Last updated: September 27, 2017
When we say “our”, “us”, “we” or “WhatPods” in these WhatPods Terms and Policies, we mean Slack Media Australia Pty Ltd or its subsidiaries. These WhatPods Terms and Policies apply to websites and applications operating under the WhatPods’ brand or other brands that we own, as well as those of our websites, applications, emails and other communications that link to or reference these WhatPods Terms and Policies, or the other services provided through any of these means (the “Services”). From time to time, we may revise these WhatPods Terms and Policies. You can determine when these WhatPods Terms and Policies were last revised by referring to the top of this page. Any changes to the WhatPods Terms and Policies will become effective on and from posting of the revised WhatPods Terms and Policies on the Internet, accessible through Services, unless otherwise noted. By continuing to use Services following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of these WhatPods Terms and Policies, as they may be amended from time to time, please do not continue using the Services. To the extent that an arbitrator or court of applicable jurisdiction determines that applying any changes to these WhatPods Terms and Policies would render this an illusory or unenforceable contract, such changes shall be applicable on a prospective basis only, with respect to events or circumstances occurring after the date of such changes.
NOTICE OF ARBITRATION PROVISIONS:
All the above Terms and Policies and your use of the Services are subject to binding individual arbitration of any disputes which may arise. Please read the arbitration provisions carefully and do not use the Services if you are unwilling to arbitrate any disputes you may have with us as provided below.
- ACCEPTANCE OF TERMS
WhatPods may, subject to the below, change these Terms from time to time on a prospective basis, and modify, add or discontinue any aspect, content or feature of the Services, at its sole discretion. Your continued use or accessing of the Services following the posting of any changes to the Terms constitutes your acceptance of such changes. To the extent that an arbitrator or court of applicable jurisdiction determines that applying any changes to these Terms would render this an illusory or unenforceable contract, such changes shall be applicable on a prospective basis only, with respect to events or circumstances occurring after the date of such changes, to the extent necessary to avoid these Terms being deemed illusory or unenforceable.
Any form of transfer or sublicense, or unauthorized access, distribution, reproduction, copying, retransmission, publication, sale, or exploitation (commercial or otherwise), of any portion of the Services, including but not limited to all content, services, digital products, tools or products, is hereby expressly prohibited.
- PERMITTED USE
Our Site and Services are for your personal and non-commercial use. They contain material that is derived in whole or in part from material supplied and owned by WhatPods and other sources. Such material is protected by copyright, trademark and other applicable laws. Unless otherwise agreed to in writing by WhatPods, you agree that you will not use the Services, or duplicate, download, publish, modify or otherwise distribute or use any material in the Services for any purpose, except for your personal, non-commercial use. You also agree that you will not link to any page on the Site other than the home page (for example, “deep linking”), without WhatPods’ prior written consent. Use of the Services or any materials or content on the Services for any commercial or other unauthorized purpose is prohibited. You acknowledge that storing, distributing or transmitting unlawful material could expose you to criminal and/or civil liability. You may not download (other than page caching) or modify the Services or any portion of them unless we have provided you with express written consent. You shall not make a derivative use of the Services (or any part thereof) for any purpose, nor shall you download or copy information of users, or otherwise engage in data mining or similar data gathering.
- REGISTRATION, ACCOUNTS AND PASSWORDS
If you establish a personal account with us, you agree to provide true and accurate data about yourself on our account registration form, and to update and keep such data current. You will receive a password and account upon completing the registration form. You are solely responsible for maintaining the confidentiality of your password and account, and you are solely responsible for all use of your password or account, whether authorized by you or not. You shall not allow other persons access to or use of such username or password. You shall not post your username or password on any website nor transmit it through unsecured sites. You agree to (a) immediately notify WhatPods of any unauthorized use of your password or account or any other breach of security and (b) ensure that you exit from your account each time you use the Services. Access and use of password-protected and/or secure areas of the Services is restricted to users who have been given a valid password by WhatPods. We may terminate your membership and access to the Services if we learn that you have provided us with false or misleading registration data. If we feel your username and password are insecure or otherwise problematic, we may require you to change it or terminate your account.
PERSONALLY IDENTIFIABLE INFORMATION
- USER CONDUCT AND SUBMISSIONS
You are responsible for your use of the Services and the Site, and for any consequences thereof, including any information or materials you choose to make available, public or private communications transmitted through the Services or the Site (including posts), usernames and passwords that you provide to the Services or the Site, including those usernames and passwords provided by you for access to various third party services (e.g., social networking and other accounts that you wish to link with your account on the Site).
It is a condition of your use of the Services that you do not:
- Interfere with any other user from using and enjoying the Services;
- Collect information about other users or third parties via the Services or use any such information for the purpose of transmitting or facilitating transmission of unauthorized or unsolicited advertising, junk or bulk e-mail, chain letters, or any other form of unauthorized solicitation;
- Engage in the systematic retrieval of data or other content from the Services to create or compile, directly or indirectly, a collection, compilation, database or directory, without WhatPods’ prior written consent;
- Solicit other users to join, become members of, or contribute money to any online service or other organization, advocate or attempt to get users to join in illegal schemes or plan or participate in scams involving other users;
- Attempt to gain unauthorized access to other computer systems or networks connected to the Services; or
- Take actions for the purpose of manipulating or distorting, or that may undermine the integrity and accuracy of, any ratings or reviews of any service or product that may be presented by the Services.
- Provide fictitious information or conceal your identity or location, including, but not limited to, in an attempt to circumvent limits associated with promotional or other offers.
- Use the Services for unlawful purposes.
Additionally, you agree that you will not use the Services to upload, post, or otherwise distribute or facilitate distribution of any material that:
- Is libelous, defamatory or slanderous;
- Is sexually suggestive or contains explicit sexual content (including nudity);
- Does or is reasonably likely to offend, insult, humiliate, or intimidate any individual or group on the basis of religion, gender, sexual orientation, race, skin colour, ethnicity, nationality, age, disability, or intersex status;
- Does or may threaten, abuse, harass, or invade the privacy of any third party;
- Is fraudulent or infringes the rights of any third party, including, without limitation, patent, trademark, trade secret, copyright, right of publicity, or other proprietary rights;
- Constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (also known as “spam”), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
- Contains a software virus or any other computer code that is designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment, or to damage or obtain unauthorized access to any data or other information of any third party;
- Encourages conduct that would constitute a criminal offense or give rise to civil liability;
- Impersonates any person or entity, including any employee or representative of WhatPods; or
- Violates any applicable law or these Terms.
Certain areas on the Services may allow you to provide us or others with photos and other images, commentaries, reviews, audio and video, “Feedback” (defined as suggestions, comments or other response you provide to us), posts, public or private messages or other content from you (“User Materials”). You alone are responsible for your User Materials, and once published, it cannot always be withdrawn. You assume all risks associated with your User Materials, including anyone’s reliance on its quality, accuracy, or reliability, or any disclosure by you of information in your User Materials that makes you personally identifiable. You represent that you own, or have the necessary permissions to use and authorize the use of your User Materials as described herein. You may not imply that your User Materials is in any way sponsored or endorsed by WhatPods.
You may expose yourself to liability if, for example, your User Materials contain material that is false, intentionally misleading, or defamatory; violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; contains material that is unlawful, including illegal discriminatory or hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation. All User Materials must comply with these Terms. Specific additional rules or terms may apply to the submission of User Materials. In any event, any User Materials you send to us will not be treated as confidential.
- GRANT OF LIMITED LICENSE
WhatPods may use User Materials in a number of different ways, including publicly displaying it, reformatting it, incorporating it into advertisements and other works, creating derivative works from it, promoting it, distributing it, and allowing others to do the same in connection with their own websites and media platforms (“Other Media”). As such, you hereby irrevocably grant WhatPods and its affiliates and licensees a world-wide, perpetual, non-exclusive, royalty-free, assignable, sublicensable, transferable rights to use, including, but not limited to the right to copy, publicly perform and display, reproduce, distribute, modify, translate, remove, analyze, commercialize, and prepare derivative works of, any User Materials for any purpose. Please note that you also irrevocably grant the users of the Services and any Other Media the right to access User Materials in connection with their use of the Services and any Other Media. Finally, you irrevocably waive, and cause to be waived, against WhatPods and its users any claims and assertions of moral rights or attribution with respect to your User Materials. You represent and warrant that you own such content or otherwise have sufficient rights in the content to grant to WhatPods the foregoing license without infringing or violating the rights of any third party. You acknowledge that we are under no obligation to pay you or anyone else for any use or disclosure of User Materials. You hereby confirm: (a) your User Materials will be not be subject to any obligation, of confidence or otherwise, to you or any other person; (b) your posting of the content on or through the Services does not violate the privacy rights, publicity rights, copyrights or other rights of any other person; and (c) your posting is in accordance with these Terms and that we shall not be liable for any use or disclosure of such User Materials. We reserve the right (but do not assume the obligation) in our sole discretion to reject, move, edit or remove any User Materials that are contributed to the Services or Site. You acknowledge that we do not verify, adopt, ratify, or sanction User Materials, and you agree that you must evaluate and bear all risks associated with our use of User Materials or our reliance on the accuracy, completeness, or usefulness of User Materials.
WhatPods respects the intellectual property of others, and we ask our users to do the same. The Copyright Act 1968 (“the Australian Copyright Act”) and the Digital Millennium Copyright Act of 1998 (“the U.S. Copyright Act”) provide recourse for copyright owners who believe that material appearing on the Internet infringes their rights under Australian and U.S. copyright law. WhatPods, pursuant to the Acts, reserves the right, but not the obligation, to terminate your license to use the Services if it determines in its sole and absolute discretion that you are involved in infringing activity, including alleged acts of first-time or repeat infringement, regardless of whether the material or activity is ultimately determined to be infringing. If you believe that any such third party materials infringe your intellectual property rights, please send a notice to the agent identified below to request a review of the alleged infringement. The notice must include the following information (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the Services are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow WhatPods to locate the material on the Services; (d) the name, address, telephone number and email address (if available) of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Notices and with respect to the Services should be sent to: Slack Media Australia Pty Ltd, Attn: Head of Legal Affairs, [email protected]. WhatPods suggests that you consult your legal advisor before filing a notice or counter-notice. Also, please be aware that there can be penalties for false claims.
- PROPRIETARY RIGHTS
WhatPods owns all right, title and interest in and to the Services and all materials and content contained in the Services, including, without limitation, all content, site design, logos, button icons, images, digital downloads, data compilations, text, and graphics are protected by copyright, trademark and other intellectual property laws. Any unauthorized use of such materials or content is strictly prohibited.
Permission is granted to individual consumers to electronically copy and to print hard copy portions of the Services solely for personal use. Any other use of materials on the Services, including reproduction for purposes other than those noted above, modification, distribution, or republication, any form of data extraction or data mining, or other commercial exploitation of any kind, without prior written permission of an authorized officer of WhatPods is strictly prohibited. You agree that you will not use any robot, spider, other automatic device, or manual process to monitor or copy our Web pages or the content contained therein without prior written permission of an authorized officer of WhatPods.
WhatPods’ service marks/trademarks may not be used in connection with any product or service that is not provided or authorized by WhatPods, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits WhatPods.
- CHILDREN’S ONLINE PRIVACY PROTECTION
The Services and the Site is not designed or intended for use by children under 13, and thus all users must be at least 13. If you are under 18, you should use WhatPods only with involvement and permission of a parent or guardian. Some of our Services or portions of the Site may require you to be over the age of 18 or the age of majority for your state; please see the terms and conditions of the relevant offer for more details.
- DISCLAIMER OF WARRANTIES
While WhatPods uses reasonable efforts to include up to date information on the Site and other Services, WhatPods makes no warranties or representations as to its accuracy, timeliness, reliability, completeness or otherwise.
WHATPODS PROVIDES THE SITE AND OTHER SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS. WHATPODS, ITS AFFILIATES, AGENTS AND LICENSORS (COLLECTIVELY, THE “WHATPODS PARTIES”) DISCLAIM ALL WARRANTIES AND CONDITIONS, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WHATPODS DOES NOT WARRANT THAT THE SITE OR OTHER SERVICE WILL (1) BE UNINTERRUPTED; (2) BE FREE FROM INACCURACIES, ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS; (3) MEET YOUR REQUIREMENTS; OR (4) OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. YOUR USE OF THE SITE AND SERVICE IS SOLELY AT YOUR OWN RISK.
- EXCLUSION OF DAMAGES
NONE OF THE WHATPODS PARTIES WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) OR ANY DAMAGES WHATSOEVER THAT RESULT FROM YOUR USE OF OR INABILITY TO USE THE SITE OR OTHER SERVICE. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, AND EVEN IF WHATPODS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THIS WAIVER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, OR THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF ANY RECORD. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT EACH OF THE WHATPODS PARTIES SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER OF THE SITE OR OTHER SERVICE. WITHOUT LIMITING THE FOREGOING, WHATPODS WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING OUT OF (1) YOUR FAILURE TO COMPLY WITH OUR TERMS WITH RESPECT TO REGISTRATION, ACCOUNTS AND PASSWORDS OR (2) CONTENT POSTED TO THE SITE OR OTHER SERVICE BY YOU OR ANY THIRD PARTY.
- LIMITATION OF LIABILITY
IN NO EVENT WILL THE WHATPODS PARTIES’ AGGREGATE LIABILITY TO YOU IN CONNECTION WITH THE SITE AND SERVICE OR THESE TERMS EXCEED THE AMOUNT (IF ANY) PAID BY YOU TO WHATPODS IN THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE LIABILITY.
- APPLICABILITY OF DISCLAIMERS, EXCLUSIONS AND LIMITS
BECAUSE SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF DAMAGES, WHATPODS’ LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY THE LAW OF SUCH JURISDICTION. IN ADDITION, BECAUSE SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN WARRANTIES, THE DISCLAIMERS SET FORTH ABOVE MAY NOT APPLY TO YOU.
- THIRD PARTY WEB SITES AND FUNCTIONALITIES
THE THIRD-PARTY WEB SITES OR SERVICES LINKED TO OR FROM THE SERVICES ARE NOT CONTROLLED BY WHATPODS. ADDITIONALLY, THIRD PARTIES MAY PROVIDE TOOLS OR SERVICES (“THIRD PARTY TOOLS”) THAT ARE MADE AVAILABLE TO YOU THROUGH OUR SERVICES (FOR EXAMPLE, BUT NOT LIMITED TO, FACEBOOK FEATURES). ACCORDINGLY, WHATPODS MAKES NO WARRANTIES OR CONDITIONS REGARDING SUCH THIRD-PARTY SERVICES OR WEB SITES OR THIRD PARTY TOOLS AND WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR USE OF OR RELIANCE ON SUCH THIRD SERVICES OR WEB SITES OR THIRD PARTY TOOLS. YOUR USE OF THIRD-PARTY SERVICES OR WEB SITES OR THIRD PARTY TOOLS IS AT YOUR OWN RISK. THE INCLUSION ON THE SERVICE OF A LINK TO A THIRD-PARTY SERVICE OR WEB SITE, OR INCLUSION OF A THIRD PARTY TOOL, DOES NOT IMPLY AN ENDORSEMENT BY WHATPODS. WHEN YOU ACCESS ANY OF THESE THIRD-PARTY SERVICES OR SITES, OR THIRD PARTY TOOLS, YOUR RIGHTS AND OBLIGATIONS WILL BE GOVERNED BY THE AGREEMENTS AND POLICIES RELATING TO THE USE OF THOSE THIRD PARTY WEB SITES OR SERVICES OR THIRD PARTY TOOLS.
You will indemnify and hold harmless the WhatPods Parties, and at WhatPods’ option defend the WhatPods Parties, from and against any damage, loss, cost or expense (including without limitation, legal fees and costs) incurred in connection with any third-party claim, demand, proceeding or action (“Claim”) brought against any of the WhatPods Parties arising out of your use of the Services or any alleged breach by you of any provision of these Terms, or the infringement by you, or any other subscriber or user of your account, of any intellectual property or other right of any person or entity. If you are obligated to indemnify any of the WhatPods Parties, WhatPods may, in its sole and absolute discretion, control the defense and disposition (including its possible settlement) of any Claim at your sole cost and expense. Without limitation of the foregoing, you will not settle, compromise or in any other manner dispose of any Claim without the written consent of WhatPods.
In its sole and absolute discretion, with or without notice to you, WhatPods may suspend or terminate your use of and access to the Services, terminate your account and/or remove and discard anything transmitted by you, or information stored, sent, or received via the Services without prior notice and for any reason, including, but not limited to: (i) concurrent access of the Services with identical user identification, (ii) permitting another person or entity to use your user identification to access the Services, (iii) any unauthorized access or use of the Services, (iv) any violation of these Terms, (v) tampering with or alteration of any of the software and/or data files contained in, or accessed through, the Services, or (vi) failure to use the Services on a regular basis. Such suspension or termination may include, but not be limited to, suspension or termination of access or rights to receive any content. You may terminate your account for any reason by emailing WhatPods at [email protected]. WhatPods shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension of the Services. Termination, suspension, or cancellation of the Services or your access rights shall not affect any right or relief to which WhatPods may be entitled, at law or in equity, and all rights granted to you will automatically terminate and immediately revert to WhatPods.
- BINDING ARBITRATION OF ALL DISPUTES
(a) the Arbitration shall be conducted before a single arbitrator selected in accordance with the Applicable Rules or by mutual agreement between you and WhatPods (the “Arbitrator”);
(b) the Arbitrator, and not any federal, state or local court or agency, shall have the exclusive authority to resolve any dispute arising under or relating to the validity, interpretation, applicability, enforceability or formation of these Terms and/or these arbitration provisions hereof, including but not limited to any claim that all or any part of these Terms is void or voidable;
(c) the Arbitration shall be held either: (i) in Brisbane, Australia (ii) at a location determined by ACICA (or, if applicable, RI) pursuant to their Arbitration Rules; or (iii) at such other location as may be mutually agreed upon by you and WhatPods; or (iv) at your election, if the only claims in the arbitration are asserted by you and are for less than $10,000 in aggregate, by telephone or by written submission.
(d) the Arbitrator (i) shall apply internal laws of the State of Queensland consistent with any federal Arbitration legislative provisions and applicable statutes of limitations, or, to the extent (if any) that federal law prevails, shall apply the law of Australia, irrespective of any conflict of law principles; (ii) shall entertain any applications to dismiss, applications for judgment on the pleadings, applications for complete or partial summary judgment, applications for summary adjudication, or any other dispositive motion consistent with Queensland or federal rules of procedure, as applicable; (iii) shall honor claims of privilege recognized at law; and (iv) shall have authority to award any form of legal or equitable relief;
(e) the Arbitration can resolve only your and/or WhatPods’ individual claims, and the Arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated;
(f) the Arbitrator shall issue a written award supported by a statement of decision setting forth the Arbitrator’s complete determination of the dispute and the factual findings and legal conclusions relevant to it (an “Award”). Judgment upon the Award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets;
(g) in the event that you are able to demonstrate that the costs of Arbitration will be prohibitive as compared to the costs of litigation, WhatPods will pay as much of your filing and hearing fees in connection with the Arbitration as the Arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, and you will owe the costs WhatPods paid if an Arbitration decision is ultimately made against your claims, unless the Arbitrator determines that your claim(s) were frivolous or asserted in bad faith;
(h) in the event you recover an Award greater than WhatPods’ last written settlement offer, the Arbitrator shall also have the right to include in the Award WhatPods’ reimbursement of your reasonable and actual out-of-pocket legal fees associated with the Arbitration; and, in the event you recover an Award lower than WhatPods’ last written settlement offer, the Arbitrator shall also have the right to include in the Award your reimbursement of WhatPods’ reasonable and actual out-of-pocket legal fees associated with the Arbitration.
(i) with the exception of subpart (e) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the applicable Arbitration Rules, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor WhatPods shall be entitled to arbitrate their dispute, and must instead bring any claims in a court of competent jurisdiction.
(j) WhatPods may modify these arbitration provisions, but such modifications shall only become effective thirty (30) days after WhatPods has given notice of such modifications and only on a prospective basis for claims arising from WhatPods Transactions and Relationships occurring after the effective date of such notification.
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