Welcome to the Terms of Use for tRetail Labs. This agreement (the “ Agreement ”) between tRetail Labs, a Australian Corporation with registered agent at 62 View Mount Road, Wheelers Hill, Melbourne, Victoria 3150 Australia (Herein after referred to as “ We ”, “ us ” or “ Company ”)
and
you (“ you ”, “ your ” or “ user(s) ”), a user of the Platform whether as a Vendor (hereinafter defined) or as a non-vendor (“ Customer ”).
The Company offers Users access to an online platform, through tretaillabs.com, its affiliate websites (the “ Site ”) and related mobile apps (the “ Apps ”)(hereinafter collectively referred to as the “ Platform ”), that connects Customers to Vendors through data tracking using AI in airport stores and kiosks (the “ Services ”). The platform is a marketplace/platform for traveler intelligence that encompasses user data processed on the back end. The data is captured from various Vendors, public data sources, and from third-parties. The output is curated via a dashboard which contains all of the intelligence.
As the provider of the Platform only, the Company does not own, control, offer, manage or independently verify any part or portion of the following pieces of information:
Vendor Data;
Intelligence.
BY REGISTERING AN ACCOUNT AND USING THE PLATFORM, YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY IS NOT AN ENTERTAINMENT VENDOR OR SALE COMPANY. WE ARE NOT IN THE BUSINESS OF ENTERTAINMENT WHATSOEVER. THE COMPANY ONLY PROVIDES THE PLATFORM FOR VENDORS AND CUSTOMERS TO FACILITATE A CONNECTION AND, IF DESIREABLE, NEGOTIATE AND AGREE TO THE GENERAL TERMS. NOTWITHSTANDING ANYTHING ELSE HEREIN CONTAINED, THE VENDOR AND CUSTOMER ACKNOWLEDGE AND AGREE THAT:
(1) THE COMPANY MERELY PROVIDES THE SERVICES TO INTRODUCE, CONNECT AND FACILITATE PAYMENT BETWEEN VENDORS AND CUSTOMERS FOR ANY TRANSACTION PERMITTED THROUGH THE PLATFORM FROM TIME TO TIME;
(2) THE COMPANY IS NOT A PARTY TO ANY SERVICE AGREEMENT OR AGREEMENT OF PURCHASE AND SALE AND/OR ANY OTHER FORM OF LEGAL AGREEMENT RELATING TO ANY TYPE OF TRANSACTION FACILITATED THROUGH THE PLATFORM WHICH MAY BE CONSTITUTED AS A RESULT OF THE USE OF, OR RELIANCE ON, THE SERVICES INCLUDING, WITHOUT LIMITATION, THE COMPANY’S STANDARD TERMS OF USE;
(3) THE ACT OF PROVIDING CUSTOMER SERVICE AND/OR TECHNICAL SUPPORT TO USERS OF THE PLATFORM TO, WITHOUT LIMITATION, CONNECT OR FACILITATE A TRANSACTION RELATES TO THE SERVICES ALONE;
(4) THE COMPANY SHALL NEVER BE CONSTRUED TO BE A PARTY TO ANY TRANSACTION, AS DEFINED IN THE TERMS, FOR ANY PURPOSE SAVE AND EXCEPT TO PERFORM ITS CORE FUNCTION AS PAYMENT FACILITATOR AND COLLECTOR (IF AND AS REQUIRED);
(5) THROUGH THE SERVICES, THE COMPANY IS MERELY THE FACILITATOR OF CONNECTIONS BETWEEN USERS TO ENGAGE IN SUCH TRANSACTIONS AS THEY DEEMED FIT SUBJECT TO ANY APPLICABLE LIMITATIONS SET OUT HEREIN; AND
(6) THE COMPANY HAS NO CONTROL OVER, AND IS NOT LIABLE FOR, THE CONDUCT OF ANY OTHER USERS OF THE SERVICE, OR ANY THIRD-PARTY PROVIDERS OF RELATED GOODS OR SERVICES RETAINED BY USERS INCLUDING, WITHOUT LIMITATION, VENDORS, CUSTOMERS, PURCHASERS, CARRIERS, DELIVERY PERSONNEL, AND ANY OTHER THIRD-PARTY SERVICE PROVIDERS RETAINED BY ANY USERS.
This Agreement shall apply to all services rendered by the Company through the Platform. By registering an Account on the Platform you enter into a binding agreement with Company on the terms and conditions set out herein. If the user does not accept the Agreement or is not willing to be bound by (or cannot comply with) it, they may not register an account or use the Services and Platform offered under this Agreement.
PLEASE READ THESE TERMS CAREFULLY , as they contain important information about the Platform as well as payments and charges that the user may be billed for. The terms also contain details on the management of future changes to the Agreement, automatic renewals, limitations of liability, information about privacy protection and the right to withdraw.
By clicking “I agree”, accessing, or using the Platform you agree to be bound by this Agreement and the Privacy Policy. We may amend our Terms of Use or the Privacy Policy and may notify you when we do so. PLEASE BE AWARE THAT THERE ARE ARBITRATION AND CLASS ACTION PROVISIONS THAT MAY AFFECT YOUR RIGHTS. If you do not agree to the Terms of Use or the Privacy Policy please cease using our Platform immediately.
1. User Eligibility
You hereby represent and warrant that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement and to abide by and comply with these terms. You are representing and warranting that:
you are of 18 years of age or older;
you do not already have an account paid or trial account;
you will abide at all times by these Terms of Use and any other agreements between you and the Company regarding your use of the Platform;
If the Company determines that you do not meet the eligibility requirements of this section, then you are not authorized to use the Platform. The Company also reserves the right to take corrective actions, as appropriate, including but not limited to immediately suspending or terminating the User’s account where the User has violated this provision.
2. User Information and Accounts
Users may be required to register on the Platform before accessing portions of the Platform. Your information will be collected and disclosed in accordance with our Privacy Policy. All users are required to provide truthful and accurate information when registering for our Platform and must be over the age of 18. Users may only register for one account per user. We reserve the right to verify all user credentials and to reject any users. You are entirely responsible for maintaining the confidentiality of your password and account and for any and all activities that occur under your account. You agree to notify the Company immediately of any unauthorized use of your account or any other breach of security. The Company will not be liable for any losses you incur as a result of someone else using your password or account, either with or without your knowledge. If you are registering on behalf of your company, you represent and warrant that you are authorized by your company to create an account on your company’s behalf and you represent and warrant that you are authorized by your company to incur financial obligations and enter into legally binding agreements on behalf of your company.
3. Permitted Users
Subject to compliance with this Agreement, where a user is a legal entity the user may allow its Permitted Users to access the Platform. “ Permitted Users " means officers or employees of user, designated by a user to have access to the Platform. The user may not share access to the Platform with any other third parties.
i. Access and License Granted to You
After registering, the Company will grant you a non-exclusive, revocable, limited license to access the Platform. As a user, you do not receive any ownership interest in any portion of the Platform; you merely receive the aforementioned revocable access as stated. All rights not explicitly granted are reserved for the Company. If you breach any of our usage guidelines, as stated below, we may revoke your license or your access to use our Platform at our discretion.
Additionally, we may revoke your license or restrict your access to our Platform if we believe that your actions may harm us, our business interests, or any of our users. Failure by us to revoke your license or restrict access does not act as a waiver of your conduct.
ii. The Platform
The tRetail Labs Platform (“Nrture”) constitutes a platform for Customers to track Users purchases in airport marketplaces. The Company is responsible solely for providing access to the Platform. Please be aware that any of the Company’s Services are “as-is” and “as-available.” Additionally any information or content found on our Platform, including any notifications or tools provided, are offered only for informational purposes only. Further, the Company does not endorse, recommend, and is not otherwise affiliated with any Vendor. The Company has no liability to you for any content including but not limited to all User Content (defined below), information, copy, images, URL names, and anything else provided by any third parties using the Platform (collectively “ Third-Party Content ”).
THE USER ACKNOWLEDGES THAT THE COMPANY IS MERELY A PLATFORM AND DOES NOT SCREEN, INTRODUCE, RECOMMEND, OR ENDORSE ANY VENDORS OR CUSTOMERS. THE COMPANY HAS NO RESPONSIBILITY OR LIABILITY FOR ANY PRODUCTS PROVIDED TO THE USER BY ANY VENDOR, INCLUDING, BUT NOT LIMITED TO, A WARRANTY OR CONDITION OF GOOD CONDITION, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH ANY LAW, REGULATION, OR CODE. BY USING THE PLATFORM, THE CUSTOMER AGREES TO HOLD THE COMPANY FREE FROM THE RESPONSIBILITY FOR ANY LIABILITY OR DAMAGE THAT MIGHT ARISE OUT OF ANY PRODUCTS PROVIDED BY A VENDOR. THE COMPANY IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER INCLUDING ANY VENDOR, AND WE WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH ANY PRODUCTS OR SERVICES PROVIDED BY A VENDOR. The Company is not a party to any contracts created between any Customers or Vendor. Users are solely responsible for their interactions with any other users found on the Platform, and you agree to exercise caution, due diligence, and common sense when interacting or meeting with any users encountered via the Platform.
iii. Vendors and Customers
The Company may allow Customers to access to data intelligence offered by tRetail Labs.
Customers contract for all Vendor Products directly with Vendors. The Company is not a party to any contracts for any Vendor Products and cannot accept any obligations for any contracts negotiated by and between Vendor and Customer. The Company does not direct, employ, or have any control over the Vendors on the Platform. The Company makes no representations, and does not guarantee the quality, safety or legality of the Vendor or any Vendor Products provided.
THE QUALITY OF THE THIRD-PARTY DATA INTELLIGENCE
Do not take responsibility for decisions based on the platform or the dashboard.
ALL USERS HEREBY AGREE TO FULLY INDEMNIFY AND HOLD THE COMPANY COMPLETELY HARMLESS FOR ANY AND ALL MATTERS RELATED TO ANY SALE OR OTHER TRANSACTION FOR WHICH THE SERVICES WERE UTILIZED.
It is the sole responsibility of the Vendor and Customer to directly negotiate the terms of any Transaction including, without limitation, the lease or sale of any particular item(s), and to verify any information either the Vendor or Customer, as applicable, may require in order to conclude any form of legal agreement as between themselves to facilitate any such Transaction.
THE COMPANY RESERVES THE RIGHT TO PROVIDE ITS SERVICES TO ANY ENTITY OR GROUP OF ENTITIES WHATSOEVER, WHETHER AS VENDORS, CUSTOMERS OR BOTH AND MAKE NO PROMISE OF EXCLUSIVITY WHATSOEVER. YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY EMPLOYEES, CONTRACTORS AND AFFILIATES MAY ALSO BE CUSTOMERS OR OWNERS AND THAT THEY MAY COMPETE WITH YOU DIRECTLY AND/OR INDIRECTLY, ALTHOUGH THEY MAY NOT USE YOUR CONFIDENTIAL INFORMATION IN DOING SO.
Conduct and User Content
Conduct
As a condition of use, you promise not to use the Platform for any purpose that is unlawful or prohibited by these Terms, or any other purpose not reasonably intended by Company. When using our Platform, you are responsible for your use and for any use made using your account. You agree to the following:
DISRUPTION
You shall not interfere with, disrupt, or create an undue burden on the Platform or the networks or services connected to the Platform.
You may not take any action that imposes, or may impose at our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
You may not violate any requirements, procedures, policies or regulations of networks connected to the Company;
You shall not post, email, transmit, upload, or otherwise make available any material that contains software viruses or any other computer code, files or programs designed or functioning to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
You shall not upload or transmit (or attempt to upload or to transmit) Malware, viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any user’s uninterrupted use and enjoyment of the Platform or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Platform.
You shall not attempt to circumvent, disable, compromise or otherwise interfere with security-related features of the Site or decipher any transmissions to or from the servers running the Platform. Such features include but not limited to, features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Site and/or the Content contained therein.
You shall not copy, reproduce, recompile, decompile, disassemble, reverse engineer, distribute, publish, display, perform, modify, upload to, create derivative works from, transmit, transfer, sell, license, upload, edit post, frame, link, or in any way exploit any part of the Services or the Platform.
You shall not use any robot, spider, scraper, sniping software or other automated means to access the Service for any purpose without our express written permission. Additionally, you will not: (1) interfere or attempt to interfere with the proper working of the Platform or any activities conducted on the Platform; or (2) bypass any measures we may use to prevent or restrict access to the Service; or engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools without the Company’s express written permission.
You shall not upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”).
You shall not to cause, or aid in, the disruption, destruction, manipulation, removal, disabling, or impairment of any portion of our Platform, including the de-indexing or de-caching of any portion of our Platform from a thirty party’s website, such as by requesting its removal from a search engine.
You will not create or submit unwanted email ("Spam") to any other Platform users;
You shall not use automated bots or other software to send more messages through our Platform than humanly possible;
COPYING
You shall not copy, distribute or disclose any part of the Platform in any medium, including without limitation by any automated or non-automated “scraping”;
You shall not systematically retrieve data or other content from the Site to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us. Additionally, you may not use any robot, spider, crawler, scraper or other automated means or interface not provided by us to access the Platform or to extract data.
USE OF THE SITE TO CREATE COMPETITIVE PLATFORM
You may not access our Platform in an attempt to build a similar or other competitive product;
You may not decompile, reverse engineer, disassemble, modify, rent, sell, lease, loan, distribute, or create derivative works or improvements to the Platform or any portion of it;
You may not share your license or access with any other parties; You may not sell, lease, loan, distribute, transfer, or sublicense the Platform or access to it or derive income from the use or provision of the Platform unless enabled through the functionality of our Platform;
You shall not sell or otherwise transfer a Customer profile.
You shall not engage in unauthorized framing of or linking to the Platform.
You shall not use a buying agent or purchasing agent to make purchases on the Site.
COLLECTION AND TRANSMISSION OF SENSITIVE INFORMATION
You may not use the Platform to store or transmit any health, medical, or sensitive financial information;
You may not collect or harvest any personally identifiable information, including account names, from the Platform or Dashboard;
You shall not make any unauthorized use of the Site, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretenses.
ABUSE
You will not abuse, harass, impersonate, intimidate or threaten other Platform users; or use any information obtained from the Site in order to harass, abuse, or harm another user.
You will not disparage, tarnish, or otherwise harm, in our opinion, us, the Site or any third-party content on the Site.
You will not use the Site in a manner inconsistent with any applicable laws or regulations or that may give rise to civil liability.
You will not post or transmit, or cause to be posted or transmitted, any Content that are infringing, libelous, defamatory, abusive, offensive, obscene, pornographic or otherwise violates any law or right of any third party;
You shall not harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Platform to users.
FRAUD
You may not trick, defraud, or mislead the Company and other users; or attempt to impersonate any person or entity or misrepresent your affiliation with a person or entity; especially in any attempt to learn sensitive account information such as customer account details including, but not limited to, passwords.
You will not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any Platform user;
You will not make improper use of our support services or submit false reports of abuse or misconduct.
ILLEGALITY
You may not violate any law or regulation and you solely are responsible for such violations;
You shall not violate or infringe other people's intellectual property, privacy, or other contractual rights while using our Platform;
You shall not infringe upon the intellectual property rights of the Company, its users, or any third party;
You shall not delete the copyright or other proprietary rights notice from any Content.
DISCLAIMERS
You will not hold the Company responsible for your use of our Platform;
You may not use the Platform on a computer that is used to operate nuclear facilities, life support, or other mission critical applications where life or property may be at stake;
MORAL STANDARDS
You shall not use the Platform to advertise or offer to sell goods and services that are not approved by the Company or clash with the Company’s mission or policies.
You will not submit comments linking to affiliate programs, multi-level marketing schemes, sites repurposing existing stories or off-topic content;
If you are discovered to be undertaking any of the aforementioned actions your privileges to use our Platform may at our discretion be terminated or suspended. Generally, we will provide an explanation for any suspension or termination of your use of any of our Platform, but the Company reserves the right to suspend or terminate any account at any time without notice or explanation.
Violation of our rules may result in the removal of your Content from the Platform, and/or the canceling of your account. You acknowledge and agree that Company may remove any User Content (as defined below) and terminate any Company account at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such User Content). To report Terms of Use violations, please contact us.
User Content
Your ability to submit or transmit any information through the Platform, including but not limited to data, information, images, references, including but not limited to profile information and communications with other users or any other information, whether privately transmitted or made publicly available, is the sole responsibility of the person from which such User Content originated, and will be referred to as “ User Content ” throughout this Agreement.
Please be aware that we are not required to host, display, migrate, or distribute any of your User Content and we may refuse to accept or transmit any User Content. You agree that you are solely responsible for any User Content submitted and you release us from any liability associated with any User Content submitted. This means that you, not Company, are entirely responsible for all User Content that you upload, post, share, email, transmit, or otherwise make available via the Platform. Under no circumstances will Company be liable in any way for any User Content.
When submitting any User Content to our Platform you represent and warrant that you own all rights to the User Content and you have paid for or otherwise have permission to use any User Content submitted. Furthermore, you represent and warrant that all User Content is legal and the User Content does not interfere with any third party rights or obligations.
You acknowledge that Company may or may not pre-screen User Content, but that Company and its designees have the right (but not the obligation) in their sole discretion to pre-screen, refuse, permanently delete, undelete, modify and/or move any User Content available via the Service. Without limiting the foregoing, Company and its designees shall have the right to remove any User Content that violates these Terms or is otherwise objectionable in Company's sole discretion. You understand that by using the Service, you may be exposed to User Content that you may consider to be offensive or objectionable. You agree that you must evaluate, and bear all risks associated with, the use or disclosure of any User Content. You further acknowledge and agree that you bear the sole risk of reliance on any Content available on or through the Service.
With respect to User Content you submit or otherwise make available on or to the Service, you grant Company an irrevocable, fully sub-licensable, perpetual, world-wide, royalty-free, non-exclusive license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such User Content (in whole or in part), and to incorporate such User Content into other works, in any format or medium now known or later developed. Additionally, you grant to the Company a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Platform any suggestion, enhancement request, recommendation, correction or other feedback provided by you relating to the operation of our Platform.
We provide industry standard security for our Platform but we cannot guarantee the absolute safety and security of any such User Content. Any User Content found to be in violation of this Agreement or that we determine to be harmful to the Platform may be modified, edited, or removed at our discretion.
You are solely responsible for your interactions with other users of the Platform. The Company reserves the right, but has no obligation, to monitor disputes between you and other users.
User Content Guidelines
We reserve the right to remove, delete, modify, screen, edit, or refuse any User Content for any reason or no reason, and with or without notice to you. Please be aware that all User Content may be viewed by third parties, thus we cannot guarantee the confidentiality of any User Content.
When submitting any User Content you agree to the following:
You agree that User Content submitted is truthful and accurate;
You agree not to submit any User Content that contains any confidential information;
You agree not to submit any User Content contains hate speech or promotes or condones violence against individuals or groups based on race or ethnic origin, religion, disability, gender, age, nationality, veteran status, or sexual orientation/gender identity;
You agree not to submit any User Content that is considered spam; and
You agree not to submit any User Content that may be considered: misleading, unlawful, defamatory, obscene, invasive, threatening, or harassing.
If you have violated any of our User Content Guidelines or if we believe that any User Content may harm the Platform, your access to the Platform may be suspended or terminated.
Responsibility for fines, taxes etc.
The User is solely responsible for any violations related to the mishandling or abuse of the provided information by the Company, including payment of all resulting fines, sanctions and penalties.
Any applicable taxes and similar fees connected with the use of the Service shall be paid by the User to the relevant public authority.
Company reserves the right, in defense of its interests, to identify the User to authorities or the public administration if a violation has been committed.
Company may charge for any costs resulting from infringements related to the Services or Intellectual Property of the Company, including the investigation thereof as well as any fines, penalties and legal costs incurred by Company.
Failure to pay the amounts owed by the User for the above gives Company a right to terminate the contractual relationship hereunder. In addition to these amounts, Company may also take steps to enforce further claims for damages and losses.
Where the Company does not charge Customer taxes, the Customer agrees to pay any and all applicable taxes for the purchase of any Vendor Products. Additionally, where requested by us, you agree to provide us tax documentation to support any claims of on-time tax payment.
Intellectual Property Rights
The User agrees under no circumstances shall User register any trademark, assume trade name, obtain domain name, or otherwise obtain any right to Company or any confusingly similar name during or any time after the termination of this Agreement and that under no circumstance shall they alter, deface or remove any reference to Company’s Trade Marks or any other name displayed on the documents or information provided by Company.
Platform Availability
Although we try to provide continuous availability to you, we do not guarantee that the Platform will always be available, work, or be accessible at any particular time. Specifically, we do not guarantee any uptime or specific availability of the Platform. You agree and acknowledge that the Platform uses remote access and may not always be either 100% reliable or available. Only users who are eligible to use our Platform may do so and we may refuse service or terminate your access at any time. We cannot guarantee that anything found on our Platform will work to the functionality desired by you or give you any desired results.
Modification of Platform
We reserve the right to alter, modify, update, or remove our Platform at any time. We may conduct such modifications to our Platform for security reasons, intellectual property, legal reasons, or various other reasons at our discretion, and we are not required to explain such modifications. For example, we may provide updates to fix security flaws, or to respond to legal demands. Please note that this is a non-binding illustration of how we might exercise our rights under this section, and nothing in this section obligates us to take measures to update the Platform for security, legal or other purposes.
Disclaimer
The User acknowledges and agrees that their use of the Company Platform is at their sole risk.
The User acknowledges that the Company is not responsible for the conduct of third parties on the Company Platform. The User agrees that the Company is not liable for any losses associated with the User’s use of the information provided by the Company Services. The User acknowledges that they are solely responsible for contracting with third parties on the Company Site and that they assume all the risks associated with the use of the Company’s Services.
The User agrees that such risks and hazards cannot always be predicted or avoided and that they are the User’s sole responsibility.
The User agrees that they are liable for any resulting injury, damage, and related cost, when using the Company’s Platform. The User further notes that the use of the Company’s Services, Sites, and Apps are subject to legislation as applicable from time to time, and that such legislation may change and impede the use of the Company’s Services. By choosing to use the Company’s Services, Sites, and Apps; the User assumes full and complete responsibility for all related risks, dangers and hazards, and agrees that Company is not responsible for any risk of loss or cost caused by the User with respect to any person or property.
THE PLATFORM IS PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER THE COMPANY, NOR ANY OF OUR EMPLOYEES, MANAGERS, OFFICERS, AFFILITATES, ASSIGNS OR AGENTS MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO: (1) THE PLATFORM; (2) ANY INFORMATION PROVIDED VIA THE PLATFORM; (3) ANY USER CONTENT OR VENDOR CONTENT, (4) ANY USER, (VENDOR or CUSTOMER), OR OTHER THIRD PARTY ENCOUNTERED ON THE PLATFORM, (5) ANY VENDOR PRODUCTS, OR (6) SECURITY ASSOCIATED WITH THE TRANSMISSION OF USER CONTENT OR INFORMATION TO THE COMPANY, OR VIA THE PLATFORM. IN ADDITION, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, OR ERRORS.THE COMPANY DOES NOT WARRANT THAT YOUR USE OF THE PLATFORM IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE COMPANY SPECIFICALLY DISCLAIMS ANY SUCH WARRANTIES.
Limited liability
The User acknowledges and agrees, with the limitation of mandatory law, that the Company is not responsible or liable for any claim that arises out of or relates to the User’s use of, or inability to use, the Company Platform.
The User acknowledges and agrees that except in case of gross negligence or willful misconduct, the Company is not responsible or liable for any breach of this Agreement or violation by the User of any applicable law as a consequence of or in the course of using the Company Platform. Company’s liability shall at all times be limited to the fees paid by the User to Company hereunder.
IN NO EVENT SHALL THE COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO (1) YOUR USE OR INABILITY TO USE THE PLATFORM OR ANY ERRORS, MISTAKES, OR INACCURACIES FOUND WITHIN THE PLATFORM, (2) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR PLATFORM, (3) ANY INTERRUPTION, MISINFORMATION, INCOMPLETE INFORMATION, OR CESSATION OF TRANSMISSION TO OR FROM OUR PLATFORM TO YOU, (4) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR PLATFORM VIA A THIRD PARTY, (5) ANY FAILURES OR DISRUPTIONS WHETHER INTENTIONAL OR UNINTENTIONAL, OR (6) ANY ACTION TAKEN IN CONNECTION WITH ANY THIRD PARTY COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE. SPECIFICALLY, IN THOSE JURISDICTIONS NOT ALLOWED, WE DO NOT DISCLAIM LIABILITY FOR: (1) DEATH OR PERSONAL INJURY CAUSED BY THE COMPANY’S NEGLIGENCE OR THAT OF ANY OF ITS OFFICERS, EMPLOYEES OR AGENTS; (2) FRAUDULENT MISREPRESENTATION; OR (3) ANY LIABILITY WHICH IT IS NOT LAWFUL TO EXCLUDE EITHER NOW OR IN THE FUTURE. WHERE A TOTAL DISCLAIMER OF LIABILITY IS DISALLOWED YOU AGREE THAT OUR TOTAL LIABILITY TO YOU SHALL NOT EXCEED THE LESSER OF THE TOTAL AMOUNT YOU HAVE PAID IN THE PAST SIX (6) MONTHS TO USE OUR PLATFORM OR TEN THOUSAND US DOLLARS.
Indemnification
The User will indemnify and hold Company free from all losses, suits, claims or other proceedings relating to or arising out of the User’s use of the Company’s Services, Site or Apps and any breach of this Agreement.
Processing of personal data
Company needs to register and process the Users’ personal data such as name, address, phone number and e-mail address, and is the controller of such data.
Company processes such information in order to administer, perform the contract and provide information regarding the Services. Subject to the Users’ consent and Company’s legitimate interests, Company may further use such information to provide related services as well as marketing.
More detailed information, including on sharing, and the legal basis of Company’s processing, of personal data, can be found in Company’s privacy policy as applicable from time to time (available at www.tretaillabs.com/pages/privacy ), which applies to the Agreement.
Term
The Agreement enters into force when the User registers an account for the Platform and shall, unless terminated, remain in force.
Termination by the parties
Each party may terminate the Agreement at any time. Upon termination of the Agreement the User shall pay (i) all due and outstanding fees and as well as other payments to be made pursuant to the Agreement; (ii) all costs incurred by Company due to the early termination; and (iii) compensation corresponding to the amount of all outstanding fees.
Termination by Company
Company may at any time unilaterally terminate this Agreement if the user:
Fails to make payment of fees per the SaaS Licensing Agreement incorporated herein pursuant to the Agreement more than three (3) weeks after the due date for payment, or repeatedly fail to make payments when due; or
Materially or repeatedly breaches the Agreement.
Upon termination of the Agreement the User shall pay (i) all due and outstanding fees and as well as other payments to be made pursuant to the Agreement; (ii) all costs incurred by Company due to the early termination; and (iii) compensation corresponding to the amount of all outstanding fees.
Any fees or deposit paid will not be reimbursed in case of any termination pursuant to this section.
Contact
Company can be contacted by emailing info@tretaillabs.com, or by regular mail to Company’s agent’s address at 62 View Mount Road, Wheelers Hill, Melbourne, Victoria 3150 Australia .
Or: Thomas C. Dorwart Law at tom@dorwartlaw.com .
1 (402) 558-1404.
Assignment
Company may assign or pledge all or parts of its rights and obligations pursuant to the Agreement, including title to the Platform subject to the User’s rights pursuant to the Agreement. The User is not entitled to assign or pledge the Platform or any part thereof.
Non-Waiver
We reserve all rights permitted to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or the any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
Severability
In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.
If two or more provisions of this Agreement or any other agreement you may have with the Company are deemed to conflict with each other’s operation, the Company shall have the sole right to elect which provision remains in force.
Arbitration
Prior to settling any dispute in Court, you agree that any dispute relating in any way to your visit to the Platform or our Platform shall be submitted to confidential arbitration in Delaware. Arbitration under this Agreement shall be conducted pursuant to the applicable Commercial Rules (“Rules”) then prevailing at the American Arbitration Association. Arbitration shall be conducted in English by one (1) arbitrator as selected pursuant to the Rules; the arbitrator's award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. Each party shall be responsible for their own arbitration fees and costs. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class action proceedings or otherwise. Where allowed by the Rules, the Company may make any and all appearances telephonically or electronically. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Platform or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever banned. Notwithstanding the foregoing, either party may seek equitable relief to protect its interests (including but not limited to injunctive relief), or make a claim for nonpayment, in a court of appropriate jurisdiction, and issues of intellectual property ownership or infringement may be decided only by a court of appropriate jurisdiction and not by arbitration. In the event that the law does not permit the abovementioned dispute to be resolved through arbitration or if this arbitration agreement is unenforceable, you agree that any actions and disputes shall be brought solely in a court of competent jurisdiction located within Delaware.
Governing Law and Venue
The Agreement is governed by and shall be construed in accordance with Delaware law without regard to Delaware’s conflicts of law provisions.
The User agrees that any disputes arising out of or relating to the Agreement, its breach, or subject matter, that are not governed by section 37 of this Agreement, shall be brought exclusively before the Courts of Victoria, Australia, and hereby consents to the Court’s jurisdiction.
Non-Circumvention
During the term of this Agreement and for a period of one (1) year, user agrees not to pursue or engage in any transaction involving the involving the users met via the Platform or pursue any introduction of such user without the written consent of the Company. Further User agrees that all communications regarding any potential transactions, requests for additional information, and discussions or questions regarding procedures will be submitted via the Platform and not directly to users outside of the Platform. In the event of non-compliance, breach, or threatened breach of this section by user, user agrees that the Company shall be irreparably harmed and that money damages would not be a sufficient remedy, therefore, the Company shall be entitled to seek equitable relief, including the right to seek injunction and specific performance, as a remedy for any such non-compliance, breach or threatened breach. Such remedies are not the exclusive remedies for a breach of this section by user or any of its Affiliates, but shall be in addition to all other remedies available at law or in equity to the Company. If any restriction set forth in the this Section is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or too broad in geographic area, it shall be interpreted to extend only to the maximum period of time, range of activities or geographic area as to which it may be enforceable.
Confidentiality
During the Term of this Agreement, it may be necessary for a party (the " Disclosing Party'' ) during the term of this Agreement to provide the other party (the " Receiving Party '') with certain information that shall be treated as Confidential Information, as defined below.
Confidential Information : “ Confidential Information ” shall mean for The Company any information including any user information disclosed by The Company to user, in any form including without limitation documents, client lists, business plans, source code, software, technical/ financial/ marketing/ customer/ business information, specifications, analysis, designs, drawings, data, computer programs, any information relating to personnel or affiliates of a party, or any information disclosed by third parties at the direction of The Company, that is given the nature of the information or the circumstances surrounding disclosure, should be reasonably understood by user to be confidential. “ Confidential Information ” shall mean for user shall mean any information disclosed by user to The Company, in any form including without limitation documents, business plans, source code, software, technical/ financial/ marketing/ customer/ business information, specifications, analysis, designs, drawings, data, computer programs, any information relating to personnel or Affiliates of a party, or any information disclosed by third parties at the direction of user, marked as confidential within 15 days of such disclosure. Confidential Information shall however, exclude any information which (i) is/was publicly known or comes into public domain; (ii) is received by the Receiving Party from a third party, without breach of this Agreement; (iii) was already in the possession of Receiving Party, without confidentiality restrictions, at the time of disclosure by the Disclosing Party; (iv) is permitted for disclosure by the Disclosing Party in writing; or (v) is independently developed by the Receiving Party without use of Confidential Information.
Nondisclosure : The Receiving Party agrees not to use any Confidential Information for any purpose except for the purposes of performing this Agreement, or as otherwise agreed in writing. Receiving Party agrees not to disclose any Confidential Information to third parties. Disclosure is permitted to Receiving Party’s personnel, the personnel of its affiliates, and its and their directors, advisors, auditors, governmental authorities or subcontractors, who may need to know such Confidential Information, and who are under a duty of confidentiality that are substantially similar to the confidentiality provisions contained within this Agreement. The Receiving Party shall not reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the Disclosing Party's Confidential Information, and which are provided to the Receiving Party hereunder.
Disclosure Under Law etc .: Notwithstanding anything stated herein, the Disclosing Party agrees that if the Confidential Information is required to be disclosed pursuant to any order or requirement from court, administrative or governmental agency, such Confidential Information can be disclosed, provided the Receiving Party gives, if legally permitted, the Disclosing Party a prompt written notice of such order or requirement and an opportunity to contest or seek an appropriate protective order under law.
Maintenance of Confidentiality Information : The Receiving Party agrees that it shall take all reasonable measures to protect the secrecy of and avoid unauthorized disclosure and use of the Confidential Information and shall take at least those measures that Receiving Party takes to protect its own Confidential Information and shall ensure that its Affiliates, and its and their employees, directors, contractors, advisors, who need to have access to Confidential Information are under a duty of confidentiality to the Receiving Party or its Affiliate, or sign or have signed non-use and non-disclosure agreement in content substantially similar to the provisions hereof, prior to any disclosure of Confidential Information to such personnel. The Receiving Party shall not make copies of Confidential Information unless the same are reasonably necessary. The Receiving Party shall immediately notify the Disclosing Party in the event of any unauthorized use or disclosure of the Confidential Information and reasonably support Disclosing Party in taking necessary remedial action.
Return/ Destruction : Upon the termination of this Agreement or where directed to by the Disclosing Party, all Confidential Information and all copies thereof which are in the possession of Receiving Party shall be promptly returned to the Disclosing Party on demand or destroyed in the manner so specified. Where any Confidential Information is destroyed, the Receiving Party shall certify such destruction in writing to the Disclosing Party.
No License : Nothing in this section is intended to grant any license or other intellectual property rights in the Confidential Information of the other party.
The obligations stated in this Section shall survive for three (3) year post termination or expiration of the term of the Agreement.
Entire Agreement and amendments
The User acknowledges that the Agreement contains the complete, final, and exclusive integrated Agreement between the User and Company with respect to its subject matter. Deviating or supplementary regulations of the customer do not apply, even if Company does not explicitly object to them.
Company reserves the right to amend, modify, or change this Agreement, at its sole discretion and without any prior notice or cause. Such amended terms of use will be available at www.tretaillabs.com .
By continuing to use the Services, Website, and Apps or any part thereof after any amendment, modification, or change, the User has agreed to be bound by all such amendments, modifications and changes unless otherwise prescribed by law, in which case they will apply as of the earliest time allowed for under law. The User must carefully review the terms of use on a regular basis to maintain awareness of amendments, modifications and changes.
The User confirms that they have read and understood the terms and consequences of this Agreement, and that they are fully aware of the legal and binding effect of the Agreement.
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