Terms and Conditions.

Welcome to Find the Vibe! We are Find the Vibe Pty Ltd (ABN 60 698 973 401) (‘Find the Vibe’, ‘we’, ‘our’ or ‘us’) and we provide a nightlife discovery web and mobile app that lets users see where people in their age bracket, occupation and gender are going out in Sydney and rate the “vibe” at venues (the App), as described on our website at www.findthevibeapp.com.au (Website).

These terms and conditions (Terms) govern your access to and use of the App and Website. You can always find the latest version of these Terms on our Website at https://findthevibeapp.com.au/terms.

1. Reading and accepting these terms

1. In these Terms, capitalised words and phrases have the meanings given to them where they are followed by bolded brackets, or as set out in the Definitions table at the end of these Terms.
2. By clicking any button or box that refers to these Terms (for example “Sign up” or “Create account”), or by using the App or Website, creating an account or otherwise accessing any part of the service, you agree to be bound by these Terms which form a binding contractual agreement between you (‘you’ or ‘your’) and us.
3. We may change these Terms at any time by notifying you, and your continued use of the App or Website following such an update will represent an agreement by you to be bound by the Terms as amended.

2. Eligibility

1. By accepting these Terms, you represent and warrant that:
   1. you have the legal capacity and authority to enter into a binding contract with us; and
   2. you are accessing and using the App for your own personal use (or, if you are representing a business or venue, that you are authorised to do so on its behalf).
2. The App is not intended for use by anyone under 18 years old or by anyone who has previously been suspended or banned from using the App. By using the App, you represent and warrant that you are at least 18 years old and legally allowed to enter licensed venues in your location.
3. Please do not access or use the App if you are under 18 years old or if you have previously been suspended or prohibited from using the App.
4. If you are signing up not as an individual but on behalf of your company, your employer, an organisation, government or other legal entity (Represented Entity), then “you” or “your” means the Represented Entity and you are binding the Represented Entity to this agreement. If you are accepting this agreement and using our App or Website on behalf of a Represented Entity, you represent and warrant that you are authorised to do so.

3. The app and website

3.1 Scope of the App

We make the App and Website available to you so you can see anonymised demographic information and “vibe” ratings at venues and add your own check-ins and ratings, in line with these Terms.

3.2 Accounts

1. (Accounts) To use the App or Website, you may be required to sign-up, register and receive an account through the Website (an Account).
2. (Provide Information) As part of creating and using an account, you may be asked to provide certain details such as your email address and password, chosen display name or alias, age bracket, occupation category and gender.
3. (Warranty) You warrant that any information you give to us in the course of completing the Account registration process is accurate, honest, correct and up-to-date.
4. (Acceptance) Once you complete the Account registration process, we may, in our absolute discretion, choose to accept you as a registered user within the Website and provide you with an Account.

3.3 Disclaimer

You acknowledge and agree that:

1. any information provided to you as part of or in connection with the App or Website or the Services is general in nature, may not be suitable for your circumstances and does not constitute financial, legal or any other kind of professional advice; and
2. it is your responsibility to comply with applicable laws relevant to your use of the App, including privacy laws.

3.4 App

1. While you comply with these Terms, we grant you a personal, non-exclusive, non-transferable licence to access and use the App and Website for your own personal, non-commercial use.
2. We may from time to time, in our absolute discretion, release enhancements to the App, meaning an upgraded, improved, modified or new versions of the App (Enhancements). Any Enhancements to the App will not limit or otherwise affect these Terms. Enhancements may cause downtime or delays from time to time, and credits will not be provided for such downtime.
3. We may change any features of the App or Website at any time on notice to you.

3.5 Support services

We will provide general support where reasonably necessary to resolve technical issues with the App (Support Services). Unless otherwise agreed in writing:

1. we will take reasonable steps to provide Support Services where necessary (you must first endeavour to resolve any issues with the App internally and we will not assist with issues that are beyond our reasonable control);
2. we will use our best endeavours to respond to requests for Support Services and you acknowledge that we may not be available 24/7 or respond within a particular time frame;
3. you are responsible for all internal administration and managing access, including storing back-up passwords; and
4. you will not have any claim for delay to your access to the App due to any failure or delay in Support Services.

4. Data hosting

We will store User Data you upload to the App using a third party hosting service selected by us (Hosting Services), subject to the following terms:

1. (hosting location) You acknowledge and agree that we may use storage servers to host the App through cloud-based services, and potentially other locations outside Australia.
2. (service quality) While we will use our best efforts to select an appropriate hosting provider, we do not guarantee that the Hosting Services will be free from errors or defects or that User Data will be accessible or available at all times.
3. (security) We will use our best efforts to ensure that User Data is stored securely. However, we do not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to User Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
4. (backups & disaster recovery) In the event that User Data is lost due to a system failure (e.g. a database or webserver crash), we cannot guarantee that any backup will be available, or if available that such a backup will be free from errors or defects.

5. Client obligations

You agree to:

1. provide us with all documentation, information and assistance reasonably required by us to perform the Services; and
2. provide us with access to any third party or other accounts used by you (including log-in details and passwords), as is reasonably required by us to perform the Services.

5.2 Client material

1. You warrant that all information, documentation and other material you provide to us for the purpose of receiving the App or Website is complete, accurate and up-to-date.
2. You release us from all liability in relation to any loss or damage arising out of or in connection with the App or Website, to the extent such loss or damage is caused or contributed to by information, documentation or any other material provided by you being incomplete, inaccurate or out-of-date.

5.3 Your obligations

1. You must comply with these Terms at all times when you use the App or Website. You are responsible for anything done through your account and agree that we will have no liability for any loss arising from your breach of these Terms.
2. You must not, without our prior written approval:
   1. upload sensitive information or commercial secrets using the App;
   2. upload any inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist material using the App;
   3. use the App in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity;
   4. upload any material that is owned or copyrighted by a third party;
   5. make copies of the Documentation or the App;
   6. adapt, modify or tamper in any way with the App;
   7. remove or alter any copyright, trade mark or other notice on or forming part of the App or Documentation;
   8. act in any way that may harm our reputation or that of associated or interested parties or do anything at all contrary to the interests of us or the App;
   9. use the App in a way which infringes the Intellectual Property Rights of any third party;
   10. create derivative works from or translate the App or Documentation;
   11. publish or otherwise communicate the App or Documentation to the public, including by making it available online or sharing it with third parties;
   12. integrate the App with third party data or App, or make additions or changes to the App, (including by incorporating APIs into the App) other than integrating in accordance with any Documentation or instructions provided by us in writing;
   13. intimidate, harass, impersonate, stalk, threaten, bully or endanger any other User or distribute unsolicited commercial content, junk mail, spam, bulk content or harassment in connection with the App;
   14. sell, loan, transfer, sub-licence, hire or otherwise dispose of the App or Documentation to any third party;
   15. decompile or reverse engineer the App or any part of it, or otherwise attempt to derive its source code;
   16. share your Account or Account information, including log in details or passwords, with any other person and that any use of your Account by any person who is not the account holder is strictly prohibited. You must immediately notify us of any unauthorised use of your Account, password or email, or any other breach or potential breach of the App or Website’s security;
   17. use the App or Website for any purpose other than for the purpose for which it was designed, including you must not use the App or Website in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity;
   18. make any automated use of the App or Website and you must not copy, reproduce, translate, adapt, vary or modify the App or Website without our express written consent; or
   19. attempt to circumvent any technological protection mechanism or other security feature of the App.
3. If you become aware of misuse of the App or Website by any person, any errors in the material on the App or Website or any difficulty in accessing or using the App or Website, please contact us immediately at hello@findthevibeapp.com.au.
4. You agree:
   1. to comply with each of your obligations in these Terms;
   2. to sign up for an Account in order to use the App or Website;
   3. that information given to you by us through the App, is general in nature and we take no responsibility for anything caused by any actions you take in reliance on that information; and
   4. that we may cancel your Account at any time if we consider, in our absolute discretion, that you are in breach of, or are likely to breach, this clause 5.

6. Posted material

6.1 Warranties

By providing or posting any information, material or other content in connection with the App (Posted Material), including venue check-ins, vibe ratings, reviews and any venue details you submit, you represent and warrant that:

1. you are authorised to provide the Posted Material (including by being authorised to provide any services that you represent you provide);
2. the Posted Material is accurate and true at the time it is provided;
3. any Posted Material which is in the form of a review or feedback is honest, accurate and presents a fair view of the relevant person and/or your experience;
4. the Posted Material is free from any harmful, discriminatory, defamatory or maliciously false implications and does not contain any offensive or explicit material;
5. the Posted Material is free from any material that may harm our reputation or that of associated or interested parties;
6. the Posted Material is not “passing off” of any product or service and does not constitute unfair competition;
7. the Posted Material does not infringe any Intellectual Property Rights, including copyright, trademarks, business names, patents, Confidential Information or any other similar proprietary rights, whether registered or unregistered, anywhere in the world;
8. the Posted Material does not contain any viruses or other harmful code, or otherwise compromise the security or integrity of the App or Website or any network or system; and
9. the Posted Material does not breach or infringe any applicable laws.

6.2 Licence

1. You grant to us a perpetual, irrevocable, transferable, worldwide and royalty-free licence (including the right to sublicense) to use, copy, modify, reproduce and adapt any Intellectual Property Rights in any Posted Material, including to display your ratings and comments in the App and to create anonymised crowd insights and trends, in order for us to use, exploit or otherwise enjoy the benefit of such Posted Material.
2. If it is determined that you retain moral rights (including rights of attribution or integrity) in any Posted Material, you release us from any and all claims that you could assert against us by virtue of any such moral rights.
3. You indemnify us against all damages, losses, costs and expenses incurred by us arising in connection with any third party claim that Posted Material infringes any third party’s Intellectual Property Rights.

6.3 Removal

1. The App acts as a passive conduit for the online distribution of Posted Material and has no obligation to screen Posted Material. However, we may, in our absolute discretion, review and remove any Posted Material from the App or Website at any time without giving any explanation or justification for removing the Posted Material, including if we determine that the Posted Material infringes a third party’s Intellectual Property Rights, or is reasonably likely to.
2. You agree that you are responsible for keeping and maintaining records of Posted Material.

6.4 Infringing content on the App

1. If you become aware of Posted Material, or other Material, on the App that infringes the Intellectual Property Rights of any person, or is reasonably likely to, please contact us at hello@findthevibeapp.com.au.
2. If you submit a complaint under clause 6.4(a):
   1. you warrant that the substance of the complaint is accurate, true and involves infringement of copyright;
   2. you acknowledge and agree that groundless threats of legal proceedings in relation to copyright infringement may be prohibited under applicable law (for example, Australia’s Copyright Act 1968, or equivalent laws wherever you are located); and
   3. you agree to indemnify Find the Vibe in relation to any loss or damage that may arise in relation to your complaint, including in relation to any third party claim that the complaint contains a groundless threat.

7. Intellectual property and data

7.1 App content intellectual property

1. (Our ownership) We retain ownership of all Materials provided to you in connection with the App of Website (including text, graphics, logos, design, icons, images, sound and video recordings, pricing, downloads and App) (App Content) and reserve all rights in any Intellectual Property Rights owned or licensed by us in the App Content not expressly granted to you.
2. (Licence to you) We grant you a personal, non-exclusive, non-transferable licence to view and use the App Content for your own personal, non-commercial use in connection with the App and Website. You may make a temporary electronic copy of App Content for that purpose only. You must not otherwise reproduce, transmit, adapt, distribute, sell, modify or publish those materials or any App Content without prior written consent from us or as otherwise permitted by law.

7.2 User data

Our Rights and Obligations

1. You grant to us a non-exclusive, royalty-free, worldwide licence to use User Data to operate, maintain and improve the App and Website, including to generate anonymised statistics, trends and insights about venue attendance and demographics. We may use anonymised and aggregated User Data to create insights for venues, brands or other third parties, but we will not sell or share personal information that identifies individual users.
2. We reserve the right to remove any User Data at any time, for any reason, including where we deem User Data to be inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist.

Your Obligations and Grant of Licence to Us

3. You are responsible for ensuring that:
   1. you share User Data only with intended recipients; and
   2. all User Data is appropriate and not in contravention of these Terms.
4. You:
   1. warrant that our use of User Data will not infringe any third-party Intellectual Property Rights; and
   2. indemnify us from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.

8. Third party app & terms

8.1 Third party terms

1. We use third party providers to help us run the App and Website (for example, hosting, authentication, analytics and push notification services). Those providers may have their own terms that apply between you and them (Third Party Terms).
2. Where we link to or embed any third party service in the App or Website, you agree to comply with any Third Party Terms that apply to that service. We are not liable for any loss or damage you suffer in connection with any third party service.

9. Confidentiality

1. Except as contemplated by these Terms, a party must not, and must not permit any of its Personnel, use or disclose to any person any Confidential Information disclosed to it by the other party without the disclosing party’s prior written consent.
2. Each party must promptly notify the other party if it learns of any potential, actual or suspected loss, misappropriation or unauthorised access to, or disclosure or use of Confidential Information or other compromise of the security, confidentiality, or integrity of Confidential Information.
3. The notifying party will investigate each potential, actual or suspected breach of confidentiality and assist the other party in connection with any related investigation.

10. Privacy

1. We collect personal information about you in the course of providing you with the App or Website, to contact and communicate with you, to respond to your enquiries and for other purposes set out in our Privacy Policy which can be found at https://findthevibeapp.com.au/privacy.
2. Our Privacy Policy contains more information about how we use, disclose and store your personal information and details how you can access and correct your personal information.
3. By agreeing to these Terms, you agree to our handling of personal information in accordance with our Privacy Policy.

11. Liability

11.1 Warranties and limitations

1. (Warranties) We warrant that:
   1. the App will operate in a manner substantially consistent with these Terms; and
   2. the App and Website will be provided with reasonable care and skill; and
   3. to our knowledge, the use of the App in accordance with these Terms will not infringe the Intellectual Property Rights of any third party.
2. (Errors) We will use reasonable efforts to correct any errors, bugs or defects in the App which arise during your use and which are notified to us by you, unless they result from misuse of the App, use with incompatible software or hardware, or use contrary to these Terms.
3. (Service Limitations) While we will use our best endeavours to ensure the App or Website is working for its intended purpose, you acknowledge and agree that from time to time, you may encounter the following issues:
   1. the App or Website may have errors or defects;
   2. the App or Website may not be accessible at times;
   3. messages sent through the App or Website may not be delivered promptly, or delivered at all;
   4. information you receive or supply through the App or Website may not be secure or confidential; or
   5. any information provided through the App or Website may not be accurate or true.
4. (Exclusion) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in these Terms are excluded.
5. (Consumer law) Nothing in these Terms is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, you may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.

11.2 Liability

To the maximum extent permitted by law, we are not liable for any loss or damage you suffer in connection with your use of the App or Website, except to the extent caused by our breach of these Terms or our failure to comply with any consumer guarantees that cannot be excluded under the Australian Consumer Law.

11.3 Consequential loss

To the maximum extent permitted by law, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with these Terms or any goods or services provided by us, except:

1. in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or
2. to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).

12. Suspension and termination

12.1 Termination for breach

1. We may suspend or terminate your access to the App and your account immediately by written notice (including by email or in-app notice) if there has been a Breach of these Terms.
2. A “Breach” of these Terms means:
   1. we consider that you have breached these Terms and notify you of the issue (where it is reasonable for us to do so);
   2. you are given 10 Business Days to fix the breach (if it is something that can be fixed); and
   3. you do not fix the breach within that time or within another period we agree in writing.

12.2 Effect of termination

1. If your access to the App is suspended or terminated, you will no longer be able to access your account or your User Data through the App, and we will have no obligation to store or retain any User Data beyond what we are required to keep by law. You release us from any loss or damage you may suffer as a result of us not retaining your User Data after that point.
2. Any parts of these Terms that by their nature should continue to apply after termination (for example, clauses about intellectual property, confidentiality, privacy, disclaimers and limits on our liability) will keep applying even after your access to the App ends.

13. Dispute resolution

1. A party claiming that a dispute has arisen under or in connection with this agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.
2. A party that requires resolution of a dispute which arises under or in connection with this agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.
3. Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.

14. Force majeure

1. We will not be liable for any delay or failure to perform its obligations under this agreement if such delay or failure arises out of a Force Majeure Event.
2. If a Force Majeure Event occurs, we must use reasonable endeavours to notify you of:
   1. reasonable details of the Force Majeure Event; and
   2. so far as is known, the probable extent to which We will be unable to perform or be delayed in performing its obligations under this agreement.
3. Subject to compliance with clause 14.1(b), our relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.
4. For the purposes of this agreement, a ‘Force Majeure Event’ means any:
   1. act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
   2. strikes or other industrial action outside of the control of us;
   3. war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
   4. any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of us, to the extent it affects our ability to perform our obligations.

15. Notices

1. A notice or other communication to a party under these Terms must be:
   1. in writing and in English; and
   2. delivered via email to the other party, to the email address specified in the Order, or if no email address is specified in the Order, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
2. Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
   1. 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this agreement, in which case the notice will be taken to be given on the next occurring business day in that state or territory; or
   2. when replied to by the other party,
   whichever is earlier.

16. General

16.1 Governing law and jurisdiction

This agreement is governed by the law applying in New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

16.2 Waiver

No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

16.3 Severance

Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.

16.4 Joint and several liability

An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

16.5 Assignment

A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.

16.6 Entire agreement

This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.

16.7 Interpretation

1. (singular and plural) words in the singular includes the plural (and vice versa);
2. (currency) a reference to $; or “dollar” is to Australian currency;
3. (gender) words indicating a gender includes the corresponding words of any other gender;
4. (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
5. (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
6. (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
7. (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
8. (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
9. (headings) headings and words in bold type are for convenience only and do not affect interpretation;
10. (includes) the word “includes” and similar words in any form is not a word of limitation; and
11. (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.

Definitions

App

has the meaning given in the first paragraph of these Terms.

App Content

has the meaning set out in clause 7.1(a).

Confidential Information

means information of or provided by a party that by its nature is confidential information, is designated by that party as confidential, or that the other party knows or ought to know is confidential, but does not include information, which is or becomes, without a breach of confidentiality, public knowledge.

Documentation

means all manuals, help files and other documents supplied by us to you relating to the App, whether in electronic or hardcopy form.

Hosting Services

has the meaning given in clause 4.

Intellectual Property Rights

means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this agreement.

Material

means tangible and intangible information, documents, reports, App (including source and object code), inventions, data and other materials in any media whatsoever.

Personnel

means, in respect of a party, its officers, employees, contractors (including subcontractors) and agents.

Software

means the Find the Vibe web and mobile application described in these Terms (also referred to as the App).

Support Services

has the meaning given in clause 3.5.

User

means an end-user of the App or Website.

User Data

means any files, data, document, information or any other materials, which is uploaded to the App by you, or otherwise provide to us under or in connection with these Terms, including any Intellectual Property Rights attaching to those materials.

Website

means the website, and any other website operated by us in connection with the App or Website.