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Terms and Conditions

TURVY PTY LTD


Last updated: 16 September 2019

1.      Contractual Relationship

These Terms of Use ("Terms") govern the access or use by you, an individual, from within any country in the world (excluding the United States and its territories and possessions and Mainland China) of applications, websites, content, products, and services (the “Services”) made available by Turvy Pty Ltd, a private limited liability company established in Australia. Having its offices at 14/19A Market Street, Wollongong NSW 2500, Australia, registered at the Australian Security and Investment Commission (Registered Number: 622 611 894)

PLEASE READ THESE TERMS CAREFULLY BEFORE ACCESSING OR USING THE SERVICES.

Your access and use of the Services constitute your agreement to be bound by these Terms, which establishes a contractual relationship between you and Turvy. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you.

Turvy may restrict you from accessing or using the Services, or any part of them, immediately, without notice, in circumstances where Turvy reasonably suspects that:

·         you have, or are likely to, breach these Terms; and

·         you do not, or are likely not to, qualify, under applicable law or the standards and policies of Turvy and its affiliates, to access and use the Services.

Turvy may terminate these Terms or any Services concerning you, or generally cease offering or deny access to the Services or any portion thereof:

·         immediately, where Turvy reasonably suspects that:

o    you have, or are likely to, materially breach these Terms; and

o    you do not, or are likely not to, qualify, under applicable law or the standards and policies of Turvy and its affiliates, to access and use the Services; or

·         on 30 days' written notice to you, where Turvy, acting reasonably, terminates these Terms or any Services for any legitimate business, legal or regulatory reason.

Without limiting its other rights under these Terms, Turvy may immediately restrict or deactivate your access to the Services if you breach the Family Community Guidelines at any time.

You may terminate these Terms at any time, for any reason.

Supplemental terms may apply to certain Services, such as policies for a particular event, activity or promotion, and such additional terms will be disclosed to you in connection with the applicable Services. Supplemental terms are in addition to and shall be deemed a part of, the Terms for the relevant Services. Additional terms shall prevail over these Terms in the event of a conflict concerning the appropriate Services.

Turvy may amend the Terms, any policies or supplemental terms (including the Community Guidelines) related to the Services from time to time. Turvy will provide you with at least 30 days' written notice in the event of a material change to any terms, policies or supplemental terms that detrimentally affects your rights under these Terms. Amendments will be effective upon Turvy’s posting of such updated Terms at this location or the amended policies or supplemental terms on the applicable Service. Your continued access or use of the Services after such posting, or after the expiry of the notice period (whichever is later), constitutes your consent to be bound by the Terms, as amended.

Our collection and use of personal information in connection with the Services is as provided in Turvy’s Privacy Policy located at https://www.turvy.net/legal. Turvy may contribute to a claims processor or an insurer any necessary information (including your contact information) if there is a complaint, dispute or conflict, which may include an accident, involving you and a Third-party Provider (including a transportation network company driver) and such information or data is necessary to resolve the complaint, dispute or conflict.

2.      The Services

Turvy will provide the Services to you under this Agreement. The Services constitute the provision of a technology platform that enables you, as a user of Turvy’s mobile applications or websites (each, an "Application") to

(a) arrange and schedule transportation services or delivery services with independent third-party providers of those services, who have an agreement with Turvy or its affiliates (“Third-Party Providers”); and

(b) facilitate payments to Third-party Providers for the services and receive receipts for those payments.

The Services are made available solely for your personal, non-commercial use unless Turvy has agreed with you otherwise in a separate agreement. You acknowledge that Turvy does not provide transportation or delivery services or function as a transportation carrier and that all such transportation or delivery services are provided by independent third-party contractors who are not employed by Turvy or any of its affiliates. Turvy accepts liability for the Services and Application that it offers to you subject to these Terms. Third-Party Providers are responsible for the services they provide to you.

License.

Subject to your compliance with these Terms, Turvy grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferrable license to:

(i)                 Access and use the Applications on your device solely in connection with your use of the Services; and

(ii)              access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, non-commercial use. Any rights not expressly granted herein are reserved by Turvy and Turvy’s licensors.

Restrictions.

You may not:

(iii)            remove any copyright, trademark or other proprietary notices from any portion of the Services;

(iv)             reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by Turvy;

(v)               decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law;

(vi)             link to, mirror or frame any portion of the Services;

(vii)          cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any part of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.

Provision of the Services.

You acknowledge that portions of the Services may be made available under Turvy’s various brands or request options associated with transportation or delivery services, including the transportation request brands currently referred to as "Turvy," “TurvyST,” “TurvyFM,” "TurvySV", "TurvyX8", "TurvyEX" and TurvyLUX,”. You also acknowledge that the Services may be made available under such brands or request options by or in connection with: (i) certain of Turvy’s subsidiaries and affiliates; or (ii) independent Third-Party Providers, including transportation network company drivers, transportation charter permit holders or holders of similar transportation permits, authorisations or licenses.

Third-Party Services and Content.

The Services may be made available or accessed in connection with third-party services and content (including advertising) that Turvy does not control. You acknowledge that different terms of use and privacy policies may apply to your use of such third-party services and content. Turvy does not endorse such third services and content and in no event shall Turvy be responsible or liable for any products or services of such third-party providers. Additionally, Apple Inc., Google, Inc., Microsoft Corporation or BlackBerry Limited and their applicable international subsidiaries and affiliates will be third-party beneficiaries to this contract if you access the Services using Applications developed for Apple iOS, Android, Microsoft Windows, or Blackberry-powered mobile devices, respectively. These third-party beneficiaries are not parties to this contract and are not responsible for the provision or support of the Services in any manner. Your access to the Services using these devices is subject to terms outlined in the applicable third-party beneficiary’s terms of service.

Ownership.

The Services and all rights therein are and shall remain Turvy’s property or the property of Turvy’s licensors. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner Turvy’s company names, logos, product and service names, trademarks or services marks or those of Turvy’s licensors.

3.      Your Use of the Services

User Accounts.

To use most aspects of the Services, you must register for and maintain an active personal user Services account ("Account"). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account, unless a specific Service permits otherwise. Account registration requires you to submit to Turvy certain personal information, such as your name, address, mobile phone number and age, as well as at least one valid payment method (either a credit card or accepted payment partner). You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access or use the Services. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by Turvy in writing, you may only possess one Account.

User Requirements and Conduct.

The Service is not available for use by persons under the age of 18. You may not authorise third parties to use your Account, and you may not allow persons under the age of 18 to receive transportation or delivery services from Third-party Providers unless you accompany them. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when accessing or using the Services, and you may only access or use the Services for lawful purposes (e.g., no transport of unlawful or hazardous materials). You will not, in your use of the Services, cause nuisance, annoyance, inconvenience, or property damage, whether to the Third-party Provider or any other party. In certain instances, you may be asked to provide proof of identity or other methods of identity verification to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity or other methods of identity verification.

Text Messaging.

By creating an account, you agree that the Services may send you text (SMS) messages as part of the regular business operation of your use of the Services. You may opt-out of receiving text (SMS) messages from Turvy at any time by following the directions found at htttp://t.turvy.com/SMS-unsubscribe. You acknowledge that opting out of receiving text (SMS) messages may impact your use of the Services.

Promotional Codes.

Turvy may, in Turvy’s sole discretion, create promotional codes that may be redeemed for Account credit, or other features or benefits related to the Services and/or a Third-party Provider’s services, subject to any additional terms that Turvy establishes on a per promotional code basis ("Promo Codes"). You agree that Promo Codes:

(i)                 must be used for the intended audience and purpose, and in a lawful manner;

(ii)              may not be duplicated, sold or transferred in any way, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by Turvy;

(iii)            maybe disabled by Turvy at any time for any reason without liability to Turvy;

(iv)             may only be used according to the specific terms that Turvy establishes for such Promo Code;

(v)               are not valid for cash; and

(vi)             May expire before your use. Turvy reserve the right to withhold, deduct credits, other features, benefits obtained through the use of Promo Codes by you or any other user in the event that Turvy reasonably determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or these Terms.

User-Provided Content.

Turvy may, in Turvy’s sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to Turvy through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions ("User Content"). Any User Content provided by you remains your property. However, by submitting User Content to Turvy, you grant Turvy a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and Turvy’s business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.

You represent and warrant that:

(i)                 you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant Turvy the license to the User Content as set forth above; and

(ii)              neither the User Content nor your submission, uploading, publishing or otherwise making available of such User Content nor Turvy’s use of the User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

You agree not to provide User Content that is defamatory, libellous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by Turvy in its sole discretion, whether or not such material may be protected by law. Turvy may, but shall not be obligated to, review, monitor, or remove User Content, at Turvy’s sole discretion and at any time and for any reason, without notice to you.

Network Access and Devices.

You are responsible for obtaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from a wireless-enabled device, and you shall be responsible for such rates and fees. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates to it. Turvy does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. Also, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.

4.      Payment

You understand that use of the Services may result in charges to you for the services or goods you receive from a Third-party Provider ("Charges"). After you have received services or products obtained through your use of the Service, Turvy will facilitate your payment of the applicable Charges on behalf of the Third-party Provider as such Third-party Provider’s limited payment collection agent. Payment of the Charges in such manner shall be considered the same as a payment made directly by you to the Third-party Provider. Charges will be inclusive of applicable taxes where required by law. Fees paid by you are final and non-refundable unless otherwise determined by Turvy or required by the Australian Consumer Law. Under the Australian Consumer Law, you may be entitled to a refund for a major failure of the Services, or other remedies for a minor failure. You retain the right to request lower Charges from a Third-party Provider for services or goods received by you from such Third-party Provider at the time you receive such services or goods. Turvy will respond accordingly to any request from a Third-party Provider to modify the Charges for a particular service or product.

All Charges are due immediately, and payment will be facilitated by Turvy using the preferred payment method designated in your Account, after which Turvy will send you a receipt by email. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that Turvy may, as the Third-party Provider’s limited payment collection agent, use a secondary payment method in your Account, if available.

As between you and Turvy, Turvy reserves the right to establish, remove and, or revise Charges for any or all services or goods obtained through the use of the Services at any time in Turvy’s sole discretion. Further, you acknowledge and agree that Charges applicable in certain geographical areas may increase substantially during times of high demand. Turvy will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of such Charges or the amounts thereof. Turvy may from time to time provide certain users with promotional offers and discounts that may result in different prices charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. You may elect to cancel your request for services or goods from a Third-party Provider at any time before such Third-Party Provider’s arrival, in which case you may be charged a cancellation fee.

This payment structure is intended to fully compensate the Third-party Provider for the services or goods provided. Except with respect to taxicab transportation services requested through the Application, Turvy does not designate any portion of your payment as a tip or gratuity to the Third-party Provider. Any representation by Turvy (on Turvy’s website, in the Application, or in Turvy’s marketing materials) to the effect that tipping is "voluntary," “not required,” and/or “included” in the payments you make for services or goods provided is not intended to suggest that Turvy provides any additional amounts, beyond those described above, to the Third-party Provider. You understand and agree that, while you are free to provide additional payment as a gratuity to any Third-party Provider who provides you with services or goods obtained through the Service, you are under no obligation to do so. Gifts are voluntary. After you have received services or products purchased through the Service, you will have the opportunity to rate your experience and leave additional feedback about your Third-party Provider.

Repair or Cleaning Fees.

You shall be responsible for the cost of repair for damage to, or necessary cleaning of, Third-party Provider vehicles and property resulting from use of the Services under your Account over normal "wear and tear" damages and necessary cleaning (“Repair or Cleaning”). If a Third-Party Provider reports the need for Repair or Cleaning, and such Repair or Cleaning request is verified by Turvy in Turvy’s reasonable discretion. Turvy reserves the right to facilitate payment for the reasonable cost of such Repair or Cleaning on behalf of the Third-party Provider using your payment method designated in your Account. Such amounts will be transferred by Turvy to the applicable Third-party Provider and are non-refundable.

5.      Disclaimers; Limitation of Liability; Indemnity.

LIMITATION SUBJECT TO LOCAL CONSUMER LAW

THE LIMITATIONS AND DISCLAIMER IN THIS SECTION 5 DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW, INCLUDING THE AUSTRALIAN CONSUMER LAW.

DISCLAIMER.

EXCEPT AS REQUIRED OF TURVY UNDER THE CONSUMER GUARANTEES, THE SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE.” TURVY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. TURVY DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD-PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, INCLUDING THE AUSTRALIAN CONSUMER LAW.

LIMITATION OF LIABILITY.

IF YOU ARE ACQUIRING THE GOODS OR SERVICES AS A CONSUMER, TURVY'S LIABILITY FOR A FAILURE TO COMPLY WITH A CONSUMER GUARANTEE IS LIMITED TO:

(A) IN THE CASE OF GOODS SUPPLIED TO YOU AS PART OF THE SERVICES UNDER THIS AGREEMENT, THE REPLACEMENT OF THE RELEVANT GOODS OR THE REPAIR OF THE GOODS, OR THE PAYMENT OF THE COST OF REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS; AND

(B) IN THE CASE OF SERVICES SUPPLIED TO YOU AS PART OF THE SERVICES UNDER THIS AGREEMENT, THE SUPPLY OF THE RELEVANT SERVICES AGAIN, OR THE PAYMENT OF THE COST OF RESUPPLYING THE SERVICES.

TURVY'S LIABILITY TO YOU FOR A BREACH OF ANY CONDITION, WARRANTY OR TERM OF THIS AGREEMENT THAT IS NOT A BREACH OF A CONSUMER GUARANTEE, IS LIMITED IN THE FOLLOWING WAY.  TURVY SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, EVEN IF TURVY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TURVY SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF:

(i)                 YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR

(ii)              ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD-PARTY PROVIDER, EVEN IF TURVY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TURVY SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND TURVY’S REASONABLE CONTROL. YOU ACKNOWLEDGE THAT THIRD-PARTY TRANSPORTATION PROVIDERS PROVIDING TRANSPORTATION SERVICES REQUESTED THROUGH SOME REQUEST BRANDS MAY OFFER RIDESHARING OR PEER-TO-PEER TRANSPORTATION SERVICES AND MAY NOT BE PROFESSIONALLY LICENSED OR PERMITTED. IN NO EVENT SHALL TURVY’S TOTAL LIABILITY TO YOU IN CONNECTION WITH THE SERVICES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED ONE THOUSAND AUSTRALIAN DOLLARS ($1,000).

TURVY’S SERVICES MAY BE USED BY YOU TO REQUEST AND SCHEDULE TRANSPORTATION, GOODS OR DELIVERY SERVICES WITH THIRD-PARTY