to a breach of this Agreement and acknowledge that Equilize may be entitled to seek injunctive relief if such steps are necessary to prevent violations of our Intellectual Property Rights.

8.2           Improvements and Enhancements

(a)            We reserve the right to make Enhancements to the Software at our discretion. We are not obliged to incorporate such Enhancements into a copy of the Software that you use. 

(b)            We own all right, title and interest, including all Intellectual Property Rights, in and to any Enhancements to the Software.  

9.              THIRD PARTY DATA

(a)            The Software may incorporate or link to third party products or services (including without limitation software) (Third-Party Services) and some parts of the output generated by the Software may include output from Third-Party Services (Third-Party Output). We are not responsible for Third-Party Services and Third-Party Output.

(b)            You acknowledge that we may receive a referral fee for any Third-Party Service that you purchase.

(c)            Where the Software contains links to other third party content, products, services or sites (including banner advertisements and sponsored links) provided by third parties (Third-Party Material), these links are provided for your information or convenience only. Such links should not be interpreted as approval by us of those linked websites or information, products or services you may obtain from them. We do not monitor, control or accept liability for any Third-Party Material. Except as otherwise noted on the Platform, any opinions, advice, statements or services contained in any Third-Party Material is the responsibility of the respective author and does not constitute a representation or warranty by us as to their accuracy or description. Any use of or reliance on these Third-Party Materials by you is entirely at your own risk.

(d)            We do not endorse Third-Party Material, or guarantee or warrant their quality, durability, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability, or fitness for any purpose.

(e)            Your interactions with organisations and/or individuals found on or through the Software, including payment and delivery of goods and services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organisations and/or individuals. To the extent permitted by law, we are not responsible or liable for any loss or damage incurred as a result of any such dealings.

10.           WARRANTIES & DISCLAIMERS 

10.1        Information only

(a)            You acknowledge and agree that the Software Output is general information only which is based on the inputs you have provided to the Software. The Software Output does not take into account all of the particular circumstances or needs of you or your horse. As a result, before making any decision regarding any of the Software Output, you should consult a professional to consider whether the information is appropriate having regard to those particular circumstances or needs.

(b)            If you are unsure about any information contained in the Software Output, please seek advice from an appropriately qualified equine nutritionist or a veterinary professional before making decisions about your horse. You should not rely on any information disseminated by the Software to delay obtaining professional health advice or disregard any professional health advice you do receive regarding your horse.

(c)            You further acknowledge and agree that we do not provide or endorse any advice contained in the Software Output and no information obtained through the Software can be so construed or used as such.

10.2        Software Outputs

(a)            You acknowledge that:

(i)             the Software Outputs may include information generated by artificial intelligence and/or open source software;

(ii)            the Software Outputs may not be unique and other users of the Software may generate or receive the same or similar reports, information or material to the Software Outputs that you generate or receive;

(iii)           the Software Outputs may provide inaccurate information or the Software may generate information that if acted upon may produce harmful results, for example because of particular needs or circumstances that apply to you or your horse; and

(iv)           we do not represent or warrant that Software Outputs are accurate and that they will meet your individual circumstances having regard to the personal and specific circumstances and needs of your horse.

(b)            You agree to independently review and evaluate the Software Outputs before relying on them.

10.3        Limited warranty

To the extent permitted by law, except for any express warranties or other promises set out in this Agreement, all express or implied conditions or warranties of any kind (including but not limited to any warranties related to availability for access and use, compatibility with your computer system or mobile device, fitness for purpose, freedom from contamination by computer viruses and the accuracy, currency, completeness, reliability, timeliness or usefulness of any part of our Software) are excluded. Where the provisions of the Competition and Consumer Act 2010 (Cth) apply, we give the warranties required under that Act and you have the rights provided to you under that Act. 

11.           LIMITATION OF LIABILITY 

11.1        To the extent permitted by law, except where our conduct constitutes gross negligence, fraud or wilful misconduct, we will not be liable to you for any loss or damage that you suffer as a result of: 

(a)            our use of the User Data;

(b)            your use of or the inability to use the Software;

(c)            your reliance on the Software Output;

(d)            a data or security breach of the Software or the Server; or

(e)            statements or conduct of any third party regarding the Software.

11.2        To the maximum extent permitted by law, the liability of each party is excluded for indirect, incidental, special or consequential damages: 

(a)            including damages for loss of profits or savings (actual or anticipated), loss of goodwill, loss of market or loss of use suffered by either party due to claims by third parties; and 

(b)            whether or not that party knew that the possibility of such damage or such damage was otherwise foreseeable.  

11.3        You are responsible for implementing safeguards to protect the security and integrity of your computer system and/or mobile device.

12.           INDEMNITY  

You indemnify us against all costs, expenses, loss, damages and judgements (including legal fees) arising out of or in connection with your breach of this Agreement, except to the extent that we have caused or contributed to the breach.

13.           TERMINATION 

13.1        Termination

(a)            We may:

(i)             suspend or terminate your rights to access or use the Software, or

(ii)            terminate this Agreement,

for any reason, including if we in good faith believe that you have contravened this Agreement (including by failing to pay any fees by the due date). We may also terminate access to the Software generally for all users, for example if we discontinue the Software.

(b)            If we terminate this Agreement in circumstances other than where you have contravened this Agreement, we will refund to you any fees that you have paid to us in advance for your access and use of the Software (or features of it, as applicable).

(c)            You may terminate this Agreement at any time and with immediate effect by requesting us to delete your account, ceasing use of the Software and uninstalling and deleting the Software.

13.2        Effect of termination 

If this Agreement is terminated, then, in addition to and without prejudice to any other rights or remedies available:

(a)            subject to clause 13.1(b), you must pay to us any fees that have become payable to us as at the date of termination;

(b)            the parties are immediately released from their other obligations under the Agreement except those obligations set out in the surviving provisions referred to in clause 14.5;

(c)            your right to use the Software immediately ceases and the Licence granted under this Agreement terminates; and  

(d)            at our election, you must return or destroy all copies of any documents or information relating to the Software within 7 days of receiving a written direction from us. 

14.           GENERAL 

14.1        Entire agreement 

This Agreement constitutes the entire agreement between the parties and supersedes any prior negotiations, understandings or agreements with respect to the subject matter of this Agreement. 

14.2        No reliance  

You acknowledge and confirm to us that at the time of entering into this Agreement, you are not relying on any representation made by us or any of our Personnel that has not been stated expressly in this Agreement.

14.3        Amendments

We may modify this Agreement, or any fees payable under this Agreement, at any time by providing notice to you. The modified Agreement or other terms become effective 14 days after such notice. By using the Software after the effective date, you agree to be bound by the most recent version of this Agreement and such terms. You are responsible for reviewing and becoming familiar with any such modifications.

14.4        Assignment

(a)            Unless otherwise provided in this Agreement, neither party may assign or transfer any right or obligation under this Agreement to anyone else without the other party’s prior written consent, which must not be unreasonably withheld or delayed.

(b)            We may assign any rights or remedies granted in this Agreement:

(i)             to a Related Entity; or

(ii)            in connection with a sale by us or our Related Entity, or a reorganisation, merger, acquisition, divestiture or similar business transaction.

(c)            We may subcontract the whole or any part of our obligations under this Agreement in our sole discretion.

14.5        Survival

Clauses 6, 7, 9, 10, 11, 12, 13, 14 and 15, together with any other provision which expressly or by its nature survives termination, or which contemplates performance or observance subsequent to termination, will survive termination of this Agreement.

14.6        No waiver

Any waiver of any right, power or remedy arising under or in connection of this Agreement is only effective to the extent granted by the party signing the waiver in writing and only to the extent set out in that written waiver.

14.7        Severability

(a)            If the whole or any part of a provision of this Agreement is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.

(b)            Clause 14.7(a) does not apply if the severance of a provision of this Agreement in accordance with that clause would materially affect or alter the nature or effect of the parties' obligations under this Agreement.

14.8        Exercise of rights 

A party may exercise a right, power or remedy at its discretion, and separately or concurrently with another right, power or remedy.  A single or partial exercise of a right, power or remedy by a party does not prevent a further exercise of that or of any other right, power or remedy.  Non-exercise by a party or delay in exercising a right, power or remedy does not prevent its exercise. 

14.9        Further assurances 

Each party agrees, at its own expense, on the request of any other party, to do everything reasonably necessary for the purposes of or to give effect to this Agreement and the transactions contemplated by it (including the execution of documents) and to use all reasonable endeavours to cause relevant third parties to do likewise. 

15.           Governing law and jurisdiction 

15.1        This Agreement is governed by the law in force in New South Wales, Australia.

15.2        Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement.