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End User License Agreement for Google Play

EQUIPSUPER LICENCE AGREEMENT

This end user licence agreement sets out the terms and conditions on which Equipsuper will grant a licence to use the Equipsuper Application to a User who downloads the Equipsuper Application.  

By clicking the ‘I accept’ button or otherwise confirming the User’s acceptance of this licence agreement electronically, the User agrees that it has read, understood and will be bound by this licence agreement. 

The User will also be required to agree to and comply with the User Terms in order to access and use the Equipsuper Application. 

1. Definitions and interpretation

1.1 Definitions  

In this licence agreement, unless the context otherwise requires:

(a) Commencement Date means the date the User clicks the ‘I accept’ button or otherwise confirms the User’s acceptance of this licence agreement electronically. 

(b) Consequential Loss means:

(i) any form of indirect, special or consequential loss, including loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain and loss of opportunity; and

(ii) any loss beyond the normal measure of damages.

(c) Device has the meaning given to it in the Google Play Developer Distribution Agreement.

(d) Documentation means any manuals, guides, reference materials or other similar documents in any form made available by Equipsuper to the User in connection with the Equipsuper Application.

(e) Equipsuper means Equipsuper Pty Ltd ABN 64 006 964 049, AFS Licence #246383 as trustee of the superannuation fund known as Equipsuper ("Fund") ABN 33 813 823 017 of Level 12 330 Collins St, Melbourne Vic 3001. 

(f) Equipsuper Application means the online application that enables users to access the Equipsuper website (www.equipsuper.superfacts.com) from a handheld mobile device pursuant to this licence agreement.

(g) Google means Google LLC, a Delaware limited liability company with its principal place of business at 1600 Amphitheatre Parkway, Mountain View, California 94043, U.S.A. 

(h) Google Play means the digital distribution platform operated by Google for applications for the Android operating system.

(i) Intellectual Property includes all patents, designs, copyright, trade marks or circuit layout rights and any right to apply for the registration or grant of any of the above. 

(j) Loss means any loss, liability, cost, claim, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and whether direct loss or Consequential Loss.

(k) Permitted Purpose means accessing and using the Equipsuper Application in accordance with this licence agreement, the User Terms and in accordance with and as permitted by the usage rules set out in the Google Play Terms of Service.

(l) Term means has the meaning given in clause 6.1 of this licence agreement.

(m) Third Party Application means any product, service, system, application or internet site that is integrated or interfaced with the Equipsuper Application or otherwise interacts with the Equipsuper Application and that is owned or operated by a third party.

(n) User means the person who downloads the Equipsuper Application and who enters into this licence agreement. 

(o) User Terms means Equipsuper’s then current terms and conditions or terms of use applicable to the use of the Equipsuper Application by the User.

1.2 Interpretation 

In this licence agreement, headings are inserted for convenience only and do not affect the interpretation of this licence agreement and, unless the context otherwise requires:

(a) the singular includes the plural and vice versa;

(b) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;

(c) the meaning of general words is not limited by specific examples introduced by ‘includes’, ‘including’, ‘for example’, ‘such as’ or similar expressions; 

(d) a reference to a person includes an individual, a partnership, a corporation or other corporate body, a joint venture, a firm, a trustee, a trust, an association (whether incorporated or not), a government and a government authority or agency; and

(e) if there is any inconsistency between the provisions of this licence agreement, the provisions of the Google Play Terms of Service, and/or the provisions of the Google Play Developer Distribution Agreement, the following order of precedence shall apply to the extent of the inconsistency:

(i) the provisions of the Google Play Developer Distribution Agreement;

(ii) the provisions of the Google Play Terms of Service; and

(iii) the terms of this licence agreement. 

1.3 Parties

Equipsuper and the User acknowledge that this licence agreement is concluded between Equipsuper and the User only, and not with Google.

2. Licence 

2.1 Grant of licence 

Subject to the restrictions in clause 2.2, Equipsuper grants the User a personal, non-exclusive, worldwide, non-transferable, not-for resale or sub license, restricted right to access and use the Equipsuper Application for the Permitted Purpose on Devices owned or controlled by the User. 

2.2 Licence restrictions 

The licence granted to the User under clause 2.1 permits the User to access and use the Equipsuper Application solely for the Permitted Purpose and the User must not access or use the Equipsuper Application for any other purpose. Without limiting the above, the User must:

(a) only use the Equipsuper Application on any Device owned or controlled by the User as permitted by this licence agreement and by the provisions of the Google Play Terms of Service; 

(b) not make any copies of the Equipsuper Application (other than copies that are made to download the Equipsuper Application and install the Equipsuper Application for the Permitted Purpose);   

(c) not modify, adapt, translate, reverse engineer, de-compile, disassemble or copy all or any part of the Equipsuper Application;

(d) not attempt to circumvent or break any licence keys or any other encryption, decryption or other security device or technological protection measure contained in the Equipsuper Application;

(e) not distribute any part of the Equipsuper Application for commercial purposes or otherwise sub-licence or resell the Equipsuper Application;

(f) not create derivative works from all or any part of the Equipsuper Application;

(g) not transfer, assign, rent, lease, lend, sell or otherwise dispose of all or any part of the Equipsuper Application; or

(h) not publish, communicate or otherwise make any part of the Equipsuper Application publically available.

2.3 Monitoring Use and Access

For security, statistical and other related purposes Equipsuper may monitor the User's access to and use of the Equipsuper Application and record or otherwise capture data or other information relating to the User's access to and use of the Equipsuper Application. 

3. Updates and support 

(a) The User acknowledges that nothing in this licence agreement or the User Terms imposes obligations on Equipsuper to develop, release or install for the User any updates, upgrades, patches, bug fixes, new releases or new versions in respect of the Equipsuper Application (Updates), provided however that if Equipsuper does develop or release any Updates, it may require that all such Updates be used by the User. The User also acknowledges that nothing in this licence agreement imposes obligations on Equipsuper to provide any services to the User in respect of the Equipsuper Application including (without limitation) development or customisation services, technical support, training or maintenance services.

(b) The User acknowledges and agrees that Equipsuper retains the sole discretion regarding the features of the Equipsuper Application and nothing in this licence agreement requires Equipsuper to provide functions and other benefits of the Equipsuper Application or maintain any features, functions or other benefits in respect of the Equipsuper Application. The User also acknowledges and agrees that Equipsuper may discontinue or alter any such features, functions or other benefits as Equipsuper sees fit from time to time. 

(c) The User and Equipsuper acknowledge that Google has no obligation whatsoever to furnish any maintenance and support services with respect to the Equipsuper Application (whether under this licence agreement or pursuant to any applicable law) and the User must contact Equipsuper concerning any defects or performance issues with the Equipsuper Application. 

4. Documentation and policies

The User must use only the most recent version of the Documentation provided or made available by Equipsuper, and must follow any reasonable directions in the Documentation regarding the use of the Equipsuper Application. 

5. Third Party Applications

(a) The User acknowledges and agrees that the Equipsuper Application may interact with Third Party Applications or require Third Party Applications to be used to provide particular features or functionality.   Where such Third Party Applications are used, the User acknowledges and agrees that:

(i) Equipsuper makes no representations or warranties relating to the Third Party Applications;

(ii) Equipsuper is not related or associated with the providers of any Third Party Applications;

(iii) the inclusion of any link to or integration with any Third Party Application does not constitute or imply any affiliation with, or sponsorship, endorsement or approval by Equipsuper of the Third Party Application or the provider of the Third Party Application;

(iv) the User will abide by any obligations or third party agreement imposed upon it by the provider of the Third Party Application; and

(v) access to, and use of, Third Party Applications is at the User’s risk and Equipsuper will in no way be responsible for any Loss that may result from the User’s access to, and use of, any Third Party Application, notwithstanding that any such Third Party Application may interface or interact with the Equipsuper Application.

(b) If the User does not agree to use any Third Party Applications or the terms of service of such Third Party Applications, the User acknowledges and accepts that certain features of the Equipsuper Application may not be available to the User.

6. Term and termination 

6.1 Term 

This licence agreement commences on the Commencement Date and will continue until terminated pursuant to clause 6.2.

6.2 Termination

Equipsuper may terminate this licence agreement and the licence granted under clause 2.1 effective immediately:

(a) by removing the Equipsuper Application from Google Play;

(b) if the Equipsuper Application is removed from Google Play by Google;

(c) if the User breaches a term or condition of this licence agreement or the User Terms and fails to remedy such breach within seven days after being provided with written notice of the breach by Equipsuper; 

(d) if the User breaches a term or condition of this licence agreement or the User Terms which Equipsuper considers cannot be remedied; or 

(e) if Equipsuper terminates the User’s access to or use of the Equipsuper Application under the User Terms. 

6.3 Post termination obligations 

Immediately on termination of this licence agreement, the User must:

(a) cease all use of the Equipsuper Application; and 

(b) permanently delete all copies of the Equipsuper Application from any devices in its possession, custody or control. 

6.4 Survival of certain terms

The party’s obligations under clauses 2.2, 6.4, 7, 8, 9, 10 and 11 of this licence agreement will survive notwithstanding any termination of this licence agreement.

7. Intellectual Property

The User acknowledges that, subject to clause 2.1, nothing in this licence agreement grants the User any ownership of or rights in respect of the Intellectual Property in the Equipsuper Application or any Documentation or any modification, alteration, development, improvement, new use or other change to the Equipsuper Application or any Documentation. 

8. Consumer Guarantees 

8.1 Australian Consumer Law

The Australian Consumer Law (ACL) may confer certain consumer guarantees in relation to the Equipsuper Application or the performance of Equipsuper’s obligations under this licence agreement if the User acquires the Equipsuper Application as a ‘consumer’ within the definition of section 3 of the ACL and nothing in this licence agreement should be interpreted as attempting to exclude, restrict or modify the application of any rights arising from any such consumer guarantees.  

8.2 Limitation of liability

If the User makes a claim against Equipsuper regarding the goods or services provided under this licence agreement in respect of a breach or alleged breach by Equipsuper of the consumer guarantee provisions of the ACL and the relevant goods or services are not of a kind ordinarily acquired for personal, domestic and household use, then to the extent permitted by law, Equipsuper’s liability to the User for such a breach or alleged breach of the consumer guarantee will be limited, at the election and discretion of Equipsuper, to:

(a) if the breach relates to goods:

(i) the replacement of the goods or the supply of the equivalent goods;

(ii) the repair of the goods;

(iii) the payment of the cost of replacing the goods, of acquiring equivalent goods or having the goods repaired; or

(b) if the breach relates to services:

(i) the supply of the services; or

(ii) the payment of the cost of having the services supplied again.

9. Warranties and liability 

9.1 Warranty exclusions 

Subject to clause 8, Equipsuper does not warrant that the Equipsuper Application or any portion of the Equipsuper Application will meet the User’s requirements, the operation of the Equipsuper Application will be uninterrupted or error-free, the Equipsuper Application will be compatible with the User’s other software or systems or that the Documentation will be error free. All express or implied warranties in relation to the Equipsuper Application are expressly excluded. 

9.2 Equipsuper’s liability

Subject to clause 8 and any liability which cannot be excluded by law and notwithstanding any other provision of this licence agreement, the maximum aggregate liability of Equipsuper or any of its related bodies corporate to the User under or in connection with this licence agreement (including for breach of this licence agreement by Equipsuper or any negligent act or omission of Equipsuper) shall be limited to the sum of AUD$1,000. Equipsuper will not be liable to the User for any Consequential Loss incurred by the User under or in connection with this licence agreement or as a result of the User’s use of the Equipsuper Application, even if Equipsuper has been advised of the possibility of such Consequential Loss being incurred. 

10. Indemnity 

The User will indemnify Equipsuper and each of its directors, officers, employees, agents, contractors and related bodies corporate (Indemnified Parties), and keep each of them indemnified, against any claim made against an Indemnified Party or Loss suffered or incurred by an Indemnified Party which arises from or in respect of:

(a) any breach by the User of this licence agreement; or

(b) any negligent, or wilful acts or omission, theft, misconduct, dishonesty or fraud committed by the User, its officers, directors, employees, agents, representatives, delegates or contractors. 

11. General provisions

11.1 Subcontractors

The User agrees and acknowledges that Equipsuper may subcontract the performance of any of its obligations or the exercise of any of its rights under this licence agreement to any sub-contractor without the User’s consent and on such terms and conditions as Equipsuper deems fit from time to time. 

11.2 Governing law

This licence agreement will be governed by and construed exclusively under the laws of the State of Victoria, Australia and the parties submit to the non-exclusive jurisdiction of the courts of the State of Victoria and the Federal Court of Australia. 

11.3 International conventions 

The United Nations Convention on the International Sale of Goods (the Vienna Convention) will not apply to this licence agreement or the subject matter hereof. 

11.4 Assignment

The User may not assign or otherwise deal with any of its rights or obligations under this licence agreement without the prior written consent of Equipsuper.  Equipsuper may assign, novate or otherwise deal with its rights under this licence agreement at any time effective immediately upon Equipsuper notifying the User of the assignment or novation.

11.5 Entire agreement

This licence agreement and the User Terms constitutes the entire agreement between the parties with respect to its subject matter and supersedes all previous communications, representations, inducements, undertakings, agreements or arrangements between the parties or their respective officers, employees or agents.

11.6 Waiver and variation 

This licence agreement will not be varied except by a document in writing signed by the parties. No failure to exercise or delay in exercising any right given by or under this licence agreement to a party constitutes a waiver and the party may still exercise that right in the future.

11.7 Liability of parties 

If a party consists of more than one person:

(a) an obligation of those parties is a joint obligation of all of them and a several obligation of each of them;

(b) a right given to those parties is a right given jointly and severally to each of them, and if exercised by one of them, is deemed to be exercised jointly; and

(c) a representation, warranty or undertaking made by those parties is made by each of them.

11.8 Severability 

If any provision of this licence agreement is invalid or not enforceable in accordance with its terms in any jurisdiction, it is to be read down, if possible, so as to be valid and enforceable and will otherwise be capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this licence agreement or affecting the validity or enforceability of that provision in any other jurisdiction.

11.9 Contacting Equipsuper

The User may contact Equipsuper by email or telephone. Any questions, complaints or claims with respect to this licence agreement or the Equipsuper Application should be directed to Equipsuper by phone on+61 3 9248 5930 or email at legal@equipsuper.com.au.

 

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