ARDEX TECHNOLOGY TRADING TERMS AND CONDITIONS

 

1. Agreement to Terms

  1. These are the terms of use that govern our supply of Essentials, Premier and any Services to you (Terms).
  2. By using Essentials, Premier, or any Services or by creating an Account, you agree to the Terms.
  3. If you do not agree to the Terms, you must not use Essentials, Premier, or any Services or create an Account.
  4. To confirm your understanding and acceptance of the Terms, click 'Agree'.

 

2. Definitions 

In these Terms, unless the context indicates otherwise, the following words have the following meanings. 

Account means an account that provides access to the Services, Essentials or Premier. 

APP Code has the meaning given by the Privacy Act. 

Australian Privacy Principles means the Australian Privacy Principles provided by the Privacy Act. 

Ardex means Ardex Technology Pty Limited (ACN 097 604 601). 

Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise). 

Content means all words, communications, files, data, photos, pictures, documents, audio, films, telecasts, digital works, livestreams, videos, media, designs and devices that you upload, input, store, broadcast or share through the Services. 

Credentials means your username, password and any other credentials in connection with your Account. 

Dispute means any dispute or claim you make in connection with the Terms, your Account, or the Services. 

Essentials means any services, features, functionality, website, mobile app, material, images, videos, text or graphics contained in or uploaded or downloaded to Ardex's equine management software called 'Ardex Essentials'. 

Intellectual Property includes trademarks, patents, copyrights, processes know-how, registered designs or other like rights or any right to apply for registration of any of the former. 

Losses means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever. 

Officer means:

  1. Ardex's privacy officer required by the Privacy Act; and
  2. Ardex's data protection officer required by Council Directive (EU) 2016/680 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data [2016] OJ L 119/89.

 

Overseas Recipients means recipients of Personal Data or Personal Information who are not situated in Australia. 

Parties means you and Ardex. 

Personal Data has the meaning given to it by the Council Directive (EU) 2016/680 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data [2016] OJ L 119/89. 

Personal Information has the meaning given to it by the Privacy Act. 

Premier means any services, features, functionality, server, website, mobile app, material, images, videos, text or graphics contained in or uploaded or downloaded to Ardex's equine management software called 'Ardex Premier'. 

Privacy Act means the Privacy Act 1988 (Cth). 

Privacy Policy means Ardex's privacy policy required by the Privacy Act. 

Safeguards means all documents and systems used by Ardex that protect your personal information or personal data. 

Services means all services provided by Ardex to you and includes Essentials and Premier. 

Technology means all software, code, proprietary methods and systems used to provide the Services, Essentials or Premier. 

Third Party Integrations means integrations, materials, products, services, links, websites, content and applications from independent third parties. 

Trade Mark has the meaning given by section 17 of the Trade Marks Act 1995 (Cth). 

Trial Period means 2 weeks. 

3. Interpretation 

In these Terms, unless the context otherwise requires:

  1. words importing any gender include every gender;
  2. words importing the singular number include the plural number and vice versa;
  3. words importing persons include firms, companies and corporations and vice versa;
  4. references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to these Terms;
  5. reference in any schedule to these Terms to numbered paragraphs relate to the numbered paragraphs of that schedule;
  6. any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
  7. the headings to the clauses and schedules of these Terms are not to affect the interpretation;
  8. any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or by-law under that enactment; and
  9. the word 'including' (and related forms including 'includes') means 'including without limitation'.

 

4. Intellectual Property 

 

  1. Ardex or its licensors own the Services, the Technology, the Trade Marks and all goodwill associated with the Services, the Technology and the Trade Marks.
  2. You agree that copyright, Intellectual Property and all other laws apply to the Services, the Technology and the Trade Marks.
  3. You must not adapt, communicate, distribute, loan, modify, offer for rent, offer for sale, plagiarise, redeploy, rent, replicate, reproduce, republish, sell or transfer the Services or the Technology.
  4. You must not use the Trade Marks.
  5. You must comply with all copyright, Intellectual Property and other notices, information, or restrictions contained in or attached to the Services or the Technology or the Trade Marks.
  6. You may only access the Services, the Technology and the Trade Marks as permitted by the Services under these Terms. Otherwise, the Terms do not grant you any right to access the Services, the Technology or the Trade Marks.
  7. The Terms do not grant you a licence to the Trade Marks or the Technology.
  8. The Terms do not govern the use of software provided by third parties for the Services. Instead, licences from those third parties govern the use of that software.

 

5. Accounts 

 

  1. You must register for an Account.
  2. You must not provide any false, inaccurate, irrelevant, or misleading information when you register for an Account.
  3. Ardex may cancel your Account if Ardex considers that you have provided false, inaccurate, irrelevant or misleading information.
  4. You must provide Credentials when you register for an Account.
  5. You are entirely and solely responsible for maintaining the confidentiality of your Credentials and for all activities that occur under your Account.
  6. You must notify Ardex immediately of any unauthorised use of your Account, your Credentials, or any other breach of security.
  7. Ardex is not liable for any Claims or Losses that you may incur in relation to someone else using your Account or Credentials.
  8. You are liable for any Claims or Losses incurred by Ardex or another party due to someone else using your Account or Credentials.
  9. By registering for an Account, you represent that you have reached the age of 'majority' or 'legal responsibility' where you live or that your parent or legal guardian consents to the Terms. If you are the parent or legal guardian of a minor who registers for an Account, you agree to the Terms and are responsible for all use of the Account, the Credentials and the Services.
  10. You may create an Account on behalf of an entity, such as a company, business, firm, or your employer. If you create an Account on behalf of an entity, you represent that you have the legal authority to bind that entity to the Terms.
  11. You may only use another person's Account or Credentials if you have that person's express written consent. If you do not have that person's express written consent, you must not use their Account or Credentials. Ardex is not liable for any Claims or Losses arising from you failing to comply with this obligation.
  12. Ardex may take any action it considers necessary to ensure the safety of your Account, your Credentials and the Services. This action may include without limitation cancelling your Account, changing your Credentials or requesting additional information to authorise activities relating to your Account or your Credentials.
  13. You may close your Account at any time and for any reason. If you close your Account, you can no longer use the Services and may lose access to products that you have acquired. Further, Ardex may delete data and Content to the extent permitted by law.

 

6. Payments and charges 

 

  1. By registering for an Account, you purchase the Services on a monthly subscription basis and agree that you authorise recurring payments to Ardex for the Services and will make the payments to Ardex until you or Ardex terminate the Services.
  2. You must provide a payment method at the time you register for an Account. You must also immediately update this payment method and your Account if you need to change the payment method.
  3. By providing a payment method to Ardex, you represent that you:
    1. are authorised to use the payment method; and
    2. represent that all information provided in the payment method is true and accurate.
  4. If Ardex permits you to trial the Services, you may use the Services free of charge for the Trial Period. If you do not want the Services beyond the Trial Period, you must close your Account. If you do not close your Account before the end of the Trial Period, Ardex may charge you for the Services.
  5. When the Trial Period ends, Ardex will charge your payment method for the Services and will continue to charge you each month for the Services.
  6. Ardex may suspend or cancel the Services if it does not receive on-time or full payment from you.
  7. If Ardex cannot charge your payment method, you remain responsible and liable for all uncollected amounts.
  8. To the extent permitted by law, all purchases of the Services are final and non-refundable.
  9. You may cancel the Services at any time. To cancel or modify the Services, please contact 02 9299 4700 or email support@ardex.com.au.
  10. Ardex may change the price of or any payment timetable for the Services at any time by notification to you by email at least one month before the price or payment timetable change. If you do not agree to the price or payment timetable change, you must cancel and stop using the Services before the price or payment timetable change takes effect.

 

7. Privacy 

 

  1. Ardex collects, retains, uses and discloses Personal Data and Personal Information under the Privacy Act and other relevant privacy, data collection or Personal Data laws, codes and regulations. Ardex may also obtain Personal Information from you, from public sources such as social media websites, and from third parties that provide Ardex with marketing leads. Ardex adheres to the Australian Privacy Principles in relation to any Personal Information that it collects and to the European Directives and Regulations in relation to any Personal Data it collects. You consent to all collection, use and disclosure of your Personal Information and Personal Data.
  2. The kinds of Personal Information and Personal Data that Ardex may collect or hold includes names, contact details, IP addresses, your date of birth, credit card details, bank account details, and other Personal Information or Personal Data required for Ardex to provide the Services.
  3. Ardex stores your Personal Data and Personal Information in different ways including electronically and in paper form. The security of your Personal Data and Personal Information is important to Ardex and Ardex takes reasonable steps to protect your Personal Data and Personal Information from misuse, interference, loss, unauthorised access, modification or disclosure. Some of the ways Ardex does this include implementing security access procedures to databases, confidentiality agreements for Ardex's employees and only allowing access to Personal Data or Personal Information to individuals once Ardex is satisfied with identification requirements.
  4. It is not possible for Ardex to specify the period for which Ardex will store your Personal Data because data retention laws may vary between jurisdictions. However Ardex will store your Personal Data for the full duration required by law.
  5. Ardex requires your Personal Data and Personal Information to provide and promote the Services, and otherwise to enable Ardex to carry out its business. The consequences if you do not provide your Personal Data or Personal Information are that Ardex cannot provide the Services.
  6. Ardex may use Personal Data and Personal Information provided by you for the management of these Terms, research, product development and for the purposes of Ardex's business. The Personal Information and Personal Data Ardex collects includes information you give Ardex when you ask Ardex to perform the Services. You consent to all collection and use of your Personal Information and Personal Data for the purposes set out in this clause.
  7. Ardex may use the Personal Data or Personal Information provided by you for promotional or marketing purposes including but not limited to informing you of Ardex's new Services or of any change in existing Services. You may elect to not consent to the use of your Personal Data or Personal Information for promotional or marketing purposes by sending Ardex an email to the following email address: privacy@ardex.com.au.
  8. Ardex may further disclose your Personal Data or Personal Information if:
    1. you have provided your consent;
    2. Ardex is required to answer a subpoena;
    3. Ardex believes it is necessary to assist in lessening or preventing a serious threat to life, health or safety of any individual, or to public health; and
    4. Ardex believes it is reasonably necessary in taking action in relation to suspected unlawful activity, serious misconduct, locating a missing person or as is required or authorised under Australian law or a court or tribunal order.
  9. Ardex will notify you as required by law if it intendsto further process your Personal Data for a purpose other than that for which the Personal Data were collected.
  10. Ardex has taken the Safeguards in relation to transferring Personal Data to third countries or international organisations. You may obtain a copy of the Safeguards by contacting the Officer on 02 9229 4700 or by email privacy@ardex.com.au.
  11. It is not reasonably practical to list all the countries in which Overseas Recipients are likely to be located, and you consent to this disclosure. In providing this consent, you understand that the Overseas Recipient may not be accountable under the Privacy Act and you may not seek redress under the Privacy Act. The Overseas Recipient may not be subject to obligations provided by the Australian Privacy Principles or the Privacy Act. Please contact the Officer if you do not consent to your Personal Data or Personal Information being disclosed to Overseas Recipients.
  12. You understand and acknowledge that the Privacy Policy contains information about how you may access and correct Personal Information about you that Ardex holds. The Privacy Policy contains information about how you may complain about any breach of the Australian Privacy Principles or registered APP Code that binds Ardex and how Ardex may deal with such a complaint.
  13. You may request from Ardex access to and rectification or erasure of your Personal Data or Personal Information and restrict Ardex from processing or object to Ardex processing Personal Data concerning you and exercise your right of data portability by contacting Ardex at the following email address: privacy@ardex.com.au.
  14. If you have consented to Ardex processing your data for one or more specific purposes, you may to the extent permitted by law withdraw this consent at any time without affecting the lawfulness of processing based on your consent before your withdrawal.
  15. You acknowledge that Ardex's contact details are as follows:
    Street address:Level 6, 84 Pitt Street
     Sydney NSW 2000
    Postal address:GPO Box 4397
     Sydney NSW 2001
    Email address:privacy@ardex.com.au
    Telephone number:02 9229 4700
  16. You may contact the Officer on 02 9229 4700 or by email privacy@ardex.com.au in relation to your Personal Data, your Personal Information, your privacy, the Privacy Act and any other relevant data collection or privacy laws, codes and regulations.
  17. You may complain about any breach in relation to your Personal Data or privacy to the Office of the Australian Information Commissioner whose current contact details are: 
    Office of the Australian Information Commissioner
    Level 3, 175 Pitt Street
    Sydney NSW 2000
    Phone (if in Australia): 1300 363 992
    Phone (if outside Australia): +61 2 9284 9749
    Email: enquiries@oaic.gov.au
    Website: www.oaic.gov.au
    You may also complain about any breach in relation to your Personal Data or privacy to the European Commission Data Protection Officer.

 

8. General rules of user conduct 

 

  1. Ardex may:
    1. do anything to ensure the safety and security of the Services; and
    2. use Content or any other data for research and product development purposes.
  2. You must not:
    1. do anything that is illegal;
    2. do anything that exploits, harms or threatens children or minors;
    3. do anything that is harmful, threatening, abusive, vulgar, obscene or inappropriate;
    4. iv. violate a third party's legal rights;
    5. upload a third party's personal information without their consent;
    6. infringe any person's Intellectual Property rights;
    7. harm or impair any third party's use of the Services;
    8. reverse-engineer, reverse-assemble, decompile, or otherwise attempt to discover source code, tools, methods, processes and infrastructure that enables or underlies the Services;
    9. use the Services to gain unauthorised access to any service, data, account or network;
    10. upload or transmit any virus, worm, Trojan horse, or any other codes, files or programs that are designed to damage the Services, the Products, or any software or hardware;
    11. spam or use the Services to generate spam;
    12. stalk, pester or harm any person;
    13. post terrorist content;
    14. communicate hate speech;
    15. advocate violence;
    16. do anything that may damage feedback, comments, ratings or rankings;
    17. use any robots, spiders, scripts, or any other automatic, electronic or manual process to:
      1. access, search or derive information from the Services; or
      2. extract, screen scrape, monitor, mine, or copy the Services;
    18. copy, reproduce, alter, modify, create derivative works, or publicly display the Services;
    19. obstruct, interfere, disrupt, or overload the Services;
    20. remove, modify or tamper with any regulatory or legal notice or link that is in the Services;
    21. contravene any requirements, procedures, policies or regulations connected with the Services;
    22. do anything that is fraudulent, false, misleading, deceptive, libellous or defamatory;
    23. mirror, frame, place pop-up windows over, or otherwise affect the display of the Services;
    24. use the Services to gamble, bet or enter into any transaction which has an outcome depending wholly or partly on chance;
    25. tell anyone your username, password or any other Credentials in connection with your Account;
    26. permit any other person to access your Account.
  3. If you contravene the Terms, Ardex may stop providing the Services to you or close your Account.
  4. You agree that you contravene the Terms and are liable to Ardex if you permit another person to access your Account and that person contravenes these Terms.

 

9. Content 

 

  1. You own your Content and any Intellectual Property rights that you hold in your Content.
  2. You are responsible for your use of the Services and your Content.
  3. The Services may allow you to present, post, store, share, upload, submit, broadcast, send, receive, or exhibit your Content.
  4. By giving Content to Ardex or by presenting, posting, storing, sharing, uploading, submitting, broadcasting, sending, receiving or exhibiting your Content in the Services, you grant Ardex a non-exclusive, irrevocable, fee-free licence (including the right to sub-licence) to use, modify, store, duplicate and reproduce your Content for the purpose of operating the Services, providing support for the Services, and for all other related purposes as reasonably determined by Ardex.
  5. You acknowledge and agree that Ardex owns all transactional data created by your use of the Services.
  6. Ardex may use and disclose to third parties data relating to how you use the Services provided that Ardex has removed any personally identifying information about you from that data, or have combined it with the data or other users in such a way that it no longer personally identifies you.
  7. Ardex does not own, control, verify, promote, endorse, champion, pay for or otherwise assume any liability for your Content. Ardex is not responsible for your Content or for any materials that other persons upload, store or share in the Services. You bear all risk in connection with your Content or any materials uploaded, stored, or shared by other persons in the Services.
  8. Despite anything else in these Terms, any information in relation to treatment and care of a horse that is posted in the Services is for information purposes only. Ardex is not liable for these posts and you agree that you are not relying on them. If you use treatment and care information posted in the Services, you agree that this is at your own risk and that Ardex makes no representation in relation to the accuracy, completeness, or reliability of this treatment and care information.

 

10. Third Party Integrations 

 

  1. The Services may allow you to access, acquire or receive Third Party Integrations.
  2. b. Ardex does not own, control, verify, promote, endorse, champion, pay for or otherwise assume any liability for Third Party Integrations. Ardex is not responsible for Third Party Integrations and you bear all risk in connection with Third Party Integrations.

 

11. Service availability 

 

  1. The Services may be unavailable from time to time. Ardex tries to make the Services available at all times. However, occasional disruptions and outages are inevitable. Services may also become unavailable if Ardex needs to maintain or upgrade the Services.
  2. Ardex is not liable for any disruption, Claims or Losses that you may suffer in connection with any unavailability of the Services.

 

12. Changes to Terms and Services 

 

  1. Ardex may change these Terms at any time. Ardex will notify you when it changes the Terms. If you use the Services after these changes, you agree to the changed Terms.
  2. The Services may change at any time without notification to you. Additionally, Ardex may stop or suspend the Services wholly or partly without providing notice to you. Ardex may also limit use and storage in the Services at any time without advance notice.

 

13. Licence 

Ardex grants you a non-assignable and non-exclusive licence to use the Services. 

14. Indemnity 

You indemnify and hold harmless Ardex and its parents, subsidiaries, affiliates, officers, directors, co-branders, partners, employees, consultants and agents, from any Claims or Losses (including but not limited to debt recovery or legal fees) made by any third party in connection with your Content, your use of the Services, or any breach or contravention of these Terms. 

15. Disclaimer of warranties 

 

  1. Your use of the Services is at your own risk.
  2. Ardex provides the Services on an "AS IS" and "AS AVAILABLE" basis.
  3. To the fullest extent permitted by law, Ardex does not:
    1. make any express or implied warranties, guarantees, terms or conditions under these Terms or in connection with the Services or your use of the Services;
    2. guarantee or make any warranty in relation to the comprehensiveness, accuracy, accessibility, timeliness, security or dependability of the Services;
    3. make any warranty that the Services will meet your requirements or be available on a continuous, protected, or faultless basis.

 

16. Limitation of Liability 

 

  1. Ardex is not liable or responsible for:
    1. any damage to your computer system, loss of data, or other damage arising out of your access to or use of the Services;
    2. the deletion of, or the failure to store or transmit, any Content and other communications contained in the Services;
    3. any compromise of the confidentiality of your Account or Credentials;
    4. any unauthorised access to or use of your Account or its Credentials;
    5. Content;
    6. any mistakes or exclusions from any Content;
    7. any harm or loss of any kind suffered as a consequence of the use of any Content made available in the Services or elsewhere.
  2. To the fullest extent permitted by law, Ardex is not liable for the following items arising in connection with your use of the Services:
    1. any direct, indirect, incidental, special, consequential or punitive damages;
    2. any direct or indirect Losses of actual or anticipated profits;
    3. any direct or indirect Losses of actual or anticipated income; or
    4. any data, use, good-will, or other intangible Losses.

 

17. Dispute Resolution 

 

  1. If you have a Dispute, you must do the following before commencing any legal proceedings or seeking any other remedy against Ardex:
    1. provide full details of the Dispute to Ardex in writing;
    2. allow Ardex a reasonable amount of time to investigate and respond to the Dispute; and
    3. assist and cooperate with Ardex while it investigates the Dispute.
  2. To the maximum extent permitted by law, you must not commence any court or arbitration proceedings in relation to the Dispute if you have not complied with clause 17a.
  3. Nothing in this clause prejudices the right of either party to seek urgent injunctive, interlocutory or declaratory relief from a court in connection with the Dispute without first having to attempt to resolve the Dispute.

 

18. Force majeure 

If by reason of any fact, circumstance, matter or thing beyond the reasonable control of you or Ardex, either is unable to perform in whole or part any obligation under these Terms: 

 

  1. that party is relieved of that obligation under these Terms to the extent and for the period that it is unable to perform this obligation; and
  2. that party is not liable to the other party to these Terms for failure to perform this obligation to the extent and for the period of non-performance contemplated by this clause.

 

19. Assignment 

 

  1. You must not assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of your rights and obligations under these Terms without the prior written agreement of Ardex.
  2. Ardex may assign and transfer all its rights and obligations under these Terms to any person to which it transfers all of its business.

 

20. Entire agreement 

 

  1. These Terms contain the whole agreement between the Parties.
  2. The Parties confirm that they have not entered into these Terms on the basis of any representation that is not expressly incorporated in these Terms.

 

21. Waiver 

 

  1. No failure or delay by Ardex in exercising any right, power or privilege under these Terms will impair or operate as a waiver of that right, power or privilege nor may any single or partial exercise of any right, power or privilege preclude any further exercise of that right, power or privilege or the exercise of any other right, power or privilege.
  2. The rights and remedies provided in these Terms are cumulative and not exclusive of any rights and remedies provided by law.

 

22. Severability 

If any provision of these Terms is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from this agreement and rendered ineffective as far as possible without modifying the remaining provisions of these Terms, and will not in any way affect any other circumstances of or the validity or enforcement of these Terms. 

23. Notices 

A notice or other communication in connection with these Terms has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post, or sent by email. 

24. Law and jurisdiction 

These Terms take effect, are governed by, and will be construed in accordance with the laws from time to time in force in New South Wales, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia. 

 

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