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Sapher Application - Terms and Conditions

Last Updated: 17 April 2024

  1. General
    1. Acceptance of the Terms
      1. These Terms and Conditions (“Terms”) constitute a legally binding agreement between you and Sapher Group Holdings Pty Ltd (“Sapher”, “we”, “us” or “our”) with respect to your use of the Sapher online safety and fraud protection web and mobile application and all associated products and services (each and together the “Sapher Application”)
      2. You may be subject to any other applicable terms, including, for example, the terms contained in an end-user licence agreement (“EULA”) that applies to the Sapher Application from an application distributor (including the Apple Inc, (“Apple”) App Store or Google Play Store). To the extent of any inconsistency between these Terms or any EULA, the provisions in these Terms will prevail.
      3. If you have purchased a Paid Subscription (as defined in clause 5.1(a) below) to the Sapher Application via a third-party or reseller, your use of the Sapher Application is also subject to these terms.
    2. Age Requirement

      Children may not access or use the Sapher Application unless their use is directly authorised by their parent, guardian or another authorised adult who agrees to be bound by these Terms. For the purposes of these Terms, a child is a person under:

      1. the age of 18; or
      2. the minimum legal age required to agree to terms or to provide consent for the use of personal information in the country where the child is located,

      whichever is older.

    3. Changes to these Terms
      1. We may revise and update these Terms from time to time at our sole discretion.
      2. Sapher will notify you of any material changes to the Terms, or to its services or features.
      3. You agree that all changes are effective immediately except for any changes impacting the fees for your Subscription, which will be notified to you prior to your next billing cycle and become effective at your next monthly or annual Subscription payment.
    4. Consent

      By accessing, using, uploading or downloading the Sapher Application or any information or materials to or from the Sapher Application or services, or by indicating your acceptance to these Terms by creating an account, signing up or any other similar mechanism, you are agreeing to these Terms.

  2. The Sapher Application
    1. Provision of and Right to use the Sapher Application
      1. Subject to your compliance with these Terms (including payment of the relevant fees):
        1. we will make the Sapher Application available for use to you for the purposes of assisting you to assess the safety and authenticity / reliability of Australian websites you access on the devices on which the Sapher Application is downloaded (“Permitted Purpose”); and
        2. Sapher grants you a non-exclusive, non-transferable, non-assignable, royalty-free, and worldwide licence to access and use the Sapher Application during the Subscription Period (as that term is defined in clause 5.1(b) below).
    2. Changes to the Sapher Application
      1. Subject to clause 2.2(b), Sapher may make improvements, upgrades, updates, enhancements, and / or changes in, or to, the Sapher Application including, but not limited to, changing or adding to the features, programs or the functionality of the Sapher Application for any reason at its sole discretion (“Product Changes”).
      2. We will not make any Product Changes that materially reduce the functionality of the Sapher Application where payment for the Sapher Application has been received without providing prior notification.
  3. Use of the Sapher Application
    1. Your Sapher Account
      1. In order to utilise the Sapher Application, you will be required to create a Sapher Account. Your username and password should be kept secure and you must not share them with anyone else.
      2. You may choose to use a pseudonym to create a Sapher Account. Sapher will notify you if, for any reason, it requires you to change your username.
    2. Restrictions
      1. You must not use the Sapher Application to:
        1. commit any unlawful acts, or use in any way that violates applicable laws or regulations;
        2. encourage others to commit any unlawful acts, or use in a way that violates applicable laws or regulations;
        3. use the Sapher Application for the purpose of exploiting, harming or attempting to exploit or harm other users;
        4. attempt to gain unauthorised access to the Sapher Application, including hacking or interfering with the Sapher Application;
        5. introduce any viruses or other malicious material into the Sapher Application;
        6. breach Sapher’s or a third party’s rights (including intellectual property rights); or
        7. breach any terms or conditions that apply to your use of the Sapher Application.
      2. In addition to the restrictions in clause 3.2(a), you acknowledge and agree the following:
        1. In your interactions with Sapher, its employees, or any third-parties providing services on behalf of Sapher (including via emails, online forms, live chat, or any other communication methods), you must not use inappropriate language including profanity, obscenity, racist or other language or terms that may be deemed by a reasonable person to be offensive.
        2. You must not modify, copy, or create derivative works based on the Sapher Application or licence, sublicence, sell, resell, rent, lease, transfer, assign, distribute or otherwise make the Sapher Application or any component of it available to any third party or reverse engineer or decompile any portion of the Sapher Application, copy any features or functions integrations, interfaces or graphics.
        3. You agree to only use the Sapher Application as expressly permitted by these Terms and any other applicable terms. You are responsible for complying with all rules, regulations and procedures of local, state, federal and foreign authorities applicable to you and your business and organisation, and your use of the Sapher Application and any information provided and/or accessed in connection with the Terms and/or the Sapher Application will in all cases comply with all applicable federal, state and local and foreign laws and regulations.
        4. The Sapher Application can be used on any chromium-based browser on both desktop and mobile devices however cannot be used via a Chrome browser on mobile devices. You acknowledge that the Chrome browser may not allow the use of extensions on mobile devices, therefore if you wish to utilise the Sapher Application on your mobile device, please ensure you are using a different browser.
        5. You must ensure that your device does not contain a virus or other malicious material during, or before, you install the Sapher Application.
  4. Intellectual Property
    1. Ownership
      1. You acknowledge that Sapher is the owner of all intellectual property rights in the Sapher Application including, for completeness, any data, content, designs, code or any other work.
      2. The Sapher Application does not allow for any user-generated content, therefore no intellectual property rights in such content is assigned to the user by virtue of your use of the Sapher Application. To the extent that any user-generated content is created through your use of the Sapher Application, you acknowledge that the ownership of all intellectual property rights in such material or content will vest in Sapher immediately on creation ,or is transferred from you to Sapher immediately on creation, free of any encumbrances, security interests and third-party rights.
      3. You agree Sapher may utilise anonymised and aggregated information relating to you and your usage of the Sapher Application during the Subscription Period to create derivative data, and that all intellectual property rights in such derivative data vests with Sapher upon creation.
    2. Feedback
      1. Sapher welcomes your comments, feedback, suggestions and other communication regard the Services (“Feedback”).
      2. If you provide Feedback, you grant Sapher a worldwide, non-exclusive, transferable, assignable, sub-licensable, perpetual, irrevocable, royalty-free licence to copy, distribute, create derivative works of, publicly display and otherwise use such Feedback to create, make, sell, offer for sale products and services based on such Feedback.
      3. Feedback can be provided by emailing [email protected].
  5. Payment and Subscription Period
    1. Billing and Renewal
      1. You may purchase a subscription directly from Sapher or by downloading the Sapher Application from the Apple App Store or Google Play Store by paying a subscription fee (“Paid Subscription”).
      2. This Subscription will be charged in advance on a monthly or annual basis as selected by you (“Subscription Period”).
      3. Where the Paid Subscription is purchased via Apple App Store or Google Play Store, or directly from Sapher, the Subscription Period will automatically renew upon expiry of the previous Subscription Period until cancelled in accordance with the terms and process of the relevant application marketplace, or other terms advised by Sapher.
      4. Your Paid Subscription fees are inclusive of all taxes unless otherwise specified in an agreement with Sapher, within the Sapher Application or an applicable invoice. Tax rates are calculated based on the information you provide and the applicable rate at the time of your monthly charge.
      5. If you purchase a Paid Subscription via a third-party or via an application platform (such as Apple’s App Store or Google Play), you may be subject to separate terms and conditions with the third party. These apply between you and the third-party and govern your use of the Sapher Application in addition to these Sapher Terms.
      6. Sapher may, from time to time, change the price for the Paid Subscription, including the recurring Paid Subscription fees. Where there is a change in pricing, Sapher will provide you with written notice of these changes and the revised prices will take effect at the start of the next Subscription Period following the change.
    2. Free Trial Period
      1. From time to time, Sapher may offer trials of the Sapher Application for a period without payment, or at a reduced or promotional rate (“Trial”). By using the Sapher Application during a Trial, you agree to comply with all terms and conditions applicable to the Sapher Application.
      2. You acknowledge and agree that any Trial of the Sapher Application is provided as is and Sapher makes no warranties or guarantees as to the operation or availability of the Sapher Application during any Trial period.
      3. At the end of the Trial period, unless otherwise stated in the Trial terms and conditions, you will be placed onto the monthly Paid Subscription and will be billed for the monthly fee.
      4. You can terminate the Trial in accordance with the terms and conditions that apply to the Trial, the Sapher Application Terms or the terms and conditions of the third-party application platform.
  6. Privacy
    1. You acknowledge that in the course of providing the Sapher Application and Services to you, Sapher may have access to your personal information. Sapher will only use this personal information in accordance with its Privacy Policy.
    2. You acknowledge that by providing personal information to Sapher or through your use of the Sapher Application, you agree to comply with the Privacy Policy.
  7. Warranty
    1. General

      The exclusion and limitations in this section will not affect your statutory rights (including under the Australian Consumer Law).

    2. Disclaimer of Warranty
      1. The Sapher Application is provided “as is” and “as available” and Sapher does not provide any warranties of any kind whether express, implied or, subject to clause 7.1 above, statutory.
      2. Sapher disclaims any warranty regarding quality, merchantability, fitness for a particular purpose or non-infringement. Sapher does not guarantee that the Sapher Application will be error free or uninterrupted, or that Sapher will correct all Sapher Application errors.
      3. Sapher uses a variety of data sources and tools from both Sapher and reliable third-party sources to determine the safety and authenticity of Australian websites to perform the Services. While Sapher uses best endeavours to ensure its Services are regularly updated to provide you the safest online browsing experience, it does provide any warranties as to the performance of its Services (or any third-party data, software or tools incorporated within the Sapher Application).
      4. Sapher makes no representation regarding, warranty for, or assumes responsibility for any third-party content accessed via the Sapher Application, including the third-party Australian websites that the Sapher Applications assess as part of performing the Services. Sapher takes no responsibility for any transactions between you and any third-party providers that occur while the Sapher Application is in use.
    3. Exclusive Remedy

      Your exclusive remedy and Sapher’s entire liability for breach of any warranty under clause 7 will be the correction of Sapher Application errors or where Sapher cannot substantially correct the errors, you may end your Paid Subscription and recover the fees paid to Sapher for the Sapher Application during the warranty period.

  8. Limitation of Liability and indemnity
    1. Limitation of liability
      1. Your sole and exclusive remedy for any problems with the Sapher Application, except in relation to the warranties outlined at clause 7.1 above, is to uninstall the Sapher Application and discontinue use of the Sapher Services.
      2. Sapher has no obligation or liability arising from third-party applications, or your relationship with third-parties, arising in connection with your use of the Sapher Application. Your sole and exclusive remedy with respect to Sapher for problems with third-parties is to uninstall the Sapher Application and discontinue use of the Sapher Services.
      3. In no event will Sapher be liable to you for any:
        1. direct, indirect, incidental, consequential, special or exemplary damages arising out of, or in connection with, these Terms or your use of the Sapher Application, regardless of the form of action.; or
        2. loss of revenue, business, data (including personal information), profits, goodwill, or reputation, arising out of the use of, or inability to use, the Sapher Application or Services, or any third-party application connected with the Sapher Application or Services.
      4. To the extent permitted by law, Sapher’s total liability under these Terms is limited to the amounts paid by you to Sapher for use of the Sapher Application in the twelve (12) months preceding the claim.
      5. Sapher’s liability is reduced proportionately to the extent that you are responsible for, or have contributed to, the liability.
      6. These Terms do not limit Sapher’s liability for fraud, death or personal injury to the extent prohibited by applicable law
    2. Indemnity
      1. You agree to indemnify and hold harmless Sapher from and against any third-party claims (including direct losses, damages, reasonable expenses, legal fees and costs arising from such claims) made against Sapher arising out of, or related to:
        1. Your breach of these Terms (including any additional terms incorporated within these Terms and including privacy or intellectual property breaches;
        2. Any use by you in contravention of any law, act, regulation, ordinance or enforceable government order that creates liability for Supplier, including under any privacy law;
        3. Any activity you engaged in through the Sapher Application; or
        4. Any other claims that you have violated any law, or the rights of a third-party, through your use of the Sapher Application.
  9. Termination and Suspension
    1. Suspension / Termination of Sapher Application
      1. These Terms will apply to you until terminated by either you or Sapher.
      2. Sapher may terminate these Terms or suspend your access to Sapher Application at any time if:
        1. you have, or we believe you have, breached these Terms,
        2. Sapher stops providing the Sapher Application or any material component thereof (with reasonable notice to you, where such notice includes details of the termination); or
        3. Sapher believes necessary to comply with law or regulation.
      3. If Sapher terminates these Terms or suspends access to the Sapher Application you agree that Sapher, subject to applicable laws, will have no liability to you for that termination or suspension and will not refund amounts paid.
      4. You may terminate these Terms at any time and discontinue use of the Sapher Application. For more information, please contact us at [email protected].
      5. The following clauses survive the termination of these Terms:
        1. Section 2: Our Services
        2. Section 3: Acceptable Use
        3. Section 4: Intellectual Property
        4. Section 6: Privacy and Confidentiality
        5. Section 7: Warranty
        6. Section 8: Limitation of Liability and indemnity
  10. General
    1. Compliance with laws

      You agree that you will comply with all applicable laws relating to your use of the Sapher Application.

    2. Dispute resolution and arbitration
      1. The parties will use best efforts to settle any dispute, claim, question or disagreement directly through good-faith negotiations, which will be a precondition to commencement of a lawsuit or arbitration.
      2. Except for disputes relating to Sapher’s intellectual property, all claims arising out of, relating to or in connection with these Terms including any question regarding its existence, validity or termination, will be resolved by arbitration in accordance with the ACICA Arbitration Rules. The seat of the arbitration will be Sydney, Australia.
    3. Assignment
      1. Sapher may assign or novate any or all of these terms, and may assign or delegate, in whole or in part, any of its rights or obligations under these Terms.
      2. You may not assign these Terms, in whole or in part, nor transfer or sub-licence your rights under these Terms, to any third party.
    4. Severability and Waiver
      1. If at any time any provision of these Terms is, or becomes illegal. invalid or unenforceable for any reason or to any extent, the remaining provisions of these Terms will not be affected and the application of the provision will be enforced to the extent permitted by law.
      2. Any failure by Sapher to enforce these Terms or any provision within will not waive Sapher’s right to do so.
    5. Notice

      Any notice contemplated by these Terms will be delivered to the relevant email address provided by you to Sapher when creating your Sapher Account.

    6. Entire Agreement

      Except as otherwise stated in these Terms or explicitly agreed upon in writing between you and Sapher, these Terms constitute the entire agreement and understanding between the parties and will take effect and supersedes any prior agreement in relation to the subject matter of these Terms (whether written or oral).

    7. Governing Law
      1. These Terms are governed by and construed in accordance with the laws of New South Wales without regard to choice or conflicts of law principles.
      2. You and Sapher agree to the jurisdiction of the Courts of New South Wales to resolve any dispute, claim or controversy that arises with the Terms and Conditionings (and any non-contractual disputes / claims arising out of, or in connection with them).
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