Wifyer Terms and Conditions

These terms and conditions ("User Terms") apply to your visit to and your use of our website at www.wifyer.com (the "Website"), the Service and the Application (as defined below), as well as to all information, recommendations and/or services provided to you on or through the Website, the Service and the Application.

PLEASE READ THESE USER TERMS CAREFULLY BEFORE DOWNLOADING OUR APPLICATION AND/OR USING OUR SERVICE.

WIFYER

Your contracting partner is Wifyer Pty Ltd (ACN - ??), a private limited liability company established in Australia, having its offices at 1/14 Kalinga Way, Landsdale, 6065, Western Australia.

WHAT SERVICES DOES WIFYER PROVIDE?

Wifyer offers information and a means to obtain Wifi connectivity services offered by third party Wifi providers, (the "Wifi Provider"), which may be requested through the use of an application supplied by Wifyer and downloaded and installed by you on your single mobile device (smart phone) (the "Application"). All services provided by Wifyer to you by means of your use of the Application are hereafter referred to as the "Service".

HOW IS A CONTRACT CONCLUDED BETWEEN WIFYER AND YOU?

By using the Application or the Service on your single mobile device (smart phone),, you enter into a legally binding contract with Wifyer (the "Contract"). In order to be able to use the Application or Service, you first need to sign up with Wifyer. Upon successful completion of your signing up with Wifyer, Wifyer will provide you with a personal account, accessible for you with a password of your choice.

If you reside in a jurisdiction that restricts the use of the Service or Application because of age, or restricts the ability to enter into contracts such as this one due to age, you must abide by such age limits and you must not use the Service and the Application. You represent that if you are an individual, you are of legal age to enter into a binding contract, or that if you are registering on behalf of a legal entity, that you are authorized to enter into, and bind the entity to, these User Terms and register for the Service and the Application.

HOW TO USE THE SERVICE AND THE APPLICATION

The Application allows you to send a request for Wifi service to a Wifi Provider. The bluetooth receiver - which should be installed on the mobile device (smart phone) on which you have downloaded the Application - scans the nearby area and detects if any Wifi providers (other devices running the Wifyer application) are present in your immediate location. If the application finds any Wifi providers (other devices running the Wifyer application) nearby, and they have set their mode to active, then the two applications will successfully negotiate and establish a connection. The Wifi provider has sole discretion on the availability, and the capacity that they are willing to supply.

Wifyer shall procure reasonable efforts to bring you into contact with a Wifi Provider (other devices running the Wifyer application) in order to obtain Wifi services, subject to the availability of such Wifi Providers in or around your location at the moment of your request for Wifi services.

For the avoidance of doubt: Wifyer itself does not provide Wifi services, and Wifyer is not a ISP (Internet Service Provider). Such Wifi services are provided at the sole and absolute direction of the Wifi Provider (who is running the Wifyer application on his mobile device) to offer Wifi services, which may be requested through the use of the Application and/or the Service. Wifyer only acts as intermediary between you and the Wifi Provider(who is running the Wifyer application on his mobile device). The provision of the Wifi services by the Wifi Provider to you is subject to the agreement (to be) entered into between you and the Wifi Provider (who is running the Wifyer application on his mobile device. It is agreed and understood that Wifyer is not and shall never be a party to such agreement.

YOUR USE OF THE APPLICATION OR THE SERVICE

You warrant that the information you provide to Wifyer is accurate and complete. Wifyer is entitled at all times to verify the information that you have provided and to refuse the Service or use of the Application at its sole and absolute discretion without providing any reasons whatsoever.

You may only access the Service using authorized means. It is your responsibility to check and ensure you download the correct Application for your mobile device. Wifyer is not liable if you do not have a compatible mobile device or if you download the wrong/incorrect version of the Application for your mobile device. Wifyer reserves the absolute right to terminate the Service and the use of the Application should you be using the Service or Application with an incompatible or unauthorized device and/or if you download/use the wrong/incorrect version of the Application.

By using the Application or the Service, you further agree that:
  1. You will only use the Service or download the Application for your sole, personal use and will not directly or indirectly resell it to a third party.
  2. You will not authorize others to use your account.
  3. You will not assign or otherwise directly or indirectly transfer your account to any other person or legal entity.
  4. You will not use an account that is subject to any rights of a person other than you without appropriate authorization.
  5. You will not use the Service or Application for any type of illegal and/or unlawful purpose whatsoever, including but not limited to sending or storing any unlawful material or using the Service/Application for fraudulent purposes.
  6. You will not use the Service or Application to cause nuisance, annoyance or inconvenience to any person whatsoever.
  7. You will not impair the proper operation of the network.
  8. You will not try to harm the Service or Application in any way whatsoever.
  9. You will not directly or indirectly copy, disassemble, reverse engineer, make available to the public, sell or distribute the Application or other Wifyer Content without receiving express written permission from Wifyer.
  10. You will keep secure and confidential your account password or any identification we provide you which allows access to the Service and the Application.
  11. You will provide us with whatever proof of identity we may reasonably request.
  12. You will only use an access point or 3G data account (AP) to access the Application /Service which you are authorized to use.
  13. You agree that when requesting Wifi services by SMS (if available in your jurisdiction), standard messaging charges will apply and be payable by you.
  14. You will not use the Service or Application with an incompatible or unauthorized device.
  15. You will at all times comply with all applicable laws and regulations applicable in your home nation AND the country, state and/or city in which you are present while using the Application or Service.
  16. Wifyer reserves the right to immediately terminate the Service and the use of the Application, at its sole and absolute discretion, should you not comply with any of the above terms and conditions and/or any other term/condition set out herein.

PAYMENT

The use of the Application and the Service is free of charge until Wifyer at its sole discretion decides otherwise. Wifyer reserves the right to introduce a fee for the use of the Application and/or the Service. If Wifyer decides to introduce such a fee, Wifyer shall inform you accordingly and allow you to either continue or terminate the Contract.

INDEMNIFICATION

By accepting these User Terms and using the Application or Service, you agree that you shall defend, indemnify and hold Wifyer, its affiliates, its licensors, and each of their officers, directors, other users, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with:
  • Your violation or breach of any term of these User Terms and Conditions or any applicable law or regulation, whether or not referenced herein, and/or
  • Your violation of any rights of any third party, including Wifi Providers arranged via the Application, and/or
  • Your use or misuse of the Application or Service,
  • Any other matter directly or indirectly relating to these User Terms and Conditions.

LIABILITY

The information, recommendations and/or services provided to you on or through the Website, the Service and the Application is for general information purposes only and does not constitute advice. Wifyer will make reasonable efforts tokeep the Website and the Application and its contents correct and up to date but does not guarantee that (the contents of) the Website and/or Application are free of errors, defects, malware and viruses or that the Website and/or Application are correct, up to date and accurate.

Wifyer shall not be liable for any damages resulting from the use of (or inability to use) the Website or Application (but to the exclusion of death or personal injury), including damages caused by malware, viruses or any incorrectness or incompleteness of the Information or the Website or Application, unless such damage is the demonstrable result of any wilful misconduct or from gross negligence on the part of Wifyer.

Wifyer shall further not be liable for damages resulting from the use of (or the inability to use) electronic means of communication with the Website or the Application, including — but not limited to — damages resulting from failure or delay in delivery of electronic communications, interception or manipulation of electronic communications by third parties or by computer programs used for electronic communications and transmission of viruses.

Without prejudice to the foregoing, and insofar as allowed under mandatory applicable law, Wifyer’s aggregate liability in connection with these Terms and Conditions and/or the Application and Service, shall in no event exceed an amount of 100 Australian Dollars or, where applicable, the equivalent of that amount in the currency used by you for the payment of the Wifi services to the Wifi Provider.

The quality of the Wifi services requested through the use of the Application or the Service is entirely the responsibility of the Wifi Provider who ultimately provides such Wifi services to you. Wifyer under no circumstance accepts liability in connection with and/or arising from the Wifi services provided by the Wifi Provider or any acts, actions, behaviour, conduct, and/or negligence on the part of the Wifi Provider. Any complaints about the Wifi services provided by the Wifi Provider should therefore be submitted to the Wifi Provider.

LICENSE GRANT, RESTRICTIONS AND COPYRIGHT POLICY

For the purpose of this User Term, the following definitions apply:

"Content" means all content featured or displayed, including, but not limited to, logos, icons, trademarks, text, graphics text, graphics, photographs, images, moving images, sound, illustrations, music, software (excluding the Application), opinions, remarks, comments, artwork, links, questions, suggestions, information or other materials.

"Wifyer Content" means Content owned or used by Wifyer, its affiliates or licensors and made available through the Website, Service or Application, including any Content licensed from a third party, but excluding User Content.

"User" means a person who accesses or uses the Service or Application.

"User Content" means Content that a User posts, uploads, publishes, submits or transmits to be made available on the Website or through the Service or Application.

"Collective Content" means, collectively, Wifyer Content and User Content.

Subject to your compliance with these User Terms, Wifyer grants you a limited, non-exclusive, non-transferable license:
  1. To view, download and print any Wifyer Content solely for your personal and non-commercial purposes, and
  2. To view any User Content to which you are permitted access solely for your personal and non-commercial purposes.
You have no right to sublicense the license rights granted in this section.

You may not use, copy, adapt, modify, create derivative works from, distribute, license, sell, transfer, publicly display, publicly perform, reproduce, transmit, stream, broadcast or otherwise exploit the Website, Service, Application or Collective Content, except as expressly permitted in these User Terms. You may not reuse any Collective Content without first obtaining the written consent of Wifyer. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Wifyer or its licensors, except for the licenses and rights expressly granted in these User Terms.

LICENSE GRANTED BY USER

We may, in our sole discretion, permit Users to post, upload, publish, submit or transmit User Content on the Website or through the Service or Application. It is agreed that User Content is deemed non-confidential and non-proprietary. Accordingly, Wifyer shall have the non-exclusive, royalty-free, right to use, copy, distribute and disclose to third parties any User Content for any purpose, in any medium and throughout the world ("License Grant").

You acknowledge that Wifyer only acts as a passive conduit for the distribution of the User Content and is not responsible or liable to you or to any third party for the content or accuracy of the User Content. Wifyer shall not be continuously monitoring User Content published by you or moderating between Users, nor shall Wifyer be under an obligation to do so. Without limiting the foregoing, you acknowledge and agree that any remarks, opinions, comments, suggestions and other information expressed or included in the User Content do not necessarily represent those of Wifyer.

Any use by you of the User Content is entirely at your own risk. You represent and warrant that any User Content posted or transmitted by you is original to you and does not copy the work of any third party or otherwise infringe any third party legal or intellectual property rights, rights of privacy or personality rights and does not contain any defamatory or disparaging statements. Furthermore, you represent and warrant that you have the capacity to grant the license as stipulated in this paragraph.

You agree to indemnify and keep Wifyer, its affiliates and licensors indemnified against all costs, expenses, damages, losses and liabilities incurred or suffered by Wifyer or its affiliated companies related to any User Content posted or transmitted by you or your other use of the Website, the Service or the Application.

Wifyer reserves the right at its sole discretion to block or remove (in whole or in part) any User Content posted or transmitted by you and which Wifyer believes is not in accordance with these User Terms (including materials which infringe or may infringe third party intellectual property rights, rights of privacy or personality rights), or is otherwise unacceptable to Wifyer.

You agree to promptly notify Wifyer in writing of any User Content which breaches these User Terms. You agree to provide to Wifyer sufficient information to enable Wifyer to investigate whether such User Content breaches these User Terms. Wifyer agrees to make good faith efforts to investigate such complaint and shall take such action as Wifyer in its sole discretion decides. However, Wifyer does not warrant or represent that it will block or remove (in whole or in part) such user Content.

APPLICATION LICENSE

Subject to your compliance with these User Terms, Wifyer grants you a limited non-exclusive, non-transferable license to download and install a copy of the Application on a single mobile device that you own or control and to run such copy of the Application solely for your own personal use.

YOU SHALL NOT directly or indirectly

  1. License, sub-license, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or Application in any way.
  2. Modify or make derivative works based upon the Service or Application.
  3. create Internet "links" to the Service or "frame" or "mirror" any Application on any other server or wireless or Internet-based device.
  4. reverse engineer or access the Application in order to;
    • Design or build a competitive product or service,
    • Design or build a product using similar ideas, features, functions or graphics of the Service or Application, or
    • Copy any ideas, features, functions or graphics of the Service or Application, or
    • Launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the Service or Application.

YOU SHALL NOT directly or indirectly

  1. Send spam or otherwise duplicative or unsolicited messages in violation of applicable laws,
  2. Send or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights,
  3. Send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs
  4. Interfere with or disrupt the integrity or performance of the Website, the Application or Service or the data contained therein, or
  5. Attempt to gain unauthorized access to the Website, the Application or Service or its related systems or networks.

Wifyer will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Wifyer may involve and cooperate with law enforcement authorities in prosecuting users who violate these User Terms. You acknowledge that Wifyer has no obligation to monitor your access to or use of the Website, Service, Application or Collective Content or to review or edit any Collective Content, but has the right to do so for the purpose of operating the Website, the Application and Service, to ensure your compliance with these User Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Wifyer reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that Wifyer, at its sole discretion, considers to be in violation of these User Terms or otherwise harmful to the Website, the Service or Application.

COPYRIGHT POLICY

Wifyer respects copyright law and expects its users to do the same. It is Wifyer’s policy to terminate in appropriate circumstances Users or other account holders who infringe or are believed to be infringing the rights of copyright holders. Please see Wifyer’s Copyright Policy for further information.

INTELLECTUAL PROPERTY OWNERSHIP

Wifyer alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Website, Application and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Website, Application or the Service.

These User Terms do not constitute a sale and do not convey to you any rights of ownership in or related to the Website, the Application or the Service, or any intellectual property rights owned by Wifyer. Wifyer’s name, logo, and the product names associated with the Application and Service are trademarks of Wifyer, its affiliated companies or third parties, and no right or license is granted to use them.

THIRD PARTY INTERACTIONS

During the use of the Website, the Application and the Service, links to websites that are owned and controlled by third parties may be provided from time to time in order to enter into correspondence with, purchase goods or services from, participate in promotions of third parties. These links take you off the Website, the Application and the Service and are beyond Wifyer’s control.Wifyer is not responsible and cannot be held liable for the content and activities of these websites. You therefore visit or access these websites entirely at your own risk.

Please note that these other websites may send their own cookies to users, collect data or solicit personal information, and you are therefore advised to check the terms of use or privacy policies on those websites prior to using them.

During use of the Website, the Application and the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third party service providers, advertisers or sponsors showing their goods and/or services through a link on the Website or through the Application or Service. These links take you off the Website, the Application and the Service and are beyond Wifyer’s control. The websites you can link to have their own separate terms and conditions as well as a privacy policy. Wifyer is not responsible and cannot be held liable for the content and activities of these websites. You therefore visit or access these websites entirely at your own risk.

Please note that these other websites may send their own cookies to users, collect data or solicit personal information, and you are therefore advised to check the terms of use or privacy policies on those websites prior to using them.

TERM AND TERMINATION OF THE CONTRACT

The Contract between Wifyer and you is concluded for an indefinite period.

You are entitled to terminate the Contract at all times by permanent deletion of the Application installed on your smart phone, thus disabling the use by you of the Application and the Service. You can close your user account at any time by following the instructions on Wifyer's website.

Wifyer is entitled to terminate the Contract at all times and with immediate effect (by disabling your use of the Application and the Service) if you:
  • Violate or breach any term of these User Terms, and/or
  • In the opinion of Wifyer, you misuse the Application or the Service. Wifyer is not obliged to give notice of the termination of the Contract in advance. After termination Wifyer will give notice thereof in accordance with these User Terms.


It is specifically agreed that termination of these User Terms will not affect any payment obligations cast upon You under and in terms of these User Terms, prior to such termination.

INVALIDITY OF ONE OR MORE PROVISIONS

The invalidity of any term of these User Terms shall not affect the validity of the other provisions of these User Terms.

If and to the extent that any provision of these User Terms is invalid, or is unacceptable in the given circumstances according to the criteria of reasonableness and fairness, a provision shall apply between the parties instead that is acceptable considering all the circumstances and which corresponds with the provisions of the void part as much as possible, taking into account the content and the purpose of these User Terms.

MODIFICATION OF THE SERVICE AND USER TERMS

Wifyer reserves the right, at its sole discretion, to modify or replace any of these User Terms, or change, suspend, or discontinue the Service or Application (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Website or by sending you notice through the Service, Application or via email. Wifyer may at its sole discretion, also impose limits on certain features and services or restrict your access to parts or all of the Service without notice or liability.

NOTICE

Wifyer may give notice by means of a general notice on the Service or Application, or by electronic mail to your email address on record in Wifyer's account information, or by written communication sent by regular mail to your address on record in Wifyer's account information.

ASSIGNMENT

You may not assign your rights under these User Terms without prior written approval of Wifyer.

PRIVACY AND COOKIE NOTICE

Wifyer collects and processes the personal data of the visitors of the Website and users of the Application according to the Privacy and Cookie Notice.

APPLICABLE LAW AND DISPUTE RESOLUTION

These User Terms are subject to the laws of Australia. Any dispute, claim or controversy arising out of or relating to these User Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Website, the Service or the Application (collectively, "Disputes") will be settled exclusively by the competent court in Sydney, Australia.

FINAL PROVISION

The English text of these User Terms constitutes the sole authentic text. In the event of any discrepancy between the English text and a translation into a foreign language, the English text shall prevail.