Effective Date: 28 August 2015 Welcome to the Smidgit.com ("Smidgit™") web site, this is located at http://www.smidgit.com (the “Web Site”). The following Terms of Service ("TOS") contain the terms and conditions that govern your use of the Web Site and Smidgit™ Service (as defined below). These TOS describe your rights and responsibilities and what you can expect from the Smidgit™ Service. Use of the Smidgit™ Web Site constitutes acceptance of these TOS. If you do not agree with any of these terms, do not access or otherwise use the Web Site or any information or materials contained on the Web Site. Your use of the Web Site shall be deemed to be your agreement to abide by each of the terms set forth below. Smidgit™ reserves the right to add, delete and/or modify any of the terms and conditions contained in this TOS, at any time and in its sole discretion, by posting a change notice or a new agreement on the Smidgit™ Web Site. In the event of substantive changes to this TOS, you may be notified by email. If any modification is unacceptable to you, your only recourse is to not use the Web Site and the Smidgit™ Service. Your continued use of the Smidgit™ Web Site following posting of a change notice or new TOS on the Smidgit™ Web Site will constitute binding acceptance of the changes. 1. The Smidgit™ Service Smidgit™ provides a number of Internet-based services through the Web Site (all such services, collectively, the "Smidgit™ Service"). One such service enables users to purchase software (collectively, "Products"). Users who wish to participate in the Smidgit™ Affiliate Program must enter into the Affiliate Agreement. Smidgit™ allows users to browse the Web Site and purchase Products. Smidgit™ may offer a number of other services on its Web Site which may change from time to time. 2. Use of the Web Site and Smidgit™ Service 2.1 Eligibility. Smidgit™ will only knowingly provide the Smidgit™ Service to parties that can lawfully enter into and form contracts under applicable law. If you are under the age of 18, but at least 13 years of age, you may use the Smidgit™ Service only under the supervision of a parent or legal guardian who agrees to be bound by these TOS. The Smidgit™ Service is intended for people of all ages. 2.2 Compliance with TOS and Applicable Law. You must comply with all of the terms and conditions of these TOS, the applicable agreements and policies referred to below, and all applicable laws, regulations and rules when you use the Smidgit™ Service and the Web Site. 2.3 Your License to Use the Web Site and the Smidgit™ Service. (a) Smidgit™ solely and exclusively owns all intellectual property and other rights, title and interest in and to the Smidgit™ Service and Web Site, except as expressly provided for in these TOS. For example and without limitation, Smidgit™ owns the trademarks SMIDGIT™, SMIDGIT.COM, SMIDGIETM; the copyrights in and to the Web Site, and certain technology used in providing the Smidgit™ Service. You will not acquire any right, title or interest therein under these TOS or otherwise. (b) Smidgit™ grants you a limited revocable license to access and use the Web Site and the Smidgit™ Service for its intended purposes, subject to your compliance with these TOS. This license does not include the right to collect or use information contained on the Web Site for purposes prohibited by Smidgit™; to compete with Smidgit™; create derivative works based on the content of the Web Site; or download or copy the Web Site (other than page caching). If you use the Web Site in a manner that exceeds the scope of this license or breach this TOS, Smidgit™ may revoke the license granted to you. (c) This Section 2.3 does not pertain to your intellectual property rights. For information regarding your intellectual property rights, please see Section 15. 2.4 Third-Party Services. Smidgit™ may provide links on the Web Site to other websites that are not affiliated with, under the control of, or otherwise maintained by Smidgit™, and may use third parties to provide certain services accessible through the Web Site. Smidgit™ does not control those third parties or their services, and you agree that Smidgit™ will not be liable to you in any way for your use of such services. These third parties may have their own terms of use and other policies. You must comply with such terms and policies as well as these TOS when you use these services. If any such terms or policies conflict with Smidgit™'s TOS, agreements or policies, you must comply with Smidgit™'s TOS, agreements or policies, as applicable. Smidgit™ does not endorse or make any representations or warranties about third party sites or any information, software, or other products or services found there. 3. Hyperlinks to this Site You are granted a limited, nonexclusive right to create a "hypertext" link to the Web Site provided that such link is to the entry page of this Web Site and does not portray Smidgit™ or any of its other products or services in a false, misleading, derogatory, or otherwise defamatory manner. This limited right may be revoked at any time for any reason whatsoever. You may not use, frame, or utilize framing techniques to enclose any Smidgit™ trademark, logo or trade name or other proprietary information including the images found at the Web Site, the content of any text or the layout/design of any page or any form contained on a page without the express written consent of Smidgit™. 4. General Rules 4.1 Prohibited Use. You may only use the Smidgit™ Service as expressly permitted by Smidgit™. You may not cause harm to the Web Site or the Smidgit™ Service. Specifically, but not by way of limitation, you may not: (i) interfere with the Smidgit™ Service by using viruses or any other programs or technology designed to disrupt or damage any software or hardware; (ii) modify, create derivative works from, reverse engineer, decompile or disassemble any technology used to provide the Smidgit™ Service; (iii) use a robot, spider or other device or process to monitor the activity on or copy pages from the Web Site, except in the operation or use of an internet "search engine", hit Page 3 of 7 Updated: 8 June 2011 counters or similar technology; (iv) collect electronic mail addresses or other information from third parties by using the Smidgit™ Service; (v) impersonate another person or entity; (vi) use any meta tags, search terms, key terms, or the like that contain Smidgit™'s name or trademarks; (vii) engage in any activity that interferes with another user's ability to use or enjoy the Smidgit™ Service; or (viii) assist or encourage any third party in engaging in any activity prohibited by these TOS. 4.2 Privacy Policy. By entering into these TOS, you agree to Smidgit™'s collection, use and disclosure of your personal information in accordance with the Privacy Policy. 4.3 Ordering Policies. If you purchase Products, you agree to do so in accordance with Smidgit™'s End User License Agreement (EULA). The EULA is available as part of the download of the SmidgitTM application. 4.4. Password Restricted Areas of the Site. Eventually our Web Site may be password restricted to registered users ("Password-Protected Areas"). If you have registered as an authorized user to gain access to these Password-Protected Areas, you agree that you are entirely responsible for maintaining the confidentiality of your password, and agree to notify Smidgit™ if the password is lost, stolen, disclosed to an unauthorized third party, or otherwise may have been compromised. You agree that you are entirely responsible for any and all activities that occur under your account, including any fees that may be incurred under your password-protected account, whether or not you are the individual who undertakes such activities. You agree to immediately notify Smidgit™ of any unauthorized use of your account or any other breach of security in relation to your password or the Web Site that is known to you. 5. Technical Support 5.1 Description. As part of the Smidgit™ Service, Smidgit™ offers a service (the "Technical Support Service") that allows you to submit and upload files, data, and other content (collectively, "Content") to support@smidgit.com for all technical issues and see our Frequently Asked Questions page. 5.2 Delivery of Content. You will upload or deliver to Smidgit™ all Content that you feel is relevant to your Technical Support issue. Smidgit™ may, in its sole and exclusive discretion, determine whether any Content provided complies with the issue and is satisfactory for use with the Technical Support. 6. Reservation of Rights 6.1 Monitoring. Smidgit™ reserves the right, but does not assume the obligation, to monitor transactions and communications that occur through the Web Site. If Smidgit™ determines, in its sole and absolute discretion, that you or another Smidgit™ user will breach a term or condition of these TOS or that such transaction or communication is inappropriate, Smidgit™ may cancel such transaction or take any other action to restrict access to or the availability of any material that may be considered objectionable, without any liability to you or any third party. 6.2 Modification of the Service. Smidgit™ may modify the Smidgit™ Service at any time with or without notice to you, and will incur no liability for doing so. 7. Submissions 7.1 Your Submissions. When you submit questions, comments, suggestions, ideas, message board postings, material submitted via web forms, contest entries, communications, MP4 or other movie format, still images or any other information ("Submissions"), you grant Smidgit™ permission to use such Submissions for marketing and other promotional purposes, including the right to sublicense. You agree that Smidgit™ will have no obligation to keep any Submissions confidential. You will not bring a claim against Smidgit™ based on "moral rights" or the likes arising from Smidgits™' use of a Submission. This Section does not apply to your Content that you use in connection with the Technical Support Service. 7.2 Submissions by Others. Smidgit™ does not control the content posted by third parties via the Web Site and, as such, does not guarantee the accuracy, integrity or quality of such content. You understand that by using the Web Site, you may be exposed to content that is offensive, indecent or objectionable. Under no circumstances will Smidgit™ be liable in any way for any content, including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any content posted emailed, transmitted or otherwise made available via the Web Site by third parties. 8. Representations and Warranties 8.1 Mutual Representations and Warranties. You represent and warrant to Smidgit™ and Smidgit™ represents and warrants to you: (i) that you or it has the full power and authority to enter into and perform under these TOS, (ii) the execution and performance of your or its obligations under these TOS do not constitute a breach of or conflict with any other agreement or arrangement by which you or it is bound, and (iii) these TOS are a legal, valid and binding obligation of the party entering into these TOS, enforceable in accordance with their terms and conditions. 8.2 By You. You represent and warrant to Smidgit™ that, in your use of the Smidgit™ Service, you: (i) will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity or other legal right of any third party and (ii) will comply with all applicable laws, rules, and regulations. You further represent and warrant to Smidgit™ that: (i) there are no claims, demands or any form of litigation pending, or to the best of your knowledge, threatened with respect to any of your Content; (ii) Smidgit™ will not be required to make any payments to any third party in connection with its use of your Content, except for the expenses that Smidgit™ incurs in providing the Smidgit™ Service; (iii) the use of any instructions, formulae, recommendations, or the like contained in your Content will not cause injury to any third party; and (iv) your Content does not contain viruses or any other programs or technology designed to disrupt or damage any software or hardware. 9. Disclaimers and Exclusions 9.1 DISCLAIMER OF WARRANTIES. SMIDGIT™ PROVIDES THE WEB SITE AND SMIDGIT™ SERVICE ON AN "AS IS" AND "AS AVAILABLE" BASIS. SMIDGIT™ DOES NOT REPRESENT OR WARRANT THAT THE WEB SITE, SMIDGIT™ SERVICE OR ITS USE: (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. SMIDGIT™ MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TOS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT. 9.2 EXCLUSION OF DAMAGES. SMIDGIT™ WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE SMIDGIT™ SERVICE, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 10. Limitation of Liability LIMITATION OF LIABILITY. IN NO EVENT WILL SMIDGIT™'S LIABILITY IN CONNECTION WITH THESE TOS EXCEED THE GREATER OF (i) THE AMOUNT PAID TO SMIDGIT™ BY YOU DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY, OR (ii) ONE HUNDRED DOLLARS ($100). 11. Indemnification You must indemnify and hold Smidgit™ and its employees, representatives, agents, affiliates, directors, officers, managers and shareholders (the "Parties") harmless from any damage, loss, or expense (including without limitation, attorneys' fees and costs) incurred in connection with any third-party claim, demand or action ("Claim") brought against any of the Parties alleging that you have breached any of these TOS through any act or omission. If you have to indemnify Smidgit™ under this Section, Smidgit™ will have the right to control the defense, settlement, and resolution of any Claim at your sole expense. You may not settle or otherwise resolve any Claim without Smidgits™ express written permission. 12. Termination 12.1 Termination. You agree that, under certain circumstances and without prior notice, Smidgit™ may suspend or terminate your use of the Web Site or Smidgit™ Service, including without limitation, if it believes, in its sole and absolute discretion that you have breached a term of these TOS. You acknowledge and agree that all suspensions and terminations shall be made in the sole discretion of Smidgit™ and that Smidgit™ shall not be liable to you or any other party for the termination of your access to the Web Site. 12.2 Survival. Notwithstanding Section 11.1 above, these TOS will survive indefinitely unless and until Smidgit™ chooses to terminate them. 12.3 Effect of Termination. If you or Smidgit™ terminates your use of the Web Site or the Smidgit™ Service, Smidgit™ may delete any Content or other materials relating to your use of the Smidgit™ Service on Smidgit’s™ servers or otherwise in its possession and Smidgit™ will have no liability to you or any third party for doing so. 13. Notice All notices required or permitted to be given under these TOS will be in writing and delivered to the other party by any of the following methods: (i) postal mail, (ii) overnight courier, or (iii) electronic mail. If you give notice to Smidgit™, you must use the following addresses: PO Box 276 Flinders Lane, Melbourne, Victoria 8009. If Smidgit™ provides notice to you, Smidgit™ will use the contact information provided by you to Smidgit™. All notices will be deemed received as follows: (i) if by delivery by postal mail, seven (7) business days after dispatch, (ii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iii) if by electronic mail, business days, Monday to Friday, 24 hours after the message was sent, if no "system error" or other notice of non-delivery is generated. If applicable law requires that a given communication be "in writing," you agree that email communication will satisfy this requirement. 14. Dispute Resolution All disputes arising out of, relating to or connected with these TOS or your use of any part of the Smidgit™ Service will be exclusively resolved under confidential binding arbitration held in Melbourne, Victoria, Australia before and in accordance with the Rules of the Australian Dispute Resolution Association, by a sole arbitrator applying Victorian law (without regard for conflicts of law principles). The arbitrator's award will be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under these TOS will be joined to an arbitration involving any other party subject to these TOS, whether through class arbitration proceedings or otherwise. Any action to enforce an arbitrator's award will be brought in a federal or state court located in Melbourne, Australia. Each party hereby irrevocably submits to the personal jurisdiction of the Federal and Victorian State courts in Melbourne. By entering into these TOS, you hereby irrevocably waive any right you may have to join claims with those of others in the form of a class action or similar procedural device. Any claim arising out of, relating to or connected with these TOS or your use of any part of the Smidgit™ Service must be asserted individually. Notwithstanding anything to the contrary in this Section 14, Smidgit™ may seek equitable relief, including, without limitation, injunctive relief and specific performance, without the requirement of posting a bond or other security or proving money damages are insufficient, from a court of competent jurisdiction. 15. Notification of Claims of Infringement Smidgit™ respects the intellectual property of others, and we ask our users to do the same. Smidgit™ may, in appropriate circumstances and at our discretion, terminate service to users who infringe the intellectual property rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please contact us at copyright@smidgit.com and provide Smidgit™'s copyright agent, in writing, the following information required by the Digital Millennium Copyright Act, 17 U.S.C. § 512: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed, including the URL (i.e., web page address) of the location where the copyrighted work exists or a copy of the copyrighted work; (iii) identification of the URL or other specific location on the Web Site where the material that you claim is infringing is located; (iv) your address, telephone number, and email address; (v) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Smidgit™'s agent for notice of claims of copyright infringement on this site can be reached using the contact information below. 16. Miscellaneous These TOS will be binding upon each party hereto and its successors and permitted assigns, and governed by and construed in accordance with the laws of the State of Victoria, Australia without reference to conflict of law principles. These TOS will not be assignable or transferable by you without the prior written consent of Smidgit™. These TOS (including all of the policies and other Agreements described in this TOS, which are hereby incorporated herein by this reference) contain the entire understanding of the parties regarding its subject matter, and supersedes all prior and contemporaneous agreements and understandings between the parties regarding its subject matter. No failure or delay by a party in exercising any right, power or privilege under these TOS will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege. You and Smidgit™ are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by these TOS. The invalidity or unenforceability of any provision of these TOS will not affect the validity or enforceability of any other provision of these TOS, all of which will remain in full force and effect. If you have questions or concerns regarding these TOS, you should contact Smidgit™ by e-mailing info@smidgit.com and writing "Terms of Use" in the subject line. You may also write to:- Smidgit Headquarters, PO Box 276, Flinders Lane, Melbourne, Victoria, 8009 Australia  BEFORE SUBMITTING YOUR PERSONAL DATA PLEASE REVIEW THE FOLLOWING: This website is owned and operated by Tarob International Pty Ltd and or its Affiliates. Tarob International Pty Ltd respects your privacy and is committed to protecting your personal information. Purpose of this Document The purpose of this Privacy Policy is to explain to you our services, the types of data obtained through your visits to our website or when you buy products or services directly from us, to explain how we use these data and what protection do we offer to your data, whether we disclose them to others, and present you the options you have for managing your data. Tarob International Pty Ltd manages your personal data, complying with applicable data protection and privacy laws and offers notice, choice and consent regarding processing your personal data. Tarob International Pty Ltd sells a software program called Smidgit™ which is an animated online reminder program to remind users at a computer to perform an action or movement. Tarob International Pty Ltd collects, processes and uses your personal data, in connection with the fulfilment of you downloading the program Smidgit ™ and from any emails you may send to our office. Some services may provide links from our website to the websites of third parties who may provide services to you directly. All transactions made on these third parties sites are governed by their privacy policies that may be different from our own. Personal Data Tarob International Pty Ltd collects, processes and uses your personal data, such as, but without limiting to, your first and last name, mailing address, email address, employer, job title, department, telephone and fax numbers, IDs and other personal information required to be collected in order for us to provide you with the type or nature of ordered products/services. Some of the information that we ask you to provide is identified as mandatory and some as voluntary. If you do not provide the mandatory data you will not be able to engage in any order activity. As a visitor to our Site, you can engage in many activities without providing any personal information, but in connection with other optional activities, Tarob International Pty Ltd may ask you to provide certain information by filling out and submitting an online form. All this information will be collected, processed and used by Tarob International Pty Ltd only for the specific activity that you are submitting to and according to this privacy policy and to the extent permitted by law. Use of Personal Data Personal data provided to Tarob International Pty Ltd is primarily processed and used on our servers located at Tarob International Pty Ltd headquarters. When necessary, in order to fulfil our contractual obligations to you, the personal data that you provide to us will be collected, used and transmitted to our employees or Tarob International Pty Ltd affiliates or third parties providing services to Tarob International Pty Ltd. Tarob International Pty Ltd is using your personal data in order: 1. to process and approve an order from you and process and accept the online payment, including notifying you about the status of the order; 2. to invoice the products/services ordered by you; 3. to deliver the products/services or the keys/access codes to your address; 4. to assure the security of the transaction by applying antifraud filters, to register your purchase to the manufacturer; 5. to provide you with customer and technical support; to inform you about product upgrades, special offers, and other products and services and selected third parties to receive such communications; 6. to assure that the web page content is relevant to your needs; 7. to deliver services you opted for; 8. to support our intent to show you the most relevant content and to improve usability of the website; 9. to maintain and improve the security of the services; 10. to permit access to restricted areas of the websites. Some data such as the types of used services and how many users we receive daily may be used by Tarob International Pty Ltd for statistical, marketing or promotional purposes. This kind of information is collected in aggregate/statistical form, without identifying any user individually. Protection of Personal Data Your personal data provided to Tarob International Pty Ltd while you are shopping on our site is limited and to all of the above. All credit card details are collected and stored on the PAYPAL secure payment system on their secure servers using SSL (Secure Socket Layers), using firewalls and digital certificates issued by VerisignTM. Such secure servers make almost impossible any attempt of third parties to access and/or use your personal data without authorization. Sharing Personal Data Tarob International Pty Ltd may in some cases provide your personal data in order to register your purchase with the manufacturer or service provider for warranty, technical support, after sales service or similar purposes. Also, Tarob International Pty Ltd may hire other companies to provide services in connection with your transaction or after sales services. These companies may have access to personal data as required to permit them to perform their obligations to us in this regard, but only in connection to your order. Disclosure and Management of Personal Data Tarob International Pty Ltd is doing its best to keep your personal data accurate and up-to-date, but if you find out that your personal data is not accurate please contact Tarob International Pty Ltd in writing. Tarob International Pty Ltd will make all necessary modifications only after investigations and based on written evidence of such modifications. Your personal data may be disclosed to you directly by Tarob International Pty Ltd upon your written request, provided that all or part of your request do not: 1. lead to breach of applicable law, 2. harm third parties or 3. provide sufficient information to verify your identity. Cookies Tarob International Pty Ltd uses "cookies" and other tracking methods in order to track your visit to our site. A cookie is a small amount of data that is transferred to your browser by a web server and can only be read by the server that gave it to you, but Tarob International Pty Ltd does not use this information to identify you personally. A cookie can't read data off your hard disk or read cookie files created by other websites. We may collect information from your web sessions by using cookies, to determine, for example, user traffic patterns, and the effectiveness of our navigational structure. You can set your browser to notify you when you receive a cookie, giving you the chance to decide whether or not to accept it. (For some Web pages that require an authorization, cookies are not optional. Users choosing not to accept cookies will probably not be able to access those pages.) Page 4 of 4 Updated: 8 June 2011 Your Choices You can decide if you want, or not, to provide personal data to Tarob International Pty Ltd, but if you do not provide personal data you may not be able to make purchases, enlist services or access certain options. When you are making a purchase we will offer you a choice to receive communications regarding product information, special offers or any other marketing information, but you may also choose to unsubscribe later at any time. If you choose not to receive these communications, we will not use your personal data for this purpose. Modifications Tarob International Pty Ltd reserves the right to change the Privacy Policy from time to time and will provide notice of material changes on our website. Your continued use of the Site, or any materials or services accessible through it, after such notice has been posted constitutes your acceptance of the changes. Applicable Law The present Privacy Policy and/or any dispute that might arise between Tarob International Pty Ltd and/or its affiliates and you are governed by the applicable law of Tarob International Pty Ltd, as the case may be. All the disputes will be handled initially on an amiable basis and in the event that such a dispute cannot be closed in 30 days the dispute shall be settled by the competent courts from the territorial jurisdiction of TAROB INTERNATIONAL PTY LTD, as the case may be. Last update: 2 August 2018 |
