WEBSITE, GEM APP AND GENERAL TERMS AND CONDITIONS

Last updated 17 July 2022

GEM is a subscription-based platform which offers its customers exclusive access to rewards, discounts, cashback offers and exclusive offers and deals in Australia (Deals) to its members through its website and downloadable digital software application (GEM Rewards Program).

This website and/or mobile application is owned and operated by Giving Even More Pty Ltd (ACN 656 165 589) of C/- MBC Accountants Suite 2, Level 1, 28 Young Street, Moonee Ponds, Victoria 3039 (“GEM”, “We”, “ Our” or “Us”).

By engaging with GEM through the GEM App or Website, you acknowledge and agree that your access to, and use of, this website is STRICTLY subject to these Terms and Conditions. This will apply for all person and entities, engaging, using or accessing the GEM App or Website, and the content thereupon, including but not limited to any person or entity who is a customer, client, browser, merchant, vendor, associate or commercial partner, or prospective commercial party intending to be engaged in dealings with GEM.

GEM operates the GEM Rewards Program, GEM App and the Website under grant of licence from Giving Even More Holdings Pty Ltd (GEM Holdings) for the use of all intellectual property, assets, data and database and entitlements contained therein (or accessed therefrom), and by engaging with GEM, you agree that these Terms and Conditions are at all times subject to the condition of the such licence and that all aforementioned rights to data exchanged through the GEM App and Website are owned by and retained by GEM Holdings. You acknowledge and accept that GEM Holdings is entitled to be assigned or novated all GEM’s rights, entitlements and obligations under these Terms and Conditions. To the fullest extent permitted in law (including as a deed poll by you), you agree and acknowledge that GEM Holdings is vested and granted all rights, entitlements benefit held by GEM in this agreement and in connection with all terms, conditions, covenants or authorisations provided herein, notwithstanding that GEM Holdings is not a party to the agreement. You agree that GEM Holding may exercise all rights and entitlements under this agreement, on its own behalf, in the place of GEM or on behalf of GEM at its sole discretion.

If you do not understand the following Terms and Conditions and require further assistance, please contact us support@gem.com between 8am-3pm AEST Monday to Friday (excluding public holidays) and GEM will use its best endeavours to respond within 48 hours.

These terms and conditions may be referred to as the “Website and General Terms and Conditions” from time to time (including but not limited to any trade promotion terms and conditions, our Privacy Policy and our Cookies Policy)

1. TERMS AND CONDITIONS

1.1 These Terms and Conditions govern your use of the Website and GEM App, your engagement with GEM and your entitlements under, and access to the GEM Rewards Program.

1.2 In these Terms and Conditions:

1. 1. we may refer to you as “you”, “your” or “User”;
   2. “Deal/s” mean the rewards, promotions, discounts and deals from third parties suppliers to which GEM provide its Package Holders and Members access as part of the GEM Rewards Program.
   3. “Foundation Members” are Members who subscribe for Membership prior to 7:20PM, 31 July 2022, and are subject to Special Promotion Terms and Conditions applying at that time, or such other period of time as GEM may determine at its discretion.
   4. “GEM App” or “App” means the web app, web application, mobile application, app and any other like software utilised by GEM from time to time;
   5. “Members” mean subscribers of Memberships (as described hereunder and in Schedule 1) provided by GEM;
   6. “Package Holders” means purchasers of Packages (as described hereunder and in Schedule 1) provided by GEM; and
   7. “Related Parties” includes “Associate”, “Related Body Corporate” and “Related Entity” within the meaning given to that term in the Corporations Act 2001 (Cth), including but not limited to GEM Holding, in addition to their affiliates, directors, officers, employees, agents, sub-agents, contractors, sub-contractors, partners, principals, parent company, licensors, licensees, representatives, successors and assigns of a party and expressly includes any call centre engaged or used by the party, and where the context permits includes persons who may become, or who have ceased to be, such persons;
   8. “Website” or “Site” means the internet website www.thegem.com, and all its pages (excluding third party pages and sites);

1.3 GEM reserves the right to change these Terms and Conditions anytime without providing any notice. However, each order placed on this Website will be governed by the Terms and Conditions in force on the date of the transaction.

2. ACCEPTANCE OF THESE TERMS AND CONDITIONS OF USE

2.1 TAKE NOTE: PLEASE READ THESE TERMS AND CONDITIONS BEFORE SUSBCRIBING FOR A GEM PACKAGE OR MEMBERSHIP, ACCESSING THE GEM REWARDS PROGRAM OR USING THE GEM APP OR WEBSITE. BY ACCESSING AND USING THE GEM APP OR WEBSITE, REGISTERING OR SUBSCRIBING WITH GEM AND/OR PLACING AN ONLINE ORDER WITH GEM, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS AND OUR PRIVACY POLICY, COOKIES POLICY AND ANY OTHER POLICIES GEM INTRODUCE FROM TIME TO TIME (“POLICIES”). IF YOU DO NOT AGREE TO ADHERE TO THESE TERMS AND CONDITIONS AND POLICIES, YOU MUST IMMEDIATELY EXIT THE GEM APP AND WEBSITE AND DO NOT CONTINUE TO ACCESS THE GEM APP AND WEBSITE’S CONTENT OR USE IT TO PURCHASE GEM SERVICES, INCLUDING BUT NOT LIMTIED TO REGISTERING OR SUBSCRIBING WITH GEM FOR ANY PACKAGES OR MEMBERSHIPS, OR IN ANY WAY ACCESS OR USE ANY DEALS PRESENTED AS PART OF THE GEM REWARDS PROGRAM OR PARTICPATING IN A TRADE LOTTERY PROMOTION CONDUCTED BY GEM. IN ADDITION, YOU MUST ALSO DELETE AND UNINSTALL THE GEM APP FROM YOUR ELECTRONIC DEVICES.

2.2 In accessing, registering or using the GEM App or Website, including any and all its webpages, the services and products, information, text and images, offered or provided on the GEM App or Website, you are deemed to have read and personally agreed to the Terms and Conditions.

2.3 GEM may provide you with trade promotions or promotional offers including in-app or additional purchases or entitlements from time to time which will be subject to separate terms and conditions to be read in conjunction with these Terms and Conditions.

3. SERVICES

3.1 In consideration of paying the Subscription Fee when due, GEM provides its customers with access to a platform through which it can exclusively access to third party rewards, discounts and deals in Australia (“the GEM Rewards Program”).

3.2 Your entitlements under the GEM Rewards Program are determined by the Packages and Membership purchased by you, depending on the option to which you subscribe. Within each option, your entitlements are further determined by the tier that you choose and payment of the Subscription Fee.

3.3 You agree that by subscribing to the GEM Rewards Program, GEM may modify, alter, change, suspend or discontinue any part of the GEM Rewards Program in its sole discretion, and you agree to be bound by any such altered, changed, suspended or discontinued part of the GEM Rewards Program as a condition of your subscription thereto.

4. SUBSCRIPTION AND REGISTRATION

4.1 In order to access the Deals, you must pay the Subscription Fee, and subscribe and register as a Member or Package Holder in the GEM Rewards Program under the terms of these Terms and Conditions.

4.2 In completing your registration and subscription, GEM will require you to provide personal information which shall be handled and collected in accordance with our Privacy Policy.

4.3 In providing your personal information for the registration and subscription to the GEM Rewards Program, you warrant that all such information is true and accurate in every particular. As part of the registration and subscription process, you will be required to provide a username as your personal identifier, and a password in order for you to set up and access an account with GEM. You are solely obligated to keep safe your username and password, and GEM will not be held responsible for any loss of your username and password. By registering and subscribing to the GEM Rewards Program, you agree that all activity with the use of the username selected by you represents activity carried out by you personally. You are solely liable and responsible for the actions taken under your username.

4.4 By registering, subscribing and creating an account with the GEM Rewards Program, you declare and warrant that you:

1. 1. are at least eighteen (18) years of age;
   2. are of a legal capacity enter into a legally binding agreement with GEM;
   3. will use the GEM Rewards Program, Website and GEM App in accordance with these Terms and Conditions.

5. COLLECTION NOTICE

5.1 By registering, subscribing and creating an account with the GEM Rewards Program GEM will collect personal information about you for the purpose of identifying you, contacting you, processing your registration and subscription, and providing you with the benefits attached to your subscription to the GEM Rewards Program, and for purposes otherwise set out in our Privacy Policy. By providing your personal information, you agree that GEM may provide such information to third parties in the delivery of the benefits and services offered as part of the GEM Rewards Program (including the provision of such information to our information technology suppliers, communication suppliers and business partners) or as otherwise required by law.

5.2 GEM will otherwise collect your personal information and use it in accordance with our Privacy Policy.

5.3 You will be able to access your personal information provided to us upon written request to GEM.

5.4 If you have any further questions with regard to the Collection Notice, please contact GEM at support@gem.com.

5.5 The main consequence for you if you do not provide all or part of the information requested of you as part of the registration, subscription and membership with the GEM Rewards Program, is that you may not have access or enjoy the benefit of some or all of the benefits and services provided to you by us through the Program.

5.6 By providing your personal information to us, you consent to the collection and use of that information in accordance with these Terms and Conditions and our Privacy Policy.

6. PERMISSIONS WE ASK FOR

6.1 By agreeing to our Terms and Conditions including our Policies, you are allowing GEM to:

1. 1. Send you push notifications;
   2. Access your location including your GPS information to get your exact location, the wireless network you are using, local cell tower information, current WI-FI points as well as access to your compass;
   3. Allows us to show you notifications on your app icon;
   4. Access information about your device hardware and software including, for example: which operating system version you are using, advertising identifiers, device identification, device type and model, size of screen, language, microphone, time zone you are in and generally other information available on your device.

6.2 Sensors in your phone, watch or tablet including:

1. 1. Accelerometer;
   2. Digital Compass (Magnetometer);
   3. Gyroscope Sensor;
   4. Ambient light Sensor;
   5. GPS Sensor (Global Positioning System;
   6. Proximity Sensors;
   7. NFC Sensors (Near Field Communication).

6.3 GEM may use the above information to activate different features in the GEM App and for gathering information to provide the best experience when using the same.

7. MEMBERSHIP AND PACKAGES

7.1 The amount of time you have access to the GEM Rewards Program is determined by the tier of Package or Membership for which you subscribe.

7.2 By subscribing, registering and paying the Subscription Fee in accordance with these Terms and Conditions, and complying therewith, you will be provided with the entitlements associated with each tier on the terms set out in Schedule 1, subject to these Terms and Conditions.

7.3 All Member’s and Package Holder’s entitlements are subject to the continued operation of business by GEM in providing the GEM Rewards Program, such that if for any reason GEM ceases it business and services herein described, all entitlements will be cancelled and forfeited, and you agree to release GEM and its Related Parties from all claim and liability in connection with such cancellation or forfeiture.

8. SUBCRIPTION FEE AND PAYMENTS

8.1 In these Terms and Conditions, the “Subscription Fee” for the Packages and Memberships are the fees last published on the GEM Website and/or GEM App and/or Schedule 1 at the time of subscription, and renewal thereof. You acknowledge and agree that the Subscription Fee is subject to binding change from time to time, at GEM’s absolute discretion.

8.2 If the Subscription Fee set out on the GEM Website, GEM App and/or Schedule 1 conflicts, the fee stated at Schedule 1 shall prevail.

8.3 The Subscription Fee for a Membership is due monthly at the start of each billing cycle in advance.

8.4 A billing cycle shall be monthly, commencing on the day that you first subscribe to a Membership and pay the Subscription Fee (“billing cycle”), except for Foundation Members whose billing cycle shall commence on the 1 August 2022;

8.5 From the due date of each Subscription Fee, GEM may, but is not obligated to, attempt to debit your nominated payment method once every five (5) calendar days until GEM receives the amount due to it pursuant to your subscription or membership.

8.6 All Subscription Fees and prices on the GEM App, Website and Schedule 1 are in Australian dollars and are inclusive of GST. Subscription Fees and prices are subject to change without notice. In respect of any order made by you on the GEM App or Website, GEM will charge you, and you agree to pay, the stated Subscription Fee, purchase price (if applicable) and the delivery fee as at the time the order was placed.

8.7 GEM accepts payment by the way of Visa and MasterCard. By ordering any Packages or Memberships from the GEM App or Website, you authorise GEM to charge all fees relating to your order to your nominated credit card. If payment is not received from the card issuer or its agents for any given reason, you agree to pay GEM all amounts due on demand.

8.8 Packages and Memberships must be paid in full at the time of purchase, unless otherwise agreed between you and GEM in writing. GEM is under no obligation to deliver or honour, or provided access and entitlement in accordance with any Packages or Memberships until payment for those Packages or Memberships have been paid for in full and payment is received.

8.9 GEM undertakes thorough planning to ensure it holds sufficient merchandise stock levels to satisfy orders, however you acknowledge and agree that GEM does not guarantee that it will always have sufficient stock to satisfy all orders. If the requested products are unavailable at the time of purchase, GEM will offer a similar alternative or provide you with a credit for the value of that item. You will be notified if this occurs however, to the extent permitted by law, cash refunds will not be given.

8.10 If GEM decides that the product was not damaged on arrival or faulty, and it is not covered by a manufacturer’s warranty, a replacement or exchange may not be offered. GEM will not accept cancellations of orders.

8.11 The cost of returns will be at your own expense unless the products are damaged or faulty.

8.12 If you intend to seek a replacement or exchange, you must email us at support@gem.com and we will endeavour to respond within 48 hours.

9. DELIVERY – MERCHANDISE & GEM STORE

9.1 GEM delivers within Australia to all major capital cities and towns and internationally. GEM also provides fixed-price shipping for all international orders. A GEM team member will endeavour to provide you with a delivery estimate at the time an order is placed and payment is received in full. The estimated time of delivery ultimately depends on where your order is being shipped to and the volume of the order, and the capacity of the delivery company at the time of shipment.

9.2 GEM endeavours to deliver the goods within 1-7 business days however you may request express post at your own, additional expense.

9.3 Whilst GEM always endeavours to meet the delivery date on the scheduled days, you acknowledge and agree that GEM is not and will not be liable for any loss or damage, howsoever it arises, if the products are not delivered by the scheduled delivery day.

9.4 You or your authorised recipient must be available to collect the products at the estimated delivery time at the nominated delivery address. If you are unable to collect the products at the estimated time and location, GEM reserves the right to charge an additional delivery fee. A re-delivery fee will be determined once you have made contact with GEM to arrange the products to be re-delivered.

9.5 It is your responsibility to ensure correct delivery address details and contact numbers are provided to GEM, where delivery is made to an incorrect address, an additional delivery fee will be charged to you for re delivery to the correct address.

9.6 Orders returned to GEM due to incorrect address, failure to collect from Australia Post Outlet, or failure to contact courier after an attempted delivery, will incur a re- shipping AND re-delivery fee. All GEM deliveries will be made on business days only.

9.7 Refunds will not be given for late delivery. GEM will not be held liable for late delivery outside of our stipulated delivery time frames. We endeavour to ship your delivery on time and without any delay. If a delay does occur, it is often during transit, which is out of GEM control. In the rare case you do not receive your parcel within the anticipated and estimated time frame, please contact us at info@timandterry.com.au and we will follow up with the courier service.

9.8 Please note that during peak times (November-December) standard delivery times may be greater than 1-7 business days. Accordingly, orders during these times should be placed as early as possible to avoid delays.

10. REFUNDS AND RETURNS

When purchasing a Packages and Membership from the Website or GEM App, please order carefully. GEM does not provide a refund or exchange if you change your mind or choose a Package or Membership by accident or mistake.

11. ADDITIONAL TERMS

11.1 You acknowledge that most Deals have their own additional terms and conditions which may apply. By accessing and using such Deals, you must agree to the relevant terms and conditions applicable to those Deals. In case of any inconsistency between such terms and conditions and these Terms and Conditions and Policies, these Terms and Conditions will prevail insofar as they relate to the use of the Website, GEM App, and your entitlements regarding the GEM Programs, Membership or Packages.

12. THIRD PARTY DEALS

You acknowledge all Deals are controlled, operated and offered by third parties. By subscribing and paying the Subscription Fee, you agree that GEM is a referrer and/or an notifier of the Deals only, and must not be held responsible for any liabilities in connection with Deals whatsoever, including but not limited to the availability of the Deal, or the terms or particulars of any Deals (or any inaccuracies in connection thereto).

13. THIRD PARTY RETAILERS AND WEBSITES

13.1 As a Package Holder or Member, GEM will provide you with the opportunity to access Deals given by Third Parties (“ Third Party Retailer”) which may be exclusive to GEM Members and Package Holders.

13.2 GEM may include links on the GEM App and Website to websites owned and operated by Third Party Retailers (“ Third Party Websites”). GEM is not responsible for the content on any Third Party Websites, the availability of goods or services, the quality or suitability in relation to any Deals or Third Party Retailer, the terms or availability of any Deals, nor is GEM responsible for any damages, offence, loss, cost or damage suffered as a consequence of engaging with or using Third Party Websites, Third Party Retailers or any Deals. The parties agree that there must be no implication of association or endorsement of the action, information and materials on a Third Party Website, nor in relation to any activity thereupon by you or any other user of the site.

13.3 You acknowledge that there is no endorsement by GEM of Third Party Retailers and their conduct and activities.

13.4 All Deals are presented as benefits that may possibly be accessed by a Member or Package Holder, and at all times subject to your due diligence and enquiry of the Deal with the Third Party Retailer offering the Deal.

13.5 Nothing in these Terms and Conditions, or the GEM Rewards Program shall be construed to mean that GEM guarantees any of the Deals in any way or particular whatsoever.

13.6 When using a Third Party Retailer, you must read and agree to the Third Party Retailer’s terms and conditions and privacy policy.

13.7 GEM takes no responsibility for the security or any other risk associated with using the Third Party Retailer or using or accessing, or attempting to use and access the Deals or any Third Party Websites.

13.8 You agree to release and indemnify GEM and its Related Parties for and against any and all claims, liability, damages, obligations, losses, liabilities, costs or debt, and expenses (including, but not limited to, legal fees) arising from or in connection with any Third Party Websites or any Third Party Retailers, the Deals they may offer, and/or their products or services.

13.9 You acknowledge and agree that prices published in connection with any Deals or Third Party Retailer may vary, for reason which include but are not limited to the type of purchase and the region in which you are located.

14. TITLE AND RISK

Title and risk regarding products offered for sale on or through this GEM App or Website and purchased by you, will be at your sole risk and subject to your entitlement with the Third Party Retailer only, except to the extent of any GEM merchandise sold by GEM.

15. DISCLAIMER, WARRANTIES AND LIMITATION OF LIABILITY

15.1 GEM makes no representation or warranties as to the use and content of the Website and GEM App.

15.2 You agree to indemnify GEM and its Related Parties for any liability, loss, cost or damage incurred by you (directly or indirectly incurred) in connection with the access or use of the GEM App, Website and GEM Rewards Program, any Deals, or third party products or services, howsoever and whensoever incurred.

15.3 You agree to release and hold harmless GEM and its Related Parties against any claim or demand made by you or any third party, emerging out of or in connection with the access or use of the GEM App, Website and GEM Rewards Program, any Deals, or third party products or services, howsoever and whensoever incurred.

15.4 You acknowledge and agree that your use of this Website and GEM App is at your sole risk. The Website, GEM App the GEM Rewards Program and their Content, including any Deal, our Packages and Memberships, are provided on an “as described” and “as available” basis without any representation, warranty or conditions of any kind, neither express or implied, as to the availability or validity of any Deals, or the quality, fitness for a particular purpose or durability of any content or products displayed therein.

15.5 By subscribing and paying the Subscription Fee and accessing the GEM Rewards Program you agree that you do so at your sole risk in consideration of the following:

1. 1. That the Deals, and any entitlements, offers and benefits presented in the GEM Rewards Program may be limited, removed, changed or altered, in whole or in part, whether in their availability or their detail or specifications, and at any time at GEM’s sole discretion;
   2. That your Fee is in consideration for opportunity of accessing the Deals in the GEM Rewards Program and for discount merchandise (if relevant) only .

15.6 You acknowledge and agree that GEM will not be liable for any loss, damage or expense, directly or indirectly incurred, howsoever arising, in connection with your use of, or access to the GEM App or Website, the Deals and Content contained therein, including those which you may suffer in connection with your inability to access the GEM App or Website and/or as a result of any Content contained in them being incorrect, incomplete or not up-to-date.

15.7 You acknowledge and agree that GEM and its Related Parties, will not be liable for damages of any kind, including without limitation any compensatory, incidental, direct, indirect, special punitive or consequential damages, loss of use, loss of data, loss of income or profit, loss of damage to property, loss of opportunity, legal costs, claims of third parties or other losses of any kind, arising out of or in connection with the use of the Website or GEM App, Deals, content, products displayed on the GEM App or Website, the use of the GEM App or Website or any third party website that it is linked to, including but not limited to any such loss or damage congenital of any viruses, inaccurate information, interruption of use of the Website or GEM App, and security of the same, to the fullest extent permitted in law.

15.8 GEM’s limitation of liability to you for any loss or damage relating to the GEM Rewards Program, Membership, Package, GEM App, Website or Deals is reduced to the extent of (if any) contribution by you to that loss or damage and our liability shall be limited to the maximum extent permitted by law.

15.9 You agree that GEM may restrict, limit, suspend, terminate your access and use of the Website, GEM App and the GEM Rewards Program and the content or feature therein, at any time at GEM’s sole discretion, and GEM must be held harmless for any liability, loss, cost or damage occasioned as a result thereof, and notwithstanding GEM’s discretionary entitlement such reasons may include your engagement in unlawful activities or misconduct or conduct which threatens the fair, intended and proper operation of the GEM Rewards Program, Website and GEM App.

15.10 GEM is entitled to seek all remedies available at law or in equity for any breaches of these Terms and Conditions by you, and may suspend or terminate your account and ultimately block access from a particular internet address to this site. GEM’s failure to enforce or pursue any one or more of these rights under these Terms and Conditions will not constitute a waiver of such rights.

15.11 In addition to the foregoing, you agree to indemnify and hold harmless GEM and its Related Parties and agents of these entities, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including, but not limited to, legal fees) arising from or in connection with:

1. 1. your violation of any term of these Terms and Conditions; and
   2. your violation of any third party right, including without limitation any copyright, property, or privacy right.

16. ACCURACY, ERRORS AND OMMISSIONS

16.1 Whilst GEM makes every effort to ensure the accuracy of the GEM App or Website content, you acknowledge that periodically omissions or errors may occur in relation to some or all the content of the GEM App or Website. If you believe that an error or omission exists on the GEM App or Website, we kindly request that you immediately notify us of the error or omission.

16.2 You acknowledge and agree that GEM is not in any way liable to you for any direct or indirect loss, damage, cost or expenses suffered or incurred by you as a result of any error or omission appearing on the GEM App or Website, including legal costs and loss of opportunity.

16.3 Occasionally information on the GEM App or Website may contain typographical errors, inaccuracies or omissions that may relate to any Deals, product descriptions, pricing, product availability, delivery charges, and delivery times. GEM reserves the right to correct any errors, inaccuracies or omissions, and to change or update information if any information related to a Deal or products, the GEM App or Website or on any Third Party Website is inaccurate and it may be done so at any time without notice, including after you have placed an order therewith.

16.4 GEM are under no obligation to update, amend or clarify any information related to the Deals, products, the Website, GEM App or on any Third Party Website, including without limitation, pricing, particulars of a Deal or any other information relating to a Deal or possible Deal, except as required by law.

16.5 By engaging with GEM via the GEM App or Website, you acknowledge that the internet is an unsecured public network and by interacting the GEM App or Website you will be providing information across such network. GEM will undertake all reasonable measures to protect the security of information transmitted by you and/or to you, however such information may be unintentionally displayed, intercepted, corrupted or modified by third parties. Furthermore, files acquired through or from the GEM App or Website may contain computer viruses or potentially other harmful codes or defects. For more information regarding your privacy, please see our Privacy Policy.

16.6 By engaging the GEM App or Website and providing and receiving such information, you acknowledge these risks, and any losses or damages that may unintentionally occur.

17. INTELLECTUAL PROPERTY

17.1 GEM's intellectual property includes the entire content included in the GEM App and Website including, but not limited to text, designs, photographs, images, logos, graphics, audio, video or code (“ GEM’s Intellectual Property”). GEM’s Intellectual Property is used under licence by GEM. Where content on the GEM App or Website is provided by persons other than GEM or its affiliates or Related Parties, including but not limited those in association with the Deals, then that content may be deemed to be owned by the third party providing the content and protected by Australian and international copyright laws.

17.2 These trademarks, logos and other proprietary rights forming a part of GEM’s Intellectual Property may not be used in relation to any other product or service without GEM’s written consent.

17.3 You must not post, broadcast, copy, edit, adapt, transform, publish, distribute, use or share GEM's Intellectual Property on the GEM App and Website without the express permission of GEM. If you post copyright material which violates GEM’s rights, GEM may remove the content or disable your account if necessary.

17.4 Except in regard to your own user-generated content, you agree that you have no right, title or interest in or to any content that appears on this GEM App or Website. Reproduction of any content, design, layout, look, appearance or graphics contained in the GEM App or Website is prohibited and may infringe our rights under the Copyright Act 1968 (Cth).

17.5 Where any content of the GEM App or Website is downloaded or printed you agree that such content is to be used solely for private and non-commercial purposes or to evaluate and/or purchase of any GEM services.

17.6 Where not owned by GEM, GEM may license from third parties rights, title and intellectual property (including copyright, designs, patents, trademarks and other intellectual property rights) appearing on the GEM App and Website and its contents.

17.7 By using the GEM App or Website you agree and acknowledge that you are not granted or transferred any rights, title or interest in relation to any content thereupon. You are however permitted a limited and conditional right to access the GEM App and Website, and to view the content thereupon subject to these Terms and Conditions.

17.8 If you infringe GEM's intellectual property rights, GEM reserves the right to disable your account and revoke all entitlements thereunder with no refund provided, indefinitely if necessary.

18. NOTIFICATIONS AND MESSAGES FROM THE GEM APP

18.1 By downloading and using the GEM App, you acknowledge that you are providing your express consent to receive commercial messages and notifications from GEM, for the purposes of advertising, promoting and providing special offers relating to GEM pursuant to the requirements of the Spam Act 2003 (Cth).

18.2 By subscribing to a Membership or Package, you agree to receive and accept all notices and service by SMS and email to the contact details provided by you upon sign-up, or as changed by you in your account from time to time.

19. USING THE GEM APP AND WEBSITE

19.1 The GEM App and Website are online applications and web pages used by you to view and access your Account, GEM Rewards Program, the Deals, and any other terms and conditions, information or notifications provided by GEM.

19.2 When using the GEM App and Website, you acknowledge and agree that you must set up a user account which may require you to provide the following information:

1. 1. Your full name;
   2. A nominated available username;
   3. contact information;
   4. residential address;
   5. A nominated available passwords;
   6. IP Address;
   7. Profile Picture; and
   8. any other information GEM deems necessary from time to time. (“ Personal Information”)

19.3 You are responsible for maintaining confidentiality of all your Personal Information.

19.4 You agree to accept full responsibility for all your activities on the GEM App and Website.

19.5 The GEM App and Website must only be used by persons over the age of eighteen (18) years. GEM reserves the right to refuse service, terminate your access to the GEM App and Website, or cancel your account without any further notice to you.

19.6 In making the GEM App and Website available for use, you acknowledge that GEM:

1. 1. does not provide you with any goods or services other than the provision of access to the GEM Rewards Program and any merchandise available for sale from time to time;
   2. does not guarantee that the GEM App and Website systems will be error free or any errors will be corrected;
   3. does not guarantee that the GEM App and Website will be free from any viruses, harmful components or any other unintended third-party interference; and
   4. reserves the right to alter or remove any corrupted content that subject to or was caused by a software fault, error or malicious attack.

20. USERNAME

When you as a User becomes a Member or Package Holder, you will be asked to create a Username for your account. You are solely responsible for selecting your username in relation to using the GEM App and Website.

21. PROFILE PICTURE LICENCE

21.1 You may be required to provide a profile image (“ Profile Picture”) to use the GEM App or Website and to access the GEM Rewards Program.

21.2 When you upload your profile picture to GEM, you:

1. 1. absolutely and unconditionally grant a non-exclusive, world-wide licence to GEM in perpetuity, for nil consideration to use your Profile Picture on the GEM App and Website for the purpose of identifying you within your user profile;
   2. You covenant to GEM that you own all right, title and interest in the copyright or any other intellectual property rights of your Profile Picture and/or have the right, or express permission of the right owner to upload and use the image on the GEM App and Website; and
   3. any Profile Picture found to be infringing copyright or intellectual property right that belongs to third party will be immediately taken down by GEM without notice, and you will indemnify GEM against any liability, loss, cost or expense in connection with such infringement.

22. ACCESS AND RESTRICTIONS

22.1 You acknowledge and agree that from time to time access to the GEM App and Website may be denied for any one or all of the following reasons:

1. 1. maintenance and/or repairs;
   2. upgrades and enhancements;
   3. GEM server down time or failure;
   4. GEM systems down time or failure; or
   5. software utilised by GEM is corrupt or has failed,

and you accept the interruption, and to the fullest extent permitted in law, release GEM and its Related Parties from any loss, cost or damage that you may suffer as result of such interruption, including but not limited to your interrupted access to the GEM Rewards Program and any Deals.

23. LICENCE TO USE THIS APP

23.1 Subject to these Terms and Conditions, GEM hereby grant to you, and you accept, a personal, non-exclusive, non-commercial, non-transferable, non-sublicensable and fully revocable limited license to download and use the GEM App on your mobile telephone, device or tablet solely for the limited purpose of your internal non-commercial use, and for no other purpose, strictly in accordance with these Terms and Conditions and any applicable law.

23.2 For the avoidance of doubt, these Terms and Conditions do not convey to you an interest in, or to GEM’s Intellectual Property but only a limited revocable right of use in accordance with these Terms and Conditions. Nothing in these Terms and Conditions constitutes a waiver of GEM’s Intellectual Property under any law.

24. YOUR OBLIGATIONS WHEN USING THE GEM APP OR WEBSITE

GEM requires you as the User, to agree and acknowledge the following:

24.1 You will not upload a virus or malicious malware to the GEM App or Website.

24.2 You will not collect any GEM content via any electronic, digital or any other means without written consent of GEM.

24.3 You will not hack anyone other User’s content or account.

24.4 You will not “troll” against any other GEM’s users.

24.5 You will not use any robot, spider, scraper or other automated means to access the Website or GEM App for any purpose without our express written permission.

24.6 You will not take any action that imposes, or may impose in our sole discretion, an unreasonable or disproportionately large load on our infrastructure, interfere or attempt to interfere with the proper working of the GEM App or Website or any activities conducted on the GEM App or Website, or bypass any measures GEM may use to prevent or restrict access to the GEM App or Website.

24.7 You will not operate any motorised transportation including but not limited to motor cars, motor bike, moped, or trucks, heavy machinery, boats, marine vehicles, cranes bikes, motorbikes or other engine, battery recreational equipment or devices whilst using or visiting our GEM App or Website.

24.8 You will not be distracted from any activity you are currently or were doing prior to checking the site, your feed or viewing video content, advertisements or anything posted on our site.

24.9 You will not leave children, the aged, disabled, special needs persons, pets, friends or any other person or animal unattended whilst they are left in your care, when you are using our GEM App or Website.

24.10 Please do not walk, run, jog or exercise whilst viewing our GEM App or Website. Take all care in protecting yourself and others whilst using our site or any site associated with GEM. Your safety and the safety of others is your responsibility and lies solely in your hands. Be responsible. LOOK WHERE YOU ARE GOING!

24.11 Do not share any of your password login information with any person. If you share this information to anyone, you are allowing them to access your account and they may post or share illegal or inappropriate content under your account. DON’T GIVE OUT YOUR INFORMATION TO ANYONE.

24.12 As the User, you agree and acknowledge not to violate any local, state, national, foreign or international statute, regulation, rule, order, treaty or other law applicable in that jurisdiction.

24.13 You agrees and acknowledges not to create any account under another person’s name or a false name or impersonate another person, company or organisation when using the GEM App or Website.

24.14 You agrees and acknowledges not to try to hack or gain access to the GEM App or Website nor should you use data mining, robots or similar data gathering or extraction methods for gaining information from our site, nor should you try to gain access to any part of our site, gain access to user Personal Information, accounts information, server or networks as used by GEM through any means whether it be hacking, password mining or any other methods of access to the site or information contained herein.

24.15 GEM uses all possible means to ensure the safety of its Users, however GEM cannot guarantee the safety of information as shared by you.

25. WHAT WE EXPECT FROM OUR USERS

25.1 If GEM believe someone has infringed the rights of another User, GEM reserves our right to remove this content at our discretion.

25.2 No User shall gather information of another User which may be personal or sensitive information about a user whether of a personal or financial manner.

25.3 You must not do anything that may infringe another user or party’s intellectual property in accordance with these Terms and Conditions.

25.4 GEM reserves its rights to delete any User account that GEM believe is infringing other people’s rights.

26. YOUR ACCOUNT SECURITY AND REGISTRATION

As a User of GEM you are providing us with your Personal Information. All Users are required to warrant and guarantee the following:

26.1 You will only provide true information when you are creating your account and you will keep your information current.

26.2 You will not create an account in the name of any other person or use any other person’s information in creating an account which you control.

26.3 If GEM has deleted or restricted your account, you will not create another account in your name or alternative name without the written consent of GEM, given in its absolute discretion.

26.4 You will not transfer your account to anyone without GEM’s written consent, given in its absolute discretion. You also acknowledge and agree that should you transfer your account without our consent, you will be held responsible for any activities, whether criminal or otherwise, of that account.

26.5 Should a dispute arise about a user name that may be subject to copyright or trade mark breach, GEM reserves our right to delete this name or suspect or terminate the account.

27. USE OF APIs & SDKs

27.1 GEM may use APIs and SDKs to allow you to sign into GEM using your credentials from Facebook and other social media applications.

27.2 An application program interface (“API”) verifies your credentials and facilitates authentication for you to use the GEM App and Website without sharing your actual credentials with GEM.

27.3 In relation to Facebook, GEM uses API to interface with the Facebook platform and exchange data about the user such as: device type, OS or Android operating system type and version, your time zone, your carrier, device screen size, processor and disk space (“ User Data”).

27.4 A software development kit (“SDK”) is used to assist GEM to track and measure the actions users take while using this App. It allows GEM to interact with other Apps like Facebook.

27.5 SDK’s also provide us with tracking analytics, data trends and accurate insights on how users interact with GEM to help us enhance user experience.

27.6 If you use Facebook to login to GEM, any use of Facebook by you is subject to Facebook’s terms and conditions, privacy policies and any of Facebook’s supplementary terms.

27.7 By agreeing to these Terms and Conditions, you acknowledge and agree that GEM uses APIs and SDKs. Should you not agree to GEM providing your User Data to Facebook and any other social media application, please contact GEM via the methods set out below or delete the App from your device.

28. YOUR PRIVACY

28.1 GEM is an organisation that respects and values your privacy and agrees to use all reasonable endeavours to keep your private and Personal Information safely and securely stored at all times to avoid misuse, loss, unauthorised access, modification or disclosure and handle your private and Personal Information in an appropriate manner.

28.2 GEM gathers information in accordance with GEM’s Privacy Policy, our obligations under the Privacy Act 1998 (Cth) and the additional rights provided to Users located in the European Union (EU) under the General Data Protection Regulations ( GDPR).

28.3 View our Privacy Policy.

29. COOKIES

From time to time, GEM may use Cookies to us learn more about how you use the GEM App and Website and make it easier for you to use the GEM App and Website on return visits. Please read our Cookies Policy here.

30. UPDATES

30.1 GEM will continue to ensure that GEM provide our users with the best service and experience possible. From time to time GEM will need to make amendments to our services or Terms and Conditions or Policies (Updates). GEM will notify you of Updates from time to time. You will have the opportunity to read these and accept them in order to continue using our services.

30.2 GEM recommends you carefully read, each time you visit the GEM App or Website, the Terms and Conditions as they may affect your rights.

30.3 In addition, GEM may from time to time provide enhancements or improvements to the features/functionality of the GEM App, which may include patches, bug fixes, updates, upgrades and other modifications.

30.4 Updates may modify or delete certain features and/or functionalities of the Application. You agree that GEM has no obligation to:(i) provide any Updates, or (ii) continue to provide or enable any particular features and/or functionalities of the Application to you.

30.5 You further agree that all Updates will be: (i) deemed to constitute an integral part of the Application, and (ii) subject to the terms and conditions of this Agreement.

31. TERMINATION

31.1 If you breach these Terms and Conditions or create a risk to GEM or other users of the GEM App and Website, or do anything unlawful on the GEM App or Website, GEM may notify you by email and disable or terminate your access to the GEM App or Website in its absolute discretion. If GEM terminates your access to the GEM App and Website all of your obligations in in these Terms and Conditions which are capable of surviving, shall herein remain in force.

31.2 GEM can terminate your Package, Membership, subscription, access and/or participation in any aspect of this GEM App and Website, or the GEM Rewards Program in our sole discretion if GEM believes you have breached any of the Terms and Conditions and/or you have yourself, or are facilitating the unlawful activity of a third party in respect of the GEM App or Website. In such an event, GEM are at liberty to take any other action necessary to enforce these Terms and Conditions.

31.3 Your Membership must be cancelled by notifying GEM in writing by email to support@gem.com.

31.4 Terminating your Package or Membership does not remove you from our mailing or text lists; these must be done via the associated links as they are sent via third parties.

31.5 Your Membership, entitlements thereunder and your subscription to the GEM Rewards Program can be cancelled at GEM’s absolute discretion without further notice if you fail to honour or make any payment within ten (10) days from the due date.

31.6 All Memberships are cancelled absolutely without any rights or entitlements of reactivation. Upon cancellation, all accumulated entitlements and benefits, including but not limited to Trade Promotion Lottery Entries, shall be terminated and forfeited.

32. TRADE PROMOTION LOTTERY

If GEM conducts a Trade Promotion Lottery, you agree to the terms and conditions set out in Schedule 2.

33. GENERAL

These Terms and Conditions constitute a legally binding agreement between you and GEM concerning your use of the GEM App or Website.

34. SEVERABILITY

If any provision of these Terms and Conditions is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

35. WAIVER

Except as provided herein, the failure to exercise a right or to require performance of an obligation under this agreement shall not affect a party’s ability to exercise such right or require such performance at any time thereafter nor shall be the waiver of a breach constitute waiver of any subsequent breach.

36. CAPACITY TO CONTRACT

By engaging with this Website and registering as an account holder and placing an order for the supply of our service through the GEM App or Website, you represent that you are at least eighteen (18) years of age with capacity to contract with us. You agree to provide truthful and accurate information about yourself as request in any order or registration form. Furthermore, you agree that if GEM suspects that any information provided by you is inaccurate or incorrect, GEM may suspend or terminate your account at any time without notice.

37. JURISDICTION

These Terms and Conditions of Use are governed by the laws of the State of Victoria, and the federal laws of Australia. Any claim or dispute between you and GEM that arises in whole or in part from the website will be decided exclusively by a court of competent jurisdiction located in the State of Victoria.