TRIPLETHINK PTY LTD trading as AUUG Motion Synth ABN 42 149 718 383
TERMS OF SERVICE
A.1 These Terms of Service form an agreement (Agreement) between TRIPLETHINK PTY LTD trading as AUUG Motion Synth ABN 42 149 718 383 (AUUG), and the customer (Customer or You).
B KEY DEFINITIONS
B.1 In addition to those listed in clause 2.1 of the General Conditions, the following definitions apply in this document:
(a) Mobile Device means a mobile phone or other digital device capable of touch and physical gesture control as stated as a supported model on the Website from time to time.
(b) Order means a purchase of a Solution from the Website or via an authorised reseller.
(c) Solution means the App and Grip together or separately as implied by context.
(d) Website means www.auug.com.
D SAFETY AND OPERATION INSTRUCTIONS
D.1 In accepting these Terms you also confirm that you have read and understood our Safety and Operation Instructions. You can read our Safety and Operation Instructions at http://www.auug.com/safety.
D.2 AUUG accepts no responsibility for any loss, damage or injury caused by a Customer’s failure to abide by the Safety and Operation Instructions while using the Solution.
E.1 App Description
(a) The AUUG app (App) is a mobile application that allows a mobile device to be used as a gesture and touch controlled MIDI input device for third-party music applications, programs and synthesisers.
(b) The App is available:
i Mobile. The native mobile application “AUUG” available from Apple’s App Store and any other native or web-based mobile applications made available from time-to-time; and/or
ii Web. From the application accessed through the URL http://www.auug.com (or other domain as used by AUUG from time-to-time).
E.2 Hardware Description
(a) The Auug Grip (Grip) is a combined case and handle that allows the mobile device to be held securely while operating the App.
(a) The App and Grip together form the solution (Solution).
Your license to access the App shall be ongoing unless terminated by AUUG in accordance with these Terms.
E.5 Limitations on Use
AUUG may limit or restrict access to the Solution from time-to-time on any basis as it sees fit, including (but not limited to):
(a) Age & Capacity. Only persons over the age of 18 may register as a Customer and all Customers must be capable of forming binding legal contracts;
(b) Location. AUUG may restrict access to the Solution for any location;
(c) Certification. AUUG may limit access to the App where it cannot, in its absolute discretion, verify the user’s identity.
F REGISTRATION & VERFICIATION
(a) A user of the App must register as a Customer in order to use the App; and
(b) Until registration as a Customer is confirmed by AUUG you are not granted a license to use the App.
The Customer may be required to verify their identity by (without limitation) email, telephone, residential or business address, social media, and/or formal photographic identification. You agree to provide AUUG with all necessary verifications we require to provide you with access to the Services.
G TERMS OF SALE
You may purchase the Solution online from the Website or through an authorised reseller. All purchases are subject to these Terms:
G.1 Orders, Payment and Shipping via Website
(a) Orders can be placed using the online order and payment service on the Website and are subject to the following terms:
i To complete an Order a Customer must supply a valid shipping address that is within the territories to which AUUG ships its products.
ii A Customer will be charged shipping costs at the time of placing an order. These costs are not negotiable and non-refundable.
iii An order will not be completed until payment of the relevant fee or charge has been received from a valid credit card with sufficient funds.
(b) AUUG will not be responsible for the loss of a product that has been shipped. It is the Customers responsibility to arrange shipping insurance for any Order.
G.2 Authorised Resellers
(a) In addition to these Terms a Customer will also be bound by the terms of sale of any authorised reseller.
(b) The fees or charges of an authorised reseller may vary from those on the Website.
(a) Except in accordance with these Terms and to the extent permitted by law, AUUG excludes all liability and makes no warranties other than as required by Australian Consumer Law.
(b) AUUG warrants that the Solution is free of defects in materials and workmanship for a period one (1) year from the date the Order is placed (Warranty Period) through the Website or an authorized reseller.
(c) If a defect arises and a valid claim is received by AUUG within the Warranty Period, AUUG will at its option, either repair the Solution or exchange the Solution with an equivalent functioning Solution.
(d) AUUG warrants that repaired or replacement Grips are free of defects in materials and workmanship for the longer later date of either:
i ninety (90) days from the date the replacement or repaired Grip is shipped by AUUG to the Customer; or
ii the expiration of the Warranty Period.
(e) If the Grip is exchanged, the replacement Grip becomes your property and the exchanged Grip becomes the property of AUUG.
(f) The maximum value of a refund for a defective Solution will be the amount paid by the Customer when they placed the Order.
(g) If a refund is made, the Grip becomes the property of AUUG and the licence to use the App is revoked. The Customer must cease using the App.
(h) AUUG will reimburse the Customer for the cost of shipping a return only if:
i it is determined that the Solution was found to be faulty; and
ii the Customer supplies a valid receipt for shipping the Grip back to AUUG.
(i) AUUG will only reimburse the costs of shipping a return within the borders of Australia or the United States of America.
(a) The Customer may return the Solution to AUUG for a full refund within 30 days of completing the order. No reason is required to be given for a return under this clause.
(b) AUUG is not responsible for reimbursing the customer for shipping costs associated with this guarantee.
(c) AUUG is not be responsible for reimbursing any additional cost associated with shipping the Solution to or from a territory outside of the United States of America or Australia.
(d) If a refund is made, the Grip becomes the property of AUUG and the Customer’s licence to use the App is revoked. The Customer must cease using the App.
(e) The maximum value of a refund under this clause will be the amount paid by the Customer when they placed the Order less any extra costs associated with shipping to a territory outside the United States of America or Australia.
H.1 Either party may end this Agreement at any time by written notice in accordance with these Terms.
I.1 Governing Law. Victoria, Australia.
I.2 Reference City. Melbourne, Victoria.
2.1 The following definitions apply in this document:
(a) App means the product described in the Particulars.
(b) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in the Reference City of the Legal Location.
(c) Customer Content means content that is entered into or created within the App by the Customer.
(d) Fees & Charges means the fees and charges as set out in the Particulars.
(e) General Conditions means the terms and conditions set out in the section of this agreement entitled “General Conditions”.
(f) Intellectual Property means all rights (present and future) conferred by common law, equity or statute (and all moral rights) connected with business names, computer software, confidential information, copyright, designs, domain names, formulas, inventions, knowhow, patents, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.
(g) Particulars means this agreement’s details and variables set out in the section of this agreement entitled “Particulars”.
(h) Pricing means the pricing set out in this agreement or as notified to the Customer in writing by AUUG or an authorised reseller from time-to-time.
(j) Solution means the Solution described in the Particulars.
2.2 Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise:
(a) The singular includes the plural and the opposite also applies.
(a) If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
(b) A reference to a clause refers to clauses in this agreement.
(c) A reference to legislation is to that legislation as amended, reenacted or replaced, and includes any subordinate legislation issued under it.
(d) Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
(e) A reference to a party to this agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
(f) A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
(g) A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
(h) A reference to dollars or $ is to an amount in Australian currency.
3.1 This agreement applies to use of and access to the Solution.
3.2 Where the Customer does not accept the terms and conditions of this agreement, the Customer must immediately cease using the Solution.
3.3 The terms & conditions of this Agreement may be updated by AUUG in its absolute discretion from time-to-time, and unless stated otherwise by AUUG in writing, such updates shall come into effect for use of the App at the time the Customer is sent notice of the update(s).
4.1 By using the Solution, the Customer acknowledges and agrees to:
(a) These Terms of Service; and
(c) The Safety and Operation Instructions.
5.1 The App is only accessible to the Customer for the term set out in the Particulars.
5.2 The Customer agrees and accepts that the functional elements of the App may be:
(a) hosted by AUUG and shall only be installed, accessed and maintained by AUUG, accessed using the internet or other connection to AUUG servers and is not available ‘locally’ from the Customer’s systems; and
(b) managed and supported exclusively by AUUG from AUUG servers and that no ‘back-end’ access to the App is available to the Customer unless expressly agreed in writing.
5.3 AUUG reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter the App.
6.1 By accepting the terms and conditions of this agreement, the Customer is granted a limited, non-exclusive and revocable license to access the App for the duration of this agreement, in accordance with the terms and conditions of this agreement.
6.2 AUUG may issue the license to the Customer on the further terms or limitations set out in item the Particulars as it sees fit.
6.3 AUUG may revoke or suspend the Customer’s license(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this agreement by the Customer or any of it’s users. AUUG will ordinarily advise the Customer of any suspension or revocation however it is under no obligation to do so.
7.1 The Customer agrees that it shall only use the Solution for legal purposes and shall not use it to engage in any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by AUUG in its discretion.
8 AUTHORISED USERS
8.1 The Customer shall authorise users to access the Solution in its absolute discretion. AUUG accepts no liability for access to Customer Content by users authorised by the Customer or using login details of users authorised by the Customer.
8.2 The Customer is solely responsible for the security of access to the Solution. The Customer is liable for any breach by a user that it grants access to the Solution.
8.3 The Customer is responsible for ensuring that:
(a) users are authorised to use the Solution;
(b) users comply with this agreement in full.
9 CUSTOMER INFORMATION
9.1 AUUG accepts no liability for the content of Customer Content.
9.2 The Customer is responsible for the accuracy, quality and legality of Customer Content and the Customer’s acquisition of it, and the users that create, access and/or use Customer Content.
9.3 Despite clause 9.1 AUUG shall be authorised to permanently delete Customer Content where:
(a) The Customer deletes the App or no longer wishes to use it; or
(b) This Agreement is terminated.
10.1 The terms of payment set out in the Particulars shall apply.
10.2 Refunds are provided for in accordance with the Particulars or as required by law.
11.1 Security. AUUG takes the security of the App and the privacy of its users very seriously. The Customer agrees that the Customer shall not do anything to prejudice the security or privacy of AUUG’s systems or the information on them.
11.2 Transmission. AUUG shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards.
12.1 By accepting the terms of this agreement the Customer agrees that AUUG shall provide access to the solution to the best of its abilities, however it accepts no responsibility for ongoing access to the App.
13 INTELLECTUAL PROPERTY
(a) AUUG has moral & registered rights in its trademarks and the Customer shall not copy, alter, use or otherwise deal in the marks without the prior written consent of AUUG.
(b) Apple® App Store®, Google®, Google Play® and other trademarks are the Intellectual Property of their respective owners.
13.2 Proprietary Information. The App may use software and other proprietary systems and Intellectual Property for which AUUG has appropriate authority to use, and the Customer agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The Customer warrants that it shall not infringe on any third-party rights through the use of the App.
13.3 Solution. The Customer agrees and accept that the Solution is the Intellectual Property of AUUG and the Customer further warrants that by using the Solution the Customer will not:
(a) copy the Solution or the services that it provides for the Customer’s own commercial purposes; and
(b) directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms or design contained in the Solution or any documentation associated with it.
13.4 Content. All content remains the Intellectual Property, including (without limitation) any source code, usage data, ideas, enhancements, feature requests, suggestions or other information provided by the Customer or any other party with respect to the App.
14 LIABILITY & INDEMNITY
14.1 The Customer agrees that it uses the Solution at its own risk.
14.2 The Customer acknowledges that AUUG is not responsible for the conduct or activities of any user and that AUUG is not liable for such under any circumstances.
14.3 The Customer agrees to indemnify AUUG for any loss, damage, cost or expense that AUUG may suffer or incur as a result of or in connection with the Customer’s use of or conduct in connection with the Solution, including any breach by the Customer of these Terms.
14.4 In no circumstances will AUUG be liable for any direct, incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the Customer’s access to, or use of, or inability to use the Solution or any content, or in any way relating to an experience itself (or the provision or non-provision of an experience), whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not AUUG knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.
14.6 Expiry or termination of this agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this agreement up to the date of expiry or termination.
15.1 For any dispute between AUUG and the Customer, the following process shall apply:
(a) Negotiation. If there is a dispute between the parties relating to or arising out of this agreement, then within 5 Business Days of a party notifying the other party of a dispute, senior representatives from each party must meet (or if discuss directly via the telephone or internet) and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions;
(b) Mediation. If the dispute between the parties relating to or arising out of this agreement is not resolved within five Business Days of notification of the dispute under Clause 15.1, the parties must agree to submit the dispute to mediation, administered by lawyers engaged in alternative dispute resolution;
(c) Arbitration. If the dispute between the parties relating to or arising out of this agreement is not settled by mediation under Clause (b), either party may by written notice to the other refer the dispute to arbitration administered by the Institute of Arbitrators Australia. The arbitrator will be agreed between the parties from a panel suggested by the President of the Institute of Arbitrators Australia or failing agreement, an arbitrator will be appointed by the President of the Institute of Arbitrators Australia; and
(d) Court proceedings. A party may not commence court proceedings in relation to a dispute relating to or arising out of this agreement until it has exhausted the procedures in this clause (d) unless the party seeks appropriate injunctive or other interlocutory relief to preserve property or rights or to avoid losses that damages would otherwise be inadequate to compensate.
16.1 The Customer can direct notices, enquiries, complaints and so forth to AUUG as set out in this agreement. AUUG will notify the Customer of a change of details from time-to-time.
16.2 AUUG will send the Customer notices and other correspondence to the details that the Customer submits to AUUG, or that the Customer notifies AUUG of from time-to-time. It is the Customer’s responsibility to update its contact details as they change.
16.3 A consent, notice or communication under this agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
16.4 Notices must be sent to the parties’ contact details as specified in item A of the Particulars.
17.1 The Customer may only assign or otherwise create an interest in their rights under this document with the written consent of AUUG.
17.2 AUUG may assign or otherwise create and interest in their rights under this Agreement by giving the Customer written notice.
18.1 Formation. This Agreement is formed when the Customer acknowledges their consent to this Agreement, whether done electronically or physically.
18.2 Prevalence. Each party to this agreement agrees to the clauses in the Particulars, the Special Conditions (if any) and the General Conditions. The Particulars, Special Conditions and the General Conditions form a single legal agreement. To the extent that the Particulars or the Special Conditions are inconsistent with the General Conditions, the terms of the Particulars will prevail. To the extent that the Special Conditions are inconsistent with the Particulars, the Special Conditions will prevail.
18.3 Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this agreement.
18.4 Relationship. The relationship of the parties to this agreement does not form a joint venture or partnership.
18.5 Waiver. No clause of this agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
18.6 Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this agreement and the transaction facilitated by it.
18.7 Governing Law. This agreement is governed by the laws of the state set out in item H of the Particulars. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
18.8 Liability for Expenses. Each party must pay its own expenses incurred in negotiating, executing, stamping and registering this agreement.
18.9 Inconsistency. If this agreement is inconsistent with any other document or agreement between the parties, this document prevails to the extent of the inconsistency.
18.10 Counterparts. This agreement may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument.
18.11 Time. Time is of the essence in this agreement.
18.12 Severability. Any clause of this agreement, which is invalid or unenforceable is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this agreement.
END GENERAL CONDITIONS