PARTIES:
- ESHIELD PTY LTD ACN 650 734 704, of Level 3, 44 SYDNEY AVENUE FORREST ACT 2603 (“Company” or “Us”).
AND - the user of the company’s services (“You”).
BACKGROUND
A. The Company provides social media content removal services to Users through its App, which automatically removes harmful, offensive and objectionable content from a User’s social media profile.
B. You are a User of the Company’s Services and are referred to in this Agreement as “You”.
C. This Agreement sets out the terms and conditions under which You agree to be governed for using the Company’s Services.
OPERATIVE PROVISIONS
IT IS AGREED as follows:
- DEFINITIONS AND INTERPRETATIONS
1.1 Definitions
App means the Company’s desktop or mobile application, known as
‘SocialProtect’, which provides access to the Company’s social media content removal service.
Company’s Service means all services provided by the Company through the Company’s Site and App.
Designated Payment Method means Your designated method of payment of Fees as nominated on Registration and as can be changed by accessing Your Account.
Fee means all fees incurred by You in the course of using the Company’s Service, including Subscription Fees. It also includes any additional fees on any and all applicable sales, income, excise, import, export and other taxes or duties associated with using the Company’s Service.
Intellectual Property Rights or Intellectual Property means all intellectual property rights and interests throughout the world whether registered or unregistered, including trade marks, designs, patents, inventions, copyrights and analogous rights, trade secrets, know how, processes, concepts, confidential information and all other intellectual property.
Key Word List has the meaning at clause 4.2(a).
Personal Information has the meaning given to it in section 6 of the Privacy Act 1988 (Cth), and its amendments from time to time.
Privacy Policy means the Company’s privacy policy which is available at https://www.socialprotect.ai/privacy-policy and as amended from time to time.
Quarantine Zone means that part of the Company’s Service that stores and displays offensive content removed from Your social media profile.
Registration means to register as a registered User of the Company’s Service.
Site means the https://www.socialprotect.ai/ desktop website, mobile website, any subdomains of that website and includes any equivalent domain that is accessed through the App.
User means any user of the Company’s Service, including You.
User Information means any and all information or data You provide to the Company or other Users during the Registration and through any interactive feature of the system, including email.
1.2 (Interpretation): In this Agreement unless the contrary intention appears:
(a) Headings are for convenience only and do not form part of this Agreement or affect its interpretation.
(b) A reference to any legislation includes regulations and other instruments under it and any variation or replacement of any of them.
(c) The singular includes the plural and vice versa, and words importing any gender include the other genders
(d) References to any instrument are to that instrument as it may from time to time to be amended to extended in accordance with its terms.
(e) A reference to a “person” includes an individual, a firm, a body corporate, a partnership, a joint venture, an unincorporated body or association or any authority.
(f) References to dollars or $ is a reference to Australian dollars unless explicitly specified otherwise.
1.3 (Drafting responsibility): No provision of this Agreement is to be construed against a party because that party (or that party’s adviser) was responsible for drafting it.
NATURE OF THIS AGREEMENT
2.1 (Consent to this Agreement): By registering as a User, You acknowledge and agree that You:
(a) have read and understood the terms of this Agreement; and
(b) are 18 years of age or over and agree to be personally bound by all the terms of this Agreement, whether for You or on behalf of a minor if You are registering as User on behalf of a minor.
2.2 If You are registering as a User or accepting the terms of this Agreement on behalf of a company, body, government or other entity (“Relevant Entity”), you represent and warrant that You are authorised to register the Relevant Entity as a User, are authorised to accept the terms of this Agreement for and on behalf of the Relevant Entity and have the authority to bind the Relevant Entity, in which case “User” and “Your” will refer to the Relevant Entity.
2.3 (Binding nature of Agreement): Each party agrees that this Agreement is binding on that party’s legal personal representative, heirs, successors and permitted assigns.
2.4 (Exclusion of agency and partnership): Nothing in this Agreement is to be treated as creating a partnership, joint or co-venture or fiduciary obligation between the parties, or any two or more of them, under the laws of any applicable jurisdiction and, except as specifically provided in this Agreement, no party may act or has any authority to act as agent of or trustee for or in any way bind or commit any other party to any obligation.
2.5 (Modification of terms): The Company reserves the right to make changes to this Agreement or the policies incorporated herein at any time and at its complete discretion. The Company will notify You of any material changes to the Company’s Services, this Agreement or the policies incorporated herein as soon as practicable by a reasonable method including by email or posting a conspicuous notice on an appropriate part of its Site or via the App. You are deemed to have accepted any such changes and agree to comply with them if You continue to use the Company’s Service after the Company makes any such change.
3. REGISTRATION
3.1 (Registration): To register as a User, You will be required to provide a username, password and from time to time, such other information as required for the purpose of generating details for access to the Company’s Service. Where information provided by You is Personal Information, this information will be dealt with in accordance with the Company’s Privacy Policy.
3.2 (Restriction on registration): You must not register as a User more than one time. You must not impersonate or register as a User for anyone other than Yourself.
3.3 (Your account): It is Your responsibility to maintain the security and confidentiality of Your username and password and You agree to accept all responsibility and liability for any activities that occur under Your account. You may not transfer, assign or sell Your account to any third party without the prior written consent of the Company.
3.4 (Correct information): You must provide accurate and current information to Us.
The Company may, in its sole discretion, suspend or terminate Your account and refuse any and all current or future use of the Company’s Service (or any portion thereof) in its complete discretion, including where You provide any information that is false, misleading, inaccurate, not current or incomplete during Registration or otherwise in Your use of the Company’s Service.
3.5 (Verification): You agree that the Company may request a form of identification to verify Your identity from time to time.
4. PROVISION OF SERVICES
4.1 (Services): Subject to your payment of the Fees, the Company agrees to provide you with access to the Company’s Services for your use only.
4.2 (False positives): You acknowledge and agree that:
(a) the Company’s Service involves the automatic deletion of offensive, defamatory and otherwise objectionable social media content from your social media profile based on a list of key words that represent generally offensive words and phrases (Key Word List);
(b)the Company’s Service may delete social media content which was not intended to be offensive, but nonetheless contained an objectionable word which appeared on the Key Word List; and
(c) once the Company’s Service has deleted social media content from your social media profile, it is not possible to retrieve that deleted content and you agree that the Company will have no liability in relation to content which is deleted from your social media account.
4.3 (Quarantine zone): You acknowledge and agree that:
(a) offensive content removed from Your social media profile will be viewable in the Quarantine Zone;
(b) if You or if You are using the Company’s Services on behalf of a person that is aged under the age of 18, You will not be able to access the content stored in the Quarantine Zone; and
(c)by accessing the material in the Quarantine Zone, you understand that such material will be offensive in nature and may be distressing, and you agree that the Company will have no liability in relation to content which is displayed in the Quarantine Zone.
4.4 (Acceptable use): You agree that you will not use the Company’s Services in a way that is unacceptable. Use is unacceptable if:
(a) it involves anything which is false, defamatory, harassing or obscene;
(b) it involves the contravention of any person’s rights (including Intellectual
Property Rights and privacy rights);
(c) it may breach any laws;
(d) it involves fraudulent activity; or
(e) it involves the sale or promotion of any illegal business activities or prohibited products or services.
4.5 (Rights to restrict): Without limiting any other right or remedy available to the Company, You agree that the Company may restrict or suspend Your access to the Company’s Service if the Company considers that You have:
(a) undermined, or attempted to undermine, the security or integrity of the Company’s Service;
(b) used, or attempted to use, the Company’s Service:
(i) for improper purposes; or
(ii)in a manner, other than for normal operational purposes, that materially
reduces the operational performance of the Company’s Service;
(c) transmitted, inputted or stored any data that breaches or may breach this Agreement or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be objectionable, incorrect or misleading; or
(d) otherwise materially breached the Agreement.
- PAYMENT
5.1 (Fees and Charges): You agree that You are responsible and liable to pay all Fees to the Company for the use of the Company’s Services. You agree that the Company will charge Fees to your Designated Payment Method monthly in advance until such time as you notify the Company that you wish to cease using the Company’s Service.
5.2 (Processing fees): Certain purchases made through the Company’s Service may be subject to a non-refundable per item processing fee. By agreeing to a transaction with a processing fee, you authorise Us to charge Your Designated Payment Method for such processing fees.
5.3(Amendments to fees): You agree that the Company has the right to add, change or discontinue, in its sole discretion, temporarily or permanently, some or all of the Company’s Fees at any time with or without notice to You. You agree that a change to the Fees is effective after the Company publishes the changes on the Company’s Site.
6. INTELLECTUAL PROPERTY
6.1(Ownership):
(a) Title to, and all Intellectual Property Rights in, the Company’s Services and Site is and remains the property of the Company (and its licensors). The Company grants you a limited, revokable license to use the Company’s Service for period in which You pay the Company the Fees.
(b) Title to, and all Intellectual Property Rights in, Your User Information remains Your property. You grant the Company a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate Your User Information for any purpose in connection with the exercise of its rights and performance of its obligations under this Agreement.
6.2 (Third party Intellectual Property Rights indemnity): You indemnify the Company against any claim or proceeding brought against the Company to the extent that claim or proceeding alleges that Your use of the Company’s Services in accordance with this Agreement constitutes an infringement of a third party’s Intellectual Property
Rights.
WARRANTIES
7.1 (No implied warranties): To the maximum extent permitted by law, the Company’s warranties are limited to those expressly stated in this Agreement and the Company otherwise makes no representation concerning the quality of the Company’s Services and does not promise that the Company’s Services will:
(a) meet Your requirements or be suitable for a particular purpose; or
(b) be secure, free of viruses or other harmful code, uninterrupted or error free.
7.2 (Consumer guarantees): Where legislation, including the Competition and Consumer Act 2010 (Cth) implies in this Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise or liability under such condition or warranty, the condition or warranty will be deemed to be included in this Agreement. However, the liability of the Company for any breach of such condition or warranty will be limited, at the option of the Company, to one or more of the following:
(a) if the breach relates to services:
(i)the supplying of the services again; or
(ii)the payment of the cost of having the services supplied again.
8. INDEMNITY AND LIABILITY
8.1 (No indirect loss): To the extent that the Company is liable for breach of contract in connection with the supply of the Company’s Services, the Company excludes liability for loss of profit, revenue, business, savings, data or product, increased cost of production, loss of customer goodwill, or other special punitive, indirect or consequential loss or damage of any kind.
8.2 (Maximum liability): The maximum aggregate liability of the Company under or in connection with this Agreement or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any year exceed an amount equal to the Fees paid by You under this Agreement.
8.3 (Mitigation): Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of any act or omission by the other party under or in connection with the Agreement.
8.4 (Compliance with law): The Company is not liable to You under this Agreement or otherwise if and to the extent Your access to or use of the Company’s Services is contrary to obligations, including those owed under any contracts or any laws.
9 DISPUTE RESOLUTION
9.1 (Informal resolution): The parties will initially attempt to resolve any dispute that may arise between them in relation to the performance of the obligations set out in this Agreement, by informal means and at a time and in a manner acceptable to all parties.
9.2 (Issue of notice): If the parties are not able to resolve their dispute by informal means, either party may issue a notice requiring the dispute be resolved in accordance with this clause 9.
9.3 (Mediation): If, after 7 days from the date of the notice given in accordance with clause 9.2, the parties’ dispute remains unresolved, the parties agree to submit to mediation of the dispute.
9.4 (Terms of mediation): Any mediation of the dispute must:
(a) take place within the Australian Capital Territory, Australia; and
(b) be conducted by a mediator selected by the parties, or if no agreement can be reached, by a mediator selected by the President of the Law Society of the ACT.
9.5 (Cost): The cost of mediating the dispute will be borne equally by all parties.
9.6 (Urgent relief): This clause 9 does not prevent any party from seeking urgent injunctive, declaratory or other interlocutory relief.
9.7 (No relief from obligations): Notwithstanding that a negotiation, or mediation of the dispute may have commenced, nothing in this clause is intended to relieve any party from performing their obligations under this Agreement.
10. GENERAL PROVISIONS
10.1 (Notices): A notice required to be given under this Agreement must be in writing and delivered using any of the following means:
(a) hand delivery;
(b) courier; or
(c) e-mail,
in the case of the Company, to the contact details set out in the “Parties” section of this Agreement, and in the case of You, to your contact details provided as part of Registration, or such updated or replacement address notified by a party from time to time.
10.2 (Entire agreement): This Agreement comprises the parties’ entire understanding in relation to the subject matter of this Agreement and supersedes any prior Agreement or arrangement.
10.3 (Cumulative): The rights, remedies and powers of the parties under this Agreement are cumulative and not exclusive of any rights, remedies or powers provided to the parties by law.
10.4 (Consent): Unless this Agreement expressly provides otherwise, any approval or consent required to be obtained under this Agreement may be withheld, given conditionally, or given unconditionally, in each case in the relevant party’s absolute discretion.
10.5 (Waiver): A right granted to one party under this Agreement may only be waived by that party giving notice in writing to the other parties. A party does not waive any right granted under this Agreement merely by not exercising that right immediately.
10.6 (Severance): Any provision of this Agreement which is invalid or unenforceable in a particular jurisdiction, may be read down or severed to the extent of the invalidity or unenforceability in that jurisdiction only. The invalidity or unenforceability of a provision
of this Agreement in one jurisdiction does not affect the:
(a) application of that provision in any other jurisdiction in which it is valid and enforceable; or
(b) remaining provisions of this Agreement.
10.7 (Governing law and jurisdiction): This Agreement is governed by the laws in force in the Australian Capital Territory and the parties submit to the exclusive jurisdiction of the Supreme Court of the Australian Capital Territory to decide any dispute between them in relation to this Agreement.