Terms of service
1.1 The Watchful i App and the Services made available through the mobile application are owned by Watchful I Pty Ltd (ACN 668 735 564) (Watchful I, our, us or we).
1.2 By downloading, using, browsing or accessing the Watchful i App and the Services, you (as a Seeker or Protector) acknowledge that you have read, understood and accept these Watchful i App User Terms and Conditions (agreement), together with our Privacy Policy, and agree to abide by them. If you do not accept this agreement, you must not access and use the Watchful i App and the Services.
1.3 In this agreement, you and your means the individual or entity who accesses or uses the Watchful i App and the Services, and in the case of; (a) a Seeker means the individual who downloads the Watchful i App and uses the Services as a Seeker, including any Protectors or other individuals acting on the Seeker’s behalf or with their express or implied authority; and (b) a Protector means a nominated emergency contact invited by a Seeker to access and use the Watchful i App and the Services. You may be both a Seeker and Protector.
2. WATCHFUL I APP
2.1 The Watchful i App is a mobile application which assists you with your personal safety by tracking your location, recording your voice and other surrounding sounds and which allows you to alert nominated individuals and emergency services when your safety is at risk or in an emergency (collectively, the Services). Watchful I is not a neighbourhood watch organisation, emergency services or law enforcement body. Our role in providing you with access and use of the Watchful i App and the Services should be construed strictly in this context only.
2.2 By downloading, accessing and using the Watchful i App, we grant you for the Subscription Term and Trial Period a non-exclusive, non-transferable, personal, revocable and non-sublicensable licence for Seekers to:
(a) download, install, access and use the Watchful i App and the Services (and which includes the premium functions and features of the Watchful i App and Services provided the Seeker pays the Subscription Fee (except during the Trial Period)); and
(b) permit your Protectors to download, install, access and use the Watchful i App and Services (excluding premium functions and features of the Watchful i App and Services (unless the Protector is also a Seeker)).
2.3 You will not acquire or be entitled to any rights other than those rights expressly set out in this agreement.
3.1 This agreement will commence on the date you download and access the Watchful i App (Commencement Date) and shall continue until terminated in accordance with clause 16 (Subscription Term), unless you terminate the agreement during the Trial Period in accordance with clause 3.2.
3.2 If you do not wish to continue to access and use the Watchful i App and Services following the expiry of the Trial Period, you must terminate the agreement prior to the expiry of the Trial Period by selecting the ‘cancel subscription’ function in the ‘manage subscription' page of the Watchful i App. You will be redirected to the Apple Pay Subscription page on your mobile device and your subscription will only be terminated once you select ‘confirm’ on the Apple Pay Subscription page.
4. REGISTRATION AND ACCESS
4.1 To access and use the Watchful i App and the Services, you must create and setup an account on the Watchful i App (User Profile). Your User Profile will be operated by a username (User Name) and password (Password). You can change your User Name and/or Password at any time by accessing the User Access Portal.
4.2 To setup a User Profile on the Watchful i App, you will be required to provide, and keep us up-to-date with, accurate registration information and Personal Information (including full name, phone number and email address). All Personal Information as well as the information you provide to setup your User Profile is subject to our Privacy Policy.
4.3 You are responsible for:
(a) maintaining control over, and the confidentiality of, your User Profile, User Name and Password;
(b) keeping your User Profile registration information current, complete, accurate, and truthful. You must not impersonate another account holder or provide false identity information to gain access to or use the Watchful i App or the Services;
(c) notifying us in writing of any unauthorised access to, or use of, your User Profile, User Name or Password; and
(d) for all activities or transactions that occur using your User Profile (whether by you or any of your Protectors). We are not liable for any loss or damage arising out of, or in connection with, any unauthorised access or use of, your User Profile, User Name and Password by your Protectors or anyone else.
4.4 In the event that your User Profile, User Name and Password have been (or you believe may have been) compromised, you must immediately take steps to disable or reset your User Name and Password.
5. USE OF THE WATCHFUL I APP BY PROTECTORS
5.1 At any time during the Subscription Term and Trial Period, you (as a Seeker) can invite up to three Protectors to download, access and use the Watchful i App and Services. You may invite a Protector by granting us the right to access and use the ‘Contacts’ feature on your mobile device to send your Protector an invitation by SMS. The invitation will contain a hyperlink to the App Store to download the Watchful i App.
5.2 As a Protector, you agree that:
(a) your access to Seeker User Data is only to assist with the Seeker’s personal safety. You will comply with this agreement and only use the App for lawful purposes;
(b) you will keep your User Name and Password confidential. You are liable if your access is compromised;
(c) the Seeker controls your access and can revoke it anytime for any reason. Seekers are not liable for limiting your access; and
(d) you grant your Seeker the right to view your name, contact information and other details necessary for coordinating protection.
5.3 If you permit a Protector to access and use the Watchful i App and Services, you will ensure that each Protector:
(a) downloads the Watchful i App and provides us with basic registration information (including the Protector’s full name and mobile number). The Seeker will be notified if their invitation has been accepted by the Protector;
(b) complies with the terms and conditions of this agreement (to the extent that these terms and conditions apply to your Protector);
(c) only uses the Watchful i App for the purpose of assisting you with your personal safety (and not for any unlawful purpose);
(d) obtains and maintains all hardware, software and communications equipment necessary to download, access, and use, the Watchful i App and the Services;
(e) provides Watchful I with all necessary cooperation in relation to this agreement and all necessary access to such computer systems and data and as may be required by Watchful I from time to time, in order to provide the Services, including, but not limited to, User Data;
(f) complies with all Relevant Laws with respect to your obligations under this agreement;
(g) complies with all of our directions, policies and guidelines advised in writing to you or as displayed on the Watchful i App from time to time; and
(h) will not impersonate another user, Protector, or provide false identity information to gain access to the Watchful i App or use the Services.
5.4 You acknowledge that:
(a) you are responsible for all use of the Services by your Protector or any other person, whether or not authorised by you, who accesses the Watchful i App and Services (directly or indirectly) through use of the username and/or password of a Protector;
(b) Watchful I is not responsible or liable for any Loss due to misused, stolen or hacked usernames or passwords. A Protector can change their username or password at any time, through the User Access Portal; and
(c) you control the number of Protectors that can access and use the Watchful i App and the Services and you can revoke or change a Protector access at any time, and for any reason using the User Access Portal. If there is any dispute between you and a Protector regarding access to the Watchful i App or use of the Services, you have the right to decide what access the Protector shall have to the Watchful i App or Services, if any.
5.5 A Protector can invite a Seeker to download, access and use the Watchful i App or Services, provided the Seeker purchases a subscription (except during the Trial Period) in accordance with terms of this agreement.
6. SEEKER OBLIGATIONS
6.1 When accessing and using the Watchful i App and the Services, you must (at your own cost and at all times):
(a) obtain and maintain all hardware, software and communications equipment necessary to use, the Watchful i App and the Services;
(b) pay the Subscription Fees to access and use the Watchful i App and the Services (except during the Trial Period);
(c) provide Watchful I with all necessary cooperation and access in order to provide the Services;
(d) comply with all Relevant Laws;
(e) comply with all of our directions, policies and guidelines and
6.2 ensure use of the Services by your Protectors complies with this agreement. You acknowledge the Watchful i App has voice recording features. You are responsible for ensuring your use of the Watchful i App and Services complies with all Relevant Laws. To the extent permitted by law, you agree to indemnify and hold Watchful i harmless against any and all Claims that you have recorded the Seeker’s voice without consent or otherwise made an unlawful recording of the Seeker’s voice.
6.3 You must not use the Watchful I App or Services for any unlawful purpose or in any other way that breaches a Seeker’s rights or any third party’s rights.
6.4 Watchful I will not be liable to you or anyone else if, for any reason, the Watchful i App and the Services is unavailable at any time or for any period. From time to time, Watchful I may suspend or restrict access to all, or some parts of the Watchful i App and the Services.
6.5 You must not (or you must ensure your Protectors do not):
(a) introduce, access, store, distribute or transmit any viruses, worm, trojan or other malicious code into the Watchful I IP or any third party service provider’s Intellectual Property Rights;
(b) copy, modify, duplicate, create derivative works from, frame, mirror, republish, transmit or distribute all or any portion of the Watchful i App, or any other third party software that you may access or use through the Watchful i App, in any way;
(c) access all or any part of the Watchful i App and/or the Services in order to build a product, service or code which competes or reproduces the Watchful i App and/or the Services (in full or part);
(d) modify, alter, adapt, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Watchful i App in any way, or otherwise learn the source code or algorithms underlying the Watchful i App;
(e) license, sell, rent, lease, sub-let, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, encumber or otherwise make the Watchful i App and the Services available to any third party (excluding your Protectors);
(f) use the Watchful i App or the Services for any unlawful purpose or other purpose not authorised by Watchful I in writing; and
(g) make or publish any false, disparaging, malicious or defamatory statement or content (whether written or oral, including, without limitation, on social media) about the following (whether during or after the Subscription Term):
(i) Watchful I or any of our Affiliates (including Personnel of any of the foregoing); and
(ii) the Watchful i App and the Services.
7.1 When a Seeker creates a User Profile to access the Watchful i App and/or the Services, the Seeker will be required to provide User Data to Watchful I (including the contact details of your Protectors as stored on the Seeker’s mobile device) and Protectors will provide us with basic registration information. You will retain ownership of your User Data and you will have sole responsibility for the legality, reliability, integrity, accuracy and quality of your User Data. To the maximum extent permitted by Relevant Laws, we do not warrant that any User Data displayed on the Watchful i App by you (or any Content or Third Party Products or Services displayed or published on the Watchful i App by a third party service provider) is accurate, complete, reliable, current or error-free, nor do we make any warranty about the standard or quality of any Content, User Data or Third Party Products or Services displayed on, or via, the Watchful i App. You (and not Watchful I) are solely responsible for the completeness, accuracy, reliability, legality and quality of any User Data published by you and/or your Protectors on, or via, the Watchful i App. We do not endorse or approve, and are not responsible for, any User Data.
7.2 You grant Watchful I a worldwide, non-recoverable, non-exclusive, royalty-free and perpetual licence to use, disclose, share, reproduce, store, distribute, publish, export, adapt, edit, translate, produce derivative works from or copy, the User Data (and all Intellectual Property Rights contained therein) for any purpose, including for the purpose of:
(a) enabling Watchful I to provide the Watchful i App and the Services and otherwise perform its obligations and exercising its rights under this agreement;
(b) informing the user of other products or services that Watchful I may offer from time to time or in relation to Third Party Products and Services;
(c) complying with a legal requirement, such as a law, regulation, court order, subpoena, warrant, legal proceedings or in response to a law enforcement agency request;
(d) using usage patterns, trends, and other statistical or behavioural data derived from use of the Watchful i App and/or the Services for the purposes of providing, operating, maintaining, or improving the Services, the Watchful i App, or our other products and services; and
(e) sharing User Data with an Affiliate or other third party (with whom Watchful I may contract or be affiliated with from time to time) for the purposes of performing or improving the Watchful i App and/or the Services.
7.3 In the event of any Loss to User Data, your sole and exclusive remedy shall be for Watchful I to use reasonable endeavours to restore the User Data, that is lost or damaged, from the latest back-up of User Data maintained by Watchful I in accordance with our back-up and the archiving procedures.
7.4 Watchful I will not be responsible for any Loss, destruction, alteration, corruption or disclosure of User Data caused by your (or your Protectors’) acts or omissions or the acts or omission of any third party, or a Force Majeure Event.
8. SUBSCRIPTION FEES AND PAYMENT
8.1 We do not charge you a fee to access and use the basic functions or features of the Watchful i App and the Services. However, to access and use the premium functions and features of the Watchful i App and the Services (including, but not limited to geolocation tracking and sound recordings), you must (except for during the Trial Period) pay the Subscription Fees and other amounts owing to us under this agreement during the Subscription Term. Subscription Fees are payable in advance on monthly or annual basis (depending on your subscription) as specified on the Watchful i App or Website.
8.2 All Subscription Fees are in Australian Dollars and are exclusive of any goods and services taxes, which are payable in addition. To the maximum extent permitted by Relevant Laws and except as otherwise contemplated in this agreement, the Subscription Fees and all other amounts owing to Watchful I under this agreement are non-refundable.
8.3 When setting up your User Profile, you will be offered payment options to pay the Subscription Fees to access the advanced or premium features and functions of the Watchful i App and Services. Watchful I may, at our absolute discretion and without notice to you, change the payment methods that can be used to access and use the Watchful i App and Services at any time.
8.4 Payment of the Subscription Fees are made by means of a direct debit in accordance with the Direct Debit Authority in clause 9. By making payment of the Subscription Fees or any other amount owing to Watchful I under the agreement, you will provide Watchful I’s Third Party Payment Processors with accurate and complete billing information, and you authorise Watchful I and/or our Third Party Payment Processors to access your billing information (including Personal Information) for the purpose of processing your payment.
8.5 Watchful I may increase the Subscription Fee for the provision of the Watchful i App and the Services at any time on 30 days’ notice by SMS to you. The fee increases will come into effect in the next billing cycle. If you (as a Seeker) do not agree to these fee increases, you may at any time delete your User Profile or otherwise delete the Watchful i App. If you (as a Seeker) continue to use the Watchful i App and Services after the fee increase has come into effect, you are assumed to have agreed to the fee increase.
9. DIRECT DEBIT AUTHORITY
9.1 By accepting this agreement, you (as a Seeker) authorise us to arrange for the Subscription Fees or any other amount owing to Watchful I under this agreement to be debited from your credit card or bank account (as applicable) as and when such fees are due and payable under this agreement (Direct Debit Authority).
9.2 You may cancel or change your Direct Debit Authority by accessing the Apple Pay Subscription page on your mobile device and cancelling or amending your subscription before the day on which your next debit is due. If you cancel the Direct Debit Authority, Watchful I will not be able to provide you with access to, and use of, the premium functions and features of the Watchful i App and Services, unless you provide Watchful I with new Direct Debit Authority.
9.3 It is your responsibility to ensure that there are sufficient funds available on your credit card or bank account (as applicable) to allow each debit to be made in accordance with the Direct Debit Authority. If there are insufficient funds:
(a) the transaction will be rejected and the payment will be treated as if it were never made;
(b) your financial institution may charge you a fee and/or interest;
(c) Watchful I may charge you a dishonour fee at our prevailing rate at the time; and
(d) you must arrange for the debit to be made by another method or arrange for sufficient funds to be available by an agreed time so that Watchful I can process the debit.
9.4 It is your responsibility to check your credit card or bank account statement (as applicable) to verify that the amounts debited from your credit card or bank account are correct.
If you believe that an error has been made in debiting your credit card or bank account (as applicable), you should update your credit card or bank account details by accessing the Apple Pay Subscription page on your mobile device as soon as possible.
10. INTELLECTUAL PROPERTY
10.1 You acknowledge that Watchful I, or our licensors, are the owners of the Watchful i App (and any Intellectual Property Rights contained therein) including any information, Content or technology that may be provided to, or accessed by, you in connection with your use of the Watchful i App and the Services (including any modifications, enhancements of the foregoing) (collectively, Watchful I IP)). Accessing and using the Watchful i App and the Services does not give you (or anyone else) ownership of, or any right, title or interest in Watchful I IP.
10.2 Ownership of any User Data will vest in the creator of that User Data, but excluding Watchful I IP.
11. OUR OBLIGATIONS
11.1 Subject to your compliance with the terms of this agreement, during the Subscription Term and Trial Period, Watchful I shall use reasonable endeavours to provide you with access to and use of the Watchful i App and the Services.
11.2 The undertaking in clause 11.1 shall not apply in the event of:
(a) any non-conformance which is caused, or contributed, by use of the Services and the Watchful i App contrary to our instructions or the terms of this agreement;
(b) modification or alteration of the Services and the Watchful i App by any party other than Watchful I or our duly authorised Personnel;
(c) the unsuitability or malfunction of the computer hardware or computer software used by you in conjunction with which the Watchful i App and the Services are used;
(d) Force Majeure Events; and
(e) the unsuitability or malfunction of the Services when used in conjunction with any software, apps, applications and tools supplied by a third party provider.
11.3 In the event that Watchful I fails to provide you with access and use of the Watchful i App and the Services in accordance with clause 11.1, Watchful I shall use reasonable endeavours to correct any such non-conformance, or provide you with an alternative means of accomplishing the desired performance. The foregoing constitutes your sole and exclusive remedy for any breach of clause 11.1.
12. THIRD PARTY PRODUCTS AND SERVICES
12.1 You acknowledge that the Watchful i App and Services may require you to use or access Third Party Products and Services and that you do so solely at your own risk.
12.2 We make no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of any such Third Party Products and Services, or any transactions completed, and any contract entered into by you, with the owner, licensor or operator of such Third Party Products and Services.
12.3 Watchful I recommends that you refer to the third party’s terms and conditions and privacy policy prior to using the relevant Third Party Products and Services.
12.4 Watchful I does not endorse, sponsor or approve any Third Party Products and Services used in conjunction with the Watchful i App and Services. It is your sole responsibility to determine whether specific products or services, meet your business and are suitable for the purposes for which they are used.
12.5 Any rights you may have to access Third Party Products and Services shall be limited to:
(a) the extent of Watchful I’s ability to pass on such rights to you; or
(b) the relevant third party licensor terms.
13. NO WARRANTIES
13.1 Although the Watchful i App assists you with your personal safety, the Watchful i App and Services is not a self-defence or emergency services tool, and there is no guarantee that the use of the Watchful i App and Services will keep you safe or protect you from danger. The Watchful i App and Service may share your location and notify your Protectors or emergency services that you need assistance or help. However, the Watchful i App and Services is not substitute for taking the necessary steps to protect your own safety and security.
13.2 To the maximum extent permitted by Relevant Laws, Watchful I exclude all express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), in connection with the Watchful i App and the Services.
13.3 Nothing contained in this agreement excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Competition and Consumer Act 2010 (Cth) or any other international, national, State or Territory legislation where to do so is unlawful.
13.4 You acknowledge, and agree that to the maximum extent permitted by Relevant Laws, Watchful I make no representation, warranty or guarantee in relation to the availability, continuity, reliability, accuracy, currency, validity or security of the Watchful i App and the Services (or any Content, User Data and Third Party Products and Services generated or made available through the Watchful i App and Services) and Watchful I will not be liable if the Watchful i App or the Services becomes unavailable for any reason, including directly, or indirectly as a result of:
(a) telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
(b) negligent, malicious, willful acts or omissions of third parties (including third party service providers) or other users;
(c) maintenance or repairs carried out by Watchful I or any third party service provider in respect of any of the systems used in connection with the provision of the Services or the Watchful i App;
(d) services provided by third parties (including internet service providers) ceasing or becoming unavailable; or
(e) a Force Majeure Event.
13.5 You acknowledge that, to the maximum extent permitted by Relevant Laws, Watchful I do not make any warranty or representation that:
(a) your access to, and use of, the Watchful i App and the Services will be uninterrupted, virus-free or error-free; and/or
(b) the Watchful i App and the Services (or any Content, User Data and/or Third Party Products and Services), will be accurate, complete, reliable, current or is suitable for any particular purpose or use under any specific conditions, and so is provided on an “as is” basis.
13.6 You acknowledge that your access to, and use of, the Watchful i App and Services (including Content, Third Party Products and Services) may be interrupted or unavailable during scheduled or unscheduled maintenance.
14. LIMITATION OF LIABILITY
14.1 To the maximum extent permitted by Relevant Laws, Watchful I will not be liable to you, your Protectors or any third party for:
(a) any Claims or Losses (including Consequential Loss); or
(b) loss of, or damage to, any property or any personal injury, illness or death to you, any third person,
arising out of, relating or connected to, the provision or use of the Watchful i App and Services (including Content, User Data and/or Third Party Products and Services generated or made available through the Watchful i App or the Services) and this agreement, regardless of the cause of action on which they are based, even if advised of the possibility of such damage occurring.
14.2 All risk in using the Watchful i App and the Services passes to you upon creating a User Profile, or otherwise using the Watchful i App and the Services (whichever is earlier). Watchful I assume no responsibility and we have no liability to you, your Protectors or anyone else for any use of, or reliance on, any Content, User Data and/or Third Party Products and Services obtained or generated from your access to, and use of, the Watchful i App and the Services.
14.3 To the maximum extent permitted by Relevant Laws, under no circumstances will Watchful I’s aggregate liability to you, your Protectors or anyone else, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed the amount you paid to Watchful I under this agreement in the two months immediately preceding the date on which the Claim giving rise to such liability arose.
14.4 You agree to defend, indemnify and hold Watchful I, our Affiliates and our Personnel (collectively, the Indemnified) harmless from and against any and all Claims or Losses, that may be brought against the Indemnified or which the Indemnified may pay, sustain or incur as a direct or indirect result of or arising out of:
(a) your (and your Protectors) access to, and use of, or reliance on the Watchful i App or the Services (including the User Content and Third Party Products and Services);
(b) any breach of our or any third party’s Intellectual Property Rights or other rights caused by you or your Protectors; or
(c) any breach by you or your Protectors of this agreement.
15. PRIVACY
All Personal Information you provide to open a User Profile and/or provided by you in relation to your Protectors and any User Data you upload, generate, share, or publish on, or via, the Watchful i App, is subject to Watchful I’s Privacy Policy, which is incorporated into this agreement. Watchful I will not share, sell or disclose your User Data to any third party. You warrant that, in relation to any Personal Information comprising User Data or any other information disclosed to Watchful I on, or via, the Watchful i App:
(a) it has been collected in accordance with Privacy Laws;
(b) you have the authority to upload, post, publish or otherwise transmit such information on, or via, the Watchful i App; and
(c) you have obtained the informed consent of the individuals who are the subject of such Personal Information in order for Watchful I to use, disclose, store, transfer, process or handle it.
16.1 During the Subscription Term you may terminate this agreement at any time by cancelling your subscription to the Watchful i App and Services. To cancel your subscription, you must access the Apple Pay Subscription page on your mobile device and select the ‘Cancel Subscription' function. Your refund entitlements will be governed by the rules of the Apple Pay Subscription Service.
16.2 Watchful I may terminate the agreement any time (without liability to you except Watchful I may provide you with a pro rata refund of the Subscription Fees for the unused portion of the Subscription Term) by giving you 14 days’ written notice.
16.3 You agree that Watchful I may, at any time and at our sole discretion, with or without cause or any notice to you, terminate, suspend or block your (or your Protectors’) access to (either temporarily or permanently):
(a) your User Profile, the Protector Profile and/or the User Access Portal; and/or
(b) the Watchful i App and/or Services;
(c) any social media pages linked to its business or the Watchful i App; or
(d) any other products and services offered on, or via the Watchful i App (including Third Party Products and Services).
16.4 Cause for such suspension or termination under clause 16.3 may include, but are not limited to:
(a) any serious or repeated breaches or violations by you or your Protectors of this agreement, our policies and guidelines (including our Privacy Policy) and any other agreements entered into between the parties by you or your Protectors;
(b) serious or repeated breaches or violations of Watchful I’s or a third party service providers’ Intellectual Property Rights;
(c) your or your Protectors’ activities, conduct or transactions on, or, via, the Watchful i App, brings, or has the capacity to bring, Watchful I into disrepute; or
(d) requests by law enforcement or other government agencies.
16.5 If Watchful I the agreement in accordance with clauses 16.2 or 16.3, you acknowledge and agree that you are not entitled to pro rata refund of the Subscription Fees for the unused portion of the Subscription Term.
16.6 You agree that all such suspensions or terminations shall be made at Watchful I’s sole discretion and that Watchful I shall not be liable to you or any third party for any such suspension or termination.
17. EFFECT OF TERMINATION
17.1 On termination of this agreement for any reason:
(a) Watchful I will delete your User Profile (and all Protector Profiles connected to your User Profile) and your User Data will no longer be accessible by you through the Watchful i App. However, Watchful I will be required to retain Personal Information (including basic registration information) in accordance with documentation retention and destruction laws; and
(b) all licences to use the Services and rights of access to the Watchful i App granted under this agreement will immediately terminate.
18. FORCE MAJEURE
Watchful I will not be responsible to you or your Protectors (or anyone else) if we are prevented from or delayed in performing our obligations, by acts, events, omissions or accidents beyond our reasonable control, including but not limited to, acts of God, governmental actions, shipping, postal or other relevant transport strike, failure or accident, lockouts or other labour difficulty, war or national emergency, acts of terrorism, fire, explosion, flood, an act or omission of a third party, epidemic, pandemic, mandatory government shutdown or lockdown, shortage of or inability to obtain any necessary materials, equipment, facilities or services, the failure of performance provided by others, hacker attacks, denial of service attacks, internet interruption or virus, accidents or breakdown of plant, machinery, software, hardware or communication network, or default of hosting or data centre providers (Force Majeure Event).
19. DISPUTE RESOLUTION
19.1 Any party claiming a dispute exists under the agreement must notify the other party in writing of the nature of the dispute (Dispute Notice), except where urgent interlocutory relief is being sought.
19.2 The parties must in good faith attempt to resolve any dispute between them.
19.3 If the dispute cannot by resolved within 30 days of receipt of a Dispute Notice, either party may commence legal proceedings in relation to the dispute.
19.4 Each party must continue to perform its obligations under this agreement notwithstanding the existence of any unresolved dispute.
20. UPDATES AND VARIATIONS
20.1 Without notice to you, Watchful I may, at our absolute discretion, from time to time:
(a) change, add or delete the functions, features, performance, or other characteristics of the Watchful i App; or
(b) apply or install updates to, or new versions of, the Watchful i App.
20.2 You acknowledge that the Content on the Watchful i App is subject to change at any time and may be out of date at any given time. Watchful I are under no obligation to:
(a) update, correct or fix any Content or errors in the Watchful i App; and/or
(b) notify you of any changes to the Content or the Watchful i App unless required by a Relevant Law to do so.
20.3 Some of the provisions contained in this agreement may also be superseded by provisions or notices published elsewhere on the Watchful i App. Any changes are effective immediately upon posting to the Watchful i App. Your continued use of Watchful i App thereafter constitutes your acceptance of all such changes to the agreement.
20.4 Please read this agreement before using the Watchful i App as the agreement may have changed since the last time you accessed and used the Watchful i App. If you do not agree to any change, then you must immediately stop using the Watchful i App and the Services.
21. SUPPORT SERVICES
Subject to your compliance with this agreement, Watchful I shall, at out absolute discretion, provide you with standard support services for the Watchful i App during Normal Business Hours.
22. SEVERABILITY
If any provision in this agreement is found to be invalid or unenforceable by a court of law, such invalidity or unenforceability will not affect the remainder of this agreement which will continue in full force and effect.
23. RELATIONSHIP
No agency, principal-agent, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created between you and us by this agreement.
24. ASSIGNMENT
Neither party shall, without the prior written consent of the other party (which will not be unreasonably withheld), assign or transfer all or any of its rights or obligations under this agreement, except that Watchful I may assign, sell or transfer our rights or obligations under this agreement to an Affiliate or bona fide third party purchaser of Watchful I’s business.
25. ENTIRE AGREEMENT
This agreement, and any other documents referred to in it, represent the entire agreement between us and you in relation to the subject matter and supersedes any previous arrangements, agreements, representations, understandings or statements (whether verbal, in writing, or in some other format).
26. JURISDICTION AND APPLICABLE LAW
The laws of the State of New South Wales govern this agreement. You agree to submit to the exclusive jurisdiction of the Courts of New South Wales.
27. DEFINITIONS
In this agreement, the following words shall have the following meanings:
(a) Affiliate means in relation to any party, a person which, directly or indirectly, (i) is Controlled by that party; or (ii) Controls that party; or (iii) is Controlled by a person referred to in (ii) above, and for this purpose Control means the power of a person to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership agreement or other document regulating such person) that the affairs of another are conducted in accordance with its wishes.
(b) Business Days means each day excluding Saturdays, Sundays and public holidays in New South Wales.
(c) Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whether present or future, fixed or unascertained, actual or contingent, at law, in equity, under statute or otherwise.
(d) Commencement Date has the meaning in clause 3.
(e) Content means all the information, text, materials, graphics, logos, button icons, images, video and audio clips, trade marks (whether registered or not), layout, arrangement, graphical user interface, look and feel, databases, functionality and control features of the Watchful i App.
(f) Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties on the Commencement Date as a likely result of breach of the agreement:
(i) direct, indirect, consequential, incidental, special, remote or unforeseeable loss, damage, cost or expense;
(ii) loss of revenue, profit, income, bargain, opportunity (including marketing or advertising opportunity), use, production, customers, business, contract, goodwill, or anticipated savings, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, loss of or corruption to data, loss of use of data;
(iii) costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; or
(iv) loss or damage of the nature set out above in clauses (i) to (iii) (inclusive) that is incurred or suffered by or to a third party.
(g) Force Majeure Event has the meaning in clause 18.
(h) Intellectual Property Rights means designs, copyright, trade marks, patents, operations, software or systems, trade names and domain names, rights in goodwill, rights in confidential information or other intellectual property rights, whether under statute, common law, equity, and whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights and all similar rights which subsist or will subsist now or in future in any part of the world.
(i) Loss means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including all legal and other professional costs including Consequential Loss.
(j) Normal Business Hours means 9:00am to 5:00pm on Business Days.
(k) Password has the meaning given to it by clause 4.1.
(l) Personnel means any director, officer, employee, contractor or agents, of a party.
(m) Personal Information has the same meaning that it has under Privacy Laws, namely information or an opinion about an identified individual or an individual who is reasonably identifiable, whether the information or opinion is true or not and recorded in a material form or not.
(n) Privacy Laws means any applicable laws and codes of practice dealing with privacy, including the Privacy Act 1988 (Cth) (as amended), the Australian Privacy Principles and any other legislation, codes and policies relating to the handling of Personal Information.
(o) Privacy Policy means our privacy policy available on the Watchful i App or Website or such other web address notified by us to you from time to time), which is incorporated into this agreement.
(p) Protectors has the meaning in clause 2.2(b).
(q) Relevant Laws means any relevant rules of common law, principles of equity, international, federal, state and local laws, statutes, rules, regulations, proclamations, ordinances and by-laws and other subordinate legislation, rulings, or legal requirements and Privacy Laws, anywhere in the world.
(r) Seeker means a person who downloads, accesses and uses the Watchful i App and Services for personal safety purposes.
(s) Services has the meaning in clause 2.1.
(t) Subscription Fees means the fees payable by you to access and use the advanced or premium features and functions of the Watchful i App and Services (including Third Party Products and Services) for the Subscription Term as further described on the Watchful i App or Website.
(u) Subscription Term has the meaning in clause 3.
(v) Third Party Products and Services means any software, products, services, content or tools (including all Intellectual Property Rights contained therein) that:
(i) are provided by third party providers;
(ii) interoperate with the Watchful i App or Services; or
(iii) may be identified as third party products or services.
(w) Third Party Payment Processor means Apple Pay and any other a third party payment processor permitted by Watchful I from time to time.
(x) Trial Period means 30 consecutive days from the date you register and setup your User Profile.
(y) User Access Portal means the portal provided to you to access and use the Watchful i App and the Services.
(z) User Data means all data, information (including Personal Information), content and materials (including geolocation data and voice recordings):
(i) uploaded to, or stored on, the Watchful i App by you or your Protectors;
(ii) transmitted by the Watchful i App at your (or your Protectors’) instigation;
(iii) supplied by you or your Protectors to Watchful I for uploading to, transmission by, or storage on, the Watchful i App; or
(iv) generated by the Watchful i App as a result of the use of the Services by you or your Protectors,
but excluding Watchful I IP.
(aa) User Name has the meaning in clause 4.1.
(bb) User Profile has the meaning in clause 4.1.
(cc) Watchful I, our, us or we has the meaning in clause 1.1, and where the context permits, includes our Personnel and Affiliates.
(dd) Watchful i App means the software made available through the mobile application, and used by Watchful I to provide you with Services, including the application and database software for the Services, the system and server software used to provide the Services, the computer hardware on which that application, database, system and server software is installed, and all Intellectual Property Rights contained therein, provided or otherwise made available by us on, or via, the Watchful i App.
(ee) Watchful I IP has the meaning given to it by clause 10.1.
(ff) Website means the website located at [insert] and any other website notified by us from time to time.
(gg) you or your has the meaning in clause 1.3, and where the context permits, means a Seeker or Protector.