Welcome to Clay, your community of trusted carers that give to get care.
Clay offers a booking service including mobile application software and support online or by telephone for its Community Members.
App means any smartphone application that You download.
App Network means the Apple App Store, Google Play or any other app download network.
Software means a browser application offered by Clay.
Confidential Information means information relating to this Agreement, the Website or the Services that You ought reasonably to know is confidential and includes all information regarding Fees and pricing discounts offered to You.
Data means any data that You input into the Website or that is collected with Your authority.
Fees means the fees for the Services as published on the Website or as otherwise agreed with Us or notified to You from time to time.
GST means Goods and Services Tax or equivalent value added tax in Your jurisdiction.
Intellectual Property Right means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
Partner Services means services offered by third party businesses or organisations.
Services (and Service) means the services provided by Us that are designed to assist Members book care between themselves via the Website, App and any other platform operated by Us from time to time and includes, without limitation care bookings and transfers.
Service Provider means a person who offers services to other Users of our Website by advertising their services on the Website.
Clay, Clay Club, We, Our or Us means Emerald Circle Pty Ltd trading as ‘Clay’ and Clay Club.
Website means the internet site located at Clay.club and www.claytheapp.co or any other site operated by Us and includes the App. You, User or Member means a Parent, Family Member or Friend or Service Provider as the context permits. Your has a corresponding meaning.
Subject to the terms of this Agreement, Clay grants You the right to access the Website and to use the Service via the Website. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement.
If You are an Member You appoint Us as Your agent and authorise Us to act as Your agent for the limited purpose of providing to You the Services You select via the Website that are available in Your jurisdiction. This may mean advertising Your care or transfer services, recommending a member and taking payments. Clay will not act as Your agent for any other purpose. For the avoidance of doubt, Clay does not physically manage your care bookings.
1. Monthly Software Subscription - where Fees are charged in respect of a service that may only be accessed via a monthly subscription, You will be charged monthly and in advance.
2. We reserve the right to change the Fees advertised on the Website at any time.
2. All times and dates specified in promotions are deemed to be the local time in Sydney, Australia, unless otherwise stated.
You agree that, subject to any applicable laws:
Use of the Service may be subject to limitations, including but not limited to monthly transaction volumes and restrictions regarding the number of properties that may be managed using the Website. Any such limitations will be advised from time to time.
5.1 Unless the relevant party has the prior written consent of the other party or unless required to do so by law:
2. neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by this Agreement.
5.2 The obligations of confidentiality contained in this clause do not apply to any information which:
7.1 The Website and all content forming part of the Website are protected by intellectual property laws. You acknowledge and agree that We own, control or have licensed all legal right, title and interest in and related to the Website, including all Intellectual Property Rights.
7.2 Except where permitted under applicable laws, any of the Website’s content (including any substantial part of it) must not otherwise be used, stored, copied, reproduced, published, altered, adapted, distributed, printed, displayed, transmitted or commercialised in any form or by any means in whole or part without Our prior written consent.
7.3 If You correspond or otherwise communicate with Us (including if You post a rating or a review), You automatically grant to Us an irrevocable, perpetual, non-exclusive, royalty-free, world-wide license to use, copy, display and distribute the content of Your communication, and to prepare derivative works or incorporate the content into other works. This may include, but is not limited to, publishing testimonials on Our Website, and developing Your ideas and suggestions for new or improved products or services.
7.4 Title to, and all Intellectual Property Rights in, the Data remain Your property. However, Your access to the Data is contingent on full payment of the Fees as and when they fall due.
7.5 You must maintain copies of all Data You input into the Service. We adhere to best practice policies and procedures to prevent data loss, but do not make any guarantees that there will be no loss of Data. We expressly exclude liability for any loss of Data no matter how caused (including without limitation if caused by negligence).
8.1 You warrant and agree that:
6. You will comply with all laws that apply to You and Your use of the Website, and in the case of Members all laws relating to the wellbeing of children.
7. You acknowledge that:
1. You are authorised to use the Services and Website, and to access the information and Data that You input; and
2. You are authorised to access the processed information and Data that is made available to You through Your use of the Website and the Services (whether that information and Data is Your own or that of anyone else).
8.3 We do not warrant that the use of the Service will be uninterrupted or error free. The systems used for accessing the Service can be unpredictable and may from time to time interfere with or prevent access to the Services. We are not responsible for any such interference or prevention of Your access to or use of the Services.
8.4 You remain solely responsible for complying with all applicable laws. It is Your responsibility to check that storage of and access to Your Data via the Service and the Website will comply with laws applicable to You (including any laws requiring You to retain records).
9.1 The Website may contain links to other web sites controlled by third parties. You agree that We are not responsible for any act or omission of, or the content or privacy practices of websites that are controlled by third parties.
9.2 Links to websites controlled by third parties are provided solely for Your convenience and do not constitute, expressly or impliedly, an endorsement by Us of the third party, or the products or services provided by the website or third party service provider.
9.3 You access the sites and/or use the products and services offered by third parties solely at Your own risk and should make Your own enquiries before relying on any content contained in such websites.
9.4 You indemnify and release Us from any claims that You or Your Invited Users may make against Us in respect of the matters referred to in this clause.
10.1 You warrant and represent that You are acquiring the right to access and use the Services for personal purposes 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 or this Agreement.
10.2 Except as required by law, We give no warranty regarding the Services including, without limitation, in relation to whether the Services will meet Your 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 and fitness for purpose.
10.3 Notwithstanding the above and notwithstanding any other provision in this Agreement, We do not purport to restrict, modify or exclude any liability that cannot be excluded under the Australian Consumer Law, the Competition and Consumer Act 2010 (Cth) or the Fair Trading Acts in each of the States and Territories of Australia.
10.4 Where any condition, warranty or right is implied by law, or there is a statutory consumer guarantee that cannot be excluded, We limit Our liability for breach of, or other act contrary to, that implied condition, warranty or right or statutory consumer guarantee to the extent permitted by law. In particular, to the extent possible, We limit Our liability in respect of any claim to, at Our option:
10.5 Without limiting and subject to the foregoing, to the maximum extent permitted by law, We exclude all liability and responsibility to You in contract, tort (including negligence), or otherwise, for any loss (including without limitation loss of an indirect or consequential nature) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service or Website. Any reliance You place on, or any act done based on or in response to, the content of the Service or the Website will be at Your own risk. You indemnify and release Us against any claim for loss or damage of any kind suffered by You or any other person as a result of Your use or reliance, or the use or reliance on the Service, the Website or its contents.
You indemnify Us and will keep Us indemnified against all claims, costs, damage and losses (including legal costs and expenses) or liability arising from Your breach of this Agreement or any obligation You may have to Clay, including (but not limited to) any costs relating to the recovery of any Fees that are due but have not been paid by You, or to a breach of any of the warranties provided by You.
12.1 You may terminate this Agreement at any time through the Website and we will immediately send a notice acknowledging termination.
12.2 If You cancel Your account, any or all of Your Data and other information You have entered into the Website may be deleted. It is recommended that You retain a copy of any Data You have entered into the Website before cancelling Your account.
12.3 We reserve the right to suspend or terminate the Website, Your access to the Website and to Your Data and to terminate this Agreement at any time for any reason (or no reason).
12.4 Notwithstanding and without limiting the above, We may in Our sole discretion terminate this Agreement and Your use of the Services and the Website, suspend for any definite or indefinite period of time Your use of the Services and the Website or suspend or terminate Your access to all or any of the Data by notice to You if:
12.5 If this Agreement or Your access to the Service is terminated or suspended, You must not access, browse or visit the Website or Service.
12.6 Termination of this Agreement is in all cases without prejudice to any rights and obligations of the parties accrued up to and including the date of termination.
14.1 The provisions of this clause apply only to Your use of any App.
14.2 By downloading and/or using Our App, You agree that You have entered into an agreement with Us, and not with Apple or Google. We are solely responsible for any product warranties, if any, pertaining to the App, whether express or implied by law, to the extent they are not otherwise effectively disclaimed in this agreement.
14.3 By downloading the App from an App Network, Clay grants You a non-transferable license to use the App on any iPhone, iPod touch or other relevant device that You own or control as permitted by the usage rules of the App Network and their terms of service.
14.4 The parties both acknowledge that neither Apple nor Google have any obligation whatsoever to furnish any maintenance or support services with respect to the App.
14.5 In the event of any failure of the App to conform to any applicable warranty and where the warranty relates to Your use of a version of the App downloaded through the App Store You may notify Apple, and Apple will refund the purchase price for the App to You (if any); and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the app to conform to any warranty, if any, will be Our sole responsibility.
14.6 The parties acknowledge that Clay, and not Apple or Google, are responsible for addressing any of Your claims relating to the App or Your possession and/or operation of the App, including, but not limited to: (i) product liability claims made in respect of the App; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation in respect of the App.
14.7 The parties acknowledge that Clay, and not Apple or Google, are responsible for any claim that the App infringes any third party intellectual property rights and that Clay, and not Apple or Google, will be solely responsible for the investigation, defence, settlement or discharge of any intellectual property infringement claim.
14.8 You represent and warrant that (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
14.9 The parties each acknowledge and agree that Apple and Google, and Apple’s and Google’s respective subsidiaries, are third party beneficiaries of this Agreement, and that Apple and Google will each have the right (and will be deemed to have accepted the right) to enforce this Agreement against You as a third party beneficiary of this Agreement.
14.10 Apple and App Store are trademarks of Apple Inc., registered in the U.S. and other countries. Google and Google Play are trademarks of Google Inc.
14.11 For the avoidance of doubt, the parties state that nothing in this clause is intended to limit, exclude or modify any other provision of this Agreement.
Clauses 5 to 16 (inclusive) survive the expiry or termination of these Terms.
16.1 This Agreement supersedes and extinguishes all prior agreements, representations (whether oral or written), and understandings and constitutes the entire agreement between You and Us relating to the Services and the other matters dealt with in this Agreement.
16.2 A failure or delay by Us to exercise a power or right under this Agreement does not constitute as a waiver of that power or right, and the exercise of a power or right by Us does not preclude Our future exercise or the exercise of any power or right by or on behalf of Us.
16.3 If a provision of this Agreement is declared or determined by any court to be void, invalid or unenforceable at law, that provision is hereby severed from and deemed not to be part of this Agreement, and the remaining provisions will continue to apply with such deletions or modifications as necessary to make them valid, effective and enforceable. Removal of any provision of this Agreement will not affect the validity of what remains.
16.4 Save for any limited appointment provided by clause 4.4, nothing contained or implied in this Agreement creates a relationship of partnership, employment, agency or trust. Neither party has the authority to bind the other party in any way.
16.5 This Agreement are governed by, construed and enforced in accordance with the laws of New South Wales, Australia. Disputes arising from this Agreement are exclusively subject to the jurisdiction of the courts of New South Wales, Australia.
16.6 You may not assign or transfer any rights to any other person without Our prior written consent. Clay may assign or transfer its rights and obligations under this Agreement on the provision of notice to You.
16.7 Any notice given under this Agreement by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Us must be sent to notices@Clay.club or to any other email address notified by email to You by Us. Notices to You will be sent to the email address which You provided when setting up Your access to the Service.
16.8 Subject to clause 14, a person who is not a party to this Agreement has no right to benefit under or to enforce any term of this Agreement.
16.9 The Website may be accessed throughout Australia and overseas. Clay makes no representations that the content or the Services offered by the Website complies with the laws of any country outside Australia. If You access this Website from outside Australia or use this Website to manage a care booking that is located outside Australia, You do so at Your own risk and are responsible for complying with the laws in the place where You access this Website and/or the place in which you are located.