Terms of Use

Trails WA Inc. ABN 92 724 353 501

1. Background

Thank you for visiting our Terms of Use (Agreement). We are Trails WA Inc. ABN 92 724 353 501 (we, our, us and other similar terms). We provide a platform which enables people to discover, access and navigate outdoor trails across Western Australia, known as Trails WA (Trails WA).
This Agreement outlines the terms and conditions associated with your use of Trails WA. It is your obligation to ensure that you have read, understood and agree to the most recent terms available on our Website.

2. Agreement

2.1 Accepting this Agreement
By creating a Trails WA Account or using our public facing website, you agree to comply with and be legally bound by the terms and conditions of this Agreement. If you do not agree to these terms, you have no right to continue using Trails WA.

2.2 About this Agreement
Throughout the Agreement we use some capitalised words and phrases, like the word Agreement. These capitalised words and phrases are defined throughout this Agreement and in clause 18. They aid to clarify the terms and conditions. 
Please feel free to email us at [email protected] if you have any questions.

3. Trail safety and disclaimers
Trail information on Trails WA, including trail maps, difficulty ratings, distances, conditions and access details, is provided as a general guide only. Conditions on trails can change rapidly due to weather, maintenance, seasonal closures and other factors.
You are solely responsible for your own safety when using any trail discovered through Trails WA. We strongly recommend that you:
(a) check current trail conditions before setting out;
(b) carry appropriate equipment and supplies;
(c) inform someone of your planned route and expected return time;
(d) assess your own fitness and experience level before attempting a trail; 
(e) carry appropriate navigation equipment as reasonably required to safely undertake your planned excursion; 
(f) comply with all relevant rules, permits and access conditions; and
(g) review and confirm current trail conditions, closures, hazards, weather and emergency warnings using information available through Trails WA together with updates and advice published by other official sources including but not limited to Department of Biodiversity, Conservation and Attractions; Parks and Wildlife Service; Department of Fire and Emergency Services; local governments and other relevant authorities before undertaking any activity.
To the maximum extent permitted by law, Trails WA excludes all liability for any injury, loss or damage arising from your use of any trail or reliance on information provided on Trails WA.

4. Term

This Agreement will commence on the earlier of when you access out public facing website or create an Account for Trails WA and will continue: 
(a) in the case of those holding an Account, for the Subscription Period or until the date of termination of this Agreement in accordance with clause 16;
(b) in the case of those using the public facing website, until the date of termination of this Agreement in accordance with clause 16.  
For Account holders, this Agreement is not terminated in accordance with clause 16, prior to the expiry of the then current Subscription Period, this Agreement will automatically renew for a period equal to the current Subscription Period.

5. Licence

We grant you a non-transferable, non-exclusive and revocable licence to access Trails WA for the Term, subject to and conditional upon your compliance with the terms and conditions of this Agreement.

6. Payment

Unless stated otherwise, some or all of our platform will be provided to you free of charge. We will provide notice of any Subscription Fees before they take effect in accordance with the “Variations to this Agreement” sub section in clause 17. 
Where applicable, Subscription Fees will be quoted in Australian Dollars and will be exclusive of GST, withholding taxes, duties, tariffs and charges imposed or levied in Australia, or overseas, in connection with this Agreement. Unless stated otherwise, any Subscription Fees and applicable GST must be paid at the beginning of each Subscription Period. You will be responsible for all bank fees and charges applied by the payment gateway provider, which you choose to use.

7. Requirements for use

7.1 Access
You acknowledge and agree that to make full use of the Trails WA functionality you will require an Account and access to the internet..
In order to make full use of the mobile application version of Trails WA you must allow your device access to the following services: data connectivity, email, address book, SMS, location services and storage. Some features require an active internet connection and will be limited or unavailable without one. When connectivity is lost, the mobile application will switch to offline mode, where only limited features may be available.

7.2 Support
Support for Trails WA is provided in accordance with the support arrangements as set out on our Website or Trails WA mobile application and may vary from time to time. 

7.3 Trails WA outages and system maintenance
If it is necessary to interrupt your use of Trails WA, we will endeavour to provide you with reasonable notice (where possible) of when, and the anticipated duration for which, Trails WA will be unavailable.
You acknowledge access to Trails WA may be changed, interrupted or discontinued for many reasons, some of which are beyond our control and during routine maintenance there may be updates to Trails WA which may change the interface and manner in which it functions.
We reserve the right to modify, restrict access to or remove all or part of our public facing website in our sole and absolute discretion. 

8. Your use of Trails WA

8.1 Registering an Account
While limited access may be made available from time to time via our public facing website, in order to use the full functionality of Trails WA, you are required to provide us with Personal Information and create an Account with us. 
You agree to provide any information reasonably requested by us for the purpose of setting up your Account. You warrant that all of the information you provide to us is accurate and complete in all respects, you will inform us by updating your Account details whenever any such information changes and you will not provide false or misleading information.

8.2 Account security
Maintaining the security of your Account is important to ensuring your Personal Information, and that data which we process, remains safe. We work hard to keep Trails WA secure and we ask you to contribute.
You agree not to request or allow another person to create an Account on your behalf, for your use, or for your benefit. You also agree not to disclose your Account security credentials to another person or permit them to access your Account. You are responsible for the activities undertaken using your Account which occur via Trails WA, whether such activities are authorised by you or not.

8.3 Lawful use of Trails WA
You undertake not to upload, store or access any data on or use Trails WA if such use, access or storage would infringe a person’s Intellectual Property right, breach any Privacy Law or breach any other law or applicable code (including any common law, statute, delegated legislation, rule or ordinance of the Commonwealth, or a State or Territory of Australia). 

8.4 Conduct which is expressly prohibited
You may only access and make use of Trails WA for the sole purpose of meeting your personal recreational needs, unless otherwise authorised by us. You must not use or include any part of Trails WA in any service bureau or fee generating service offered to third parties.
You must not:
(a) in any way tamper with, hinder or modify Trails WA;
(b) use Trails WA directly or indirectly for any activity or transmit any information or material unlawfully, or which is obscene, indecent, uses offensive language, defames, abuses, harasses, stalks, threatens, menaces or offends any person;
(c) knowingly transmit any viruses or other disabling features to or via Trails WA;
(d) intentionally disable or circumvent any protection or disabling mechanism of Trails WA;
(e) install or store any software applications, code or scripts on or through Trails WA;
(f) use Trails WA in any way which could be reasonably expected to interfere with or damage our systems, any other operator's systems, or another user's enjoyment of Trails WA; or
(g) attempt, facilitate or assist another person to do any of the above acts. 

8.5 Notifications
Trails WA may provide facilities whereby you may set up notifications so that you are aware of activity on Trails WA. By using Trails WA, you consent to us providing relevant notifications via electronic messaging systems. You are solely responsible for configuring and disabling notification options that may be made available to you.

8.6 Our right to suspend
We reserve the right to limit or suspend your licence to access Trails WA if you fail to pay any nominated Subscription Fee, or if in our reasonable opinion, you are in breach of any of your obligations or warranties in this Agreement. Suspending your Account will not constitute a breach of this Agreement by us, nor will it alter your obligation to pay any Subscription Fee.
We may also suspend your Account if we suspect a security breach associated with your Account or otherwise identify unusual activity.

9. App Marketplace Providers

The Trails WA mobile applications are available from the Google Play and the Apple App Store (App Marketplace Providers). This clause 9 applies only to the use of any mobile application version of Trails WA that may be obtained from an app marketplace.
This Agreement is between us and you only. We, and not the App Marketplace Provider, are responsible for Trails WA, and we are solely responsible for:
(a) its support and maintenance; 
(b) the investigation, defence, settlement and discharge of any claim which relates to an infringement of third-party Intellectual Property rights arising from the use of Trails WA; and 
(c) any claim Trails WA fails to conform to any applicable legal or regulatory requirement, including product liability claims and claims arising under consumer protection laws.
The App Marketplace Provider’s liability to you is limited to the refund of the purchase price of Trails WA and any other remedies under consumer protection law. Your right to use the mobile version of Trails WA is non-transferable and non-sublicensable, except to the extent the App Marketplace Provider permits family sharing or like sharing arrangements.
The App Marketplace Provider may monitor your use of Trails WA and is entitled to enforce the terms of this Agreement against you. You agree to submit to their legitimate enforcement activities.
If there is any inconsistency between this Agreement and the application use rules set out in the App Marketplace Provider’s terms of service, their terms of service will prevail to the extent of the inconsistency.
You represent and warrant that you are not 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 and you are not listed on any U.S. Government list of prohibited or restricted parties.

10. Privacy 

You agree and consent to us obtaining and handling your Personal Information in accordance with our Privacy Policy. We may amend our Privacy Policy in our sole discretion. If we amend our Privacy Policy, we will post the new version on our Website.  

11. Third Party Services 

Certain components or features of Trails WA may connect to, integrate with or include links to, applications, content, data or services operated by third parties, including Australian government departments (Third Party Services). This includes trail maps and other external resources.
You acknowledge and agree that, subject to any Non-excludable Condition, we are not liable for:
(a) the availability or reliability of such Third Party Services;
(b) any data, content, advertising or materials made available through such Third Party Services; or
(c) any loss or damage you incur or allege to incur, either directly or indirectly as a result of your use and/or reliance upon any such Third Party Services.

12. User Content and Intellectual Property

12.1 Your User Content
If you provide us with content, including, without limitation, reviews, ratings, trail edits, text, photos, images, audio, video and any other materials (User Content), your User Content stays yours. This Agreement does not transfer ownership of User Content to us.
When you provide User Content, you grant us a non-exclusive, worldwide, perpetual, royalty-free, sublicensable, transferable right and licence to use, host, store, reproduce, modify, create derivative works of (such as those resulting from translations, adaptations or other changes we make so that User Content works better with Trails WA), communicate, publish, publicly display, publicly perform and distribute User Content for the purposes of allowing us to provide, improve, promote and protect Trails WA. You waive any claims against us relating to any moral rights or similar rights worldwide that you may have in the User Content.
You represent that you own all rights to your User Content or otherwise have (and will continue to have) all rights and permissions to legally use, share, display, transfer and license your User Content to the extent that it is used within Trails WA.
While we reserve the right to take down any User Content which is in breach of this Agreement, you acknowledge and agree we are not required to monitor User Content, nor are we responsible for it.

12.2 Use of our Intellectual Property
We warrant we own or have a licence to use the Intellectual Property in Trails WA. You must not do any of the following, assist anyone to do any of the following or permit any person over whom you have effective control to:
(a) create an adaptation or translation of, all or part of Trails WA in any way;
(b) use Trails WA in a manner which may infringe any other person’s Intellectual Property;
(c) incorporate all or part of Trails WA in any other webpage, site, application or other digital or non-digital format; or
(d) except to the extent that reproduction occurs automatically through its ordinary use, directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, content, architecture, or algorithms contained in Trails WA.

13. Warranties

Subject to the Non-excludable Conditions and to the maximum extent permitted at law, we make no warranties or guarantees that Trails WA is fault free, regarding Trails WA’s fitness for any particular purpose which we have not expressed, or regarding your access to, or the results of your access to, Trails WA including its correctness, accuracy, timeliness, completeness, reliability or otherwise.
You acknowledge and agree that trails presented through our platform are derived from third party sources. While we aim to provide accurate information and obtain our data from reliable sources, you acknowledge that Trails WA cannot verify that data ourselves. There may be limits to accuracy and delays to updates of that data.

14. Limitation of liability

14.1 Implied conditions
We expressly exclude all conditions, warranties and other terms which might otherwise be implied by any law, regulation, statute, common law or law of equity except any Non-excludable Condition.

14.2 Limitation of liability
Subject to the Non-excludable Conditions and to the maximum extent permitted at law, we exclude all other liability for any costs, including consequential losses, suffered or incurred directly or indirectly by you in connection with this Agreement, including:
(a) injury, loss or damage arising from your use of any trail or reliance on any other information provided on Trails WA;
(b) Trails WA being temporarily inaccessible for any reason;
(c) incorrect or corrupt data, lost data, or any inputs or outputs of Trails WA;
(d) computer virus, trojan and other malware in connection with Trails WA;
(e) security vulnerabilities in Trails WA or any breach of security that results in unauthorised access to, or corruption of data;
(f) negligence arising from our activities or that of our service providers providing Third Party Services;
(g) your failure to take reasonable security precautions when undertaking an excursion or undertaking any other outdoor activities;
(h) the occurrence of an Event of Force Majeure; or
(i) any act or omission by you, your personnel, your associates or any related body corporate under or in relation to this Agreement.

14.3 Limits to liability associated with goods and services
To the maximum extent possible under the law, we limit our liability for any breach to: in the case of goods: the re-supply of the goods or payment of the cost of the re-supply of the goods, or the replacement or repair of the goods or payment of the cost of replacement or repair of the goods; and in the case of services: the resupply of the services or the payment of the cost of having the services resupplied.

15. Dispute Resolution

A party claiming a dispute has arisen under this Agreement (Dispute) must give written notice to the other party specifying the nature of the Dispute. The parties must submit themselves to the dispute resolution procedure set out in this clause 15 before commencing any legal proceedings.
If the parties cannot resolve the Dispute between themselves within 30 days then either party may require the Dispute to be referred for mediation. The mediation must be undertaken in accordance with the Resolution Institute Mediation Rules, within the jurisdiction of the Agreement and, unless otherwise agreed between the parties, using a mediator nominated by the Resolution Institute. If the Dispute is not resolved within 30 days of the mediation commencing either party may commence proceedings in respect of the Dispute.
Each party must pay its own internal and legal costs in relation to complying with this clause 15. The mediator’s costs are to be shared equally.
The parties acknowledge and agree this clause 15 does not apply to the recovery of any debt or prevent a party from instituting proceedings for the purposes of seeking urgent injunctive or similar interim relief from a court.

16. Termination

16.1 Termination by either party
Either party may terminate this Agreement by providing notice in writing to the other party, if the other party commits a material breach of this Agreement and the breach is incapable of being remedied or if the breach is capable of being remedied, the party in breach has failed to remedy the breach within 14 days after the receipt of notice to remedy.
With respect to our Agreements with Account holders, either party may terminate this Agreement by notice in writing to the other party prior to any Subscription Period in which case this Agreement ends at the end of the then current Subscription Period.
For users of the public facing website, either party may terminate this Agreement, at any time, for any reason and without notice.
We may also end this Agreement if your Account remains suspended for a period of more than 28 days. 
Notwithstanding anything to the contrary, closing your Account constitutes notice in writing to us of your intention to terminate. 

16.2 Actions upon termination
Upon termination you must immediately stop using Trails WA, we reserve the right to permanently erase any data associated with your Account if you have one and you will no longer have access to your Account.

17. General

Assignment – Neither party may assign, encumber, declare a trust over or otherwise create an interest in its rights in this Agreement without the other party’s consent, which must not be unreasonably withheld.
Entire Agreement - This Agreement contains the entire agreement between the parties about its subject matter.  Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this Agreement and has no further effect.
Governing law - The laws of Western Australia govern this Agreement. The parties submit to the exclusive jurisdiction of courts exercising jurisdiction there.
Notices - The parties agree all notices, disclosures and other communications that are provided in accordance with this clause, satisfy any legal requirement that such communications be in writing. Any communication under or in connection with this Agreement:
(a) which we send to you, will be sent to the email address provided to us in your Account and by accepting these terms you give your consent to receive communications from us by email; and
(b) which you send, must be either delivered or posted by prepaid post to our registered office or sent by email to our email address set out at clause 2.2.
Relationship - Nothing in this Agreement is intended to create or be construed as creating a relationship of agency, joint venture or partnership between any of the parties. 
Severability - Any provision of this Agreement which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this Agreement enforceable, unless this would materially change its intended effect.
Term takes its meaning from clause 4.
Variations to this Agreement - We may vary this Agreement by giving written notice to you. If you do not accept the terms of the variation including changes to any Subscription Fees, you may terminate your subscription in accordance with clause 16.1. The variation takes effect at the beginning of the next Subscription Period.

18. Definitions 

Unless the terms and conditions of the Agreement state otherwise, the following expressions used in this Agreement have the following meanings:
Account means the username and access credentials used when you access Trails WA.
Agreement means these terms and conditions and any document incorporated into them by reference.
Event of Force Majeure means an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, health epidemic, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware, a ransomware attack or other malicious code.
Intellectual Property means all present and future rights conferred by statute, common law or equity (and all moral rights) in or in relation to business names, domain names, circuit layouts, computer code, confidential information, copyright, designs, formulas, inventions, knowhow, patents, plant varieties, recipes, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.
Non-excludable Condition means any guarantee, condition or warranty (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded.
Personal Information means information or an opinion about an identifiable individual (not a company), whether or not that information or opinion is true or in a material form.
Privacy Law means both the privacy laws in the jurisdiction in which you operate and the Privacy Act 1988 (Cth) incorporating the Australian Privacy Principles.
Privacy Policy means the privacy policy available on our Website as amended by us from time to time.
Subscription Fee means any periodic price that may be applicable for a Trails WA Subscription Package, as set out on our Website.
Subscription Package means any of the subscription packages advertised on our Website from time to time.
Subscription Period means the period of time attached to the Subscription Package which you sign up for and if not specified than 1 month.
You or your means the person using Trails WA.
Us, we or our means Trails WA Inc. ABN 92 724 353 501.
Website means the website located at https://trailswa.com.au/ and any of its subdomains.