These Terms of Service Terms constitute an agreement between Heroic Ventures Pty Ltd provider and you User and govern your access to and use of our services
User agrees to the terms of the Agreement by using the Service. Provider will allow User to access and use the Service, subject to the terms of the Agreement.
2. Age Restrictions
User must be 18 years old or over to use of the Service, unless:
- User is at least 13 years old; and
- uses the Service with the permission and supervision of a guardian.
User’s parent or legal guardian agrees that they will supervise User’s use of the Service.
3. Digital accounts
User agrees to:
- provide accurate and complete information to Provider to establish the Account;
- keep details used to access the Account secure and private; and
- notify Provider in the event that the Account’s security is compromised in any way.
User agrees that it will be responsible for the Account’s activity, even if the Account is used in an unauthorised way by any other person.
User is responsible for its own compliance with privacy law. Provider does not promise that any use of the Services by User complies with any privacy law.
5. Agreement length
The Agreement will apply until it is cancelled.
Either party may cancel the Agreement without giving reasons with 7 days of written notice.
6. Product purchases
- to pay Provider the amounts listed by Provider in exchange for the Products;
- to pay Provider for the Products using the payment method specified by the User on the Services;
- Provider may decline an order for a Product at its discretion and will provide a full refund for any declined order; and
- otherwise to the fullest extent available under the law, refunds are not allowed.
7. Product delivery
User agrees that:
- the Products are the responsibility of User when they reach the delivery address; and
- that the Products remain the property of Provider until User has paid Provider for the Products in full.
8. Agreement changes
- Provider may change the Agreement by notifying User in writing or by email with 7 days‚ notice.
- If User does not agree to the Agreement changes, User must cease using the Services.
9. Intellectual Property Protection
- Provider reserves the right to alter any element of the Product IP at its discretion.
- User agrees not to reverse engineer any part of the Product IP.
- No licence or right is granted over any intellectual property in the Product IP unless explicitly described in the Agreement.
- User does not have any right to resell or sub-licence the Product IP unless the Agreement explicitly provides otherwise.
- If User provides Feedback to Provider, User transfers ownership of the intellectual property rights in the Feedback (and any resulting enhancements to the Service) to Provider.
- User assigns all current and future Intellectual Property Rights in the Feedback to Provider.
- The assignment is global.
- User warrants and represents to Provider that it has the right to transfer the Intellectual Property Rights under this clause.
- User agrees to do all things necessary to give effect to the assignment of Intellectual Property Rights in this clause without infringing Moral Rights.
- User warrants that it will give and obtain any Moral Rights waivers and consents necessary to ensure the Provider can deal in the Intellectual Property Rights in the Feedback in accordance with this clause without infringing Moral Rights.
10. Acceptable content
User agrees to use the Service in accordance with the law at all times and only in ways that the Service was designed to be used.
User agrees not to use the Service to communicate or store any information:
- that could reasonably be considered racist or hate speech;
- that infringes the intellectual property rights of a third party;
- to harass any third party;
- that is pornographic in nature;
- that could reasonably be categorised as “malware”;
- such that the use interferes with Provider’s ability to provide the same service to other parties; and
- that is unlawful.
The parties agree that a breach of this section gives Provider the right to immediately suspend User’s access to the Service until Provider is reasonably satisfied that the use breaching this clause will be discontinued.
11. Claim limits
Limitation of Liability
User deals with the Provider in respect of the Services and Products at its own risk. To the fullest extent permitted by law, Provider excludes all liability (including Consequential Loss) to User for any liabilities connected directly or indirectly with the User and Provider dealings in relation to the Services, including liabilities based on:
- contract law;
- tort law; or
- and including liabilities caused by the Example Costs.
To the fullest extent permitted by the law, all terms and conditions implied by any other source of law in relation to dealings between the Provider and the User in respect of the Services and Products are excluded from the Agreement.
To the fullest extent permitted by the law, Provider’s liability to the User for breaching a Compulsory Condition in relation to the Services and Products is limited to:
in a case where a breach is deemed to be a breach in respect of goods:
- the replacement of the relevant goods or the supply of equivalent goods;
- the repair of the relevant goods;
- the payment of the cost of replacing the relevant goods or of acquiring equivalent goods; or
- the payment of the cost of having the relevant goods repaired; and
in a case where a breach is deemed to be a breach in respect of services:
- the resupply of the relevant services; or
- payment of a sum equal to the cost of resupplying the relevant services.
The Provider will choose which of these options will apply.
12. Covering costs
To the fullest extent permitted by the law, the User indemnifies the Provider and its directors, employees, agents and assigns, for all Costs suffered by them, however caused, in connection with each of the risks below (Risks).
Risks on data, including:
- User’s breach of any privacy law;
- User’s breach of any law in connection with spam;
- User’s storing of any third party data on the Services;
- a third party pursuing a right conferred by privacy law; and
- any legal action taken by a third party alleging intellectual property infringement by User in connection with the Services.
Risks relating to the Agreement, including:
- User’s breach of the Agreement;
- any negligent act of User connected with the Services;
- third party reliance on the Services under a contract with User; and
- User’s use of the Services in connection with unlawful activity.
Each Risk described above will give rise to a separate indemnity in relation to that Risk on the terms and conditions in this document.
- The Indemnities are subject to the application of any Non Excludable Laws. To the fullest extent permitted by the law, the parties exclude the application of Proportionate Liability Laws to the Indemnities.
- The Provider must use reasonable endeavours to mitigate any Cost that arises that is subject to an Indemnity.
Any Indemnity created:
- will survive the termination of the Agreement; and
- will be additional to any contractual damages that the Provider might otherwise be entitled to claim.
The Provider may make a claim under any Indemnity before any liability is crystallised, loss sustained or cost incurred.
13. Posted information
User agrees that:
- it is responsible for the legal consequences arising from Posted Content;
- Provider is in no way responsible for legal consequences arising from Posted Content;
- Provider may edit or remove Posted Content at its discretion; and
- User promises that it will not, by posting Posted Content, infringe the intellectual property rights of any third party, or cause Provider to do so.
14. Information and reliance
- Provider does not promise that any Service Content is complete or correct.
- User agrees that it should verify any Service Content before relying on it in any way.
- Provider may change the Service Content at its discretion without any warning or notification to User.
- To the extent that Service Content is third party advertising, User agrees that Provider does not endorse the third party advertiser or any of its information, products or services.
- The governing law of the Agreement will be Victoria, and the parties agree that this state will be the exclusive jurisdiction for any proceedings under the Agreement.
- The parties may send Communications to other Agreement parties using the email addresses listed in the party details section of the Agreement.
- The parties agree that defined words are capitalised and hyperlinked. Defined word meanings can be viewed by clicking a defined word.
- User will be liable for all duties and taxes connected with the Agreement, including any tax incurred under GST Law.
- The parties enter the Agreement intending to be completely independent of each other, and not as a party to a joint venture, partnership or agency agreement.
The parties agree to do everything required to give full effect to the Agreement.
The Agreement and any other document incorporated by reference constitute the entire legal agreement. The parties agree that they have not relied on any representation or statements outside the terms of the Agreement.
The Agreement may be executed or entered into electronically.
The documents constituting the Agreement may be executed in multiple counterparts. The counterparts will be read as one legal document.
No right or obligation under the Agreement will be waived unless the waiver is explicitly waived in writing.
Any unenforceable or invalid term of the Agreement will only be severed to the extent of the unenforceability or invalidity without affecting any other term in the Agreement.
Binding on successors
The Agreement is binding on each party’s successors and permitted assignees.
The parties will cover their own expenses in preparing the Agreement documents.
Unless the terms and conditions of the Agreement explicitly state otherwise, the Agreement will be interpreted as follows:
- a reference to a party includes that party’s permitted assigns, administrators, successors, executors, legal representatives and any novated party;
- any reference to a trustee includes any substituted or additional trustee;
- unless used for the usual grammatical purpose, inverted commas around a term indicate industry jargon that will be interpreted according to how that term would be understood by an individual with expertise in the relevant industry;
- “including”, “includes” or any derivation of those words does not limit the matter in question to the things specifically mentioned in the applicable context;
- where a term is defined, other grammatical forms of that term will be taken to have the same meaning;
- headings are for convenience and will not affect interpretation;
- words in the singular will be taken to include the plural and also the opposite;
- “$” means the Australian dollar;
- a reference to a document will be to that document as updated, varied or amended;
- a document referenced by the Agreement will not take precedence over the referencing document;
- when any kind of legislative instrument is referenced, the reference will be taken to be that instrument as updated or substituted for by the legislative body in any way;
- where a ‚ÄúURL‚Äù is mentioned, the non-operation of the ‚ÄúURL‚Äù will not render the rights and obligations associated with it invalid;
- any referenced digital resource may be replaced with another digital resource that is a ‚Äúcopy‚Äù of the original resource;
Rights and Obligations
- a reference to a party’s conduct includes omissions as well as acts;
- if a party is described as having discretion in a matter, the discretion in that matter will be interpreted as sole and absolute; and
- where a party is required to do “anything necessary”, this includes executing agreements and other legal instruments.
Account, Accounts means a digital account used by User for the purpose of the Services.
Agreement means the agreement arising between the parties in accordance with this document and the other documents referred to by this document.
Communication, Communications means any contractual communication in connection with the Agreement.
Compulsory Condition means any term or condition that by law cannot be limited or excluded.
Consequential Loss means any kind of consequential or indirect loss like loss of profits, pure economic loss or loss of opportunity.
Content means any information, content or data including text, images, video or audio and any works or subject matter other than works protected by copyright under the Copyright Act 1968 (Cth).
Cost, Costs means any costs, expenses, losses, damages, claims, demands, proceedings, and other liability.
Example Cost, Example Costs means any liabilities arising from the risks described below.
Consulting risks, including:
- reliance on advice or opinions communicated by Provider in whatever form;
- faulty technical advice or data; and
- failure to provide correct information or opinions.
Risks to people or property, including:
- any death or injury; and
- any property damage.
Risks relating to the Agreement, including:
- any act or omission connected with the Agreement;
- breaches of the Agreement;
- the termination of the Agreement; and
- any delay in the provision of the Services.
Digital risks, including
- failure of any software, hardware or network components provided by a third party;
- software or hardware that’s inaccessible for any reason;
- faulty or lost data associated with the Services;
- digital security issues like software vulnerabilities and malware; and
- software in a testing phase like (or analogous to) beta and alpha software.
Feedback means any comments or suggestions on the Service by User resulting from use of the Services by User.
GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Indemnity, Indemnities means any indemnity created via the operation of the terms and conditions of this document.
Intellectual Property Rights means, with the exception of Moral Rights and other inalienable rights, all right, title and interest, in each of the following in Australia and throughout the world, whether registered, unregistered or pending registration, and whether conferred by statute, common law, equity or otherwise:
- trade marks;
- trade names, brand names or indications of source, appellation or origin;
- inventions including patents, utility patents, patent applications, utility patent applications, and utility models;
- circuit layout designs;
- registered or unregistered designs;
- rights in databases;
- topography rights;
- design rights;
- plant variety and plant breeder rights;
- domain name registrations;
- confidential information, trade secrets, and know how;
- any other intellectual property as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation of July 1967;
- any application for the registration of any of the above, and any rights to make such an application; and
- any right to take action to enforce any of the above rights.
Moral Rights means the rights commonly referred to as moral rights‚ such as the right of attribution, which are recognised in the jurisdiction of the Agreement.
Non Excludable Law, Non Excludable Laws means any condition, warranty or guarantee that the law does not permit to be excluded (such as the consumer guarantees under the Competition and Consumer Act 2010 (Cth)).
Personal Information means any information that is categorised as “personal information” under privacy law.
Posted Content means any content or information posted by User that is available to third parties.
Product, Products means the products supplied by Provider via the Service, including a wide range of goods and services connected with romantic relationships.
Product IP means the intellectual property in the Services provided.
Proportionate Liability Laws means legislative provisions that apportion liability for Costs between parties in cases where more than one party caused the Cost, but which parties are permitted by law to contract out of, including the provisions in the following legislation:
- Civil Liability Act 2002 (NSW);
- Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA);
- Civil Liability Act 2002 (Tas);
- Wrongs Act 1958 (Vic);
- Civil Liability Act 2002 (WA);
- Civil Law (Wrongs) Act 2002 (ACT); and
- Proportionate Liability Act 2005 (NT).
Service, Services means the services provided by Provider to User, including:
- www.heroboyfriend.com, a website for information and tips related to romantic relationships; and
- Hero Boyfriend, a mobile application for information and tips related to romantic relationships.
Service Content means any information, content or data provided with or in association with the Services.