1. |
WHO, WHAT AND WHERE |
1.1 |
Living Well grants you a non-exclusive, limited and revocable license to use the Living Well Application (Service). In these Terms and Conditions, “us”, “we” and “our” refer to Living Well and references to “you” and “your” is to you, the end user. These Terms and Conditions are made in accordance with the laws prevalent in Australia. |
2. |
TERMS |
2.1 |
These Terms and Conditions include the provisions set forth in this document, and other terms or conditions that may be presented to you from time to time in connection with the Service (all of which we collectively refer to as the Terms). |
2.2 |
In accepting these Terms and Conditions you also confirm that you have read and accept out Privacy Policy and User Guidelines. |
3. |
WHAT YOU AGREE TO WHEN USING THE SERVICE |
3.1 |
By using the Service you agree to be bound by the Terms. If you do not agree with the Terms you must immediately stop using the Service. |
3.2 |
Living Well reserves the right to update the Terms upon written notice. Living Well may give you written notice when you next log into the Service. |
3.3 |
Should you no longer agree to the Terms you must stop using the Service. |
3.4 |
Your continued use of the Service will be deemed to represent your consent to be bound by the new Terms. |
3.5 |
You agree that you need to check, and you acknowledge that we suggest that you should comply with the laws in your local state and country which govern inheritance and estate planning. |
4. |
INTELLECTUAL PROPERTY |
4.1 |
By using the Service you agree that you are responsible for your own conduct and all conduct under your Account. This means all Content – such as text, images, software, videos and anything else you can think of, no matter what the form or technical structure – created, transmitted, stored or displayed in your Account, is your sole responsibility as the person who created the Content or introduced it into the Service. This applies whether the Content is kept private, shared or transmitted using the Service or any TPS or services integrated with your Account. The User Guidelines provide more specific details regarding the appropriate conduct on the Service. |
4.2 |
While you own the Content you store with the Service, you acknowledge and agree that Living Well (and our licensors) own(s) all legal right, title and interest in and to the Service, including, without limitation, all software comprising a part of the Service that is hosted on our servers. We note that this does not extend in any way whatsoever to your Content. This Content is yours, and your Contact Person, or Next of Kin. |
4.3 |
In agreeing to these Terms, you also agree that one or more of copyright, trademark, patent, trade secret and other laws, regulations and treaties, in addition to these Terms and any Separate Agreement, protects the rights in the Service and Living Well software, including all intellectual property rights. |
4.4 |
In particular, you agree to not modify, create derivative works of, decompile or otherwise attempt to extract source code from any Living Well software, unless you are expressly permitted to do so under an open source license or we give you express written permission. |
5. |
UPDATING THE SERVICE |
5.1 |
We retain the right, in our sole discretion, to implement new elements as part of and/or ancillary to the Service and any Living Well software, including changes that may affect the previous mode of operation of the Service. |
5.2 |
We expect that any such modifications will enhance the overall Service, but it is possible that you may not agree with us. |
5.3 |
We also reserve the right to establish limits to the nature or size of storage available to you, the number of transmissions and email messages, the nature of, or your continued ability to access or distribute your Content and other data, and impose other limitations at any time, with or without notice, if using the CSS. |
5.4 |
If using the CSS, you also acknowledge that a variety of Living Well actions may impair or prevent you from accessing your Content or using the Service at certain times and/or in the same way, for limited periods or permanently, and agree that Living Well has no responsibility or liability as a result of any such actions or results, including, without limitation, for the deletion of, or failure to make available to you, any Content. |
5.5 |
You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of any part of the CSS. |
5.6 |
Living Well may from time to time engage certain affiliates or other third parties to provide technical or other services relating to all or part of the Service to you, and you hereby agree that such third party involvement is acceptable. |
5.7 |
Living Well may from time to time include as part of the Service and Living Well software computer software supplied by third parties, which is utilized by permission of the respective licensors and/or copyright holders on the terms provided by such parties. |
a) |
Living Well expressly disclaims any warranty or other assurance to you regarding such third party software. |
5.8 |
In connection with any modification of the Service, Living Well may automatically download software updates on your Service enabled devices from time to time with the intention of improving, enhancing, repairing and/or further developing the Service. |
5.9 |
Living Well will endeavour to provide you with the option of whether or not to install the update; however, in certain circumstances (e.g., security risks) we may require you to install the update to continue accessing the Service. In all cases, you agree to permit Living Well to deliver these updates to you (and you to receive them) as part of your use of the Service. |
6. |
LIABILITY & INDEMNITY |
6.1 |
You agree that you use the Service at your own risk. |
6.2 |
You acknowledge that Living Well is not responsible for the conduct or activities of any user of the Service and is not liable for such under any circumstances. |
6.3 |
You agree to indemnify Living Well for any loss, damage, cost or expense they may suffer or incur as a result of or in connection with your use of or conduct in connection with the Service, including any breach by you of these Terms. |
6.4 |
In no circumstances will Living Well be liable for any direct, incidental, consequential or indirect damages, 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 your access to, or use of, or inability to use the Service or any content, or in any way relating to an experience itself (or the provision or non-provision of an experience), whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or Living Well knew or should have known of the possibility of such damage, whether in tort, contract or otherwise. |
6.5 |
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, Living Well and its related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, Living Well liability for breach of any implied warranty or condition that cannot be excluded is restricted, Living Well option to: |
a) |
the re-supply of Services or payment of the cost of re-supply of Services; or |
b) |
the replacement or repair of goods or payment of the cost of replacement or repair. |
7. |
CONTACT |
7.1 |
Except where the Terms or any Separate Agreement specifically provide for use of a different means or address for notice, any notice to Living Well must be delivered by email to info@livingwell.org.au |
7.2 |
This email address may be updated as part of any update to these Terms. If you are unable to deliver notice via email, you may send a notice to us at the following address: Living Well, 9/1200 Sandgate Road, Nundah, Q. 4012. |
a) |
Note the above postal address may also be updated, so you will need to check in on any updates at our website www.livingwell.org.au |
8. |
DISPUTE RESOLUTION |
8.1 |
We want to know if you have a problem so we encourage you to contact us if you have any concerns with respect to the operation of the Service or any Living Well software, as we want to ensure that you have an excellent experience. |
8.2 |
If you conclude that we have not satisfied your concern and that you must pursue legal action, you agree that your claim must be resolved exclusively by the processes set forth in these Terms. |
8.3 |
Living Well provides the Service to you on the condition that you accept the dispute resolution provisions described below, so if you initiate any claim against Living Well in any other manner, you shall be in violation of these Terms. You agree that Living Well shall be entitled to have such action dismissed or otherwise terminated and you agree to reimburse Living Well for its reasonable costs incurred in defending against such improperly initiated claim. |
8.4 |
You agree that, prior to initiating any formal proceedings, you will send notice to either the email or postal address above and state that you are providing a “Notice of Dispute.” |
8.5 |
Upon receipt of a Notice of Dispute, you and we shall attempt to resolve the dispute through informal negotiation within ninety (90) days from the date of the Notice of Dispute. If the dispute remains unresolved, either you or we may initiate formal proceedings according to these Terms. |
8.6 |
Except where our dispute is being resolved pursuant to an arbitration (as provided below), you agree that any claim or dispute you may have against Living Well must be resolved exclusively by a court located in Victoria, Australia. You agree to submit to the personal jurisdiction of the courts located within Victoria, Australia for the purpose of litigating all such claims or disputes. |
8.7 |
Arbitration Agreement: |
a) |
You and Living Well agree that any and all disputes or claims that have arisen or may arise between us – except any dispute relating to the enforcement or validity of your, our or either of our licensors’ intellectual property rights – shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify. |
b) |
The arbitration shall be held in the county in which you reside or at another mutually agreed location and will adhere to the requirements of the Victorian Commercial Arbitration Act 2011. |
c) |
If the value of the relief sought is US$10,000 or less, either of us may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on us subject to the arbitrator’s discretion to require an in-person hearing. Attendance at an in-person hearing may be made by telephone by you and/or us, unless the arbitrator requires otherwise. |
d) |
The arbitrator will decide the substance of all claims in accordance with the laws of Australia, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Service users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court possessing jurisdiction over the parties. |
e) |
Victoria’s Commercial Arbitration Act 2011 will govern the payment of all filing, administration and arbitrator fees, unless our Arbitration Agreement expressly provides otherwise. If the arbitrator determines the claim(s) you assert in the arbitration are frivolous, you agree to reimburse Living Well for any fees associated with the arbitration paid by Living Well on your behalf, which you otherwise would be obligated to pay under the Arbitration Act 2011 rules. |
f) |
You and Living Well agree, as part of the Arbitration Agreement, that each of us may bring claims against the other only on an individual basis and not as part of any purported class or representative action or proceeding. We refer to this as the “prohibition of class and representative actions.” Unless both you and we agree otherwise, the arbitrator may not consolidate or join your or our claim with another person’s or party’s claims, and may not otherwise preside over any form of a consolidated, representative or class proceeding. The arbitrator may only award relief (including monetary, injunctive, and declaratory relief) in favour of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s). Any relief awarded cannot affect other Service users. |
g) |
Except with respect to the Prohibition of Class and Representative Actions, if a court decides that any part of this Arbitration Agreement is invalid or unenforceable, the other parts of this Arbitration Agreement shall continue to apply. If a court decides that the Prohibition of Class and Representative Actions is invalid or unenforceable, then the entire Arbitration Agreement shall be null and void. The remainder of the User Agreement and its Legal Disputes Section will continue to apply. |
8.8 |
You agree that regardless of any statute or law to the contrary or the applicable dispute resolution process, any claim or cause of action you may have arising out of or related to use of the Service or otherwise under these must be filed within one (1) year after such claim or cause of action arose or you hereby agree to be forever barred from bringing such claim. |
9. |
GENERAL |
9.1 |
These Terms constitute the entire agreement between you and Living Well and govern your use of the Service, except, and then only to the extent that you have entered into a Separate Agreement. These Terms supersede any prior agreements or earlier versions of these Terms between you and Living Well for the use of the Service. If, through accessing or using the Service, you utilize or obtain any product or service from a third party, you may additionally be subject to such third party’s terms and conditions applicable thereto, and these Terms shall not affect your legal relationship with such third party. |
9.2 |
You acknowledge and agree that each affiliate of Living Well shall be a third party beneficiary to these Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of these Terms which confers a benefit on (or provides rights in favour of) them. Other than this, no other person or company shall be a third party beneficiary to these Terms. |
9.3 |
The section headings in these Terms are for convenience only and have no legal or contractual effect. |
9.4 |
Inasmuch as we rely upon your rights to upload and distribute your Content, you represent and warrant to Living Well that you have the unfettered legal rights and authority to submit your Content to Living Well and to make any publication or other distribution of that Content in your use of the Service. You also represent to us that, by submitting Content to the Service and granting Living Well the rights described in these Terms, you are not infringing the rights of any person or third party. |
9.5 |
Any clause of these Terms which is invalid or unenforceable is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of these Terms. |
Living Well
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