Mobile Application End User Licence Agreement

This Mobile Application End User Licence Agreement (“Agreement”) is made between You and the Publisher of this app (“Licensor”), including any other related entities (within the meaning of the Corporations Act 2001 (Cth)) and governs Your use of The Licensor’s Mobile Application (“App”). 

By installing the App You agree to be bound by the terms and conditions of this Agreement.

1.    Definition and Interpretation

1.1.    In this Agreement, unless the context indicates the contrary:

Confidential information    
means all information provided by one party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought reasonably be considered confidential based on its content, nature or the manner of its disclosure, but excluding:

a)    information that enters the public domain or is disclosed to a party by a third party, other than through a breach of this Agreement; and
b)    information developed independently by a party.

Insolvency Event     means:
(a)    being a corporation – where the corporation is an externally-administered body corporate within the meaning of the Corporations Act 2001 (Cth), or which is otherwise unable to pay debts as and when they fall due; and / or 
(b)    being an individual – where the individual commits an act of bankruptcy within the meaning of the Bankruptcy Act 1966 (Cth), or where the individual becomes and insolvent under administration within the meaning of the Corporations Act 2001.

Intellectual Property Rights    means all intellectual property rights, including all copyright, patents, trademarks, design rights, trade secrets, domain names, know-how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.

App    means The Licensor’s Mobile Application Software delivered to You pursuant to this Agreement.

1.2.    Unless the context requires otherwise:

1.2.1.    a reference to a person includes a corporation or any other legal entity;
1.2.2.    the singular includes the plural and vice versa;
1.2.3.    headings are for convenience and do not form part of this Agreement or otherwise affect the interpretation of this Agreement;
1.2.4.    the term “includes” (or any similar term) means “includes without limitation”; and
1.2.5.    a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it.

2.    Grant of Licence

2.1.    The App is owned exclusively by the Licensor 

2.2.    The Licensor has granted the Licensor a non-exclusive, world-wide, non-transferable licence to use the App.

2.3.    The Licensor grants to You a non-exclusive, world-wide, non-transferable licence to use the App, subject to and in accordance with the terms and conditions set out in this Agreement and any annexures or amendments.

2.4.    You must not:

2.4.1.    use the App for any purpose or in any manner other than as set out in this Agreement;
2.4.2.    use the App in any unlawful manner, for any unlawful purpose or in any way that could damage the reputation of the Licensor or the goodwill or other rights associated with the App;
2.4.3.    permit any third party to use the App;
2.4.4.    except as expressly permitted by this Agreement, and except to the extent that applicable laws, including the Copyright Act 1968 (Cth), prevent the Licensor restraining You from doing so:
2.4.4.1.    reproduce, make error corrections to or otherwise modify or adapt the App or create any derivative works based upon the App;
2.4.4.2.    de-compile, disassemble or otherwise reverse engineer the App or permit any third party to do so; or
2.4.5.    modify or remove any copyright or proprietary notices from the App.

3.    Intellectual Property Rights

3.1.    Nothing in this Agreement constitutes a transfer of any Intellectual Property Rights in the App.

3.2.    You:

3.2.1.    acknowledge that the Licensor owns all Intellectual Property Rights in the App; and
3.2.2.    will not directly or indirectly do anything that would or might invalidate or put in dispute the Licensor’s title in the App.

3.3.    If any person makes any claim alleging that any of the App (or use of the App) infringes any Intellectual Property Rights of any person, You must:

3.3.1.    promptly notify The Licensor in writing;
3.3.2.    not make any admissions or take any action in relation to the claim without The Licensor written consent;
3.3.3.    permit The Licensor control over any and all investigations, negotiations, settlement, dispute resolution or other proceedings relating to the claim; and
3.3.4.    co-operate with, assist and act at all times in accordance with the reasonable instructions of The Licensor in relation to the claim and any consequent investigations, negotiations, settlement, dispute resolution or other proceedings.

4.    Protection of Confidential Information

4.1.    A party must not, without the prior written consent of the other, use or disclose the other party’s Confidential Information unless expressly permitted by this Agreement or required to do so by law or any regulatory authority.

4.2.    A party may:

4.2.1.    use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under this Agreement; and
4.2.2.    disclose the Confidential Information to its personnel or advisers to the extent necessary for them to know the information for purposes related to this Agreement, but only if reasonable steps are taken to ensure that the confidentiality of the information is retained.

4.3.    Each party must implement and maintain effective security measures to prevent unauthorised use and disclosure of the other party's Confidential Information whilst it is in the receiving party’s possession or control.  

4.4.    Each party must return, or at the other party’s option destroy, all Confidential Information of the disclosing party in the receiving party's possession or control, on the earlier of the Licensor’s request or on termination of this Agreement for any reason.

4.5.    The App may collect information including device, operating system and other personal information for registration and contact data purposes. The Licensor agrees to keep this information confidential, use it for the sole purpose of communicating via the App and not release it to any third party.

5.    Warranties

5.1.    Each party warrants to the other that it has the right and ability to enter into this Agreement and that this Agreement will be legally binding on it.

5.2.    The Licensor expressly disclaims any warranty for the App. The App is provided on an ‘As Is’ basis without any express or implied warranty of any kind, including but not limited to any warranties of merchantability, non-infringement, or fitness for a particular purpose. 

5.3.    The Licensor does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or any other items contained within the App. 

5.4.    The Licensor makes no warranties in respect of any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb, or other such program. 

5.5.    The Licensor further expressly disclaims any warranty or representation to You or to any third party, to the full extent permitted by law.

6.    Limitation of liability

6.1.    To the full extent permitted by law, the Licensor excludes all liability in respect of loss of data, interruption of business or any consequential or incidental damages.

6.2.    To the full extent permitted by law, the Licensor excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in this Agreement.

6.3.    Either party’s liability for any claim relating to this Agreement will be reduced to the extent to which the other party contributed to the damage arising from the claim.

6.4.    This Agreement is to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations.  If such legislation applies, to the extent possible, the Licensor limits its liability in respect of any claim to, at the Licensor’s option:

6.4.1.    in the case of goods:
6.4.1.1.    the replacement of the goods or the supply of equivalent goods;
6.4.1.2.    the repair of the goods;
6.4.1.3.    the payment of the cost of replacing the goods or of acquiring equivalent goods; or
6.4.1.4.    the payment of having the goods repaired, and
6.4.2.    in the case of services:
6.4.2.1.    the supply of the services again; or
6.4.2.2.    the payment of the cost of having the services supplied again. 

7.    App Updates and Availability

7.1.    The Licensor makes no guarantee that the App will work on all mobile handsets. Download and operation success will depend on the particular handset settings. 

7.2.    Additionally, for certain versions of the App, in order to enhance the security of the App or to fix bugs, from time to time, the Licensor reserves the right to automatically download and install updates to the App with or without prior notification to You. 

7.3.    The Licensor is solely responsible for the maintenance and support of the App. 

7.4.    The Licensor is permitted to suspend access to service through the App. The Licensor may do this for any reason, but will usually only do so when carrying out maintenance on the App or the systems supporting it. Except in the case of emergencies, the Licensor will provide you with at least 48 hours’ notice prior to the suspension of access to service through the App.

8.    Release of any Liability to the Licensor

8.1.    The Licensor expressly disclaims any warranty for the App.  The App is provided on an ‘As Is’ basis without any express or implied warranty of any kind, including but not limited to any warranties of merchantability, non-infringement, or fitness for a particular purpose. 

8.2.    The Licensor does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or any other items contained within the App. 

8.3.    The Licensor makes no warranties in respect of any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb, or other such program. 

8.4.    The Licensor further expressly disclaims any warranty or representation to You or to any third party, to the full extent permitted by law.

8.5.    To the full extent permitted by law, The Licensor excludes all liability in respect of loss of data, interruption of business or any consequential or incidental damages.

8.6.    To the full extent permitted by law, The Licensor excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in this Agreement.

8.7.    This Agreement is to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations.  If such legislation applies, to the extent possible, The Licensor limits its liability in respect of any claim to, at The Licensor’s option:

8.7.1.    in the case of goods:
8.7.1.1.    the replacement of the goods or the supply of equivalent goods;
8.7.1.2.    the repair of the goods;
8.7.1.3.    the payment of the cost of replacing the goods or of acquiring equivalent goods; or
8.7.1.4.    the payment of having the goods repaired, and

8.7.2.    in the case of services:
8.7.2.1.    the supply of the services again; or
8.7.2.2.    the payment of the cost of having the services supplied again.

8.8.    You confirm that by entering into this Agreement you have not relied upon any warranties (express or implied) of any kind, given by The Licensor, in respect of the App.

9.    Termination of License Rights

9.1.    A party may terminate this Agreement by written notice to the other if any of the following events has occurred in respect of the other party:

9.1.1.    A material breach of this Agreement which is not remediable or if capable of remedy where the other party fails to remedy within 14 days of written notice;
9.1.2.    An Insolvency Event occurs, other than an internal reconstruction with notice to the other party.

9.2.    If this Agreement is terminated or expires for any reason, then, in addition and without prejudice to any other rights or remedies available:

9.2.1.    The parties are immediately released from their obligations under the Agreement except those obligations relating to intellectual property and confidentiality.
9.2.2.    Each party retains the claims it has against the other;
9.2.3.    Your right to use the App immediately ceases and the licences granted under this Agreement terminate;
9.2.4.    You must immediately remove all App’s from system; and
9.2.5.    You must immediately pay all outstanding fees.

10.    Controlling Law

10.1.    This Agreement will be governed and constructed in accordance with the laws of the State of New South Wales, Australia.

11.    General

11.1.    Nothing contained in this Agreement creates any relationship of partnership or agency between the parties.

11.2.    If a provision of the Agreement is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.

11.3.    Each party must at its own expense do everything reasonably necessary to give full effect to this Agreement and the events contemplated by it.

11.4.    This Agreement, together with any updates, additional terms, App licences and rules and policies of the Licensor, constitutes the entire Agreement of the parties about its subject matter and supersedes all other representations, arrangements or agreements.

11.5.     Other than as expressly set out in this Agreement, no party has relied on any representation made by or on behalf of the other. 

11.6.    The Licensor reserves the right to change this Agreement at any time by advising you in writing of such change. Continued use of the App by You after notification of any such change constitutes Your acceptance of the amended Agreement.