1.1 Please read the following terms and conditions of use (Terms) to understand your rights and obligations when accessing and navigating the website located at nearbites.com (Website) and the nearbites app (App) and the content, products and services (together, the Services) made available by Nearbites Pty Ltd (ACN 639 725 554) (we, us). By downloading, installing and using the Services, you agree to be bound by these Terms. If you do not accept these Terms, you must immediately cease using the Services.
1.2 We reserve the right to update or amend these Terms from time to time. Updates or amendments will be effective as soon as such changes are notified on the Website or via the App. Your continued use of the Services following such notification constitutes agreement by you to be bound by these Terms as updated or amended.
1.3 These Terms constitute the entire agreement between you and us with respect to their subject matter and supersede all prior agreements and understandings between you and us in connection with the Services.
2.1 The Services we provide constitute an online platform which enables:
users of the Services to create, find and share information relating to meals and restaurants; and
restaurants to list and promote their businesses.
2.2 Subject to your compliance with these Terms, we grant you a limited non-exclusive, non-transferable and revocable licence to download and install the Services and use and run the Services for personal, non-commercial use on your personal device or computer system. You have no right to sublicense the licence granted in this clause.
2.3 The Services and all rights therein are and shall remain our property or the property of our licensors. Neither these Terms nor your use of the Services convey or grant to you any rights in or related to the Services (except for the limited license granted above) or to use or reference in any manner our company names, logos, product and service names, trademarks or services marks or those of our licensors.
2.4 The Services may be made available or accessed in connection with third party services and content (including advertising) that we do not control. You acknowledge that different terms of use and privacy policies may apply to your use of such third party services and content. We do not endorse such third party services and content and in no event shall we be responsible or liable for any products or services of such third party providers.
2.5 Apple Inc., and Google, Inc., Microsoft Corporation and their applicable international subsidiaries and affiliates will be third-party beneficiaries to these Terms if you access the Services using applications developed for mobile devices running Apple iOS, Google Android or Microsoft Windows, respectively. These third party beneficiaries are not parties to these Terms and are not responsible for the provision or support of the Services. Your access to the Services using these devices is subject to terms set out in the applicable third party beneficiary's terms of service.
2.6 You are responsible for obtaining the data network access necessary to use the Services and for ensuring that your device meets the system requirements for the Services. Your mobile network's data and messaging rates and fees may apply if you access or use the Services from a wireless-enabled device and you shall be responsible for such rates and fees. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and any updates thereto. We do not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the internet and electronic communications.
2.7 You agree that we can download and install updates to the Service on your device.
3.1 To fully utilise most aspects of the Services you must register for, and maintain, an active account (Account):
to obtain an Account you must be you must be at least 13 years old or the minimum legal age in your country to use the App;
unless authorised by us, you may only possess one account. Sale, resale, transfer or trading of your Account is prohibited;
unless you create an account using a third party login credential (eg, Google or Facebook), you must nominate a password for your Account; and
you must keep your username and password secret and secure at all times.
3.2 We assume that any person using the Services with your username and password is either you or is authorised to act for you. You are solely responsible for any activity that occurs on your Account.
3.3 Please contact us immediately if you suspect a security breach in relation to your device or computer system or that an unauthorised person has used your password or other credentials to access the Services.
3.4 If we receive a report from you regarding a security breach or unauthorised use, we will suspend your use of the Services to protect you from further loss or liability. We will not be liable for any security breaches conducted using the Services.
3.5 You must provide us with and maintain accurate, complete and current Account information including a valid email address. If you fail to maintain accurate, complete and up-to-date Account information, your access to the Services may be restricted, suspended or cancelled.
3.6 You agree to comply with all applicable laws when using the Services and you may only use the Services for lawful purposes. You will not, in your use of the Services, cause nuisance, annoyance, inconvenience, or property damage, whether to us or any other party.
3.7 In certain instances you may be asked to provide proof of identity to access or use the Services, and you agree that you may be denied access to or use of the Services if you fail or refuse to provide such proof of identity.
3.8 You are responsible for the use and safety of your Account. You are liable for all transactions made through your Account, except to the extent to which there has been fraud or negligence by us.
4.1 We may, in our sole discretion, permit you from time to time to submit, post, publish, upload or otherwise make available to us through the Services textual and/or visual content and information. Other than information about an identifiable individual, which is covered under our Privacy Policy, any material you submit, post, publish or upload to the Service (User Material) is non-confidential and non-proprietary.
4.2 You consent to any act or omission which would otherwise constitute an infringement of your moral rights in respect of User Material. This consent survives any termination of these Terms.
4.3 You agree that we will have no obligations with respect to any User Material, and that we and anyone we designate will be free to copy, disclose, distribute, incorporate and otherwise use any User Material and all data images, text and other things embodied in the User Material for any and all commercial and non-commercial purposes.
4.4 By posting, uploading or transmitting any User Material, you represent and warrant that any User Material does not and will not:
breach any applicable law;
contain any viruses or any other harmful program;
contain any defamatory, obscene or offensive material;
be contrary to the 'spirit of' nearbites or the intended use of the App;
promote violence or discrimination;
infringe the intellectual property rights of another person;
breach any legal duty owed to a third party (such as a duty of confidence);
promote illegal activity or breach the privacy of any other person;
be threatening, abuse or invade another person's privacy or be likely to harass, upset, embarrass or annoy any other person;
give the impression that the User Material originates from us;
be used to impersonate another person or to misrepresent your affiliation with another person; or
contain any unsanctioned advertising, promotional materials, or other forms of unsanctioned solicitation, including without limitation junk mail, spam, chain letters or any unsolicited mass distribution of email.
4.5 The prohibited acts set out in above are not exhaustive. We reserve the right (but do not undertake, unless required by law, any obligation) to edit or remove any User Material without notice to you, in our sole discretion.
4.6 Any User Material provided by you remains your property. However, by providing User Material to us, you grant us an irrevocable, perpetual, exclusive, transferable, royalty free worldwide licence to use, copy, modify, distribute and otherwise exploit in any manner any User Material in any manner we think fit (including without limitation, by reproducing, altering or communicating the User Material to the public), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity. You also grant us the right to sublicense these rights.
4.7 You represent and warrant that you either are the sole and exclusive owner of all User Material or you have all rights, licenses, consents and releases necessary to grant us the license to the User Material as set forth above. You also represent and warrant that neither the User Material nor your submission, posting, publishing, uploading or otherwise making available of such User Material nor our use of the User Material as permitted in these Terms will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
4.8 All User Material contained on the Services is for information purposes only and does not constitute advice from us. User Materials reflect the opinions of users who have used the Services, and any statements, advice or opinions provided by such persons are theirs alone. To the maximum extent permitted by law, including any restrictions contained in the Australian Consumer Law, we assume no responsibility or liability to any person for any User Materials, including without limitation any errors, defamatory statements, obscenity, omissions or misrepresentations in any such User Materials.
5.1 The Services are provided to you strictly on an “as is” and “as available” basis. You acknowledge that:
your use of the Services is at your own risk;
prior to accepting these Terms you have been given a reasonable opportunity to examine and satisfy yourself regarding the Services which are the subject of these Terms; and
at no time prior to accepting these Terms have you relied on our skill or judgment and that it would be unreasonable for you to do so.
5.2 We disclaim all representations and warranties, express, implied or statutory, not expressly set out in these Terms, including any implied warranties of merchantability, fitness for a particular purpose and non-infringement, and make no representation, warranty, or guarantee regarding the reliability, timeliness, quality, suitability or availability of the Services or any services or goods sought through the use of the Services. To the maximum extent permitted by law, all warranties or conditions which are not guaranteed by the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law) are expressly excluded, including liability for loss of expectations, loss of profits, incidental or consequential loss or damage caused by breach of any express or implied warranty or condition. In particular, we do not warrant:
that your access to the Services will be free from interruptions, errors or viruses;
the accuracy, adequacy or completeness of information on the Services (nor do we undertake to keep the Services updated).
5.3 To the extent that we are in breach of any consumer guarantee or any other warranty or condition that cannot be excluded from these Terms your sole remedy will be for us to provide the features or service that was previously provided.
6.1 To the maximum extent permitted by law, we do not accept responsibility for any loss or damage (including indirect, special or consequential loss or damage), however caused and whether or not foreseeable (whether in contract, tort, for breach of statutory duty or otherwise), even if we have previously been advised of the possibility of such loss or damage which you may directly or indirectly suffer in connection with:
your use of the Services or any linked website (including interference with or damage to your computer system or mobile devices arising in connection with any such use);
the Services being interrupted or unavailable or your inability to access the Services;
errors or omissions from the Services;
viruses, malicious codes or other forms of interference emanating from the Services;
your use of or reliance on information contained on or accessed through the Services, which may be incorrect, incomplete, inadequate or outdated;
goods or services supplied pursuant to or in any way connected with the Services;
unauthorised access to or use of our servers and/or any information stored on them; or
any failure or omission on our part to comply with our obligations as set out in these Terms.
6.2 We do not accept responsibility for any inaccuracies or errors in any information about, or advertisements in respect of, goods and services displayed on the Services which are supplied by User Material. The information or advertisements displayed on the Services does not constitute a recommendation or endorsement by us of the relevant goods or services.
7.1 The Services and their content (including its 'look and feel', text, graphics, logos, photographs, editorial content, sound recordings, software and other material) is owned by us or licensed to us by third parties and protected under applicable laws.
7.2 Other than for the purposes of, and subject to the conditions prescribed under, the Copyright Act 1968 (Cth), and except as expressly authorised by these Terms or in writing by us, you may not in any form or by any means:
copy adapt, reproduce, store, distribute, print, display, perform, publish or create derivative works from any part of the Services; or
commercialise any information, products or services obtained from any part of the Services.
7.3 All rights not expressly granted under these Terms are expressly reserved.
8.1 Except where otherwise specified, any word or device to which is attached the ™ or ® symbol is a registered trade mark of ours.
8.2 If you use any of our trade marks (whether or not registered) with reference to our activities, products or services, you must include a statement attributing that trade mark to us. You must not use any of our trade marks:
in or combined with the whole or part of your own trade marks;
in connection with activities, products or services which are not ours;
in a manner which may be confusing, misleading or deceptive; or
in a manner that disparages us or our information, products or services (including the Services).
9.1 The Services may contain links to other websites (Linked Websites). Those links are provided for convenience only and may not remain current or be updated by us.
9.2 We are not responsible for the content or privacy policies or practices of persons or companies associated with Linked Websites. We will not be liable to you or any other person for any loss or cost arising in respect of use or access to Linked Websites. When you access any Linked Websites you do so entirely at your own risk.
9.3 Linked Websites should not be construed as an endorsement, approval or recommendation by us of the owners or operators of those Linked Websites, or of any information, graphics, materials, products or services referred to or contained on those Linked Websites, unless and to the extent stipulated to the contrary.
10.1 We undertake to comply with the terms of our Privacy Policy which is available on the Website.
10.2 No data transmission over the internet can be guaranteed as totally secure. Whilst we strive to protect such information, we do not warrant and cannot ensure the security of any information which you transmit to us. Any information which you transmit to us is transmitted at your own risk.
While we endeavour to ensure the Services are available twenty four (24) hours a day, we are not under any obligation to do so, and will not be liable to you if the Services are unavailable at any time or for any period. Your access to the Services may also be occasionally restricted or suspended temporarily at any time and without notice to you to allow for repairs, maintenance or the introduction of new facilities or services.
Without limiting any other means of communicating with you under these Terms, we may as part of the normal business operation, send an email to the email address you have supplied to us or write to you using the postal address you have supplied to us.
13.1 You are prohibited from doing any act that we, acting reasonably, consider to be inappropriate, or which is unlawful or prohibited by any laws applicable to the Services, including but not limited to any act which would constitute a breach of privacy, using the Services to defame or libel us, our employees or any other person or for fraudulent purposes.
13.2 You must not:
modify, copy, distribute, transmit, display, perform, reproduce, publish, license, commercially exploit, create derivative works from, transfer, or sell any content, software, products or services contained within or derived from the Services without our prior written approval;
reverse engineer the code contained in the Services or upload files which contain viruses or malware which may cause damage to our property or the property of other individuals or post or transmit to the Services any material which we have not authorised including material which is, in our sole opinion, likely to cause annoyance, or which is racist, defamatory, obscene, threatening, pornographic or otherwise or which is detrimental to or in violation of our security protocols;
create internet links to the Services, or 'mirror' the Services on any other server or wireless or internet-based device;
build a product using similar ideas, features, functions or graphics or copy any such materials contained in the Services;
damage, disrupt, interfere with, impair the operation of or misuse the Services, including by data mining, hacking, data harvesting or scraping or using similar data gathering and extraction tools in respect of the Services;
launch any automated program or script, including web crawlers, web robots, web indexers, bots, viruses or worms or any program which makes multiple server requests per second or impairs the operation and/or performance of the Services; or
use any device, software or routine intended to damage or interfere with the proper working of the Services or to intercept or sequester any system, data, images or other multimedia elements from the Services.
13.3 You agree to indemnify and hold us and our officers, directors, employees and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including legal fees) arising out of or in connection with:
your use of the Services or services or goods obtained through your use of the Services;
your breach or violation of any of these Terms;
our use of your User Material; or
your violation of the rights of any third party.
If you have any complaints, questions or would like more information about the Services, please contact us at [email protected].
If you are a consumer, the laws of the country in which you reside will apply to any claim, cause of action, or dispute you have against us that arises out of or relates to these Terms, and you may resolve your claim in any competent court in that country that has jurisdiction over the claim.
15.1 We may terminate your Account in our sole and absolute discretion without notice to you, including if:
we suspect you have breached these Terms or any applicable law;
we believe that there has been a security breach or unauthorised use of your Account;
we reasonably suspect you have committed fraud;
if required by applicable laws;
we determine that your conduct impacts on our name or reputation or violates our rights or those of another party; or
you do not use the Services for an extended period of time.
15.2 You may also cancel your Account by notifying us but once terminated or cancelled, your Account cannot be re-activated and we reserve the right to deny you access to the Services.
15.3 Following cancellation or termination of your Account, you will forfeit all entitlements and benefits associated with your Account and we will have no further obligations or liabilities to you. All of your user content will remain even after your Account has been terminated or cancelled and may be dealt with by us as we think fit. Any exclusions of liability or other provisions contained in these Terms which expressly or by their nature survive termination of these Terms will survive any such termination.
You may not assign or transfer these Terms in whole or in part without our prior written approval. You give your approval to us for us to assign or transfer these Terms in whole or in part, including to a subsidiary or affiliate, an acquirer of our equity, business or assets or a successor by merger. No joint venture, partnership, employment or agency relationship exists between you, us or any third party as a result of the agreement between you and us under these Terms or use of the Services.
If any provision of these Terms is held to be illegal, invalid or unenforceable, in whole or in part, under any law, such provision or part thereof will to that extent be severed and deemed not to form part of these Terms but the legality, validity and enforceability of all other provisions of these Terms will not be affected.
These Terms are governed by the laws in force in the State of Victoria, Australia excluding its rules on conflicts of laws and you agree to submit to the exclusive jurisdiction of the courts of that State in respect of any dispute arising from these Terms.