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1.1 The Authenticateit Pty Ltd (ABN 30 155 162 253) (AIT) Smartphone application (App) is designed and built to empower customers (You/ Your) with a fast and convenient way to check an item’s authenticity (Services).
1.3 This Agreement governs software updates provided by AIT unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
1.4 You agree that this Agreement constitutes a binding Agreement between You, AIT and AIT’s Related Bodies Corporate (AIT Related Bodies). By using the App You consent to the use of information You provide for AIT’s use and for the use by AIT approved third parties.
1.5 Please download and use the App only if you have read, understood and agree to the following terms. All rights not expressly stated by AIT are reserved.
2.1 The rights in the App are licensed to You, not sold. Subject to the terms of this Agreement, AIT grants You a non-transferable, non-exclusive, fully paid and royalty-free, worldwide licence (without the right to sub-licence) to install and use one copy of the App on the Smartphone device that You own or lease (Your Device).
2.2 You must not and You agree not to, and not enable others to:
(a) duplicate, copy, reproduce or distribute the App except as necessary to use it on Your Device;
(b) other than as permitted by applicable laws, modify, translate, make derivative works from, disassemble, reverse compile or reverse engineer any part of the App in order to build a similar or competitive product; or
(c) remove, deface or destroy any copyright or other rights notices used on, or in connection with the App,
and You acknowledge that any attempt to do so is a violation of the rights of AIT.
3.1 Except as provided herein, You may not use the App outside the context of its intended use as part of the license granted to You or otherwise under this Agreement.
3.2 AIT may request additional information to confirm Your identity, should You wish to upgrade Your account at any time.
3.3 In the event Your Device is lost or stolen it is Your responsibility to inform AIT.
3.4 During Your use of the App and the Services You undertake that You will not:
(a) infringe any third party rights; or
(b) use the App or any of its functionalities for any illegal or criminal purpose.
3.5 The App is not intended for people under the age of 13. AIT do not intentionally or knowingly provide the App to children under the age of 13 and if You are under the age of 13 You may not use the App and You are prohibited from installing the App.
3.6 You represent and warrant that:
(a) Your use of the App or Services have not been previously suspended by AIT;
(b) You are not a direct competitor of AIT or our products and/or services;
(c) You do not have more than one account for the App at any given time (acknowledging that the App may be used on more than one linked device); and
(d) You have full power and authority to enter into this Agreement.
3.7 Any publication or use of any information derived from Your use of the App (Your Data) is at Your risk and You agree that:
(b) it is Your responsibility to monitor the usage of Your Data, including the unauthorised or offensive use of Your Data by any Third Party Site or third party user; and
(c) AIT assumes no responsibility for identifying or requiring the removal of Your Data from any Third Party Sites (such as social networking sites) where Your Data is published or used when such authority for its use was not granted or approved by AIT.
3.8 In addition to any other obligations under this Agreement, You agree that:
(a) the App may be downloaded from iTunes for Apple, Google Play for Android, and Blackberry App World for Blackberry;
(b) for continued use of the App, all App updates should be downloaded and installed when they become available;
(c) You will use the App solely for the purpose of checking product authenticity, reporting, and asset registration;
(d) You will only scan items which You are considering for purchase;
(e) to confirm the verification process You must check the details of the verification report produced by App as against the product description and Your location;
(f) You have the option to, and You should report in a diligent and timely manner via the reporting functionality in the App, any potential unauthorised sales that You become aware of;
(g) You have an option to register ownership of Your item upon purchase; and
(h) to register Your item You must scan the unique identifier (number, QR Code, or barcode) and enter Your receipt number from the point of sale.
3.9 In the event that AIT was responsible for tracking the item and becomes aware that the item is not an authentic item, and provide AIT is able to verify that the item matches AIT’s description and location for that item, You may receive a refund on Your purchase. To be eligible for a refund from You must:
(a) register the item within 7 days of purchase;
(b) inform AIT of the counterfeit item within 30 days from the date of purchase;
(c) provide AIT with a copy of the original invoice;
(d) ensure the item is in « as new » condition; and
(e) at the time of purchase have used the App in accordance with this Agreement.
3.10 If You plan to sell on EBay an authenticate item which You have previously purchased and registered with AIT using the Services:
(a) for a fee payable to AIT, You may upgrade Your account to download a ‘QR’ barcode, or other forms of identifier used from time to time, representing any of the items in the list of their registered assets to reveal Your ‘eBay’ username and other information to a potential customer; and
(b) consent to AIT disclosing Your personal information to a potential purchaser.
3.11 Transferring a unique product identifier from a genuine item to a counterfeit item is a breach of this Agreement, and may expose You to criminal penalties.
4.1 To the extent permitted by law, the App is provided to You on an « as is » basis and may contain errors, faults and inaccuracies and may not be complete and current and AIT makes no representations or warranties of any kind, express or implied as to the operation or suitability of the App.
4.2 AIT makes no representations or warranties, express or implied with respect to the availability, performance, security, characteristics or operation of the App, and, to the extent permitted by law, will not be responsible for breach of any such express or implied term.
4.3 You acknowledge and agree that Your right to use the App may be taken away if You breach any of these terms of this Agreement.
5.1 AIT may provide certain features of the App or Services that use and /or rely upon location information. To provide such features and Services, AIT may transmit, collect, maintain, process and use Your location data.
5.2 You agree and consent to AIT using and/ or collecting Your location data for the purpose of performing the Services. You may withdraw this consent at any time by switching off the location based services setting on Your Device. You acknowledge that in doing so, however, that the App will not function according to its full capacity.
5.3 You agree and consent to AIT disclosing Your location data to a third party, and to that third party accessing and using Your Device, in connection with the performance of the Services by or on behalf of AIT.
7.1 All information of a confidential nature disclosed by AIT to You either under this Agreement or in accessing or using the App, will remain confidential and must not be disclosed by You to any third party.
7.2 The App logo and AIT brand are trademarks, service marks, registered trademarks, copyrights or other intellectual property of AIT and its affiliates (AIT IP). AIT owns all of the AIT IP under this Agreement. You may not use or display any AIT IP during the course of Your use of the App and Services, or in connection with the access or use of the AIT website, without AIT’s prior written consent.
7.3 The App and its content are protected by copyright, trade mark and other intellectual property laws. You acknowledge that:
(a) all intellectual property rights in the App and its content throughout the world belong to AIT or its suppliers or affiliates;
(b) this Agreement does not transfer any title to intellectual property in the App and its content to You; and
(c) Your only rights in respect of the App and its content and the Services are as set out in this Agreement.
8.1 You agree that Your access to, purchases or supplies under, and use of the App and Services, is subject to this Agreement and is at Your sole risk.
8.2 To the extent permitted by law, and except as expressly stated otherwise in this Agreement, none of AIT, their directors, officers, employees, agents, contractors, successors or assigns will be liable for any damages, economic loss or other loss whatsoever arising out of, or in any way related to, Your use of the App and Services. This limitation applies to direct, indirect, consequential, exemplary, incidental, special, punitive or any other losses or damages that You or others may suffer, including damages for loss of profits, goodwill, use, business interruption or the loss of data or information.
8.3 The limitation of liability in clause 8.2 applies whether the claim is in contract, statute, tort (including without limitation, negligence) or equity and even if AIT have been notified of the possibility of such loss or damage. You agree that AIT’s liability, if any, to You at law will be reduced by the extent to which You contributed to the loss.
8.4 To the extent permitted by law, You agree that AIT will not be responsible or liable for any modification, interruption, suspension or discontinuation of the App, any technical faults which impact on the availability or use of the App whatsoever.
8.5 Certain legislation may impose guarantees or obligations upon AIT which cannot be excluded, restricted or modified or cannot be excluded, restricted or modified except to a limited extent. This Agreement must be read subject to these statutory provisions. If these statutory provisions apply, to the extent to which AIT is entitled to do so, AIT limits its liability in respect of any claim under those provisions to: (a) in the case of goods, at AIT’s option: (i) the replacement of 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; or (iv) the payment of the cost of having the goods repaired; and (b) in the case of services, at AIT’s option: (i) the supplying of the services again; or (ii) the payment of the cost of having the services supplied again.
8.6 You agree to reimburse AIT for all expenses (including legal costs and expenses), losses and liabilities of any nature or description it may incur either directly or indirectly as a result of:
(a) Your breach of any term of this Agreement;
(b) any third party claim brought against AIT in respect of Your download or use of the App; or
(c) You bringing a claim against AIT when You have agreed not to do so.
9.1 You indemnify AIT in respect of any liability incurred by AIT for any loss, cost, damage or expense howsoever caused, or suffered by AIT as a result of Your negligence, wilful misconduct or breach of this Agreement.
10.1 AIT may, in its sole discretion, temporarily or permanently suspend or terminate the rights granted to You under this Agreement if AIT suspects that You are not complying with the terms of this Agreement. AIT also reserves the right to otherwise restrict, suspend or terminate Your ability to access or use the App if it determines in its sole discretion that You pose a threat to the App or its users or that Your conduct is inconsistent with AIT’s brand values. AIT will not be liable for any cost, expense or damages whatsoever for termination of this Agreement.
10.2 If this Agreement is terminated, the parties are released from the obligations to continue to perform under this Agreement, except those obligations that expressly or by their nature, survive termination and each party retains the rights and claims it has against the other party for any past breach of this Agreement.
B&M Note: The Apple specific terms and conditions below, are terms that were provided to us previously. Apple requires that where the App is available from download from their platform (iTunes), these terms are incorporated into any agreement You have with any third parties. Please note that these terms are not publicly available, and they may have changed since they were last communicated to us.
11.1 You acknowledge and agree that:
(a) this Agreement is concluded between You and AIT, not You and Apple, Inc (Apple));
(b) AIT and its licensors, and not Apple, are solely responsible for the App;
(c) Apple has no responsibility whatsoever to furnish any maintenance and support services with respect to the App;
(d) in the event of any failure of the App to conform to any applicable warranty, You may notify Apple and Apple will refund the purchase price (if any) You paid for the App;
(e) to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and Apple have no responsibility for any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty;
(f) Apple is not responsible for addressing any claims that You or any third party make relating to the App or Your possession and/or use of that App including:
(i) product liability claims;
(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.
(g) Apple will have no responsibility whatsoever for the investigation, defence, settlement or discharge of any third party claim that the App infringes that third party’s intellectual property rights;
(h) You will comply with any relevant third party terms of agreement when using the App; and
(i) Apple and its subsidiaries are third party beneficiaries of this Agreement and, upon Your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) as a third party beneficiary to enforce this Agreement against You.
11.2 You represent and warrant that:
(a) 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
(b) You are not listed on any U.S. Government list of prohibited or restricted parties.
12.1 This Agreement is governed by the laws of Victoria, Australia and You irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of Victoria, Australia and waive any claim or objection based on absence of jurisdiction or inconvenient forum.
12.2 AIT will not be liable for any delay or failure to perform any of its obligations under this Agreement if such delay or failure is due to a force majeure event including strikes, riots fire, explosions acts of God, war, governmental action or any other cause which is beyond AIT’s control.
12.3 If a provision of this Agreement is invalid or unenforceable it will be read down or severed to the minimum extent of the invalidity and unenforceability and the remaining provisions will remain in full force.
12.4 AIT may freely assign this Agreement and the rights grants hereunder without restrictions. You will not assign, novate or otherwise transfer any rights granted to You or any of its duties hereunder without the prior written consent of AIT. Any attempt by you to do so will be void and of no effect.
12.5 In the event that any provisions of this Agreement are held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
12.6 The failure of AIT to enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision.
12.7 This Agreement, and documents incorporated by reference into this Agreement, represents the entire agreement of the parties and supersedes all other representations, negotiations, arrangements, communications, understandings or agreements, whether written or oral.
12.8 Nothing in this Agreement shall constitute a partnership or joint venture between You and AIT.
12.9 The headings are for convenience only and do not affect the interpretation of this Agreement.
12.10 The words « including » or « includes » means « including, but not limited to », or « includes, without limitation » respectively.
12.11 The rights, remedies and powers of the parties under this Agreement are cumulative and do not exclude any other rights, remedies and powers.
13.1 AIT is responsible for addressing any questions, comments or claims relating to the App and Your use of the App. If You have any comments, questions, complaints relating to the App, or would like to report a violation of any of the terms of this Agreement, please contact AIT by calling +61 3 99244402 or email firstname.lastname@example.org