terms

Terms

Date of last revision November 03, 2018


INTRODUCTION

The Company provides the “Checketry” download manager that allows users to track downloads across multiple devices. Use of Checketry is subject to these Terms of Service.

DEFINITIONS

The following terms are used regularly throughout these Terms of Service and have a particular meaning:

(a) ABN means Australian Business Number.
(b) Account means a registered account with Checketry.
(c) Agreement means the agreement formed between the Users and the Company under, and on the terms of, these Terms of Service.
(d) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Melbourne, Australia.
(e) Checketry means:
i The Checketry web application accessible via the Site; and/or
ii The Checketry mobile application available from the Apple App Store, Google Play and other mobile application marketplaces.
(f) Company means Checketry Pty Ltd ABN 37 621 730 390.
(g) Confidential Information means any written or verbal information that:
i Is about each party’s business or affairs;
ii Is about the conduct of each party under these Terms of Service, during the term of these Terms of Service;
iii A party informs the other party that it considers it confidential and/or proprietary;
iv A party would reasonably consider to be confidential in the circumstances; and
v Is personal information within the meaning of the Privacy Act and GDPR.
but does not include information that a party can establish:
vi Was in the public domain at the time it was given to that party;
vii Became part of the public domain, without that party’s involvement in any way, after being given to the party;
viii Was in party's possession when it was given to the party, without having beenacquired (directly or indirectly) from the disclosing party; or
ix Was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.
(h) Fee means any Fee payable by the User for using Checketry.
(i) Free Account means an Account without Fees that is subject to any limitations imposed by the Company from time-to-time.
(j) GDPR means the EU General Data Protection Regulation 2016/679.
(k) GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(l) Intellectual Property means all copyright, patents, inventions, trade secrets, knowhow, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.
(m) Premium Account means an Account with Fees that has access to additional features as provided by the Company from time-to-time.
(n) Promotion means any promotions made available by the Company from time-to-time.
(o) Privacy Act means the Privacy Act 1989 (Cth).
(p) Privacy Policy means the Company’s privacy policy as updated from time-to-time, which can be found at the Site.
(q) Site means the Company’s website accessible at http://www.checketry.com/.
(r) Subscription Fee means a Fee charged by the Company for a Premium Account in accordance with such features and pricing described on the Site and/or within Checketry, or as otherwise agreed with the Company.
(s) Third Party Services means an online third-party service with whom a User holds an account, and may include (without limitation) Google Chrome, uTorrent, qBittorrent and Steam.
(t) User means any user of Checketry.
(u) User Content means any information, documents or other data that is uploaded into, or created using, Checketry by the User, or that otherwise forms part of the User’s Intellectual Property but excludes any derivative data (such as analytics).
1 AGREEMENT
1.1 The licence granted under these Terms of Service shall be ongoing until terminated in accordance with these Terms of Service.
1.2 The User agrees:
(a) To use Checketry in accordance with the terms of these Terms of Service; and
(b) If creating an Account, that it is authorised to establish, maintain and pay for the Account.
2 USING CHECKETRY
2.1 General
(a) To access and use Checketry, the User must have set up an Account.
(b) The User may access Checketry using either a Free Account or Premium Account and may upgrade to a Premium Account at any time from within Checketry.
(c) Checketry may permit or deny the User an Account with Checketry in its absolute discretion (although the User may generally obtain an Account by completing registration and accepting these Terms of Service).
(d) The User must immediately cease to use Checketry if the User can no longer agree or adhere to these Terms of Service.
(e) The User agrees to use Checketry in accordance with any instructions provided by the Company, within Checketry and/or on the Site.
2.2 Features
(a) Subject to any limitations that apply to Free Accounts, Checketry shall enable the User to (without limitation):
(i) Track and schedule downloads;
(ii) Pause, cancel and resume downloads;
(iii) Receive notifications on download progress;
(iv) Access on multiple devices;
(v) Connect Third Party Services;
(vi) Set shut down timers; and
(vii) Access and use any other features made available by the Company from time-to-time.
3 PAYING FOR CHECKETRY
3.1 Fees
(a) Use of Checketry shall generally be free of charge, however, subject to any Promotions, Fees shall apply for Premium Accounts in accordance with the pricing described on the Site, within Checketry or as otherwise agreed between the Company.
(b) Unless otherwise specified, the Subscription Fee may be paid by monthly or annually, and the User agrees to provide a credit card, which will be charged monthly or annually (as elected by the User) in advance for the Subscription Fee.
(c) The Company may vary the Subscription Fee, or introduce new fees and charges, by giving the User written notice. Those fees will apply from the beginning of the next subscription period.
3.2 Currency
All Fees are quoted in United Stated dollars, however transactions may be processed in an equivalent foreign currency (such as Australian dollars or British pounds).
3.3 GST
For Users in Australia, GST is applicable to any Fees charged by the Company to the User. Unless expressed otherwise, all Fees shall be deemed inclusive of GST. The Company will provide the User with a Tax Invoice for any payments.
3.4 Refund
No refunds of Fees are offered other than as required by law.
3.5 Late Payment
(a) If the User does not pay Fees as required, the Company may suspend all User access to Checketry for that Account.
(b) If Fees are not brought out of arrears within 7 days of becoming overdue, the Company may terminate the User’s Account in Checketry without notice and end these Terms of Service.
(c) The User agrees that the Company shall not be responsible or liable in any way for:
i Interruptions to the availability of Checketry or User Content in the event of (a); or
ii Loss of User Content in the event of (b).
4 THIRD PARTY LOGIN AND INTEGRATION
4.1 Registration & Login
(a) A User may access Checketry and link their Account with certain Third Party Service.
(b) As part of the functionality of Checketry the User may connect their Checketry account with a Third Party Service by:
i Linking their Third Party Service account with Checketry directly via their Account; or
ii Providing their Third Party Service login information to the Company through Checketry.
(c) When connecting Checketry to a Third Party Service, the User warrants that they are not in breach any of the Third Party Service terms and conditions of service.
4.2 Ongoing Availability
(a) The User agrees that use of Checketry to track certain downloads may be interrupted if the Third Party Services becomes unavailable, and that the User may lose functionality or content that is shared between the Third Party Service and Checketry.
(b) The User may disconnect the connection between Checketry and the Third Party Service at any time.
(c) The Company has no relationship with any Third Party Service and cannot guarantee the efficacy of any Third Party Service connection.
4.3 Data from TPS
Where a User connects their Account using a Third Party Service, the User authorises the Company to use data from that Third Party Service within Checketry.
5 USER CONTENT
5.1 The User is responsible for the accuracy, quality and legality of any content uploaded by the User.
5.2 The User indemnifies the Company for any User Content that is illegal, offensive, indecent or objectionable that the User makes available using Checketry.
5.3 The Company may suspend accessibility to User Content that the Company determines is illegal, offensive, indecent or objectionable in its sole discretion.
5.4 To the extent permitted by law, under no circumstances will the Company be liable in any way for User Content.
5.5 The Company may delete User Content on termination of these Terms of Service.
6 GENERAL CONDITIONS
6.1 Licence
(a) By accepting the terms and conditions of these Terms of Service, the User is granted a limited, non-exclusive and revocable licence to access and use Checketry for the duration of these Terms of Service and in accordance with the terms and conditions of these Terms of Service.
(b) The Company may issue the licence to the User on the further terms or limitations (including the number of devices per Account) as agreed in writing.
(c) The Company may revoke or suspend the User’s licence(s) for breach of the terms in these Terms of Service.
6.2 Modification of Terms
(a) The terms of these Terms of Service may be updated by the Company from timeto-time.
(b) Where the Company modifies the terms of these Terms of Service, it will provide the User with written notice, and the User will be required to accept the modified terms in order to continue using Checketry
(c) If a User does not accept any changes to the terms of these Terms of Service, the User may terminate these Terms of Service and must immediately cease using Checketry.
6.3 Software-as-a-Service
(a) The User agrees and accepts that Checketry is:
i Hosted by the Company and shall only be accessed and maintained by the Company, accessed using the internet or other connection to the Company servers and is not available ‘locally’ from the User’s systems; and
ii Managed and supported exclusively by the Company from the Company servers and that no ‘back-end’ access to Checketry is available to the User unless expressly agreed in writing.
(b) As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter Checketry.
(c) The Company shall not exercise its rights under clause (b) in a manner that wouldfundamentally decrease the utility of Checketry to the User, other than in accordance with the terms of these Terms of Service.
6.4 Support
(a) The Company shall provide the support services in the manner published on the Site and/or notified in writing to the User from time-to-time, including instructional set up guides.
(b) The Company reserves the right to require the payment of reasonable fees for non-standard support requests prior to the provision of such support.
6.5 Use & Availability
(a) The User agrees that it shall only use Checketry for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
(b) The User is solely responsible for the security of its username and password for access to Checketry. The User shall notify the Company as soon as it becomes aware of any unauthorised access of its Checketry account.
(c) The User agrees that the Company shall provide access to Checketry to the best of its abilities, however:
i Access to Checketry may be prevented by issues outside of its control; and
ii It accepts no responsibility for ongoing access to Checketry.
6.6 Advertising
(a) Subject to Premium Accounts, Checketry may contain information and advertising from third-party businesses, people and websites, and the User consents to receiving this information as part of their use of Checketry.
6.7 Privacy
(a) The Company maintains the Privacy Policy in compliance with the provisions of the Privacy Act and the GDPR for data that it collects about the User and other individuals.
(b) The Privacy Policy does not apply to how a User handles personal information. If necessary under the Privacy Act and/or the GDPR, it is the User’s responsibility to meet the obligations of the Privacy Act and/or GDPR by implementing a privacy policy in accordance with law.
(c) Checketry may use cookies (a small electronic file) to improve a User’s experience while browsing, while also sending browsing information back to the Company. The User may manage how it handles cookies in its own browser settings.
6.8 Data
(a) Security. The Company takes the security of Checketry and the privacy of its Users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
(b) Transmission. The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.
(c) Storage. Data that is stored by the Company shall be stored according to accepted industry standards.
(d) Backup. The Company shall perform backups of its entire systems in such manner, at such times and intervals as is reasonable for its business purposes. The Company does not warrant that it is able to backup or recover specific User Content from any period of time unless so stated in writing by the Company.
6.9 Intellectual Property
(a) Trade Marks. The Company has moral, unregistered and registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
(b) Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of Checketry.
(c) Checketry. The User agrees and accepts that Checketry is the Intellectual Property of the Company and the User further warrants that by using Checketry the User will not:
i Copy Checketry or the services that it provides for the User’s own commercial purposes; and
ii Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in Checketry or any documentation associated with it.
(d) Content. All content (excluding User Content) submitted to the Company, whether via Checketry or directly by other means, becomes and remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to Checketry.
(e) Reservation. Nothing in these Terms of Service shall grant the User, or any User, any right, title or interest in any of the Intellectual Property of the Company, in particular Checketry.
6.10 Third Party Dependencies
The User agrees and acknowledges that Checketry has third party dependencies which may affect its availability, including (without limitation) internet service providers and hosting services, and that the Company has no means of controlling the availability of such dependencies and shall not be liable for any interruptions to such.
6.11 Confidentiality
(a) The Company agrees to keep all User Content and Participant Content (if any) in the strictest confidence, and to the extent User Content or Participant Content is accessed and/or received by the Company it shall be deemed as Confidential Information for the purposes of these Terms of Service.
(b) Each party acknowledges and agrees that:
i the Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);
ii it owes an obligation of confidence to the Discloser concerning the Confidential Information;
iii it must not disclose the Confidential Information to a third party except as permitted in these Terms of Service;
iv all Intellectual Property rights remain vested in the Discloser but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and
v any breach or threatened breach by the receiving party of an obligation under these Terms of Service may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently, the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.
(c) A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:
i any actual, suspected, likely or threatened breach by it of any obligations it has in relation to the Confidential Information;
ii any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or
iii any actual, suspected, likely or threatened theft, loss, damage, or unauthorized access, use or disclosure of or to any Confidential Information.
(d) The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:
i any actual, suspected, likely or threatened breach of a term of these Terms of Service; or
ii any theft, loss, damage or unauthorized access, use or disclosure of or to any Confidential Information that is or was in its possession or control.
6.12 Liability & Indemnity
(a) The User agrees that it uses Checketry at its own risk.
(b) The User acknowledges that the Company is not responsible for the conduct or activities of any User and that the Company is not liable for such under any circumstances.
(c) The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with Checketry, including any breach by the User of these Terms of Service.
(d) In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, personal injury, death, damage to property, loss of property, 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 the User’s access to, or use of, or inability to use Checketry, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, loss, personal injury or death, or business interruption of any type, whether in tort, contract or otherwise.
(d) Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
i The re-supply of services or payment of the cost of re-supply of services; or
ii The replacement or repair of goods or payment of the cost of replacement or repair.
6.13 Termination
(a) Either party may terminate these Terms of Service by giving the other party written notice or by the User simply cancelling their Account.
(b) Termination of these Terms of Service is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of these Terms of Service up to the date of expiry or termination.
6.14 Dispute Resolution
(a) If any dispute arises between the parties in connection with these Terms of Service (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
i Includes or is accompanied by full and detailed particulars of the Dispute; and
ii Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
(b) Within 10 Business Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) parties must meet (virtually or otherwise) and seek to resolve the Dispute.
(c) Subject to clause (d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
(d) Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
(e) Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.
6.15 Electronic Communication, Amendment & Assignment
(a) The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
(b) The User can direct notices, enquiries, complaints and so forth to the Company as set out in these Terms of Service. The Company will notify the User of a change of details from time-to-time.
(c) The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.
(d) A consent, notice or communication under these Terms of Service is effective if it is sent as an electronic communication unless required to be physically delivered under law.
(e) Notices must be sent to the parties’ most recent known contact details.
(f) The User may not assign or otherwise create an interest in these Terms of Service.
(g) The Company may assign or otherwise create an interest in its rights under these Terms of Service by giving written notice to the User.
6.16 General
(a) Special Conditions. The parties may agree to any Special Conditions to these Terms of Service in writing.
(b) Prevalence. To the extent these Terms of Service is in conflict with, or inconsistent with, the terms of any other agreement between the Company and the User, any Commercial Terms, or any special conditions made under these Terms of Service, as relevant, the terms of those other agreements or special conditions shall prevail.
(c) Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in these Terms of Service.
(d) Relationship. The relationship of the parties to these Terms of Service does not form a joint venture or partnership.
(e) Waiver. No clause of these Terms of Service will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
(f) Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to these Terms of Service and the transaction facilitated by it.
(g) Governing Law. These Terms of Service are governed by the laws of Victoria, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
(h) Severability. Any clause of these Terms of Service, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of these Terms of Service.
(i) Interpretation. The following rules apply unless the context requires otherwise:
i Headings are only for convenience and do not affect interpretation.
ii The singular includes the plural and the opposite also applies.
iii If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
iv A reference to a clause refers to clauses in these Terms of Service.
v A reference to legislation is to that legislation as amended, re enacted or replaced, and includes any subordinate legislation issued under it.
vi Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
vii A reference to a party to these Terms of Service or another agreement or document includes that party's successors and permitted substitutes and assigns (and, where applicable, the party's legal personal representatives).
viii A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
ix A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.