TERMS OF SERVICE
1. CONSUMER AGREEMENT
1.1. This agreement is between you and KWICKIE PTY LTD (ACN 605 666 340) of Suite 11/2, Eastside Building, 6 Waterfront Place, Robina, QLD, 4230 (“Kwickie”) and its related bodies corporate, and represents the Terms of Service.
1.3. If you do not agree to the terms and conditions set out in this Agreement, you must not use the Website or the Mobile App (together the “Service”).
1.4. Members who are under the age of 18 years of age as at the date of using the device must have permission from their parent or legal guardian to do so.
1.5. Kwickie reserves the right to amend, vary, modify and/or replace this Agreement at any time, and from time to time, and such amendment, variation, modification and/or replacement shall be effective immediately upon posting to the Website. Your continued use of the Service via either the Website and/or the Mobile App shall be deemed to be your acceptance of any amendments to this Agreement.
1.6. By using the Kwickie application you acknowledge and agree that you are participating in an Alpha Testing trial period of the Service (“Alpha Testing Software”). The Alpha Testing Software will allow Members to use the Service while it is in development and to participate in its improvement. By using the Services during this Alpha Testing trial period, you acknowledge and accept that the Alpha Testing Software is not a fully tested product, and has not been completed to full functionality. The Alpha Testing Software may contain defects, fail to comply with applicable specifications, and produce erroneous results when operated. The Alpha Testing Software is provided “AS IS”, and Kwickie provides no representations or warranties regarding the stability, reliability or availability of the Alpha Testing Software. Kwickie reserves the right to improve, modify or terminate the Service without limitation.
2.1. In order to use the Service via the Website you will need to accept the terms of this Agreement, be registered as a Kwickie member (“Member”) and hold a current member account with Kwickie (“Member Account”).
2.2. In order to use the Service via the Mobile App you will need to download the Kwickie Mobile Application, accept the terms of this Agreement, be a current Member and hold a current Member Account.
2.4. Kwickie reserves the right to refuse the registration of any Member, and to terminate any existing Membership, at its sole discretion.
2.5. You are solely responsible for the security and activity that occurs on your Member Account and for keeping your Member details, including your login and password, secure. You agree that Kwickie will not be held liable for any unauthorised activity or use of your Member Account.
3. THE SERVICE
Service on Offer
3.1. The Service incorporates various services which allow the Member to record a short video message (“Member Video Message”) asking a question of a influential member of society, including but not limited to celebrities and professional sports players (“VIP”);
3.2. The Service will then deliver the Member Video Message to the relevant VIP.
3.3. The VIP may, at their discretion, record a short video message in response to the Member Video Message (“VIP Video Reply”).
3.4. The Service then combines the Member Video Message and the VIP Video Reply in to one (1) video file, which is then distributed to both the Member and the VIP.
3.5. You understand and acknowledge that the Service is made available on an “as is” and “as available” basis for the primary purpose of the provision of VIP and Members. Whilst Kwickie will use reasonable endeavours to provide the Service to you, you acknowledge that it may not be continuous or fault-free, and may not be available at all times. Events which are outside our reasonable control may also affect the Service. The Service may contain errors or inaccuracies that could cause failures, corruption or loss of data and/or information from your device and from peripherals (including, without limitation, servers, computers, tablets and smart phones) connected thereto. You assume all risks and all costs associated with your use of the Service, including, without limitation, any internet access fees, back-up expenses, costs incurred for the use of your devices and peripherals, and any damage to any equipment, software, information or data. In addition, Kwickie is not obligated to, and will not provide you with any maintenance, technical or other support for the Service.
Changing or Discontinuing the Service
3.6. You agree that Kwickie reserves the right to modify, suspend or stop the Service (or any part thereof), either temporarily or permanently, at any time or from time to time, with or without prior notice to you. Without limiting the foregoing, Kwickie may provide notice of any such changes to the Service by posting them on the Website and/or via the applicable service. You agree that Kwickie shall not be liable to you or any third party for any modification, suspension or cessation of the Service. You acknowledge that Kwickie has no express or implied obligation to provide, or continue to provide, the Service to you, or any part thereof, now or in the future, and in addition, Kwickie may at any time, upon prior notice as required by applicable law, institute reasonable charges and/or fees for the Service.
4. USE OF THE SERVICE
Kwickie hereby grants you permission to access and use the Service as set forth in these Terms of Service, provided that:
4.1. Kwickie may impose certain limitations on the use of the Service with or without notice to you, including, but not limited to, imposing certain content download and streaming limits, restricting the number of accounts you may register, imposing expiration dates on campaigns and removing content from the Service. You agree to use the Service only for purposes as permitted under this Agreement and any applicable law or regulations. You agree to refrain from doing any prohibited acts as set out in this Clause 4.
4.2. You agree that you may not reproduce, copy, duplicate, modify, alter, sell, resell, rent or trade the Website or Mobile App of the Service (or any part thereof) in any way for any purpose, unless Kwickie makes available the means for such distribution through functionality offered by the Service, including but not limited to an embedded player functionality.
4.3. You agree that you will not use the Service to:
• (a) stalk, harass, threaten, intimidate or harm another;
• (b) pretend to be anyone, or any entity, you are not, you will not impersonate or misrepresent yourself as another person (including celebrities), entity, a Kwickie employee, or a civic or government leader, or otherwise misrepresent your affiliation with a person or entity. Kwickie reserves the right to reject or block any Member which could be deemed to be an impersonation or misrepresentation of your identity, or a misappropriation of another person’s name or identity;
• (c) engage in any copyright infringement or other intellectual property infringement, or disclose any trade secret or confidential information in violation of a confidentiality, employment, or non-disclosure agreement or otherwise;
• (d) use or commercialise any content from the Service except as permitted by this Agreement, by law, and with prior written agreement from Kwickie;
• (e) transmit any unsolicited advertising, promotional material or other forms of solicitation in connection with your use of the Service without the prior written agreement of Kwickie;
• (f) forge any TCP-IP packet header or any part of the header information or otherwise putting Information in a header designed to mislead recipients as to the origin of any content transmitted through the Service (“spoofing“);
• (g) access (or attempt to access) any part of the Website or Mobile App by any means other than through the interface provided by Kwickie;
• (h) engage in any activity which disrupts or interferes with the Service or the servers and networks that host the Service;
• (i) interfere with or disrupt the Service (including accessing the Service through any automated means, like scripts or web crawlers), or any servers or networks connected to the Service, or breach any policies, requirements or regulations of networks connected to the Service (including gaining unauthorised access to, use or monitoring of data or traffic thereon);
• (j) manipulate the Service by using a script or other automated process; or
• (k) plan or engage in any potentially fraudulent, illegal or offensive activity.
5. Kwickie SOFTWARE
Kwickie’s Proprietary Rights
5.1. You acknowledge and agree that Kwickie and/or its licensors own all legal right, title and interest in the Service including the Website and the Mobile App, and any software Kwickie makes available at any time for use with the Service (the “Kwickie Software”), including any and all intellectual property rights that exist therein, whether registered or not, and wherever in the world they may exist. You further agree that the Website, the Mobile App, the Service and the Kwickie Software, and any other part thereof contains proprietary and confidential information that is protected by applicable intellectual property and other laws.
License From Kwickie
5.2. You understand that Kwickie has granted you a limited, non-exclusive, non-transferable, revocable licence to have personal non-commercial use of the Service including the Website and the Mobile App to enable access to Kwickie Video Files. You agree that you do not have the right to assign, transfer or sub-licence any rights given to you pursuant to this Agreement. You further agree that you must not (and must not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to discover the source code (unless expressly permitted or required by law), sell, lease, grant a security interest in or otherwise transfer any right in the Kwickie Software.
6.3. Information collected when you use the Service may include technical or diagnostic information related to your use that may be used by Kwickie to maintain, improve and enhance the Service. You further understand and agree that this information and personal data about you may be transferred outside of Australia for storage, processing and use by Kwickie and/or its affiliates.
6.4. Should Kwickie be purchased by a third party, you understand and grant Kwickie the right to transfer any personal information that Kwickie has in relation to you to the third party. Kwickie will not be required to obtain your consent or notify you.
7. CONTENT, INTELLECTUAL PROPERTY RIGHTS AND RISK
7.1. “Content” means any information that may be generated, encountered, cached downloaded or streamed through use of the Service, including any digital content, video, software, graphics, photographs, images, sounds, comments, correspondence, messages and any other like materials.
Intellectual Property Rights
7.2. All intellectual property rights in the Website, the Mobile App, the Service and the Kwickie Software are the property of Kwickie or its licensors. All intellectual property rights that subsist in the Service or any Content available on the Service are the property of and are reserved to third party licensors. When you use the Service to download or view Content, you are only entitled to use the Content in accordance with this Agreement.
7.3. Kwickie reserves all intellectual property rights, including but not limited to, copyright in the material, Content and Services provided by Kwickie and further reserves all copyright in the content for and on behalf of any third party VIP, artist, professional sports player, celebrity, or any other contributor.
7.4. Nothing in this Agreement provides you with the right to copy, use, including but not limited to, any digital content, trademarks, marketing material, logos, domain names, and brands.
7.5. Any trademarks, intellectual property or the like used on the Service, including on the Website or the Mobile App which belong to third parties are used with the consent of that party and remain the property of that party.
7.6. As a Kwickie Member, you may submit Content to the Service, including but not limited to videos, feedback and comments. You understand that Kwickie does not guarantee any confidentiality with respect to any Content you submit. Kwickie does not claim ownership of any Content that you post on or through the Service. By using the Service, you automatically grant Kwickie an irrevocable, perpetual, non-exclusive, assignable, royalty-free, world-wide licence to use, replicate, display, broadcast and distribute the content of that correspondence or communication. This may include, but is not limited to, publishing testimonials on social media sites, using posts, comments and likes on your linked Facebook, Twitter or other social media page or Kwickie’s Facebook, Twitter or other social media page, and/or developing your ideas or suggestions to improve the products or services provided by Kwickie.
7.7. For the avoidance of doubt, you acknowledge that you licence to Kwickie all patent, trademark, trade secret, copyright or other proprietary rights in and to any Content submitted to the Service.
7.8. You understand and agree that all Content, whether publicly posted or privately transmitted on the Service, is the sole responsibility of the person from whom such Content originated. This means that you, and not Kwickie, are solely responsible for any Content you download or stream. You understand that by using the Service you may encounter Content that you may find offensive, indecent, or objectionable, and that you may expose others to such Content. You understand and agree that your use of the Service and any Content is solely at your own risk and Kwickie will not be held liable.
You acknowledge and agree that Kwickie may access, use, preserve and/or disclose your Kwickie Account information if legally required to do so or if we have a good faith belief that such access, use, disclosure, or preservation is reasonably necessary to:
• (i) comply with legal process or request;
• (ii) enforce this Agreement, including investigation of any potential violation thereof;
• (iii) detect, prevent or otherwise address security, fraud or technical issues; or
• (iv) protect the rights, property or safety of Kwickie, its users or the public as required or permitted by law.
9. SOCIAL MEDIA AND THIRD PARTY
9.1. The Service provides Kwickie Members with the option to share comments, posts and links on their social media pages including but not limited to Facebook and Twitter.
9.2. You understand that you may link your social media accounts to your Member Account, thereby allowing you to publish your Kwickie Content on your social media accounts.
9.3. You agree that you will not post any inappropriate, offensive, illegal or fraudulent content on your social media pages or on any public websites or in relation to this Agreement, and that any breach of this Agreement may lead to the immediately termination of your Member Account.
9.4. You understand that certain components or features of the Service may include materials from third parties and/or hyperlinks to other websites, resources or content (“Third Party Materials”). You acknowledge and agree that Kwickie is not responsible for the availability of such Third Party Materials, does not endorse or warrant the accuracy of any such Third Party Materials, and shall in no way be liable or responsible for any Third Party Materials, including advertising, products or materials on or available from them. You further acknowledge and agree that Kwickie shall not be responsible or liable in any way for any loss or damages you incur or allege to have incurred, either directly or indirectly, as a result of your use and/or reliance upon any such Third Party Materials, and advertising or products on or available from them.
10. IN-APP PURCHASES AND PAYMENTS
Kwickie may, from time to time, offer various products that you may purchase for the use of our Services. These products will be available to purchase through various app stores (such as Apple’s App Store or Google’s Play Store). Any purchase or purchases made through an in-app platform will be governed by the terms and conditions of that in-app platform. Kwickie does not transmit or process any funds of any in-app purchase.
11. TERMINATION OF THE SERVICE
Termination by You
11.1. You may cancel your Kwickie Account and/or stop using the Service at any time.
Termination by Kwickie
11.2. Kwickie may at any time, under certain circumstances and without prior notice, immediately terminate or suspend all or a portion of your Kwickie Account and/or access to the Service at its sole discretion. Cause for such termination may include, but is not limited to:
• (i) violation of this Agreement, or any other policies or guidelines that are referenced herein and/or posted by Kwickie on the Website or the Mobile App;
• (ii) a request by you to cancel or terminate your Kwickie Account;
• (iii) discontinuance or material modification to the Service or any part thereof;
• (iv) a request and/or order from law enforcement, a judicial body, or other government agency;
• (v) where provision of the Service to you is or may become unlawful or otherwise unauthorised;
• (vi) unexpected technical or security issues or problems;
• (vii) your participation in fraudulent, illegal or offensive activities;
• (viii) promotion of any scheme (including recording) and/or arrangement which would offend the legal streaming and/or download of Content; or
• (viii) your continued membership brings the Service into disrepute.
11.3 Any such termination or suspension shall be made by Kwickie in its sole discretion, and Kwickie will not be responsible to you or any third party for any loss or damages that may result or arise out of such termination or suspension of your Kwickie Account and/or access to the Service.
12.1. Statutory warranties contained in consumer protection law and any other relevant legislative provisions are implied into this Agreement. Nothing in this Agreement is intended to restrict those implied warranties, and this Agreement must be read subject to those relevant statutory provisions.
12.2. Subject to Clause 11.1 above you understand and agree that Kwickie will not be liable and does make any warranties in relation to the following:
• (a) Kwickie will not be liable for any loss or damage, including for negligence, breach of contract, or tort and including any form of consequential loss including but not limited to any third party loss, loss of profits, loss of revenue, loss of opportunity, loss of anticipated savings, economic loss, and the like, whether caused directly or indirectly in connection with your use of the Service including the Website and/or the Mobile App.
• (b) Kwickie will not be liable for any loss or damage resulting from the theft, loss or unauthorised use of the Service or your Member Account.
• (c) Kwickie does not make any warranties in relation to any goods and/or services, material or content supplied by any Third Party in connection with the Service or the Website.
• (d) All information, content, comments, photos, files, images, sounds and the like posted on or transmitted through or linked from the Website or the Mobile App are the sole responsibility of the person who provided same.
• (e) You understand that Kwickie will not be liable for any disruptions to the Service, including to the Website, the Mobile App, internet service providers or telecommunications provider, and does not guarantee or warrant that the Website or the Mobile App will run uninterrupted, at good speed, secure, or without errors from time to time.
• (f) Kwickie will not be liable should corruption or damage to your computer system, tablet, mobile phone, mobile handset or other device occur in connection with the use of the Service. You understand that it is your sole responsibility to ensure that any links or the like which you select to use from the Website or the Mobile App are free from viruses or any other items which may interfere with, corrupt or damage or affect the operation of your computer system, tablet, mobile phone or other device.
12.3. Kwickie does not endorse any Content submitted to the Service by any Member or VIP, or any opinion, recommendation, or advice expressed therein, and Kwickie expressly disclaims any and all liability in connection with the Content. Kwickie does not permit copyright infringing activities and infringement of intellectual property rights on the Service, and Kwickie will remove all Content if properly notified that such Content infringes on another’s intellectual property rights. Kwickie reserves the right to remove content without prior notice.
You will at all times indemnify, and keep indemnified, Kwickie, its directors, officers, employees, agents and related companies and bodies corporate from and against any loss (including legal costs and expenses on a full indemnity basis) or any liability incurred or suffered by you or by Kwickie arising from any claim, demand, suit, action or proceeding by any person against yourself or Kwickie where such liability arose out of, in connection with and/or through your use of the Service, and/or your conduct or breach of this Agreement.
14.1. Nothing in this Agreement creates a partnership, employment relationship, or agency relationship between you and Kwickie.
14.2. You agree that Kwickie will not be held liable for any delay in fulfilling its obligations under this Agreement if such a delay is caused by an act of God, act of terrorism, revolution, civil strife, industrial or legal action, fire, flood, storm, war, disaster, plague or epidemic, delay in transportation, internet or wireless connectivity, or telecommunication availability, delay by any third party, or any other cause outside Kwickie’s control.
14.3. You agree that certain technical difficulties or maintenance, may from time to time, result in temporary interruptions. Kwickie reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, functions and features of the Service with or without notice.
14.4. This Agreement is governed by and must be construed in accordance with the laws of Australia. The parties submit to the non-exclusive jurisdiction of the Courts of Australia in respect of all matters or things arising out of this Agreement.
14.5. Each party represents, warrants to and covenants with the other that it has full power to enter into and perform its obligations under this Agreement and this Agreement constitutes valid and binding obligations of that party enforceable in accordance with its terms.
14.6. To the extent of the provision of any goods and/or services by Kwickie (if any) it shall be deemed on a tax inclusive basis.
14.7. Where there are any translations of this Agreement and to the extent of any inconsistency, the English version shall prevail.
14.8. These Terms of Service, and any rights, obligations and licences contained hereunder, may not be transferred, assigned or novated by you, but may be transferred, assigned or novated by Kwickie without restriction.
15. ENTIRE AGREEMENT
If any provision of this Agreement offends any law applicable to it and is as a consequence illegal, invalid or unenforceable then:
• (a) where the offending provision can be read down so as to give it a valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve the result; and
• (b) in any other case the offending provision must be severed from this Agreement in which event the remaining provisions of the Agreement operate as if the severed provision had not been included.