Terms and Conditions
UPDATED 5TH JANUARY 2023
DEFINITIONS
USE OF SOFTWARE
YOUR OBLIGATIONS
COHABIT OBLIGATIONS
CONFIDENTIALITY AND PRIVACY
INTELLECTUAL PROPERTY
WARRANTIES AND ACKNOWLEDGMENTS
TERMINATION
TECHNICAL SUPPORT
DISPUTE RESOLUTION
GENERAL
UPDATED 5TH JANUARY 2023
Welcome to Cohabit, an online building connectivity and management platform designed for strata managers and people living in strata schemes.
These Terms of Use are intended to explain Our obligations as a provider of the Service and Your obligations as a user of the Service.
These Terms of Use, together with Cohabit’s Privacy Policy, the Agreement, represent a legally binding agreement between You and Cohabit with respect to Your access to and use of the Service.
Cohabit may update these Terms of Use from time to time. Cohabit will post any updates on the Website. You will be deemed to have accepted any changes to the Terms if You continue to use the Service after the date of an update.
Whenever You access and use the Service You are acknowledging that You have read, understood and accepted these Terms of Use, Cohabit’s Privacy Policy and the Agreement, and have the authority to act for any person or entity on behalf of whom You are using the Service.
DEFINITIONS
In these Terms, the following words mean the following:
Agreement means the Cohabit Service Agreement executed by You and Cohabit in connection with the provision of the Service by Cohabit to You.
Access Fee means the monthly fee (excluding any taxes and duties), being an amount agreed in writing by You and Us, for Your use of the Service.
Cohabit means Cohabit Technologies Pty Limited (ABN 27 658 792 888).
Confidential Information of a party includes any and all information of any type contained in or comprising advice, reports, accounts, manuals, contracts, techniques, operations, processes, software, applications, names, logos, marks, copyright subject matter, patentable subject matter, inventions, drawings, photographs, formulae, costs, estimates, methods of doing business, marketing and business plans, budgets, sales and customer lists, details or preferences of clients or customers, client and customer data (including Personal Information), proposed projects and products, and all other information, trade secrets and know-how whether written, oral, or embodied in any other form or medium, which is obtained directly or indirectly from the party either before or after the date of these Terms.
Data means any data entered by You, or with Your authority, into the Service.
Intellectual Property Right means any patent, trade mark, service mark, copyright and related rights, moral right, right in a design, rights to inventions, copyright, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, database rights, rights to use, and protect the confidentiality of, know-how), and all other intellectual property rights, confidential information (including know-how) and any other intellectual or industrial property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in anywhere in the world.
Invited User means any person or entity, other than the Subscriber, that uses the Service with the authorisation of the Subscriber from time to time.
Personal Information includes without limitation all information or opinions about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not, and whether the information or opinion is recorded in a material form or not. It also includes de-identified, generic, or demographic information which on its own may not be sufficient to identify a particular individual, but when re-identified or combined with other information is sufficient to identify a particular individual.
Our means Cohabit. Us and We have the same meaning.
Service means the provision of access to content or data made available on the cohabit.com.au platform (including its Website, mobile site and apps), as may be changed or updated by Cohabit from time to time, regardless of how it is accessed by a Subscriber (including via the Internet, mobile phone or any other device).
Subscriber means the person (meaning either a natural or legal person) who is licensed under these Terms to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service.
Terms or Terms of Use means these Terms of Use and if relevant any special terms and conditions agreed in writing by You and Us.
Virus means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Website means the internet site located at http://www.cohabit.com.au.
You means the Subscriber, and where the context permits, an Invited User. Your has the same meaning.
USE OF SOFTWARE
Subject to You paying the Access Fee in accordance with clause 3(a), the restrictions set out in clause 3 and the other terms and conditions of these Terms, Cohabit grants You the non-exclusive, non-transferable right (without the right to grant sublicenses) to access and use the Service. This right is non-exclusive, non-transferable, and limited by and subject to these Terms. You acknowledge and agree (subject to any applicable written Terms between the Subscriber and the Invited Users and any other applicable laws) that:
the Subscriber determines who is an Invited User and what level of user role access to the Service that Invited User has;
the Subscriber is responsible for all Invited Users’ use of the Service and as such must ensure that the Invited Users use the Service in accordance with the terms and conditions of these Terms and will be responsible for any Invited User’s breach of these Terms;
the Subscriber controls each Invited User’s level of access to the Service at all times and can revoke or change an Invited User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be an Invited User or will have that different level of access, as the case may be;
it is the Subscriber’s responsibility to ensure that each Invited User is issued with and keeps a secure password for their usage of the Service and that each Invited User keeps their password confidential;
the Subscriber shall maintain a written, up to date list of current Invited Users and provide such list to Cohabit within 5 Business Days of Cohabit’s written request at any time or times; and
if there is any dispute between a Subscriber and an Invited User regarding access to the Service, the Subscriber shall decide what access or level of access to the relevant Data or Service that the Invited User shall have, if any.
YOUR OBLIGATIONS
You agree that as a condition of Your use of the Service, You will comply with the following obligations:
Payment Obligations:
The Access Fee will be deducted monthly by credit card or be paid by You monthly on receipt of an invoice from Us. If You provide credit card details to Cohabit, You hereby authorise Cohabit to bill such credit card in accordance with this clause. Cohabit will continue deducting the Access Fees monthly until these Terms is terminated in accordance with its Termination provisions.
All Cohabit payment receipts will be sent to You, or to a billing contact whose details are provided by You, by email (Billing Contact). You are responsible for payment of all applicable taxes and duties in addition to the Access Fee.
If Cohabit has not received payment within 7 days after any particular due date, and without prejudice to any other rights and remedies of Cohabit: We may, without liability to You, disable Your password, account and access to all or part of the Service and Cohabit will be under no obligation to provide any or all of the Service while the invoice(s) concerned remain unpaid.
Cohabit is entitled to increase the Access Fee upon 30 days’ prior notice to You.
General Obligations:
You must:
only use the Service for Your own lawful personal or internal business purposes, and in accordance with these Terms and any additional conditions posted on the Website from time to time;
use the Service on behalf of others or in order to provide services to others but if You do so You warrant that You are authorised to do so and that all persons for whom or to whom services are provided will comply with and accept the terms of these Terms;
not engage any person to, attempt to build, or to use, operate or provide any product, Service or software that is the same, or similar to the Service provided by Cohabit under the Agreement, or which directly or indirectly competes with the Service provided by Cohabit under the Agreement except where You are continuing to use a similar pre-existing Service (the details of which are to be disclosed by You to Cohabit) or software or the use of such Service or software is approved by Cohabit in writing, at its sole discretion. In any event, You must not expand or extend the use of any pre-existing Service or software during the term of the Agreement.
ensure that Your network and systems comply with the relevant specifications provided by Cohabit from time to time;
be solely responsible for procuring and maintaining Your network connections and telecommunications links from Your systems to the Service, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Your network connections or telecommunications links or caused by the internet;
cooperate with Cohabit in all matters relating to the Service;
carry out all other Customer responsibilities set out in these Terms in a timely and efficient manner. In the event of any delays in Your provision of such assistance as agreed by the parties, Cohabit may adjust any agreed timetable or delivery schedule as reasonably necessary;
comply with all applicable laws and regulations with respect to its activities under these Terms; and
obtain and maintain all necessary licences, permissions and consents which may be required before You use the Service.
Access Obligations:
You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You must immediately notify Cohabit of any unauthorised use of Your passwords or any other breach of security, and You must take all other actions that Cohabit reasonably requires to maintain or enhance the security of Cohabit’s computing systems and networks, and Your access to the Service. You indemnify Cohabit against any claims, loss or damage of any kind relating to any breach, misuse or unauthorised use of your computer systems, security systems or passwords, or any unauthorised disclosure of data or Confidential Information occurring via any system controlled by You.
Usage Limitations:
Use of the Service may be subject to limitations, including but not limited to monthly data storage limits.
You must use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service and, in the event of any such unauthorised access or use, promptly notify Cohabit.
Communication Conditions:
If You use any communication tools available through the Service (such as any forum, chat room or message centre),
You agree only to use such communication tools for lawful and legitimate purposes.
You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Service, including (but not limited to) offers of goods or services for sale, unsolicited commercial e-mail, files that may damage any other person’s computing devices or software, content that may be offensive to any other users of the Service, or material or activities in violation of any law or the rights of any third party (including material that is protected by copyright or trade secrets which You do not have the right to use, and material that is defamatory, discriminatory, misleading or deceptive).
When You make any communication on the Website, You represent that You are permitted to make such communication.
Cohabit is under no obligation to ensure that the communications on the Website are legitimate or that they are related only to the use of the Service.
As with any other web-based forum, You must exercise caution when using the communication tools available on the Website.
Cohabit may in its absolute discretion remove any communication at any time.
Indemnity:
You hereby agree to defend, indemnify and hold harmless Cohabit against all claims, actions, proceedings, losses, expenses, costs (including without limitation reasonable legal fees and costs), damages and any other liabilities arising out of or in connection with Your use of the Service.
You indemnify Cohabit against all claims, actions, proceedings, losses, expenses, costs (including without limitation reasonable legal fees and costs), damages and any other liabilities arising from any breach of any of these Terms or any obligation You may have to Cohabit, including (but not limited to) any costs relating to the recovery of any Access Fees that are due but have not been paid by You.
Service Rules:
As a condition of these Terms, when accessing and using the Service, You agree not to engage in any of the following prohibited activities (Prohibited Activities):
copy, distribute, alert, duplicate, create derivative works from, mirror, republish, download, display, transmit, disclose or distribute all or any part of the Service in any medium;
reverse compile, decompile, disassemble, translate, reverse engineer or otherwise reduce to human-perceivable from all or any part of the Website or any materials contained on the Website;
reproduce, copy, license, sublicense sell, rent, lease, transfer, assign, convey, distribute, display, disclose, or otherwise commercially exploit, transfer, or make the Service or materials contained on the Website available to any third party except the Invited Users;
scape, store, publish, transmit, transfer, communicate, distribute or disseminate, the Website or any materials contained on the Website;
combine the whole or any part of the data available on the Website with any other software, data or material or store or use any part of that data in archival database or other searchable database except as forming part of any deliverable;
access or all or any part of the Website in order to build a product or service which competes with the Service or the Website or any part of Cohabits business;
allow the unauthorised use, copying, publication or dissemination of the Website by any third-party;
use the Website to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Cohabit servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Cohabit grants the operators of public search engines revocable permission to use spiders to copy materials from the Service for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials);
transmitting spam, chain letters, or other unsolicited email;
attempting to interfere with, compromise the system integrity or security of Cohabit’s computing systems or networks or, where the Service are hosted by a third party, that third party’s computing systems and networks, or decipher any transmissions to or from the servers running the Service;
taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure;
uploading invalid data, viruses, worms, or other software agents through the Service;
collecting or harvesting any Personal Information from the Service, except as expressly permitted by the features of the Service;
using the Service for any commercial solicitation purposes, meaning you must not use the Service to sell products or services of any description;
impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity;
interfering with the proper working of the Service;
accessing any content on the Service through any technology or means other than those provided or authorised by the Service;
bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein; or
post, submit, access, store, or distribute material on the Website that:
is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
facilitates illegal activity;
depicts sexually explicit images;
promotes unlawful violence;
is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
is otherwise illegal or causes damage or injury to any person or property.
You must use all reasonable endeavours to prevent any Prohibited Activities and in the event of any such Prohibited Activities promptly notify Cohabit.
If You or any of Your Invited Users engage in a Prohibited Activity, Cohabit may, in its absolute discretion, without liability or prejudice to its other rights to You, permanently or temporarily terminate or suspend Your access to the Service, without notice to You.
COHABIT OBLIGATIONS
Cohabit undertakes that the Service will be performed with reasonable skill and care.
The undertaking at clause 4(a) will not apply to the extent of any non-conformance which is caused by use of the Service contrary to Cohabit’s instructions, or modification or alteration of the Service by any party other than Cohabit or Cohabit’s duly authorised contractors or agents. If the Service does not conform with the foregoing undertaking, Cohabit will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or attempt to provide You with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Your sole and exclusive remedy for any breach of the undertaking set out in clause 4(a). Notwithstanding the foregoing, Cohabit:
does not warrant that Your use of the Service will be uninterrupted or error-free; or
that the Service and/or the information obtained by You through the Service will meet Your requirements; and
is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and You acknowledge that the Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
Cohabit will use commercially reasonable endeavours to make the Service available 24 hours a day, seven days a week, except for planned maintenance and unscheduled maintenance performed outside normal business hours.
If Cohabit’s performance of any of its obligations under the Terms of Use is prevented or delayed by any act or omission by You or failure by You to perform any relevant obligation (Default):
Cohabit, without limiting its other rights or remedies, has the right to suspend performance of the Service until You remedy the Default, and to rely on the Default to relieve it from the performance of any of its obligations to the extent the Default prevents or delays Cohabit’s performance of any of its obligations;
Cohabit will not be liable for any costs or losses sustained or incurred by You arising directly or indirectly from Your failure or delay to perform any of its obligations as set out in this clause 4; and
you must reimburse Cohabit on written demand for any costs or losses sustained or incurred by Cohabit arising directly or indirectly from the Default.
These Terms shall not prevent Cohabit from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these Terms.
CONFIDENTIALITY AND PRIVACY
Confidentiality:
Unless the relevant party has the prior written consent of the other or unless required to do so by law:
each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms of Use. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms of Use;
each party will take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of these Terms;
each party’s obligations under this clause will survive termination of these Terms of Use;
you acknowledge that details of the Service, and the results of any performance tests of the Service, constitute Cohabit’s Confidential Information; and
The provisions of clause 5(a) do not apply to any information which:
is or becomes public knowledge other than by a breach of this clause;
is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party;
is independently developed without access to the Confidential Information;
is disclosed to an actual or potential buyer of or investor in Cohabit, its related bodies corporate or any other entity from time to time forming part of the Cohabit group, provided that person is subject to confidentiality obligations commensurate with those of Cohabit under these Terms; or
is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 5(a)(v), it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
Privacy:
Cohabit maintains a privacy policy that sets out the parties’ obligations in respect of Personal Information. This privacy policy is set out at https://www.cohabit.com.au/privacy-policy, and may be amended from time to time by Cohabit. You will be taken to have read and accepted Our privacy policy when You accept these Terms of Use.
If You are a citizen or resident of the United Kingdom or the European Union, and Cohabit processes any Personal Information (or “Personal Data”, as this term is defined in the General Data Protection Regulation (EU) 2016/679) on Your behalf when performing its obligations under these Terms, the parties record their intention that You shall be the data controller and Cohabit will be a data processor and in any such case:
you acknowledge and agree that the Personal Information may be transferred or stored outside the EEA or the country where You and any Invited Users are located in order to carry out the Service and Cohabit’s other obligations under these Terms;
You must ensure that You are entitled to transfer the relevant Personal Information to Cohabit so that Cohabit may lawfully use, process and transfer the Personal Information in accordance with these Terms on Your behalf;
You must ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
each party will take appropriate technical and organisational measures against unauthorised or unlawful processing of the Personal Information or its accidental loss, destruction or damage.
INTELLECTUAL PROPERTY
General:
Title to, and all Intellectual Property Rights in or arising out of or in connection with the Service and any documentation relating to the Service remain the property of Cohabit (or its licensors, or related entities, as applicable). Except as expressly stated in these Terms, these Terms do not grant You any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Service or any associated documentation.
You acknowledge that, in respect of any third party Intellectual Property Rights, Your use of any such Intellectual Property Rights is conditional on Cohabit obtaining a written licence from the relevant licensor on such terms as will entitle Cohabit to license such rights to You.
Third-party products
You acknowledge and agree that third-party products may be available through the Service. Any use by You or Invited Users of third-party products, is solely a matter between You and the applicable supplier of the third-party product. Cohabit does not warrant or support third-party products, whether or not they are designated by Cohabit as certified or otherwise, except as specified in these Terms.
We may allow a third-party to access Data to facilitate the Service and as reasonably required for the enhancement of the Service.
Ownership of Data:
Title to, and all Intellectual Property Rights in, the Data remain Your property and You have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Data. However, Your access to the Data is contingent on full payment of the Access Fee when it falls due.
You grant Cohabit a licence to use, copy, transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the Service and for any other purpose related to the provision of the Service to You.
Backup of Data and requesting a copy of Data on termination of use of Service:
Cohabit adheres to its best practice policies and procedures to prevent data loss or unauthorised access or disclosure, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of, or unauthorised access to or disclosure of Data. Cohabit expressly excludes liability for any loss, destruction, alteration or unauthorised access to or disclosure of Data no matter how caused.
If, on termination of Your use of the Service, You would like a copy of your Data, Cohabit will, on request in writing by You, provide You a copy of your Data, in PDF backup format.
Fees for this task are:
1 x free export if you have been a Cohabit client for more than 6 months and $500 AUD (excluding taxes) for each migration after the first (if required); or
$500 AUD (excluding taxes) per export if you have not been a client for 6 months.
You must make a request for a copy of your Data within 30 days of termination of Your use of the Service.
You acknowledge that, whether you request a copy of the Data or not within 30 days of termination of Your use of the Service, Your Data will be irretrievably deleted from the Service after 90days following termination of Your use of the Service. Cohabit will not store Data beyond this time due to data protection concerns and the cost of data storage.
Third-party applications and your Data:
If You enable third-party applications for use in conjunction with the Service, You acknowledge that Cohabit may allow the providers of those third-party applications to access Your Data as required for the inter-operation of such third-party applications with the Service. Cohabit is not responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party application providers.
WARRANTIES AND ACKNOWLEDGMENTS
Authority:
You warrant that where You are using the Service on behalf of another person, You have the authority to agree to these Terms on behalf of that person and agree that by accessing and using the Service You bind the person on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of these Terms, without limiting Your own personal obligations under these Terms.
Acknowledgment:
You acknowledge that:
You are authorised to agree to these Terms of Use and to access and use the information and Data that You enter into the Service, including any information or Data entered into the Service by any other person you have authorised to use the Service or Data.
You are authorised to access the processed information and Data that is made available to You through Your use of the Service (whether that information and Data is owned by You or not).
Cohabit has no responsibility to any person other than You and nothing in these Terms confers, or purports to confer, a benefit on any person other than You. If You use or access the Service on behalf of or for the benefit of anyone other than yourself (whether a body corporate or otherwise) you agree that:
You are responsible for ensuring that You have the right to do so;
You are responsible for authorising any person who is given access to information or Data, and you agree that Cohabit has no obligation to provide any person access to such information or Data without Your authorisation and may refer any requests for information to You to address; and
You hereby indemnify Cohabit against any claims or loss relating to:
Cohabit’s refusal to provide any person access to Your information or Data in accordance with these Terms;
Cohabit’s making available information or Data to any person with Your authorisation; or
The acts or omissions of any Invited User or any person on whose behalf You use the Website or the Service.
The provision of, access to, and use of, the Service is on an “as is” basis and at Your own risk.
It is Your sole responsibility to determine that the Service meets the needs of Your business and are suitable for the purposes for which they are used.
You assume sole responsibility for results obtained from the use of the Service by You, and for conclusions drawn from such use.
You remain solely responsible for complying with all laws applicable to You. It is Your responsibility to check that collection of, storage of and access to your Data via the Service will comply with laws applicable to you (including but not limited to laws relating to the privacy of Personal Information) and will not infringe the rights of any third parties. Cohabit makes no warranty that any particular functionality provided by the Software, or any particular activities which may be able to be carried out by the Software (whether alone or in conjunction with third party sites or applications), will be lawful or will not infringe the rights of third parties. You indemnify Cohabit against loss or damage of any kind it may suffer as a result of your unlawful use of the Service or use which may infringe the rights of any third party.
Each time You use the Service You warrant that You comply with and will continue to comply with the terms of use of third party websites which You access via the Service (including but not limited to social media websites) and in particular that You are aware of and agree to comply with the privacy conditions of all such third party websites.
Each time You use the Service to retrieve data which contains the Personal Information of any person, from a third party website (including but not limited to social media websites), and You input such data into the Service, you warrant that You have been authorised by the person to whom the Personal Information relates to use and store that information in the manner in which you intend to use and store it.
You indemnify Cohabit against all claims, damages, losses and any other liabilities relating to the use of any data (including data containing Personal Information) which is accessed and retrieved/extracted from any third party websites (including but not limited to social media websites) and entered into the Service, using tools provided by the Service.
No warranties:
Save as expressly and specifically set out in these Terms of Use, Cohabit gives no warranty about the Service. Without limiting the foregoing, Cohabit does not warrant that the Service will meet Your requirements or that it will be suitable for any particular purpose.
All implied conditions, warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
LIMITATION OF LIABILITY
Nothing in these Terms limits or excludes the liability of Cohabit, You or any Invited User for:
bodily injury or death resulting from the negligence of the other party; or
fraud or fraudulent misrepresentation; or
a breach of clause 5 or 6; or
any liability that cannot be limited or excluded under applicable law.
Nothing in these Terms excludes Your liability or the liability of any Invited User for:
a breach of clause 3; or
a failure to pay amounts due to Cohabit under these Terms.
If Cohabit incurs any liability to You under or as a result of any such non-excludable provisions, then Cohabit’s liability is limited to, at Cohabit’s election, the re-supply of the Service, or the payment of the cost or re-supplying the Service.
Subject only to clauses 8(a), 8(b) and 8(c):
Cohabit excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under on in connection with the Terms for any loss of any kind (including loss or corruption of software, information or Data), any loss of profits, any loss of sales or business, any loss of agreements or contracts, any loss of anticipated savings, any loss of damage or goodwill, any indirect or consequential loss, and any cost, damage or other liability resulting, directly or indirectly, from any use of, or reliance on, the Service;
if Cohabit incurs any liability to you, whether in contract, tort (including negligence) or otherwise, then Cohabit’s liability is limited to (at Cohabit’s election) the re-supply of the Service, or the payment of the cost or re-supplying the Service; and
To the extent that sub-clause 8(d)(ii) may be held void or unenforceable, if Cohabit incurs any liability to you, whether in contract, tort (including negligence) or otherwise, then Cohabit’s liability is limited to the aggregate Access Fees paid by You to Cohabit in the 6 months preceding the relevant liability arising.
In no event will Cohabit, its employees, agents and subcontractors be liable to You to the extent that the alleged infringement is based on:
a modification of the Service by anyone other than Cohabit; or
Your use of the Service in a manner contrary to the instructions given to You by Cohabit; or
Your use of the Service after notice of the alleged or actual infringement from Cohabit or any appropriate authority.
The foregoing represents Your sole and exclusive rights and remedies, and Cohabit’s (including Cohabit’s employees’, agents’ and subcontractors’) entire obligations and liability under these Terms, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
Except where You breach Cohabit’s intellectual or proprietary rights, Cohabit or Youmay not bring a claim under these Terms more than 24 months after the event that creates the action or claim.
TECHNICAL SUPPORT
Prepaid Subscriptions:
On termination of Your use of the Service, Cohabit will not provide any refund for any remaining prepaid period for a prepaid Access Fee subscription.
No-fault termination:
These Terms of Use will continue for the period covered by the Access Fee paid or payable under clause 3(a). At the end of each billing period these Terms of Use will automatically continue for another period of the same duration as that period, provided You continue to pay the prescribed Access Fee when due, unless either party terminates these Terms of Use by giving notice to the other party at least 30 days before the end of the relevant payment period. If You terminate these Terms of Use You will be liable to pay all relevant Access Fees on a pro-rata basis for each day of the then current period up to and including the day of termination of these Terms of Use.
Breach:
If You:
breach any of these Terms of Use (including, without limitation, by non-payment of any Access Fees) and do not remedy the breach within 7 days after receiving notice of the breach, if the breach is capable of being remedied;breach any of these Terms of Use and the breach is not capable of being remedied or any payment of Access Fees that are more than 30 days overdue; or
You or Your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed over any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction,
Cohabit may take any or all of the following actions, in its absolute discretion:
terminate these Terms with immediate effect and Your use of the Service and the Website;
permanently or temporarily, as determined by Cohabit, suspend Your use of the Service and the Website;
suspend or terminate access to all or any Data;
take any of the actions in sub-clauses (A), (B) and (C) of this clause in respect of any or all of Your Invited Users.
Expiry or termination:
You acknowledge and agree that the following provisions will survive termination or expiry of these Terms of Use: Your Obligations (Payment Obligations and Indemnity), Confidentiality and Privacy, Intellectual Property, Warranties and Acknowledgments, Limitation of Liability.
On termination of these Terms for any reason all licences granted under these Terms will immediately terminate and You must immediately cease all use of the Service and any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of these Terms which existed at or before the date of termination shall not be affected or prejudiced.
TERMINATION
Technical Problems:
In the case of technical problems You must make all reasonable efforts to investigate and diagnose problems before contacting Cohabit. If You still need technical help, please log a support ticket via the Service or email support@cohabit.com.au.
Service availability:
While Cohabit intends that the Service should be available 24 hours a day, seven days a week, it is possible that on occasions the Service may be unavailable to permit maintenance or other development activity to take place, or for reasons beyond Cohabit’s reasonable control.
If for any reason Cohabit has to interrupt the Service for longer periods than Cohabit would normally expect, or the Service is interrupted due to reasons beyond Cohabit’s reasonable control, Cohabit will use reasonable endeavours to publish details of such activity on the Website or to notify You by email.
TECHNICAL SUPPORT
Best endeavours:
Cohabit and You wish to prevent issues which may arise out of or in relation to these Terms from escalating into a dispute and will, in the first instance, discuss any potential disputes between themselves.
Cohabit and You will use best endeavours to avoid or promptly resolve disputes and potential disputes, including by discussing any disputes or potential disputes as soon as Cohabit or You become aware of the dispute or potential dispute.
If a dispute remains unresolved, then the dispute must be resolved in accordance with the procedures set out in this clause 11.
Notice of dispute:
Where a dispute remains unresolved either Cohabit or You must give the other a written notice specifying the nature and details of the dispute.
Negotiation:
A nominated representative of Cohabit and You must meet, at least once, within 10 Business Days after a notice of dispute has been served in accordance with clause 11(b). Cohabit and You must use best endeavours to resolve the dispute in good faith, or to agree on a method of doing so, as quickly as possible.
Mediation:
Where the dispute is not resolved after 20 Business Days of a notice of dispute being served in accordance with clause 11(b), the parties agree to refer the dispute to mediation.
Continue to perform:
To the extent possible, Cohabit and You must continue to meet their obligations under these Terms notwithstanding the existence of any dispute.
Exclusivity of the dispute resolution process:
Both Cohabit and You must adhere to the dispute resolution procedure set out in these Terms.
Cohabit and You may not commence any court proceedings relating to a dispute unless it has complied with clauses 11(a) to 11(d) of these Terms.
GENERAL
Entire Terms:
These Terms, together with the Cohabit Privacy Policy and the Agreement, supersede and extinguish all prior agreements, promises, assurances, warranties, representations and understandings (whether oral or written), and constitute the entire agreement between You and Cohabit relating to the Service and the other matters dealt with in these Terms of Use.
No Remedy:
Each party agrees that it will have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms or the Agreement. Each party agrees that it will have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms.
Waiver:
If either party waives any breach of these Terms of Use, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
Severance:
If any provision or part-provision of these Terms of Use is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause will not affect the validity and enforceability of the rest of these Terms of Use.
Force Majeure:
Neither party will be liable for any delay or failure in performance of its obligations under these Terms of Use if the delay or failure is due to any events, circumstances or causes outside its reasonable control. This clause does not apply to any obligation to pay money.
Assignment:
You may not assign or transfer any rights under these Terms of Use to any other person without Cohabit’s prior written consent. Cohabit may assign these Terms or the benefit of these Terms, or it may novate these Terms, in its discretion to any third party. This clause constitutes Your consent in advance to any such assignment or novation.
Third Parties:
These Terms does not confer any rights on any person or party (other than the parties to these Terms and, where applicable, their successors and permitted assigns).
Governing law:
These Terms, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation will be governed by, and construed in accordance with the laws of New South Wales, Australia, except in relation to data protection laws of the United Kingdom and European Union, which will apply if You are a citizen of those jurisdictions.
Jurisdiction:
Each party irrevocably agrees that the courts of New South Wales, Australia will have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Terms or its subject matter or formation.
Severability:
If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. If the foregoing is not possible or enforceable, the relevant provision will be treated as severed from these Terms and the remainder of these Terms will continue to be binding on the parties.
Notices:
Any notice given under these Terms of Use by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Cohabit must be sent to hello@cohabit.com.au or to any other email address notified by email to You by an authorised Cohabit representative. Notices to You will be sent to an email address nominated by You.
Interpretation:
In the interpretation of these Terms, no clause will be construed or interpreted against the party that will benefit from the clause because it was drafted or put forward by that party.
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