Set out below are the terms and conditions on Pooltrackr Pty Ltd (“Pooltrackr”) provides the Service to its users. By registering for the Service, the User:
(a) acknowledges that they have read and understood these terms and conditions
(b) agrees to be bound by these terms and conditions; and
(c) represents and warrants that they have the authority to act enter into such agreement
Pooltrackr Pty Ltd (“Pooltrackr”) reserves the right to update and change the terms and conditions from time to time without notice and such changes will be binding on the User.
1.1 The User may not assign or transfer any rights to any other person without Pooltrackr’s prior written consent.
1.2 Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Pooltrackr must be sent to support@Pooltrackr.com or to any other email address notified by email to the User by Pooltrackr. Notices to the User will be sent to the email address which the User provided when setting up access to the Service.
1.3 This Agreement is not intended to create a relationship of partnership, joint-venture or agency between the parties and neither party may hold itself out as being so related.
1.4 The obligations of the parties which are capable of enduring termination will survive termination of this Agreement.
1.5 A single or partial exercise or waiver of a right relating to this Agreement will not prevent any other exercise of that right or the exercise of any other right. A party will not be liable for any loss, cost or expense of any other party caused or contributed to by the waiver, exercise, attempted exercise, failure to exercise or delay in the exercise of a right.
1.6 Each provision of this Agreement is severable from the others and no severance of a provision will affect any other provision.
1.8 This Agreement is governed by the laws having effect in the State of New South Wales, and the parties submit to the non-exclusive jurisdiction of the courts having jurisdiction in that State, and all courts hearing appeals from them.
2.1 In this Agreement and unless the context requires otherwise, the following terms have the meanings set out below and their derivatives have a corresponding meaning.
“Agreement” means these terms and conditions, as they may be amended from time to time.
“App” means the Pooltrackr mobile application for phones, tablets and other personal devices.
“Intellectual Property Right” means any intellectual property right of any kind, whether registered or unregistered, including but not limited to:
(a) patents, copyright, rights under the Circuit Layout Act 1989 (Cth) (and equivalent rights outside Australia in circuit layouts), registered designs, trademarks and any right to have any Confidential Information kept confidential, and any other proprietary rights; and
(b) any licence or other application or right to use, or grant the use of or apply for registration of, any of the rights referred to in paragraph (a)..
“Service” means the swimming pool and other treated water management services made available (as may be changed or updated from time to time by Pooltrackr) via the Website and/or the App.
“Subscription Fee” means the monthly fee payable by the User for access to the Service in accordance with the fee schedule set out on the Website (which Pooltrackr may change from time to time).
“Website” means the Internet sites at the domains www.Pooltrackr.com or any other site operated by Pooltrackr.
“User” means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service, and any person or organization that uses the Service with the authorisation of that person or entity.
“User Data” means any data provided by the User to Pooltrackr through the use of the Services.
2.2 In this Agreement, unless the contrary intention appears:
(a) the singular includes the plural and vice versa;
(b) the words “including”, “for example” or “such as” do not limit the meaning of the words to which the example relates or examples of a similar kind;
(c) all monetary amounts are in Australian dollars;
(d) a reference to time is to local time in Sydney, NSW; Australia; and
(e) a reference to any thing or amount is a reference to the whole and each part of it.
2.3 Headings are for convenience only and do not affect the interpretation of this Agreement.
3 Provision of the Service
3.1 Subject to the continued payment by the User of the Subscription Fee, Pooltrackr will provide the User with the Service for use by the User in connection of the maintenance by the User of treated water systems but for no other purpose.
3.2 Any use by a User during a free trial is for the purpose of evaluation only and not commercial use.
3.3 The provision of, access to, and use of, the Services is on an “as is” basis and at the User’s own risk. Pooltrackr does not warrant the accuracy of the Service or that that the use of the Service will be uninterrupted or error free. Pooltrackr is not in any way responsible for any inaccuracy, unavailability of the Service.
3.4 It is the User’s sole responsibility to determine that the Service meet the needs of its business and is suitable for the purposes for which it is used or intended to be used by the User. Any reports or recommendations generated by the Service are the User’s information only. The User acknowledges and agrees that the User must rely on its own skill and expertise in accessing the accuracy or relevance of those reports and recommendations and in determining whether to implement any recommendations provided by the Service.
4 User’s Obligations
4.1 As a condition of these terms and conditions the User must, without limiting or derogating from any obligations set out elsewhere in this Agreement:
(a) ensure that all usernames and passwords required to access the Service are kept secure and confidential and immediately notify Pooltrackr of any unauthorised use of these usernames or any other breach of security
(b) not attempt to undermine the security or integrity of Pooltrackr’s computing systems or networks or, where the Services are hosted by a third party, that third party’s computing systems and networks;
(c) not use, or misuse, the Services in any way which may impair the functionality of the Services or Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website;
(d) not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;
(e) not transmit, or input into the Website, any: files that may damage any other person’s computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and
(f) not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website except as is strictly necessary to use either of them for normal operation.
(g) only use any communication tools available through the Website or App (such as any forum, chat room or message centre), lawful and legitimate purposes. Such communication tools must not be used for posting or disseminating any material unrelated to the use of the Services, 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 Services or the Website, or material in violation of any law (including material that is protected by copyright or trade secrets which the User does not have the right to use).
5 Fees & Payment
5.1 Pooltrackr charges the Fee monthly in advance. The amount is as specified on the Website or App, or as otherwise notified to the User (such notification to take precedence over any fee displayed on the Website or App).
5.2 Unless otherwise agreed, payment will by automatic secure credit card payment at the commencement of each payment period.
5.3 On successful payment, Pooltrackr will email the User an Invoice suitable for claiming of GST or other applicable sales taxes.
5.4 Access to the Service is conditional on payment of the monthly Fee. It is the User’s responsibility to ensure that the automatic payment is successfully made. If the automatic payment fails for whatever reason, Pooltrackr may, at its discretion, restrict access to the Services and/or terminate this Agreement.
6 User Data and Communications
6.1 Title to, and all Intellectual Property Rights in, the Data remain the User’s property. The User grants Pooltrackr a licence to use, copy, transmit, store, and back-up the User Data and other information provided by the User for the purposes of enabling the User to access and use the Services and for any other purpose related to provision of the Services to the User.
6.2 It is the responsibility of the User to maintain copies of all User Data. Pooltrackr adheres to its best practice policies and procedures to prevent data loss, but does not make any guarantees that there will be no loss of User Data. Pooltrackr expressly excludes liability for any loss or corruption of User Data no matter how caused.
6.3 Pooltrackr will comply with all statutory confidentiality and privacy obligations applicable to its holding and dealing with the User Data.
6.4 Pooltrackr is under no obligation to ensure that the communications on the Website or App are legitimate or that they are related only to the use of the Services. Pooltrackr does not vet or edit such communications but reserves the right to remove any communication at any time in its sole discretion.
6.5 Job photos will only be retained for 3 months after they have been uploaded.
7 Intellectual Property
7.1 This Agreement does not transfer from Pooltrackr to the User the ownership of any Pooltracker technology and all such ownership and Intellectual Property Rights will remain solely with Pooltrackr.
7.2 The User acknowledges and agrees that:
(a) The right granted to them under this Agreement to use the Intellectual Property Rights of Pooltrackr and its third party vendors is limited to such use as is necessary to enjoy the benefit of the Services in accordance with this Agreement and no other use;
(b) they will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from Pooltrackr and/or its third party vendors; and
(c) they shall indemnify and hold PoolTracker harmless from any loss or damage (including legal fees on a lawyer-client basis) arising from or related to any breach of this clause 6 or other provisions of this Agreement.
8 Warranties and Acknowledgements
8.1 Pooltrackr gives no warranty about the Services. Without limiting the foregoing, Pooltrackr does not warrant that the Services will meet the User’s requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
8.2 The User warrants and represents that they are acquiring the right to access and use the Services for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Services, the Website, the App or these Terms.
9 Limitation of Liability
9.1 To the maximum extent permitted by law, Pooltrackr excludes all liability and responsibility to the User or any other person in contract, tort (including negligence), or otherwise, for any loss (including loss of information, User Data or third party claims) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service.
9.2 If the User is not satisfied with the Service, their sole and exclusive remedy is to terminate the Agreement in accordance with clause 9.
10.1 Pooltrackr has the right to suspend or terminate the Service and refuse any and all current or future use of the Service by the User for any reason at any time. In such cases Pooltrackr will credit the User for any unused pre-paid Fees.
10.2 Pooltrackr may also terminate this Agreement immediately by notice in writing to the User if the Customer:
(a) fails to pay any Fees or other amount payable under this Agreement within 30 days of such amount being due;
(b) commits any material breach of this Agreement (other than a failure to pay Fees) and Customer fails to rectify such breach within fourteen (14) calendar days of written notice from Pooltrackr to do so; or
(c) becomes subject to any form of external administration.
10.3 Customer may terminate this Agreement at any time by providing not less than seven (7) days notice to Pooltrackr prior to the next due monthly Fee payment. Failure to provide the required notice may result in the automatic monthly payment being processed by Pooltrackr and if processed, no refund will be payable.
10.4 On termination of this Agreement howsoever occurring:
(a) Pooltrackr’s obligation to provide the Services shall cease and except as provided for in clause 9.1, the User will not be entitled to any refund of any Fees paid by it; and
(b) the rights of the User to access and use the Service and the Pooltrackr Intellectual Property Rights granted under this Agreement will immediately terminate and the User must immediately cease to use the Services and the Website.
10.5 Termination of the Agreement is without prejudice to any rights and obligations of Pooltrackr accrued up to and including the date of termination.
11 Modification to the Service and Prices
11.1 Pooltrackr reserves the right at any time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice.
11.2 Prices of all Services are subject to change upon 30 days notice from us.
11.3 Pooltrackr shall not be liable to You or to any third party for any modification, price change, suspension or discontinuance of the Service.