(a) other than as required by law, We make no representations or warranties, express or implied, with respect to the availability, performance, security, characteristics or operation of the App and We will not be responsible for breach of any such implied warranty or term;
(b) We limit Our liability, including generally and for any modification, interruption, suspension or discontinuation of the App, any technical faults which impact on the availability or use of the App, and any special, consequential, indirect, incidental or exemplary damages, or for any loss of profits, revenue, interest, goodwill, loss or corruption of data suffered or incurred by you as a result of your use of the App or your reliance on information obtained via the App;
(c) We limit the types of claims you can make against Us and require you to indemnify Us in relation to your breaches of this Agreement and third party claims against Us in relation to any conduct by you which is not in accordance with this Agreement; and
1. Your acceptance
1.2 For the purposes of this Agreement, “you” or “your” refers to the legal entity or individual on whose behalf you are entering into this Agreement.
1.3 By indicating your acceptance of this Agreement (including by ticking a box or clicking a button to that effect), you acknowledge and agree that this Agreement constitutes a binding agreement between you and Us for the length of the Licence Term (defined in paragraph 4 below). Please read the terms of the Agreement carefully before proceeding to download and/or use the App. If you do not agree to these terms, please do not agree to these terms and please do not download or use the App.
2. App use and App requirements
2.1 The information contained in or generated by the App is provided for general informational purposes only and is used to assist Us to assess the condition of the device that you are using the App on (the Device) for the purpose of assisting Optus to provide Optus’ device upgrade and related services (Optus Services).
2.2 While We assist Optus in its supply of the Optus Services to you by providing certain services to Optus (and by making this App available to you), Optus is the supplier of the Optus Services. You agree that Our responsibility to you, to the extent permitted by applicable law, is limited to the supply and operation of this App and as set out elsewhere in this Agreement.
2.3 The App must be used on a compatible Device which has particular specifications. You should check whether your Device is compatible before downloading and/or using the App.
2.4 For the avoidance of doubt, licensing of the App is effected directly from Us under this Agreement (and not by Optus).
2.5 You agree and accept that We may communicate with you in order to provide the App to you. Such communications may be by push notifications to your Device.
2.6 You agree and accept that certain factors such as environmental conditions, poor signal and impaired battery life may impact the features or functioning of the App or impact the results of the condition assessment or estimated upgrade fee.
By downloading and/or using the App, you confirm that you are either 18 years of age or older or have obtained parental consent to download and/or use this App in accordance with the terms of this Agreement.
4. Licence to use the App
4.1 The rights in the App are licensed to you, not sold to you. Subject to the terms of this Agreement and as consideration for your compliance with them, We grant you a licence to install and/or use one copy of the App on your Device for the Licence Term. For the purposes of this Agreement, the “Licence Term” begins on the date of installation of the App on your Device and continues until the earlier of you ceasing to use and deleting the App, or Us ceasing to make the App available to you in accordance with the terms of this Agreement.
4.2 You agree to the following in relation to the App:
(a) to use the App solely for your personal, non-commercial use, in accordance with applicable laws and not for any unlawful purposes;
(b) not to reproduce, duplicate, copy or distribute the App (or any part of it) except as necessary to use it on your Device;
(c) not to disassemble, decompile, reverse engineer or create derivative works based on the whole or any part of the App;
(d) to replace the current version of the App with any updated or upgraded version or new release made available by Us under this Agreement, promptly on receipt of notification of such version or release;
(e) not to reproduce, modify, translate, make derivative works from, disassemble, reverse compile or reverse engineer the whole or any part of the App in order to build a similar or competitive product; and
(f) not to remove, deface or destroy any copyright or other proprietary rights notice used on, in or in connection with the App.
5. Intellectual property
5.1 The App is protected by copyright, trade mark and other intellectual property laws. You acknowledge that:
(a) all intellectual property rights in the App throughout the world belong to Us or Our suppliers or affiliates;
(b) this Agreement does not transfer any title to intellectual property rights in the App to you;
(c) your only rights in respect of the App are as set out in this Agreement; and
(d) you will not do anything that breaches or is likely to breach Our intellectual property rights.
6. User Data and App permissions
6.1 As between you and Us, any information inputted by you or on your behalf into the App and also the condition assessment results generated by you through your use of the App is and will remain your property (User Data).
6.2 You understand that User Data may be inputted into the App as a result of you uploading or entering information directly into the App, by the App collecting information from your Device through scans of your Device (for example, scans to check Bluetooth connectivity), or through your Device collecting information through use of your Device’s camera, microphone or other hardware features. If you do not wish for certain User Data to be collected, you can opt not to permit this through in your Device settings. If you do not provide the permissions requested by the App, this may affect Our ability to supply the App (and some or all of its features) to you, your condition assessment result and your estimated upgrade fee.
6.3 You grant Us a limited licence to copy, transmit, store, backup and/or otherwise access and use User Data during the Licence Term (and for a reasonable period after), to:
(a) supply the App to you;
(b) assist Optus to provide Optus Services to you and provide Optus services relating to the Optus Services;
(c) diagnose problems and issues with the App;
(d) develop new services and applications, provided before using the User Data We de-identify it;
(e) enhance and otherwise modify the App;
(f) perform Analytics; and
(g) as reasonably required to perform Our obligations and exercise Our rights under this Agreement.
6.4 You acknowledge and agree that:
(a) We are not responsible for the integrity or existence of any data on the computing network, network or any device controlled by you (including the Device);
(b) except where expressly set out otherwise in this Agreement, We assume no responsibility or liability for User Data. It is your responsibility to back-up your User Data;
(c) you have obtained all rights necessary, releases and permissions to provide your User Data to Us and to grant Us the rights granted in this Agreement;
(d) Our use of your User Data in accordance with this Agreement does not and will not violate any laws or the rights of any third party, including intellectual property rights, rights of privacy, or origins of publicity; and
(e) the operation of the App, and the conditions assessment result and estimated upgrade fee are reliant on many factors (a lot which are outside of Our control), including the accuracy and completeness of your User Data and environmental and device specific factors such as the quality of your WIFI connection or condition of your device. You agree and understand that the provision of User Data that is inaccurate or incomplete may affect the use, output and operation of the App.
6.5 You acknowledge and agree that We may monitor, analyse and compile statistical and performance information based on and/or related to your use of the App in an aggregated and anonymised format (Analytics). We, and Our licensors own all right, title and interest in and to the Analytics.
7.1 You agree to only disclose your User Data to the extent that it contains Personal Information, if:
(a) you are authorised by Privacy Laws to collect the Personal Information and to use or disclose it in the manner required by this Agreement;
(b) you have informed the individual to whom the Personal Information relates that it might be necessary to disclose the Personal Information to third parties; and
(c) where any Personal Information is Sensitive Information, you have obtained the specific consent that disclosure requires.
For the purposes of this Agreement:
“Personal Information” and “Sensitive Information” have the meanings given in thePrivacy Act 1988 (Cth).
“Privacy Laws” means the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth)and any privacy or anti-spam laws applicable to you in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with this Agreement.
8. Suspension and termination
We may immediately suspend or terminate your subscription with notice to you if you breach this Agreement and, in Our reasonable opinion, your breach is significant or serious.
9. Security of your account
It is your responsibility to ensure the safety and security of your Device and any user account. You will be solely responsible and liable for all activity that occurs under or in connection with any user account you create or which relates to you.
10. Our responsibility to you and limits on liability
10.1 As a consumer, you have certain rights under consumer protection legislation, including the Australian Consumer Law (referred to below as “Consumer Rights“), which cannot be excluded or limited by Us, or which can only be excluded or modified to a limited extent. Your Consumer Rights include statutory guarantees that any goods supplied to you will be of acceptable quality and any services supplied to you will be provided in a timely manner and with reasonable care and skill, and will be fit for any notified purpose. Nothing in this Agreement is intended to exclude, restrict or modify your Consumer Rights beyond what is permitted by law.
10.2 To the extent that We are permitted by law to do so, and subject always to paragraph 10.1 above:
(a) We make no representations or warranties, express or implied with respect to the availability, performance, suitability or fitness for purpose, security, characteristics or operation of the App and we will not be responsible for breach of any such implied warranty or term;
(b) Our total aggregate liability under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise will in all circumstances be limited to $300 Australian dollars;
(c) We will not be responsible for any modification, interruption, suspension or discontinuation of the App, any technical faults which impact on the availability or use of the App, except to the extent that these occur as a result of Our negligence or wilful misconduct; and
(d) in no event will We be responsible for any special, consequential, indirect, incidental or exemplary damages, or for any loss of profits, revenue, interest, goodwill, loss or corruption of data suffered or incurred by you as a result of your use of the App or your reliance on information obtained via the App, regardless of whether liability is based on breach of contract, tort (including negligence), warranty, breach of statutory duty or any other basis of liability.
11. Your responsibility to Us
To the extent permitted by law, you agree to indemnify Us for any and all expenses, loss or damage (including reasonable legal fees) (whether under statute, contract, equity or tort (including negligence) We may suffer or incur arising from any third party claim brought against Us in respect of your use of the App that is not in accordance with the terms of this Agreement or from any breach by you of the terms of this Agreement.
12. Third Party Software
Certain parts of the App, including some of the features, may involve open source or third party software (Third Party Inputs). You agree that, to the extent permitted by law, we are not responsible or liable for Third Party Inputs and you must comply with the terms and conditions relevant to these Third Party Inputs as set out in this Agreement (or notified to you by Us from time to time).
13. Apple’s responsibility and rights
13.1 If you are downloading and using the App on an Apple device, you acknowledge and agree that:
(a) Apple, Inc. (Apple) and its subsidiaries are not parties to this Agreement, are not responsible for the App or its content, and have no obligation whatsoever to furnish any maintenance and support services with respect to the App. However, please be aware that Apple and its subsidiaries are third-party beneficiaries of this Agreement. Upon your acceptance of the terms of this Agreement, Apple will have the right (and will be deemed to have accepted that right) to enforce this Agreement against you as a third party beneficiary of the Agreement;
(b) Apple is not responsible for addressing any questions, comments or claims relating to the App and your use of the App;
(c) to the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the App, or any responsibility for any claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such warranty;
(d) Apple is not responsible for addressing any claims made by you or a third party relating to the App or your possession and/or use of the App, including but not limited to: (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; and
(e) Apple is not responsible for the investigation, defence, settlement and discharge of any intellectual property infringement claim made by a third party arising from your possession and use of the App, and that, except as set out in this Agreement, We will be responsible for dealing with such claims.
14. Support, questions, complaints and claims
If you have any comments, questions or complaints about the App, please call us on 1300 990 226 or email us at Optus.UpgradeandProtect@likewize.com. Where these are about the Optus Services (including in relation to the upgrade estimate or condition assessment), you should direct these to Optus in the first instance at 13 39 37 and they can communicate with us as required.
15.1 This Agreement is governed by and will be construed in accordance with the laws of the State of New South Wales, Australia.
15.2 You must comply with any applicable third party terms and conditions when using the App.
15.3 Our failure to enforce any term of this Agreement will not restrict Us from enforcing that or any other term at a later time.
15.4 If part or all of this Agreement is unenforceable, it will be severed and the balance of the Agreement will remain in full force and effect.
15.5 You may not transfer, assign, charge or otherwise dispose of this Agreement, or any of your rights or obligations arising under it, without Our prior consent.