The Company provides the PoweredLocal free Wi-Fi solution consisting of complimentary Wi-Fi routers provided to venues for use by their customers, data collection services and PoweredLocal Platform for accessing that data. Use of the PoweredLocal solution is subject to these Terms of Service.
The following terms are used regularly throughout these Terms of Service and have a particular meaning:
**ABN** means Australian Business Number.
**Agreement** means the agreement formed between the Venues and the Company under, and on the terms of, these Device Terms of Service.
**Business Day** means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Melbourne, Australia.
**Company** means PoweredLocal Pty Ltd ABN 50 614 040 292.
**Device** means the WiFi device owned by the Company that attaches to the Venue’s modem/router and;
Collects User Data.
**Device Replacement Fee** means the Fee charged by the Company to the Venue in the event that the Device is not returned to the Company on Termination of this Agreement.
**End User** means a user that accesses the internet via the Device.
**Fee** means a fee charged by the Company for use of the Service.
**GST** has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
**Intellectual Property** means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.
**Modem** means the Venues modem or router through which the Device will provide access to the internet.
**PoweredLocal Platform** means the web service operated by the Company where the Customer can manage its account, available at www.poweredlocal.com.au
**PPSR** means the Personal Property Securities Register established under the Personal Property Securities Act 2009 (Cth).
**Privacy Act** means the Privacy Act 1988 (Cth).
**Terms of Service** means these Terms of Service, as updated from time-to-time.
**Service** means the use of the Device, PoweredLocal Platform and the licence of the User Data provided to the Venue on the terms of this Agreement.
**TPS** means an online third-party service provider with whom a User holds an account.
**User** means any registered Venue or End User, that uses any part of the Service.
**User Data** means data collected via the Device by the Company from an End User and accessible via the PoweredLocal Platform.
**Venue** means a registered user of the Service, that connects a Device to their Modem uses the features associated with a Venue account
1 USING THE SERVICE
To use the Service, the Venue must log into the Service and have set up their account.
Each person that registers as a Venue agrees and warrants that they are:
Duly authorised by the owner of the Modem and holder of the
internet account accessed by that Modem, to register the Venue
18 years of age or older.
The Service is only available to persons over the age of 18.
The Venue agrees that all use of the Service is subject to these Terms of Service.
The Venue shall be responsible for each End User’s use of the Service that the accessed the Internet via the Device connected to the Venue’s Modem.
The Company may re-possess the Device, suspend the account or restrict the access of any Venue to the PoweredLocal Platform that breaches the terms of this Agreement.
By accepting the terms of this Agreement the Venue also accepts:
The Service shall enable a Venue to:
Create a PoweredLocal Platform account as a Venue;
Use a Device to provide End Users with access to the internet via the Venue’s Modem; and
Access User Data collected from End User’s by the Device via the PoweredLocal Platform.
**1.3 Use of the Device**
The Company provides Devices to Venues either:
Free of charge, in which case the Venue generally has no access to premium marketing features; or
For a fee, in which case the Venue generally has access to premium marketing features, as advertised by the Company from time-to-time.
The Venue agrees that part of the consideration for its use of a Device shall be the User Data collected by the Company via the Device.
Before the Venue can use the Device, the Venue must activate it by:
Connecting the Device to the Venue’s Modem connected to the internet, and powering it on; and
Accepting this Agreement.
By activating the Device and accepting these Terms, the Company grants the Venue a licence to use the Device and any User Data provided by the Company to the Venue, for the term of this Agreement. The Device shall remain the property of the Company at all times, and the Venue may only use the Device in accordance with this Agreement.
The Venue is responsible for ensuring that:
The Device is correctly connected to the Modem;
The Modem remains connected to the internet;
Both the Modem and the Device remain connected to a power source; and
The Device and Modem remain subject to sufficient operating conditions in accordance with any manufacturer documentation.
The Venue shall bear all costs associated with the internet access that the Device provides to End Users including:
Internet service costs; and
The Company shall not be responsible to the Venue or any End User whatsoever, in the event that the Device ceases operation for any period of time due to:
Power to the device being interrupted for any reason;
Internet service being restricted or disconnected for any reason;
Device malfunction; or
Any other reason beyond the Company’s control.
In no event will the Company be liable to the Venue or any End User for an End User being unable to access the internet via the Device.
The Company may register its interest in the Device on the PPSR.
The Venue shall return the Device to the Company on termination of this Agreement or incur a Device Replacement Fee.
The Venue acknowledges that the internet may be accessed by End Users outside of the premises operated by the Venue where the Device is Located, and that the Company bears no responsibility for such an End User’s use of the Venue’s internet connection via the Device.
1.4 User Data
The Company shall collect User Data from the Device subject to:
The Device remaining operational and connected to the internet;
The Device remaining connected to the PoweredLocal Platform and/or servers;
The Company complying with the Privacy Act 1988 (Cth); and
The Company complying with such other laws or regulations as the Company may be required to.
The Company shall supply the User Data to the Venue in the form that it appears in the PoweredLocal Platform. In no event will the Company perform any additional services of editing or formatting the User Data for the Venue.
The Venue’s access to the User Data via the PoweredLocal Platform may be subject to any terms of service that apply to the PoweredLocal Platform.
The Company shall provide the User Data to the Venue in accordance with this Agreement but makes to warranty or representation as to the content, quality or usefulness of the User Data.
For the avoidance of doubt, under no circumstance shall the Company be liable to the Venue for failure to collect User Data due the Device or the PoweredLocal Platform not functioning correctly. The licence to User Data provided to the Venue under this agreement only applies to User Data that is collected and made available by the Company.
The Venue may only use the User Data for the purposes of marketing the Venue’s business. In no event may the Venue:
Sell or sub-licence the User Data; or
Use the User Data for any other purpose than marketing the Venue’s goods or services.
The Company is under no obligation to provide the Venue with access or a licence to user data collected for the Company’s other Venues.
Company shall not be liable to the Venue in relation to any User Data, including:
The content of the User Data; or
The Venues use of the User Data.
The licence or use of User Data by the Venue under this Agreement is limited to the duration of this Agreement only, and the Venue may not use any User Data for any purpose after the termination of this Agreement.
1.5 Network Data
As a necessary part of providing the Service, the User agrees the Company may scan for and collect information about the User’s network, internet connection, device type and location, including (without limitation) MAC addresses and IP addresses, and may access the Device via the User’s network.
1.6 Device Replacement Fee
The Venue shall return the Device to the Company on termination of this Agreement, or must pay the Company a Device Replacement Fee of $340.00 plus GST.
2 THIRD PARTY LOGIN AND INTEGRATION
**2.1 Registration & Login.**
A User may be able to register as a User, access the Service and use integrated features by connecting their account with certain third party services (TPS) (e.g, Facebook, Twitter etc).
As part of the functionality of the Service the User may connect their profile with a TPS by:
Providing their TPS login information to the Company through the Service; or
Allowing the Company to access their TPS in accordance with its terms & conditions of service.
When connecting to the Service using a TPS the User warrants that they are not in breach any of the TPS’ terms & conditions of service.
2.2 Ongoing Availability.
The User agrees that User access to the Service may be unavailable if the TPS becomes unavailable, and that the User may lose functionality or content that is shared between the TPS and the Service.
The User may disconnect the connection between the Service and the TPS at any time.
The Company has no relationship with any TPS and cannot guarantee the efficacy of any TPS connection.
2.3 Data from TPS.
Where a User connects and or registers their account using a TPS, the User authorises the Company to use data from that TPS to create the User’s profile within the Service.
**3 GENERAL CONDITIONS**
By accepting the terms and conditions of this Agreement, the Venue is granted a limited, non-exclusive and revocable licence to access and use the Service for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.
The Company may issue the licence to the Venue on the further terms or limitations (including the number of users or volume of use or transactions) as it sees fit.
The Company may revoke or suspend the Venue’s licence(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the Venue.
3.2 Modification of Terms
The terms of this Agreement may be updated by the Company from time-to-time.
Where the Company modifies the terms, it will provide the Venue with written notice, and the Venue will be required to accept the modified terms in order to continue using the Service.
3.3 The PoweredLocal Platform
The Venue agrees and accepts that the PoweredLocal Platform is:
Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the Company servers and is not available ‘locally’ from the Venue’s systems; and
Managed and supported exclusively by the Company from the Company servers and that no ‘back-end’ access to the PoweredLOcal Platform is available to the Venue unless expressly agreed in writing.
As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter the PoweredLocal Platform.
The Company provides user support for the Service via the email address firstname.lastname@example.org.
The Company shall endeavour to respond to all support requests within 1 Business Day.
The Venue authorises the Company to access the Venue’s premises, Modem and the Device for the purposes of providing support.
The Company may charge a Fee for any support services provided to a Venue. The Company shall advise the Venue of the cost of these support services prior to the costs being incurred.
3.5 Use & Availability
The Venue agrees that it shall only use the Service for legal purposes and shall not use it to engage in any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
The Venue is solely responsible for the security of its username and password for access to the Service. The Venue shall notify the Company as soon as it becomes aware of any unauthorised access of its the Service account.
The Venue agrees that the Company shall provide access to the Service to the best of its abilities, however:
Access to the Service may be prevented by issues outside of its control; and
It accepts no responsibility for ongoing access to the Service.
Company makes no warranty as to the suitability of Service in regards to the Venue’s privacy obligations at law or contract, and it is the Venue’s responsibility to determine whether the Service is appropriate for the Venue’s circumstances.
The Venue agrees to not use any personal information contained in the User Data (such as email addresses) for any purpose other than for which the information was submitted. This includes, but is not limited to:
Providing third-party access to personal information;
Selling personal information; and
Unsolicited communications (SPAM).
Security. The Company takes the security of the Service and the privacy of its Users very seriously. The Venue agrees that the Venue shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
Transmission. The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the Venue to ensure that any transmission standards meet the Venue’s operating and legal requirements.
Storage. The Company stores data on servers based in Australia according to accepted industry standards.
Backup. The Company shall perform backups of its entire systems in as reasonable manner at such times and intervals as is reasonable for its business purposes. The Company does not warrant that it is able to backup or recover specific User Data from any period of time unless so stated in writing by the Company.
3.8 Intellectual Property
Trademarks. The Company has moral & registered rights in its trade marks and the Venue shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the Venue agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The Venue warrants that it shall not infringe on any third-party rights through the use of the Service.
The Service. The Venue agrees and accepts that the Service is the Intellectual Property of the Company and the Venue further warrants that by using the Service the Venue will not:
Copy the Service or the services that it provides for the Venue’s own commercial purposes; and
Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in the Service or any documentation associated with it.
Content. All data submitted to the Company, whether via the Service or directly by other means, becomes and remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the Venue or any other party with respect to the Service.
3.9 Disclaimer of Third Party Services & Information
The Venue acknowledges that the Service is dependent on third-party services, including but not limited to:
Email services; and
The Venue agrees that the Company shall not be responsible or liable in any way for:
Interruptions to the availability of the Service due to third-party services; or
Information contained on any linked third party website.
3.10 Liability & Indemnity
The Venue agrees that it uses the Service at its own risk.
The Venue agrees that it has had reasonable opportunity to obtain legal advice on this Agreement.
The Venue indemnifies the Company for any claim arising from the Venue’s use of the Service including, but not limited to:
The Venue’s use of User Data; and
An End User’s access to the internet via the Device, including any act the End User may perform.
The Venue acknowledges that the Company is not responsible for the conduct or activities of any End User, and that the Company is not liable for such under any circumstances.
The Venue indemnifies the Company from any claim that may arise in relation to the Venue’s use of the solution by:
The Venue’s internet service provider; or
Any third-party that may be harmed by the Venue’s, or End User’s use of the Service.
In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the Venue’s or any End User’s access to, or use of, or inability to use the Service or any content, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.
Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
The re-supply of services or payment of the cost of re-supply of services; or
The replacement or repair of goods or payment of the cost of replacement or repair.
Either party may terminate this Agreement by giving the other party written notice.
Termination of this agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this agreement up to the date of expiry or termination.
Upon Termination the Venue shall promptly return the Device to the Company, or permit the Company access to the Venue’s premises to retrieve the Device. Failure to comply with clause shall incur a Device Replacement Fee.
Termination does not affect any of the rights accrued by a party prior to termination, and the rights and obligations under clauses 3.9, 3.12 and 3.13 survive termination of this Agreement.
3.12 Dispute Resolution
If any dispute arises between the parties in connection with this Agreement (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
Includes or is accompanied by full and detailed particulars of the Dispute; and
Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
Within 10 Business Days after a Dispute Notice is given, a representative of each party with the authority to resolve the dispute, must meet (virtually or otherwise) and seek to resolve the Dispute.
Subject to clause (d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.
The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
The Venue can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement. The Company will notify the Venue of a change of details from time-to-time.
The Company will send the Venue notices and other correspondence to the details that the Venue submits to the Company, or that the Venue notifies the Company of from time-to-time. It is the Venue’s responsibility to update its contact details as they change.
A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
Notices must be sent to the parties’ most recent known contact details.
The Venue may not assign or otherwise create an interest in this Agreement.
The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the Venue.
Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.
Prevalence. To the extent this Agreement is in conflict with, or inconsistent with any Special Conditions made under this Agreement, the terms of those Special Conditions shall prevail.
Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
Governing Law. This Agreement is governed by the laws of Victoria, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
Severability. Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.