App Terms and Conditions
End User Licence Agreement
- The terms of this document govern the relationship between the licensee (you) and Mogas Regional Pty Ltd ACN 111 402 110 (Licensor) in respect of use of the Software by you.
- The Software is provided to you on the basis that you are, or you are employed or engaged by, a Purchaser based in a Participating Jurisdiction with a valid Supply Agreement with the Licensor.
- The Software is offered for use by you on the condition that you read and accept this document and agree to be bound by its terms and your entitlement to use the Software is conditional upon such agreement.
- By installing, using or accessing the Software, you are considered to have accepted the terms set out in this document. If you do not agree with or otherwise do not wish to accept the terms set out in this document, do not install, use or access the Software.
- The Software may enable you to place order for fuel and petroleum products as, or on behalf of, the Purchaser. The terms of the Supply Agreement will apply to the delivery of any such orders. Nothing in this document varies or overrides any terms of the Supply Agreement.
In this agreement:
means Apple Inc. of One Apple Park Way, Cupertino, California, USA.
means a Supply Agreement, Supply and Branding Agreement or equivalent agreement for the supply of fuel and petroleum products by the Licensor.
means a single mobile computing device owned or controlled by you or the Purchaser.
and includes that party's employees, officers and contractors.
includes all rights throughout the world in relation to patents, copyright (including moral rights), designs, registered and unregistered trade marks, trade secrets, know-how, confidential information and all other intellectual property and any right to register those rights, whether created before or after the date of this document, and in all cases for the duration of those rights and any renewal.
means the App Store operated by Apple in respect of its devices running the iOS operating system.
means Victoria, South Australia, Northern Territory and New South Wales.
means the software application licensed by the Licensor to which this document applies.
means an update supplied by the Licensor that replaces or supplements the original Software.
In this agreement unless a contrary intention is expressed:
- headings and italicised, highlighted or bold type do not affect the interpretation of this agreement;
- the singular includes the plural and the plural includes the singular;
- a gender includes all other genders;
- other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning;
- a reference to a 'person' includes any individual, firm, company, partnership, joint venture, an unincorporated body or association, trust, corporation or other body corporate and any government agency (whether or not having a separate legal personality);
- a reference to a clause or party is a reference to a clause of or a party to this document;
- a reference to a document (including this document) includes all amendments or supplements to, or replacements or novations of, that document;
- a reference to time is to Adelaide, South Australia time;
- a provision of this agreement may not be construed adversely to a party solely on the ground that the party (or that party's representative) was responsible for the preparation of this agreement or the preparation or proposal of that provision;
- a reference to a body, other than a party to this agreement (including an institute, association or authority), whether statutory or not, which ceases to exist or whose powers or functions are transferred to another body, is a reference to the body which replaces it or which substantially succeeds to its powers or functions;
- the words 'include', 'including', 'for example', 'such as' or any form of those words or similar expressions in this agreement do not limit what else is included and must be construed as if they are followed by the words 'without limitation', unless there is express wording to the contrary;
- a reference to a day is to the period of time commencing at midnight and ending 24 hours later;
- if a period of time is specified and dates from a day or the day of an act, event or circumstance, that period is to be determined exclusive of that day; and
- a reference to '$', 'A$', 'AUD', 'dollars' or 'Dollars' is a reference to the lawful currency of the Commonwealth of Australia.
Subject to the terms of this document, the Licensor grants you a non-exclusive, non-transferable licence to:
- in the case of Software acquired through the iOS App Store, use the Software on any Apple-branded Device you or the Purchaser own or control, and permit the use of the Software on Apple-branded Devices attached to any accounts associated with you via Family Sharing or volume purchasing as permitted by the Usage Rules set forth in the iOS App Store Terms of Service (which can be viewed at http://www.apple.com/legal/itunes/au/terms.html); and
- in all other cases, use the Software on any Device that you or the Purchaser owns or controls.
- You must not rent, lease, lend, sell, transfer, redistribute or sublicense the Software, or (except as permitted by the iOS App Store Terms of Service) make the Software available over a network where it could be used by multiple Devices at the same time. If you sell or otherwise dispose of, transfer or assign any Devices containing the Software, any copies of the Software must be removed before doing so.
- Other than as expressly provided in this document or otherwise permitted by law, you must not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Software, or any part thereof.
The terms of this document (as amended pursuant to clause 14.1) will govern any Updates, unless such an Update is accompanied by a varied licence supplied by the Licensor in which case the terms of that licence will govern to the extent provided for. Continued use of the Software by you following such Update represents your agreement to be bound by the terms of this document as amended, revised or replaced, and your understanding and acceptance of the amended, revised or replaced document.
You acknowledge and agree that the Licensor:
- is under no obligation to provide any Updates;
- can use Updates to add, remove, modify or otherwise alter features of the Software at its sole discretion, and that such changes will not be a breach of this document;
- can require you to install Updates to the Software in order to continue making orders pursuant to the Supply Agreement;
- can cease to take orders under the Supply Agreement pursuant to the Software; and
- can provide Updates in such a manner that the Software is unable to be reverted to its previous state.
- The Licensor will use reasonable endeavours to provide you with prior notice of the effect of any Updates.
- Other software
In order to obtain, install, update, access, use, or continue to access or use the Software, you may also be required to update third party software (such as the operating system) on its Device.
You acknowledge and agree that:
- the Licensor is not responsible for such third party updates;
- such third party updates may be subject to their own terms and conditions, which the Licensor strongly recommends you review prior to implementing the third party update; and
- if you are unable or unwilling to obtain or install such third party updates, you may be unable to obtain, install, update, access, use, or continue to access or use the Software.
In order to use the Software, or parts thereof, you may be required to create a user account.
We may take steps to verify your association with a Purchaser, and entitlement to use the Software, when you create a user account.
You are responsible for protecting the confidentiality of your password. You acknowledge and agree that you will be responsible for any activities engaged in using your account, whether or not access is authorised by you or the Purchaser.
The Licensor reserves the right to terminate your account at any time if:
- you breach the terms of this document; or
- the Purchaser ceases to have a Supply Agreement with the Licensor.
If your account is terminated by the Licensor, you must not access any other user accounts or create any further user accounts.
If at any time you cease to be entitled to access the Software, you must cease using the Software and deactivate your account.
You warrant and represent that the following statements are true and correct:
- you and the Purchaser are not located in a country that is subject to an embargo by the governments of either the United States of America or the Commonwealth of Australia;
- you and the Purchaser are not located in a country that has been designated by the governments of either the United States of America or the Commonwealth of Australia as a 'terrorist supporting' country; and
- you and the Purchaser are not included on any list of prohibited or restricted parties by the governments of either the United States of America or the Commonwealth of Australia.
- Third party Services
- You may be required to use certain third party services (for example, a third party provider's software marketplace) in order to obtain, install, update, access, use, or continue to access or use the Software.
- Access to the Software, or parts thereof, may require your Device to be connected to the internet or require other third party services.
- Your use of third party services may be subject to fees and separate terms and conditions, and you acknowledge that the Licensor is not liable for the activities of any such third parties.
- You must comply with any applicable third party terms of agreement when using the Software. You are responsible for ensuring that your installation and use of the Software does not cause you to exceed any data usage quotas or other limitations that may apply to your internet service or other services acquired from third parties.
- The Software may contain links (including via advertisements) to third party websites or other third party content or services. Those links are provided for convenience only and may not remain current or be maintained. You acknowledge that such links should not be construed as an endorsement, approval or recommendation by us of the third parties, or of any content or services provided by them, and that your use of any third party content or services may be subject to separate terms and conditions.
You agree that you will not:
- attempt to disrupt the normal operation of the Software, or any infrastructure operated by the Licensor or other business activities of the Licensor;
- attempt to gain unauthorised access to the Software;
- make use, or attempt to make use, of the Software in any manner which is contrary to the Supply Agreement;
- make any automated use of the Software;
- impersonate any other person in using of the Software; or
- use the Software in connection with the actual or attempted contravention of any applicable laws.
If you obtained the Software from the iOS App Store, you and the Licensor acknowledge and agree that:
- this document is concluded between you and the Licensor only, and not with Apple, and the Licensor, not Apple, is solely responsible for the Software and the content thereof;
- Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Software, either under this document or applicable law;
- the Licensor, not Apple, is responsible for addressing any claims of you or any third party relating to the Software or your possession and/or use of the Software, including but not limited to:
- product liability claims;
- any claim that the Software fails to conform to any applicable legal or regulatory requirement; or
- claims arising under consumer protection, privacy or similar legislation, including in connection with any use by the Software of the HealthKit and/or HomeKit frameworks;
- in the event of any third party claim that the Software or possession and/or use of the Software by you infringes that third party's Intellectual Property rights, the Licensor, not Apple, will be solely responsible for the investigation, defence, settlement and discharge of any such claim;
- Apple, and Apple's subsidiaries, are third party beneficiaries of this document; and
- upon your acceptance of this document, Apple will have the right (and will be deemed to have accepted the right) to enforce this document against you as a third party beneficiary thereof.
Unless otherwise specified in this document or agreed pursuant to a separate written agreement between you and the Licensor, the Licensor will not be obliged to support the Software, whether by providing advice, training, error-correction, modifications, updates (including Updates), new releases or enhancements or otherwise, or to provide any hosting, telecommunication, internet or other services in relation to the use of the Software by you.
Duration of Licence
Subject to the remainder of this clause, the licence granted to you in clauses 3.1 and 5.1 is granted in perpetuity.
You may terminate this licence by providing written notice to the Licensor.
This licence can be immediately terminated by the Licensor in the following circumstances:
- you are in breach of any term of this document, or threaten to breach any term of this document;
- you destroy the Software for any reason, or threaten to do so; or
- the Purchaser ceases to have a Supply Agreement with the Licensor.
Upon termination, you will destroy any remaining copies of the Software and any associated documentation or otherwise return or dispose of such material in the manner directed by the Licensor.
Termination pursuant to this clause will not affect any rights or remedies which the Licensor may have otherwise under this document or at law.
Nothing in this clause limits any right the Licensor may have pursuant to this document to modify the Software by way of Update, including by removing any features from the Software.
- You acknowledge that the Software cannot be guaranteed to be error free and further acknowledge that the existence of any such errors will not constitute a breach of this document.
- Except as expressly provided to the contrary in this document, and to the full extent permitted by applicable law, the Licensor will not be liable to you for any loss, including special, indirect or consequential damages (such as loss of profits), or claim, arising out of breach of this document or arising out of the supply of defective Software.
- Without limiting the preceding paragraph, to the full extent permitted by applicable law, the Licensor's liability for any term, condition, guarantee or warranty that is implied by law and cannot lawfully be excluded by the Licensor, including the consumer guarantees set out in the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and all similar or equivalent legislation, rules and regulations is limited to (at the Licensor's option):
- in the case of goods, including the Software (to the extent the Software is considered a good under applicable law) – repairing, replacing or supplying equivalent goods, or paying the cost of any of those remedies to you; or
- in the case of services – supplying the services again or paying the cost of having the services supplied again.
- Without limiting or affecting any other provision of this document, to the full extent permitted by applicable law, the Licensor's maximum aggregate liability to you for any losses you incur or claims you make against us in respect of the Software is limited to the sum of AUD$10.
- Notwithstanding the foregoing, nothing in this document varies any provision of the Supply Agreement with respect to liability as between the Licensor and the Purchaser.
- You acknowledge that you have exercised your independent judgment in acquiring the Software and have not relied on any representation made by the Licensor which has not been stated expressly in this document or upon descriptions or illustrations or specifications contained in any document including catalogues or publicity material produced by the Licensor.
- If you purchased the Software from the iOS App Store, in the event of any failure of the Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price to you. You acknowledge that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Software, and any other claims, losses, damages, costs or expenses attributable to any failure to conform to any warranty will be dealt with by the Licensor in accordance with this document.
- No transfer
You acknowledge that:
- all Intellectual Property in and associated with the Software and Updates is owned by the Licensor; and
- this agreement does not have the effect of transferring any Intellectual Property owned by the Licensor as at the date of this agreement, including but not limited to all Intellectual Property associated with the Software and Updates, and its functionality, features and content, or operate as a future transfer of any Intellectual Property owned by the Licensor any time thereafter.
You will not during or at any time after the termination of this document undertake or permit any act which infringes or attempts to infringe the Licensor's Intellectual Property Rights in the Software and Updates and, without limiting the generality of the foregoing, you specifically acknowledge that you must not copy the Software except as otherwise expressly authorised or acknowledged by this document.
- Reverse engineering
You must not reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse assemble or reverse compile the whole or any part of the Software, or any output from the Software or any files related to the Software.
- Unfortunately, no data transmission over the internet can be guaranteed as totally secure. Whilst the Licensor strives to protect such information, it does not warrant and cannot ensure the security of any information transmitted to it by you. Accordingly, any information transmitted to the Licensor is transmitted at the risk of the sender. Nevertheless, once the Licensor receives transmissions from you, it will take reasonable steps to preserve the security of such information.
- Users must take their own precautions to ensure that the process which they employ for accessing the Software does not expose them to the risk of viruses, malicious computer code or other forms of interference which may damage their Devices. For the removal of doubt, the Licensor does not accept responsibility for any interference or damage to Devices which arises in connection with use of the Software.
- You must take all steps necessary in order to prevent authorised access to the Software. The Licensor is entitled to assume that any access to the Software via your Devices or your account has been undertaken by you, and that any orders placed or other instructions provided via the Software have been authorised by the Purchaser, and can be handled accordingly under the Supply Agreement.
- Consent to use of data
- You cannot assign, novate or otherwise transfer any of your rights or obligations under this document without the prior written consent of the Licensor which consent can be granted or withheld in the absolute discretion of the Licensor.
- In the event that the Supply Agreement is validly assigned or novated by the Licensor in accordance with its terms, the Licensor can correspondingly assign, novate or otherwise transfer its rights and obligations under this document.
- An assignment in breach of clause 14.1(a) is intended by the parties to be void and of no force and effect and entitles the Licensor to terminate this document.
- A waiver of a right, remedy or power by the Licensor must be in writing and signed by the Licensor. The Licensor does not waive a right, remedy or power if it delays in exercising, fails to exercise or only partially exercises that right, remedy or power.
- A waiver given by the Licensor is only effective in relation to the particular obligation or breach in respect of which it is given and is not to be construed as a waiver of that obligation or breach on any other occasion and does not preclude the Licensor from enforcing or exercising any other right, remedy or power under this agreement nor is it to be construed as a waiver of any other obligation or breach.
If a provision in this document is wholly or partly void, illegal or unenforceable in any relevant jurisdiction, that provision or part must, to that extent, be treated as deleted from this document for the purposes of that jurisdiction. This does not affect the validity or enforceability of the remainder of the provision or any other provision of this document.
This agreement is governed by and is to be construed under the laws in force in South Australia and each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in South Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement.
- Further assurances
You agree that you will, at your own expense, do all things and execute all further documents necessary to give full effect to this agreement and the transactions contemplated by it.
- No reliance
You acknowledge and agree that you have not relied on any statement by the Licensor which has not been expressly included in this document.
This document constitutes the entire agreement between you and the Licensor regarding access and use of the Software, and supersedes all prior discussions, negotiations, understandings and agreements in respect of its subject matter. Other agreements may apply alongside this agreement for the Device or other software and services.
Without limiting or impacting upon the continued operation of any clause which as a matter of construction is intended to survive the termination of this document, the following clauses survive the termination of this document clauses 3.2, 5.2, 5.3, 6.3, 8, 10, 11, 12, 13, 14.3 and 14.4 and this clause 14.8.
In the event that you need to contact the Licensor regarding this document, the Software, please use the following details.
Mogas Regional Pty Ltd
270 The Parade, Kensington SA 5068
08 8333 9777