App Terms

Welcome to Fetch’d! WHAT PARTS OF THESE TERMS APPLY TO ME? These terms govern your use of the Fetch’d web application and the services made available through the app (App). Our App is available (via QR codes) on our website, being fetch’ and any other websites we operate with the same domain name and a different extension (Website). By using the App, you agree to be bound by these terms which form a binding contractual agreement between you, the User, and us, Fetch’d Pty Ltd ABN 85 659 671 913 (Fetch’d, we, our or us). The is divided into three parts: • Part A (All Users), which sets out terms that apply to all users of the App (Users), including: o Pet Owners, being individuals which have purchased a pet tag through our Website (Pet Tags) for their pet (Pet) and have created a profile for their Pet on the App (Pet Profile); and o Pet Finders, being individuals that reconnect lost Pets with Pet Owners by scanning a QR code on a Pet Tag and accessing the Pet Profile via the App. • Part B (Pet Owners), which sets out additional terms that apply to Pet Owners only. If you intend to use the App as a Pet Owner, only Parts A and Part B of these terms will apply to you. If you intend to use the App as a Pet Finder, only Part A of these terms will apply to you. Please have a careful read through these terms before using our App. If you don’t agree these terms, please don’t use our App. We may modify these terms from time to time. If we do, we will post a note on this page or email you. If you continue to use the App after we modify these terms, you’ll be taken to have agreed to these terms as modified; and you’ll be taken to have affirmed each of your previous agreements to these terms (in the forms the terms took at the time of those previous agreements). Part A All Users 1 ELIGIBILITY (a) By using the App, you represent and warrant that you are either: (i) over the age of 18 years and accessing the App for personal use; or (ii) under the age of 18 years and have obtained parental or guardian consent for your use of the App. (b) Please do not access the App if you are under the age of 18 years old and do not have your parent or guardian’s consent, or if you have previously been suspended or prohibited from using the App. 2 USER OBLIGATIONS As a User, you agree: (a) not to intimidate, harass, impersonate, stalk, threaten, bully or endanger any other User or distribute unsolicited commercial content, junk mail, spam, bulk content or harassment; (b) if you have an Account (as defined in Part B), to not share your Account with any other person and that any use of your Account by any other person is strictly prohibited. You must immediately notify Fetch’d of any unauthorised use of your Account, password or email, or any other breach or potential breach of the App’s security; (c) to not use the App: (i) in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity (including requesting or accepting a job which includes illegal activities or purposes); and (ii) in connection with any commercial or money making or other promotional or marketing endeavours (except those that are approved in writing by Fetch’d); (d) not to act in any way that may harm the reputation of Fetch’d or associated or interested parties or do anything at all contrary to the interests of Fetch’d or the App; (e) not to make any automated use of the App and not to copy, reproduce, translate, adapt, vary or modify the App without the express written consent of Fetch’d; (f) that Fetch’d may cancel your account at any time if it considers, in its absolute discretion, that you are in breach or are likely to breach this clause 2. 3 ACKNOWLEDGEMENTS AND DISCLAIMERS (a) You acknowledge and agree that: (i) (changes to App) Fetch’d may change any features of the App offered through the App at any time without notice to you; (ii) (information general in nature) information given to you through the App, by Fetch’d or another User, is general in nature and we take no responsibility for anything caused by any actions you take in reliance on that information; and (iii) (no guaranteed outcome) we do not guarantee any particular outcome if you rely on the App (in particular to locate your lost pet). (b) (user interaction) You acknowledge and agree: (i) that while Fetch’d strives to create a safe and respectful user experience, we are not responsible for the conduct of any User either on or off the App or Website; (ii) to use caution in all interactions with other Users if you choose to communicate with another User off the App or Website and particularly if you meet another User in person; and (iii) you are solely responsible for your interaction with other Users. Fetch’d does not conduct police checks on its Users or otherwise inquire into the background of its Users. Fetch’d makes no representations or warranties as to the conduct of its Users. 4 SUPPORT (a) If you experience a technical issue while using the App, you must report the technical issue to Fetch’d by contacting us at info@fetch’ (b) We will provide a reasonable level of support to you to resolve any technical issues with the App within a reasonable time (as determined by Fetch’d) (Support). (c) You will not have any claim for delay to its access to the App due to any failure or delay in Support. (d) Fetch’d will not assist with technical issues that are beyond its reasonable control. 5 SERVICE LIMITATIONS The App is made available to you strictly on an ‘as is’ basis. Without limitation, you acknowledge and agree that Fetch’d cannot and does not represent, warrant or guarantee that: (a) the App will be free from errors or defects; (b) the App will be accessible at all times; (c) messages sent through the App will be delivered promptly, or delivered at all; (d) information you receive or supply through the App will be secure or confidential; or (e) any information provided through the App is accurate or true. 6 OUR CONTENT Unless we indicate otherwise, all materials used in the App (including text, graphics, logos, icons, sound recordings and software) are subject to Intellectual Property Rights that are owned or licensed by us. You can only access and use these materials for the sole purpose of enabling you to use the App, except to the extent permitted by law or where you have received prior written approval from us. In this clause 6, “Intellectual Property Rights” means all copyright, trade mark, design, patent, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of this agreement both in Australia and throughout the world. 7 SECURITY Fetch’d does not accept responsibility for any unauthorised use, destruction, loss, damage or alteration to your data or information (including Posted Materials), your computer systems, mobile phones or other electronic devices arising in connection with your use of the App. You should take your own precautions to ensure that the process you employ to access the App does not expose you to the risk of hacking, malware, ransomware, viruses, malicious computer code or other forms of interference. 8 LIABILITY (a) (Limitation of liability) To the maximum extent permitted by applicable law, Fetch’d limits all liability to any person for loss or damage of any kind, however arising whether in contract, tort (including negligence), statute, equity, indemnity or otherwise, arising from or relating in any way to the App to $100 (AUD) in aggregate. This includes the transmission of any computer virus. (b) (Disclaimer) All express or implied representations and warranties are, to the maximum extent permitted by applicable law, excluded. (c) (Consumer law) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, you may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services we provide. (d) (Indemnity) You agree to indemnify Fetch’d and its employees, contractors and agents in respect of all liability for loss, damage or injury which may be suffered by any person arising from you or your representatives’: (i) breach of any term of this agreement; or (ii) use of the App. (e) (Consequential loss) To the maximum extent permitted by law, under no circumstances will Fetch’d be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with the App (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)). 9 PRIVACY You agree to be bound by the clauses outlined in our Privacy Policy, which can be found at fetch’ 10 TERMINATION (a) Fetch’d reserves the right to terminate a User’s access to the App at any time without notice, for any reason. (b) In the event that a User’s access is terminated, the User will no longer be able to use the App. (c) Users may terminate their Account at any time by using the App’s functionality, where such functionality is available. Where such functionality is not available, Fetch’d will effect such termination within a reasonable time after receiving written notice from the User. (d) Notwithstanding termination or expiry of your Account or this agreement the provisions of Part A and any other provision in this agreement which by its nature would reasonably be expected to be complied with after termination or expiry, will continue to apply. 11 LOCATION OF SERVICES Fetch’d controls the operation of the App from headquarters located in Australia. The App, or parts thereof, may be operated from, or hosted on mirrors or servers, at various locations outside of Australia. We make no representation or warranty that all of the features of the App will be available to you outside of Australia or that they are permitted to be accessed outside Australia. You’re solely responsible for your decision to use the App from other locations and you acknowledge that such use may be subject to, and you are responsible for, compliance with applicable local laws in relation to your use of the App. 12 NOTICES (a) A notice or other communication to a party under this agreement must be: (i) in writing and in English; and (ii) delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party. (b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given: (i) 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this agreement, in which case the notice will be taken to be given on the next occurring business day in that state or territory; or (ii) when replied to by the other party, whichever is earlier. 13 IF THE PARTIES HAVE A DISPUTE (a) If an issue between the parties arises under this agreement that cannot be resolved day-to-day, the parties will make genuine efforts in good faith to participate cooperatively in mediation, at equal shared expense of the parties. (a) The parties will conduct mediation through the Australian Disputes Centre (ADC) and in accordance with the ADC’s Guidelines for Commercial Mediation (as current at the time of the dispute). (b) The parties will follow the mediator’s recommendations on the extent of mediation required, and when to stop mediation if the issue cannot be resolved. (c) If mediation does not resolve the issue, the parties must: (i) if they haven’t already done so, engage independent legal representation at their own expense to understand the strength of their arguments; and (ii) based on that advice, if settlement is not achieved, participate in arbitration (or other dispute resolution mechanism agreed in mediation) through the ADC at equal shared expense. (d) The parties will follow the binding outcome of arbitration (or other agreed mechanism). (e) Either party may at any time during this process make an offer for settlement. The parties acknowledge and agree it is in their best interests to properly consider all genuine settlement offers. The parties will use best endeavours to avoid litigation and reach a prompt settlement. (f) The process in this clause does not apply where a party requires an urgent injunction. 14 GENERAL 14.1 GOVERNING LAW AND JURISDICTION This agreement is governed by the law applying in Victoria, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum. 14.2 WAIVER No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver. 14.3 SEVERANCE Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected. 14.4 JOINT AND SEVERAL LIABILITY An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally. 14.5 ASSIGNMENT A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party. 14.6 COSTS Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement. 14.7 ENTIRE AGREEMENT This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement. 14.8 INTERPRETATION (a) (singular and plural) words in the singular includes the plural (and vice versa); (b) (gender) words indicating a gender includes the corresponding words of any other gender; (c) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning; (d) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity; (e) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee; (f) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it; (g) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time; (h) (headings) headings and words in bold type are for convenience only and do not affect interpretation; (i) (includes) the word “includes” and similar words in any form is not a word of limitation; and (j) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision. Part B Pet Owners 1 ACCOUNTS (a) To access and use the functionality of the App, you need to scan a QR code (located on the packaging of the Pet Tag) and register an account through the App (an Account). (b) In order to register an Account, we may require you to provide: (i) your email address; (ii) first and last name; (iii) preferred username; (iv) a secure password; (v) billing, postal and physical addresses, mobile phone number; (vi) name of your Pet; (vii) photo of your Pet (we will only permit you to upload images captured in real time with a date stamp); (viii) age and breed of your Pet; (ix) microchip information about your Pet (if available); (x) your Pet’s emergency vet details; (xi) information about your Pet’s health, wellbeing or behaviour, including: (A) any previous or current medical conditions, illnesses or injuries; (B) any allergies or intolerances; (C) any sensitivities to people, objects, dogs or other animals; (D) any aggressive or anxious tendencies; and (xii) other information as determined by Fetch’d from time to time. (c) You warrant that any information you give to Fetch’d in the course of completing the Account registration process will always be accurate, honest, correct and up to date. (d) Once you complete the Account registration process, Fetch’d may, in its absolute discretion, choose to accept you as a registered user within the App and provide you with an Account. (e) Fetch’d may, in its absolute discretion, suspend or cancel your Account for any reason, including for any failure to comply with this agreement. 2 POSTED MATERIALS 2.1 DEFINITIONS In this clause 2, “Intellectual Property Rights” means all copyright, trade mark, design, patent, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of this agreement both in Australia and throughout the world. 2.2 WARRANTIES By providing or posting any information, materials or other content on the App (Posted Material), you represent and warrant that: (a) you are authorised to provide the Posted Material; (b) the Posted Material is accurate and true at the time it is provided; (c) the Posted Material is free from any harmful, discriminatory, defamatory or maliciously false implications and does not contain any offensive or explicit material; (d) the Posted Material is not “passing off” of any product or service and does not constitute unfair competition; (e) the Posted Material does not infringe any Intellectual Property Rights; (f) any Posted Material which is in the form of a review or feedback is honest, accurate and presents a fair view of the relevant person and/or your experience; (g) the Posted Material does not contain any viruses or other harmful code, or otherwise compromise the security or integrity of the App or any network or system; and (h) the Posted Material does not breach or infringe any applicable laws. 2.3 LICENCE (a) You grant to Fetch’d a perpetual, irrevocable, transferable, worldwide and royalty-free licence (including the right to sublicense) to use, copy, modify, reproduce and adapt any Intellectual Property Rights in any Posted Material in order for Fetch’d to use, exploit or otherwise enjoy the benefit of such Posted Material. (b) If it is determined that you retain moral rights (including rights of attribution or integrity) in any Posted Material, you forever release Fetch’d from any and all claims that you could assert against Fetch’d by virtue of any such moral rights. (c) You indemnify Fetch’d against all damages, losses, costs and expenses incurred by Fetch’d arising out of any third party claim that your Posted Material infringes any third party’s Intellectual Property Rights. 2.4 REMOVAL (a) Fetch’d acts as a passive conduit for the online distribution of Posted Material and has no obligation to screen Posted Material in advance of it being posted. However, Fetch’d may, in its absolute discretion, review and remove any Posted Material (including links to you, your profile or information you have posted on the App) at any time without giving any explanation or justification for removing the Posted Material. (b) You agree that you are responsible for keeping and maintaining records of Posted Material.