Eatability Terms of License

Modifications last made: 25 July 2013


By clicking "Accept" or taking any steps to install or use the Eatability mobile or tablet application ('App'), mobile site or website (each separately and together hereafter described as "Eatability") you agree to be bound by the terms and conditions set out below.

If you do not agree to be bound by all of the terms and conditions of the Agreement, or you do not want to use Eatability, do not click "Accept" and you will not be permitted to use Eatability.

1. Terms of Use: The Terms of Use include the terms set out in this document, the Eatability Acceptable Use Policy ('AUP'), the Eatability Privacy Policy and any other terms displayed on Eatability, collectively called 'Terms of Use'.

2. Access: Your use of and access to Eatability constitutes your agreement to the Terms of Use and forms an agreement between Eatability Pty Limited ACN 106 359 059 ('Us' or 'We') and you ('Agreement'). Your continuing use of and access to Eatability is conditional upon your compliance with these Terms of Use. If you breach the Terms of Use, We may prevent you from accessing or using Eatability.

3. License: We grant you a limited, non-transferable, non-exclusive, revocable and personal licence to use Eatability on any device that you own or control for non-commercial purposes subject to the terms of this Agreement.

4. Notifications: If You are using the App, You consent to receiving "push notifications" and SMS from Us relating to the operation of the App and Your use of it, including details of how and when to update the App.

5. Download Charges: Mobile data download charges may apply to any download or use of the App or to any upgrades you request and to your use of the Eatability mobile site. You should check with your mobile provider for applicable data rates (including international roaming rates) that will apply.

6. Sign up: You confirm that the registration information (including your name and contact details) that you have provided are true and accurate, and that you will update this information if it changes.

7. Intellectual property: All information, user profile photographs, text, material, trademarks (including but not limited to the word 'Eatability'), graphics, audio, video, ratings systems, concepts, data, location data, logos, button icons, photographs, images and advertisements on Eatability, including its layout and user interfaces ('Content') is owned or licensed by Us and/or our Related Bodies Corporate (as that term is defined in the Corporations Act 2001 (Cth)), unless expressly indicated otherwise. The Content is proprietary to Us and is protected by Australian and international copyright and trade mark laws. You must not modify, copy, reproduce, republish, communicate, adapt, reverse engineer, decompile, disassemble, frame, extract, sub-license, rent, sell, upload to a third party, post, transmit, duplicate, distribute or create derivative works using this Content in any way except as expressly provided for in these Terms of Use or to the extent permitted by law. Nothing contained on Eatability should be construed as granting any license or right of use of any Content displayed on Eatability without our express written permission or that of the third-party owner.

8. Use: We grant you a limited, non-transferable, non-exclusive and revocable right to use Eatability for non-commercial personal purposes subject to these Terms of Use. Any upgrade or new release of any component of Eatability is also subject to these Terms of Use. You must not use Eatability in any manner which is prohibited by the Terms of Use or for any purpose which is unlawful or in a manner which violates any of our rights or rights of our Related Bodies Corporate. You must not use any meta-tags or other hidden text using the name 'Eatability' without our express written consent.

9. Location: You acknowledge that We require information about the location of your device (based on GPS or cell site triangulation in the form of latitude and longitude coordinates) to be able to provide you with the App and Eatability mobile site.

10. Changes to Terms of Use and Eatability: We may in its discretion amend the Terms of Use from time to time, and add, change or remove Content, features and functionality within Eatability. Your continued use of Eatability following any such change indicates your acceptance of the amendment. The Terms of Use will show the last date that variations to the Terms of Use were made, so you should check this when using Eatability. If you do not agree to the variations, you should stop using Eatability.

11. Information: The type of Content contained on Eatability may change from time to time. We make every effort to keep the Content up to date and accurate. However there may be delays, errors or omissions. We do not represent or warrant the suitability, completeness, accuracy or currency of any Content on Eatability or that your use or access to it will be uninterrupted, timely, secure or error-free.

12. User generated content: If you post or upload a review or any other Content on Eatability ('User Content'), you acknowledge and agree:

(a) to grant to us:

(i) a perpetual, worldwide, royalty-free, irrevocable and non-exclusive licence to use, display and reproduce your User Content: (1) within each component of Eatability; (2) in Eatability marketing materials, (3) in the regular newsletter that registered users of Eatability receive, (4) in blog posts within Eatability; (5) in social media sites; and (6) elsewhere for the purpose of promoting Eatability;

(ii) the right to grant a perpetual sub-licence to our Related Bodies Corporate and other third parties to use, display or reproduce your User Content (including your Eatability user profile photo) on web and mobile sites and applications they operate;

(iii) the right to allow other users of Eatability to reproduce your User Content using their social media accounts and by linking to such User Content; and


(b) that any User Content will be voluntarily posted and must not be posted as a result of a reward or incentive from the provider the subject of the User Content or any other party. If you are offered a reward or incentive in return for posting User Content, you should advise us immediately by emailing the details to eatwell@eatability.com.au

(c) that your User Content will not infringe any Intellectual Property Rights or moral rights of any third party. For the purposes of the Terms of Use, 'Intellectual Property Rights' means all rights in or to any patent, copyright, database rights, registered design or other design right, utility model, trade mark (whether registered or not), brand name, service mark, trade name, and any other rights of a proprietary nature, whether registrable or not and wherever existing in the world, including all renewals, extensions and revivals of, and all rights to apply for, any such rights.

(d) that your User Content is not unlawful;

(e) that your User Content complies with the Eatability Acceptable Use Policy ;

(f) that your User Content does not include profanities or offensive, abusive, harassing or sexually explicit language or images, or references to illegal activities;

(g) that your User Content is not encrypted, does not contain viruses or malicious code intended or capable of damaging, interfering with, intercepting or appropriating any system or data;

(h) that you will not post personal information (including names, email addresses or phone numbers), photographs or videos of any individuals unless they have given you permission to do so;

(i) that you are not the provider (or an employee of a provider) of a service or product that you are reviewing or posting User Content about unless you are responding to existing User Content as the provider of that service or product and have identified yourself as the provider;

(j) that your User Content is posted in good faith, is factually true and reflects your genuine opinion arising from actual first hand personal experience of the relevant product or service;

(k) that although we may moderate and remove offensive comments, it is not obliged to do so and, accordingly you accept that you are fully liable for your User Content;

(l) that the publication of User Content is entirely at Our discretion;

(m) that we may contact you after you post User Content to obtain further details or verify any User Content you post;

(n) that we may, in our absolute discretion, withhold or remove User Content that appears illegal, offensive, does not comply with the Terms of Use, has been the subject of complaint or for any other reason that we deem to be appropriate;

(o) that you will not hold us responsible for any User Content posted on Eatability; and

(p) that you are aged 18 or over.


13. Third Party Content: Eatability may contain content and links to websites that are owned or operated by third parties ('Third Party Content'). Such Third Party Content may include, but is not limited to, content and links provided by Booking.com, Dimmi Pty Ltd, Google (for maps), Sensis Pty Ltd and Menulog Pty Ltd. This Third Party Content is not under Our control and we are not responsible for and have no involvement in the operation of the Third Party Content. We provide links to Third Party Content to you as a convenience only, and the inclusion of any Third Party Content does not imply any endorsement by us or Our Related Bodies Corporate. We do not warrant that the Third Party Content is accurate, reliable, error-free up-to-date or virus-free. If you view or click on a link to Third Party Content, this is entirely at your own risk and you agree not to hold Us responsible. Any use of Third Party Content will be governed by the terms imposed by the owner or operator of the relevant content or site. You must contact the owner or operator of the Third Party Content regarding any issues associated with your use of the Third Party Content. We may remove or add Third Party Content on Eatability at any time without notice.

14. Social media: We provide functionality for you to post your User Content on certain social media sites. If you do this, you may be required to register as a user of that site and agree to be bound by the relevant terms of service on Eatability.

15. Reviews: The User Content has been posted by volunteers and may not be true or reliable. Although We may moderate the User Content, We are not legally obliged to do so and User Content may not be checked or moderated by Us. We do not warrant or represent that your experience using a product or service the subject of User Content will be of the same standard as set out in the User Content. It is a condition of your use of Eatability that you accept all risks, losses, costs and expenses associated with the use of the product or service that is the subject of User Content.

16. Online Restaurant Booking: If you do not receive a confirmation email from Dimmi Pty Ltd (who facilitates restaurant bookings on Eatability) ('Dimmi') at least 24 hours prior to your booking, you must contact the restaurant directly to confirm the booking. We are not liable for any risks, losses, costs and expenses associated with your use of Dimmi through Eatability.

17. Take down process: If you have any concerns or complaints about any Content, you should contact Us on eatwell@eatability.com.au and provide all relevant details in relation to your concern or complaint.

18. Advertising: Eatability may contain third party advertisements (including banner ads and full page ads) which contain embedded hyperlinks or which include referral buttons to websites operated by third parties or their licensees or contractors. All third party advertising (including referral buttons and embedded hyperlinks) is paid for by the relevant third party advertisers and are not recommendations or endorsements by Us or our Related Bodies Corporate or their respective directors or employees. In some instances, the advertisement may contain representations or offers by the third party advertiser which you can accept by linking to the advertiser's website and executing the relevant transaction. Such offers are not made by Us, and the third party advertiser is solely responsible to you for the delivery of any goods or services you purchase on the third party website

19. Notifications: We will communicate with you about the operation of Eatability and your use of it via email from time to time. We will also send you a monthly email which may include (but is not limited to) information about new venues, new and upcoming services available using Eatability and changes or updates to be made to Eatability. You consent to us sending you such communications.

20. Privacy: We will handle any personal information in accordance with the Eatability Privacy Policy . You acknowledge and agree that you have read the Eatability Privacy Policy and consent to your personal information being collected, used and disclosed by Us in the manner stated in the Eatability Privacy Policy.

21. Confidentiality: You are responsible for maintaining the confidentiality of your account, username and password and you accept responsibility for all activities that occur under your account.

22. Indemnity: You indemnify and hold Us harmless for any claims, costs, losses, damages and expenses arising from, or related to, any unlawful conduct by you on Eatability and/or any breach by you of the Terms of Use.

23. Disclaimer and limitation of liability

(a) The Australian Consumer Law and other statutes in force from time to time in Australia may confer rights and remedies on you in relation to the provision by Us of goods or services which cannot be lawfully excluded, restricted or modified ('Non-excludable Rights'). We do not exclude any Non-excludable Rights but does exclude all other conditions and warranties implied by custom, law or statute to the fullest extent permitted by law.

(b) Except as provided for by the Non-excludable Rights and to the fullest extent permitted by law: (a) all Content is provided "as is" and without warranties of any kind, either express or implied; (b) We and Our licensors and suppliers expressly disclaim all warranties of any kind; and (c) Eatability does not warrant or make any representation regarding your access to, or the results of your access to, Eatability (including any related or linked websites) or any Content in terms of correctness, accuracy, timeliness, completeness, reliability or otherwise.

(c) Under no circumstances (including but not limited to any act or omission on the part of Us or Our Related Bodies Corporate) will We or Our Related bodies Corporate be liable for any indirect, incidental, special and/or consequential damages or loss of profits whatsoever which result from any use or access of, or any inability to use or access, Eatability or any Content.

(d) You expressly acknowledge and agree that you are accessing Eatability at your own risk and understand that we do not exert control over users of Eatability and is not responsible or liable for their opinions, behaviour or User Content, including any information and/or advice and any defamatory statements or offensive conduct.

(e) To the fullest extent permitted by law, Our liability for breach of any Non-excludable Rights is limited, at Our option, to the following:

(i) in the case of services supplied or offered by Us: (a) the supply of the services again; or (b) the payment of the cost of having the services supplied again; and
(ii) in the case of goods supplied or offered by Us: (a) the replacement of the goods or the supply of equivalent goods; (b) the repair of such goods; (c) the payment of the cost of replacing the goods or acquiring equivalent goods; or (d) the payment of the cost of having the goods repaired.

(f) Any disputes you may have with any venue listed on Eatability or any provider of Third Party Content shall be resolved between you and that party. We will not become involved in any such dispute and disclaims all liability associated with it.

24. Term and Termination: This Agreement commences when you first use or access Eatability and continues until terminated by either party. We may terminate this Agreement in its discretion and cease providing Eatability at any time.

25. US warranties: You represent and warrant that (a) you are not located in a country that is subject to US Government embargo, or that has been designated by the US Government as a "terrorist supporting" country; and (b) you are not listed on any US government list of prohibited or restricted parties.

26. Assignment: We may assign all its rights and obligations under this Agreement without notice to you.

27. Law: This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws in force in New South Wales, Australia and the parties submit to the exclusive jurisdiction of the courts of that State and courts entitled to hear appeals from those courts.

28. Apple devices: If you are using the App on an Apple device, you acknowledge and agree that:

(a) this agreement is not with Apple Pty Limited or any of its related bodies corporate (Apple);

(b) Apple has no obligation to provide any maintenance or support services with respect to your use of the App on an Apple device;

(c) We have certain obligations to Apple arising as a result of Our distribution of the App and We exclude all liability to You for any loss or claims made by You arising from, or in relation to, any act or omission of Ours relating in any way to any such agreement between Us and Apple.

29. Contact info: Any questions, issues, complaints or claims in relation to Eatability should be directed to Us via email to eatwell@eatability.com.au.

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