Tourboss App – Terms and Conditions

These Terms and Conditions constitute an agreement (this Agreement) between Tour Boss Enterprises Pty Ltd ABN 23 658 733 601 (Tourboss) and any person who downloads and/or uses the Tourboss application (you or the User).  This Agreement governs your access to and use of the Application.

You accept this Agreement when you download and/or use the Application. If you do not agree to the terms and conditions of this Agreement, you must delete your Account, immediately stop using the Application and remove the Application from your Device.

By downloading or using the Application or registering for an Account, you warrant to Tourboss that you are legally capable of entering into binding contracts including this Agreement.

 

  1. definitions
    • Account means a user account to access and use the Application.
    • Application means the Tourboss Application, including any Updates from time to time.
    • Consequential Loss means any special, incidental, punitive, exemplary, indirect or consequential losses, 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, technology or application, and loss or corruption of information or data (including the costs of recovering or reconstructing any lost or corrupted data).
    • Content means any material in electronic format (which may include software) provided by Tourboss through the Application.
    • Device means an Apple Inc. iOS-compatible or Android-compatible mobile device.
    • Event means the driving event/s selected by the User within the Application which the User may have been directed to select by a Tourboss Partner or Tour Host.
    • 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 subsisting 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, and circuit layout rights, topography rights and rights in databases.
    • Notification means any alert, update or message that the Application initiates and sends to the User through their Device.
    • Personal Information has the meaning set out in the Privacy Act.
    • Privacy Act means the Privacy Act 1988 (Cth).
    • Start Date means the date the User first downloads or uses the Application (whichever comes first).
    • 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 a Tourboss Partner’s Event and invite the User to participate in the Event and may have directed the User to download the Application for use during the Event.
    • Tourboss Partners means entities that have purchased the Tourboss subscription services who may be providing associated services to Users in connection with the use of the Application.
    • Update means an update or any modifications to the Application, which may include changes to the Application to maintain it, to add or remove features or functionality, or to redesign it.
    • User Data means any information that the User provides through the Application and any other information about the User that is accessible through the Application, which may include Personal Information.
  2. TERM

This Agreement commences on the Start Date and will continue until terminated in accordance with the terms of this Agreement.

  1. ACCOUNT
    • The User can register for an Account through the Application by providing Tourboss with their requested personal details, including their full name, email address and phone number. The User must only register for an Account in their own name, and must not provide another person’s Personal Information to register an Account.
    • The User must keep their password, and any record of it, confidential and must secure it from any unauthorised access or use.
    • The User is responsible for all activity on their Account, except where unauthorised activity occurs due to Tourboss’ failure to take reasonable steps to prevent it.
    • The User must notify Tourboss as soon as practical if the User becomes aware of any unauthorised access to or use of their Account and must also then take reasonable steps as soon as practical to re-secure the Account.
  2. TOURBOSS PARTNERS
    • The User’s access and use of the Tourboss Application may be associated with an experience or services provided by a Tourboss Partner or an Event.
    • In order to access and use the Application, the User may be required to:
  • (i) agree to additional Tourboss Partner terms and conditions contained within the Application;
  • complete a form within the Application providing additional information to a Tourboss Partner as required by the Tourboss Partner including such items as the User’s driver licence number, identification verification information, vehicle registration number and any further information (including Personal Information) required by the Tourboss Partner.
    • The User may not be able to use the functionality of the Application where they have not provided relevant information required by Tourboss or a Tourboss Partner specified within the Application.
    • The User must comply with all Tourboss and Tourboss Partner terms and conditions, guidelines and policies that may reasonably notified to the User, through the Application or otherwise from time to time.
  1. APPLICATION
    • Tourboss provides access to the Application for use by the User on a limited, non-exclusive and non-transferable basis in accordance with the terms and conditions set out in this Agreement.
    • Tourboss will use commercially reasonable efforts to ensure the Application is available 24 hours a day, 7 days per week, however the Application may become unavailable from time to time for any scheduled Updates or as a result of events beyond Tourboss’ reasonable control.
  2. ACCEPTABLE USE

The User must not, and not permit any person to:

  • use the Application for any purpose other than in accordance with this Agreement;
  • reverse-engineer, decompile, translate or disassemble the Application or any Content (except as may be permitted by statute);
  • bypass, or attempt to bypass, any security features of the Application, or introduce, upload or transmit any Harmful Code to the Application;
  • copy, reproduce, distribute, publish or otherwise use the Application 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 Application to any third party or dispose of, encumber or charge the Application in favour of a third party;
  • provide any third party with access to the Application 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 Application or any Content;
  • make any representations to a third party or the public in regard to the Application, any Content or the Intellectual Property Rights in the Application or any Content;
  • remove or interfere with any copyright or trade mark notices contained within the Application or any Content;
  • demonstrate the Application for the purpose of engaging a person to replicate the functionality or features contained in the Application; or
  • modify any documentation, instructions or manuals provided or made available in relation to the Application or any Content.
  1. DEVICES
    • Tourboss does not warrant that all Devices can access and use the Application.
    • The User may incur charges from their mobile service provider for using the Application. These charges are the User’s responsibility and any matters regarding these charges should be raised with the relevant mobile service provider directly.
    • In order to use the Application’s functionality, the User must enable settings on their Device to collect the User’s location data at all times and not only while the Application is in use (e.g. the “Allow Always” setting on an Apple Device).
  2. NOtification
    • The User may have the ability to receive Notifications through the Application. The User may select whether or not they agree to receive Notifications. The User may change their selection at any time by following the prompts on the Application.
    • In some circumstances, Notifications may not reach the User’s Device due to the requirements or limitations of the communications network or system outages or due to factors beyond Tourboss’ control, such as the User’s internet connection.
    • Tourboss does not guarantee that the Application will provide any Notifications.
  3. Third Party LINKS

Tourboss may include links to Third Party Links on the Application. These links are provided for the User’s convenience only and you acknowledge and agree that those Third Party Links do not form part of the Application and are not under Tourboss’ control nor are the third parties controlled by Tourboss. The User accesses those Third Party Links at their own risk.  Tourboss is not responsible for any loss or damage you may suffer as a result of accessing any Third Party Links.

  1. Accuracy, reliability AND ERROR
    • The User acknowledges and agrees that Tourboss does not provide any guarantee regarding the accuracy, reliability, timeliness, performance or fitness for purpose of the Application or Content or that the Application or Content is error-free. Tourboss will use commercially reasonable endeavours to maintain and keep the Application and Content accurate, available and current in accordance with good industry practice.
    • The User acknowledges that certain Content provided on the Application (including in relation to maps, navigation, driving routes and directions) is sourced from third parties and is to be used for your general information only. Such content is not provided as a recommendation or advice by Tourboss or any Tourboss Partner. Location and map data, access requirements and navigation directions accessible through the Application may be inaccurate or incomplete.
  2. road safety
    • The User acknowledges that Content provided on the Application, including navigation instructions, is not intended to replace road traffic safety signs, signals or restrictions.
    • The User warrants that they will:
  • (i) drive safely and vigilantly according to road and weather conditions and assess road and traffic considerations when using the Application;
  • (ii) comply with all road traffic laws, road restrictions, police instructions and any other traffic signs or lights; and
  • not use their Device while operating a vehicle in contravention of road safety laws.
    • Before acting or making any decision in whole or part based on the Content, the User must ensure that the User uses their own discretion and independent checks of any information. In particular, when following any recommended routes or directions provided via the Application, the User must take appropriate steps to ensure the safety of the User and their passengers by independently assessing any health and safety concerns based on their specific circumstances. To the extent that information presented on the road (including traffic lights, personal circumstances, weather conditions or road closures) differ from the Content or instructions provided by the Application, the User must not rely on the Application and its Content.
  1. UPDATES
    • From time to time, Tourboss may provide Updates to the Application. Tourboss is not required to give the User any prior notice before implementing an Update.
    • If the User provides Tourboss with any feedback, suggestion or comment regarding the Application, the User 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 User.
  2. INTELLECTUAL PROPERTY RIGHTS
    • As between the parties, the title to and ownership of the Application, including all Intellectual Property Rights in the Application, the Content and any Updates, remains with Tourboss.
    • Any rights that are not expressly granted to the User in this Agreement are expressly reserved by Tourboss.
    • The User grants Tourboss:
  • (i) a non-exclusive, non-transferable, sub-licensable, royalty-free licence to use the User Data for the purposes of providing the Application in accordance with this Agreement or otherwise exercising its rights under this Agreement; and
  • (ii) a non-exclusive, non-transferable, sub-licensable, perpetual and irrevocable royalty-free licence to use the User Data in a de-identified and aggregated form for any purpose, including for research purposes and for the purposes of creating analytics and databases to improve or otherwise develop the Application. As between the parties, Tourboss owns all right, title and interest in such research, analytics and databases.  Tourboss may share these with third parties, including Tourboss Partners.
  1. PRIVACY
    • In performing this Agreement each party will comply with the Privacy Act including the Australian Privacy Principles as may be applicable to that party.
    • Tourboss may collect your Personal Information directly from you or from Tourboss Partners or Tour Hosts in order to allow you to establish an Account and use the Application, to operate and improve the Application, to send you direct marketing communications and to administer Tourboss’ relationship with you.
    • The User acknowledges that geo-location data (including your specific location and speed) will be collected by Tourboss and Tourboss Partners through the User’s use of the Application and will be accessible by Tourboss and the Tourboss Partners in real time. The User acknowledges that Tourboss and the Tourboss Partners may continue to collect the User’s Personal Information, such as geo-location data, even when the Application is not in active use depending on the settings on your Device. The User is responsible for amending any settings on your Device or in the Application if the User does not want Tourboss or the Tourboss partners to collect their geo-location data while they are not using the Application.
    • Tourboss will only send the User direct marketing communications (for example by email), including about offers, news, promotions, or events, where the User has consented to Tourboss doing so.
    • The User may opt-out of receiving direct marketing communications at any time by contacting Tourboss, changing their Notifications settings in the Application or following the instructions in the direct marketing communications.
    • Tourboss may disclose the User’s Personal Information (including their live geo-location) to Tourboss Partners or Tour Hosts who are associated with their use of the Application.
    • Tourboss may disclose the User’s Personal Information to its service providers in connection with the above purposes, e.g. any IT service provider or market research providers. Tourboss’ Privacy Policy, located on Tourboss’ website at https://tourboss.app/privacy contains information about how a person 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.
  2. Confidentiality
    • In relation to the other party’s confidential information, each party will (and Tourboss will take reasonable steps to ensure that any person employed or engaged by it who receives that information will):
  • (i) keep that information confidential and secure;
  • (ii) not disclose or permit disclosure of that information to any person other than as reasonably required for purposes associated with this Agreement; and
  • not use or permit the use of that information other than as reasonably required for purposes associated with this Agreement.
    • The source code and object code in the Application, and the Content, is (as between the parties) Tourboss’ confidential information.
    • Clause 15(a) does not apply to the extent that information:
  • (i) is publicly available, other than due to a breach of this Agreement;
  • (ii) was known to the relevant party prior to the execution of this Agreement; or
  • must be disclosed by a party under an applicable law.
  1. Warranty
    • The User acknowledges and agrees that the Application cannot be guaranteed error-free.
    • Subject to clause 9, Tourboss warrants to the User that their access to and use of the Application 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.
    • On becoming aware of any claim or allegation by a third party against the User alleging that an authorised use by the User of the Application in Australia infringes the Intellectual Property Rights of that third party, the User must:
  • (i) promptly notify Tourboss in writing, giving full particulars of any infringement, suspected infringement or alleged infringement;
  • (ii) 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;
  • provide Tourboss with any assistance in may reasonably require in conducting the defence of such a claim; and
  • (iii) authorise Tourboss to:
  1. modify the Application or replace elements of it, to render the Application non-infringing without materially diminishing its functionality; or
  2. obtain for the User’s benefit the authority to continue the access and use of the Application,

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.

  • Tourboss’ liability in relation to any breach of the warranty in clause 16(b) does not apply where the infringement is caused or contributed to by:
  • (i) the use by the User of the Application 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;
  • (ii) use of the Application other than in the normal and customary manner for the purposes for which it is designed;
  • the combination of the Application with any materials that are not supplied by Tourboss; or
  • (iii) data that is provided to Tourboss, or that is entered into the Application, by the User, including the User Data.
    • Except for any express warranties contained in this Agreement, to the extent permitted by law, Tourboss expressly excludes all conditions, guarantees and warranties, whether express or implied, statutory or otherwise.
  1. LIABILITY of you and tourboss
    • 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 Application which cannot be excluded, restricted, qualified or modified by Tourboss (Non-Excludable Rights). Nothing in this Agreement excludes or attempts to exclude the User’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, including in negligence, for any Consequential Loss arising out of or in connection with this Agreement (or any breach of it) or the Application.
    • To the maximum extent permitted by law, except as otherwise expressly stated in this Agreement, the User agrees and acknowledges that they are solely responsible for the use of and reliance on the Application and its Content and that their use of the Application is at their own risk
    • To the maximum extent permitted by law, except as otherwise expressly stated in this Agreement, Tourboss, its directors, officers and employees are not liable (whether in contract, tort including negligence, under statute or otherwise) for any loss, liability, cost, damage, expense or claim (including loss of profit or revenue, loss of use, legal costs and defence or settlement costs) arising under or in connection with:
  • (i) the Application or any Third Party Links;
  • (ii) any lack of accuracy, reliability, timeliness or performance of the Application or Content;
  • errors in the pricing, sales, availability or quality of products, services, marketing, promotions or other content displayed or referred to in the Application; or
  • (iii) errors, omissions, data loss, file corruptions, interception of transmissions, downloads, computer worms, viruses, hacking or damage to your Device caused or contributed to by your use of the Application or reliance on the content of the Application.
    • 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 $100.
    • 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:
  • (i) in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and
  • (ii) 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.
  1. TERMINATION
    • Without limiting Tourboss’ rights, Tourboss may suspend the User’s access to or use of the Application if any use of the Application by the User occurs in breach of this Agreement that in Tourboss’ reasonable opinion threatens the security, integrity or availability of the Application. Tourboss will use commercially reasonable efforts to provide the User with notice of any such suspension.
    • Either party may terminate this Agreement by written notice to the other party if:
  • (i) the other party breaches this Agreement and the breach is capable of remedy, but the other party does not remedy that breach within 7 days from the date of receiving written notice by email to do so; or
  • (ii) the other party breaches this Agreement and the breach is not capable of remedy.
    • Tourboss does not guarantee that the Application will be available forever. If Tourboss decides to cease providing the Application, it may terminate this Agreement by written notice to the User.  If practical, Tourboss will provide the User with at least 30 days’ notice that Tourboss will cease providing the Application.
    • The User may terminate this Agreement at any time by deleting the App and ceasing to use it.
    • On expiry or termination of this Agreement for any reason:
  • (i) the expiry or termination is without prejudice to any rights or liabilities of the parties accruing as at the date of termination;
  • (ii) the User must immediately cease using the Application; and
  • each party must promptly upon the other party’s written request return or delete all confidential information of the other party in its possession or control.
  1. Additional terms – Apple Inc.

The following additional terms apply if the User accesses or uses the Application on an Apple Inc. iOS-compatible Device:

  • These terms and conditions are between Tourboss and you and not with Apple. Tourboss, not Apple, is responsible for the Application.
  • The User may only access and use the Application on an Apple-branded Device owned or controlled by the User and in accordance with Apple’s usage rules as set out in the Apple Media Services Terms and Conditions effective on the date the User downloads the Application.
  • Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application.
  • Tourboss is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Application to conform to any applicable warranty, the User may notify Apple, and Apple will refund the purchase price (if any) for the Application to the User. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application.
  • Tourboss, not Apple, is responsible for addressing any claims relating to the Application or the User’s possession and/or use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation.
  • In the event of any third party claim that the Application or the User’s possession and use of the Application infringes that third party’s Intellectual Property Rights, Tourboss, not Apple, will be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim.
  • The User warrants and represents that the User is not:
  • (i) 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; or
  • (ii) listed on any U.S. Government list of prohibited or restricted parties.
    • The User must comply with applicable third party terms of agreement when using the Application, for example the User’s agreement with their internet service provider.
    • Apple, and Apple’s subsidiaries, are third party beneficiaries of these terms and conditions and Apple may enforce these terms and conditions against you as a third party beneficiary thereof.
  1. Additional terms – Google Inc.

Google Inc. is not responsible for, and will not have any liability whatsoever under, this Agreement.

  1. GENERAL
    • In this Agreement the words “including”, “include” and similar words are not words of limitation.
    • Neither party may assign this Agreement or any right or obligation under it without the prior written consent of the other.
    • Any provision of this Agreement that is expressed to survive, or by its nature survives, the termination or expiry of this Agreement (including clauses 14 and 15) will survive the expiry or termination of this Agreement and will continue in effect.
    • If any clause or part of any clause of this Agreement is in any way 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 force and 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 User in relation to the Application.
    • Tourboss may vary the terms of this Agreement from time to time provided that doing so does not cause unreasonable detriment to the User. The latest version of this Agreement will be available on the Tourboss website, on the Apple App Store and on Google Play. By using the Application, you agree to the latest version of this Agreement.
  2. CONTACT DETAILS

If you have any questions, complaints or claims related to the Application please contact Tourboss on the following details:

Developer: Tour Boss Enterprises Pty Ltd

Address: 169 Domain Rd, South Yarra, 3141, Victoria, Australia

Email: info@tourboss.app