Terms of Service
TODO: UPDATE BEFORE RELEASE
The use of the online services provided by iBoostUp Pty Ltd - Australian Company Number 145 928 758 ("Provider") is governed by the terms and conditions set out below ("Agreement"). Without limiting the way in which you, as a User, may be bound by this Agreement, by signing a document agreeing to be bound by this Agreement, by clicking a button or checkbox on your computer screen indicating your acceptance of this Agreement or by proceeding to use the Services (as defined below) you will be deemed to have accepted and will be bound by the terms and conditions of this Agreement, which will apply each and every time you use the Services.
DEFINITIONS AND INTERPRETATION Definitions In this Agreement, the following terms will have the following meanings, unless the context otherwise requires: Associate has the meaning given in Section 318 of the Income Tax Assessment Act 1936 (Cth) Content means any information, data, messages, audio, video, text, images, other multimedia, software, works and any other content that may be displayed, uploaded or downloaded to or from the Site.
Fee has the meaning given in clause REF 6.1. GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended). Indemnified has the meaning given in clause REF _Ref174786679 \r \h 13. Intellectual Property Rights means all intellectual property rights of any type whatsoever throughout the world including but not limited to all rights which subsist in copyright, paten trights, trademark rights and designs, whether or not such rights are registered or able to be registered.
Personal Information has the meaning given in clause 8.1. Provider means iBoostUp Pty Ltd - Australian Company Number 145 928 758. Rules means any rules published by the Provider from time to time in relation to the use of the Services or the Site which are in addition to this Agreement. Services means the services provided by the Provider which are described in clause 2.1. Site means the website located at forums.com & other country-specific domains and underlying software and infrastructure relating to the Site which permits the provision of the Services. Taxes means any applicable duties, sales taxes, GST, VAT or other taxes which may be levied in respect of a transaction contemplated by this Agreement. User means a person who uses the Services and includes a reference to you in your capacity as a User.
User Account means an online account with the Provider which enables the User to use the Site or certain parts of the Site.
Rules for Interpretation In the interpretation of this Agreement, unless the contrary intention appears: a reference to this Agreement means a reference to an agreement between you, as a User, and the Provider on the terms and conditions of this document and includes an amendment or supplement to, or replacement or novation of this Agreement; the words "includes" or "including" mean "includes without limitation" or "including without limitation"; a reference to a person includes a reference to a corporation, firm, association or other entity, and vice versa; the singular includes the plural and vice versa; a reference to any gender includes a reference to all other genders; a reference to any legislation or to any provision of any legislation includes a reference to any modification or re-enactment of or any provisions substituted for such legislation or provisions; an agreement, representation or warranty made by two or more persons is made by them jointly and by each of them severally; where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; and headings are inserted for convenience only and do not affect the interpretation of this Agreement.
SERVICES OFFERED BY THE PROVIDER The Provider will provide to the User one or more of the following online services (as determined by the Provider in its absolute discretion from time to time) in accordance with and subject to, the terms and conditions of this Agreement ("Services"): access to the Site (although the Provider may restrict access to certain parts of the Site from time to time in its sole and absolute discretion); the provision of a service whereby the User may upload and/or download Content ("Content Sharing Services"); the provision of a search function for Content hosted on the Site or on the internet or other websites ("Search Services"); the ability for the User to participate in forums for posting comments and sharing Content ("Forum Services"); and the provision of any other goods and services from the Provider as set out in this Agreement. The User agrees that the Provider may make Rules which apply from time to time in relation to the use of the Services and the Site. The User agrees that it is bound by these Rules. To the extent of any conflict between the Rules and this Agreement then this Agreement will prevail.
CREATING A USER ACCOUNT TO USE THE SERVICES Creating a User Account The User agrees that a User Account may need to be created with the Provider in order to use the Services and access some or all of the Site. The User Account will be created using the Provider's online sign up process, or any other method specified by the Provider from time to time. The User Account will permit the User to login to the Site to manage its User Account, make use of the Site and to manage other details involving its relationship with the Provider. The User agrees to keep confidential and secure any username or password used to access its User Account. The User warrants that all information provided to the Provider in the setup of its User Account is true and correct in every detail. The User agrees to only maintain one User Account in relation to its use of the Services and the Site. The User agrees to provide the Provider with all identification documents (including copies of passports and drivers licences) which the Provider may request from time to time for the purposes of verifying its identity. All users of the Services must be 18 years of age or older. By creating a User Account, the User represents and warrants to the Provider that they are 18 years of age or older and can form legally binding agreements under applicable law. The User may however permit minors under 18 years of age to use its User Account on its behalf provided that the User is their parent or legal guardian, and provided that their use of the User Account occurs under the User's supervision at all times. If a minor is not permitted to use the User Account in accordance with the forgoing then the User agrees that it is responsible for their actions, omissions or negligence and the User indemnifies the Provider against any loss, cost, expense or damage it may suffer as a result of the same.
Use of the User Account and the Site The User agrees that it will only use the User Account and the Site for the purposes of using the Services and for no other purpose. In addition to the Provider's rights under clause REF 7, the Provider may suspend or remove or block a User or User Account where a User engages in any of the following conduct: the creation of serial User Accounts, including but not limited to User Accounts created for disruptive or abusive purposes; where User Accounts are inactive for more than 45 days, the Provider may remove these User Accounts without any notice. The Provider will consider the following circumstances when deciding whether or not this clause will apply: the number of User Accounts created; whether, in its absolute discretion, it considers that the User Accounts were created for the purpose of preventing others from using the account names; whether User Accounts are or have been created for the purposes of selling same; or whether third party Content is used to update and maintain User Accounts under the names of those third parties; the actual or attempted reproduction, duplication, copy, sale, trade, resale or sublicense of the Services, the Site or User Account for any purpose or to any person without the express written permission of the Provider; the use, publication or provision of a link to any malicious Content intended to damage or disrupt another user's browser or computer or to compromise another user's privacy or security; any conduct that the Provider in its absolute discretion considers to constitute spamming from time to time, including but not limited to: posts being predominantly constituted of links; if a large number of people are 'ignoring' the User's messages or posts; a number of spam complaints have been filed against the User; if the User posts repetitive or duplicate Content across multiple User Accounts or multiple duplicate posts on the one User Account; or if the User passes off or attempts to pass off the Content of other users as their own; the use of the User Account to promote the services of a competitor of the Provider without first obtaining the prior written consent of the Provider; the use or posting of any obscene or pornographic Content, including but not limited to images in a User's profile picture, User background or posts; use of the User Account in a fraudulent or illegal manner, or the emailing or sending of any materials from the User Account which are offensive, unlawful, harassing, libellous, defamatory, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable; use of the User Account to stalk or harass another person; use of the User Account to impersonate any person in any way whatsoever; the use of the User Account to infringe the Intellectual Property Rights of any person; the forging or alteration of the header or address information contained in any email or communication which is sent from the User Account or in relation to the Services; use of the User Account to send or deliver viruses, spyware, malware or other harmful, disruptive, or destructive files; use of the User Account in such a way which damages the Site or denies access to the Site to other users of the Site; or intentionally or recklessly using the User Account in a way that degrades the performance of the Site for other users. The User's account may be suspended if any of the above conditions in this clause 3 are breached. Offending User Accounts which have previously been suspended and reinstated may be permanently suspended upon the subsequent breach of any condition contained in this clause 3. Notwithstanding anything contained in this Agreement, the Provider may at its absolute discretion terminate the User's User Account or remove the Content posted by the User without notice in the event that it determines that the User has breached this Agreement or for any other reason whatsoever. CONTENT SHARING SERVCIES AND SEARCH SERVICES The User acknowledges and agrees that the Site may contain Content provided by third parties and may contain errors, omissions, outdated information, and other inaccuracies and may be subject to terms and conditions which are found on websites or in documents and/or policies of those third parties. The Provider does not and has not made any representations or warranties that the Content on the Site: is current, complete, accurate, adequate or reliable; is not malicious, offensive, defamatory, indecent or objectionable; or is free of viruses, spyware or malicious code, and will not be held liable for any of the foregoing. The User acknowledges that the Provider, its directors, Associates, officers, employees, agents or other representatives do not endorse any Content posted using the Forum Services or used via the Content Sharing Services. The Provider may (but is under no obligation to) restrict the type of Content that may be displayed on the Site and to delete, remove, sensor and/or edit any Content in whole or in part which is uploaded, posted or shared by the User using the Site at its absolute discretion. The Provider makes no representation or warranty about the reliability or speed of the Services, including but not limited to download/upload speeds, or about the level of security it can provide of any of the Content the User posts, accesses or downloads using the Forum Services or on any publicly available areas of the Site. The Provider makes no representation or warranty about the quality or relevance of search results provided via Search Services or of the quality of the search functionality provided through the Site. The Provider is not responsible for any third party websites which are linked to from the Site (including any links generated via the Search Services) and for any Content displayed on, or accessible via, those third party websites.
PAYMENTS The amount payable by a User The Provider may from time to time specify that certain amounts are payable ("Fee") in order to access the Site or use the Services or any part of the Services. The User agrees to pay the Fee where it is charged by the Provider. How is the Fee paid? The Fee may be paid using a method of payment which is specified by the Provider from time to time which may include credit card, PayPal, direct debit, or telegraphic transfer. GST and other Taxes Expressions used in this clause REF 6.3 have the same meaning as when used in the GST Act. The Provider warrants that it is registered or required to be registered under the GST Act. If a Party makes a taxable supply under this Agreement, except where this Agreement otherwise, the payment made by a party for the taxable supply is expressed as a GST exclusive amount. The party liable to pay for a taxable supply to which this clause applies, must also pay the amount of any GST payable in respect of the taxable supply on the date on which payment for the taxable supply is due. However, if the Provider is required to include GST in respect of the supply it makes under this Agreement in a GST return for a tax period which ends on a date which is earlier than the date for payment, then the User must pay the GST payable in respect of the supply on that earlier date. A party is not obliged to pay the GST on a taxable supply to it, until given a valid tax invoice for the supply. If the Provider is required to pay any Taxes (other than GST) in addition to the Fee then the User will pay the Provider an additional amount such that after the deduction of such Taxes, the Provider receives no less than the Fee.
Refunds Any refund of the Fee for defective Services will only be provided where required by law and/or in accordance with any refund policy the Provider has in place from time to time.
SUSPENSION OF THE SERVICES Without limiting the Provider’s other rights arising under this Agreement, the Provider may suspend the User Account and the User's use of the Services at any time, with or without notice to the User, and for any reason in its sole and absolute discretion, including if: the Provider considers that the User has breached any of its obligations under this Agreement; the Provider considers that the User Account is being used in bad faith; in the Provider’s sole and absolute opinion, the provision of the Services to the User is resulting in an unreasonable load on the Provider’s servers or the Provider’s other services; or for any other reason determined by the Provider. The User agrees: the Provider may suspend the provision of the Services to the User where permitted under clause REF _Ref176748864 \r \h 7.1 at any time; the Provider’s suspension of the Services may, in the Provider’s sole discretion, apply to only some of the Services and/or for a fixed or indefinite period of time; and the Provider may in its sole discretion reactivate the Services and the User Account for the User at any time following their suspension. PRIVACY The Provider may collect the User's personal information including name, contact details and payment details (including, without limitation, credit card details) ("Personal Information"). All Personal Information will be handled, used, maintained and disclosed by the Provider in accordance with all applicable privacy laws and data protection laws as well as its privacy policy which applies from time to time. The User agrees that it will only use the Personal Information of other Users only for the purposes of interacting with them in relation to the Services. Unless separately agreed between the User and another User in writing, the User must not use the Personal Information of other Users for any other purpose. The User warrants to the Provider and its third party providers that it will comply with all privacy laws and data protection laws (including, without limitation, the Australian Privacy Act 1988 (Cth)) in relation to the storage, use and transfer of Personal Information.
RELATIONSHIP OF THE PARTIES The Provider is an independent service provider to the User and is not its partner, employee or agent. The User does not have the power to bind the Provider in relation to any obligation owing to a third party. The User agrees that by using the Services that the Provider, in providing the Services and access to the Site, is providing in part a platform or venue for the User to interact with other Users. The Provider is not a party to that separate interaction and is not responsible for any act or omission of any party to that separate interaction.
GENERAL OBLIGATIONS OF USERS The User agrees that: it will not use the Services for any illegal or fraudulent purpose; it will comply with all laws which must be complied with in relation to the use of the Services; it will comply with any export restrictions which may apply to the export or import of any Intellectual Property Rights to locations inside or outside Australia or the territory in which it is located; it warrants that it will not, by engaging the Provider to provide the Services, place the Provider in breach of any law or obligation owing to a third party; it will not undertake any act or cause any omission which will bring the Provider, its brand or other Users into disrepute; it will not use the Services in a manner that may lead to the suspension of the Services under clause REF 7; it will provide the Provider with all information requested by the Provider which the Provider requires to provide the Services; it will not use any robot, spider, scraper or other automated means to access the Site for any purpose without the express written permission of the Provider; and the User will not: copy, reproduce, modify, create derivative works from, distribute, or publicly display any Content (other than Content the User has submitted to the Site) from the Site without the Provider's prior express written permission and the appropriate third party, as applicable; interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site; or bypass any measures the Provider may use to prevent or restrict access to the Site or to the User Account.
TERM AND TEMINATION This Agreement will commence on the date that the User first accesses the Site and will apply at all times during which the User uses the Services, accesses, views or visits the Site. This Agreement and the User Account may be terminated by the Provider at any time for any reason whatsoever with or without notice to the User. Upon the termination of this Agreement the Provider will, within a time period determined by the Provider, withdraw the use of the Services from the User. The User's obligations and the Provider rights arising under clauses REF 5, REF 6, REF 8, REF 9, REF 11, REF 12, REF 13, REF 14 and REF 15 will survive the termination of this Agreement.
LIMITATION OF LIABILITY AND IMPLIED TERMS The User acknowledges that the Provider and its third party providers have made no warranties that the Services will be error free. The User agrees that the Provider and its third party providers will not be liable or responsible for any failure in, or delay to, the provision of the Services or in the Provider complying with its obligations under this Agreement where such failure or delay has a arisen as a direct or indirect result of: fire, earthquake, storm, flood, hurricane, inclement weather or other act of God, war, terrorism, explosion, sabotage, industrial accident or an industrial strike; denial of service attacks, telecommunications failure, hardware failure or the failure of software provided by a third party to function in accordance with its specifications; a significant demand is placed on the Provider's services which is above the usual level of demand and which results in a failure of the Provider's software and hardware to function correctly; the failure of any third party (including without limitation, any bank or other financial organisation) to fulfil any obligations to the Provider; or any other circumstances or event similar to the above which are beyond the reasonable control of the Provider. The User acknowledges and agrees that the Provider and its third party providers have not made and will not make any express or implied warranties in relation to the Services or any other goods or services provided by the Provider under this Agreement, other than those warranties expressly contained in this Agreement. Subject to clauses REF 12.6 and REF 12.7, any term that would be implied into this Agreement, including without limitation any condition or warranty, is hereby excluded. Subject to clauses REF 12.6 and REF 12.7, the User agrees that the Provider and its third party providers will not be liable in respect of any claim by the User (whether contractual, tortious, statutory or otherwise) for any direct, special, incidental, indirect or consequential damages or injury including, but not limited to, any loss of profits, contracts, revenue or data arising out of or in connection with the provision of the Services on the Site or the provision of any other goods or services under this Agreement and whether as a result of any breach or default by, or any negligence of, the Provider or its third party providers. The maximum liability of the Provider under this Agreement for any and all breaches of this Agreement and for any negligence in relation to this Agreement, will not exceed the amount of the Fee paid for the Services by the User. If no Fee is paid, then the maximum liability of the Provider for the forgoing will be AUD $2.00. If the Trade Practices Act 1974 (Cth) (or analogous legislation) applies to this Agreement and permits the limitation of liability for breach of warranty implied by legislation, the liability of the Provider is limited, at the option of the Provider, to: in the case of goods, any one or more of the following: the replacement of the goods or the supply of equivalent goods; the repair of the goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and in the case of services: the supplying of the services again; or the payment of the cost of having the services supplied again. Any of the terms and conditions of this Agreement which limit or exclude any term, condition or warranty, express or implied, or the liability of the Provider will apply to the extent permitted by law and will not be construed as excluding, qualifying or limiting your statutory rights or remedies arising by virtue of the breach of any implied term of this Agreement where such exclusion, qualification or limitation would be prohibited by legislation.
INDEMNITY The User indemnifies the Provider, its agents, officers, employees, and third party providers ("Indemnified") against any loss, cost, expense or damage (including legal costs on a full indemnity basis) which any of the Indemnified suffer or incur as a direct or indirect result of: any breach by the User of any representation, warranty or term of this Agreement; any acts or omissions by the User which are described in clause REF 7.1; any breach by the User of its obligations to a third party, including another User; any infringement by the User of the Intellectual Property Rights of a third party; and any legal proceedings threatened or initiated against the Provider by a third party as a result of the events described in clause REF 13 (a) to (d) above.
INTELLECTUAL PROPERTY AND CONTENT The User acknowledges that the Provider is the owner of all Intellectual Property Rights which subsist in the User Account and the Site. The User acknowledges that it has no Intellectual Property Rights in the User Account or in the Site. The User warrants that it is the owner of the Intellectual Property Rights in any Content it posts to the Site, or alternatively that it has an irrevocable world wide royalty free licence from the owner of the Intellectual Property rights to enable it to post the Content to the Site and grant the Provider the rights granted in this clause 13. The User grants a worldwide, royalty free, perpetual and irrevocable licence to the Provider for the Provider to: publish on the Site any Content the User uploads or posts to the Site; permit other Users to download or reproduce the User's Content uploaded on the Site; use the Content for the Provider's promotional purposes; and reproduce, distribute, prepare derivative works of, and display the User's Content or any other item or thing the User supplies to the Provider (whether via Site or by other means). The User acknowledges and agrees that: subject to clause REF 5.1, the Provider will not act as a moderator or adjudicator in relation to any claim by the User or another third party that Content submitted to the Site infringes any Intellectual Property Rights owned by the User or a third party; the Provider does not warrant or represent that it has undertaken any particular investigation or review as to whether any Content supplied by a User infringes any Intellectual Property Rights held by a third party. The User is responsible for undertaking its own due diligence or investigations in relation to the same; the Provider will not be liable or responsible for any breach by a User of any Intellectual Property Rights held by a third party in relation to any Content, Services or other use of the Site; the User unconditionally indemnifies the Provider against any claim, action, cost, expense or any damages arising out of or incurred as a result of the breach by the User of any Intellectual Property Rights of a third party or any other laws, including but not limited to laws in relation to defamation, in relation to any Content, Services or other use of the Site; and notwithstanding the above, the Provider may at any time remove any Content or User Account, from the Site which the Provider determines, in its sole and absolute discretion, may or does infringe the Intellectual Property Rights of a third party or breaches any law.
MISCELLANEOUS The Provider may amend the terms and conditions of this Agreement at any time. Such amendments will take effect from the date of their notification to the User ("Amendment Date"). The User agrees that without limiting the ways in which it may be bound by such amendments, the User will be deemed to have agreed to such amendments by making use of or accessing the User Account or the Site after the Amendment Date. Unless otherwise requested in writing by the User, the Provider may use the User's corporate identity (if applicable) as part of promoting the Services and the Provider in the market place. Any notice given under this Agreement must be in writing and must be signed by the party or its agent giving the notice. A notice is taken to be received: in the case of a notice delivered by hand, when so delivered; in the case of a notice sent by pre‑paid post, on the third day after the date of posting; in the case of a notice sent by facsimile, upon the receipt by the sender of a transmission report from the despatching facsimile machine which confirms that the facsimile has been successfully sent; or in the case of a notice sent by email, upon the receipt by the sender of a confirmation from the recipient or the recipient's email server that the email has been received by the recipient. This Agreement supersedes all prior representations, arrangements, understandings and agreements between the parties relating to the subject matter of this Agreement and sets forth the entire and exclusive agreement and understanding between the parties relating to the subject matter of this Agreement subject to any applicable laws. A provision of or a right created under this Agreement may not be waived except in writing signed by the party or parties to be bound by the waiver. No single or partial exercise by any party of any right, power or remedy under this Agreement will preclude any other or further exercise of that or any other right, power or remedy. The rights, powers or remedies provided in this Agreement are cumulative with and not exclusive of any rights, powers or remedies provided independently of this Agreement.
If any provision of this Agreement is judged invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect one of the parties) will not affect the operation or interpretation of any other provision of this Agreement to the intent that the invalid or unenforceable provision will be treated as severed from this Agreement. The Provider may assign its rights and novate or transfer obligations which arise under this Agreement. The User must not assign, novate or otherwise transfer your rights or obligations under this Agreement without the prior written consent of the Provider (which may be withheld). The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or part of it. This agreement is governed by, and must be construed in accordance with, the laws of the State of New South Wales, Australia and the parties irrevocably submit to the exclusive jurisdiction of the courts of the State of New South Wales, Australia and their Courts of Appeal.