Terms and Conditions
MotorCal (ABN 37 794 080 392) (“MotorCal”, “we” or “us”) operates an online platform (“MotorCal Services”) allowing users (“User” or “You”) to post, access or request information in relation to automotive, motorsports and related social activities in Australia (“Event Information”), via MotorCal’s platform including through our website at http://www.motorcal.com.au, the MotorCal mobile software application available on the Apple or Android app stores (“App Store”) or any other platform we may introduce in the future (“MotorCal Platform”).
Use of the MotorCal Platform or use of the MotorCal Services confirms that You agree to be bound by this Agreement.
1. SCOPE OF MOTORCAL SERVICE
1.1 MotorCal provides a platform for linking automotive and motorsports enthusiasts (“MotorCal Customers”) with organisers of automotive, motorsports and related social events in Australia (“Organisers”), and provides up to date information in relation to upcoming automotive, motorsports and related social events (“Events”).
1.2 A reference to a User in this agreement includes MotorCal Customers, Organisers and any other person that accesses the MotorCal Platform.
1.3 A User creates an account with MotorCal when s/he validly completes a registration form or links their social media account on the MotorCal Platform (“User Account”). A User Account is required to access Event Information unless otherwise specified.
1.4 MotorCal provides the platform only. Apart from enabling a MotorCal Customer to find an Organiser, Event or Event Information, MotorCal accepts no liability for any aspect of the MotorCal Customer and Organiser interaction, including but not limited to the description of goods and services offered and the performance of services. MotorCal has no obligation to any User to assist in any way in any dispute between a MotorCal Customer and an Organiser.
1.5 All information related to an Event is supplied by Organisers, or is obtained from publicly available information. MotorCal does not have any ability and does not undertake any responsibility to review, approve or verify any public or Organiser provided information prior to publication on the MotorCal Platform.
1.6 You expressly agree that MotorCal has no responsibility and makes no warranty as to the truth or accuracy of any aspect of any information provided by Users (including all Organisers and MotorCal Customers), including, but not limited to, the ability of Organisers to conduct the Event, the accuracy of any information provided by Organisers, or MotorCal Customers’ ability to pay for the Event Information requested.
1.7 All material on the MotorCal Platform is derived from sources believed to be current and accurate as at the date of publication and is provided in good faith. MotorCal makes no representation or warranty that:
(a) any material on the MotorCal will be relevant, accurate, reliable or complete (nor does MotorCal accept any responsibility arising in any way for errors in, or omissions from that material, even if those errors or omissions occur on account of MotorCal’s negligence or gross negligence); or
(b) your access to the MotorCal Platform will be timely, secure or uninterrupted.
1.8 Your use of, or reliance upon, the material on the MotorCal Platform is entirely at your own risk. Users agree to confirm and verify any Event Information directly with the Organiser before acting on the Event Information. Note that times of Events may be adjusted for daylight savings, although MotorCal does not accept any liability for an error in displaying the correct time of Events.
1.9 The MotorCal Platform may contain information about activities which by reason of their physical exertion or the degree of physical fitness required may be unsuitable or dangerous for certain persons, or the MotorCal Platform may describe activities which are inherently dangerous. MotorCal makes no representations as to the nature, safety, quality or suitability about any or all of the activities shown on the MotorCal Platform and the User agrees that the User shall be responsible for first satisfying himself/herself by independent enquiry or advice as to the safety and suitability of the particular activity.
1.10 The MotorCal Platform contains contact details for various businesses and service providers. In placing these contact details on the digital assets, MotorCal makes no representation as to the relevance, currency or accuracy of such details. Nor does MotorCal make any representation as to the nature, safety or quality of the goods or services provided by the listed businesses and service providers, or as to their suitability for the purposes of persons using the contact details.
1.11 Any third-party name, contact details, hyperlink or trade mark depicted on the MotorCal Platform is for information purposes only and is not intended, and nor shall it be, an endorsement or a recommendation by or on the part of MotorCal of any person, product or service.
2. USER ELIGIBILITY
2.1 To create and account and use the MotorCal Services You must be able to form legally binding contracts under applicable law. MotorCal Services are not available to persons under 18 years of age. If You do not qualify to use the MotorCal Services, You must not use the services.
2.2 You may register an account either directly or via your Facebook or other supported social media credentials, provided such registration does not breach the terms and conditions of use of that social media platform.
2.3 While You are registered with MotorCal You must maintain control of Your MotorCal account. You may not deal with or allow another person to access Your account (including reviews and associated userid) in any way (including by allowing others to use Your account or by transferring or selling the account or any of its content to another person).
2.4 At its absolute discretion, MotorCal may refuse to allow any person to register or create an account with MotorCal or cancel or suspend any existing account.
2.5 Account names must not be:
(a) misleading or deceptive;
(b) offensive; or
(c) in violation of any law or Third-Party rights.
3. USER’S OBLIGATIONS
3.1 You agree that at all times:
(a) You will comply with this Agreement (including all MotorCal Policies) and all applicable laws and regulations;
(b) You will post only accurate information on the MotorCal Platform, and ensure that all information supplied by You is and remains current, accurate and true;
(c) all content (whether provided by MotorCal, a User or a Third-Party) on the MotorCal Platform may not be used on Third-Party sites or for other business purposes without MotorCal’s prior permission; and
(d) You will ensure that You are aware of, and comply with any laws that apply to You as a MotorCal Customer or an Organiser, or in relation to any other way(s) that You use the MotorCal Platform.
3.2 You must not use the MotorCal Platform for any illegal or unlawful purpose or in such a manner as to cause loss or damage, including reputational damage, to MotorCal or other Users. Your use of the MotorCal Platform must not, in any way whatsoever, be potentially or actually harmful to MotorCal or any other person. “Harm” includes, but is not limited to, economic loss that will or may be suffered by MotorCal. Without limiting any provision of this Agreement, any information You supply to MotorCal must be up to date and kept up to date, and any such information and any use of the MotorCal Platform and MotorCal Services must not:
(a) be false, inaccurate or misleading or deceptive;
(b) be fraudulent or involve illegal conduct;
(c) infringe any third-party’s copyright, patent, trademark, trade secret or other proprietary rights or intellectual property rights, rights of publicity, confidentiality or privacy;
(d) violate any applicable law, statute, ordinance or regulation (including, but not limited to, those governing export and import control, consumer protection, unfair competition, criminal law, antidiscrimination and trade practices or fair trading laws);
(e) be defamatory, libellous, threatening or harassing;
(f) be obscene or contain any material that, in MotorCal’s sole and absolute discretion, is in any way inappropriate or unlawful, including, but not limited to obscene, inappropriate or unlawful images;
(g) contain any malicious code, data or set of instructions that intentionally or unintentionally causes harm or subverts the intended function of any MotorCal Platform, including, but not limited to viruses, Trojan horses, worms, time bombs, cancelbots, bots, Easter eggs or other computer programming routines that may damage, modify, delete, detrimentally interfere with, surreptitiously intercept, access without authority or expropriate any system, data or personal information, or access the MotorCal Platform or MotorCal Services;
(h) impose an unreasonable or disproportionately large use or access of the MotorCal Platform or MotorCal services
3.3 You grant to MotorCal an unrestricted, worldwide, royalty-free licence to use, reproduce, modify and adapt any content and information posted by You on the MotorCal Platform, for the purpose of including that material and information on the MotorCal Platform and as otherwise may be required to provide the MotorCal Service, for the general promotion of the MotorCal Service and as permitted by this Agreement. You unconditionally waive all moral rights (as defined in the Australian Copyright Act 1968) that You may have in respect of any content and information posted on the MotorCal Platform by You.
3.4 You must not use the MotorCal Platform or MotorCal Services to promote third-party websites, goods or services or deep-link the MotorCal Platform without MotorCal’s prior approval or for any purpose other than that set out in 1.1.
3.5 Your interactions with Organisers or other Users found on or through the MotorCal Services or the MotorCal Platform, including payment for and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between You and such User or Organiser. You should make whatever investigation You deem necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that MotorCal shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
3.6 You agree that If there is a dispute between Users using the MotorCal Services or MotorCal Platform, or between Users and any Third-Party, you agree that MotorCal is under no obligation to become involved. MotorCal does not offer or provide refunds to Users who have made purchases from other Users via the MotorCal Services or MotorCal Platform. Any refunds are the obligations of the provider of the goods or services, as agreed between customer and provider. In the event that You have a dispute with one or more other Users, You release MotorCal and our employees and agents from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or MotorCal Services or MotorCal Platform.
3.7 Where you provide Your contact details and elect to receive ‘push’ messages originating from MotorCal either via the Platform or on your mobile telephone, You agree to bear all associated costs imposed by your internet or telephone service provider.
4. THIRD-PARTY SERVICES
4.1 MotorCal may from time to time include on the MotorCal Platform promotions for and links to services offered by third parties, including Organisers (“Third-Party Services”). These Third-Party Services are not provided by MotorCal.
4.2 Third-Party Services are offered to You pursuant to terms and conditions offered by the Third-Party. Third-Party Services may be promoted on the MotorCal Platform as a convenience to our Users who may find the Third-Party Services of interest or of use.
4.3 If You engage with any Third-Party Service provider Your agreement will be directly between You and that Third-Party Service provider.
4.4 MotorCal makes no representation or warranty as to the Third-Party Services.
5. IDENTITY VERIFICATION, MATCHING & REVIEWS
5.1 MotorCal may include tools to help MotorCal Users to verify the identity or bona fides of other MotorCal Platform Users, or to match MotorCal Customers with potential Organisers who may be able to provide requested Event Information (“Identity Verification and Matching Services”). These tools may include mobile phone verification technology, algorithms, verification of payment information, a “Reviews” feature (allowing a User of the MotorCal Service to request other Users to post a reference on the MotorCal Platform endorsing that User), and integration with social networking sites such as Facebook, Twitter and LinkedIn.
5.2 You agree that Identity Verification and Matching Services may not be accurate as they are dependent on User-supplied information, and that MotorCal makes no warranty as to the accuracy of the Identity Verification Services, or the suitability of any MotorCal User or Organiser so matched. Identity Verification and Matching Services are provided for Your convenience only and are not recommendations by MotorCal.
5.3 The Identity Verification and Matching Services may be modified at any time.
6.1 The MotorCal Platform and MotorCal Services are made available in exchange for the price displayed, and in the currency quoted from time to time on the relevant App Store (“Price”). Users are solely responsible for any fees or charges levied by their financial institution.
6.2 Any change to the Price or fees and the terms applying to payments will be notified to you by sending a message to Your User Account, Your email address held on file, or by posting the information on the MotorCal website, and You will have an opportunity to accept or decline continued MotorCal Services at that time.
7. LIMITATION OF LIABILITY
7.1 Except for liability in relation to breach of any implied condition, warranty or guarantee, including under the Competition and Consumer Act 2010 (Cth), the exclusion of which from a contract would contravene any statute or cause any part of this Agreement to be void (“Non-excludable Term”), to the extent permitted by law MotorCal specifically disclaims all liability for any loss or damage (actual, special, direct, indirect and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed (including, without limitation, loss or damage relating to any inaccuracy of information provided, or the lack of fitness for purpose of any goods or service supplied), arising out of or in any way connected with any transaction between MotorCal Customers and Organisers, or between MotorCal Users.
7.2 Except for liability in relation to a breach of any Non-excludable Term, to the extent permitted by law, MotorCal specifically disclaims all liability for any loss or damage (actual, special, direct, indirect and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed (including, without limitation, loss or damage relating to any inaccuracy of information provided, or the lack of fitness for purpose of any goods or service supplied), arising out of or in any way connected with any transaction between You and any Third-Party Service Provider who may be included from time to time on the MotorCal Platform.
7.3 Except for liability in relation to a breach of any Non-excludable Term, MotorCal’s liability to any User of this service is limited to the total amount of fees, if any, paid by that User to MotorCal during the twelve month period prior to any incident causing liability of MotorCal.
7.4 MotorCal’s liability to You for a breach of any Non-excludable Term (other than a Non-excludable Term that by law cannot be limited) is limited, at our option to supplying again or paying the cost of supplying again, the MotorCal goods or services in respect of which the breach occurred.
9. NO WARRANTY
9.1 Except for liability in relation to any Non-excludable Term, the MotorCal Platform and MotorCal Service is provided on an “as is” basis, and without any warranty or condition, express or implied. To the extent permitted by law, we and our suppliers specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement to extent allowed by law. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
(a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful Third-Party conduct, or theft, destruction, alteration or unauthorised access to records;
(b) the accuracy, suitability or currency of any information on the MotorCal Platform, the MotorCal Services, or any related products (including Third-Party material and advertisements on the MotorCal Platform);
(c) costs incurred as a result of you using the MotorCal Platform or the MotorCal Services; and
(d) the services or operation in respect to hyperlinks which are provided for Your convenience.
10. VARIATIONS TO THE AGREEMENT
10.1 MotorCal may vary this Agreement from time to time. MotorCal will notify you of variations by sending a message to Your User Account, Your email address held on file, or by posting the information on the MotorCal website.
10.2 Except as stated in this Agreement, in a Policy, or as otherwise notified to You, all amended terms will automatically be effective 14 days after they are initially notified to You. Each time You use the MotorCal Platform in any manner after the expiry of that 14-day period or such other notice period notified to You, You acknowledge any changes to the Agreement (including the Policies) and confirm Your agreement to be bound by the Agreement as it may have been varied.
10.3 If You do not agree with any changes to this Agreement (or any of our Policies), You must terminate Your MotorCal account and stop using the MotorCal Services. Except as specifically described in or authorised by this Agreement, the terms of this Agreement and any MotorCal Policy cannot be amended except in writing signed by You and MotorCal.
11. NO AGENCY
11.1 No agency, partnership, joint venture, employee-employer or other similar relationship is created by this Agreement. In particular, You have no authority to bind MotorCal, its related entities or affiliates in any way whatsoever. MotorCal confirms that all Third-Party Services that may be promoted on the MotorCal service are provided solely by such Third-Party Service providers. To the extent permitted by law, MotorCal specifically disclaims all liability for any loss or damage incurred by You in any manner due to the performance or non-performance of such Third-Party Service.
11.2 Without limiting 11.1, each Organiser is an independent contractor and no agency, partnership, joint venture, employee-employer or other similar relationship is created by this Agreement.
12.1 You agree to indemnify, defend and hold harmless us and our officers, directors, employees, agents, information providers, partners, advertisers, licensors and suppliers from and against all losses, expenses, damages and costs, including reasonable solicitor’s fees, resulting from any violation of this Agreement, including but without limitation, breaches of Your obligations under this Agreement, or any activity related to Your User Account (including infringement of third parties’ intellectual property rights anywhere in the world or negligent or wrongful conduct) by you or any other person accessing the MotorCal Platform using Your User Account.
12.2 If You are an Organiser, you further agree to indemnify, defend and hold harmless us and our officers, directors, employees, agents, information providers, partners, advertisers, licensors and suppliers from and against all losses, expenses, damages and costs, including reasonable solicitor’s fees, resulting from any Event or Event Information or any activity related to Your provision of any good or services in connection with this Agreement (including infringement of third parties’ intellectual property rights anywhere in the world or negligent or wrongful conduct) by you or any other person providing the goods or services to a MotorCal Customer on your behalf.
12.3 If You are a MotorCal Customer, you further agree to indemnify, defend and hold harmless us and our officers, directors, employees, agents, information providers, partners, advertisers, licensors and suppliers from and against all losses, expenses, damages and costs, including reasonable solicitor’s fees, resulting from any activity in connection with this Agreement or the Event Information (including infringement of third parties’ intellectual property rights anywhere in the world or negligent or wrongful conduct) by you or any other person receiving the goods or services from an Organiser on your behalf.
13.1 Except as stated otherwise, any notices must be given by registered ordinary post or by email, either to MotorCal’s contact address as displayed on the MotorCal Platform, or to Your contact address as provided at registration. Any notice shall be deemed given:
(a) if sent by email, 24 hours after email is sent, unless the MotorCal Customer is notified that the email address is invalid or the email is undeliverable, and
(b) if sent by pre-paid post, three Business Days after the date of posting, or on the seventh Business Day after the date of posting if sent to or posted from outside Australia. In this section, “Business Day” means a day on which banks are open for general business in Melbourne, Victoria, other than a Saturday, Sunday or public holiday.
(c) Notices related to performance of any Third-Party Service must be delivered to such Third-Party as set out in Third-Party Service Provider terms and conditions.
14. MEDIATION AND DISPUTE RESOLUTION
14.1 You must resolve disputes (including claims for returns or refunds) with other Users directly. You acknowledge and agree that MotorCal may, in its absolute discretion, provide such of Your information as it decides is appropriate, to other parties involved in the dispute.
14.2 If You have a complaint about the MotorCal Service please contact us at firstname.lastname@example.org
14.3 If MotorCal provides information of other MotorCal Users to You for the purposes of resolving disputes under this clause, You acknowledge and agree that such information will be used only for the purpose of resolving the dispute (and no other purpose) and that you will indemnify MotorCal against any claims relating to any other use of information not permitted by this Agreement.
15.1 Either party may terminate an account and this Agreement at any time for any reason.
15.2 Third-Party Services are subject to Third-Party Service provider terms and conditions.
15.3 Clauses 7, 9, 11, 12, and 14 and any other terms, which by their nature should continue to apply, will survive any termination or expiration of this Agreement.
16.1 This Agreement is governed by the laws of Victoria, Australia. You and MotorCal submit to the exclusive jurisdiction of the courts of that State.
16.2 The provisions of this Agreement are severable, and if any provision of this Agreement is held to be invalid or unenforceable, such provision may be removed and the remaining provisions will be enforceable.
16.3 This Agreement sets out the entire understanding and agreement between You and MotorCal with respect to its subject matter.