Terms & Conditions
Nutrogen Licence Agreement
Nutrogen Labs Pty Ltd ACN 680 671 416
Background
We are Nutrogen Labs Pty Ltd ACN 680 671 416 (Nutrogen Labs, we, our, us and other similar terms). We provide a platform that enables Clients and its Branches to offer customisable nutrition software services to its Users, known as Nutrogen (Nutrogen).
This Agreement outlines the terms and conditions associated with your use and sublicensing of Nutrogen. It is your obligation to ensure that you have read, understood and agree to the most recent terms available on our Website.
Agreement
Accepting this Agreement
By creating a Nutrogen Account, you agree to comply with and be legally bound by the terms and conditions of this Agreement. If you do not agree to these terms, you have no right to continue using Nutrogen.
You must not use Nutrogen if you are not able to form legally binding contracts. If you create an Account on behalf of your employer or any other entity, you represent and warrant you hold authority to enter into this Agreement on behalf of that entity and that the entity will comply with the obligations contained herein.
About this Agreement
Throughout the Agreement we use some capitalised words and phrases, like the word Agreement. These capitalised words and phrases are defined throughout this Agreement and in clause 17. They aid to clarify the terms and conditions.
Please feel free to contact us through our Support Portal if you have any questions.
Term
This Agreement will commence when you create a Nutrogen Account and will continue for the Subscription Period or until the date of termination of this Agreement in accordance with clause 14.
If this Agreement is not terminated in accordance with clause 14, prior to the expiry of the then current Subscription Period, this Agreement will automatically renew for a period equal to the current Subscription Period.
Trial Services
We may make Nutrogen available to you, free of charge, solely on a demonstration or trial basis (Trial Services).
Unless otherwise agreed in writing, the trial period commences from the time an Account is created and terminates in 7 days (Trial Period), unless otherwise specified within the app. Access to Nutrogen will automatically cease at the expiration of the Trial Period.
We provide the Trial Services “as is” and without warranty or indemnity, to the maximum extent permitted by law, and all other terms of this Agreement otherwise apply.
Use of Nutrogen
Nutrogen licence
We grant you a non-exclusive, revokable and worldwide right to use, market, sell and sublicence Nutrogen solely for your own internal business purposes, subject to the terms and conditions of this Agreement and in accordance with any applicable Usage Restrictions, Special Conditions and features of the Subscription Package which you procure.
The version of Nutrogen which you are allowed to sublicence under this clause 5.1 is a version which has been “white labelled” using your or any of your Branch’s own branding and content.
The right to sublicence set out in this clause 5.1 is limited. Licences for Nutrogen may only be granted by you to your Branches, with a limited right to sub-licence to the Users of the Branches; and Users, without any right to sub-licence.
Add-On licence
Add-Ons may be procured via Nutrogen. The inclusions, price and term are defined at time of purchase and available in app or on the Website.
You acknowledge and agree that the license to use the Add-Ons terminates no later than the termination of this Agreement and any refunds available are set out in clause 14.2.
Any terms associated with the procurement of an Add-On are Special Conditions to this Agreement with respect to that Add-On.
Account registrations
You acknowledge and agree that in order to get access to Nutrogen, you, your Branches and your Users are required to create Accounts.
You warrant all information supplied on registration of an Account by you is true and accurate and will be kept up to date at all times.
You must ensure that the terms of any sublicence granted to your Branches or your Users require the Branch or User (as the case may be) to warrant that all information supplied on registration of an Account by that Branch or User are true and accurate and will be kept up to date at all times.
Account security and credentials
You agree that you will use reasonable endeavours to keep all Account details strictly confidential.
You must ensure that the terms of any sublicence granted to your Branches or your Users require the Branch or User to use reasonable endeavours to keep Account details strictly confidential, including those credentials used to access Nutrogen.
You are responsible for your, your Branches’ and your Users’ Account activities which occur via Nutrogen, whether those activities are authorised or not, unless they arise from a technical issue within Nutrogen.
Lawful use of Nutrogen
You must ensure you use Nutrogen in accordance with any Usage Restrictions.
To the extent configuration options are made available to you, you undertake, and will ensure that your Branches will undertake, not to provide, upload or store any data on or via Nutrogen if such access or storage would infringe a person’s Intellectual Property rights; breach any privacy law; or breach any other law or applicable code (including any common law, statute, delegated legislation, rule or ordinance of the jurisdiction in which we, you, your Branches or your Users operate).
Conduct which is expressly prohibited
You must not, and must make provisions to prohibit your Branches and your Users from:
in any way tampering with, hindering or modifying Nutrogen other than to the extent configuration options are made available;
knowingly transmitting any viruses or other disabling features to or via Nutrogen;
integrating with Nutrogen other than via the facilities made available by Nutrogen Labs;
intentionally disabling or circumventing any protection or disabling mechanism of Nutrogen;
installing or storing any software applications, code or scripts on or through Nutrogen other than via the user interface provided in accordance with any training material that may be provided;
using Nutrogen in any way which could be reasonably expected to interfere with or damage Nutrogen, any other operator's systems, or another user's enjoyment of Nutrogen; or
attempting, facilitating or assisting another person to do any of the above acts.
Prohibited Content
You undertake and must ensure that your Branches and your Users undertake not to submit content to Nutrogen:
which is improper, harmful, threatening, defamatory, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, hateful, or otherwise objectionable;
which includes explicative or inappropriate language;
containing any computer virus or malicious code;
which infringes any third party Intellectual Property rights;
in breach of, or which may result in Nutrogen Labs being in breach of, any privacy law;
that is likely to offend, insult or humiliate based on race, religion, ethnicity, gender, age or sexual orientation; or
in breach of any clause of this Agreement.
We reserve the right to take down and destroy any Prohibited Content, in our sole discretion, and without notice. It is entirely your responsibility to keep copies of any content uploaded to Nutrogen.
Right to suspend
We reserve the right to limit or suspend all or part of your access to Nutrogen and alter your Account information, if in our reasonable opinion:
(a)unknown nodeyou are in breach of any material term of this Agreement;
(b)unknown nodeyour Account information is incomplete;
(c)unknown nodeyour Account is not used for a period of greater than 12 months; or
(d)unknown nodewe suspect a security breach associated with your Account.
Suspending your Account will not constitute a breach of this Agreement by us.
Client obligations
You must ensure that each Branch and User to whom you sublicense Nutrogen, agrees to terms of use which incorporates any provision contained in this Agreement which: imposes an undertaking on; or demands a warranty from, the Branch or User.
Payment
Unless expressed otherwise, Fees are quoted in Australian Dollars and are exclusive of GST, withholding taxes, duties and charges imposed or levied in Australia, or overseas, in connection with this Agreement.
You are responsible for all bank fees and charges applied by the payment gateway provider, which you use.
All Subscription Fees and applicable GST, must be paid at the beginning of each Subscription Period.
All Per User Fees and applicable GST, must be paid at the end of the Per User Fees Payment Period.
Any Add-Ons that are paid on a once-off basis must be paid at the time they are incurred.
Any Add-Ons that are paid on a periodic basis must be paid in advance, each month, until termination of this Agreement or the use of the Add-On in accordance with its terms.
App Marketplace Providers
Nutrogen Labs branded mobile applications
This clause 8.1 applies to Nutrogen Labs branded mobile applications only.
Nutrogen may consist of mobile applications that may be available from Google Play and the Apple App Store (App Marketplace Providers).
The terms herein are between Nutrogen Labs and the Client. Nutrogen Labs, and not the App Marketplace Provider, are responsible for the Nutrogen Labs mobile apps, and Nutrogen Labs is solely responsible for:
its support and maintenance;
the investigation, defence, settlement and discharge of any claim which relates to an infringement of third-party Intellectual Property rights arising from the use of Nutrogen mobile apps; and
any claim the Nutrogen mobile apps fail to conform to any applicable legal or regulatory requirement, including product liability claims and claims arising under consumer protection laws.
The App Marketplace Provider’s liability to the Client is limited to the refund of the purchase price of the Nutrogen mobile app and any other remedies under consumer protection law. The Client’s right to use the mobile components of the Nutrogen mobile apps is non-transferable and non-sublicensable, except to the extent the App Marketplace Provider permits family sharing or like sharing arrangements.
The App Marketplace Provider may monitor the Client’s use of the Nutrogen mobile apps and is entitled to enforce the terms of this Agreement against the Client. The Client agrees to submit to their legitimate enforcement activities.
If there is any inconsistency between this Agreement and the application use rules set out in the App Marketplace Provider’s terms of service, their terms of service will prevail to the extent of the inconsistency.
The Client represents and warrants that they are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and the Client is not listed on any U.S. Government list of prohibited or restricted parties.
Client branded mobile applications
This clause 8.2 applies only if you procure Client or Branch branded mobile application version/s of Nutrogen.
We may publish the white labelled mobile application through our App Marketplace Provider account, if the feature is procured by you as an Add-On.
You are solely responsible and must ensure that you and your Branches that have procured a white labelled version of the Nutrogen mobile application maintain mobile application terms of use which are satisfactory to the App Marketplace Providers and a privacy policy which is satisfactory to the App Marketplace Providers.
Support and maintenance
Support
While you maintain a valid licence to Nutrogen, we will provide support to assist you with your and your Branches’ use of Nutrogen, which can be accessed via the Support Portal.
The parties acknowledge and agree:
you are responsible for responding to “first line support” with your Branches and Users;
any system errors or bugs identified with a Branch or User’s use of Nutrogen must be referred to us by your own staff; and
we are under no obligation to respond to queries direct from your Users or Branches.
Outages and maintenance
You acknowledge Nutrogen operates using Third Party Infrastructure. From time to time, Third Party Infrastructure may become inaccessible or unavailable. We neither control nor are we liable for faults in Third Party Infrastructure, the telecommunication services needed to access it, nor the consequences which arise from faults in either.
If it is necessary to interrupt your use of Nutrogen, We will endeavour to provide reasonable notice (where possible) of when, and the anticipated duration for which, Nutrogen will be unavailable.
You acknowledge that access to Nutrogen may be changed, interrupted or discontinued for many reasons, some of which are beyond our control and during routine maintenance, there may be updates to Nutrogen which may change the interface and manner in which it functions.
To the maximum extent permitted at law, we are not liable for any loss, foreseeable or not, arising from any interruption to Nutrogen, whether planned or not, and any such temporary interruptions will not constitute a breach of this Agreement.
Privacy
You agree and consent to us handling of Personal Information in accordance with our Privacy Policy. We may amend our Privacy Policy in our sole discretion. Where the Privacy Policy is amended the new version will be posted to the Website.
Intellectual Property
Nutrogen Labs’ warranties regarding Intellectual Property
We retain all right, title, and interest in and to Nutrogen. We warrant we own or have a licence to use the Intellectual Property in Nutrogen.
Client warranties regarding Intellectual Property
You warrant you will not do any of the following, you will obtain an undertaking from your Branches and Users to not do any of the following and you will not permit any person over whom you have effective control to:
copy or reproduce, or create an adaptation or translation of, all or part of Nutrogen in any way;
sell, license, sublicense, lease, rent, distribute, disclose, permit access to, or transfer to any third party, whether for profit or without charge, any portion of Nutrogen on any medium, except as authorised by this Agreement;
directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, content, architecture, or algorithms contained in Nutrogen other than for the sole purpose for which the licence was granted; or
assist anyone in doing any of the above.
Modifications and feedback
You acknowledge and agree, we are intended to own all Intellectual Property rights in all modifications to Nutrogen, including those which arise from your, your Branches’ or your Users’ feedback, commentary or reviews and whether those modifications are provided for, by or on behalf of you, a Branch or User.
To the extent that you may at any time acquire any right, title or interest in any part of Nutrogen, you immediately assign to us all such right, title and interest.
Client Data
You:
own all right, title and interest in and to all Client Data;
grant us a non-exclusive, perpetual and limited licence to use Client Data as necessary to perform our obligations under and in accordance with this Agreement;
warrant that you have all rights and consents necessary to grant such licence and that your collection and use of Client Data complies with applicable laws; and
acknowledge and agree that we may share Client Data with third party service providers in order to operate Nutrogen.
Warranties
Subject to the Non-excludable Conditions and to the fullest extent permitted under the law, we make no warranties or guarantees that Nutrogen is fault free, regarding Nutrogen’s fitness for any particular purpose which we have not expressed, or regarding your access to, or the results of your access to, Nutrogen including its correctness, accuracy, timeliness, completeness, reliability or otherwise.
Limitation of liability
Implied conditions
We expressly exclude all conditions, warranties and other terms which might otherwise be implied by any law, regulation, statute, common law or law of equity except any Non-excludable Condition.
Exclusion of liability
Subject to the Non-excludable Conditions, we exclude all other liability for any costs, including consequential loss, suffered or incurred directly or indirectly by you in connection with this Agreement, including:
services provided by you or your Branches, to Users;
any software integrated with Nutrogen which was not provided by us;
Nutrogen being temporarily inaccessible to you, your Branches or Users for any reason;
any unauthorised activity in relation to Nutrogen;
the occurrence of an Event of Force Majeure;
security vulnerabilities in Nutrogen or any breach of security that results in unauthorised access to or corruption of data; or
failure of any third party component including, without limitation, applications, websites, website content, application programming interfaces, Third Party Infrastructure, hardware failure, network failure, or power failure.
Limits to liability
To the maximum extent permitted at law, our aggregate cumulative liability arising out of or related an issue arising under this Agreement will be limited to in the case of goods, the re-supply of the goods or payment of the cost of the re-supply of the goods; or the replacement or repair of the goods or payment of the cost of replacement or repair of the goods; and in the case of services, the resupply of the services; or the payment of the cost of having the services resupplied.
Termination
Termination
Either party may terminate this Agreement if the other party commits a material breach of this Agreement and the breach is incapable of being remedied or if the breach is capable of being remedied, the party in breach has failed to remedy the breach within 14 days after the receipt of notice to remedy.
We may end this Agreement if your Account remains suspended for a period of more than 30 days or prior to any Subscription Period in which case this Agreement ends at the end of the then current Subscription Period.
You may terminate this Agreement with us immediately by closing your Account or notifying us in writing, in which case this Agreement ends at the end of the then current Subscription Period.
Effect of Termination
Upon termination you, your Branches and your Users will no longer have access to Nutrogen; We will remove any mobile version of any application we currently host; and we reserve the right to remove the Client Data from Nutrogen at any time following termination.
You are solely responsible for taking an extraction of any Client Data held in Nutrogen, which you deem necessary to maintain, prior to termination.
Upon termination of this Agreement, any active Add-Ons will be immediately terminated. You will be entitled to a pro-rated refund of any unused portion of Add-On Fees for Add-Ons paid on a periodic basis, calculated based on the remaining period of the subscription or access term of that Add-On. Add-On Fees for those Add-Ons paid on a once-off basis, will not be refunded, unless otherwise required by law.
Dispute resolution
A party claiming a dispute has arisen under this Agreement (Dispute) must give written notice to the other party specifying the nature of the Dispute. The parties must submit themselves to the dispute resolution procedure set out in this clause 15 before commencing any legal proceedings.
If the parties cannot resolve the Dispute between themselves within 30 days, then either party may require the Dispute to be referred for mediation. The mediation must be undertaken in accordance with the Resolution Institute Mediation Rules, within the jurisdiction of the Agreement and, unless otherwise agreed between the parties, using a mediator nominated by the Resolution Institute. If the Dispute is not resolved within 30 days of the mediation commencing either party may commence proceedings in respect of the Dispute.
Each party must pay its own internal and legal costs in relation to complying with this clause 15. The mediator’s costs are to be shared equally.
The parties acknowledge and agree this clause 15 does not apply to the recovery of any debt or prevent a party from instituting proceedings for the purposes of seeking urgent injunctive or similar interim relief from a court.
General Provisions
Assignment - Neither party may assign, encumber, declare a trust over or otherwise create an interest in its rights in this Agreement without the other party’s consent, which must not be unreasonably withheld.
Entire Agreement - This Agreement and (if applicable) any Special Conditions contain the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect.
Governing law - The laws of Queensland govern this Agreement. The parties submit to the exclusive jurisdiction of courts exercising jurisdiction there.
Notices - The parties agree all notices, disclosures and other communications that are provided in accordance with this clause, satisfy any legal requirement that such communications be in writing. Any communication under or in connection with this Agreement:
which we send to you, will be sent to the email address provided to us in your Account and by accepting these terms you give your consent to receive communications from us by email; and
which you send, must be either delivered or posted by prepaid post to our registered office or sent by email to our email address: support@nutrogen.io.
Relationship - Nothing in this Agreement is intended to create or be construed as creating a relationship of agency, joint venture or partnership between any of the parties.
Severability - Any provision of this document which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this document enforceable, unless this would materially change its intended effect.
Special Conditions – Special Conditions operate as terms in addition to the terms contained in this Agreement. If there is any inconsistency between any Special Conditions and any other term contained in this Agreement, the effect of the Special Conditions prevail over any inconsistent term to the extent of that inconsistency.
Variations to this Agreement - We may vary this Agreement (including the alteration of Fees and/or Usage Restrictions) by giving written notice to you. If you do not accept the terms of the variation, you may terminate your subscription in accordance with clause 14. The variation takes effect at the beginning of the next Subscription Period.
Definitions
Unless the terms and conditions of the Agreement state otherwise, the following expressions used in this Agreement have the following meanings:
Account or Nutrogen Account means the username and access credentials used by the Client, its Branches or Users, to access Nutrogen.
Add-Ons means in app-purchases made available to the Client through Nutrogen, as set out on our Website or in-app as the case may be.
Add-On Fees means the once-off or periodic fees payable by the Client for the purchase of Add-Ons, as set out on our Website or in-app as the case may be.
Agreement means these terms and any document incorporated into them by reference.
Branch means any business, location, facility or entity that operates as part of, or in connection with, the Client’s business or under its brand, including those with a contractual or operational relationship with the Client, and has been granted access to Nutrogen by the Client.
Business Day means a day other than a Saturday, Sunday or public holiday in the place where the obligation is to be fulfilled.
Client, you or your means the person or entity signing up to this Agreement.
Client Data means any data entered into, or reports generated from, Nutrogen, solely for the Client’s purposes. For the avoidance of doubt, Client Data excludes all algorithms, rules, engines, database schemas and repositories.
Fees mean Subscription Fees, Per User Fees and/or Add-On Fees.
Force Majeure Event means an unforeseen event beyond the control of the affected party, including an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, health epidemic or pandemic, hacking, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware, ransomware or other malicious code.
Non-excludable Condition means any guarantee, condition or warranty (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded.
Nutrogen means the platform that enables Clients to offer customisable nutrition services via mobile and web based software.
Per User Fees means the fee payable by the Client to Nutrogen Labs for access of Nutrogen by each User, as set out in your Subscription Package.
Per User Fees Payment Period means the recurring period of time for payment of the Per User Fees as specified in the Subscription Package which you sign up for. If no period is specified, then the Per User Fees Payment Period is weekly.
Personal Information means information or an opinion about an identifiable individual (not a company), whether or not that information or opinion is true or in a material form.
Privacy Policy means the privacy policy available on our Website as amended by us from time to time.
Prohibited Content takes its meaning from clause 5.7.
Special Conditions mean any special conditions applicable to and as documented in a bespoke Subscription Package.
Subscription Fees means the periodic price which you may have to pay for the Nutrogen Subscription Package which you sign up for.
Subscription Package means either:
the subscription package you select when you sign up to use Nutrogen through the options advertised on our Website from time to time; or
a bespoke subscription package provided to you in writing by Nutrogen Labs.
Subscription Period means the period of time attached to the Subscription Package which you sign up for.
Support Portal means the support system accessed via Nutrogen or the Website.
Third Party Infrastructure means service infrastructure operated by third parties to this agreement including but not limited to cloud service providers, internet service providers, network service providers and telecommunication service providers.
Usage Restrictions means any limits to the use of Nutrogen as set out in the details of the Subscription Package.
User means any active end-user using the services of the Client or its Branches and has been granted access to Nutrogen.
Website means https://www.nutrogen.io/ and any of its subdomains.