TOUCO APP USER TERMS AND CONDITIONS

1.1 The mobile application (the Touco App) and the Services made available through the Touco App is created, operated and controlled by REMCM Pty Ltd (ACN 682 492 253) (Touco, we, us or our).

1.2 By downloading, accessing and using the Touco App and the Services, you acknowledge that you have read, understood and accept the Touco App User Terms and Conditions (agreement), together with our Privacy Policy, and agree to abide by them. If you do not accept this agreement, you must not download, access and use the Touco App and Services

1.3 In this agreement, you and your means the individual who downloads, accesses and uses the Touco App and the Services (and includes anyone acting on your behalf or with your express or implied authority).

2.1 The Touco App is a mobile application that allows users to categorise and create different outfit and wardrobe combinations from photographs of their clothing which have been uploaded by the user onto the Touco App (the Services). Our role in providing you with access and use of the Touco App and the Services should be construed strictly in this context only.

2.2 By downloading, accessing and using the Touco App, Touco grants you a non-exclusive, non-transferable, personal, revocable and non-sublicensable licence to download, install, access and use the Touco App and the Services for the Term. You will not acquire or be entitled to any rights other than those rights expressly set out in this agreement.

3.1 This agreement will commence on the date you download and access the Touco App (Commencement Date) and shall continue until terminated in accordance with its terms (Term).)

4.1 If you wish to access and use the Touco App and Services, you must:

1. (a) download the Touco App from the Apple Store/Google Play Store; and

2. (b) be over 18 years of age, and legally able to enter into contractual relations. If you are under the age of 18 years, you may only access and use the Touco App and the Services if you have your parents’/guardians’ permission to download, access and use the Touco App and the Services. Your continued use of the Touco App and the Services constitutes an acknowledgement by you that you are: (i) over 18 years of age; or (ii) under 18 years of age, but have your parents’/guardians’ permission to access and use the Touco App and the Services and that your parents/ guardians have agreed to abide by this agreement.

4.2 Touco has the right to suspend or terminate your access or use of all or any part of the Touco App and/or the Services, at any time, if, in our opinion, you have failed to comply with any of the provisions of this agreement.

5.1 To access and use the Touco App and the Services, you must:

1. (a) download the Touco App;

2. (b) obtain and maintain all equipment, hardware and software required by you to use and/or access the Touco App and the Services;

3. (c) comply with all reasonable directions, policies and guidelines of Touco as advised from time to time; and

4. (d) carry out all of your responsibilities set out in this agreement in a timely and efficient manner.

5.2 We will not be liable to you or anyone else if, for any reason, the Touco App or the Services are unavailable at any time or for any period. From time to time, we may suspend or restrict access to all, or some parts of, the Touco App and/or the Services. You are also responsible for ensuring that all persons who access the Touco App and the Services (such as through your mobile phone or other device) are aware of this agreement, and that they comply with them.

6.1 You must not: (nor attempt to do) any of the following:

1. (a) introduce, access, store, distribute or transmit any viruses, worm, trojan or other malicious code into the Touco App;

2. (b) violate any Touco IP or any third party Intellectual Property Rights;

3. (c) copy, modify, duplicate, create derivative works from, frame, mirror, republish, transmit or distribute all or any portion of the Touco App, or any other third party software that you may access or use through the Touco App, in any way;

4. (d) download or access all or any part of the Touco App and/or the Services in order to build a product, service or code which competes or reproduces the Touco App and/or the Services (in full or part);

5. (e) data mine the Touco App or modify, alter, adapt, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Touco App in any way, or otherwise learn the source code or algorithms underlying the Touco App;

6. (f) license, sell, rent, lease, transfer, assign or otherwise commercially exploit the Touco App and/or the Services; and

7. (g) use the Touco App to engage in any activity or conduct that is in breach of any Relevant Laws.

6.2 You must not access and use the Touco App and/or the Services:

1. (a) in any way that breaches any Relevant Laws;

2. (b) in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;

3. (c) to upload User Content is or could reasonably be considered to be obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, blasphemous, in breach of confidence or privacy or false and misleading;

4. (d) to upload User Content that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware;

5. (e) to upload User Content that may infringe the Intellectual Property Rights or other rights of any person; and

6. (f) for any business or commercial purpose or otherwise use the Touco App and the Services to gain a financial benefit or advantage.

6.3 We reserve the right to terminate your use of the Touco App and/or the Services if we believe you are in breach of this agreement or you are misusing Touco App and/or the Services.

7.1 Subject to your compliance with the terms of this agreement, Touco shall use reasonable endeavours to provide you with access to and use of the Touco App and the Services..

7.2 The undertaking in clause 7.1 shall not apply in the event of:

1. (a) any non-conformance which is caused, or contributed, by use of the Services and the Touco App contrary to our instructions or the terms of this agreement;

2. (b) modification or alteration of the Services and the Touco App by any party other than us or our duly authorised Personnel;

3. (c) the unsuitability or malfunction of the computer hardware or computer software in conjunction with which the Touco App and/or the Services are used;

4. (d) Force Majeure Events; and

5. (e) the unsuitability or malfunction of the Touco App and/or the Services when used in conjunction with any software, platforms, applications and tools supplied by a third party provider.

7.3 In the event that we fail to provide you with access and use of the Touco App and the Services accordance with clause 7.1, we shall use reasonable endeavours to correct any such non-conformance or provide you with an alternative means of accomplishing the desired performance. The foregoing constitutes your sole and exclusive remedy for any breach of clause 7.1.

8.1 We do not charge you a fee to download, access and use the Touco App and Services. However, at any time we may charge you a fee to access and use the Touco App and Services or charge you additional fees to access new functions or features of the Touco App on 30 days’ written notice to you. If you do not agree to these fee changes, you may terminate this agreement by written notice to Touco no later than 30 days after the date you received written notice of the fee changes. If you do not terminate the agreement within 30 days, you will have deemed to have accepted the fee changes.

9.1 You will retain ownership of your User Content and you will have sole responsibility for the legality, reliability, integrity, accuracy and quality of your User Content. To the maximum extent permitted by Relevant Laws, we do not warrant that any User Content displayed on the Touco App by you (or any Content or any third party products and services made available to you on, or via, the Touco App) is accurate, complete, reliable, current or error-free, nor do we make any warranty about the standard or quality of any Content, User Content or any third party products and services made available to you on, or via, the Touco App. You (and not Touco) are solely responsible for the completeness, accuracy, reliability, legality and quality of any User Content published by you on, or via, the Touco App.

9.2 You grant Touco a worldwide, non-exclusive, royalty-free and perpetual licence to use, disclose, reproduce, store, distribute, publish, export, adapt, edit, translate, produce derivative works from or copy, your User Content (and all Intellectual Property Rights contained therein) for any purpose, including for the purpose of:

1. (a) enabling Touco to provide the Touco App and the Services to you and otherwise perform our obligations and exercising our rights under this agreement;

2. (b) informing you about other products or services that Touco may offer from time to time or in relation to third party products and/or services offered by us or our Affiliates;

3. (c) complying with a legal requirement, such as a law, regulation, court order, subpoena, warrant, legal proceedings or in response to a law enforcement agency request; and

4. (d) using usage patterns, trends, and other statistical or behavioural data derived from use of the Touco App and/or the Services for the purposes of providing, operating, maintaining, or improving the Services, the Touco App, or our other products and services.

9.3 As all User Content is stored exclusively on your mobile device (and not on the Touco App), you acknowledge that Touco does not back-up or archive your User Content and therefore:

1. (a) you are responsible for maintaining back-ups of your User Content; and

2. (b) we are not liable to you for any Loss, destruction, alteration, corruption or disclosure of User Content caused by your acts or omissions or the acts of omissions of other users of the Touco App or any third party.

10.1 You acknowledge that we are the owner of the Touco App and the Services (or any Intellectual Property Rights contained therein) including any information, data or Content that may be provided to, or accessed by, you in connection with your use of the Touco App and the Services (including any modifications, enhancements of the foregoing) (collectively, the Touco IP). Accessing and using the Touco App and the Services do not give you (or anyone else) ownership of, or any right, title or interest in the Touco IP.

10.2 All Intellectual Property Rights discovered, developed or otherwise coming into existence as a result of, for the purposes of, or in connection with, the Touco App and the Services will automatically vest in, and are assigned to, Touco (Developed IP).

11.1 To the maximum extent permitted by Relevant Laws, we exclude all express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), in connection with the Touco App and the Services (or any other ancillary products or services made available through the Touco App).

11.2 Nothing contained in this agreement excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Competition and Customer Act 2010 (Cth) or any other national, State or Territory legislation where to do so is unlawful.

11.3 You acknowledge, and agree that to the maximum extent permitted by Relevant Laws, we make no representation, warranty or guarantee in relation to the availability, continuity, legality, completeness, reliability, accuracy, currency or security of the Touco App and/or the Services and we will not be liable if the Touco App and/or the Services becomes unavailable for any reason, including directly, or indirectly as a result of:

1. (a) telecommunications unavailability, interruption, delay, bottleneck, failure or fault;

2. (b) negligent, malicious, wilful acts or omissions of third parties (including third party service providers) or other users;

3. (c) maintenance (scheduled or unscheduled) carried out by us or any third party service provider, including in respect of any of the systems or network used in connection with the provision of the Touco App and the Services;

4. (d) services provided by third parties (including internet service providers) ceasing or becoming unavailable; or

5. (e) a Force Majeure Event.

11.4 You acknowledge that, to the maximum extent permitted by Relevant Laws, we do not make any warranty or representation that any data or information uploaded, published, shared or made available to you by us on the Touco App is accurate, complete, reliable, current or error-free, virus free or is suitable for any particular purpose or use under any specific conditions, and so is provided on an “as is” basis.

11.5 Touco shall use reasonable endeavours to make the Touco App and the Services available 24 hours a day, 7 days a week, except for:

1. (a) planned maintenance carried out at times advised in advance by Touco; and

2. (b) unscheduled maintenance which may need to be performed from time to time. Touco will, where practicable, use reasonable endeavours to conduct any unscheduled maintenance outside of Business Hours.

12.1 To the maximum extent permitted by Relevant Laws, we will not be liable to you, any other user or any third party for any:

1. (a) Consequential Loss; or

2. (b) Loss of, or damage to, any property or any personal injury or death to you, any other user or any third person,

arising out of, relating or connected to, the provision or use of, the Touco App and the Services (and any third party products and services provided in connection with the Touco App and the Services) and this agreement, regardless of the cause of action on which they are based, even if advised of the possibility of such damage occurring.

12.2 All risk in using the Touco App and the Services passes to you upon downloading the Touco App or otherwise accessing or using the Touco App and the Services (whichever is earlier).

12.3 Under no circumstances will Touco’s aggregate liability, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed the sum of $10.

12.4 You agree to defend, indemnify and hold us, our Affiliates and our Personnel (collectively, the Indemnified) harmless from and against any and all Claims and Losses (including legal costs on a full indemnity basis) that may be brought against the Indemnified or which the Indemnified may pay, sustain or incur as a direct or indirect result of, or arising out, of:

1. (a) access to, and use of, the Touco App and/or the Services by you;

2. (b) any breach of any third party’s Intellectual Property Rights, privacy rights or other rights caused by you; or

3. (c) any breach by you of this agreement.

13.1 All Personal Information you provide to us to download, access and use the Touco App and the Services, are subject to our Privacy Policy, which is incorporated into this agreement. You warrant that, in relation to any Personal Information comprising User Content or any other information disclosed to us on, or via, the Touco App and the Services:

1. (a) it has been collected in accordance with Privacy Laws;

2. (b) you have the authority to upload, post, publish or otherwise transmit such information on, or via, the Touco App; and

3. (c) you have obtained the informed consent of the individuals who are the subject of such Personal Information in order for us to use, disclose, store, transfer, process or handle it.

14.1 You may terminate this agreement at any time by deleting the Touco App from your mobile device or by providing us with written notice.

14.2 We may terminate or discontinue the Touco App or any function or feature of the Touco App and/or the Services at any time (without liability to you) by 30 days’ written notice to you, or by otherwise posting it on the Touco App.

14.3 You agree that we may, at any time and at our sole discretion, with or without cause or any notice to you, terminate your access to (either temporarily or permanently) the Touco App and/or the Services.

14.4 Touco may suspend or terminate this agreement by giving you written notice with immediate effect if you:

1. (a) commit any serious or repeated breaches or violations of this agreement, our policies and guidelines and any other agreements entered into between the parties;

2. (b) serious or repeated breaches or violations of another person’s Intellectual Property Rights or privacy rights;

3. (c) upload User Content (as the context permits) on, or, via, the Touco App and/or the Services, that brings, or has the capacity to bring, Touco, our Personnel and Affiliates and the Touco App into disrepute; and

4. (d) requests by law enforcement, court order or other government agencies.

14.5 Except as otherwise stipulated in this agreement, you agree that all such suspensions or terminations shall be made at our sole discretion and that we shall not be liable to you or any third party for any such suspension or termination.

15.1 On termination of this agreement for any reason:

1. (a) your User Content will no longer be accessible by you through the Touco App. We will delete all User Content, except Touco may be required to retain Personal Information in accordance with documentation retention and destruction laws. To delete all the User Content stored on your local device, you must delete the Touco App from your mobile device; and

2. (b) all licences to use the Touco App and the Services and rights of access granted under this agreement will immediately terminate.

16.1 We will not be responsible to you (or anyone else) if we are prevented from or delayed in performing our obligations, by acts, events, omissions or accidents beyond our reasonable control, including but not limited to, acts of God, governmental actions, shipping, postal or other relevant transport strike, failure or accident, lockouts or other labour difficulty, war or national emergency, epidemic, pandemic or mandatory government shut-down or lockdown, acts of terrorism, fire, explosion, flood, an act or omission of a third party, shortage of or inability to obtain any necessary materials, equipment, facilities or services, the failure of performance provided by others, internet interruption or virus, accidents or breakdown of plant, machinery, software, hardware or communication network, or default of hosting or data centre providers (Force Majeure Event).

17.1 Without notice to you, we may, at our absolute discretion, from time to tim

1. (a) change, add or delete the functions, features, performance, or other characteristics of the Touco App and/or the Services; or

2. (b) apply or install updates to, or new versions of, the Touco App

17.2 Some of the provisions contained in this agreement may also be superseded by provisions or notices published elsewhere on the Touco App. Any changes are effective immediately upon posting to the Touco App. Your continued use of the Touco App and the Services thereafter constitutes your acceptance of all such changes to the agreement.

17.3 Please read this agreement before using the Touco App and the Services as the agreement may have changed since the last time you accessed and used the Touco App and the Services. If you do not agree to any change, then you must immediately stop using the Touco App and the Services.

18.1 Touco may, at our absolute discretion, provide you with user support services during Business Hours in accordance with the Touco’s standard support services and maintenance policy (as amended from time to time)

18.2 If you require user support services or you are having difficulties accessing and using the Touco App and the Services, you may contact us by email at support@toucoapp.com.

19.1 You must, before resorting to court proceedings, refer any dispute with Touco under or relating to this agreement initially to a nominated representative of each party to endeavour to resolve the dispute within 20 days. If the dispute is not resolved within this period, then either party may, in its absolute discretion, initiate court proceedings.

20.1 If any provision in this agreement is found to be invalid or unenforceable by a court of law, such invalidity or unenforceability will not affect the reminder of this agreement which will continue in full force and effect.

21.1 You may not assign, transfer or deal in any other manner with all or any of your rights or obligations under this agreement without our prior written consent. To the extent permitted by Relevant Laws, we may, at our absolute discretion, assign, transfer or deal in any other manner with all or any of our rights or obligations under this agreement without your prior written consent

22.1 Clauses 6, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20, 22, 23, 24, 25, 26 and any other obligation which is expressed to, or by its nature, survive expiry or termination of this agreement, will survive expiry or termination of this agreement and are enforceable at any time at law or in equity.

23.1 NNo agency, principal-agent, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created between you and us by this agreement.

24.1 This agreement, any other documents referred to in it, represent the entire agreement between us and you in relation to the subject matter and supersedes any previous arrangements, agreements, representations, understandings or statements (whether verbal, in writing, or in some other format).

25.1 The Touco App is created and controlled by us in the State of Victoria, Australia. As such, the laws of the State of Victoria will govern this agreement.

25.2 By using the Touco App and the Services you submit to the exclusive jurisdiction of the courts of Victoria, Australia and agree that any legal action will only be commenced in this forum.

26.1 By accessing and using Touco App and the Services, you accept that communication with us will be mainly electronic. We will contact you by email or provide you with information by posting notices on the Touco App.

26.2 You acknowledge that all contracts, notices, information and other communication (notices) we may provide electronically comply with any legal requirements that such documents be in writing.


26.3 By accessing and using Touco App and the Services, you accept that communication with us will be mainly electronic. We will contact you or provide you with information using the in-app notification feature in the Touco App

27.1 In this agreement, the following words shall have the following meanings:

1. (a) (a) Affiliate means in relation to any party, a person which, directly or indirectly, (i) is Controlled by that party; or (ii) Controls that party; or (iii) is Controlled by a person referred to in (ii) above, and for this purpose Control means the power of a person to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership agreement or other document regulating such person) that the affairs of another are conducted in accordance with its wishes.

2. (b) Business Day means any day which is not a Saturday, Sunday or public holiday in Victoria.

3. (c) Business Hours means 9:00am to 5:00pm on Business Days.

4. (d) Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whether present or future, fixed or unascertained, actual or contingent, at law, in equity, under statute or otherwise

5. (e) Commencement Date has the meaning in clause 3.1.

6. (f) Consequential Loss s means the following, however arising and even if it is reasonably contemplated by the parties at the Commencement Date as a likely result of breach of the agreement:

   1. (i) direct, indirect, consequential, incidental, special, remote or unforeseeable loss, damage, cost or expense;

   2. (ii) loss of revenue, profit, income, bargain, opportunity, use, production, customers, business, contract, goodwill, or anticipated savings, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, loss of or corruption to data, loss of use of data or reputational loss or damage or loss of privacy;

   3. (iii) costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by another user of third party; or

   4. (iv) loss or damage of the nature set out above in clauses (i) to (iii) (inclusive) that is incurred or suffered by or to a third party.

7. (g) Content means all the information, text, materials, graphics, logos, button icons, images, video and audio clips, trade marks (whether registered or not), advertisements, layout, arrangement, graphical user interface, look and feel, databases, functionality and control features of the Touco App.

8. (h) Force Majeure Event has the meaning in clause 16.1

9. (i) Intellectual Property Rights means designs, copyright, trade marks, patents, operations, software or systems, trade names and domain names, rights in goodwill, rights in confidential information or other intellectual property rights, whether under statute, common law, equity, and whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights and all similar rights which subsist or will subsist now or in future in any part of the world.

10. (j) Loss means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including legal and other professional costs and Consequential Loss.

11. (k) Personnel means any director, officer, employee or contractor of the party.

12. (l) Personal Information means data by which a person may be personally identified, including a person's name, postal address, email address, telephone number and any other information a party collects, including that which is defined as personal or personally identifiable information under any applicable Privacy Laws.

13. (m) Privacy Laws means any applicable laws and codes of practice dealing with privacy, including the Privacy Act 1988 (Cth) (as amended) and the Australian Privacy Principles, and any other legislation, codes and policies relating to the handling of Personal Information applicable to the jurisdiction in which you are located.

14. (n) Privacy Policy means our privacy policy available on the Touco App or any other internet site notified by us from time to time, which is incorporated into this agreement.

15. (o) Relevant Laws means any relevant rules of common law, principles of equity, international, federal, state and local laws, statutes, rules, regulations, proclamations, ordinances and by-laws and other subordinate legislation, rulings, or legal requirements and Privacy laws, anywhere in the world

16. (p) Services has the meaning in clause 2.1.

17. (q) Term has the meaning in clause 3.1.

18. (r) Touco App means the mobile application owned, operated and managed by Touco, including any systems, Content and server software, the computer hardware, tools, application, database, systems, and all Intellectual Property Rights contained therein, provided or otherwise made available by us.

19. (s) Touco IP has the meaning given to it by clause 10.1.

20. (t) Touco, we, our or us has the meaning in clause 1.1, and where the context permits, includes our Personnel and Affiliates.

21. (u) User Content includes all content, materials, data, information and photographs published or posted on the Touco App by you.

22. (v) you or your has the meaning in clause 1.3.