A. These Terms and Conditions (“Terms”) govern your use of the websites located at www.home.ohmie.co, www.ohmie.co and any subdomains and any other websites through which we make our services available to you (collectively “Website”), any mobile, tablet or smart device applications and application program interfaces (collectively “Application”) where the Website and Application together are referred to as the “Platform” and form a binding contractual agreement between you, the user of the Platform and Symbiot Solutions Pty Limited ABN 85 623 513 842 (“us”, “we” or “our”).
B. For that reason these Terms are important and you should ensure that you read them carefully. You may contact us with any questions before you use the Platform by emailing email@example.com.
C. By using the Platform you acknowledge and agree that you have read and understand these Terms and you agree to be bound by them. If you do not agree to the Terms, please do not use the Platform.
1.1. “Confidential Information” means any of our information which is designated as confidential or which is of a confidential or sensitive nature, which is marked or denoted as confidential or which a reasonable person to whom that information is disclosed or to whose knowledge the information comes would consider confidential.
1.2. “Content” means anything that is uploaded, posted or otherwise transmitted through the Platform and when it is introduced to the Platform by you, it is your Content.
1.3. “Intellectual Property” means all intellectual property rights (including, without limitation, all registered and unregistered copyright, designs, trade marks and patents) of any nature in any technology, trade secrets, lists, User details (including, but not limited to, User emails, telephone numbers and addresses) and User-related information, software, program, inventions, designs, works and subject matter belonging to us.
1.4. “Membership” means an application through the Platform, for a User name, account and password.
1.5. “Membership Data” means any information provided by you to us in any registration form on the Platform or otherwise.
1.6. “Platform” means the use of any of the Website, Application or Services.
1.7. “Services” means the purchase and/or use of any of our components or devices, or the use of any features or functions of the Platform.
1.8. “Symbiot Device” means an internet linked electronic gadget installed to connect and interact with the Platform as part of the Services.
1.9. “Third Party” means an entity other than us.
1.10. “Third Party Device” means any products or services, including appliances and gadgets, supplied by any entity to you other than us. 1.11. “User” means any person or any other party who accesses the Platform and/or uses the Services, regardless of the nature of that access or if that party is or is not identified to us.
1.12. “You” means a User or any other party currently accessing the Platform and/or using the Services.
2.1. These Terms prevail in the event that anything in, or associated with, the Platform is inconsistent with these Terms.
2.2. If a provision of these Terms is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
2.3. These Terms and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
2.4. We are not liable whatsoever to you for any direct or indirect losses and/or expense suffered by you arising out of a breach by us of these Terms, including our negligence in the delivery of the Services.
2.5. Our failure to enforce any provision of these Terms shall not be treated as a waiver of that provision, nor shall it affect our right to subsequently enforce that provision.
2.6. We may provide any notice required under these Terms by publishing the notice on the Website (“Notice”).
2.7. We may amend or vary these Terms at its sole discretion by giving Notice, and the varied Terms are to take effect immediately upon Notice being given. Your continued use of the Platform after any variation of these Terms will be deemed to constitute your acceptance of the varied Terms. If you do not accept the varied Terms, please discontinue your use of the Platform and/or terminate your Membership.
3. Use of Platform
3.1. We grant you a non-exclusive, non-transferable licence to use the Platform and Services in accordance with the terms and conditions set out in these Terms.
3.2. The Website or the Platform may contain links to other websites and contains Content added by Third Parties. We do not endorse, sponsor or approve any content available on any linked website. We expressly disclaim all liability for any Content transmitted or posted on the Platform, or otherwise transmitted to any User by any other means, or by any person, including your reliance on such Content.
3.3. You acknowledge and agree that:
(a) We retain complete editorial control over any Content on the Platform and may alter, amend or remove any Content on the Platform at any time in our sole discretion;
(b) the Platform may not operate on a continuous basis and may be unavailable from time to time (including for maintenance purposes); and
(c) the Symbiot Device and Services are supplied in a good, proper and professional manner and to standard of diligence, skill and care consistent with prudent professional and technical standards and practices as may reasonably be expected.
4. User Conduct
4.1. By accepting these Terms, you are representing that you:
(a) have the capacity to accept these Terms;
(b) will maintain the security and confidentiality of your account, login details, password and identification; and
(c) understand and accept all risks associated with the installation, use and maintenance of the Symbiot Device;
(d) will provide, or have provided, and will maintain and promptly update the Membership Data and ensure that information provided is accurate, current and complete.
4.2. A User must not upload, post, or otherwise transmit Content that:
(a) is inaccurate, harmful, obscene, pornographic, defamatory, racist, sexist, threatening, violent, offensive, abusive, vulgar, profane, indecent, unlawful, harassing, or otherwise objectionable to us or other Users of the Platform, including any Content which is likely to offend, insult or humiliate others based on race, religion, ethnicity, gender, age, sexual orientation and/or any physical or mental disability;
(b) exploits another person in any manner;
(c) includes unauthorised disclosure of personal information;
(d) advertises services for non-individuals or for any other reason which is not aligned to the purposes for which the Services are intended;(e) violates or infringes anyone's intellectual property rights; or
(f) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
4.3. You are solely responsible for the Content and all activities that occur under your Membership.
4.4. You must immediately notify us of any unauthorised use of your account, login and/or password.
4.5. You must ensure you completely sign out of your account at the end of every session where you use the Platform and ensure that all personal data has been deleted from the system.
5. Violation of Terms
5.1. We may restrict, suspend or cancel a contravening User’s Membership in our sole discretion.
6.1. We may charge a fee for the use of the Platform. If a feature of the Platform requires payment of a fee, we will disclose the fee prior to your access to that feature of the Platform.
6.2. All fees are quoted in Australian Dollars and are GST inclusive. We reserve the right to change the fees for any chargeable service or feature on the Platform at any time and will provide Notice in accordance with these Terms where the price is varied.
6.3. Our fees are non-refundable and you are responsible for paying them when they become due. If you do not pay our fee, your ability to use the Platform may be restricted.
7. Confidential Information
7.1. You agree to keep our Confidential Information confidential and to use or disclose such information only for the purposes as authorised by the owner of the Confidential Information.
7.2. The obligations of confidentiality in clause 7.1 will not apply to information which:(a) is generally available in the public domain except where such availability is as a result of a breach of these Terms;(b) was known prior to the disclosure of the information by you; or(c) is required to be disclosed by an applicable law or court order.
8. Intellectual Property Rights
8.1. Nothing in these Terms constitutes a transfer of any Intellectual Property rights. You acknowledge and agree that, as between you and us, we own all Intellectual Property rights in the Platform.
8.2. By using the Platform, posting or adding any content onto the Platform, you grant us a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and transferable right and licence to use that Content in any way (including, without limitation, reproducing, changing, and communicating the Content to the public) and permit us to authorise any other User to do the same thing if we choose to do this.
8.3. You represent and warrant to us that you have all necessary rights to grant the licences and consents set out in clause 8.2.
8.4. You must obtain express written permission from us if you wish to reproduce any aspect of the Platform or other Intellectual Property owned by us.
9. Termination and Suspension
9.1. The Terms will continue in force until such time that they are varied or replaced, but we may terminate the Terms or your access to the Platform at any time and without prior notice in our sole discretion.
9.2. We may suspend or terminate any User from using the Platform without notice in our sole discretion.
9.3. We reserve the right to change or discontinue any service or feature on the Platform in whole or in part at any time in our sole discretion.
10. Limitation of Liability
10.1. You will be responsible for and will indemnify us against liability for all loss, damage or injury to persons or property caused by you and the amount of all claims, damages, costs and expenses which may be paid, suffered or incurred by us in respect of any such loss, damage or injury will be made good at your expense.
10.2. We are not liable to you and expressly exclude liability in respect of any losses suffered or incurred by you arising out of or in connection with these Terms, use of our Platform, the provision of the Services by us, installation of the Symbiot Device, use of any Third Party Devices or your use of the Platform.
10.3. You are liable for all loss, damage or injury to any party or parties (including to us and other Users) resulting from your acts or omissions through your use of the Platform and agree to indemnify and keep us indemnified against any claim or claims made against us.
10.4. Without limitation to the foregoing, you agree that our liability, if any, arising out of any kind of legal claim or action in any way connected to the Services or the Website will be limited at our sole discretion to the following: (a) for any claims relating to the Platform - $100.00; or(b) in the case of Services - the resupply or replacement of the Services.
11. Disclaimer of Warranties
11.1. You acknowledge that we make no representation or warranty:
(a) that your access to the Platform (including any Third Party applications, Third Party Devices or payment gateways on the Platform) will be, timely, secure, uninterrupted and/or error-free;
(b) that any defects on the Platform will be corrected;
(c) that any data, statistics or information disclosed on the Platform will be accurate, up to date, complete or useful;
(d) that the Symbiot Device will function accurately or correctly; or
(e) that the Platform or the server which stores and transmits the Platform to you are free from viruses or any other harmful components.
12. Assumption of Risk
12.1. You agree, understand and acknowledge that you assume all risks when using our Services, Symbiot Device and the Platform, including without limitation any and all of the risks associated with any online or offline interfaces with other Third Party Devices and all risk for any damage or loss.
13.1. You agree to indemnify, and continually indemnify, us in relation to all claims, actions, liabilities, costs, losses and expenses (including legal costs on a full indemnity basis) that we incur as a result of your use of the Services, your use of the Symbiot Device, your use of the Platform, your use of a Third Party Devices and/or from your failure to comply with these Terms.
14. Third Parties
14.1. By using the Platform, you may have dealings with a Third Party including devices supplied by a Third Party and services rendered by a Third Party. Your correspondence or business dealings with, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such Third Party. We are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings with any Third Party.
15. Integration with a Third Party device
15.1. Our Platform can provide an interface with Third Party Devices and may integrate with products and services supplied to you by a Third Party. By providing us with details of your Third Party Devices, you grant us permission to contact the manufacturer of the Third Party Devices to integrate a Third Party Device to the Platform.
15.2. You agree and acknowledge that that upon the integration of a Third Party Device with the Platform, we may exchange information and control data regarding your appliances, including your personal information.
16.1. These Terms are effective as and from 30 June 2018.