Terms & Conditions — Fred | Friends of Mr Ed

Friends of Mr Ed Terms and Conditions

Last modified: July 2020 v1.0

Introduction

Welcome to Friends of Mr Ed (hereinafter “Fred”) the digital platform for thoroughbred horse owners (Service). The Service is provided by Friends of Mr Ed Pty Ltd ABN 95 621 936 007 and your use is subject to these Terms of Service. Please read these Terms of Service carefully, as they set out the legal basis that allows you to use Friends of Mr Ed.

1. DEFINITIONS

1.1 The following terms are used regularly throughout these Terms of Service and have a particular meaning:

(a) ABN means Australian Business Number

(b) ACN means Australian Company Number

(d) Business Day means a day (other than a Saturday, Sunday or public holiday).

(e) Fees & Charges means the fees and charges as set out in clause 7

(f) General Conditions means the terms and conditions set out in the section of this Agreement entitled “General Conditions”.

(g) Intellectual Property means all rights (present and future) conferred by common law, equity or statute (and all moral rights) connected with business names, computer software, confidential information, copyright, designs, domain names, formulas, inventions, knowhow, patents, trademarks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.

(h) Privacy Act means the Privacy Act 1989 (Cth).

(i) Special Conditions means the terms and conditions set out in the section of this agreement entitled “Special Conditions”.

(j) User means a Horse Owner, Connection to a Horse Owner, a Trainer / Syndicator where implied by context in this Agreement.

(k) User Content means content that is entered into or created within the Service by the User.

1.2 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 this agreement 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.

(i) A reference to dollars or $ is to an amount in Australian currency

2. PARTIES

2.1 These Terms of Service form an agreement (Agreement) between Friends of Mr Ed Pty Ltd ABN 95 621 936 007 (Fred), and each Owner or Trainer / Syndicator (User or You).

3. PRIVACY POLICY

3.1 In accepting the terms of this Agreement, you also confirm that you have read and accept our Privacy Policy.

4. SERVICE

4.1 Description. The Fred mobile application is a service that allows Users to:

(a) Create and manage an account that enables them to:

i. View horses (horse) they own or are connected to an owner;

ii. Upload photos and other media of their associated horses (horse)

iii. View any scheduled race events for their associated horses;

iv. Communicate with other Users who are associated to the same horse;

v. Communicate with other Users who are associated to the same syndicate for a horse;

4.2 Availability. The Service is available:

(a) Mobile. From Apple’s App Store and Google Play Store and any other native or web-based mobile applications made available from time-to-time.

4.3 Term. Your license to access the Service shall be ongoing unless terminated by Fred in accordance with these Terms.

4.4 Limitations on Use. Fred may limit or restrict access to the Service from time-to-time on any basis as it sees fit, including (but not limited to):

(a) Age & Capacity. Only persons over the age of 18 may register as a User and all Users must be capable of forming binding legal contracts;

(b) Advertising. Fred may restrict access to the Service or suspend a profile of any User that seeks to advertise goods and/or services for sale.

(d) Inappropriate Conduct. Fred may restrict access to the Service if it determines in its sole discretion that a user’s conduct is inappropriate.

(e) Certification. Fred may limit access to the Service where it cannot, in its absolute discretion, verify the user’s identity; and/or

(f) Complaint. Fred may limit access to the Service in the event that it receives a complaint about a user.

5. REGISTRATION & VERIFICATION

5.1 Registration.

(a) A user of the Service must register as a User to access the Services; and

(b) Until registration as a User is confirmed by Fred you are not granted a license to access the Service.

5.2 Verification.

User’s may be required to verify their identity by (without limitation) email, telephone, residential or business address, social media, referrals, references and/or formal photographic identification. You agree to provide Fred with all necessary verifications we require to provide you with access to the Service.

6. USING THE SERVICE

6.1 Interacting with other Users.

(a) Owners, Connections of Owners, Trainers and Syndicators may communicate with each other via the Service.

(b) A User is under no obligation to use the Service.

(d) Fred accepts no responsibility for any interaction between Users, whether that interaction occurs via the Service or not (including a personal meeting).

(e) The User acknowledges that they use the Service at their own risk.

(f) Fred accepts no responsibility for the conduct of any User of the Service.

(g) Fred makes no warranty or representation as to the accuracy of any information provided by a User.

(h) Fred makes no warranty as to the character or credentials of any User.

(i) Fred makes no warranty that:

i. An Owner will be connected to another Owner; or

ii. An Owner will be contacted by a Trainer / Syndicator via the Service.

(j) Fred does not act as an agent for any User.

6.2 Lodging a Complaint.

(a) If you believe that another User’s behaviour is threatening, discriminatory, or deliberately offensive you may lodge a complaint to Fred via email at [email protected]

(b) Fred may suspend or remove the account of any User that Fred determines conducts themselves inappropriately.

(c) The decision whether or not to suspend or remove an account is at its absolute discretion of Fred. Fred’s decision shall be final and not subject to review.

7. FEES

7.1 Fees and Charges.

(a) While some features of the Service may be used free of charge, Fred may charge a fee for additional services, features and tools (Fee) in accordance with the pricing described on the App.

(b) Where a Fee applies to an ongoing subscription, Fred may change such a Fee at any time by giving you 14 days’ notice. These changes will become effective when you next make a payment through the App.

7.2 Payments. All payments must be made through the Service using the Service’s designed payment systems. Fred may restrict access to any or all features of the Service until funds have cleared.

7.3 Currency. All transactions are processed in Australian dollars by local and international payment providers. You accept that international payment processing fees may apply from your financial institution.

7.4 GST. If GST is applicable to any payment by a User to Fred, then:

(a) The fee is inclusive of GST; and

(b) Fred will provide the User with a Tax Invoice for its payment.

7.5 Refunds. No refunds are offered other than as required by law.

8. TERMINATION

8.1 Either party may end this Agreement at any time by written notice.

9. GENERAL CONDITIONS

9.1 Application

(a) This Agreement applies to use of and access to the Service.

(b) Where the User does not accept the terms and conditions of this agreement, the User must immediately cease using the Service.

(c) The terms & conditions of this Agreement may be updated by Fred in its absolute discretion from time-to-time, and unless stated otherwise by Fred in writing, such updates shall come into effect for use of the Service at the time the User is sent notice of the update(s).

9.2 Agreement

(a) By using the Service, the User acknowledges and agrees to:

i. The terms of this Agreement; and

ii. The Privacy Policy.

9.3 Service

(a) The Service is only accessible to the User for the term set out in Item 3

(b) The User agrees and accepts that the functional elements of the Service may be:

i. hosted by Fred and shall only be installed, accessed and maintained by Fred, accessed using the internet or other connection to Fred servers and is not available ‘locally’ from the User’s systems; and

ii. managed and supported exclusively by Fred from Fred servers and that no ‘back-end’ access to the Service is available to the User unless expressly agreed in writing.

(c) Fred reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter the Service.

9.4 License

(a) By accepting the terms and conditions of this agreement, the User is granted a limited, non-exclusive and revocable licence to access the Service for the duration of this agreement, in accordance with the terms and conditions of this agreement.

(b) Fred may issue the licence to the User on the further terms or limitations as it sees fit.

(c) Fred may revoke or suspend the User’s licence(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this agreement by the User. Fred will ordinarily advise the User of any suspension or revocation however it is under no obligation to do so.

9.5 Use. The User agrees that it shall only use the Service for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by Fred in its discretion.

9.6 Authorised Users

(a) The User shall authorise users to access the Service in its absolute discretion. Fred accepts no liability for access to User Content by users authorised by the User or using login details of users authorised by the User.

(b) The User is solely responsible for the security of its username and password for access to the Service.

(c) The User is responsible for ensuring that they comply with this agreement in full and are liable for any breach of them.

9.7 User Content

(a) Fred accepts no liability for the content of User Content.

(b) The User is responsible for the accuracy, quality and legality of User Content and the User’s acquisition of it, and the users that create, access and/or use User Content.

i. The User deletes the Service or no longer wishes to use it; or

ii. This Agreement is terminated.

9.8 Payments

(a) The terms of payment set out in Item 7.2 shall apply.

(b) Refunds are provided for in accordance with Item 7.5 or as required by law.

9.9 Data

(a) Security. Fred takes the security of the Service and the privacy of its users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of Fred’s systems or the information on them.

(b) Transmission. Fred shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards.

9.10 Access. By accepting the terms of this agreement, the User agrees that Fred shall provide access to the Service to the best of its abilities, however it accepts no responsibility for ongoing access to the Service.

9.11 Intellectual Property

(a) Trademarks

i. Fred has moral & registered rights in its trademarks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of Fred.

ii. Apple® AppStore® and other trademarks are the Intellectual Property of their respective owners.

(b) Proprietary Information. The Service may use software and other proprietary systems and Intellectual Property for which Fred has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of the Service.

(c) Service. The User agrees and accept that the Service is the Intellectual Property of Fred and the User further warrants that by using the Service the User will not:

i. copy the Service or the services that it provides for the User’s own commercial purposes; and

ii. directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in the Service or any documentation associated with it.

(d) Content. All content (other than User Content) remains the Intellectual Property, including (without limitation) any source code, usage data, ideas, feedback, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to the Service.

(e) Copyright. Bradley Photographers © and Atkins Photography © photos are supplied under non-exclusive limited licence for screen use only. Not to be printed.

9.12 Liability & Indemnity

(a) The User agrees that it uses the Service at its own risk.

(b) The User acknowledges that Fred is not responsible for the conduct or activities of any user and that Fred is not liable for such under any circumstances.

(c) The User agrees to indemnify Fred for any loss, damage, cost or expense that Fred may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with the Service, including any breach by the User of these Terms.

(d) In no circumstances will Fred 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 the Service or any content, or in any way relating to an experience itself (or the provision or non-provision of an experience), whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not Fred knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.

9.13 Termination. Expiry or termination of this agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this agreement up to the date of expiry or termination.

9.14 Disputes

(a) For any dispute between Fred and the User, the following process shall apply:

i. Negotiation. If there is a dispute between the parties relating to or arising out of this agreement, then within 5 Business Days of a party notifying the other party of a dispute, senior representatives from each party must meet (or if discuss directly via the telephone or internet) and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions;

ii. Mediation. If the dispute between the parties relating to or arising out of this agreement is not resolved within five Business Days of notification of the dispute under Clause 14.1, the parties must agree to submit the dispute to mediation, administered by lawyers engaged in alternative dispute resolution;

iii. Arbitration. If the dispute between the parties relating to or arising out of this agreement is not settled by mediation under Clause (b), either party may by written notice to the other refer the dispute to arbitration administered by the Institute of Arbitrators Australia. The arbitrator will be agreed between the parties from a panel suggested by the President of the Institute of Arbitrators Australia or failing agreement, an arbitrator will be appointed by the President of the Institute of Arbitrators Australia; and

iv. Court proceedings. A party may not commence court proceedings in relation to a dispute relating to or arising out of this agreement until it has exhausted the procedures in this clause (d) unless the party seeks appropriate injunctive or other interlocutory relief to preserve property or rights or to avoid losses that damages would otherwise be inadequate to compensate.

9.15 Notices

(a) The User can direct notices, enquiries, complaints and so forth to Fred as set out in this agreement. Fred will notify the User of a change of details from time-to-time.

(b) Fred will send the User notices and other correspondence to the details that the User submits to Fred, or that the User notifies Fred of from time-to-time. It is the User’s responsibility to update its contact details as they change.

(c) A consent notice or communication under this agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.

(d) Notices must be sent to the parties’ most recent known contact details.

9.16 Assignment

(a) The User may only assign or otherwise create an interest in their rights under this document with the written consent of Fred.

(b) Fred may assign or otherwise create and interest in their rights under this Agreement by giving the User written notice.

9.17 General

(a) Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.

(b) Formation. This Agreement is formed when the User acknowledges their consent to this Agreement, whether done electronically or physically.

(c) Prevalence. To the extent this Agreement is in conflict with, or inconsistent with, the terms of any other Agreement between the Company and the User, or any special conditions made under this Agreement, as relevant, the terms of those other agreements or special conditions shall prevail.

(d) 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 this agreement.

(e) Relationship. The relationship of the parties to this agreement does not form a joint venture or partnership.

(f) Waiver. No clause of this agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.

(g) Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this agreement and the transaction facilitated by it.

(h) Governing Law. This agreement is governed by the laws of the state set out in Item 10. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.

(i) Liability for Expenses. Each party must pay its own expenses incurred in negotiating, executing, stamping and registering this agreement.

(j) Inconsistency. If this agreement is inconsistent with any other document or agreement between the parties, this document prevails to the extent of the inconsistency.

(k) Counterparts. This agreement may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument.

(l) Time. Time is of the essence in this agreement.

(m) Severability. Any clause of this agreement, which is invalid or unenforceable is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this agreement.

END TERMS OF SERVICE