Terms & Conditions

BIOTRAKA TERMS OF SERVICE

Updated as of August 1, 2018

Biotraka Pty Ltd and its subsidiaries and affiliates (collectively, “Biotraka”) provides, or may provide: (1) a Biotraka user account website that may be accessed at www.Biotraka.com and its sub-domains (each, a “Site”), (2) services accessible through the Sites (“Web Apps”) , (3) software that may be downloaded to your smartphone or tablet to access services (“Mobile Apps”), (4) subscription services, including services that can be accessed using the Web Apps and Mobile Apps (“Subscription Services”), and/or (5) software embedded in the Devices (and any updates thereto) (“Embedded Software”), all for use in conjunction with Biotraka’s pet tracking and monitoring devices (“Devices”) and in other ways that Biotraka provides or may provide.  The Devices and Services may be used together or in ways that may integrate with products and services from third parties. The term “Services” means the Sites, Web Apps, Mobile Apps, Subscription Services, and Embedded Software.  The term “Products” means the Services and the Devices.

These Terms of Service (“Terms”) govern your access to and use of the Services and Devices.  Please read these Terms carefully. They require the use of binding arbitration to resolve disputes rather than jury trials or class actions.  The term “you,” as used in these Terms, means any person or entity who accesses or uses the Products and any person or entity who creates an Account (as defined below) and accepts these Terms. These Terms give you specific legal rights, and you may also have other legal rights in addition, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under these Terms will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to you.

THIS IS A LEGAL AGREEMENT.  BY ACKNOWLEDGING THESE TERMS, BY PURSHASING A PRODUCT FROM BIOTRAKA, AND/OR BY ACCESSING AND USING THE SERVICES (INCLUDING THE SITES), YOU ARE ACCEPTING AND AGREEING TO THESE TERMS.  YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS.  YOU REPRESENT AND WARRANT THAT YOU EITHER HAVE EXCLUSIVE CONTROL OR EXCLUSIVE POSSESSION OVER THE PROPERTY ON WHICH THE WEB APPS OR MOBILE APPS ARE BEING INSTALLED.  YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE SERVICES AND TO ENTER INTO THESE TERMS.  BIOTRAKA IS WILLING TO PROVIDE SERVICES TO YOU ONLY UPON CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THESE TERMS.  IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE PRODUCTS AND SERVICES.

AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATES OF THE SERVICES AND OF THE DEVICES CONNECTED TO THE SERVICES.  IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE DEVICES OR THE SERVICES.

AS DESCRIBED BELOW, SECTIONS 4 AND 5 DESCRIBE IMPORTANT LIMITATIONS OF THE PRODUCTS. PLEASE READ THESE LIMITATIONS CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.

Biotraka reserves the right to make changes to these Terms.  We’ll post notice of modifications to these Terms on this page. You should ensure that you have read and agree with our most recent Terms when you use the Products.  Continued use of the Products following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the revised Terms. If you have any questions regarding these Terms, you can contact Biotraka by email at admin@Biotraka.com

  1. Overview, Eligibility, Customer Service, Term and Termination

(a)  Overview and Relation to Other Agreements.  Certain features of the Products may be subject to additional guidelines, terms, or rules, which will be posted on the Services in connection with such features. All additional guidelines, terms, and rules are incorporated by reference into these Terms and you are agreeing to accept and abide by them by using the Products.  Any information that Biotraka collects through your use of the Products is subject to Biotraka’s Privacy Policy located at 100 Harris Street Pyrmont NSW (the “Biotraka Privacy Policy”).  The Biotraka Privacy Policy is incorporated by reference into these Terms and you are agreeing to accept and abide by it by using the Products.

 

(b)  Eligibility. You may use the Services only if you can form a binding contract with Biotraka, and only if you are in compliance with these Terms and all applicable local, state/provincial, national, and international laws, rules, and regulations. Only individuals age 18 and older are permitted to use the Products and register for Accounts.  Any use or access to the Products by individuals under the age of 18 is strictly prohibited and is a violation of these Terms.  The Services are not available to any users previously prohibited from using the Services by Biotraka.

(c)  Customer Service. If you have any questions or concerns regarding the Products or these Terms, please contact Biotraka by email at admin@Biotraka.com.

(d)  Term and Termination. These Terms will remain in full force and effect so long as you continue to access or use the Products, or until terminated in accordance with the provisions of these Terms. At any time, Biotraka may (i) suspend or terminate your rights to access or use the Products, or (ii) terminate these Terms with respect to you if Biotraka in good faith believes that you have used the Products in violation of these Terms, including any incorporated guidelines, and terms or rules. 

(e)  Effect of Termination. Upon termination of these Terms, your Account and your right to use the Products will automatically terminate.

  1. Accounts

(a)  Your Account.  To use the Services, you must register for a user account (“Account”) and provide certain information about yourself as prompted by the applicable registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Products will not violate any U.S. or other applicable law or regulation. You are entirely responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account. You agree to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your Account, and to maintain your password securely to prevent others from gaining access without your permission. You agree to immediately notify Biotraka of any unauthorized use, or suspected unauthorized use, of your Account or any other breach of security.  Biotraka is not liable for any loss or damage arising from your failure to comply with the above requirements.

  1. Access to Services

 

(a)  Access and Use.  Subject to these Terms, Biotraka grants you a non-transferable, non-exclusive, right and license (without the right to sublicense) to access and use the Services by, if available (i) using the Web Apps in connection with, and solely for the purpose of, using the Devices or otherwise accessing a service explicitly provided by Biotraka for your use (the “Permitted Purpose”), and/or (ii) installing and using the Mobile Apps solely on your own handheld mobile device (e.g., iPhone, iPad, or Android smartphone) and solely for the Permitted Purpose.

(b)  Automatic Software Updates.  Biotraka may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Products, including the Embedded Software (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to terminate your Account and stop using the Products. If you do not terminate a previously created Account, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Products and you agree to promptly install any Updates that Biotraka provides. Your continued use of the Products is your agreement to these Terms with respect to the Products.

 

(c)  Content.  Certain materials may be displayed or performed on or with the Products (including, but not limited to, text, graphics, articles, photographs, video, images, and illustrations (collectively, “Content”)). The Content also includes information that you and other users provide us in the course of using the Products (collectively, “User Submissions”), which we may use to provide, maintain and improve the Products. Some Content may be visible to others (for example, the Services may allow you to upload, post, or otherwise share photographic content). You may also be able to post feedback, comments, questions, or other information on the Sites. You are solely responsible for all Content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Products, or that you contribute in any manner to the Products; you represent and warrant that you have all rights necessary to do so, in the manner in which you contribute it; and you license to Biotraka all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service pursuant to these Terms. You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Services, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or third party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right. Biotraka reserves the right to remove any Content from the Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have breached the immediately preceding sentence), or for no reason at all.

(d)  Certain Restrictions.  The rights granted to you in these Terms are subject to the following restrictions: (i) you agree not to license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Products; (ii) you agree not to modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Products; (iii) you agree not to access the Products in order to build a similar or competitive product or service; (iv) except as expressly stated herein, no part of the Products may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means; (v) you agree not to upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer or communication network, computer, handheld mobile device, data, the Services, the Devices, the Embedded Software, or any other system, device or property; (vi) you agree not to interfere with, disrupt, or attempt to gain unauthorized access to, the servers or networks connected to the Devices or the Services or violate the regulations, policies, or procedures of such networks; (vii) you agree not to access (or attempt to access) any of the Services by means other than through the interface that is provided by Biotraka; and (viii) you agree not to remove, obscure or alter any proprietary rights notices (including patent, copyright and trademark notices) which may be contained in or displayed in connection with the Products. Any future release, update, or other addition to the functionality of the Products shall be subject to these Terms.

(e)  Open Source.  Certain items of independent, third party code may be included in the Web Apps and/or Mobile Apps that are subject to the GNU General Public License (“GPL”) or other open source licenses (“Open Source Software”). The Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for such Open Source Software. In particular, nothing in these Terms restricts your right to copy, modify, and distribute such Open Source Software that is subject to the terms of the GPL.

(f)  Modification.  Biotraka reserves the right, at any time, to modify, suspend, or discontinue the Services or any part thereof with or without notice. You agree that Biotraka will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services or any part thereof.

(g)  Access Outside Certain Countries.  Although the Sites are accessible worldwide, the Products provided or accessed through or on the Sites are not available to all persons or in all countries. If you choose to access the Sites, you do so on your own initiative and you are solely responsible for complying with applicable local laws in your country. You understand and accept that the Sites are not designed for use in every country and some or all of the features of the Sites may not work or be appropriate for use in every country. To the extent permissible by law, Biotraka accepts no responsibility or liability for any damage or loss caused by your accessing or use of the Sites, Devices or Services outside of Australia or the United States.  You will be bound by these Terms wherever you access or use the Sites or use the Devices or Services.

  1. Agreed Usage and Limitations of Biotraka Services

(a)  Intended Use of Products.  You agree to test the Devices at the time they are delivered to you to ensure that they are in good working order.  Thereafter, it is solely your responsibility to maintain the Devices and keep them in good working order.  Biotraka is not responsible or liable for any misuse or improper use or storage of the Devices.  While we aim for the Services to be highly reliable and available, they are not intended to be reliable or available 100% of the time. The Services are subject to sporadic interruptions and failures for a variety of reasons beyond Biotraka’s control, including GPS and/or Wi-Fi intermittency, service provider uptime, mobile notifications and carriers, among others. In particular, GPS technologies, although accurate enough for typical tracking purposes, can be affected by environmental factors such as signal strength and battery condition.  Although we aim to make the GPS locator as accurate as possible, you should not rely on this information for critical uses, such as pin point locations for legal or life saving purposes.  You acknowledge the foregoing limitations and agree that Biotraka is not responsible for any damages allegedly caused by the failure or delay of the Services.

(b) Use the Services At Your Own Risk.  Our goal is to provide helpful and accurate information in connection with the Products, but we make no endorsement, representation, warranty, or covenant of any kind about any information, services, or recommendations made in connection with the Products (“Product Information”), or that your use of the Products will result in an increased level of fitness or better health for your pet.  The Product Information is provided “as-is” and “as available.”  You agree that it is your responsibility to educate yourself about how to interpret and respond to the Product Information.  The accuracy of the data collected and presented through the Devices and Services is not intended to match that of medical devices or scientific measurement devices.  You expressly acknowledge and agree that Biotraka is not responsible or liable for the accuracy, reliability, effectiveness, or correct use of Product Information.  If you rely on any Product Information, you do so solely at your own risk.

(c)  Consult Your Veterinarian.  The Products are not intended to diagnose, treat, cure, or prevent any disease.  If your pet has a medical condition, you should consult your veterinarian before using the Products, engaging your pet in an exercise program, or changing their diet.  If your pet experiences a medical emergency, stop using the Products and Product Information, and consult with a veterinarian.  You expressly acknowledge and agree that Biotraka is not responsible for any health problems that may result from training programs, consultations, products, or events you learn about as a result of your use of the Products.  Any exercise programs or changes to your pet’s diet that you engage in as a result of your use of the Products is solely at your own risk.

(d)  Responsibility for Content.  All information publicly posted or privately transmitted through the Services is the sole responsibility of the person from which (or from whose account) such Content originated and Biotraka will not be liable for any errors or omissions in any Content.  Biotraka cannot guarantee the identity of any other users with whom you may interact in the course of using the Services. Additionally, we cannot guarantee the authenticity of any data that users or merchants may provide about themselves. You acknowledge that all Content accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services.

(e)  Temporary Suspension.  The Services may be suspended temporarily without notice for security reasons, system failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. Biotraka does not offer any specific uptime guarantee for the Services.

(f)  System Requirements.  The Services will not be accessible without: (i) a working Wi-Fi network that is positioned to communicate reliably with the Devices; (ii) an Account; (iii) mobile clients such as a supported phone or tablet (required for some functionality); and (iv) other system elements that may be specified by Biotraka. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. You acknowledge that the Services may not work as described when the requirements and compatibility have not been met. In addition, you acknowledge that Biotraka may activate communication protocols on your smartphone or tablet, with or without prior notification, in order to facilitate proper operation of the Services and Devices, enable communication with Services and Devices connected to the Biotraka Account, and enable certain features.

(g)  Your Warranty Regarding Your Content and Use of Services.  You warrant, represent and agree that you will not contribute any Content or otherwise use the Services in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) impersonates any person or entity, including without limitation any employee or representative of Biotraka; (v) contains a virus, Trojan horse, worm, time bomb, or other harmful computer code, file, or program; (vi) jeopardizes the security of your Biotraka Account or anyone else’s Account (such as allowing someone else to log in to the Services as you); (vii) attempts, in any manner, to obtain the password, account, or other security information from any other user; (viii) violates the security of any computer network, or cracks any passwords or security encryption codes; (ix) runs Maillist, Listserv, or any form of auto-responder or “spam” on the Services, or any processes that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure); (x) copies or stores any significant portion of the Content; or (xi) decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.

(h)  Data Protection and Privacy Laws.  Data protection and privacy laws where you live may impose certain responsibilities on you and your use of the Products, including laws relating to the use of location tracking devices. You agree that you (and not Biotraka) are responsible for ensuring that you comply with any applicable laws when you use the Products.

  1. Limitations of Products Due to Third Parties.

(a)  General.  The Products may rely on or interoperate with third party products and services. These third party products and services are beyond Biotraka’s control, but their operation may impact or be impacted by the use and reliability of the Products. You acknowledge and agree that: (i) the use and availability of the Products may be dependent on third party product vendors and service providers, (ii) these third party products and services may not operate in a reliable manner 100% of the time, and they may impact the way that the Products operate, and (iii) Biotraka is not responsible for damages and losses due to the operation of these third party products and services.

(b)  Third Party Service Providers Used By Biotraka.  You acknowledge that Biotraka uses third party service providers to enable some aspects of the Products – such as, for example, data storage, synchronization, and communication through Amazon Web Services and mobile device notifications through mobile operating system vendors and mobile carriers.

(c)  Equipment, ISP, and Carrier.  You acknowledge that the availability of the Services is dependent on: (i) your computer, mobile device, home wiring, home Wi-Fi network, local communication protocol connections, and other related equipment (“Equipment”), (ii) your Internet service provider (“ISP”), and (iii) your mobile device carrier (“Carrier”). You acknowledge that you are responsible for all fees charged by your ISP and Carrier in connection with your use of the Services. You also acknowledge that you are responsible for compliance with all applicable agreements, terms of use/service, and other policies of your ISP and Carrier.

(d)  Third Party Products and Services that Work With the Products .  Biotraka may provide the opportunity for you to interface to one or more third party products and services, through and using the Products (“Third Party Products and Services”). You decide whether and with which Third Party Products and Services you want to interface. Your explicit consent and authorization is required for this interface, and is revocable by you at any time. Once your consent is given for a particular Third Party Product and Service, you agree that Biotraka may exchange information and control data regarding you and your products, including your personal information, in order to enable the interface you have authorized. Once this information is shared with the particular Third Party Product and Service, its use will be governed by the third party’s privacy policy and not by the Biotraka Privacy Policy.  You acknowledge that Third Party Products and Services that you connect to your Account or interface with are not Biotraka products and services and you acknowledge and agree that Biotraka does not control, and that these Terms do not apply to, any Third Party Products and Services. Use of any Third Party Products and Services is governed by separate terms and conditions provided by the operator(s) of the applicable Third Party Products and Services. You acknowledge and agree that Biotraka makes no representation or warranty about the operation, reliability, or safety of any Third Party Products and Services. Accordingly, Biotraka is not responsible for your use of any Third Party Product and Service or any personal injury, death, property damage, interruption of service, downtime, data loss, or other harm or losses arising from or relating to your use of any Third Party Products and Services. You should contact the applicable third party with any questions about its products and services.

(e)  App Stores.  You acknowledge and agree that the availability of the Mobile Apps is dependent on the third party websites from which you download the Mobile Apps, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). You acknowledge that these Terms are between you and Biotraka and not with an App Store. Each App Store may have its own terms and conditions to which you must agree before downloading Mobile Apps from it. You agree to comply with, and your license to use the Mobile Apps is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.

(f)  Third Party Website Links and Referrals.  The Sites may contain links to other web sites operated by third parties (“Third Party Sites”) and referrals to third party vendors (“Referred Vendors”). Such Third Party Sites and Referred Vendors are not under our control. Biotraka provides these links and referrals only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third Party Sites or Referred Vendors. Your use of these Third Party Sites and Referred Vendors is at your own risk.

  1. Ownership and Intellectual Property

(a)  Biotraka Property.  You acknowledge that all intellectual property rights, including without limitation copyrights, patents, trademarks, and trade secrets, in the Products are owned by Biotraka or its affiliates or our licensors. Your possession, access, and use of the Products do not transfer to you or any third party any rights, title, or interest in or to such intellectual property rights. Biotraka and its affiliates and licensors and suppliers reserve all rights not granted in these Terms. The Services are licensed to you, not sold, under these Terms.

You may only copy parts of the Services (including the Sites) on to your own computer for your own personal use. You may not use the Content of the Services in any other public or commercial way nor may you copy or incorporate any of the Content of the Services into any other work, including your own web site without the written consent of Biotraka. Other than with respect to User Submissions, Biotraka retains full and complete title to all Content on the Services, including any downloadable software and all data that accompanies it. You must not copy, modify or in any way reproduce or damage the structure or presentation of the Services or any content therein.

(b)  Feedback.  You may choose, or Biotraka may invite you, to submit comments, suggestions, or ideas about the Products, including how to improve them (“Ideas”). By submitting any Ideas, you agree that your submissions are voluntary, gratuitous, unsolicited, and without restriction and will not place Biotraka under any fiduciary or other obligation. Biotraka may use, copy, modify, publish, or redistribute the Ideas for any purpose and in any way without any compensation to you. You also agree that Biotraka does not waive any rights to use similar or related ideas previously known to Biotraka, developed by its employees, or obtained from other sources.

(c)  User Submissions.  You hereby grant us with a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicenseable and transferable right to access, display, or otherwise use your User Submissions (including all related intellectual property rights) solely in connection with providing you the Services. You also hereby do and shall grant each user of the Services a non-exclusive license to access and use your User Submissions through the Services and as permitted through the functionality of the Services and under these Terms. Furthermore, you understand that we retain the right to reformat, modify, create derivative works of, excerpt, and translate any User Submissions submitted by you. For clarity, the foregoing license grant to Biotraka does not affect your ownership of or right to grant additional licenses to the material in your User Submissions, unless otherwise agreed in writing.

(d)  Product Data.  You hereby grant us with a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sub-licenseable and transferable right to access, display, or otherwise use any and all data (including all related intellectual property rights) collected by the Products (including the Embedded Software) for any and all purposes. Furthermore, you understand that we retain the right to reformat, modify, create derivative works of, excerpt, and translate any such data. For clarity, the foregoing license grant to Biotraka does not affect your ownership of, or right to grant additional licenses to, such data, unless otherwise agreed in writing.

  1. Indemnity

You agree to defend, indemnify and hold Biotraka and its licensors and suppliers harmless from any damages, liabilities, claims or demands (including costs and attorneys’ fees) made by any third party due to or arising out of: (i) your use of the Products, (ii) your violation of these Terms, (iii) any User Submissions or Feedback you provide; or (iv) your violation of any law or the rights of any third party. Biotraka reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Biotraka and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without Biotraka’s prior written consent. Biotraka will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

  1. Warranty and Warranty Disclaimers

(a)  BIOTRAKA WARRANTS THAT FOR NINETY (90) DAYS FROM THE DATE THE PRODUCT IS DELIVERED TO YOU, SUCH PRODUCT WILL BE FREE FROM MATERIAL DEFECTS WHEN USED ACCORDING TO BIOTRAKA’S SPECIFICATIONS AND INSTRUCTIONS.  FOR BREACH OF THE FOREGOING WARRANTY, YOUR EXCLUSIVE REMEDY AND BIOTRAKA’S ENTIRE LIABILITY WILL BE, AT OUR EXPENSE, THE REPAIR, OR AT OUR OPTION, REPLACEMENT OF THE DEFECTIVE PRODUCT, OR IF SUCH REPAIR OR REPLACEMENT IS NOT REASONABLY ACHIEVABLE, THE REFUND OF THE FEES YOU PAID TO BIOTRAKA FOR THE DEFECTIVE PRODUCT.

(b) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a) ABOVE, THE PRODUCTS ARE PROVIDED FOR YOUR CONVENIENCE, “AS IS” AND “AS AVAILABLE” AND BIOTRAKA AND OUR LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT.

(b) BIOTRAKA AND OUR LICENSORS AND SUPPLIERS MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE PRODUCTS: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR COMPUTER OR MOBILE DEVICE; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BIOTRAKA OR THOUGH THE SERVICES SHALL CREATE ANY WARRANTY.

(c) BIOTRAKA DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH OR IN CONNECTION WITH THE PRODUCTS OR SERVICES (INCLUDING, BUT NOT LIMITED TO, THIRD PARTY PRODUCTS AND SERVICES CONNECTED THROUGH THE BIOTRAKA PRODUCTS) OR ANY HYPERLINKED WEBSITE OR SERVICE, AND BIOTRAKA WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD PARTY PROVIDERS OF SUCH PRODUCTS OR SERVICES.

(d) BIOTRAKA MAKES NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND BIOTRAKA WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES. BIOTRAKA MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH THE SERVICES.

  1. Limitation of Liability

Nothing in these Terms and in particular within this “Limitation of Liability” clause shall attempt to exclude liability that cannot be excluded under applicable law.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) BIOTRAKA BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE PRODUCTS, EVEN IF BIOTRAKA KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) BIOTRAKA’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCTS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED ONE-HUNDRED DOLLARS ($100.00).  THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. BIOTRAKA DISCLAIMS ALL LIABILITY OF ANY KIND OF BIOTRAKA’S LICENSORS AND SUPPLIERS. UNDER NO CIRCUMSTANCES WILL BIOTRAKA BE LIABLE IN ANY WAY FOR ANY CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED IN CONNECTION WITH USE OF OR EXPOSURE TO ANY CONTENT POSTED, EMAILED, ACCESSED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES.

  1. Digital Millennium Copyright Act

(a)  Notice of Infringement.  If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA“) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail): (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material; (iv) information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail; (v) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(b)  Copyright Agent.  Biotraka’s designated Copyright Agent to receive notifications of claimed infringement is Copyright Agent – Attention Biotraka Legal, Admin@biotraka.com You acknowledge that if you fail to comply with all of the requirements of this Section 10, your DMCA notice may not be valid.

 

(c)  Counter-Notice. If you believe that your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material in your Content, you may send a counter-notice containing the following information to the Copyright Agent: (i) your physical or electronic signature; (ii) identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled; (iii) a statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and (iv) your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the court in Australia, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

(d)  Restore Content.  If a counter-notice is received by the Copyright Agent, Biotraka may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Biotraka’s sole discretion.

  1. Confidentiality

 

Confidential Information” shall mean the Products, and all other information disclosed to you that Biotraka characterizes as confidential at the time of its disclosure either in writing or orally, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least three (3) years after termination of these Terms. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of Biotraka. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify Biotraka in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of these Terms, and will cooperate with Biotraka in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you shall (i) immediately notify Biotraka prior to such disclosure to allow Biotraka an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with Biotraka in protecting against any such disclosure and obtaining a protective order narrowing the scope of such disclosure and use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.

  1. General

(a)  Governing Law and Jurisdiction.  These Terms are governed by the laws of Australia without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You agree to submit to the personal jurisdiction of the courts located in New South Wales, Australia for the purpose of litigating all such claims or disputes.

(b)  Protection of Confidentiality and Intellectual Property Rights.  Biotraka may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.

(c)  Severability.  If any part of these Terms becomes illegal, invalid, unenforceable, or prohibited in any respect under any applicable law or regulation, such provision or part thereof will be deemed to not form part of the contract between us. The legality, validity or enforceability of the remainder of these Terms will remain in full force and effect.

(d)  Survivability.  The provisions of these Terms which by their nature are intended to survive termination or expiration of these Terms shall survive the termination or expiration of these Terms.

(e)  Waiver.  Failure or delay by us to enforce any of these Terms will not constitute a waiver of our rights against you and does not affect our right to require future performance thereof.

(f)  Assignment.  These Terms, and any associated rights or obligations, may not be assigned or otherwise transferred by you without Biotraka’s prior written consent. These Terms may be assigned by Biotraka without restriction. These Terms are binding upon any permitted assignee.

(g)  Electronic Communications.  You are communicating with Biotraka electronically when you create your Biotraka Account, use the Services or send email to Biotraka. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. When you register for an Account, we collect and store your email address. From that point forward, your email address is used to send you information about Biotraka’s products and services unless you opt-out of such emails using the opt-out link in the emails.

(h)  Notifications.  Biotraka may provide notifications to you as required by law or for marketing or other purposes via (at its option) email to the primary email associated with your Account, mobile notifications, hard copy, or posting of such notice on Biotraka.com Biotraka is not responsible for any automatic filtering you or your network provider may apply to email notifications. Biotraka recommends that you add admin@biotraka.com email addresses to your email address book to help ensure you receive email notifications from Biotraka.

(i)  Force Majeure.  Biotraka will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms that is caused by an act or event beyond our reasonable control, including without limitation acts of God, strikes, lock-outs or other industrial action by third parties, civil commotion, riot, terrorist attack, war, fire, explosion, storm, flood, earthquake, epidemic or other natural disaster, failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.

(k)  Trademarks.  All trademarks, logos, and service marks (“Marks”) displayed on the Products are the property of Biotraka or of their respective holders. You are not permitted to use any of the Marks without the applicable prior written consent of Biotraka or such respective holders. Biotraka reserves the right to alter product and services offerings, specifications, and pricing at any time without notice, and is not responsible for typographical or graphical errors that may appear in this or in related documents.

 

 [CT1]BIOTRAKA – is this applicable?  Will end users be able to access information through a web page or only through the mobile app?

 [CT2]BIOTRAKA – will you allow people under the age of 18 to purchase Products and register for an Account?

 [CT3]BIOTRAKA – consider whether this is an appropriate statement to make or whether you have a large number of customers in the EU or elsewhere.

 [CT4]BIOTRAKA – confirm whether this section is applicable.

 [CT5]BIOTRAKA – this section may not have to be included if you’re not going to allow for user submissions to be posted in public places on the website