Strata.chat Customer Terms of Service

 

INTRODUCTION

Strata.chat is an online platform for communications and service delivery in Strata Communities.

1               definitions

1.1           The following terms are used regularly throughout these Customer Terms of Service and have a particular meaning:

(a)            ABN means Australian Business Number.

(b)            Administrator means any User authorised to administer a Strata Community on behalf of the Customer within Strata.chat.

(c)            Agreement means these Customer Terms of Service.

(d)            Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Melbourne, Australia.

(e)            Company means [Strata.chat] Pty Ltd ABN 32 616 278 33.

(f)              Confidential Information means any written or verbal information that:

i                 A party informs the other party that it considers it confidential and/or proprietary;

ii                A party would reasonably consider to be confidential in the circumstances; and

iii               Is personal information within the meaning of the Privacy Act.

but does not include information that a party can establish:

iv              Was in the public domain at the time it was given to that party;

v               Became part of the public domain, without that party’s involvement in any way, after being given to the party;

vi              Was in party's possession when it was given to the party, without having been acquired (directly or indirectly) from the disclosing party; or

vii             Was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.

(g)            Customer means the legal body corporate (owner’s corporation, strata management company etc) that subscribes to use Strata.chat on the terms of this Agreement.

(h)            End User means a registered User of Stata.chat that uses the features made available to End Users.

(i)              GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(j)              Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property;

(k)             Intellectual Property Rights means, for the duration of the rights in any part of the world, any Moral Rights, industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.

(l)              Moral Rights means:

i                 Moral rights pursuant to the Copyright Act 1968 (Cth);

ii                Or any rights analogous to the rights set out in Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as amended from time to time).

(m)           Privacy Policy means the Company’s privacy policy as updated from time-to-time, which can be found at http://www.strata.chat/privacy

(n)            Privacy Act means the Privacy Act 1988 (Cth).

(o)            Service Providers mean third-party providers of goods and services to a Strata Community.

(p)            Strata.chat means the “Strata.chat” online strata communications and management platform, accessed via http://strata.chat and associated Owners Corporation building subdomains.

(q)            Strata Community means a collective of Users and Service Providers, managed by a Customer, organised around a particular strata property.

(r)              Subscription means the Customer’s license to use Strata.chat as set out in clause 2.1.

(s)             Subscription Fees means the fees applicable for the Subscription.

(t)              Terms of Service means the End User Terms of Service accessible at https://www.strata.chat/end-user-terms.

(u)            Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(v)             User means any registered End User, Administrator or Service Provider of Strata.chat within a Strata Community.

(w)            User Data means all information input into Strata.chat by Users in relation to a Strata Community (but does not include statistical, analytical or other non-personal derivative data generated by use of Strata.chat).

1.2           The following rules apply unless the context requires otherwise:

(a)            Headings are only for convenience and do not affect interpretation.

(b)            The singular includes the plural and the opposite also applies.

(c)            If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.

(d)             A reference to a clause refers to clauses in this Agreement.

(e)             A reference to legislation is to that legislation as amended, re‑enacted or replaced, and includes any subordinate legislation issued under it.

(f)              Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.

(g)            A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).

(h)            A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.

(i)              A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.

2               Strata.chat subscription & use

2.1           Subscription

(a)            The Customer subscribes for, and the Company grants the Customer, a license to access, and for its Users to use, Strata.chat, on the terms of this Agreement and the Terms of Service.

(b)            The number of Users authorised to access, and features available in, Strata.chat shall be determined by the level of Subscription (and payment of applicable Subscription Fees) made by the Customer from time-to-time (as agreed and/or advertised by the Company).

2.2           User Access

(a)            Strata.chat shall be accessible to Users authorised by the Customer, subject to the Customer’s ongoing Subscription on the terms of this Agreement.

(b)            The Customer shall authorise one or more Users to be an Administrator, and agrees that the Administrator shall authorise Users to access Strata.chat.

(c)            The Customer is responsible for each User that the Administrator grants access to Strata.chat.

(d)            To use Strata.chat, the Customer agrees to the terms of:

i                 This Agreement;

ii                The Terms of Service;

iii               The Privacy Poicy; and

iv              Any Community Standards imposed by the Company.

2.3           Administrators

(a)            By appointing an Administrator the Customer acknowledges and agrees that:

i                 The Administrator shall be able to use the features associated with an Administrator account type; and

ii                The Administrator may increase or decrease the Customer’s subscription via Strata.Chat.

2.4           Support

(a)            The Company shall provide the support services in the manner published on Strata.chat.com and/or notified in writing to the Customer from time-to-time.

(b)            The Company reserves the right to require the payment of reasonable fees for non-standard support requests prior to the provision of such support.

3               Paying for Strata.chat

3.1           Fees

(a)            The Subscription Fee to use Strata.chat shall be the fees published on strata.chat and/or notified in writing to the User from time-to-time.

(b)            Unless agreed otherwise in writing, the Customer agrees to provide a credit card through Strata.chat, which will be charged monthly or annually (as elected by the Customer) in advance for the Subscription Fee.

(c)            The Company reserves the right to introduce or change any Fees from time-to-time by giving the Customer no less than 14 days’ written notice. Any new or changed Fees will commence at the next billing period after the User has been given such notice.

(d)            If a Customer does not accept a change to any Fees, then it can simply terminate its use of Strata.chat.

(e)            Strata.chat may provide credits, free access or other incentives to some or all of its customers from time-to-time in its absolute discretion.

3.2           Currency.

All Fees are quoted in Australian dollars however transactions may be processed in an equivalent foreign currency (such as US dollars or British pounds).

3.3           GST.

For Customers in Australia, GST is applicable to any Fees charged by the Company to the User. Unless expressed otherwise, all Fees shall be deemed inclusive of GST. The Company will provide the Customer with a Tax Invoice for any payments.

3.4           Refunds.

No refunds of Fees are offered other than as required by law.

3.5           Late Payment.

(a)            If the Customer does not pay the full Fees as required, the Company may suspend the User’s access to Strata.chat.

(b)            If Fees are not brought out of arrears within 28 days of becoming overdue, the Company may terminate the Customer’s account in Strata.chat without further notice and terminate this Agreement on immediate written notice.

3.6           The Customer agrees that the Company shall not be responsible or liable in any way for:

(a)            Interruptions to the availability of Strata.chat in the event of 3.5(a);

(b)            Loss of User Data in the event of 3.5(b).

4               USER DATA

4.1           In addition to the provisions of the Terms of Service that deal with User Data, the Company agrees to treat all User Data related to the Customer’s Strata Community, as Confidential Information under this Agreement. However the Customer agrees that the Company is not responsible for the maintaining the confidentiality of any User Data by Users.

5               General conditions

5.1           Licence

(a)            The licence(s) granted to the Customer under this Agreement are limited, non-exclusive, and revocable and subject to the terms of the Terms of Service.

(b)            The Company may issue the licences to the Customer and/or User on the further terms or limitations (including the number of users or volume of use or transactions) as it sees fit.

(c)            The Company may revoke or suspend the Customer’s or its User’s licence(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement, or the Terms of Service by the Customer or any of its Users.

5.2           Modification of Terms

(a)            The terms of this Agreement may be updated by the Company from time-to-time.

(b)            Where the Company modifies the terms, it will provide the Customer with written notice, and the Customer User will be required to accept the modified terms in order to continue using Strata.chat.

5.3           Privacy

(a)            The Company maintains the Privacy Policy in compliance with the provisions of the Privacy Act for data that it collects about the User and users.

(b)            The Privacy Policy does not apply to how a Customer handles personal information.  It is the Customer’s responsibility to meet the obligations of the Privacy Act by implementing a privacy policy in accordance with law.

(c)            The Company makes no warranty as to the suitability of Strata.chat in regards to the Customer’s privacy obligations at law or contract, and it is the Customer’s responsibility to determine whether Strata.chat is appropriate for the Customer’s circumstances.

(d)            Strata.chat may use cookies (a small tracking code in your browser) to improve a User’s experience while browsing, while also sending browsing information back to the Company. The User may manage how it handles cookies in its own browser settings.

5.4           Confidentiality

(a)            Confidential Information means any written or verbal information that:

i                 A party informs the other party that it considers it confidential and/or proprietary;

ii                A party would reasonably consider to be confidential in the circumstances; and

iii               Is personal information within the meaning of the Privacy Act.

but does not include information that a party can establish:

iv              Was in the public domain at the time it was given to that party;

v               Became part of the public domain, without that party’s involvement in any way, after being given to the party;

vi              Was in party's possession when it was given to the party, without having been acquired (directly or indirectly) from the disclosing party; or

vii             Was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.

(b)            The Company agrees to keep all User Data in the strictest confidence, and to the extent User Data is accessed and/or received by Strata.chat it shall be deemed as Confidential Information for the purposes of this Agreement.

(c)            Each party acknowledges and agrees that:

i                 the Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);

ii                it owes an obligation of confidence to the Discloser concerning the Confidential Information;

iii               it must not disclose the Confidential Information to a third party except as permitted in this Agreement;

iv              all Intellectual Property rights remain vested in the Discloser but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and

v               any breach or threatened breach by the receiving party of an obligation under this Agreement may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy.  Consequently the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.

(d)            A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:

i                 any actual, suspected, likely or threatened breach by it of any obligations it has in relation to the Confidential Information.

ii                any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or

iii               any actual, suspected, likely or threatened theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.

(e)            The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:

i                 any actual, suspected, likely or threatened breach of a term of this Agreement; or

ii                any theft, loss, damage or unauthorised access, use or disclosure of or to any Confidential Information that is or was in its possession or control.

5.5           Liability & Indemnity

(a)            The Customer agrees that it uses Strata.chat at its own risk.

(b)            The Customer acknowledges that the Company is not responsible for the conduct or activities of any User and that the Company is not liable for such under any circumstances.

(c)            The Customer agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with any User’s use of or conduct in connection with Strata.chat, including any breach by a User of the Terms of Service.

(d)            In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, personal injury, death, damage to property, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use Strata.chat, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, loss, personal injury or death, or business interruption of any type, whether in tort, contract or otherwise.

(e)            Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified.  Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law.  To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:

i                 The re-supply of services or payment of the cost of re-supply of services; or

ii                The replacement or repair of goods or payment of the cost of replacement or repair.

5.6           Termination

(a)            The Company or the Customer may terminate this Agreement by giving the other party 28 days’ written notice.

(b)            Termination of this Agreement will automatically terminate the agreement between the Company and each User authorised by the Customer subject to the Terms of Service.

(c)            Termination of this agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this agreement up to the date of expiry or termination.

(d)            Termination does not affect any of the rights accrued by a party prior to termination, and the rights and obligations under clauses 5.7 and 5.8 survive termination of this Agreement.

5.7           Dispute Resolution

(a)            If any dispute arises between the the parties in connection with this Agreement (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:

i                 Includes or is accompanied by full and detailed particulars of the Dispute; and

ii                Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.

(b)            Within 10 Business Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) parties must meet (virtually or otherwise) and seek to resolve the Dispute.

(c)            Subject to clause (d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.

(d)            Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.

(e)            Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.

5.8           Electronic Communication, Amendment & Assignment

(a)            The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.

(b)            The Customer can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement.  the Company will notify the Customer of a change of details from time-to-time.

(c)            The Company will send the Customer notices and other correspondence to the details that the Customer submits to the Company, or that the Customer or User notifies the Company of from time-to-time. It is the Customer’s and User’s responsibility to update contact details as they change.

(d)            A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.

(e)            Notices must be sent to the parties’ most recent known contact details.

(f)              The Customer may not assign or otherwise create an interest in this Agreement without the written consent of the Company (which shall not be unreasonably withheld).

(g)            The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the Customer and/or User.

5.9           General

(a)            Special Conditions. The parties may agree to any special conditions to this Agreement in writing.

(b)            Prevalence. To the extent this Agreement is in conflict with, or inconsistent with, the terms of the any other Agreement between the Company and the User, or any special conditions made under this Agreement, as relevant (but excluding the Terms of Service) the terms of those other agreements or special conditions shall prevail.

(c)            Disclaimer.  Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.

(d)            Relationship.  The relationship of the parties to this Agreement does not form a joint venture or partnership.

(e)            Waiver.  No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.

(f)              Further Assurances.  Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.

(g)            Governing Law.  This Agreement is governed by the laws of Victoria, Australia.  Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.

(h)            Severability.  Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.