APPLICATION TERMS AND CONDITIONS
These Terms and Conditions of use (Terms) govern your use of this mobile application (Application), of Luboo devices paired to this application, and of the Luboo service provided through use of this Application and those devices (the Service) at a particular venue (Venue).
Use of this Application and the Service constitutes acceptance of these Terms and a binding agreement between a user (you) and Luboo Pty Ltd ABN 47 616 356 533 (we, us or our) about use of this Application and the Service.
Because a person to whom a Luboo device is attached (a Tracker) is usually a child or other person unable to give fully informed consent to use of the Service, we rely upon you to give consent on the Tracker’s behalf. You will be required to read and sign or otherwise accept a Privacy Notice before the Luboo service is made available to you and Trackers. You must be a responsible adult that is legally entitled and willing and able to give that consent and properly supervise each Tracker to whom a Luboo device is attached. By using the Service, you warrant to us that this is true.
Our Service is an aid, not a substitute, to careful supervision.
Please carefully read our Privacy Notice, which includes important information relevant to safe use of the Service.
- Key Terms
- The Application and Service assists you to track a Tracker within a Venue. We provide the Application and the Service, including Luboo devices that are made available to you at the Venue. The Application and Service can only be used during a particular visit to a particular Venue after you rent a Luboo device for use during that visit to that Venue, accept a Privacy Notice for that visit and Venue, pair the rented Luboo device to the Application, and securely attach the Luboo device to the Tracker.
- The Service is designed to provide you with an alert over the Application if the Tracker goes outside designated geographical parameters.
- We rely upon you to properly supervise a Tracker.
- We rely upon you to ensure that the Application is available and audible on your mobile device, that your mobile device is working, and that your mobile device is available to you and being actively monitored by you. The Service can only be safely used if all of these things are reliably done by you.
- We rely upon the operator of the Venue to fully charge the Luboo device, to assist you to pair the Luboo device to the Application, and to ensure that the network used for communicating between the Luboo device and your app is fully operational. We will do what we reasonably can to assist the operator of the Venue to do these things. However, we cannot supervise or monitor all of these things, and operators of Venues are not our employees, contractors, partners or agents.
- You must return the Luboo device to the Venue before leaving. You agree to pay us the full cost of replacing the Luboo device in the Venue and reasonable compensation for our lost rentals if you don’t then return the Luboo device to the Venue.
- Fees and Payments
- Downloading and registering the Application is free.
- Our fee for use of the Service (including rental of Luboo devices) and payment methods are set out at the Venue or at the Luboo website.
- To the extent permitted by law, our fee is non-cancellable and non-refundable.
- By buying the Service, you consent and authorise us and our payment services providers to share with one another any information and payment instructions you provide and, to the extent required to complete Your transaction, with any other third-party service provider(s).
- If you make a payment by credit card, you warrant that the information you provide to us is true and complete, that you are authorised to use the credit card to make the payment, that your payment will be honoured by your card issuer, and that you will maintain sufficient funds in your account to pay our fee.
- Important Disclaimers
- We rely upon you to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete.
- This Application and our tracking devices are designed solely to help you locate a Tracker who is within a certain range. The advertised range and accuracy can be dependent on a number of factors not within our control including, but not limited to, obstructions such as high fences or walls or buildings or tunnels or depressions or machinery and theme park apparatus or weather. Luboo devices and the Service may be subject to certain compatibility limitations, including memory, storage, network availability, coverage, weather accessibility and data conversion limitations. Location readings can be subject to “bounce” which can affect accuracy.
- You must use this Application and any tracking devices as intended in order for them to work properly. We take no responsibility for any use of the Application or Service for any purpose other than their intended design.
- The Application uses maps designed by us and provided by a Venue to show the location of a Tracker. We are not responsible for the accuracy of the maps. Venues may have changed the layout of their Venue without providing us with the updated maps. The Application may not assist in the tracking of a Tracker if the maps are inaccurate or out of date.
- Dispute Resolution
- If there are any complaints from you against us, we will aim to respond and provide a suitable solution within 45 days. If you are not satisfied with our response, the following dispute resolution procedure will apply:
(i) The complainant must tell the other party to the dispute in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The parties agree to meet in good faith to seek to resolve the dispute by agreement (Initial Meeting).
(ii) If a resolution cannot be agreed upon at the Initial Meeting, the parties may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the profession association supervising lawyers in the relevant jurisdiction of the Venue (for example, the Law Society of New South Wales) to appoint a mediator. The mediator will decide the time and place for mediation and the rules to govern that mediation. Each party to the dispute must attend the mediation and participate in a good faith effort to resolve the dispute.
- Any attempts made by a party to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of either party under these Terms, by law or in equity.
- IMPORTANT EXCLUSIONS AND LIMITATIONS OF LIABILITY, AND INDEMNITY BY YOU
- We will do all that we reasonably can to provide a reliable Service managing all elements of the provision of the Service that are reasonably within our control. However, you agree that our responsibilities are limited in the way expressly stated in these Terms and that we limit our liability as here provided in the event that your Tracker becomes lost whilst using the Service and cannot be located.
- You agree that to the maximum extent permitted by law, we are not responsible for and we exclude all legal liability for acts and omissions of an operator of a Venue and that operator’s employees, contractors, partners and agents, except only for their acts and omissions directly related to provision of our Service that are undertaken for us in the course of provision of our Service with our actual knowledge and while under our active supervision and direction. Otherwise we are not a party to any agreement entered into between you and a Venue. We have no control over the conduct of Venues. To the maximum extent permitted by law, we accept no liability for any aspect of your interaction with Venues.
- To the extent permitted by law, we will not be liable for any loss, damage, costs or expense whether direct, indirect, incidental, special, consequential and/or incidental, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for death or emotional distress, loss of revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, loss of programs or other data on your information systems or costs of replacement goods, or otherwise, suffered by you or claims made against you, arising out of or in connection with the Application and the Service, your inability to access or use the Application and the Service, even if we were expressly advised of the likelihood of such loss or damage. You agree not to attempt to impose liability on, or seek any legal remedy from us, with respect to such actions or omissions.
- To the maximum extent permitted by law, we exclude all conditions, warranties, guarantees or representations, whether implied by custom, law, statute or on any other basis, and all material, work and services (including the Application and the Service) is provided to you without warranties of any kind, either express or implied, and we expressly disclaim all warranties of any kind including but not limited to implied warranties, guarantees or other terms as to merchantability and fitness for a particular purpose.
- We do not warrant that the Application, the Service, or your access to the Application or the Service will be error free, that any defects will be corrected or that the Application or Service, or the server which stores and transmits material to you, is or will be free of viruses or any other harmful components.
- To maximum the extent permitted by law, our total liability arising out of or in connection with the Application, the Service and these Terms, howsoever arising, including under contract, tort, negligence, in equity, under statute or otherwise, is limited to us re-supplying the Service to you, or, at our option, refunding to you the amount that you paid for the use of the Service.
- To the maximum extent permitted by law, you agree to defend and indemnify and hold us (and our related bodies corporate, officers, directors, contractors, employees and agents, harmless from and against any claims, actions, suits, demands, damages, liabilities, costs or expenses (including legal costs and expenses on a full indemnity basis), including in tort, contract or negligence, arising out of or connected to your use of or access to the Application or the Service; any breach by you of these Terms; any wilful, unlawful or negligent act or omission by you; and any violation by you of any applicable laws or the rights of any third party.
- We reserve the right to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will cooperate in asserting any available defences.
- This clause will survive these Terms and your use of the Application or the Service.
- Intellectual Property
- All logos, slogans, content, designs, diagrams, drawings, graphics, images, layouts, appearance, videos, ideas, methods, databases, codes, algorithms, software, fees, pricing, notes, documents, domain names, confidential information, copyright, rights in circuit layouts (or similar rights), registered or unregistered trademarks, trade names, patent, know-how, trade secrets and any other intellectual or industrial property whether such rights are capable of being registered or not, including but not limited to copyright which subsists in all creative and literary works displayed on the Application and Services, the layout, appearance and look of the Application, together with any applications for registration and any rights to registration or renewal of such rights anywhere in the world, whether created before or after the date of these Terms and whether used or contained in the Application is owned, controlled or licensed to You (or its affiliates and/or third party licensors as applicable) (collectively Intellectual Property).
- You agree that, as between the you and us, we own or hold the relevant licence to all Intellectual Property rights in the Application and Services, and that nothing in these Terms constitutes a transfer of any Intellectual Property. The Intellectual Property, the Application and Services are protected by copyright, trademark, patent, trade secret, international treaties, laws and other proprietary or industrial rights whether such rights are capable of being registered or not, and also may have security components that protect digital information only as authorised by Us or the owner of the content.
- Some Intellectual Property used in connection with the Application and Services are the trademarks of their respective owners (collectively Third Party Marks).
- Our Intellectual Property and Third Party Marks may not be copied, imitated or used, in whole or in part, without the prior written permission of us or the applicable trademark holder or Intellectual Property owner.
- You do not obtain any interest or licence in the Intellectual Property or Third Party Marks. You may not do anything which interferes with or breaches the Intellectual Property rights.
- Accuracy: While we will endeavour to keep the information up to date and correct, we make no representations, warranties or guarantee, express or implied, about the completeness, accuracy, reliability, suitability or availability of any information, images, services, or related graphics contained on the Application for any particular purpose. You hereby acknowledge that such information and materials may contain mistakes, inaccuracies or errors and we expressly exclude any liability for such to the fullest extent permissible by law.
- Termination: We reserve the right to refuse to make available the Application or supply the Service, terminate the Service, and remove or edit content on the Application if you commit a non-remediable breach of these Terms, or a remediable breach of these Terms (that is not remedied within 5 days to our satisfaction). If we decide to terminate the Services, with or without notice to you, your Access PIN will be deactivated and you will not be able to access the Application or the Service.
- Fraudulent Activities: You acknowledge and agree that, in the event that we reasonably suspect that there is fraudulent activities occurring within the Application and the Service, we reserve the right to immediately terminate any Access PINs involved in such activities, contact the relevant authorities and provide all necessary information to assist in proceedings and investigations.
- Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control.
- Notice: Any notice in connection with these Terms will be deemed to have been duly given when made in writing and delivered or sent by email or post to the party to whom such notice is intended to be given or to such other address or email address as may from time to time be notified in writing to the other party.
- Waiver: Any failure by a party to insist upon strict performance by the other of any provision in these Terms will not be taken to be a waiver of any existing or future rights in relation to the provision. No waiver by us of any of these Terms shall be effective unless we expressly state that it is a waiver and we communicate it to You in writing.
- Assignment: You must not assign any rights and obligations under these Terms whether in whole or in part without our prior written consent. These Terms, and any rights and licences granted hereunder, may be assigned by Us without restriction.
- Severability: If any of these Terms are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining Terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
- Jurisdiction and Applicable Law: To the maximum extent permitted by law, these Terms, use of the Application and the Service and any dispute arising out of your use of the Application and the Service is subject to the laws of New South Wales and the Commonwealth of Australia, and subject to the exclusive jurisdiction of the courts of New South Wales.
- Entire Agreement: These Terms and any document expressly referred to in them represent the entire agreement between Us and You, and supersedes any prior agreement, understanding or arrangement between them, whether oral or in writing.
For questions and notices, please contact:
Luboo Pty Ltd (ABN 47 616 356 533)
123 Campbell Drive,
Wahroonga, NSW 2076
Last update: 22 June 2019