2       Introduction

2.1 These terms and conditions (Terms) are entered into between True Colour International PTY Ltd ABN 72 665 262 895 (we, us or our) and you, the individual or entity purchasing our Plugin, together the Parties and each a Party.

2.2 We provide a Plugin that allows users to colour match images of clothing online.

2.3 In these Terms, you means the person or entity that has purchased a subscription to use our Plugin

3    Acceptance and Plugin Licence

3.1 You accept these Terms by clicking ‘accept’, purchasing a subscription to use our Plugin, or using our Plugin.

3.2 We may amend these Terms at any time, by providing written notice to you. By continuing to use the Plugin after the notice or 30 days after notification (whichever date is earlier), you agree to the amended Terms. If you do not agree to the amendment and it adversely affects your rights, you may cancel your Subscription with effect from the date of the change in these Terms by providing written notice to us. If you cancel your Subscription, (a) you will no longer be able to use the Plugin on and from the date of cancellation, and (b) if you have paid Fees upfront you will be issued a pro-rata refund having regard to the date of termination and the period for which you have paid.

3.3 In consideration for your payment of the Fees, we agree to provide you with access to the Plugin.

3.4 Subject to your compliance with these Terms, we grant you a personal, non-exclusive, royalty-free, revocable, worldwide, non-transferable licence to download and use our Plugin in accordance with these Terms. All other uses are prohibited without our prior written consent.

3.5 When using the Plugin, you must not do or attempt to do anything that is unlawful or inappropriate, including:

(a) anything that would constitute a breach of an individual’s privacy (including uploading private or personal information without an individual’s consent) or any other legal rights;

(b) placing the Plugin on applications that includes content that defame, harass, threaten, menace, or offend any person;

(c) tampering with or modifying the Plugin (including by transmitting viruses and using trojan horses, or obscuring or disabling any element of the Plugin);

(d) displaying the Plugin in any manner that implies partnership or affiliation with us; or (e) facilitating or assisting a third party to do any of the above acts

4       Accounts

4.1 You must register for an Account on the Site to access, download and use the Plugin.

4.2 You must provide basic information when registering for an Account including your email address and you must choose a password.

4.3 You agree to provide and maintain up to date information in your Account and to not share your Account password with any other person. Your Account is personal, and you must not transfer or provide it to others.

4.4 You are responsible for keeping your Account details and your username and password confidential and you will be liable for all activity on your Account, including purchases made using your Account details. You agree to immediately notify us of any unauthorised use of your Account.

4.5 When you create an Account, you must also purchase a subscription (Subscription).

5       Subscriptions

5.1 You may purchase a Subscription by paying the Subscription fees outlined on the Site (Fees) in advance on a monthly basis or some other recurring interval disclosed to you prior to your payment of the Fees (Billing Cycle).

5.2 Your Subscription will automatically renew at the end of the Billing Cycle for the same period, and you will be charged the Fees in connection with each subsequent Billing Cycle unless and until you cancel your Subscription.

5.3 The payment methods we offer for the Fees are set out on the Site. We may offer payment through a third-party provider. You acknowledge and agree that we have no control over the actions of the third-party provider, and your use of the third party payment method may be subject to additional terms and conditions.

5.4 You must not pay, or attempt to pay, the Fees by fraudulent or unlawful means. If you make a payment by debit card or credit card, you warrant that you are authorised to use the debit card or credit card to make the payment. If payment is made by direct debit, by providing your bank account details and accepting these Terms, you authorise our nominated third-party payment processor to debit your account in accordance with these Terms and you certify that you are either an account holder or an authorised signatory on the account for which you provide details.

5.5 You agree that we may set-off or deduct from any monies payable to you under these Terms, any amounts which are payable by you to us in connection with the Plugin.

5.6 We do not store any credit card details, and all payment information is collected and stored through our third-party payment processor.

5.7 The Fees are only refundable and cancellable in accordance with your Consumer Law Rights and these Terms.

5.8 We may need to change the Fees and the features of the Plugin from time to time. If we change the Fees or Plugin, we will provide you with 30 days’ notice of the change. After 30 days, we will apply the updated Fee to your Subscription. If the updated Fee is not acceptable to you, you may cancel your Subscription in accordance with the ‘Cancellation of Subscriptions’ clause.

6          Our Intellectual Property

6.1 You acknowledge and agree that any Intellectual Property or content (including copyright and trademarks) available with the Plugin, the Plugin itself, and any algorithms or machine learning models used with the Plugin (Our Intellectual Property) will at all times vest, or remain vested, in us.

6.2 We authorise you to use Our Intellectual Property solely for your personal use. You must not exploit Our Intellectual Property for any other purpose, nor allow, aid, or facilitate such use by any third party. You may only access Our Intellectual Property on your personal device, and you may not use Our Intellectual Property for any commercial purpose.

6.3 You must not, without our prior written consent:

(a) copy, in whole or in part, any of Our Intellectual Property;

(b) reproduce, retransmit, distribute, disseminate, sell, publish, broadcast, or circulate any of Our Intellectual Property to any third party; or

(c) breach any intellectual property rights connected with the Plugin, including (without limitation) altering or modifying any of Our Intellectual Property, downloading Our Intellectual Property, causing any of Our Intellectual Property to be framed or embedded in another website, or creating derivative works from any of Our Intellectual Property.

6.4 This clause will survive the termination or expiry of your Subscription.

7      Your Data

7.1 You own all data, information, or content you upload to the Plugin (Your Data).

7.2 You grant us a limited licence to copy, transmit, store, backup and/or otherwise access or use Your Data to:

(a) communicate with you (including to send you information we believe may be of interest to you);

(b) supply the Plugin to you and otherwise perform our obligations under these Terms;

(c) diagnose problems with the Plugin;

(d) enhance and otherwise modify the Plugin;

(e) perform Analytics;

(f) develop other services, provided we de-identify Your Data; and

(g) as reasonably required to perform our obligations under these Terms.

7.3 You agree that you are solely responsible for all Your Data that you make available on or through the Plugin. You represent and warrant that:

(a) you are either the sole and exclusive owner of Your Data or you have all rights, licences, consents, and releases that are necessary to grant to us the rights in Your Data (as contemplated by these Terms); and

(b) neither Your Data nor the posting, uploading, publication, submission or transmission of Your Data or our use of Your Data on, through or by means of our Plugin will infringe, misappropriate, or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

7.4 You acknowledge and agree that we may monitor, analyse, and compile statistical and performance information based on and/or related to your use of the Plugin, in an aggregated and anonymised format (Analytics). You acknowledge and agree that we own all rights in the Analytics, and that we may use the Analytics for our own internal business purposes, provided that the Analytics do not contain any identifying information.

7.5 We do not endorse or approve, and are not responsible for, any of Your Data.

7.6 This clause will survive the termination or expiry of your Subscription.

8      Warranties

You represent, warrant, and agree that:
(a) you will not use our Plugin, including Our Intellectual Property, in any way that competes with our business;
(b) there are no legal restrictions preventing you from entering these Terms; and
(c) all information and documentation that you provide to us in connection with these Terms is true, correct, and
complete.

9       Australian Consumer Law

9.1 Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees, and remedies relating to the provision of the Plugin by us to you which cannot be excluded, restricted, or modified (Consumer Law Rights).

9.2 If the ACL applies to you as a consumer, nothing in these Terms excludes your Consumer Law Rights as a consumer under the ACL. You agree that our Liability for the Plugin provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms.

9.3 Subject to your Consumer Law Rights, we exclude all express and implied warranties, and all material, work, and services (including the Plugin) are provided to you without warranties of any kind, either express or implied, whether in statute, at law or on any other basis.

9.4 This clause will survive the termination or expiry of your Subscription.

10  Liability

10.1 Despite anything to the contrary, to the maximum extent permitted by law:

(a) neither Party will be liable for any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise;

(b) each Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party or any of that Party’s personnel, including any failure by that Party to mitigate its losses; and

(c) our aggregate liability for any Liability arising from or in connection with these Terms will be limited to the Fees paid by you in the 12 months immediately preceding the act, event or omission giving rise to the Liability (and where there has been less than 12 months of Fees paid, an amount equal to 12 months of Fees calculated on a pro rata basis having regard to the amount of Fees paid and the period of time).

10.2 This clause will survive the termination or expiry of your Subscription.

11  Termination

11.1 Cancellation of Subscriptions: You may request to cancel your Subscription at any time by clicking the ‘manage my subscription’ button on the plugin and confirming your cancellation. Your cancellation will take effect from the end of the current Billing Cycle.

11.2 A Subscription will terminate immediately if the other Party breaches a material term of this Agreement, and that breach has not been remedied within 10 business days of being notified by the relevant Party.

11.3 Upon expiry or termination of your Subscription: (a) we will remove your access to the Plugin; and (b) where we terminate your Subscription as a result of your unrectified default, you also agree to pay us our reasonable additional costs directly arising from such termination, including recovery fees.

11.4 Where termination is due to our breach of these Terms, we agree to refund you for any prepaid unused Fees on a pro-rata basis.

11.5 Termination of a Subscription will not affect any rights or liabilities that a Party has accrued under these Terms.

11.6 This clause will survive the termination or expiry of your Subscription.

12  General

Assignment: Subject to the below clause, a Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).

12.2 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with these Terms, to a debt collector, debt collection agency, or other third party.

12.3 Disputes: If a dispute arises, the Parties will agree to meet in good faith to seek to resolve the dispute, before proceeding to any dispute resolution process. This will not prevent a Party from seeking urgent equitable relief.

12.4 Governing law: These Terms are governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

13  Definitions

13.1 Intellectual Property means any and all existing and future rights throughout the world conferred by statute, common law, equity or any corresponding law in relation to any copyright, designs, patents or trademarks, domain names, know-how, inventions, processes, trade secrets or confidential information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing, whether or not registered or registrable.

13.2 Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future, or contingent and whether involving a third party or a party to these Terms or otherwise.

13.3 Plugin means our plugin, which allows users to colour match images of themselves to image online, and includes any logos, information, software files and images incorporated into the plugin.

13.4 Site means the website whereby you can create an Account and purchase a Subscription to use our Plugin, available at https://chrome.google.com/webstore/category/extensions.

For any questions and notices, please contact us at:

True Colour International Pty Ltd (ABN 72 665 262 895)

Email: info@truecolour.com.au

Last update: 14 April 2023

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