Terms and Conditions
DYNA APP USER TERMS AND CONDITIONS
1. GENERAL
1.1 The Dyna mobile application (the Dyna App) is created, operated and controlled by Dyna Social Pty Ltd (ACN 677 000 823) (Dyna, we, us or our).
1.2 By downloading, accessing and using the Dyna App and the Services, you acknowledge that you have read, understood and accept the Dyna App User Terms and Conditions (agreement), together with our Privacy Policy, and agree to abide by them. If you do not accept this agreement, you must not download, access and use the Dyna App and Services.
1.3 In this agreement, you and your means the individual who downloads, accesses or uses the Dyna App and the Services (and includes anyone acting on your behalf or with your express or implied authority).
2. DYNA APP
2.1 The Dyna App is a mobile application that allows:
(a) you (as a Customer) to share, post or publish suggestions, reviews, comments or recommendations about a Venue or Venue Operator with other uses of the Dyna App;
(b) you (as a Customer) to view suggestions, recommendations, comments and reviews posted, submitted or published by other users through the Dyna App;
(c) you (as a Customer) to search for Venues, Venue Operators and Menu Items that may be of interest to you; and
(d) you (as a Venue Operator) to display, advertise and promote your Venue and Menu Items (including, but not limited to, special promotions and discounts on Menu Items and links to the Venue Operator’s website or booking page),
(collectively, the Services).
2.2 Dyna is not an advertiser, Venue Operator, Customer, hospitality provider, supplier or retailer of food and beverage products and/or services. The Dyna App is a mere online tool for allowing Customers to publish, submit or post suggestions, recommendations, comments or reviews about Venues, and Venues to advertise their Venue and Menu Items to Customers. Our role in providing you with access and use of the Dyna App and the Services should be construed strictly in this context only.
2.3 By downloading, accessing and using the Dyna App, Dyna grants you a non-exclusive, non-transferable, personal, revocable and non-sublicensable licence to download, install, access and use the Dyna App and the Services for the Term. You will not acquire or be entitled to any rights other than those rights expressly set out in this agreement.
3. TERM
3.1 This agreement will commence on the date you download and access the Dyna App (Commencement Date) and shall continue until terminated in accordance with its terms (Term), unless, in the case of a Venue Operator, you terminate the agreement during the Trial Period in accordance with clause 3.2.
3.2 If you (as a Venue Operator) do not wish to continue to access and use the Dyna App and Services following the expiry of the Trial Period, you must terminate the agreement prior to the expiry of the Trial Period by using the ‘delete account’ function in the settings page of the Dyna App.
4. REGISTRATION AND ACCESS
4.1 If you wish to access and use the Dyna App and Services you must download the Dyna App from the Apple Store/Google Play Store and:
(a) if you are a Customer, you can either enter as a guest (in which case, you will not have access to all of the functions or features of the Dyna App) or you can create an account with us via the Dyna App (Customer Account); or
(b) if you are a Venue, you must create and setup an account with us via the Dyna App (Venue Account).
4.2 Your Customer Account or Venue Account (User Account) will be operated by a username (User Name), email address and password (Password). You may change your Password any time by you accessing the ‘Password Reset’ function on the Dyna App. We may at any time request that the owner of the User Account provide identification to verify their identity.
4.3 In order to open a User Account or otherwise access and use the Dyna App and the Services, you must:
(a) be over 16 years of age, and legally able to enter into contractual relations. If you are under the age of 16 years, you may only access and use the Dyna App and the Services if you have your parents’/guardians’ permission to download, access and use the Dyna App and the Services. Your continued use of the User Account constitutes an acknowledgement by you that you are: (i) over 16 years of age; or (ii) under 16 years of age, but have your parents’/guardians’ permission to access and use the Dyna App and the Services and that your parents/ guardians have agreed to abide by this agreement; and
(b) provide accurate and complete registration information (including Personal Information) as described in clause 6 (if you are a Venue Operator) or clause 7 (if you are a Customer). The only registration information in your User Account that can be viewed by Venue Operators or other Customers is your User Name. All Personal Information as well as the information you provide to setup your User Account is subject to our Privacy Policy.
4.4 In relation to your User Account, you are responsible for:
(a) maintaining control over, and the confidentiality of, your User Name and Password;
(b) keeping your User Name and registration information current, complete, accurate, and truthful. You must not impersonate another account holder or provide false identity information to gain access to or use the Dyna App and the Services;
(c) notifying us in writing of any unauthorised access to, or use of, your User Account, User Name or Password; and
(d) for all activities or transactions that occur using your User Account. We are not liable for any Loss or damage arising out of, or in connection with, any unauthorised access or use of, your User Account, User Name or Password.
4.5 Dyna has the right to suspend or terminate your User Account or your access or use of all or any part of the Dyna App and/or the Services, at any time, if, in our opinion, you have failed to comply with any of the provisions of this agreement.
5. GENERAL OBLIGATIONS
5.1 To access and use the Dyna App and the Services, you must (as either a Customer or Venue Operator):
(a) open a User Account with us via the Dyna App (unless you are a Customer entering as a Guest);
(b) provide us with all necessary co-operation and information to facilitate and provide the Dyna App and the Services to you, including (but not limited to) proof of identity;
(c) ensure that all information is true, accurate and not misleading;
(d) obtain and maintain all equipment, hardware and software required by you to use and/or access the Dyna App and the Services;
(e) comply with all reasonable directions, policies and guidelines of Dyna as advised from time to time (including the Acceptable Use Policy); and
(f) carry out all of your responsibilities set out in this agreement in a timely and efficient manner.
5.2 We will not be liable to you or anyone else if, for any reason, the Dyna App or the Services are unavailable at any time or for any period. From time to time, we may suspend or restrict access to all, or some parts of, the Dyna App and/or the Services. You are also responsible for ensuring that all persons who access the Dyna App and the Services (such as through your mobile phone or other device) are aware of this agreement, and that they comply with them.
6. VENUE OPERATOR OBLIGATIONS
6.1 At the time a Venue Operator creates a Venue Account with us, the Venue Operator must also create a Venue Profile, which will include your business information and Personal Information, such as:
(a) your business name, business logo or banner, profile picture, Australia Business Number (‘ABN’), main business and contact details (including contact person, email address, location and website address or booking page address);
(b) the type or theme of the Venue, trading hours of the Venue, Menu Items, any special promotions and discounts on Menu Items and other Venue Content; and
(c) any other information that Dyna may require to verify your identity, Venue Profile and the accuracy of any Venue Content displayed or listed on, or via, the Dyna App.
6.2 At any time you may:
(a) edit your Venue Account or update or change your Venue Profile and Venue Content; or
(b) update, change, delete or add Menu Items advertised, listed or displayed by you on, or via, the Dyna App.
6.3 Dyna will not be liable to you (as a Venue Operator) or any third party in connection with or arising out of, any:
(a) failure to update or change your Venue Account, Venue Profile, Venue Content or any Menu Items advertised, listed or displayed by you on, or via, the Dyna App following your request; or
(b) Loss incurred by you (as a Venue Operator), Customers or any third party as a result of, or in connection with, any content or information supplied by you which is uploaded, published or submitted by you to the Dyna App.
6.4 At all times, you warrant and guarantee that:
(a) your Venue Profile and Venue Content is accurate and up-to-date. You will immediately update your Venue Profile and/or Venue Content (as the context permits) if any of the details or information previously supplied by you is now inaccurate, incomplete or out of date;
(b) any Menu Items supplied by you will be: (i) fit for purpose and in accordance with the standard of professional care customarily observed by independent contractors rendering similar services; and (ii) accurately described in the Venue Profile (including with respect to ingredients, portion size and nutritional information);
(c) your Venue Profile and Venue Content does not infringe the Intellectual Property Rights or other rights of any person; and
(d) all Menu Items supplied by you will be prepared, handled, packaged, labelled and delivered to the Customer at the Venue in accordance with all Relevant Laws and Food Safety Standards;
(e) no Venue Content is or could reasonably be considered to be obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, blasphemous, in breach of confidence or privacy or false and misleading; and
(f) nothing in the Venue Content would bring Dyna or the Dyna App, into disrepute or adversely affect the reputation and goodwill of Dyna or the Dyna App.
6.5 If you fail to comply with clause 6, Dyna may, at our absolute discretion and with or without notice to you:
(a) remove your Venue Profile or delete particular Venue Content listed or displayed on your Venue Profile; or
(b) to restrict, suspend or terminate your Venue Profile.
6.6 If you delay or fail to perform your obligations under this agreement, Dyna is not responsible for any delay or failure to provide the Services as a consequence.
6.7 Dyna is not responsible for monitoring or censoring:
(a) communications, comments, suggestions, recommendations or reviews published by Customers on the Dyna App; or
(b) Venue Content published by Venue Operators on the Dyna App,
however, we may (in our absolute discretion and with notice to you) remove, modify, delete or alter any Venue Content, Venue Profile, communications, comments, suggestions, recommendations or reviews published by Customers on the Dyna App if we consider that such content or information does not comply with this agreement (including our Acceptable Use Policy and any other policy or guideline published by us from time to time).
7. CUSTOMER OBLIGATIONS
7.1 You (as a Customer) must, unless you enter as a guest, create a Customer Account with us via the Dyna App. When creating a Customer Account with Dyna, the Customer must provide accurate and complete registration information, which will include your Personal Information, such as full name and email address.
7.2 We do not recommend or endorse any Venue Operators (including Venue Profiles) or any content, comments, suggestions, reviews or recommendations published, posted or appearing on a Venue Profile, the Dyna App or our related social media pages. You acknowledge and agree that, to the maximum extent permitted by Relevant Laws:
(a) Dyna is not responsible for monitoring or censoring Venue Content, Venue Profiles, communications, comments, suggestions, recommendations or reviews published by you or another Customer on the Dyna App; however, we may (in our absolute discretion and with notice to you) remove, modify or refuse to publish or alter any Venue Profile, Venue Content or communications, comments, suggestions, recommendations or reviews published by you or another Customer if we consider that such information or content does not comply with this agreement (including any of our policies or guidelines published by us from time to time);
(b) Dyna makes no representations, warranties or guarantees in relation to the availability, continuity, reliability, accuracy, currency or security of the Dyna App, the Services or any other ancillary products or services made available to you on, or via, the Dyna App. You acknowledge that the Venue Profiles, Venue Content or any other ancillary products or services made available to you on, or via, the Dyna App are provided ‘as is’; and
(c) Dyna makes no representations, warranties or guarantees in relation to: (i) the standard, quality, suitability, availability or fitness for purpose of any Venue Operator or Venue displayed, advertised or listed on the Dyna App (ii) the reliability, expertise, legitimacy, repute, or credibility of any Venue Operator or any comments, suggestions, recommendations or reviews published, submitted or posted on the Dyna App; or (ii) a Venue Operators ability or willingness to accept a booking, permit you enter to the Venue or to otherwise provide or deliver Menu Items to you.
8. RESTRICTIONS
8.1 You must not: (nor attempt to do) any of the following:
(a) introduce, access, store, distribute or transmit any viruses, worm, trojan or other malicious code into the Dyna App;
(b) violate any Dyna IP or any third party Intellectual Property Rights;
(c) copy, modify, duplicate, create derivative works from, frame, mirror, republish, transmit or distribute all or any portion of the Dyna App, or any other third party software that you may access or use through the Dyna App, in any way;
(d) download or access all or any part of the Dyna App and/or the Services in order to build a product, service or code which competes or reproduces the Dyna App and/or the Services (in full or part);
(e) data mine the Dyna App or modify, alter, adapt, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Dyna App in any way, or otherwise learn the source code or algorithms underlying the Dyna App;
(f) license, sell, rent, lease, transfer, assign or otherwise commercially exploit the Dyna App and/or the Services; and
(g) use the Dyna App to engage in any activity or conduct that is in breach of any Relevant Laws.
8.2 We reserve the right to limit your use of the Dyna App and/or the Services, restrict, suspend or terminate your User Account and we may, at our absolute discretion, restrict, suspend or terminate your right to:
(a) as a Customer, view, publish, submit or post comments, suggestions, recommendations or reviews on, or via, the Dyna App; or
(b) as a Venue Operator, view, edit, delete, publish, submit or post your Venue Profile and Venue Content on, or via, the Dyna App,
8.3 if we believe you are in breach of this agreement or you are misusing Dyna App and/or the Services.
9. DYNA’S OBLIGATIONS
9.1 Subject to your compliance with the terms of this agreement, Dyna shall use reasonable endeavours to provide you with access to and use of the Dyna App and the Services.
9.2 The undertaking in clause 9.1 shall not apply in the event of:
(a) any non-conformance which is caused, or contributed, by use of the Services and the Dyna App contrary to our instructions or the terms of this agreement;
(b) modification or alteration of the Services and the Dyna App by any party other than us or our duly authorised Personnel;
(c) the unsuitability or malfunction of the computer hardware or computer software in conjunction with which the Dyna App and/or the Services are used;
(d) Force Majeure Events; and
(e) the unsuitability or malfunction of the Dyna App and/or the Services when used in conjunction with any software, platforms, applications and tools supplied by a third party provider.
9.3 In the event that we fail to provide you with access and use of the Dyna App and the Services in accordance with clause 9.1, we shall use reasonable endeavours to correct any such non-conformance, or provide you with an alternative means of accomplishing the desired performance. The foregoing constitutes your sole and exclusive remedy for any breach of clause 9.1.
10. ACCEPTABLE USE POLICY
10.1 By downloading, accessing and using the Dyna App and each time you publish, upload, submit, post or share:
(a) as a Venue Operator, Venue Content on, or via, the Dyna App,
(b) as a Customer, comments, suggestions, recommendations or reviews about a Venue Operator or Venue (Customer Content),
you agree to comply with the rules for the acceptable use of the Dyna App as specified herein (Acceptable Use Policy).
10.2 You are solely responsible for the accuracy, currency, completeness and use of Venue Content (in the case of Venue Operators) or Customer Content (in the case of Customers) published, submitted or posted by you on, or via, the Dyna App, and you agree to post or publish Venue Content or Customer Content (as the context permits) on, or via, the Dyna App at your own risk. Dyna accepts no responsibility and assumes no liability for any Venue Content or Customer Content posted, published or otherwise transmitted by you, any Venue Operator or Customer or any third party on, or via, the Dyna App.
10.3 Dyna is under no obligation to monitor, review, or otherwise control the Services or any Venue Content or Customer Content (as the context permits) listed, published or posted on, or via, the Dyna App by you, any other user of the Dyna App (including Venue Operators or Customers) or any third party. However, Dyna reserves the right, but is not obligated to edit, remove or refuse to edit or remove any Venue Content or Customer Content published, posted or otherwise made available on, or via, the Dyna App.
10.4 You must access and use the Dyna App and the Services only for lawful purposes. You must not access and use the Dyna App and/or the Services:
(a) in any way that breaches any Relevant Laws;
(b) in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
(c) to publish, post or upload Venue Content or Customer Content (as the context permits) intended to harm someone in any way or that is libellous, defamatory, obscene, vulgar, offensive, pornographic, indecent, racist, harassing, threatening, seditious, blasphemous, invasive of privacy or publicity rights, abusive, inflammatory, discriminatory otherwise objectionable;
(d) to publish, post or upload any Venue Content or Customer Content (as the context permits) that is false, misleading or deceptive or is likely to be false, misleading or deceptive (including, but not limited to, impersonating another person or user or misrepresenting your identity to users of the Dyna App);
(e) to publish, post or upload any Venue Content or Customer Content (as the context permits) that contains confidential, secret or proprietary information of another person;
(f) to upload or transmit any Venue Content or Customer Content (as the context permits) that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware; and
(g) to publish, post or upload Venue Content or Customer Content (as the context permits) that may infringe the Intellectual Property Rights or other rights of Dyna or any third party;
(h) to promote any illegal activity or advocate, promote or assist any unlawful act;
(i) to publish, post or upload any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam); and
(j) to lodge to a complaint or report through the Dyna App about Venue Content or Customer Content (as the context permits) that is maliciously or intentionally false or misleading.
10.5 By accessing or using Dyna App and/or the Services, you acknowledge that it is your responsibility to:
(a) ensure that all communications with other users of the Dyna App is polite, respectful and courteous and in the best interests of the intended recipient;
(b) ensure that any Venue Content or Customer Content (as the context permits) posted or transmitted through the Dyna App is accurate, reliable, up-to-date, and complete;
(c) respect the privacy rights of other users and third parties. You must not use the Dyna App to publish or post the name of persons without the actual or implied consent (unless you are publishing or posting a person’s name for business purposes, such as disclosing that a particular person is a provider of goods and/or services); and
(d) ensure that you have adequate legal rights to publish, post, transmit, reproduce or otherwise use the Venue Content or Customer Content (as the context permits) transmitted through the Dyna App.
10.6 The Dyna App and the Services are subject to a ‘fair use’ policy, which means you must not use the Dyna App and the Services in a way that a reasonable person would consider to be unreasonable.
10.7 Dyna reserve the right, at our absolute discretion, to determine with the Acceptable Use Policy (including ‘fair use’ policy) has been breached and to terminate this agreement in accordance with clause 17.
11. SUBSCRIPTION FEE AND PAYMENT
11.1 We do not charge you (as a Customer) a fee to download, access and use the Dyna App and Services. However, we reserve the right at any time to charge you (as a Customer) a fee to access and use Dyna App and Services (including any advanced or premium features and functions of the Dyna App) by giving you at least 30 days written notice, or by otherwise posting it on the Dyna App or the Website. If you do not agree to pay a fee to access and use the Dyna App and Services (including any advanced or premium features and functions of the Dyna), you should terminate the agreement in accordance with clause 17, no later than 30 days after the date you received written notice of the fee changes or the fee changes were posted on the Dyna App or the Website.
11.2 Except during the Trial Period, to access and use the Dyna App as a Venue Operator, you must pay a Subscription Fee as specified on the Dyna App (Subscription Fee). Subscription Fees are payable in advance on a monthly or annual basis as specified on the Dyna App.
11.3 The Subscription Fees are payable in Australian Dollars and are exclusive of any goods and services taxes which is payable in addition. To the maximum extent permitted by Relevant Laws and except as otherwise contemplated in this agreement, the Subscription Fees and all other amounts owing to Dyna under this agreement are non-refundable.
11.4 When setting up your Venue Account, you will be offered payment options to pay the Subscription Fees. Dyna may, at our absolute discretion and without notice to you, change the payment methods that can be used to access and use the Dyna App and Services at any time.
11.5 Payment of the Subscription Fees are made by means of direct debit in accordance with the Direct Debit Authority in clause 12. By making payment of the Subscription Fees or any other amount owing to Dyna under the agreement, you will provide Dyna’s Third Party Payment Processors with accurate and complete billing information, and you authorise our Third Party Payment Processors to access your billing information (including Personal Information) for the purpose of processing your payment.
11.6 Dyna may increase the Subscription Fee for the provision of the Dyna App and the Services at any time on 30 days’ written notice to you. The fee increases will come into effect in the next billing cycle. If you do not agree to these fee increases, you may at any time delete your Venue Account. To delete your Venue Account, you must select the ‘delete account’ function in the setting page of the Dyna App. If you continue to use the Dyna App and the Services after the fee increase has come into effect, you are assumed to have agreed to the fee increase.
12. DIRECT DEBIT AUTHORITY
12.1 By accepting this agreement, you authorise us to arrange for the Subscription Fees or any other amount owing to Dyna under this agreement to be debited from your credit card or bank account (as applicable) as and when such fees are due and payable under this agreement (Direct Debit Authority).
12.2 You may cancel or change your Direct Debit Authority by accessing the ‘subscription’ page on the Dyna App before the day on which your next debit is due. If you (as a Venue Operator) cancel the Direct Debit Authority, Dyna will not be able to provide you with access to, and use of, the Dyna App and Services beyond the current billing cycle, unless you provide Dyna with new Direct Debit Authority.
12.3 It is your responsibility to ensure that there are sufficient funds available on your credit card or bank account (as applicable) to allow each debit to be made in accordance with the Direct Debit Authority. If there are insufficient funds:
(a) the transaction will be rejected and the payment will be treated as if it were never made;
(b) your financial institution may charge you a fee and/or interest;
(c) you must arrange for the debit to be made by another method or arrange for sufficient funds to be available by an agreed time so that our Third Party Payment Processors can process the debit.
12.4 It is your responsibility to check your credit card or bank account statement (as applicable) to verify that the amounts debited from your credit card or bank account are correct.
12.5 If you believe that an error has been made in debiting your credit card or bank account (as applicable), you should update your credit card or bank account details by accessing the ‘[eg the ‘subscription’ page on the Dyna App] as soon as possible.
12.6 If you (as a Venue Operator) cancel the Direct Debit Authority, your right to access and use the Dyna App and Services will cease at the end of the current billing cycle. If you wish to resubscribe, you will need to create a new Account and pay the Subscription Fees prevailing at the time you create a new Account.
13. INTELLECTUAL PROPERTY RIGHTS
13.1 You acknowledge that we, or our licensors, are the owner of the Dyna App and the Services (or any Intellectual Property Rights contained therein) including any information, data or Content that may be provided to, or accessed by, you in connection with your use of the Dyna App and the Services (including any modifications, enhancements of the foregoing (collectively, the Dyna IP). Accessing and using the Dyna App and the Services do not give you (or anyone else) ownership of, or any right, title or interest in the Dyna IP.
13.2 All Intellectual Property Rights discovered, developed or otherwise coming into existence as a result of, for the purposes of, or in connection with, the Dyna App and the Services will automatically vest in, and are assigned to, Dyna (Developed IP).
13.3 Ownership of any Venue Content or Customer Content will vest in the creator of that Venue Content or Customer Content, but excluding Dyna IP and Developed IP.
13.4 You grant Dyna a worldwide, non-exclusive, royalty-free and perpetual licence to use, disclose, reproduce, store, distribute, publish, export, adapt, edit, translate, produce derivative works from or copy, your Venue Content or Customer Content (as the case may be) (and all Intellectual Property Rights contained therein) for any purpose, including for the purpose of:
(a) enabling Dyna to provide the Dyna App and the Services to you and otherwise perform our obligations and exercising our rights under this agreement;
(b) informing you about other products or services that Dyna may offer from time to time or in relation to third-party products and/or services offered by us or our Affiliates;
(c) complying with a legal requirement, such as a law, regulation, court order, subpoena, warrant, legal proceedings or in response to a law enforcement agency request;
(d) using usage patterns, trends, and other statistical or behavioural data derived from use of the Dyna App and/or the Services for the purposes of providing, operating, maintaining, or improving the Services, the Dyna App, or our other products and services; and
(e) sharing Venue Content and Customer Content with an Affiliate or other third party (with whom Dyna may contract or be affiliated with from time to time) for the purposes of performing or improving the Dyna App and/or the Services.
14. NO WARRANTIES
14.1 To the maximum extent permitted by Relevant Laws, we exclude all express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), in connection with the Dyna App and the Services (or any other ancillary products or services made available through the Dyna App).
14.2 Nothing contained in this agreement excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Competition and Customer Act 2010 (Cth) or any other national, State or Territory legislation where to do so is unlawful.
14.3 You acknowledge, and agree that to the maximum extent permitted by Relevant Laws, we make no representation, warranty or guarantee in relation to the availability, continuity, legality, completeness, reliability, accuracy, currency or security of the Dyna App and/or the Services (including any Venue Content, Customer Content or any ancillary products or services provided in connection with the Dyna App and the Services) and we will not be liable if the Dyna App and/or the Services and (including any Venue Content, Customer Content or any ancillary products or services provided in connection with the Dyna App and the Services) is, or becomes unavailable for any reason, including directly, or indirectly as a result of:
(a) telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
(b) negligent, malicious, wilful acts or omissions of third parties (including third party service providers) or other users;
(c) maintenance (scheduled or unscheduled) carried out by us or any third party service provider, including in respect of any of the systems or network used in connection with the provision of the Dyna App and the Services;
(d) services provided by third parties (including internet service providers) ceasing or becoming unavailable; or
(e) a Force Majeure Event.
14.4 You acknowledge that, to the maximum extent permitted by Relevant Laws, we do not make any warranty or representation that any data or information (including any Venue Content or Customer Content) uploaded, published, shared or made available to you by us, any other user or anyone else or any Content made available or offered on, or via the Dyna App is accurate, complete, reliable, current or error-free, virus free or is suitable for any particular purpose or use under any specific conditions, and so is provided on an “as is” basis.
14.5 Dyna shall use reasonable endeavours to make the Dyna App and the Services available 24 hours a day, 7 days a week, except for:
(a) planned maintenance carried out at times advised in advance by Dyna; and
(b) unscheduled maintenance, which may need to be performed from time to time. Dyna will, where practicable, use reasonable endeavours to conduct any unscheduled maintenance outside of Business Hours.
14.6 Dyna shall use reasonable endeavours to follow its archiving procedures for Venue Content and Customer Content in accordance with its standard back-up policy from time to time. In the event of any Loss of Venue Content and/or Customer Content, your sole and exclusive remedy shall be for Dyna to use reasonable endeavours to restore the Venue Content and/or Customer Content, that is lost or damaged, from the latest back-up of Content and Customer Content, maintained by Dyna.
14.7 Dyna shall not be responsible for any Loss, destruction, alteration, corruption or disclosure of Venue Content and/or Customer Content caused by an act or omission of Customers (including you), Venue Operators or any third party.
15. LIMITATION OF LIABILITY
15.1 To the maximum extent permitted by Relevant Laws, we will not be liable to you, any other user or any third party for any:
(a) Consequential Loss; or
(b) Loss of, or damage to, any property or any personal injury or death to you, any other user or any third person,
arising out of, relating or connected to, the provision or use of, the Dyna App and the Services (including any Content, Venue Content, Customer Content and any ancillary products or services published, advertised, displayed or provided in connection with the Dyna App and the Services) and this agreement, regardless of the cause of action on which they are based, even if advised of the possibility of such damage occurring.
15.2 All risk in using the Dyna App and the Services passes to you upon downloading the Dyna App or otherwise accessing or using the Dyna App and the Services (whichever is earlier). We do not control or direct what Venue Content or Customer Content that is uploaded, shared, published, posted or otherwise transmitted by Venue Operators and Customers, and we are not responsible to you or anyone else for any actions, activities, conduct or transactions (whether online or offline) that occur as a result of, or in connection with your access to, and use of, the Dyna App and the Services.
15.3 We disclaim all liability and responsibility arising from any reliance placed on such Venue Content or Customer Content. You (and not Dyna) are solely responsible for the completeness, accuracy, reliability, legality and quality of any Venue Content or Customer Content (as the context permits) published by you on, or via, the Dyna App.
15.4 You agree to make your own enquiries to verify information displayed on, or via, the Dyna App (including Venue Content or Customer Content) and to assess the suitability of any information before relying upon such information. If you choose to rely upon any information displayed or listed on, or via, the Dyna App and/or the Services (including Venue Content or Customer Content) you do so at your own risk.
15.5 Under no circumstances will Dyna’s aggregate liability, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed:
(a) in the case of Customers, the sum of $10; or
(b) in the case of Venue Operators, the Subscription Fees paid by you to Dyna in the preceding two months from the date of the Claim.
15.6 You agree to defend, indemnify and hold us, our Affiliates and our Personnel (collectively, the Indemnified) harmless from and against any and all Claims and Losses (including legal costs on a full indemnity basis) that may be brought against the Indemnified or which the Indemnified may pay, sustain or incur as a direct or indirect result of, or arising out, of:
(a) the access to, and use of, the Dyna App and/or the Services by you, your Personnel or any third party (including, the use of any Venue Content, Customer Content or any ancillary products or services published, displayed or made available to you on, or via, the Dyna App and the Services);
(b) any breach by you (or your Personnel) of any Privacy Laws;
(c) any breach of any third party’s Intellectual Property Rights or other rights caused by you (or your Personnel); or
(d) any breach by you (or your Personnel) of this agreement.
16. PRIVACY
16.1 All Personal Information you provide to us to download, access and use the Dyna App and the Services, are subject to our Privacy Policy, which is incorporated into this agreement. You warrant that, in relation to any Personal Information comprising Venue Content (in the case of Venue Operators) or Customer Content (in the case of Customers) or any other information disclosed to us on, or via, the Dyna App and the Services:
(a) it has been collected in accordance with Privacy Laws;
(b) you have the authority to upload, post, publish or otherwise transmit such information on, or via, the Dyna App; and
(c) you have obtained the informed consent of the individuals who are the subject of such Personal Information in order for us to use, disclose, store, transfer, process or handle it.
17. TERMINATION
17.1 You may terminate this agreement at any time by using the ‘delete account’ function’ in the settings page of the Dyna App. If you (as a Venue Operator) delete your Venue Account in accordance with 17.1, you will not be entitled to a pro rata refund of the Subscription Fees for the unused portion of the Subscription Term.
17.2 We may terminate or discontinue the Dyna App or any function or feature of the Dyna App and/or the Services at any time (without liability to you) by 30 days’ written notice to you, or by otherwise posting it on the Dyna App or the Website. If we terminate or discontinue the Dyna App in accordance with clause 17.2, you (as a Venue Operator) will be entitled to a pro rata refund of the Subscription Fees for the unused portion of the Subscription Term.
17.3 You agree that we may, at any time and at our sole discretion, with or without cause or any notice to you, terminate, suspend or block your access to (either temporarily or permanently):
(a) your User Account and/or Password;
(b) the Website;
(c) the Dyna App and/or the Services; and/or
(d) any social media pages, products and/or services offered on, or via the Dyna App and/or the Services.
17.4 Dyna may suspend or terminate this agreement by giving you written notice with immediate effect if you:
(a) commit any serious or repeated breaches or violations of this agreement, our policies and guidelines (including our Privacy Policy and Acceptable Use Policy) and any other agreements entered into between the parties;
(b) serious or repeated breaches or violations of another person’s Intellectual Property Rights or privacy rights;
(c) as a Venue Operator, fail to pay the Subscription Fees;
(d) publish or post Venue Content or Customer Content (as the context permits) or engage in any activities, conduct or transactions on, or, via, the Dyna App and/or the Services, that brings, or has the capacity to bring, Dyna, our Personnel and Affiliates and the Dyna App into disrepute; and
(e) requests by law enforcement, court order or other government agencies.
17.5 Except as otherwise stipulated in this agreement, you agree that all such suspensions or terminations shall be made at our sole discretion and that we shall not be liable to you or any third party for any such suspension or termination.
18. EFFECT OF TERMINATION
18.1 On termination of this agreement for any reason:
(a) we may (without liability to you or any third party) delete, de-identify or otherwise dispose of your User Account and any or all of your Venue Content or Customer Content (as the case may be) in our possession in accordance with any limitation periods and records retention obligations that are imposed by Relevant Laws. Any Customer Content you (as a Customer) have published, posted or submitted on the Dyna App will not be deleted, except your Personal Information on the Dyna App will be de-identified and so will not be visible to other users of the Dyna App; and
(b) all licences to use the Dyna App and the Services and rights of access granted under this agreement will immediately terminate.
19. THIRD PARTY CONTENT AND WEBSITE LINKS
19.1 You acknowledge that the Dyna App may contain content, data and information that may link to other websites tools, links, applications, services, products or resources on the Internet. These websites, tools, links, applications, services, products or resources are not under our control and are not maintained by Dyna. We are not responsible for the content of those websites, tools, links, applications, resources, products or services, and accept no responsibility for them or for any Loss or damage that may arise from your use of them (notwithstanding anything else contained herein). Dyna only provide links to third party websites, applications or tools for your information and convenience.
19.2 Links, references or other connections to these websites, tools, applications, resources, products or services do not imply any endorsement of them or any endorsement of the owners, licensors or operators of those websites, tools, applications, resources, products or services.
19.3 We do not recommend or endorse any content, comments or submissions published or posted by Venue Operators, Customers or other third parties on the Dyna App, the Website or our related social media pages.
19.4 Your linking to or from these sites, or use of, or reliance on, such websites, resources, products or services is at your own risk. You should carefully review the terms and conditions and privacy policies of all off-site pages and other websites or third-party suppliers that you visit or transact with.
20. FORCE MAJEURE
20.1 We will not be responsible to you (or anyone else) if we are prevented from or delayed in performing our obligations, by acts, events, omissions or accidents beyond our reasonable control, including but not limited to, acts of God, governmental actions, shipping, postal or other relevant transport strike, failure or accident, lockouts or other labour difficulty, war or national emergency, epidemic, pandemic or mandatory government shut-down or lockdown, acts of terrorism, fire, explosion, flood, an act or omission of a third party, shortage of or inability to obtain any necessary materials, equipment, facilities or services, the failure of performance provided by others, internet interruption or virus, accidents or breakdown of plant, machinery, software, hardware or communication network, or default of hosting or data centre providers (Force Majeure Event).
21. UPDATES AND VARIATIONS
21.1 Without notice to you, we may, at our absolute discretion, from time to time:
(a) change, add or delete the functions, features, performance, or other characteristics of the Dyna App and/or the Services; or
(b) apply or install updates to, or new versions of, the Dyna App.
21.2 You acknowledge that the Content, Venue Content and Customer Content on the Dyna App is subject to change at any time and may be out of date at any given time. We are under no obligation to:
(c) update, correct or fix any Content, Venue Content, Customer Content, the Dyna App and/or the Services; or
(d) notify you of any changes to the any Content, Venue Content, Customer Content, the Dyna App and/or the Services unless required by Relevant Laws to do so.
21.3 Some of the provisions contained in this agreement may also be superseded by provisions or notices published elsewhere on the Dyna App. Any changes are effective immediately upon posting to the Dyna App. Your continued use of the Dyna App and the Services thereafter constitutes your acceptance of all such changes to the agreement.
21.4 Please read this agreement before using the Dyna App and the Services as the agreement may have changed since the last time you accessed and used the Dyna App and the Services. If you do not agree to any change, then you must immediately stop using the Dyna App and the Services.
22. SUPPORT SERVICES
22.1 Dyna may, at our absolute discretion, provide you with user support services during Business Hours in accordance with the Dyna’s standard support services and maintenance policy (as amended from time to time).
22.2 If you require user support services or you are having difficulties accessing and using the Dyna App and the Services, you may contact us by email at support@thedynaapp.com
23. DISPUTE RESOLUTION
23.1 You must, before resorting to court proceedings, refer any dispute with Dyna (excluding complaints about Venue Operators or Customers or Venue Content or Customer Content published or post by Customers or Venue Operators) under or relating to this agreement initially to a nominated representative of each party to endeavour to resolve the dispute within 20 days. If the dispute is not resolved within this period, then either party may, in its absolute discretion, initiate court proceedings.
24. COMPLAINTS PROCESS
24.1 If you wish to make a complaint or lodge a report that Venue Content or Customer Content published or posted by another user of the Dyna App has breached the Acceptable Use Policy or other terms of this agreement, you may make a complaint using the in-app ‘complaint reporting’ function or by contact us by support@thedynaapp.com. For example, a Venue Operator may lodge a complaint about a review published by a Customer about their Venue that is misleading or false.
24.2 We will use reasonable endeavours to investigate any complaint or report lodged by you or another user of the Dyna App within a reasonable period of time and we may, at our absolute discretion, take corrective action that we deem appropriate in the circumstances (such as modifying, deleting or removing the Venue Content or Customer Content (as the context permits)).
24.3 We do not guarantee that any Venue Content or Customer Content will be modified or removed from the Dyna App following your complaint. We will not take corrective action, if we do not believe that the Venue Content or Customer Content complained about has breached the Acceptable Use Policy or any other terms of this agreement.
24.4 Where we have determined, at our absolute discretion, that Venue Content or Customer Content has breached the Acceptable Use Policy or other terms of this agreement, we do not guarantee that such Venue Content or Customer Content will be deleted, blocked or removed within a specific timeframe.
24.5 We will not notify you of the outcome of our investigation or the corrective action (if any) we have taken in response to your complaint, unless you have complained about a breach of your Intellectual Property Rights or privacy rights.
25. SEVERABILITY
25.1 If any provision in this agreement is found to be invalid or unenforceable by a court of law, such invalidity or unenforceability will not affect the remainder of this agreement, which will continue in full force and effect.
26. SURVIVAL
26.1 Clauses 8, 11, 13, 14, 15, 17, 18, 19, 20, 23, 24, 25, 26, 27, 28, 29, 30 and any other obligation which is expressed to, or by its nature, survive expiry or termination of this agreement, will survive expiry or termination of this agreement and are enforceable at any time at law or in equity.
27. RELATIONSHIP
27.1 No agency, principal-agent, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created between you and us by this agreement.
28. ENTIRE AGREEMENT
28.1 This agreement, any other documents referred to in it, represent the entire agreement between us and you in relation to the subject matter and supersedes any previous arrangements, agreements, representations, understandings or statements (whether verbal, in writing, or in some other format).
29. JURISDICTION AND APPLICABLE LAW
29.1 The Dyna App is created and controlled by us in the State of Queensland, Australia. As such, the laws of the State of Queensland will govern this agreement.
29.2 By using the Dyna App and the Services, you submit to the exclusive jurisdiction of the courts of Queensland, Australia and agree that any legal action will only be commenced in this forum.
30. NOTICES
30.1 By accessing and using Dyna App and the Services, you accept that communication with us will be mainly electronic. We will contact you by email or provide you with information by posting notices on the Dyna App.
30.2 You acknowledge that all contracts, notices, information and other communications (notices) we may provide electronically comply with any legal requirements that such documents be in writing.
30.3 Notice will be deemed received and properly served immediately when posted on the Dyna App or 24 hours after an email is sent to you. As proof of service, it is sufficient that the email was sent to the email address specified by you in your User Account.
31. DEFINITIONS
In this agreement, the following words shall have the following meanings:
(a) Acceptable Use Policy has the meaning in clause 10.1.
(b) Affiliate means in relation to any party, a person which, directly or indirectly, (i) is Controlled by that party; or (ii) Controls that party; or (iii) is Controlled by a person referred to in (ii) above, and for this purpose Control means the power of a person to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership agreement or other document regulating such person) that the affairs of another are conducted in accordance with its wishes.
(c) Business Day means any day which is not a Saturday, Sunday or public holiday in Queensland.
(d) Business Hours means 9:00am to 5:00pm on Business Days.
(e) Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whether present or future, fixed or unascertained, actual or contingent, at law, in equity, under statute or otherwise.
(f) Commencement Date has the meaning in clause 3.1.
(g) Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties at the Commencement Date as a likely result of breach of the agreement:
(i) direct, indirect, consequential, incidental, special, remote or unforeseeable loss, damage, cost or expense;
(ii) loss of revenue, profit, income, bargain, opportunity, use, production, customers, business, contract, goodwill, or anticipated savings, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, loss of or corruption to data, loss of use of data or reputational loss or damage;
(iii) costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by another user of third party; or
(iv) loss or damage of the nature set out above in clauses (i) to (iii) (inclusive) that is incurred or suffered by or to a third party.
(h) Content means all the information, text, materials, graphics, logos, button icons, images, video and audio clips, trade marks (whether registered or not), advertisements, layout, arrangement, graphical user interface, look and feel, databases, functionality and control features of the Dyna App.
(i) Customer means an individual, other than Venue Operator, who downloads, accesses and uses the Dyna App.
(j) Customer Account has the meaning in clause 4.1(a).
(k) Customer Content has the meaning in clause 10.1(b), and includes all content, materials, data, information, text, graphics, images, photographs, video and audio clips,: (i) transmitted by the Dyna App at the instigation of the Customer; or (ii) supplied by the Customer to Dyna for uploading to, transmission by, or storage on, the Dyna App.
(l) Developed IP has the meaning in clause 13.2.
(m) Dyna App means the mobile application owned, operated and managed by Dyna, including any systems, Content and server software, the computer hardware, tools, application, database, systems, and all Intellectual Property Rights contained therein, provided or otherwise made available by us.
(n) Dyna IP has the meaning given to it by clause 13.1.
(o) Dyna, we, our or us has the meaning in clause 1.1, and where the context permits, includes our Personnel and Affiliates.
(p) Food Safety Standards means the Food Safety Standard Codes Australia New Zealand Food Standards Code and any other legislation, regulations and by-laws in relation to the preparation, cooking, storage, labelling and delivery of food and beverages.
(q) Force Majeure Event has the meaning in clause 20.
(r) Intellectual Property Rights means designs, copyright, trade marks, patents, operations, software or systems, trade names and domain names, rights in goodwill, rights in confidential information or other intellectual property rights, whether under statute, common law, equity, and whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights and all similar rights which subsist or will subsist now or in future in any part of the world.
(s) Loss means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including legal and other professional costs and Consequential Loss.
(t) Menu Items means food or beverage products and services available to be purchased by a Customer at the Venue.
(u) Password has the meaning in clause 4.2.
(v) Personnel means any director, officer, employee or contractor of the party.
(w) Personal Information means data by which a person may be personally identified, including a person's name, postal address, email address, telephone number and any other information a party collects, including that which is defined as personal or personally identifiable information under any applicable Privacy Laws.
(x) Privacy Laws means any applicable laws and codes of practice dealing with privacy, including the Privacy Act 1988 (Cth) (as amended) and the Australian Privacy Principles, and any other legislation, codes and policies relating to the handling of Personal Information applicable to the jurisdiction in which you are located.
(y) Privacy Policy means our privacy policy available on the Dyna App, our Website or any other internet site notified by us from time to time, which is incorporated into this agreement.
(z) Relevant Laws means any relevant rules of common law, principles of equity, international, federal, state and local laws, statutes, rules, regulations, proclamations, ordinances and by-laws and other subordinate legislation, rulings, or legal requirements and Privacy laws, anywhere in the world.
(aa) Services has the meaning in clause 2.1.
(bb) Subscription Fee has the meaning in clause 11.2.
(cc) Subscription Term means, in respect of a Venue Operator, the term of your licence to access and use the Dyna App and the Services.
(dd) Term has the meaning in clause 3.1.
(a) Third Party Payment Processor means Stripe and any other a third party payment processor permitted by us from time to time.
(ee) Trial Period means:
(i) during the launch period of the Dyna App, three consecutive months from the date you (as a Venue Operator) register and set up your Venue Account; or
(ii) following the end of the launch period of the Dyna App, 30 consecutive days from the date you (as a Venue Operator) register and set up your Venue Account.
(ff) Website means the website located at thedynaapp.com and any other website notified by us from time to time.
(gg) you or your has the meaning in clause 1.3.
(hh) User Account has the meaning in clause 4.2.
(ii) User Name has the meaning in clause 4.2.
(jj) Venue means the bar, tavern, restaurant, café or other hospitality venue (such as bakers, butchers, greengrocers and food trucks) that has created a Venue Profile on or via, the Dyna App.
(kk) Venue Account has the meaning in clause 4.1(b).
(ll) Venue Content means all content, materials, data, text, graphics, images, photographs, logos, video and audio clips, trade marks (whether registered or not) relating to the Venue Operator: (i) transmitted by the Dyna App at the instigation of the Venue Operator or your Personnel; or (ii) supplied by the Venue Operator or your Personnel to Dyna for uploading to, transmission by, or storage on, the Dyna App.
(mm) Venue Operator means the owner or operator of the Venue, and where the context permits, includes their Personnel.
(nn) Venue Profile means the virtual shopfront on the Dyna App which contains Venue Content about the Venue and Venue Operator (including, but not limited to, information about the location and operating hours of the Venue, photographs of the Venue, menu items and other food and beverage specials and promotions) as posted, published or displayed on the Dyna App by the Venue Operator.
