Terms of Service
Last revised on January 27, 2017
The terms and conditions below (these “Terms of Service”) govern your access to and use of Evay Limited/Evay Pty Ltd websites, products, and services (collectively, the “Services”). The Terms of Service constitute a legal agreement between you and Evay Limited/Evay Pty Ltd. You agree to these Terms of Service by accessing or using the Services. Your use (or continued use) of the Services indicates that you have read, understood, and accepted these Terms of Service.
A “user” is someone who accesses, browses, subscribes to, or in any way uses the Services. The terms “you” and “your” refer to you, as a user of the Services. The terms “we,” “us,” “our,” and “Evay Limited/Evay Pty Ltd” refer to Evay Limited/Evay Pty Ltd an Australian Proprietary limited company.
“Content” means text, graphics, images, photos, audio, video, and all other forms of data or communication uploaded, downloaded, or appearing on the Services. “Your Content” means Content that you create, authorize, or submit through the Services. “Evay Limited/Evay Pty Ltd Content” means Content that we make available through the Services.
“Third Party Content” means Content that is made available through the Services by parties other than Evay Limited/Evay Pty Ltd or its users.“Services Content” means all of the Content that is made available through the Services, including Your Content, Third Party Content, and Evay Limited/Evay Pty Ltd Content.
“Platforms” shall mean Facebook, Twitter, Pinterest, Google Plus, and any other social media platforms, applications, or sites that Evay Limited/Evay Pty Ltd agrees to include in the Services.
RELATIONSHIP BETWEEN THE PARTIES
Each party to these Terms of Service will conduct its business as an independent contractor, in its own name, and in such manner as it deems fit. Evay Limited/Evay Pty Ltd may receive input from you to help provide its Services, but ultimately Evay Limited/Evay Pty Ltd will provide such services in the matter it sees fit and in accordance with these Terms of Services. Evay Limited/Evay Pty Ltd does not grant the user the power or authority to give or effect any agreement, statement, warranty or other commitment on behalf of Evay Limited/Evay Pty Ltd, or to incur any liability, express or implied, on behalf of Evay Limited/Evay Pty Ltd, or to transfer, release or waive any right, title or interest of Evay Limited/Evay Pty Ltd.
SUBSCRIPTIONS AND PURCHASES
Your Evay Limited/Evay Pty Ltd Services begin at the moment of your first payment to Evay Limited/Evay Pty Ltd. By purchasing or subscribing to the Services, you grant Evay Limited/Evay Pty Ltd the right to (1) create, access and manage profiles, applications, or websites for the Platforms (to the extent you are present or desire to be present on such Platforms) in your name using Evay Limited/Evay Pty Ltd Content, Your Content, Third Party Content, and publicly available information; (2) post, at Evay Limited/Evay Pty Ltd discretion, Content to the Platforms in your name, including but not limited to Content that mentions, discusses, or promotes third parties; (3) access, collect, read, analyze, and otherwise use on your behalf the information available on the Platforms.
In connection with the Services, you will be required to provide us with login credentials to each of the Platforms. Furthermore, to the extent any of those credentials are changed, you are required to notify us in writing of the new applicable credentials.
Notwithstanding our access and responsibility to post Content to the Platforms, you are also encouraged to post Your Content to the Platforms.
You are responsible for maintaining the security of your account login information and for any activities or actions occurring under your accounts. Evay Limited/Evay Pty Ltd encourages you to use a “strong” password (passwords that use a combination of upper and lower case letters, numbers and symbols) for your accounts. Evay Limited/Evay Pty Ltd will not be responsible for any loss or damages resulting from your failure to comply with this obligation.
WEEKENDS AND HOLIDAYS
Evay Limited/Evay Pty Ltd does not and will not manage any profiles or provide any services to its customers on weekends or public Australian holidays.
SUBSCRIPTION PAYMENT AND TERM
Upon becoming a subscriber to the Services, you agree to pay for the Services received from Evay Limited/Evay Pty Ltd via Visa, MasterCard, Discover, or American Express credit or debit card, in advance of the time period during which such Services are provided. You agree that until and unless you notify Evay Limited/Evay Pty Ltd of your desire to cancel the Services in accordance with these Terms of Service, the Services will be charged to the card on file automatically on a recurring monthly basis.
You understand that the pricing plans for Evay Limited/Evay Pty Ltd Services must evolve with the market. You agree that Evay Limited/Evay Pty Ltd is authorized at any time to modify and adapt its pricing plans for its Services to fit with its business model and in as far as such modification or adaptation is applicable for all users of that pricing plan. In case of such modification or adaptation of a pricing plan, such modification or adaptation will apply as from the 1st day of the second month following the notification thereof to the user. If you do not cancel your subscription before such modifications or adaptations apply, you are irrevocably deemed to have accepted such modification or adaptation.
You are solely responsible for properly cancelling your subscription. You may cancel your account at any time before your next billing date without penalty. All cancellations must be made by telephone or email. While there are no cancellation fees, we do not give pro-rated refunds.
You represent and warrant that you (a) have not previously been suspended by Evay Limited/Evay Pty Ltd or removed from the Services; (b) are not a competitor of Evay Limited/Evay Pty Ltd; and (c) have full power and authority to enter into these Terms of Service and in doing so will not violate any other agreement to which you are a party. If you are not the account holder, but are setting up an account on behalf of a third party, you hereby certify that you are an authorized representative of the account holder, and have permission of the account holder to make a legally binding agreement on their behalf.
CHANGES TO THE TERMS OF SERVICE
Evay Limited/Evay Pty Ltd; may modify these Terms of Service from time to time. You are responsible for regularly reviewing the most current version of these Terms of Service which are currently available at https://evaylimited.com/terms and which indicate at the top of these Terms of Service the date that revisions were last made. You understand and agree that your continued use of the Services after any posted modification to these Terms of Service indicates your acceptance of the modification.
USE OF THE SERVICES
The Services may only be used for lawful purposes – any use of the Services which violates any applicable laws is strictly prohibited. It is your responsibility to be aware of the laws in both the jurisdiction of where our principal office is located (Queensland, Australia) and your local jurisdiction. We reserve the right to make the final decision on what constitutes lawful or unlawful purposes.
RESTRICTIONS ON USE
You agree that you will not, and will not assist or enable others to use the Services in any of the following ways or for any of the following purposes:
- to submit or transmit adult-oriented content (sexual material or services) or other illegal content. If you are unsure as to what constitutes “adult” material please email firstname.lastname@example.org;
- to threaten, stalk, defraud, incite, harass, or advocate the harassment of another person, or otherwise interfere with another user’s use of the Services;
- to violate any third-party right, including any breach of contract, breach of a fiduciary relationship, breach of confidence, copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
- to solicit personal information from minors or to harm or threaten to cause harm to minors;
- to submit, post, email, transmit, or otherwise make available content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) may constitute or contribute to a crime or tort; (iv) contains any information or content that is unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or in a reasonable person’s view, objectionable; (v) contains any information or content that is illegal; or
- in violation of these Terms of Service or any applicable law.
Evay Limited/Evay Pty Ltd; may permanently or temporarily terminate, suspend, or otherwise refuse to permit your access to the Services without notice and liability, if, in Evay Limited/Evay Pty Ltd sole determination, you violate or appear to violate any part of these Terms of Service, including any of the following prohibited actions:
- modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or in any way exploit the Services or Services Content, except as expressly authorized by Evay Limited/Evay Pty Ltd;
- reverse engineer any portion of the Services;
- remove or modify any copyright, trademark, or other proprietary rights notice on the Services or on any materials printed or copied from the Services;
- record, process, or mine information about other users;
- use any robot, spider, site search/retrieval application, or other automated device, process, or means to access, retrieve, scrape, or index the Services or any Services Content;
- take any action that imposes, or may impose in our sole discretion, an unreasonable or disproportionately large load on Evay Limited/Evay Pty Ltd technology infrastructure;
- attempt to gain unauthorized access to the Services, user accounts, computer systems, or networks connected to the Services through hacking, password mining, or any other means; use the Services or any Services Content to transmit any computer viruses, worms, defects, Trojan horses, or other items of a destructive nature; use any device, software or routine that interferes with the proper working of the Services, or otherwise attempt to interfere with the proper working of the Services; use the Services to violate the security of any computer network, crack passwords or security encryption codes; disrupt or interfere with the security of, or otherwise cause harm to, the Services or Services Content; remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Services, features that prevent or restrict the use or copying of Services Content, or features that enforce limitations on the use of the Services; or
- impersonate another person or otherwise misrepresent your affiliation with a person or entity, conduct fraud, hide or attempt to hide your identity.
RESPONSIBILITY FOR YOUR CONTENT
You alone are responsible for all Content on all Platforms, including the Evay Limited/Evay Pty Ltd Content posted on Platforms on your behalf. You understand and acknowledge that, by subscribing to the Services, Evay Limited/Evay Pty Ltd will be authorized to develop and post to the Platforms Content on your behalf. Notwithstanding the foregoing, it is your obligation to review such Content after it is posted onto a Platform and, to the extent you desire, to delete any undesirable Content. You assume all risks associated with the Content, including anyone’s reliance on its accuracy, completeness or usefulness, or any disclosure by you or Evay Limited/Evay Pty Ltd of information in the Content that makes you personally identifiable. You represent that you own, or have the necessary permissions to use, and authorize the use of, Your Content as described herein. You may not imply that Your Content is in any way sponsored or endorsed by Evay Limited/Evay Pty Ltd. Evay Limited/Evay Pty Ltd is in no way responsible if the use of any of your social media profiles or accounts (including as a result of Evay Limited/Evay Pty Ltd Content) are in violation of the terms of service or use of the applicable social media platform or otherwise result in the suspension or termination of access to such social media platform.
You may not assign or transfer the Services subscribed to hereunder to anyone else without prior written consent from Evay Limited/Evay Pty Ltd. Any assignment attempted to be made in violation of these Terms of Service shall be void.
We reserve the right to modify, update, or discontinue the Services at our sole discretion, at any time, for any reason, and without notice or liability. Furthermore, we reserve the right to add and/or discontinue Platforms from the Services at our sole discretion, at any time, for any reason, and without notice or liability.
We reserve the right to exercise whatever lawful means we deem necessary to prevent unauthorized access to or use of the Services, including, but not limited to, technological barriers, IP mapping, and contacting your Internet Service Provider (ISP) regarding such unauthorized use.
Except for the licenses granted to Evay Limited/Evay Pty Ltd, Evay Limited/Evay Pty Ltd claims no intellectual property rights over the Content made available to others through your accounts. Additionally, your profile and other Content you provide to Evay Limited/Evay Pty Ltd in connection with the Services remain yours. However, by making that Content available to others through the Services, or providing it to Evay Limited/Evay Pty Ltd through the Services, you grant Evay Limited/Evay Pty Ltd a worldwide, non-exclusive, royalty-free, fully paid up license (with a right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content through any or all media or distribution methods (whether now known or hereafter developed). You also acknowledge that the purpose of the Services is to access the services of third party service providers, and that, as a result, you are agreeing to grant to Evay Limited/Evay Pty Ltd any and all other rights you grant to applicable third party service providers.
INITIAL DESIGN WORK
As part of the Services, Evay Limited/Evay Pty Ltd may provide some initial design work for the various Platform profiles, which may include, but is not limited to, layout design, and posting pictures, graphics, and/or video. When providing initial design work, Evay Limited/Evay Pty Ltd will create a suggested version of such work for your approval. If you are not satisfied with the suggested version, you may modify it as you desire. Any and all original works of authorship which are made by Evay Limited/Evay Pty Ltd (solely or jointly with others) within the scope of these Terms of Service and which are protectable by copyright are “works made for hire,” pursuant to Australia Copyright Act. As such, Evay Limited/Evay Pty Ltd does not claim ownership of such works, but only the licensing and use rights granted to it under these Terms of Service.
You agree to indemnify and hold harmless Evay Limited/Evay Pty Ltd and its affiliates and their members, managers, officers, employees, representatives, agents, and assignees from and against all taxes, losses, damages, liabilities, costs and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with (i) any negligent, reckless, or intentionally wrongful act of you or your assistants, employees, contractors, or agents, (ii) any breach by the you or your assistants, employees, contractors, or agents of any of the covenants contained in these Terms of Service, (iii) any failure of you or your assistants, employees, contractors, or agents to conduct business in accordance with all applicable laws, rules, and regulations, (iv) any failure of you or your assistants, employees, contractors, or agents to perform its obligations under these Terms of Service, or (v) any violation or claimed violation of a third party’s rights resulting in whole or in part from Evay Limited/Evay Pty Ltd reliance on your performance of your obligations under these Terms of Service.
LIMITATION OF LIABILITY
IN NO EVENT SHALL EVAY LIMITED/EVAY PTY LTD BE LIABLE TO YOU OR TO ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS OR LOSS OF BUSINESS, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHER THEORY OF LIABILITY, AND REGARDLESS OF WHETHER THE PARTIES WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL EVAY LIMITED/EVAY PTY LTD LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE OR THE PROVISION OF SERVICES HEREUNDER EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS PAID BY YOU TO EVAY LIMITED/EVAY PTY LTD DURING A 12-MONTH PERIOD.
NOTWITHSTANDING THE GENERALITY OF THE FOREGOING, EVAY LIMITED/EVAY PTY LTD SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES ARISING FROM THE SUSPENSION OF YOUR ACCOUNTS FROM ANY PLATFORM, REGARDLESS OF WHETHER THE SUSPENSION RESULTED FROM THE SERVICES.
EXCEPT AS EXPLICITLY PROVIDED HEREIN, EVAY LIMITED/EVAY PTY LTD MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND FOR THE SERVICES. THE SERVICES AND ALL SERVICES CONTENT IS MADE AVAILABLE TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. EVAY LIMITED/EVAY PTY LTD DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY INCOMPLETENESS, ERRORS, SECURITY, VIRUSES, BUGS, PROBLEMS, OMISSIONS, INACCURACIES OR OTHER LIMITATIONS IN, OR INTERRUPTIONS IN THE OPERATION OF, THE SERVICES. NO ADVICE OR INFORMATION GIVEN BY EVAY LIMITED/EVAY PTY LTD OR ITS AGENTS OR EMPLOYEES SHALL CREATE ANY WARRANTY, REPRESENTATION, OR CONDITION NOT EXPRESSLY STATED HEREIN.
YOU UNDERSTAND THAT BY PLACING INFORMATION ON THE PROFILE OF ANY PLATFORM THAT SUCH INFORMATION BECOMES AVAILABLE TO ALL INTERNET USERS AND THAT EVAY LIMITED/EVAY PTY LTD HAS NO WAY OF LIMITING OR RESTRICTING ACCESS TO SUCH INFORMATION OR PROTECTING SUCH INFORMATION FROM COPYRIGHT INFRINGEMENT. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICES AND THE INTERNET. IT IS SOLELY YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF ALL OPINIONS, ADVICE, THE SERVICES AND OTHER INFORMATION, AND THE QUALITY AND MERCHANTABILITY OF ALL MERCHANDISE PROVIDED THROUGH EVAY LIMITED/EVAY PTY LTD OR ON THE INTERNET GENERALLY.
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. EVAY LIMITED/EVAY PTY LTD IS NOT RESPONSIBLE FOR FILES AND DATA RESIDING ON YOUR ACCOUNT. YOU AGREE TO TAKE FULL RESPONSIBILITY FOR FILES AND DATA TRANSFERRED AND TO MAINTAIN ALL APPROPRIATE BACKUP OF FILES AND DATA USED IN CONNECTION WITH THE SERVICES.
YOU AGREE NOT TO INTERFERE WITH THE OPERATION OF THE SYSTEM OR OUR SERVICES. YOU FURTHER AGREE NOT TO INTERFERE WITH THE PROPER OPERATION OF OTHER SYSTEMS REACHABLE THROUGH THE INTERNET, INCLUDING ANY ATTEMPT AT UNAUTHORIZED ACCESS. YOU AGREE TO ADHERE TO SYSTEM POLICIES AS PUBLISHED BY EVAY LIMITED/EVAY PTY LTD, INCLUDING RESTRICTIONS ON SERVICES AVAILABLE WITH EACH SERVICE TYPE, RESTRICTIONS ON CERTAIN FEATURES, AND ALL OTHER POLICIES. EVAY LIMITED/EVAY PTY LTD MAY CHANGE ITS POLICIES AND RESTRICTIONS WITHOUT NOTICE. YOU AGREE TO ABIDE BY ANY AND ALL FUTURE POLICY DECISIONS PERTAINING TO THE SERVICES.
NOTICE AND TAKEDOWN
Upon receipt of a notice by a third party concerning an alleged infringement of intellectual property rights, or other infringing, libelous, obscene, threatening, or otherwise unlawful material or any defamatory content, the user irrevocably allows Evay Limited/Evay Pty Ltd to take all actions, (including removing Content, information, links, electronic data or any other item from the user’s profile, account, or other medium where such items are found), all of which are taken without any admission as to liability and without prejudice to any rights, remedies or defenses, all of which are expressly reserved.
You explicitly agree that you will not provide Evay Limited/Evay Pty Ltd with any of your confidential information. Any information you send to Evay Limited/Evay Pty Ltd is not considered to be confidential information. As such, we request that you do not send any information, which you consider to be confidential, to us. Additionally, any information you post to third party websites (Twitter, Facebook, etc.), is not considered to be confidential due to the public nature of such postings. To the extent you provide Evay Limited/Evay Pty Ltd with any information, it shall be deemed to be not confidential and, unless agreed upon in a separate writing, Evay Limited/Evay Pty Ltd shall not be subject to any non-disclosure obligations.
These Terms of Service supersede any written, electronic, or oral communication you may have had with Evay Limited/Evay Pty Ltd or any agent or representative thereof, and constitutes the complete and total agreement between the parties. Should any provision of these Terms of Service be determined to be invalid or unenforceable, all other provisions shall remain in full force and effect and said provision shall be reformed only to the extent necessary to make it enforceable.
It is the explicit intention of the parties hereto, that no person or entity other than the parties hereto, and their permitted successors and assigns, shall be entitled to bring any action to enforce any provision of these Terms of Service, and the covenants, undertakings and agreements set forth in these Terms of Service shall be solely for the benefit of, and shall be enforceable only by the parties hereto or their respective successors and assigns as permitted hereunder.
If there is any dispute about or involving the Services or Evay Limited/Evay Pty Ltd, you agree that any such dispute will be governed by the laws of NSW, Australia without regard to its conflict of law provisions. You agree to personal jurisdiction by and venue in the state of NSW, Australia.
You agree that if you sue Evay Limited/Evay Pty Ltd and do not obtain judgment in your favor, you will pay all of Evay Limited/Evay Pty Ltd costs associated with such litigation, including reasonable attorney’s fees.
No agency, partnership, joint venture, or employment is created as a result of these Terms of Service, and you do not have any authority of any kind to bind us in any respect whatsoever.
We may provide you with notices, including those regarding changes to these Terms of Service by email, regular mail or postings on our website.
Except as otherwise stated, nothing herein is intended, nor will be deemed, to confer rights or remedies upon any third party.
Any failure on our part to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
The section titles in these Terms of Service are for convenience only and have no legal or contractual effect.