YAVIBE END USER LICENSE AGREEMENT
In this Agreement “Application” refers to a mobile software application developed by us entitled “YaVibe”. Unless the context requires otherwise, a reference to the “Application” includes all modifications, enhancements or updates thereto, and includes all associated printed, online or electronic documentation and instructions relating to it.
2. PURPOSE OF APPLICATION
The Application has several purposes but its primary purpose is to provide a network of sharers and finders of places of interest, direct to a user’s smart phone or tablet device (“Purpose”).
3. ACCEPTANCE OF TERMS MANDATORY
3.1 Permission to use the Application is conditional upon the user (“you”) agreeing to the terms and conditions set out below. If you do not wish to accept these terms and conditions, you must not click “I Accept” and you must not use the Application. Notwithstanding the foregoing, any use by you will be considered to be in accordance with the terms and conditions of this Agreement.
3.2 By clicking on the “I Accept” button below, you confirm your agreement with IP (TAS) P/L ACN 612 804 056 (“us” or “we”) to the terms of this Agreement.
4.1 We grant to you, and you accept, a non-exclusive, non-transferable limited LICENCE to use the Application strictly in accordance with this Agreement on a single device as may approved by us under these terms and conditions or at our website at www.YaVibe.com. The term of the license shall be unlimited (but subject to termination in accordance with the terms of this Agreement) (“Term”).
4.2 You agree that you may not use the Application in any way that is or for purposes that are prohibited under this Agreement or any law in force in your jurisdiction. You also agree not to engage in any activity that interferes with or disrupts the servers and networks relating to the Application. You must not work around any technical limitations in the Application or attempt to run the Application on an unsupported platform. You must not use the Application on commercial software hosting services.
4.3 The license provided under this Agreement is personal to you and you must not re-sell, sub-license, rent, lease or otherwise distribute the Application. All other rights in respect of the Application are reserved to us.
4.4 The Application is currently made available to you free of charge. We reserve the right to amend or withdraw the Application, cease support or charge for the Application or service provided to you at any time and for any reason.
4.5 You acknowledge that the terms of agreement with your respective mobile network provider (“Mobile Provider”) will continue to apply when using the Application. As a result, you may be charged by the Mobile Provider for access to network connection services for the duration of the connection while accessing the Application or any such third party charges as may arise. You accept responsibility for any such charges that arise.
4.6 If you are not the bill payer for the mobile telephone or device being used to access the Application, you will be assumed to have received permission from the bill payer for using the Application.
5. USER SUPPLIED INFORMATION
5.1 We have no control over the information, data or image(s) provided by a user (including without limitation, a Third Party Seller under clause 18.1) of the Application, including the address, message content and any image(s) provided or modified by you (“User Content”). We accept no responsibility or risk for the content provided, printed, sent or received in relation to the Application. You, by accessing or using the Application accept all responsibility, risk and liability for the content chosen, added, edited, provided, uploaded and modified.
5.2 We do not and we are under no obligation to monitor or review any ratings, comments, communications, forums, discussions, postings, transmissions and other messages communicated by users of the Application and we assume no liability or responsibility arising from the contents of any such communications or for any defamation, error, inaccuracy, libel, obscenity or profanity contained in any such communication. You hereby irrevocably and unconditionally waive any claim against us for defamation, libel or whatsoever arising out of any such communication.
5.3 We may reject or remove any user’s material or conversations that are illegal, indecent, obscene or offensive, or that violates the terms of this Agreement in any way or request the user to make suitable amendments in order to comply with the terms herein, and we reserve all the right to claim damages and /or apply for other legal remedies in relation thereto.
6. REGISTRATION AND INSTALLATION
6.1 You must ensure that registration details are and remain during the term of this Agreement true and correct. Upon installation of the Application, you shall be responsible for ensuring that the Application is used in accordance with this Agreement and any instructions we provide in relation to the Application. We are not liable to install the Application or to provide any services or support in respect of the installation of the Application, except as expressly stated in this Agreement or as otherwise agreed between us in writing. You must ensure that your access to and use of the Application is not prohibited by laws or employer policies that apply to you.
6.2 You shall be responsible for providing your own equipment necessary for using and accessing the Application.
7. PASSWORDS AND ACCOUNT SECURITY
7.1 You are responsible for maintaining the confidentiality of your password for all accounts used by you to access the Application. You acknowledge and agree that you are solely responsible to us for all activities that occur under all such accounts.
7.2 You must notify us immediately upon becoming aware of any unauthorised use of any of your passwords or accounts.
8. INTELLECTUAL PROPERTY
8.1 The Application is the subject of existing copyright, trade marks and pending patents. All intellectual property rights (including but not limited to copyright, trade marks and rights in respect of patents and patentable inventions) in and to the Application (including but not limited to all software coding, graphic designs, characters, text, music, and other materials) are owned by us or our exclusive licensors. You may not use any of our trade marks without our prior written consent.
8.2 You must not during or at any time after the expiry of termination of this Agreement do or permit anyone else to do any act which infringes our copyright or any patent rights and must not copy, reproduce, translate, adapt, vary, modify, reverse engineer, decompile, disassemble or create derivative works of the Application or any of its components, without our express written consent or as expressly authorised by this Agreement or as permitted under Pt III Div 4A of the Copyright Act 1968 (Cth).
8.3 You must supervise and control the use of the Application in accordance with the terms of this Agreement and must ensure that your employees, sub-contractors and other personnel who have access to the Application are made aware of the terms and conditions of this Agreement.
9. RESTRICTIONS ON USE
9.1 You agree to be fully responsible for your own conduct and content while using the Application, and for any consequences thereof. You agree to use the Application only for purposes that are legal, proper and in accordance with these terms and conditions and any applicable policies or guidelines. By way of example and not as a limitation, you agree that when using the Application, you will not:
- use, upload, post, email or transmit or otherwise make available any content that infringes any patent, trade mark, copyright, trade secret or other proprietary right of any party, unless you are the owner of the rights or have the permission of the owner to post such content;
- in using the Application to ‘frame’ or ‘deep link’ to or otherwise incorporate the content of any third party website or other online content unless you have the permission of the owner of that website/ content to do so (and you will indemnify us from any loss or damage arising if you do not have that permission);
- use the Application for any illegal or unauthorised purposes;
- remove or alter any copyright trade mark or other proprietary right notices contained in the Application;
- submit content that falsely expresses or implies that such content is sponsored or endorsed by us or a third party (unless you have the legal authorisation to do so by that third party);
- submit content that expresses or implies that such content is sponsored, endorsed, or is liable to give the impression that such content is sponsored or endorsed by any person or entity unless you have the legal authority to do so;
- reverse engineer, modify, copy, transfer, sell, disseminate, distribute, decompile, or disassemble any of the data, software, code, information or material made available or accessible;
- transmit any viruses, worms, defects, Trojan horses or any items of a destructive nature.
9.2 In the event that you are located outside of Australia, you agree to comply with any laws, rules or regulations in your locale regarding conduct and acceptable content, including laws regulating the export of data to Australia or your country of residence.
9.3 You agree that you will:
- only use the Application for purposes that are not illegal, derogatory or otherwise objectionable or that brings us or any third party into disrepute;
- not infringe any third party’s intellectual property rights nor remove, obscure or alter any of our copyright notices, trademarks or other notices (including terms of these terms and conditions) included in the Application.
10. LOCATION-BASED SERVICES
10.1 If you are using any of the Application’s location-based services or functionality (“Location Services”) then, in addition to the remainder of this Agreement, then the following clauses in this clause 10 will also apply in respect of the use of the Location Services.
10.2 The Location Services are offered by collecting, storing, transmitting or processing your location data and/or your device.
10.4 You agree that such Location Services may be erroneous, inaccurate, incomplete or time-delayed and shall not be used for emergency or life saving purposes. We do not warrant, and you agree that the Location Services may contain inaccuracies, be incomplete and/or suffer from time-delays.
10.5 In particular, we do not represent or warrant that:
- your use of the Location Services will meet your requirements; or
- any information obtained by you as a result of your use of the Location Services will be accurate or reliable.
10.6 Without limiting the foregoing, you acknowledge that some Location Services may not be available for use at all times and in certain circumstances.
11. NO ENDORSEMENT
You agree that nothing in these terms and conditions shall be construed by you as an endorsement of you, or your organisation by us and you agree not to directly or indirectly infer in or from your work or use of the Application any such endorsement or support by us.
12.1 You agree that we may collect and use personal information about you and information to assist us to identify the device upon which you use the Application, (such as your device’s IP address, operating system and your email addresses) when you engage in transactions and interactions regarding the Application. The purpose of this collection is to enable us to provide to you information regarding your license and updates to the Application. We will not provide to any third party any personal information about you except as expressly or impliedly permitted under this Agreement or as otherwise permitted or required by law.
12.2 Where you are required to pay to purchase goods or services from us, we will also collect financial information such as credit card information which we may share with financial institutions in order to process your payment.
12.3 We may make your details or information obtained from you or your device available to third parties for advertising purposes. We won’t pass ownership or management of the database details to third parties but we will let advertisers use such information for the purposes of targeting advertisements to you.
12.4 Where, through the use of the Website or Application, you identify that you are a member of a club or other organisation, information obtained from you or your device may be shared with those clubs or organisations.
13. SUPPORT SERVICES AND INTERNET BASED SERVICES
13.1 We may (though are not obligated to) perform such services in the nature of support as we deem appropriate at our discretion.
13.2 We do not warrant to you that we will be capable of receiving, processing or otherwise acting upon a request for support services.
13.3 We may provide internet based services to support the Application. The provision of these services may be changed or cancelled by us at any time.
13.4 The Application connects to our computer systems over the Internet, using internet protocols, which send to our internet-based computers various data that you agree we may use to identify you or your device running the Application, such as your internet protocol address, your operating system, the name and version of the software you are using, and details of the location of the device on which you have installed the Application. By using the Application, you consent to the transmission of computer information to our computer systems.
14. SYSTEM REQUIREMENTS
14.1 In order to use the Application, you are required to have a compatible mobile telephone or handheld device, internet access, and the necessary minimum specifications (“Software Requirements”).
14.2 The Software Requirements are as follows: Apple iOS devices running iOS 6 or iOS 7, and Android OS devices running Android OS 2.3 up to OS 4.4; Language: English. We may update the Application with additional languages and devices from time to time.
15. UPDATES AND NEW RELEASES
Unless we advise you otherwise, this Agreement shall cover any updates and new releases of the Application that may be created by us during the term of this Agreement. The version of the Application software may be upgraded from time to time to add support for new functions and services. The Application may automatically download and install updates from time to time. If you do not accept any update or new release of the Application, we may decline to continue to provide any support services to you and we may terminate this Agreement. Where you accept an update or new release, this Agreement applies in all respects to that update or new release to the extent that it is incorporated in or replaces the Application.
16.1 The Application (or any part of it) may display advertisements and promotions and may otherwise be supported by advertising revenue. Such advertisements and promotions may be targeted to information such as the content of information stored on the Application and your use and/or queries made through the Application. In consideration for us granting you access to and use of the Application, you agree that we may place such advertising on the Application and share information and data provided by you and your device with advertisers for the purposes of tailoring advertisements to you and/or your location
16.2 We may change the manner, mode and extent of advertising on the Application without providing notice to you.
17. THIRD PARTY CONTENT
17.1 The Application may include links to other websites, content and resources. We may have no control over such websites, content or resources which are provided by third parties (“Third Party Content”).
17.2 You acknowledge and agree that we are not responsible for the availability of any Third Party Content, and do not endorse any advertising, products, services or other materials on or available via Third Party Content.
17.3 You acknowledge and agree that we are not liable for any loss or damage that may be incurred by you as a result of the availability of any Third Party Content, or as a result of any reliance placed by you on the completeness, accuracy or existence of Third Party Content, including any advertising, products or other materials on or available via Third Party Content.
17.4 As a result of, or through using the Application, you may from time to time use a service, purchase goods, or download a piece of software, which is provided by a third party. Your use of such other services, goods or software may be subject to separate terms between you and the relevant third party. In such case, the Agreement does not affect your legal relationship with that third party.
18. SALES BY OTHER BUSINESS AND CLUBS AND HYPERLINKS TO THIRD PARTY SITES
18.1 Parties other than us operate stores, may provide services, and/or sell product lines via the Application (“Third Party Sellers”). In addition, we may provide hyperlinks to the sites of other businesses, persons or clubs. We are not responsible for examining or evaluating, and we do not warrant the offerings of, any of these businesses, persons or clubs or the content of their sites. We do not assume any responsibility or liability for the actions, product, and content of all these and any other third parties. You should carefully review their privacy statements and other conditions of use.
18.2 We are not directly involved in the completion of sales arranged with Third Party Sellers, and as such you will need to contact the Third Party Seller to check on your order, shipment status etc. as well as to request cancelation of an order or a refund. We are not obligated to become involved (whether at your or the Third Party Seller’s request) in any dispute that arises between you and a Third Party Seller.
18.3 We may be paid a commission or fee for the operation of store fronts on the Application and/or sales made by third parties to you via the Application or from the use of payment gateways such as PayPal or Stripe.
18.4 To the extent permitted by law (including under the Australian Consumer Law), we will not accept or assume any liability whatsoever in respect of any items sold by Third Party Sellers via the Application.
18.5 An item sold by a Third Party Seller may or may not be returned depending on your agreement with the Third Party Seller. All requests for return of an item shall be made directly to the Third Party Seller concerned and we shall not be responsible for processing such requests.
18.6 The method of delivery of items sold via the Application is based on the arrangements set by the Third Party Sellers. Please refer to the Third Party Seller’s postage instructions for the relevant item. The method of payment is based on the mutual agreement between the Third Party Seller and you and depending on the method of delivery.
18.7 To the extent permitted by law (including under the Australian Consumer Law), we do not accept any obligation to protect you from any unsafe merchandise, products or services that may be offered via the Application by Third Party Sellers. Please do not assume that such items offered will be harmless to people or property.
18.8 Any payment gateway or ancillary payment processing facilities are not provided by us and to the extent permitted by law (including under the Australian Consumer Law), we give no warranty, expressed or implied, in connection with such facilities. We will in no event be liable for any loss, damages, costs or expenses suffered or incurred by you arising out of or as a result of any error and/or mistake and/or misstatement in debiting or crediting your credit card accounts as well as any malfunction, failure, disruption, downtime, interruption, miscalculation, delay, inaccuracy, loss or corruption of data, or any other non-performance related to the payment gateway facilities.
18.9 We do not warrant that any Third Party Seller will complete the sale of an item herein. You are urged to be aware of the risk of dealing with foreign nationals, underage persons or people acting under false pretense or persons having no contracting capacities.
18.10 In case of any dispute between you and any other user of the Application (including without limitation, with a Third Party Seller) or any dispute arising from the sale or purchase of an item, we shall be released from all liabilities claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
18.11 If we are required by you or by your order in any litigation in which you are involved whether under subpoena or order of the Court of any competent jurisdiction, including complying with any order for discovery or attending court for giving evidence, you shall bear all costs incurred by us in connection with the provision of such service, including our costs for taking legal or other professional advice or representation (in all such cases, the costs shall be calculated on an indemnity basis).
18.12 You will not hold us responsible for other users’ content, actions or inactions or items they offer for sale.
18.13 We are not involved in the actual transaction between you and a Third Party Seller.
18.14 When you enter into a transaction with a Third Party Seller you may be creating a legally binding contract with them. You must ensure that you comply with your obligations to that Third Party Seller and are aware of any laws relevant to you as a buyer.
18.15 If you have a dispute with one or more users (including a Third Party Seller), you release us (and our officers, directors, agents, subsidiaries, joint venturers and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
We expressly exclude any warranty that the Application will be available at all times or that your use of the Application will be uninterrupted or error free. We reserve the right to suspend the operation of the Application, including if required or requested to do so by our hosting service provider. To the extent permitted by law (including under the Australian Consumer Law), we shall not be liable in respect of any action or claim in relation to such unavailability or any claim for loss or damage arising there from.
20.1 To the extent permitted by law (including under the Australian Consumer Law), any implied warranties, guarantees or conditions last only during the term of the limited warranty. Some jurisdictions do not allow limitations on how long an implied warranty lasts, so these limitations may not apply to you. They also might not apply to you because some jurisdictions may not allow limitations on how long an implied warranty, guarantee or condition lasts.
- EXCLUSIONS FROM WARRANTY. To the extent permitted by law (including under the Australian Consumer Law), the warranty under this Agreement does not cover problems caused by your acts or omissions or the acts or omissions of others, or events beyond our reasonable control.
- CONSUMER RIGHTS NOT AFFECTED. You may have additional consumer rights under your local laws (including under the Australian Consumer Law), which this Agreement cannot change.
- NO OTHER WARRANTIES. To the extent permitted by law (including under the Australian Consumer Law), this limited warranty is the only direct warranty from us. We give no other express warranties, guarantees or conditions. Where allowed by your local laws, we exclude implied warranties of merchantability, fitness for a particular purpose and non-infringement. If your local laws give you any implied warranties, guarantees or conditions, despite this exclusion, your remedies are described in the remedy for breach of warranty clause above, to the extent permitted by your local laws.
21. The Competition and Consumer Act 2010 (Cth) and Fair Trading Acts:
21.1 Nothing in this Agreement is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
21.2 If you are a consumer for the purposes of the Australian Consumer Law Schedule of the Competition and Consumer Act 2010, nothing in these Terms limits any remedy available for a failure of the guarantees in sections 56 and 57 of that law.
22. LIMITATION OF LIABILITY AND INDEMNITY
22.1 You assume full responsibility and risk of loss resulting from your use of the Application and the doing of (or refraining from doing) anything suggested in the course of utilising the Application. You expressly understand and agree that your use of the Application is at your sole risk and that the Application is provided “as is” and “as available”. We do not represent or warrant to you that your use of the Application will meet your requirements, that your use will be uninterrupted, timely, secure or free from error, that any information provided (whether by us or any third party) will be accurate or reliable or that defects in the operation of functionality of the Application will be corrected.
22.2 Except as expressly provided to the contrary in this Agreement to the maximum extent permitted by the Australian Consumer Law and the applicable law set out in clause 31, in no event whatsoever shall we or our directors, employees, agents or sub-contractors be liable for any direct, indirect, special, incidental or consequential damages whatsoever (including without limitation, damages for loss of profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the use of, or the inability to use, the Application or the provision of or failure to provide any services in relation to the Application. We shall not be liable for any loss or damage which may be incurred by you, including but not limited to loss or damage as a result of any reliance you may place on the completeness, accuracy or existence of any information provided by a third party (be it a club, association or other entity), or as a result of any relationship between you and any third party. We shall not be liable for the deletion of, corruption of, or failure to store any content or other data maintained or transmitted by or through your use of the Application. The limitations on our liability referred to in this clause apply whether or not we have been advised of or should have been aware of the possibility of any such losses or damage arising.
22.3 To the extent permitted by the applicable law set out in clause 31 and the Australian Consumer Law, our total liability to you in any event shall be limited to the amount, if any, actually paid by you for use of the Application (and if nothing has been paid, limited to 1 cent AUS) and you hereby release us, our officers, directors, employees and agents from any liability in excess of this limitation.
22.4 You agree that you have not relied on any representation made by us which has not been stated expressly in this Agreement, or upon any descriptions, illustrations or specifications contained in any document including catalogues, internet sites or publicity material produced by us.
22.5 You shall at all times indemnify and hold us and our directors, officers, employees and agents (“those indemnified”) harmless from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:
- a breach by you of your obligations under this Agreement; or
- any wilful, unlawful or negligent act or omission by you.
23.1 This Agreement is effective until terminated in accordance with this clause. We may terminate this Agreement immediately at any time and without liability to you.
23.2 Either party may terminate this Agreement immediately should the Application become the subject of a claim of infringement of any intellectual property right. Upon or at any time after termination for any reason, you must destroy all copies of the Application if required by us.
23.3 Those clauses of this Agreement that are capable of surviving termination shall do so, and termination pursuant to this clause will not affect any rights or remedies which we may have otherwise under this Agreement or at law. If we terminate this Agreement for breach we may retain any fees paid by you or a third party.
24. UPON TERMINATION
24.1 If terminated in accordance with clause 23 in addition to the matters set out above, we may:
- repossess any copies of the Application or other materials provided to you;
- retain any moneys paid;
- charge a reasonable sum for any work performed in respect of which work no sum has been previously charged;
- be regarded as discharged from any further obligations under this Agreement; and
- pursue any additional or alternative remedies provided by law.
24.2 Upon any termination, the rights and licenses granted to you herein shall terminate and you must cease all use of the Application.
24.3 Following expiry of the Term, and unless required by us by notice in writing to remove the Application from your devices(s), you may continue to use the Application to the extent licensed hereunder in respect of which no limitation as to term (duration) of use applies, but you acknowledge that its features, functionality and operation may be significantly restricted.
The benefit of this Agreement may not be dealt with in any manner by you (whether by assignment, novation, sub-license or otherwise) without our written consent. We may assign, novate, sub-license or otherwise transfer its rights in respect of this Agreement without your consent.
26. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between you and us. The terms and conditions of this Agreement can only be varied in accordance with clause 28 below or by a document in writing supplied and signed by us and accepted by you.
27. WAIVER, VARIATION AND SEVERANCE
27.1 No right under this Agreement shall be deemed to be waived except by notice in writing signed by each party. A waiver by us pursuant to this clause will not prejudice its rights in respect of any subsequent breach of these terms and conditions by you. The provisions of this Agreement, shall not be varied, except by agreement in writing signed by the parties.
27.2 If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, the Agreement shall remain otherwise in full force apart from such provisions which shall be deemed deleted.
28. CHANGES TO THE LICENCE TERMS
We reserve the right to make changes to these terms and conditions from time to time. When these changes are made, we will make the new terms available at our Website. You understand and agree that if you continue to use the Application after the date on which the terms and conditions have changed, your use will constitute acceptance of the updated terms and conditions.
29. FORCE MAJEURE
We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Agreement that is caused by events outside our reasonable control (“Force Majeure Event”). A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) strikes, lock-outs or other industrial action, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport, impossibility of the use of public or private telecommunications networks, the acts, decrees, legislation, regulations or restrictions of any government. Our performance under the Agreement is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under the Contract may be performed despite the Force Majeure Event.
This Agreement was originally prepared in the English language. Although we may provide one or more translations in the future, the English language version will prevail in the case of any conflict or discrepancy.
31. APPLICABLE LAW
The Applicable Law is the law for the time being in force of the State of Tasmania, Australia and the Commonwealth of Australia. This Agreement is governed by the Applicable Law without any reference to any conflict of laws and the parties agree to submit to the exclusive jurisdiction of the Courts of the State of Tasmania and the Commonwealth of Australia and the Courts of Appeal there from.
32.1 In these terms and conditions, unless the contrary intention appears:
- words in the singular number include the plural and vice versa;
- words importing a gender include any other gender;
- a reference to a person includes bodies corporate and unincorporated associations and partnerships;
- a reference to a clause is a reference to a clause or sub-clause of this Agreement;
- monetary references are references to Australian currency.