Terms and Conditions
These Terms are between you or the company or person that you represent (the Principal) and Hutly Pty Ltd. ACN 633 649 573 (Hutly). If you are entering into these Terms on behalf of a Principal, you warrant that you have the requisite authority to do so.
These Terms provide the terms on which Hutly permits Users to:
(a) access and use the Platform including the Living Contract, website, services and other functionality made available through the Platform;
(b) view and interact with any content, Information, communications, advice, text or other material provided by Hutly or its various third parties;
(c) upload content, including pictures, photographs, graphics, Information, comment, content, communications, text or other material (User Content) to the Platform; and
(d) communicate and transact directly with other Users including via the Living Contract.
You or the Principal may be a property owner, tenant, an employee, Agent, consultant, service provider, a Contract Party, subcontractor (including a Third Party supplier) or a Third Party nominated by another User from time to time (collectively, you). You agree to be bound by these Terms when you use, browse or access any part of the Platform.
Updates to Terms and Conditions
Hutly may from time to time review and update these Terms including to take account of new Laws, regulations, products or technology. Your use of the Platform will be governed by the most recent Terms posted on the Platform. By continuing to use the Platform, you agree to be bound by the most recent Terms. It is your responsibility to check the Platform regularly for updated versions of the Terms. If Hutly updates the Terms and you believe that this change will have a detrimental impact on you or on your use of the Platform, you are entitled to terminate these Terms by giving Hutly notice of your decision no later than 30 days after the effective date of the change by contacting Hutly at firstname.lastname@example.org with the subject line "Termination for Change", with a description of your request to terminate and your contact details.
1. Definitions and Interpretation
Acceptable Use Policy means the policy set out at clause 12.
Agent means a person that is appointed as a representative of a Contract Party under a Living Contract.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Business Day means a day which is not a Saturday, Sunday, public holiday or bank holiday in Brisbane, Queensland.
Claim includes a claim, notice, demand, action, proceeding, litigation, prosecution, arbitration, investigation, judgment, award or Loss, whether based in contract, civil, common law, tort (including negligence) or statute and whether involving a Party, Third Party or otherwise.
Confidential Information means:
(a) Information that at the time of disclosure by a Disclosing Party is identified to the Receiving Party as being confidential; and
(b) other Information belonging or relating to a Disclosing Party, or any Related Entity of that Disclosing Party, that is not generally available to the public at the time of disclosure other than by reason of a breach of these Terms or which the Receiving Party knows, or ought reasonably to be expected to know, is confidential to that Disclosing Party or any Related Entity of that Disclosing Party,
but does not include User Content.
Contract Party means any party to a Living Contract entered into through the Platform.
Corporations Act means the Corporations Act 2001 (Cth).
Disclosing Party means the Party to whom Information belongs or relates.
Fees means the fees set out from time to time in the Platform Description.
Government Agency means any government or any public, statutory, governmental (including a local government), semi-governmental or judicial body, entity, department or authority and includes any self-regulatory organisation established under statute in the relevant jurisdiction.
Information means any information, whether oral, graphic, electronic, written or in any other form, including:
(a) forms, memoranda, letters, specifications, processes, procedures, statements, formulae, technology, inventions, trade secrets, research and development information, know-how, designs, plans, photographs, microfiche, business records, notes, accounting procedures or financial information, sales and marketing information, names and details of customers, suppliers and Agents, employee details, reports, drawings and data;
(b) copies and extracts made of or from that information and data, whether translated from the original form, recompiled, partially copied, modified, updated or otherwise altered; and
(c) samples or specimens disclosed by either Party.
Integrators has the meaning set out in clause 4.2.
Intellectual Property Rights means all present and future intellectual and industrial property rights conferred by statute, at common law or in equity and wherever existing, including:
(a) patents, inventions, registered designs, copyright, trade marks, brand names, product names, domain names, database rights, rights in circuit layouts, plant breeder's rights, know how, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration;
(b) any application or right to apply for registration of any of these rights;
(c) any registration of any of those rights or any registration of any application referred to in paragraph (b); and
(d) all renewals, divisions and extensions of these rights.
Law means in any jurisdiction that is applicable to these Terms:
(a) any statute, regulation, by-law, ordinance or subordinate legislation in force from time to time to which a Party is subject;
(b) the common law and the law of equity as applicable to the Parties from time to time;
(c) any binding court order, judgement or decree;
(d) any applicable regulation, industry code, policy or standard enforceable by law; or
(e) any applicable direction, policy, rule or order that is binding on a Party and that is made or given by any Government Agency having jurisdiction over a Party or any of that Party's assets, resources or business.
Living Contract has the meaning set out in clause 4.1.
Loss means any loss, damage, cost or expense.
Party means you or Hutly.
Platform means the Hutly platform with the functionality and specifications set out in the Platform Description including but not limited to the Living Contract.
Platform Description means the Hutly platform description set out at the end of these Terms.
Providers has the meaning set out in clause 3.3.
Receiving Party means the Party to whom Information is disclosed or who possesses or otherwise acquires Information belonging or relating to a Disclosing Party.
Related Entity has the meaning given to that term in the Corporations Act.
Terms means these agreed terms.
Third Party means any person other than you or Hutly.
Traditional Contract means a contract entered into other than using the Platform.
User has the meaning set out at clause 2.1.
VAT (GST) has the meaning set out at clause 11.1.
In these Terms, unless the context requires otherwise:
(a) the singular includes the plural and vice versa;
(b) a gender includes the other genders;
(c) the headings are used for convenience only and do not affect the interpretation of these Terms;
(d) other grammatical forms of defined words or expressions have corresponding meanings;
(e) a reference to a document includes the document as modified from time to time and any document replacing it;
(f) a reference to a party is to a party to these Terms and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;
(g) if something is to be or may be done on a day that is not a Business Day then it must be done on the next Business Day;
(h) the word "person" includes a natural person, partnership, body corporate, association, governmental or local authority, agency and any other body or entity whether incorporated or not;
(i) the word "month" means calendar month and the word "year" means 12 months;
(j) the words "in writing" include any communication sent by letter, facsimile transmission or email or any other form of communication capable of being read by the recipient;
(k) a reference to a thing includes a part of that thing;
(l) a reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re‑enacted or replaced from time to time;
(m) wherever "include", "for example" or any form of those words or similar expressions is used, it must be construed as if it were followed by "(without being limited to)";
(n) money amounts are stated in Australian currency unless otherwise specified;
(o) a reference to time is to Brisbane, Australia time;
(p) a reference to any agency or body, if that agency or body ceases to exist or is reconstituted, renamed or replaced or has its powers or functions removed (defunct body), means the agency or body that performs most closely the functions of the defunct body;
(q) any agreement, representation, warranty or indemnity in favour of two or more parties (whether those parties are included in the same defined term or not) is for the benefit of them jointly and severally; and
(r) any agreement, representation, warranty or indemnity by two or more parties (whether those parties are included in the same defined term or not) binds them jointly and severally.
2. Registration of Accounts
In order to access certain features and functionality of the Platform you will have to register as a User of the Platform (User) and obtain an account (Account) by providing all of the Information required at registration.
When creating your Account, you become a User and warrant that you are of legal age to form a binding contract with Hutly and have the necessary capacity to enter into a binding legal contract in the place where you are accessing the Platform, and that all Information you have provided is true, accurate and complete. You must provide an email address that you own or control.
You consent to Hutly performing any identification checks or verification measures including through Providers for the purposes of identifying you and ensuring your compliance with these Terms.
You will be fully responsible for all acts and omissions of any person using your password and Account, as if they were your own acts and omissions. You agree that you will not share, disclose, or permit disclosure of, your password, let anyone else access your Account or do anything that would risk the security of your Account. Hutly will not in any event be liable for any Loss arising out of the use or misuse of your password and Account, and you will indemnify Hutly against all Loss in this regard.
You must notify us immediately if you become aware of any unauthorised access or use of your Account.
You agree that you will not create more than one personal Account and if we disable or terminate your Account for any reason, you will not create another one without our permission, whether through the use of your own personal details or those related to you or created by you.
We reserve the right to refuse registration of any Account, at our sole discretion.
Hutly agrees to provide the Platform to you in accordance with these Terms. By engaging in business on the Platform, each User is making a commitment to perform its obligations in accordance with these terms.
The Platform is primarily designed to facilitate:
(a) your ability to enter into Living Contracts with other users of the Platform; and
(b) interactions and agreements with Integrators.
You agree and acknowledge that Hutly is not a party to these agreements, nor is it acting as a real estate agent, broker, insurer or other equivalent local service providers in your location. You also agree that any other agreement entered into between Users outside of the Platform (being a Traditional Contract) is not a binding agreement for the purposes of these Terms.
Parts of the Platform may be provided by Third Party service providers which Hutly has contracted with such as Australia Post (Providers). You agree that Hutly may from time to time appoint any such Providers to provide services to Hutly and its Users (including you). The current list of Providers and the services they provide are set out in the Platform Description.
You agree and acknowledge that all payments on the Platform will be processed through a third party payment service and that your Information may be passed on to the provider for this purpose.
All Intellectual Property Rights, including copyright, in the Platform is owned or licensed by Hutly or any of its related entities. You agree to not copy, modify or transmit any part of the Platform.
The Platform may also contain trade marks, logos and trade names of Hutly or Third Parties which may be registered or otherwise protected by Law. You are not permitted to use any trade marks, logos or trade names appearing on the Platform.
Hutly grants you a non-exclusive and non-transferable right to use the Platform for your own use for its intended purpose, subject to the restrictions specified elsewhere in these Terms.
4. Living Contract
As a part of the Platform, Hutly provides a living contract which automates contracts, forms, payments, processes, transactions and events on blockchain and related parties as a living contract (Living Contract),
The Living Contract also includes plug-ins to Third Party service providers (including but not limited to maintenance service providers and inspection service providers) (Integrators). You agree that Hutly may add or remove any plug-ins to specified Integrators from time to time. The current list of Integrators and the services they provide are set out in the Platform Description.
You agree and acknowledge that there may be specific terms that are applicable to each Integrator should you or another Contract Party make use of it in the Living Contract (Integrator Terms). You agree to comply with the Integrator Terms as set out in the Platform Description from time to time.
5. User Content
When you use the Platform, you may upload User Content.
Any User Content uploaded by you to the Platform may be used by Hutly in accordance with the licence granted to it by clause 5.4.
You agree to be solely responsible for any User Content that is posted or uploaded to the Platform.
You retain all Intellectual Property Rights in the User Content uploaded to the Platform. By uploading the User Content, you grant Hutly a perpetual, non-exclusive, royalty free, irrevocable, transferable and worldwide licence (including the right to sub-licence), to use, adapt, copy, communicate, reproduce, modify, display, exploit, publish, re-distribute, broadcast, transmit, create derivative works from and incorporate in other works, the User Content, at any time in the future in any form and for any purpose.
You consent to your User Content being altered, edited or adapted by us for any reason including to ensure your User Content does not infringe these Terms. To the extent that you have any moral rights (pursuant to the Copyright Act 1968 (Cth)) in the User Content, by agreeing to these Terms, you provide an irrevocable and unconditional consent in favour of us, our successors, assignees, licensees and any other person authorised by any of them to use, modify or deal with your User Content (whether or not currently in existence) to:
(a) perform, exhibit, reproduce, adapt and communicate any part of your User Content in any medium and anywhere in the world without attributing you or any other person as an author of or contributor to that User Content;
(b) do any act or omission that would constitute a derogatory treatment of your User Content;
(c) make any use of your User Content that may falsely attribute authorship of the User Content to another person;
(d) delete or adapt or change any of your User Content in any way, including by addition to or subtraction from your User Content; or
(e) combine or juxtapose your User Content with anything else.
Where the User Content uploaded by you to the Platform contains material from Third Parties, you warrant that you have obtained the moral rights consents described in clause 5.5 from such Third Parties.
We may access or examine any User Content and at our discretion monitor, move, remove, block, modify, edit, refuse to upload or disable access to User Content which we consider, in our sole discretion, to breach any Law or these Terms or to be otherwise unacceptable.
You acknowledge that we:
(a) have no responsibility or liability for the deletion or failure to store any User Content uploaded by you or any other user on the Platform; and
(b) are not responsible for any User Content uploaded to the Platform by you or any User nor under any obligation to monitor, move, remove, block, modify, edit, refuse to upload or disable access to it.
You represent and warrant that:
(a) you own the User Content or have the necessary licences, rights, consents and permissions to publish the User Content you upload on the Platform;
(b) you have the right and power to grant the licence contained in clause 5.4 to us;
(c) the User Content uploaded by you will not infringe the Intellectual Property Rights of any Third Party; and
(d) you will not upload User Content that will cause you to breach these Terms, in particular the Acceptable Use Policy.
You understand that we do not guarantee any confidentiality with respect to any User Content you upload to the Platform.
You acknowledge and agree that we are under no obligation to take legal action in relation to commencing, defending, enforcing, settling or compromising (as appropriate) any infringement, claim or action relating to your Intellectual Property Rights in User Content.
You acknowledge that as Hutlyntinues to develop its business, it may buy, merge, partner with other companies and businesses and in doing so, acquire or sell certain Information which may include User Content. You hereby permit Hutly to disclose any User Content to a purchaser or potential purchaser in connection with the sale or potential sale of us, our business or any of our assets, including in insolvency.
Information contained in the Platform is obtained and developed from a variety of sources including but not limited to collaborations with Third Parties and Information provided by third parties under licence. Inclusion of this content on the Platform is not an endorsement of any organisation, product, service or advice.
In providing a Platform for Users to connect and transact, Hutly provides no endorsements as to the qualities of any User or Contract Party, or any verification of the services displayed on the Platform. Any use of the Platform materials or Information by another person or organisation is at your own risk.
7. Access and Communication
Subject to the consumer guarantees provided for in the ACL (as defined in clause 13), Hutly does not warrant that you will have continuous access to the Platform.
Hutly will not be liable if the Platform is unavailable to you due to computer downtime attributable to malfunctions, upgrades, preventative or remedial maintenance activities, interruption in telecommunications supply or otherwise.
Hutly does not guarantee the delivery or security of communications over the internet as such communications rely on Third Party service providers, and electronic communication (including electronic mail) is vulnerable to interception by Third Parties.
Whilst Hutly takes reasonable precautions to protect Information transmitted via the Platform, Hutly cannot and does not guarantee the security or confidentiality of these communications or the security of the Platform.
Hutly does not provide, and has no control over, communications, networks or services, the internet or other technology required or used across the Platform and accepts no responsibility for any direct or indirect Loss in any form associated with them, whether due to congestion, technical malfunction, viruses or otherwise.
8. User Obligations
As a User of the Platform, you (and you must procure that other people who may use the Platform on your behalf) must:
(a) agree to and comply with the Acceptable Use Policy;
(b) have the requisite authority and right to enter into each Living Contract on your own behalf, or on behalf of another User;
(c) ensure that participation on the Platform will not violate or result in the breach of any agreement between you and any Third Party;
(d) publish, or otherwise make available, data necessary to ensure the operation of the Platform;
(e) interact with other Users entirely on the Platform, which includes but is not limited to the following obligations: (i) ensuring that all monies payable under a Living Contract, including rent, Fees and other payments including those made to Integrators are processed by the Platform; (ii) ensuring that all communications relating to a Living Contract are conducted through the Platform; and (iii) ensuring that all agreements with other Users and Integrators are entered into on the Platform;
(f) comply with all reasonable directions of Hutly with respect to your use of the Platform;
(g) take all reasonable steps to mitigate the risks inherent in the use of the Platform, including loss of your own data;
(h) upon Hutly's request, provide reasonable assistance in the investigation of any security issue relevant to the Platform; and
(i) immediately notify Hutly if you become aware that the Platform may infringe on the Intellectual Property Rights of a Third Party.
Our Fees are set out in the Platform Description and may be changed from time to time. Any such change will be considered an update to these Terms for the purposes of the "Updates to Terms and Conditions" section above.
Hutly is entitled to invoice you directly for the relevant Fees payable by you. Hutly may also automatically deduct the Fees and any other amounts due to it from you (including for any overpayments) from payments made by other Users or Integrators to you prior to remittance to you.
You agree and acknowledge that, as part of providing the Platform to you including the functionality made available through the Platform, we may be paid by Providers and Integrators.
If you dispute any Fees hereunder, you must notify Hutly in writing within 30 days of receiving the relevant invoice, failure of which will result in a waiver by you of any Claim relating to the disputed Fees.
If Hutly believes that it is obligated to obtain tax Information and you do not provide this Information after being requested to do so, Hutly may withhold your payments until you provide the specified Information or confirm in a manner that is satisfactory to Hutly that you are not a person or entity from whom Hutly is required to obtain tax Information.
Obligations of confidentiality
Subject to clauses 10.2, the Receiving Party must:
(a) keep the Confidential Information confidential and not directly or indirectly disclose, divulge or communicate any Confidential Information to, or otherwise place any Confidential Information at the disposal of, any other person without the prior written approval of the Disclosing Party;
(b) take all reasonable steps to secure and keep secure all Confidential Information coming into its possession or control;
(c) only use the Confidential Information for the purposes of performing, and to the extent necessary to perform, its obligations under these Terms;
(d) not memorise, modify, reverse engineer or make copies, notes or records of the Confidential Information for any purpose other than in connection with the performance by the Receiving Party of its obligations under these Terms; and
(e) take all reasonable steps to ensure that any person to whom the Receiving Party is permitted to disclose Confidential Information under clause 10.2 complies at all times with the terms of this clause 10 as if that person were a Receiving Party.
The obligations of confidentiality under clause 10.1 do not apply to:
(a) any Confidential Information that: (i) is disclosed to the Receiving Party by a Third Party entitled to do so, whether before or after the date of these Terms; (ii) was already lawfully in the Receiving Party's possession when it was given to the Receiving Party and was not otherwise acquired from the Disclosing Party directly or indirectly; or (iii) is generally available to the public at the date of these Terms or subsequently becomes so available other than by reason of a breach of these Terms; or
(b) any disclosure of Confidential Information by the Receiving Party that is necessary to comply with any court order, Law, or the applicable rules of any financial market (as defined in the Corporations Act) if, to the extent practicable and as soon as reasonably possible, the Receiving Party: (i) notifies the Disclosing Party of the proposed disclosure; (ii) consults with the Disclosing Party as to its content; and (iii) uses reasonable endeavours to comply with any reasonable request by the Disclosing Party concerning the proposed disclosure.
11. Value Added Tax (Goods and Services Tax)
In this clause 11:
(a) "Laws" means any applicable law, statute, by law, regulation, order, regulatory policy (including any requirement or notice of any regulatory body), guidance or industry code of practice, rule of court or directive, delegated or subordinate legislation in force from time to time; and
(b) "VAT (GST)" means value added tax, goods and services tax, consumption tax, services tax or any similar taxes from time to time imposed in any jurisdiction.
All consideration to be paid or provided pursuant to these Terms is expressed exclusive of any VAT properly chargeable in accordance with Laws.
Subject to clause 11.5, if VAT (GST) applies to a supply made by Hutly in accordance with these Terms, you must pay Hutly an additional amount equal to the VAT (GST) chargeable on the supply.
You must pay the amount referred to in clause 11.3 to Hutly at the same time that the first part of the consideration for the supply is to be paid or provided, subject to Hutly issuing a VAT (GST) invoice or other document as may be required to be issued by Hutly by any relevant Laws.
The Parties agree that if any relevant Laws allow or oblige you to:
(a) treat any supply made by Hutly pursuant to these terms as made by you (as opposed to Hutly), or
(b) to account for VAT (GST) on the supply (instead of Hutly accounting for the VAT (GST)),
you must account for VAT (GST) under the reverse charge procedure or whatever procedure is appropriate according to the Laws and clause 11.3 does not apply.
If a Party is entitled to be reimbursed or indemnified under these Terms for a cost or expense which includes VAT (GST), the amount to be reimbursed or indemnified must be reduced to the extent that the Party (or another member of a VAT (GST) group of which that Party is a member) is entitled to an input VAT (GST) deduction or credit.
If the VAT (GST) payable on a supply made under these Terms varies from the amount paid by you to Hutly in accordance with clause 11.3 following a change to the consideration or otherwise, then:
(a) Hutly must recalculate the amount of VAT (GST) payable under clause 11.3 and notify you of the new amount within 14 days of becoming aware of the adjustment or variation;
(b) a corresponding amount must be paid by Hutly to you, or by you to Hutly (as the case requires); and
(c) Hutly will issue you any further appropriate VAT (GST) invoice or a credit note for VAT (GST) purposes which is required to evidence or effect the adjustment.
12. Acceptable Use
As a User of the Platform, you (and you must procure that other people who may use the Platform on your behalf) must:
(a) not breach or circumvent any applicable Laws;
(b) not circumvent the Platform or the obligation to ensure all interactions, communications, agreements and payments are made through the Platform in accordance with clause 8(e);
(c) not damage or tamper with the operation of the Platform;
(d) not frame any portion of the Platform without Hutly's written consent;
(e) not bypass (or attempt to bypass) any security mechanisms imposed by the Platform;
(f) not impersonate or falsely claim to represent a person or organisation;
(g) use your best endeavours to not introduce a virus, worm, Trojan horse, malware, spyware, disabling or malicious device or code, time bomb, or any other software or hardware or configuration that may cause harm or change to the Platform;
(h) not remove, modify or obscure any copyright, trade mark, or other proprietary right notices that appear on the Platform;
(i) not download, transmit, copy, store, reformat or otherwise modify any element of the Platform; and
(j) not publish, or otherwise make available, data which is illegal, fraudulent, defamatory, or otherwise offensive to third parties, or otherwise use the Platform in a manner which is unlawful or would infringe the rights of another person including any Intellectual Property Rights collectively (the Acceptable Use Policy).
collectively (the Acceptable Use Policy).
13. Warranties, Consumer Guarantees and Limitation of Liability
Subject to clause 13.2, any representation, warranty, condition, guarantee or undertaking that would be implied in these terms by Law, trade, custom or usage is excluded to the maximum extent permitted by Law.
Nothing in these terms excludes, restricts or modifies any consumer guarantee, right or remedy conferred on by the Australian Consumer Law being Schedule 2 to the Competition and Consumer Act 2010 (Cth) (ACL) or any other applicable Law that cannot be excluded, restricted or modified by agreement.
To the fullest extent permitted by Law, the liability of Hutly for a breach of a non-excludable guarantee referred to in the above clause is limited to:
(a) the supplying of the services again; or
(b) the payment of the cost of having the services supplied again.
Hutly is not liable to you for any indirect, incidental, special or consequential loss or damage, loss of profits or anticipated profits, economic loss, loss of business opportunity, loss of data, loss of reputation or loss of revenue (irrespective of whether the Loss or damage is caused by or relates to breach of contract, tort (including negligence), statute or otherwise) arising out of or in connection with the Platform.
Subject to this clause 13, the maximum aggregate liability of Hutly for all Losses, damages and Claims arising out of or in connection with these Terms, including liability for breach, in negligence or in tort or for any other common law or statutory action, is limited to the sum of $500.
You agree and acknowledge that you will fully indemnify Hutly and its Integrators in respect of all Loss, damages, costs, expenses (including legal fees on a full indemnity basis), fines, penalties, Claims, demands and proceedings howsoever arising, whether at common law (including negligence) or under statute, in connection with:
(a) any breach of these Terms;
(b) your use of the Platform, including any wrongful, wilful or negligent act or omission;
(c) your communications with Hutly;
(d) your use of Integrators linked to the Platform; or
(e) any Claims made by any other User, including from another Contract Party where you are a Contract Party to the relevant Living Contract.
Hutly may at any time immediately terminate your access (including restricting access) to the Platform or any feature of the Platform for any reason (including due to your breach or alleged breach of these Terms or a Living Contract) in its sole discretion and without prior notice.
You may terminate your Account at any time by providing Hutly with a notice of termination in accordance with the termination instructions available on the Platform. Following receipt of the termination notice, Hutly will remove your Account and cease displaying any of your User Content on expiry or termination of all Living and/or Traditional Contracts.
Hutly may from time to time agree to transfer your User Data, Living Contracts to which you are a Contract Party or other aspects of the Platform to third parties. Hutly will provide you with seven (7) days written notice when it does so, and you consent to any such transfer.
Should your Account or these Terms be terminated or expire for any reason, any Living Contracts entered prior to the date of termination will continue until its expiry or termination (Termination Period). You (as a Contract Party) must use the Platform for all communications, requests and matters arising out of a Living Contract for the Termination Period, and we will make the Platform available to the extent required to enable you to do so. Any failure by you to do so will be a material breach of these Terms.
This clause 15 and clauses 5.4, 13 and 17 will survive termination of your access to the Platform in accordance with this clause 15 and will continue to the benefit of and be enforceable by Hutly. These Terms will also continue for the Termination Period.
16. Hutly App
For the purposes of this clause 16, App means the Hutly mobile application.
(a) Subject to, and in accordance with these Terms, Hutly grants you a non-exclusive, royalty free, revocable, and non-transferrable licence (without the right to sub-licence) to install and use one copy of the App on your personal mobile device in machine executable object code form solely for use in conjunction with your Account (Licence).
(b) If you download the App through the Apple App Store and/or the Google Play Market, in addition to the terms set out here, your use of the App is also subject to: (i) Apple's End User License Agreement available at: https://www.apple.com/legal/internet-services/itunes/dev/stdeula/
(ii) Google Play's Terms of Service available at: https://play.google.com/about/play-terms/index.html
(c) Hutly reserves the right to suspend, terminate or otherwise deal with your Licence or Account at any time.
(a) This App is enabled to allow Hutly and Providers to use push notifications to send messages to you.
(b) During installation of the App on your mobile device, the App will ask you whether you would like it to send you Push Notifications.
(c) If you choose to receive push notifications, the App will generate push notifications on your mobile device. You acknowledge and consent to receive these push notifications, subject to clause 16.4 below.
(d) You may choose to stop receiving push notifications by deactivating the push notifications in the settings on your mobile device.
Wireless Carrier Charges and Availability
(a) You acknowledge and agree that by using the App you may incur charges from your usage of data over the internet and that any such charges will be your sole responsibility.
(b) Hutly does not promise you that you will have uninterrupted or error-free access to and use of the App.
Minimum Terms Required by Apple
(a) If you have obtained the App via Apple's App Store, this clause 16.5 applies.
(b) You acknowledge and agree that: (i) these Terms are concluded between you and Hutly, and not Apple, Inc. (Apple); (ii) Hutly, and not Apple, is solely responsible for the App; (iii) the Licence granted to you under clause 16.2 is subject to Apple's Usage Rules set out in the App Store Terms and Conditions set out at https://www.apple.com/au/legal/internet-services/itunes/au/terms.html
(iv) Apple has no responsibility whatsoever to furnish any maintenance and support services with respect to the App; (v) in the event of any failure of the App to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price you paid for the App; (vi) to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App; (vii) Apple is not responsible for any Claims that you have arising out of your use of the App; (viii) Apple will have no responsibility whatsoever for the investigation, defence, settlement or discharge of any Third Party Claim that the App infringes that Third Party’s Intellectual Property Rights; and (ix) Apple and its subsidiaries are third party beneficiaries of these Terms and, upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary.
(c) You represent and warrant that: (i) you are not located in a country that is subject to a US Government embargo, or that has been designated by the US Government as a “terrorist supporting” country; and (ii) you are not listed on any US Government list of prohibited or restricted parties.
These Terms contains the entire understanding between the Parties concerning the subject matter of these terms and supersedes all prior communications between the Parties.
No adverse construction
These Terms are not to be construed to the disadvantage of a Party because that Party was responsible for its preparation.
(a) A failure, delay, relaxation or indulgence by a Party in exercising any power or right conferred on the Party by these terms does not operate as a waiver of that power or right.
(b) A single or partial exercise of the power or right does not preclude a further exercise of it or the exercise of any other power or right under these terms.
(c) A waiver of a breach does not operate as a waiver of any other breach.
Each provision of these Terms is severable from the others and no severance of a provision will affect any other provision.
Successors and assigns
These Terms bind and benefit the Parties and their respective successors and permitted assigns under clause 17.6.
You cannot assign or otherwise transfer the benefit of these Terms without the prior written consent of Hutly. Hutly is permitted to assign or otherwise transfer the benefit of these Terms without your prior consent.
Communication and Notice
(a) You consent to Hutly and other Users contacting you by electronic means including through the Hutly App and/or email.
(b) You acknowledge that from time to time, Hutly may automatically send notices to Contract Parties, particularly in the event of a breach of the Living Contract. You consent to Hutly providing such notices.
Governing Law and jurisdiction
These Terms are governed by and must be construed in accordance with the Laws in force in the State of Queensland, Australia. The parties submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to these Terms, its performance or subject matter.
Operation of indemnities
Unless these terms expressly provides otherwise:
(a) each indemnity in these terms survives the expiry or termination of these terms; and
(b) a party may recover a payment under an indemnity in these terms before it makes the payment in respect of which the indemnity is given.
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