Welcome to Phable. Phable Limited (we, us, our or Phable) provides you with the Services to create and share Playbooks. Playbooks are photo books through which you can access video memories.
1. Defined terms
1.1. The following words and phrases have specific meanings wherever you see them used in these Terms:
2. Application of Terms
2.1. These Terms are binding and apply to any use of the Services and Platform by you and anyone that you allow to access your Content. By using our Services or the Platform, you and they irrevocably agree to these Terms.
3.1. These Terms are effective from the date that you first access our Platform and will continue, unless terminated sooner in accordance with clause 8.
4.1. We can change these Terms at any time by providing you at least 30 days’ prior notice of the change, whether via our website, by sending you an email or via any messaging service we provide. Your continued use after that notice means that you agree to the changed terms.
4.2. If you comply with these Terms, then we grant you a non-exclusive, non-transferable, worldwide licence to access and use our Services via the Platform in accordance with these Terms.
5. Our Services
5.1. Phable provides you with the Services to upload Content through your Phable Account to the Platform and to access your Content. All Content must meet our Content standards, which we may change from time to time.
5.2. We also offer you the ability to purchase Playbooks. It is your responsibility to have sufficient web, application and device usage skills to make use of our Services.
6. Creating a Phable Account
6.1. To create a Phable Account, you must be over 13 years of age and must not have an existing Phable Account.
6.2. You agree to provide accurate, current and complete information during the Phable Account registration process and to update such information to keep it accurate, current and complete at all times. If you provide any false or misleading information, we may suspend or terminate your Phable Account in accordance with clause 8.
6.3. During the registration process, you must choose a password as part of our security procedures. You must ensure that your password is strong and not disclose it to any third party.
6.4. You must not allow others to access or use your Phable Account. No matter whether anyone using your Phable Account is authorised to use it or has obtained unauthorised access, you will remain responsible for their actions and omissions.
6.5. You must tell us immediately if you think that someone has used or has unauthorised access to your Phable Account or password, or there has been some other security breach.
7. Creating a Playbook
7.1. A contract between you and Phable for the purchase of a Playbook is created as follows:
7.1.1. You place the order for a Playbook on the Platform by pressing an order confirmation button at the end of the checkout process.
7.1.2. By confirming your order, you are agreeing to purchase the Playbook.
7.1.3. Payment is then processed using means made available through the Platform from time to time. Orders cannot be changed or cancelled once paid for.
7.2. Phable may reject an order in its discretion, including where:
7.2.1. Your order breaches the requirements of these Terms;
7.2.2. Your order uses Content which infringe the Content Rules;
7.2.3. Your order uses Content which has been corrupted; or
7.2.4. We are unable to obtain authorisation for your payment.
7.3. If your order is rejected, we will contact you to confirm this and reverse the payment you have made for that order.
8. Terminating your Phable Account
8.1. You may close your Phable Account at any time by following the Phable Account closing process on our website.
8.2. We have the right to suspend or terminate your Phable Account at any time, for any reason or no reason, which need not be disclosed to you. This includes but is not limited to Phable Accounts that Phable, considers in its sole discretion, contain invalid information or to have been used for inappropriate or objectionable activities, in violation of these Terms, in breach of any law in any jurisdiction or which are, or may be, harmful or detrimental to Phable or the Platform. We will not be liable for any loss of revenue or opportunity or any damage, cost or other liability, suffered or incurred by you in connection with a suspended or terminated Phable Account.
8.3. If we exercise our discretion under these Terms to suspend or terminate your Phable Account, any or all of the following can occur with or without any notice or explanation to you:
8.3.1. your Phable Account will be deactivated or suspended and you will not be able to access any part of the Platform, your Phable Account or your Content; and
8.3.2. we do not have an obligation to delete or return to you any Content you have uploaded to the Platform.
9.1. In consideration for the creation of an Playbook, Phable charges the fees displayed on the Platform from time to time.
9.2. All payments for Playbooks are carried out by third party payment providers. You accept that we are not responsible for these third party payment providers and their operation or availability.
10. Your obligations
10.1. You must comply with:
10.1.1. these Terms;
10.1.2. any additional terms or guidelines made available on the Platform from time to time; and
10.1.3. all applicable laws, regulations and rules, when using the Platform, our services and with respect to any data you upload or share using our Services.
11. Your Content
11.1.1. We provide Content Storage at no cost principally in order to facilitate your creation and purchase of Playbooks through which you can access your Content. Accordingly, we do not intend or invite you to store your images other than for those purposes.
11.1.2. Videos uploaded to the Platform can be up to 100 seconds long. We do not currently apply any other fixed limit to the volume of Content which may be uploaded provided you comply with reasonable fair use requirements which will be determined in our discretion.
11.1.3. Fair use would be exceeded by, for example:
a) the automated or scripted uploading of Content;
b) the uploading of Content on a high-frequency basis; or
c) the inclusion of very large volumes of Content.
11.1.4. Should you breach our fair use requirements, we may suspend your Phable Account, cease to provide you with Content Storage and/or delete your Content from our Platform.
11.2. We also reserve the right to make changes to Content which are intended to improve its storability, including:
11.2.2. size reduction and downscaling; and
11.2.3. format conversion.
11.3. We use reasonable commercial endeavours in our provision of Content Storage, but do not provide any guarantees as to the availability, speed of access to or reliability of the Content Storage we provide.
11.4. You must maintain copies of all Content you upload to the Platform – the Platform is not intended to be and should not be treated as a backup service. We do not make any guarantees that there will be no loss of your Content or the Services will be bug free. You should download all your Content prior to terminating your Phable Account.
11.5. We have standards which apply to the Content you upload to the Platform. If we are notified of a claim that Content you have uploaded to the Platform breaches our standards, we may prevent your Content being accessible through the Platform or being used in connection with Services.
11.6. If we terminate your Phable Account because you have breached these Terms we may delete your Content immediately or keep it for evidential purposes.
12. Content Rules
12.1. Whenever you upload Content to the Platform you must comply with the Content standards set out in this clause or elsewhere on the Platform. You must not:
12.1.1. upload or generate obscene, offensive, objectionable or inappropriate content;
12.1.2. damage, interfere with or degrade the functioning of the Platform;
12.1.3. create or send verbal, physical, wri[en or other abuse or unsolicited commercial communications (including threats of abuse or retribution or spam) to any person or cause harm to any person in any way under the NZ Harmful Digital Communications Act 2015; or
12.1.4. create, transmit, distribute, or store material that violates trademark, copyright, trade secret, or other intellectual property rights of others or violates the privacy, publicity, or other personal rights of others.
12.2. You warrant that any Content uploaded to the Platform complies with our content standards. You will be liable to Phable and indemnify Phable fully for any breach of that warranty. Phable has the right to remove any Content from your Phable Account without notice if, in Phable’s opinion in its sole discretion, your Content does not comply with those standards.
14. Intellectual Property Rights
14.1. Phable is the owner or the licensee of all intellectual property rights in the Platform, and in the material published on it. Those works are protected by trade mark, copyright and other intellectual property and trade practices laws and treaties around the world. All such rights are reserved.
14.2. You must not reproduce, duplicate, copy, sell, assign, resell or exploit any portion of the Platform or anyone else’s Content, or use or access the same, without Phable’s express prior written permission.
14.3. You own, or undertake that you are authorised to use, any intellectual property in any Content you upload to the Platform. You grant us a worldwide, royalty free licence to use, store, back-up, copy, transmit, distribute, communicate and otherwise make available your Content, for the purposes of enabling you and those you
Give access to, to use the Platform and the Services and for any other purpose related to provision of the Services to you and them.
15. Takedown procedure
15.1. To notify us of any alleged copyright infringement or takedown, email us at [email protected]
15.2. We may, without any prior notice to you, remove any of your Content from our Platform or block access to our Platform (totally or partially) where we have received a notice of intellectual property infringement or notice of takedown in respect of your Content. You agree that we will have no liability to you in respect of any loss (including loss of profit), cost or damage suffered or incurred by you as a result of such action.
15.3. If there is a dispute between you and a third party as to whether your Content infringes the intellectual property of that third party, you acknowledge that it is your responsibility to resolve such dispute with the third party, and until you have provided us with satisfactory written confirmation of a resolution between you and the third party we will not restore the alleged infringing materials or reinstate access to the Platform. You agree to indemnify us against all claims, proceedings or actions by such third party against us including costs (legal or otherwise) that we may incur in defending such claims, proceedings or acDons on a full indemnity basis.
16.1. We do not guarantee that the Platform will be secure or free from bugs or viruses. You are responsible for configuring your information technology, computer programmes and site in order to access the Platform (if applicable). You should use your own virus protection software.
16.2. We will not be liable for any loss or damage caused by a virus, distributed denial-of-service attack, or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of the Platform or to your downloading of any Content.
16.3. You must not misuse the Platform by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful. You must not attempt to gain unauthorised access to the Platform, the server on which the Platform is stored or any server, computer or database connected to the Platform. You must not attack the Platform (if applicable) via a denial-of-service attack or a distributed denial-of service attack.
17. Disclaimers and limitation of liability
17.1. If you choose to use the Platform, you do so at your own risk.
17.2. The Platform is provided without warranty of any kind, either express or implied. Phable makes no warranty that the Platform will meet your requirements or be available on an uninterrupted, secure, or error-free basis.
17.3. To the extent permitted by law, Phable excludes all conditions, warranties, representations or other terms which may apply to the Platform, whether express or implied.
17.4. Phable will not be liable to you or other third party for any direct, indirect or consequential loss, cost, lost opportunity or profit, lost goodwill, reputational damage or liability or other adverse event whatsoever, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with your use of, or inability to use, the Platform or Services.
17.5. In no event will Phable’s aggregate liability arising out of or in connection with these Terms and your use of or inability to use the Platform and Services exceed the fees you have paid to Phable in connection with the matter giving rise to the issue.
18.1. You agree to indemnify, and hold Phable and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, any tax, legal and/or accounting fees, arising out of or in connection with your access to or use of the Platform, Services or your violation of these Terms.
19.1. Phable may assign or transfer these Terms, at its sole discretion, without restriction. You may not assign or transfer your rights under these Terms without our prior written consent, which may be withheld in absolute discretion.
19.2. Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by us:
19.2.1. via email (in each case to the address that you provide); or
19.2.2. via the Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is sent.
19.3. These Terms will be governed by and construed in accordance with New Zealand law. You agree to submit to the exclusive jurisdiction of the courts of New Zealand with respect to any claim or matter arising out of or in connection with these Terms or their termination. Any dispute or difference arising out of or in connection with these Terms or the subject matter of these Terns, including any question about their existence, validity or termination, will be referred to and finally resolved by arbitration before a sole arbitrator in accordance with the Arbitration Rules of the Arbitrators’ and Mediators’ Institute of New Zealand for the time being in force.
19.4. No failure or delay by Phable to exercise any right or remedy provided under these Terms or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy by Phable will prevent or restrict the further exercise of that or any other right or remedy.
19.5. If any provision or part-provision of these Terms is or becomes void, illegal or unenforceable, it will be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision will be severable and deemed to be deleted, and will not affect the validity, legality or enforceability of the remaining provisions.
19.6. These terms were last updated on 19 October 2018.