Trafari Pty Ltd ABN 81 074 647 742


TERMS OF USE

 

INTRODUCTION

The Company provides the Trafari mobile application, a community and information service for young travellers. Use of Trafari is subject to these Terms of Use.

DEFINITIONS

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

(a)              ABN means Australian Business Number.

(b)              Agreement means the agreement formed between the Users and the Company under, and on the terms of, these Terms of Use.

(c)              Business means a registered user of Trafari, that uses the features associated with a Business account.

(d)              Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Melbourne, Australia.

(e)              Business Listing means a Listing for Products sold or operated by a Business.

(f)               Company means Trafari Pty Ltd ABN 81 074 647 742.

(g)              Corporations Act means the Corporations Act 2001 (Cth).

(h)              Fee means a fee charged by the Company for use of Trafari.

(i)               GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(j)               Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.

(k)              Listing means a listing posted by a User within Trafari that provides reviews and/or information about a Product.

(l)               Privacy Act means the Privacy Act 1988 (Cth).

(m)             Privacy Policy means the Company’s privacy policy as updated from time-to-time, which can be found at www.trafariapp.com/privacy-policy

(n)              Product means any travel, tourism, hospitality or fitness related good, service, experience or location.

(o)              Profile means the user profile of a User within Trafari.

(p)              Site means www.trafariapp.com.

(q)              Subscription Fee means a Fee charged by the Company for use of Trafari on a periodical basis.

(r)               Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(s)              Terms of Use means the terms and conditions of using Trafari, as updated from time-to-time, which can be found at www.trafariapp.com/terms-of-use.

(t)               TPS means an online third-party service provider with whom a User holds an account.

(u)              Trafari means:

i            The Trafari mobile application; and/or

ii           The Site.

(v)              Traveller means a user of Trafari, that uses the features associated with a Traveller account.

(w)             User means any registered Business or Traveller that uses Trafari.

(x)               User Content means images, information, documents or other data that is uploaded or input into Trafari by the User or that forms part of the User’s Intellectual Property.

1              USING Trafari

1.1          General

(a)           Some features of  Trafari require the User to log into Trafari and have set up their account.

(b)           The User agrees that all use of Trafari is subject to these Terms of Use.

(c)           Trafari is not available to users under the age of 18 or over the age of 34.

(d)           The Company may suspend the account or restrict the access of any User that breaches the terms of this Agreement.

1.2          Features

(a)           Trafari may allow a Traveller to:

i               Create and manage their Profile;

ii              Create and manage Listings;

iii             Review and/or rate Products;

iv             Browse and search Listings;

v              Comment on Listings;

vi             Share User Content;

vii            Communicate with other Users;

viii           Such other features Trafari may make available from time-to-time.

(b)           Trafari may allow a Business to:

i               Manage their Profile.

ii              Create and manage Business Listings;

iii             Claim and manage Business Listings created by other Users;

iv             Such other features Trafari may make available from time-to-time, or subject to the Business’ subscription.

1.3          Listings and Business Listings

(a)           A User shall be able to create a Listing for any Product.

(b)           Each User is responsible for ensuring the accuracy of all information described in a Listing.

(c)           The Company makes no representation as to the accuracy of any information contained in a Listing.

(d)           No User may create a Listing for the purposes of defaming or deriding a business or another User.

(e)           Where a User creates a Listing, the Company may require the User to verify whether it is the owner of the business that sells or operates the Product to which the Listing relates, by providing such additional information as the Company may require.

(f)            If a User creates a Listing for a Product provided by a business that it does not own or operate, the User acknowledges that control of the Listing may be claimed by the Business that does own or operate the relevant Product business.

(g)           A Business Listing is created either:

i               When a Business creates the Business Listing; or

ii              When a Business claims a Listing created by a Traveller.

(h)           In order to claim an existing Listing  and convert it to a Business Listing, a User must:

i               Create a Business account; and

ii              Provide such evidence of the Business’ ownership of the business as the Company may require.

(i)            The Company is under no obligation to notify the User that creates a Listing when that Listing has been claimed by a Business, and transferred to the Business’ control.

(j)            In the event of a dispute over the control or ownership of a Listing, each User agrees to assist the Company to determine the User that should have control of the Business Listing by providing supporting evidence of their claim.

(k)           The Company shall make a determination on the ownership of the Listing, and that decision shall be final and not subject to review.

(l)            The Company may remove any Listing at its discretion.

1.4          Reviews and Ratings

(a)           Users may use the rating system and other features of Trafari to rate and provide feedback on Products.

(b)           The rating system may require the User to provide a rating on more than one scale (e.g. Vibe, Quality and Price etc.).

(c)           The User agrees to provide accurate information and to not:

i               Unreasonably give a Listing a low rating or negative review; or

ii              Provide an inaccurately high rating or positive review for a Product, in order to gain a benefit of themselves or others from the Business that provides or operates that Product.

(d)           No User may provide reviews or ratings of a Product that the User has not used or experienced.

(e)           The Company may remove any review or rating that does not comply with this clause 1.4.

1.5          No Inappropriate Products.

(a)           No User may create a Listing for any Product that the Company in its sole discretion determines is inappropriate or offensive.

(b)           The Company may remove any User Content that suggests that a user is selling or seeking to purchase Products (or any other good or service) that the Company determines is inappropriate.

(c)           The Company may remove any Listing that is for a good or service, or any other topic that is not a Product, at its discretion.

1.6          Conduct. The User acknowledges and accepts that:

(a)           The Company accepts no responsibility for the conduct of any User of Trafari.

(b)           The Company accepts no responsibility for any interaction between Users, whether that interaction occurs via Trafari or not.

(c)           The Company makes no warranty or representation as to the accuracy of any information provided by any User.

(d)           The Company makes no warranty as to the character or credentials of any User.

1.7          Lodging a Complaint.

(a)           If a User believes that another user’s behaviour is threatening, discriminatory, or deliberately offensive, the User may lodge a complaint to the Company via email at hello@trafariapp.com .

(b)           The Company may suspend or delete the account of any User that Trafari determines conducts itself inappropriately.

(c)           The Company will advise the User of a suspended or deleted account of the decision to do so, but is under no obligation to identify a complainant.

(d)           The Company’s decision whether or not to suspend or remove a User account is at its absolute discretion. The Company’s decision shall be final and not subject to review.

1.8          No Warranty.

(a)           The Company makes no warranty or representation as to the quality, safety or fitness for purpose of any Product.

(b)           The Company takes no responsibility for any harm or loss suffered by a Traveller as a result of using any Product. If a customer suffers loss or harm as a result of any Product purchased from another user via Trafari, the Traveller agrees that:

i               The Traveller shall have no recourse against the Company; and

ii              The relevant User remains responsible for any such loss or harm (including under Australian Consumer Law if applicable).

2              User Content

2.1          The User acknowledges and agrees that:

(a)           Trafari may enable the User to create User Content, but that by doing so the User shall not acquire an interest in any Intellectual Property owned by the Company, which may exist in Trafari.

(b)           User Content is the sole responsibility of the person that provided the User Content to Trafari.

(c)           The User indemnifies the Company for any User Content that is illegal, offensive, indecent or objectionable that the User makes available using Trafari.

(d)           The Company may suspend accessibility to User Content via Trafari that the Company determines is illegal, offensive, indecent or objectionable in its sole discretion.

(e)           To the extent permitted by law, under no circumstances will the Company be liable in any way for User Content.

(f)            The User warrants that it has all necessary Intellectual Property Rights to use User Content, and shall indemnify the Company for any infringement the User commits of third-party Intellectual Property Rights by using User Content on Trafari.

(g)           In order to provide the services afforded by Trafari, where the User Content includes the User’s brand, logo or other intellectual property, it grants the Company a worldwide, revocable license to use the User Content, for the term of this Agreement.

2.2          The Company may edit or remove any User Content (including a Listing) that is:

(a)           Indecent or objectionable;

(b)           Inaccurate or misleading; or

(c)           Otherwise in breach of any law or regulation.

3              Fees, payments & refunds

3.1          Fees

(a)           Each Fee applies in accordance with such features and/or services purchased or subscribed for by the User, in accordance with the pricing described on the Site, or as otherwise agreed with the Company.

(b)           The User must provide the Company with 2 weeks notice prior to cancelling a subscription, unless agreed otherwise.

(c)           The User agrees to make payment in advance for all Fees due at such frequency, or on such dates as the User has subscribed for.

(d)           All payments shall be made via the online payment gateway within Trafari, or in such other manner as the Company may direct from time-to-time. The User agrees that it has no right to access the features associated with their Trafari subscription if it fails to make payments when due.

(e)           The Company reserves the right to introduce or change any Fees from time-to-time by giving the User no less than 14 days’ written notice. Any new or changed Fees will apply at the next billing period after the User has been given such notice.

(f)            If a User does not accept a change to any Fees, then it can simply terminate its subscription

3.2          Currency.

(a)           All Fees are quoted in Australian dollars, however transactions may be processed in an equivalent foreign currency (such as US dollars or Euros).

(b)           Transactions processed in other currencies may attract conversions fees, transaction fees or other bank fees, which must be paid for by the User.

3.3          GST.

For Users in Australia, GST is applicable to any Fees charged by the Company to the User. Unless expressed otherwise, all Fees shall be deemed exclusive of GST. The Company will provide the User with a Tax Invoice for any payments.

3.4          Refunds.

(a)           No refunds of Fees are offered other than as required by law.

(b)           If a Traveller believes it is entitled to a refund for a Product subject to a Business Listing, the Traveller acknowledges that it must seek such a refund directly from the relevant Business.

3.5          Late Payment.

The Company may restrict access to any paid features if Fees for continued use are not paid when due.

4              Third Party Login and Integration

4.1          Registration & Login.

(a)           A User may be able to register as a User, access Trafari and use integrated features by connecting their account with certain third party services (TPS) (e.g, Facebook, Twitter etc).

(b)           As part of the functionality of Trafari the User may connect their profile with a TPS by:

i               Providing their TPS login information to the Company through Trafari; or

ii              Allowing the Company to access their TPS in accordance with its terms & conditions of service.

(c)           When connecting to Trafari using a TPS the User warrants that they are not in breach any of the TPS’ terms & conditions of service.

4.2          Ongoing Availability.

(a)           The User agrees that User access to Trafari may be unavailable if the TPS becomes unavailable, and that the User may lose functionality or content that is shared between the TPS and Trafari.

(b)           The User may disconnect the connection between Trafari and the TPS at any time.

(c)           The Company has no relationship with any TPS and cannot guarantee the efficacy of any TPS connection.

4.3          Data from TPS.

Where a User connects and or registers their account using a TPS, the User authorises the Company to use data from that TPS to create the User’s profile within Trafari.

5              General conditions

5.1          Licence

(a)           By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive and revocable licence to access and use Trafari for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.

(b)           The Company may issue the licence to the User on the further terms or limitations (including the number of users or volume of use or transactions) as it sees fit.

(c)           The Company may revoke or suspend the User’s licence(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the User.

5.2          Modification of Terms

(a)           The terms of this Agreement may be updated by the Company from time-to-time.

(b)           Where the Company modifies the terms, it will provide the User with written notice, and the User will be required to accept the modified terms in order to continue using Trafari.

5.3          Software-as-a-Service

(a)           The User agrees and accepts that Trafari is:

i               Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the Company servers and is not available ‘locally’ from the User’s systems; and

ii              Managed and supported exclusively by the Company from the Company servers and that no ‘back-end’ access to Trafari is available to the User unless expressly agreed in writing.

(b)           As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter Trafari.

5.4          Support

(a)           The Company provides user support for Trafari via the email address hello@trafariapp.com.

(b)           The Company shall endeavour to respond to all support requests within 5 Business Days.

5.5          Use & Availability

(a)           The User agrees that it shall only use Trafari for legal purposes and shall not use it to engage in any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.

(b)           The User is solely responsible for the security of its username and password for access to Trafari. The User shall notify the Company as soon as it becomes aware of any unauthorised access of its Trafari account.

(c)           The User agrees that the Company shall provide access to Trafari to the best of its abilities, however:

i               Access to Trafari may be prevented by issues outside of its control; and

ii              It accepts no responsibility for ongoing access to Trafari.

5.6          Privacy

(a)           The Company maintains the Privacy Policy in compliance with the provisions of the Privacy Act for data that it collects about the User and other Businesses.

(b)           The Privacy Policy does not apply to how a Business handles personal information.  If necessary under the Privacy Act, it is the Business’s responsibility to meet the obligations of the Privacy Act by implementing a privacy policy in accordance with law.

(c)           Trafari may use cookies (a small electronic tracking code) to improve a User’s experience while browsing, while also sending browsing information back to the Company. The User may manage how it handles cookies in its own browser settings.

5.7          Data

(a)           Security.  The Company takes the security of Trafari and the privacy of its Users very seriously.  The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.

(b)           Transmission.  The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards.  It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.

(c)           Storage. The Company stores data on servers based in Australia according to accepted industry standards. If the User requires its User Data to be stored in a different location, the Company may charge the User a fee to do so.

(d)           Backup.  The Company shall perform backups of its entire systems in as reasonable manner at such times and intervals as is reasonable for its business purposes.  The Company does not warrant that it is able to backup or recover specific User Data from any period of time unless so stated in writing by the Company.

5.8          Intellectual Property

(a)           Trademarks.  The Company has moral & registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.

(b)           Proprietary Information.  The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally.  The User warrants that it shall not infringe on any third-party rights through the use of Trafari.

(c)           The Trafari Application.  The User agrees and accepts that Trafari is the Intellectual Property of the Company and the User further warrants that by using Trafari the User will not:

i               Copy Trafari or the services that it provides for the User’s own commercial purposes; and

ii              Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in Trafari or any documentation associated with it.

(d)           Content.  All content submitted to the Company, whether via Trafari or directly by other means, becomes and remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to Trafari.

5.9          Disclaimer of Third Party Services & Information

(a)           The User acknowledges that Trafari is dependent on third-party services, including but not limited to:

i               Banks, credit card providers and merchant gateway providers;

ii              Telecommunications services;

iii             Hosting services;

iv             Email services; and

v              Analytics services.

(b)           The User agrees that the Company shall not be responsible or liable in any way for:

i               Interruptions to the availability of Trafari due to third-party services; or

ii              Information contained on any linked third party website.

5.10        Liability & Indemnity

(a)           The User agrees that it uses Trafari at its own risk.

(b)           The User acknowledges that the Company is not responsible for the conduct or activities of any User and that the Company is not liable for such under any circumstances.

(c)           The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with Trafari, including any breach by the User of these Terms of Use.

(d)           In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, damage to property, injury, illness, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use Trafari, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, injury, illness or business interruption of any type, whether in tort, contract or otherwise.

(e)           Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified.  Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law.  To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:

i               The re-supply of services or payment of the cost of re-supply of services; or

ii              The replacement or repair of goods or payment of the cost of replacement or repair.

5.11        Termination

(a)           The Company may terminate this Agreement at any time by giving the User written notice.

(b)           The User may terminate this Agreement by providing the Company with 2 weeks’ written notice.

(c)           Termination of this agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this agreement up to the date of expiry or termination.

(d)           Termination does not affect any of the rights accrued by a party prior to termination, and the rights and obligations under clauses 5.9, 5.12 and 5.13 survive termination of this Agreement.

5.12        Dispute Resolution

(a)           If any dispute arises between the parties in connection with this Agreement (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:

i               Includes or is accompanied by full and detailed particulars of the Dispute; and

ii              Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.

(b)           Within 10 Business Days after a Dispute Notice is given, a representative of each party with the authority to resolve the dispute, must meet (virtually or otherwise) and seek to resolve the Dispute.

(c)           Subject to clause (d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.

(d)           Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.

(e)           Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.

5.13        Electronic Communication, Amendment & Assignment

(a)           The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.

(b)           The User can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement.  The Company will notify the User of a change of details from time-to-time.

(c)           The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.

(d)           A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.

(e)           Notices must be sent to the parties’ most recent known contact details.

(f)            The User may not assign or otherwise create an interest in this Agreement.

(g)           The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.

5.14        General

(a)           Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.

(b)           Prevalence. To the extent this Agreement is in conflict with, or inconsistent with any Special Conditions made under this Agreement, the terms of those Special Conditions shall prevail.

(c)           Disclaimer.  Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.

(d)           Relationship.  The relationship of the parties to this Agreement does not form a joint venture or partnership.

(e)           Waiver.  No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.

(f)            Further Assurances.  Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.

(g)           Governing Law.  This Agreement is governed by the laws of Victoria, Australia.  Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.

(h)           Severability.  Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.