This End User Licence Agreement (referred to in this document as the EULA) is between you and Back Paddock Company Pty Ltd ACN 094 019 619
(Back Paddock). Your use of the Licenced Services is governed by this EULA. It is a legal agreement between you and Back Paddock.
In consideration for you Registering as a user of the Licenced Services, you confirm acceptance of this EULA. The date you Register will be the start date of this EULA. You cannot make any use of the Licenced Services unless you have accepted this EULA.
THE PARTIES AGREE:
Annual Subscription Fee means the amount you must pay to Back Paddock every 12 month period to use the Licenced Services. That amount is set out in your Registration.
Back Paddock Material means all electronic data, material and documentation provided to you by Back Paddock prior to and during your use of the Licenced Services, including all user guides.
Confidential Information means all information, data, drawings, specifications, documentation, software listings, source or object code which Back Paddock may have supplied and may from time to time supply to you relating to the Licenced Services or the Back Paddock Material. This includes all information in any form that is:
- (a) marked or identified as “Confidential”, “Secret”, “Not to be Disclosed” or “Private”;
- (b) is designated, described or referred to by Back Paddock in any document or correspondence as “Confidential”, “Secret”, “Not to be Disclosed” or “Private”; or
- (c) you know or should know is confidential to Back Paddock,
but does not include any information which, prior to the date of this EULA, was lawfully in the public domain or which Back Paddock has published, circulated or announced publicly, or was developed by you independently of Back Paddock.
Intellectual Property Rights means all rights in copyright, circuit layout, designs, trade marks, patents and all other rights in intellectual property as defined in Article 2 of the World Intellectual Property Organisation (WIPO) Convention whether registrable, registered, patentable or not.
Licenced Services means the online web-based applications and services that you have requested Back Paddock supply to you from the Opterra suite of applications (as detailed in your Registration), and includes all agronomic information and electronic imagery supplied by Back Paddock.
Registration occurs when Back Paddock has accepted your subscription for registration as a new or existing user of the Licenced Services after payment of the Annual Licence Fee by you. Register, Registering, Registered and other similar grammatical variances of this word have the corresponding meaning of this concept in the context they are used.
SLA means the Service Level Agreement (as may be updated from time to time) which describes the levels of availability and support that Back Paddock will provide to you, a copy of which can be obtained here. Back Paddock Company Service Level Agreement
Third Party Applications means online, web-based applications and offline software products that are:
- (a) provided by third parties to you; and
- (b) integrated with the Licenced Services, whether or not they are identified to you by Back Paddock as applications that are provided by third parties. you means any party who is Registered. Without prejudice to the requirements of Back Paddock’s Registration policies, when:
- (a) there is more than one party involved in that instance of Registration, those parties are jointly and severally liable to Back Paddock;
- (b) you are an individual, the expression includes your personal representatives, employees and agents;
- (c) the Registered party is a corporation, the expression includes the employees, agents and successors of the corporation;
- (d) the Registered party is a partnership, the expression includes the partnership as it is constituted at the date of its Registration and each of its members and also the successors of the partnership whether comprising the same of a different name and each of the members of the partnership or its successors as it may be constituted from time to time; and
- (e) the Registered party is or becomes a trustee (whether or not that fact is disclosed to Back Paddock), the expression includes the party in its personal capacity as well as its capacity as a trustee.
In this EULA, your, yours and other grammatical variances of these terms have the corresponding meaning of this concept in the context they are used.
your Data means all electronic data or information submitted by you when use is made of the Licenced Services. Your Data includes your personal information, your trade secrets and your confidential information.
your Network means the network of websites, web services or content delivery platforms accessed or used by you with the Licenced Services.
2. LICENCED SERVICES
2.1 Provision of the Licenced Services
- (a) Back Paddock will make the Licenced Services available to you on the terms and conditions of this EULA for as long as you are Registered.
- (b) You acknowledge that this EULA does not constitute a sale of any aspect of the Licenced Services to you.
- (c) You agree that your use of the Licenced Services does not depend on the delivery of any future functionality or features by Back Paddock
2.2 Device access
- (a) You may access the Licenced Services on any device that has the relevant capabilities.
- (b) Back Paddock does not warrant that any of the Licenced Services will be available by way of access from any particular device.
- (c) You acknowledge that you may be required to have and maintain an internet or data connection to access the Licenced Services.
Back Paddock grants to you a personal, non-assignable and non-exclusive licence to use the Licenced Services in accordance with this EULA for the period you are Registered. This licence is granted for the sole purpose of enabling you to enjoy the features of the Licenced Services in the manner contemplated by this EULA, and cannot be sub-licenced without Back Paddock’s prior written consent.
2.4 Back Paddock Material
If you require the use of any Back Paddock Material, it will be made available to you through either the Licenced Services or via links on the Back Paddock website (in the case of user guides). Some Back Paddock Material may be downloaded in PDF format or viewed as videos on the Back Paddock website.
3. PERIOD OF THIS EULA & RENEWAL
- (a) You are permitted to access and use the Licenced Services for a 12 month period starting on the date you are Registered.
- (b) You may renew the first 12 month period for further 12 month periods by paying the Annual Licence Fee to Back Paddock before the end of the relevant 12 month period.
- (c) You right to access and use the Licenced Services under this EULA is subject to earlier termination as provided for in clause 15.
4. ANNUAL LICENCE FEE & INVOICING
Back Paddock will give you an invoice for the Annual Licence Fee 30 days before the end of each 12 month period of this EULA, which must be paid by you in accordance with the terms of the invoice. If you do not pay an invoice, your access to and use of the Licenced Services will automatically end.
5. USE OF THE LICENCED SERVICES
5.1 Your responsibilities
You are entirely responsible for:
- (a) your access to the Licenced Services;
- (b) your use of the Licenced Services;
- (c) your compliance with this EULA;
- (d) the appropriateness, accuracy, quality and legal integrity of your Data;
- (e) the means by which you acquired your Data;
- (f) your use of any Third-Party Applications; and
- (g) your use of any data or information provided to you by third-parties during your access to and use of the Licenced Services, such as weather information or advice from agronomists.
5.2 Prevention of misuse
- (a) use commercially reasonable efforts to prevent unauthorised access to or use of the Licenced Services, and notify Back Paddock promptly of any such unauthorised access or use;
- (b) not seek to circumvent Back Paddock’s methods intended to control access to the Licenced Services;
- (c) not operate or develop patches, software or applied programming interfaces that are intended to augment or alter the Licenced Services in a manner that is not intended or not authorised by Back Paddock; and
- (d) use the Licenced Services only in accordance with applicable laws.
5.3 Restrictions on your use of the Licenced Services
You must not:
- (a) make the Licenced Services available to any person unless they are also Registered;
- (b) sell, resell, rent or lease access to the Licenced Services;
- (c) use the Licenced Services to store or transmit infringing, unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
- (d) use the Licenced Services to store or transmit harmful code or harmful software, such as viruses, worms, time bombs or Trojan horses;
- (e) interfere with or disrupt the integrity or performance of the Licenced Services or any Third-Party Applications; or
- (f) attempt to gain unauthorised access to the Licenced Services or Back Paddock’s related systems or networks.
5.4 Usage limitations
The Licenced Services may be subject to usage limitations, such as limits on storage space. This will depend on the Licenced Services provided to you under this EULA. You must comply with any usage limitations imposed by Back Paddock.
5.5 Access information & passwords
- (a) You must keep your passwords and any confidential user identification that you use to access the Licenced Services, secure.
- (b) You are solely responsible to Back Paddock for all activities that occur in respect of your user account for the Licenced Services, and if you become aware of unauthorised use of your user account for the Licenced Services, you must notify Back Paddock immediately.
5.6 Software versions & updates
You acknowledge and agree that:
- (a) there are multiple instances of software supporting and underpinning the Licenced Services;
- (b) Back Paddock will make that software available to you to assist your use of the Licenced Services; and
- (c) that Back Paddock will update that software from time to time in accordance with the SLA.
As a condition of your use of the Licenced Services, you must use the latest versions of any of Back Paddock’s software made available to you for that use. You also consent to Back Paddock updating the Licenced Services automatically without notifying you.
6. THIRD PARTY APPLICATIONS
- (a) If you install or enable Third-Party Applications for use with the Licenced Services, you agree that Back Paddock may allow providers of those Third-Party Applications to access your Data as required for the interoperation of those Third-Party Applications with the Licenced Services.
- (b) Back Paddock is not responsible for any disclosure, modification or deletion of your Data resulting from access by Third-Party Application providers to your Network.
- (c) Back Paddock does not warrant or support any Third-Party Applications.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 Back Paddock Intellectual Property Rights
Back Paddock owns all Intellectual Property Rights in the Back Paddock Material and the Licenced Services. No Intellectual Property Rights are granted to you in this EULA other than the usage rights for the Licenced Services and the Back Paddock Material that are expressly described in this EULA.
7.2 Trade marks
You must not use, alter, remove or obscure any trade mark, logos, domain names or brands on the Back Paddock Material and the Licenced Services.
7.3 Ownership of your Data
Subject to the licences you have granted to Back Paddock in this EULA in respect of your Data, you own all rights, title, and interest in and to all of your Data.
7.4 Other Intellectual Property Rights
During your use of the Licenced Services, you must not utilise content in a way that infringes the Intellectual Property Rights of third parties. You must obtain the consent of the owner of the relevant Intellectual Property Rights in respect of the content you intend to use. You acknowledge that Back Paddock is not liable to you or to any third party for your use of content in breach of this clause 7.4
You must not:
- (a) access, or permit any third-party to access, the source code of the software in respect of the Licenced Services;
- (b) copy, modify, create derivate works of, reverse engineer, decompile or otherwise attempt to extract the source code of the software in respect of the Licenced Services;
- (c) access the Licenced Services to build a competitive product or service;
- (d) copy any features, functions or graphics of the Licenced Services; or
- (e) act in a manner that is otherwise inconsistent with the Intellectual Property Rights of Back Paddock.
You grant to Back Paddock a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to use or incorporate into the Licenced Services any suggestions, enhancement requests, recommendations or other feedback provided by you relating to the operation of the Licenced Services.
8. CONFIDENTIAL INFORMATION
- 8.1 You agree that Back Paddock owns its Confidential Information and you must treat it as secret and confidential at all times, both during the period of this EULA and after it ends. You must not disclose or use any Confidential Information for any purpose outside the scope of this EULA.
- 8.2 You can only disclose Back Paddock’s Confidential Information to your employees and contractors who need to access such information so that you can exercise your rights and obligations under this EULA.
9. INFORMATION RIGHTS & PUBLICITY
- 9.2 Back Paddock will not share your Data with any third-parties unless Back Paddock:
- (a) has your consent;
- (b) is permitted to do so under applicable privacy laws; or
- (c) provides your Data in certain limited circumstances to third-parties to carry out tasks on Back Paddock’s behalf (eg: billing or data storage) with strict restrictions that prevent your Data from being used or shared, except as directed by Back Paddock. If this occurs, Back Paddock will ensure it is subject to agreements that oblige those parties to process your Data only on Back Paddock’s instructions, and in compliance with this EULA and appropriate confidentiality and security measures.
- 9.3 By Registering, you consent to the transfer of your Data to a country outside of the country you reside in.
10. BACK PADDOCK’S REPRESENTATIONS & WARRANTIES
10.1 Paddock represents and warrants that:
- (a) it has the right to licence the Back Paddock Material and the Licenced Services to you under this EULA; and
- (b) your use of the Back Paddock Material and the Licenced Services will not infringe the Intellectual Property Rights of any third party.
11. YOUR WARRANTIES, OBLIGATIONS & ACKNOWLEDGEMENTS
- 11.1 You warrant that you have not relied upon any representation made by Back Paddock, other than as set out in this EULA.
- 11.2 You cannot sell, charge, mortgage or otherwise encumber the Back Paddock Material and the Licenced Services in any way.
- 11.3 You acknowledge that Back Paddock gives no guarantee about the accuracy or completeness of the Back Paddock Material and the Licenced Services.
- 11.4 You are entirely responsible for checking the accuracy or completeness of information contained within the Back Paddock Material and the Licenced Services, including any information provided to you by third-parties during your access to and use of the Licenced Services, such as weather information or advice from agronomists.
- 11.5 Back Paddock does not warrant that the Licenced Services will be free from viruses.
- 11.6 You are solely responsible for virus scanning the Licenced Services.
12. SERVICE LEVELS
- 12.1 Service level support
- Back Paddock will support the Licenced Services in accordance with the SLA. The SLA is incorporated into and forms part of this EULA. In addition to the other support services specified in the SLA, Back Paddock will:
- (a) perform internal backups of your Data every day you are Registered. Your Data is stored securely onsite and will be retained for 7 days before being deleted;
- (b) perform external offsite backups of your Data every day you are Registered. Your Data is stored securely offsite at 2 separate locations and will be retained for 30 days before being deleted;
- (c) ensure a 99.9% “uptime” for the Licensed Services, calculated in accordance with the SLA;
- (d) provide help desk support and problem management as described in the SLA; and
- (e) rectify material issues with the Licenced Services in accordance with the SLA. Back Paddock will not rectify any issues where:
- (i) the issue has been caused by your use of the Licenced Services in a manner that is contrary to Back Paddock’s training, instructions or this EULA;
- (ii) you have made unauthorised changes to the configurational or setup of the Licenced Services;
- (iii) you have prevented Back Paddock from performing maintenance on the Licenced Services;
- (iv) the issue has been caused by third-party products; or
- (v) the issue has been caused by you modifying any part of the Licenced Services or by adding, deleting or assigning improper rights to users.
- 12.2 You agree that the existence of any errors in the Licenced Services does not constitute a breach of this EULA.
- 12.3 If there is any inconsistency between this EULA and the SLA, this EULA will prevail but only to the extent of that inconsistency.
13. LIMITATION OF LIABILITY
- 13.1 to clause 13.2, to the fullest extent permitted by Law, Back Paddock expressly excludes all implied warranties and conditions including (without limitation) implied warranties as to the merchantability or fitness for purpose of the Back Paddock Material and the Licenced Services.
- 13.2 the extent that any liability of Back Paddock under the Competition and Consumer Act 2010 (Cth) or at law cannot be excluded, Back Paddock’s liability is limited to either:
- (a) supplying the Back Paddock Material and/or the Licenced Services to you under this EULA again; or
- (b) paying the cost of having another person provide again to you similar material as the Back Paddock Material and/or similar services as the Licenced Services.
- 13.3 To the fullest extent permitted by law, Back Paddock excludes all liability for indirect and consequential loss including without limitation the loss or corruption of any software, loss of revenue, loss of profits, failure to realise expected profits or savings and any other commercial or economic loss of any kind arising from this EULA or the provision of any services by Back Paddock.
- 14.1 You indemnify and hold harmless Back Paddock and agree to keep Back Paddock indemnified against any loss, claim, action, settlement, award, judgment, expense or damage of any kind or nature and however arising, that Back Paddock might suffer as a result of or in connection with:
- (a) your use of the Back Paddock Material;
- (b) your use of the Licenced Services;
- (c) your breach of any provision in this EULA; or
- (d) any unauthorised use of the Back Paddock Material or the Licenced Services.
15.1 Termination by Back Paddock
- (a) Your access to and use of the Licenced Services will automatically end if you fail to pay the Annual Licence Fee to Back Paddock in any 12 month period.
- (b) Back Paddock may immediately terminate this EULA by giving you written notice if:
- (i) you breach any provision of this EULA and fail to remedy the breach within 7 days of receiving notice requiring you do so;
- (ii) Back Paddock is required to terminate this EULA by law or the operation of the Licenced Services becomes unlawful;
- (iii) you become bankrupt, are wound up, have an administrator appointed, a receiver appointed to any of your assets, enter into any arrangement, assignment or composition with any of your creditors or become insolvent; and/or
- (iv) you cease to carry on your business, or there is a change in the control of or ownership of your business.
15.2 Termination by you
You may terminate this EULA by de-Registering as a user of the Licenced Services, and upon doing so, your access to and use of the Licenced Services will automatically end. If you de-Register as a user before the end of any 12 month period of this EULA, Back Paddock will not refund the Annual Licence Fee that you have paid in relation to that period.
15.3 Resuming your use of the Licenced Services
If you wish to resume your use of the Licenced Services, you will need to Register and pay the Annual Licence Fee, and this EULA will apply to that resumed use.
Following expiry or termination of this EULA, the parties agree that the following provisions will continue to be binding: Clauses 1, 6(b), 7, 8, 9, 11, 13, 14, this clause 15.4, and clause 16.
16. GENERAL PROVISIONS
16.1 Law and jurisdiction
This EULA is governed by the laws of Queensland and any claim made by one party against the other arising out of this EULA will be heard in Queensland, and the parties submit to the jurisdiction of those Courts.
Nothing in this EULA will constitute or be deemed to constitute a partnership, joint venture or agency between the parties.
16.3 Entire agreement
This EULA constitutes the entire agreement between the parties and supersedes all prior understandings and agreements concerning its subject matter.
No waiver of any right or remedy will be effective unless in writing and shall not operate as a
16.5 Implied terms
Any implied term under law that can be excluded is hereby expressly excluded and no term is to be implied as being a term of this EULA unless by law it cannot be excluded.