Terms of Service

1Parties and agreement

These Terms of Service ("Terms") govern use of the Actually Here mobile applications, the relay server they connect to, and this website (together, the "App"), operated by Selby Labs Pty Ltd (ABN 50 697 107 083) ("Selby Labs", "we", "us"), a company incorporated in Victoria, Australia, with its registered office at Suite 329/98-100 Elizabeth Street, Melbourne VIC 3000.

By downloading, opening or using the App you ("you") agree to be bound by these Terms. If you do not agree, do not use the App. If you are agreeing on behalf of an institution, you warrant that you have authority to bind it.

There is no registration step at which you type your name, because the App has no accounts. Your agreement is formed by use.

2Definitions

• Class: a group created in the App by an Instructor, identified by a class code, with its own encrypted log.
• Class log: the append-only sequence of encrypted events belonging to a Class.
• Class key: the encryption key generated on the Owner's device at Class creation, held only by staff devices.
• Owner: the person whose device created the Class.
• Instructor and Tutor: roles with staff permissions in a Class, held by the Owner or granted by an Instructor.
• Student: a person who has joined a Class with a class code and holds no staff permissions.
• Subscription: the paid, auto-renewing entitlement purchased through the App Store or Google Play that lifts the free class-size limit.
• Losses: liabilities, losses, damages, costs and expenses, including legal costs, interest, fines and penalties, whether arising in contract, tort (including negligence) or otherwise.

3How access works, and what that means for you

The App has no usernames, no passwords and no accounts. When you create or join a Class, your device receives an opaque access token which it stores locally. That token, together with keys generated inside your device's secure hardware, is your access.

Two consequences follow, and you accept both:

• We cannot restore access. There is no "forgot password" and no support path that can put you back into a Class, because we cannot tell who you are. A Student rejoins with the class code. A Tutor rejoins and asks an Instructor to promote them again.
• We cannot recover Class contents. The Class key exists only on staff devices. If every staff device for a Class is lost, wiped or uninstalled, the contents of that Class log cannot be decrypted by anyone, including us. Export anything you need to keep.

4Free use and Subscriptions

4.1 The free tier

Every feature of the App is available free. The free tier limits a Class to 20 active members, counted at the point a roll call is started. Students are never charged, for anything, ever.

4.2 What a Subscription changes

An Instructor Subscription removes the class-size limit for Classes that Instructor owns. A Class inherits the tier of its Owner, so Tutors and co-Instructors working in that Class are covered by the Owner's Subscription and need no purchase of their own.

4.3 Limits on a Subscription

One Subscription transaction may unlock at most 15 Classes in any twelve-month period. This is an anti-abuse limit, set well above ordinary teaching load. A Subscription is for the Classes you personally own and teach; it is not a site licence, and it may not be shared across a department by having one person create every Class on behalf of others.

4.4 If a Subscription lapses

Classes over the free limit become read-only: the log can still be read, decrypted, viewed and exported by staff, but no new roll call can be started on them. Nothing is deleted for non-payment. Renewing restores full function immediately. A Class can also be brought back under the free limit by members leaving it.

5Purchases, renewal and refunds

Subscriptions are sold and processed by Apple through the App Store and by Google through Google Play. We do not take payment directly, and we never receive your name, billing address or payment details. See the Privacy Policy.

• Price is the amount shown in the store at the time of purchase, in your local currency, inclusive of any tax the store collects. We may change the price for future terms; the store will notify you as its rules require.
• Renewal is automatic unless you turn it off, in the subscription settings of your Apple or Google account, at least 24 hours before the term ends. We cannot cancel a Subscription for you.
• Refunds are handled under Apple's and Google's policies, not ours. Requests go to the store you bought from.
• Australian Consumer Law guarantees are not affected by anything in this section. If the App is faulty in a way that amounts to a major failure, you are entitled to a remedy under that law regardless of store policy.

6What a check-in does and does not prove

This section matters more than any other, and we would rather state it plainly than bury it.

What the App establishes: that a device holding a registered signing key was within radio range of the session broadcast while the session window was open, and signed the session secret within the App's timing budget. That is a meaningful and difficult-to-forge fact.

What the App does not establish: which human being was holding that device. No attendance system can, and the App does not claim to. A person who hands over an unlocked phone defeats it, exactly as a person who forwards an emailed code defeats that.

Accordingly:

• Attendance records produced by the App are evidence, to be weighed, and not a determination about any individual.
• Flags raised by the App (a known identity appearing on a new key, one handset submitting two identities) are prompts for a human to look, not findings. Every one of them has innocent explanations, starting with a new phone.
• You must not use an App record, on its own, as the sole basis for an academic misconduct finding, a disciplinary outcome, a failed grade or any other decision with a material effect on a person. Apply your institution's own process, and give the person a chance to explain.
• Identities in the App are self-asserted. The App has no institutional verification, so a name and student number are what somebody typed. Confirm faces against names at the first roll call.

7If you run a Class

As an Instructor or Tutor you decide what a Class is for and what happens to its records. You are responsible for:

• Telling your students what you are collecting, why, and how long you will keep it, before you run the first roll call.
• Your institution's rules: policy on attendance, on student data, on approved software, and any consent or notification your institution requires.
• Applicable privacy law. In relation to Class contents you are the controller of that information and we are a service provider processing ciphertext we cannot read.
• Proportionate use. The App is for recording attendance at teaching sessions. Do not use it to track people's whereabouts outside that purpose.
• Handling flags fairly, in the terms of section 6.
• Exporting anything you must retain before deleting a Class or letting a device go, per section 3.

Deleting a Class removes it from our server permanently and immediately. Only the Owner can do it. It cannot be undone.

8If you are a Student

Using the App as a Student is free and requires nothing but a class code. In return:

• Check in only for yourself, only when you are actually there. Checking in on behalf of someone else, or letting someone check in as you, is very likely academic misconduct under your institution's rules. It is also detectable.
• Do not relay, rebroadcast, record or forward a session secret to anyone not in the room, and do not attempt to extract keys from your device or anyone else's.
• The name and student number you type are shown to your teaching staff, and are your responsibility to enter correctly.
• You can leave a Class at any time from inside the App. Attendance already recorded stays in the Class log, which is what makes it a record, but your membership and your local copy are gone.

9Acceptable use

You must not:

• submit a check-in for a session you were not physically present at, or assist anybody else to;
• interfere with the App's radio broadcast, jam it, spoof a session, or replay a captured secret;
• create multiple Classes to divide a cohort for the purpose of evading the free-tier limit, or otherwise circumvent the limits in section 4;
• reverse engineer, decompile or attempt to derive source code from the App, except to the extent that restriction is void under applicable law (including any right to interoperate or to conduct security research permitted by law);
• attack, overload, or attempt to gain unauthorised access to the server, or introduce malicious code;
• resell, sublicense or provide access to the App as part of a service to third parties;
• use the App to harass, profile or surveil any person, or for any purpose other than recording attendance at teaching sessions;
• use the App in breach of any applicable law.

We may suspend or terminate access to the App, or to a particular Class, where we reasonably believe these Terms are being breached in a way that harms other users or exposes us to legal risk.

10Availability, devices and radio

We make reasonable efforts to keep the service available. We do not guarantee any level of uptime. The App may be unavailable for maintenance, third-party infrastructure outages, or causes outside our reasonable control.

Starting a roll call requires an internet connection, in order to refresh the roster and check the Class size. Once a session is running, short interruptions are tolerated.

The App depends on Bluetooth Low Energy on consumer handsets. It runs on a wide range of devices but cannot be guaranteed to work on every model, operating-system version, manufacturer customisation or battery-optimisation setting. Radio range, room construction and other devices in the room all affect reception. Manual marking exists precisely because a phone will sometimes fail to hear a session, and you should expect to use it occasionally.

To the maximum extent permitted by law, and subject to section 12, we accept no responsibility for a device that proves incompatible, for a check-in that fails because of device-side factors, or for attendance data not recorded as a result.

11Intellectual property

We own all intellectual property rights in the App, its design, its branding and its protocol implementation, and we warrant that we have the rights necessary to license it to you as set out here. Subject to these Terms you have a personal, non-exclusive, non-transferable licence to use the App.

You retain all rights in the content you put into a Class: class names, rosters, attendance records and exports. We claim no ownership of it and, being unable to decrypt it, make no use of it beyond storing and transmitting the encrypted form so the App works.

These Terms grant no right to use the Actually Here or Selby Labs names or marks except as incidental to permitted use of the App.

12Warranties and consumer guarantees

We warrant that the App will perform materially as described in our published documentation and that we will maintain reasonable security measures.

Otherwise, and to the extent permitted by law, the App is provided "as is" and "as available". We do not warrant that it will be error-free or uninterrupted, that every check-in will be captured, or that it is fit for any particular institutional purpose.

13Limitation of liability

To the maximum extent permitted by law, our total aggregate liability for all claims arising under or in connection with these Terms is limited to:

• for a user with a paid Subscription, the greater of the fees you paid us, or paid through an app store for the App, in the twelve months before the event giving rise to the claim, or AUD 100; and
• for a user of the free tier, AUD 0, the free tier being provided at no charge.

We are not liable for Losses that are indirect, consequential or special, including loss of attendance data, loss of a Class key, academic or disciplinary outcomes, or loss of opportunity.

These limits do not apply to Losses caused by our wilful misconduct or gross negligence, to rights under the Australian Consumer Law, to Article 82 GDPR rights where GDPR applies, or to any liability that cannot be limited as a matter of mandatory law.

14Indemnity

You indemnify Selby Labs and its directors, officers, employees and contractors against Losses arising from your use of the App in breach of these Terms or of applicable law, from your failure to give your students the information required by section 7, or from a decision you make about a person on the basis of App records contrary to section 6.

This indemnity does not apply to Losses to the extent caused by our own breach of these Terms or of privacy law, our own wilful misconduct or gross negligence, or any matter for which an indemnity from you would be void or unenforceable under mandatory law.

15Termination

You may stop using the App at any time by leaving your Classes and deleting it. An Owner may delete a Class at any time, which removes it from our server permanently.

Either party may terminate for material breach not remedied within 14 days of written notice. We may suspend or terminate immediately where continued provision would, in our reasonable view, breach the law or expose us to enforcement action.

On termination, sections 6, 11, 12, 13, 14, 16 and 17 survive, along with any other clause that by its nature is intended to.

16Force majeure

Neither party is liable for failure or delay in performing its obligations (other than an obligation to pay money) caused by an event beyond its reasonable control, including fire, flood, earthquake, pandemic, act of war or terrorism, industrial action, failure of public utilities or telecommunications, denial-of-service attack, or act of government. The affected party will mitigate and resume as soon as practicable. If such an event continues for more than 60 days, either party may terminate on written notice.

17App stores

Where you obtained the App from the Apple App Store or Google Play:

• This agreement is between you and Selby Labs only, and not with Apple or Google. We, not they, are solely responsible for the App and its content.
• Apple and Google have no obligation to provide any maintenance or support for the App.
• In the event of a failure of the App to conform to any applicable warranty, you may notify Apple, and Apple may refund the purchase price; to the maximum extent permitted by law, Apple has no other warranty obligation with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to a failure to conform to a warranty are our responsibility.
• We, not Apple or Google, are responsible for addressing any claim by you or a third party relating to the App, including product liability claims, claims that the App fails to conform to a legal or regulatory requirement, and claims arising under consumer protection or similar legislation.
• We, not Apple or Google, are responsible for the investigation, defence, settlement and discharge of any third-party claim that the App infringes intellectual property rights.
• You must comply with the applicable third-party terms of your store and your data plan when using the App.
• Apple and its subsidiaries are third-party beneficiaries of these Terms and, on your acceptance, will have the right to enforce them against you as such.

18General

18.1 Governing law

These Terms are governed by the laws of Victoria, Australia, and each party submits to the non-exclusive jurisdiction of the courts of Victoria. Nothing in this clause affects non-excludable rights under the Australian Consumer Law, or mandatory rights of consumers resident elsewhere.

18.2 Severability

If any part of these Terms is held invalid, illegal or unenforceable, it is severed and the remainder continues in full force.

18.3 Entire agreement

These Terms and the Privacy Policy are the entire agreement between us in relation to the App and supersede all prior representations and understandings.

18.4 Waiver

A failure or delay in exercising a right or remedy is not a waiver of it.

18.5 Changes to these Terms

We may update these Terms. The version number and effective date at the top identify the current version, which is always published on this page. Where a change materially affects your rights we will give notice in the App before it takes effect. Continued use after the effective date is acceptance.