TERMS OF USE - Oceanfarmr

1 Introduction

1.1 Oceanfarmr Pty Ltd (ACN 616 145 683) (the Company) provides the Oceanfarmr web & mobile system (Oceanfarmr).

1.2 Oceanfarmr is a farm management platform consisting mainly of an app running on iOS and Android mobile devices, and a web based reporting dashboard. The app is centred around an interactive GPS map, location based forms, inventory recording, and task scheduling. Data is captured and stored in a secure database complete with an application programming interface. The dashboard is the interface to the data sets and displays critical information in the form of interactive, graphs, charts, and tables, which together, allow for the capture and evaluation of farm practice. Oceanfarmr is for use by paid subscribers or otherwise authorised users.

2 Important Terms

2.1 Key Definitions

The following definitions apply in these Terms of Use:

Approved Purposes means the functionality, marketing and advertising of Oceanfarmr including on social media, the provision to you of additional benefits of Oceanfarmr, and, where you have separately completed an application form seeking finance or other services as specified on that application, for the purpose of seeking finance or other specified services;

Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in New South Wales.

Confidential Information means all information (whether or not it is described as confidential) in any form or medium concerning any past, present or future business, operations or affairs of either the Company or a User, including, without limitation:

(a) All technical or non-technical data, formulae, patterns, programs, devices, methods, techniques, plans, drawings, models and processes, source and object code, software and computer records;

(b) All business and marketing plans and projections, details of agreements and arrangements with third parties, and customer and supplier information and lists;

(c) All financial information, pricing schedules and structures, product margins, remuneration details and investment outlays;

(d) All information concerning any employee, customer, contractor, supplier or agent of the relevant party; and

(e) The party’s policies and procedures;

but excludes information that the other party can establish:

(f) Is known by or is in the other party’s possession or control other than through a breach of this document and is not subject to any obligation of confidence; or

(g) Is in the public domain other than by a breach of this document or any obligations of confidence.

Company means Oceanfarmr Pty Ltd ACN 616 145 683.

Corporations Act means the Corporations Act 2001 (Cth).

Fee means the monthly fee set out at https://www.Oceanfarmr.com/pricing payable by a User for access to, or use of, Oceanfarmr.

Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure. It includes each of the following, to the extent it is beyond the reasonable control of that party:

(a) Act of God, lightning, storm, flood, fire, earthquake or explosion cyclone, tidal wave, landslide, adverse weather conditions;

(b) Act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic; and

GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Intellectual Property Rights means all intellectual and industrial property rights and interests of whatever nature throughout the world conferred under statute, common law or equity, whether existing now or at any time in the future, and includes rights in respect of, or in connection with copyright, trade marks, service marks, inventions, brand names, product names, domain names, designs, patents, semiconductor and circuit layout rights, Confidential Information, trade secrets, know-how, business or company names, or other proprietary rights (whether registered or not registrable), and any rights to registration or renewal of such rights

Oceanfarmr means the:

(d) Web application accessible from https://dashboard.smartoysters.com/login ; and/or

(e) The Oceanfarmr mobile application available from the Apple® App Store®, Google Play® and other mobile application marketplaces.

Privacy Act means the Privacy Act 1988 (Cth).

Privacy Policy means the Company’s privacy policy as updated from time to time.

Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Terms of Use means these terms of use as varied from time to time by the Company.

Third Party means any person that is not a User.

User means a person that has access to, or use of, Oceanfarmr.

User Content means any data, content, comments, images, text, photographs, videos, music or other materials or information that a User inputs into Oceanfarmr. .

2.2 Interpretation

Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise:

(a) The singular includes the plural and the opposite also applies.

(b) If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.

(d) A reference to legislation is to that legislation as amended, re enacted or replaced, and includes any subordinate legislation issued under it.

(e) Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.

(f) A reference to a party to these Terms of Use or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).

(g) A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.

(h) A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.

2.3 Using Oceanfarmr

These Terms of Use governs the use of Oceanfarmr by any User and limits the liability of the Company to any User. In addition to any other express or implied consents, by using Oceanfarmr the User agrees to:

(a) these Terms of Use; and

(b) the Privacy Policy.

3 The Oceanfarmr Product

3.1 Subject to the payment of Fees by the User to the Company, Oceanfarmr is available to the User on a month-to-month basis on these Terms of Use.

3.2 The User agrees that Oceanfarmr is:

(a) Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the Company servers and is not available ‘locally’ from the User’s systems; and

(b) Managed and supported exclusively by the Company from the Company’s servers and that no ‘server’ access to Oceanfarmr is available to the User unless expressly agreed in writing.

3.3 As a hosted and managed service, the Company may upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter Oceanfarmr from time to time without prior notice to the User.

3.4 The Company must not exercise its rights under clause 3.3 in a manner that would intentionally cause the User to lose access to User Content or fundamentally decrease the utility of Oceanfarmr to the User.

4 General Terms of Service, Indemnity and Liability

4.1 The User agrees that:

(a) Oceanfarmr may be hosted on servers located outside Australia and may also use email servers located outside of Australia;

(b) The User is solely responsible for ensuring that its use of Oceanfarmr is compliant with all laws; and

(c) The User must ensure that its own privacy policy and other statements about how it handles personal information are accurate in respect of the User’s use of Oceanfarmr.

4.2 Oceanfarmr may enable a User to:

(a) Create and manage records;

(b) Create and use check lists;

(d) Generate reports;

(e) Create, manage and send notifications via:

(i) SMS;

(ii) Email; and

(iii) Oceanfarmr

(f) Create individual user accounts for Oceanfarmr and assign permissions and restrictions on that account to allow that individual to carry out any of the tasks listed between 4.2(a) to 4.2(e) above.

4.3 The User agrees and warrants that:

(a) It uses Oceanfarmr at its own risk;

(b) It indemnifies and will hold the Company harmless against all losses and consequential losses (including, without limitation, loss of business profits or goodwill or loss of opportunity), costs, claims, damages and expenses for any:

(i) Penalty imposed upon the User or Third Party;

(ii) Injury or illness to the User or Third Party;

(iii) Death of the User or Third Party;

(iv) Damage to the property of the User or Third Party;

(v) Claim of infringement of Intellectual Property Rights made by a Third Party;

(vi) Claim of breach of confidentiality by the User or Third Party;

(vii) Loss or corruption of information, data, or User Content;

(viii) Disruption of or loss in Use of Oceanfarmr,

(ix) Breach by the User of these Terms of Use,

as a direct or indirect result of the User’s use of Oceanfarmr.

4.4 The Company accepts no liability for the accuracy of any information made available using Oceanfarmr. Any reliance on the information available through Oceanfarmr is at the User’s own risk.

4.5 In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use Oceanfarmr or any content, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.

5 Fees

5.1 The User must pay the Fees to the Company for use of Oceanfarmr as and when the Fees fall due. Fees are non-cancellable and/or non-refundable once paid.

5.2 The User is not entitled to a pro-rata refund of any Fees if the User elects to stop using Oceanfarmr or is in breach of these Terms of Use.

5.3 The Company must issue the User with a Tax Invoice for Fees paid by the User.

6 Registration

6.1 The User must register an account in Oceanfarmr to use Oceanfarmr.

6.2 The Company may set any registration requirements in its absolute discretion.

7 Authorised Users

7.1 The User may authorise persons to access Oceanfarmr in its absolute discretion. The Company accepts no liability for access to User Content by persons authorised by the User or using login details of the User.

7.2 The User must maintain the security of its username and password for Oceanfarmr.

7.3 The User must notify the Company as soon as the User becomes aware of any unauthorised access to Oceanfarmr.

8 Confidential Information

8.1 Both the User and the Company acknowledge and agree that:

(a) Confidential Information is secret, confidential and valuable to the other party (Discloser);

(b) It owes an obligation of confidence to the Discloser in relation to the Confidential Information; and

(c) It must not disclose the Confidential Information of the Discloser to a third party, except as permitted by these Terms of Use, or if the Discloser provides prior written consent to the party to disclose the Confidential Information. Any consent may be conditional.

9 Intellectual Property and User Content

9.1 The Company is the owner or licensee of all right, title and interest in and to all Intellectual Property Rights in Oceanfarmr and all services provided on Oceanfarmr. You are not permitted to reproduce any content or materials from Oceanfarmr except in accordance with these Terms of Use, or where you have the prior written permission of the Company.

9.2 The Oceanfarmr name and logos are trade marks of the Company or its licensors as applicable. Nothing in these Terms of Use grants a User a right to use or otherwise deal with the Company’s trade marks.

9.3 When a User posts, uploads, publishes or makes available User Content to or on Oceanfarmr, the User acknowledges that it is solely responsible for such User Content. Each User further represents and warrants that it has the right, power and authority to post, upload, publish or make available that User Content without infringing on any Third Party rights.

9.4 You acknowledge and agree that You are responsible for any User Content including any harm caused to you, to another User or to any Third Party by such User Content. You also agree to maintain the accuracy, quality and legality of any User Content you post, upload, publish or make available on Oceanfarmr. The Company is not responsible for any User Content.

9.5 Oceanfarmr may contain information, content and/or links to Third Party websites which are expressed or made available by a Third Party or any other User. Such content is that of the respective author(s) and/or distributor(s) and not of the Company. The Company does not routinely screen or monitor such content, or any User Content and, as such, does not guarantee the accuracy, integrity, or quality of such content or User Content. The Company may, in its sole discretion, screen, monitor, hide, or remove any content, including User Content, that violates these Terms of Use or is otherwise objectionable.

9.6

9.7 You agree that you will:

(a) Not copy Oceanfarmr or the services that it provides for the User’s own purposes whatsoever; and

(b) Not directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in Oceanfarmr or any documentation associated with it.

9.8 If the Company ceases trading and can no longer meet its obligations under these Terms of Use, then the User will be provided access to a third party code repository containing an up to date version of the Oceanfarmr application.

10 Licence

10.1 Subject to the timely payment of Fees by the User to the Company, the Company grants to the User a limited, non-exclusive and revocable licence to access and use Oceanfarmr and User Content on a month-to-month basis.

10.2 The Company may amend the licence to the User in its absolute discretion, including by adding further terms or limitations (including the volume of use or transactions).

10.3 The Company may revoke or suspend the licence to the User if the User breaches these Terms of Use. The Company may notify the User of any revocation or suspension.

10.4 You retain all ownership rights in the User Content you publish to Oceanfarmr. To the extent permitted by the applicable law, you grant to the Company a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, distribute, edit or make derivate works of any User Content, in whole or in part, for the Approved Purposes, including sharing such User Content with Third Parties.

10.5 You also hereby grant a non-exclusive license to each User to access your User Content and to reproduce, distribute, and display such User Content to the extent permitted through the normal function of Oceanfarmr and subject to these Terms of Use and applicable law.

10.6

11 General Data

11.1 Security The User must not do anything to prejudice the security of the Company’s systems or information.

11.2 Storage The Company may limit the amount of data that the User stores in Oceanfarmr.

11.3 Backup The Company must perform backups of Oceanfarmr in as reasonable manner at such times and intervals as are reasonable for its business purposes.

12 Access

12.1 The User agrees that the Company will provide access to Oceanfarmr to the best of its abilities, however:

(a) Access to Oceanfarmr may be prevented by issues outside of its control; and

(b) The Company accepts no responsibility for ongoing access to Oceanfarmr.

12.2 The User may prepare for unscheduled unavailability of Oceanfarmr by:

(a) Keeping the User’s Oceanfarmr mobile app up to date; and

(b) Printing hard copies of reports.

13 Disclaimer – Third Party Information and Services

13.1 The User acknowledges that Oceanfarmr:

(a) Is dependent on third-party services, including but not limited to:

(i) Banks, credit card providers, BPAY;

(ii) Telecommunications services;

(iii) Hosting services;

(iv) Email services; and

(v) Analytics services.

(b) May provide links to Third Party websites.

13.2 The User agrees that the Company shall not be responsible or liable in any way for:

(a) Interruptions to the availability of Oceanfarmr due to third-party services; or

(b) Information contained on any linked Third Party website.

14 Force Majeure

14.1 If a party is prevented in whole or in part from carrying out its obligations under these Terms of Use as a result of Force Majeure, it will promptly notify the other party accordingly. The notice must:

(a) Specify the obligations and the extent to which it cannot perform those obligations;

(b) Fully describe the event of Force Majeure;

(d) Specify the measures proposed to be adopted to remedy or abate the Force Majeure.

14.2 Following a notice of Force Majeure in accordance with clause 16.1 and while the Force Majeure continues, the obligations which cannot be performed because of the Force Majeure will be suspended, other than obligations to pay money that is due and payable.

14.3 The party that is prevented from carrying out its obligations under these Terms of Use as a result of Force Majeure must remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible.

14.4 The party that is prevented from carrying out its obligations under these Terms of Use as a result of Force Majeure must take all action reasonably practicable to mitigate any loss suffered by the other party as a result of the party’s failure to carry out its obligations under these Terms of Use.

14.5 The term of these Terms of Use will not be extended by the period of Force Majeure.

15 Term

15.1

15.2 These Terms of Use are in effect during the period while the User is a subscriber to Oceanfarmr and pays the Fee.

15.3 The User agrees that deletion of Oceanfarmr may result in loss of information, data or User Content for which the Company is in no way liable.

16 General

16.1 Disclaimer Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in these Terms of Use.

16.2 Relationship The relationship of the parties does not form a joint venture or partnership.

16.3 Waiver No clause of these Terms of Use will be deemed waived and no breach excused unless such waiver or consent is provided in writing.

16.4 Assignment The User may not assign or otherwise create an interest in these Terms of Use. The Company may assign or otherwise create an interest in its rights under these Terms of Use by giving written notice to the User.

16.5 Governing Law These Terms of Use are governed by the laws of New South Wales.

16.6 Severability Any clause of these Terms of Use, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of the Terms of Use.