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Application Terms and Conditions – Trust the Falcon
This application and its related services, products, websites and tools (Application) is owned and operated by Augur Falconer Pty Ltd ACN 663 146 218 trading as Trust the Falcon (Trust the Falcon).These terms and conditions (Terms and Conditions) set out the terms on which we grant you a licence to access and use the Application. Other terms and conditions contained in the privacy policy (Privacy Policy), elsewhere on our Application and as otherwise advised to you via electronic communication also form part of our agreement with you.
By clicking “I agree” (or a similar button) that is presented to you in relation to these Terms and Conditions, or by using or accessing the Application, you indicate your assent to be bound by these Terms and Conditions and our Privacy Policy. If you don’t agree to be bound by these Terms and Conditions or our Privacy Policy, you must not use the Application. These Terms and Conditions may be updated by us from time to time, and the updated Terms and Conditions will apply from the date they are published on the Application. Each time you use our Application you should revisit these Terms and Conditions.
If you are agreeing to these Terms and Conditions on behalf of a legal entity or third party, then you warrant that you have the irrevocable authority and agreement of that third party to be bound by these Terms and Conditions.
These Terms and Conditions are effective as at 28 June 2023.
1. DEFINITIONS & INTERPRETATION
1.1 Definitions
In these Terms and Conditions unless inconsistent with the context or subject matter:
(a) Account: an account enabling you to access and use the Application.
(b) ACL: the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).
(c) Address for Service: means such address as set out in your Account (for you), and for us such address set out on the Application, or such other address for service advised by a party to the other in writing from time to time.
(d) Applicable Laws: any applicable laws (including orders, by-laws and regulations) in the jurisdiction in which you, and any user you are interacting with are located or which in any way govern or affect the use of the Services, including the laws of the State.
(e) Client Data: all data, files, works and materials uploaded to or stored on the Application by you, transmitted by the Application at the instigation of you, published by you for display on the Application; or supplied by you us for uploading to, transmission by or storage on the Application.
(f) Intellectual Property Rights: all present and future rights conferred by law in or in relation to copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, inventions and confidential information, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable.
These rights include without limitation:
(i) all rights in all applications to register those rights;
(ii) all renewals and extensions of those rights; and
(iii) all rights in the nature of those rights, such as moral rights.
(g) Loss: any loss, liability, cost (including legal costs on a solicitor and own client basis), charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).
(h) Materials: any material, text, or other documents provided by us to you or made available by us on the Application (this includes manuals or instructions).
(i) our, us and we: means Trust the Falcon.
(j) Policy: means any of our policies in place from time to time.
(k) Privacy Legislation: means the Privacy Act 1988 (Cth), including Australian Privacy Principles, and the guidance and codes of practice issued by the Office of the Australian Information Commissioner from time to time and to the extent the European Union’s General Data Protection Regulation 2016/679 (‘GDPR’) applies to us and our use of your information, the GDPR.
(l) Privacy Policy: the terms of the Trust the Falcon Privacy Policy published on the Application and as amended from time to time.
(m) Services: any services we provide to you, including the Application.
(n) State: New South Wales, Australia.
(o) Term: means the term of your access to the Application.
(p) User: any person who uses the Application.
(q) you and your: means a User.
1.2 Interpretation
In these Terms and Conditions, unless inconsistent with the context or subject matter:
(a) a reference to a person includes any other legal entity and vice versa;
(b) words importing the singular number include the plural number and vice versa;
(c) a reference to a party includes the party's heirs, executors, successors and permitted assigns;
(d) headings are for reference purposes only;
(e) where any word or phrase is given a defined meaning any other part of speech or other grammatical form concerning the word or phrase has a corresponding meaning;
(f) references to writing include any mode of representing or reproducing words in tangible and permanently visible form, and includes e-mail;
(g) an obligation of two or more parties binds them jointly and each of them severally.
2. USING THE TRUST THE FALCON APPLICATION
2.1
The Application is developed and published by Trust the Falcon and is available to be downloaded from App Stores of various providers including the Apple App Store provided by Apple Inc. and the Google Play Store provided by Google Inc. (each an App Store Provider).2.2
The Application enables users to track and record a range of activities of a User and notify other designated Users (such as relatives or close contacts) in the event of emergencies or specific occurrences. For example, Users can log an 'event' while driving, specifying their anticipated arrival time at a particular destination. If the User fails to reach their destination within the expected timeframe, the Application will automatically send notifications to selected Users, ensuring that someone is aware of the situation in case of any unforeseen issues.2.3
Although the Application is designed to track and record activities, you acknowledge and agree that:
(a) tracking is reliant on location services being enabled for the Application, and the submitting of such location services. If for any reason location services are not enabled, or the tracking data is not accurate then the Application may return inaccurate results;
(b) the Application requires a secure internet connection to operate, send data and to connect to the relevant servers. In the event that the Application is unable to obtain or maintain a connection to the internet, or connection by the Application (or a required service) is geographically restricted by local authorities (for example Google services may be restricted), then the Application may return inaccurate results, no results or may be inaccessible;
(c) complex software is never wholly free from defects, errors and bugs, and we give no warranty or representation that the Application will be wholly free from defects, errors and bugs, this includes without limitation where the Application provides incorrect logging information or if inaccurate alerts are sent.
In light of this, your use of the Application is at your own risk.
2.4
The Application is made available only to, and may only be used by, persons who can form legally binding contracts under Applicable Laws. If you do not qualify, you must not use the Application.2.5
As a condition of your use of this Application, you warrant that you will not use this Application for any purpose other than the purpose it was created for, or for any purpose that is unlawful or prohibited by these Terms and Conditions.2.6
In order to use the Application you must have a compatible device which meets the minimum specifications as made known by us from time to time. You accept responsibility for use of the Application on any such device that the Application is downloaded and installed on.3. TRACKING AND RECORDING ACTIVITIES
3.1
To track and record activities on the Application, simply create an Account, and follow the prompts on the Application.3.2
For each activity you will be able to include details of the activity and a check-in time, as well as select Users to receive notifications. If you happen to miss the check-in time, your location as well as details of the activity will be automatically shared with the relevant pre-selected Users.
Please note that only Users of the Application, that you have selected are able to receive notifications.
3.3
You must ensure that all necessary permissions are granted to the Application on the smart device which you will be using.3.4
In using the Application you acknowledge and agree that you:
(a) give consent to the recording of your data, including but not limited to geo-location information, activities and mobile phone status for purposes described in these Terms and Conditions; and
(b) understand that we may use such information as reasonably necessary to provide the Application.
This includes:
(i) sharing the information to provide notifications to Users you have selected within the Application; and
(ii) sharing your location as necessary to third parties as required by applicable laws (including to enforcement bodies in accordance with our Privacy Policy).
3.5
Where we are required by law to use or disclose information to a third party (such as law enforcement authorities), we shall comply with such request in accordance with applicable legal requirements. Should we receive a request for such information, all associated costs shall be borne by the User whose information we are providing.3.6
If access to the Application is running in the background on a device we may have continuous access to your geo-location information, and you provide your express consent to such access.4. LICENCE
4.1
Subject to your compliance with these Terms and Conditions, we grant you a non-exclusive, non-transferable, revocable licence to use the Application during the Term in accordance with these Terms and Conditions.4.2
The right to use the Application is granted to you only and is subject to any restrictions and limitations as stated on the Application at the time you subscribe (or as modified in accordance with these Terms and Conditions).4.3
Your use of the Application will also be subject to any applicable terms and policies applied by the relevant App Store Provider as set out in clause 5.5. DOWNLOADING THE APPLICATION AND ACCESSING PAID CONTENT (IAP)
5.1
In order to access the Application, you will be required to download the Application, register an Account with us and subscribe to the Application. Access to the Application is provided on a freemium basis, where a subscription is required to access features (such as logging).5.2
Downloads of the Application including in-app purchases for subscriptions and add-ons to the Application (IAP) are handled, managed, maintained and governed by the relevant App Store Provider in which you downloaded the Application from.5.3
Subscription to the Application is offered on a monthly or annual subscription basis, or such other subscription basis as offered by us from time to time (subject to the below terms).
To subscribe to the Application simply follow the prompts on the Application and the relevant App Store Provider. The price payable for any subscription as well as the terms and features of your subscription will be as published by the relevant App Store Provider at the time you place your order.
The price payable varies based on the country or region of your App Store Provider account. In the event that you change country or region of your App Store Provider account, then we reserve the right to adjust your subscription pricing to reflect your country or region.
Please note that the final charge you will pay will be as specified by the relevant App Store Provider. If for any reason, the price specified by the App Store Provider does not match the price stated on the Application please contact us prior to purchasing.
5.4
Subscriptions will automatically renew monthly or annually (depending on your chosen subscription) on the renewal date as set out in the relevant App Store Provider where you downloaded the Application.
For renewal terms including renewal periods, renewal dates and cancellation please review the App Store Provider where you downloaded the Application.
Cancellation must be processed by the relevant App Store Provider prior to your renewal date, otherwise your subscription will renew and you authorise us (as well as the relevant App Store Provider) to charge your payment method for the renewed subscription term.
Fees payable for renewed periods will be the then current fees at the time of renewal.
5.5
We may offer additional features for the Application in the form of IAPs, the details of which will be as listed on the Application at the time you purchase the IAP.We reserve the right to charge a fee for such purchases, and the fees payable for any purchase will be as published by the relevant App Store Provider at the time you place your order.
5.6
Purchases of IAP may only be used for the specific subscription for which it was purchased and have the restrictions and limitations as set out on the Application (such as time limits).Extra fees are applicable for the use of IAPs on multiple subscriptions.
5.7
Purchasing an IAP grants you a limited, personal, non-exclusive, non-transferable, non-sublicensable, revocable licence to access and use that IAP in accordance with these Terms and Conditions.5.8
You acknowledge and agree that you are solely responsible for ensuring that you have read and understood any applicable third-party (such as Apple Inc. or Google Inc.) terms and conditions when purchasing and/or downloading the Application or an IAP. The licence granted under these Terms and Conditions is subject to any relevant terms and policies applied by the relevant App Store Provider whose sites are located at either https://play.google.com or https://itunes.apple.com.5.9
We will not be liable for any loss or damage suffered by you in connection with such third party terms, regardless of whether we bring these to your attention or not. You are solely responsible for obtaining a copy of and reviewing such third party terms.6. LOCAL RESTRICTIONS
6.1
The download of the Application, including some of the features accessible to you (such as location sharing), service connectivity, subscriptions, usage of coupons and promotional codes, and contact with us may be unavailable in selected countries or regions due to local restrictions and laws.6.2
Please note no refunds will be applicable in the event the Application is restricted in part or in full in your local country or region.7. TRIAL PROGRAM & PROMOTIONAL CODES
7.1
From time to time we may offer trial programs and/or promotional or coupon codes for free or discounted pricing for use of the Application.7.2
Where a coupon code is required it is your responsibility to ensure that the code is valid, and that you enter the code for use at the correct time. We reserve the right to cancel any promotional or coupon code or discount at any time for any reason at our discretion.
Separate terms may apply to the use of the code and will be advised by us. We reserve the right to reverse or disallow the use of any promotional or coupon code. We will not be responsible for any loss incurred by you in redeeming or attempting to redeem any promotional or coupon code.
7.3
Trial programs are available for first time users only. We reserve the right to terminate your Account if you are found registering for a trial program in contravention of these Terms and Conditions.7.4
Where you use a coupon code or register on a trial program then, unless you cancel your subscription before the end of the trial program or promotional period, then following the trial program or promotional period your subscription will automatically transition to a paid subscription, and you authorise us (as well as the relevant App Store Provider) to automatically charge you our normal billing rates.
You agree to comply with any restrictions or limitations placed on your Account during any trial program and/or free or discounted.
8. THIRD PARTY PROVIDER LEGALS
8.1
How the Apple Inc. terms apply to your use of the Application You acknowledge and agree that:
(a) these Terms and Conditions are between us and you only, and not Apple Inc. We are solely responsible for the Application and the content contained in the Application;
(b) you are given a non-transferable licence to use the Application on any Apple-branded products that you own or control and subject to Apple Inc. terms and conditions (this includes the Usage Rules set forth in the Apple Media Services Terms and Conditions);
(c) we are solely responsible for providing any maintenance and support services with respect to the Application, and Apple Inc. has no obligations whatsoever in this regard;
(d) we are solely responsible for any product warranties and in the event of any failure of the Application to conform to any applicable warranty, you may notify Apple Inc., and Apple Inc. will refund any purchase price paid for the Application to you, to the maximum extent permitted by applicable law, Apple Inc. will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our sole responsibility;
(e) we, and not Apple Inc. are responsible for addressing any claims that you have relating to the Application including product liability claims, any claim that the Application fails to conform to any applicable legal or regulatory requirement and claims arising under consumer protection, privacy or similar legislation;
(f) in the event of any third party claim that the Application or your possession or use of the Application infringes any third party’s intellectual property rights, we and not Apple Inc. will be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim;
(g) you must comply with any applicable third party terms of agreement when using the Application;
(h) Apple Inc. and Apple Inc.’s subsidiaries, are third party beneficiaries of these Terms and Conditions, and upon your acceptance of the Terms and Conditions, Apple Inc. will have the right (and be deemed to have accepted the right) to enforce these Terms and Conditions against you as a third party beneficiary thereof.
You represent and warrant that
(i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and,
(j) you are not listed on any U.S. Government list of prohibited or restricted parties.
8.2
How the Google Inc. terms apply to your use of the ApplicationYou acknowledge and agree that:
(a) these Terms and Conditions are between us and you only, and not Google Inc.;
(b) you are given a non-transferable licence to use the Application on your mobile device subject to Google Inc. terms and conditions (this includes terms of service and policies application to Google Play); and
(c) you must comply with applicable third party terms of agreement when using the Application.
You represent and warrant that
(d) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and,
(e) you are not listed on any U.S. Government list of prohibited or restricted parties.
9. ACCOUNTS
9.1
To access and use the Application, you will need to register with us and set up an Account with your email address and a password.9.2
You acknowledge and agree that:
(a) you must not use false or misleading information and must update your details should they have changed from the last time you used the Application;
(b) you must follow any password policies made available by us from time to time (and as are stated on the Application from time to time);
(c) you must not share access to your Account with others (except to the extent permitted under these Terms and Conditions);
(d) you are responsible for the security of your username and password and we will assume that anyone using your Account is authorised to do so by you and you are responsible for their actions. Under no circumstances will unauthorised access and use of your Account reduce your liability to us; and
(e) you must notify us immediately if you become aware of any unauthorised use of your Account or other security breach.
9.3
If we enable you to connect to the Application with a third-party service (e.g. Facebook or Google+), you hereby grant us permission to access, store, and use your information from that service as permitted by that service and as may be described in our Privacy Policy. You should contact us immediately if you believe your Account has been compromised or misused in any way.9.4
When you notify us of your Account being accessed without your authority or your Account not being secure, we may restrict your use of the Services in our absolute discretion.10. APPLICATION
10.1 Maintenance
We reserve the right to provide general maintenance services to the Application including updating and upgrading the Application during the Term as we consider necessary from time to time.
You acknowledge and agree that the Application may occasionally be unavailable during periods of planned or unscheduled critical and urgent maintenance or updates or upgrading.
10.2 Availability
We will use reasonable endeavours to maintain the availability of the Application but provide no guarantee as to the availability and/or the uptime of the Application. You acknowledge that Application uptime can be dependent on the uptime of third-party integrations (in accordance with the other terms of clause). We will not be in breach of these Terms and Conditions if we fail to maintain the Application’s uptime, nor will we be liable for any Loss suffered by you or any other person in this regard.
10.3 Third Party Integrations
(a) The Application may support integrations with third-party services to enable the Application to provide certain feature.
(b) You acknowledge that such third-party services are beyond our reasonable control, and in the event that:
(i) a third-party service is experiencing issues or downtime; or
(ii) you are required to maintain an account with that third-party service and fail to do so,
this may also cause the Application to become unavailable and/or not operate correctly and we accept no responsibility for any Losses or notification in this regard.
(c) Where information is transferred to or from a third-party service, we will not be liable for any Loss arising from the use of that information by that third-party service.
11. USER OBLIGATIONS
11.1
In using the Application you acknowledge and agree that:
(a) you have a compatible smartphone as listed from time to time in the Application;
(b) you have and will maintain secure internet access at all times;
(c) you are solely responsible to ensure that the Application is updated and running before and during each activity;
(d) you are solely responsible to ensure that the Application it is able to connect to the servers;
(e) you must have location services on at all times;
(f) you are solely responsible for any data charges and expenses associated with the use of the Application.
12. SYSTEM INTEGRITY & USER CONDUCT
12.1
You acknowledge and agree that you will:
(a) only use the Application in accordance with these Terms and Conditions and any Policy; and
(b) not use the Application in any way that causes, or may cause, damage to the Application or impairment of the availability or accessibility of the Application.
12.2
Your use of the Application and the Services, including the information submitted on the Application and the Services, must not:
(a) be false, inaccurate, misleading, fraudulent, deceptive or unlawful;
(b) be in any manner which could damage, disable, overburden, or impair the Application or interfere with any other party's use and enjoyment of this Application;
(c) be in any manner to phish or deceptively obtain information of other users of the Application;
(d) be for illegal activities;
(e) impersonate or otherwise misrepresent your identity or affiliation with any other person or entity;
(f) be for purposes of junk, obscene, indecent, offensive or threatening electronic mail or electronic mail in contravention of the Spam Act 2003 (Cth) or to attract, lure or illegally obtain information from other users of the Application;
(g) infringe any third-party’s rights or violate any Applicable Laws;
(h) contain any viruses or similar which could affect the integrity, operation or security of the Application;
(i) create liability for us or cause us to lose (in whole or in part) the services or custom of our internet service provider, other clients, users or other suppliers;
(j) damage our credibility or integrity or that of the Application, or dilute, tarnish, or otherwise harm our brand in any way; or
(k) interfere with or disrupt the Application or servers or networks connected to the Application, or disobey any requirements, procedures, policies, or regulations of networks connected to the Application.
13.1
Whilst using the Application and the Services, you must not:
(a) attempt to gain unauthorised access to the Application or computer systems or networks connected to the Application through any means;
(b) commit forgery (or attempted forgery), harass any individual, or harm minors in any way;
(c) collect, store, input, upload, post, disclose or transmit personal information or data about others, including, without limitation email addresses (except to the extent intended by the Application);
(d) breach or violate any of our policies;
(e) falsify or delete any attributions, legends, or other proprietary designations of origin or source of any content of the Application;
(f) copy, store or otherwise access or use any information contained on the Application for purposes not expressly permitted by these Terms and Conditions;
(g) use the Application for any purposes that are not permitted by these Terms and Conditions or in any way that is inconsistent with the purpose of the Application, or in a manner that falsely implies our endorsement, partnership or otherwise misleads others as to your affiliation with us;
(h) attempt to circumvent payment of any fees in anyway;
(i) tamper with, hinder the operation of or make unauthorised modifications to the Application or any part thereof;
(j) damage or modify the Application or any part thereof; or,
(k) circumvent, disable or otherwise attempt to interfere with any security related features.
13. ACCESS AND TERMINATION
13.1
These Terms and Conditions will continue to apply until terminated or superseded by us. You can terminate your agreement with us by following the prompts on the Application and the App Store Provider to cancel your subscription. Cancellation will be effective at the end of the current subscription term prepaid for.13.2
We may terminate our agreement with you or cease providing all or any part of the Application immediately without notice to you if:
(a) it is reasonably necessary for security, technical, copyright or operational reasons;
(b) you breach any of the Terms and Conditions or act in a manner that demonstrates you are unable to or do not intend to comply with them, in our opinion;
(c) you violate the rights of any third-party or us;
(d) we reasonably believe that you are engaged in illegal or fraudulent use of the Application;
(e) we reasonably believe that any Client Data is inappropriate or unlawful;
(f) we reasonably believe that you are using the Application in a way that would cause Loss or damage to or otherwise cause legal liability to us, other users, third parties or disrupt others’ use of the Application;
(g) where we are required to by law, for example due to a change in law governing the Application;
(h) the Application relies on data or services provided by a third party partner and the relationship with such partner has expired, been terminated or altered in a manner which we consider to be adverse; or,
(i) provision of the Application is no longer commercially reasonable to us.
14. EFFECTS OF TERMINATION
14.1
On termination of these Terms and Conditions:
(a) your licence and right to use the Application is revoked and your access will be terminated;
(b) you must cease using the Application; and
(c) all amounts payable to us (including amounts that are not yet due) shall become immediately due and payable and must be paid within 7 days of termination without set-off or counter claim (except where termination is due to our default there is to be no pro-rata refund for a part term).
14.2
Any clause of these Terms and Conditions which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.15. INTELLECTUAL PROPERTY RIGHTS
15.1 The Application and Materials
(a) You acknowledge that we (and our licensors) shall at all times retain all title, rights and interest in and to the Materials and the Application including:
(i) the Intellectual Property Rights subsisting in each;
(ii) any customisations of, and modifications to, the Materials and the Application;
(iii) all information or data, source codes and other information technology relating to or connected with the Materials and the Application;
(iv) marketing information relating to or connected with the Materials and the Application;
(v) our trademarks or registered trademarks; and,
vi) technical information, including trade secrets, drawings, plans, encryptions, codes and product descriptions and information relating to or connected with the Materials and the Application,
however, excludes the Client Data.
(b) No right, title and interest in any of the Application and Materials is transferred or granted to you except so far as expressly stated in these Terms and Conditions. You must not use the Application in any way that is inconsistent with our ownership.
(c) For the avoidance of doubt, you have no right to access the software code (including object code, intermediate code and source code) of the Application, either during or after the Term. We may in our sole and absolute discretion refuse or remove any content or features from the Application.
15.2 Client Data
(a) You shall at all times retain ownership of the Client Data including the Intellectual Property Rights subsisting in it.
(b) You are solely responsible for the uploading and publishing of any Client Data. We may, in our absolute discretion, refuse to accept the upload of Client Data to the Application. You agree that we shall not be liable to you for any Loss or damage you may suffer as a result of this.
(c) You hereby grant to us an irrevocable, worldwide, perpetual, transferable, non-exclusive license to use, communicate, display, copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Client Data to the extent reasonably required for the performance of our obligations (including to provide the Services) and the exercise of our rights under these Terms and Conditions, together with the right to sub-license these rights to our service providers to the extent reasonably required for the performance of our obligations and the exercise of our rights under these Terms and Conditions.
(d) We warrant that:
(i) we will only use the Client Data in accordance with these Terms and Conditions and our Privacy Policy in place from time to time; and,
(ii) we will not sell, rent or lease the Client Data to any third-party.
(e) You warrant that:
(i) you own or have the necessary licenses, authorisations and consents to transmit such Client Data through the Application, and to grant such licences to us as set out under this clause; and,
(ii) that any Client Data provided, and the use of and licenses to such Client Data granted to us will not infringe any third-party rights (including intellectual property or confidentiality obligations) nor give rise to a liability to make royalty or other payments to a third-party;
and,
(iii) the Client Data will not:
A. breach the provisions of any law, statute or regulation;
B. give rise to any cause of action against us,
in each case in any jurisdiction and under any applicable law.
16. RESTRICTION OF ACCESS TO CLIENT DATA
16.1
Subject to the other terms of this clause, in the event that
(a) these Terms and Conditions and/or your access to the Application is suspended, restricted or terminated; or
(b) you close your account or your subscription or terminate these Terms and Conditions, your access to the Client Data will be immediately revoked and your Account will become inactive.
For the avoidance of doubt you will have no access to the Client Data (including access to download any Client Data that is available to download) while your Account is inactive.
16.2
Prior to termination of these Terms and Conditions or your Account otherwise becoming inactive, you are solely responsible for downloading any Client Data that is available for download from the Application. Only the Client Data that is made available in the format as specified on the Application may be downloaded. We do not guarantee, represent or warrant that all of the Client Data will be able to be downloaded as not all Client Data is made available for download. We will not be providing a download of the Client Data once your Account becomes inactive.17. DISCLAIMER
17.1
We provide the Services on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. You rely on the Services at your own risk and are solely responsible and liable for how you use the Services.17.2
Without limiting the above clause, you acknowledge and agree that:
(a) we do not guarantee continuous, uninterrupted or secure access to the Application or that any information provided by us is up to date and accurate;
(b) we do not warrant that the use of the Application will result in you achieving any specific result, including that the Application will accurately track and log your activities;
(c) we make no guarantees that there will be no loss or corruption of Client Data at any time, or that data backups (if any) will be readable, or that any Client Data is able to be backed up or recovered.
Unfortunately, data loss happens and we will not be liable for any Loss you suffer in the event that Client Data is lost, for example if a database is corrupt and Client Data is corrupt;
(d) whilst best endeavours will be made to ensure the accuracy of the data on the Application, we cannot guarantee the accuracy, currency, suitability, reliability and availability of the Application and any content gained within;
(e) the Application involves actions provided by you, and from integrated third-party services (including location and connection services). We take no responsibility if the outcome of the Application is inaccurate, incomplete or non-reliable because it is based on inaccurate, incomplete or non-reliable input provided by you or third party services. This includes circumstances where:
(i) location services are unavailable (such as through interference) or if the conditions for accurate location services are not met (such as being indoors); or,
(ii) the Application is unable to obtain a secure internet connection, or a constant internet connection;
(f) the information provided on and in the Application is general information and is not in the nature of financial, legal or any form of advice. You should obtain advice before making any decision based on the Application;
(g) we reserve the right to withdraw, or amend, update or change the functionality or content of the Application at any time, without notice;
(h) we may remove or delete the Client Data after the termination of these Terms and Conditions. It is solely your responsibility to download any Client Data that is able to be downloaded before the expiry or termination of these Terms and Conditions; and
(i) we will maintain appropriate technical and organisational measures to protect the security of the Client Data. However, we do not guarantee that unauthorised third parties will never be able to defeat those measures to access the Client Data for improper purposes. You acknowledge that there are risks inherent in internet connectivity that could result in the loss of privacy, confidential information and Client Data. Accordingly, any Client Data that is transmitted by you is transmitted solely at your risk. You are solely liable for your Client Data.
18. LIMITATION OF LIABILITY
18.1
Subject to the other terms of this clause, we exclude all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in these Terms and Conditions to the maximum extent permitted by law.18.2
Without limitation to the clause above, to the extent permitted by law, we exclude all liability to you and/or anyone else for Losses arising in any way in connection with the Application or its use and/or the Services and/or these Terms and Conditions, including but not limited to Losses suffered as a result of:
(a) any planned or foreshadowed system downtime of the Application;
(b) non-performance of the Application;
(c) any reliance on the Application (or any information provided from the Application);
(d) any incorrect data entry or information made by you on the Application;
(e) any incorrect data or content, errors, mistakes or inaccuracies on the Application;
(f) personal injury or property damage of any kind resulting from your access to or use of the Application;
(g) any loss or corruption of Client Data at any time;
(h) any defects, errors and bugs in the Application;
(i) any unauthorised access to or use of the Application;
(j) any interruption or cessation of transmission to or from the Application;
(k) use of the Application which is contrary to law, these Terms and Conditions or any other agreement between us and you;
(l) unauthorised third-party access to the Application or the Services;
(m) any viruses, trojan horses or other harmful code or communications which may be transmitted to or through the Application by any third-party; and/or,
(n) loss of privacy and confidential information.
18.3
Subject to the other terms of this clause, our maximum aggregate liability to you for any Loss or damage or injury arising out of or in connection with these Terms and Conditions, including any breach by us of these Terms and Conditions however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual charges paid by you to us under these Terms and Conditions in the one-month period preceding the matter or event giving rise to the claim.18.4
Nothing in these Terms and Conditions is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of the ACL, or the exercise of a right conferred by such a provision, or any liability of ours in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of services, to the extent that the ACL applies to the Services.18.5
If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, our total liability to you for that failure is limited to, at our option the resupply of the Services or the payment of the cost of resupply.18.6
The limitation and exclusion of liability in this clause applies whether the liability claim is based on breach of contract, under a warranty or an indemnity, tort (including negligence), under statute, in equity or otherwise.18.7
Without limitation to the other terms of this clause, we exclude any liability to you, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with these Terms and Conditions.18.8
Notwithstanding anything else in this clause, our liability will be reduced to the extent the loss or damage is caused by or contributed to by you.18.9
If you recover any amount under an insurance policy in respect of a claim under or in relation to or arising out of these Terms and Conditions and that amount is less than the loss or damage incurred by you, the amount of the shortfall will be the amount of your loss for the purposes of these Terms and Conditions.19. INDEMNITY
19.1
Except to the extent caused by the breach of these Terms and Conditions by us, you indemnify and release us, and our officers, directors, shareholders, employees, consultants, agents, and related bodies corporate from and against any Losses (including any direct, indirect, special or consequential Losses) and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses suffered or incurred by us arising out of or in connection with:
(a) your use of the Services;
(b) the supply, suspension, restriction or cancellation of your access to the Application;
(c) your breach or negligent performance or non-performance of these Terms and Conditions;
(d) from your violation of any applicable law;
(e) any claim made against us and/or you by a third-party arising out of or in connection with these Terms and Conditions, to the extent that such claim arises from the act or omission of you or out of the breach, negligent performance or failure or delay in performance of these Terms and Conditions by you;
(f) any claim made against us for actual or alleged infringement of a third-party’s rights arising out of or in connection with the Client Data; and/or
(g) the enforcement of these Terms and Conditions by us.
19.2
You must make payments under this clause:
(a) in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law; and
(b) in the currency in which the payment is due, and otherwise in Australian dollars, in immediately available funds.
19.3
It is not necessary for us to incur expense or make payment before enforcing a right of indemnity under this clause.19.4
The indemnities in this clause:
(a) are continuing obligations of yours, independent from your other obligations under these Terms and Conditions and survive termination or expiry of these Terms and Conditions; and
(b) are absolute and unconditional and unaffected by anything which otherwise might have the effect of prejudicing, releasing, discharging or affecting the liability of yours.
20. SECURITY
20.1
We take all reasonable steps, however we do not guarantee the security of the Application, our records, or your information. We disclaim all liability for any computer virus or technological problems that are beyond our control.20.2
Continuous accessibility to the Application is dependent upon third party services and as a result, the Application may be inaccessible from time to time.21. PRIVACY
21.1 Privacy obligations
(a) In respect of any Personal Information (as defined in the Privacy Legislation) that is included in Client Data or otherwise provided to, collected or received by either party in connection with the Application, you must comply with:
(i) the Privacy Legislation; and,
(ii) the applicable Policies and guidelines of ours as made known from time to time.
(b) You warrant and represent that all Personal Information that you provide to us complies with this clause and these Terms and Conditions at all times. Immediately upon becoming aware of any breach of any Privacy Legislation in respect of Personal Information provided to us, you must inform us of this.
22. IDEAS AND FEEDBACK
22.1
If you provide us with any feedback, ideas, modifications, suggestions, improvements or other content you agree that we may, at any time, without restrictions exploit, copy, republish, edit, or otherwise use such content on any medium worldwide (including on the internet).
We will not be required to pay you any compensation for such content (regardless of our use). We have no obligation to review any content or otherwise remove any content that may be unlawful, offensive, threatening, defamatory or obscene.
23. CONTACT
For any questions, complaints or claims with respect to the Application please contact us using the details noted in our Privacy Policy.