1 About FarmLab
Welcome to FarmLab. Our Platform provides you with an opportunity to browse and request soil tests that have been listed for sale through the Platform (the ‘Products’), upload and manage soil data and share soil data with your clients, advisers and/or other third parties (the ‘Services’). The Platform provides these Services by way of granting you access to the content on the Platform.
2 Definitions and Interpretation
3rd Party IP means any documents, reports, recommendations or other such material created by you or any other third party as a result of analysis of the Individual Farm Data. Whether uploaded onto the Platform or not;
Authorised User means those of your employees, agents and contractors who are authorised by you to use the Platform under your registered account;
Farm means any parcel of land for which Individual Farm Data is collected and uploaded into the Platform;
Farm IP means the Intellectual Property Rights of all Individual Farm Data collected and uploaded to the Platform;
Farmer means a party or entity for whom Individual Farm Data is being collected in relation to a Farm, whether they be the land owner or leaseholder of that Farm;
Individual Farm Data means all data collected from the Farm or measured on Farm, including results relating to soil samples and measurements, geolocation of soil samples, climate data, environmental data photos, notes, boundary information, remotely sensed data and all other measured data, but does not include analysis of that data by another party which gives Intellectual Property Rights to that party;
Intellectual Property Rights means all present and future intellectual property rights including but not limited to all rights in respect of patents, trademarks, service marks, logos, trade names, domain names, business names, rights in designs, copyright, Moral Rights, data base rights, rights in know-how, trade secrets, rights in confidential information and other intellectual property rights, in each case whether registered or unregistered, and includes applications for registration;
Member means the Registered User of an account on the Platform;
Moral Rights means any rights granted in Part IX of the Copyright Act 1968 (Cth) and any similar rights;
Platform means FarmLab’s website(s), mobile application and any information or content appearing therein;
Products means soil tests, soil testing kits and any other products listed for sale through the Platform from time to time;
Registered User means an individual who has registered as a user of the Platform;
Service Provider includes any 3rd Party service provider engaged by FarmLab;
Terms means these terms and conditions, under which we provide access to the Platform and related Products and Services, as amended by us from time to time;
We, us, our means FarmLab Pty Ltd ABN 62 623 181 644;
You, your means the person or entity that accesses, or has registered to use the Platform, including without limitation any Authorised Users.
3 Application of Terms
3.1 The Platform is owned and operated by us. Access to and use of the Platform or any of its associated Products or Services is provided by us.
3.2 These Terms govern your use of and access to our Products and Services and our Platform, including our website(s), our mobile application and any information or content appearing therein.
3.4 By accessing and using our Platform, our social media channels and any other materials made available to you, you agree to these Terms.
3.5 If you are using our Platform as a representative of an entity, you are agreeing to these Terms on behalf of that entity whether you are an Authorised User or otherwise.
3.6 You may also agree to these Terms by clicking to “accept” or “agree” to the Terms where this option is made available to you in the Platform.
3.8 We reserve the right to review and change any of the Terms by updating this page at our sole discretion from time to time. When we update these Terms, we will use reasonable endeavours to provide you with notice of updates to the Terms. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for your records.
4 Registration to use the Platform
4.1 In order to access our Products and Services, you must first register as a user of the Platform. Any conditions set out in this clause 4 and these Terms will apply to the Registered User of the account and any Authorised Users of the account.
4.2 As part of the registration process, or as part of your continued use of the Services, you may be required to provide information including personal information about you, including:
(a) Email address;
(b) Preferred username;
(c) Mailing address;
(d) Telephone number;
4.3 You warrant that any information you give to us in the course of completing the registration process will always be accurate and up to date. You agree to update your personal information should there be any changes to the information provided.
4.5 Once you have completed the registration process, you will be a Registered User of the Platform and agree to be bound by the Terms. As a Registered User you will be granted immediate access to the Products and Services. By accessing and using the Platform, you warrant that:
(a) You are over 18 years of age and have the legal capacity, and, if necessary, the authority, to enter into a legally binding contract;
(b) You have read and accept these Terms; and
(c) You will comply with these Terms.
5 Your obligations as a Registered User
5.1 As a Registered User, you agree to comply with the following:
(a) You will use the Platform and Services only for purposes that are permitted by:
(i) the Terms; and
(ii) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdiction in which the Platform and Services are used;
(b) You have the sole responsibility for protecting the confidentiality of your registration information, including your username, password and/or email address;
(c) Any use of your registration information by any other person, or third parties other than an Authorised User is strictly prohibited and may result in the immediate cancellation of your registration and access to the Platform by us. You agree to immediately notify us of any unauthorised use of your password or email address or any breach of security of which you have become aware;
(d) Access to and use of the Platform is limited, non-transferable and allows for the sole use of the Platform by you and any Authorised Users for the purposes of us providing the Services;
(e) You will not use the Services or Platform for any illegal and/or unauthorised use which includes collecting email addresses of Registered Users by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Platform;
(f) You agree that unauthorised commercial advertisements, affiliate links, and other forms of solicitation may be removed from the Platform without notice and may result in termination of the Services and/or the immediate cancellation of your registration and access to the Platform. Appropriate legal action will be taken by us for any illegal or unauthorised use of the Platform;
(g) You acknowledge and agree that any automated use of the Platform or its Services is prohibited;
(h) We reserve the right to disable your access to the Platform and/or cancel your registration at any time if in our reasonable opinion you are in breach of these terms; and
(i) You are solely responsible for each Authorised User’s use of the Platform and compliance with the obligations set out in this clause 5 and these Terms.
6 Purchase of Products
6.1 These Terms govern any purchase you make of our Products on our Platform, including but not limited to soil tests and soil testing kits.
6.2 In using the Services to purchase any Product through the Platform, you agree to the payment of the purchase price listed on the Platform for the Product (the ‘Purchase Price’).
6.3 We reserve the right to amend the range and Purchase Price of our Products and Services at any time.
6.5 Following payment of the Purchase Price being confirmed by us, you will be issued with a receipt to confirm that the payment has been received by us. This will be sent to you by email and available to view on your FarmLab account.
6.6 We may record your purchase details for future use of any of our Services.
6.7 We are not bound by your order until we have accepted it. Acceptance of your order occurs when we issue you with a receipt to confirm that the payment has been received.
6.8 We reserve the right to accept or reject your order for any reason, including, without limitation, the unavailability of any Products, a pricing error or an error in your order. If your order is rejected for any reason, we will inform you as soon as possible.
6.9 If your Product is faulty or significantly different to that described on our website, please contact our customer service team by email at email@example.com.
7 Returns, Refunds and Warranty
7.1 Our Products and Services come with guarantees that cannot be excluded under the Australian Consumer Law.
7.2 Nothing in these Terms purports to modify, exclude or restrict the conditions, warranties, undertaking and legal rights or the imposition of any liability under the Competition and Consumer Act 2010 (Cth) or any other national, state or territory legislation where to do so is unlawful.
7.3 We do not accept returns or provide refunds for change of mind.
8.1 You acknowledge that the Services offered by us integrate delivery (the ‘Delivery Services’) through the use of third party delivery companies (the ‘Delivery Service Providers’).
8.2 In providing the Services, we may offer you a variety of delivery and insurance options as part of the Delivery Services by the Delivery Service Providers. You acknowledge and agree that we are not the provider of these delivery and insurance options and merely facilitate your interaction with the Delivery Service Providers in respect to providing the Delivery Services.
8.3 In the event that an item is lost or damaged in the course of the Delivery Services, we ask that you:
(a) contact the Delivery Service Provider directly to request a refund or to claim on any insurance options available; and
(b) contact us by sending an email to firstname.lastname@example.org outlining in what way the Products were damaged in transit so we are able to determine if the Delivery Service Provider should be removed as one of our suppliers.
9 Intellectual Property
9.1 The Platform contains intellectual property owned by us including, but not limited to trade marks, copyrights, proprietary information, designs, patents, the business name, trading name, domain name, logo, all designs, text, videos, audio files, graphics, other files and software (“Our IP”). Your use of the Platform, the Products and Services and your access to any content on the Platform does not give to you any Intellectual Property Rights in Our IP.
9.2 We grant to you:
(a) an Australia wide / worldwide;
(c) royalty free;
(d) with no right to sublicence other than in accordance with the provisions of clause 9.3; licence, to use Our IP during the period in which you are a Registered User of the Platform.
9.3 You may sublicence Our IP to the Farmer, as necessary for the proper use of the Platform and the Products, on the same terms as is set out in clause 9.2.
9.4 Other than provided for in these Terms you may not, without our prior written permission and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, create derivative works from or adapt or change in any way Our IP, any content on the Platform or third party content for any purpose. This prohibition does not extend to materials on the Platform which are freely available for re-use or are in the public domain.
9.5 You must not represent to anyone or in any manner whatsoever that you are the proprietor of Our IP.
10 Ownership and Licencing of Data
10.1 By using the Platform and agreeing to these Terms you agree that all right, title and interest and any Intellectual Property Rights in any Farm IP vests in the Farmer.
10.2 We acknowledge that any 3rd Party IP, whether uploaded to the Platform or not, remains the property of the party who created that intellectual property.
10.3 By using the Platform and agreeing to these Terms you warrant that the Farmer has granted to you a worldwide, perpetual, non-exclusive, licence to use the Farm IP prior to registering their Farm on the Platform.
10.4 We may act at the Farmer’s instructions in relation to the use and access of Farm IP at any time, in priority to any instructions given to us by you.
10.5 You agree that if you engage or retain any third parties to collect Individual Farm Data under your services agreement with the Farmer, you will use all reasonable endeavours to ensure they agree to the same terms as set out in this clause 10 of these Terms.
10.6 By using the Platform and agreeing to these Terms you grant or will arrange with the Farmer in writing to grant to us a worldwide, perpetual, irrevocable and royalty free sub-licence to access and use the Individual Farm Data for the purpose of performing our obligations under these Terms, and to allow us to improve, develop and protect our Platform, improve our Products and Services, and communicate with you about your registration on the Platform.
10.7 By using the Platform and agreeing to these Terms you grant or will arrange with the Farmer in writing to grant to any 3rd Party Soil Testing Service Provider engaged via the Platform to conduct soil testing on samples provided from the Farm a worldwide, perpetual, irrevocable and royalty free sub-licence to access and use the Individual Farm Data.
10.8 You are responsible for maintaining copies of any and all Individual Farm Data uploaded to our Platform.
10.9 You agree that we may refer to you, your business name, publish your logo and/or trade marks (if any) and refer to you as a customer of ours in any communications or publications for the purposes of marketing or promoting our business. You may revoke this consent at any time by writing to us at email@example.com.
12.1 If you are in the business of providing similar services to the Services for the purpose of providing them to users for a commercial gain, whether business users or domestic users, then for the purposes of these Terms we consider that you are a competitor of ours.
12.2 Our competitors must not use the Platform or any content contained on or within it.
12.3 If you breach this clause 12 then we will take such action against you as we may be advised which could include the immediate commencement of proceedings against you or seeking to obtain an injunction prohibiting you from using the Platform or any information or content contained on it. If any such action is commenced and we are successful then we will rely on the provisions of this clause 12 with respect to our claim for damages and seeking full indemnity costs against you.
13 General Disclaimer
13.1 This Platform is provided on an “as is” and “as available” basis and to the fullest extent permitted by law, none of the affiliates, directors, officers, employees, agents, contributors, third party content providers or licensors of us (including any Delivery Service Provider) make any terms, guarantees, warranties, representations or conditions whatsoever regarding our Platform and/or our Products or Services other than provided by statute and pursuant to these Terms including that:
(a) They are suitable, reliable, complete, secure, accurate or fit for any particular purpose;
(b) Access will be free of any harmful components (including viruses) or other code that is harmful or may assist in causing harm; or
(c) There is no possibility of failure to store communications or other data.
13.2 We will make every effort to ensure Products are accurately depicted and explained on the Platform, however, you acknowledge that sizes, colours and functions may differ from what is displayed on the Platform.
13.3 Nothing in these Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
14 Limitation of Liability
14.1 We make no express warranties under these Terms other than those set out in clause 7.
14.2 We do not exclude or limit the application of any provision of the any statute (including the Competition and Consumer Act 2010 (Cth) where to do so would contravene that statute or cause any part of this clause to be void.
14.3 We exclude:
(a) From these Terms all conditions, warranties, and terms implied by statute, general law or custom, except any implied condition or warranty the exclusion of which would contravene any statute or cause this clause to be void (“Non-excludable Condition”);
(b) all liability to you in contract for consequential or indirect damages arising out of or in connection with these Terms even if:
(i) we knew they were possible; or
(ii) they were otherwise foreseeable,
including without limitation lost profits and damage suffered as a result of claims by third parties such as a client of yours; and
(c) all liability to you in negligence, or other non-contractual cause of action in respect of which liability can be excluded, for acts or omissions by us arising out of or in connection with these Terms.
14.4 Our liability to you for breach of:
(a) the warranty given under clause 7 is limited to our obligations under clause 7; and
(b) any other express provision of these Terms or any Non-excludable Condition (except one express or implied in the Competition and Consumer Act 2010 (Cth)) is limited at our option to any one of supplying, replacing, or repairing the Products or supplying again the Services, in respect of which the breach occurred.
14.5 We are not responsible or liable in any manner for any site content (including third party content) posted on the Platform or in connection with the Products or Services, whether posted or caused by users of the Platform, by third parties or by any of the Services offered by us.
14.6 You acknowledge that we do not provide the Delivery Services to you and you agree that we will not be liable to you for any special, indirect or consequential loss or damage, loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Delivery Services.
15.1 To the fullest extent permitted by law, you agree to indemnify and hold us and our related entities, affiliates, third party content providers and licensors and our and their respective officers, employees, agents and contributors, harmless from and against all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with:
(a) any direct or indirect consequences of you accessing, using or transacting on the Platform or attempts to do so;
(b) any Data or content you post through the Platform;
(c) Your breach of your representations and warranties set out in these Terms;
(d) Your breach of any of these Terms and/or any of your representations and warranties set out in these Terms; and
(e) Your breach of any law or the rights of any third party.
16 Termination of Contract
16.1 The Terms will continue to apply until terminated by either you or by us in accordance with this clause 16.
16.2 If you wish to terminate these Terms, you may do so by:
(a) notifying us at any time; and
(b) closing your accounts for all of the Services you use, where we have made this option available to you.
16.3 We may at any time, terminate the Terms with you if:
(a) you have breached any provision of the Terms or we or of the view, reasonably held, that you intend to breach any provision;
(b) We are required to do so by law;
(c) the partner with whom we offered the Services to you has terminated its relationship with us or ceased to offer the Services to you;
(d) we are transitioning to no longer providing the Services to Registered Users in the country in which you are resident or from which you use the Services or accessing the Platform; or
(e) the provision of the Services to you by us is, in the opinion of us, reasonably held, no longer commercially viable.
16.4 Subject to local applicable laws, we reserve the right to discontinue or cancel your use of and access to the Platform at any time and may suspend or deny, in our sole discretion, your access to all or any portion of the Platform or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts our name or reputation or violates the rights of those of another party.
16.5 When the Terms come to an end, all of the legal rights, obligations and liabilities that you and we have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by the termination, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely.
17 Dispute Resolution
17.1 If a dispute arises out of or relates to the Terms other than clause 12, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
17.2 A party to the Terms claiming a dispute (‘Dispute’) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
17.3 On receipt of that notice (‘Notice’) by that other party, the parties to the Terms (‘Parties’) must:
(a) Within 14 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
(b) If for any reason whatsoever, 14 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Law Society of New South Wales or his or her nominee;
(c) The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
(d) The mediation will be held in our offices, Armidale, New South Wales, Australia.
17.4 All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.
17.5 If 14 days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
18 Governing Law
The Terms are governed by the laws of New South Wales, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of New South Wales, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.
19 Independent Legal Advice
Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.
If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.