These User Terms and Conditions and the Registration completed by you (as described in the Registration) form a legally binding agreement between you and us.
1. PROVISION OF SERVICES
From the date that we accept your Registration by issuing or approving a Login (see clause 5.1 below), we will provide the Services, subject to the following (to the extent permitted by law):
(a) we do not promise that the Services will be continuous or fault free; and
(b) we exclude all liability in relation to any fault or failure in the supply of the Services involving any act, omission or event outside our reasonable control, including any equipment failure, power failure, fire, flood, water, labour dispute or shortage, utility curtailment, explosion, emergency, civil disturbance, war, act of God, governmental action or act or omission of any Supplier or other person. If we become aware of any such fault or failure, then we will use reasonable endeavours to address it.
You must pay the Fees. All Fees are inclusive of Australian GST.
You must make all payments in accordance with the Billing Arrangements. If you do not make a payment when due, then the amount unpaid will bear interest at 1.5% per month, compounding monthly.
3. YOUR OPERATIONAL OBLIGATIONS
3.1 General obligations
During the term of this Agreement you must:
(a) comply with all laws applicable in any way in relation to the Services ;
(b) only use the Services (including all or any part of any webpages, or corresponding code, provided to you in the course of the Services) for your own personal non-commercial use, and not provide or resell the Services (or any part of them) to any other person, whether or not as part of any other service;
(c) not use the Services, or permit the Services to be used (directly or indirectly), in any way that:
(i) commits, or encourages or causes to be committed by any person, any offence or unlawful act or omission; and
(ii) is racist, hateful, violent, defamatory, harassing, abusive, threatening, malicious, inflammatory or otherwise objectionable;
(iii) is pornographic, sexually explicit, obscene or excessively profane;
(iv) is fraudulent, false, misleading or deceptive; or
(v) infringes, or encourages the infringement of, a third party’s rights, including intellectual property, confidentiality or privacy rights;
(d) not do or permit to be done, any act which could damage our reputation or the reputation of the Services (or any other service or software provided to any person under the Cuuble brand); and
(e) not use the Services, or any of our trademarks, logo or brands in any way that represents or implies an endorsement or association with you or your activities.
(f) respect all copyright notices, not infringe our intellectual property in relation to the Services and not reverse engineer the Services to produce competitive products (except to the extent that doing so is expressly permitted by law and any right to do so cannot be excluded).
Without limiting the above, we may (but are not obliged to) remove or take down any content (such as photos etc) that you post or store online with us through use of the Services that in our opinion results, or may result, in a breach of any of the above.
3.2 User Guidelines
You must comply with any User Guidelines, and all reasonable directions from us.
4. CONFIDENTIAL INFORMATION AND PRIVACY
4.1 Obligation of confidentiality
Each party to this Agreement agrees to keep in confidence any Confidential Information of the other party, and to use the other party’s Confidential Information only for the purposes of this Agreement.
Clause 4.1 does not apply:
(a) to the disclosure of information (including personal information) by us to:
(ii) other users (or administrators) of the Services where you have set the settings in the Services so as to make that information public,
and you consent to any such disclosure; or
(b) to any information that enters the public domain other than by breach of this Agreement, or is required by law to be disclosed, provided that the disclosing party uses reasonable efforts to protect the confidentiality of such information.
5.1 Issue of Login
As part of the process of your registration as a user of the Services, we will issue or approve (subject to any applicable validation requirements) a single User ID and password (together being a “Login”) to you.
5.2 Use of Login
You are liable for, and we may rely upon, all use of the Services, and all instructions, requests and information submitted to us in connection with any use of the Login, including where the information or request is submitted:
(a) by a person other than you (or an authorised representative of you);
(b) by a person using the Login fraudulently or without authority; or
(c) by means of a machine rather than by direct or indirect human intervention or initiation.
Without limiting the above, we are entitled to treat all use of the Services made using the Login as use by you and that you have authorised, and you are responsible for the payment of any Fees which arise in relation to that use.
5.3 Security of Login
(a) keep the Login secure at all times, including by not recording it in any form (electronic or otherwise) in clear text, except where recording the Login is strictly necessary, in which case:
(i) it must not be identified as a User ID or password, but must instead be concealed or coded such that someone finding the record is unable to use the recorded password directly – e.g. by adding dummy characters, or embedding them in long strings of characters and numbers); and
(ii) it must be stored securely (not on a desk, monitor or in your wallet/purse);
(b) notify us immediately upon becoming aware that the Login may be lost or stolen, or becoming aware or suspecting that another person knows the Login, or has used the Login, without your authority; and
(c) if the Login information is lost or stolen, immediately change the password of your account to protect against fraudulent use of the Services.
6. WARRANTIES AND LIABILITY
6.1 Exclusion of other terms
All of the Services will be provided with due care and skill. Otherwise, to the extent permitted by law, and except as expressly provided in this Agreement, all terms, conditions, warranties and representations (in each case whether express, implied, statutory or otherwise) relating in any way to the Services or this Agreement are excluded.
6.2 General limitation of liability
Without limiting clause 6.3, to the extent permitted by law, any liability of ours in connection with, the Services or this Agreement:
(a) under any condition or warranty that by law cannot be excluded;
(b) under any consumer guarantee or other right under any law; or
(c) on any other basis (including contract or negligence),
is, where permitted by law, limited at our option to the replacement, repair or resupply of the relevant goods or services or the payment of the cost of same.
6.3 Exclusion of categories of loss
The following applies only to the extent permitted by law. All liability of ours is excluded in respect of any indirect or consequential Loss suffered or incurred by you, in relation to:
(a) the Services;
(b) any delay or failure in providing them; or
(c) otherwise under or in connection with this Agreement,
and in any event (including where amounting to a direct loss) for any lost or corrupted data.
To the maximum extent permitted by law, you hereby indemnify and must keep indemnified us against all Losses incurred by us in relation in any way to:
(a) any breach of this Agreement by you or negligence by you; or
(b) any claim by you against any Supplier.
This indemnity may be enforced by us before and without incurring any expense or making any payment to any person.
7. TERMINATION AND SUSPENSION
7.1 Termination without cause
Either you or we may at any time, without any reason, terminate this Agreement by giving the other at least 30 days prior written notice.
We may terminate this Agreement, or suspend or alter any or all of the Services or any related functionality, with immediate effect by written notice to you if you fail to make any payment when due under this Agreement.
7.3 Effect of termination or suspension
You will have no right to any refund of any Fees upon termination, or in relation to any period of suspension (or alteration) of the provision of the Services to you, except to the extent (if any) that the law requires otherwise. The termination of this Agreement will not affect the accrued rights of either party as at the date of termination. Clauses 2 to 11 will survive the termination of this Agreement, as will any other provision that by its nature is intended to survive termination.
7.4 Recovery of content
If we or you terminate this Agreement, then for a period not exceeding 30 days from the date of termination we will provide a means by which you may download the current content (such as photos etc) that you have stored online with us through use of the Services.
We may amend this Agreement (including the Fees) in any way at any time by notice to you. Any such amendment will not take effect earlier than 45 days after the date on which we send the notice.
As part of the process of completing the Registration, you must provide a current email address and any other contact details that we request in the Registration process.
Any notice or other written communication given under or in connection with this Agreement by either party to the other must be sent by ordinary prepaid mail or email to the corresponding address below, unless either party notifies the other of a change of the relevant address. We may also send you notices or other written communications via the Services.
Each party must ensure that at all times the contact details (including email address) applicable to it under this clause is current, and endeavour to ensure it is operational.
An email will be taken to have been served at the time of sending, unless within 24 hours of it being sent the sender receives a manual or automated response indicating that it was not delivered successfully.
10.1 Applicable law
This Agreement is to be construed according to, and is governed by, the laws of Victoria, Australia. You and we submit to the non-exclusive jurisdiction of the courts in and of Victoria in relation to any dispute arising under this Agreement.
10.2 Assignment and subcontracting
You may not transfer or assign your rights or obligations under this Agreement to any other person. We may subcontract our obligations under this Agreement.
If any provision of this Agreement or its application to any person or circumstance is or becomes invalid, illegal or unenforceable then the provision will so far as possible be read down to the minimum extent necessary to ensure that it is not. If any provision or part of it cannot be so read down, then the provision or part of it will be deemed to be void and severable and the remaining provisions of this Agreement will not be affected or impaired in any way.
Any failure by any party to exercise any right under this Agreement does not operate as a waiver and the single or partial exercise of any right by that party does not preclude any other or further exercise of that or any other right by that party.
10.5 Entire agreement
This Agreement constitutes the entire agreement between us and you in relation to its subject matter. Any prior arrangements, agreements, representations or undertakings are superseded and, except as expressly provided, each party warrants that it has not relied on any arrangement, agreement, representation or understanding which is not expressly set out in this Agreement or incorporated by reference.
In this Agreement the following terms have the corresponding meaning:
Agreement means these User Terms and Conditions, the Registration and the applicable description of the Fees.
Billing Arrangements mean the billing arrangements specified in the Registration.
Confidential Information of a party to this Agreement means all information of a confidential nature of or relating to that party, including anything which is indicated to be subject to an obligation of confidence which is disclosed by that party to the other party in relation to this Agreement, or that comes to the knowledge or into the possession of the other party in connection with this Agreement. Confidential Information of ours includes the terms of this Agreement, the business, affairs, networks, customers, products, developments, trade secrets, know-how, pricing structures, the Services, and any information related to the supply of the Services by us to you.
Fees means the fees (if any), charges, interest and other amounts described or referred to in this Agreement or the Registration, as amended from time to time in accordance with this Agreement.
Loss means any loss, damage, cost, interest, expense, fee, penalty, fine, forfeiture, assessment, demand, action, suit, claim, proceeding, cause of action, liability or damages incurred by a person, and includes legal costs on an indemnity basis and indirect or consequential losses.
Registration means the electronic application to use the Services completed by you via the Website, as varied by you from time to time via the Website.
Services means the provision of an online service (as varied from time to time by us) that provides selected functionality of the communication and interaction software known as “Cuuble”, as that selected functionality is described on the Website or in the User Guidelines (and subject to the restrictions or limitations included in the applicable description). You acknowledge that the level of functionality provided (and corresponding Fees) may depend up on the version of the service that you select during Registration (e.g. “Cuuble Basic” or “Cuuble Plus”).
Supplier means any person from whom we purchase any services in connection with the supply of any of the Services.
us (or we) means Wwite Pty. Ltd. (ACN 097 300 984).
User Guidelines means instructions and guidelines provided or published by us from time to time in relation to the Services and their use by users.