Ancar App End User Licence Agreement

Ancar Mobile Application End User Licence Agreement

 

WARNING NOTE:

Improper use of the ANCAR anti-theft system products, may result in property loss, damage, serious injury or even death. While this document and other information included with the products provide guidance on how to most safely use the products, failure to exercise due care, skill and diligence may put you at risk of property loss, damage, serious injury or death. You must read ALL instructions and safety messages and warnings in this document and the User Guide.

 

In this Agreement, we refer to ourselves as ANCAR or “us” or “we”; we refer to you as “customer” or “you.”

 

By accessing or using the Software you intend and expressly agree to be bound by all the terms and conditions of this Agreement and the Privacy Policy (available at https://www.ancar.com.au/), which is incorporated by reference.

 

If you do not agree to these terms and conditions, you may not use the Software.

 

1. THE SOFTWARE

GRANT OF LICENSE

• ANCAR conditionally offers to provide the Software to you on the terms contained in this Agreement.
• Subject to this Agreement, ANCAR grants you a limited, non-exclusive, revocable, worldwide, royalty-free license to download, install and use the Software for your personal and internal business use, on the smartphone, tablet, or other mobile device.
• You may accept ANCAR’s offer to provide the Software by downloading, and/or signing-up (if applicable from time to time), the Software.
• By accepting the Software, you will be entitled to access the Software until such Software is cancelled, or this Agreement terminated.
• If applicable, you are responsible for ensuring ANCAR has accurate and current information, including current contact information. If applicable, you are further responsible for regularly reviewing the email account used for signing up for the Software with ANCAR for any communications from ANCAR.

 

SOFTWARE OUTAGES

• You acknowledge and agree that at times the Software may be inaccessible or inoperable due to, without limitation:

• equipment malfunctions;
• periodic maintenance procedures or repairs which ANCAR may undertake from time to time with or without notice to you; or
• causes which are beyond the control of ANCAR or which are not reasonably foreseeable.

 

SOFTWARE UPDATES

• You acknowledge that ANCAR has no obligation to provide you with any Software Updates to the Software.
• From time to time, ANCAR may develop the Software, including upgrades, patches and other modifications to improve the performance of the Software or for other reasons in our sole discretion. You agree that ANCAR may automatically install the Software Updates and similar without providing any additional notice to you or receiving any additional consent from you.

END OF LIFE OF SOFTWARE

• ANCAR warrants that the Software will remain materially functional and operational and reasonably available for a minimum period of three years from the date of agreement with you.
• Subject to clause 1.9, we reserve the right to create a Software ‘end-of-life’ (EOL) and/or ‘end-of-support/service’ (EOSL) policy.
• In the event that we do not have a policy in place from time to time, we may EOL and/or EOSL the Software by providing reasonable prior written notice.

LEGACY PRODUCTS

• If you have a legacy ANCAR product, some of the features and limits that apply to that product may be different than those that appear in the current ANCAR Software.

COMPATIBILITY OF THE SOFTWARE

• ANCAR will facilitate the provision of the Software for use on Android or iOS devices. Notwithstanding this or other clauses, the Software is not guaranteed or warranted to work with all software and/or hardware.
• The functionality and performance of the Software is contingent upon the software and hardware capabilities of the user’s mobile device. Variations in device specifications and software versions may affect the Software’s performance. ANCAR does not guarantee or warrant uniform functionality across all devices and is not responsible for variations resulting from the user’s device specifications.
• ANCAR does not guarantee or warrant continuous compatibility or functionality of the Software when changes or updates to a user’s mobile device occur. ANCAR is not responsible for any incompatibility issues or loss of functionality that may arise due to such changes or modifications made to the user’s device after the initial installation of the Software. Users are advised to regularly check for updates to the Software that may address compatibility issues and to contact ANCAR support for assistance with specific compatibility problems.

OPEN SOURCE AND OTHER THIRD-PARTY COMPONENTS

• Notwithstanding the license grant, you acknowledge that certain components of the Software may be covered by third-party licenses, including “open source” software licenses. To the extent required by such licenses, the terms of such licenses will apply in lieu of the terms of these terms.

2. COMPETITION AND CONSUMER ACT 2010 (CTH)
   • Nothing in this Agreement is intended to have the effect of contracting out of any applicable provisions of the CCA, except to the extent permitted by the CCA.
   • Where the provisions of the CCA apply, the provisions of these Terms will be read subject to the application of the CCA and in the case of any conflict, the provisions of the CCA will apply.

 

3. INTELLECTUAL PROPERTY RIGHTS
   • All Intellectual Property Rights in the Software are the exclusive property of ANCAR, its licensors or other third parties. All Intellectual Property Rights that subsist in third party software are the property of and are reserved to third party licensors. Such licensors may be the relevant author or the publisher.
   • ANCAR reserves all Intellectual Property Rights, including but not limited to copyright in the material and content provided by ANCAR.
   • Nothing in this Agreement provides you with the right to copy or use, including but not limited to, any digital content, trademarks, marketing material, logos, domain names, and brands owned or licensed by ANCAR.
   • This License does not grant you any rights to use ANCAR proprietary interfaces or any other intellectual property owned by ANCAR for the design, development, manufacture, licensing or distribution of third-party devices and accessories, or third party software applications. This licence does not grant you any rights to use any other intellectual property owned by ANCAR for any other purpose, including but not limited to using the Software for any purposes contemplated herein.
   • Subject to the terms and conditions of this License, you are granted a limited non-exclusive license to download Software Updates that may be made available by ANCAR or restore the Software.
   • This Licence expressly prohibits you from modifying or altering the Software Updates in any way.
   • You may not, and you agree not to or enable others to, copy (except as expressly permitted by this License), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Software, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or by licensing terms governing use of open-source components that may be included with the Software). You agree not to remove, obscure, or alter any proprietary notices (including trademark and copyright notices) that may be affixed to or contained within the Software.
   • If you provide any communications or materials to ANCAR by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software or similar, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (Feedback), you acknowledge that ANCAR may, without any further notice to you, use such Feedback, irrespective of any other obligation or limitation between the parties governing such Feedback. You acknowledge that ANCAR may in its discretion use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever.

4. PRIVACY
   • You acknowledge and agree that by engaging ANCAR to provide the Software, you expressly consent and agree to the collection, holding, using and disclosing of personal data and sensitive information about you and information about your use of the Software in accordance with our Privacy Policy, which is incorporated into, and forms an integral part of, this Agreement.
   • You acknowledge and agree that you have read and understood our Privacy Policy and agree that all information and data collected by ANCAR in connection with the Software, and this Agreement, may be collected, held, used and disclosed in accordance with our Privacy Policy.
   • ANCAR may not directly collect or store comprehensive customer data, and accordingly any necessary communication that requires access to your personal information may be conducted through our authorised distributors. ANCAR may occasionally need to communicate directly with customers for services or notices related to the Software. In such cases, ANCAR may utilise contact details provided by the authorised distributors, or via notifications directly through the Software under the conditions that these communications are essential and in compliance with our Privacy Policy. Customers are encouraged to keep their contact information up to date with the authorised distributors to ensure timely and accurate communications. ANCAR is not responsible for Data collected or handled by its authorised distributors or third-parties. Please consult the privacy policy of the authorised distributors for details on how your information is otherwise managed and protected.

MACHINE LEARNING

• We may, as permitted by this Agreement, use your data in an anonymized manner for machine learning to support certain product features and functionality within the Software.
• For more information on these practices please see the Privacy Policy.

CONTACTING YOU

• We can contact you by:

• writing to you at the postal address you most recently provided to us;
• emailing you at the email address you most recently provided to us;
• publishing a notice on our website in a portal accessible by you; or
• sending you an SMS or contacting you via the telephone number you most recently provided to us.
  • If we need to give you notice under this Agreement, we will do so by using one (or a combination) of the above methods.
  • You must promptly notify us of any changes to your contact details.

5. DISPUTE RESOLUTION
   • If a dispute arises between the parties in relation to this Agreement, the dispute must be dealt with in accordance with this clause.
   • Any party claiming that a dispute exists must notify the other party to the dispute (Second Party) in writing of the nature of the dispute.
   • If the dispute is not resolved by Agreement within five (5) Business Days of the Second Party receiving the notice referred to in paragraph (2) above, either party may refer the matter to mediation conducted by a mediator agreed between the parties within a further five (5) Business Days or failing Agreement within that period, as appointed by the executive director for the time being of the Australian Commercial Disputes Centre Limited. The costs of the mediator shall be borne equally between the disputing parties. The chosen mediator shall determine the procedures for the mediation. The chosen mediator will not have the power or authority to make any other determination in relation to the dispute.
   • If the parties have not mediated a resolution of the dispute within ten (10) Business Days of the selection of a mediator, neither party shall be obliged to continue any attempt at mediation under this clause, and either party may then commence such legal proceedings as it thinks fit in relation to the dispute.

6. TERMINATION
   • This Agreement may be terminated by either party in writing to the other. Termination will be effective from 11:59PM on the last day of the month in which the written termination is received by the non-terminating party or as otherwise specified in this Agreement.
   • If you fail to perform any of your obligations under this Agreement, ANCAR may elect to:
   • suspend performance of their obligations under this Agreement, which includes suspending the Software, until you have rectified such failure; or
   • immediately terminate this Agreement by written notice, without providing for any notice period that would otherwise apply. ANCAR will give you notice of their intention to terminate the Agreement, setting out the grounds on which the notice is based.

7. LIABILITY

• SUBJECT TO THE AUSTRALIAN CONSUMER LAW, YOU USE THE SOFTWARE AT YOUR OWN RISK. YOU HAVE SOLE RESPONSIBILITY FOR ADEQUATE PROTECTION AND BACKUP OF DATA AND/OR EQUIPMENT USED IN CONNECTION WITH YOUR USE OF THE SOFTWARE, AND YOU AGREE TO HOLD ANCAR HARMLESS FROM, AND YOU COVENANT NOT TO SUE FOR, ANY CLAIMS (EXCEPT THOSE PERMITTED UNDER THE AUSTRALIAN CONSUMER LAW) BASED ON YOUR USE OF THE SOFTWARE, INCLUDING CLAIMS FOR LOST DATA OR CONTENT, WORK DELAYS OR LOST PROFITS RESULTING FROM YOUR USE OF THE SOFTWARE.
• OTHER THAN ANY GUARANTEES THAT CANNOT BE EXCLUDED UNDER THE AUSTRALIAN CONSUMER LAW, OR AS OTHERWISE AS SPECIFIED IN THIS AGREEMENT:
• ANCAR SOFTWARE IS PROVIDED ‘AS IS,’ AND ANCAR DOES NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY;
• ANCAR DOES NOT IN ANY WAY GUARANTEE THE QUALITY, DATA CONTENT OR LEGALITY OF INFORMATION, CONTENT, GOODS OR SERVICES THAT ARE TRANSFERRED, RECEIVED, PURCHASED OR OTHERWISE MADE AVAILABLE OR OBTAINED BY WAY OF THE SOFTWARE;
• ANCAR DOES NOT WARRANT THAT ANCAR SOFTWARE WILL BE UNINTERRUPTED, OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED.
• UNDER NO CIRCUMSTANCES (EXCEPT AS OTHERWISE CANNOT BE EXCLUDED UNDER THE AUSTRALIAN CONSUMER LAW), INCLUDING NEGLIGENCE, SHALL ANCAR BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS THAT RESULT FROM THE DISTRIBUTION OR USE OF, OR THE INABILITY TO USE, THE CONTENT OR MATERIALS ON THE SOFTWARE IRRESPECTIVE OF NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.

LIMITATIONS OF LIABILITY

• EXCEPT AS OTHERWISE PROVIDED BY THE AUSTRALIAN CONSUMER LAW, IN NO EVENT SHALL ANCAR’S TOTAL LIABILITY TO A CUSTOMER FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE AMOUNT PAID BY THAT CUSTOMER, IF ANY, FOR THE GOODS OR SERVICES AT ISSUE WITHIN THE PRIOR TWELVE (12) MONTHS. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM.
• ANCAR DISCLAIMS ALL LIABILITY OF OR ASSOCIATED WITH ITS LICENSORS AND SUPPLIERS.

8. BAR TO PROCEEDINGS
   • This Agreement may be pleaded by the parties as a full and complete defence to any claim, suit or other action in relation to the subject matter herein.

9. RELATIONSHIP
   • The parties acknowledge and agree that the relationship between them is a contractual one for the provision of good and/or services, and that this Agreement does not and is not intended to create any other relationship at law, including one of employer/employee, principal/agent or fiduciary relationship.

10. WAIVER
    • A waiver by any party of any right arising from a breach of this Agreement must be in writing and signed by the party granting the waiver.

11. GOVERNING LAW AND JURISDICTION
    • This Agreement is governed by and must be construed according to the laws of:

• Victoria, Australia; or
• if not possible, Australia.
  • The parties irrevocably submit to the exclusive jurisdiction of the courts of, or exercising jurisdiction in, Victoria, or if not possible, Australia, with respect to any claim, suit or action which may be brought at any time and relating in any way to this Agreement.

12. AMENDMENT
    • ANCAR may amend any term of this Agreement in its unfettered discretion from time to time by providing you with notice that the terms of this Agreement have been amended. If you continue to use the Software after receiving notice that the terms of this Agreement have been amended, the parties agree that your conduct in continuing to use the Software after receiving notice of the amendments shall be deemed to constitute acceptance to be bound by the amended terms and conditions. If you do not wish to continue using the Software in light of the amendments to the terms of this Agreement, they may terminate the Agreement pursuant to the provisions of this Agreement.

13. GENERAL
    • This Agreement is the entire agreement, together with the Privacy Policy, between the parties on anything connected to or arising from the subject matter of the Agreement.
    • You warrant that you have entered into this Agreement without relying on any representation whatsoever by ANCAR, its directors, officers, agents, employees and any other person purporting to represent or be associated with ANCAR.
    • ANCAR may assign, novate or transfer this Agreement and the Software, or any part thereof, to any third party, including our related bodies corporate worldwide, without requiring your consent. You may not assign this Agreement in whole or in part for any reason.
    • If all or part of a provision of this Agreement is void, voidable, unenforceable or illegal for any reason but would not be if it were read down (and it is capable of being read down), the provision will be read down accordingly. In the event that the provision is not capable of being read down, that provision shall be severed from the Agreement and the remainder of the Agreement will continue to be valid and enforceable.
    • Termination of this Agreement will not end those provisions that are capable of surviving the termination of this Agreement.
    • Any notice pursuant to this Agreement may be delivered by hand, by prepaid letter or email to the address details provided for each party. Any such notice will be deemed to have been served when delivered (if delivered by hand) or forty-eight (48) hours after posting (except by prepaid letter) or if sent by email, when the email enters the recipient’s mail server (unless an out of office or similar notification is received).

14. DEFINITIONS
    • In this Agreement, unless the context requires otherwise:

• Agreement means the Agreement constituted by these terms and conditions, and any other written terms and conditions relating to the supply relationship between the parties which are agreed by both parties.
• ANCAR means VASCAR Auto Pty Ltd (ACN 673 798 671) of Toorak Corporate North Place, Suite 304, 306/19 Milton Parade, Malvern VIC 3144, being a company incorporated under the provisions of the Corporations Act 2001 (Cth).
• Business Day means a day that is not a Saturday, Sunday, or public holiday in Melbourne, in the State of Victoria, Australia.
• CCA means the Competition and Consumer Act 2010 (Cth).
• you shall mean the customer (or any person acting on their behalf or with their authority).
• Intellectual Property Rights means all present and future rights owned by ANCAR or licenced to ANCAR, including without limitation any copyright, software and code, trade marks, designs, patents, and other intellectual property rights.
• Privacy Laws means each of the Privacy Act 1988 (Cth), the Surveillance Devices Act 1999 (Vic), Surveillance Devices Act 2007 (NSW), Surveillance Devices Act 2016 (SA), Surveillance Devices Act 1998 (WA) and any equivalent legislation, law, regulation, code or similar which places the same or similar restrictions on any person in any jurisdiction in Australia or which amends or replaces these laws.
• Software means any and all software being made available by ANCAR to you in connection with the ANCAR product/s.
• Software Updates means any software that modifies, amends, updates or otherwise alters the Software.
• User Guide means the user guide made available by ANCAR from time to time.
• Website means https://www.ancar.com.au/.

 

15. INTERPRETATION
    • In this Agreement:

• headings are for reference only and do not affect the meaning of this Agreement;
• the singular includes the plural and vice-versa;
• if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
• an Agreement, representation or warranty:
• in favour of two (2) or more persons is for the benefit of them jointly and severally; and
• on the part of two (2) or more persons binds them jointly and severally;
• a reference to:
• a document includes any variation or replacement of it and all its schedules, annexures and exhibits the document;
• a law includes regulations and other instruments under it and amendments or replacements of any of them;
• a thing includes the whole and each part of it;
• a group of persons includes all of them collectively, any two (2) or more of them collectively, and each of them individually;
• a reference to “$” is a reference to Australian currency;
• all reference to dates and times are to Melbourne Victoria, Australia dates and time; and
• “including” when introducing a list of items does not limit the meaning of the words to which the list relates to those items or to items of a similar kind.

End