BY CLICKING THE ‘I ACCEPT’ BUTTON, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THESE CUSTOMER TERMS.
PLEASE READ THESE CUTOMER TERMS CAREFULLY BEFORE ACCESSING OR USING OUR SERVICES.
[email protected] Pty Ltd (‘[email protected]’) ACN 624 441 532, located at 450 Graham Street, Port Melbourne, provides Services (as defined below) which constitute a technology platform that enables you to request transportation services from third party transport service providers and drivers.
You desire to enter into this Agreement for the purpose of accessing and using the Services.
- ‘Account’ means the user account created by you which you are required to register and maintain under clause 1 of these Terms.
- ‘Additional Terms and Policies’ has the meaning given in clause 1.
- ‘Applications’ means the mobile applications or websites provided by [email protected] which users use to access and request the
- ‘Applicable Law’ means all laws, including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by-laws, and includes the
- ‘ACL’ means the ‘Australian Consumer Law’ as set out in Schedule 2 of the
Competition and Consumer Act 2010 (Cth).
- ‘Charges’ means any charges (howsoever described) imposed as a result of the services or goods you request via the Services and which you receive from a Third Party Transport Services
- ‘Services’ means the technology services and related services provided by [email protected] via digital technology platforms, including via [email protected]’s various Applications, websites, content, products, that enable users to request and obtain transportation services which are delivered by Third Party Transport Services Providers as described in clause 1.
- ‘Terms’ means these terms and conditions of use set out in this
- ‘Third Party Transport Services Provider’ means an independent third party provider of transportation services who fulfills your requests for transportation services made via the Applications, such independent third party may be an individual delivering the services by driving a commercial passenger vehicle or Bus (as defined in the Bus Safety Act 2009), or a commercial transport services provider that is a corporate entity or partnership that delivers the services using drivers employed or engaged by them to do
- ‘You’/’Your’ means you, the person who is the customer of [email protected] and user of the
In this document, unless the contrary intention appears:
- words importing a gender include any other gender;
- words in the singular include the plural and words in the plural include the singular;
- clause headings are for convenient reference only and have no effect in limiting or extending the language of provisions to which they refer;
- words importing a person include a partnership and a body whether corporate or otherwise;
- a reference to dollars is a reference to Australian dollars;
- a reference to any legislation or legislative provision includes any statutory modification, substitution or re-enactment of that legislation or legislative provision;
- if any word or phrase is given a defined meaning, any other part of speech or other grammatical form of that word or phrase has a corresponding meaning;
- the words “including” and “include” mean “including, but not limited ”; and
- a reference to writing is a reference to any representation of words, figures or symbols, whether or not in a visible
- These Terms govern the access or use by you of the
- Your access and use of the Services constitutes your agreement to be bound by these Terms, which establishes a contractual relationship between you and [email protected]
- If you do not agree to these Terms, you must not access or use the
4. Additional Terms and Policies
- Additional terms and policies of [email protected] (Additional Terms and Policies) may apply to the Services, including terms and policies relating to any aspect of the Services, including behaviour of you or your passengers, cancelling transport service requests, particular events, activities or promotions, and such supplemental terms and policies will be posted on the applicable Service or on the [email protected] website http://www.dart.org.au.
- Additional Terms and Policies are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable
- Your continued access or use of the Services after such posting constitutes your consent to be bound by the Additional Terms and
- Additional Terms and Policies shall prevail over the Terms in this document in the event there is a conflict with respect to the applicable
5. Amending Terms
- [email protected] may amend the Terms related to the Services from time to Such amendments will be effective upon [email protected]’s posting of such amended Terms on the applicable Service or Application. Your continued access or use of the Services after such posting constitutes your consent to be bound by the amended Terms.
- Twenty (20) days written notice will be provided in the event of a material change to an existing Term or Additional Terms and Policies that detrimentally affects your rights under this
- The Services constitute a technology platform that enables you, as a user of [email protected]’s Applications, to arrange and schedule transportation services to be provided by independent Third Party Transport Services Providers who are under agreement with [email protected] and to facilitate the payment to such Third Party Transport Services Providers for the transportation services and to receive receipts for those
- The Services are made available solely for personal and non-commercial
- You acknowledge and agree that [email protected] does not provide transportation services or function as a transportation service provider, and that all transportation services requested by you using the Services will be provided by independent Third Party Transport Services
- You acknowledge that any request for a transportation service is subject to the availability of a driver being available at your location at the time of your request, noting that drivers may accept or reject your request for travel in their sole
- Subject to your compliance with these Terms, [email protected] grants you a limited, non- exclusive, non-sub-licensable, revocable, non-transferrable license to access and use:
- the Applications on your personal devices solely in connection with your use of the Services; and
- any content, information and related materials that may be made available through the Services,
in each case solely for your personal and non-commercial use. Any rights not expressly granted herein are reserved by [email protected] and [email protected]’s licensors.
- You must not:
- remove any copyright, trademark or other proprietary notices from any portion of the Services;
- reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, put on publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services;
- decompile, reverse engineer or disassemble the Services;
- link to, mirror or frame any portion of the Services;
- cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or
- attempt to gain unauthorised access to or impair any aspect of the Services or its related systems or
Third Party Services and Content
- Additionally, your method of accessing the Services is your
- You acknowledge and agree that your use of any third party applications and devices is subject to terms set forth in the applicable third party’s terms of
- The Services and all rights therein are and shall remain [email protected]’s property or the property of [email protected]’s Neither these Terms nor your use of the Services convey or grant to you any rights:
- in or related to the Services except for the limited license granted in clause
6.5 above; or
7. Your Use of the Services – Registration and Usage
- In order to access and use the Services:
- you must be competent to enter into a contract under Applicable Laws and maintain accurate, complete, and up-to-date information in your Account in accordance with this Agreement;
- provide your own electronic device, which if a mobile phone, must have a functioning mobile number and the ability to read [email protected]’s text messages (SMS) and push notifications, and meet the minimum device requirements [email protected] may specify from time to time;
- if your device is stolen, you must notify [email protected] immediately and ensure that access to the Services through the device is no longer possible, including ensuring that access to any Applications is immediately blocked, suspended or deactivated;
- you must register for and maintain one active user Account as provided for in accordance with clause 4.
- [email protected] may immediately suspend your access and use of the Services if [email protected] has reason to believe that:
- any information provided by you in respect of the Account registration process is false, or you cease to meet the requirements in clause 1(a);
- the security of your Account has been compromised in any way;
- you have not complied with any of the requirements of this clause
- If you are an individual, you must be at least 18 years of age to obtain an
- Account registration requires you to submit to [email protected], depending on whether you are an individual or other entity, certain personal or commercial information, such as name, address, phone number, contact details, and, if an individual, age, as well as at least one valid payment method (either a credit card or accepted payment partner).
Maintenance of Account
- You agree to maintain accurate, complete, and up-to-date information in your
- Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access and use of the Services or [email protected]’s termination of these Terms with
- You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all
- Unless otherwise permitted by [email protected] in writing, you may only possess one
- You agree to notify us immediately of any breach in the security or secrecy of your username or If you have any reason to believe that your account information has been compromised or that your Account has been accessed by an unauthorised third party, you must immediately notify [email protected] at [email protected].
Using an Application to arrange and schedule a transport service
- Once you have made a request for a transportation service via an Application:
- you must ensure that your device is turned on and configured appropriately (e.g. GPS is active), and the Application is active; and
- you acknowledge and accept that your request for a transportation service will either be accepted or declined based on the availability of a Third Party Transport Services Provider to be at your location at the requested pickup time, and that you will be informed via an SMS, push notification or confirmation screen in the Application that your request is accepted or
- If your request for a transportation service has been accepted, [email protected] will provide:
- you with a booking confirmation through the Application, and information regarding the driver (including the driver’s name, vehicle details (including registration number and model), mobile phone number, and any other details [email protected] consider appropriate which may include a photo of the driver); and
- the driver with your details necessary to enable the driver to provide the transportation service to
- When you receive a confirmation under clause 10, you must check the details on it, including the pick-up time and location. If there are any incorrect details on the booking confirmation, you must contact us immediately by correcting your booking details through the Application. You are responsible for any delay that may be caused due to your failure to check such information and contact [email protected] immediately via the Application to correct the booking details.
User Requirements and Conduct
- If you are an individual, the Services are only available for access and use if you are 18 years old or
- must not authorise other third parties to use your Account;
- can use the Services to request transportation services for yourself and any of your passengers travelling with you, and subject to clause 14(c), also use the Services to arrange and schedule transportation services with
independent Third Party Transport Services Providers under your Account for a third-party passenger or passengers who are unaccompanied by you and who are above the age of 12;
- can only arrange and schedule transportation services for unaccompanied third party passengers between the ages of 12 and 18 (inclusive) if either you are their parent or guardian or you have written authority of their parent or guardian;
- must not assign or otherwise transfer your Account to any other person or
- You agree to comply with, and ensure all of your passengers comply with, all Applicable Laws as they relate to using the Services, and you may only use the Services for lawful purposes (e.g., no transport of unlawful or hazardous materials).
- Without limiting clause 15 you will not, and will ensure that any of your passengers do not:
- smoke or consume any alcohol, tobacco, vapour products or illicit substances in or near any Third Party Transport Services Provider vehicle, do not distract a driver, or otherwise act in any way which a Third Party Transport Services Provider driver (acting reasonably) considers a risk to the safety of you, the driver or any other person;
- use the Services, to cause or aid in causing nuisance, annoyance, inconvenience, or property damage, whether to the Third Party Transport Services Provider or to any other
- By creating an Account, you agree that you may be sent emails or text (SMS) messages as part of the normal business operation of your use of the Services, including to confirm your booking, and to notify you of privacy, administrative or security issues relating to your use of the
- You may opt-out of receiving such messages from [email protected] at any time by following the directions found at [email protected] to You acknowledge that opting out of receiving emails and text (SMS) messages may impact your use of the Services and certain functionality or features of the Services may be unable to be provided to you.
Network Access and Devices
- You are responsible for obtaining your own mobile data network access necessary to access and use the Services from your
- Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from your devices and you shall be responsible for all such rates and
- You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates
- [email protected] does not guarantee that the Services, or any portion thereof, will function on any particular hardware or In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
- Additional terms relating to Promotional Codes are set out in Attachment 1 to these
Feedback and Complaints
- You will be requested to rate a Third Party Transport Services Provider driver after the completion of the provision of transportation services by such a provider, and you agree to do so fairly and
- [email protected] will handle all other feedback and any complaints in accordance with its [email protected] Complaint Handling Policy and Procedure document, as posted on its website from time to
- You understand that your use of the Services may result in Charges to you for the services or goods you receive from a Third Party Transport Services After you have received such services or goods obtained through your use of the Service, [email protected] will facilitate your payment of the applicable Charges on behalf of the Third Party Transport Services Provider as such Third Party Transport Services Provider’s limited payment collection agent. Payment of the Charges in such manner shall be considered the same as payment made directly by you to the Third Party Transport Services Provider. Charges will be inclusive of applicable taxes where required by law. Charges paid by you are final and non- refundable, unless otherwise determined by [email protected] or required under Applicable Law.
- All Charges are due immediately and payment will be facilitated by [email protected] using the preferred payment method designated in your Account, after which [email protected] will send you a receipt by email or If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that [email protected] may, as the Third Party Transport Services Provider’s limited payment collection agent, use a secondary payment method in your Account, if available.
- As between you and [email protected], [email protected] reserves the right to establish, remove and/or revise Charges for any or all services or goods obtained through the use of the Services at any time in [email protected]’s sole
- Payment of the Charges is intended to fully compensate the Third Party Transport Services Provider for the services or goods
Repair or Cleaning Fees
- You shall be responsible for the cost of repair for damage to, or necessary cleaning of, Third Party Transport Services Provider vehicles and property resulting from use of the Services under your Account in excess of normal ‘wear and tear’ damages and necessary cleaning (‘Repair or Cleaning’).
- In the event that a Third Party Transport Services Provider reports to [email protected] the need for Repair or Cleaning, and such Repair or Cleaning request is verified by [email protected] in [email protected]’s reasonable discretion, [email protected] reserves the right to facilitate payment for the reasonable cost of such Repair or Cleaning on behalf of the Third Party Transport Services Provider using your payment method designated in your Such amounts will be transferred by [email protected] to the applicable Third Party Transport Services Provider and are non-refundable.
Cancellation and waiting fees
- When you use the Services to request and schedule transportation with Third Party Transport Services Providers, you can cancel such a request at any time before or after you have been paired with a driver, but you may be charged a fee as specified in [email protected]’s Cancellation and waiting time fee
9. Disclaimer; Limitation of Liability; Indemnity Disclaimer
- Subject to clauses 3 and 9.4, all express or implied guarantees, warranties, representations, or other terms and conditions relating to this Agreement or its subject matter, not contained in this Agreement, are excluded from this Agreement to the maximum extent permitted by Applicable Law.
- Without limiting clause 1 and subject to clauses 9.3 and 9.4, to the maximum extent permitted under Applicable Law, the Services are provided on a “as is” and “as available” basis, and [email protected] makes no representation, warranty, or guarantee regarding (a) the condition, performance, accuracy, completeness, merchantability, reliability, timeliness, quality, suitability, availability or fitness for a particular purpose of the Services other than as expressly set out in this Agreement; (b) that the Services or any of the services requested through the Services will be uninterrupted or error-free; (c) the quality, suitability, safety or ability of Third Party Transport Services Providers; or (d) that use of the Services will result in the provision of any transportation services. You agree that the entire risk arising out of your use of the Services, and any transportation services or other service or good requested in connection therewith, remains solely with you, to the maximum extent permitted under Applicable Law.
Limitation of liability
- Nothing in this Agreement excludes, restricts or modifies any right or remedy, or is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth), including any guarantee,
warranty or other term or condition, that is implied or imposed in relation to this Agreement under the ACL or any other applicable legislation which cannot be lawfully excluded or limited, or any statutory guarantees that apply to goods and services purchased by consumers (as defined in that Act), and this Agreement will not be construed as excluding, qualifying, limiting or modifying any statutory rights or remedies of consumers arising under any such provisions or any statutory guarantee except to the extent permitted by that Act where applicable.
- If any guarantee, warranty, term or condition is implied or imposed in relation to this Agreement under the ACL or any other applicable legislation and cannot be excluded (a Non-Excludable Provision), and to the extent that [email protected] is permitted to limit its liability for a breach of the Non-Excludable Provision then [email protected]’s liability for breach of these Non Excludable Provision is limited to one or more at [email protected]’s option:
- in the case of goods supplied to you as part of the Services under this Agreement, the replacement of the relevant goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods or the payment of the cost of having the goods repaired; and
- in the case of services supplied to you as part of the Services under this Agreement, the supply of relevant Services again, or the payment of the cost of resupplying the
- Subject to [email protected]’s obligations under the Non Excludable Provisions and to the maximum extent permitted by Applicable Law:
- [email protected] and [email protected]’s associates are not liable for (and no measure of damages will, under any circumstances, include) any indirect, incidental, special, exemplary, punitive or consequential damages, including lost profits, lost data, personal injury or property damage related to, in connection with, or otherwise resulting from any access or use of the Services, even if [email protected] or [email protected]’s associates have been advised of the possibility of such damages;
- [email protected] and [email protected]’s associates are not liable for any damages, liability or losses arising out of: (i) your use of or reliance on the Services or your inability to access or use the Services; or (ii) any transaction or relationship between you and any Third Party Transport Services Provider, even if [email protected] or [email protected]’s associates have been advised of the possibility of such [email protected] and [email protected]’s associates shall not be liable for delay or failure in performance resulting from causes beyond their reasonable control.
- In no event shall [email protected]’s total liability to you in connection with the Services for all damages, losses and causes of action exceed one thousand ($A)
- Without limiting clause 5, and subject to clauses 9.3 and 9.4 and [email protected]’s obligations under the Non Excludable Provisions and to the maximum extent permitted by Applicable Law, [email protected] is not liable for:
- your use of or reliance on the Services or any information provide by [email protected] through the Services or your inability to access or use the Services;
- You missing or being delayed for a train, flight, event, work or any other circumstance in connection with any transaction or relationship between you and any Third Party Transport Services Provider, including following the breakdown of a vehicle;
- Any loss that you may incur as a result of someone else using your Account, either with or without your knowledge, except to the extent it is caused or contributed to by [email protected]; and
- Any loss or damage that you may incur arising out of or in connection with the Services, including the conduct of the driver (and any other person) and any accidents, incidents and issues involving the
- Without limiting clause 6, and to the maximum extent permitted by Applicable Law, the Services may be used by you to request and schedule transportation with Third Party Transport Services Providers, but you agree that [email protected] has no responsibility or liability to you related to any transportation provided to you by Third Party Transport Services Providers other than as expressly set forth in these Terms.
- The limitations and exclusions of liability in this clause 9 apply regardless of the basis on which such liability arises, whether in contract, breach of warranty, tort (including negligence), in equity, under statute, or any other
- You agree to indemnify and hold [email protected], [email protected]’s associates, and their officers, directors, employees and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including legal fees) arising out of or in connection with: (i) your access or use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) [email protected]’s use of your ratings or feedback; or (iv) your violation of the rights of any third party, including Third Party Transport Services Providers (“Losses”). Your liability is reduced under this clause and shall be reduced proportionately if, and to the extent, [email protected] directly caused or contributed to any such
- You may terminate these Terms by closing your Account or uninstalling the Applications at any time, for any
- [email protected] may terminate these Terms upon notice to you if:
- necessary to comply with any Applicable Law;
- you cease to qualify to access and use the Services under these Terms , [email protected]’s Additional Terms and Policies or under Applicable Law;
- you commit a breach (other than a trivial or inconsequential breach) of these Terms that is not capable of remedy or (if capable of remedy) is not remedied with 7 business days after [email protected] notifies of the
- Upon termination of these Terms for any reason:
- your rights to access and use the Services will cease immediately;
- your registration with [email protected] and your Account will cease to apply, and [email protected] will block your access to and use of the Services; and
- [email protected] will charge you all amounts due and owing to [email protected] as at the date of termination in accordance with this
If a dispute or difference, other than in relation to when a party exercises its right to terminate this Agreement, arises under or in connection with this Agreement, either party may give the other written notice expressing the nature of the dispute or differences (Dispute Notice).
As soon as practicable and within 10 business days after receipt by a party of a Dispute Notice, the parties must ensure that their respective authorised representatives meet and attempt to resolve the issue.
- Referral to Expert or Arbitrator
If the issue is not resolved within 15 business days of the receipt of the Dispute Notice, either party may, by notice to the other:
- if the issue is of a technical nature, identify a person who is an independent expert in its subject matter (Expert) who could be used to resolve the matter; or
- if the issue is not of a technical nature, identify an independent person (Arbitrator) who could be used to arbitrate the
The parties must, within 5 business days after receipt of a notice under this clause 11.3, use their reasonable endeavours to agree on who to appoint as the Expert or Arbitrator.
- Issues for resolution by an Expert
An issue is of a technical nature if it is of a kind that, if it were litigated, could be resolved on expert evidence alone. If the parties are unable to agree whether or not
an issue is of a technical nature, the opinion of [email protected] (acting in good faith) as to whether or not the issue should be referred to an Expert prevails.
- Selection of Arbitrator or Expert
If the parties are unable to agree on who to appoint as an Arbitrator or an Expert within 5 business days after receipt of the notice under clause 11.3, [email protected] may make the appointment. In making the appointment, [email protected] must select a person who is independent of the parties and who is suitably qualified.
Subject to any other provision of this document to the contrary, an arbitration is to be conducted in accordance with the Commercial Arbitration Act 2011 (Vic) (CAA) and subject to that Act, with the arbitration rules of the Resolution Institute.
- Procedure on resolution by Expert
- The Expert appointed under clause 3 or 11.5 acts as an expert and not as an arbitrator.
- Each party to a dispute which is referred to the Expert for determination must have a reasonable opportunity to make submissions to the
- The costs of the Expert must be borne in equal shares by the
- The Expert’s decision is final and binding on the parties to the dispute, except to the extent of fraud, gross negligence or a manifest
- The provisions of the CAA will not apply to the dispute resolution under this clause 7.
- Court proceedings and other relief
- A party may not start court proceedings in relation to any issue or dispute under this document unless it has complied with this
- This clause does not prohibit a party from exercising any of the rights expressly provided for in this Agreement, or seeking and obtaining appropriate injunctive or interlocutory relief from a court to preserve property or rights or to avoid Losses which are not compensable in
- Performance not affected
Subject to either party’s right to terminate this Agreement, despite the parties having a dispute or difference, they must continue to perform their respective obligations under the Agreement.
- [email protected] may give notice by means of a general notice on the Services, including the Applications, by electronic mail to your email address specified in your Account,
or by written communication via text message sent to your telephone number as set forth in your Account. It is the Users responsibility to ensure the contact information linked to their Account is both valid and regularly monitored. You may give notice to [email protected] by written communication to [email protected]’s address at [email protected]
- Users can unsubscribe from notices at any time through the You acknowledge that unsubscribing from notices may affect your ability to use the Services, and [email protected] is not liable for a failure of the Services due to the same.
General Governing law
- Except as otherwise set forth in these Terms, this Agreement shall be exclusively governed by and construed in accordance with the laws of the State of Victoria, and you submit to the non-exclusive jurisdiction of the courts of that
Relationship of the parties
- No joint venture, partnership, employment or agency relationship exists between you, [email protected] or any third party, including any Third Party Transport Services Provider as a result of the contract between you and [email protected] or use of the
- If any provision of these Terms is held to be illegal, invalid or unenforceable, in whole or in part, under any law, such provision or part thereof shall to that extent be deemed not to form part of these Term but the legality, validity and enforceability of the other provisions in these Terms shall not be In that event, the parties shall replace the illegal, invalid or unenforceable provision or part thereof with a provision or part thereof that is legal, valid and enforceable and that has, to the greatest extent possible, a similar effect as the illegal, invalid or unenforceable provision or part thereof, given the contents and purpose of these Terms.
Assignment and transfer
- You may not assign or transfer this Agreement in whole or in part without [email protected]’s prior written [email protected] may assign or transfer this Agreement in whole or in part without your prior written consent, including to: (i) a subsidiary or affiliate; (ii) an acquirer of [email protected]’s equity, business or assets; or (iii) a successor by merger.
- These Terms, including any Additional Terms and Policies, constitute the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous agreements or
undertakings regarding such subject matter. The recitals form part of this Agreement.
[email protected] may, in [email protected]’s sole discretion, create Promotional Codes that may be redeemed for Account credit, or other features or benefits related to the Services and/or a Third Party Transport Services Provider’s services, subject to any Additional Terms and Policies that [email protected] establishes on a per Promotional Code basis (“Promotional Codes”).
You agree that Promotional Codes:
- must be used for the intended audience and purpose, and in a lawful manner;
- may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise);
- may be disabled by [email protected] at any time for any reason without liability to [email protected];
- may only be used pursuant to the specific terms that [email protected] establishes for such Promotional Code;
- are not valid for cash; and
- may expire prior to your
[email protected] reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promotional Codes by you or any other user in the event that [email protected] determines or believes that the use or redemption of the Promotional Code was in error, fraudulent, illegal, or in violation of the applicable Promotional Code terms or these Terms.