Licence Agreement and Terms and Conditions of Use (“Agreement”) for EverKard Pty Ltd (ACN 612 913 532) (“EverKard”) Products

INTRODUCTION

Please read this and our Privacy Policy before downloading, installing or using EverKard products (“Software”). By downloading, installing and using the Software, you are agreeing to be bound by this Agreement and our Privacy Policy. If you do not agree, do not download, install or use the Software.

The Agreement governs and is applicable to all EverKard Software developed and distributed by EverKard installed and used on mobiles or any other device regardless of the hardware or operating system used. The Agreement is between EverKard and the person downloading or arranging to download the Software and includes any entity that they represent for the purposes of that transaction. (“You”)

The Agreement covers all access to and use of the Software and any of the data which is added to it regardless of who created and added the data to the Software. Additional terms may be added to the Agreement and upon receiving notification of such terms if you disagree with them, You should discontinue your use of the Software.

SOFTWARE LICENSE

EverKard as the licensor, grants You as the licensee, a non-exclusive, personal, worldwide, revocable, non-transferable and non-exclusive right to use the Software under the terms of this Agreement.

INTELLECTUAL PROPERTY

The Software is protected worldwide by intellectual property and copyright laws and international treaties. EverKard reserves all rights not expressly granted to You including the ownership of the copyright in and to the Software. This licence shall continue unless terminated pursuant to the Agreement.

You agree and accept that the Software is the Intellectual Property of EverKard, including and in addition, any source code, usage data, ideas, enhancements, feature requests, suggestions or other information provided by You or any other party with respect to the Software. You warrant that by using the Software You will not copy it or the functionality that it provides for your own or others’ commercial purposes. You will not and you will not procure others to directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in the Software or any documentation associated with it.

EverKard claims all moral & registered rights in its trademarks and You shall not copy, alter, use or otherwise deal in the marks without the prior written consent of EverKard. All intellectual property and trademarks belonging to third parties remain their respective property.

YOUR ACCOUNT AND DATA

You will be required to provide a mobile phone number to create an account and a Kard. This will be the primary means of contact for the purposes of your use of the Software. This information and any additional data you create and provide on your Kard or on other user’s Kards will be made available to users with whom you share your Kard and those who they share your Kard with. You should ensure that you only provide data that you are willing to share with others and in the public domain. If you wish to ensure that your data is up to date you should make changes to it as soon as they occur.

When using EverKard, you should respect all legal rights of others such as intellectual property rights and privacy rights, and make sure you are authorized to copy, amend, upload and publish all data You use. If You use data belonging to others without permission, you may infringe their legal rights, which may expose You to claims by them.

You are solely responsible for the security of your access to the Software. EverKard will take all reasonable steps to ensure that your data is secure. You are responsible for ensuring that any users You authorise to use the Software comply with this Agreement in full and you are liable for any breach of the Agreement by them. EverKard accepts no liability for access to your data by users authorised by You.

User data may be moderated by EverKard. There is no tolerance of offensive and/or objectionable data within any section of the Software. Any offensive or objectionable data, deemed so at the absolute discretion of EverKard, will be removed.

COMPLIANCE AND TERMINATION

EverKard may in its absolute discretion, suspend, block or terminate your account and use of the Software if You fail to comply with the Agreement or use the Software or any data contained therein illegally, for any improper purpose or in a manner that causes serious offence or concern to other users.

You may terminate your account by deleting it from our system but Kards and data that you have provided to others may remain in other user’s accounts. Expiry or termination of this Agreement is without prejudice to and does not affect the accrued rights or remedies arising out of this Agreement up to the date of expiry or termination.

FEES & ADVERTISING

The initial basic Kard will be free but later additional Software functions may only be accessible upon the user paying a fee. EverKard will in its sole discretion determine any fees and terms that might apply to enable users to access these additional functions. The terms and means of payment will be determined by EverKard.

EverKard reserves the right to post commercial and non-commercial advertisements and/or promotions in the Software. The manner, mode and extent of such advertising and/or promotions are subject to change without specific notice to you.

The initial basic Kard will be free but later additional Software functions may only be accessible upon the user paying a fee. EverKard will in its sole discretion determine any fees and terms that might apply to enable users to access these additional functions. The terms and means of payment will be determined by EverKard.

EverKard reserves the right to post commercial and non-commercial advertisements and/or promotions in the Software. The manner, mode and extent of such advertising and/or promotions are subject to change without specific notice to you.

DISCLAIMER

EverKard provides the Software “as is” and, to the full extent possible at law, without any warranty or condition, express or implied. It does not warrant that the data contained in or accessible through the Software is accurate, suitable for your purposes or without errors, omissions or viruses.

EverKard does not guarantee continuous, uninterrupted or secure access to the Software. You acknowledge and agree that factors outside of Everkard’s control may interfere with your use of the Software. EverKard does not warrant, represent or take any responsibility for third party websites, apps or software which are or may become linked or connected to or from the Software. You agree and acknowledge that Everkard does not endorse, adopt, approve or recommend, and are not responsible or liable for, any content, advertising, products, or other materials on or available from a third party website, app or software.

In the Software, we allow you to create links to sites and services provided by third parties. We do not warrant the suitability or performance of any of the actual services or functionality provided by third parties. For any details of their services or functionality please refer to their Terms and Conditions of Use and Privacy Policies. We disclaim any responsibility for any direct or indirect liabilities, problems or damages incurred by you as a result of using third party sites and services.

LIABILITY AND INDEMNITY

You agree that your use of the Software is at your own risk and that EverKard is not responsible for the conduct or activities of any user or third party. You agree to indemnify EverKard for any loss, damage, cost or expense that EverKard may suffer or incur as a result of or in connection with your use of or conduct in connection with the Software, including any breach of the Agreement. In no circumstances will EverKard be liable for any direct, incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from your access to, or use of, or inability to use the Software or any data in any way. This will apply whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not EverKard knew or should have known of the possibility of such damage, or business interruption of any type, whether in tort, contract or otherwise. This will apply in relation to any third party connected through the Software and any goods or services provided by a third party as a result of use of the Software.

DISPUTES

In the event of a dispute between EverKard and You, the following process shall apply. Within seven business days of a party notifying the other party of a dispute, You or your representative must meet either in person, by phone or via the internet with an EverKard representative and use all reasonable endeavours acting in good faith to resolve the dispute. If this does not resolve the dispute, the parties must agree to submit the dispute to mediation, administered by lawyers engaged in alternative dispute resolution. If the dispute is not settled by mediation, either party may by written notice to the other refer the dispute to arbitration administered by the Institute of Arbitrators Australia.  The arbitrator will be agreed between the parties from a panel suggested by the President of the Institute of Arbitrators Australia or failing agreement, an arbitrator will be appointed by the President of the Institute of Arbitrators Australia. A party may not commence court proceedings in relation to a dispute relating to or arising out of this Agreement until it has exhausted the procedures in this clause, unless the party seeks appropriate injunctive or other interlocutory relief to preserve property or rights or to avoid losses that damages would otherwise be inadequate to compensate.

SEVERABILITY

EverKard provides the Software “as is” and, to the full extent possible at law, without any warranty or condition, express or implied. It does not warrant that the data contained in or accessible through the Software is accurate, suitable for your purposes or without errors, omissions or viruses.

EverKard does not guarantee continuous, uninterrupted or secure access to the Software. You acknowledge and agree that factors outside of Everkard’s control may interfere with your use of the Software. EverKard does not warrant, represent or take any responsibility for third party websites, apps or software which are or may become linked or connected to or from the Software. You agree and acknowledge that Everkard does not endorse, adopt, approve or recommend, and are not responsible or liable for, any content, advertising, products, or other materials on or available from a third party website, app or software.

In the Software, we allow you to create links to sites and services provided by third parties. We do not warrant the suitability or performance of any of the actual services or functionality provided by third parties. For any details of their services or functionality please refer to their Terms and Conditions of Use and Privacy Policies. We disclaim any responsibility for any direct or indirect liabilities, problems or damages incurred by you as a result of using third party sites and services.

Any clause of the Agreement, which is invalid or unenforceable will be considered ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of the Agreement.

APPLICABLE LAW

The Agreement shall be governed by the laws of the State of Victoria, Australia and You agree to submit to the jurisdiction of the courts in that State.

 

NOTICES

Any notice required by or necessary for compliance with the Agreement may be sent by email or SMS to the mobile number and email address (if any) provided by You and You may send any such notice by email to EverKard at notices@everkard.com.

If you require further information about this Agreement, please contact admin@everkard.com by email in the first instance.

V1.1 20th February 2018