Terms of Service (“Terms”)

Last updated: Oct 15, 2017

Please read these Terms of Service (“Terms”, “Terms of Service”) carefully before using the http://www.linklay.com website (the “Service”) operated by Linklay (“us”, “we”, or “our”).

Your access to and use of Linklay is conditional on your acceptance of, and compliance with these Terms. These Terms apply to all trial users, and paid for users and any others who access or use Linklay. You warrant that you are at least 18-years-old and you are legally capable of entering into binding contracts. If you are under 18-years-old, you warrant that you have obtained consent from your parent or guardian and they agree to be bound by these Terms on your behalf.

By accessing or using Linklay, you agree to be bound by these Terms. If you disagree with any part of the terms then you may not access Linklay’s services.

1.0 Purchases

1.1 If you wish to purchase a subscription plan made available through the Service (“Purchase”), you will be asked to supply certain information relevant to your Purchase including, a credit card number and the expiration date of your credit card. Linklay uses Stripe as its payment gateway.

1.2 You represent and warrant that: (i) you have the legal right to use any credit card(s) or other payment method(s) in connection with any Purchase; and that (ii) the information you supply to us is true, correct and complete.

1.3 By submitting such information, you grant us the right to provide the information to Stripe for purposes of facilitating the completion of Purchases.

2.0 Stripe

2.1 To process payments securely and efficiently, Linklay uses a 3rd party payment platform – Stripe. Linklay uses the Stripe API to process credit card transactions for Linklay subscription purchases. Linklay is a “Partner Application” as defined in the Stripe Terms of Service.

2.2 By using Linklay and agreeing to these Terms of Service, You also agree to be bound by Stripe’s Terms of Service.

2.3 You expressly understand and agree that all payments and monetary transactions are handled by Stripe. You agree that Linklay shall not be liable for any issues regarding financial and monetary transactions between You and Stripe.

2.4 Linklay is not liable for loss or damage from errant or invalid transactions processed with Your Stripe account. This includes transactions that were not processed due to a network communication error, or any other reason. Where there is an issue, Linklay customer support will work hard to rectify any issues. But where there is no opportunity for Linklay to resolve an issues relating to your payment with Stripe, the issue will remain between you and Stripe to resolve.

2.5 You understand that Linklay uses the Stripe API to run the Service and that the Stripe API is subject to change at any time and such changes may adversely affect Linklay’s service. You understand and agree to not hold Linklay liable for any adverse effects (whether intentional or unintentional) on the part of Stripe may cause to Your Stripe account, Your Linklay account, or Your business.

2.6 You must not process stolen credit cards, or unauthorized credit cards through Stripe and/or Your Linklay account.

3.0 Annual Subscription Cancellation

3.1 If you purchase an annual subscription and subsequently cancel an annual subscription before the year has finished, you will not receive a pro-rata refund on the time remaining for your annual subscription. When a subscription is cancelled, the account will be operational until the subscription period has finished.

4.0 Unrenewed Subscriptions

4.1 If a subscription package has been purchased, but payment cancelled or payment details not updated, your account will be suspended until such a time as a new subscription is activated. We will not be liable to store your content past 6 months of your account being suspended.

5.0 Early Adopter’s Special (relevant only to purchases made before 4th August, 2016)

5.1 This offer applies exclusively to Essential membership tier holders. Membership is non-transferable. You may not sell or transfer your account to another person. Cancellation of a membership by a member cannot be reversed: if you cancel your membership, you forfeit the early adopter rate for any future membership you may choose to create. All users must abide by all Linklay terms and conditions to remain eligible for the ongoing early adopters discount rate.

6.0 Embedding Shoppable Images

6.1 Embedding shoppable images created by using Linklay’s service is restricted to websites you personally own or administer – unless there is a written arrangement stating otherwise. Linklay Administration may request proof of ownership for a domain at any time.

7.0 Availability, Errors, and Inaccuracies

7.1 We are constantly updating our offerings of our product and services, and therefore from time to time may publish inaccurate information unintentionally. The products or services available on our Service may be accidentally mispriced, described inaccurately, or unavailable, and we may experience delays in updating information on the Service and in our advertising on other websites.

7.2 We cannot and do not guarantee the accuracy or completeness of any information, including prices, product images, specifications, availability, and services. We reserve the right to change or update information and to correct errors, inaccuracies, or omissions at any time without prior notice.

7.3 The content is provided without warranties or conditions of any kind either express or implied, including but not limited to implied warranties and conditions of merchantability, fitness for a particular purpose or non-infringement.

8.0 Contests, Sweepstakes and Promotions

8.1 Any contests, sweepstakes or other promotions (collectively, “Promotions”) made available through Linklay may be governed by rules that are separate from these Terms. If you participate in any Promotions, please review the applicable rules as well as our Privacy Policy. If the rules for a Promotion conflict with these Terms, the Promotion rules will apply.

9.0 Content

9.1 Our Service allows you to post, link, store, share and otherwise make available certain information, text, graphics, or other material (“Content”). You are responsible for the Content that you post to the Service, including its legality, reliability, and appropriateness.

9.2 You retain any and all of your rights to any Content you submit, post or display on or through the Service and you are responsible for protecting those rights.

9.3 You represent and warrant that: (i) the Content is yours (you own it) or you have the right to use it, and (ii) the posting of your Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person. Further, you warrant that: (i) the Content will not cause you or us to breach any law, regulation, rule, code or other legal obligation; (ii) the Content will not or could not be reasonably considered to be obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, blasphemous, in breach of confidence or in breach of privacy; (iii) the Content will not be unsolicited, undisclosed or unauthorised advertising; (iv) the Content does not contain software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software, hardware or telecommunications equipment; and (v): the Content does not bring us or the Service into disrepute.

9.4 You agree to keep all records necessary to establish that your Content does not violate any of the requirements this clause and make such records available upon our reasonable request.

9.5 We are under no obligation to regularly monitor the accuracy or reliability of your Content incorporated into the Service. We reserve the right to modify or remove any Content at any time.

9.6 You acknowledge and agree that all Content you provide on the Service will be publicly available information and you bear the risks involved with such public disclosures.

10.0 Accounts

10.1 When you create an account with us, you must provide us information that is accurate, complete, and current at all times. Failure to do so constitutes a breach of the Terms, which may result in immediate termination of your account on our Service.

10.2 You are responsible for safeguarding the password that you use to access the Service and for any activities or actions under your password, whether your password is with our Service or a third-party service.

10.3 You agree not to disclose your password to any third party. You agree to be fully responsible for activities that relate to your account or your password. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account.

11.0 Intellectual Property

11.1 The Service and its original content (excluding Content provided by users), features and functionality are and will remain the exclusive property of Linklay. The Service is protected by copyright, trademark, and other laws of both the Australia and foreign countries. Our trademarks and trade dress may not be used in connection with any product or service without the prior written consent of Linklay. Nothing in these Terms constitutes a transfer of any Intellectual Property rights from us to you.

11.2 You are permitted to use the Service only as authorised by us. As a user, you are granted a limited, non-exclusive, revocable, non-transferable right to use the Service to create, display, and use Content subject to these Terms.

11.3 Our Intellectual Property must not be used in connection with a product or service that is not affiliated with us or in any way brings us in disrepute.

11.4 Any opinions, advice, statements, services, offers, or other information or content expressed or made available by any other users are those of the respective authors or distributors and not of us.

12.0 Links To Other Web Sites

12.1 Our Service may contain links to third-party web sites or services that are not owned or controlled by Linklay.

12.2 Linklay has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites or services. You further acknowledge and agree that Linklay shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such web sites or services.

12.3 We only provide links to external websites as a convenience, and the inclusion of such a link to external websites do not imply our endorsement of those websites. You acknowledge and agree that when you access other websites on the Internet, you do so at your own risk.

12.4 We strongly advise you to read the terms and conditions and privacy policies of any third-party websites or services that you visit.

13.0 Termination

13.1 We may terminate or suspend your account immediately, without prior notice or liability, for any reason whatsoever, including without limitation if you breach the Terms. This will only occur in extremely rare circumstances, but we reserve the right to do so.

13.2 Upon termination, your right to use the Service will immediately cease. If you wish to terminate your account, you may simply discontinue using the Service.

13.3 All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

13.4 We shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by us in connection therewith.

13.5 If applicable law requires us to provide notice of termination or cancellation, we may give prior or subsequent notice by posting it on the Service or by sending a communication to any address (email or otherwise) that we have for you in our records.

14.0 Data

14.1 We collect anonymous data from every visitor to Linklay.com to monitor traffic, use of Linklay’s service and fix bugs. For example, we collect information like web requests, the data sent in response to such requests, the Internet Protocol address, the browser type, the browser language, and a timestamp for the request.

We ask you to log in and provide certain personal information (such as your full name and email address) in order to be able to create an account and access the service provided by Linklay. In order to enable Linklay’s service or any other login based features, we use cookies to store session information for your convenience. You can block or delete cookies and still be able to use Linklay, although if you do you will then be asked for your username and password every time you log in to Linklay.

14.2 We may collect your personal information or data if you submit it to us in other contexts. For example, if you provide us with a testimonial, or participate in a Linklay contest.

14.3 You are able to view, change and remove your data associated with your profile. Should you choose to delete your account, please contact us at support@linklay.com and we will follow up with such request as soon as possible.

14.4 Minors and children should not use Linklay. By using Linklay, you represent that you have the legal capacity to enter into a binding agreement.

14.5 We collect usage data about you whenever you interact with our services. This may include which webpages you visit, what you click on, when you performed those actions, and so on. Additionally, like most websites today, our web servers keep log files that record data each time a device accesses those servers. The log files contain data about the nature of each access, including originating IP addresses.

14.6 We do not share personal information you have provided to us without your consent, unless:

14.6.1 doing so is appropriate to carry out your own request;
14.6.2 we believe it’s needed to enforce our Terms of Service, or that is legally required;
14.6.3 we believe it’s needed to detect, prevent or address fraud, security or technical issues;
14.6.4 otherwise protect our property, legal rights, or that of others.

14.7 Linklay may contact you, by email or by an in-app chat module. For example, Linklay may send you promotional emails relating to Linklay or other third parties Linklay feels you would be interested in, or communicate with you about your use of the Linklay website. Linklay may also use technology to alert us via a confirmation email when you open an email from us. You can modify your email notification preferences by clicking the appropriate link included in the footer of email notifications. If you do not want to receive emails from Linklay, please opt out of receiving emails at the bottom of any Linklay emails or by editing your profile preferences.

14.8 Referral data. If you arrive at a Linklay.com from an external source (such as a link on another website or in an email), we record information about the source that referred you to us.

14.9 We currently use Google Analytics (traffic analysis, SEO optimization) and Intercom (mailing list management and email/chat support). We listed below what data these third parties extract exactly. Feel free to check out their own Privacy Policies to find out more.

Google Analytics: anonymous (ad serving domains, browser type, demographics, language settings, page views, time/date), pseudonymous (IP address)
Intercom: Name, email, subscription plan, IP (which shows what country the user is using the website from), events on website (e.g. Created a shoppable image), whether the user is logged into Linklay and is online, date account opened, date plan was purchased, how many shoppable images have been create, their blog URL and the last time they were seen using Linklay.com.

14.10 We employ and contract with people and other entities that perform certain tasks on our behalf and who are under our control (our “Agents”). We may need to share personal information with our Agents in order to provide products or services to you. Unless we tell you differently, our Agents do not have any right to use Personal Information or other information we share with them beyond what is necessary to assist us. You hereby consent to our sharing of Personal Information with our Agents.

14.11 We may choose to buy or sell assets. In these types of transactions, user information is typically one of the transferred business assets. Moreover, if we, or substantially all of our assets, were acquired, or if we go out of business or enter bankruptcy, user information would be one of the assets that is transferred or acquired by a third party. You acknowledge that such transfers may occur, and that any acquirer of us or our assets may continue to use your personal information as set forth in this policy.

15.0 FUP – Fair Use Policy

15.1 At Linklay, we want all of our customers to get the best use of Linklay using our ‘subscriptions’, at the lowest possible price. This Fair Usage Policy (“FUP”) is designed to prevent fraud, abuse or very high volume use of our subscriptions by a small number of users.

Subject to this FUP, Linklay’s unlimited subscriptions allow an unlimited number of images to be converted to shoppable images.

15.2 Linklay’s subscriptions are for individual use only (personal or business communications) in accordance with our Terms of Use and this FUP (“Legitimate Use”). The following is a non-exhaustive list of practices that would not be considered Legitimate Use:

Using subscriptions for;

15.2.1 Re-selling shoppable images to multiple domains where there is not a license for each domain;
15.2.2 Sharing subscriptions between users;
15.2.3 Reselling and rebranding the service as your own;
15.2.4 Unusual usage patterns inconsistent with normal, individual subscription use;
15.2.5 and shoppable images which result in extremely high volume data requests which put Linklay at risk. (In this event, special plans will be created for users to adopt, or refuse and shut down their Linklay account.)

15.3 Other practices may be relevant in determining Legitimate Use and Linklay reserves the right to take any unlawful, prohibited, abnormal or unusual activity into account in making its determination. Linklay may at its option, terminate its relationship with you, or may suspend your subscription immediately if it determines you are using your subscription contrary to this FUP or Linklay’s Terms of Use.

15.4 Where reasonable, Linklay will provide you with notice of improper usage before suspension or termination of your subscription and, if appropriate, Linklay may offer you an alternative subscription.

16.0 Indemnification

16.1 As a condition of your access to and use of Linklay, you agree to indemnify us and our successors and assigns for all damages, costs, expenses and other liabilities, including but not limited to legal fees and expenses, relating to any claim arising out of or related to your access to and use of Linklay or your breach of these Terms and any applicable law or the rights of another person or party.

16.2 Licensor agrees to defend, indemnify, and hold Licensee, and its officers, directors, agents, and employees, harmless against all costs, expenses, and losses (including reasonable attorney fees and costs) incurred through claims of third parties against Licensee based on a breach by Licensor of any representation and warranty made in this Agreement as well as for any third-party claim for infringement of its intellectual property rights based on Licensee’s use of the Software.

16.3 This indemnification section survives the expiration of your registration, and applies to claims arising both before and after the registration ends.

17.0 Limitation Of Liability

17.1 You agree that we shall not be liable for any damages suffered as a result of using the Service, copying, distributing, or downloading Content from the Service.

17.2 In no event shall we be liable for any indirect, punitive, special, incidental or consequential damage (including loss of business, revenue, profits, use, privacy, data, goodwill or other economic advantage) however it arises, whether for breach of contract or in tort, even if it has been previously advised of the possibility of such damage.

17.3 In no event shall we be liable for any claims by a third party in tort or contract, or pursuant to the Competition and Consumer Act 2010 (Cth) including, but not limited, to any misleading statements made and/or incorporated into any Content provided by third parties, such as manufacturers and wholesalers, and users of the Service. It is your sole responsibility to ensure the accuracy of the data inputted.

17.4 You have sole responsibility for adequate security protection and backup of data and/or equipment used in connection with your usage of the Service and will not make a claim against for lost data, re-run time, inaccurate instruction, work delays or lost profits resulting from the use of the Service. You must not assign or otherwise dispose of your account to any other person.

18.0 Disclaimer

18.1 Your use of the Service is at your sole risk. The Service is provided on an “AS IS” and “AS AVAILABLE” basis. The Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement or course of performance.

18.2 This disclaimer of liability applies to any damages or injury caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft, or destruction or unauthorized access or, alteration of or use of record in connection with the use or operation of the Service, whether for breach of contract, tortious behaviour, negligence or any other cause of action.

18.3 We make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the content contained on the Service for any purpose. Any reliance you place on such information is therefore strictly at your own risk. We disclaim any express or implied warranty representation or guarantee as to the effectiveness or profitability of the Service or that the operation of our Service will be uninterrupted or error-free. We are not liable for the consequences of any interruptions or error in the Service.

19.0 Exclusions

19.1 Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to you.

20.0 Governing Law

20.1 These Terms shall be governed and construed in accordance with the laws of Queensland, Australia, without regard to its conflict of law provisions.

20.2 Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. These Terms constitute the entire agreement between us regarding our Service, and supersede and replace any prior agreements we might have between us regarding the Service.

21.0 Changes

21.1 We reserve the right, at our sole discretion, to modify or replace these Terms at any time.

21.2 It is your sole responsibility to periodically check these Terms for any changes. If you do not agree with any of the changes to these Terms, it is your sole responsibility to stop using the Service. Your continued use of the Service will be deemed as your acceptance thereof.

Contact Us

If you have any questions about these Terms, please contact us at support@linklay.com