Last updated: 19 November 2020
The EquiCare mobile device application (Application) is controlled and operated by N.H Creed & G.A McClure trading as CreatureCare (ABN 81 853 140 816) (we, us, our). The website (located at www.creaturecare.net.au) (the Website) is also owned, controlled and operated by us. You can find more about the Application including its features and functionality on the Website.
IMPORTANT – PLEASE READ:
- Your ability to hold us responsible for any loss or damage that you may suffer from accessing or using the Application may be significantly restricted.
- Our liability for any loss or damage that you may suffer from accessing or using the Application may be significantly restricted.
- If you are a Consumer, the Application Services come with Consumer Guarantees.
- Subject to any rights which you may have as a Consumer or otherwise at law, your use and access of the Application is provided on an “as is” basis and entirely at your own risk.
- You are solely responsible for compliance with all laws and regulations applicable to your use of the Application.
- There are restrictions that apply to your use of the Application (see clause 4).
1. INTELLECTUAL PROPERTY AND LICENCE TO USE
1.1 Intellectual Property
The Intellectual Property subsisting in any aspect of the Application including without limitation text, graphics, artwork, logos, software, trade marks, designs, copyright, compilations, algorithms, source code, video recordings and audio recordings, as well as the structure, layout, user interface and “look and feel” of the Application (Application IP), is owned, controlled and/or licenced by us and/or our third party affiliates, licensors and/or licensees, and is protected by Australian and international law governing Intellectual Property rights.
1.2 Licence to Use Application
1.3 Licence to use Application IP
1.4 Licence to use User Content
(a) You hereby grant us a non-exclusive, royalty-free, transferable, sub-licensable and worldwide licence to use the User Content for the purposes of providing the Application Services to you.
(b) Subject to the rights granted to us under clause 4(a), you will otherwise retain exclusive ownership and/or control of any Intellectual Property subsisting in any User Content which you share via, or submit or upload to, the Application.
2. SUBSCRIPTION AND USER ACCOUNT
(a) In order to access the Application and the Application Services you must purchase a monthly or annual subscription (Subscription) and open a user account (User Account).
(b) Subscriptions can be purchased via PayPal or your mobile device’s application store (App Store). The Subscription fee is payable and charged at the time you process your order through PayPal or the App Store, and we reserve the right to cancel orders at our sole discretion.
(c) Your Subscription will renew automatically for your chosen Subscription period. If you no longer require access to the Application and the Application Services, you can cancel your subscription at any time through PayPal or the App Store. Subject to clause 6(a), we do not offer refunds for the fees you have paid for your current Subscription period, and you will continue to have access to the Application until the end of the current Subscription period.
(d) When opening a User Account, you will be required to create a unique password (Password) to obtain access to your User Account. You may also be required to provide, or be given by us, other credentials relating to your User Account (User Credentials).
(e) You are solely responsible for maintaining the security and confidentiality of any information you hold relating to your User Account, including your Password and User Credentials, and for any and all activity that occurs under your User Account, including activity that occurs as a result of your failing to keep this information secure and confidential.
(f) You must notify us immediately of any unauthorized use of your User Account, Password, or User Credentials, or any other breach of security.
(g) You may be held liable for losses incurred by us or any other User of or visitor to the Application due to someone else using your User Account, Password or User Credentials, as a result of your failing to keep your account information secure and confidential.
(h) You agree to not transfer your User Account to any other person or allow access to your User Account by another person, unless expressly authorised by us. We cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations.
(i) Without limiting any other rights which we may have to communicate with you, you agree that we may send e-mails to the nominated e-mail address for your User Account for the purpose of receiving any notifications from and regarding the Application.
(j) We maintain the right in our sole unfettered discretion to refuse to register a User Account, or to terminate or suspend a User Account.
4. RESTRICTIONS AND CODE OF CONDUCT
(b) You must comply, and are solely responsible for complying, with all laws and regulations applicable or relevant to the use of the Application (Laws). You must also comply with all applicable or relevant regulations, industry and professional codes of conduct and other relevant laws when using the Application (Industry Regulations). We do not guarantee that your proposed or actual use of the Application complies with Laws and Industry Regulations that may apply to your activities on the Application.
(c) You agree that you will not:
(ii) Interfere or attempt to interfere with, or obtain or attempt to obtain unauthorised access to, the proper working of the Application or any Content, including (without limitation) through:
(A) hacking or use of any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm, methodology, script or bot, or any similar or equivalent manual process;
(B) destructive transmission of viruses, malware or any code or other conduct of a disruptive or destructive nature;
(C) reverse engineering, circumventing, damaging, disassembling, attempting to discover the source code; or
(D) other illegitimate means;
(iii) contact Users for the purpose of sending unsolicited offers, advertisements, spam, junk e-mails;
(iv) contact Users for the purpose defaming, abusing, threatening or defrauding Users;
(v) impersonate any entity or falsely claim an affiliation with any person or entity;
(vi) scrape or otherwise obtain any data from the Application for any purpose or use any Content to spam third parties;
(vii) attempt to gain unauthorized access to any portion or feature of the Application, or any other systems or networks connected to the Application or to any of our servers, or to any of the services offered on or through the Application, by hacking, password “mining” or any other illegitimate means;
(viii) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Application or our systems or networks, or any systems or networks connected to the Application;
(ix) use any device, software or routine to interfere or attempt to interfere with the proper working of the Application or any transaction being conducted on the Application, or with any other person’s use of the Application; or
(x) forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal you send to us on or through the Application or any service offered on or through the Application. You may not pretend that you are, or that you represent, someone else, or impersonate any other individual or entity.
(d) We retain the right (without providing any notice to you) to remove, block, edit or monitor your usage of the Application at our sole discretion.
5.1 General Disclaimers
(a) Clauses 5.1 (as well as clause 2) do not act to disclaim our liability in respect of the Consumer Guarantees.
(b) Subject to clause 6(a) and to the extent permitted by law (either by legislation or contract), we do not guarantee or warrant that:
(i) the Application or any content, service or feature of the Application will be error free. Although we make every reasonable effort to maintain current and accurate information, you should be aware that there is still the possibility of inadvertent errors and technical inaccuracies;
(ii) the Application or any content, service or feature of the Application will be uninterrupted;
(iii) any defects on or with the Application will be corrected;
(iv) your use of the Application will provide specific results;
(v) any files of other data you download from the Application will be free of viruses, contamination or other destructive features; or
(vi) your use of the Application will not infringe the Intellectual Property rights of a third party.
(c) The Application and its results are delivered on an ‘as is’ and ‘as available’ basis. All information provided on the Application is subject to change without notice.
(d) We reserve the right to introduce additional functions and services on the Application and to alter existing functions or services on the Application at any time without notice to Users.
5.2 Additional Disclaimers
(a) You acknowledge and agree that the Application is intended to provide general information in summary form and the Application as a whole is intended for general educational and informational use only. Users should consider their specific circumstances and seek professional advice prior to acting, omitting to act, or making any decisions, on the basis of the Application. It is the User’s responsibility to evaluate the accuracy, currency, completeness and relevance of the Application for their own use.
(b) You acknowledge that the information contained in the Application does not constitute equine health, veterinarian or related advice, and that you should seek professional equine health advice from an authorised equine health veterinarian or other qualified animal health professional before making changes to your horse’s health regime.
(c) You acknowledge that the Application may from time to time experience interruptions, technical difficulties or loss of data that may:
(i) Totally or partially limit your access to information, including scheduled events and contact information, stored in the Application;
(ii) Cause incorrect information to be transmitted to your mobile device.
(b) Your use of, and reliance on, the Application is entirely at your own risk, subject to any other rights you have under the Australian Consumer Law.
(c) We exclude our liability to you for all types of loss:
(i) resulting from your use of or reliance on the Application however incurred (whether based in negligence or any other tort, contract, statutory liability or otherwise); and
(ii) including (without limitation) for any lost profit, lost opportunity, lost revenue, lost data, losses resulting from security failure or computer viruses, and
(iii) any indirect or consequential loss, and
we do not exclude our liability in relation to breach of any obligation, condition, warranty or guarantee (including the Consumer Guarantees or otherwise under the ACL), which if excluded:
(iv) would be a breach of statue;
(v) would be a breach of the Commonwealth contract which we are party to; and
(d) Subject to clause 6(a) and the application of any Non-Excludable Conditions, you hereby release us from all claims and any responsibility or liability for any injury, illness, direct or indirect damage, loss (financial, reputational or otherwise) or consequential, exemplary or aggravated damages arising from any of the following matters:
(i) your use of, or inability to use, the Application;
(ii) any failure by us or other third parties to provide any information, service, feature or functionality via the Application;
(iii) any unauthorised submission of information to the Application;
(iv) statements or conduct of any third party using the Application;
(v) use of third party services in conjunction with the Application by you;
(vi) any communication or interaction between Users via the Application, whether online or offline;
(vii) where you fail to comply with any Laws or Industry Regulations when using the Application; and
(viii) where you fail to comply with any Laws, Industry Regulations or the Privacy Act when dealing with Personal Information in connection with the Application.
(e) If we are able to limit your remedy for a breach of any Non-Excludable Conditions, then our liability for breach of any Non-Excludable Conditions is limited to one or more of the following at our option:
(i) for goods, the replacement of the goods or the supply of equivalent goods, the repair of such goods, the payment of the cost of replacing the goods or acquiring equivalent goods, or the payment of the cost of having the goods repaired; and
(ii) for services, the supply of the services again, or the payment of the cost of having services supplied again.
7. CAPACITY AND INDEMNITY
9. JURISDICTION AND CHOICE OF LAW
(a) We reserve the right to perform maintenance of the Application (whereby the functionality of the Application may not be accessible for a certain period of time) without notice to you.
“ACL” means the Australian Consumer Law, being Schedule 2 of the Competition and Consumer Act 2010 (Cth).
“Application Services” means any services provided by us via or in relation to the Application from time to time.
“Consumer” means a User who views, accesses and uses the Application in Australia, and:
a. the amount payable for the Application Services does not exceed $40,000;
b. the Application Services provided are of a kind ordinarily acquired for personal, domestic or household use or consumption; or
c. is a “Consumer” as defined under Schedule 2 of the Competition and Consumer Act 2010 (Cth).
“Consumer Guarantees” means the consumer guarantees afforded to a Consumer of the Application Services under the ACL.
“Content” means all content on the Application including without limitation text, photographs, logos, names, designs, information, Personal Information, financial information, data, drawings, URL links, video recordings and audio recordings.
“Intellectual Property” means all intellectual property and quasi-intellectual property rights (past, present and future) conferred by law (whether registered or unregistered) including without limitation business names, trade marks, patents, designs, copyright, trade secrets, computer programs, databases, inventions, moral rights and all proprietary rights and all other intellectual property defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation (July 1967).
“Personal Information” is information that can be used to reasonably identify an individual.
“Privacy Act” means the Privacy Act 1988 (Cth) as amended from time to time.
“User Content” means any Content shared via, or submitted or uploaded to, the Application by a User, including (without limitation) images and informational content.