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© 2017-2018. AFFYNITY. All rights reserved

BUSINESS TERMS & CONDITIONS 

 

These Business Terms and Conditions (Terms) are between Affynity Pty Ltd (ACN 611 870 270) (referred to as Affynity HQ) and each business (referred to as a Business) using the Affynity HQ mobile application (Application) and related services (Affynity HQ and each Business collectively referred to as the Parties). 

If the Business does not agree to these Terms and the Application Terms and Conditions, then the Business should uninstall and/or cease to access and use this Application immediately. If the Business is agreeing to these Terms on behalf of an entity, including but not limited to a company or another organisation, the Business represents and warrants that they have the power and authority to enter into these Terms and bind such entity and act on behalf of any person who uses the Services.

 

1. Eligibility and Basis of Use

  • These Terms supplement and are incorporated into the Affynity HQ Application Terms and Conditions between Affynity HQ and each user, including the Business (User) that installs, accesses or otherwise uses the Application. www.affynityhq.com/terms-and-conditions  Each Business acknowledges: it has read, understands and agrees to be bound by these Terms and the Application Terms and Conditions; and it will use the Application in accordance these Terms, the Application Terms and Conditions and any policies as notified by Affynity HQ to the Business from time to time. The Terms are also available on the website www.affynityhq.com (Website).

  • Using the Application may be prohibited or restricted in certain countries.  If the Business uses the Application outside of Australia, the Business is responsible for complying with the laws and regulations of the territory from which the Business accesses or uses the Application.

  • Affynity HQ reserves the right to make changes to these Terms at any time, effective upon the posting of the modified Terms. Affynity HQ will give each Business 14 days’ notice of such change to the Terms via email. It is the Business’s obligation to ensure that they have read, understood and agree to the most recent Terms available on the Application. If a Business does not agree to the Terms, they should cease accessing and using the Application immediately.

 

2. Registration

  • Access to the Application will require a Business to: (i) register for an account (Account) and provide basic information regarding the Business and any applicable User (User Information) in accordance with the Application Terms and Conditions; and (ii) purchase a subscription on their Account (Subscription) for a period of time as set out on the Application (Subscription Period). The fees for each Subscription Period may vary subject to the functionalities and services you request on the Application (Subscription Fee).

  • Each Business agrees to provide accurate, current and complete information during the registration process and update such information to keep it accurate, current and complete. Affynity HQ reserves the right to suspend or terminate any Account and a Business’s access to the Application if any information provided to Affynity HQ proves to be inaccurate, not current or incomplete.

  • It is the Business’s responsibility to keep its Account details and password confidential. The Business is liable for all activity on its Account. The Business agrees that it will not disclose its password to any third party and that it will take sole responsibility for any activities or actions under its Account, whether or not it has authorised such activities or actions. For security reasons, Affynity HQ recommends each Business changes its password regularly.

  • Each Business must immediately notify Affynity HQ of any unauthorised use of its Account.

 

3. Application and Services

  • The Application provides a platform for Businesses to post, promote sale of tickets, register, browse or otherwise view events listed on the App (Events). Events will appear on the Application subject to a User’s location, selected preferences and other search criteria submitted or selected by a User.

  • If a Business posts an Event:

the Business acknowledges and agrees it is responsible for complying with all laws and regulations related to its access and use of the Application and any data made available via the Application including but not limited to the Privacy Act 1988 (Cth), the Spam Act 2003 (Cth), the Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any other applicable legislation, regulations or rules the Business may have to consumers under Australian law; and

any agreement or terms and conditions agreed to are between the Business and the User(s) registering for an Event. Affynity HQ is not a party to that agreement. Affynity HQ is not a referrer or booking agent, and provides no such related services. Affynity HQ has no control over the conduct of a Business or any other User of the App. Affynity HQ disclaims all liability in this regard, as set out in these Terms.

  • Any arrangement between a Business and a User is solely between such Business and the applicable User. It is strictly and expressly not part of the User’s agreement with Affynity HQ. Each Business acknowledges and agrees that the responsibilities of Affynity HQ are limited to facilitating the availability of the App and Services.

 

4. Copyright and Intellectual Property

  • All code, slogans, content, designs, diagrams, drawings, graphics, images, photographs, layouts, appearance, videos, ideas, methods, databases, algorithms, software, documents, domain names, confidential information, registered and unregistered Affynity HQ trademarks, copyright, patents, know-how, trade secrets, and any other proprietary or industrial rights relating to Affynity HQ whether such rights are capable of being registered or not (collectively Intellectual Property), including but not limited to all creative and literary works displayed on the Application, the layout, content, appearance and look of the Application, together with any application for registration and any rights to registration or renewal anywhere in the world, whether created before, on or after the date of these Terms and whether used or contained in the Application is owned or otherwise licensed to Affynity HQ, its successors and permitted assigns.

  • Each Business acknowledges and agrees the Intellectual Property, Application, any content associated with the Application including but not limited to User Content are protected by copyright, trade mark, patent, trade secret, international treaties, laws and other proprietary rights, and also may have security components that protect digital information only as authorised by Affynity HQ or the owner of the Content.

  • The name Affynity HQ, Affynity HQ logo and other related Affynity HQ material used in connection with the Application are unregistered or registered trademarks of Affynity HQ (collectively Affynity HQ Marks).

  • Other trademarks, service marks, graphics and logos used in connection with the Application are the trademarks of their respective owners (collectively Third Party Marks).

  • The Intellectual Property, Affynity HQ Marks and Third Party Marks may not be copied, imitated or used, in whole or in part, without the prior written permission of Affynity HQ or the applicable trademark holder. 

  • Businesses do not obtain any interest or licence in the Intellectual Property, Affynity HQ Marks or Third Party Marks without the prior written permission of Affynity HQ or the applicable trademark holder. Users may not do anything which interferes with or breaches the Intellectual Property rights.  

 

5. Business Warranties

  • By using the Application, each Business warrants that:

they have the power and authority to enter into the Terms and to use the Application  in accordance with the Terms; 

they have secured any and all authorisation and rights to upload, submit or otherwise use any intellectual property used for an Event as applicable;

any Business Information or other registration information they submit is truthful and accurate and they will maintain the accuracy of such information; and

their use of the Application does not violate any applicable law or regulation.

  • As a condition of use for the Application, each Business agrees:

to abide by the Terms; 

not to provide the Application to any third party; 

that Affynity HQ has the right to refuse a Business any and all current or future use of the Application; and 

that Affynity HQ reserves the right to include or exclude entry to, or remove a Business from the Application.

6. Payment

  • Each Business agrees to pay the Subscription Fee as required for access and use of the Application using their Account.

  • Each Business acknowledges and agree that:

to maintain their subscription, payment to Affynity HQ will be made in advance on a monthly payment date from their nominated credit card; and

if Affynity HQ or its third party payment processor is unable to take payment, Affynity HQ will attempt to contact the Business via email as soon as it becomes aware of the payment failure. Until payment is confirmed, the Business’s Account may be locked and the Business will not be able to access or use the Application and any features or functionalities therein.

  • Each Business agrees to make payment via PayPal or other third party processors as identified in the Application.

  • If the Business makes payment by credit card, the Business warrants that the information they provide to Affynity HQ or its third party payment processor is true and complete, that they are authorised to use the credit card to make the payment, that their payment will be honoured by their card issuer, and that they will maintain sufficient funds in their account to cover the purchase price.  

  • All amounts are stated in Australian dollars and unless otherwise stated, all amounts are exclusive of GST.

  • Affynity’s HQ pricing structure or payment methods may be amended from time to time in Affynity’s HQ sole discretion.  

 

7. Cancellation and Termination

  • To terminate an Account, each Business must contact Affynity HQ at accounttermination@affynity.net. The Business’s access to their Account will be terminated at the end of the billing cycle, and automatic payments will cease at the end of the month that Affynity HQ is notified of the Business’s intention to terminate. 

  • It is the Business’s responsibility to retrieve all relevant data from their Account prior to termination.

  • Affynity HQ may terminate these Terms and the Business’s Account immediately, in its sole discretion, if:

the Business breach any provision of these Terms and do not remedy the breach within a reasonable period after receiving notice of the breach if the breach is capable of being remedied; 

Affynity HQ reasonably suspects that the Business is attempting to decipher, decompile, disassemble or reverse engineer the Application; 

Affynity HQ considers that a request for an Account or Subscription is inappropriate, improper or unlawful; or 

for any other reason outside Affynity HQ’s control which has the effect of compromising Affynity HQ’s ability to provide the Business with the Application, access to the relevant functionalities and any related services within a reasonable timeframe. 

  • On termination of these Terms, Affynity HQ may retain the Business’s data or any Business Information and related documents (including copies) as required by law or regulatory requirements. The Business authorises Affynity HQ to retain or destroy such User Information, data and related documents in accordance with the statutory periods, or on termination of these Terms.

 

8. User Information and Security

  • The Application may require the transmission of information provided by the Business including but not limited to User Information.

  • The Business consents to the transmission of User Information to Affynity HQ, its agents and/or service providers and authorises Affynity HQ, its agents and/or service providers to record, process and store such User Information as necessary for the Application functionality and for purposes described in the Affynity HQ Privacy Policy.

  • In the event of a breach of security, Affynity HQ will use reasonable endeavours to notify affected Businesses and cooperate with authorities regarding the breach.

  • The Business is solely responsible for maintaining the confidentiality and security of any User Information transmitted from or stored on the User’s Device or otherwise by the Business for the purposes of the Application, for all transactions and other activities via the Business’s Account, whether authorised or unauthorised. 

  • The Business agrees to immediately notify Affynity HQ of any unauthorised transactions or breach of security associated with the Application. Affynity HQ is not responsible for any losses arising out of the loss or theft of User Information transmitted from or stored on a Device or from unauthorized or fraudulent transactions associated with the Application.

  • The Application allows Users to upload photos, images, text including but not limited to, Business information, event descriptions, comments and other communications in connection with any Event and their Account (collectively, the User Content). User Content may be hosted, shared, and/or published as part of the Application, and may be visible to other Users. 

  • If a Business, via their User uploads any User Content, such User warrants that: 

they own or have the necessary licences, rights, consents, and permissions to use, and they authorise Affynity HQ to use all intellectual property rights in the User Content to enable inclusion and use of the User Content in the manner contemplated by the Application and these Terms; and 

where applicable, they have the written consent, release, and/or permission of each and every identifiable individual person in the User Content to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Content in the manner contemplated by the Application and these Terms. 

  • By submitting or otherwise uploading User Content to the Application, each Business hereby grants Affynity HQ a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display and otherwise use in connection with the Application and Affynity HQ (and its successor's) business, including without limitation for promoting and redistributing part or all of the Application (and derivative works thereof) in any media formats and through any media channels. The foregoing licence granted by the Business for any User Content terminates once the User removes or deletes such User Content from the Application.

  • Affynity HQ does not endorse any Event Submission, Private Posts or any opinion, recommendation, or advice expressed therein, and Affynity HQ expressly disclaims any and all liability in connection with Event Submissions and Private Posts. Affynity HQ also reserves the right to decide whether Content or an Event Submission is appropriate and complies with these Terms. Affynity HQ may remove such Event Submissions or Content and/or terminate a Business's access for uploading such material in violation of these Terms at any time, without prior notice and at its sole discretion.  

  • Each Business is solely responsible for the Event submitted and other information that they submit and are on the Application. 

  • The Business is solely responsible for User Content or other communications the User transmits onto third party platforms (such as Facebook and Twitter) using the Application and may be subject to third party terms and conditions. Affynity HQ does not guarantee any confidentiality with respect to such content.

 

9. Prohibited Use

The Application is limited to the contemplated functionality. Any use of the Application in any other manner, including, without limitation, resale, transfer, modification or distribution of the Application or text, pictures, music, barcodes, video, data, hyperlinks, displays and other content associated with the Application (Content) is prohibited. Each Business acknowledges and agrees that their use of the Application including the submission of any User Content must comply with these Terms and the Affynity HQ Policies. Each Business must not and agrees it will not:

  • violate these Terms;

  • harass, abuse, stalk, threaten, defame or otherwise interfere, infringe or violate the rights of any other party (including but not limited to rights of publicity or other proprietary rights); 

  • misuse the Application including but not limited to by using the Application in a manner that is unlawful, fraudulent, deceptive such as offering any Event it does not intend to honour or host; 

  • use technology or other means to access the Application, Website or Content that is not authorised by Affynity HQ; 

  • use or launch any automated system, including without limitation, robots, spiders, or offline readers, to access the Application, Website or Content; 

  • attempt to or tamper with, hinder or modify the Application, attempt to introduce viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality, knowingly transmit viruses or other disabling features, damages or interfere with the Application including but not limited to the use of trojan horses, viruses, or piracy or programming routines that may damage or interfere with the Application;

  • attempt to gain unauthorised access to Affynity HQ’s computer network or user accounts; 

  • encourage conduct that would constitute a criminal offense, or that gives rise to civil liability;

  • violate these Terms; 

  • attempt to damage, disable, overburden, or impair Affynity HQ’s servers or networks; 

  • fail to comply with applicable third party Terms;

  • post, upload, publish, submit or transmit any Content (including but not limited to Event Submissions) that:

infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights or rights of publicity or privacy;

is fraudulent, false, misleading or deceptive;

requests money from, or is intended to otherwise defraud other Users;

denigrates Affynity HQ or the Application;

transmits junk mail, chain letter, spam mail, spimming, phishing, trolling or other unauthorised mass transmission;

contains videos, images or media content of another person without his or her permission (or if such person is a minor, without the consent of the minor’s legal guardian);

is defamatory, abusive, obscene, pornographic, profane, vulgar, offensive, promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;

is violent or threatening or promotes violence or actions that are threatening or intimidating to any other person; or

promotes illegal or harmful activities or substances.

  • print, publish, modify, link to or distribute any Content from the Application or any other documentation that Affynity HQ provides to Users, unless Affynity HQ has authorised the Business in writing;

  • breach copyright or Intellectual Property rights, including but not limited to, that the Business must not republish, copy, distribute, transmit or publicly display material from the Application; alter or modify any of the code or the material on the Application; 

  • cause any of the Application to be framed or embedded in another website; 

  • use the Application for commercial purposes;

  • collect or harvest any personally identifiable information, including phone number, from the Application, nor to use the communication systems provided by the Application for any commercial solicitation or spam purposes;

  • modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell or re-sell any Application; or

  • facilitate or assist another person to do any of the above acts.

Affynity HQ reserve the right, in its sole discretion, to terminate these Terms, remove Content or assert legal action with respect to Content or use of the Application, that Affynity HQ reasonably believes is or might be in violation of these Terms or Affynity HQ Policies. Affynity HQ’s failure or delay in taking such actions does not constitute a waiver of Affynity HQ’s rights to enforce these Terms.

Upon termination of the Terms, Affynity HQ has no further obligation to the Business, and may cease to provide the Application to the Business.  The accrued rights, obligations and remedies of the Parties are not affected by the termination of the Terms.

 

10. Consumer Guarantee

  • The Application comes with consumer guarantees under the Australian Consumer Law in the Competition and Consumer Act 2010 (Cth) (ACL) that cannot be excluded, restricted or modified.  Similar consumer protection laws and regulation in other countries may provide consumers with similar guarantees. These Terms must be read subject to the ACL. If these statutory provisions apply, to the extent to which Affynity HQ are able to do so, the liability of Affynity HQ and its affiliates under those provisions will be limited, at its option to: 

in the case of goods, the replacement of the goods or the supply of equivalent goods; the repair of the goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and 

in the case of services, the supplying of the services again; or the payment of the cost of having the services supplied again.

 

11. Disclaimers

  • Affynity HQ provides the Application to the Business “as is”, and the Business is accessing and using the Application at their own risk.  

  • To the fullest extent allowable under applicable law, Affynity HQ disclaims all warranties, representations and conditions, whether express or implied, including any warranties, representations and conditions that the Application is merchantable, of satisfactory quality, reliable, accurate, complete, suitable or fit for a particular purpose or need, non-infringing or free of defects or errors or able to operate on an uninterrupted basis, or that the use of the Application by the Business is in compliance with laws applicable to the Business or that User Information transmitted in connection with the Application (including as part of online payment) will be successfully, accurately or securely transmitted.

  • Affynity HQ make no warranties or representations, express or implied, as to the timeliness, accuracy, quality, completeness or existence of the Content and information in the Application, technical accessibility, fitness or flawlessness of the Application, or that the Business’s use of the Application will not infringe rights of third parties.

  • Any material downloaded, displayed or otherwise obtained through the Application is accessed at the Business’s own discretion and risk. Each Business is solely responsible for any damages to their Device, or loss or corruption of data that results or may result from the access or download of any such material.

  • Affynity HQ does not endorse and has no control over the conduct of any User or a Business and disclaims all liability in this regard. Affynity HQ requires Users, and Businesses (as applicable) to confirm they have provided accurate information. 

  • Affynity HQ assumes no responsibility for a User’s compliance with any applicable laws, rules and regulations.

 

12. Limitation of Liability

  • The Business acknowledges and agrees, to the fullest extent permitted by law, in no event shall Affynity HQ and its parent or related bodies corporate: (i) be liable to the Business or any third party with respect to use of the Application, including without limitation participation in online payment; and (ii) be liable to the Business or any third party for any direct, indirect, special, incidental, punitive, consequential, or exemplary damages, including, without limitation, damages for loss of goodwill, lost profits, loss of earnings, loss of business opportunities, loss, theft or corruption of User Information, the inability to use the Application or Device failure or malfunction, however arising (including negligence) or otherwise arising in connection with: 

the use of the Application by the Business, including but not limited to damages resulting from or arising from the Business’s reliance on the Application, or the interruptions, errors, defects, delays in operation or other conduct by third parties, or any failure of performance of the Application; 

any unauthorised access to or use of Affynity HQ’s servers and /or any personal information or financial information stored therein;

any errors or omissions in any Content posted, emailed, transmitted or otherwise made available  or any offensive, defamatory or illegal Content;

the disclosure of any of the User’s information; 

the breach, or alleged breach, of any warranty, express or implied, relating to these Terms or any transaction; or 

Government restriction, strikes, war, any natural disaster or force majeure, or any other condition beyond Affynity HQ’s reasonable control. 

  • To the fullest extent allowable under applicable law, the Business’s sole remedy is to cease use of the Application or to cease participation in Subscription payment. 

  • To the fullest extent allowable under applicable law, (but subject to the maximum extent permitted by applicable law) the maximum aggregate liability of Affynity HQ and its parent or other affiliated companies to a Business, whether in contract, tort (including negligence), strict liability or other theory, arising out of or relating to the use of or inability to use the Application, is the amount that the Business pays, if any, to Affynity for access to or use of the Application during the six months period immediately prior to the event giving rise to such liability or one hundred dollars (AUD$100) if no such payments have been made, as applicable.

  • The limitation of liability reflects the allocation of risk between the parties. The limitations specified in this section will survive and apply even if any limited remedy specified in these terms is found to have failed of its essential purpose. The limitations of liability provided in these Terms inure to the benefit of Affynity.

 

13. Indemnity

  • By using the Application, each Business agrees to defend and indemnify and hold Affynity HQ (and its parent, 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 the Business’s use of or access to the Application; any breach by the Business of these Terms; any wilful, unlawful or negligent act or omission by the Business; and any violation by the Business of any applicable laws or the rights of any third party.

  • Affynity HQ reserve the right to assume the exclusive defence and control of any matter otherwise subject to indemnification by the Business, in which event the Business will cooperate in asserting any available defences. 

  • This defence and indemnification obligation will survive these Terms. These Terms, and any rights and licences granted hereunder, may not be transferred or assigned by the Business, but may be assigned by Affynity HQ without restriction.

 

14. General

  • Amendments: Affynity reserves the right to amend, change or modify these Terms or any other Affynity Policies related to use of the Application at any time and at its sole discretion by posting revisions on the Website. Continued use of the Application following the posting of these changes or modifications will constitute acceptance of such changes or modifications.  If any change or modification is unacceptable to the Business, the Business should cease accessing and using the Application immediately.  

  • Governing Law and Jurisdiction: This Application is governed by the laws of Queensland and the Commonwealth of Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Queensland.

  • Severability:  If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions, which continue in full force and effect.

  • Disputes: Each Business agrees to notify Affynity HQ of any dispute and use their best endeavours to resolve any dispute arising out of or relating to these Terms or with Affynity HQ, prior to resorting to any external dispute resolution process.

  • Entire Agreement and Understanding: In respect of the subject matter of the Terms, the Terms contain the entire understanding between the Parties. Any previous oral and written communications, representations, warranties or commitments are superseded by the Terms and do not affect the interpretation or meaning of the Terms and each of the Parties has relied entirely on its own enquiries before entering into the Terms.

For any questions or notice, please contact Affynity HQ at: 

Affynity Pty Ltd (ACN 611 870 270)

Level 3, 164 Grey Street

South Brisbane QLD 4101

 

Email:  accounts@affynity.net

Last update: 18 January 2017

 

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