TERMS AND CONDITIONS

Last Updated: 31/10/2022

WHO WE ARE

  • Hooga Holdings Pty Ltd (ABN 34 621 883 547) of 710 Collins St, Docklands 3008 referred to as Hooga, we, our or us) owns and operates the Hooga App (Hooga App].

  • The Hooga App provides users with the ability to join people together and ensure that memories are made and kept in one place to enjoy.

TERMS OF USE

These terms and conditions of use (Terms) govern your:

  • access and use of the Hooga App, including using the services and functionality made available through the Hooga App.

  • view and interact with any content, information, communications, text or other material provided by Hooga (Hooga Content) or any User Content (defined under clause 10); and

  • upload User Contributions to the Hooga App and communicate with Hooga.

ACCEPTANCE

By downloading, accessing and/or using the Hooga App owned and operated by us, you confirm that you accept these Terms, which includes our Privacy Policy, and that you agree to comply with these Terms. If you do not agree to these Terms, you must not download and use the Hooga App.

CHANGES TO THESE TERMS

  • Hooga may review and update these Terms from time to time, including to take into account of new laws, regulations, products or technology.

  • Your use of the Hooga App, including any updates or upgrades provided by Hooga that replace or supplement the original Hooga App will be governed by the most recent Terms notified to you via email and also posted on our website available at: https://www.hooga.com.au (Website).

  • By continuing to use the Hooga App, you agree to be bound by the most recent Terms. Continued access and/or use of the Hooga App will constitute deemed acceptance by you of any amendment to these Terms. It is your responsibility to check the Website regularly for updated versions of the Terms.

USE OF HOOGA APP BY MINORS

To download, use and access the Hooga App you must be 13 years of age or older. Individuals under the age of 18, may only view content displayed on the Hooga App with the consent of a parent or legal guardian and under, such parent or guardian's account and subject always to these Terms.

HOOGA APP AVAILABILITY

  • We will not be liable if the Hooga App is unavailable to you due to computer downtime attributable to malfunctions, upgrades, preventative or remedial maintenance activities, interruption in telecommunications supply or otherwise.

  • While we take reasonable precautions to protect information transmitted via the Hooga App, Hooga cannot and does not guarantee the security or confidentiality of these communications or the security of the Hooga App. Such communications rely on third party service providers, and electronic communication (including electronic mail) is vulnerable to interception by third parties.

  • Hooga does not provide, and has no control over, communications, networks or services, the internet or other technology required or used across the Hooga App and accepts no responsibility for any direct or indirect loss in any form associated with them, whether due to congestion, technical malfunction, viruses or otherwise.

HOOGA APP SUSPENSION OR WITHDRAWAL

We may suspend, withdraw or restrict the availability of all or any part of the Hooga App for business and operational reasons. We will try to give you reasonable notice of any suspension of withdrawal.

HOOGA CONTENT

  • We do not guarantee that the Hooga App, or any content on it, will always be available, uninterrupted or be error-free.

  • Subject to clause 15(c), the Hooga App is provided on an "as is" and "as available" basis and we make no representations or warranties (express or implied) regarding the operation or availability of the Hooga App or that the content obtained from or through the Hooga App is accurate, complete or up-to-date.

  • While we endeavour to take reasonable care in preparing and maintaining the Hooga Content on the Hooga App, we do not warrant the accuracy, reliability, adequacy or completeness of any of the Hooga Content. You acknowledge that the Hooga Content may have technical inaccuracies and typographical errors.

  • We shall have the right (but not the obligation) in our sole discretion to refuse, delete or move any Hooga Content that is available via the Website, for violating the letter or spirit of the Terms or for any other reason.

USE OF HOOGA CONTENT ON THE HOOGA APP

  • Unless otherwise indicated, all intellectual property rights, including copyright, in the Hooga App and Hooga Content are owned or licensed by Hooga. Those works are protected by copyright laws and treaties around the world. All such rights are reserved.

  • You must not copy, modify or transmit any part of the Hooga App or Hooga Content without our written consent or permission as stated on the Website.

  • Subject to clause 31, we grant you a limited, revocable, nonexclusive, non-transferrable and royalty free license to use and access the Hooga App for your own personal use. This licence does not include any collection, aggregation, copying, duplication, display or derivative use of the Hooga App, nor any use of data mining, robots, spiders, or similar data gathering and extraction tools for any purpose unless expressly permitted by us.

  • The Hooga App contains trade marks, logos and trade names of Hooga or third parties, which may be registered or otherwise protected by law. You are not permitted to use any trade marks, logos or trade names appearing on the Hooga App.

  • You must not delete or alter any copyright, trade mark or other proprietary rights notices from copies of materials on, or downloaded from, the Hooga App.

USER CONTENT

  • Content standards apply to any and all contributions uploaded to the Hooga App by you (User Contributions). User Contributions must comply with all applicable federal, state, local and international laws and regulations.

  • When you use the Hooga App, you may upload User Contributions comprising your pictures, photographs, graphics, information, comments, content, text and/or other material that you have taken, created or produced to the Hooga App.

  • You agree to be solely responsible for any User Contributions you upload to the [Hooga App].

  • You retain all intellectual property rights in the User Contributions you upload to the Hooga App. By uploading User Contributions, you grant us a perpetual, non-exclusive, irrevocable, transferable, royalty free and worldwide licence (including the right to sub-license) to use, adapt, copy, communicate, reproduce, modify, display, exploit, publish, re-distribute, broadcast, transmit, create derivative works from and incorporate in other works, the User Contributions, at any time in the future in any form and for any purpose, including commercial purposes.

  • You acknowledge and agree that:

    • we have no responsibility or liability for the deletion or failure to store any User Contributions you upload or any other user on the Hooga App;

    • we are not responsible for any User Contributions uploaded to the Hooga App by you or any user nor under any obligation to monitor, move, remove, block, modify, edit, refuse to upload or disable access to it; and

    • other Hooga App users may edit or modify User Contributions uploaded by you to the Hooga App.

  • You represent and warrant that:

    • you own the User Contributions or have the necessary licences, rights, consents and permissions to publish the User Contributions you upload to the Hooga App;

    • (ii) you have the right and power to grant the licence contained in this clause 10(d) to us;

  • You represent and warrant that your User Contributions will not:

    • contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful or inflammatory;

    • contain or promote sexual or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;

    • infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person;

    • violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms;

    • be likely to mislead or deceive any person;

    • promote any illegal activity, or advocate, promote or assist any unlawful act;

    • impersonate any person, or misrepresent your identity or affiliation with any person or organisation, including with us;

    • involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising;

    • give the impression that you emanate from or are endorsed by us or any other person or entity, if this is not the case;

    • upload User Contributions that will cause you to breach these Terms, in particular clause 11.

  • Whenever you make use of a feature that allows you to upload content to the [Hooga App], or to make contact with other users, you must comply with these content standards.

  • You understand that we do not guarantee any confidentiality with respect to any User Contributions you upload to the Hooga App.

  • You warrant that any such User Contribution complies with these standards, and you will be liable to us and indemnify us for any breach of that warranty. This means that you will be responsible for any loss or damage we suffer as a result of your breach of warranty. We may report any breach of your warranty to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use and access the Hooga App will cease immediately.

PERMITTED USES

  • You may use the Hooga App only for lawful purposes and in accordance with these Terms. You agree not to use the Hooga App:

    • in any way that violates any applicable federal, state, local or international law or regulation;

    • for the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise;

    • to send, knowingly receive, upload, download, use or re-use any material which does not comply with the content standards set out in these Terms;

    • to transmit, or procure the sending of, any advertising or promotional material (without our prior written consent), including any "junk mail", "chain letter" or "spam" or any other similar solicitation;

    • to impersonate or attempt to impersonate us, any of our employees, another user or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing); or

    • to engage in any other conduct that restricts or inhibits anyone's use or enjoyment the Hooga App, or which, as determined by us, may harm us or users of the Hooga App or expose them to liability.

  • Additionally, you agree not to:

    • Use the Hooga App in any manner that could disable, overburden, damage or impair the Hooga App or interfere with any other person's use of the Hooga App, including their ability to engage in real time activities through the Hooga App;

    • use any robot, spider or other automatic device, process or means to access the Hooga App for any purpose, including monitoring or copying any of the material on the Hooga App;

    • use any manual process to monitor or copy any of the material on the Hooga App or for any other unauthorised purpose without our prior written consent;

    • use any automatic or manual process to reverse engineer or decompile any part of the Hooga App;

    • introduce any viruses, trojans, worms, logic bombs, spyware, computer code, file, program or material which is malicious or technologically harmful;

    • attempt to gain unauthorised access to, interfere with, damage or disrupt any part of the Website, the server on which the Hooga App is stored, or any server, computer or database connected to the Hooga App;

    • attack the Hooga App via a denial-of-service attack or a distributed denial-of-service attack; or

    • otherwise attempt to interfere with the proper working of the Hooga App in any way.

  • We may report any of the activities above to the relevant law enforcement authorities and we will cooperate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use and access the Hooga App will cease immediately.

LINKS TO THIRD PARTY WEBSITES

  • Where the Hooga App contain links to other sites (including banner advertisements and sponsored links) and resources provided by third parties, these links are provided for your information only. Such links should not be interpreted as approval by us of those linked websites or information you may obtain from them.

  • LinkedIn, YouTube and other third party websites which are linked to the Hooga App, are not covered by these Terms, and may have their own terms and conditions and privacy policy. If you choose to access these third party linked sites, you do so at your own risk and subject to the terms and conditions of use for those websites. You must comply with any applicable third party terms of agreement when using the Hooga App. We encourage you to examine each third party's website terms and conditions and privacy policy.

  • We are not responsible for and will not be liable in respect of the content or operation of those websites or any of the goods, services or content that they describe. We are not responsible for and will not be liable in respect of the incorrect link to an external website.

DEVICES

You are responsible for keeping the device you use to access the Hooga App (Device) up-to-date with the standard unmodified Android or IOS operating software. We will not be liable to you for any misuse, interference, loss, unauthorised access, modification or disclosure of data stored on your Device, including personal information and sensitive information (as those terms are defined in the Privacy Act 1988 (Cth)), if your Device is hacked, compromised, stolen, lost or otherwise interfered with.

COMPLIANCE WITH TERMS

  • We may monitor your access and use of the Hooga App to determine whether these Terms are being followed.

  • If we reasonably believe that your use of the Hooga App may break the law or that you have not complied with these Terms, we may:

    • warn you by email (but we are not obliged to do so);

    • suspend your access to the Hooga App; and/or

    • notify and provide relevant information to the relevant government or regulatory authorities, as appears appropriate in the circumstances

  • In the event of taking action under clause 14(b) we reserve the right to delete any or all of your User Contributions stored on our system at our sole discretion.

  • We may, at our absolute discretion and without notice to you, suspend or terminate your access to the Hooga App:

    • where we reasonably believe that a court order, judgment, decree, determination or otherwise has been made to the effect that your User Contributions are illegal, offensive, objectionable or in breach of a third party's rights; or

    • if we are served with a takedown notice in accordance with the Copyright Regulations 2017 (Cth) (as amended or replaced from time to time).

  • You agree to release us in respect of any action reasonably taken by us in our enforcement of these Terms, and you indemnify us against any claim by a user arising out of the same.

LIMITATION OF LIABILITY

  • You agree not to hold us responsible for any third-party content accessible on or through the Hooga App.

  • Under no circumstances will we, our related entities, licensors and service providers or our or their respective officers, agents or employees, be liable to you, whether in contract, tort (including negligence) or otherwise, for any direct, special, indirect or consequential loss arising under or in connection with these Terms, or your use, or inability to use the Hooga App and any information, content and services obtained or access through the Hooga App, including (but not limited to) any loss of profits, loss of sales or business, loss of business opportunity, loss of or damage to goodwill or loss or corruption of software, data or information.

  • Nothing in these Terms (including this clause 15(c)) is intended to have the effect of excluding, restricting or modifying any liability to you which cannot be excluded, restricted or modified under applicable law. Where our liability cannot be excluded, we limit our liability to you to the fullest extent permitted by applicable law, including as provided under the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

  • Subject to clause 15(c), our maximum aggregate liability to you for any loss, damage or injury arising out of or in connection with the performance or non-performance of these Terms, including any breach by us of these Terms however arising, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the amount of AUD$100.

INDEMNITY

  • You agree to defend, indemnify and hold us, our related entities, licensors and service providers, and each of our and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns (each an Indemnified Party), harmless from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable lawyers' fees) incurred by any of the Indemnified Parties, arising out of or relating to your violation (or alleged violation) of these Terms, your use of the Hooga App, and your violation (or alleged violation) of any applicable law or regulation.

  • We reserve the right, at our own expense, to assume the exclusive defence and control of any matter subject to indemnification by you, but doing so will not excuse your indemnity obligations.

ACCOUNT REGISTRATION

[LR note to Hooga: please confirm the account registration process people will need to go through to be able to use the Hooga App. We have set out a standard registration, however please let us know if the Hooga App registration process will differ in any way to what is outlined above.]

  • You may download and access certain features and functionality of the Hooga App without creating a user account with us, including:

    • uploading your photographs to an event;

    • deleting your photographs uploaded to an event; and

  • In order to access all the features and functionality of the Hooga App as a registered member, you will have to register for an account by providing all of the information requested at registration (Account).

  • When creating an Account, you may be asked to provide your personal details including your mobile phone number and date of birth.

  • You warrant that all information and data provided by you in the registration of your Account is accurate, complete and up to date. You will promptly inform Hooga if there is any change to this information or data.

ACCOUNT SECURITY

  • You will be fully responsible for all acts and omissions of any person using your password and Account, as if they were your own acts and omissions.

  • You agree that you will not share, disclosure, or permit the disclosure of, your password, let anyone else access your Account or do anything that would risk the security of your Account.

  • You must notify us immediately if you become aware of any unauthorised access or use of your Account.

  • Hooga will not in any event be liable for any loss, damage, claims, costs or expenses arising out of the use or misuse of your password and Account, and you will indemnify Hooga against all loss, damage, claims, costs or demands in this regard.

  • You agree that you will not create more than one Account and if we disable or terminate your account for any reason, you will not create another one without our permission, whether through the use of your own personal details or those related to you or created by you.

  • We reserve the right to refuse registration of an Account, at our sole discretion.

  • You must not allow another person to use your Account or transfer your Account to someone else, without our prior written consent.

REGISTERED MEMBER

As a registered member you will be able to access certain features and functionality of the Hooga App that is not available to non-members. These features and functionality include:

  • editing or deleting any photographs you upload to a public or private event;

  • creating events as a host;

  • editing, deleting and moderating photographs posted to events you host;

  • using the "Tap & Chat" function, which enables you to communicate directly with another Hooga App registered member with their permission;

  • creating a "calling card" function which enables users to view the events attended or hosted;

  • customising your privacy and communication preferences with other Hooga App registered members; and

  • using there like and comment function in the event feed.

MARKETING

  • We may contact you from time to time to provide you with information, advertisements, marketing material, promotional material or other similar material that may be of interest to you in respect the Hooga App.

  • By accepting these Terms, you consent to us using your details to contact you in respect of such information, advertisements, marketing, promotional material or other similar material. If you do not wish to receive marketing, advertising, promotional material or other similar material from us, you may opt out by contacting us using the contact details set out in clause 29.

PRIVACY

  • Our Privacy Policy explains how we store and use, and how you may access and correct your personal information (as defined by the Privacy Act 1988 (Cth)), how you can lodge a complaint regarding the handling of your personal information and how we will handle any complaint.

  • By providing your personal information to us, you consent to the collection, use, storage and disclosure of that information as described in the Privacy Policy. This includes consent to the collection, use, storage and disclosure of sensitive information (as that term is defined in the Privacy Act 1988 (Cth)) you provide to us whether or not the sensitive information is directly requested by us.

  • You must not use, or cause the Hooga App to be used, in any manner or for any purpose prohibited by any applicable privacy laws.

  • You must not upload any personal information of another individual to the Hooga App unless you first make them aware of Hooga's Privacy Policy and have their consent to upload such personal information.

GOVERNING LAW

These Terms, their subject matter and their formation, are governed by Australian law, specifically the laws of the State of NSW. You and we both agree that the courts having jurisdiction in NSW will have exclusive jurisdiction over any dispute arising under or in any way related to these Terms and their subject matter.

RELATIONSHIP OF THE PARTIES

These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between you and Hooga. You may not assign your rights or obligations under these Terms, whether by operation of law or otherwise, without Hooga's prior written consent.

ENTIRE UNDERSTANDING

Except as expressly stated in these Terms, these Terms constitute the entire agreement between the parties, and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of these Terms.

SEVERABILITY

Any provision of these Terms which is invalid or unenforceable is to be read down, if possible, so as to be valid and enforceable, and, if that is not possible, the provision shall be severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions of these Terms.

INTERNATIONAL USE

We make no representation or warranty that any services, information or content accessible through the Hooga App is appropriate or available for use in locations outside Australia. If you choose to access the Hooga App from other locations, you do so at your own risk and are responsible for compliance with all applicable laws when doing so. You are not authorised to access the Hooga App from any location where doing so would be illegal.

You understand that some countries have import restrictions on certain goods or materials. If you are outside Australia, you will be responsible for checking whether such restrictions apply before uploading User Contributions. If you are outside Australia you will become the importer and will be liable to pay local taxes or duties, and you will assume all liability under any customs or import laws and regulations.

HOW TO CONTACT US

We welcome your questions, complaints or comments. Please contact us using any of the following methods:

  • email: hello@hooga.com.au;

  • telephone: 0409 033903; or

  • mail: 710 Collins St, Docklands VIC 3008

ACKNOWLEDGEMENT

You acknowledge and agree:

  • apps made available through the Apple App Store are licensed, and not sold, to you. Your license to use the Hooga App is subject to your acceptance of these Terms;

  • these Terms are concluded between you and Hooga, and not Apple, Inc (Apple), and applies to your use of the Hooga App. The Hooga App is owned and operated by Hooga. We reserve all rights in and to the Hooga App not expressly granted to you under these Terms; and

  • Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Hooga App.

SCOPE OF LICENCE

The license granted to you under this agreement is subject to your use of the Hooga App on Apple-branded products that you own or controlled and as permitted by Apple's Usage Rules set out in the Apple Media Services Terms and Conditions currently set out at: https://www.apple.com/au/legal/internet-services/itunes/au/terms.html.

WARRANTY

  • In the event of any failure of the Hooga App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price (if any) for the Hooga App to you.

  • To the maximum extent permitted by applicable law and subject to clause 32(a), Apple will have no other warranty obligation or responsibility for addressing any claims made by you or any third party relating to the [Hooga App] or your possession and/or use of the Hooga App whatsovever, including:

    • product liability claims;

    • any claim that the Hooga App fails to conform to any applicable legal or regulatory requirement; and

    • claims arising under consumer protection, privacy, or similar legislation.

  • Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any non-excludable warranty will be Hooga's sole responsibility.

INTELLECTUAL PROPERTY

You acknowledge and agree that in the event of any third party claim that the Hooga App or your possession and use of the Hooga App infringes a third party's intellectual property rights, Hooga, and not Apple, will be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim and shall remain entitled to claim any related costs from you permitted under this Agreement.

LEGAL COMPLIANCE

You represent and warrant that:

  • you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and

  • you are not listed on any U.S. Government list of prohibited or restricted parties.

THIRD PARTY BENEFICIARY

You acknowledge and agree that Apple, and Apple's subsidiaries, are the third party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.

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