DRINKZ Interface Terms
User means You
Provider means iLysium PTY LTD
Venue means Licensed premises currently registered with a relevant State Authority
Capitalised terms in this document are defined at the end of the document in the section entitled “Definitions”.
1. Introduction to terms
The Interface is owned and operated by iLysium PTY LTD. The Interface is an application designed to provide a social platform with a more cost effective, responsible drinking culture by:
· allowing Users to create a User Profile and invite other Users to a Venue or location to consume beverages;
· records User beverage purchases whilst tracking consumption in either sequential or random order to a set round timing;
· providing a functionality for Users to interact with other Users and Venues, chat functionality between Users and Venues; and
· Users preferred beverage list.
This document will form an agreement between Users or Venues and iLysium PTY LTD when selecting: "I agree to the Terms and Conditions" upon creating a personal or Venue profile account.
By agreeing with the Terms and Conditions, Users and Venues warrant in your personal capacity that they currently have the authority to create a contractually binding relationship between User and or Venue with iLysium PTY LTD for the duration of the Terms. Users and Venues agrees not to use the Interface if the User and or Venue does not agree to any part of the Terms.
2. Conditions of Use
iLysium PTY LTD grants User and Venue a limited and revocable license to view and use the Interface, and to register an Account, in accordance with the Terms if User and Venue:
· complies with the Terms;
· is over the age of 18 years in Australia;
· is of the minimum legal age required in his or her relevant jurisdiction for the consumption of alcohol;
· is capable of forming binding contracts;
· is not breaking any law by accessing and using the Interface;
· uses the Interface only in the way that it is designed to be used; and
· does not engage in any improper, indecent, bullying, harassing or offensive conduct while using the Interface.
At its discretion, iLysium PTY LTD may immediately revoke the licence to use the Interface if User or Venue breaches any of the conditions above.
In order to access certain parts and functionality of the Interface, User and Venue must register an Account.
When User and Venue register an Account, User and Venue undertakes to:
o provide information during the registration process that is accurate and complete in all respects;
o verify email account to create a User or Venue Profile; and
o represent him, herself or Venue only, and not impersonate any other person or Venue whilst using the Interface.
User and Venue are solely responsible for:
o the use of their Account, regardless of who is using it, even if it is used without their permission; and
o keeping their username and password secure.
4. Account password retrieval
iLysium PTY LTD is permitted to send password reset emails to User and Venue.
5. User categories
The User accepts that by creating a “personal profile”, the following information will be visible to other Users, Venues and the general public:
· profile picture;
· first name;
· last name;
· relationship status;
· preferred drink;
· about me; and
· profile level.
The User accepts their User Profile will be appear in the “drinkerz nearby” list on the Interface, by accessing the User’s geolocation within a specified distance (5 kilometres) to other Users or Venues. The use of exact Geo-location of Users can be provided to Venues through the Venue checkin functionality only.
The Venue accepts by creating a “Venue profile" the following information will be available to other Users, Venues and the general public:
· Venue picture(s);
· Venue name;
· Venue location;
· Venue information;
· User checkins;
· Venue reviews
· Venue ratings; and
· any other information regarding the promotion or advertising of the Venue or Venue events on the interface.
iLysium PTY LTD accepts no liability for the accuracy of information contained in Venue profiles.
6. Provider’s relationship to transactions between Users and Venues
iLysium PTY LTD is not responsible for transactions or interactions that occur between Users and Venues on the Interface or between Provider and User or Venue. iLysium PTY LTD does not make any warranties in relation to any services rendered or information provided by Users or Venues, or transactions entered into between Users or Venues and iLysium PTY LTD on the Interface.
Users and Venues agree to acknowledges that iLysium PTY LTD’s provision of the Interface does not constitute advice by iLysium PTY LTD. iLysium PTY LTD has no responsibility for interactions that occur between Users and Venues on the Interface.
7. Content on the Interface
All Content is for informational purposes only, and is to be used or relied on at User’s and Venue’s own risk. iLysium PTY LTD makes no warranty or representations as to the accuracy of the Content.
8. Changes and Errors by Provider
iLysium PTY LTD reserves the right to do any of the following, at its absolute discretion, without notice:
· change any price;
· correct any errors in Content or on the Interface;
· update the Interface; or
· change the Interface or Content in any way.
9. Posted Content
In respect of Posted Content, User and Venue warrants that it is not:
· uploaded in breach of the Intellectual Property Rights of any third party;
· uploaded in breach of any law under the Privacy Act 1988 (Cth);
· affected by any computer virus or malicious code;
· connected with "spam" or the process of "spamming";
· in breach of any other clause of the Terms; or
· false, defamatory, misleading or otherwise deceptive in any way;
· financial, legal, medical or other professional advice; or
· pornographic material;
· “warez” or associated with “warez”; or
· material that is likely to offend, insult or humiliate based on race, religion, ethnicity, gender, age, sexual orientation.
User and Venue agrees that any comments or opinions that are expressed in Posted Content will be fair, accurate and genuinely held at the time of communication.
10. Provider not responsible for Posted Content
iLysium PTY LTD makes no warranties as to the accuracy of any Posted Content, and will accept no liability for errors or omissions in general.
11. Licence of Posted Content and Provider powers
· By posting or uploading Posted Content, User and Venue grants a perpetual, irrevocable, unlimited, royalty free, transferrable, sub-licensable, global licence to iLysium PTY LTD to deal with the Posted Content, except for medical or personal information, for any purpose.
· iLysium PTY LTD reserves the right, at its absolute discretion, to remove, amend, edit or in any other way change any Posted Content, or to request User or Venue to do so. User and Venue agrees to comply with any requests by iLysium PTY LTD to amend or alter any Posted Content.
12. Privacy and Data Retention
iLysium PTY LTD may collect and store Data.
iLysium PTY LTD reserves the right to share or disclose User’s and Venue’s Data in order to maintain the Interface and comply with any relevant laws, including in the following circumstances:
· if a government agency or regulatory body lawfully and specifically requests them to do so;
· when performing routine backup and restore operations, virus scan and virus removal, spam and content filtering; or
· to fix bugs or problems in the Interface.
13. Third Party Websites and Advertising
The Interface may contain hyperlinks, images, banners, information and advertising from Third Parties. User and Venue consents to receiving this information whilst using the Interface.
iLysium PTY LTD is not responsible for any information transmitted by Third Parties, nor is iLysium PTY LTD responsible for the accuracy of content or information provided by any advertisements. User’s and Venue’s decision to click a link or links redirecting to any Third Party website, or accept any Third Party offer, is entirely at User’s and venue’s own risk.
14. Intellectual Property Rights
All title, ownership rights and Intellectual Property Rights, including copyright, in relation to the Interface is owned and used under licence by iLysium PTY LTD. The Interface includes registered and unregistered trademarks, including but not limited to DRINKZ and the DRINKZ logo. Without the express written permission of iLysium PTY LTD, User shall not:
· replicate all or part of the Interface in any way, including for private and domestic use;
· incorporate all or part of the Interface in any other webpage, site, application or other digital or non-digital format; or
· copy, alter, use or otherwise deal in iLysium PTY LTD’s trademarks without the prior written consent of iLysium PTY LTD.
DRINKZ and the DRINKZ logo are registered Trademarks owned by iLysium PTY LTD. Any breach of the Trademark Act in relation to the DRINKZ or DRINKZ logo Trademark will result in legal action.
15. Complaints about the Interface
· In the event of a dispute with another User or Venue, Both the User and Venue agrees to work in good faith to resolve the dispute. User agrees and acknowledges that any such dispute is to be resolved by Users and Venues amongst themselves directly, without the involvement of iLysium PTY LTD in any way whatsoever.
· If User or Venue has a complaint in connection with the Interface for which they consider that iLysium PTY LTD is liable, User or Venue must report it in writing to iLysium PTY LTD within 10 days of the circumstances giving rise to the complaint first occurring. iLysium PTY LTD may or may not, at its sole discretion, investigate User’s or Venues complaint, depending on the nature of the complaint.
· If User or Venue is not satisfied with iLysium PTY LTD’s action in relation to a complaint, User or Venue must formally notify iLysium PTY LTD of the complaint with a written notice which includes, or is accompanied by, full and detailed particulars of the complaint.
· Within 10 days after such a notice is given, a representative of iLysium PTY LTD will respond to the Complaint Notice in writing.
· In accordance with this section, and to the fullest extent available under the law, User and Venue agrees not to bring any court or tribunal proceedings against iLysium PTY LTD in respect of any complaint unless User or Venue complies with the requirements of this clause (but subject always to any rights User or venue may have under the Competition and Consumer Act 2010 (Cth) or any equivalent legislation).
16. Exclusion of express warranties
User and Venue uses the Interface at its own risk. iLysium PTY LTD makes no warranties or guarantees, implied or express:
· that the Interface will be accessible at all times, uninterrupted or error free;
· that the Interface is without bugs or viruses;
· that the Interface is immune to unauthorised access or security breach; and
· in respect of the retention of, or continued accessibility of, any Data.
17. Limitation of liability
iLysium PTY LTD excludes all implied guarantees, conditions and warranties from the Terms and the Interface, except any Non Excludable Condition.
Limitation of Liability
User and Venue uses the Interface at its own risk. To the fullest extent permitted by law, iLysium PTY LTD excludes all other liability to User and Venue for any Costs, including Consequential Loss, suffered or incurred directly or indirectly by User or Venue in connection with the Terms or the Interface, including in connection with:
· the Interface being inaccessible to that User or venue for any reason;
· incorrect or corrupt Data, lost Data, or any inputs or outputs of the Interface;
· computer virus, trojan and other malware in connection with the Interface;
· security vulnerabilities in Interface or any breach of security that results in unauthorised access to or corruption of Data;
· the User and Venue or its failure to follow iLysium PTY LTD’s advice or instructions;
· irresponsible drinking;
· any personal injury or death arising directly or indirectly in connection with the Interface;
· any loss or damage to property arising directly or indirectly in connection with the Terms;
· any act or omission of the iLysium PTY LTD, its personnel or any related body corporate under or in relation to the Terms;
· the iLysium PTY LTD’s breach of the Terms;
· the termination of the Terms;
· the User’s and Venue’s failure to fulfil its obligations under the Terms; and
· any delay in the provision of the Interface.
Non Excludable Condition
Where a Non Excludable Condition is deemed to apply, to the fullest extent possible under the law, iLysium PTY LTD limits its liability for any breach to:
· in the case of goods:
o the re-supply of the goods or payment of the cost of the re-supply of the goods; or
o the replacement or repair of the goods or payment of the cost of replacement or repair of the goods; and
· in the case of services:
o the re-supply of the services affected by the breach; or
o the payment of the cost of such re-supply of the services.
18. Limitations and exclusions subject to the law
All limitations and exclusions in the Terms:
· are subject to Non Excludable Conditions to the extent of any inconsistency;
· apply to the fullest extent permissible by the law; and
· apply however the excluded, limited, or indemnified Costs are caused, whether they arise in contract, tort (including by iLysium PTY LTD’s negligence), or under statute.
User and Venue indemnifies the Indemnified against all Costs suffered or incurred by the Indemnified, however caused, arising wholly or partially, directly or indirectly, in connection with the Terms or User’s and Venues use of the Interface, including any Costs arising directly or indirectly from:
· User’s breach of the Terms;
· User, Venue or any authorised user's infringement of any third party Intellectual Property Rights while using the Interface;
· Venue’s breach of the Terms;
· iLysium PTY LTD’s enforcement of its rights in connection with the Terms, including legal costs on a full indemnity basis;
· any harm to, claim or action by a third party arising directly or indirectly from the User’s or Venue’s use of the Interface;
· any personal injury or death arising directly or indirectly out of the User’s or Venue’s conduct;
· any damage to property arising directly or indirectly out of the User’s or Venue’s conduct;
· any negligent or unlawful act or omission by the User or Venue in connection with the Interface;
· iLysium PTY LTD’s or a third party’s reliance on a misleading representation made by a User or Venue;
· a contract in force between the User and Venue or a third party connected with the Interface;
· the User’s breach of privacy law;
· the User’s storing Data on the Interface;
· the Venue’s breach of privacy law;
· the Venue’s storing Data on the Interface;
· providing access to Data, or a subset of the Data, to a person who has requested such access in accordance with privacy law;
· the iLysium PTY LTD being obligated to correct Data upon request by a person in accordance with privacy law;
· any complaints process initiated by a person under privacy law; or
· any other cost incurred by the iLysium PTY LTD as a result of a person pursuing rights conferred upon them by privacy law.
20. Conditions of indemnity
· The indemnities in the Terms are subject to Non Excludable Conditions to the extent of any inconsistency, and apply to the fullest extent permissible by law.
· The Indemnified may make a claim under indemnities in the Terms in relation to a Cost before having incurred the Cost, or before making a payment in relation to the Cost.
· The indemnities in the Terms shall be in addition to any damages for breach of contract to which iLysium PTY LTD may be entitled. Nothing in the indemnities in the Terms will be construed so as to prevent iLysium PTY LTD from claiming damages in relation to User’s or Venue’s breach of any term of the Terms.
The parties agree that any breach or threatened breach by the User of a Key Obligation may cause iLysium PTY LTD immediate and irreparable harm for which damages alone may not be an adequate remedy.
· To make the User or Venue perform a Key Obligation, or to stop the User or Venue from breaching a Key Obligation, iLysium PTY LTD has the right to apply to a court for:
o an injunction;
o an order of specific performance; or
o another remedy available in law or in equity.
· iLysium PTY LTD can make such an application before or after the breach takes place.
· Either the User, Venue or iLysium PTY LTD may end the agreement arising from the Terms immediately for any reason by giving the other party written notice including email.
· Where the Terms have been terminated, the User or Venue must immediately cease to use the Interface and delete it from the User’s or Venue’s devices.
· Termination of the Terms does not affect the parties’ rights in respect of periods before the termination of the agreement.
· After termination, iLysium PTY LTD will continue to have the right, but not the obligation, to monitor Posted Content on the Interface, to determine compliance with the Terms and any other operating rules established by iLysium PTY LTD.
· Communications must be in writing.
· Either party may serve any Communication on the other party by sending it to that party’s email address.
· A Communication by email will be taken to have been received by the addressee 24 hours after the email was sent, unless the party sending the email knows or reasonably ought to suspect that the email was not delivered to the addressee's domain specified in the email address.
· The email for Provider iLysium PTY LTD is firstname.lastname@example.org.
· iLysium PTY LTD reserves the right to send User and Venue push notifications.
· This topic states that the Provider may make minor changes to assist with fairness and accuracy of the Terms at its sole discretion - by providing User with a period of notice that iLysium PTY LTD determines to be reasonable.
· If User or Venue chooses to unsubscribe from iLysium PTY LTD’s mailing list, iLysium PTY LTD will not have the ability to notify User or Venue of changes to the Terms, and it will be User’s or Venues responsibility to regularly check the Terms located on the DRINKZ website.
· By continuing to use the Interface after an amendment to the Terms, User and Venue agrees to be bound by the Terms as amended.
25. Relationship of parties
The relationship between iLysium PTY LTD and User under any Terms does not form a joint venture or partnership.
The relationship between iLysium PTY LTD and Venue under any Terms does not form a joint venture or partnership.
26. Assignment and Novation
User or Venue cannot assign, novate or otherwise transfer any of its rights or obligations under the Terms without the prior written consent of iLysium PTY LTD.
iLysium PTY LTD may assign, novate or otherwise transfer any of its rights or obligations under any Terms to a third party without notice to, or the prior consent of, User or Venue but if iLysium PTY LTD requires, User or Venue will sign any documents to give effect to an assignment, novation or transfer by iLysium PTY LTD under this clause.
27. Governing law
The laws of the state of Queensland govern the Terms and each party submits to the non-exclusive jurisdiction of the courts in that jurisdiction.
28. General and interpretation
The parties agree to do everything required to give full effect to the Terms.
The Terms and any other document incorporated by reference constitute the entire legal agreement. The parties agree that they have not relied on any representation or statements outside the terms of the Terms.
The documents constituting the Terms may be executed in a multiple counterparts. The counterparts will be read as one legal document.
No right or obligation under the Terms will be waived unless the waiver is explicitly waived in writing.
Any unenforceable or invalid term of the Terms will be severed to the extent of the unenforceability or invalidity without affecting any other term in the Terms.
Binding on successors
The Terms are binding on each party's successors and permitted assigns.
The parties will cover their own expenses in preparing the Terms documents.
Unless the terms and conditions of the Terms explicitly state otherwise, the Terms will be interpreted as follows:
· a reference to a party includes that party's permitted assigns, administrators, successors, executors, legal representatives and any novated party;
· any reference to a trustee includes any substituted or additional trustee;
· unless used for the usual grammatical purpose, inverted commas around a term indicate industry jargon that will be interpreted according to how that term would be understood by an individual with expertise in the relevant industry;
· "including", "includes" or any derivation of those words does not limit the matter in question to the things specifically mentioned in the applicable context;
· where a term is defined, other grammatical forms of that term will be taken to have the same meaning;
· headings are for convenience and will not affect interpretation;
· words in the singular will be taken to include the plural and also the opposite;
· "$" means the Australian dollar;
· a reference to a document will be to that document as updated, varied or amended;
· a document referenced by the Terms will not take precedence over the referencing document;
· when any kind of legislative instrument is referenced, the reference will be taken to be that instrument as updated or substituted for by the legislative body in any way;
· where a "URL" is mentioned, the non-operation of the "URL" will not render the rights and obligations associated with it invalid;
· any referenced digital resource may be replaced with another digital resource that is a "copy" of the original resource;
· a reference to a party's conduct includes omissions as well as acts;
· if a party is described as having discretion in a matter, the discretion in that matter will be interpreted as sole and absolute; and
· where a party is required to do "anything necessary", this includes executing agreements and other legal instruments.
means a membership account on the Interface.
means any written communication including each notice, consent, approval, request and demand under or in connection with the Terms.
means the notice provided by User or Venue to iLysium PTY LTD as described in the clause entitled "Complaints about the Interface".
means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than the cost of repair), loss of opportunity or expectation loss, and any other form of consequential, special, indirect, punitive or exemplary loss or damages.
means all information, graphics, HTML, text, software and materials on the Interface.
means any costs, expenses, losses, damages, claims, demands, proceedings, and other liability.
means information that User uploads to the Interface including account registration information, Personal Information and Posted Content.
means iLysium PTY LTD and its directors, employees, contractors and agents.
Intellectual Property Right, Intellectual Property Rights
means all present and future rights conferred by statute, common law or equity in or in relation to business names, circuit layouts, computer software, confidential information, copyright, designs, domain names, formulas, inventions, knowhow, patents, plant varieties, recipes, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.
means DRINKZ Application. A reference to use of the Interface also refers to use of the Content.
Non Excludable Condition, Non Excludable Conditions
means any guarantee, condition or warranty (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded.
has the meaning given to that term in the Privacy Act 1988 (Cth).
means any Content that User or Venue uploads to the Interface.
means the legally binding contract arising between the parties composed of the terms and conditions in this document.
Third Party, Third Parties
means third party businesses, people and websites.
means you, the User, or entity that you are signing for, known in this document as the User.
means licensed premises: an establishment in which alcoholic beverages and tobacco are permitted to be retailed and consumed.