Terms and Conditions of use
The following terms and conditions of use (“Terms”) apply to the access and use of OmniOrder® by you as the customer (“You”, “Your”) and Optomni Pty Limited ACN 645 958 069 of [Suite 66, Marnirni-apinthi Building, Lot Fourteen, North Terrace, Adelaide, SA 5000] and its related bodies corporate and associates (as these terms are defined in the Corporations Act 2001 (Cth)) as the supplier (“We”, “Us”, “Our”). These Terms constitute a legally binding agreement between You and Us. By clicking to accept or agree to these Terms where and if this option is made available to You when registering for or logging in to OmniOrder®, You are accepting and agreeing to be bound by these Terms. These Terms take precedence over any terms contained in any document of Yours or included elsewhere.
You represent and warrant to Us that Your access and use of OmniOrder® are wholly or predominantly for business purposes and not for personal, domestic or household use or consumption. You further represent and warrant that You have the power and authority to bind the company, organisation, association or agency on whose behalf You access and use OmniOrder® to these Terms.
2. Accessing OmniOrder®
Right to Use
Subject to these Terms, We grant You a non-exclusive, limited, revocable, non-assignable and non-sublicensable right to access and use OmniOrder®, and the Documentation, for the sole purpose of enjoying the benefits of OmniOrder® as intended under these Terms. OmniOrder®, and the Documentation, is not sold to You. Except for the rights expressly granted to You under these Terms, no other licence, right, or interest in any Intellectual Property Rights in OmniOrder®, and the Documentation, or any part of them is granted to You.
The access to and use of OmniOrder® require You to register with Us or open an account. To do so, You must complete the registration process in the manner described on the Website or OmniOrder®. By registering with Us, You agree that all information You provide is accurate and up to date and does not infringe any person’s rights. Your registration may be subject to Us specifically approving Your registration in the manner set out on the Website or OmniOrder® or as otherwise determined by Us in Our absolute discretion. We may also, in Our discretion, impose additional due-diligence requirements after Your account has been opened in circumstances where We consider such requirements to be necessary, including in order to verify Your details or identity. You must also update Your details if any of them change. We reserve the right to periodically request additional and up-to-date documentation or details from You, in order to ensure that Your records are up to date.
Registration is non-transferable. You are responsible for all of the activities that occur under Your account, including the activities of any and all Users (as that term is defined in clause 5). You should carefully choose Your, and must procure that Your Users carefully choose their individual password and username. You must protect and must procure Your Users protect such passwords and usernames from unauthorised use. You must let Us immediately know of any unauthorised use of Your account or any other breach of security. We are not liable for, and You release and indemnify Us from and against any Claims arising directly or indirectly if someone else, other than You or Your Users, uses Your account.
You must meet the minimum system specifications and requirements for accessing and using OmniOrder® as set out on the Website or any platform where OmniOrder® is made available to You (as amended or updated from time to time) (“System Requirements”). You release and indemnify Us from and against any Claims arising directly or indirectly from You failing to meet the System Requirements.
Third Party Programs
Certain services available on OmniOrder® may, from time to time, contain or be accompanied by other programs, including open source programs, which are the property of third parties (“Third Party Programs”). Any terms for the use of Third Party Programs will be provided with or accessible through OmniOrder® or the Third Party Program. By using OmniOrder®, You are taken to have accepted the terms for use of such Third Party Programs.
Third Party Components
If You install or use any third party component or product on or in conjunction with OmniOrder®, including to integrate OmniOrder® with any other application or software used by You (“Third Party Component”), You are solely responsible for such Third Party Components and release Us from any Claim arising in connection with the use of such Third Party Components.
OmniOrder® may be provided with a user manual or other explanatory documentation relating to the use of OmniOrder® in either printed or electronic form (“Documentation”). You must ensure that Your use of OmniOrder® complies with the Documentation. You may copy any Documentation only on the basis that the copies are used solely in connection with Your use of OmniOrder® and not for any other purpose, including for distribution to any third party.
3. Support, maintenance and enhancements
No obligation to provide
Unless otherwise expressly agreed in writing, We will have no obligation to provide any:
with respect to OmniOrder®.
If We do offer any such services or Enhancements, as a condition of so doing, You may be required to execute a separate services agreement with Us or Our affiliates (“Services Agreement”).
Internet and Enhancements
You acknowledge and agree that OmniOrder® may incorporate code which automatically checks for Enhancements using Your Internet connection.
From time to time, and in Our sole discretion, We will have the right to suspend, add to, modify, or remove any part of OmniOrder® without liability under these Terms. If We do so, We will use reasonable endeavours to replace any part of OmniOrder® with an equivalent where practicable. You agree to accept such modification(s) (if any) as part of these Terms.
4. Transactions on or through OmniOrder®
Dealings between You and Members
OmniOrder® is intended to facilitate Transactions between You and Members.
You acknowledge and agree that, to the maximum extent permitted by law:
(a) We give no undertaking as to, and We are not liable for, the availability, quantity, quality, fitness for purpose or merchantability of any Product advertised, offered, purchased or sold on or through OmniOrder® or which are otherwise available by accessing and using OmniOrder®;
(b) We do not endorse or guarantee the accuracy or completeness of any Content posted or displayed on or through OmniOrder® and We are not liable for any such Content; and
(c) any Transaction or dealing You may enter into with any Member or which otherwise arises from or through Your use of OmniOrder® is entirely at Your own risk, and You agree to take reasonable precautions in all such Transactions.
We are not obliged to verify any Content or Products provided or offered on OmniOrder® or to otherwise conduct background or other checks on any Content or Product. Content displayed on or through OmniOrder® should not be considered advice or a recommendation to sell or purchase any Product that may be so displayed or to otherwise engage in any relationship with any Member or complete any Transaction. You agree that You are responsible for any and all Content You either make available or display on or through OmniOrder® or any actions You take based on any Content, and You release and indemnify Us from and against any Claims arising directly or indirectly as a result of Us or any other person relying on any Content You have made available or displayed, or any actions You have taken based on any Content.
You agree to act in good faith with respect to any Transaction or dealing You may have on or through OmniOrder®. You acknowledge that any Transaction or dealing You enter with respect to any Product is between You and a Member and may be subject to You entering into a separate, legally binding agreement with that Member. We are not a party to any Transaction. Our involvement is limited to facilitating the Transaction on or through OmniOrder®.
In the event of a dispute between You and any Member, You must seek to resolve the dispute directly with that Member. You acknowledge that We are not obliged to and will not assist in any such dispute. If the dispute is not resolved amicably, You should refer to the Horticulture Code of Conduct.
Additional terms applicable to Sellers
If You are a Seller or You otherwise list any Product for sale on OmniOrder®, the following terms and conditions set out in this clause also apply to You and Your use of OmniOrder®.
By listing a Product or Products on OmniOrder®, You warrant and represent that:
(a) You are legally able to sell the Products;
(b) each Product You offer for sale is fit for purpose, of merchantable quality and permitted to be offered for sale in Australia;
(c) the Products do not comprise illegal, prohibited, counterfeit, dangerous or stolen goods;
(d) You hold all relevant licences to sell the Products; and
(e) it is Your responsibility to be familiar with, and You will comply with all applicable laws and regulations and these Terms in connection with the listing and sale of the Products.
You also acknowledge and agree that in listing a Product or Products on OmniOrder®, You:
(a) must ensure that the listing only contains appropriate Content that is relevant to the sale of that Product;
(b) must accurately describe the Product and the terms of sale applicable to the Product;
(c) must have Your own refund and exchange policy that complies with all applicable laws, including the Australian Consumer Law and the Horticulture Code of Conduct;
(d) must ensure that Your terms of sale and any other of Your selling policies comply with all applicable laws; and
(e) are solely responsible for enforcing and complying with Your terms of sale and any other selling policies with respect to the Product.
As a Seller, You acknowledge and agree that You will be responsible for and release Us from liability for all Claims which arise directly or indirectly out of any Member’s purchase or use of any Products sold by You or on Your behalf.
5. Restrictions on use and Your responsibilities
Limited access to Users
You must limit access to OmniOrder® to Your Personnel, and other persons that have been authorised by You to access and use OmniOrder® on Your behalf (“User”). You must use all reasonable efforts to prevent unauthorised access to or use of OmniOrder® by any person who is not a User, and must promptly notify Us if You discover any such unauthorised access or use.
You must ensure all Users who access and use OmniOrder® are made aware of and comply with these Terms as if they were You. We may at any time require You to ensure that any and all Users accept a separate agreement (such as an online “click-wrap” agreement) with Us, which substantially gives effect to these Terms, prior to the User accessing or using OmniOrder®.
Restrictions on use of OmniOrder®
You must not, and must not cause, permit or assist any User or any other third party directly or indirectly, to:
(a) copy, record, replicate, translate, reverse engineer, decompile, disassemble OmniOrder® (or any part of OmniOrder®); or
(b) otherwise attempt to determine the source code, object code, ideas or algorithms of or included in any computer program or software forming part of, or that is used in connection with, OmniOrder®.
You must not, and must not permit any User or any other third party, to:
(a) use OmniOrder® for any unlawful purposes or other purpose that We reasonably determine is inappropriate or unintended;
(b) impersonate, or otherwise misrepresent affiliation, connection or association with, any person or entity, including a Member;
(c) post or display any Content on or through OmniOrder® that:
(i) is not accurate, complete and up-to-date;
(ii) is misleading or deceptive;
(iii) contravenes any applicable laws or infringes any Intellectual Property Rights or other rights of third parties, including the rights of confidentiality or privacy; and
(iv) is otherwise in breach of these Terms;
(d) provide false, misleading or inaccurate information to Us or any Member;
(e) take any action which causes or may cause the provision of OmniOrder® to other users (including Members) to be interrupted or degraded;
(f) use OmniOrder® in connection with any commercial endeavours except for those that have been specifically permitted under these Terms or approved by Us;
(g) convey via OmniOrder® any false, unlawful, harassing, defamatory, abusive, hateful, racial, threatening, harmful, vulgar, obscene, seditious or otherwise objectionable or offensive material of any kind or nature;
(h) upload or download files that contain software or other material protected by Intellectual Property Rights (or by rights of confidentiality or privacy, where applicable) unless You own or control such Intellectual Property Rights or have received all necessary consents;
(i) remove any copyright notices, titles, trademarks, logos, trademark notices or any other proprietary marks on, or that are part of, OmniOrder®; or
(j) alter, merge, modify, adapt or enhance OmniOrder® (unless and to the extent that We have expressly agreed in writing).
We may remove from, or refuse to display on, OmniOrder® anything that We think is inappropriate or in breach of these Terms in Our absolute discretion.
Except to the extent expressly permitted under these Terms, You must not, nor permit others to, lend, sell, rent, lease, license, commercialise, publish or otherwise create any Security Interest in OmniOrder® (or any part of OmniOrder®).
Your warranties, responsibilities and Content
Without limiting anything else in these Terms, You acknowledge and agree that You:
(a) will cooperate with Us, including by making available information and people as reasonably required by Us, so that We can provide access to and enable use of OmniOrder®;
(b) are responsible for ensuring that any Content You post or display on or through OmniOrder®:
(i) is accurate, complete and up-to-date;
(ii) is not misleading or deceptive;
(iii) does not contravene any applicable laws or infringe any Intellectual Property Rights or other rights of third parties, including the rights of confidentiality or privacy; and
(iv) otherwise complies with these Terms;
(c) must promptly notify Us if You become aware that any Content requires correcting or updating;
(d) are responsible for all Transactions effected on Your account via OmniOrder®;
(e) are responsible for all networks, systems, Internet services, telecommunications and any other facilities (including any associated fees and charges) used or required for You (and any User) to access and use OmniOrder®; and
(f) are responsible for backing up any data You may have on any computer or storage device which is to be the subject of, or otherwise used in the performance of, OmniOrder® or any other services provided by Us.
Security and integrity
While We endeavour to adhere to best practice policies and procedures to prevent data loss, We do not guarantee that there will be no loss of data and We expressly exclude liability for any loss of data no matter how caused.
You must not violate the security of OmniOrder® in any way. We may suspend or terminate Your rights under these Terms and Your access to OmniOder® if We suspect any security violation in accordance with clause 13. We may also inform any law enforcement body of any suspected unauthorised or criminal activity. Examples of security violations include:
(a) attempting to gain unauthorised access to any part of OmniOrder®, servers or system infrastructure You were not intended to have access to;
(b) using or attempting to use any engine, software, tool, agent, or other device or mechanism (including browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from OmniOrder® for any purpose, including use on third party websites;
(c) attempting to probe, scan, or test the vulnerability of OmniOrder® or any associated system or network, or breaching security or authentication measures without proper authorisation;
(d) interfering with or otherwise circumventing mechanisms in OmniOrder® intended to limit Your use;
(e) using OmniOrder® in a way that was not intended by Us;
(f) interfering with or disrupting (or attempting to interfere or disrupt) any servers or networks connected to OmniOrder®;
(g) sending or storing any harmful code (including, for example, any computer virus, trojan, worm or other code that is harmful or disabling or which assists in or enables unauthorised access to or corruption of data); or
(h) using any feature of OmniOrder® or any other means to send unsolicited commercial correspondence to Members.
Compliance with applicable laws
You are responsible for ensuring that Your and all Users’ use of OmniOrder® complies with all applicable laws and regulations, and You must not use, or allow any User to use, OmniOrder® for any illegal purpose.
Access to, and use of, OmniOrder® or any part or feature of OmniOrder®, may be subject to payment of certain Fees by You. You must pay the Fees at the rate and in the manner specified on the Website, on the platform where OmniOrder® is made available to You, or as otherwise notified to You by Us. You also agree to reimburse Us or any of Our affiliates for any additional expenses or charges as notified to You. You must pay the expenses or charges (if any), without set-off or deduction, within the timeframe set out on Our or Our affiliates’ invoice.
If You are a Seller, when You make a sale of a Product through OmniOrder®, We may charge You certain fees, as set out on the Website, the platform where OmniOrder® is made available to You, or as otherwise notified to You by Us (“Transaction Fee”). The Transaction Fee will be calculated based on orders placed via the OmniOrder Buyer App and will be a percentage of the total Order Value of products sold under a Public Price determined by Us in Our discretion.
You acknowledge that the continued availability of any part or feature of OmniOrder® may be conditional upon continued payment of the Fees. You also acknowledge and agree that We may change the Fees at any time, subject to the terms relevant to the variation of these Terms contained in clause 14. We will endeavour to notify You of any changes to the Fees before they come into effect, however this may not always be possible. In addition to Your rights contained in clause 14 with respect to the variation of these Terms, if You do not accept the Fees or any changes to the Fees, You must not access or use OmniOrder® or any part of OmniOrder®.
Unless specifically stated otherwise, the Fees are exclusive of GST (as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth)) and other similar taxes imposed in any jurisdiction in connection with the supply of the services performed or provided by OmniOrder® to You (“Taxes”). Where applicable, You agree to pay such Taxes imposed in connection with Your use of OmniOrder®.
If the Fees are not paid within the relevant period, then until such Fees are paid in full, We may charge interest on Your account at a rate equal to the cash rate target specified by the Reserve Bank of Australia plus two percentage points, and with interest on Your account to accrue daily from the date You were required to pay.
To the maximum extent permitted by law, and except as expressly provided otherwise in these Terms, We are not obliged to provide refunds of any Fees paid by You, however We may offer a refund where We determine that extenuating circumstances apply.
You acknowledge and agree that, to the maximum extent permitted by law, whether or not a refund is payable with respect to a Product will be determined by each relevant Seller in accordance with that Seller’s refund and exchange policy and all applicable laws, including the Australian Consumer Law and the Horticulture Code of Conduct.
8. Confidential Information
Any information that has been identified as being proprietary or confidential or that by the nature of the circumstances surrounding disclosure of such information ought to be treated as proprietary or confidential (“Confidential Information”) disclosed or otherwise made known to any person under these Terms must only be used to enjoy the rights and carry out the obligations granted or required under these Terms.
You must take all reasonable measures to protect the secrecy of and avoid unauthorised disclosure or use of any Confidential Information. You agree to immediately notify Us in writing of any unauthorised disclosure, misuse or misappropriation of such Confidential Information. You will ensure that Your Personnel will comply with such confidentiality obligation as if they were You.
If You become legally obligated to disclose any Confidential Information to any judicial, governmental or regulatory entity with jurisdiction over You, You will give Us prompt written notice sufficient to allow Us to seek a protective order or other appropriate remedy. You will disclose only such information as is required by the judicial, governmental or regulatory entity and will use Your best efforts to obtain confidential treatment for any Confidential Information that is so disclosed.
All Our Confidential Information will remain the exclusive property of Us, and You will have no rights, by license or otherwise, to use Our Confidential Information except as expressly provided in these Terms. You will promptly return or destroy all tangible material embodying Our Confidential Information (in any form and including all summaries, copies and excerpts of Our Confidential Information) on Our written request or if We terminate Your rights under these Terms and Your access to OmniOrder®.
You acknowledge that OmniOrder® contain Our (and where applicable, Our licensors’) valuable Confidential Information and other proprietary information. You agree that any unauthorised use, alteration, modification, reproduction, publication, disclosure or transfer of such Confidential Information and other proprietary information, or any actual or threatened breach of these Terms, may cause Us immediate, irreparable harm for which monetary damages alone would be an inadequate remedy and that, to the extent permitted by law, We are entitled to seek any alternate relief (including injunctive or equitable relief) in relation to any such actual or threatened breach.
We will not disclose Your Confidential Information to any third party without Your prior written consent except if We become legally obligated to so disclose. We will take all reasonable measures to avoid unauthorised disclosure or use of Your Confidential Information and will notify You of any such disclosures.
For the purposes of this clause 8, Our Confidential Information includes without limitation any of Our or Our affiliates’ (as relevant) proprietary materials, trade secrets, technical data and Intellectual Property Rights (including with respect to OmniOrder® and the Documentation).
9. Intellectual Property Rights
Our Intellectual Property Rights
OmniOrder®, and the Documentation, (including all Intellectual Property Rights in and to OmniOrder® and the Documentation) are owned by, and remain with, Us (or third party licensors as the case may be) and, other than as expressly set out in these Terms, You do not have any rights or licence to use any or part of OmniOrder®, and the Documentation, nor to copy, reproduce or provide to any third party in any medium or manner without Our prior written consent. All rights not expressly granted under these Terms are reserved by Us.
You acknowledge that:
(a) We may develop and market new or different software applications, enhancements, modifications or adaptations that may use or contain portions of OmniOrder® (or any associated source code), which may have some or all of the functionality of OmniOrder®; and
(b) nothing in these Terms automatically affords You any rights in relation to such applications, enhancements, modifications or adaptations.
Your information and Intellectual Property Rights
We do not claim ownership of the material, information, Content or data (which may include personal information) that You provide to Us in using OmniOrder® (“Your Information”). You (or Your licensors, as applicable) will continue to own any and all Intellectual Property Rights in Your Information. However, You agree to grant Us a perpetual, non-exclusive, assignable, worldwide and royalty free licence (with a right to sub-license) to use, store, reproduce, adapt, communicate, publish, display and distribute Your Information in connection with Your access and use of OmniOrder® under these Terms to the extent required to facilitate any Transaction. We adhere at all times to the Farm Data Code. We will use, store and handle Your farm data, private data and public data (as these terms are defined in the Farm Data Code) in accordance with the Farm Data Principles.
You acknowledge that if We disclose Your Information to any third parties (including any Member) in accordance with these Terms, such third parties may have their own terms and conditions or policies with respect to the storage, use and handling of such information, and You agree that We are not responsible or liable for any act or omission of any third party (including any Member) with respect to the storage, use and handling of Your Information.
Without limiting the previous paragraph, if You use a Third Party Component in conjunction with OmniOrder®, You acknowledge that We may allow the providers of those Third Party Components to access such of Your Information as required for the interoperation of such Third Party Components with OmniOrder®. We are not responsible for any disclosure, modification or deletion of Your Information resulting from any such access by Third Party Component providers.
You represent and warrant to Us that You are authorised to grant the rights and licence, as described in this clause, to Us.
Market Insights Data
You may give Us consent (by ‘opting in’ within Your account) to collect, create, develop, extract, aggregate, compile, synthesise, analyse and/or interrogate (collectively “compile”) statistics, trends, measures and other information based on or derived from any of Your Information or Content that has been de-identified or anonymised by or on behalf of Us such that it does not identify You, any User or any Member (“Market Insights Data”). You may, at any time, withdraw Your consent for Us to compile such Market Insights Data by ‘opting out’ within Your account.
Other than any Content, all Market Insights Data (including all Intellectual Property Rights in and to the Market Insights Data) compiled by Us up to the date of Your withdrawal or opting out is owned by, and remains with, Us. To the extent that such Market Insights Data contains any of Your Content, You grant Us a non-exclusive, worldwide, royalty-free, perpetual and irrevocable licence (including the right to sub-license) to such of Your Content for the purposes of Us using, adapting, storing, communicating, commercialising and otherwise exploiting such Market Insights Data, including making it available on or through OmniOrder®, as We see fit, provided that We will not present any such Market Insights Data in a way that identifies You or any User. You represent and warrant to Us that You are authorised to grant to Us the rights and licence referred to in this clause.
Market Insights Data that has been made available for access and use on or through the OmniOrder Grower App may require a separate subscription within Your account. You acknowledge and agree that the availability and access of any Market Insights Data within Your account may be conditional upon Your payment of certain fees associated with the subscription (“Subscription Fee”), in accordance with clause 6 of these Terms.
10. Reliance on OmniOrder®
We represent and warrant that:
(a) We will provide OmniOrder® with reasonable care and skill and in compliance with applicable laws;
(b) We are able to lawfully grant the rights expressly set out in these Terms; and
(c) OmniOrder® will not infringe the Intellectual Property Rights of any person.
Reliance on Generated Information
You acknowledge and agree that OmniOrder® and any data, information, results, outputs, reports, forecasts and/or recommendations generated or produced or made accessible in using OmniOrder®, including any Market Insights Data (“Generated Information”), may be subject to or dependent on third party source materials, data or other variables and factors that are unforeseeable or otherwise outside of Our control (including the reliability and the accuracy of any Content or other third party data that has been collected by Us).
The Generated Information is provided for information purposes only and is not definitive professional, compliance, financial or legal advice. You agree that the Generated Information is intended:
(a) as a supplement to aid, but not replace, specialist or independent human judgement or analysis; and
(b) to be evaluated in conjunction with such other tools and information that a human specialist would use or account for in making decisions on matters relating to the Generated Information.
You are solely responsible for ensuring that appropriate measures and processes are in place to verify Generated Information before any decision or action is taken on the basis of such Generated Information. All reliance on the Generated Information is at Your own risk and You release Us from any Claims arising directly or indirectly from Your reliance on the Generated Information.
You acknowledge and agree that:
(a) OmniOrder® is provided “as is” and “as available”;
(b) We exclude, to the maximum extent permitted by law, all warranties, conditions, claims and representations with respect to OmniOrder®, except to the extent expressly set out in these Terms;
(c) We do not warrant:
(i) against interference with Your enjoyment of OmniOrder®;
(ii) that the functions contained in or services performed or provided by OmniOrder® will meet Your requirements or will be fit for a particular purpose;
(iii) that the operation of OmniOrder® will be uninterrupted or error free;
(iv) without limiting clause 5, that OmniOrder® will be free from viruses or anything else that has contaminating or destructive properties including where such results in loss of or corruption to any data, information or Content (including Your Content); or
(v) that any defects in OmniOrder® will be detected or corrected; and
(d) without limiting the above, We do not represent, warrant or undertake that any Content that may be inaccurate or incomplete will be detected or corrected for, or that any Generated Information based on or derived from any Content that may be inaccurate or incomplete will be accurate or reliable.
Release and indemnity
Subject to Our responsibilities listed in this clause 10, and without limiting any other indemnities specified elsewhere in these Terms, You release and indemnify Us and Our Personnel from and against any and all Claims that arise directly or indirectly as a result of:
(a) You accessing or using OmniOrder® or any Generated Information;
(b) any activity which You engage in with or through OmniOrder®;
(c) any breach of these Terms by You;
(d) any breach of any rights of a third party by You;
(e) any breach of any applicable law by You; or
(f) any Transaction, dispute or other dealing between You and a Member that arises from or through OmniOrder®.
11. Exclusion and limitation of liability
To the maximum extent permitted by law, We exclude all liability (whether in contract, tort or otherwise) for any Claims (including any and all Consequential Loss) arising out of or in connection with these Terms or OmniOrder®, however caused, even if Us or Our Personnel knew of the possibility of such Claims or it was otherwise foreseeable.
Limitation of liability
If any exclusion or limitation of any liability or warranty contained in these Terms, is ineffective, or if a condition, warranty or term is implied in relation to these Terms or OmniOrder®, to the maximum extent permitted by law, Our liability will be limited, at Our election, to the resupply of any services performed or provided by OmniOrder® or the payment of the cost of having such services resupplied.
Notwithstanding any other provision of these Terms, to the maximum extent permitted by law, in no event shall Our liability or that of Our Personnel’s exceed the aggregate of Fees You have paid to Us for the preceding 12 months.
12. Force majeure
Neither We nor You will be responsible for failure or delay of performance of these Terms if the failure or delay is caused by an event outside Our or Your reasonable control. We will use and You must use reasonable efforts to mitigate the effect of a force majeure event.
13. Termination and suspension
We may, at Our discretion, suspend Your access to OmniOrder® (or any part of OmniOrder®), or otherwise suspend Your rights under these Terms, if We suspect that You are in breach of any provision of these Terms until such time as We are satisfied that no breach has occurred. We undertake to act reasonably with respect to any suspension.
Termination for cause
Without prejudice to any other rights We may have at law, We may terminate Your rights under these Terms and Your access to all or part of OmniOrder® immediately by notice in writing if:
(a) You are in breach of these Terms and such breach is not:
(i) remedied within 15 days of receiving written notice of the breach from Us; or
(ii) capable of being remedied;
(b) You become, threaten or resolve to become or are in jeopardy of becoming subject to any form of insolvency administration; or
(c) You cease or threaten to cease conducting Your business in the normal manner.
Effect of termination
Upon termination of Your rights under these Terms and Your access to all or part of OmniOrder® for any reason, You must (and must ensure that all Users) immediately cease all access to and use of OmniOrder®. Termination will not affect any accrued rights or liabilities that You may have at the effective date of termination.
We may, at Our sole discretion, negotiate an exit period during which Your rights under these Terms and Your access to all or part of OmniOrder® will continue to allow You to complete any Transactions pending at the effective date of termination.
Each provision of these Terms which by its nature is intended to survive termination will so survive.
We are a contractor independent of Your control and nothing in these Terms gives rise to any fiduciary, agency, trust, employment or other relationship recognised at law or in equity as giving rise to forms of specific rights and obligations.
Any notice in relation to these Terms must be in English and in writing.
Notice is deemed to have been received:
(a) if delivered personally, when left at the person’s address;
(b) if sent nationally by mail, 3 business days after it is posted;
(c) if sent internationally by mail, 5 business days after it is posted; and
(d) if sent by facsimile or email, at the time and date it was successfully sent without the sender subsequently receiving a delivery failure notice.
Notices to Us must be emailed to [email@example.com].
For the purposes of this clause, a “business day” means any day that is not a Saturday, Sunday or public holiday in South Australia.
These Terms (together with any Services Agreement) constitutes the entire understanding between You and Us as to its subject matter and supersedes all prior agreements, understandings and communications, whether written or oral, in relation to such subject matter. In accepting these Terms, You have not relied on any warranty, representation or statement, whether oral or written, made by Us or any of Our Personnel relating to or in connection with the subject matter of these Terms.
We reserve the right to amend these Terms from time to time. We may amend these Terms by publishing an updated, amended or revised version on the Website or on OmniOrder® or by providing it to You by email (each defined as “Amended Terms”). You will have 30 days to decide whether You accept or do not accept any Amended Terms (“Acceptance Period”). If You do not accept the relevant Amended Terms, You will have the right to terminate Your rights under these Terms during the relevant Acceptance Period at no additional cost to You. Your continued use of OmniOrder® after the relevant Acceptance Period has lapsed will be deemed acceptance of the relevant Amended Terms.
Exclusion of implied terms
To the extent permitted by law, and except as expressly provided in these Terms, all terms, conditions and warranties that would otherwise be implied by law regarding these Terms or OmniOrder® are excluded.
If any provision of these Terms is void, invalid or unenforceable for any reason, that provision must be read down to the extent necessary to be valid. If the provision cannot be read down, it must be severed from these Terms and does not affect the validity, operation or enforceability of any other provision of these Terms.
A failure or delay to exercise a power or right under these Terms does not operate as a waiver of that power or right.
You agree that We may subcontract to any person to perform all or part of Our obligations under these Terms without seeking Your consent or approval.
You must not assign Your rights or obligations under these Terms to any third party without Our prior written consent.
We may assign these Terms in their entirety without Your consent to Our affiliate or as part of a merger, acquisition, corporate reorganisation, or sale of all or substantially all Our assets.
Except as expressly stated otherwise in these Terms, Our rights under these Terms are cumulative and are in addition to any other rights We may have under law or equity.
These Terms are governed by the laws of South Australia. The parties irrevocably submit to the exclusive jurisdiction of the courts of South Australia.
Rules of interpretation
In these Terms, unless the context otherwise requires:
(a) headings do not affect interpretation;
(b) singular includes plural and plural includes singular;
(c) “including”, or similar words, does not limit what else might be included;
(d) where a word or phrase is defined in these Terms, each of its other grammatical forms will have a corresponding meaning;
(e) reference to a person includes a corporation, joint venture, association, government body, firm, and any other entity;
(f) reference to a party includes that party’s personal representatives, successors and permitted assigns; and
(g) reference to a thing includes a part of that thing.
In these Terms, capitalised terms have the following meaning, unless defined elsewhere or the context requires otherwise:
(a) Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
(b) Claim includes any:
(iii) claim, notice, demand, action, proceeding, litigation, prosecution, arbitration, investigation, judgment, or award whether based in contract, civil, common law, tort (including negligence) or statute and whether involving a party to these Terms, a third party or otherwise; and
(iv) loss, cost, damage, expense or liability arising directly or indirectly from any claim, notice, demand, action, proceeding, litigation, prosecution, arbitration, investigation, judgment, or award referred to in paragraph (i) of this definition.
(c) Consequential Loss means any consequential or indirect loss suffered or incurred under or in connection with these Terms (whether arising in contract or tort (including negligence), under an indemnity or otherwise) including loss of anticipated savings, loss of income, loss of profits, loss of goodwill, loss of contract, loss of business, loss of reputation, loss of use, partial or total loss or corruption of data, any form of business interruption, increased cost of working, and loss suffered as a result of claims by any third party.
(e) Farm Data Code means the code developed and adopted by the National Farmers’ Federation to establish the Farm Data Principles which is available at [chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://nff.org.au/wp-content/uploads/2020/02/Farm_Data_Code_Edition_1_WEB_FINAL.pdf];
(f) Farm Data Principles means the suite of leading principles for the collection and use of farm data, private data and public data (as these terms are defined in the Farm Data Code).
(g) Fees means any fee charged by Us for Your use of OmniOrder® (including any applicable Transaction Fee and Subscription Fee).
(h) Horticulture Code of Conduct means the mandatory industry code prescribed for growers and traders under the Competition and Consumer Act 2010 (Cth).
(i) Intellectual Property Rights includes any and all registered or unregistered rights in, including rights to apply for registration, renewal or extension in, any copyrights, patents, inventions, discoveries, trade secrets, processes, methodologies, know-how, specifications, computer programs or software, source or object codes, trademarks, logos, designs or confidential information or any rights of a similar nature under the laws of Australia or anywhere else in the world.
(j) Member means any person, other than You, who has access to, or otherwise uses, OmniOrder®, including in a capacity as buyer or Seller.
(k) OmniOrder® means the AI-driven unified trading, inventory and traceability web-based platform and any associated applications (including mobile applications) designated by Us to form part of that platform, including the OmniOrder Sales App, OmniOrder Buyer App and OmniOrder Grower App, together with any modifications, developments, enhancements or improvements from time to time, and incorporates all services associated with OmniOrder®, including the facilitating of Transactions.
(l) OmniOrder Buyer App means the mobile application available through the Apple App Store or Google Play Store designed for market buyers and other wholesale buyers to be able to view available supply for Products and initiate and complete Transactions
(m) OmniOrder Grower App means the mobile application available through the Apple App Store or Google Play Store designed for small-mid size fresh produce growers who do not wish to use any other applications (including mobile applications) available on or through OmniOrder®.
(n) OmniOrder Sales App means the extension of the web-based form of OmniOrder® offered as a mobile application that is available through the Apple App Store or Google Play Store.
(o) Personnel means a party’s affiliates, officers, directors, employees, agents and independent contractors and their affiliates.
(p) Price means any price set for a Product (however calculated), including the Public Price.
(q) Products means fresh or perishable food or products, or any other goods, available for purchase on or through OmniOrder®.
(r) Public Price means the public unit price set by the Seller for a Product and shown as such in the OmniOrder Buyer App.
(s) Security Interest means a security interest that is subject to the Personal Property Securities Act 2009 (Cth) or any other mortgage, pledge, lien, charge or other arrangement of any kind which in substance secures the payment of money or the performance of an obligation, or that gives a creditor priority over unsecured creditors.
(t) Seller means a person that has completed registration on OmniOrder® as a “seller” (as set out on the Website), and includes any employee, agent or representative of such person.
(u) Transaction means any transaction conducted on or through OmniOrder®, including with respect to the sale and purchase of any Product.
(v) Website means, as the context requires, the website ‘optomni.com’ or ‘omniorder.com.au’ or both and any subdomains associated with them.