Terms and Conditions
MODAPINS Terms of Service
LAST UPDATE TO THE TERMS OF SERVICE: 11th MARCH, 2019
Thank you for selecting MODAPINS.com.au, (referred to as “Site”, “MODAPINS”, “we”, “our”, or “us”). Please read these Terms of Service (“Terms”) carefully. The Terms are a legal agreement between you and us in relation to your use of the Site and its associated services (the “Agreement”).
2. USE CONSTITUTES ACCEPTANCE
By accessing the Site, opening an account or using any of our services you agree to these Terms. If you do not agree to these Terms, you may not use the Site or services and should leave this Site immediately.
4. PROTECTION OF MINORS
You must be 13 years or older to use the Site or any Service. If you authorise a minor to use the Site or Services, you acknowledge and agree that you are fully responsible for: (i) the conduct of such minor; (ii) controlling the minor’s access to and use of the Site or Services; and (iii) the consequences of such illegality and misuse by the minor.
5. ACCOUNT REGISTRATION
If you wish to post content, for example comments or reviews, on the Site you will need to use your account username. You can select any username you like, except that your username cannot be an impersonation of another person, a term that is the same or confusingly similar to a famous trademark, or a term that is offensive in any way. You may, but are not obligated to, use your own name. If you do use your own name, you consent to it being passed to others by use of certain of the functions of Site. MODAPINS reserves the right to reject or remove any username.
7. THIRD PARTIES AND EXTERNAL LINKS
7.1 Third Party Suppliers: You agree that your dealings with third party suppliers found on or through the Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the third party supplier, and you agree not to hold MODAPINS liable for any disputes you may have with such third party supplier.
7.2 Links: This Site provides, and third parties may provide, links to other websites or resources. As we have no control over such websites and resources you agree that links to third party websites are provided solely for your convenience and we are not responsible for the availability of such external sites or resources and are not liable for the content found at such websites or resources. If you decide to access any third party websites linked to this Site you do so entirely at your own risk.
7.3 Affiliates and Advertising: MODAPINS may derive income from advertising or affiliate links contained on the Site.
Cookies remember the type of browser you use and which additional browser software you have installed. They also remember your preferences, such as language and region, which remain as your default settings when you revisit the website. Some of the cookies we use are session cookies and only last until you close your browser, others are persistent cookies which are stored on your computer for longer.
9. ACCOUNT AND PASSWORD SECURITY
If you register as a user with the Site you will be asked to choose a password. You must comply with the content rules set out in these Terms, including but not limited to the following:
- You must not use your account in connection with the impersonation of any person.
- You must keep your password confidential.
- You must notify us immediately if you become aware of any disclosure of your password.
- You are responsible for any activity on the Site arising out of any failure to keep your password confidential, and may be held liable for any damages or losses arising out of such a failure.
We are entitled to assume that anyone who accesses your account or service using your password does so by your authority. You are solely responsible for determining whether the security provided by us and our suppliers is sufficient for your purposes. If you do not agree the security is sufficient it is your responsibility to either implement your own additional security or not use the Site.
Unfortunately, no data transmission over the Internet can be guaranteed as totally secure. Whilst we strive to protect such information, we do not warrant and cannot ensure the security of any information which you transmit to us. Accordingly, any information which you transmit to us is transmitted at your own risk. Nevertheless, once we receive your transmission, we will take reasonable steps to preserve the security of such information.
10. OWNERSHIP AND INTELLECTUAL PROPERTY
10.1 You Gain No Ownership: No intellectual property ownership rights transfer from you to us, or us to you, as a result of this Agreement. The content of the Site is protected by copyright, trade-marks, database and other intellectual property rights. You may retrieve and display the content of the Site, store such content in electronic form on disk (but not any server or other storage device connected to a network) or print one copy of such content for your own personal, non-commercial use, provided you keep intact all and any copyright and proprietary notices. You may not otherwise reproduce, modify, copy or distribute or use for commercial purposes any of the materials or content on the Site without written permission from MODAPINS.
10.2 License to Host Your Content: In these Terms, “your content” means all works and materials (including but not limited to comments, reviews, advertising, testimonials, feedback and suggestions, text, images, documents, graphics, audio material, video material and files) that you submit to us or the Site for publication on the Site. You grant to us a worldwide, irrevocable, non-exclusive, royalty-free licence to:
- Reproduce, store and publish your content on and in relation to our Site and Services and any successor websites or services
- Publish your content on and in relation to our Site and Services.
You may edit your content to the extent permitted using the editing functionality made available by us. Without prejudice to our other rights under this Agreement, if you breach this Agreement in any way, or if we reasonably suspect that you have breached this Agreement in any way, we may delete, un-publish or edit any or all of your content.
10.3 No Infringement of Third Party Rights: You warrant and represent that your content will not infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right; and you possess all sufficient permissions, rights and/or licenses to provide or upload all and any content shared by you on or through the Site or Services.
You agree and acknowledge you must not infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right of any third party through your use of the Site and Services and must only share content when you possess all sufficient permissions, rights and/or licenses to provide or upload all and any content shared by you on or through the Site. Further, in the event of you infringing the intellectual property rights of any third party through your use of the Site or Services, it is you and not MODAPINS that will be liable.
10.4 Copyright Infringing Content: A portion of the Site’s content is contributed by our users in the form of comments, reviews and other postings, and is known as User Generated Content (UGC). We do not check UGC for violations of copyright, trademarks or other rights but the Site is protected by international safe-harbor provisions for online service providers and follows international best practice such as the principles of the EU Directive on Electronic Commerce and the US Digital Millennium Copyright Act (DMCA).
We will act expeditiously to remove content as soon as we have we have actual knowledge that it infringes copyright. If you believe there is copyright infringing material on the Site, please contact us via the Contact section of the MODAPINS Site with the following information:
- The name and address of the complaining party
- A description of the infringing materials and their Internet location, usually the URL
- Sufficient information to identify the copyrighted works
- A statement by the owner that it has a good faith belief that there is no legal basis for the use of the materials complained of
- A statement of the accuracy of the notice and, under penalty of perjury, a statement that the complaining party is the owner or authorized to act on the behalf of the owner.
11. LICENSE TO USE OUR SERVICES
- You agree that we have no responsibility or liability for the deletion, corruption or failure to store any content maintained or transmitted on or by the Site.
- You acknowledge that the features and services provided by us may change at any time without prior notice to you.
- You acknowledge that we reserve the right to sign out, terminate or delete your account at any time and for any reason at our sole discretion.
- Except as expressly permitted by these Terms, you must not edit or otherwise modify any material on the Site.
- We reserve the right to restrict your access to the Site and/or Services at our sole discretion and you must not circumvent or bypass, or attempt to circumvent or bypass, any such access restrictions.
12. ACCEPTABLE USE OF OUR SERVICES
You must not:
- Use our Site or Services to infringe any third party rights, including but not limited to any third party copyright or other intellectual property right
- Use our Site or Services in any way or take any action that causes, or may cause, damage to them or impair their performance, availability or accessibility
- Use our Site or Services in any way that is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity
- Use our Site or Services to copy, store, host, transmit, send, use, publish or distribute any material which consists of (or is linked to) any spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit or other malicious computer software
- Conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to our Site or Services without our express written consent
- Access or otherwise interact with our Site or Services using any robot, spider or other automated means
- Use data collected from our Site or Services for any direct marketing activity, including without limitation email marketing, SMS marketing, telemarketing and direct mailing.
13. NO DUTY TO MONITOR
You agree that we are not liable for content that is provided by others. We have no duty to screen content that you may supply or post, but we have the right to refuse to post or to edit submitted content. We reserve the right to remove any content for any reason at any time.
14. CHANGES TO THIS SITE
We may discontinue or change any MODAPINS content, service, function or feature at any time with or without notice. This includes any changes to accounts and/or pricing.
15. PERSONAL INFORMATION AND PRIVACY
16. YOUR CONTENTS
16.1 Your Content: You agree that we may use any content or materials you submit to us, including but not limited to comments, reviews, advertisements, testimonials , text, video, audio, images, code and documents in any way, including in future modifications of the Site or Services, other products or services, advertising or marketing materials. You grant us a perpetual, worldwide, fully transferable, sub-licensable, non-revocable, fully paid-up, royalty free license to use the content you provide to MODAPINS in any way.
16.2 Use of Your Feedback: You agree that we may use your feedback, suggestions, or ideas in any way, including in future modifications of the Site or Services, other products or services, advertising or marketing materials. You grant us a perpetual, worldwide, fully transferable, sub-licensable, non-revocable, fully paid-up, royalty free license to use the feedback you provide to MODAPINS in any way.
16.3 Prohibited Content: You may not use the Site or Services for any of the following purposes:
- Disseminating any unlawful, harassing, libellous, abusive, threatening, harmful, vulgar, obscene, or otherwise objectionable material.
- Transmitting material that is or which encourages conduct that constitutes a criminal offence, results in civil liability or otherwise breaches any relevant laws, regulations or code of practice.
- Gaining unauthorised access to other computer systems.
- Interfering with any other person’s use or enjoyment of the Site.
- Breaching any laws concerning the use of public telecommunications networks.
- Interfering or disrupting networks or websites connected to the Site.
- Making, transmitting or storing electronic copies of materials protected by copyright without the permission of the owner.
- Engaging in technically harmful behaviour, which includes but is not limited to: computer viruses, logic bombs, trojan horses, worms, harmful components, corrupted data and other malicious software or harmful data
- Posting fraudulent reviews.
16.4 Right to Remove: We reserve the right to refuse to post material on our Site or to remove material already posted on the Site.
17. WARRANTIES AND DISCLAIMERS
We provide this Site and its contents “AS IS.” We and our suppliers make no express warranties or guarantees about this Site. TO THE EXTENT PERMITTED BY LAW, WE AND OUR SUPPLIERS DISCLAIM IMPLIED WARRANTIES INCLUDING ANY WARRANTY THAT THE SITE IS OR WILL BE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, TIMELY, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. WE DO NOT GUARANTEE THAT THIS SITE OR ITS CONTENT WILL MEET YOUR REQUIREMENTS, IS ERROR-FREE, RELIABLE, OR WILL OPERATE WITHOUT INTERRUPTION. Because some jurisdictions do not permit disclaimer of implied warranties, you may have additional consumer rights under your local laws.
18. LIMITATIONS OF LIABILITY
You may not assert claims for money damages arising from this Site or its contents. We and our suppliers shall not be liable for any indirect, special, incidental, consequential or exemplary damages, even if we knew or should have known of the possibility of such damages. Because some jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such jurisdictions, our liability, and the liability of our company and suppliers, shall be limited to the extent permitted by law.
19. YOUR REPRESENTATIONS AND WARRANTIES
You represent and warrant to us that:
- You will only upload content you have the rights to, and you will not infringe any third party’s rights by uploading content you do not have the rights to.
- This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
- You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party.
- You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
- All information you supply to us in connection with your use of our services is true and complete in all material respects and will be kept up to date if it changes.
You agree to indemnify and hold harmless MODAPINS and its employees, representatives, agents, and affiliates, against any and all claims, suits, actions, or other proceedings brought against them based on or arising from any claim resulting from your breach of this Agreement, your violation of any law or third party right, any claim that use of our services has harmed a third party, your use of the Site, the Services or your data. You will pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys’ fees and costs awarded against or otherwise incurred by us in connection with or arising from any such claim, suit, action, or proceeding. MODAPINSs reserves the right, in its sole discretion and at its own expense, to assume the exclusive defence and control of any claims. You agree to reasonably cooperate as requested by MODAPINS in the defence of any claims.
21. JURISDICTION LIMITATIONS
As some jurisdictions do not allow some of the exclusions or limitations as established above, some of these exclusions or limitations may not apply to you. In that event, the liability will be limited as far as legally possible under the applicable legislation.
We may suspend your account; cancel your account; and/or edit your account details at any time at our sole discretion without notice or explanation. You may cancel your account using the Site’s administration functions. MODAPINS reserves the right, in our absolute discretion, to terminate your access to all or part of the Site or Services without notice. Upon such termination or suspension you will be denied access to any information or files you have stored on the Site.
23. INTERNATIONAL USE
The Site is intended for access from New Zealand. We make no representation that content on this Site is appropriate or available for use in locations outside New Zealand If you choose to access this Site from a location outside New Zealand, you do so on your own initiative and you are responsible for compliance with local laws.
24. BREACHES OF THIS AGREEMENT
If you breach these Terms in any way, or if we reasonably suspect that you have breached these Terms in any way, we may:
- Delete, suspend or block access to your account
- Send you one or more formal warnings
- Temporarily suspend your access to the Site/Services
- Permanently prohibit you from accessing the Site/Services
- Block computers using your IP address from accessing the Site/Services
- Contact any or all your Internet service providers (ISPs) and request that they block your access to the Site/Services
- Commence legal action against you, whether for breach of contract or otherwise.
Where we suspend or prohibit or block your access to our Site and Services, you must not take any action to circumvent such suspension or prohibition or blocking (including without limitation creating and/or using a different account).
25. GENERAL PROVISIONS
25.2 Governing Law: These Terms will be governed in all respects by the laws of New Zealand. The Parties irrevocably submit to the non-exclusive jurisdiction of the courts of New Zealand.
25.3 Relationship of Parties: Parties are independent contractors and neither Party’s employees will be considered employees of the other Party for any purpose. This Agreement does not create a joint venture or partnership, and neither Party has the authority to bind the other to any third party.
25.4 Assignment: You may not assign your rights or obligations under this Agreement to any party, and any attempt to do so will be void and without effect. We are free to assign this Agreement.
25.6 Titles and Headings: Titles and headings are inserted in this Agreement for reference purposes only, and must not be used to interpret the Agreement.
25.7 Communication and Notices: You consent to receive notices and information from us in respect of our Site and Services by electronic communication. You may withdraw this consent at any time, but if you do so we may choose to suspend or close your account. We may provide you with notices, including those regarding changes to these terms by email, paper mail, publication on our Site, by SMS, or in any other way recognised by law. You may contact us using the Contact Form on the MODAPINS Site.
25.8 Waiver: Our failure to exercise or enforce any right or provision of these terms is not a waiver of such right or provision.
25.9 Severability: If any provision is found by a court of competent jurisdiction to be invalid, the parties agree that the court must as far as possible give effect to the parties’ intentions as reflected in it, and these terms otherwise remain in full force and effect.
25.10 Subcontracting and Outsourcing: We will solely determine how to operate our systems and provide Services. We may subcontract or outsource any function as we see fit.
25.11 Compliance with Laws: In using the Services, you must comply with all applicable laws and regulations and, without limitation you must not use Services (or allow them to be used) in connection with or in furtherance of any fraudulent scheme or purpose.
25.12 Law Enforcement: You authorise us to provide any information or comply with any request in relation to you or your account that is requested by any government, court or law enforcement agency. We are not obliged to verify or validate the identity or authority of any such government, court or law enforcement agency if it appears to us, acting in good faith, to be legitimate.
25.13 Third Party Rights: This Agreement does not confer any rights or benefits on any third party and is only for the benefit of you and MODAPINS. This does not affect our right to assign our rights or obligations to a third party as described in clause 30.4 above.
25.14 Dispute Resolution: It is not up to MODAPINS to resolve disputes between you and other users or third parties. In order for a dispute to be lodged you must have made every effort to resolve the dispute on your own. You acknowledge and agree you will be fair and reasonable in your communications with others and will work constructively to settle any dispute or conflict you may have. You agree you will submit to our internal dispute resolution service by contacting us at MODAPINS.com.au and will abide by our determinations.
25.15 Help: You can contact us with questions about this Agreement or for other help through the Contact form on the MODAPINS Site.
LAST UPDATE TO THE TERMS AND CONDITIONS: 11th MARCH 2019