Please read each provision of this Agreement carefully. It sets forth the legally binding terms and conditions for your use of the Services (defined below). By accessing and/or using our Services, you agree to be legally bound by this Agreement. If you do not agree to this Agreement and the conditions of use stated herein, do not use the Services.
This User Agreement & Terms of Service (collectively, the “Agreement”) is a legally binding agreement between you (“You,” “Your,” or “User”) and GoBank Pty Ltd (ACN 632 540 811) (“GoBank”) doing business as GoBank (“We,” “Us,” or “Our”). This Agreement states the material terms and conditions that governs Your use of Our Services.
Our services are comprised of the following:
- Our Power Bank charging locations (“Locations”);
- Our Power Bank Packs (“Packs”);
- all other related equipment, maintenance, charging of the Power Bank Packs, personnel, mobile applications, other software and information provided or made available by Us;
- use of Our website, available at gobankpower.com (including any versions optimised for viewing on a wireless or tablet Device), Our mobile application (the “App”) and any interactive features, and/or other services that We make available and that post a link to this Agreement; and
- advertising components in relation to the above.
(collectively “Services”)
This Agreement, together with all updates, supplements, additional terms, and all of Our rules and policies collectively constitute this “Agreement” between You and Us.
We agree to allow You to rent the Packs, subject to the terms and conditions set forth in this Agreement. Unless otherwise indicated, all monetary values set forth in this Agreement shall be deemed to be denominated in Australian dollars.
In some instances, both this Agreement and separate guidelines, rules, or terms of use, setting forth additional or different terms and/or conditions will apply to Your use of the Services (in each such instance, and collectively, “Additional Terms”). The Additional Terms are incorporated into this Agreement by this reference. To the extent there is a conflict between this Agreement and any Additional Terms, this Agreement will control unless the Additional Terms expressly state otherwise. By using the Services, You acknowledge and accept the GoBank Privacy Notice, and consent to the collection and use of Your data in accordance with that Privacy Policy.
1. RENTAL AND USE OF PACKS
1.1 You are the Sole User of the Services: You certify and expressly agree that You are the sole renter and You are responsible for compliance with all terms and conditions contained in this Agreement. You understand that when You activate a Pack, the Pack must be used only by You. You must not allow others to use a Pack that You have activated.
1.2 You are At Least 18 Years Old: You represent and certify that You are at least 18 years old and have capacity to enter into this Agreement.
1.3 Minor Use of Packs: You may allow a minor who is at least 12 years of age to use a Pack ONLY, subject to the following conditions:
(a) you are the minor’s parent or legal guardian;
(b) you assume full financial and/or any other responsibility for any and all misuse, consequences, claims, demands, causes of action, losses, liabilities, damages, injuries, fees, costs and expenses, penalties, legal fees, judgments, suits and/or disbursements of any kind, or nature whatsoever, whether foreseeable or unforeseeable, and whether known or unknown, as a result of the minor’s use of the Pack and/or any of the Services;
(c) you expressly guarantee, represent, and warrant that You and the minor are bound by this Agreement and all of the terms herein;
(d) you expressly guarantee, represent, and warrant that You will supervise the minor at all times while the minor is using the Pack; and
(e) you expressly guarantee, represent, and warrant that You have instructed the minor how to conduct the requisite safety check of the Pack prior to use.
1.4 Your Use of the Pack: This Section 1.4 applies specifically to any use of a Pack.
(a) Approval: In order to use a Pack, You must apply to use Our Pack accordance with the Rental policy described in the App and receiving approval from Us. We reserve the right to approve or deny any application, and to rescind its approval, in Our sole discretion. You represent and warrant that all information You submit in connection with Your application is true and accurate.
(b) Rental and Use of Packs: Rental of the Pack is subject to the Rental Policy.
(c) Use and Operation of Packs: You certify and expressly agree that You are the sole renter, and will be the user, of the Pack. You agree that the Packs are the exclusive property of Us, and You may not tamper with, modify, repair, apply any form of decal or sticker to, or deface any Pack (or any part thereof) in any way. We, or Our third-party contractors, monitor the location, charge and use of the Pack, and may collect information and data regarding Your use of the Pack. You agree and acknowledge that Packs may not be available at all times.
(d) Pick-up; Drop-off: You will only be charged a maximum of 8 hours in any 72 hour period (“Maximum Charge”). You agree that You will return the Pack rented within 72 hours after that rental began. You may then rent again. When you are finished with the Pack, you simply return it to any Location space (which can be found in your App). You agree that You are solely responsible for being aware of any elapsed time related to timely returning any Pack. The maximum charge is based on a 72-hour period pursuant to the pricing set forth in the App. After return of the Pack, You will be charged the accumulated rental charges, or the maximum 8 hour charge, whichever is less. Packs not returned within 72 hours will be considered lost or stolen. We reserve the right to take any other action needed and permitted by law, including charging a late return fee of $35.00 to Your Card (“Late Fee”).
(e) Late Fee: If a Late Fee is charged to Your Card and the Pack is subsequently returned to Us in a timely manner and in the condition as required under this Agreement, then We may at Our discretion provide You with a code for a refund credit to the value We determine as reasonable.
(f) Personal Use: You acknowledge that the Packs are for personal-use only and must not be used for any commercial purpose whatsoever.
(g) Prohibited Conduct: You agree that You will not use the Packs in any manner which would be deemed unlawful or a breach of applicable law and/or in the commission of any crime.
(h) Damage; Vandalism; Lost Items: You agree to return the Pack to GoBank Locations in the same condition in which such Pack was rented, normal wear and tear excluded. You agree that You will be responsible for the cost of repairing and replacing any Pack that is damaged whilst in Your possession.
(i) Reporting of Damage: You must report any damage, stolen or lost Pack to Us as soon as possible.
(j) Insurance: We will carry all necessary insurance associated with the Packs as required by applicable law.
(k) Your Liability: To the fullest extent permitted by applicable law and without limiting anything else in this Agreement, We reserve the right to hold You fully responsible for all damage, losses, claims and liability arising from Your use of any Pack, including, without limitation:
(i) physical or mechanical damage;
(ii) loss due to theft;
(iii) physical damage resulting from vandalism;
(iv) bodily injury of You or a third party;
(v) third party claims;
(vi) administrative charges, including the cost of appraisal and other costs; and
(vii) expenses incidental to the damage or loss,
except to the extent it arises from Our wilful negligence.
(l) Indemnification: To the fullest extent permitted by applicable law and without limiting Your indemnification obligations set forth in Section 4 of this Agreement, You agree to indemnify and hold Us harmless from any penalties and administrative fees incurred as a result of Your use of a Pack, and any and all consequences, claims, demands, causes of action, losses, liabilities, damages, injuries, fees, costs and expenses, penalties, solicitors’ fees, judgments, legal settlements or disbursements of any kind or nature arising from:
(i) your negligence or wilful misconduct; or
(ii) your breach of this Agreement,
except to the extent it arises from Our wilful negligence.
(m) Termination of Your Ability to Use Packs: At any time, in Our sole and absolute discretion and without any notice or cause, We may unilaterally terminate Your right to use a Pack. You may terminate your use of a Pack at any time. Upon any such termination noted in this Section 1.4(m). Your right to access and use a Pack will terminate and You must immediately cease all such use. You must pay Us any unpaid amount that accrued before such termination, and Sections 1.4(k), 1.4(l) and 1.4(m) will survive.
1.5 Packs are the Exclusive Property of GoBank: You agree that the Packs, and any GoBank equipment attached thereto, at all times, remain Our exclusive property. You must not dismantle, write on, or otherwise modify, repair or deface any Packs, or any part of any of the Packs, or any other GoBank equipment in any way. You must not write on, peel, or otherwise modify or deface any sticker on a Pack in any way. You must not use any Packs for any advertising or commercial purpose.
1.6 Compliance with Laws: You agree to follow all laws, rules, regulations of Australia pertaining to the use of the Packs. You are solely responsible and liable for any violation of any laws, rules, regulations, caused by Your use of the Services, and You agree that You are solely responsible and liable for any and all consequences, claims, demands, causes of action, losses, liabilities, damages, injuries, costs and expenses, penalties, legal fees, judgments, proceeding fees (and/or disbursements of any kind, or nature whatsoever, whether foreseeable or unforeseeable, and whether known or unknown, as a result of using any of the Services.
1.7 No Tampering: You must not tamper with, attempt to gain unauthorised access to, or otherwise use any Services (including but not limited to any QR code) in a manner that does not comply with this Agreement. If You breach this Section 1.7 We reserve the right to charge you the sum of $500.00 as liquidated damages representing the reasonable loss and damage We will suffer as a result of that breach.
1.8 You are Responsible for Pack Damage or Vandalism: You agree to return any Pack to Us in the same condition in which such Pack was rented. You agree that You will be responsible for the cost of repairing and/or replacing any Pack that You damage and/or cause damage to. You will not be responsible for normal wear and tear of the Packs. If You vandalise any Pack, You shall be liable for up to $35.00 for each Pack. For clarity, this Section 1.8 extends to damage and vandalism towards any charging station and equipment at a Location or other product or facility in any way connected with the Packs or Services.
1.9 Availability and Usage of Packs: You agree and acknowledge that the Packs may not be available at all times. Packs require periodic charging of batteries in order to operate. You agree to use and operate Packs safely and prudently and comply with all restrictions and requirements associated with the Packs, as set forth in any applicable laws, rules and regulations within Australia. You understand and agree to the following:
(a) The level of charge power remaining in the Pack will decrease with use of the Pack.
(b) The level of charging power in the Pack at the time You initiate the rental or operation of Pack is not guaranteed and will vary with each rental use.
(c) The rate of loss of charging power during the use of the Pack is not guaranteed and it is Your responsibility to check the level of charge power in the Pack to ensure that it is fit for the purpose intended.
(d) We do not guarantee the duration that You may operate any Pack before it loses charging power completely. The Pack may run out of charging power and cease to operate at any time during Your rental of the Pack.
2. DISPUTE RESOLUTION
2.1 Definitions: For the purposes of this Section:
Complainant means the person who starts the procedure in this Section.
Respondent means the person with whom the Complainant has a dispute.
Mediator means a person filling that role in relation to a dispute between the parties, howsoever that person is appointed.
2.2 Dispute: Except where a party to this Agreement seeks urgent interlocutory relief where a dispute arises in relation to this Agreement, the Complainant must start the procedure outlined in this Section in which case the Respondent will abide by that procedure.
2.3 Procedure:
(a) The Complainant will advise the Respondent that there is a dispute and will notify the Respondent in writing (“Complainant’s Notice”):
(i) the nature of the dispute;
(ii) what outcome the Complainant wants; and
(iii) what action the Complainant thinks will settle or resolve the dispute.
(b) The parties will then try to agree about how to resolve the dispute. If the parties cannot agree on a resolution within 10 business days of service of the Complainant’s Notice the matter will be referred to mediation.
2.4 Mediation: For mediation under this Agreement:
(a) the parties will meet to agree on a Mediator, and providing agreement is reached, either party may refer the matter to a Mediator agreed upon between the parties;
(b) if the parties cannot agree about who should be the Mediator within 15 business days of the date of service of the Complainant’s Notice, either party may ask the President of the Queensland Law Society at that time to appoint a Mediator;
(c) the Mediator may decide the time and place for Mediation; and
(d) the parties will attend the Mediation and try to resolve the dispute.
2.5 Costs: The parties agree:
(a) to be equally liable for the costs of any Mediation, unless they agree otherwise; and
(b) to pay for their own costs of attending any Mediation.
2.6 Right to Take Legal Proceedings: Nothing in this Section affects the right of a party to this Agreement to take legal proceedings under this Agreement, however, no action can be taken unless the procedure Section 2 has been complied with.
2.7 Small Claims Matters Are Excluded from Dispute Resolution Requirement: Notwithstanding Section 2.6, either You or Us may commence legal proceedings for amount up to $25,000.00 without complying with the Dispute Resolution Procedure detailed in Section 2.
2.8 No Class Action Matters: You and We agree that each may bring claims against the other only in Your or Our individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding or as an association. Disputes will be mediated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. There be no right or authority for any Dispute to be mediated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section 2 to mediate will not apply and the Dispute must be brought exclusively in court. Notwithstanding any other provision of this Section 2, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this “No Class Action Matters” section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator/mediator. The arbitrator/mediator does not have the power to vary these class action waiver provisions.
3. PAYMENT OF FEES
3.1 Fees: You may use the Packs on a pay per rental basis or as otherwise in accordance with the Pricing Policy described in the App and in the Rental Agreement. In each case, fees and other charges may be subject to applicable taxes and other local and/or state government charges, which may be charged and collected by Us. We will charge Your credit card or debit card (collectively, Your “Card”) or other agreed payment methods the amount of the fees as described in this Agreement.
3.2 Promotional Codes: Promotional codes (“Promotions”) are at Our discretion and are one-time offers and can only be redeemed via the App. We reserve the right to modify or cancel Promotions at any time. Promotions are limited to one per customer and account and may not be combined with other offers. Promotions are non-transferable and may not be resold.
3.3 Maximum Rental Time and Charges: You agree that You will deactivate the Pack rental within 8 hours of the time that rental of the Pack began. You may then rent again. You agree that You are solely responsible for being aware of any elapsed time related to timely locking any Pack back at any Location. The maximum charge (specified in the Pricing Policy within the App) for any Pack is based on a 72-hour period. After return of the Pack, You will be charged the accumulated rental charges, or the maximum 8 hour charge; whichever is less. Packs not returned within 72 hours will be considered lost or stolen, and You may be charged up to the value specified in the Pricing Policy within the App for each Pack. We may also charge a service fee as specified in the Pricing Policy within the App, in Our sole discretion, for rentals in excess of 72 hours where the Pack is not considered lost or stolen.
3.4 Valid Credit Card or Debit Card: You must input a valid Card number and expiration date before You will be registered to use the Services, such Card having no restrictions that would prevent the card-holder from using the Services. You represent and warrant to Us that You are authorised to use any Cards You furnish to Us. You authorise Us to charge the Card for all fees incurred by You. All fees are subject to applicable sales taxes and other local government charges, which may be charged and collected by Us. If You dispute any charge on Your Card account, then You must contact Us within 10 business days from the end of the month with the disputed charge, provide to Us all rental information that is necessary to identify the disputed charge, such as the date of the rental and the approximate starting and ending times. You agree to immediately inform Us of all changes relating to Your Card.
3.5 Methods of Payment, Credit Card Terms and Taxes: All payments to Us are made through a third party payment processor(s). We accept any and all methods of payment that Our third-party payment processor(s) accept. All transactions (deposits) into your GoBank wallet will incur a fee of $0.30. We currently do not accept cash, personal or business cheques or any other payment form, although in the future We may change this policy. Your Card issuer agreement governs Your use of Your designated Card, and You must refer to that agreement and not this Agreement to determine Your rights and liabilities as a cardholder. You represent and warrant that You will not use any Card or other form of payment unless You have all necessary legal authorisation to do so. You, and not Us, are responsible for paying any unauthorised amounts billed to Your credit Card by a third party. You agree to pay all fees and charges incurred in connection with Your purchases (including any applicable taxes) at the rates in effect when the charges were incurred. Unless You notify Us of any discrepancies within 30 days after they first appear on Your Card statement, You agree that they will be deemed accepted by You for all purposes. If We do not receive payment from Your Card issuer or its agent, You agree to pay all amounts due upon demand by Us or Our agents. Sales taxes, or other taxes, customs, import/export charges, or similar governmental charges are not included in the price of the Packs. You are responsible for paying any such taxes or charges imposed on Your purchases, including, but not limited to, sales, use or value-added taxes. We shall automatically charge and withhold the applicable tax for orders to be delivered to addresses within any states or localities that We deem is required in accordance with Our order policy in effect at the time of purchase.
3.6 Refund Policy: To the fullest extent permitted by law, all purchase transactions made through the Services are subject to Our return policy in effect at the time of purchase. Our refund policy is to not offer any refunds for anything purchased through the Services, except in Our sole and absolute discretion.
3.7 Order Acceptance Policy: Your receipt of an electronic or other form of order confirmation does not signify Our acceptance of Your order, nor does it constitute confirmation of Our offer to sell. We reserve the right at any time after receipt of Your order to accept or decline Your order for any reason (acting reasonably). We further reserve the right any time after receipt of Your order, without prior notice to You, to supply less than the quantity You ordered of any item. Your order will be deemed accepted by Us upon our delivery of Packs and/or Services that You have ordered. We may require additional verifications or information before accepting any order. Notwithstanding the foregoing, You agree that, if We cancel all or a portion of Your order or if We provide You less than the quantity You ordered, Your sole and exclusive remedy is either that: (a) We will issue a credit to Your Card account in the amount charged for the cancelled portion or the quantity not provided (if Your Card has already been charged for the order); or (b) We will not charge Your Card for the cancelled portion of the order or the quantity not provided. Do not assume that a cancellation or change of an order You have placed with Us has been effected until You receive a confirmation from Us via email or the Services. As stated above, You will be responsible for, and Your Card or third-party payment account may be charged for, the payment of all fees associated with orders already processed or shipped before Your cancellation/change request or a request to terminate Your account was received.
3.8 Account Registration And Security: You understand that You will need to create an account to have access to the Services. You will: (a) provide true, accurate, current and complete information about You as prompted by the Services’ registration or subscription page (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If You provide any information that is untrue, inaccurate, not current or incomplete, or We have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, We have the right to suspend or terminate Your account and refuse any and all current or future use of the Services (or any portion thereof). You are entirely responsible for the security and confidentiality of Your password and account. Furthermore, You are entirely responsible for any and all activities that occur under Your account. You must not share Your account information or Your user name and password with any third party or permit any third party to logon to the Services using Your account information. You agree to immediately notify us of any unauthorised use of or access to Your account or any other breach of security of which You become aware. You are responsible for taking precautions and providing security measures best suited for Your situation and intended use of the Services. We have the right to provide Your billing, account, Content or use records, and related information under certain circumstances (such as in response to legal responsibility, lawful process, orders, subpoenas, or warrants, or to protect our rights, customers or business, or in some cases, as a result of mandatory data sharing with governments). Please note that anyone able to provide Your personally identifiable information will be able to access Your account so You should take reasonable steps to protect this information.
4. RELEASES LIMITATION OF LIABILITY; ASSUMPTION OF RISK
“Claims” means, collectively, and without limitation, any and all claims, injuries, demands, liabilities, disputes, causes of action (including statutory, contract, negligence, or other tort theories), proceedings, obligations, debts, liens, fines, charges, penalties, contracts, promises, costs, expenses (including solicitor fees, whether incurred pre-litigation, pre-trial, at trial, on appeal, or otherwise), damages of any kind whatsoever (including consequential, compensatory, or punitive damages), or losses (whether known, unknown, asserted, unasserted, fixed, conditional, or contingent) that arise from or relate to any of the Services, including any of the Packs, equipment or related information, and/or Your use of any of the foregoing.
“Released Persons” means, collectively:
(a) Us and all of our owners, managers, affiliates, employees, agents, representatives, successors, assigns, licensors, licensees, distributors, vendors or third parties with whom We authorise or otherwise partner with to distribute, market or otherwise commercialise the Services;
(b) municipalities and public entities (including all of their respective elected and appointed officers, officials, employees and agents) which authorise Us to operate any of its Services;
(c) to the extent You access the Services using a third-party application, website, content, Packs, or services, that third party and all of its owners, managers, affiliates, subsidiaries, employees, directors, agents, representatives, successors, and assigns. In exchange for being allowed to use any of the Services, and other equipment or related information provided by Us, You (acting for You and for all of Your family, heirs, agents, affiliates, representatives, successors, and assigns).
4.2 Indemnity: To the fullest extent permitted by law, you indemnify Us in respect of any cost, loss, damage, expense, liability, claim, action, demand or proceeding (“Damage”) of whatsoever nature which may be suffered or bought against Us, and all owners, affiliates, employees, agents, representatives, successors in title, distributors, vendors or third parties who We authorise or partner with to provide the Services, arising out of or in connection with this Agreement, the Pack or the Service, except to the extent that the damage is caused by the wilful or negligent act or omission of Us, Our servants or agents.
4.3 Release: To the fullest extent permitted by law, you fully and forever release and discharge all Released Persons from any and all Claims that You have or may have against any Released Person. Such releases are intended to be general and complete releases of all Claims. The Released Persons may plead such releases as a complete and sufficient defence to any Claim, as intended third party beneficiaries of such releases. To the fullest extent permitted by law, you expressly agree to indemnify, release and hold harmless the Released Persons from all liability for any such property loss or damage, personal injury or loss of life, regardless of the cause, whether based upon breach of contract, breach of warranty, active or passive negligence or any other legal theory, in consideration for using any of the Services, extent it arises from the wilful or negligent act or omission of Us, Our servants or agents.
5. DISCLAIMERS
5.1 Disclaimer of Warranties: To the fullest extent permitted by law, and with respect to Your use of any of the Services, Packs, or related equipment, We and all other Released Persons disclaim all express and implied warranties, including warranties of merchantability and fitness for a particular purpose.
5.2 Services Provided As-Is: All of the services, Packs, and related equipment are provided “as is”, “as available” and “with all faults” (and you rely on them solely at your own risk). Therefore, to the fullest extent permissible by law, the Released Persons hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:
(a) the Services (including the Packs, the Content, the equipment rented through the Services, and the User Submissions);
(b) the functions, features, or any other elements on, or made accessible through, the Services;
(c) any instructions offered or referenced at or linked through the Services;
(d) security associated with the transmission of Your User Submissions transmitted to Us via the Services;
(e) whether the Services or the servers that make the Services available are free from any harmful components (including viruses, malware, and other technologies that could adversely impact Your Device(s));
(f) whether the information (including any instructions) on the Services is accurate, complete, correct, adequate, useful, timely, or reliable;
(g) whether any defects to or errors on the Services will be repaired or corrected;
(h) whether Your access to the Services will be uninterrupted;
(i) whether the Services will be available at any particular time or location; and
(j) whether Your use of the Services is lawful in any particular jurisdiction.
The Australian Consumer Law does limit or does not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent of the Australian Consumer Law.
6. LIMITED LIABILITY OF GOBANK; ASSUMPTION OF RISK BY YOU
6.1 Limited Liability: You hereby acknowledge and agree that, except as may otherwise be limited by law, We and all other Released Persons are not responsible or liable for any Claim, including those that arise out of or relate to:
(a) any risk, danger, or hazard described in this Agreement;
(b) Your use of, or inability to use, any of the Services, Packs, and/or related equipment;
(c) your breach of this Agreement and/or your violation of any law, rule, regulation;
(d) any negligence, misconduct, and/or other action and/or inaction by You;
(e) any negligence, misconduct, and/or other action or inaction of any third party,
except to the extent it arises from Our wilful negligence.
6.2 Waiver of Claims: To the fullest extent permitted by law, you hereby waive any and all Claims, including those based in contract, tort (including negligence), statutory, and/or other grounds, even if We or any of the other Released Persons have been advised of the possibility of such Claims.
6.3 Maximum Liability to GoBank: The total liability of Us and all other Released Persons for any and all Claims, including those based in contract, tort (including negligence), statute, or other grounds, is limited to the sum of $100.00.
6.4 Assumption of Risk by You: To the fullest extent permitted by law, you hereby acknowledge and agree that Your use of any of the Services, Packs, and/or related equipment, is at Your sole and individual risk, and We and the Released Persons are not responsible for any and all consequences, Claims, demands, causes of action, losses, liabilities, damages, injuries, fees, costs and expenses, penalties, legal fees, judgments, suits and/or disbursements of any kind, or nature whatsoever, whether foreseeable or unforeseeable, except to the extent it arises from Our wilful negligence.
7. THIRD PARTY INTERACTION
7.1 Social Media: In this Agreement “Social Media” means social media networking sites of any kind or nature including but not limited to web or internet based or mobile telephonic devices or medium such as facebook, twitter, Instagram and LinkedIn which enable the creation and exchange of user generated content.
7.2 Terms and Conditions: Should interaction by You be permitted or allowed on Our website, in the App or any other Social Media platform, You agree to abide by the following terms and condition in relation to such interaction:
(a) We reserve the sole discretion to amend, adapt and remove any content from Our website and Social Media without notice at any time;
(b) We do not warrant that We will respond to questions or comments submitted by You;
(c) any content that You post or transmit to Our website and Social Media is and will be treated by Us as non-confidential and non-proprietary and We may use such content without restriction;
(d) when You post or transmit any content to Our website and Social Media, You assign copyright which subsists in such content to Us;
(e) You must not disrupt the flow of dialogue or otherwise act in a manner which negatively affects, without limitation, other users, Our website, Social Media, GoBank platforms or servers;
(f) You must not impersonate any other person;
(g) any content that You provide may be posted on Our website or Social Media sites for any other end users to read; and
(h) if You download any content from an interactive part of Our website or Social Media, You may not adapt, reproduce, store, distribute, transmit, print, display, publish, create derivative works from or commercialise any information, Packs or services from such downloaded content.
7.3 Restrictions: You agree that You will not post or transmit on or to Our website, Social Media, GoBank platforms or servers, any content that:
(a) is offensive, defamatory, obscene, unlawful, vulgar, harmful, threatening, abusive, harassing or ethnically objectionable;
(b) incites or encourages conduct that is unlawful;
(c) contains information that is false or misleading;
(d) contains unsolicited advertising or promotional materials
(e) contains material in which the copyright is owned by another person or entity, is not Your original work or is sourced from any third party; or
(f) contains viruses or other computer codes, files or programs which are designed to limit or destroy the functionality of other computer software or hardware.
7.4 Acknowledgment: You acknowledge that We have the right to monitor the contents of the entire website and Social Media, including but not limited to chat rooms, emails, forums, posting and advertisements. You acknowledge that while We have the right to monitor the entire website and Social Media, We do not have an obligation to monitor the website and Social Media. We advise that monitoring of the website and Social Media is to ensure compliance with the terms and conditions, privacy policies and guidelines contained within the website and Social Media. Monitoring of the website and Social Media will also occur to ensure compliance with all applicable laws and regulations.
7.5 Removal of Content: We reserve the right to remove any content posted on the website and Social Media.
7.6 App: You agree and acknowledge that:
(a) in order for Us to provide the App to you, We may require access to and/or use of your device. For example, We may need to use Your device’s processor and storage to complete the relevant App installation. You agree to give Us such access to and use of Your device;
(b) in order to use the App, You may need an adequate internet connection or operating system in Your Device. You may also be required to activate certain functionalities within the App in the manner described within the App. You may not be able to use certain functionalities within the App if You do not comply with such requirements;
(c) You should be aware that your network provider may charge You both for access to its connection services and for the duration of Your device’s connection while accessing the App Services and/or using the App. You are solely responsible for these costs and the costs of any other third party associated with Your receiving the App Services and/or using the App.
7.7 Google Play: This Provision will only apply if the App has been downloaded from Google Play. You agree and acknowledge that:
(a) Your use of the App and/or the App Services is subject to any terms and conditions applicable to developers and applications on Google Play, as may be amended from time to time (the “Google Play T&Cs”);
(b) You will accept and comply with the Google Play T&Cs, and You must not use the App or the App Services in any way that would result in or cause Us to be in violation of such Google Play T&Cs;
(c) if there is any inconsistency between the terms of this Agreement and the Google Play T&Cs, the provisions of the Google Play T&Cs will prevail to the extent of the inconsistency;
(d) for clarity, the Google Play T&Cs include but are not limited to the “Google Play Developer Programme Policies”, which can be found at https://play.google.com/about/developer-content-policy.html, and the “Google Play Developer Distribution Agreement”, which can be found at https://play.google.com/about/developer-distribution-agreement.html, or such other website as Google may determine.
7.8 Apple App Store This Provision will only apply if the App has been downloaded from the Apple App Store. You agree and acknowledge that:
(a) Your use of the App and/or the App Services is subject to any terms and conditions applicable to developers and applications on the Apple App Store, as may be amended from time to time (the “Apple App Store T&Cs”);
(b) You will accept and comply with the Apple App Store T&Cs, and You must not use the App or the App Services in any way that would result in or cause Us to be in violation of such Apple App Store T&Cs;
(c) if there is any inconsistency between these Terms and the Apple App Store T&Cs, the provisions of the Apple App Store T&Cs will prevail to the extent of the inconsistency;
(d) for clarity, the Apple App Store T&Cs include but are not limited to the “Minimum Terms of Developer’s EULA”, which can be found at https://www.apple.com/legal/macapps/dev/minterms/, and the “Apple Media Services Terms and Conditions”, which can be found at https://www.apple.com/legal/internet-services/itunes/us/terms.html , or such other website as Apple may determine.
8. TERM AND TERMINATION
8.1 Term: The term of this Agreement begins when You first use the Services, and the term ends 30 days after You last use the Services, provided, however, that Your personal financial responsibility under this Agreement expires one year after You last use the Services.
8.2 Termination by GoBank: At any time and from time to time, and without Your consent, We may unilaterally terminate Your right to use the Services, in our sole and absolute discretion and without any notice or cause. We may also block Your access to Our Services if:
(a) You breach this Agreement;
(b) We are unable to verify or authenticate any information You provide to us; or
(c) We believe that Your actions may cause financial loss or legal liability for You, Our users or Us.
8.3 Termination by You: You may terminate Your use of the Services at any time. You acknowledge that if the Agreement is terminated by You that:
(a) no refund will be provided by Us in respect of Services provided to You;
(b) the term of this Agreement will continue in accordance with this Agreement;
(c) You may still be charged any applicable fees in accordance with this Agreement until We are satisfied that you have fulfilled all your obligations under this Agreement.
8.4 Post Termination: This Agreement remains in full force and effect, in accordance with its terms and conditions, after any termination of Your right to use any of the Services, regardless of how the Agreement is terminated.
9. CONFIDENTIALITY
9.1 Confidentiality: Each party acknowledges that the Confidential Information of the other party is valuable to the other party and, subject to this Section, undertakes to keep the Confidential Information of the other party secret and to protect and preserve the confidential nature and secrecy of the Confidential Information of the other party.
9.2 Disclosure: A party may disclose Confidential Information of the other party:
(a) to its legal and professional advisers in order to advise that party in connection with the exercise of rights and performance of obligations under this Agreement;
(b) to any representative of that party, provided that the disclosure is made for the purpose of this Agreement and the party imposes an obligation upon the representative to maintain the confidentiality of that material; or
(c) to the extent disclosure is required by an applicable law or court order, provided that the disclosing party gives reasonable advance notice of such disclosure to the other party in order that the other party has an opportunity to attempt to preclude or limit such disclosure.
10. PRIVACY
10.1 Privacy policy: We undertake to comply with the terms of our Privacy Policy as amended from time to time.
11. AGREEMENT TO BE CONTACTED
11.1 Contact: By voluntarily providing Your telephone number(s) and emails to Us, You expressly agree to be contacted and/or receive pre-recorded voice messages and/or auto-dialled calls or text messages and emails related to special offers, Your account, any transaction with Us, and/or Your relationship with Us. These telephone calls, emails and text messages may include, but are not necessarily limited to, for example, changes to Your account, verification codes, information in connection with a Pack or equipment updates, promotions, and updated payment information. Consent to receive automated marketing calls/texts is not a condition of any rental or purchase. You may receive marketing calls or text messages even if Your telephone number is registered on any Do Not Call list. You acknowledge that You may incur a charge for calls or text messages by Your telephone carrier and that We are not responsible for these charges.
12. GENERAL TERMS
12.1 Third Party Links: From time to time, the Services may contain links to websites or Social Media platforms that are not owned, operated or controlled by Us or our affiliates. All such links are provided solely as a convenience to You. If You use these links, You will leave the Services. Neither We nor any of Our respective affiliates are responsible for any content, materials or other information located on or accessible from any other website or Social Media platform. Neither We nor any of Our respective affiliates endorse, guarantee, or make any representations or warranties regarding any other websites or Social Media platforms, or any content, materials or other information located or accessible from any other websites or Social Media platforms, or the results that You may obtain from using any other websites or Social Media platforms. If You decide to access any other websites or Social Media platforms linked to or from the Services, You do so entirely at Your own risk.
12.2 Transactional Partners: In some cases, We partner with another company to co-promote their services within our Services. In these cases, You are transacting directly with the other party. On those pages or locations, the transactional partners’ brand is clearly visible and their agreements are posted. When using these partner pages, You are bound by the partner agreement in addition to remaining bound by this Agreement. When there is a conflict between this Agreement and the partner’s agreement, Our Agreement will prevail.
12.3 Force Majeure: Neither Us nor You shall be responsible for damages or for delays or failures in performance resulting from acts or occurrences beyond their reasonable control, including, without limitation: fire, lightning, explosion, power surge or failure, water, acts of God, war, revolution, civil commotion or acts of civil or military authorities or public enemies; any law, order, regulation, ordinance, or requirement of any government or legal body or any representative of any such government or legal body; or labour unrest, including, without limitation, strikes, slowdowns, picketing, or boycotts; inability to secure raw materials, transportation facilities, fuel or energy shortages, or acts or omissions of common carriers.
12.4 Copyright: Copyright in the website, our Social Media platforms and App (including text, graphics, logos, icons, sound recordings and software) is owned or licensed by Us. Other than for the purposes of, and subject to the conditions prescribed under, the Copyright Act 1968 Cth and similar legislation which applies in Your location, and except as expressly authorised by these terms and conditions, you may not in any form or by any means, without Our written permission:
(a) adapt, reproduce, store, distribute, print, display, perform, publish or create derivative works from any part of this website or our Social Media platforms; or
(b) commercialise any information, Packs or services obtained from any part of this website or our Social Media platforms.
An abuse of this provision may result in copyright infringement and We reserve Our right to instigate civil and/or criminal proceedings which may attract penalties.
12.5 Trade marks: Except where otherwise specified, any word or device to which is attached the ™ or ® symbol is a registered trade mark or trade mark pending registration. If you use any of Our trade marks, whether registered or not, in reference to Our activities, Packs or Services, You must include a statement attributing that trade mark to Us. You must not use any of Our trade marks:
(a) in or as the whole or part of your own trade marks;
(b) in connection with activities, Packs or services which are not Ours;
(c) in a manner which may be confusing, misleading or deceptive;
(d) in a manner that disparages Us or Our information, Packs or services (including this website).
We provide no license or assignment of any trade mark and the ownership of the trade mark rests with Us, or if licensed to Us, to the owner of that trade mark. An abuse of this provision may result in trade mark infringement and We reserve Our right to instigate civil and/or criminal proceedings which may attract penalties.
12.6 License: By submitting, posting or by otherwise placing any material onto the website or our Social Media platforms You grant to Us in respect of all material a royalty-free, perpetual, irrevocable, non-exclusive right and license to use, produce, modify, adapt and/or publish such material. By submitting, posting or by otherwise placing any material onto the website or our Social Media platforms, You warrant that You are the owner of such material and where You are not the owner, You warrant that the owner has provided to Us royalty-free, perpetual, irrevocable, non-exclusive right and license to use, produce, modify, adapt and/or publish such material.
12.7 Restricted use: Unless We agree otherwise in writing, You are provided with access to the website, our Social Media platforms and App only for Your personal use. You are authorised to print a copy of any information contained on this website and our Social Media platforms for Your personal use, unless such printing is expressly prohibited. Without limiting the foregoing, You may not without our written permission on-sell information obtained from the website, our Social Media platforms or App. The right to use this website, our Social Media platforms and App is personal to You and cannot be transferred to any other person. We maintain the ownership of all copyright/trade mark material downloaded from Our website and our Social Media platforms.
12.8 Updates to Terms: The terms and conditions under which We offer Services may be modified. As such, You expressly agree to the following:
(a) We may cease offering the Services under the terms or Additional Terms for which they were previously offered.
(b) Each time You use the Services You are entering into a new agreement with Us on the then-applicable terms and conditions.
(c) You agree that We may notify You of any updated terms by posting a link to the then-current version of this Agreement on the App, the Services, and/or in any other reasonable manner of notice which We elect.
(d) Your use of the Services after such notice constitutes Your going forward agreement to the revised agreement.
(e) You will review the posted user agreement/terms of service and any applicable Additional Terms prior to Your use of the Services.
(f) You agree that the revised Agreement will be effective as to new use and transactions as of the time that We post them, or such later date as may be specified in them or in any other notice to You.
(g) This Agreement (and any applicable Additional Terms) that applied when You previously used the Services will continue to apply to such prior use (i.e. changes and additions are prospective only) unless mutually agreed.
(h) If any notice to You of new, revised or Additional Terms is determined to be insufficient, the prior agreement between You and Us shall continue until sufficient notice to establish a new agreement occurs.
(i) You should frequently check the App, the home page, and the e-mail You associated with Your account for notices, all of which You agree are reasonable manners of providing You notice.
(j) You can reject any new, revised or Additional Terms by discontinuing use of the Services.
12.9 GST: For clarity, any monetary figures specified in this Agreement are exclusive of GST unless stated otherwise. If any payment made by one party to any other party under or relating to this Agreement constitutes consideration for a taxable supply for the purposes of GST or any similar tax, the amount to be paid for the supply will be increased so that the net amount retained by the supplier after payment of that GST is the same as if the supplier was not liable to pay GST in respect of that supply. This Section is subject to any other agreement regarding the payment of GST on specific supplies, and includes payments for supplies relating to the breach or termination of, and indemnities arising from, this Agreement.
12.10 Governing Law and Jurisdiction: This Agreement is governed by and construed under the law in the State of Queensland, Australia. Any legal action in relation to this Agreement against any party or its property may be brought in any court of competent jurisdiction in the State of Queensland, Australia. Each party by execution of this Agreement irrevocably, generally and unconditionally submits to the non‑exclusive jurisdiction of any court specified in this Section in relation to both itself and its property.
12.11 Precontractual negotiation: This Agreement expresses and incorporates the entire agreement between the parties in relation to its subject‑matter, and supersedes and excludes any prior or collateral negotiation, understanding, communication or agreement by or between the parties in relation to that subject‑matter.
12.12 Further assurance: Each party must execute any document and perform any action necessary to give full effect to this Agreement, whether before or after performance of this Agreement.
12.13 Continuing performance: The provisions of this Agreement do not merge with any action performed or document executed by any party for the purposes of performance of this Agreement. Any representation in this Agreement survives the execution of any document for the purposes of, and continues after, performance of this Agreement. Any indemnity agreed by any party under this Agreement constitutes a liability of that party separate and independent from any other liability of that party under this Agreement or any other agreement and survives and continues after performance of this Agreement.
12.14 Waivers: Any failure by any party to exercise any right under this Agreement does not operate as a waiver and the single or partial exercise of any right by that party does not preclude any other or further exercise of that or any other right by that party.
12.15 Severability: Any provision of this Agreement which is invalid in any jurisdiction is invalid in that jurisdiction to that extent, without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.
12.16 Electronic Counterparts: For the purposes of the Electronic Transactions Act 2001 (Qld), this Agreement may be executed by the parties electronically in counterparts and those counterparts taken together constitute one and the same instrument. Any consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless it is required by law to be physically delivered.
ACCEPTANCE OF AGREEMENT
I certify that I am at least 18 years old, and that I have read and expressly agree to the terms and conditions set forth in this Agreement.
OR
I certify that I am the parent and/or legal guardian of the minor User, who is at least 12 years old, and that I am at least 18 years old. I have read, and I expressly agree to, the terms and conditions set forth in this Agreement. I authorise use of the Services by the minor User through My account, and further certify that I have not permitted any minor to create an account, but have specifically authorised any minor use of a Pack only under Section 1.3 of this Agreement, and under My account. I will supervise and ensure that the minor User complies with all of the terms set forth in this Agreement and to the fullest extent permitted by law I expressly agree to indemnify and hold GoBank and the Released Persons harmless against any and all misuse, consequences, claims, demands, causes of action, losses, liabilities, damages, injuries, fees, costs and expenses, penalties, legal fees, judgments, suits and/or disbursements of any kind, or nature whatsoever, whether foreseeable or unforeseeable, and whether known or unknown, as a result of the minor’s use of the Pack and/or any of the Services, except to the extent arising from the wilful negligence of GoBank. I further expressly guarantee the minor’s acceptance of the terms of this Agreement, and I will be responsible for any breach of the above representations, warranties and/or this Agreement, and/or any attempt of the minor to disaffirm this Agreement.