MOBILE APP – END USER LICENCE AGREEMENT
PLEASE READ CAREFULLY BEFORE DOWNLOADING OR STREAMING THE APP FROM THIS WEBSITE.
This end-user licence agreement (EULA) is a legal agreement between you (End-user or you) and Pummel Pty Ltd ACN 610 587 089 of UNIT 1 53 TOWNSHIP DRIVE WEST BURLEIGH QLD 4219 (Licensor, us or we) for:
Zippy.com.au mobile application software (App); and
any online or electronic documents provided to you in connection with the App (Documents).
We licence use of the App and Documents to you on the basis of this EULA and subject to any rules or policies applied by any appstore provider or operator from whose site, located on iTunes or Google Play Store (Appstore), the End-user downloaded the App (Appstore Rules). We do not sell the App or Documents to you. We remain the owners of the App and Documents at all times.
Operating system requirements This App requires an iPhone or Android device, Internet access and the apple operating system version iOS 7 or above OR Android 4 or above.
If you do not agree to the terms of this licence, we will not license the App and Documents to you and you must stop the downloading process now. In this case the downloading process will terminate.
As a consumer, you have the right to withdraw from your transaction without charge and without any reason before downloading the App and Documents.
However, you will lose the right to cancel the transaction once you begin to download or stream the App or Documents.
This does not affect your consumer rights for an app or documents that are defective.
You should print a copy of this EULA for future reference.
1.1 The App is a business to customer service which, once you have downloaded it, allows you to access rewards, sales and promotions (Rewards) posted by local businesses (Businesses) in your local area. Details on how to claim Rewards from Businesses are further set out in the App and the Documents. By downloading the App and accessing the Documents you agree and acknowledge:
(a) the services we provide to you are limited to the services accessible through the App (Services) which primarily consists a forum provided free of charge through which you can locate Rewards in your local area;
(b) we do not supply you with the goods or services offered in the Rewards; and
(c) we have no control over the Businesses and accept no responsibility or liability for loss or damage caused by Businesses failing to provide the Rewards they have advertised through the App.
1.2 The terms of this EULA apply to the App or any of the Services, including any updates or supplements to the App or any Service, unless they come with separate terms, in which case those terms apply. If any open-source software is included in the App or any Service, the terms of an open-source licence may override some of the terms of this EULA.
1.3 We may change these terms at any time by sending you an SMS with details of the change or notifying you of a change when you next start the App. The new terms may be displayed on-screen and you may be required to read and accept them to continue your use of the Services.
1.4 From time to time updates to the App may be issued through the Appstore. Depending on the update, you may not be able to use the Services until you have downloaded or streamed the latest version of the App and accepted any new terms.
1.5 You will be assumed to have obtained permission from the owners of the mobile telephone or handheld devices that are controlled, but not owned, by you and described in condition 2.2(a) (Devices) and to download or stream a copy of the App onto the Devices. You and they may be charged by your and their service providers for internet access on the Devices. You accept responsibility in accordance with the terms of this EULA for the use of the App or any Service on or in relation to any Device, whether or not it is owned by you.
1.7 By using the App or any of the Services, you consent to us collecting and using technical information about the Devices and related software, hardware and peripherals for Services that are internet-based or wireless to improve our products and to provide any Services to you.
1.8 Certain Services will make use of location data sent from the Devices. You can turn off this functionality at any time by turning off the location services settings for the App on the Device. If you use these Services, you consent to us and our affiliates’ and licensees’ transmission, collection, maintenance, processing and use of your location data and queries to provide and improve location-based and road traffic-based products and services. You may withdraw this consent at any time by turning off the location services settings on your Device.
1.9 The App or any Service may contain links to other independent third-party websites (Third-party Sites). Third-party Sites are not under our control, and we are not responsible for and do not endorse their content or their privacy policies (if any). You will need to make your own independent judgement regarding your interaction with any Third-party Sites, including the purchase and use of any products or services accessible through them.
1.10 Any words following the terms including, include, in particular or for example or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words.
2. GRANT OF SCOPE AND LICENCE
2.2 You may:
(a) download or stream a copy of the App onto your Device and view, use and display the App on the Device for your personal purposes only; and
(b) use the Documents for your personal purposes only.
3. LICENCE RESTRICTIONS
Except as expressly set out in this EULA or as permitted by any local law, you agree:
(a) not to copy the App or Documents except where such copying is incidental to normal use of the App, or where it is necessary for the purpose of back-up or operational security;
(b) not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the App or Documents;
(c) not to make alterations to, or modifications of, the whole or any part of the App, or permit the App or any part of it to be combined with, or become incorporated in, any other programs;
(d) not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the App or attempt to do any such thing except to the extent that such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the App with another software program, and provided that the information obtained by you during such activities:
(i) is used only for the purpose of achieving inter-operability of the App with another software program;
(ii) is not unnecessarily disclosed or communicated without our prior written consent to any third party; and
(iii) is not used to create any software that is substantially similar to the App;
(e) to keep all copies of the App secure and to maintain accurate and up-to-date records of the number and locations of all copies of the App;
(f) to include our copyright notice on all entire and partial copies you make of the App on any medium;
(g) not to provide or otherwise make available the App in whole or in part (including object and source code), in any form to any person without prior written consent from us; and
(h) to comply with all technology control or export laws and regulations that apply to the technology used or supported by the App or any Service (Technology),
together Licence Restrictions.
4. ACCEPTABLE USE RESTRICTIONS
(a) not use the App or any Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this EULA, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the App, any Service or any operating system;
(b) not infringe our intellectual property rights or those of any third party in relation to your use of the App or any Service (to the extent that such use is not licensed by this EULA);
(c) not transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the App or any Service;
(d) not use the App or any Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; and
(e) not collect or harvest any information or data from any Service or our systems or attempt to decipher any transmissions to or from the servers running any Service.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 You acknowledge that all intellectual property rights in the App, the Documents and the Technology anywhere in the world belong to us or our licensors, that rights in the App are licensed (not sold) to you, and that you have no rights in, or to, the App, the Documents or the Technology other than the right to use each of them in accordance with the terms of this EULA.
5.2 You acknowledge that you have no right to have access to the App in source-code form.
6. AUSTRALIAN CONSUMER LAW
6.1 Insofar as the Services are provided to you free of charge and we do not supply the goods or services offered in the Rewards, you agree that Schedule 2 of the Competition and Consumer Act 2010 (Cth) does not apply to this EULA or any other agreement we have with you.
6.2 If it is found by a court of competent jurisdiction that the Services provided to you under this EULA do constitute a contract for the provision of services as defined under Schedule 2 of the Consumer Act, then clauses 6.3 – 6.4 apply.
6.3 Our liability for a breach of a condition or warranty implied by Schedule 2 Part 3-2 Division 1 of the Consumer Act is hereby limited to:
(a) in the case of goods, any one or more of the following:-
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods;
(iv) the payment of the cost of having the goods repaired; or
(b) in the case of services:-
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
6.4 Our liability under Schedule 2, Part 3-2 Division 1 s55 of the Consumer Act is expressly limited to a liability to pay to you an amount equal to:
(a) the cost of replacing the goods;
(b) the cost of obtaining equivalent goods; or
(c) the cost of having the goods repaired,
whichever is the lowest amount.
7. LIMITATION OF LIABILITY
7.1 You acknowledge that the App has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the App as described in the Documents meet your requirements.
7.2 We only supply the App and Documents for domestic and private use. You agree not to use the App and Documents for any commercial, business or resale purposes, and we have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
7.3 By downloading the App you agree to indemnify us from any loss of damage suffered by you or any third party claim against you in connection with your use of this App or the Documents.
7.4 This clause 6 shall survive termination of this EULA.
7.5 Nothing in this EULA shall limit or exclude our liability for:
(a) death or personal injury resulting from our negligence;
(b) fraud or fraudulent misrepresentation; and
(c) any other liability that cannot be excluded or limited by Queensland law.
8.1 We may terminate this EULA immediately by written notice to you:
(a) if you commit a material or persistent breach of this EULA which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so; or
(b) if you breach any of the Licence Restrictions or the Acceptable Use Restrictions.
8.2 On termination for any reason:
(a) all rights granted to you under this EULA shall cease;
(b) you must immediately cease all activities authorised by this EULA, including your use of any Services;
(c) you must immediately delete or remove the App from all Devices, and immediately destroy all copies of the App and Documents then in your possession, custody or control and certify to us that you have done so;
(d) we may remotely access the Devices and remove the App from all of them and cease providing you with access to the Services and the Appstore; and
(e) any Reward offered by a Business through the use of your App will be suspended and you will not be allowed to access those deals or savings.
9. COMMUNICATION BETWEEN US
9.1 If you wish to contact us in writing, or if any condition in this EULA requires you to give us notice in writing, you can send this to us by e-mail or by prepaid post to Pummel Pty Ltd at UNIT 1 53 TOWNSHIP DRIVE WEST BURLEIGH QLD 4219 and firstname.lastname@example.org. We will confirm receipt of this by contacting you in writing, normally by e-mail.
9.2 If we have to contact you or give you notice in writing, we will do so by e-mail or by pre-paid post to the address you provide to us in your request for the App.
10. EVENTS OUTSIDE OUR CONTROL
10.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this EULA that is caused by any act or event beyond our reasonable control, including without limitation failure of public or private telecommunications networks or failure of a Business to provide the Reward (Event Outside Our Control).
10.2 If an Event Outside Our Control takes place that affects the performance of our obligations under this EULA:
(a) our obligations under this EULA will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control; and
(b) we will use our reasonable endeavours to find a solution by which our obligations under this EULA may be performed despite the Event Outside Our Control.
11. OTHER IMPORTANT ITEMS
11.1 We may transfer our rights and obligations under this EULA to another organisation, but this will not affect your rights or our obligations under this EULA.
11.2 You may only transfer your rights or obligations under this EULA to another person if we agree in writing.
11.3 If we fail to insist that you perform any of your obligations under this EULA, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
11.4 Each of the conditions of this EULA operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
11.5 Please note that this EULA, its subject matter and its formation, are governed by Queensland law. You and we both agree that the courts of Queensland will have non-exclusive jurisdiction.
This agreement has been entered into on the date you accepted it by virtue of using the app.