Last Updated: October 29, 2014

BARKLIFE (EMENELL PTY LTD & BARK OPERATIONS PTY LTD). TERMS OF USE

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THE SERVICES OFFERED BY EMENELL PTY LTD & BARK OPERATIONS. (“BARKLIFE”). THESE TERMS OF USE SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE BARKLIFE MOBILE APPLICATION AND THE SERVICES, FEATURES, OR CONTENT OFFERED BY BARKLIFE (COLLECTIVELY WITH THE SITE, THE “SERVICE”).

Acceptance of Terms.

By registering for and/or using the Service in any manner, including but not limited to visiting or browsing the Site, you agree to all of the terms and conditions contained herein (“Terms of Use”), which also incorporate Barklife’s Privacy Policy and all other operating rules, policies and procedures that may be published from time to time on the Site by Barklife, each of which is incorporated by reference and each of which may be updated by Barklife from time to time without notice to you in accordance with the terms set out under the “Modification of Terms of Use” section below. In addition, some services offered through the Service may be subject to additional terms and conditions specified by Barklife from time to time; your use of such services is subject to those additional terms and conditions, which are incorporated into these Terms of Use by this reference. These Terms of Use apply to all users of the Service, including, without limitation, users who are contributors of content, information, and other materials or services on the Site.

Access.

Subject to these Terms of Use, Barklife may offer to provide the Services, as described more on the Site, and which are selected by you. Services shall include, but not be limited to, any services Barklife performs for you, as well as the offering of any materials displayed or performed on or through the Services (including Content (as defined below)).

Registration and Eligibility.

To use the application you are required to register with Barklife and represent, warrant and covenant that you provide Barklife with accurate and complete registration information (including, but not limited to a dog and owner’s name (“User Name”), e-mail address and a password you will use to access the Service) and to keep your registration information accurate and up-to-date. Failure to do so shall constitute a breach of these Terms of Use, which may result in immediate termination of your Barklife account.

You shall not:

  • create any account for anyone other than yourself without such person’s permission;
  • use a User Name that is the name of another person with the intent to impersonate that person;
  • use a User Name or Barklife account that is subject to any rights of a person other than you without appropriate authorization; or
  • use a User Name that is a name that is otherwise offensive, vulgar or obscene or otherwise unlawful.

Barklife reserves the right to refuse registration of, or cancel a User Name in its sole discretion. You are solely responsible and liable for activity that occurs on your account and shall be responsible for maintaining the confidentiality of your Barklife password. You shall never use another user’s account without such other user’s prior express permission. You will immediately notify Barklife in writing of any unauthorized use of your account, or other account related security breach of which you are aware.

You represent and warrant that if you are an individual, you are of legal age to form a binding contract, or that if you are registering on behalf of an entity, that you are authorized to enter into, and bind the entity to, these Terms of Use and register for the Service. The Service is not available to individuals who are younger than 13 years old. Barklife may, in its sole discretion, refuse to offer the Service to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Use are in compliance with all laws, rules and regulations applicable to you and the right to access the Service is revoked where these Terms of Use or use of the Service is prohibited and, in such circumstances, you agree not to use or access the Site or Services in any way.

Content.

All Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such Content. Barklife cannot guarantee the authenticity of any Content or data which users may provide about themselves. You acknowledge that all Content accessed by you using the Service is at your own risk and you will be solely responsible and liable for any damage or loss to you or any other party resulting therefrom. For purposes of these Terms of Use, the term “Content” includes, without limitation, any location information, “barks”, comments, information, data, text, generated, provided, or otherwise made accessible by Barklife on or through the Service. Content added, created, uploaded, submitted, distributed, posted or otherwise obtained through the Service by users, including Content that is added to the Service in connection with users linking their accounts to third party websites and services, is collectively referred to as, “Use.”

Barklife Content.

The Service contains Content specifically provided by Barklife or its partners and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws, as applicable. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Service.

Subject to these Terms of Use, Barklife grants each user of the Application and/or Service a worldwide, non-exclusive, non-sublicensable and non-transferable license to use, modify and reproduce the Content, solely for personal, non-commercial use. Use, reproduction, modification, distribution or storage of any Content for other than personal, non-commercial use is expressly prohibited without prior written permission from Barklife, or from the copyright holder identified in such Content’s copyright notice, as applicable. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial (whether or not for profit) use or in any way that violates any third party right.

Rules and Conduct.

As a condition of use, you promise not to use the Service for any purpose that is prohibited by these Terms of Use. You are responsible for all of your activity in connection with the Service. Additionally, you shall abide by all applicable local, state, national and international laws and regulations and, if you represent a business, any advertising, marketing, privacy, or other self-regulatory code(s) applicable to your industry.

By way of example, and not as a limitation, you shall not (and shall not permit any third party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, including without limitation any User submission, that:

  • is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, promotes bigotry, discrimination or violence, or is otherwise inappropriate as determined by Barklife in its sole discretion;
  • constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”);
  • involves commercial activities (whether or not for profit) and/or sales without Barklife’s prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes;
  • contains software viruses or any other computer codes, files, worms, logic bombs or programs that are designed or intended to disrupt, disable, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of Barklife or any third party;
  • impersonates any person or entity, including any employee or representative of Barklife;
  • includes anyone’s identification documents or sensitive financial information; or
  • breaches the Privacy Policy, and/or any of the other policies and rules incorporated herein.

Barklife has a zero-tolerance policy against child pornography, and will terminate and report to the appropriate authorities any user who publishes or distributes child pornography.

You shall not (directly or indirectly):

  • take any action that imposes or may impose (as determined by Barklife in its sole discretion) an unreasonable or disproportionately large load on Barklife’s (or its third party providers’) infrastructure;
  • interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service;
  • bypass any measures Barklife may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service);
  • run any form of auto-responder or “spam” on the Service;
  • use manual or automated software, devices, or other processes to “crawl” or “spider” any part of the Service;
  • harvest or scrape any Content from the Service;
  • modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, republish, repurpose, sell, trade, or in any way exploit the Service or Site Content (other than your Use), except as expressly authorized by Barklife;
  • decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service (including without limitation any application or widget), except to the limited extent applicable laws specifically prohibit such restriction;
  • copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder;
  • otherwise take any action in violation of Barklife’s guidelines and policies.

Barklife does not guarantee that any Content will be made available through the Service. Barklife has no obligation to monitor the Site, Service, Content, or Use. However, Barklife reserves the right to (i) remove, suspend, edit or modify any Content in its sole discretion at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if Barklife is concerned that you may have violated these Terms of Use), or for no reason at all and (ii) to remove, suspend or block any User from the Service. Barklife also reserves the right to access, read, preserve, and disclose any information as Barklife reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Use, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Barklife, its users and the public.

Termination.

Barklife may terminate your access to all or any part of the Service at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your account. If you wish to terminate your account, you may do so by following the instructions on the Site. Any fees paid hereunder are non-refundable. All provisions of these Terms of Use which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

Warranty Disclaimer.

Save to the extent required by law, Barklife has no special relationship with or fiduciary duty to you. You acknowledge that Barklife has no control over, and no duty to take any action regarding: which users gain access to the Service; what Content you access via the Service; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content.

You release Barklife from all liability for you having acquired or not acquired Content through the Service. The Service may contain information that some people may find offensive or inappropriate. Barklife makes no representations concerning any Content contained in or accessed through the Service, and Barklife will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Service.

You release us from all liability relating to your connections and relationships with other users. You understand that we do not, in any way, screen users, nor do we inquire into the backgrounds of users or attempt to verify their backgrounds or statements. We make no representations or warranties as to the conduct of users or the veracity of any information users provide. In no event shall we be liable for any damages whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental, arising out of or relating to the conduct of you or anyone else in connection with the Services, including, without limitation, bodily injury, emotional distress, and any damages resulting in any way from communications or meetings with users or persons you may otherwise meet through the Services. As such, you agree to take reasonable precautions and exercise the utmost personal care in all interactions with any individual you come into contact with through the Services, particularly if you decide to meet such individuals in person. For example, you should not, under any circumstances, provide your financial information (e.g., credit card or bank account numbers) to other individuals.

THE SITE, SERVICE, AND CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND ARE PROVIDED WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, SAVE TO THE EXTENT REQUIRED BY LAW.

BARKLIFE, AND ITS DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUPPLIERS, AND PARTNERS DO NOT WARRANT THAT: (A) THE SERVICE WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (C) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (D) THE RESULTS OF USING THE SERVICE WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SITE, SERVICE, AND CONTENT IS SOLELY AT YOUR OWN RISK. SOME STATES / COUNTRIES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Indemnification.

You shall defend, indemnify, and hold harmless Barklife, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives from all losses, costs, actions, claims, damages, expenses (including reasonable legal costs) or liabilities, that arise from or relate to your use or misuse of, or access to, the Site, Service, and Content or otherwise from your Use, violation of these Terms of Use, or infringement by you, or any third party using the your account, of any intellectual property or other right of any person or entity (save to the extent that a court of competent jurisdiction holds that such claim arose due to an act or omission of Barklife). Barklife reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with Barklife in asserting any available defenses.

Limitation of Liability.

ALL LIABILITY OF BARKLIFE, ITS DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS HOWSOEVER ARISING FOR ANY LOSS SUFFERED AS A RESULT OF YOUR USE THE SITE, SERVICE, AND CONTENT IS EXPRESSLY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW, SAVE THAT, IF A COURT OF COMPETENT JURISDICTION DETERMINES THAT LIABILITY OF BARKLIFE, ITS DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS (AS APPLICABLE) HAS ARISEN, THE TOTAL OF SUCH LIABILITY SHALL BE LIMITED IN AGGREGATE TO ONE HUNDRED US DOLLARS ($100).

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BARKLIFE, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY OR OTHERWISE (AND WHETHER OR NOT BARKLIFE, ITS DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS HAD PRIOR KNOWLEDGE OF THE CIRCUMSTANCES GIVING RISE TO SUCH LOSS OR DAMAGE) WITH RESPECT TO THE SITE, SERVICE, CONTENT, AND USE FOR:

  • INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES;
  • LOSS OF DATA;

NOTHING IN THESE TERMS OF USE SHALL BE DEEMED TO EXCLUDE OR LIMIT YOUR LIABILITY IN RESPECT OF ANY INDEMNITY GIVEN BY YOU UNDER THESE TERMS OF USE. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, BARKLIFE’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

SOLELY IN RESPECT OF USERS LOCATED IN EUROPEAN ECONOMIC AREA (EEA) AND/OR AUSTRALIA, NOTHING IN THESE TERMS OF USE SHALL BE DEEMED TO EXCLUDE OR LIMIT OUR OR YOUR LIABILITY (AS APPLICABLE) IN RESPECT OF:

  • DEATH OR PERSONAL INJURY ARISING AS A RESULT OF OUR OR YOUR NEGLIGENCE (AS APPLICABLE);
  • FRAUD (INCLUDING FRAUDULENT MISREPRESENTATION), THEFT OR OTHER CRIMINAL ACTIVITY; OR
  • ANY BREACH OF ANY OBLIGATIONS IMPLIED BY SECTION 12 OF THE SALE OF GOODS ACT 1979 OR SECTION 2 OF THE SUPPLY OF GOODS AND SERVICES ACT 1982.

Governing Law.

A printed version of these Terms of Use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You and Barklife agree that any cause of action arising out of or related to the Service must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.

These Terms of Use and any disputes or claims arising out of or in connection with it shall be governed by, and construed in accordance with, the laws of Australia. All disputes or claims arising out of or relating to these Terms of Use shall be subject to the exclusive jurisdiction of the Australian Courts to which the Parties irrevocably submit.

Integration and Severability.

These Terms of Use are the entire agreement between you and Barklife with respect to the Service and Use of the Site, Service, and Content, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and Barklife with respect to the Service. If any provision of these Terms of Use is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Use will otherwise remain in full force and effect and enforceable. 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. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Use to be binding, Barklife must provide you with written notice of such waiver through one of its authorized representatives.

Modification of Terms of Use.

Barklife reserves the right, at its sole discretion, to modify or replace any of these Terms of Use, or change, suspend, or discontinue the Service (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending you notice through the Service or via email. Barklife may also impose limits on certain features and services or restrict your access to parts or all of the Service without notice or liability. It is your responsibility to check these Terms of Use periodically for changes. Your continued use of the Service following the posting of any changes to these Terms of Use constitutes acceptance of those changes.

Miscellaneous.

Barklife shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Barklife’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). These Terms of Use are personal to you, and are not assignable, transferable or sublicensable by you except with Barklife’s prior written consent. Barklife may assign, transfer or delegate any of its rights and obligations hereunder without consent. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Use and neither party has any authority of any kind to bind the other in any respect.

Unless otherwise specified in these Term of Use, all notices under these Terms of Use will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.

Solely in respect of users located in the EEA and/or Australia, in respect of these Terms of Use and your Use of this Site, Service, and Content, nothing in these Terms of Use shall be deemed to grant any rights or benefits to any person, other than us and you (and our and your respective successors in title or assignees), or entitle any third party to enforce any provision hereof, and we and you agree that we do not intend that any provision of these Terms of Use should be enforceable by a third party by virtue of the Contracts (Rights of Third Parties) Act 1999.

Language.

Where Barklife has provided you with a translation of the English language version of these Terms of Use, then you agree that the translation is provided for your convenience only and that the English language versions of the Terms will govern your relationship with Barklife.

If there is any contradiction between what the English language version of these Terms of Use says and what a translation says, then the English language version shall take precedence.

Contact.

You may contact Barklife at the following address: PO BOX 6227, CHAPEL STREET NORTH LPO, SOUTH YARRA, VICTORIA, AUSTRALIA, 3141

Effective Date: October 28, 2014