Terms of Service

SmartSense Agtech – PastureSmarts

These terms of service form the legally binding agreement (“Agreement”) between SmartSense Agtech (ABN 19 670 338 431) of AgriBio, 5 Ring Road, Bundoora, Victoria, 3083 (“SSA”) and a person who registers to use the PastureSmarts Web Application (“Customer”, “User” or “You”).

SSA and You are each a ’party’ to this Agreement.

Please read the terms and conditions of this Agreement carefully.

Do not use the Web Application if You do not agree to the terms and conditions of this Agreement.

You represent and warrant that You are at least 18 years of age and possessing the legal capacity to enter binding contracts under applicable laws and regulations.

2. Term, Registration and Free Trial Period

2.1 In order to use the Web Application You must first register via the Registration Form and complete the Request Farm Form using accurate, complete and current information.

2.2 Customer is entitled to a free use period of the Web Application for 90 days from the date of registration (“Free Trial Period”). The Free Trial Period may be extended at the discretion of SSA.

2.3 At the conclusion of the Free Trial Period, Customer will be charged the Fee for access to the Web Application for a period of one month (“Subscription Period”), unless Customer cancels the subscription prior to the conclusion of the Free Trial Period.

2.4 On expiry of the first Subscription Period, Customer’s subscription will automatically renew for successive further one month Subscription Periods unless Customer cancels its subscription prior to the conclusion of the then current Subscription Period, by terminating this Agreement under clause 11.

3. Access to and use of the Web Application

3.1 SSA grants Customer a non-exclusive and non-transferable right to:

(a) use the Web Application on supported devices; and
(b) permit Users to access and use the functionality of the Web Application,
in each case, during the Term, for the Permitted Use, subject to and in accordance with the terms of this Agreement.

3.2 You must not, (and must ensure that Users do not):

(a) install, access or use the Web Application except as contemplated by clause 3.1;
(b) rent, lease, sub-license, loan, translate, copy, merge, combine with other programs, adapt, vary or modify the Web Application;
(c) disassemble, decompile, reverse-engineer, view or gain access to the source code for, or create derivative works based on the whole or any part of the Web Application or attempt to or permit a third party to do any such thing;
(d) make the Web Application available in whole or in part in any form (whether object code, source code, by API or otherwise) to any person other than permitted Users without prior written consent from SSA, or use the Web Application to provide any product or service that is an alternative, substitute or competitor to the Web Application;
(e) share user credentials or permit any person other than a permitted User to access and use the Web Application with user credentials issued to that User;
(f) use the Web Application in any unlawful manner, for any unlawful purpose, fraudulently or maliciously, including by hacking or inserting malicious code, viruses, or harmful data, into the Web Application or any of SSA’s systems;
(g) infringe SSA’s Intellectual Property Rights or those of any third party in accessing or using the Web Application;
(h) upload or transmit using the Web Application any material that is unlawful, defamatory, offensive, harmful or otherwise objectionable;
(i) access or use the Web Application by any unauthorised means (including using any bot, script, spider, crawler, scraper or automated device) or activities (including data scraping, automated queries, or any forms of data extraction), or in a way that could damage, disable, overburden, impair or compromise SSA’s systems or security or interfere with other users; or
(j) collect or harvest any information or data (other than Data) from, or attempt to decipher any transmissions to or from, the servers used by SSA.

3.3 Customer uses the Web Application at its own risk and is solely responsible for ensuring that:

(a) Users access and use the Web Application in accordance with the Agreement and Customer remains responsible for each act and omission of its Users as though it were an act or omission of Customer;
(b) access and use of the Web Application and Data by Customer and Users complies with all applicable laws;
(c) it has all necessary permissions to make the Data available to SSA via the Web Application;
(d) all user credentials issued to Customer and its Users are kept secure, confidential and not shared.

4. Fees, invoicing and payment

4.1 The Fees are payable for SSA’s supply of the Web Application. SSA may adjust the Fees at its discretion on notice to Customer.

4.2 Not used

4.3 If Customer fails to pay any undisputed Fees by the due date for payment, SSA may:

(a) suspend access to, and use of, the Web Application in each case, from the due date for payment until payment is received in full by SSA; and
(b) charge interest at the Penalty Interest Rate prevailing at the date the payment falls due, from the period beginning on the date that is 30 days after the date the payment falls due, until payment is received in full by SSA.

4.4 Not used

4.5 The Fees are exclusive of GST. The Customer must pay the applicable GST in addition to the Fees.

5. Intellectual Property Rights

5.1 All Intellectual Property Rights in and to the Web Application and Derivative Materials including in any copy, modification, enhancement, configuration, derivative work or improvement of the Web Application, vests in and remains vested in SSA or its licensors at all times. If any such Intellectual Property Rights vest in Customer or Users, Customer hereby assigns and must procure that each User assigns, that Intellectual Property Right to SSA with immediate effect.

5.2 Neither Customer nor any User receives any right, title or interest in or to the Web Application other than the express right to install, access and use the Web Application under clause 3.1.

5.3 Customer must immediately notify SSA in writing upon becoming aware of any infringement or unauthorised use of the Web Application by any person, including any User.

5.4 If the Web Application is the subject of claim by any person that use of the Web Application by Customer or Users in accordance with the Agreement infringes any Intellectual Property Right owned by that person, Customer will promptly notify SSA, and SSA may (at its cost and option) either:

(a) procure the right for Customer to continue using the Web Application;
(b) modify the Web Application such that it no longer infringes the relevant Intellectual Property Rights; or
(c) terminate this Agreement with immediate effect if neither 5.4(a) or 5.4(b) is practicable.

6. Data and Derivative Materials

6.1 As between SSA and Customer, all right, title and interest in the Data remains vested in Customer.

6.2 Customer:

(a) grants SSA, its sub-processors, data hosting provider and their respective personnel, the right to process the Data; and

(b) warrants that it has obtained all necessary consents and permissions from individuals, Users and other third parties necessary to enable SSA, its sub-processors, data hosting provider and their respective personnel to process the Data,
in each case, as contemplated by the Agreement. SSA will ensure that its sub-processors, and data hosting provider are bound to use and disclose Data in compliance with this Agreement and, where relevant, the Privacy Laws.

6.3 Customer acknowledges that SSA may at its discretion:

(a) create Derivative Materials, including by compiling, combining with other information, conducting data analytics, developing and manipulating the Data;
(b) use and disclose Derivative Materials provided that SSA does not disclose Derivative Materials which incorporate any Personal Information without Customer’s prior consent; and/or
(c) use information about Customer, Users and their use of the Web Application, for the purposes of billing, capacity planning, compliance, improving the Web Application, detecting and addressing threats to the functionality, security, integrity and availability of the Web Application, detecting and addressing breaches of the Agreement, SSA policies and to resolve service requests by You.

6.4 SSA retains an irrevocable right to utilise any non-Personal Information of Users for the purpose of enhancing and improving the Web Application product offered by SSA.

7. Privacy and Data security

7.1 Each party must comply with all applicable Privacy Laws in processing any Personal Information in connection with the Agreement. Without limiting the foregoing, SSA will process all Personal Information comprised in the Data, or provided by You, in accordance with its Privacy Policy.

7.2 SSA ensures that there are appropriate technical and organisational security measures to protect the Data stored on the servers used by SSA against loss, unauthorised access, modification and disclosure (“Data Breach”), including by:

(a) not disclosing the Data except to its sub-processors, data hosting provider, API partners, and their respective personnel for purposes contemplated by the Agreement; and
(b) maintaining appropriate business continuity and disaster recovery measures for the Web Application.

7.3 Customer is responsible for the security of any Data downloaded and stored on its devices and regularly backing up that Data.

8. Confidential Information

8.1 Each party (“Receiving Party”) must keep confidential and must not use, copy or disclose any Confidential Information of the other party (“Disclosing Party”) except as permitted by this clause 8.

8.2 The Receiving Party may use Confidential Information of the Disclosing Party to the extent necessary to exercise its rights and perform its obligations under the Agreement.

8.3 The Receiving Party may disclose Confidential Information of the Disclosing Party:

(a) to the affiliates, personnel, subcontractors and professional advisors of the Receiving Party who need to know the Confidential Information for the purposes of this Agreement and who are bound by obligations of confidence as stringent as those in this clause;

(b) in enforcing this Agreement or in a proceeding arising out of or in connection with the Agreement;

(d) as required or permitted by this Agreement; or

(e) with the Disclosing Party’s prior written consent.

8.4 You agree that SSA may:

(a) disclose to third parties the fact that You have entered into this Agreement with, and are a customer of, SSA; and

(b) use other Personal Information about You and Your use of the Web Application (subject to obtaining your prior consent),

in any marketing or other material developed by SSA, including case studies.

9. Disclaimer and non-excludable terms

9.1 To the full extent permitted by law, SSA excludes all conditions, warranties and guarantees express or implied other than those expressly set out in the Agreement, and provides the Web Application “as is” and “as available”. Without limitation, SSA does not represent or warrant:

(a) the accuracy, currency, reliability or quality of the Web Application;

(b) that the Web Application is non-infringing; or

(c) that the Web Application, or any advice, suggestions, recommendations or other information contained within the Web Application, are continuous, free from errors or omissions, security risks or exhaustive; or

(d) that the Web Application, or any advice, suggestions, recommendations or other information contained within the Web Application, are fit for a particular purpose or meet Your requirements or those of Your Users.

9.2 SSA disclaims any and all liability for any loss arising from or related to the Web Application’s unavailability, errors, or omissions, or from any decisions made or actions taken in reliance on information or advice provided by the use of the Web Application.

9.3 If any condition, warranty or guarantee cannot be excluded at law, then to the extent permitted by law, SSA’s liability for breach of such condition, warranty or guarantee is limited (at SSA’s option) in the case of services, to resupply of the services or payment of the cost of resupplying the services.

9.4 The Web Application may contain, integrate with, receive from, or provide links to content (including data and advice), products or services owned or controlled by third parties. You agree that:

(a) You access, use and rely upon any such third-party integrations, services, products, data, or content at your own risk; and

(b) SSA excludes and disclaims any and all liability arising from or related to third-party integrations, services, products, data, or content.

10. Limitations and exclusions of liability

10.1 To the maximum extent permitted by law, in no event will either party be liable to the other party whether under breach of contract, tort (including negligence) or under any other theory of liability for consequential, special or indirect losses arising out of or in connection with the Agreement.

10.2 To the maximum extent permitted by law, in no event will the aggregate liability of SSA for any claims and losses, arising out of or in connection with the Agreement, exceed an amount equal to the Fees paid or payable by Customer in the 12 month period prior to the incident giving rise to the claim or loss.

11. Suspension and termination

11.1 SSA may suspend access and use of the Web Application:

(a) during any period in which Customer is in breach of the Agreement;

(b) to conduct scheduled and emergency maintenance of the Web Application; or

11.2 Either party may terminate the Agreement for convenience by giving at least 30 days’ written notice to the other party.

11.3 Either party may terminate the Agreement with immediate effect by giving written notice to the other party if the other party:

(a) commits a material breach of the Agreement which is irremediable or not remedied within 14 days after receiving written notice requiring it to be remedied: or

(b) enters bankruptcy, or liquidation, or an order for its winding up is served, or it has a receiver, liquidator or administrator appointed over the whole or any part of its assets, becomes insolvent or is otherwise unable to pay its debts as they fall due.

11.4 If any amendment to the Agreement made under clause 14.3 adversely affects the Customer, then it may terminate the Agreement with immediate effect by giving written notice to SSA within 30 days of notice of the amendment.

12 Consequences of termination

12.1 On termination of the Agreement for any reason:

(a) all rights granted to You under the Agreement cease.

(b) You must delete the Web Application from your devices, cease accessing and using the Web application, including destruction of all Documents in your possession (but not including Data); and

12.2 Customer is not entitled to any refunds of Fees already paid as at the date of termination of the Agreement except where:

(a) Customer terminates this Agreement under clause 11.3 or 11.4; or

(b) SSA terminates this Agreement under clause 5.4(c) or 11.2,

in which case, SSA will refund any Fees prepaid by Customer in respect of the remainder of the then current Subscription Period following the date of termination on a pro rata basis.

12.3 For up to 30 days following termination of the Agreement, Customer is entitled (following a written request to SSA) to port or request deletion of any Data that remains in the Web Application. Thereafter, SSA has no obligation to retain any Data, which may be irretrievably deleted by SSA.

12.4 Clauses 5, 6, 7, 8, 9, 10, and 12 to 15 and any other clauses which should by their nature survive termination of the Agreement, survive termination of the Agreement for any reason.

13. Disputes and notices

13.1 If there is a dispute or difference (“Dispute”) between the parties arising out of or in connection with this Agreement, then either party may notify the other party, setting out in reasonable detail the nature of the Dispute (“Dispute Notice”).

13.2 Each party will appoint a senior representative with authority to negotiate on behalf of that party with respect to the Dispute, and such representatives will meet and, in good faith and acting reasonably, use all reasonable endeavours to resolve the Dispute by joint discussions.

13.3 Nothing in this clause 13 will prevent a party from seeking urgent or interlocutory relief through courts of appropriate jurisdiction.

14. General

14.1 Entire Agreement. This Agreement contains the whole understanding of the parties relating to its subject matter and it supersedes and cancels all representations, agreements and commitments made by the same parties with respect to the same subject matter. Any purported representations, warranties or other promises of the parties not recorded in this Agreement are of no effect.

14.2 Force Majeure. Except to the extent otherwise provided under this Agreement, no liability shall result to either party from delay in performance or from non-performance caused by unforeseen or unforeseeable circumstances beyond the control of the party affected, being an act of God, fire, flood, drought, storms, explosion, pandemic, war, action or request of governmental authority (“Force Majeure”) provided that such party:

(a) gives the other party prompt notice of that Force Majeure, including reasonable particulars; and

(b) uses all reasonable diligence to remove or mitigate the effect of that Force Majeure as soon as possible.

An obligation to pay money under this Agreement is not excused by Force Majeure.

14.3 Amendment. SSA may unilaterally amend the terms of the Agreement (including the Fees) from time to time at its sole discretion, including to reflect changes in market conditions, the Web Application, technologies, payment methods or law. SSA will provide notice of any such amendment by:

(a) posting the amended version of this Agreement on its website, at www.pasturesmarts.com, or by email to Customer; or

(b) providing notice in writing to Customer at least 30 days prior to the amendment coming into effect where the amendment relates to the Fees.

Customer’s continued use of the Web Application constitutes acceptance by Customer of any such amendment to the Agreement. The parties may also agree amendments to the Agreement in writing.

14.4 Transfers. Customer must not assign its rights or subcontract its obligations under the Agreement without SSA’s prior written consent. SSA may assign its rights or subcontract its obligations under the Agreement without Customer’s prior written consent but will notify the Customer in the event of any change of control of SSA.

14.5 Further assurances. Each party agrees to do all things and execute all deeds, instruments, transfers or other documents as may be necessary or desirable to give full effect to the provisions of the Agreement and the transactions contemplated by it.

14.6 Waiver. Any failure by a party to compel performance by the other party of any of the terms and conditions of this Agreement will not constitute a waiver of those terms or conditions, nor will it affect or impair the right to enforce those rights at a later time or to pursue remedies for any breach of those terms or conditions.

14.7 Remedies cumulative. The rights, powers and remedies provided to a party in the Agreement are in addition to, and do not exclude or limit, any right, power or remedy provided by law or equity or any agreement.

14.8 Severability. Any provision of the Agreement which is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of the Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.

14.9 Costs and duty. Each party will bear its own costs and expenses in relation to the negotiation, preparation and execution of this Agreement.

14.10 Governing law and jurisdiction. This Agreement is governed by the laws of the State of Victoria, Australia. The parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Victoria and the courts competent to hear appeals from those courts, with respect to any dispute arising out of, or in connection with the Agreement, including, but not limited to, its formation, validity, interpretation or performance.

15. Definitions and Interpretation

15.1 The following definitions apply unless the context requires otherwise.

“Code” means the National Farmers Federation Farm Data Code.

“Confidential Information” of the Disclosing Party means any information, in whatever form and of whatever description, relating to the past, present or future business of the Disclosing Party that comes to the knowledge of the Receiving Party and includes its dealings, operations, products, services, customers, suppliers, personnel and Intellectual Property Rights, in any form whether tangible or not and whether visible or not, disclosed or communicated by that party to the other, or learnt or accessed by, or to which the other party is exposed as a result of entering into this Agreement and:

(a) in the case of SSA, includes the Fees, Web Application and Derivative Materials; and
(b) excludes any information that is in the public domain other than as a result of a breach of this Agreement.

“Customer” means the person who registers for and pays for the service.

“Data” means any data that is uploaded to, or processed through, the Web Application, or otherwise provided to SSA or its personnel, by or on behalf of Customer or its Users, and includes the Farm Data.

“Derivative Materials” means materials, data, insights, works or other things derived or created by or on behalf of SSA from or by reference (wholly or partly) to the Data.

“Documents” means all online documents relating to the Web Application, together with any accompanying information, made available to You by SSA.

“Farm Data” has the meaning given in the Code.

“Fees” means the fees for supply of the Web Application.

“Identifying Farm Data” has the meaning given in the Code.

“Intellectual Property Rights” means all industrial and intellectual property rights of any kind including but not limited to copyright (including rights in computer Web Application), trade marks, service mark, design, patent, semi-conductor or circuit layout rights, trade, (whether or not any of these are registered) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world.

“Registration Form” means the Registration Form for the Web Application found at https://app.pasturesmarts.com/register completed by You.

“Request Farm form” means the Request Farm form for the Web Application found at https://app.pasturesmarts.com/dashboard/farms

“Penalty Interest Rate” means the penalty interest rate fixed by the Penalty Interest Rate Act 1983 (Vic).

“Permitted Use” means, if Customer is:

(a) a manager or farmer of an agricultural property, or personnel of that manager or farmer, the management of that agricultural property;
(b) a professional advisor to a manager or farmer of an agricultural property, accessing the Data of that manager or farmer stored in the Web Application (where permitted) in order to provide advisory services to that manager or farmer.

“Personal Information” means information or an opinion about an identified individual or an individual who is reasonably identifiable, including “personal information” as defined in applicable Privacy Laws, and Identifying Farm Data.

“Privacy Laws” means all applicable laws governing the use and disclosure of Personal Information, including (where applicable) the Privacy Act 1988 (Cth), and the Code.

“Privacy Policy” means the privacy policy of SSA available at here.

“Web Application” means object code versions of the “PastureSmarts” web application, including any Documents and Updates.

“Term” means the period that this Agreement is in place, commencing at the start of the Free Trial Period and, subject to clause 2, ending on the termination of this Agreement.

“Update” means any update or upgrade to the Web Application or Documents issued by SSA from time to time.

“User” means any person who accesses or uses the Web Application through Customer’s subscription, including personnel and professional advisors of Customer.

15.2 In this Agreement reference to:

(a) a party includes the party’s executors, administrators, successors and permitted assigns;
(b) “Including” and similar expressions are not words of limitation;
(c) a word or expression given a particular meaning, means other parts of speech and grammatical forms of that word or expression have a corresponding meaning;
(d) a “person” includes an individual, a body corporate, a joint venture, a trust, an agency or other body;
(e) nothing in the Agreement is to be interpreted against a party solely on the ground that the party put forward the Agreement or a relevant part of it;
(f) a reference to an agreement or document (including a reference to the Agreement) is to the agreement or document as amended, supplemented, novated or replaced;
(g) headings are for convenience only and shall not affect the interpretation of this Agreement; and
(h) any legislation or to any provision of any legislation shall include any modification or re-enactment of such legislation or any legislative provision substituted for, and all legislation and statutory instruments issued under such legislation.

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