[FeedXL] Service Agreement—Terms and Conditions

Service Agreement—Terms and Conditions

Equilize Horse Nutrition Pty. Ltd. (ABN 90 109 081 601) and X'Prime Pty. Ltd. (ABN 24 103 811 007)

Use of the FeedXL Service is conditional upon you agreeing to be bound by the terms and conditions below by clicking on the "I accept the terms in the Service Agreement" button below, indicating you have read and agreed to be bound by these terms and conditions as amended from time to time (hereinafter referred to as this "Agreement").

1.	Who is this Agreement between and what terms and conditions are included?
	1.1	This Agreement constitutes a legally binding agreement between you (the "Customer") and Equilize Horse Nutrition Pty Ltd ABN 90 109 081 601 and X'Prime Pty Ltd ABN 24 103 811 007 (together the "Supplier").
	1.2	In addition to the terms and conditions below, this Agreement also includes any terms and conditions that may be contained on this Website that apply to the FeedXL Service.
2.	When does this Agreement commence and how long does it last for?
	2.1	This Agreement commences on the date that the Customer registers to use the FeedXL Service and will continue until its expiry at the end of the Term unless otherwise agreed between the Parties or earlier terminated in accordance with its terms and conditions.
	2.2	Subject to clause 2.1, if the Customer has agreed during the registration process or subsequently with the Supplier to the automatic renewal of this Agreement then on the expiry of the current Term, this Agreement will automatically be extended for the Renewal Period provided that: all Service Charges have been paid by the Customer in accordance with clause 7; and neither Party has cancelled such automatic renewal prior to the expiry of the current Term using the facility provided as part of the FeedXL Service.
	2.3	Clauses 1, 5.4(c), 6.1, 6.2, 6.4(b), 6.4(c), 8.1, 8.2, 9, 10, 11, 12, 17, and 18, and any other provisions of this Agreement which are capable of having effect after the expiry or termination of this Agreement, will survive the expiry or termination of this Agreement.
3.	What requirements apply to the Customer's User ID and Password?
	3.1	The Customer must not disclose the Customer's Password to any third party.
	3.2	The Customer agrees that the Supplier is authorised to act on all instructions received when the Customer's Password is used in conjunction with the Customer's User ID.
4.	What warranties apply to the FeedXL Service?
	4.1	The Supplier warrants that for a period of 90 days commencing on the date that the Customer registers to use the FeedXL Service, that the FeedXL Service will perform substantially in accordance with its Specifications.
	4.2	The Supplier will as soon as reasonably practicable investigate and attempt to correct any failure by the FeedXL Service to function in accordance with its Specifications.
	4.3	The Customer agrees that the Supplier will not be responsible for any failure by the FeedXL Service to function in accordance with its Specifications if such failure is caused by factors beyond the Supplier's reasonable control including, but not limited to, telecommunications failure or fault, defective equipment used by the Customer or incorrect operation by the Customer of the FeedXL Service or the Customer's own access facilities.
	4.4	The Customer acknowledges that the Supplier does not warrant that: the operation of the FeedXL Service will be secure, uninterrupted or error free; all errors with the FeedXL Service will be able to be corrected; the FeedXL Service will meet the Customer's requirements or expectations; the FeedXL Service or the System will be free of viruses or any other harmful or destructive code; the FeedXL Service will operate with any hardware, software, system or data which is not specified on this Website as being compatible with the FeedXL Service; or the Feed Database is accurate, complete, up to date, relevant, appropriate, sufficient or suitable for the Customer's particular situation.
	4.5	The Customer acknowledges that: the FeedXL Service is provided as general information only and does not replace the need for individual professional or expert advice; the inclusion of a feed in the Feed Database does not imply that the Supplier recommends or endorses the feed in any way; and the Supplier is not responsible for any additions made to the Feed Database by the Customer.
5.	What are the Customer's rights and obligations?
	5.1	Subject to the Customer complying with the terms and conditions of this Agreement, the Customer may during the Term access and use the FeedXL Service solely for the personal and private use of the Customer and not for any other purpose.
	5.2	The Customer agrees: to use the FeedXL Service only in accordance with this Agreement and any requirements specified on this Website; to immediately notify the Supplier of any change to any of the details which the Customer has registered on this Website; to immediately notify the Supplier if at any time the Customer becomes aware that the FeedXL Service is not functioning in accordance with its Specifications; to provide the Supplier with any information reasonably requested by the Supplier for the purpose of the Supplier correcting any failure by the FeedXL Service to function in accordance with its Specifications. prior to formulating any diets using the FeedXL Service—to read all documentation and other information available on this Website that applies to the use of the FeedXL Service or that is otherwise provided by the Supplier to the Customer; to cease using any feed that results in a negative reaction or any form of illness in an animal and immediately seek veterinary or other professional advice; and to comply with all reasonable directions and instructions given by the Supplier in relation to use of the FeedXL Service and the general subject matter of this Agreement.
	5.3	The Customer agrees and acknowledges that: it will be responsible for providing its own facilities (including hardware, software and systems) necessary for accessing and using the FeedXL Service; the Supplier accepts no responsibility for any deficiencies in the Customer's facilities for accessing and using the FeedXL Service; the Supplier may at any time vary the configuration of the FeedXL Service in its sole discretion without prior notice to the Customer; and the FeedXL Service should only be used by persons who have a workable knowledge of equine nutrition.
	5.4	The Customer must not: use the FeedXL Service for any commercial purpose including, without limitation, use in relation to any business, product or service relating to stock-feed production, stock-feed sales or equine nutritional advice; permit, allow or enable any third party to access or use the FeedXL Service or breach any of the terms and conditions of this Agreement; disclose any Confidential Information during the Term or thereafter except: where necessary for the purpose of the Customer exercising its rights under this Agreement; with the prior approval of the Supplier which may be given or withheld in the Supplier's sole discretion; or where required by law; decompile, disassemble, reverse engineer, copy or modify any software which is used to provide the FeedXL Service; use any part of the FeedXL Service in the development of a similar or competitive product; or be a party whether directly or indirectly to the doing of any act, matter, omission or thing whereby the goodwill or reputation of the Supplier and/or the market for the FeedXL Service may be prejudicially affected in any manner whatsoever.
	5.5	The Customer warrants that all registration and other details provided to this Website by the Customer are accurate, complete, up to date and not misleading.
6.	What rights and obligations apply in relation to the Customer's Data?
	6.1	The Supplier acknowledges that the Customer's Data remains the Customer's property.
	6.2	The Customer grants to the Supplier a worldwide, perpetual, royalty free, irrevocable and non-exclusive licence to use the Customer's Data for the purpose of assessing the performance of the FeedXL Service for its own internal purposes and to compile data for other purposes provided that any of the Customer's Data which identifies the Customer will not be disclosed by the Supplier to any third party without the prior approval of the Customer.
	6.3	The Customer agrees to retain a backup copy of all of the Customer's Data stored by the System.
	6.4	The Customer acknowledges that: any back up copies of the Customer's Data made by the Supplier may not be accurate or reliable; it will not be permitted to access its Data stored on the System after the expiry or termination of this Agreement; the Supplier may delete the Customer's Data which is stored on the System after the expiry or termination of this Agreement; and it transmits its Data over the Internet and deletes its Data at its own risk.
7.	What Service Charges are payable for the use of the FeedXL Service?
	7.1	The Customer agrees to pay: the Service Charges at the rate and in the manner specified on this Website; and all taxes, duties and governmental fees and charges imposed or levied in connection with the supply of the FeedXL Service.
	7.2	Unless expressly stated to the contrary, the Service Charges for the FeedXL Service are exclusive of all taxes, duties and governmental fees and charges imposed or levied in connection with the supply of the FeedXL Service.
	7.3	The Customer authorises the Supplier to use the Customer's nominated Payment Method to receive payment of the Service Charges and all taxes, duties and governmental fees and charges imposed or levied in connection with the supply of the FeedXL Service.
	7.4	The Customer warrants that it is permitted to authorise the Supplier to use its nominated Payment Method in accordance with clause 7.3.
	7.5	The Customer acknowledges that the Supplier may vary the Service Charges in accordance with the provisions of this Agreement.
	7.6	The Customer agrees that all Service Charges paid by the Customer for the use of the FeedXL Service are not refundable.
8.	What are the Customer's obligations in relation to Intellectual Property Rights?
	8.1	The Customer acknowledges and agrees that: all Intellectual Property Rights and other proprietary rights in the FeedXL Service (including the software used to provide the FeedXL Service) are owned exclusively by the Supplier; the Customer has no right, title or interest in the FeedXL Service (including the software used to provide the FeedXL Service) other than its rights as Customer under this Agreement; and the Supplier will own all Intellectual Property Rights in all suggestions, ideas, enhancement requests, feedback, recommendations and other information relating to the FeedXL Service which the Customer provides to the Supplier.
	8.2	The Customer agrees to do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to clause 8.1.
	8.3	If the Customer learns that a third party is potentially or actually infringing any of the Intellectual Property Rights in the FeedXL Service (including the software used to provide the FeedXL Service), then the Customer must: promptly notify the Supplier; and provide all reasonable assistance requested by the Supplier for the purpose of dealing with such infringement.
9.	What is the liability of the Supplier in relation to the FeedXL Service?
	9.1	Except as provided in clause 4.1, the Supplier makes no warranties or representations express or implied relating to the FeedXL Service and, to the fullest extent permitted by law, expressly disclaims all other warranties, representations and conditions express or implied relating to the FeedXL Service including, without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose and non-infringement of third party rights.
	9.2	The liability of the Supplier for breach of any warranty, representation or condition implied by law which may not be disclaimed under clause 9.1 shall, to the fullest extent permitted by law, be limited at the sole discretion of the Supplier to supplying the FeedXL Service again, paying the cost of having the FeedXL Service supplied again or the maximum extent permitted by law.
	9.3	The Customer acknowledges that clause 9.2 specifies the Customer's exclusive remedy and the Supplier's sole liability arising out of, or in connection with, the supply of the FeedXL Service.
	9.4	Except where prohibited by law, in no event shall the Supplier be liable for any indirect, incidental, special, exemplary, punitive or consequential loss or damages (including, without limitation, loss of profit or business, economic or financial loss, loss of livestock or livestock performance, loss of use or data, or business interruption) however caused and on any theory of liability, whether in contract, tort (including negligence or otherwise) or strict liability arising out of, or in connection with, the supply of the FeedXL Service or this Agreement, even if advised of the possibility of such loss or damage.
10.	What indemnities are required to be given by the Customer?
		The Customer agrees to indemnify the Supplier and its officers, employees, agents and contractors ("Indemnified Persons") and keep the Indemnified Persons indemnified against any loss, damage, costs, expenses, demands or liability (including third party claims) incurred or suffered by any of the Indemnified Persons as a result of or arising from, whether directly or indirectly: the use of the FeedXL Service by the Customer; a breach by the Customer of any of its obligations under this Agreement; or any wilful, unlawful or negligent act or omission of the Customer, except to the extent that such loss, damage, costs, expenses, demands or liability are directly caused by the Supplier.
11.	What obligations apply in relation to complying with applicable laws?
	11.1	The Customer agrees to comply with all applicable laws when using the FeedXL Service.
	11.2	The Customer agrees that the Supplier is under no obligation to the Customer under this Agreement or otherwise if its possession or processing of the Customer's Data or related data, documentation or records constitutes a breach of any applicable law.
	11.3	To the extent permissible by law, the Customer will indemnify the Supplier against all costs and liability incurred as a result of its possession of the Customer's Data or related data, documentation or records.
12.	How does the FeedXL Service become suspended, how does this Agreement end and what happens when this Agreement does end?
	12.1	The Supplier may at any time suspend the provision of the FeedXL Service for any reason at any time provided that the Supplier will attempt to notify the Customer in advance of any such suspension.
	12.2	The Supplier may immediately terminate this Agreement by withdrawing access to the FeedXL Service by the Customer where: the Customer breaches or fails to observe any of the terms and conditions contained in this Agreement and does not rectify such breach or non-observance within 5 days after receipt of a notice specifying such breach or non-observance and requiring rectification thereof; or the Customer's use of the FeedXL Service adversely affects other users of the FeedXL Service.
	12.3	If the Supplier terminates this Agreement under clause 12.2 then the Supplier will be regarded as discharged from any further obligations under this Agreement and may, in addition to terminating this Agreement: delete the Customer's Data in accordance with clause 6.4(c); retain any monies paid; recover from the Customer the amount of any loss or damage sustained as a result of the termination; and pursue any additional or alternative remedies provided by law.
	12.4	The clauses and provisions specified in clause 2.3 will survive the expiry or termination of this Agreement.
13.	What happens if an event occurs beyond the Supplier's reasonable control?
		If the Supplier is prevented from performing any of its obligations under this Agreement by an event beyond the Supplier's reasonable control then the Supplier will not be liable to the Customer for such failure to perform its obligations under this Agreement for the duration of the event.
14.	What happens if there is a dispute?
	14.1	If a dispute arises in relation to this Agreement ("Dispute"), a Party must comply with this clause before starting arbitration or court proceedings (except proceedings for urgent interlocutory relief).
	14.2	A Party claiming a Dispute has arisen must give the other Party a notice setting out details of the Dispute.
	14.3	During the 14 day period after a notice is given under clause 14.2 (or longer period if the Parties agree) a senior representative of each Party must use their best e ndeavours through meeting where practicable and/or teleconferencing to resolve the Dispute. If the Dispute is not resolved within that period then the Dispute may be referred to a mediator with the agreement of both Parties. The Parties must equally pay the costs of any mediator.
15.	How are notices given under this Agreement?
	15.1	A notice given under this Agreement must be: in the case of the Customer—sent by electronic mail to the email address that the Customer has registered on this Website; and in the case of the Supplier—sent by prepaid post to the physical address that is specified within the Supplier's contact details on this Website.
	15.2	A notice given in accordance with clause 15.1 takes effect when it is taken to be received and is taken to be received: if hand delivered—on delivery; if sent by prepaid post to an address in Australia—on the third Business Day after the date of posting; if sent by prepaid post to an address outside Australia—on the seventh Business Day after the date of posting; and if sent by electronic mail—twenty-four (24) hours after the email is sent unless the sender is notified that the email address is invalid, but if the delivery, receipt or transmission is not on a Business Day or is after 5pm on a Business Day, the notice is taken to be received at 9am on the next Business Day.
	15.3	The Customer agrees to immediately notify the Supplier if the Customer changes any of the address details that the Customer has registered on this Website.
16.	How may the terms and conditions of this Agreement be varied?
	16.1	The terms and conditions including Service Charges of this Agreement may at any time be varied by the Supplier giving the Customer 30 days' notice of such variation provided that any variation of the Service Charges may not take effect before the expiry of the current Term.
	16.2	The Customer will be deemed to have agreed to any variation of the terms and conditions of this Agreement notified by the Supplier in accordance with clause 16.1 unless before the expiry of the current Term the Customer cancels the automatic renewal of the term of this Agreement using the facility provided as part of the FeedXL Service.
	16.3	If the Customer cancels the automatic renewal of the Term of this Agreement using the facility provided as part of the FeedXL Service then this Agreement will expire at the end of the current Term.
17.	What other provisions apply to this Agreement?
	17.1	This Agreement is governed by and construed in accordance with the laws of the State of New South Wales, Australia.
	17.2	This Agreement will be deemed to have been made and entered into at Sydney in the State of New South Wales, Australia.
	17.3	Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of the State of New South Wales, Australia.
	17.4	Any failure by the Supplier to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by the Supplier to the Customer, will not be construed as a waiver of the Supplier's rights under this Agreement.
	17.5	If any provision of this Agreement is invalid, illegal or unenforceable in any respect the validity, legality and enforceability of the remaining provisions will not be affected and such invalid, illegal or unenforceable provision is to be severed from this Agreement.
	17.6	This Agreement sets out the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement and supersedes all prior agreements, understandings and representations.
	17.7	Nothing in this Agreement constitutes either Party a partner, agent, employee or representative of the other Party or creates any trust, association or partnership at law or for any purpose whatsoever, nor do the Parties intend that their activities under this Agreement constitute a business, financial operation or venture.
	17.8	The Customer may not assign in whole or in part its rights or obligations under this Agreement without the prior approval of the Supplier.
	17.9	The Supplier may in its sole discretion assign or novate its rights, interests or obligations in or under this Agreement by notice to the Customer.
	17.10	The Supplier may in its sole discretion subcontract its rights and obligations under this Agreement to subcontractors.
	17.11	Where any conflict occurs between the clauses of this Agreement and any other terms and conditions appearing on this Website, such other terms and conditions will where possible be read down to resolve such conflict. If the conflict remains incapable of resolution by reading down, the conflicting terms and conditions appearing on this Website will be severed from the other terms and conditions appearing on this Website.
18.	Definitions and Interpretation
	18.1	In this Agreement unless the subject or context otherwise requires: "Business Day" means: for receiving a notice under clause 15—a day that is not a Saturday, Sunday or public holiday in the place where the notice is received; and for all other purposes—a day that is not a Saturday, Sunday or public holiday in Sydney in the State of New South Wales, Australia; "Confidential Information" means all trade secrets, ideas, concepts, know how, knowledge and any other information whether in writing or otherwise, relating to any of the Supplier's products, services (including the FeedXL Service), systems, affairs, businesses, strategies, officers, employees, agents or contractors whether owned by, licensed to, or otherwise in the possession or control of the Supplier, which are disclosed to the Customer or otherwise obtained by the Customer or its officers, employees, agents, or contractors under, in contemplation of, or in connection with this Agreement, but excluding any information which is publicly accessible on this Website or otherwise generally and readily available in the public domain other than as a result of a breach of this Agreement or a breach of confidence; "Credit Card" means a current and valid credit card in the Customer's name or which the Customer is lawfully authorised by the cardholder to use; "Data" means data owned or supplied by the Customer for use with the FeedXL Service; "Feed Database" means the feed database which is accessible using the FeedXL Service; "Initial Period" means the initial period for which the Customer registers through this Website to use the FeedXL Service which may be one (1) day, one (1) month or one (1) year; "Intellectual Property Rights" means all rights whatsoever in present and future copyright (including moral rights), registered and unregistered trade marks, (including goodwill in those marks), domain names, designs and patents, semi-conductor or circuit layout rights, rights in Confidential Information and all other rights resulting from intellectual activity in the electronic, industrial, scientific, literary or artistic fields, including all rights conferred under statute, common law or equity in relation to the foregoing; "Party" means the Supplier and/or the Customer as the context dictates; "Password" means the password that the Customer is required to create when the Customer registers to use the FeedXL Service; "Payment Method" means a Credit Card or PayPal Account nominated by the Customer as the method to be used for payment by the Customer of the Service Charges and all taxes, duties and governmental fees and charges imposed or levied in connection with the supply of the FeedXL Service; "PayPal Account" means a current and valid account registered with PayPal, Inc or a subsidiary or affiliate of PayPal, Inc, in the Customer's name or which the Customer is lawfully authorised by the account holder to use; "Renewal Period" means a period of the same duration as the Initial Period unless otherwise agreed between the Parties; "Service Charges" means the charges and fees payable for the use of the FeedXL Service as specified on this Website from time to time; "Specifications" means the specifications for the FeedXL Service which are contained in the documentation which is available on this Website; "System" means the computer facilities used to supply the FeedXL Service; "Term" means the Initial Period and any Renewal Period in accordance with clause 2.2; and "User ID" means the user identification provided to the Customer by the Supplier when the Customer registers to use the FeedXL Service; and "Website" means this website located at http://feedxl.com.
	18.2	In this Agreement unless the subject or context otherwise requires: words importing the singular include the plural and vice versa and words importing one gender include the other genders and references to persons include corporations and vice versa; other grammatical forms of defined words or expressions have corresponding meanings; a reference to a document or instrument including a reference to this Agreement includes that document or instrument as novated, altered or replaced from time to time; a reference to any Party or other person includes that person's successors and permitted assigns; a reference to a clause is a reference to a clause of this Agreement, the recitals and instructions form part of this Agreement; the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions; a reference to a person includes a natural person, company, corporation, partnership, trust, estate, joint venture, sole proprietorship, government, governmental or municipal agency, association, co-operative and any other entity or person whatsoever; where a Party comprises two or more persons any agreement or obligation to be performed or observed by that Party binds those persons jointly and each of them severally, and a reference to that Party is deemed to include a reference to any one or more of those persons; a rule of construction does not apply to the disadvantage of a Party because the Party was responsible for the preparation of this Agreement or any part of it; a reference to time is to the time in the place where the obligation is to be performed; a reference to dollar or $ is to Australian currency; and headings are for ease of reference only and do not affect the interpretation of this Agreement.