The App provides a risk assessment service to the agriculture industry by providing a platform for users to assess potential risks that might occur to their business based on information provided by other users intending to physically engage with the user.
By accessing and using the Services, you agree to be bound by these Terms and they form a binding agreement between ExoFlare and you from the earlier of: (i) the date on which you accept the Terms, and (ii) the date on which you first access or use the Services. If you do not agree to be bound by these Terms, you are not entitled to access or use the Services and you must cease using the Services immediately.
1.1 By accepting these Terms you represent that you are at least 18 years old and able to enter into a valid contract, or that your legal guardian has reviewed these Terms and agreed to them on your behalf.
1.2 If you are accepting these Terms on behalf of your organisation, you represent that you are an authorised representative of your organisation and that you are accepting the Terms on behalf of your organisation (who will be the party to the contract that is made). Any reference to “you” hereon in the Terms refers to your organisation.
1.3 ExoFlare reserves the right to vary these Terms from time to time by updating these Terms on ExoFlare’s website or on the App. We will endeavour to notify you of any such variation to the Terms. Your continued use of the Services will constitute your acceptance of the varied terms.
2. Account registration
2.1 You must be a registered user with a valid account to access and use the Services (Account).
2.2 There are different types of Accounts. If you are given an Account, you will either be registered as a:
(a) “host“, if you propose to use the App as an owner, operator or authorised representative of a property or facility (such as a farm) (property); or
(b) “visitor“, if you wish to use the App in connection with any visit to a property.
2.3 The features, functionality, and content of the Services will differ depending on whether you are registered as a host or a visitor.
3. Account Information
3.1 To obtain an Account, you will be required to provide us with an email address (or other identifier) and password (your Login Details) as well as any other additional information we require in order to provide the Services (together, Account Information).
3.2 You agree to:
(a) provide current, complete, true and accurate Account Information;
(b) maintain and update Account Information as required to keep it current, complete and accurate;
(c) provide additional information about yourself as may be requested by ExoFlare from time to time either during or following the account opening process; and
(d) change your Account Information, if requested by ExoFlare.
3.3 You are responsible for maintaining the confidentiality and security of your Login Details, and for restricting access to your device and your Login Details. Further, you agree:
(a) not to share, transfer, lease, assign or sublicense any Account Information without ExoFlare’s prior written consent;
(b) not to circumvent the password restrictions on the App, nor allow others to do so on your behalf;
(c) not to use anyone else’s Account Information;
(d) to notify ExoFlare immediately upon discovery or suspicion of compromise of the confidentiality of any Account Information; and
(e) that you will be solely liable and responsible for all activities that occur under your Account Information.
3.4 You acknowledge and agree that ExoFlare will not be responsible for your failure to comply with clause 3.3 or any loss or damage arising out of or in connection with any use of your Login Details (or other Account Information) by you or anyone other than ExoFlare.
4. Charges and Payment
4.1 We will notify you of any fees and charges that are payable by you in connection with the Services (the “Charges“), along with the payment date and the billing cycle for those Charges. This notice will occur either when you register your Account, on our invoice to you, or when you acquire additional products and services from us.
4.2 You must pay any Charges in order to access and use (or continue to access and use) the Services.
4.3 We may use a third-party payment service provider to process your payments. If we use such a third party, you agree to comply with the third party’s terms and conditions. If you pay any Charges by credit card, we or the third party may charge you a credit card payment processing fee.
4.4 If we do not receive your payment by the payment date, or if a payment is dishonoured, we may charge you an administrative fee. We will notify you of that amount of that fee. If appropriate, please check with your financial institution or payment service provider about payment processing times which may affect when we receive your payment.
4.5 If GST (as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth)) is imposed on any supply we make to you and the consideration payable for the supply is not expressed to be inclusive of GST, you must pay us on demand by us, an additional amount calculated by multiplying the value of that GST-exclusive consideration (without deduction or set-off) by the prevailing GST rate. We will issue a tax invoice to you for any supply on which GST is imposed.
4.6 ExoFlare will provide you with reasonable notice, using your Account Information, before varying the Charges payable by you. If you do not wish to pay the varied Charges, you may cancel your Account at the end of the following billing cycle.
5. Your use of the Services
5.1 You are solely responsible for paying all expenses you may incur when you access or use the Services, your internet or mobile service provider charges and any excess charges to that provider if you have a limit on the amount of data you can download together with all costs of the equipment and software you need to connect to and use the App and any other Services.
5.2 The App requires internet connectivity to function properly. Please note that poor signal quality (dependent on your location and your internet or mobile service provider) may slow down or prevent the App from functioning properly or at optimum speed. If you have concerns regarding the quality of your signal strength, please contact your internet or mobile service provider directly.
5.3 ExoFlare does not promise that:
(a) you will have uninterrupted or error-free access to and use of the Services;
(b) the Services are or will be accurate, complete, or suitable for a particular purpose;
(c) your internet or mobile service provider will allow you to access or use the Services, and you are responsible for ensuring your service provider will allow you access to the Services; or
(d) your hardware devices will allow you to access or use the Services, and you are responsible for ensuring your hardware devices will allow you to access and use the Services and its content and for any costs and service fees associated with such access and use.
5.4 ExoFlare may make available updates and new releases for the Services, for all or some users, that may incorporate:
(a) corrections of any substantial defects;
(b) fixes of any minor bugs; and
(c) at the sole discretion of ExoFlare, enhancements to the Services.
5.5 You may accept and use any update or new release that ExoFlare makes available to you by downloading the update or new release to your device or continuing to access and use the Services. ExoFlare will not be responsible for any loss that you or any third party incurs as a result of your failure to accept the most recent update of the App.
5.6 ExoFlare will only be responsible for maintenance and support in respect of the Services to the extent it is required by applicable laws.
6. Prohibited uses
6.1 In addition to the restrictions in clause 3.3, you agree that in accessing and using the Services, you will not engage or attempt to engage in any activities that:
(a) violate any applicable local, state, federal or international law, including, without limitation, the Spam Act 2003 (Cth), Copyright Act 1968 (Cth), principles of law or equity established by decisions of courts and statutes, regulations or by-laws of the Commonwealth of Australia, or any State or Territory of the Commonwealth of Australia or a government agency;
(b) result in the placement, posting, uploading of, linking to, sending, storing or otherwise communicating or distributing in any way any content that is defamatory, libellous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive as determined by ExoFlare in its sole discretion, whether or not such User Content may be protected by law;
(c) violate the rights of ExoFlare, another user or any third party including, without limitation, abusing, stalking, threatening or otherwise, infringement of copyright, trademark, or other intellectual property right, misappropriation of trade secrets, confidential information, electronic fraud, invasion of privacy, pornography, obscenity or libel;
(d) interfere with or disrupt any other users’ enjoyment of the Services, including, but not limited to, any information, content, photos, text, or other material that is transmitted, communicated or otherwise provided by ExoFlare (together, ExoFlare Content);
(e) disrupt, impair, alter or otherwise interfere with the Services or any ExoFlare Content;
(f) express or imply that any statements you make are endorsed by ExoFlare or any of its officers, directors, employees, agents or contractors, without ExoFlare’s prior written consent;
(g) modify, adapt, decompile, reverse engineer, disassemble or otherwise reduce the App to a human-perceivable form;
(h) remove, alter, obscure or deface any copyright, trademark, livery, or other proprietary rights notices, disclaimers or warnings contained in or in connection with the Services;
(i) collect (or harvest) information about any user or group of users without their express consent;
(j) are public or commercial activities, including, but not limited to:
(i) selling, reselling, modifying, displaying, duplicating, reproducing, distributing, leasing, renting, sub-licensing, lending, assigning or otherwise using or making available the Services, the ExoFlare Content or any information obtained from the Services; or
(ii) otherwise using or making available to any third party the Services, the ExoFlare Content or any information obtained from the Services, in whole or in part, for any public or commercial purpose (or any purpose not expressly permitted by these Terms),
without ExoFlare’s prior written consent;
(k) involve the collection or use of any product lists or pricing for the benefit of any third party;
(l) impersonate or falsely claim to represent a person or organisation; or
(m) reproduce, modify, enhance, translate, alter, tamper with, upgrade or create derivative works of the whole or any part of the App or combine, integrate or incorporate the whole or any part of the Services in any other software or system.
6.2 ExoFlare will promptly withdraw your right to use the Services if it reasonably appears that you have been using the Services to engage in any illegal, unauthorised or unconscionable conduct.
7. No consent or permission to access property
7.1 Nothing in these Terms, nor any use of the App or communication between any host or visitor, at any time, provides any consent or permission for a visitor to access the property of any host.
7.2 For the avoidance of doubt, a host has no obligation at law, under contract or otherwise to provide any visitor with access to the host’s property, and the host may exclude any visitors from accessing the host’s property for any reason.
8. Content and confidential information
8.1 Subject to clause 8.3 and clause 8.4, You acknowledge that ExoFlare has absolute control over any information, content, photos, text, location information, or other material that is transmitted, communicated, uploaded or otherwise provided by you and other users in connection with the Services (User Content). You grant ExoFlare, their affiliates and service providers, and each of their respective licensees, successors and assignees the right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any User Content for any purpose, subject to your account settings.
8.2 ExoFlare may, but shall not be obligated to, review, monitor or remove any User Content, at ExoFlare’s sole discretion and at any time for any reason, without notice to you or any other user.
8.3 You acknowledge that ExoFlare is not responsible for any User Content (including unlawful or objectionable content), and ExoFlare does not guarantee that it will moderate or review any User Content. In no event shall ExoFlare be responsible for any loss that you incur as a result of your exposure to or use of such User Content.
8.4 To the extent that any of your User Content is Confidential Information, clause 8.1 does not apply to that Confidential Information unless you otherwise agree in writing.
For the purposes of these Terms, Confidential Information means any of your information relating to your business, operations or know-how but does not include any information that:
(i) is or becomes generally available to the public;
(ii) was available to ExoFlare from a person who is not bound by the obligations of confidentiality in these Terms;
(iii) was lawfully in the possession of Exoflare before you disclosed that information to ExoFlare;
(iv) is developed by ExoFlare independently of the information you disclose; or
(v) the parties agree is not confidential or agree may be used.
9. Third Party Materials and advertising
9.1 The Services may be embedded with, require the use of, or link to, third party applications, tools, websites, content, documentation or other materials (Third Party Materials).
9.2 You acknowledge that:
(a) any Third Party Materials are not under ExoFlare’s control and ExoFlare is not responsible or liable for any such Third Party Materials;
(b) ExoFlare does not endorse such Third Party Materials and in no event shall ExoFlare be responsible or liable for any products or services made available through or in connection with such Third Party Materials;
(d) any links to Third Party Materials are provided for your convenience only, and the inclusion of any such link does not imply any endorsement of the Third Party Materials by ExoFlare; and
(e) your use of any Third Party Materials is entirely at your own risk.
9.3 The Services may contain advertising or promotional material for websites, services and products offered by third parties (each, an Advertiser). Any interaction between you and the Advertiser is to the exclusion of ExoFlare. ExoFlare takes no responsibility for any loss or damages you suffer as a result of your interaction with Advertisers. ExoFlare may receive a fee from the Advertiser as part of a business relationship.
10. Intellectual Property Rights
10.1 For the purposes of these Terms, “Intellectual Property Rights” means all rights, title and interest in respect of any registered and unregistered copyright, patents, designs, trade marks and other intellectual property rights.
10.2 All rights (including Intellectual Property Rights), title and interest in and to the Services and all components of it (including, but not limited to, the App and the ExoFlare Content) are owned by ExoFlare or its licensors. Any adaptations, modifications, improvements, translations or derivative works of the Services or any components of it will vest in ExoFlare or its licensors (as applicable) immediately on creation. You agree to do anything reasonably requested by ExoFlare to give effect to this clause 10.2, including, without limitation, by signing any documentation provided by ExoFlare.
10.3 Subject to your ongoing compliance with these Terms, ExoFlare grants you a personal, non-exclusive, non-transferrable and revocable licence to use the specific features and functionality of the Services to which you have been granted access in accordance with these Terms (Licence). To the extent your Account is suspended or terminated in accordance with clause 14 below, the Licence will also be suspended or terminated.
10.4 To the extent the Services allow you to transmit, communicate, upload or otherwise provide User Content, you or your licensor retains all rights (including Intellectual Property Rights) in the User Content. You grant ExoFlare a perpetual, non-exclusive, royalty free, irrevocable, transferable and worldwide licence (including the right to sub-license to other users and third parties) to use, adapt, copy, communicate, reproduce, modify, display, exploit, publish, re-distribute, broadcast, transmit, create derivative works from, and incorporate in other works, the User Content, at any time in the future in any form and for any purpose (including but not limited to promotion or advertising use in the future).
10.5 You represent and warrant to ExoFlare that you have all the necessary rights, consents and authorisations to grant the licence in clause 10.4.
10.6 You are not permitted to use any trade marks, logos, livery, service names and trade names belonging to ExoFlare or third parties that appear in connection with the Services.
10.7 ExoFlare makes no representation, and gives no warranty, that the Services, the ExoFlare Content, the User Content or the Third Party Materials do not infringe the rights (including Intellectual Property Rights) of any person.
10.8 If any third party makes a claim or demand against you, or institutes proceedings against you, alleging infringement of the third party’s rights (including Intellectual Property Rights) in relation to your use of the Services, you agree to promptly notify ExoFlare of any such claim, demand or proceedings. We will take control of the investigation, defence, settlement and discharge of any such claim, demand or proceedings. You agree to provide us with reasonable assistance (at our cost).
11.1 ExoFlare will collect and use your personal information in connection with the following purposes:
(a) to enable you to access and use our products and services;
(b) to enable ExoFlare or a designated Third Party payment system to handle and process payments;
(c) to plan for, provide, manage and administer the products and services that we provide to you and other customers (current or prospective), including, without limitation, to provide updates and new releases or to providing customer support;
(d) to operate and maintain our information technology systems, networks, services, databases, websites and other digital infrastructure (regardless of ownership) (together, “Our Environment”), to protect the security of Our Environment, and to prevent, detect and respond to security threats, incidents, breaches, fraud or other criminal or malicious activities;
(e) to perform analytics, user profiling and automated processing, on the basis of your activities when you use our products or services, in order to improve our products and services and to deliver targeted content to you;
(f) to comply with our legal obligations and regulatory obligations;
(g) to inform you, where permitted by our business relationship with you and applicable law, about ExoFlare’s products or services which are similar to products and services purchased or used by you or otherwise related to our business relationship with you or your organisation (including announcements, special offers and other information), along with events and projects of ExoFlare;
(h) to send you marketing and promotional messages and other information that may be of interest to you, including information sent by, or on behalf of, our business partners that we think you may find interesting;
(i) to administer and perform customer surveys, feedback, marketing campaigns, market research and analyses, sweepstakes, contests or other promotional activities or events; and
(j) to resolve any disputes that we may have with any of our users or any third parties, to respond to regulatory investigations and enforcement actions, to enforce our agreements with third parties, and to initiate or defend legal claims.
12. Limitation of liability
12.1 Subject to clause 12.2, any representation, warranty, condition, guarantee or undertaking that would be implied in these Terms by legislation, common law, equity, trade, custom or usage are excluded to the maximum extent permitted by law.
12.2 Nothing in these Terms excludes, restricts or modifies any consumer guarantee, right or remedy conferred on you by the Australian Consumer Law being Schedule 2 to the Competition and Consumer Act 2010 (Cth) or any other law that cannot be excluded, restricted or modified by agreement.
12.3 You are solely responsible for complying with any legal and regulatory obligation you may have. You acknowledge that these Terms are not intended to enable you to comply with any legal or regulatory obligation. ExoFlare excludes any and all liability in relation to any loss or damage you may suffer or incur arising from or in relation to any legal or regulatory obligation you may have.
12.4 Where ExoFlare’s liability cannot be lawfully excluded, it is limited at the option of ExoFlare, to:
(a) the resupplying of access to and use of the Services;
(b) the payment of the cost of having access to and use of the Services supplied again; or
(c) the refund of the amounts paid by you for your access and use of the Services.
12.5 Subject to this clause 12, the maximum aggregate liability of ExoFlare for all proven losses, damages and claims arising out of or in connection with these Terms, including liability for breach, in negligence or in tort or for any other common law or statutory action is limited to the sum of $100.
12.6 To the maximum extent permitted by law, ExoFlare and any of its personnel, licensors and/or suppliers will not have any liability for any indirect or consequential losses whatsoever for any reason arising in connection with these Terms and/or the use of the Services.
13.1 You will at all times indemnify ExoFlare and will continue to indemnify, hold harmless and defend ExoFlare and its affiliates, including both ExoFlare and their affiliate’s, principals, agents, servants and employees (in this clause, “those indemnified“), from and against all liabilities, costs and expenses suffered or incurred by any of those indemnified, including, without limitation, all reasonable legal fees incurred by those indemnified, arising out of or in connection with any:
(a) loss or damage arising out of, or in connection with, any personal injury, death or damage to tangible property arising out of the performance of these Terms by you;
(b) breach of these Terms by you; and
(c) negligence, illegal or unlawful or wilful act or omission by you in connection with these Terms;
(d) third party claim as a result or arising out of:
(i) the use of the Services by any means and in any form that was not specifically approved by ExoFlare;
(ii) the use of the Services in a manner or for a purpose not reasonably contemplated or not authorised by ExoFlare; or
(iii) the modification, adaptation, merger or alteration of the Services without ExoFlare’s prior written consent; or
(e) without limiting the foregoing, any claim that your use of the Services, ExoFlare Content or User Content infringes the rights of any person (including without limitation, Intellectual Property Rights, rights in respect of privacy, defamation, confidentiality, breach of contract and other personal and proprietary rights),
except to the extent that any liability, loss or damage is solely and directly caused by the wilful misconduct or negligence of those indemnified.
13.2 Nothing in this agreement authorises you to defend, compromise or settle any claim or proceedings on ExoFlare’s behalf.
14. Termination and suspension
14.1 Your Account and the contract made between ExoFlare and you is effective until terminated by ExoFlare or you.
14.2 In addition to any other rights or remedies available to ExoFlare, whether at law or otherwise, ExoFlare may, for any reason and in its sole discretion, at any time:
(a) terminate your Account and/or the contract made between ExoFlare and you;
(b) restrict access to or use of any or all of the Services under your Account: or
(c) refuse to permit you to use the Account.
14.3 ExoFlare may at any time suspend your Account, or put in place access restrictions on your Account, preventing you from accessing or using the Services, or any part of the Services, without notice in circumstances where ExoFlare reasonably suspects that:
(a) you have, or are likely to, breach these Terms; and/or
(b) you do not, or are likely not to, qualify, under applicable law or the standards and policies of ExoFlare, to access and use the Services.
14.4 On termination by you or by us, you will not be entitled to any refund of any Charges that ExoFlare has already charged you in relation to the Services or your Account.
15.1 These Terms will be governed by and construed in accordance with the laws of New South Wales, Australia which will have exclusive jurisdiction over any disputes.
15.2 The Services are intended for use solely within Australia. If you access the Services outside of Australia, ExoFlare makes no guarantee that the Services comply with the local law of that country. The onus is on the user outside of Australia to determine whether access to the Services is suitable in that country.
15.3 If for any reason a court of competent jurisdiction finds any provision or portion of these Terms be unenforceable, the remainder of these Terms will continue in full force and effect.
15.4 If ExoFlare elects not to exercise or enforce any right that it has against you at a particular time, this does not prevent ExoFlare from later seeking to exercise or enforce that right.
15.5 You must not assign, sub-license or otherwise transfer any of your rights and obligations in these Terms to any other person.
15.6 These Terms and any documents incorporated by reference, constitute the entire agreement between the parties regarding the matters set out above and supersede any prior representations, understandings or arrangements made between the parties, whether orally or in writing.
15.7 To contact ExoFlare, please contact us using the details below:
ExoFlare Pty Ltd
Office 62, A1/35-39 Bourke Street
Alexandria, NSW 2044
+61 406 304 616
Last updated: 13 June 2022