MyMob App End User Licence Agreement (EULA)
THIS END USER LICENCE AGREEMENT SETS OUT THE TERMS AND CONDITIONS UPON WHICH YOU MAY DOWNLOAD, INSTALL, ACCESS AND OPERATE THIS SMARTPHONE APPLICATION. EACH TIME YOU USE, OR ANY CHILD YOU INVITE TO USE USES, THIS SMARTPHONE APPLICATION (the “app”) YOU SHALL BE DEEMED TO HAVE ACCEPTED THE LATEST VERSION OF THIS END USER LICENCE AGREEMENT, AND AGREED TO BE BOUND BY, AND TO COMPLY WITH, THIS END USER LICENCE AGREEMENT. IF YOU DO NOT ACCEPT THIS END USER LICENCE AGREEMENT YOU MAY NOT USE OR INVITE ANY CHILD TO USE THE app.
Parties to this End User Licence Agreement
This End User Licence Agreement (“EULA”) is entered into between you (the person who downloads, installs, accesses and/or operates the app) (“you”) and Drummond Street Services Inc, 195 Drummond Street, Carlton, VIC 3053 (referred to herein as “we” and “us”), and not with Google Inc. (“Google”), Apple Inc. (“Apple”) or any other third party.
About the app
The app is owned by us and may be installed on internet-enabled devices approved by us. The app requires an active internet connection. You are responsible for all telecommunications and data charges you incur in connection with your use of the app.
Registration to use the app
You must be a person who is eighteen (18) years of age or older and be able to enter into a legally binding contract (“adult”) in order to register to use the app. When you register to use the app, by entering your email address and creating a password, you will either initiate a group, or become part of an existing group, described by the app as a “Mob”.
You may invite another adult member of your family to join your “Mob” by entering that adult’s email address into the “Our Mob” section of the app. An email address can only be used to join one “Mob”. In order to join your Mob that adult will then need to download the app, and register to use the app by entering their email address (that you used to invite the adult to your Mob) and creating a password.
You may grant a person under eighteen (18) years of age (“child”) access to use the app as part of your “Mob” by creating a unique username and password for that child’s exclusive use via the “Our Mob” section of the app and disclosing that username and password only to that child. You must ensure that the child to whom the username and password is provided does not disclose that child’s username and password to another person.
A child may not invite another child to register to use the app or to be part of your “Mob”. A child may invite an adult member of his/her family to join your “Mob” by entering that adult’s email address into the “Our Mob” section of the app.
Each adult who uses the app does so subject to the terms of this EULA entered into in his or her individual capacity.
Once an adult or child joins your “Mob” he or she will have access to all information, text, graphics, or other audio or visual material (“content”) that was previously or is subsequently uploaded or entered into the app by you and/or any other member of your “Mob” .
You agree that by providing a child with a username and password to access and use the app you are solely responsible and liable for, that child’s use of the app, including with respect to any breach of the provisions of this EULA. Any reference in this EULA to your use of, or prohibition to use, the app in any particular way also includes a reference to the use of the app by a child for whom you have created a username and password. You indemnify us against any loss, damages, costs and expenses we may incur as a result of any claims being made by or in connection with any child, arising out of your or the child’s breach of this EULA.
Modification of the app
We reserve the right to withdraw and/or modify the app at any time in our absolute discretion.
How to contact us
Any questions, suggestions or complaints with respect to the app may be sent to us via the following means:
Post: The Privacy Officer
Drummond Street Services Inc,
100 Drummond Street, Carlton, VIC 3053
Telephone: (03) 9663 6733
Our Intellectual Property Rights
You agree and acknowledge that, as between you and us, we are the sole owner of all rights (including all copyright, trademark rights, patent rights, and design rights, whether registered or unregistered, and all other rights to intellectual property as defined under article 2 of the convention establishing the World Intellectual Property Organization, and all rights to enforce any of the foregoing rights) in the app.
You and we each acknowledge that, as between you and us, in the event of any third party claim that the app or your possession and/or use of the app infringes that third party’s intellectual property rights, we, not Apple or Google, will be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim. However, you will be solely responsible for any such claims caused by the use of the app by you with software or hardware not approved by us, or where caused by your breach of this EULA.
Your Licence to download, install and use the app
We grant you a limited, non-transferable, non-exclusive, non-assignable, non-sublicensable, revocable licence to download, install and operate the app for personal, non-commercial purposes only on any approved smartphone or other device that you own or control that meets our minimum requirements for the app (“Licence”). You may not make any use of the app except as permitted by the Licence and may not do or authorise the commission of any act that would or might invalidate or be inconsistent with our intellectual property rights in the app. Without limiting the foregoing provisions of the Licence, you must not, under any circumstances, sell or resell access to the app or scrape, republish, mirror or otherwise rent, lend, lease, sell, redistribute, sublicence, copy or duplicate the app or any content you obtain via the app. In addition, you must not, nor may you permit any person to:
You must not use the app or any part of it in any way which is in breach of this EULA or any statute, regulation, law or legal right of any person.
Acceptable Use Policy
You agree that the following is strictly prohibited:
Our right to terminate
The Licence is conditional upon your continued compliance with:
We may terminate this EULA and the Licence and remove you from access to your “Mob” in the app at any time without notice if you fail to comply with any provision of this EULA or if we choose to discontinue providing the app or any computer server required for the intended operation of the app, or if we deem that it is reasonably necessary to do so to protect our legitimate interests. Upon termination:
(a) you must cease to use the app; and
(b) you must delete all copies of the app in your possession and control,
without prejudice to any other of your or our rights or remedies accrued prior to termination.
Accessing the app
You acknowledge that your and any other person’s use of the app may not be error free and your and their use of the app may be interrupted. The app may be unusable while we are conducting maintenance of the app or any of our computer servers that we operate to provide the functionality utilised by the app, or as a result of any telecommunications failure or fault, if your device loses internet connectivity or where due to any other matter beyond our reasonable control. To the extent possible by law, we shall not have any liability in respect of any of the foregoing matters.
Each time a person enters any personal or sensitive information into the app about any person, including a child, you understand and acknowledge that:
You must not, and must not authorise or encourage any person to, collect, store, access, process, disclose, transfer and/or use any such personal or sensitive information in breach of any applicable privacy laws, regulations or codes.
Maintenance and support
We are solely responsible for providing any maintenance and support services with respect to the app, if specified in this EULA, or as required under applicable law (if at all). We and you each acknowledge that neither Apple nor Google have any obligation whatsoever to furnish any maintenance and support services with respect to the app.
If we agree to provide maintenance and support services with respect to the app, we will publish details of our maintenance and support services on our website at www.mymob.com.
Warranty and Product Claims
You agree that as between us and Apple Inc., and as between us and Google Inc., we are solely responsible for any product warranties pertaining to the app, whether express or implied by law, to the extent not otherwise effectively disclaimed hereunder.
In the event of any failure of the app to conform to any applicable warranty and where the warranty relates to your use of a version of the app downloaded through the Apple App Store you may notify Apple, and Apple will refund the purchase price for the app to you (if any); and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the app, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the app to conform to any warranty will be our sole responsibility.
You and us each acknowledge that as between you and us, we, not Apple or Google, are responsible for addressing any of your claims and of any third party relating to the app or your or their possession and/or operation of the app, including, but not limited to: (i) product liability claims made in respect of the app; (ii) any claim that the app fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation in respect of the app. However, to the extent that you are otherwise expressly responsible for any such matters under the terms of this EULA, you will continue to be solely responsible for those matters.
We do not accept liability in relation to any content displayed on the app that is entered or uploaded into the app by you or any other person. When you enter or upload content into the app you are responsible for the legality of the content and any claims arising in respect of the relevant content.
As above, you agree that you are responsible and liable for any content displayed on the app that is entered or uploaded into the app by a child for whom you have created a username and password to use the app.
In addition, we do not accept responsibility for your conduct or the conduct of any other user of our app. You agree and acknowledge that any claims made by you in respect of any content displayed on our app that is authored by any other user of the app, and any disputes between you and any other user of the app, are between you and that other user. Without limiting the foregoing provisions, if you enter into any transaction with any other user of the app, and a dispute arises in respect of that transaction, the dispute is solely between you and that user, and does not involve us and you hereby release us from any claims that you may have against us in relation to any conduct of any user of the app.
Where you (or any child who you invite to use the app) upload or enter any content into the app, you warrant, agree and represent that:
You licence us on an irrevocable, non-exclusive, royalty-free, worldwide, transferable, sublicensable basis to publish any content that you provide to us via the app, to all current and future members of your Mob.
You agree that as between you and us, you are solely responsible for the accuracy, legality and quality of all content you upload or enter into the app, and for obtaining all and any permissions, licenses, rights and authorisations necessary for us and third parties authorised by us, to use, host, transmit, store and disclose that content. You indemnify us in respect of any claims made against us in respect of any content which you (or any child who you invite to use the app) enter into, or upload into the app.
We make no representation in relation to the suitability and appropriateness of any content uploaded or entered into the app by any user of the app. We are not a party to any transaction for the supply of goods or services advertised by any user of the app. Before entering into any transaction with any other user of the app, you should carefully consider the terms and conditions applicable to the transaction, obtain all appropriate advice and take all appropriate precautions.
The publication of any content on the app does not constitute a recommendation, endorsement or any advice from us or any of our officers, employees or agents in respect of the content. Any content displayed on the app is solely the responsibility of the person who entered or uploaded the content into the app (however where the content is entered or uploaded by a child, that content will be the responsibility of the adult who invited the child to use the app) . You agree and accept to use the app at your sole risk and that, to the extent possible by law, other than liability which by law cannot be excluded, we shall not (and neither shall Apple or Google) have any liability to you or any child who you invite to use the app in respect of any content entered into or uploaded to the app by any person.
If we become aware of content that breaches the provisions of this EULA we will remove the content and send an email to the person who uploaded or entered it explaining why it was removed. If you see any content that you think breaches this EULA, please contact us.
Limitation of liability
Except in respect of any non-excludable guarantees implied by the Australian Consumer Law, we do not represent that the information and content displayed on the app is accurate, correct, up-to-date or error free.
The information and content on the app is not professional advice. You agree that you will seek all appropriate financial, legal and other advice as applicable before relying on any information you obtain from the app.
Except in respect of any non-excludable guarantees implied by the Australian Consumer Law, you and we are not liable to each other for any indirect, special or consequential loss or damage incurred by the other party, including liability for loss of profits, loss of business opportunity, loss of savings, or loss of data.
Except in respect of any non-excludable guarantees implied by the Australian Consumer Law, to the maximum extent permitted by law (and if permitted by law), we will not have any liability to you for any loss or damage howsoever incurred in relation to your use (or the use of any child who you invite to use the app) or your or their inability to use the app.
The app and the services that we supply in order to provide the functionality of the app may come with implied non-excludable guarantees which are regulated by the Australian Consumer Law. The extent of the implied guarantees depend on whether you are a ‘consumer’ of goods or services within the meaning of that term pursuant to the Australian Consumer Law as amended. Where you are a ‘consumer’ for the purposes of the Australian Consumer Law, we are required to provide the following mandatory statement to you: “Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.”
If the goods or services supplied by us to you are supplied to you in your capacity as a 'consumer' of goods or services within the meaning of that term in the Australian Consumer Law, as amended, you will have the benefit of certain non-excludable guarantees in respect of the goods or services and nothing in these terms and conditions excludes or restricts or modifies any guarantee which pursuant to the Competition and Consumer Act 2010 (Cth) is so conferred. However, if the goods or services are subject to a non-excludable guarantee implied by the Australian Consumer Law and the goods or services are not ordinarily acquired for personal, domestic or household use or consumption, then pursuant to s 64A of the Australian Consumer Law, we limit our liability for breach of any such non-excludable guarantee implied by the Australian Consumer Law (other than a guarantee implied by sections 51, 52 or 53 of the Australian Consumer Law) or expressly given by us to you, in respect of each of the goods and services, where it is fair and reasonable to do so, at our option, to one or more of the following:
In order for you to claim against us under a non-excludable guarantee implied by the Australian Consumer Law, or under an express warranty given in respect of the goods or services provided under this EULA, you must provide written notice to us with documentary evidence substantiating the claim, for our review, and, in respect of the app, must continue to use it only in accordance with the provisions of this EULA.
Upon receipt of a valid claim from you under a non-excludable guarantee implied by the Australian Consumer Law, we will contact you to arrange a suitable remedy. You may claim reasonable expenses incurred in making a valid claim under such a guarantee by providing documentary evidence of the expenses to us. You will be responsible for any expenses incurred in relation to an invalid claim. Where we elect to repair goods the subject of a valid claim, you agree that the goods may be replaced by refurbished goods of the same type rather than being repaired and refurbished parts may be used to repair goods. You acknowledge that where the goods are repaired and are capable of retaining user-generated data, it is possible that the repair of the goods may result in loss of data.
Any warranty against defects provided by us to you in your capacity as a ‘consumer’ under the Australian Consumer Law is in addition to your other rights and remedies under a law in relation to the goods or services to which the warranty relates.
Where you are not a ‘consumer’ for the purposes of the Australian Consumer Law, all conditions, warranties, guarantees, rights and remedies implied in this EULA are excluded, to the extent possible by law.
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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Third Party Beneficiary – Apple
If you download and install the app from the Apple App Store, we and you each acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and that, upon your acceptance of the terms and conditions of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary of this EULA.
Personal Property Securities Act
You are expressly prohibited from registering a security interest on the Personal Property Securities Register established under section 147 of the Personal Property Securities Act 2009 (Cth) in respect of the app or the Licence granted under this EULA. Without limiting our rights, if you or any person on your behalf records a security interest of any type on the Personal Property Securities Register in respect of the app or the Licence, we may immediately terminate this EULA and/or the Licence granted hereunder without notice.
All rights not expressly granted to us in this EULA are expressly reserved by us.
You shall not assign, transfer, licence or novate your rights or obligations under this EULA without our prior written consent. We may novate our obligations under this EULA at any time in connection with a restructure or sale of all or part of our organisation by notice sent by email to the email address you have provided to us during registration on the app prior to the date of the notice (provided that such notice shall not be required if you have not provided us with any email address prior to that time).
No exercise or failure to exercise or delay in exercising any right or remedy by a party shall constitute a waiver by that party of that or any other right or remedy available to it.
If any provision of this EULA or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of this EULA and its application shall not be affected and shall remain enforceable to the greatest extent permitted by law.
This EULA shall be governed by the laws of Victoria and you and we submit to the non-exclusive jurisdiction of the courts located in Victoria.
Amendment of this EULA
Apple and App Store are trademarks of Apple Inc., registered in the U.S. and other countries.