Business Terms and Conditions

ENKIDU – TERMS AND CONDITIONS FOR BUSINESS

This mobile application (App) is operated by Enkidu Technologies Pty Ltd ABN 91 615 862 247, its successors and assignees (we, our or us).  The App allows businesses to create a profile, design rewards programs, customise offers, encourage social advocacy, empower staff promoters and connect with consumers and potential and existing customers (Consumers or a Consumer).

Acceptance

By downloading our App, accessing and/or using our App, you; each person, entity or organisation using our App (referred to as you or a User) (i) warrant to us that you have reviewed these terms and conditions, including our Privacy Policy (available on the App) (Terms) and you understand them; (2) warrant to us that you have the legal capacity to enter into a legally binding agreement with us; and (3) agree to use the App in accordance with these Terms. If you are agreeing to these Terms not as an individual but on behalf of a company, your employer, an organisation, government or other legal entity (Represented Entity), then “you” or “User” means the Represented Entity and you are binding the Represented Entity to these Terms. If you are accepting these Terms and using our services on behalf of a Represented Entity, you represent and warrant that you are authorised to do so.

Please read these Terms carefully and cease using the App if you do not agree to the Terms. We may, at any time and at our discretion, vary these Terms by publishing the varied terms on our App. We recommend you check our App regularly to ensure you are aware of our current Terms.

Additional Terms and Conditions

  1. These Terms supplement and incorporate:
    1. our policies and terms and conditions posted on the App and on our website available at www.enkidu.co (Site);
    2. the Apple, Inc. Terms and Conditions including, without limitation, the Licensed Application End User License Agreement provided therein (Apple Terms); and
    3. the Android, Google Inc. Terms and Conditions including, without limitation, the License Agreement and Terms of Application (Android Terms).
  2. If any of the provisions of the Apple Terms, the Android Terms or any of our policies conflict with these Terms, these Terms have priority, solely to the extent such Terms apply to the App.

Registration and Profiles

  1. Access to the App will require you to register for an account (Account).
  2. You may only have 1 Account on the App.
  3. You must provide basic information when registering for an Account including name, email address, business details (including ABN) and location and we will provide you with a username and password.
  4. You may register for an Account using a Facebook account (Social Media Account). We may offer sign-up through other social media accounts or by submitting other information in the future. If you sign in to your Account using your Social Media Account, you authorise us to access certain information on your Social Media Account including but not limited to your current profile photo and other basic information.
  5. Once you have registered an Account, your account information will be used to create a profile which you may then curate (Profile).
  6. You must provide accurate, current and complete information during the registration process and you must update such information to keep it accurate, current and complete.
  7. You are responsible for keeping your Account and Profile details and your username and password confidential and you will be liable for all activity on your Account, including any interactions you have with Consumers using your Account details, whether or not you authorised such activities, actions or interactions.  
  8. You will immediately notify us of any unauthorised use of your Account.
  9. At our sole discretion, we may refuse to allow any person to register or create an Account.

Rewards Programs

  1. You may use the App to design rewards programs, create offers, encourage social advocacy and empower staff promoters.
  2. If you create a rewards program, an offer or any other loyalty system using the functionality available on the App (Rewards Program), then you are solely responsible for the terms and conditions which apply to any such Rewards Program.
  3. You are responsible for:
    1. curating and administering the Rewards Program, including obtaining and registering any Quick Response Code (QR Code) needed to manage a Rewards Program;
    2. allocating any points or other rewards offering as part of the Rewards Program; and
    3. managing your staff and their use of the App and App’s functionality.
  4. If you offer a Rewards Program to your Consumers using the App, you warrant that you will deliver and/or supply the points, rewards or other benefit offered as part of the Rewards Program to your Consumers, if and when a Consumer satisfies the eligibility requirements applying to the relevant Rewards Program, as set by you.
  5. When creating a Rewards Program, you must set out the terms and conditions applying to the Rewards Program in the space available on the App.
  6. You represent and warrant that you will comply with any trade promotion laws in your state or territory, including applying for and maintaining applicable licences, permits and certifications, in relation to any Rewards Program you create through the App.

Fees and Payments

  1. Access to and use of the App may require the payment of fees. We may offer you a trial period during which no fees will be payable.
  2. Any fees or payments and the duration of any free trial period will be set out on the App and/or our Site.
  3. If fees are payable for the use of the App:

    1. payments will be processed through our third party payment processor or by any other payment method set out on the Platform;
    2. you agree to pay us the applicable fees;
    3. fees are payable by the date set out on our invoices;  
    4. we may charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any amounts unpaid after the payment date; and
    5. we reserve the right to report bad debts to independent credit data agencies.
  4. We may change the fee and payment terms applying to the App at our sole discretion and any change is immediately effective upon us publishing the change on the App and will apply to any use of the App following the change.

Licence to use our App

We grant you a non-exclusive, royalty-free, revocable, worldwide, non-transferable licence to use our App in accordance with these Terms, only on a computer or mobile device (each a Device) you own or control. All other uses are prohibited without our prior written consent.

Prohibited conduct

You must not do, or attempt to do, anything that is unlawful; anything prohibited by any laws which apply to our App or which apply to you or your use of our App; anything which we would consider inappropriate; or anything which might bring us or our App into disrepute, including (without limitation):

  1. anything that would constitute a breach of an individual’s privacy (including uploading private or personal information without an individual’s consent) or any other legal rights;
  2. using our App to defame, harass, threaten, menace or offend any person;
  3. interfering with any user using our App;
  4. tampering with or modifying our App, knowingly transmitting viruses or other disabling features, or damaging or interfering with our App, including (without limitation) using trojan horses, viruses or piracy or programming routines that may damage or interfere with our App;
  5. anything that might violate any local, state, national or other law or regulation or any order of a court, including, without limitation, zoning and tax regulations or state or territory trade promotion laws;
  6. using our App to send unsolicited email messages; or
  7. facilitating or assisting a third party to do any of the above acts.

Exclusion of competitors

You are prohibited from using our App, including the information and materials available on it (Content), in any way that competes with our business.  If you breach this term, we will hold you responsible for any loss, damage or expense, however it arises, whether direct or indirect and/or whether present, unascertained, future or contingent (Liability) we suffer, and hold you accountable for any profits that you may make from non-permitted use.

Information

The Content is not comprehensive and is for general information purposes only.  It does not take into account your specific needs, objectives or circumstances, and is not advice.  While we use reasonable attempts to ensure the accuracy and completeness of the Content, we make no representation or warranty regarding it, to the extent permitted by law. The Content is subject to change without notice. However, we do not undertake to keep our App up-to-date and we are not liable if any Content is inaccurate or out-of-date.

Intellectual Property rights

Unless otherwise indicated, we own or licence all rights, title and interest (including intellectual property rights) in our App, all of the Content and any other material we provide to you as part of the set-up process, including branded merchandise. Your use of our App and your use of and access to any Content does not grant or transfer to you any rights, title or interest in relation to our App or the Content.

You must not, without the prior written consent of ourselves or the owner of the Content (as applicable):

  1. copy or use, in whole or in part, any Content;
  2. reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any Content to any third party; or
  3. breach any intellectual property rights connected with our App, including (without limitation) by:

    1. altering or modifying any of the Content;
    2. causing any of the Content to be framed or embedded in another website; or
    3. creating derivative works from the Content.

User Content

You may be permitted to post, upload, publish, submit or transmit relevant information and content (User Content) on our App. By making available any User Content on or through our App, you grant to us a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free licence to use the User Content, with the right to use, view, copy, adapt, modify, distribute, license, sell, transfer, communicate, publicly display, publicly perform, transmit, stream, broadcast, access, or otherwise exploit such User Content on, through, or by means of our App.
You agree that you are solely responsible for all User Content that you make available on or through our App and through your Device.  You represent and warrant that:

  1. you are either the sole and exclusive owner of all User Content or you have all rights, licences, consents and releases that are necessary to grant to us the rights in such User Content as contemplated by these Terms; and
  2. neither the User Content nor the posting, uploading, publication, submission or transmission of the User Content or our use of the User Content on, through or by means of our App will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

We do not endorse or approve and are not responsible for any User Content. We may, at any time at our sole discretion, remove any User Content.
Third party sites: Our App may contain links to websites operated by third parties.  Unless expressly stated otherwise, we do not control, endorse or approve and are not responsible for the content on those websites.  You should make your own investigations with respect to the suitability of those websites.

Discontinuance: We may, at any time and without notice to you, discontinue our App, in whole or in part.  We may also exclude any person from using our App, at any time at our sole discretion. We are not responsible for any Liability you may suffer arising from or in connection with any such discontinuance or exclusion.

Consumer Guarantees

  1. Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to our provision of our services which cannot be excluded, restricted or modified (Statutory Rights).
  2. Nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. 

Warranties, disclaimers and indemnity

To the extent permitted by law, we make no representations or warranties about our App, the Content, Consumers or other users including (without limitation) that:

  1. they are complete, accurate, reliable, up-to-date and suitable for any particular purpose;
  2. access will be uninterrupted, error-free and free from viruses;
  3. our App will be secure;
  4. you will be able to grow your customer base, increase your sales or otherwise improve business performance; and
  5. any Rewards Program we tailor for you will meet your business needs.

You read, use, and act on our App and the Content at your own risk.
Limitation of liability: Despite anything to the contrary, to the maximum extent permitted by law:

  1. our maximum aggregate Liability arising from or in connection with these Terms (including the services we provide and/or the subject matter of these Terms) will be limited to, and must not exceed the aggregate amount of fees paid by you to us during the three-month period immediately preceding the event that gave rise to the Liability or $100 if no such fees have been paid; and
  2. we will not be liable to you for any loss of profit (including anticipated profit), loss of benefit (including anticipated benefit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
  3. Despite anything to the contrary, to the maximum extent permitted by law, we will have no Liability, and you release and discharge us from all Liability, arising from or in connection with any:  

    1. event or circumstance beyond our reasonable control;
    2. acts or omissions of you or your personnel;
    3. any defect, error, omission, lack of functionality or suitability (or the absence of, or reduction in, any anticipated result, outcome or benefit), inaccessibility of, interruption or outage with respect to the App;
    4. use of the App and/or Content;
    5. interaction you have with other users whether in person or online;
    6. Content which is incorrect, incomplete or out-of-date; or
    7. breach of these Terms or any law.
  4. You agree that, to the maximum extent permitted by law, these Terms exclude all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are fully expressed in these Terms.
  5. This clause will survive the termination or expiry of these Terms.

Indemnity: To the maximum extent permitted by law, you must indemnify us, and hold us harmless, against any Liability suffered by us arising from or in connection with your use of our App or any breach of these Terms or any applicable laws by you. This indemnity is a continuing obligation, independent from the other obligations under these Terms, and continues after these Terms end.  It is not necessary for us to suffer or incur any Liability before enforcing a right of indemnity under these Terms.

Refund and Cancellation Policy

If Consumers purchase goods or services from you, any cancellation, exchange or refund of these goods or services is strictly a matter between you and the relevant Consumer. If we charge any fees on a subscription basis for the use of our App and you cancel your subscription, no refunds are available.

Termination

  1. You may cancel your Account and terminate these Terms after the end of any initial trial period or after the end of any subscription period via the “Cancel Account” feature (or similar) on our App or by sending us an email to the address at the end of these Terms. You can also deactivate your Account at any time via the App. No refunds are available if you cancel or terminate your Account.
  2. We may terminate these Terms for convenience at any time by giving you 30 days’ notice via email to the email address in your Account.
  3. At our sole discretion, we may suspend your Account or terminate these Terms immediately without notice if you are in breach of these Terms, any applicable laws, regulations or third party rights.

Disputes: We encourage you to attempt to resolve disputes (including claims for returns or refunds) with Consumers directly. In the event of any dispute arising from, or in connection with, these Terms (Dispute), the party claiming there is a Dispute must give written notice to the other party setting out the details of the Dispute and proposing a resolution. Within 7 days after receiving the notice, the parties must meet at least once to attempt to resolve the Dispute or agree on the method of resolving the Dispute by other means, in good faith.  All aspects of every such conference, except the fact of the occurrence of the conference, will be privileged. If the parties do not resolve the Dispute or (if the Dispute is not resolved) agree on an alternate method to resolve the Dispute, within 21 days after receipt of the notice, the Dispute may be referred by either party (by notice in writing to the other party) to litigation.

Severance

If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision must be read down as narrowly as necessary to allow it to be valid or enforceable. If it is not possible to read down a provision (in whole or in part), that provision (or that part of that provision) is severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.

Jurisdiction

Your use of our App and these Terms are governed by the laws of Queensland. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts operating in Queensland and any courts entitled to hear appeals from those courts and waive any right to object to proceedings being brought in those courts.

Our App may be accessed throughout Australia and overseas.  We make no representation that our App complies with the laws (including intellectual property laws) of any country outside Australia.  If you access our App from outside Australia, you do so at your own risk and are responsible for complying with the laws of the jurisdiction where you access our App.

For any questions and notices, please contact us at:

Enkidu Technologies Pty Ltd ABN 91 615 862 247
Level 20 HSBC Building, 300 Queen Street
Brisbane QLD 4000

Email: hello@enkidu.co

Last update: 19 March 2018