Tourboss Subscription Agreement

These terms and conditions govern a Subscriber’s access to and use of the Platform and the Services.

By clicking ‘I AGREE’ or by accessing or using the Platform it creates a contract between you, as Subscriber, and Tour Boss Enterprises Pty Ltd ABN 23 658 733 601 (Tourboss) on these terms and conditions and associated Order(s) (Agreement). If you are accepting this Agreement on behalf of a Subscriber, you represent and warrant that you are authorised by that Subscriber to agree to the terms of this Agreement on its behalf.

If you do not agree to this Agreement, or you do not have authority to accept this Agreement on behalf of a Subscriber, then DO NOT click ‘I AGREE’ or access or use the Platform or any of the Services.

Notwithstanding any other terms of this Agreement, if you are a party to a negotiated set of terms and conditions with Tourboss regarding your access to and use of the Platform and the Services, that negotiated set of terms and conditions shall apply to the exclusion of this Agreement.

1. DEFINITIONS

Account means a Subscriber account to access and use the Platform.
Analytics has the meaning given in clause 6(d)(ii).
Application means the Tourboss mobile application, including any Updates from time to time.
App Terms has the meaning given in clause 4(a).
Business Day means a day that is not a Saturday, a Sunday, or a public holiday or bank holiday in Victoria, Australia.
CCPA means the California Consumer Privacy Act, as amended from time to time.
Commencement Date means the start date or commencement date (however described) of the Term, as specified in the Order.
Confidential Information of a party (Discloser) means all information of or relating to the Discloser or relating to the business, operations or affairs of the Discloser. It includes trade secrets, know how, technology, techniques, processes, ideas or concepts and technical and product information.
Consequential Loss means any special, incidental, punitive, exemplary, indirect or consequential loss, as well as business interruption losses, loss of revenue, loss of anticipated savings, loss of profits, loss of goodwill, loss of reputation, loss of interest or business opportunity, costs of procurement or substitution of any goods or services, and loss or corruption of information or data (including costs of recovering or reconstructing lost or corrupted data).
Content means any material in electronic format (which may include software) provided or made available by Tourboss through the Platform.
Device means a mobile device, tablet, computer or other electronic device used to access the Platform or Application (whichever the context requires).
Document Verification Services (if applicable) has the meaning given in clause 22(a).
DVS Provider has the meaning given in clause 22(b).
End User means a person who downloads and/or uses the Application.
Event means the event/s created within the Platform, as may be specified in the Order, which may be conducted by the Subscriber and may be selected by End Users in the Application.
Fees means the amount payable by the Subscriber to Tourboss for access to and use of the Platform, as set out in the Order, as may be changed pursuant to clause 13(f).
GDPR means the General Data Protection Regulation of the European Union, as may be amended from time to time.
GST means any tax, levy, charge or impost implemented under the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or a law substantially in the form of, or which has a similar effect to, the GST Act.
GST Amount means an amount equal to the GST payable on the taxable supply, calculated in accordance with the then-current rate of GST.
Harmful Code means “back door”, “time bomb”, “logic bomb”, “Trojan Horse”, “worm”, “drop dead device”, “DoS attacks”, “DDoS attacks”, “virus” or any other malware, spyware or computer software routine having the effect of permitting unauthorised access to or use of any system, network or software, or disabling, damaging, corrupting, interrupting or erasing, or disrupting or impairing the normal operation of, any part of any system, network or software.
Intellectual Property Rights means any intellectual property rights anywhere in the world, whether or not now existing, including rights in relation to copyright (registered or unregistered), inventions (including patents, innovation patents and utility models), confidential information, technical information and know-how, registered and unregistered designs, registered and unregistered trade marks, circuit layout rights and rights in databases.
Notification means any alert, update or message that the Platform or Application initiates and sends to the Subscriber or to Users through their Device.
Order means the separate document(s) provided by Tourboss setting out the commercial terms applicable to this Agreement in relation to the Platform and the Services.
Personal Information means any information or opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not and whether the information or opinion is recorded in a material form or not, or such other meaning as required by the relevant Privacy Laws.
Platform means any Tourboss™ online digital platform made available by Tourboss to Subscribers through the URL www.portal.tourboss.app.
Privacy Act means the Privacy Act 1988 (Cth).
Privacy Laws means, as applicable, the Privacy Act, the GDPR, the UK GDPR, and the CCPA and any other legislation governing the handling of Personal Information in a jurisdiction relevant to Tourboss or the Subscriber (as the case may be and stated in the Order).
Renewal Term means a further period equal to the initial Term.
Services means the services provided under this Agreement, including services specified in the Order and services available through the Platform.
Subscriber means the person or entity (other than Tourboss) specified in the Order.
Subscriber Terms has the meaning given in clause 6(b).
Subscriber User means an employee, agent, contractor or other member of the personnel of the Subscriber who is authorised by the Subscriber to access and use the Platform via the Subscriber’s Account in accordance with clause 3(a).
Tax Invoice has the same meaning as under the GST Act.
Term means the initial subscription term of this Agreement, as set out in the Order, as well as any Renewal Terms under clause 2(b).
Third Party Links means any links to any websites, electronic communication or digital and social media platforms operated by third parties.
Tour Host means a third party who may purchase packages to one or more of the Subscriber’s Events and invite people to participate in the Event/s and who may direct a person to download the Application as an End User for use during the Event/s.
UK GDPR means the Data Protection Act 2018 (UK), as amended from time to time.
Update means any update or modifications to the Platform, which may include changes to the Platform to maintain it, to add or remove features or functionality, or to redesign it.
Users means Subscriber Users and End Users.
User Data means any information that the Subscriber or a Subscriber User provides, procures the provision of, or otherwise makes accessible through the Platform, including:
1. Personal Information, whether related to a Subscriber User or potential or actual End Users; and
2. other information regarding an End User generated in connection with the End User’s use of the Application in relation to the Subscriber, the Subscriber’s business, an Event or the Services.

2. TERM

This Agreement and the Subscriber’s licence to access and use the Platform under this Agreement begin on the Commencement Date, and continue for the Term or until terminated in accordance with the terms of this Agreement.
Unless otherwise specified in the Order, the Term will automatically renew for each successive Renewal Term, unless either party gives a written notice to the other party at least 30 days prior to the end of the then-current Term of its intention not to renew this Agreement. Tourboss will issue a written reminder to the Subscriber at least 60 days before the end of the then-current Term of any automatic renewal that will occur at the end of the then-current Term (or then current Renewal Term) if the Subscriber does not give notice under this clause.

3. ACCOUNTS

Tourboss will allocate an Account to the Subscriber. The Subscriber may authorise a commercially reasonable number of Subscriber Users to access and use the Platform and Account by contacting Tourboss. The Subscriber must ensure each Subscriber User:
1. provides a valid email address and password to Tourboss for access to the Account (via the mechanism determined by Tourboss);
2. implements any additional security features related to access to the Account, as reasonably required by Tourboss from time to time;
3. keeps the password and details relevant to any additional security features associated with the Account and/or their access to the Account, and any record of it, confidential and secure from any unauthorised access or use;
4. does not permit any other person to use the Account or Platform without Tourboss’ express authorisation.
The Subscriber:
1. must not allow any person other than a Subscriber User to access or use the Platform or Account;
2. is responsible for all activity on the Account by all Subscriber Users or anyone using their password (whether or not authorised), except where unauthorised activity occurs due to Tourboss’ failure to take reasonable steps to prevent it;
3. must notify Tourboss as soon as practicable if it becomes aware of any unauthorised access to or use of the Account and must then take reasonable steps as soon as practical to re-secure the Account;
4. will be responsible for its Subscriber Users’ access to and use of the Platform, including for ensuring their compliance with the terms and conditions of this Agreement;
5. may revoke any Subscriber User’s access to the Account at any time; and
6. if a Subscriber User ceases to be employed or engaged by the Subscriber, must immediately revoke the Subscriber User’s access to the Account.

4. PLATFORM

Tourboss provides the Subscriber and Subscriber Users with access to the Platform during the Term, on a limited, non-exclusive, non-transferable basis, in accordance with this Agreement and the Order. To avoid doubt, the Subscriber’s and Subscriber Users’ use of the Application (if any) will be governed by the separate terms and conditions relevant to the Application (the App Terms).
Tourboss will use commercially reasonable efforts to ensure the Platform and Application are available 24 hours a day, 7 days per week; however, Subscriber agrees and acknowledges that the Platform and Application may become unavailable from time to time for scheduled maintenance or due to events beyond Tourboss’ reasonable control.
Tourboss will take reasonable steps to provide the Subscriber with advance notice through the Platform of outages for scheduled maintenance as described in clause 4(b), where reasonably possible to do so.
The Subscriber agrees and acknowledges that Tourboss shall have no liability to the Subscriber where the Platform and/or Application are unavailable as described in clause 4(b).
Tourboss may modify the Platform or Application, including to add or remove features and functionality from time to time, and any changes will be communicated to the Subscriber through the Platform.
Without limiting clause 4(e), Tourboss will make commercially reasonable efforts to notify Subscriber of planned modifications to the Platform where such modification would cause a material impact to the users of the Platform generally.

5. ACCEPTABLE USE

The Subscriber must not, and must ensure that each Subscriber User does not:

access or use the Platform except in accordance with this Agreement;
use the Platform or Content, or associated Services for any purpose not permitted by relevant laws, regulations or generally accepted practices and guidelines relevant to the Platform, Content or associated services;
allow, direct or encourage any End User who is under 18 years of age to use the Application;
expressly or impliedly impersonate any other User or subscriber or use the Account or password of another User or subscriber at any time;
harass, stalk, threaten or disrupt other Users or subscribers;
use the Platform for any illegal or unauthorised use including unauthorised framing of or linking to the Platform;
engage in automated use of the Platform, including systematic or automated data collection, access or usage;
cause damage to or interfere with accessibility of the Platform;
reverse-engineer, decompile, translate or disassemble the Platform or any Content (except as permitted by statute);
bypass, or attempt to bypass, any security feature of the Platform, or introduce any Harmful Code to the Platform;
copy, reproduce, distribute, publish or otherwise use the Platform or any Content in any manner or for any purpose not expressly authorised by this Agreement;
assign, transfer, sell, lease, license or sub-license the Platform (or your access to it) to any third party;
use the Platform or Content or any associated services in connection with any commercial endeavours except those that are specifically endorsed or approved by Tourboss;
provide any third party with access to the Platform other than as expressly permitted under this Agreement;
challenge or repudiate or take any action to impair, prejudice or diminish the Intellectual Property Rights in the Platform or any Content;
remove or interfere with any copyright or trade mark notices contained within the Platform or any Content;
do anything that may damage the reputation of Tourboss or the Platform;
engage any person to replicate the functionality or features contained in the Platform;
modify any documentation, instructions or manuals provided or made available in relation to the Platform or any Content.

6. USER DATA

Tourboss may make User Data accessible to the Subscriber and its Subscriber Users.
The Subscriber is responsible for ensuring appropriate terms and conditions are included within the Application (or at such other location as the Subscriber determines is reasonable) to govern End Users’ use of the Application in connection with their relationship with the Subscriber or the Event (for example, terms and conditions under which the Subscriber makes a vehicle available to an End User or conducts an Event) (Subscriber Terms). Tourboss will ensure that the Platform allows the Subscriber to upload those Subscriber Terms to the Application should the Subscriber wish to do so. The Subscriber Terms must contain terms and conditions that are consistent with clause 5 and the App Terms, and must not seek to impose any liability on Tourboss or to make any representation or give any assurance on behalf of Tourboss that is not expressly approved in writing by Tourboss.
The Subscriber is responsible for:
1. any access to or use of the Platform and any access to User Data by the Subscriber or any Subscriber User;
2. ensuring and maintaining the accuracy, completeness and legality of any User Data provided or uploaded to the Platform;
3. ensuring the User Data and its means of acquisition do not infringe the rights, including Intellectual Property Rights, of any third party;
4. effecting and maintaining appropriate security measures to secure its access to and use of the Platform to prevent, so far as reasonably within the Subscriber’s control, any unauthorised access to or use of the Platform of the User Data; and
5. promptly notifying Tourboss of any breach of security or any unauthorised access to or use of the Platform or the User Data.
Despite any other provisions of this Agreement, the Subscriber acknowledges and agrees that Tourboss:
1. collects, uses, stores and otherwise handles Personal Information incorporated into or subsisting in the User Data, including such data regarding Users’ usage of the Platform, the Application and the Services, for the purpose of providing the Services; and
2. may use such User Data to aggregate anonymised or de-identified data for purposes such as developing or creating potential improvements to or improving the functionality of the Platform or Application or for developing or creating other data, datasets or analytics (collectively, Analytics). Tourboss will own all right, title and interest in and to such Analytics and the Intellectual Property Rights relating to them, and such Analytics are Tourboss’ Confidential Information.
The Subscriber acknowledges and agrees that Tourboss is under no obligation to monitor any information or material, including any User Data, which Subscriber Users or End Users transmit or otherwise make available through the Platform; however, Tourboss has the right to remove any information or material, including User Data, from the Platform at any time if the information or material is contrary to law or Tourboss otherwise reasonably considers it inappropriate.
Without limiting clause 6(d), Tourboss will, upon written request from the Subscriber after termination or expiry of this Agreement, anonymise, delete or return to the Subscriber all Personal Information disclosed to Tourboss under this Agreement, including any copies in Tourboss’ possession or control, except to the extent that Tourboss reasonably needs to retain the personal information in order to comply with any applicable laws. Tourboss will certify in writing to the Subscriber that such anonymisation, deletion or return of personal information has occurred, within sixty (60) days after the Subscriber’s written request.

7. DISCLAIMER

The Subscriber agrees and acknowledges that:

Tourboss is not responsible for the completeness or accuracy of User Data provided to it by any User, or any insights generated through the Platform (including insights generated from such User Data);
the accuracy and reliability of any insights and information generated through the Platform and Application are dependent on the quality of the User Data provided;
Tourboss gives no warranties or representations that the information or insights generated through the Platform are accurate, complete, correct or up to date;
Tourboss gives no warranties or representations as to the usefulness of such information or insights for the Subscriber’s business purposes;
the Subscriber must carry out its own investigations and make its own assessments with respect to the value of any insights and information generated through the Platform; and
the Subscriber is responsible for ensuring that the Event is conducted safely and lawfully, and for ensuring the safety of all Event participants.

8. DEVICES

Tourboss does not warrant that all Devices can access and use the Platform or that all features of the Platform will operate on all Devices, whether correctly or at all.
The Subscriber may incur charges from its mobile service provider and/or internet provider for using the Platform. These charges are the Subscriber’s responsibility and the Subscriber should raise any matters regarding these charges directly with the relevant service provider.

9. NOTIFICATIONS

The Subscriber may be able to receive and send Notifications to End Users through the Platform, depending on the Services set out in the Order and Account settings.
In some circumstances, Notifications may not reach the End User, Subscriber User or relevant Device due to the requirements or limitations of the communications network or system outages, or due to factors beyond Tourboss’ control, such as the End User’s or Subscriber’s internet connection or the settings in a particular Device.

10. THIRD PARTY LINKS

Tourboss may include Third Party Links on the Platform. These links are provided for the Subscriber’s convenience only and the Subscriber acknowledges and agrees that those Third Party Links do not form part of the Platform, and are not under Tourboss’ control nor are the third parties controlled by Tourboss. The Subscriber and Subscriber Users access those Third Party Links at their own risk. Tourboss is not responsible for any loss or damage the Subscriber or a Subscriber User may suffer as a result of accessing any Third Party Links.

11. ACCURACY, RELIABILITY AND ERRORS

The Subscriber acknowledges and agrees that Tourboss does not guarantee that the Platform is accurate, reliable or error-free. Tourboss will use commercially reasonable endeavours to maintain and keep the Platform available and current in accordance with good industry practice.

12. UPDATES

From time to time, Tourboss may provide Updates to the Platform. Tourboss is not required to give any prior notice before implementing any Update or other update.
If the Subscriber provides Tourboss with any feedback, suggestion or comment regarding the Platform, the Subscriber grants to Tourboss a worldwide, irrevocable, perpetual, sub-licensable, transferable, royalty-free licence to use and exploit any such feedback, suggestion or comment for any purpose without any obligation or compensation to the Subscriber.

13. PAYMENT

The Subscriber will pay the Fees specified in (or calculated in accordance with) the Order to Tourboss.
Tourboss will issue a Tax Invoice for all Fees payable by the Subscriber.
The Subscriber will pay each Tax Invoice in accordance with the payment terms specified in the Order or, if not specified in the Order, prior to the commencement of the Term to which the Fees relate. Tourboss will give the Subscriber and its Users access to the Services on full payment of the Fees in cleared funds.
If the Subscriber does not pay any invoiced amount by the due date for payment, then without prejudice to Tourboss’ rights under this Agreement or generally:
1. interest is also payable on the outstanding amount at the rate prescribed from time to time under Section 2 of the Penalty Interest Rates Act 1983 (Vic). The Subscriber must pay that interest at the same time as the outstanding amount; and
2. by written notice to the Subscriber, Tourboss may suspend the Subscriber’s (and any Subscriber Users’) access to the Platform until the Subscriber pays the outstanding amount and interest in full.
Subject to clause 13(f) below, the Fees will remain fixed until expiry of the initial Term of the Order.
Tourboss may in its sole discretion increase the Fees by giving the Subscriber written notice of the proposed change between 60 and 90 days prior to the expiry of the then-current Term. Unless the Subscriber notifies Tourboss in writing before the expiry of the then-current Term that it does not wish to renew this Agreement, the revised Fees will apply to the Subscriber’s continued access to and use of the Platform from the commencement of the Renewal Term immediately following the notice. The Fees (as revised) will then remain fixed during that Renewal Term.

14. GST

If GST is payable on any supply made under or in relation to this Agreement, the recipient of the supply must pay the GST Amount to the supplier in addition to and at the same time as the net amount payable for the supply.
If a party is required to make any payment or reimbursement, that payment or reimbursement must be reduced by the amount of any input tax credits or reduced input tax credits to which the other party (or the representative member for a GST group of which it is a member) is entitled, for any acquisition relating to that payment or reimbursement.
This clause is subject to any other specific agreement regarding the payment of GST on supplies.

15. INTELLECTUAL PROPERTY RIGHTS

As between the parties, title to and ownership of the Platform, including all Intellectual Property Rights in the Platform and the Content, remain with Tourboss.
As between the parties, the Subscriber retains all right, title and interest in the User Data it provides or transmits through the Platform.
Any rights that are not expressly granted to the Subscriber in this Agreement are expressly reserved by Tourboss.
Tourboss grants the Subscriber a non-exclusive, non-transferable, non-sub-licensable, revocable licence to:
1. use the Intellectual Property Rights in the Platform, Content and any Updates for the purposes of using the Platform in accordance with this Agreement; and
2. copy and store Content contained in the Platform in the Subscriber’s Device’s cache memory.
The Subscriber must not, without Tourboss’ prior written permission and the permission of any other relevant rights owners, broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Content contained on the Platform, for any purpose, unless otherwise provided by these Terms.
The Subscriber grants Tourboss a non-exclusive, sub-licensable, royalty-free licence to use the User Data for the purposes of providing the Platform in accordance with this Agreement or otherwise exercising its rights under this Agreement as well as the right to copy, reformat, edit or translate the User Data for those purposes.
Without limiting clause (f), the Subscriber grants Tourboss a non-exclusive, sub-licensable, perpetual and irrevocable royalty-free licence to use the User Data in a de-identified and aggregated form, including for research purposes and for the purposes of creating analytics and databases to improve or otherwise develop the Platform. As between the parties, Tourboss owns all right, title and interest in such research, analytics and databases.
On becoming aware of any claim or allegation by a third party against the Subscriber that the Subscriber’s use of the Platform infringes the Intellectual Property Rights of that third party, the Subscriber must:
1. promptly notify Tourboss in writing, giving full particulars of any infringement, suspected infringement or alleged infringement;
2. give Tourboss the option to conduct the defence of such a claim, including negotiations for settlement or compromise prior to or after the institution of legal proceedings;
3. provide Tourboss with any assistance it reasonably requires in defending such a claim; and
4. authorise Tourboss to:
  1. modify the Platform or replace elements of it, to render the Platform non-infringing without materially diminishing its functionality; or
  2. obtain for the Subscriber’s benefit the authority to continue the access and use of the Platform,
5. however, if neither of the above can be achieved using reasonable commercial efforts, Tourboss may terminate this Agreement (or the relevant part of it) by written notice to that effect.

16. PRIVACY

In performing this Agreement each party will comply with all applicable Privacy Laws.
Where the User Data (or any other information the Subscriber or Subscriber Users provide to Tourboss) contains Personal Information, the Subscriber must ensure that it (or the relevant Subscriber User disclosing the information):
1. has the legal right to disclose such information to Tourboss;
2. complies with any relevant Subscriber Terms when disclosing that information to Tourboss; and
3. only use and discloses that information for the purposes for which it was collected.
The Subscriber is the controller of any Personal Information the Subscriber provides to Tourboss, where the GDPR or UK GDPR applies to such Personal Information.
If permitted by this Agreement, the relevant Subscriber Terms and the Platform, the Subscriber may share End User’s Personal Information relating to its Event/s with Tour Hosts. If the Subscriber does so, the Subscriber must ensure that it and each such Tour Host complies with all relevant Privacy Laws, and acts consistently with the Subscriber’s obligations under this Agreement including this clause 16.
Tourboss may collect Personal Information which is provided by the Subscriber or Users or contained in the User Data or otherwise provided through or in connection with the Platform in accordance with its Privacy Policy in order to allow the Subscriber Users to access the Account, to allow the Subscriber to use the Platform and communicate with Users (as contemplated by this Agreement), to operate and improve the Platform, to send direct marketing communications (where permitted by law) and to administer Tourboss’ relationship with the Subscriber and End Users.
Tourboss may also collect Personal Information through the use of cookies. For more information about how Tourboss uses cookies and how to disable cookies on a browser, please refer to Tourboss’ Privacy Policy. If cookies are disabled on a browser, certain functions of the Platform and associated services may be limited.
Tourboss will only send direct marketing communications to the Subscriber or Subscriber Users (by mail, SMS, email or Notification), including about offers, news, promotions or events, where the Subscriber or relevant Subscriber User has consented to Tourboss doing so.
A person may opt-out of receiving direct marketing communications at any time by contacting Tourboss or by following the opt-out instructions provided in the direct marketing communications.
Tourboss also collects technical information and general analytics in a de-identified form arising from the use of the Platform. This information is used for the purpose of gauging visit traffic and trends to improve the Platform and tailor Tourboss’ services and Content.
Tourboss may disclose Personal Information to its service providers in connection with the above purposes, including any third party IT service provider. Tourboss’ Privacy Policy contains information about how an individual may seek to access or correct the Personal Information that Tourboss holds about them, how they may complain about a privacy breach and how Tourboss will deal with such a complaint.
Tourboss agrees that it will cooperate with the Subscriber in responding to any requests to exercise individual rights made by individuals under relevant Privacy Laws, and will share any personal information dealt with under this Agreement with the Subscriber for this purpose, as permitted by law.

17. DATA BREACH

If Tourboss knows or has reasonable grounds to believe or suspect that a data breach (being the unauthorised use, access, loss, modification or disclosure of personal information) has occurred which may impact personal information disclosed to it by the Subscriber or its End Users, Tourboss will:
1. notify the Subscriber within two (2) Business Days of becoming aware of the known or suspected data breach;
2. use its best endeavours and take all reasonable steps to complete an assessment of any suspected or unknown data breach as required by law, including assessing the nature of the data involved and remediating the data breach; and
3. work with the Subscriber to determine:
  1. an appropriate communication plan to the Subscriber’s End Users where such a data breach is found to have impacted personal information disclosed to it by the Subscriber; and
  2. whether the data breach is a notifiable data breach, which is required to be notified to the Office of the Australian Information Commissioner and other affected individuals, and, if so, how notification to other affected individuals that are the Subscriber’s End Users is to occur.

18. CONFIDENTIALITY

In relation to the other party’s Confidential Information, each party will:
1. keep that information confidential and secure;
2. not disclose or permit disclosure of that information to any person other than as reasonably required for the purposes of this Agreement; and
3. not use or permit the use of that information other than as reasonably required for the purposes of this Agreement.
The source code and object code in the Platform and the Application, and the Content, are Tourboss’ Confidential Information.
Clause 18(a) does not apply to the extent that information:
1. is publicly available, other than due to a breach of this Agreement;
2. was known to the relevant party prior to the execution of this Agreement; or
3. must be disclosed by a party under an applicable law.

19. WARRANTY

Except for any express warranties in this Agreement, to the extent permitted by law, Tourboss excludes all conditions, guarantees and warranties, whether express or implied, statutory or otherwise.
The Subscriber acknowledges and agrees that the Platform cannot be guaranteed error-free.
Tourboss has no liability to any party (including to the Subscriber) in relation to, and makes no warranties regarding, the accuracy, completeness or reliability of Content and User Data on the Platform or Application supplied by third parties or Users.
The Subscriber acknowledges that certain Content provided on the Platform and Application (including in relation to maps, navigation, driving routes and directions) is sourced from third parties and is to be used for the Subscriber’s and End Users’ general information only. Such Content is not provided as a recommendation or advice by Tourboss. Location and map data, access requirements and navigation directions accessible through the Application may be inaccurate or incomplete. Any Content made available on the Platform or the Application are not intended to replace the information provided on the road, including restrictions, road blockages, traffic signs, traffic lights, police instructions, and any rules or laws relating to road usage. Tourboss is not responsible for the acts or omissions of the End Users who use the Application.
Tourboss warrants that the Subscriber’s access to and use of the Platform in accordance with this Agreement will not, to the best of Tourboss’ knowledge at the date of this Agreement, infringe the Intellectual Property Rights of any third party in Australia.
Tourboss will not be liable in relation to any breach of the warranty in clause 19(e) to the extent any infringement is caused or contributed to by:
1. the Subscriber’s use of the Platform in a manner which is inconsistent with the rights granted under this Agreement, or with any documentation or written operating instructions or guidelines provided by Tourboss;
2. the Subscriber’s use of the Platform other than in the normal and customary manner for the purposes for which it is designed;
3. the combination of the Platform with any materials that are not supplied by Tourboss; or
4. data provided to Tourboss, or entered on the Platform, by the Subscriber or Users, including the User Data.

20. LIABILITY

The Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth) and other similar consumer protection laws and regulations may imply certain rights, consumer guarantees, warranties or remedies relating to the Platform which cannot be excluded, restricted, qualified or modified by Tourboss (Non-Excludable Rights). Nothing in this Agreement excludes or attempts to exclude the Subscriber’s Non-Excludable Rights as a consumer under the ACL.
Each party’s liability arising out of or in connection with this Agreement whether in contract, equity, negligence, tort or for breach of statute or otherwise, including under a warranty or indemnity, will be reduced by the extent, if any, to which the other party’s breach of this Agreement or negligence caused or contributed to the liability.
Neither party will be liable to the other party, for any Consequential Loss arising out of or in connection with this Agreement (or any breach of it) or the Platform.
To the fullest extent permitted by law, each party’s total aggregate liability in connection with this Agreement to the other party (whether under statute, in contract or in tort, including negligence, or otherwise) for any liability, loss, damage or expense suffered or incurred by the other party is limited to the amount equal to the Fees actually paid by the Subscriber to Tourboss in the six (6) months immediately preceding the event giving rise to the liability.
If a supply by Tourboss under this Agreement is a supply of goods or services to a consumer within the meaning of the ACL, to the extent that the ACL permits Tourboss to limit its liability, then Tourboss’ liability is limited to:
1. in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and
2. in the case of goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired.

21. TERMINATION

Without limiting Tourboss’ rights, Tourboss may suspend the Subscriber’s access to or use of the Platform if any use of the Platform by the Subscriber occurs in breach of this Agreement that in Tourboss’ reasonable opinion threatens the security, integrity or availability of the Platform or if the Subscriber fails to pay any Fees when due. Tourboss will use commercially reasonable efforts to provide the Subscriber with notice of any such suspension.
Either party may terminate this Agreement by written notice to the other party if:
1. the other party breaches this Agreement and the breach is capable of remedy, but the other party does not remedy that breach within 30 days from the date of receiving written notice by email to do so; or
2. the other party breaches this Agreement and the breach is not capable of remedy.
Tourboss does not guarantee that the Platform or the Application will be available forever. If Tourboss decides to cease providing the Platform or the Application, it may terminate this Agreement by written notice to the Subscriber. If practical, Tourboss will provide the Subscriber with at least 30 days’ notice that Tourboss will cease providing the Platform or Application. Tourboss will provide the Subscriber with a pro-rata refund of any pre-paid Fees, for any period after termination of the Agreement under this clause 21(c).
On termination of this Agreement for any reason:
1. the termination is without prejudice to any rights or liabilities of the parties accruing as at the date of termination;
2. the Subscriber must immediately cease using the Platform;
3. the Subscriber must pay Tourboss the Fees payable up to and including the date of termination; and
4. each party must promptly on the other party’s written request return or delete all Confidential Information of the other party in its possession or control.

22. IDENTITY DOCUMENT VERIFICATION SERVICES

Tourboss may provide the Subscriber with the ability to verify the validity of identification documents provided by End Users (such as drivers licences) via the Platform (Document Verification Services), but only where:
1. Tourboss has decided to provide Document Verification Services in Subscriber’s jurisdiction; and
2. where Document Verification Services are specified in the relevant Order.
Tourboss will provide Document Verification Services via:
1. a gateway service provider that has been approved for the Australian Government’s Document Verification Service; or
2. where the Subscriber and its End Users are based outside of Australia, a service provider comparable to that described in clause 22(b) that is competent to lawfully verify documents relevant to that other jurisdiction.
(each a DVS Provider)
Tourboss will not retain copies of documents or other information provided via the Document Verification Services other than for the purposes of performing its obligations under this Agreement.
When using the Document Verification Services, the Subscriber must ensure that each End User whose documents are to be verified via the Document Verification Services:
1. has an existing or prospective relationship with the Subscriber;
2. has, within the previous three months, given their express written consent (which may be by electronic means, where applicable) to their information and/or document(s) being used for the purposes of verifying the validity of those documents (including via provision to a DVS Provider); and
3. has been given the option to withdraw their consent before completion of the Document Verification Services;
The Subscriber must:
1. only use the Document Verification Services for the purposes of the Subscriber (or Subscriber Users) verifying an End User’s identity documentation in connection with the Subscriber’s (or the End User’s) use of the Platform and/or the Application (or as otherwise agreed with Tourboss in writing);
2. retain evidence of its compliance with clause 22(d), and provide such evidence to Tourboss as soon as reasonably practicable after Tourboss’ written request;
3. ensure any information it collects in connection with its use of the Document Verification Services is handled in accordance with relevant Privacy Laws;
4. not modify, adapt, translate, reverse engineer, decompile, disassemble or create derivative works based on results received from or via the Document Verification Services;
5. not disclose the result(s) received from or via the Document Verification Services to any person other than the Subscriber Users, the End User to whom the result(s) relate, or Tourboss;
6. not interfere with, disrupt, adversely affect or misuse the Document Verification Services or functionality provided by the Document Verification Services in any way, or interfere with or disrupt the use of the Document Verification Services by any other person;
7. not mislead any person (by act or omission, directly or indirectly) in relation to the Document Verification Services;
8. promptly report any actual or suspected data breach of the Subscriber’s information technology systems that has any connection to the Platform, Application, Document Verification Services, or results received from the Document Verification Services; and
9. maintain an alternative process for dealing with an individual whose identity cannot be verified using the Document Verification Service.
The Subscriber acknowledges and agrees that:
1. the Document Verification Services are intended to assist the Subscriber in verifying the validity of an identity document;
2. Tourboss makes no warranties as to the accuracy of the Document Verification Services; and
3. the Subscriber must not rely exclusively on the Document Verification Services, and must take any other steps that are reasonable in the circumstances in order to satisfy the Subscriber that it has sufficient information regarding an End User or their identity documents in order for the Subscriber to determine whether it wishes to proceed with its relationship with the End User (including in order to determine whether the identity documents actually relate to the End User).

23. GENERAL

In this Agreement the words “including”, “include” and similar words are not words of limitation.
If a dispute arises out of or in connection with this Agreement, the party claiming that a dispute has arisen must, as soon as reasonably practicable, give notice to the other party specifying the nature of the dispute. The parties agree that they will attempt to resolve the dispute between themselves in good faith and each party will do anything (including executing any document) reasonably required to give effect to the agreed resolution of the dispute.
Tourboss may assign or novate this Agreement or any right or obligation under it without the Subscriber’s prior written consent as part of a good faith corporate restructure or disposition of assets, if the party to which the rights or obligations are assigned or novated is likely to be able to fully perform Tourboss’ obligations under this Agreement. The Subscriber must not assign or novate this Agreement or any right or obligation under it without Tourboss’ prior written consent.
Any provision of this Agreement that is expressed to survive, or by its nature survives, the termination of this Agreement (including clauses 13, 16 and 17) will survive termination of this Agreement and continue in effect.
If any clause or part of any clause of this Agreement is unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal. If this is not possible, the clause (or where possible, the offending part) is to be severed from this Agreement without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses) which will continue in full effect.
This Agreement is to be governed and construed in accordance with the laws for the time being in force in Victoria, Australia and the parties irrevocably submit to the jurisdiction of the courts and tribunals having jurisdiction in that State.
This Agreement constitutes the entire agreement between Tourboss and the Subscriber in relation to its subject matter.
Tourboss may vary the terms of this Agreement from time to time provided any variation is not unduly detrimental to the Subscriber, by providing the Subscriber with reasonable notice of such variation in writing. By continuing to use the Platform, you agree to the latest version of this Agreement.

24. MODERN SLAVERY

Tourboss warrants that it will take reasonable steps to comply with its obligations under applicable laws regarding Modern Slavery including, where required by those laws, undertaking due diligence in its selection of contractors, and continually monitoring and auditing its contractors for the purpose of ensuring its compliance with those laws.
The Subscriber may, on reasonable written notice, request Tourboss provide the Subscriber with evidence of its compliance with clause 24(a).
For the purposes of this clause 24, Modern Slavery means:
1. conduct which would constitute an offence under either Division 270 or 271 of the Criminal Code (Cth) such as slavery, servitude, forced labour, deceptive recruiting, debt bondage and any form of human trafficking; and
2. any form of child labour prohibited by law.