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Tiny Twiga Studios Pty Ltd Mobile Applications Terms and Conditions-

 

APPLICATION TERMS & CONDITIONS

 

The Application is owned by Tiny Twiga Studios Pty Ltd (ABN 41 154 508 200) and the terms we, us, our and Tiny Twiga refer to Tiny Twiga Studios Pty Ltd.  The Terms user, you and your refer to users of the Application (each a User).

These terms and conditions (Terms) govern your use of this mobile application (Application). Use of this Application constitutes acceptance of these Terms, as may be revised by Tiny Twiga from time to time, which constitute a binding agreement between the user and Tiny Twiga governing the use of the Application.

 

1. Eligibility and Use

 

The Application may only be used by individuals aged eighteen (18) years or older who read and accept the Terms, or Users younger than eighteen (18)  years if you have your parent or guardian read and accept the Terms on your behalf and take responsibility for compliance with the Terms.

By downloading or using our Application, you acknowledge that you are eighteen (18) years or older, you have the right, authority and legal capacity to enter into this agreement and you have read, understood and agree to be bound by the Terms with respect to yourself and any minor authorised by you.

If you do not agree to these Terms you should uninstall and/or cease to use this Application immediately.

 

2. Additional Terms and Conditions

 

These Terms supplement and incorporate:

 

(a) the Tiny Twiga policies and terms and conditions (Tiny Twiga Policies) including any Terms of Use and Privacy Policy on the Tiny Twiga website, posted at http://www.tinytwigastudios.com.au (Site); and

(b) the Apple, Inc. (Apple) Terms and Conditions including, without limitation, the Licensed Application End User License Agreement provided therein (Apple Terms).

 

If any of the provisions of the Apple Terms, or any applicable Tiny Twiga Policies conflict with these Terms, these Terms have priority, solely to the extent such Terms apply to the Application.

 

3. Copyright and Intellectual Property

 

(a) Our Application contains material which is owned by or licensed to us (or our affiliates and/or third party licensors as applicable), and is protected by Australian and international laws, including but not limited to the trademarks, trade names, software, content, design, images, graphics, layout, appearance, layout and look of the Application.  Tiny Twiga, the Tiny Twiga logo, and other Tiny Twiga material used in connection with the Application are unregistered or registered trademarks of Tiny Twiga (collectively Tiny Twiga Marks).

 

(b) Intellectual Property includes all code, algorithms, copyright, fees, pricing, registered and unregistered Tiny Twiga Marks, logos, slogans, designs, audio tracks, information, images, photographs, patents, know-how, trade secrets, ideas, methods, diagrams, drawings, databases, notes, documents, confidential information and any other proprietary or industrial rights relating to Tiny Twiga (in each case whether registered or unregistered or whether capable of registration), together with any applications for registration and any rights to registration or renewal of such rights anywhere in the world and whether created before or after the date of these Terms; goodwill in the business and Application; trade, business company or organisation names; internet domain names; and Application content, images and layout.

 

(c)You agree that, as between you and us, we own all Intellectual Property rights in the Application, and that nothing in these Terms constitutes a transfer of any Intellectual Property rights.  We own the copyright which subsists in all creative and literary works displayed in the Application.  The Application is protected by copyright, trademark, patent, trade secret, international treaties, laws and other proprietary rights, and also may have security components that protect digital information only as authorized by Tiny Twiga or the owner of the content.

 

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

 

(e) The Intellectual Property, Tiny Twiga Marks and Third Party Marks may not be copied, imitated or used, in whole or in part, without the prior written permission of Tiny Twiga or the applicable trademark holder.

 

(f) Users do not obtain any interest or license in the Intellectual Property, Tiny Twiga Marks or Third Party Marks without the prior written permission of Tiny Twiga or the applicable trademark holder.  Users may not do anything which interferes with or breaches the Intellectual Property rights.

 

4. User License

 

(a) Subject to these Terms, Tiny Twiga grants the User a personal, non-exclusive, non-transferable, limited and revocable license to use the Application for your own personal and/or non-commercial use only on a computer or mobile device (each a Device) owned or controlled by User as permitted in accordance with these Terms (User License), and not to use the Application in any other way or for any other purpose, apart from local fair dealing legislation.  All other uses are prohibited without our prior written consent.

 

(bThe right to use the Application is licensed to you and are not being sold to you.  You have no rights in the Application other than to use it in accordance with these Terms.

 

(c) This Agreement and User License governs any updates to, or supplements or replacements for, this Application, unless separate Terms accompany such updates, supplements or replacements, in which case the separate Terms will apply.

 

5. User Warranties

 

(a) By using our Application, you warrant that you possess the legal capability and authority to enter into the Terms and to use the Application  in accordance with the Terms; you are at least 18 years old or if you are under 18 years old then you have the consent of your parent or guardian to use the Application and your parent or guardian has reviewed these Terms; any registration information you submit is truthful and accurate and you will maintain the accuracy of such information; and your use of our Application does not violate any applicable law or regulation.

 

(b) As a condition of your use of our Application you agree: to abide by the Terms; not to provide the Application to any third party; that Tiny Twiga has the right to refuse you any and all current or future use of the Site and that Tiny Twiga reserves the right to include or exclude entry to, or remove a User from the Site.

 

6. Online Payment

 

(a) The Application is available for purchase through Apple.  The price of our Application and payment methods are set out at the place of purchase, in the currency specified at the time of transaction.  Our pricing structure or payment methods may be amended from time to time in our sole discretion.

 

(b) In the absence of fraud or mistake, all payments made are final and you shall not have the right to cancel your purchase for any reason and further you agree to satisfy all such payments made, with exception to action taken under the Refund Policy set out below.

 

7. User Information and Security

 

(a) The Application may require the transmission of information provided by the User including user names and passwords, addresses, e-mail addresses and iTunes account details (User Information). If the User uses such Application functionality, the User consents to the transmission of User Information to Tiny Twiga, its agents and/or service providers and authorizes Tiny Twiga, 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 our Privacy Policy on our Site.

 

(b) User Information is stored securely.  If we are aware of a breach of security, we will notify affected users and we will cooperate with authorities regarding the breach.

 

(c) The User is solely responsible for maintenance of the confidentiality and security of any User Information transmitted from or stored on a Device for purposes of the Application, for all transactions and other activities in the User’s name, whether authorized or unauthorized.

 

(d) The User agrees to immediately notify us of any unauthorized transactions or breach of security associated with the Application. We are 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.

 

8. Acceptable Use and Prohibited Use

 

Use by the User of the Application and any Content and User Information transmitted in connection with the Application is limited to the contemplated functionality. Users are permitted to save digital images, export and print the images solely for their own personal, non-commercial use.

 

The User agrees that his or her use of the Application and any Content must comply with these Terms and the Tiny Twiga Policies.  In no event may the Application be used in a manner that:

 

(a) harasses, abuses, stalks, threatens, defames or otherwise interfere, infringe or violate the rights of any other party (including but not limited to rights of publicity or other proprietary rights);

 

(b) is unlawful, fraudulent or deceptive;

 

(c) uses technology or other means to access the Application, Site or content that is not authorized by us;

 

(d) uses or launch any automated system, including without limitation, robots, spiders, or offline readers, to access the Application, Site or Content;

 

(e) attempts to or tampers with, hinder or modify the Application, attempts 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;

 

(f) attempts to gain unauthorized access to our computer network or user accounts;

 

(g) encourages conduct that would constitute a criminal offense, or that gives rise to civil liability;

 

(h) violates these Terms;

 

(i) attempts to damage, disable, overburden, or impair our servers or networks;

 

(j) fails to comply with applicable third party Terms.; or

 

(k) facilitates or assists another person to do any of the above acts.

 

You must not:

 

(a) use the Application or images from the Application for commercial purposes, including to print, publish, modify, link to or distribute any content from the Application for any commercial purposes;

 

(b) breach copyright or Intellectual Property rights, including but not limited to, that you must not republish, copy, distribute, transmit or publicly display material from our Application for commercial purposes; alter or modify any of the code or the material on the Application;

 

(c) cause the Application or images from the Application to be framed or embedded in another website;

 

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

 

(e) facilitate or assist another person to do any of the above acts.

 

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.

 

We reserve the right, in our sole discretion, to terminate any User License, remove content or assert legal action with respect to content or use of the Application, that we reasonably believes is or might be in violation of these Terms or Tiny Twiga Policies.  Our failure or delay in taking such actions does not constitute a waiver of our rights to enforce these Terms.

 

Upon termination of the Terms, we have no further obligation to you, and may cease to provide the Application to you.  The accrued rights, obligations and remedies of the parties are not affected by the termination of the Terms.

 

9. Refund Policy

 

(a) Our Application comes with consumer guarantees under applicable local consumer law that cannot be excluded.

 

(b) Certain legislation, including Australian Consumer Law, may imply warranties or conditions or impose obligations upon us which cannot be excluded, restricted or modified or cannot be excluded, restricted or modified except to a limited extent. These Terms must be read subject to these statutory provisions. If these statutory provisions apply, to the extent to which Tiny Twiga are able to do so, the liability of Tiny Twiga and its affiliates under those provisions will be limited, at its option to: (1) 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 (2) in the case of services, the supplying of the services again; or the payment of the cost of having the services supplied again.

 

10. Disclaimers

 

(a) We provide the Application to the user as is, and the user is using the Application at his or her own risk.

 

(b) To the fullest extent allowable under applicable law, we disclaim 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 user is in compliance with laws applicable to the user or that user information transmitted in connection with the Application (including as part of online payment) will be successfully, accurately or securely transmitted.

 

(c) We 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 your use of the Application will not infringe rights of third parties.

 

11. Limitation of Liability

 

(a) As a condition of using the Application, and in consideration of the Application provided by us, we exclude and you agree to the fullest extent allowable under applicable law, in no event shall Tiny Twiga and its parent or related bodies corporate (i) be liable to the User or any third party with respect to use of the Application, including without limitation participation in online payment; and (ii) be liable to the User 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 you, including but not limited to damages resulting from or arising from your 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 site;

 

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

 

- Government restriction, strikes, war, any natural disaster or force majeure, or any other condition beyond our reasonable control.

 

(b) To the fullest extent allowable under applicable law, the User’s sole remedy is to cease use of the Application or to cease participation in online payment.

 

(c) To the fullest extent allowable under applicable law, (but subject to the maximum extent permitted by applicable law) the maximum aggregate liability of Tiny Twiga and its parent or other affiliated companies to a user, 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 user pays, if any, to Tiny Twiga for access to or use of the Application during the six months period immediately prior to the event giving rise to such liability.

 

(d) 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 Tiny Twiga.

 

12. Indemnification

 

(a) By using the Application, you agree to defend and indemnify and hold us (and our 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 your use of or access to the Application; any breach by you of these Terms; any wilful, unlawful or negligent act or omission by you; and any violation by you of any applicable laws or the rights of any third party.

 

(b) We reserve the right to assume the exclusive defence and control of any matter otherwise subject to indemnification by the User, in which event the User will cooperate in asserting any available defences.

 

(c) This defence and indemnification obligation will survive these Terms and your use of the Application. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction.

 

13. General

 

Amendments: Tiny Twiga reserves the right to amend, change or modify these Terms or any other Tiny Twiga policies related to use of the Application at any time and at its sole discretion by posting revisions on the Site. 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 you, you can choose to cease to use our Application.

 

Governing Law and Jurisdiction: These Terms are governed by the laws of New South Wales, without regard to conflict of laws rules. The User irrevocably consents to the exclusive jurisdiction of the courts of New South Wales for purposes of any legal action arising out of or related to the use of the Application or these Terms.

 

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:  You agree to use your best endeavours to resolve any dispute arising out of or relating to these Terms, with us, prior to resorting to any external dispute resolution process.  Please notify us in writing of any dispute you may have.

 

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.

 

Termination: The Terms are effective until terminated by us, which we may do at any time and without notice to you. In the event of termination, all restrictions imposed on you by the Terms and limitations of liability set out in the Terms will survive.

 

Contact details and notices:

Tiny Twiga Studios Pty Ltd (ABN: 42 154 508 200)

PO Box 194

Newport Beach NSW 2106

Email: info@tinytwigastudios.com.au

 

Last update: 21st January 2016

 

 

Tiny Twiga Studios Pty Ltd

PO Box 194, Newport Beach 2106 NSW Australia.

Enquiries: tinytwiga@gmail.com

Support: tinytwiga@gmail.com

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