1.1 Who we are. The myy app mobile application (App) is owned and operated by Pink Zebra Technology Science Pty Ltd (ACN 624 622 733) (Pink Zebra Technology Science, us or we).
1.4 Changes to the EULA. Pink Zebra Technology Science reserves the right to amend the EULA from time to time in our sole discretion and any such changes will be posted to the App and / or the Website. Any amendments to the EULA will take effect from the time they are posted on the App and/or App Services, as applicable (unless indicated otherwise). By accessing the App or using the App Services, you acknowledge that you have read, understood and agree to be bound by the then-current EULA. We are not obliged to notify you of any changes but we will endeavour to alert you to any significant changes.
1.5 Questions. If you do not understand any of the terms in the EULA, or if you have any questions, please contact us at email@example.com, Level 1, 136 Cathedral Street, Woolloomooloo, NSW 2011 or on 1800 255 966.
- Account has the meaning given in clause 4.1 (Registering for an Account).
- App has the meaning given in clause 1.1 (Who we are).
- App Services has the meaning given in clause 1.2 (Agreement to comply with EULA).
- Booking means a booking made via the App of a seat or table at restaurant, café, bar or other venue.
- EULA has the meaning given in clause 1.2 (Agreement to comply with EULA).
- Force Majeure has the meaning given in clause 14.1 (Force majeure).
- Model Contract means the model terms and conditions set out in Schedule 1 (Model Contract).
- Order means a request made via the App to purchase or otherwise acquire goods or services.
- Third Party Promotion and Program has the meaning given in clause 8.1 (Promotions are run by third parties).
- Third Party Websites has the meaning given in clause 8.2 (Third Party Websites).
- Venue means a restaurant, café, bar or other venue whose goods, services, promotions, programs or other offerings is listed on the App.
- Website has the meaning given in clause 1.2 (Agreement to comply with the EULA).
2.2 Interpretation. In this EULA, unless the context requires otherwise: (a) where an expression, word or phrase is given a particular meaning, then other parts of speech based on that expression, word or phrase and other grammatical forms of that expression, word or phrase, have corresponding meanings; (b) the rule of interpretation which sometimes requires that a document be interpreted to the disadvantage of the party which put the document forward, does not apply; (c) where an expression is defined anywhere in the EULA, it has the same meaning throughout; (d) headings and sub-headings are for convenience of reference only and do not affect interpretation; (e) the phrase include, includes or including, or similar phrase does not limit what else might be included; (f) a reference to “law” means all laws, codes, guidelines and the like, including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by-laws, rules and regulatory principles and requirements from time to time; (g) a reference to dollars or $ is to an amount in Australian currency.
3. Licence to use App and App Services
3.1 Our licence to you. In consideration of your agreement to comply with the EULA, we hereby grant you a non-exclusive, personal, revocable, non-sublicensable and non-transferable licence to use the App and the App Services in accordance with the EULA.
4. Registration to use the App
4.1 Registering for an Account. In order to use the App - including to enter competitions and promotions, participating in loyalty programs and offers that are run by third parties (including Venues) and to make Bookings and Orders, you must first register and create an account through the App (Account).
4.2 Registration information. As part of the registration process, you will be required to provide personal information about yourself, including:
- an email address;
- a postal address (which must be a street address);
- a mobile telephone number;
- your date of birth (which is optional unless you wish to enter competitions or promotions that have age restrictions); and
- your gender (which is optional).
4.4 Limitations on use. You must not use the App or receive the App Services and you are not permitted to register for an Account if:
- you are under the age of 18 - unless you have the consent of your parent or guardian and you otherwise have the capacity to form a binding contract with Pink Zebra Technology Science; or
- you are not permitted to access or use the App or receive the App Services under the laws of Australia or the laws of other applicable countries including the country in which you are resident or from which you downloaded the App or intend to receive the App Services.
5. Your obligations
5.1 Purpose of your use. You must use the App and the App Services only for purposes that are permitted by:
- the EULA;
- any applicable law in the relevant jurisdiction that applies to you.
5.2 Your password and login. You must protect the confidentiality of your password and login and disclosure of or use of your password and login by any other person is strictly prohibited. If you permit another person to use your password and login to log into the App, we may immediately terminate or suspend your Account. You acknowledge and agree that you are solely responsible for all activities that occur via your Account and that Pink Zebra Technology Science will not be responsible for any unauthorised use of your Account. You must not use or attempt to use another party’s password or login to access any part of the App or App Services. You must immediately notify us at firstname.lastname@example.org, of any unauthorised use of your password and login or any other breach or suspected breach of security in respect of the App or App Service. You also agree that we may periodically require you to change your password.
5.3 Use at your risk. Pink Zebra Technology Science cannot guarantee that any file or program available for download and/or execution from or via the App is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used. You assume all risk of use of the App and App Services. You release Pink Zebra Technology Science and our related bodies corporate and our respective employees, officers and agents entirely of all responsibility of any consequences of its use.
5.4 What you must not do. You must not:
- engage in any activity that directly or indirectly interferes with or disrupts the operation of the App or the App Services in any way (or the servers and networks which are connected to the App) or use the App in a manner that adversely affects its availability to others;
- use the App or the App Services for any activities, or post or transmit to or via the App any information or materials which:
- breaches or is contrary to any laws or infringes a third party's rights or privacy;
- interferes with other users, or defames, harasses, threatens, bullies, or offends any person, or which inhibits any other user from using the App;
- is obscene, indecent, discriminatory, inflammatory or pornographic or which could give rise to civil or criminal proceedings;
- use the App to send unsolicited commercial or bulk electronic messages;
- make any fraudulent or speculative enquiries, reservations or requests using the App;
- provide false information when registering or changing your registration details;
- reproduce, make available online or transmit (electronically or otherwise), publish, adapt, create derivative works from, distribute or redistribute, transfer, broadcast, display, sell or commercialise, license, perform, link, display or exploit in any other way and in any medium any part of the App (including its contents), App Services (including the contents) or any communication you receive from us;
- alter or modify any part of the App or App Services;
- attempt to "hack", decompile, disassemble, modify or reverse engineer any software deployed in connection with the App or App Services;
- circumvent, disable or otherwise interfere with security-related features of the App;
- knowingly transmit any virus or other disabling feature to or via the App;
- if you are under 18, use the App to enter a promotion or competition where the rules for that promotion or competition require entrants to be over the age of 18; or
- attempt any of the above acts or permit another person to do any of the above acts.
5.5 Take your own precautions. You must take your own precautions to ensure that your process for accessing the App and App Services does not expose you to risk of viruses, malicious computer code or other forms of interference which may damage your computer system or device.
5.6 You are responsible for costs. You are responsible for all costs, fees and expenses incurred directly or indirectly from accessing the App or otherwise using the App Services. This may include internet connection and usage fees and mobile telephone connection and usage fees.
5.7 Exposure to content. You understand that when using the App and App Services, you may be exposed to content from a variety of sources. You understand and acknowledge that you may be exposed to content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Pink Zebra Technology Science, our related bodies corporate and our respective officers, employees and agents with respect to such content.
6. Relationship with Apple
6.1 Acknowledgement. By downloading and/or using our App, you agree that you have entered into the EULA with us, and not with Apple. We are solely responsible for any product warranties, if any, pertaining to the App, whether express or implied by law, to the extent they are not otherwise effectively disclaimed in the EULA.
6.2 Scope of licence. By downloading the App from the App Store or from Google Play, Pink Zebra Technology Science grants you a non-exclusive, non-transferable licence to use the App on any iPhone, iPod touch or other relevant device that you own or control as permitted by the usage rules of the Google Play Store, the App Store, the App Store terms of service and the Google Play Store terms of service.
6.3 Maintenance and support. The parties each acknowledge that Apple has no obligation whatsoever to furnish any maintenance or support services with respect to the App.
6.4 Warranty. 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 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, if any, will be our sole responsibility.
6.5 Product claims. The parties acknowledge that Pink Zebra Technology Science, and not Apple, is responsible for addressing any of your claims or claims of any third party relating to the App or your possession and/or use 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.
6.6 Intellectual Property Rights. The parties acknowledge that Pink Zebra Technology Science, and not Apple, is responsible for any claim from a third party that the App infringes any third party intellectual property rights and that Pink Zebra Technology Science, and not Apple, will be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim.
6.7 Legal compliance. 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.
6.8 Third party beneficiary. The parties each acknowledge and agree that Apple, and its respective subsidiaries, are third party beneficiaries of the EULA, and that Apple has the right (and will be deemed to have accepted the right) to enforce the EULA against you as a third party beneficiary of the EULA.
6.9 Trademarks. Apple and App Store are trademarks of Apple Inc., registered in the U.S. and other countries.
6.10 No limitation. For clarity, the parties agree that nothing in this clause is intended to limit, exclude or modify any other provision of the EULA.
7. Intellectual Property Rights
7.1 Intellectual Property protection. The App and the App Services, and all content forming part of the App and App Services, including all photographs, images, designs, information, interfaces, text, graphics, brand names, logos and trademarks, are protected by copyright, trade mark and other intellectual property laws.
7.2 We own IP. You acknowledge and agree that as between you and Pink Zebra Technology Science, we own, control or have been licensed all right, title and interest in and related to the App and the App Services, including all intellectual property rights.
7.3 Right to use your communications. If you correspond or otherwise communicate with Pink Zebra Technology Science, you automatically grant to Pink Zebra Technology Science and our related bodies corporate an irrevocable, perpetual, non-exclusive, royalty-free, world-wide licence to use, copy, display and distribute the content of your correspondence or communication and to prepare derivative works of the content or incorporate the content into other works in order to publish and promote such content, in any format and in any media channel without restriction and without payment or the provision of consideration to you of any kind and without any notification to you. This may include publishing testimonials and developing your ideas and suggestions for improved goods or services we provide.
8. Third Party Websites and Third Party Promotion and Programs
8.1 Promotions are run by third parties. The App allows you to take advantage of promotions, loyalty programs, special offers and to enter competitions that are run by third parties (Third Party Promotion and Program). You agree that Pink Zebra Technology Science is not the promoter of or the supplier of any Third Party Promotion and Program and that neither Pink Zebra Technology Science nor our related bodies corporate are responsible for the manner in which Third Party Promotion and Programs are run, including the outcome of any Third Party Promotion and Program and the prize, good or service associated with any Third Party Promotion and Program.
8.2 Third Party Websites. The App and App Services may also contain links to websites owned or controlled by third parties (Third Party Websites). We have not reviewed these websites and cannot vouch for the content on their pages. The Third Party Websites are provided solely for your convenience and do not constitute, expressly or impliedly, an endorsement or approval by Pink Zebra Technology Science of the third party or the goods or services provided by the third party or any affiliation between Pink Zebra Technology Science and the third party. We are not responsible for the condition or content of those sites. If you access Third Party Websites and/or use goods and services of third parties you do so solely at your own risk and should make your own enquiries before relying on any content contained on such Third Party Website.
8.3 Venue terms. You acknowledge and agree that once a Booking or Order is confirmed, a legal contract is formed directly between you and the applicable Venue on the terms and conditions provided to you by the Venue or as otherwise agreed between you and the Venue. Where no such terms have been provided or agreed, the Model Contract applies between you and the Venue. If there is any inconsistency between the Model Contract and such other terms and conditions, the Model Contract prevails to the extent of the inconsistency.
8.4 Bookings and Orders. You acknowledge and agree that once a Booking or Order is confirmed, a legal contract is formed directly between you and the applicable Venue on the terms and conditions provided to you by the Venue or as otherwise agreed between you and the Venue. It is your responsibility to pay for the Booking or Order. All enquiries or issues relating to the Booking, Order or related payments must be addressed to the relevant Venue.
8.5 Third parties responsible for honouring Orders and Bookings. The relevant Venue, not us, is solely responsible for honouring Bookings and Orders and providing you with the goods and services. If you have any issues with a Booking or Order, you should contact the relevant Venue directly. We are not responsible for, and we cannot resolve, any issues relating to a Booking or an Order.
9. Availability, withdrawal and suspension of service
9.1 Nature of the Service. You acknowledge and agree that:
- the App and App Services are provided to you on an “as is” basis and they may contain errors, faults and inaccuracies and may not be complete and current;
- we may, at any time in our sole discretion and without prior notice and without any liability to you, alter, amend, interrupt, suspend, reschedule, modify or cease the design, operation or any other part of all or any part of the App or App Services for any reason including:
- if there is an interruption, equipment malfunction, system failure, fault, virus, maintenance or repair requirement, unauthorised access, denial of service or other malicious attack on any part of our computer or telecommunications system;
- a Force Majeure event; and
- the App and App Services may not operate on a continuous basis, and may be unavailable from time to time (including for maintenance purposes).
9.2 Rights to determine access. We reserve the right, in our sole discretion, to decide whether your activity or behaviour within the App or App Services violate the EULA.
9.3 Suspension or termination of your access or Account. We may at any time, without prior notice suspend or terminate your access and/or use of all or any part of the App or App Services, and we may suspend or terminate your Account, if, in our sole discretion, we believe that:
- you have breached the EULA in any way;
- pursuant to clause 5.2 (Your password and login);
- your access or use of any part of the App or App Service may be directly or indirectly harmful to others or may otherwise violate any laws, including the storage or transmission of inappropriate, unlawful or offensive material;
- we cease to operate the App or any of the App Services, or
- for any other reason.
9.4 What happens if we suspend or terminate your access or Account. If we suspend or terminate your access or use of the App or App Services, or your Account, you are prohibited from continuing to access and use any part of the service regardless of whether you are able to continue to do so. In addition you are not permitted to create, and you must not create, any other accounts to access the App or App Services. Except as otherwise provided herein, termination for any reason shall not relieve or discharge either party from any duty, obligation or liability which was accrued as at the date of termination.
9.5 Inactive accounts. We may also suspend and/or terminate your Account for all or any part of the App or App Services if there has been no activity on your Account for an extended period of time as determined by us in our sole discretion.
10. Paid Services
Pink Zebra Technology Science currently does not charge you to access the App or the App Services. However, from time to time you may be required to purchase goods or services from third party vendors in order to receive unique entry codes which allow you to enjoy or enter specific Third Party Promotion and Programs offered on the App.
11. Exclusion of Warranties and Limitation of Liability
11.1 No liability. To the full extent permitted by law, Pink Zebra Technology Science, our related bodies corporate and respective officers, employees and agents expressly disclaim any and all liability in connection with: (a) personal injury or property damage, of any nature whatsoever; (b) any unauthorised access to or use of our servers and/or any personal information stored therein; (c) any alteration, amendment, interruption, rescheduling, modification or cessation of all or any part of the App or App Services; (d) all content and any other information contained in any part of the App or App Services and the removal or suspension of any content or any other information; (e) any bugs, viruses, trojan horses, or the like which may be transmitted to or through the App or App Services; (f) any loss or damage of any kind incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available via the App or App Services; (g) any direct, indirect, incidental or punitive damages, including loss of profits, goodwill or intangible losses, loss of data, interruption of business or damage (including consequential, special or incidental damage); and (h) any errors, omissions or misstatements on or related to the App or communications transmitted via the App or App Services, in each case, arising from access to or use of any part of the App or App Services whether or not caused by any negligent act or omission or resulting from any delay in removing or failure to remove content from the App or App Services after receiving a request for removal even if we knew or should have known of the possibility of such loss or damage and whether damages are claimed in contract, tort (including negligence) or statute.
11.2 No representations or warranties. To the full extent permitted by law, Pink Zebra Technology Science, our officers, employees and agents exclude all representations and warranties (in each case, whether express or implied) in respect of the completeness, accuracy, reliability, suitability, timeliness or availability with respect to the App and App Services, the content of any sites linked to any part of the App or App Services, or the information contained on any part of the App or App Services for any purpose. Any reliance you place on any such content or information is strictly at your own risk.
11.3 Terms subject to law. The EULA are subject to any law which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions or obligations. If any law prohibits the exclusion of such warranties, conditions or obligations, we limit our liability to the extent permitted by law, to the re-supply of the App and/or App Services.
11.4 No liability for Third Party Promotion and Programs. You agree that Pink Zebra Technology Science provides a platform for third parties to list and run Third Party Promotion and Programs and that we are not responsible for and will not be liable for such Third Party Promotion and Programs. Any questions or issues in relation to Third Party Promotion and Programs should be directed to the relevant third party.
11.5 No limitation on your statutory rights. We make no express warranties or representations other than set out in this clause 11. Nothing in the EULA excludes, restricts or modifies any terms, conditions or warranties that are imposed or implied by any statute, including the Competition and Consumer Act 2010 (Cth). Limitations and exclusions are made only to the extent that we may legally do so.
11.6 Consumer guarantees. You may have the benefit of consumer guarantees under the Australian Consumer Law, and in such cases clauses (a) through to (c) following apply: (a) our goods come with guarantees that cannot be excluded under the ACL; (b) 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; and (c) the benefits of this warranty are in addition to any rights and remedies imposed by Australian State and Federal legislation that cannot be excluded and where this clause is inconsistent with any other provision of the EULA, this clause will prevail. Our liability to you is limited to the options set out in this clause 11.
11.7 Reduction of our liability. Pink Zebra Technology Science’s liability to you for loss or damage of any kind arising out of the EULA will be reduced or limited to the extent (if any) that you directly or indirectly cause or contribute to any of the loss or damage.
12. Your Warranties and Indemnities
You warrant that:
- You have not been induced to enter into using the App or App Services, or creating an Account by reason of any promise, representation, warranty or guarantee or undertaking whatsoever other than as is expressly stated in the EULA;
- You have been given the opportunity to take legal advice on the terms of the EULA; and
- You have the capacity, power and authority to agree to the EULA and have taken all necessary action in order to agree to the EULA.
You agree to accept sole responsibility for your actions under the laws which apply to you. You agree that Pink Zebra Technology Science and our officers, employees and agents have no responsibility for your actions. To the extent permitted by law, you agree to indemnify and hold each of the foregoing persons harmless to the fullest extent permitted by law in respect of any and all claims, loss or damage of any kind whatsoever (including legal costs and disbursements on a full indemnity basis), arising directly or indirectly out of or in any way connected to any: (a) act or thing done by us in good faith and purportedly pursuant to a right granted to us under the EULA; (b) breach by you of any provision of the EULA; (c) any wilful, unlawful or negligent act or omission by you; (d) your use of the App and/or App Services; (e) any act or omission or information regarding any Third Party Promotion and Program; or (f) your reliance on or use of any content.
13.1 Termination by you. You may stop using the App at any time for any reason and terminate the EULA.
13.2 Termination by us. Pink Zebra Technology Science reserves the right to, in our sole discretion, terminate the EULA, your access to and use of the App and/or App Services at any time.
14.1 Force majeure. Pink Zebra Technology Science will not be liable to you or any other party for any failure to perform our obligations under the EULA where such failure or delay is caused by events beyond our reasonable control, including epidemics, pandemics, quarantine, biological contamination, entry and exit restrictions, industrial disputes, strikes, lockouts, acts of god, acts or threats of terrorism or war, interruption to telecommunications services and failures or delays caused or contributed to by you (“Force Majeure”).
14.2 Notices. We may give notice to you by electronic mail to the email address provided in your Account. You may give notice to us by electronic mail to email@example.com.
14.3 Severability. If any provision of the EULA is held by a competent authority to be invalid or unenforceable or otherwise becomes illegal, in whole or in part, it is to be read down or severed to the extent necessary and the validity of the other provisions of the EULA and the remainder of the provisions in question shall not be affected.
14.4 No waivers. A failure or delay by Pink Zebra Technology Science to exercise a power or right under the EULA does not constitute a waiver of that power or right, and the exercise of a power or right by Pink Zebra Technology Science does not preclude our future exercise or the exercise of any power or right by or on behalf of Pink Zebra Technology Science.
14.5 No assignment by you. You may not assign, sublicense or otherwise deal in any other way with any rights or obligations under the EULA whether in whole or in part. Any unauthorised assignment, sublicense or other dealing shall be void.
14.6 We may assign. We may assign, sublicense and otherwise deal with any rights and obligations under the EULA.
14.7 Disputes. Prior to resorting to any external dispute resolution process, you and Pink Zebra Technology Science will use reasonable endeavours to use mediation and negotiation to resolve any dispute arising out of or relating to the EULA.
14.8 Survival. Clauses 7 (Intellectual Property Rights), 11 (Exclusion of Warranties and Limitation of Liability), 12.2 (Indemnities) together with any other clauses which contemplate that a party has any rights or obligations after the EULA terminate, survive the termination of the EULA.
14.9 Exclusion of the Vienna Sales Convention. The United Nations Convention on Contracts for the International Sale of Goods concluded in Vienna, Austria on 11 April 1980 does not apply to the EULA or to any individual contract of sale concluded within the framework of the EULA.
14.10 Governing law. The EULA is governed by and shall be construed in accordance with the laws of New South Wales, Australia. Disputes arising from them are exclusively subject to the jurisdiction of the courts of New South Wales, Australia and courts hearing appeals from them.
14.11 Overseas access. The App may be accessed throughout Australia and overseas. Pink Zebra Technology Science makes no representations that the content of the App complies with the laws (including intellectual property laws) of any country outside Australia. If you access this App from outside Australia, you do so at your own risk and are responsible for complying with the laws in the place where you access this App.
14.12 Entire agreement. The EULA constitute the entire agreement between you and us concerning their subject matter.
SCHEDULE 1 – MODEL CONTRACT
Unless indicated otherwise the capitalised terms used in this Model Contract have the meaning set out in clause 2.1 (Interpretation) of the myy app End User Licence Agreement (“EULA”). The Model Contract applies between a customer and a Venue, as contemplated under clause 8.3 (Venue terms) of the EULA.
1.1 When these terms apply. The terms of this Model Contract apply between the applicable Venue and customer when the customer places an Order or makes a Booking.
1.2 Venue’s obligations. The Venue will honour all Bookings and Orders and provide the customer with the applicable goods and services.
1.3 Your obligations. In respect of all Bookings and Orders that a customer makes via the App, the customer agrees to pay all fees that are listed on the App in respect of the applicable goods and services. The customer also agrees to pay any transaction fees, such as fees charged by the Venue’s payment provider, from time to time.
1.4 Disputes. Prior to resorting to any external dispute resolution process, the customer and the Venue will use reasonable endeavours to use negotiation to resolve any dispute arising out of or relating to this Model Contract and the transactions between the customer and the Venue that are conducted via or in connection to the App.
1.5 Invalidity. If any provision of this Model Contract is held by a competent authority to be invalid or unenforceable or otherwise becomes illegal, in whole or in part, it is to be read down or severed to the extent necessary.
1.6 Governing law. The Model Contract is governed by and shall be construed in accordance with the laws of New South Wales. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and the courts hearing appeals therefrom.