(a) This agreement is between you and Assemble Communities Pty Ltd (ACN 624 001 645) (“Assemble”).
(b) Assemble’s services include housing development, community management and lease-to-purchase tenancies which will be supported by a mobile application accessible from Apple’s AppStore, GooglePlay or any other native or web-based mobile application made available to residents of Assemble properties from time to time (“Assemble App”).
(c) Make MRK Pty Ltd (ACN 621 227 389) as trustee for the Make MRK Unit Trust operates the Assemble Connect business ("Assemble Connect”). Assemble Connect offers connection to services including embedded network management, energy supply, hot water and internet which will also be made available through the Assemble App.
(e) Your access and use of the Assemble App constitute your agreement to be bound by these Terms. If you do not agree to these Terms, you must not proceed to use the Assemble App.
(f) Your continued use of the Assemble App will constitute evidence that you have read, understood and agreed to be bound by these Terms.
(g) Assemble reserves the right to amend, vary, modify and/or replace these Terms at any time, and from time to time, and such amendment, variation, modification and/or replacement shall be effective immediately upon posting to Assemble’s website or the Assemble App. Your continued use of the Assemble App shall be deemed to be your acceptance of any amendments to these Terms.
(a) Users of the Assemble App must be residents of one of Assemble’s completed, or future developments (“Assemble Locations”). Users will be provided access to the Assemble App by Assemble, and your continued access to the Assemble App is at the sole discretion of Assemble. If at any time you no longer reside at an Assemble Location, your access to the Assemble App will be withdrawn.
(b) Users under 16 years of age must not use the Assemble App without their parent or guardian's consent. If you are under 16 years of age at the time of downloading the Assemble App, you warrant through your continued use of the Assemble App that you have obtained your parent’s or legal guardian’s consent to using the Assemble App.
1.3 Access to your account
(a) As the resident of an Assemble Location, you will be given access to the Assemble App during your onboarding process. In order to access the Assemble App, you will be assigned:
(i) a username; and
(ii) a personal identification number(s), password(s), symbol(s), key(s) and/or code(s) ("Password")
to access the Assemble App for the first time (your “Log In Details”).
(c) You are solely responsible for retaining the confidentiality of your Log In Details and for any disclosure or unauthorised use thereof save where solely caused by a breach by Assemble of its legal obligations in terms of data security.You shall not at any time disclose your Log In Details to any party.
(d) You agree that Assemble shall not be responsible or liable for any loss caused to or damage incurred or suffered by you or any person by reason of or arising from or as a consequence of any use of your Log In Details including:
(i) performing any transactions; or
(ii) obtaining or making any payment of any monies belonging to you,
unless either of these transactions are solely caused by a breach by Assemble of its legal obligations in terms of data security.
If you believe that the security of your Log In Details has been compromised, you must notify Assemble immediately and obtain new Log In Details.
(a) You must possess a compatible device and have internet access in order to use the Assemble App.
(b) Assemble does not guarantee that the Assemble App will function on any particular device.
(c) The Assemble App may also be subject to malfunctions and delays inherent in the use of the internet and electronic communications.
(d) Assemble accepts no responsibility if you cannot use the Assemble App due to:
(i) environmental conditions;
(ii) your failure to provide the Assemble App with access to the various services and features of your mobile device required for the Assemble App to operate correctly; or
(iii) your incorrect operation.
1.5 Using the Assemble App
(b) The Assemble App may also require permissions to use various services and features of your mobile device to function correctly, including but not limited to:
(i) its camera;
(ii) its microphone;
(iii) its calendar;
(iv) its GPS data;
(v) its photo library; and/or
(vi) the push notification feature.
(c) Failure to provide personal information or grant the Assemble App permission to use the services required for it to function correctly may result in you not being able to use the Assemble App.
(d) Assemble may limit or restrict access to the Assemble App from time-to-time in its discretion with or without notice to you.
(e) You agree to use the Assemble App solely for the purposes as permitted under these Terms and any applicable law or regulations.
(f) You agree that you will not use the Assemble App to:
(i) plan or engage in any conduct that is potentially fraudulent, illegal, threatening, abusive or is deemed unreasonable by Assemble in its discretion;
(ii) without limiting anything in clause 1.5(f)(i), plan or engage in any conduct that may constitute harassment or bullying of any other person or user;
(iii) engage in any copyright infringement or other intellectual property infringement, or disclose any trade secret or confidential information in violation of a confidentiality, employment, or non-disclosure agreement or otherwise;
(iv) use or commercialise any content from the Assemble App except as permitted by these Terms, by law and with the prior written consent of Assemble;
(v) transmit any unsolicited advertising, promotional material or other forms of solicitation in connection with your use of the Assemble App without the prior written consent of Assemble;
(vi) access (or attempt to access) any part of the Assemble App by any means other than through the interface provided by Assemble;
(vii) engage in any activity which disrupts or interferes with the Assemble App or the servers and networks that host the Assemble App;
(viii) interfere with or disrupt the Assemble App (including accessing the Assemble App through any automated means, like scripts or web crawlers), or any servers or networks connected to the Assemble App, or breach any policies, requirements or regulations of networks connected to the Assemble App (including gaining unauthorised access to, use or monitoring of data or traffic); or
(ix) manipulate the Assemble App by using a script or other automated process.
(g) You acknowledge that you must exercise caution and maintain an awareness of your surroundings when using the Assemble App.
1.6 Making Payments for Services through the Assemble App
(a) You may use the Assemble App to book, order and purchase goods, services and Content (“Third Party Products”) offered by independent contractors or partners of Assemble (“Third Party Providers”).
(b) You understand that when using the Assemble App to purchase Third Party Products you may incur charges and costs charged to you by that Third Party Provider (“Charges”).
(c) Charges payable by you to a Third Party Provider will be facilitated by Assemble on behalf of the Third Party Provider as such Third Party Provider’s limited payment collection agent. Payment for such Third Party Products in this way shall be considered the same as payment made directly by you to the Third Party Provider.
(d) In performing the role of a limited payment collection cation, payment for Charges made through use of the Assemble App will be processed by the BPOINT portal supported by the Commonwealth Bank of Australia (“CBA”), which has been contracted by Assemble to provide this service to you.
(f) You acknowledge and agree that you shall not bring any claims against Assemble for any failure, disruption or error arising from or in connection with any payments made via the third party payment gateway provider and that you shall resolve any disputes with CBA and BPOINT directly.
(g) Without prejudice to any of the other terms in this Agreement, you represent, warrant and undertake that:
(i) all information provided by you to BPOINT and CBA shall be true, accurate and complete; and
(ii) you shall be responsible for all purchases made under your user account, regardless of whether or not you are the person actually making the payment and regardless of whether or not such payments are authorised by you.
1.7 Assemble Connect
(a) Assemble Connect may offer embedded network connection services, energy supply services, hot water supply or connection to internet provider services (“Assemble Connect Services”) at each of the Assemble Locations.
(b) You may sign up to receive the Assemble Connect Services by entering into a separate agreement with Assemble Connect which can be accessed through the Assemble App.
(d) You acknowledge and agree that:
(i) neither Assemble nor Assemble Connect guarantees that the Assemble Connect Services will be available at all Assemble Locations;
(ii) any Assemble Connect services will be provided in accordance with separate terms and conditions between you and the relevant third party;
(iii) you may be charged fees for any Assemble Connect Services you apply to receive; and
(iv) Assemble shall in no way be liable for any loss or damage you incur or suffer, or allege to have incurred or suffered, either directly or indirectly, as a result of your use of or access to any Assemble Connect Services, including for any damage caused to any property or other persons that is caused or contributed to by the Assemble Connect Services.
1.8 Lending Library
(a) Each of the Assemble Locations may offer a service for you to borrow items such as tools, camping gear and other everyday items which will be accessible by the Assemble App (“Lending Library”).
(b) Prior to loaning an item from the Lending Library you undertake and warrant that:
(A) you have attended the appropriate training, made available, from time to time by Assemble, prior to loaning items from the Lending Library (where such training is offered); and/or
(B) you have the requisite skill and knowledge to safely use the loaned item;
(c) If the Assemble App provides that you must be over the age of 18 to loan an item from the Lending Library, you acknowledge that you are over the age of 18. If you are not over the age of 18, you must not loan the item without the written permission and supervision of a parent or guardian over the age of 18.
(d) Once you have loaned an item through the Assemble App and collected it from the appropriate Lending Library in an Assemble Location, you acknowledge and agree that:
(i) you must scan the QR code for the corresponding item to loan that item;
(ii) you must return the item to the Lending Library within the timeframe stipulated in the Assemble App;
(iii) you must return the item in the same state and condition as the date on which you loaned it; and
(iv) you must return the item within a reasonable time or by the date provided in the Assemble App.
(e) You acknowledge and agree that Assemble:
(i) does not guarantee that the Lending Library will be available at all Assemble Locations;
(ii) is not responsible for the availability of any items that may be listed as available in the Lending Library on the Assemble App from time to time;
(iii) does not endorse or warrant the condition of any of the items that may be available from time to time;
(iv) may charge you a fee, at the sole discretion of Assemble, for any items that are intentionally broken, damages or lost; and
(v) shall in no way be liable for any loss or damage you incur or suffer, or allege to have incurred or suffered, either directly or indirectly, as a result of your use of any item loaned from the Lending Library, including for any damage caused to any property or other persons that is caused or contributed to by your use of the loaned item from the Lending Library.
(f) At all times you indemnify, and keep indemnified, Assemble, its directors, officers, employees, agents and related companies and bodies corporate from and against any loss (including legal costs on a full-indemnity basis) or any liability incurred or suffered by you or by Assemble arising from any claim, demand, suit, action or proceeding by any person against yourself and/or Assemble where such liability arose out of, in connection with your loan or use of an item from a Lending Library.
1.9 Use of the Assemble discussion platform
(a) Assemble may, in its sole discretion, permit you to submit, upload or publish text, audio and/or visual content information, including commentary and feedback on discussion platforms and messaging boards within the Assemble App (“User Content”).
(b) Any User Content submitted by you remains your property, however you grant to Assemble a worldwide, perpetual, irrevocable, transferable, royalty-free licence, with the right to sublicence, use, copy, modify, create derivative works of, distribute, publicly display and otherwise exploit such User Content and such use of the User Content will not infringe or violate any party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
(c) You agree not to submit User Content that is defamatory, libellous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by Assemble in its absolute discretion, whether or not such material may be protected by law. You also agree not to submit User Content that constitutes harassing or bullying behaviour or unfairly targets, harasses or bullies any other user. Assemble may, but is not obligated to, review, monitor or remove User Content, at Assemble’s sole discretion at any time for any reason, without notice to you.
(d) If Assemble, in its sole discretion, determines that you have breached these Terms in respect of User Content submitted by you at any time, Assemble reserves its right to temporarily or permanently remove your access to the Assemble App or your access to any discussion platforms or messaging boards within the Assemble App.
1.10 Limitations of use
(a) You understand and acknowledge that the Assemble App is provided on an “as is” and “as available” basis. While Assemble will use reasonable endeavours to provide the Assemble App to you, you acknowledge that it may not be continuous or fault-free and may not be available at all times. Events which are outside Assemble’s reasonable control may also affect the Assemble App. The Assemble App may contain bugs, errors or inaccuracies that could cause failures, corruption or loss of data and/or information from your device and from peripherals (including without limitation, servers, computers, tablets and smart phones) connected to your device.
(b) You assume all risks and costs associated with your use of the Assemble App and any internet access fees, including all data and roaming charges. In addition, Assemble is not obliged to, and may not provide you with any maintenance, technical or other support for the Assemble App.
(c) You agree that Assemble reserves the right to modify, suspend or stop the Assemble App (or any part of the Assemble App), either temporarily or permanently, at any time or from time to time, with or without prior notice to you.
(d) You agree that Assemble shall not be liable to you or any third party for any modification, suspension or cessation of the Assemble App, whether caused by Assemble or any other third party.
You acknowledge that Assemble has no express or implied obligation to provide, or continue to provide, the Assemble App, or any service provided to you through the Assemble App, now or in the future and, in addition, Assemble may at any time, upon prior notice as required by applicable law, institute reasonable charges and/or fees for the Assemble App.
You understand and acknowledge that your use of the Assemble App and any of the information, materials, products or Content provided via the Assemble App is entirely at your own risk, and that, by using the Assemble App, you may be exposed to Content that may be offensive, indecent or objectionable.
Assemble provides user support for the Assemble App via the email address [email protected].
2 THIRD PARTIES
2.1 Third Party Content
(a) In these Terms, “Content” means any information that may be generated, encountered, cached, downloaded or streamed through use of the Assemble App, including any digital content, video, software, graphics, photographs, images, sounds, comments, correspondence, messages and other like materials.
(b) You acknowledge that the Assemble App is dependent on third-party services, including but not limited to:
(i) banks, credit card providers and merchant gateway providers;
(ii) telecommunications services;
(iii) hosting services;
(iv) email services;
(v) content providers; and
(vi) analytics services;
(vii) testing and deployment services; and
(viii) data storage services
(c) Content provided by a third party through the Assemble App, is the sole responsibility of the person or entity that provided the content for the purposes of the Assemble App. You acknowledge and agree that, to the extent permitted by law, Assemble is not liable for any Content, including but not limited to any errors or omissions in any such Content, or for any loss or damage suffered or incurred by you as a result of your use of any Content accessed via the Assemble App.
(d) If you upload or provide any Content to the Assemble App in the course of accessing or using the Assemble App, you agree that such Content will be available to Assemble to use (or remove or alter) in any manner it thinks fit, subject to the applicable provisions of any relevant legislation including, without limitation, privacy legislation.
(e) The Assemble App and any services or Content provided through the Assemble App may contain links to other websites or apps. Those links are provided for convenience only and may not remain current or be maintained. Assemble is not responsible for the Content or privacy practices associated with third party service providers, websites or apps.
2.2 Goods and Services Provided by Third Parties
(a) You understand that certain components or features of the Assemble App include Third Party Products offered by Third Party Providers. You acknowledge and agree that Assemble:
(i) does not control the Third Party Products offered by Third Party Providers;
(ii) is not responsible for the availability of such Third Party Products;
(iii) does not endorse or warrant the quality or accuracy of any such Third Party Products; and
(iv) shall in no way be liable for any loss or damage you incur or suffer, or allege to have incurred or suffered, either directly or indirectly, as a result of your use and/or reliance upon any such Third Party Products.
(b) By using the Assemble App:
3.2 Location data
(a) Assemble relies upon location information in order to provide the Assemble App. The purpose of collecting this information is to provide functionality including weather widgets and local public transport information. By using the Assemble App you agree that, where available, Assemble may transmit, collect, maintain, process and use your location data, and share your location data with third parties in order to provide you with the Assemble App.
(b) The availability and accuracy of location information is subject to limitations arising due to the availability of signals, the particular device used, location and geography. GPS signals may also be blocked in certain areas.
3.3 IP addresses and cookies
(c) In administering the Assemble App and diagnosing potential system problems, we also log all IP addresses which access the Assemble App.
(d) We may, from time to time, monitor your use of the Assemble App to determine if you are in breach of these Terms. Such monitoring may include:
(i) the frequency and nature of any downloads; and
(ii) the time of access and IP addresses used to access the Assemble App.
(e) We may suspend, limit or terminate your access to the Assemble App (at our discretion) if we reasonably suspect, based on the results of such monitoring, that you are in breach of these Terms.
4. INTELLECTUAL PROPERTY
(a) You acknowledge and agree that Assemble and/or its licensors own all legal right, title and interest in the Assemble App, including any and all intellectual property rights that exist therein, whether registered or not, and wherever in the world they may exist. You further agree that the Assemble App contains proprietary and confidential information that is protected by applicable intellectual property and other laws.
(b) You understand that Assemble has granted you a limited, non-exclusive, non-transferable, revocable licence, solely for personal and non-commercial use of the Assemble App to access and use:
(i) the Assemble App solely on your personal device; and
(ii) any Content, information and related materials that may be made available through the Assemble App.
(c) Assemble may use software and other proprietary systems and intellectual property for which Assemble has appropriate authority to use, and you agree that such software, proprietary systems and intellectual property is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. You warrant that you will not infringe on any third-party’s intellectual property rights through your use of the Assemble App.
(d) You agree that you do not have the right to assign, transfer or sub-licence any rights given to you pursuant to these Terms.
(e) You further agree that you must not (and must not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to discover the source code (unless expressly permitted or required by law), sell, lease, grant a security interest in or otherwise transfer any right in the Assemble App.
(f) All intellectual property rights in the Assemble App and any Content provided by Assemble are the property of Assemble. All intellectual property rights that subsist in the Assemble App or any Content available on the Assemble App that are provided by a licensor are the property of, and are reserved to, third party licensors.
(g) Any trademarks, intellectual property or the like used on the Assemble App which belong to a third party remain the property of that party.
5. DISCLAIMER AND LIMITATION OF LIABILITY
(a) To the extent permitted by law, you understand and agree that Assemble will not be liable for:
(i) any incidental, consequential or indirect damages, personal injury, death, damage to property, or loss arising out of these Terms, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the liable party knew or should have known of the possibility of such damage, loss, personal injury or death, or business interruption of any type;
(ii) any disruptions to the Assemble App and that Assemble does not guarantee or warrant that the Assemble App will run uninterrupted, at good speed, be secure or without errors from time to time; and
(iii) any corruption or damage to your computer system, tablet, mobile phone, mobile handset or other device that occurs in connection with your use of the Assemble App. You understand that it is your sole responsibility to ensure that any links or the like which you select to use from the Assemble App are free from viruses or any other items which may interfere with, corrupt or damage or affect the operation of your computer system, tablet, mobile phone or other device.
(b) To the maximum extent permitted by law:
(i) all conditions, warranties and other provisions which might otherwise have been implied into these Terms are expressly excluded;
(ii) Assemble's liability for breach of any implied warranty or condition that cannot be excluded is restricted at Assemble's option to:
the re-supply of services or payment of the cost of re-supply of services; or
the replacement or repair of goods or payment of the cost of replacement or repair; and
(iii) you will at all times indemnify, and keep indemnified, Assemble, its directors, officers, employees, agents and related companies and bodies corporate from and against any loss (including legal costs on a full-indemnity basis) or any liability incurred or suffered by you or by Assemble arising from any claim, demand, suit, action or proceeding by any person against yourself and/or Assemble where such liability arose out of, in connection with and/or through your use of the Assemble App, and/or your conduct or breach of these Terms.
(a)You may stop using the Assemble App at any time.
(b) Assemble may at any time, under certain circumstances and without prior notice, immediately revoke or suspend all or a portion of your access to the Assemble App at its sole discretion. Cause for such termination may include, but is not limited to:
(i) violation of these Terms, or any other policies or guidelines that are referenced in these Terms and/or posted by Assemble on its website or the Assemble App;
(ii) discontinuance or material modification to the Assemble App or any part of the Assemble App;
(iii) a request and/or order from law enforcement, a judicial body or other government agency;
(iv) where provision of the Assemble App to you is or may become unlawful or otherwise unauthorised;
(v) unexpected technical or security issues or problems; or
(vi) your participation in fraudulent, illegal or offensive activities.
(c) Any termination or suspension by Assemble will be made in its sole discretion, and Assemble will not be responsible to you or any third party for any loss or damage that may result or arise out of such termination or suspension of your access to the Assemble App.
(a) Entire agreement: These Terms constitute the full terms and conditions agreed to between you and Assemble and supersede any prior arrangements. You agree and acknowledge that in accepting these Terms you have not done so in reliance upon any oral or written representations made by Assemble with the exception of those contained or referenced in these Terms.
(b) Relationship: Nothing in these Terms creates a partnership, employment or agency relationship between you and Assemble.
(c) Assignment: These terms and any rights, obligations and licences contained hereunder, may not be transferred, assigned or novated by you, but may be transferred, assigned or novated by Assemble without consent.
(d) Translations: Where there are any translations of these Terms, and to the extent of any inconsistency, the English version shall prevail.
(e) Electronic communication: Assemble will send you notices and other correspondence in accordance with the contact details that you provide to Assemble. It is your responsibility to update your contact details as and when they change.
(f) Waiver: No clause of these Terms will be deemed to have been waived and no breach excused unless such waiver or consent is provided in writing. Any failure or delay by Assemble to exercise a power or right under these Terms does not operate as a waiver of that power or right, and the exercise of a power or right by Assemble does not preclude Assemble’s future ability to exercise that or any other power or right under these Terms.
(g) Governing law: These Terms are governed by, and must be construed in accordance with, the laws of Victoria, Australia. Each party hereby submits to the non-exclusive jurisdiction of the courts of that state in respect of all matters or things arising in relation to these Terms.
(h) Force majeure: You agree that Assemble will not be held liable for any delay in fulfilling its obligations under these Terms if such a delay is caused by an act of God, act of terrorism, revolution, civil unrest, industrial or legal action, fire, flood, storm, war, disaster, plague or epidemic, delay in transportation, internet or wireless connectivity, or telecommunication availability, delay by any third party, or any other cause outside of Assemble’s control.
(i) Severability: If any provision of these Terms offends any law applicable to it and is, as a consequence, illegal, invalid or unenforceable then:
(i) where the offending provision can be read down so as to give it a valid and enforceable operation of a partial nature, it must be read down to the extent necessary to achieve the result; and
(ii) in any other case the offending provision must be severed from these Terms in which event the remaining provisions of the Terms operate as if the severed provision had not been included.