Terms and Conditions

1. INTRODUCTION

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1. These Terms set out the terms and conditions that apply when you use the Services.
2. By using the Services, ordering any goods or services through the Services, or otherwise engaging with the content on the Services, you represent and warrant that you have the legal capacity to enter into a binding legal agreement with us and you agree to be bound by these Terms.
3. Please have a careful read through these Terms before using the Services. If you don’t agree to these Terms, please don’t use the Services.
4. We may modify our Terms from time to time. If we do, we will post a note on this page or email you. If you continue to use the Services after we modify our Terms, you’ll be taken to have agreed to the Terms as modified.

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2. ACCOUNT REGISTRATION

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2.1 CREATING YOUR ACCOUNT

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1. In order to use the Services, you will be required to sign up for an account (Spoony Account).
2. Where permitted, you may sign up for a Spoony Account using your Facebook, Apple, or Google account (Social Media Account). If you choose to use your Social Media Account to sign up for a Spoony Account, you authorise us to access and use certain Social Media Account information, including but not limited to your Social Media Account profile.
3. In order to sign up for a Spoony Account you warrant that:
   1. you are at least 18 years old;
   2. you have not committed or been convicted of any indictable offence, a sex crime or any crime involving violence; and
   3. you are not required to be listed on any national, state or local sex offender registry. 
4. As part of the registration process, you will be required to create a unique username for your Spoony Account. You agree to choose a username which is reasonable and unlikely to offend other users. 
5. When you register for a Spoony Account, you must provide true, accurate and complete information as requested and keep this information up to date after registration.

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2.2 MAINTAINING YOUR ACCOUNT

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1. You agree that you’re solely responsible for:
   1. maintaining the confidentiality and security of your Spoony Account information and your password; and
   2. any activities and those of any third party that occur through your Spoony Account, whether those activities have been authorised by you or not.
2. You also agree to let us know if you detect any unusual activity on your Spoony Account as soon as you become aware of it.
3. We won’t be responsible to you for, and expressly disclaim any liability for, any cost, loss, damages or expenses arising out of a failure by you to maintain the security of your Spoony Account information or your password.
4. Spoony may, in its absolute discretion, suspend or cancel your Spoony Account for any reason, including for any failure to comply with these terms.

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3. COMMUNICATION WITH OTHER USERS

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3.1 USER INTERACTION

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1. While Spoony strives to create a safe and respectful online community and user experience, you acknowledge and agree that we are not responsible for the conduct of any user either on or off the App or Website. 
2. You agree to use caution in all interactions with other users if you choose to communicate with another user off the Spoony App or Website and particularly if you meet another user in person.
3. You are solely responsible for your interaction with other users of the Spoony App and Website. Spoony does not conduct police checks on its users or otherwise inquire into the background of its users. Spoony makes no representations or warranties as to the conduct or compatibility of its users.
4. You agree to present yourself respectfully and authentically by refraining from uploading or sharing content that is obscene, pornographic, violent or otherwise offensive, or that is abusive, insulting, threatening or otherwise encourages or facilitates any illegal activity. You agree that you are solely responsible for taking all necessary steps to protect your privacy and security when taking and uploading photos to the Spoony App and Website.

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3.2 INFORMATION SHARING

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1. Your full name and the full name of other users will not be disclosed on the Website or App. Each user will be displayed under their username along with their occupation.
2. You agree not to provide other users with your financial information (for example, credit card or bank account details) or otherwise send money to or financially assist other users.

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3.3 PLATFORM USE

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1. By signing up for a Spoony Account, or otherwise using our App or Website, you agree that you will not:
   1. misrepresent your age, identity or any aspects of your personal information including but not limited to your sexual preference or practice, ongoing illness or disability or neurodivergence;
   2. harass, bully, stalk, intimidate, assault, defame, harm or otherwise mistreat any other user;
   3. solicit money or other items of value from another user, whether as a gift, loan or form of compensation; 
   4. user another user’s Spoony Account; 
   5. share, or encourage other users to share, pornographic content;
   6. use the Services for any illegal, nefarious or harmful purpose; or
   7. use the Service to damage the reputation of Spoony.
2. You agree that you will adhere to Spoony’s Community Guidelines as in force from time to time whenever you use the App, the Website or the Services.

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4. IDENTITY VERIFICATION

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1. When signing up for a Spoony Account, Spoony will require you to register using a valid mobile phone number.
2. While we will take all reasonable steps to verify the identity of Spoony users, you acknowledge and agree that:some text
   1. we are reliant on the information and representations made by users in establishing their Spoony Account, in accordance with clause 2.1(e);
   2. you should make your own inquiries as to other users’ identities before engaging in contracts with those users; and 
   3. we do not endorse any user.
3. Spoony may refuse to provide you with a Spoony Account or remove your Spoony Account if we cannot verify your identity.

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5. ACCEPTABLE USE

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We’ll need you to make a few promises about the way you’ll use the Services.

You agree:

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1. not to copy, reproduce, translate, adapt, vary or modify the Services without our express consent;
2. not to use the Services in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity;
3. not to use the Service for the purpose of distributing unsolicited commercial content, junk mail, spam, bulk content or harassment;
4. not to attempt to breach the security of the Services or Spoony’s system security, or otherwise interfere with the normal function of the Services, including by:some text
   1. gaining unauthorised access to Spoony Accounts or data about other users of the Services;
   2. scanning, probing or testing the Services for security vulnerabilities;
   3. overload, flood, mailbomb, crash or submit a virus to the Services or Spoony’s system; or
   4. instigate or participate in a denial-of-service attack against the Services or Spoony’s system; and
5. to ensure that your employees, sub-contractors and other agents who you have authorised to use or access the Services comply with the Terms.

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6. YOUR CONTENT

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6.1 TYPES OF CONTENT

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As part of using the Services, you’ll be uploading images, content, information and materials you share with us or other users (including feedback, suggestions and enhancement requests), including by using the features of the App, sharing content via the App on social media or by contacting us, or when you register a Spoony Account (Posted Materials). We encourage you to think carefully about what types of Posted Materials you choose to upload to our App or Website, keeping in mind that such Posted Materials may be visible to other users once uploaded.

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6.2 POSTED MATERIALS

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By providing or posting any Posted Materials, you represent and warrant that:

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1. you are authorised to provide the Posted Materials;
2. the Posted Materials are free from any harmful, discriminatory, defamatory or maliciously false implications and do not contain any offensive or explicit material;
3. the Posted Materials are not “passing off” of any product or service and does not constitute unfair competition;
4. the Posted Materials do not infringe any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this agreement (Intellectual Property Rights);
5. the Posted Materials are accurate and true at the time they are provided;
6. any Posted Materials which are in the form of a review or feedback is honest, accurate and presents a fair view of the relevant person and/or your experience;
7. the Posted Materials do not contain any viruses or other harmful code, or otherwise compromise the security or integrity of any network or system; and
8. the Posted Materials do not breach or infringe any applicable laws, regulations or orders.

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6.3 POSTED MATERIALS – IP LICENCE

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By uploading any Posted Materials, you grant to Spoony (and its agents or service providers) a perpetual, irrevocable, transferable, worldwide and royalty-free licence (including the right to sublicense) to use, copy, modify, reproduce and adapt any Intellectual Property Rights in that Posted Material in order for Spoony to use, exploit or otherwise enjoy the benefit of such Posted Material.

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6.4 REMOVAL OF POSTED MATERIALS

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We don’t have any obligations to screen Posted Materials in advance of them being posted and your compliance with these Terms is your responsibility. However, we may, if we choose, review and remove any Posted Materials at any time without giving any explanation or justification for removing the material and/or information.

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7. OUR CONTENT

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1. Unless we indicate otherwise, all materials used in the Services (including text, graphics, logos, icons, sound recordings and software) are subject to Intellectual Property Rights that are owned or licensed by us.
2. You can only access and use these materials for the sole purpose of enabling you to use the Services in accordance with the plan you are on, except to the extent permitted by law or where you have received prior written approval from us.

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8. NOTICE REGARDING APPLE

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If you are accessing the Services from the Apple, Inc. (Apple) iOS Store, you acknowledge and agree:

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1. these Terms are between you and Spoony and not with Apple. Apple is not responsible for the Services or any content available on the Services;
2. Apple has no obligation whatsoever to furnish any maintenance and support services for the Services;
3. in the event of any failure of Spoony to conform to any applicable warranty, you may notify Apple, and Apple will refund the price for the Services. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Services, and any other claims, losses, liabilities, damages, costs of expenses attributable to any failure to conform to any warranty will be Spoony’s responsibility;
4. Apple is not responsible for addressing any claims by you or any third party relating to the Services, including, but not limited to:
   1. product liability claims;
   2. any claim that the Services fails to conform to any applicable legal or regulatory requirement; and
   3. claims arising under consumer protection, privacy, or similar legislation;
5. in the event of any third party claim that the Services or your use of the Services infringes any third party’s intellectual property rights, Apple will not be responsible for the investigation, defence, settlement and discharge of any such claim;
6. that you represent and warrant that:
   1. you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting’” country; and
   2. you are not listed on any U.S. Government list of prohibited or restricted parties;
7. you must comply with applicable third party terms of agreement when using the Services; and
8. Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary.

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9. THIRD PARTY CONTENT & LINKS

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1. The Services may contain text, images, data and other content provided by a third party (Third Party Content). We’re not responsible for any of this Third Party Content and we make no representation or warranty about the quality, suitability, accuracy, reliability, currency or completeness of any Third Party Content.
2. The Services may also contain links to websites operated by third parties (Third Party Links). Third Party Links are provided for convenience and may not remain current or be maintained. We do not endorse and are not responsible for Third Party Links and have no control over or rights in linked websites.

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10. SERVICE LIMITATIONS

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The Services are made available to you strictly on an ‘as is’ basis. We can’t guarantee, and make no warranties, to the extent permitted by law, that:

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1. the Services will be free from errors or defects;
2. the Services will be accessible or available at all times;
3. messages sent through the Services will be delivered promptly, or delivered at all;
4. information you receive or supply through the Services will be secure or confidential; or
5. any information provided through the Services is accurate or true.

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11. SECURITY

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We do not accept responsibility for any unauthorised use, destruction, loss, damage or alteration to your data or information (including Posted Materials), your computer systems, mobile phones or other electronic devices arising in connection with use of the Services. You should take your own precautions to ensure that the process which you employ for accessing the Services does not expose you to the risk of hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.

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12. DISCLAIMER

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1. To the maximum extent permitted by applicable law, Spoony excludes all liability to any person for loss or damage of any kind, however arising whether in contract, tort (including negligence), statute, equity, indemnity or otherwise. This includes the transmission of any computer virus.
2. You agree to indemnify Spoony and its employees, contractors and agents in respect of all liability for loss, damage or injury which may be suffered by any person arising from, or in connection with, you or your representatives use of the Services and/or breach of these Terms.
3. All express or implied representations and warranties given by us are, to the maximum extent permitted by applicable law, excluded.
4. Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, you may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services we provide.
5. To the maximum extent permitted by law, under no circumstances will Spoony be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with the Services, these Terms or their subject matter (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)).

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13. CANCELLATION

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13.1 CANCELLATION BY YOU

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You are responsible for the cancellation of your Spoony Account. You can cancel your Spoony Account at any time by using the functionality provided in the App and/or Website.

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13.2 CANCELLATION BY US

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1. To the extent permitted by law, we reserve the right to terminate your access to any or all of the Services or any part of the Services at any time without notice, for any reason, provided that we refund to you any Fees for Services which you have paid for and not received.
2. We may also terminate your access to any or all of the Services at any time without notice without issuing a refund if you breach any provision of these Terms.

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13.3 EFFECT OF CANCELLATION

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1. Upon cancellation, termination or expiry of your Spoony Account, we will delete any Posted Materials associated with your Spoony Account. You won’t be able to recover any of this after cancellation, termination or expiry of your Spoony Account so we recommend you back up anything important to you. We won’t be responsible to you for, and expressly disclaim any liability for, any cost, loss, damages or expenses arising out the cancellation, termination or expiry of your Spoony Account.
2. Following cancellation, your Spoony Account will be cancelled and your access to the App and Website will be revoked.

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13.4 SURVIVAL

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Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this agreement will survive and be enforceable after such termination or expiry.

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14. PRIVACY

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You agree to be bound by the clauses outlined in Spoony’s Privacy Policy, which can be found under privacy policy.

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15. LOCATION OF SERVICES

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1. Spoony controls the operation of the Services from headquarters located in Australia. Some Services or parts thereof may be operated from, or hosted on mirrors or servers, at various locations outside of Australia.
2. We make no representation or warranty that all of the features of the Services will be available to you outside of Australia or that they are permitted to be accessed outside Australia.
3. You are solely responsible for your decision to use the Services from other locations and you acknowledge that such use may be subject to, and you are responsible for, compliance with applicable local laws in relation to your use of the Services.

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16. NOTICES

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1. A notice or other communication to a party under this agreement must be:
   1. in writing and in English; and
   2. delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
2. Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
   1. 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this agreement, in which case the notice will be taken to be given on the next occurring business day in that state, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this agreement, in which case the notice will be taken to be given on the next occurring business day in that state or territory; or
   2. when replied to by the other party, whichever is earlier.

17. GENERAL

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17.1 GOVERNING LAW AND JURISDICTION

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This agreement is governed by the law applying in Victoria, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

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17.2 WAIVER

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No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

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17.3 SEVERANCE

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Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.

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17.4 JOINT AND SEVERAL LIABILITY

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An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

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17.5 ASSIGNMENT

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A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.

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17.6 COSTS

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Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.

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17.7 ENTIRE AGREEMENT

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This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.

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17.8 INTERPRETATION

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1. (singular and plural) words in the singular includes the plural (and vice versa);
2. (currency) a reference to $; or “dollar” is to Australian currency;
3. (gender) words indicating a gender includes the corresponding words of any other gender;
4. (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
5. (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
6. (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
7. (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
8. (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
9. (headings) headings and words in bold type are for convenience only and do not affect interpretation;
10. (includes) the word “includes” and similar words in any form is not a word of limitation; and
11. (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.

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