POPapp

MOMCO PTY. LTD. ABN 44 616 484 505

TERMS OF SERVICE

INTRODUCTION
 

The Company provides the “POPapp” mobile application for creating and printing photo books. Use of POPapp is subject to these Terms of Service.
 

DEFINITIONS
 

The following terms are used regularly throughout these Terms of Service and have a particular meaning:

(a)                ABN means Australian Business Number.

(b)                Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Sydney, Australia.

(c)                Coin means a coin awarded to the User to apply a discount on the Photo Book Fee.

(d)                Company means Momco Pty. Ltd. ABN 44 616 484 505.

(e)                Confidential Information means any written or verbal information that:
 

i             Is about each party’s business or affairs;

ii            Is about the conduct of each party under these Terms of Service, during the term of these Terms of Service;

iii           A party informs the other party that it considers it confidential and/or proprietary;

iv           A party would reasonably consider to be confidential in the circumstances; and

v            Is personal information within the meaning of the Privacy Act and GDPR. but does not include information that a party can establish:

vi           Was in the public domain at the time it was given to that party;

vii          Became part of the public domain, without that party’s involvement in any way, after being given to the party;

viii         Was in party's possession when it was given to the party, without having been acquired (directly or indirectly) from the disclosing party; or

ix           Was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.
 

(f)                 Delivery Fee means a Fee payable by the User for delivery of a Hardcopy Book, in accordance with the pricing described within POPapp or as otherwise agreed with                         the Company, and shall be separate to the Photo Book Fee.

(g)                Digital Book means a Photo Book that is delivered to the User in digital format via POPapp.

(h)                Fee means any Fee payable by the User for use of POPapp.

(i)                 GDPR means the EU General Data Protection Regulation 2016/679.

(j)                 GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(k)                Hardcopy Book means a Photo Book that is delivered to the User in hardcopy format via the Third Party Printer.

(l)                 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.

(m)              Mobile Application Marketplace means an online marketplace for access to POPapp and other applications for mobile devices, such as the App Store and Google Play.

(n)               Photo means any image accessible on the User’s mobile device or otherwise imported from a third party account held by the User.

(o)               Photo Album means a selected group of Photos created by the User within POPapp.

(p)               Photo Book means a Photo Album that is delivered to the User subject to payment of the Photo Book Fee and includes a Digital Book and Hardcopy Book.

(q)               Photo Book Fee means a Fee charged by the Company to create a Photo Book, in accordance with the pricing described within POPapp or as otherwise agreed with                        the Company.

(r)                POPapp means the “POPapp” mobile application developed by the Company and accessible from Mobile Application Marketplaces from time-to-time.

(s)                Privacy Act means the Privacy Act 1989 (Cth).

(t)                 Privacy Policy means the Company’s privacy policy as updated from time-to-time.

(u)                Promotion means any promotions made available by the Company from time-to-time.

(v)                Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(w)               Third Party Printer means the independent third party service provider engaged by the Company to print and deliver Hardcopy Books to Users.

(x)                User means any user of POPapp.

(y)                User Content means any information, documents or other data that is uploaded into, or created using, POPapp by the User, or that otherwise forms part of the User’s                         Intellectual Property, including Photos and Photo Books, but excluding any derivative data (such as analytics).
 

1                USING POPapp
 

1.1           General

(a)            To access POPapp, the User must:

i                 Download POPapp to their mobile device from a Mobile Application Marketplace; and

ii                Agree to these Terms of Service and the Privacy Policy

(b)            The User must immediately cease to use POPapp if the User can no longer agree or adhere to these Terms of Service and/or the Privacy Policy.

(c)            The Company may restrict the access of any User that breaches these Terms of Service.

(d)            The licence granted under these Terms of Service shall be ongoing until terminated in accordance with these Terms of Service.
 

1.2           Features

    POPapp shall enable the User to (without limitation):
(a)            Import Photos;

(b)            Sort, filter and delete Photos;

(c)            Create, edit and delete Photo Albums;

(d)            Create, save and purchase Photo Books;

(e)            Access and review saved Photo Albums and Photo Books;

(f)             Accrue and use Coins; and

(g)            Access and use any other features made available by the Company from time-to-time.
 

2                PHOTO BOOKS
 

2.1           General

(a)            The User may purchase multiple copies of the same Photo Book.

(b)            A Photo Book must meet the minimum number of pages set by the Company from time-to-time.

(c)            Unless a Photo Book is saved by the User, it may be lost when POPapp is closed.

2.2           Pricing

(a)            The User acknowledges and agrees that:

i                 Different pricing applies for Digital Books and Hardcopy Books;

ii                The Photo Book Fee is higher for a Hardcopy Book than a Digital Book;

iii               An additional Delivery Fee applies for Hardcopy Books; and

iv              The Photo Book Fee and/or Delivery Fee may change from time-to-time at the Company’s discretion.

2.3           Finalisation

(a)            The User acknowledges and agrees that:

i                 Photo Books will be produced in the same manner as presented to the User within POPapp;

ii                The User has the obligation to review the Photo Book prior to payment of the Photo Book Fee to ensure the Photo Book is to their                                      satisfaction, including the Photos selected are correct and of good quality; and

iii               The Company cannot be held responsible for any errors or mistakes in a Photo Book that are the result of the User’s failure to review the final                    version before making payment of the Photo Book Fee.

2.4           Delivery

(a)            Immediately after the purchase of a Photo Book, the User will receive a Digital Book accessible on their mobile device. For clarity, a Digital Book will                    be provided as part of purchasing a Hardcopy Book for no additional charge.

(b)            Where a Hardcopy Book is purchased and the Delivery Fee paid, the User will receive the Hardcopy Book by post to their designated address (in                        addition to the Digital Book provided pursuant to (a)).

(c)            The Company shall advise the User of any applicable Delivery Fee prior to purchase of a Hardcopy Book.

(d)            Delivery may not be available in all locations and the Company will advise the User if a delivery address is not in a location to where delivery is                            available.

(e)            The User must provide the Company with accurate delivery information and agrees that the Company is not liable or responsible for any errors in                        delivery information, including for the loss or damage to any Hardcopy Book.

(f)             The User agrees that the printing and delivery of Hardcopy Books is exclusively managed by the Third Party Printer and outside of the control of the                     Company.

(g)            The User agrees that any representation regarding delivery dates or times are best estimates only, and the Company is not liable for any deliveries                       not made at the represented date or time.

(h)            Hardcopy Books will be delivered to the entrance of the provided delivery address. Unless specified otherwise, the User authorises the Company to                     instruct the Third Party Printer to leave the Hardcopy Book at the delivery address if the premises is unattended at the time of delivery.

(i)              The User agrees that delivery occurs when the Hardcopy Book has been delivered to the delivery address. Risk in the Hardcopy Book transfers to                       the User upon delivery.

(j)              The User may receive information to track the delivery status of any Hardcopy Book, if so available, and acknowledges that any tracking information                     is sourced from a third party, and the Company is not responsible for the accuracy of any tracking information.
 

2.5           Returns

(a)            The Company does not provide refunds or accept returns for a change of mind or dislike for the Hardcopy Book except where required by law, or as                     otherwise provided for under this Terms of Service.

(b)            In any event, the User should notify the Company if:

i                 The Hardcopy Book is not received; or

ii                The Hardcopy Book arrives damaged; or

iii               The User otherwise believes that they are entitled to refund or exchange under any applicable law.

(c)            Where notified pursuant to (b), the Company agrees to investigate the claim and respond to the User within a reasonable timeframe.

(d)            If the Hardcopy Book is found to be damaged, defective or otherwise not of merchantable quality, then the User shall notify the Company of the issue                  in writing within 5 days from the date of delivery with supporting photos provided. After this timeframe the User will be deemed to have accepted the                    Hardcopy Book in its form unless the Company determines otherwise in its discretion.

(e)            Where the Hardcopy Book is proven to be damaged, defective or otherwise not of merchantable quality at no fault of the User in accordance with (d),                  then the Company agrees to re-produce and re-deliver a new copy of the Hardcopy Book to the User within a reasonable timeframe.
 

3              PAYING FOR POPapp
 

3.1           Fees

(a)            There shall be no fees payable to download and access POPapp, however Fees shall apply to access certain features of POPapp as determined by                     the Company from time-to-time, subject to any Promotions.

(b)            The primary Fee to use POPapp shall be the Photo Book Fee, which shall be payable in advance in order to create a Photo Book.

(c)            Unless agreed otherwise by the parties, all payments for Fees shall be processed via the User’s valid credit card or PayPal account.

(d)            The Company may vary Fees, or introduce new Fees, by giving the User written notice, and the User must agree to the new Fees in order to continue                   using such features of POPapp.  

(e)            If a User does not accept a change to any Fees, then they can simply not access those features of POPapp for which the relevant Fee applies.
 

3.2           Coins

(a)            The User may apply Coins to selected payments to receive a discount on the Photo Book Fee only, and not Fees generally.

(b)            The User may apply some, all or none of the Coins for certain Payments at their completion discretion.

(c)            Any unused Coins will be saved and available for use for future payments at the User’s discretion.
 

3.3           Currency

    All Fees are quoted in Australian dollars, however transactions may be processed in an equivalent foreign currency (such as US dollars or British pounds).
 

3.4           GST

    For Users in Australia, GST is applicable to any Fees charged by the Company to the User. Unless expressed otherwise, all Fees shall be deemed inclusive        of GST. The Company will provide the Customer with a Tax Invoice for any payments.
 

3.5           Refund

                No refunds of Fees are offered other than as required by law, unless determined otherwise by the Company in its complete discretion.

4              GENERAL CONDITIONS

4.1           Licence

(a)            By accepting the terms and conditions of these Terms of Service, the User is granted a limited, non-exclusive and revocable licence to access and use POPapp for the duration of these Terms of Service and in accordance with the terms and conditions of these Terms of Service.

(b)            The Company may issue the licence to the User on the further terms or limitations as it sees fit.

(c)            The Company may revoke or suspend the User’s licence(s) for breach of the terms in these Terms of Service.
 

4.2           Modification of Terms

(a)            These Terms of Service may be updated by the Company from time-to-time.

(b)            Where the Company modifies these Terms of Service in a material manner, it will provide the User with written notice, and the User will be required to             accept the modified terms in order to continue using POPapp.

(c)            If a User does not accept any changes to these Terms of Service, the User may terminate this Agreement and must immediately cease using                              POPapp.
 

4.3           Hosting and Improvements

(a)            The User agrees and accepts that POPapp is:

i                 Hosted by the Company and shall only be accessed and maintained by the Company, accessed using the internet or other connection to the Company servers and is not available ‘locally’ from the User’s systems; and

ii                Managed and supported exclusively by the Company from the servers operated by the Company and that no ‘back-end’ access to POPapp is available to the User unless expressly agreed in writing.

(b)            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 POPapp.
 

4.4           Support

(a)            The Company shall provide reasonable support services via POPapp in the manner agreed with and/or notified in writing to the User from time-to-                       time, including an instructional user guide upon first use of POPapp.

(b)            The Company shall endeavour to respond to all support requests within 3 Business Days.

(c)            The Company reserves the right to require the payment of reasonable fees for non-standard support requests prior to the provision of such support.
 

4.5           Use & Availability

(a)            The User agrees that it shall only use POPapp for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening,                       abusive or in a way that is deemed unreasonable by the Company in its discretion.

(b)            The User agrees that the Company shall provide access to POPapp to the best of its abilities, however:

i                 Access to POPapp may be prevented by issues outside of its control; and

ii                It accepts no responsibility for ongoing access to POPapp.
 

4.6           Privacy

(a)            The Company maintains the Privacy Policy in compliance with the provisions of the Privacy Act and the GDPR for data that it collects about the User                  and other individuals.

(b)            The Privacy Policy does not apply to how a User handles personal information.  If necessary under the Privacy Act and/or the GDPR, it is the User’s                     responsibility to meet the obligations of the Privacy Act and/or GDPR by implementing a privacy policy in accordance with law.

(c)            POPapp may use cookies (a small electronic file) to improve a User’s experience while browsing, while also sending browsing information back to the                  Company. The User may manage how it handles cookies in its own browser settings.
 

4.7           Security

The Company takes the security of POPapp and the privacy of its Users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.

4.8           Intellectual Property

(a)            Trade Marks.  The Company has moral, unregistered and registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal                   in the marks without the prior written consent of the Company.

(b)            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 User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both                        domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of POPapp.

(c)            POPapp. The User agrees and accepts that POPapp is the Intellectual Property of the Company and the User further warrants that by using POPapp                  the User will not:

i                 Copy POPapp or the services that it provides for the User’s own commercial purposes; and

ii                Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture,                      algorithms contained in POPapp or any documentation associated with it.

(d)            Content. All content (excluding User Content) submitted to the Company, whether via POPapp 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 User or any other party with respect to POPapp.

4.9           Third Party Dependencies

                The User agrees and acknowledges that POPapp has third party dependencies which may affect its availability, including (without limitation) internet service                    providers and hosting services, and that the Company has no means of controlling the availability of such dependencies and shall not be liable for any                            interruptions to such.

4.10         Confidentiality

(a)            The Company agrees to keep all User Content in the strictest confidence, and to the extent User Content is accessed and/or received by the                                 Company it shall be deemed as Confidential Information for the purposes of these Terms of Service.

(b)            Each party acknowledges and agrees that:

i                 the Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);

ii                it owes an obligation of confidence to the Discloser concerning the Confidential Information;

iii               it must not disclose the Confidential Information to a third party except as permitted in these Terms of Service;

iv              all Intellectual Property rights remain vested in the Discloser but disclosure of Confidential Information does not in any way transfer or assign                     any rights or interests in the Intellectual Property to the receiving party; and

v               any breach or threatened breach by the receiving party of an obligation under these Terms of Service may cause the Discloser immediate                         and irreparable harm for which damages alone may not be an adequate remedy.  Consequently, the Discloser has the right, in addition to                         other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers                       and directors, personally) or to compel specific performance of this clause.

(c)            A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:

i                 any actual, suspected, likely or threatened breach by it of any obligations it has in relation to the Confidential Information;

ii                any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or

iii               any actual, suspected, likely or threatened theft, loss, damage, or unauthorized access, use or disclosure of or to any Confidential                                     Information.

(d)            The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or                       other action of the Discloser or of a related body corporate if there is:

i                 any actual, suspected, likely or threatened breach of a term of these Terms of Service; or

ii                any theft, loss, damage or unauthorized access, use or disclosure of or to any Confidential Information that is or was in its possession or                          control.
 

4.11         Liability & Indemnity

(a)            The User agrees that it uses POPapp at its own risk.

(b)            The User acknowledges that the Company is not responsible for the conduct or activities of any User and that the Company is not liable for such                           under any circumstances.

(c)            The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in                                   connection with the User’s use of or conduct in connection with POPapp, including any breach by the User of these Terms of Service.

(d)            In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, personal injury, death, damage to                            property, loss of property, 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 User’s access to, or use of, or inability to use POPapp, including permanently deleted Photos or errors in a Photo                      Book, 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, loss, personal injury or death, or business interruption of any type, whether in tort, contract or                                otherwise.

(e)            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:

i                 The re-supply of services or payment of the cost of re-supply of services; or

ii                The replacement or repair of goods or payment of the cost of replacement or repair.

4.12         Termination

(a)            Either party may terminate these Terms of Service by giving the other party written notice.

(b)            Termination of these Terms of Service is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any                       way out of these Terms of Service up to the date of expiry or termination.

4.13         Dispute Resolution

(a)            If any dispute arises between the parties in connection with these Terms of Service (Dispute), then either party may notify the other of the Dispute                       with a notice (Dispute Notice) which:

i                 Includes or is accompanied by full and detailed particulars of the Dispute; and

ii                Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.

(b)            Within 10 Business Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) parties must meet (virtually or                        otherwise) and seek to resolve the Dispute.

(c)            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.

(d)            Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of                   a Dispute.

(e)            Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.

4.14         Electronic Communication, Amendment & Assignment

(a)            The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.

(b)            The User can direct notices, enquiries, complaints and so forth to the Company as set out in these Terms of Service.  The Company will notify the                         User of a change of details from time-to-time.

(c)            The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the                     Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.

(d)            A consent, notice or communication under these Terms of Service is effective if it is sent as an electronic communication unless required to be                             physically delivered under law.

(e)            Notices must be sent to the parties’ most recent known contact details.

(f)             The User may not assign or otherwise create an interest in these Terms of Service.

(g)            The Company may assign or otherwise create an interest in its rights under these Terms of Service by giving written notice to the User.

4.15         General

(a)            Special Conditions. The parties may agree to any Special Conditions to these Terms of Service in writing.

(b)            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 these Terms of Service.

(c)            Relationship.  The relationship of the parties to these Terms of Service does not form a joint venture or partnership.

(d)            Waiver. No clause of these Terms of Service will be deemed waived and no breach excused unless such waiver or consent is provided in writing.

(e)            Further Assurances.  Each party must do anything necessary (including executing agreements and documents) to give full effect to these Terms of                      Service and the transaction facilitated by it.

(f)             Governing Law.  These Terms of Service are governed by the laws of New South Wales, Australia.  Each of the parties hereby submits to the non-                      exclusive jurisdiction of courts with jurisdiction there.

(g)            Severability.  Any clause of these Terms of Service, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability                        without affecting the remaining clauses of these Terms of Service.

(h)            Interpretation. The following rules apply unless the context requires otherwise:

i                 Headings are only for convenience and do not affect interpretation.

ii                The singular includes the plural and the opposite also applies.

iii               If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.

iv              A reference to a clause refers to clauses in these Terms of Service.

v               A reference to legislation is to that legislation as amended, re enacted or replaced, and includes any subordinate legislation issued under it.

vi              Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.

vii             A reference to a party to these Terms of Service or another agreement or document includes that party's successors and permitted                                   substitutes and assigns (and, where applicable, the party's legal personal representatives).

viii            A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.

ix              A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example,                       computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade                     secrets.
 

END TERMS OF SERVICE

© 2020 by Momco Pty Ltd trading as POPapp ACN 616 484 505