1. Acceptance and acknowledgement of these App Terms
(a) By installing the App you:
i agree to be bound by these terms of use (App Terms) which govern your use of the App; and
ii acknowledge that you have read our Privacy Policy.
(b) Please review the App Terms carefully before you accept them. If you do not agree to the App Terms You will not be able to use the Pooled+ app (App).
(c) We reserve the right to amend this App Terms at any time. We will inform you of any changes either:
i through the App when you access the App for the first time following the change; or
ii by email,
(d) Your continued use of the App following the notification of changes we have made to the App Terms will mean that you accept the changes.
2. 2. The App
(a) The App can be used on most Apple iOS and Android OS devices.
(b) In order to use any Services through the App, you must:
i have a compatible device;
ii download and install the App on your compatible device from the relevant marketplace for your device’s platform; and
iii have had the hardware installed and your account has been onboarded.
(c) We may update the App to add to, and improve, its functions. Depending on the update, you may not be able to use the App until you have downloaded the latest version and accepted any new or additional terms.
(d) If you have any issues with the App, please visit https://pooled.au/faq/managing-your-pool-and-equipment/ and we will do our best to help you.
(e) You acknowledge that the App may be dependent upon other parties and that it may not always be available or work perfectly (for example, in the case of maintenance, fraud, or a fault in the systems used to provide the App). These events are sometimes outside of our control.
3. Your Account & App Access
(a) We will create an account in the App for you. You will login with your registered email address and a temporary password. You will need to change the password before being able to access the app.
(b) If you wish to provide access to another member of your household to the App, please contact our support team enquiry@pooled.au
4. What the App does and how you can use it
(a) The App enables you to monitor your pool from a single interface.
(b) You can use the App to
i Visualise the energy used by the hardware in maintaining your pool
ii Check the pool chemistry – updated every 15mins
iii Schedule runs of hardware
iv Change from Static to Dynamic plans
v Perform maintenance
5. Intellectual Property
(a) All trade marks, copyright, database rights and other intellectual property rights of any nature in the App, together with the underlying software code, is owned by us or our licensors.
(b) Any open source software code used in the App will be subject to the applicable open source licence terms.
(c) We grant you the right to use the App for your personal use in accordance with the App Terms, unless such right is suspended or terminated under clause 11.
6. Your use of the App
(a) You must not:
i use the App in any unlawful way or in breach of the App Terms, or act fraudulently or maliciously in relation to the App;
ii infringe intellectual property rights in relation to the App, or your use of it;
iii allow any other person to use the App installed on your Device;
iv copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the App or any part of the App, other than as expressly provided in the App Terms or otherwise permitted by law, or
v use the App in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other people who use the App.
7. Third-party software and services
(a) You acknowledge that you may be required to use third-party software on your Device in order to use the App.
(b) You agree that:
i we are not responsible for such third-party software (or any updates to that software);
ii such third-party software is subject to its own terms and conditions and may be subject to additional fees; and
iii if you are unable or unwilling to obtain or install such third-party software, you may be unable to access or use the App.
(c) Access to all or parts of the App may require your Device to be connected to the internet or require other third-party services. You acknowledge that we are not liable for the activities of any such third parties. You are responsible for ensuring that your installation and use of the App does not cause you to exceed any data usage quotas or other limitations that may apply to your internet service or other services acquired from third parties.
(d) The App may contain links to third-party websites or other third-party content or services. Those links are provided for convenience only and may not remain current or be maintained. Such links should not be construed as an endorsement, approval or recommendation by us of the third parties, or of any content or services provided by them. Your use of any third-party content or services may be subject to separate terms and conditions.
8. Acknowledgements and liability
(a) These App Terms only address the use of the App. They do not seek to govern any agreement between the parties in relation to access to the Pooled+ software and hardware or for the supply and installation of hardware or other equipment for use in your pool.
(b) To the extent permitted by relevant law, you agree that:
i you use the App at your own risk;
ii the App is provided on an ‘as is’ and ‘as available’ basis;
iii unless we and you otherwise agree in writing, we will not be obliged to provide support for the App other than as set out in the App Terms, and
iv the App cannot be guaranteed to be error-free, and the existence of any errors will not constitute a breach of the App Terms.
(c) Except as expressly provided to the contrary in the App Terms, and to the extent permitted by applicable law, we will not be liable to you for any loss, including special, indirect or consequential damages, or claim, arising directly or indirectly from:
i the supply of a defective App;
ii a failure to provide the App, in whole or in part;
iii errors or interruptions occurring in the course of using the App;
iv corruptions to or loss of data in connection with the App;
v any suspension or discontinuance of the App or a part of the App;
vi any use of the App by other users, including any use in a manner which contravenes the App Terms, or
vii a breach of the App Terms.
(d) You may have rights under the Australian Consumer Law, including the Consumer Guarantees, that we cannot lawfully exclude or limit. Nothing in these App Terms has the effect of excluding, restricting or modifying any of those rights and Consumer Guarantees.
(e) Where the law implies a warranty into the App Terms which may not lawfully be excluded, including those under Australian Consumer Law, our liability for breach of such a warranty will be limited to, if applicable and to the extent the App is considered a ‘good’ under applicable law, repairing, replacing or supplying equivalent goods, or paying the cost of any of those remedies to you.
(f) You agree to reimburse us for any losses we incur as a result of your breach of, or failure to comply with, the App Terms or if we suffer any losses as a result of your use of the App.
9. Additional terms for using the App from the iOS App Store
(a) If you downloaded the App from the iOS App Store, you agree that:
i these App Terms constitute an agreement between you and us only, and not with Apple;
ii we alone are responsible for the App and the content of the App Terms, including any claims you or any third party have relating to the App;
iii Apple has no obligation whatsoever to provide any maintenance and support services with respect to the App;
iv Apple is not responsible for addressing any claims you or any third party have relating to the App or your possession and/or use of the App, including but not limited to:
1. product liability claims;
2. any claim that the App fails to conform to any applicable legal or regulatory requirement;
3. claims arising under consumer protection or similar legislation; or
4. in the event of any third party claim that the App or your possession and/or use of the App infringes that third party’s intellectual property rights, we will be solely responsible for the investigation, defence, settlement and discharge of any such claim;
v your use of the App is subject to the Usage Rules;
vi Apple, and Apple’s subsidiaries, are third party beneficiaries of the App Terms; and upon your acceptance of the App Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce this document against you as a third party beneficiary of the App Terms.
(b) If you downloaded the App from the iOS App Store, and technical problems prevent or unreasonably delay delivery of the App, you may seek either replacement of the App (or refund of the price paid if any), as determined by Apple, to the full extent permitted by law. You acknowledge that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation with respect to the App, and any other claims, losses, damages, costs or expenses attributable to any failure to conform to any warranty will be dealt with by us in accordance with this document.
10. Security
(a) When we receive data from you, we will take reasonable steps to preserve the security of such information. While we take reasonable steps to do so, we do not warrant and we cannot ensure the security of any information transmitted using the App. Nevertheless, when we receive data from you, we will take reasonable steps to preserve the security of such information.
(b) You must ensure your Device and security credentials remain secure. This includes:
i maintaining strong security settings to prevent unauthorised unlocking or use;
ii not sharing your security credentials (such as an access code) with any other person; and
iii only installing applications on the Device from the official marketplace for the Device’s operating system (e.g. iOS App Store, Google Play, etc.).
We also recommend that you have security protection on all of your Devices (such as a passcode or fingerprint to unlock the Device) to prevent others attempting to access the App.
(c) You must take your own precautions to ensure that the process you use for accessing the App does not expose you to the risk of viruses, malicious code or other forms of interference which may damage your Device. We do not accept responsibility for any interference or damage to Devices which arises in connection with use of the App, or caused by other devices or apps.
(d) Android devices allow apps to draw or run over other apps, or otherwise interact with other apps (“Overlay Functionality”). This functionality could be abused by third parties to capture the content of the App and therefore poses a security threat. We strongly advise you not to allow other apps to use Overlay Functionality in order to prevent possible misuse of information such as personal information or access credentials. If you do permit other apps to use the Overlay Functionality then (unless it’s caused by our failings) you are responsible for (and agree to hold us harmless from) any misuse of, or changes to, your information, including on your Profile, resulting from the use of the Overlay Functionality.
11. Suspending and stopping your use
(a) The App Terms continue until terminated by either us or you under this clause.
(b) We may immediately terminate the App Terms and your use of the App if you have breached or threaten to breach any term in the App Terms, or we have reasonable grounds to suspect that you have done so or intend to do so. If we notify you of such termination, you must immediately delete the App from all Devices in your possession or control and you must not access the App again.
(c) We may suspend or terminate access to the App if we deem it necessary or prudent to do so:
i in order to preserve the integrity and security of the App, the data collected from it, or any related equipment or systems;
ii for legal reasons, including any change in the law;
iii due to circumstances beyond our reasonable control, including disruption to network connections or equipment, loss of third-party services, denial of service attacks, strikes, lock-outs, labour disputes, acts of God, acts of nature, acts of government or their agencies, fire, flood, storm, riots, power shortages or power failure, war, terrorist acts, sabotage, or inability to obtain sufficient labour, raw materials, fuel or utilities; or
iv in order to perform support or maintenance of the App or any infrastructure, systems or software used by us in connection with providing the App.
(d) You may terminate the App Terms at any time by emailing us at enquiry@pooled.au and we will off board you and remove your Account.
(e) You are required to let us know if you move home. If you move home, email us at enquiry@pooled.au and we will update your Account accordingly. Once this has occurred, you will be required to delete the App from your device or update your Account with your updated details.
(f) Termination pursuant to this clause 11 will not affect any rights or remedies which either of us may have otherwise under these App Terms or at law.
(g) Nothing in this clause limits any right we may have to modify the App, including by removing any features, or to modify or cease offering the App or any part of the App.
12. Privacy
(a) Any personal information you supply to us (and which we collect from you or other sources) will be used by us in accordance with our Privacy Policy.
(b) By using the App, you consent to us collecting, using, storing and potentially disclosing technical information about your usage of the app and device to improve our products and to provide any services to you in accordance with our Privacy Policy.
13. General
(a) Each of the conditions of the App Terms operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
(b) If we fail to insist that you perform any of your obligations, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. Any waiver would need to be given by us in writing.
(c) We may transfer our rights and obligations under the App Terms to another organisation, but this will not reduce your rights or those obligations. You may not transfer your rights or obligations to another person.
(d) The App Terms are governed by the laws of State or Territory in which your Premises is located. Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in that State or Territory and courts of appeal from them in respect of any proceedings arising out of or in connection with the App Terms.
14. Definitions
The following definitions apply in the App Terms:
Account means data about you and associated metadata.
Android OS means the Android operating system used by Android devices, distributed on the Google Play
App means the Pooled+ software application made available by Intellihub.
Apple means Apple Inc. of 1 Infinite Loop, Cupertino, California, USA.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent state or territory legislation.
Consumer Guarantee means a right or guarantee you may have under the Australian Consumer Law or other rights in relation to the supply of goods or services (such as terms implied into a contract) that cannot lawfully be excluded.
Device means an electronic device owned or controlled by you, such as a mobile phone or tablet, compatible with the App.
Intellihub, Enreal, we or us means Intellihub Australia Pty Ltd (ACN 626 079 614) (including in its capacity trading as Enreal)
iOS App Store means the App Store operated by Apple in respect of its devices running the iOS operating system.
Google Play or sometimes the Android Store Google Play Store, Play Store, or the Android Store means the App Store operated by Google for Apps digitally distributed to devices running the Android operating system.
Premises means the premises where your Pooled + system is installed.
Privacy Policy means the policy required under Australian Privacy Principle 1.3 and currently located on our website here https://pooled.au/privacy-policy/
Usage Rules has the same meaning set out in iOS App Store terms currently set out at the following URL: https://www.apple.com/legal/internet-services/itunes/au/terms.html
And Google terms currently set out at the following URL: https://policies.google.com/terms?hl=en
you and your means a user that downloads, installs or uses the App.
15. Interpretation
(a) In the App Terms, unless a contrary intention is expressed:
i headings and italicised, highlighted or bold type do not affect the interpretation of the App Terms;
ii the singular includes the plural and the plural includes the singular;
iii other parts of speech and grammatical forms of a word or phrase defined in the App Terms have a corresponding meaning;
iv a reference to a ‘person’ includes any individual, firm, company, partnership, joint venture, an unincorporated body or association, trust, corporation or other body corporate and any government agency (whether or not having a separate legal personality);
v a reference to any thing (including any right) includes a part of that thing;
vi a reference to a document (including the App Terms) includes all amendments or supplements to, or replacements or novations of, that document;
vii a reference to a party to any document includes that party’s successors and permitted assigns;
viii a provision of the App Terms will not be construed adversely to a party solely on the ground that the party (or that party’s representative) was responsible for the preparation of the App Terms or the preparation or proposal of that provision;
ix the words ‘include’, ‘including’, ‘for example’, ‘such as’ or any form of those words or similar expressions in the App Terms do not limit what else is included and must be construed as if they are followed by the words ‘without limitation’, unless there is express wording to the contrary.
