NoGrey - Terms and Conditions of Use
1. About the NoGrey Online Platform
1.1 These Terms and Conditions of Use (Terms) are between you and Elucidare Pty Ltd (ACN 622 263 852) trading as NoGrey (NoGrey or we or us).
1.2 NoGrey provides a mobile device software application, website and any other technological products operated by us, now or in the future (NoGrey Online Platform).
1.3 The NoGrey Online Platform provides a tool to facilitate initial mutual interest discussions.
1.4 These Terms apply to any users who access, download, use, purchase and/or subscribe to the NoGrey Online Platform, whether through a mobile device, mobile application and/or computer.
1.5 These terms constitute a legal binding agreement between you and NoGrey. Before accessing, browsing, downloading or using the NoGrey Online Platform, please read these Terms carefully. By accessing, browsing and using the NoGrey Online Platform, you acknowledge and agree that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of the Online Platform immediately.
1.6 NoGrey reserves the right to review and change any of the Terms by updating this page at its sole discretion. When NoGrey updates the Terms, it will post a new version on the NoGrey Online Platform and use reasonable endeavours to provide you with notice of updates of the Terms. Any changes to the Terms take immediate effect from the date of their publication. As soon as you use the NoGrey Online Platform after the updated Terms are posted, you will have agreed to the updated version of the Terms. Before you continue, we recommend you keep a copy of the Terms for your records.
2. Acceptance of the Terms
You accept the Terms by accessing, using or browsing the NoGrey Online Platform. You may also accept the Terms by clicking to accept or agree to the Terms where this option is made available to you by NoGrey in the user interface.
3. Eligibility and Safety
3.1 You must be at least eighteen (18) years of age to access, browse, download or use the NoGrey Online Platform. If you are not eighteen (18) years of age or older, you must not access or use the NoGrey Online Platform.
3.2 You warrant to NoGrey that you are currently eighteen (18) years of age or over.
3.3 NoGrey is not responsible for your use of the NoGrey Online Platform or for the actions of other users with whom you may exchange information or have contact.
3.4 NoGrey does not conduct criminal background checks of its users or verify users with respect to health or physical condition, or otherwise.
3.5 NoGrey does not condone the NoGrey Online Platform for any illegal activity.
4. NoGrey Online Platform
4.1 In order to access and use the NoGrey Online Platform, you are required to register for an account through the NoGrey Online Platform (Account). NoGrey reserves the right to disallow anyone from accessing or using the NoGrey Online Platform.
4.2 As part of the registration process, or as part of your continued use of the NoGrey Online Platform, you may be required to provide personal information about yourself (such as identification or contact details), including but not limited to:
(a) an email address;
(b) preferred username;
(c) a telephone number;
(d) a date of birth;
(e) a password or pin; and
(f) gender, location, interests.
4.3 You warrant that any information you give to NoGrey in the course of completing the registration process will always be accurate, correct and up to date. If your information changes, you must promptly update such information.
4.4 Once you have completed the registration process, you will be a registered user of the NoGrey Online Platform (User) and agree to be bound by the Terms.
4.5 You may not use the NoGrey Online Platform and may not accept the Terms if:
(a) you are not of legal age to form a binding contract with NoGrey; or
(b) you are a person barred from using under the laws of Australia or other countries including the country in which you are resident or from which you use the NoGrey Online Platform.
5. Your obligations as a User
5.1 As a User, you agree to comply with the following:
(a) you will not share your individual profile with any other person unless it is part of a couple’s profile;
(b) you will use the NoGrey Online Platform only for purposes that are permitted by:
(i) the Terms; and
(ii) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions.
(c) you must pay all costs in connection with your use of the NoGrey Online Platform, including but not limited to, hardware, software and data usage expenses unless expressly provided by the NoGrey Online Platform.
(d) you have sole responsibility for protecting the confidentiality of your password and/or email address and/or username. Use of your password by any other person may result in the immediate cancellation of your Account and access to the NoGrey Online Platform.
(e) any use of your registration information by any other person, or third parties, is strictly prohibited. You agree to immediately notify NoGrey of any unauthorised use of your password or email address or username or any breach of security of which you have become aware.
(f) you must not expressly or impliedly impersonate another User or use the profile or password or username of another User at any time.
(g) any content that you broadcast, publish, upload, transmit, post or distribute on the NoGrey Online Platform (Your Content) will always be accurate, correct and up to date and you will maintain reasonable records of Your Content.
(h) you warrant that you own Your Content and Your Content does not infringe any other intellectual property rights of any third-party.
(i) you warrant that Your Content will not include any material that is offensive, insensitive, upsetting, intended to disgust, or is in exceptionally poor taste.
(j) you agree not to harass, impersonate, stalk, threaten another User of the NoGrey Online Platform (where interaction with other Users is made available to you).
(k) access and use of the NoGrey Online Platform are limited, non-transferable and allows for the sole use of the NoGrey Online Platform by you.
(l) you will not use the NoGrey Online Platform in connection with any commercial endeavours except those that are specifically endorsed or approved by the management of NoGrey.
(m) you will not use the NoGrey Online Platform for any illegal and/or unauthorised use which includes collecting contact details of Users by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the NoGrey Online Platform.
(n) you agree that commercial advertisements, affiliate links and other forms of solicitation may be removed from User profiles without notice and may result in termination of your Account and/or your access to the NoGrey Online Platform. Appropriate legal action will be taken by NoGrey for any illegal or unauthorised use of the NoGrey Online Platform.
(o) you acknowledge and agree that any automated use of the NoGrey Online Platform is prohibited.
6.1 NoGrey may charge you a fee for certain features on the NoGrey Online Platform (Fee). If a Fee is applicable, the Fee will be listed on the NoGrey Online Platform.
6.2 All payments for the Fee may be made using your credit card, the Apple Store Payment and Google Play Store (Credit Card, Apple Store Payment, Google Play Store Payment).
6.3 All payments made in the course of your use of the NoGrey Online Platform are made using your Apple Store account or Google Play Store account.
6.4 In using the NoGrey Online Platform or when making any payment in relation to your use of the NoGrey Online Platform, you warrant that you have read, understood and agree to be bound by the Apple Store and Google Play Store terms and conditions which are available on their Application.
6.5 You acknowledge and agree that where a request for the payment of the Fee is returned or denied, for whatever reason, by your financial institution or is unpaid by you for any other reason, then you are liable for any costs, including banking fees and charges, associated with the Fee.
6.6 You acknowledge and agree that NoGrey may vary the Fee at any time on thirty (30) days written notice to you.
7. Refund Policy
7.1 Generally, the Fee is non-refundable, and there are no refunds or credits for partially used periods.
7.2 To request a refund:
(a) if you subscribed using your Apple ID, refunds are handled by the Apple Store, not NoGrey.
(b) if you subscribed using your Google Play Store account, refunds are handled by the Google Play Store, not NoGrey.
8. Copyright and Intellectual Property
8.1 The NoGrey Online Platform of NoGrey are subject to copyright. The material on the NoGrey Online Platform is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the NoGrey Online Platform and compilation of the NoGrey Online Platform (including but not limited to text, graphics, logos, button icons, video images, audio clips, code, scripts, design elements and interactive features) or the NoGrey Online Platform are owned or controlled for these purposes, and are reserved by NoGrey or its contributors.
8.2 All trademarks, service marks and trade names are owned, registered and/or licensed by NoGrey, who grants to you a personal, limited, non-transferable, worldwide, non-exclusive, royalty-free, revocable license whilst you are a User to:
(a) use the NoGrey Online Platform pursuant to the Terms; and
(b) copy and store the NoGrey Online Platform and the material contained in the NoGrey Online Platform in your device's cache memory.
8.3 NoGrey does not grant you any other rights whatsoever in relation to the NoGrey Online Platform. All other rights are expressly reserved by NoGrey.
8.4 NoGrey retains all rights, title and interest in and to the NoGrey Online Platform. Nothing you do on or in relation to the NoGrey Online Platform will transfer any:
(a) business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright, or
(b) a right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or
(c) a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process),
8.5 You may not, without the prior written permission of NoGrey and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the NoGrey Online Platform for any purpose, unless otherwise provided by these Terms. This prohibition does not extend to materials on the NoGrey Online Platform which are freely available for re-use or are in the public domain.
8.6 You may not copy, decompile, reverse engineer, dissemble, attempt to derive the source code of, modify or create derivative works of any portion of the NoGrey Online Platform, or any parts thereof.
8.7 If you breach these license restrictions, then you may be subject to damages, as well as liability for breach of intellectual property rights and termination of your Account and denial of access to the NoGrey Online Platform.
8.8 Where you broadcast, publish, upload, transmit, post or distribute Your Content on the NoGrey Online Platform, including a couple’s profile, then you grant to other User(s) a non-exclusive, transferable, perpetual, royalty-free, irrevocable, worldwide licence to view Your Content on the NoGrey Online Platform.
8.9 Despite clause 8.5, nothing in these Terms prevents you from deleting or requesting NoGrey to delete Your Content from the NoGrey Online Platform, in which case NoGrey will use its reasonable endeavours to delete and remove Your Content.
8.10 NoGrey reserves the right to filter, modify, publish and permanently remove Your Content on the NoGrey Online Platform in its sole and unfettered discretion.
8.11 To the extent permitted by law, NoGrey accepts no liability for the accuracy of any information made available using the NoGrey Online Platform. Any reliance on the information available through the NoGrey Online Platform is at the User’s own risk.
8.12 You are wholly responsible for maintaining suitable back-ups of Your Content. NoGrey has no obligation to retain a record of your Account.
8.13 To the extent permitted by law, you agree to release, indemnify and hold NoGrey harmless for any loss, damage, cost or expense that NoGrey may suffer or incur as a result of or in connection with Your Content transmitted, posted, distributed, shown or played in connection with the NoGrey Online Platform.
10. General Disclaimer
10.1 Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
10.2 Subject to this clause, and to the extent permitted by law:
(a) all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and
(b) NoGrey we will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the NoGrey Online Platform or these Terms (including as a result of not being able to use the NoGrey Online Platform or the late supply of the NoGrey Online Platform), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
10.3 Use of the NoGrey Online Platform is at your own risk. Everything on the NoGrey Online Platform is provided to you "as is" and "as available" without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors and licensors of NoGrey make any express or implied representation or warranty about the NoGrey Online Platform or any products referred to on the NoGrey Online Platform. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
(a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third-party conduct, or theft, destruction, alteration or unauthorised access to records;
(b) the accuracy, suitability or currency of any information on the NoGrey Online Platform or any of NoGrey’s related products (including third party material and advertisements on the NoGrey Online Platform);
(c) costs incurred as a result of you using the NoGrey Online Platform or any of the products of NoGrey; and
(d) the NoGrey Online Platform or operation in respect to links which are provided for your convenience.
10.4 You acknowledge that NoGrey and the NoGrey Online Platform are only intended to facilitate discussions between Users and does not offer any products other than access to the NoGrey Online Platform and NoGrey holds no liability to you as a result of any conduct of the Users or the misuse of Your Content by any party (including other Users).
10.5 NoGrey takes no responsibility for any content that you or another User of third-party posts, sends or receives through the NoGrey Online Platform.
If you are in the business of providing a similar NoGrey Online Platform for the purpose of providing them to Users for a commercial gain, whether business users or domestic users, then you are a competitor of NoGrey. Competitors are not permitted to use or access any information or content on the NoGrey Online Platform. If you breach this provision, NoGrey will hold you fully responsible for any loss that we may sustain and hold you accountable for all profits that you might make from such a breach.
12. Limitation of Liability
12.1 To the extent permitted by law, NoGrey’s total liability arising out of or in connection with the NoGrey Online Platform or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the NoGrey Online Platform to you.
12.2 To the extent permitted by law, you expressly understand and agree that NoGrey, its affiliates, employees, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
12.3 To the extent permitted by law, you acknowledge and agree that NoGrey holds no liability for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you as a result of providing Your Content to the NoGrey Online Platform.
12.4 To the extent permitted by law, NoGrey’s liability is reduced proportionately in the event that you contributed to any claim or loss suffered by you.
13. Termination of Contract
13.1 If you want to terminate the Terms, you may do so by providing NoGrey with 1 business days' notice of your intention to terminate by sending notice of your intention to terminate to NoGrey via the 'Contact Us' link on our homepage.
13.2 NoGrey may at any time, terminate the Terms with you if:
(a) at its discretion;
(b) you have breached any provision of the Terms or intend to breach any provision;
(c) NoGrey is required to do so by law;
(d) NoGrey is transitioning to no longer providing the NoGrey Online Platform to Users in the country in which you are resident or from which you use the NoGrey Online Platform; or
(e) the provision of the NoGrey Online Platform to you by NoGrey is, in the opinion of NoGrey, no longer commercially viable.
13.3 NoGrey reserves the right, at its discretion and at any time, to modify or discontinue, temporarily or permanently, the NoGrey Online Platform (or any part thereof) with or without notice to you and without liability to you.
13.4 Subject to local applicable laws, NoGrey reserves the right to discontinue or cancel your Account at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the NoGrey Online Platform without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts NoGrey’s name or reputation or violates the rights of those of another party.
13.5 When the Terms come to an end, all of the legal rights, obligations and liabilities that you and NoGrey have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely.
14.1 To the extent permitted by law, you agree to indemnify NoGrey, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:
(a) all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with Your Content;
(b) any direct or indirect consequences of you accessing, using or transacting on the NoGrey Online Platform or attempts to do so; and/or
(c) any breach of the Terms.
15. Dispute Resolution
If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
A party to the Terms claiming a dispute (Dispute) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
On receipt of that notice (Notice) by that other party, the parties to the Terms (Parties) must:
(a) Within 30 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
(b) If for any reason whatsoever, 14 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Victorian Small Business Commission or his or her nominee;
(c) The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
(d) The mediation will be held in Victoria, Australia.
All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as "without prejudice" negotiations for the purpose of applicable laws of evidence.
15.5 Termination of Mediation:
If 60 days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
16. Venue and Jurisdiction
In the event of any dispute arising out of or in relation to the NoGrey Online Platform, you agree that the exclusive venue for resolving any dispute shall be in the courts of Victoria, Australia.
17. Governing Law
The Terms are governed by the laws of Victoria, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of Victoria, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.
18. Independent Legal Advice
Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties acknowledge and agree that they have been given the opportunity to obtain independent legal advice prior to accessing and/or using the NoGrey Online Platform.
If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.
20. Entire Agreement
All waivers must be in writing. A single or partial waiver by a party of a right relating to these Terms does not prevent any other exercise of that right or the exercise of any other right.
Version Date: November 2018