Terms & Conditions

PINCH: SHARE & EDIT APP USER

Last Updated: 2nd April, 2024

1. GENERAL

1.1 The photo and video editing sharing platform made available through a mobile application (the Pinch S&E App) and Services made available through the Pinch S&E App is created, operated and controlled by Pinch App Pty Ltd (ACN 673 654 218) (Pinch, we, us or our).

1.2 By downloading, accessing and using the Pinch S&E App and the Services, you acknowledge that you have read, understood and accept the Pinch S&E 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 Pinch S&E App and Services.

1.3 In this agreement, you and your means the individual who accesses or uses the Pinch S&E App, and whose details are listed in the Registration Portal or the Social Media Platform used by you to sign-in to the Pinch S&E App (and includes anyone acting on your behalf or with your express or implied authority).

2. PINCH S&E APP

2.1 The Pinch S&E App is a photo and video editing and sharing platform made available through a mobile application that allows users to capture and upload footage, edit videos, share edited videos, view and obtain footage uploaded from others for their own use (collectively, the Services). Our role in providing you with access and use of the Pinch S&E App and the Services should be construed strictly in this context only.

2.2 By downloading, accessing and using the Pinch S&E App, Pinch grants you a non-exclusive, non-transferable, personal, revocable and non-sublicensable licence to download, install, access and use the Pinch S&E 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. TERM

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

4. REGISTRATION AND ACCESS

4.1 If you wish to access and use the Pinch S&E App (as a Project Owner or Project Contributor), you must create an account with us (Account) and provide us with your email address. If you:

(a) create an Account via the Pinch S&E App, you must create a username and you can select your own unique password (Password). You can change your Password via the Registration Portal at any time; or

(b) create an Account via a Social Media Platform, you must create a username and your password will be the same password (SM Password) used by you to log into the Social Media Platform. You cannot change your SM Password within the Pinch S&E App. Your SM Password can only be changed within the Social Media Platform.

4.2 At the time you a create an Account with us via the Pinch S&E App, you will be required to provide us with your registration information (such as your full name, email address and date of birth). At all times, you must ensure that your registration information (including Personal Information) is complete, accurate and up to date.

4.3 You are responsible for:

(a) maintain control over, and the confidentiality of, your Password/ SM Password;

(b) all activities that occur through the use of your Account, and Pinch is not responsible or liable for any Loss due to misused, stolen or hacked Account, Password/ SM Password;

(d) keeping your Account and registration information current, complete, accurate, and truthful. You must not impersonate another account holder or provide false identity information to gain access to or use the Pinch S&E App and the Services.

4.4 Pinch has the right to suspend or terminate your Account access or use of all or any part of the Pinch S&E 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. YOUR OBLIGATIONS

5.1 When accessing and using Pinch S&E App during the Term, you must:

(a) download the Pinch S&E App onto your mobile phone or other device;

(b) obtain and maintain all hardware, software and communications equipment necessary to access, and use the Pinch S&E App and the Services;

(d) comply with all of our directions, policies and guidelines, advised in writing to you from to time to time.

5.2 We will not be liable to you or anyone else if, for any reason, the Pinch S&E 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 Pinch S&E App and/or the Services.

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

(a) introduce, access, store, distribute or transmit any viruses, worm, trojan or other malicious code into the Pinch S&E App;

(b) violate any Pinch IP or any third party Intellectual Property Rights;

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

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

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

(f) license, sell, rent, lease, transfer, assign or otherwise commercially exploit the Pinch S&E App and/or the Services; and

(g) use the Pinch S&E App to engage in any activity or conduct that is in breach of any Relevant Laws.

6. PROJECTS

6.1 At any time during the Term, you may create a Project on, or via, the Pinch S&E App, in which case, you will become a ‘Project Owner’. During the Project Term, you (as a Project Owner):

(a) may upload, publish, post, edit or modify your videos, audio clips, images, text and/or photographs (Project Owner Content) and you may use, edit and modify videos, audio clips, images, text and/or photographs shared with you by Project Contributors (Contributor Content);

(b) must pay the Project Package Fee (depending on the project package purchased by you); and

(c) may share your Project Owner Content with Project Contributors by inviting Project Contributors to join the Project. The number of Project Contributors you can invite to access the Project will depend on the project package purchased by you.

6.2 For a Project Contributor to access a Project:

(a) you (as a Project Owner) must invite a Project Contributor by: (i) email or in-app notification if the individual is already a user of the Pinch S&E App: or (ii) email only if the individual is not a current user of the Pinch S&E App, in which case, the individual must first download the Pinch S&E App and then must create an Account; and

(b) you (as a Project Contributor) must: (i) download and install the Pinch S&E App on your mobile device; and (ii) open and accept the link sent to you by the Project Owner by email or in-app notification.

6.3 During the Project Term, you (as a Project Contributor):

(a) can access, view and download a Project Owner’s Content and Contributor Content posted or submitted by other Project Contributors to the Project, provided you have been invited to join a Project by the Project Owner;

(b) can share your Contributor Content with the Project Owner and other Project Contributors by publishing or posting the Contributor Content on the Project.

6.4 At the end of a Project Term, the Project will no longer be visible to, and accessed by, you on, or via, the Pinch S&E App. If you are a Project Owner, you must within 14 days after the Project Term has expired, download your Project Owner Content published or stored within the Project. We will notify the Project Owner by email and/or by in-app notification 14 and 7 days before the Project Term is scheduled to expire.

6.5 If you are a Project Contributor, you must, within 14 days after the Project Term has expired, download your Contributor Content published or stored within the Project. We will notify the Project Contributor by email and/or by in-app notification 7 days before the Project Term is scheduled to expire.

6.6 Unless you (as a Project Owner) pay a new Project Package Fee (depending on your project package) to extend the Project Term at our prevailing rates at the time, no later than 14 days after the Project Term has expired, the Project (including any User Content contained therein) will be permanently deleted without further notice to you.

6.7 If you (as a Project Owner or Project Contributor) have subscribed to, or are using, a Free Tier Package, and there is no activity within your Project for a period of 90 days (Inactivity Period), we will notify you by email and/or by in-app notification 7 days before the Inactivity Period is scheduled to expire. Once the Inactivity Period expires and there has been no activity within your Project, the Project (including any User Content contained therein) will be permanently deleted without further notice to you.

7. USER CONTENT

7.1 You (as a Project Owner or Project Contributor) acknowledge and agree that Pinch is reliant on you for direction as to the extent Pinch is entitled to use, publish, transmit, market, promote, advertise or display Contributor Content or Project Owner Content (collectively, User Content), on, or via, the Pinch S&E App. Consequently, you (as a Project Owner or Project Contributor) warrant and guarantee that, in relation to any User Content uploaded, displayed, published, posted by you on, or via, the Pinch S&E App:

(a) you hold all necessary rights, licences, permits and consents to publish the User Content; and

(b) nothing in your User Content is or could reasonably be considered to be defamatory, disparaging, seditious, threatening, abusive, liable to incite racial hatred, discriminatory, blasphemous, indecent, vulgar, offensive, pornographic, fraudulent, in breach of confidence or privacy or false and misleading; and

(c) nothing in your User Content would contravene any Relevant Laws (including Privacy Laws and the Australian Consumer Law);

(d) nothing in your User Content would bring Pinch or the Pinch S&E App, into disrepute or adversely affect the reputation and goodwill of the Pinch S&E App or Pinch; and

(e) nothing in your User Content infringes the Intellectual Property Rights or other rights of any person and that you have adequate legal rights to publish, post, transmit, reproduce or otherwise use the User Content transmitted through the Pinch S&E App.

7.2 When you create your Account and each time you access and use the Pinch S&E App, you will be required to provide us with User Content. 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 User Content or Third Party Content displayed or published on the Pinch S&E App by you (as a Project Owner or Project Contributor) is accurate, complete, reliable, current or error-free, nor do we make any warranty about the standard or quality of any products, services, Third Party Content or User Content displayed on, or via, the Pinch S&E App. We make no representations or warranties that use of the User Content will not infringe any third party’s Intellectual Property Rights.

7.3 We disclaim all liability and responsibility arising from any reliance placed on such User Content. You (and not Pinch) are solely responsible for the completeness, accuracy, reliability, legality and quality of any User Content published by you (as a Project Owner or Project Contributor) on, or via, the Pinch S&E App. You post or publish User Content on, or via, the Pinch S&E App at your own risk.

7.4 Pinch is under no obligation to monitor, review, or otherwise control the Services or any User Content listed, published or posted on, or via, the Pinch S&E App by you (as a Project Owner or Project Contributor) or any third party. However, Pinch reserves the right (whether in response to a complaint or at our own initiative), but is not obligated, to edit, remove or refuse to edit or remove any User Content published, posted or otherwise made available on, or via, the Pinch S&E App.

7.5 You grant Pinch 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, the User Content (and all Intellectual Property Rights contained therein) for any purpose, including for the purpose of:

(a) enabling Pinch to provide the Pinch S&E App and the Services and otherwise perform its obligations and exercising our rights under this agreement;

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

(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;

(d) using usage patterns, trends, and other statistical or behavioural data derived from use of the Pinch S&E App and/or the Services for the purposes of providing, operating, maintaining, or improving the Services, the Pinch S&E App, or our other products and services; and

(e) sharing your User Content with: (i) Project Owners and Project Contributors in connection with a Project; and (ii) an Affiliate or other third party (with whom Pinch may contract or be affiliated with from time to time) for the purposes of performing or improving the Pinch S&E App and/or the Services.

7.6 In the event of any Loss to User Content uploaded to, or published on, the Pinch S&E App in connection with Project, your sole and exclusive remedy shall be for Pinch to use reasonable endeavours to restore the User Content, that is lost or damaged, from the latest back-up of User Content maintained by Pinch in accordance with our standard archiving and backup procedures.

7.7 Draft User Content is stored locally on your mobile device. If you (as a Project Owner or Project Contributor) download any User Content onto your local mobile device or you have not published your draft User Content on, or via, the Pinch S&E App, you acknowledge that we do not back-up or archive any User Content downloaded onto or stored on a local mobile device and therefore:

(a) you are responsible for maintaining back-ups of such User Content (including draft User Content); and

(b) we are not liable to you for any Loss, destruction, alteration, corruption or disclosure or User Content caused your acts or omissions or the acts or omissions of other users of the Pinch S&E Appl or a third party.

8. SUBSCRIPTION FEES AND PROJECT PACKAGE FEES

8.1 We do not charge Project Contributors a fee to download, access and use the Pinch S&E App and Services. We do not charge a Project Owner a Project Package Fee to download the Pinch S&E App and to create a Project which is limited to a maximum of 30 Project Contributors (Free Tier Package). However, if a Project Owner wishes to create a Project where more than 30 Project Contributors can be invited by the Project Owner to join the Project, the Project Owner must pay the Project Package Fee (depending on your project package) to us for the duration of the Project Term (payable in advance). The Project Package Fee payable by the Project Owner will vary depending on the duration of the Project Term, the maximum data storage allowance for the Project and the number of Project Contributors authorised by the Project Owner to access the Project.

8.2 To access and use a version of the Pinch S&E App which excludes in-app advertising, you must pay us a Subscription for the Term. The Subscription Fees are payable in advance on a 3, 6 or 12 monthly basis in accordance with the Direct Debit Authority in clause 9.

8.3 Unless otherwise stipulated by us within the Pinch S&E App or our Website, all fees shown on the Pinch S&E App are displayed in your local currency and are inclusive of relevant Taxes. To the maximum extent permitted by Relevant Laws and unless otherwise stipulated in this agreement, you agree that all Project Package Fees or any other amounts owing to us under the agreement are non-refundable.

8.4 You must pay any other amounts owing to us under the agreement by debit card or credit card (Visa or Mastercard). We use a Third Party Payment Processors to process payments made to us. By making payment of the Project Package Fees or any other amounts owing to us under the agreement, you agree to provide our Third Party Payment Processors with accurate and complete billing information, and you authorise our Third Party Payment Processors to use this information for the purpose of processing your payment.

8.5 We reserve the right to vary the Project Package Fees, Subscription Fees or to introduce new fees to access and use the Pinch S&E App at any time, by giving you at least 14 days prior written notice, or by otherwise posting it on the Pinch S&E App. If you do not agree to the new fees, you should terminate the agreement in accordance with clause 14, no later than 14 days after the date you received written notice of the changes or the changes were posted on the Pinch S&E App. If Pinch does not receive your written termination notice within 14 days, you will have deemed to have accepted the new fees.

9. DIRECT DEBIT AUTHORITY

9.1 By accepting this agreement, you authorise us to arrange for the Subscription Fees to be debited from your credit card or bank account (as applicable) as and when such fees are due and payable under this agreement (Direct Debit Authority).

9.2 You may cancel or change your Direct Debit Authority by accessing the Apple Pay Subscription’ page on your mobile device before the day on which your next debit is due. If you cancel or defer Direct Debit Authority, Pinch may not be able to provide you with access to, and use of, the Pinch S&E App, unless you provide Pinch with new Direct Debit Authority.

9.3 It is your responsibility to ensure that there are sufficient funds available on your credit card or bank account (as applicable) to allow each debit to be made in accordance with the Direct Debit Authority. If there are insufficient funds:

(a) the transaction will be rejected, and the payment will be treated as if it were never made;

(b) your financial institution may charge you a fee and/or interest; and

(c) you must arrange for the debit to be made by another method or arrange for sufficient funds to be available by an agreed time so that Apple Pay can process the debit.

9.4 It is your responsibility to check your credit card or bank account statement (as applicable) to verify that the amounts debited from your credit card or bank account are correct.

9.5 If you believe that an error has been made in debiting your credit card or bank account (as applicable), you should update your credit card or bank account details by accessing the ‘Apple Pay Subscription’ page on your mobile device as soon as possible.

9.6 If you cancel the Direct Debit Authority, your right to access and use a version of the Pinch S&E App which excludes in-app advertising will cease at the end of the current billing cycle, and you will revert to a version of the Pinch S&E App that includes in-app advertising. If you wish to re-activate your subscription, you will need to pay the Subscription Fees prevailing at the time you re-active your subscription.

10. INTELLECTUAL PROPERTY RIGHTS

10.1 You acknowledge that we, or our licensors, are the owner of the Pinch S&E 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 connection with your use of the Pinch S&E App and the Services (including any modifications, enhancements of the foregoing) (collectively, the Pinch IP). Accessing and using the Pinch S&E App and the Services do not give you (or anyone else) ownership of, or any right, title or interest in the Pinch 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 Pinch S&E App and the Services will automatically vest in, and are assigned to, Pinch (Developed IP).

10.3 Ownership of any User Content will vest in the creator of that User Content, but excluding Pinch IP and Developed IP.

10.4 You (as a Project Owner) acknowledge and agree that by inviting a Project Contributor to access the Project and sharing User Content with the Project Contribiutor, you grant the Project Contributor a non-exclusive, non-revocable, perpetual and royalty-free licence to download, access, use, publish, display, modify and edit, your User Content.

10.5 You (as a Contributor) acknowledge and agree that by sharing User Content with the Project Owner in connection with a Project, you grant the Project Owner a non-exclusive, non-revocable, perpetual and royalty-free licence to download, access, use, publish, display, modify and edit, your Contributor Content.

11. PINCH OBLIGATIONS

11.1 Subject to your compliance with the terms of this agreement, Pinch shall use reasonable endeavours to provide you with access to and use of the Pinch S&E App and the Services.

11.2 In the event that we fail to provide you with access and use of the Pinch S&E App and the Services accordance with clause 10.1, 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 10.1.

11.3 The undertaking in clause 10.1 shall not apply in the event of:

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

(b) modification or alteration of the Services and the Pinch S&E App by any party other than us or our duly authorised Personnel;

(c) the unsuitability or malfunction of the computer hardware or computer software in conjunction with which the Pinch S&E App and/or the Services are used;

(d) Force Majeure Events; and

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

12. NO WARRANTIES

12.1 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 Pinch S&E App and the Services.

12.2 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 Consumer Act 2010 (Cth) or any other national, State or Territory legislation where to do so is unlawful.

12.3 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 Pinch S&E App and/or the Services (including any User Content, Third Party Content, products or services provided in connection with the Pinch S&E App and the Services) and we will not be liable if the Pinch S&E App and/or the Services is, or becomes unavailable for any reason, including directly, or indirectly as a result of:

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

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

(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 Pinch S&E App and the Services;

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

(e) a Force Majeure Event.

12.4 You acknowledge that, to the maximum extent permitted by Relevant Laws, we do not make any warranty or representation that any information (including any User Content or any Third Party Content) uploaded, published, shared or made available to you by us, any other user or anyone else or any Content made available or offered on, or via the Pinch S&E 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.

12.5 Pinch shall use reasonable endeavours to make the Pinch S&E App and the Services available 24 hours a day, 7 days a week, except for:

(a) planned maintenance carried out at times advised in advance by Pinch; and

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

13. LIMITATION OF LIABILITY

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

(a) Consequential Loss; or

(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 Pinch S&E App and the Services (including any User Content, Third Party Content and any products or services published, advertised, displayed or provided in connection with the Pinch S&E App and the Services or any failure by you to download your User Content before the Project Term expires) and this agreement, regardless of the cause of action on which they are based, even if advised of the possibility of such damage occurring.

13.2 All risk in using the Pinch S&E App and the Services passes to you upon downloading the Pinch S&E App, or otherwise accessing or using the Pinch S&E App and the Services (whichever is earlier). We do not control or direct what User Content is uploaded, shared, published, posted or otherwise transmitted by Project Owners or Project Contributors, and we are not responsible to you or to anyone else for any actions, activities, conduct or transactions (whether online or offline) that occur as a result of, or in connection with your access to, and use of, the Pinch S&E App and the Services.

13.3 To maximum extent permitted by Relevant Laws, under no circumstances will our aggregate liability to you or any other user of the Pinch S&E App or anyone else, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceeds $10 or the greater of the Project Package Fees paid by you to Pinch in the preceding one month from the date of the Claim.

13.4 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:

(a) the access to, and use of, the Pinch S&E App and/or the Services by you or any third party (including, the use of any User Content, Third Party Content, products or services published, displayed or made available to you on, or via, the Pinch S&E App and the Services);

(b) any breach by you of any Privacy Laws;

(d) any breach by you of this agreement.

14. PRIVACY

All Personal Information you provide to us to download, access and use the Pinch S&E 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 by you on, or via, the Pinch S&E App and the Services:

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

(b) you) have the authority to upload, post, publish or otherwise transmit such information on, or via, the Pinch S&E App; and

(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.

15. TERMINATION

15.1 You agree that we may, at any time and at our sole discretion, with or without cause or any notice to you, terminate, suspend or block access to (either temporarily or permanently):

(a) your Account and/or Password/ SM Password;

(b) the Website;

(d) any social media pages, products and/or services offered on, or via the Pinch S&E App and/or the Services.

15.2 You may terminate this agreement at any time by deleting the Pinch S&E App from your mobile device or by using the ‘delete’ function within the Pinch S&E App. However, if you wish to delete your Account, you must delete your Account in the Pinch S&E App before deleting the Pinch S&E App from your mobile device. Deleting your Account or the Pinch S&E App from your mobile device does not delete the direct debit authority. To delete your direct debit authority, you must cancel your subscription by accessing the Apple Pay Subscription’ page on your mobile device. In this case, you will not be entitled to a pro rata refund of the Project Package Fees or Subscription Fees for the unused portion of the Project Term.

15.3 We may terminate or discontinue the Pinch S&E App or any major functions or features of the Pinch S&E App and/or the Services at any time (without liability to you) by 14 days’ written notice to you, or by otherwise posting it on the Pinch S&E App or the Website. If we discontinue the Pinch S&E App, you will be entitled to a pro rata refund of the Project Package Fees for the unused portion of the Project Term

15.4 Pinch may suspend or terminate this agreement by giving you notice with immediate effect if you:

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

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

(c) publish or post User Content or engage in any activities, conduct or transactions on, or, via, the Pinch S&E App and/or the Services, that brings, or has the capacity to bring, Pinch, our Personnel and Affiliates and the Pinch S&E App into disrepute; or

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

15.5 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.

16. EFFECT OF TERMINATION

On termination of this agreement for any reason:

(a) your Projects (including Project Owner Content and Contributor Content contained therein) will no longer visible to, and accessed by, you on, or via, the Pinch S&E App. We will (without liability to you or any third party) delete, de-identify or otherwise dispose of Projects (including Project Owner Content and Contributor Content contained therein) 14 days after the effective date of termination, unless you pay a Project Package Fee to us to re-activate your Account;

(b) we may (without liability to you or any third party) delete, de-identify or otherwise dispose of your Account, except we may retain your registration information (including Personal Information) in accordance with any limitation periods and records retention obligations that are imposed by Relevant Laws;

(c) all licences to use the Pinch S&E App and the Services and rights of access granted under this agreement to you will immediately terminate.

17. THIRD PARTY CONTENT AND WEBSITE LINKS

17.1 You acknowledge that the Pinch S&E App may contain User Content and Third Party Content that may link to other websites tools, links, applications, services, products or resources on the Internet. These websites, tools, links, applications, services, products or resources are not under our control and are not maintained by Pinch. We are not responsible for the content of those websites, tools, links, applications, resources, products or services, and accept no responsibility for them or for any loss or damage that may arise from your use of them (notwithstanding anything else contained herein). Pinch only provide links to third party websites, applications or tools for your information and convenience.

17.2 Links, references or other connections to these websites, tools, applications, resources, products or services do not imply any endorsement of them or any endorsement of the owners, licensors or operators of those websites, tools, applications, resources, products or services.

17.3 We do not recommend or endorse any content, comments or submissions published or posted by advertisers or other users on the Pinch S&E App, the Website or our related social media pages.

17.4 Your linking to or from these sites, or use of, or reliance on, such websites, resources, products or services is at your own risk. You should carefully review the terms and conditions and privacy policies of all off-site pages and other websites or third-party suppliers that you visit or transact with.

18. FORCE MAJEURE

We shall 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).

19. UPDATES AND VARIATIONS

19.1 Without notice to you, we may, at our absolute discretion, from time to time:

(a) change, add or delete the functions, features, performance, or other characteristics of the Pinch S&E App and/or the Services; or

(b) apply or install updates to, or new versions of, the Pinch S&E App.

19.2 You acknowledge that the Content, User Content and Third Party Content on the Pinch S&E App is subject to change at any time and may be out of date at any given time. We are under no obligation to:

(d) notify you of any changes to the any Content, User Content, Third Party Content, the Pinch S&E App and/or the Services unless required by Relevant Laws to do so.

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

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

20. SUPPORT SERVICES

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

20.2 If you require customer support services or you are having difficulties accessing and using the Pinch S&E App and the Services, you may contact us by email at hello@pinchapp.com.au.

21. DISPUTE RESOLUTION

You must, before resorting to court proceedings, refer any dispute with Pinch (excluding complaints about User Content published or post by other users of the Pinch S&E App) 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.

22. COMPLAINTS PROCESS

22.1 If you wish to make a complaint or lodge a report that User Content published or posted by another user of the Pinch S&E App has breached this agreement, you may lodge a complaint using the in-app complaint reporting function or by email at hello@pinchapp.com.au.

22.2 We will use reasonable endeavours to investigate any complaint or report lodged by you or another user of the Pinch S&E App within a reasonable period of time and we may, at our absolute discretion, take corrective action that we deem appropriate in the circumstances (such as modifying, deleting, blocking or removing the User Content).

22.3 We do not guarantee that any User Content will be modified, blocked or removed from the Pinch S&E App following your complaint. We will not take corrective action, if we do not believe that the User Content complained about has breached this agreement.

22.4 Where we have determined, at our absolute discretion, that User Content has breached this agreement, we do not guarantee that such User Content will be deleted or removed within a specific timeframe.

22.5 We will not notify you of the outcome of our investigation or the corrective action (if any) we have taken in response to your complaint, unless you have complained about a breach of your Intellectual Property Rights or privacy rights.

23. SEVERABILITY

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.

24. ASSIGNMENT

Neither party shall, without the prior written consent of the other party (which will not be unreasonably withheld), assign, transfer, charge or deal in any other manner with all or any of its rights or obligations under this agreement, except that Pinch may assign, sell or transfer its rights or obligations under this agreement to an Affiliate or bona fide third party purchaser of the Pinch business.

25. SURVIVAL

Clauses 5.2, 7, 8, 9, 10, 11, 12, 14, 15, 17, 20, 22, 23, 24, 25, 26, 27, 28 29 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.

26. RELATIONSHIP

No agency, principal-agent, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created between you and us by this agreement.

27. ENTIRE AGREEMENT

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).

28. JURISDICTION AND APPLICABLE LAW

1.2 The Pinch S&E 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.

1.3 By using the Pinch S&E App and the Services you submit to the exclusive jurisdiction of the courts of Victoria and agree that any legal action will only be commenced in this forum.

29. DEFINITIONS

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

(a) Account has the meaning in clause 4.1.

(b) 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.

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

(e) 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.

(f) Commencement Date has the meaning in clause 3.

(g) Consequential Loss 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:

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

(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, loss earnings, emotional distress or injury to feelings;

(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

(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.

(a) 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 Pinch S&E App.

(h) Contributor Content has the meaning in clause 6.1(a).

(i) Developed IP has the meaning in clause 10.2.

(j) Force Majeure Event has the meaning in clause 18.

(k) Free Tier Package has the meaning in clause 8.1.

(l) 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.

(m) 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.

(n) Password has the meaning given to it in clause 4.1(a).

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

(p) 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.

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

(r) Pinch S&E App has the meaning in clause 1.1, 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.

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

(t) 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.

(u) Privacy Policy means our privacy policy available on the Pinch S&E App, our Website or any other internet site notified by us from time to time, which is incorporated into this agreement.

(v) Project means a video and photograph editing project undertaken by a Project Owner on, or via, the Pinch S&E App.

(w) Project Contributor means a user of the Pinch S&E App, who shares Contributor Content with a Project Owner and downloads or takes Project Owner Content from a Project Owner in connection with a Project.

(x) Project Package Fee means the fee the Project Owner is required to pay to us to create a Project as specified in the Pinch S&E App and our Website.

(y) Project Owner means a user of the Pinch S&E App who creates a Projects and shares Project Owner Content with a Project Contributor and takes Contributor Content from a Project Contributor in connection with a Project.

(z) Project Owner Content has the meaning in clause 6.1(a).

(aa) Project Term means the period of time that a Project can be shared, edited, downloaded, viewed or accessed by a Project Owner and Project Contributors before the Project is removed from Pinch S&E App.

(bb) 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.

(cc) Registration Portal means the registration portal on the Pinch S&E App used by you to access, use and/or subscribe to the Pinch S&E App.

(dd) Services has the meaning in clause 2.1.

(ee) SM Password has the meaning given to it in clause 4.1(b).

(ff) Social Media Platform means Facebook, Google and Apple ID and any other social media provider permitted by Pinch from time to time.

(gg) Subscription Fee means the subscription fee payable by you to us to remove in-app advertisements published or posted by third party advertisers.

(hh) Taxes means any local taxes of any kind, including duties, levies, tariffs, charges, contribution, imposts or any similar charges (including without limitation, sales taxes, use taxes and value added taxes), whether or not similar to any in force at the Commencement Date and whether imposed by a local, municipal, governmental, state, federal or other body or authority in any of the countries to which this agreement applies.

(ii) Term has the meaning in clause 3.

(jj) Third Party Content means all data, content, materials and information (including text, images, graphics, logos, video and audio clips and links) that are provided by third parties or are identified as belonging to, or sourced from third parties, including third party advertising.

(kk) Third Party Payment Processor means Apple Pay and any other a third party payment processor permitted by Pinch from time to time.

(ll) Website means the website located at www.pinchapp.com.au and any other website notified by us from time to time.

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

(nn) User Content has the meaning in clause 7.1 and includes all data, content, materials and information:

(i) uploaded to, posted or stored on, the Pinch S&E App by you;

(ii) transmitted by the Pinch S&E App at your instigation;

(iii) supplied by you to Pinch for uploading to, transmission by, or storage on, the Pinch S&E App; or

(iv) generated by the Pinch S&E App as a result of the use of the Services by you,

but excluding Pinch IP and Developed IP.

Terms & Conditions

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