Terms And Conditions for the Website as provided by Thoroughworks Pty Ltd

THOROUGHWORKS PTY LTD Terms and Conditions

THESE TERMS AND CONDITIONS GOVERN ALL ACCESS TO, AND USE OF, THE WEBSITE AND FORM A LEGALLY BINDING AGREEMENT BETWEEN YOU AND US. YOU ACKNOWLEDGE AND AGREE THAT THESE TERMS AND CONDITIONS APPLY TO YOUR ACCESS TO, AND USE OF, THE WEBSITE. BY ACCESSING OR USING THE WEBSITE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.

Term / Registration Fees
  1. These terms and conditions will be effective until terminated by You or Us in accordance with these terms and conditions.
  2. We may terminate or suspend Your access to, and use of, the Website if You:
    1. are late in payment of any Registration Fees under these terms and conditions; or
    2. purport to charge back or reverse any Registration Fees with Your credit card provider in respect of a Registered Horse after You have registered a Profile on the Website.
Access
  1. Subject to these terms and conditions We grant You a non-exclusive, non-transferable, non-sub licensable limited licence to access and use:
    1. the Website; and
    2. Inspection Data.
  2. Nothing in these terms and conditions grants You any ownership or Intellectual Property rights in:
    1. the Website; or
    2. Inspection Data,
    3. which remains at all material times Our property.
  3. In respect of Inspection Data that is licensed in accordance with clause 3, subject to clause 6, the licence to access and use that Inspection Data in respect of Profiles:
    1. may expire at Our discretion if You have not registered a Profile on the Website in accordance with clause 8 in a 12 month period or such other period determined by Us in Our absolute discretion; and
    2. terminates upon termination of these terms and conditions in accordance with clause 15.
  4. Users may agree to purchase hard copies of Inspection Data in respect of Registered Horses through the Website, but the Intellectual Property rights in respect of those hard copies of the Inspection Data will, at all times, be retained by Us.
Thoroughworks Account
  1. To use the Website, You must be registered as a User.
  2. To become registered as a User:
    1. You must, at the time that You register a Profile on the Website, provide Us with:
      1. Your relevant information (including, without limitation, Your name, address and e-mail address, Your Australian Business Number, if applicable, and Your credit card details); and
      2. Equine Data in respect of the Registered Horse; and
    2. when your registration in respect of that Registered Horse on the Website is complete, We will either:
      1. debit the Registration Fee from Your credit card; or
      2. invoice you for the Registration Fee, which invoice must be paid within 10 Business Days.
  3. After You have registered a Profile on the Website in accordance with clause 8, in order to access full functionality of the Website and Thoroughworks, either:
    1. You will also need to upload Inspection Data in respect of each Registered Horse; and/or
    2. Inspection Data will need to be uploaded on Your behalf in respect of each Registered Horse
  4. Your use of the Website requires a user name and password. It is important that You keep Your user name and password secret and secure. You are entirely responsible for maintaining the confidentiality of Your user name and Your password. You are responsible for all usage or activity on Your account including, without limitation, use by any person using Your user name or password.
  5. You may change Your password at any time by following the instructions on the Website.
  6. You agree to notify Us immediately of any unauthorised use of Your user name and password or any other breach of security associated with Your account.
  7. You acknowledge and agree that:
    1. for security reasons, We may require You to re-authenticate Yourself from time to time, particularly after any period of inactivity; and
    2. We are not responsible for any information that You may lose if We terminate any browser session duet to inactivity.
Conditions of Use
  1. You must not use the Website or Data in any way that infringes a third party’s Intellectual Property or other rights or use the Website in any manner which is unlawful, offensive, threatening, defamatory, fraudulent, misleading, deceptive or otherwise inappropriate.
  2. Except as expressly authorised by (and subject to any conditions prescribed under) any applicable Law, You must not, in any form or by any means:
    1. copy, adapt, modify, reproduce, store, distribute, print, display, perform, broadcast, publish, communicate to the public, make available to the public or create derivative works of the whole or any part of the Website (including all trade marks);
    2. interfere with or disrupt (or attempt to interfere or disrupt) the Website, any servers or networks connected to the Website or any other users’ use of the Website;
    3. decompile, disassemble, reverse engineer, reverse compile the Website;
    4. use any robot, spider, scraper, data mining process or other automated means to access the Website without Our express written approval; or
    5. take any action that imposes or may impose (in Our sole discretion) an unreasonable or disproportionately high load on Our infrastructure.
  3. You must ensure that Your access to, or use of, the Website is not illegal or prohibited by any applicable Law, in force from time to time, in Your relevant jurisdiction or which otherwise pertains to You and Your use of, and access to, the Website.
Consent
  1. You acknowledge and agree that We, and Our Service Providers, may communicate with You for the limited purpose of:
    1. Your use of the Website;
    2. providing You with fixeds and information about the Website;
    3. responding to any specific request that You make of Us;
    4. administering and managing Thoroughworks, as well as performing administrative and operational tasks;
    5. notifying You of any changes to, enhancements of, or outages that may affect the Thoroughworks App; and
    6. providing You with the opportunity to ‘opt-in’ to receiving promotional material from time to time from Us or Our Service Providers.
Support Services
  1. You acknowledge that the Website may not be free from fault or interruption and that the Website may be unavailable during planned or unplanned outages or scheduled or unscheduled maintenance periods. We will take all reasonable steps to notify You of when outages or maintenance occurs and when the Website is temporarily unavailable.
  2. We agree to provide You with all reasonable assistance to remedy any technical malfunctions or logistical difficulties in the Website as soon as reasonably practicable after being notified by You of such malfunctions or difficulties.
  3. We reserve the right to make any changes to the Website as considered necessary or desirable by Us including, without limitation, updates and fixed releases. We will use all reasonable endeavours to give prior notice of such changes to the Website to the extent that there is any adverse effect on the functionality or performance of the Website but You acknowledge that prior notice may not be able to be given in respect of all changes (including, without limitation, any urgent necessary changes to remedy errors or defects to the Website).
GST
  1. In this clause, expressions have the same meaning as they have in the GST law.
  2. To the extent that We make a taxable supply in connection with these terms and conditions, the consideration payable by a party under these terms and conditions represents the value of the taxable supply for which payment is to be made.
  3. If We make a taxable supply in connection with these terms and conditions for a consideration which, under clause 21, represents its value, then if You are liable to pay for the taxable supply, You must also pay, at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply.
  4. Users will receive a tax invoice in respect of Registration Fees upon payment of the Registration Fees.
  5. Each party agrees to do all things, including providing tax invoices and other documentation, that may be necessary or desirable to enable or assist the other party to claim any input tax credit, adjustment or refund in relation to any amount of GST paid or payable in respect of any supply made under or in connection with these terms and conditions.
  6. Each party warrants to the other party that it is registered for GST and will promptly notify the other party if this ceases to be the case.
Privacy
  1. To the extent that We collect any Personal Information, We will comply with the Privacy Act and the Australian Privacy Principles in relation to such information. Our Privacy Policy applies to You, Your use of the Website and Our use of Your Personal Information.
  2. By using the Website in accordance with these terms and conditions, You consent to the collection, use, disclosure and storage of Your Personal Information in accordance with Our Privacy Policy.
Amendments to terms and conditions
  1. We reserve the right to amend these terms and conditions at any time. Any amendments are effective immediately upon notification on the Website.
  2. Your continued use of the Website following such notification will represent an agreement by You to be bound by the terms and conditions as amended.
Intellectual Property
  1. We own or have all the rights to:
    1. the Intellectual Property in the Website; and
    2. Inspection Data.
  2. We reserve Our rights to use or dispose of the Inspection Data in the course of business.
User Materials / Feedback
  1. Each User:
    1. may from time to time provide or otherwise make available to Us the User Materials; and
    2. grants to Us and Our Service Providers a worldwide royalty free, perpetual, irrevocable, non-exclusive right and licence to use, reproduce, distribute, transmit, perform, display (publicly or otherwise), adapt, make derivative works of and otherwise commercialise and exploit the User Materials.
  2. Each User represents and warrants to Us and Our Service Providers that:
    1. it has the right to grant the licences in clause 32 in and to the User Materials;
    2. the User Materials do not infringe upon or misappropriate any rights, including, without limitation, rights in respect of Intellectual Property of any third parties or Us and Our Service Providers; and
    3. the User Materials are free of worms, viruses, Trojan horses, and other disabling code.
  3. 34If You provide Us with any feedback or suggestions regarding the Website or Thoroughworks (Feedback), You:
    1. assign to Us any Intellectual Property rights associated with the Feedback;
    2. acknowledge and agree that We have the right to use and fully exploit that Feedback and any related information in any manner that We deem appropriate; and
    3. acknowledge and agree that We will treat any Feedback that You provide to Us as non-confidential and non-proprietary
  4. Each User represents and warrants to Us that it will abide by all applicable Laws, rules and regulations for any User Materials posted on the Website or entered into the Website from time to time.
  5. To the extent that User Materials include or may include any Personal Information of an individual, each User represents and warrants that it has obtained all necessary consents and authorities from the relevant individual to use and disclose the User Materials as contemplated by these terms and conditions, and the use of the User Materials in accordance with these terms and conditions will not cause Us to be in breach of the Privacy Act.
  6. We reserve the right to remove or refuse to distribute or publish any User Materials that violate these terms and conditions.
Warranties and Liability
  1. You represent and warrant to Us on a continuing basis that:
    1. You will comply with all Laws and any industry codes that are related in any way to these terms and conditions;
    2. You will use up-to-date commercially available systems to protect the security of Your information technology infrastructure; and
    3. Your use of the Website in accordance with these terms and conditions does not and will not breach any laws or infringe the rights or duties owed to any person, whether arising under contract, common law or statute.
  2. Whilst We agree to provide You with access to the Website using reasonable care and skill, You acknowledge that the availability and functionality of the Website, and Your ability to access and use the Website, may depend on factors and circumstances beyond Our control including:
    1. telecommunications network issues (such as network capacity restrictions, physical and environmental conditions, technical constraints and Network Operator issues); and
    2. Service Provider issues and factors that prevent intended recipients from receiving alerts and other communications (for example, Service Provider and account issues),
    3. We cannot therefore claim or guarantee that the Website will be available to You at all times or be free from faults or interruptions.
  3. You acknowledge and agree that:
    1. We are solely a passive conduit to facilitate communication of Data between Users and third parties nominated by Users;
    2. We do not endorse, support, represent or guarantee the truthfulness, accuracy or reliability of any User Materials posted to the Website or entered into the Website from time to time;
    3. no advice or information, whether oral or written, obtained by You from Us or through the Website will create any warranty not expressly included in these terms and conditions or required by law; and
    4. the Website is provided on an ‘as is’ and ‘as available’ basis. Except for any Non-excludable Guarantee (as defined in clause 43 below), We and Our Service Providers exclude all terms, conditions, warranties and guarantees implied by custom, the general law or statute.
  4. Without in any way limiting the above, You expressly acknowledge and agree that We and Our Service Providers make no warranty that:
    1. the Website or Data will meet Your requirements, or will be uninterrupted, timely, secure, or error-free;
    2. errors or defects will be corrected, however We will use reasonable endeavours to correct errors or defects within a reasonable period of time;
    3. the Website will be free of viruses or other harmful components, however, We will use reasonable endeavours to ensure that the Website will be free of viruses;
    4. any data stored by Us will be accurate, reliable or secure;
    5. the performance of the Website will not be affected by data entry errors, including incorrect entries, double entries or delayed entries, or incorrect or untimely data supplied by Users or our Service Providers;
    6. the Data obtained from Your use of the Website will be accurate or reliable; or
    7. the Data downloaded or obtained by You through the Website will meet Your expectations or requirements.
  5. The use of the Data obtained or downloaded from the Website is entirely at Your own risk and We take no responsibility for any Loss or damage suffered by You in reliance on the Data obtained or downloaded from the Website.
  6. Any condition, warranty or guarantee that legislation applies to the supply by Us to You of the Website under these terms and conditions is taken to be included in these terms and conditions, if that legislation renders void or prohibits contractual provisions which:
    1. exclude, restrict or modify; or
    2. which have the effect of excluding, restricting or modifying,
    3. the application of, exercise of a right conferred by, or any liability under, such condition, warranty or guarantee (Non-excludable Guarantee).
  7. You acknowledge and agree that, to the maximum extent permitted by law We and each of Our Service Providers:
    1. exclude all liability to You for any Loss (including loss of revenue, business, profits, goodwill or data, or indirect, consequential, incidental, special exemplary or punitive loss or damage) suffered by You in any way relating to these terms and conditions or Your use of the Website or Data regardless of the basis of such liability and even if advised of the likelihood of such Loss; and
    2. limit Our aggregate liability in connection with these terms and conditions or User’s use of the Website, to an amount equal to the amount of the Registration Fee.
Indemnity
  1. Subject to clause 46, You agree to indemnify and hold Us and Our officers, employees and agents (those indemnified) harmless against all Loss (including loss of revenue, business, profits, goodwill or data, or indirect, consequential, incidental, special exemplary or punitive loss or damage) suffered or incurred by those indemnified in connection with:
    1. any breach of these terms and conditions by You (in particular, without limitation, clause 4);
    2. any wilful misconduct by You; and/or
    3. any unlawful or negligent act or omission by You.
  2. We acknowledge and agree that the indemnity in clause 45 does not apply in respect of Our liability for Loss to You for:
    1. any material breach of these terms and conditions by Us;
    2. any wilful misconduct by Us; and/or
    3. any unlawful or negligent act by Us.
Public Statements
  1. You must not release to the public any fixeds release, advertising material, promotional material or any other form of publicity relating to Us without Our prior written consent.
Suspension and Termination
  1. We may, at any time, by 30 days’ notice to You, terminate these terms and conditions for any reason whatsoever. If We exercise this right We will refund to You any Registration Fees in respect of any Registered Horses on the Website but for which no Data has been recorded.
  2. We may, at any time, by reasonable notice to You, where reasonably possible, temporarily, or indefinitely, suspend, disable or terminate Your access to the Website or Your right to use the Website, if any one or more of the following applies:
    1. such suspension or termination is reasonably required for the maintenance (including preventative and routine maintenance), support, operation or security of the Website;
    2. We believe on reasonable grounds that You are in breach of any provision of these terms and conditions;
    3. We believe on reasonable grounds that You do not have all necessary authorisations to perform Your obligations under these terms and conditions;
    4. We believe, on reasonable grounds, that You have engaged in any conduct which may bring Us, the Website or any of Our Service Providers into disrepute;
    5. a Network Operator, Service Provider or Government Agency requires it; or
    6. You do not either pay:
      1. the Registration Fees when registering a Profile on the Website; or
      2. Our invoice in respect of the Registration Fees in accordance with clause 2.
  3. We reserve the right to terminate these terms and conditions with immediate effect by notice if:
    1. You become Insolvent;
    2. You purport to charge back or reverse payment of an Registration Fee to Your credit card with Your credit card provider after registering a Profile on the Website; or
    3. You breach these terms and conditions, the breach is capable of remedy and You fail to remedy it within 7 days of receiving written notice requiring it to be remedied.
  4. Upon the termination or expiration of these terms and conditions:
    1. You must pay Us any outstanding Registration Fees;
    2. You must cease to access and use the Website;
    3. Your user name and password for the Website will expire after 30 days; and
    4. Clauses 8 (Privacy), 10 (Intellectual Property), 11 (Warranties and Liability), 13 (Indemnity), 14 (Public Statements), 50, 51, 16 (Dispute Resolution), 17 (Notice) and 19 (General Provisions) continue.
  5. The termination or expiration of these terms and conditions for any reason does not extinguish or otherwise affect any rights of any party against the other which accrued prior to the time of the termination, or otherwise relate to or arise from any breach or non-observance of obligations under these terms and conditions which arose prior to the time of termination, or which by their nature survive termination.
Dispute Resolution
  1. Any dispute relating to these terms and conditions (Dispute) must, prior to a party initiating litigation (other than for equitable or interlocutory relief), be dealt with as follows:
    1. the affected party will notify the other with details of the Dispute (Dispute Notice) and, within 14 days of receiving the Dispute Notice, a nominated representative from each party will meet together and attempt to resolve the Dispute;
    2. if unresolved within 28 days of the Dispute Notice, the Dispute will be escalated to two more senior executives from each party who will meet and attempt to resolve the Dispute;
    3. if still unresolved within a further 28 days of being escalated, either party may refer the Dispute to mediation in accordance with the rules of the Australian Commercial Disputes Centre and the parties must participate in that mediation in good faith;
    4. if the parties cannot agree on a mediator within a further 28 days, the Dispute will be referred by the parties to the President, Australian Commercial Disputes Centre, Sydney to nominate a suitably qualified mediator and the parties will accept that nomination;
    5. the parties will cooperate to enable the mediator to mediate the Dispute within 30 days of the mediator's appointment; and
    6. the fees of the mediator will be paid by the parties in equal proportion.
Notice
  1. Notice must be in writing and in English, and may be given by an authorised representative of the sender.
  2. Notice may be given to a party:
    1. personally;
    2. by leaving it at the party's address last notified;
    3. by email;
    4. by sending it by pre-paid mail to the party's address last notified;
    5. by sending it by facsimile to the party's facsimile number last notified and then confirming it by pre-paid mail to the party's address last notified.
  3. Notice is deemed to be received by a party:
    1. when left at the party's address;
    2. if sent by pre-paid mail, on the third Business Day after posting;
    3. if sent by email, on the next Business Day after the email is sent; and
    4. if sent by facsimile and confirmed by pre-paid mail, at the time and on the day shown in a sending machine's transmission report which indicates that the whole facsimile was sent to the party's facsimile number last notified (or if the day shown is not a Business Day or if the time shown is after 5:00 pm in the party's time zone, at 9:00 am on the next Business Day).
Force Majeure
  1. A party is not liable for a breach of these terms and conditions, to the extent that the breach is caused by a Force Majeure Event and for the period that the Force Majeure Event continues, if that party:
    1. notifies the other party as soon as reasonably practicable of the breach and details regarding the relevant circumstances; and
    2. exercises its best endeavours to remedy the breach or otherwise rectify the cause of that breach as quickly as possible.
  2. Either party may terminate these terms and conditions if a Force Majeure Event affecting the ability of a party to perform its obligations continues for more than 30 days.
General Provisions
  1. These terms and conditions constitute the entire agreement between You and Us regarding the use of the Website.
  2. You must not assign, transfer or otherwise deal with any right under these terms and conditions without Our prior written consent, which will not be unreasonably withheld.
  3. If We waive, in whole or part, any rights available to Us under these terms and conditions on one occasion, this does not mean that those rights will automatically be waived on any other occasion.
  4. If any of these terms and conditions is held to be invalid, unenforceable or illegal for any reason, it is to be read down to give it as much effect as possible, or if it is not capable of having any effect at all, it is to be severed from these terms and conditions, in which case, the remainder of these terms and conditions nevertheless continue in full force.
  5. The laws governing these terms and conditions will be the laws in the State of Victoria, Australia and You irrevocably submit to the non-exclusive jurisdiction of the courts of that State, without regard to conflict of law provisions.
Definitions
  1. In these terms and conditions, unless the context otherwise requires:
  2. Business Day(s) means any day that is not Saturday, Sunday or public holiday in the state of Victoria;
  3. Corporations Act means the Corporations Act 2001 (Cth);
  4. Data means, as the context so requires:
    1. Equine Data; or
    2. Inspection Data; or
    3. Equine Data and Inspection Data;
  5. Equine Data means in respect of a Registered Horse, in addition to other information provided from time to time the Registered Horse’s:
    1. age;
    2. gender;
    3. name;
    4. blood lines;
    5. progeny;
    6. race results; and
    7. photographs;
  6. Force Majeure Event means acts of God, weather, fire, explosion; war, invasion, riot or other civil unrest; governmental laws, orders, restrictions, actions, embargoes or blockades; national or regional emergency; injunctions, strikes, lockouts, labour trouble or other industrial disturbances; or any other events beyond the reasonable control of the affected party;
  7. Government Agency means any government or any governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity;
  8. GST has the meaning given to that term in the GST law;
  9. GST law has the meaning given to that term in the A fixed Tax System (Goods and Services Tax) Act 1999 (Cth);
  10. Inspection Data means, in addition to other data sets collected by Us from time to time data in respect of the numbers of individual persons who have:
    1. visually inspected Registered Horses; and
    2. inspected veterinary information in respect of Registered Horses including but not limited to heart scans, x-ray and ultrasound images;
  11. A person is Insolvent if:
    1. it is (or states that it is) an insolvent under administration or insolvent (each as defined in the Corporations Act); or
    2. it has had a controller appointed or is in liquidation, in provisional liquidation, under administration or wound up or has had a receiver appointed to any part of its property; or
    3. it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the other parties to these terms and conditions); or
    4. an application or order has been made (and in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), resolution passed, proposal put forward, or any other action taken, in each case in connection with that person, which is preparatory to or could result in any of (a), (b) or (c) above; or
    5. it is taken (under section 459F(1) of the Corporations Act) to have failed to comply with a statutory demand; or
    6. it is the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act (or it makes a statement from which another party to these terms and conditions reasonably deduces it is so subject); or
    7. something having a substantially similar effect to (a) to (f) happens in connection with that person under the law of any jurisdiction;
  12. Intellectual Property means any and all:
    1. current and future registered and unregistered rights in respect of copyright, designs, trade marks, trade names, business names, trade secrets, know-how, confidential information, patents, inventions and discoveries;
    2. applications for grant of any of the above;
    3. other rights of a similar nature arising (or capable of arising) under statute or at common law in the Commonwealth of Australia or anywhere else in the world; and
    4. other intellectual property as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation 1967;
  13. Laws include any requirement of any statute, rule, regulation, proclamation, order in council, ordinance or by-law whether Commonwealth, state, territorial or local;
  14. Loss means loss or damage of any kind (including liability to a third party);
  15. Network Operator means the third party operator of any telecommunications network on which the Website relies;
  16. Personal Information means all information about a person that is ‘personal information’ as defined in the Privacy Act which is collected or held in connection with these terms and conditions;
  17. Privacy Act means the Privacy Act 1988 (Cth)
  18. Privacy Policy means Our privacy policy or statement from time to time, a current copy of which is available at www.thoroughworks.com or by sending an email request to jack@thoroughworks.com;
  19. Profile means a profile in respect of a Registered Horse;
  20. Registered Horses means thoroughbred race horses that are registered by Users on the Website;
  21. Registration Fee means, in respect of each of each Registered Horse with Us, as the case so requires depending on its location:
    1. AUD$25;
    2. USD$20;
    3. EUR25; or
    4. GBP20,
    5. exclusive of GST, or such other fee as advised by Us on the Website;
  22. Service Provider means any of Our agents, contractors and/or licensors who pr ovide Us with services and technology enabling Us to deliver the Website;
  23. Thoroughworks means the system and method of aggregating, collecting, comparing, displaying and recording Data and communicating that Data to third parties nominated by Users;
  24. User Materials includes, but is not limited to:
    1. any and all data, information, content, photographs, metadata and other materials provided, or that may be supplied to Us by Users (or otherwise obtained by Us from the Users), directly or indirectly, from time to time, including any content posted or entered into the Website from time to time; and
    2. Equine Data entered by, or on behalf of, Users in accordance with clause 9;
  25. Users means users who will be registered to use the Website to use Thoroughworks to communicate Data to third parties nominated by Users;
  26. We, Us or Our means Thoroughworks Pty Ltd ACN 606 948 074;
  27. Website means Our website, including subdomains of that website and mobile sites, where Users may access and use Thoroughworks and access Data and any other remote service where Users may access and use Thoroughworks and access Data; and
  28. You, Yourself or Your means any person or entity using, or intending to use, the Website.
Effective: October 1 2016