TERMS OF USE

The terms and conditions of this Agreement govern your use of the services provided by Phyx Technologies Pty Ltd [ABN: 21632168426] (“We” or “Our” or “Us”), either by us or through our subsidiaries or licensees, via various electronic platforms such as the Phyx mobile application or any other platforms designated by us (“Portal”).

 

By accessing or using the Portal, you are indicating that you have read, understand and agree to be bound by the terms and conditions herein. If you do not agree with our terms, please do not use this Portal.

 

The Portal is a platform that enables our users to store and/or register their product and warranty information with us. Registered product and warranty information will be accessible by the warranty providers. You acknowledge that we are not responsible for any warranty claims and any claim shall be made directly with the warranty providers.

 

1. When you register an account with us

 

(1) To fully access or use the Portal, you are required to register for an account by providing, among others, your name, email address and password.

 

(2) You may post an image for the use of your online profile. By submitting such image, you represent and warrant that you are authorised to use such image and grants us the non-exclusive and royalty-free right to use the image.

 

(3) You shall provide us with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of the terms and condition of this Agreement, which may result in immediate termination of this Agreement.

 

(4) In registering an account, you shall not:

 

(i) select or use as an account a name of another person with the intent to impersonate that person;

(ii) use as an account a name subject to any rights of a person other than you without appropriate authorisation; or

(iii) use as an account a name that is otherwise offensive, vulgar or obscene.

(5) We reserve the right to refuse registration of, or cancel an account in our discretion. You shall be responsible for maintaining the confidentiality of your password.

 

(6) Unless specifically stated otherwise, the account is personal to you and cannot be shared with third parties or transferred to third parties.

 

(7) If we receive a notice of your demise, we will not be obliged to allow any access or use of your account by any person except upon production of administration letters from a competent authority or confirmed grant of letters of administration or confirmed grant of probate by your legal representatives duly appointed by a court of competent jurisdiction.

2. When you upload content to our Portal

 

(1) You understand that all information, images, pictures, data, text, music, sound, photographs, graphics, video, messages, or other materials ("Content"), whether publicly posted or privately transmitted, is the exclusive work and property of the person from whom such Content originated.

(2) We do not claim any permanent ownership of your Content. You retain copyright and any other rights you already hold in Content which you submit, post, upload or display on or through the Portal. When you submit, post, upload or display Content, you grant us a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license (and sub-licensable) to use, exploit and archive the Content in accordance with or as reasonably contemplated by this Agreement.

 

(3) When you post, submit, or upload Content on the Portal to us, you represent and warrant that:

 

  • you own all copyright in the Content, or if you are not the owner, that you have permission to use the Content, and that you have the right to display and reproduce the Content via the Portal. You license us to use and sub-license the Content in accordance with this Agreement;

  • you and your Content do not and will not infringe the intellectual property rights or other rights of any person or entity, including copyright, moral rights, trade mark, patent or right of privacy;

  • you or your Content, and your use, storage, reproduction and display on the Portal will comply with all applicable law, rules and regulations;

  • your Content does not breach any of this Agreement; and

  • your Content is not misleading or deceptive.

 

3. Our guidelines to use this Portal

(1) The use of this Portal is subject to our guidelines. You shall not use, allow, or enable others to use the Portal, or knowingly condone use of the Portal by others, in any manner that is, attempts to, or is likely to:

  • use any proxy internet protocol addresses (IPs) in order to attempt to hide the use of multiple accounts, disrupt any of our services or to avoid being detected; 

  • be libelous, defamatory, indecent, vulgar or obscene, pornographic, sexually explicit or sexually suggestive, racially, culturally, or ethnically offensive, harmful, harassing, intimidating, threatening, hateful, objectionable, discriminatory, or abusive, or which may appear to impersonate anyone else;

  • affect us adversely or reflect negatively on us, the Portal, our goodwill, name or reputation or cause duress, distress or discomfort to us or anyone else, or discourage any person from using all or any portion, features or functions of the Portal, or from advertising, linking or becoming a supplier to us in connection with the Portal;

  • send or result in the transmission of junk e-mail, chain letters, duplicative or unsolicited messages, or so-called "spamming" and "phishing";

  • transmit, distribute or upload programs or material that contain malicious code, such as viruses, timebombs, cancelbots, worms, trojan horses, spyware, or other potentially harmful programs or other material or information;

  • violate any laws, regulations, judicial or governmental order, any treaties or violate or infringe upon any intellectual property rights, rights of publicity or privacy, or any other rights of ours or of any other person;

  • gain unauthorised access to the Portal, other users' accounts, names, passwords, personally identifiable information or other computers, websites or pages, connected or linked to the Portal or to use the Portal in any manner which violates or is inconsistent with the terms and conditions of this Agreement;

  • modify, disrupt, impair, alter or interfere with the use, features, functions, operation or maintenance of the Portal or the rights or use and enjoyment of the Portal by any other person;

  • collect, obtain, compile, gather, transmit, reproduce, delete, revise, view or display any material or information, whether personally identifiable or not, posted by or concerning any other person, in connection with their or your use of the Portal, unless you have obtained the express, prior permission of such other person to do so;

  • “stalk” or otherwise harass another;

  • interfere with other user's posts;

  • circumvent or manipulate our fee structure, the billing process, or fees owed to us;

  • post or provide false, inaccurate, misleading, incomplete, defamatory or libelous content;

  • take any action that may undermine any ratings system that we may use;    

  • transfer your account and user identification to another party without our consent;

  • copy, modify, or distribute (i) content from any websites or (ii) any of our copyright or trademarks;

  • harvest or otherwise collect information about users, including email addresses, without their consent;

  • forge headers, icons or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Portal;

  • upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements).

(2) While we prohibit such conduct and content on our Portal, you understand and agree that we cannot be responsible for the content posted on our Portal and you nonetheless may be exposed to such materials and that you use the Portal at your own risk.

 

(3) We do not manually screen content or control before it is displayed on the Portal so occasionally users may inadvertently or deliberately submit and display content that breaches this Agreement. This means that you, and not us, are entirely responsible for all content that you upload, post, email, transmit or otherwise make available via the Portal.

 

(4) You may be exposed to content that is offensive, indecent or objectionable. Under no circumstances, we will be liable in any way for any content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any content posted, emailed, transmitted or otherwise made available via the Portal.

 

(5) We reserve the right, in our sole discretion, to reject, edit or refuse to post any content and to remove any content from the Portal, whether or not the content is expressly prohibited by this Agreement, or to restrict, suspend, or terminate your access to all or any part of the services at any time, for any or no reason, with or without prior notice, and without liability.

 

(6) You agree to adhere to our guidelines and if you fail to do so, we reserve our right to suspend or terminate your account. We also reserve our rights to introduce, change or amend our guidelines from time to time.

4. Do you provide support on behalf of the warranty provider?

 

(1) We are not obligated to provide you with any support for the use of the Portal, including, without limitation, in connection with the product warranty.

(2) Any claim and/or demand for service and/or support and/or repair that you have in connection to the product warranty may be referred by you to the warranty provider.

 

(3) Any product/warranty registration and the service provided in accordance with the product warranty are subject to the sole discretion, and are in the exclusive responsibility, of the product warranty provider. We are not and will not bear any responsibility and/or liability in this regard.

 

 

5. How we deal with personal information?

 

When you use the Portal, we will collect, store and use certain information as described in our Privacy Policy. If you do not agree to such provisions, please do not use the Portal.

 

 

6. How we deal with confidential information?

(1) You will not disclose or use our Confidential Information.

 

(2) “Confidential Information” means any information disclosed or made available to you by us, directly or indirectly, whether in writing, orally or visually. It includes but is not limited to all information contained within our reporting systems and other performance metrics and any other technical or programming information we disclose or make available to you.

 

(3) However, Confidential Information does not include information other than information that:

 

(a) is or becomes publicly known and generally available other than through your action or inaction; or

(b) was already in your possession (as documented by written records) without confidentiality restrictions before you received it from us.

 

(4) You acknowledge, consent and agree that we may access, preserve and disclose your account information and Content if required to do so by law or in good faith believe that such access preservation or disclosure is reasonably necessary to:

 

(i) comply with legal process;

(ii) enforce this Agreement;

(iii) respond to claims that any Content violates the rights of third parties;

(iv) respond to your requests for customer service; or

(v) protect our rights, property or personal safety, our users and the public.

 

 

7. Our liability to you when you use our Portal

(1) You expressly agree that we, our directors, officers, shareholders, employees, representatives, consultants, agents, suppliers, and/or distributors will not be liable for any loss of profits, data or costs of procurement of substitute goods or services, or for any other indirect, special, incidental, punitive, consequential damages arising out of or in connection with this Agreement or other intangible losses, however caused, and under whatever cause of action or theory of liability brought, even if we have been advised of the possibility of such damages, resulting from

 

(i) your access to or use of or inability to access or use the Portal;

(ii) any conduct or content of any third party on this Portal, including without limitation, any defamatory, offensive or illegal conduct of other users or third parties;

(iii) any Content obtained from this Portal; and

(iv) unauthorised access, use or alteration of your transmissions or Content, whether based on warranty, contract, tort (including negligence) or any other legal theory, whether or not we have been informed of the possibility of such damage, and even if a remedy set forth herein is found to have failed of its essential purpose.

(2) If you are dissatisfied with any aspect of this Portal, or with any of these terms of use, your sole and exclusive remedy is to discontinue your access and/or use of this Portal. This limitation of liability shall apply to the maximum extent permitted by law.

 

(3) You must take your own precautions to ensure that the process that you employ for accessing this Portal and our service does not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage your own computer system. We do not accept responsibility for any interference or damage to any computer system that arises in connection with your use of this Portal or any linked website.

 

 

8. Dispute with product warranty provider

If you have a dispute with the product warranty provider, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In that regard, you specifically acknowledge that your warranty, if and when validated as well as accepted by the warranty provider, is subject to all terms and conditions applicable to that warranty or that product.

 

 

9. Our Intellectual Property Rights

(1) You acknowledge that we own all right, title and interest, including without limitation all Intellectual Property Rights (as defined below), in and to the Portal, and that you will not acquire any rights, titles, or interests in or to the Portal except as expressly set forth in this Agreement.

 

(2) You will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any of our services, software, or documentation, or create or attempt to create a substitute or similar service or product through use of or access to the Portal or proprietary information related thereto.

 

(3) You will not remove, obscure, or alter our copyright notice or other proprietary rights notices affixed to or contained in the Portal.

 

(4) "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trade mark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide.

 

 

10. Marketing and Notifications

We will send you information containing advertisements and promotions of our affiliates and partners if you have registered an account with us. We will also send you notification relating to on-going activities on the Portal or to inform you about new products or services provided by us.

 

You may unsubscribe by contacting us or using the unsubscribe option in the email updates that we forward to you.

 

 

11. When can we suspend or terminate your account?

 

(1) We may suspend or terminate your access to all or any part of the Portal at any time, with or without cause, effective immediately. You may terminate your use of the Portal at any time, provided that all provisions of this Agreement, which shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

 

(2) We will suspend or terminate your access to the site if you are determined to be, in our sole discretion, a repeat infringer of this Agreement.

 

(3) We also reserve the right to suspend or cancel your account that has been inactive for extended periods of time.

 

(4) We may, but shall not be obligated to, give you one warning if you have violated this Agreement prior to suspension or termination of your account.

 

12. What happens after termination?

 

In the event that this Agreement terminates for whatsoever reasons, the following shall be applicable:

 

(a) your access to or use of the Portal shall immediately terminate;

(b) you shall continue to comply with all of the obligations on your part under this Agreement which are not affected by termination;

(c) we reserve the right to permanently disposed and deleted any data held in the Portal without further reference to you; and

(d) any claim which either party may have against the other in respect of any breach or non-performance or repudiation of any of the provisions of this Agreement which shall have occurred prior to such termination shall not be affected or prejudiced and all rights of termination under this Agreement.

13. What happens if there is a dispute between us?

 

This Agreement will be governed by the laws of Australia and parties agree that any dispute or claim between you and us will be adjudicated in the courts in Australia. Any claim against us arising from the Agreement shall be adjudicated on an individual basis, and shall not be consolidated in any proceeding with any claim or controversy of any other party.

 

 

14. Can we modify this agreement?

 

(1) We reserve the right to change our terms and conditions herein from time to time. We may change any or all aspects of services provided by the Portal at any time and without notice. Nothing in this Agreement will constrain how we operate our business. You shall be responsible for reviewing and becoming familiar with any such modifications.

 

(2) If the alterations constitute a material change to our terms and conditions, we will notify you by posting a notification on this Portal. Use of the services by you following such notification constitutes your acceptance of the terms and conditions of the terms and conditions as modified.

 

(3) What constitutes a "material change" will be determined at our sole discretion, in good faith and using common sense and reasonable judgment.

 

 

15. General terms

(1) You agree to indemnify, defend and hold us, our agents, affiliates, shareholders, subsidiaries, directors, officers, employees, and applicable third parties (e.g. syndication partners, licensors, licensees, consultants and contractors) [collectively “Indemnified Person(s)”] harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s), arising out of, related to or which may arise from your use of the Portal and/or your breach of any term of this Agreement.

(2) This Portal may contain links to third-party web sites (“Third-Party Sites”) and third-party content (“Third-Party Content”) as a service to those interested in this information. You use links to Third-Party Sites, and any Third-Party Content therein, at your own risk. We do not monitor or have any control over, and make no claim or representation regarding, Third-Party Content or Third-Party Sites. We provide these links only as a convenience, and a link to a Third-Party Site or Third-Party Content does not imply our endorsement, adoption or sponsorship of, or affiliation with, such Third-Party Site or Third-Party Content.

(3) No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.

 

(4) If any of these terms and conditions of this Agreement is unenforceable (including any provision in which we exclude our liability to you), the enforceability of any other part of this Agreement will not be affected.

 

(5) You hereby acknowledge that the terms and conditions herein are not exhaustive and that we reserve the right to add, modify or delete any of the above terms and conditions and any such additions, modifications or deletions shall be binding on me/us and be deemed to have come to my/our attention by their being displayed on the Portal.

 

(6) In our sole discretion, we may assign this Agreement without notice to you. Headings are for reference purposes only and do not limit the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this Agreement.

 

(7) We do not represent or warrant that:-

  • access to the Portal or any part of it, will be uninterrupted, reliable or fault-free; or

  • the Portal or any of its contents will be accurate, complete or reliable.

(8) We do not guarantee or warrant that the data stored in our server or generated by the Portal will be backed up. You shall be responsible for keeping an independent backup of all data stored or generated. You are also responsible for maintaining accurate data. However, in the event that your records do not correspond with our records, the latter shall prevail.

 

If you have any thoughts or recommendations on how we can improve our terms, please write to us at enquiry@phyxapp.com.

 

Last updated 1 May 2019

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