End User License Agreement
1. Acceptance of Terms and Conditions of Use
This agreement sets out the terms upon which you and Indigemoji (ABN 21 133 019 339) (with its licensees and assigns “we”, “our” or “us”) agree you can use the Indigemoji App.
By installing and/or accessing the Indigemoji App you acknowledge and agree to be bound by the terms of this agreement and that you have the capacity to enter into this agreement (including, if required, you have obtained your parent or guardian’s express consent). This agreement also governs updates, upgrades and new and amended versions of the Indigemoji App, unless such versions are accompanied by new terms for use, which will govern those versions. We reserve the right to cease or modify operation of the Indigemoji App, or any part thereof, at any time without giving you prior notice or owing you any liability.
You acknowledge and agree that we may amend or update the terms of this agreement from time to time in our absolute discretion and that continued use by you of the Indigemoji App constitutes acceptance of these amendments and/or updates. We will provide notification to you via the Indigemoji App at such time that any amendments or updates are made.
You acknowledge and agree that use of the Indigemoji App is entirely at your own risk.
We grant to you the non-exclusive, limited, terminable, personal, non-transferable and un-sub-licensable right to use our Indigemoji App on the terms otherwise set out in this agreement. All rights not expressly granted to you under this agreement are reserved.
All the content available via the Indigemoji App including but not limited to the designs, text, graphics, logos, icons, buttons, the software, registered and unregistered trade marks and service marks (the “Intellectual Property") are owned by Indigemoji, or such other persons who have duly authorised inclusion in the Indigemoji App. You acknowledge and agree that the Intellectual Property is protected by copyrights, trade marks, service marks, patents, trade secrets or other proprietary rights and laws. You agree that you gain no proprietary rights to the Intellectual Property through your use of the Service. Except as expressly authorised by Indigemoji in writing, you shall not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from such content.
4. User Content
The Indigemoji App permits you to submit ideas to Indigemoji for the Indigemoji App. You hereby agree that if Indigemoji creates an Indigemoji emoji based on your submitted idea (“New Intellectual Property”), the New Intellectual Property will be owned by Indigemoji. You agree to do all things and sign all documents to give effect to Indigemoji’s ownership of the New Intellectual Property. You will not acquire a licence to the New Intellectual Property and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from the New Intellectual Property.
5. Use of Data
6. Exclusion of Liability
You acknowledge that third parties have licensed certain components of the Indigemoji App to us. Accordingly to the extent permitted by law, for example under the Australian Consumer Law, Schedule 2 of the Competition and Consumer Act 2010 (the “ACL”), we make no warranties in relation to the Indigemoji App; we do not make any warranties that the Indigemoji App will be error free; and we (including our agents, employees or contractors) will never be liable for any indirect, incidental, special, exemplary, or consequential damages whatsoever, whether arising in contract, tort (including negligence) or otherwise arising from the provision or use of the Indigemoji App.
Notwithstanding anything else in this agreement, if any of the exclusions or limitations set out above are declared illegal or void, then to the extent permitted by law, our liability for breach of a condition or warranty implied into this agreement by the ACL (or otherwise) is limited, at our discretion, to either supplying, replacing or repairing the Indigemoji App or supplying again the services, in respect of the breach.
Nothing in this agreement excludes, restricts or modifies any condition, warranty, right or remedy implied or imposed by statute or regulation if it cannot lawfully be excluded, restricted or modified.
The licence granted to you under this agreement runs until it is terminated. You can terminate it by not using the Indigemoji App and removing all login credential information from all devices in your possession, power or control and by deleting and uninstalling the Indigemoji App from all devices in your possession, power or control.
The licence will terminate immediately and automatically if you do not comply with the terms of this agreement. You acknowledge and agree that we may, in our absolute discretion and without notice or liability to you, terminate or suspend your use or access to the Indigemoji App if at any time, we believe in good faith that you have directly or indirectly breached this Agreement, you have behaved in a way which is illegal, fraudulent, harassing or abusive through your use of the Indigemoji App, you have behaved in a way which may be harmful to any other person, or you have otherwise behaved in a way which we reasonably determine to be inappropriate or unacceptable.
The termination of this agreement is without prejudice to the rights of either party accrued prior to such termination or to any provision of this agreement which by its terms is intended to survive the termination of this agreement. Upon termination of this agreement, you must immediately cease using the Indigemoji App.
You indemnify us and will hold us harmless for any and all claims, actions, proceedings and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses that we may suffer as a result of your failure to comply with this agreement or otherwise arising from your use of the Indigemoji App.
Our failure to enforce any part of this agreement shall not constitute a waiver of our right to later enforce that or any part of this agreement.
If part or all of any clause of this agreement is invalid, illegal or unenforceable then such clause will be severed from this agreement which will not affect the continued operation of the remaining provisions of this agreement and the parties agree (where necessary) to negotiate in good faith to replace the invalid, illegal or unenforceable clause.
This agreement is governed by the laws in force in the territory of the Northern Territory in Australia and the parties submit to the exclusive jurisdiction of the courts of that territory.
It is understood and acknowledged by you that we have the absolute right to obtain injunctive relief to protect our rights in connection with this Agreement and the Indigemoji App.
In this agreement except to the extent that the context otherwise requires; a reference to a document or agreement includes a reference to that document or agreement as changed, novated or replaced from time to time; a reference to a party includes a reference to that party’s successors and assigns; words and phrases defined in the Copyright Act 1968 (Cth) have the same meaning in this agreement unless the context manifestly requires otherwise.