TERMS AND CONDITIONS
Last updated on 31 March 2021
Welcome to Kulcha!
Kulcha is a mobile application that lets you discover restaurants, cafés, hotels, activities and other points of interest (Listings) based on your friends’ likes. You can also create and share lists of Listings (Lists).
When we talk about “Kulcha“, “we,” “our,” or “us” in these terms, we are referring to Whitehall Property Group Pty Limited, an Australian business with the ACN 097 979 201. When we talk about the “App” in these terms, we are referring to our mobile application available on the Apple iOS Store and the Google Play Store and any associated services we offer.
We’ve also used a few other capitalised words and phrases as shorthand to refer to recurring concepts. Each of these are defined in bold and in brackets after the concepts are first mentioned.
(a) The App is not intended for use by any person under the age of 15 years old or any person who has previously been suspended or prohibited from using the App. By using the App, you represent and warrant that you:
(i) have not been suspended or prohibited from using the App; and
(ii) are either:
A. over the age of 15 years; or
B. are the parent or legal guardian of a person under the age of 15 who intends to use the App, and you agree to be bound by these terms on that person’s behalf.
(b) Please do not use the Platform if you are under the age of 15 years old or if you have previously been suspended or prohibited from using the Platform.
(c) Please read through these terms before using the App. If you don’t agree to these terms, please don’t use the App.
(d) We may modify these terms from time to time. If we do, we will post a note on this page or email you. If you continue to use the App after we modify these terms, you’ll be taken to have agreed to the terms as modified.
2. ACCOUNT REGISTRATION
(a) In order to use the App, you will be required to sign up for an account (Account).
(b) You may register for an Account using your email address, or alternatively, with your Apple ID or Facebook account.
(c) If you register for an Account using your Apple ID or Facebook account, you authorise us to access certain information on your Apple ID or Facebook account including your email address, full name and address, date of birth and profile picture.
(d) When you register for an Account, you must provide true, accurate and complete information and keep this information up to date.
(e) You agree that you’re solely responsible for:
(i) maintaining the confidentiality and security of your Account information and your password; and
(ii) any activities that occur through your Account, whether those activities have been authorised by you or not.
(f) You also agree to let us know if you detect any unusual activity on your Account as soon as you become aware of it.
(g) We won’t be responsible to you for, and expressly disclaim any liability for, any cost, loss, damages or expenses arising out of a failure by you to maintain the security of your Account.
(a) To get the most out of the App, you will be asked to share and give permission for us to access your:
(i) friend list from your Facebook account;
(ii) contacts from your mobile device; and
(b) You can change permissions via the App or your mobile device at any time.
4. LISTINGS AND LISTS
You acknowledge and agree that:
(a) Listings are automatically created via the information provided by a third party. This includes any information (including contact details and links) in a Listing. We do not review Listings, guarantee the accuracy of any information in a Listing or take any responsibility for any information in a Listing. Any action you take in reliance of any information in a Listing is at your own risk;
(b) the App is not intended to be a complete list of all restaurants, cafés, hotels, activities and other points of interests;
(c) all restaurants, cafés, hotels, any service provider for activities and points of interests, or any other parties set out in a Listing are third parties and are not under our control; and
(d) any Listing including recommendations based on your friends likes or from Lists created by users or your friends are not an endorsement or recommendation by us.
5. ACCEPTABLE USE
(a) not to copy, reproduce, translate, adapt, vary or modify the App;
(b) not to use the App in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity;
(c) not to act in any way that may harm our reputation or our associated or interested parties or do anything at all contrary to our interest or the App;
(d) not to use the App for distributing unsolicited commercial content, junk mail, spam, bulk content or harassment;
(e) you must not make any automated use of the App and you must not copy, reproduce, translate, adapt, vary or modify the App;
(f) we may change any features of the App and any part of the App at any time without notice;
(g) not to attempt to breach the security of the Services (including the App) or otherwise interfere with the normal function of the Services, including by:
(i) gaining unauthorised access to Accounts or data about users of the Services;
(ii) scanning, probing or testing the App for security vulnerabilities;
(iii) overload, flood, mailbomb, crash or submit a virus to the App or our system; or
(iv) instigate or participate in a denial-of-service attack against App or our system; and
(h) to ensure that your employees, sub-contractors and other agents who you have authorised to use or access the App comply with these terms.
6. YOUR CONTENT AND OUR CONTENT
(a) As part of using the App, you can like Listings, share Listings and create and share Lists (Your Content)
(b) You grant to us a perpetual, irrevocable, transferable, worldwide and royalty-free licence (including the right to sublicense) to use, copy, modify, reproduce and adapt any Intellectual Property Rights in Your Content for us to use, exploit or otherwise enjoy the benefit of Your Content
(c) We may remove Your Content for any reason at any time and without notice.
(d) Unless we indicate otherwise, all materials (including text, graphics, logos, icons, sound recordings and software) used in the App are subject to Intellectual Property Rights that are owned or licensed by us.
(e) You may only access and use these materials for the sole purpose of enabling you to use the App and in accordance with these terms.
(f) In this clause 6, “Intellectual Property Rights” means all copyright, trade mark, design, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date these terms both in Australia and throughout the world.
7. THIRD PARTIES
7.1 THIRD PARTY CONTENT
The App may contain text, images, data and other content provided by a third party (Third Party Content). We’re not responsible for any of this Third Party Content and we make no representation or warranty about the quality, suitability, accuracy, reliability, currency or completeness of any Third Party Content.
7.2 THIRD PARTY LINKS
The App may also contain links to websites operated by third parties (Third Party Links). Third Party Links are provided for convenience and may not remain current or be maintained. We do not endorse and are not responsible for Third Party Links and have no control over or rights in linked websites.
7.3 THIRD PARTY TERMS AND CONDITIONS
(a) By using the App, or any other third party service, you acknowledge and agree that third party terms & conditions (Third Party Terms) may apply (including app store providers such as Apple and Google).
(b) You agree to any Third Party Terms applicable to any third party goods and services, and we will not be liable for any loss or damage suffered by you in connection with such Third Party Terms.
8. NOTICE REGARDING APPLE
If you are accessing the App from the Apple, Inc. (Apple) iOS Store, you acknowledge and agree:
(a) these terms are between you and us and not with Apple. Apple is not responsible for the App or any content available on the App;
(b) Apple has no obligation whatsoever to furnish any maintenance and support services for the App ;
(c) in the event of any failure by us to conform to any applicable warranty, you may notify Apple, and Apple will refund the price for the App. 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 of expenses attributable to any failure to conform to any warranty will be our responsibility;
(d) Apple is not responsible for addressing any claims by you or any third party relating to the App, including, but not limited to:
(i) product liability claims;
(ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and
(iii) claims arising under consumer protection, privacy, or similar legislation;
(e) in the event of any third party claim that the App or your use of the App infringes any third party’s intellectual property rights, Apple will not be responsible for the investigation, defence, settlement and discharge of any such claim;
(f) that 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;
(g) you must comply with applicable third party terms of agreement when using the App; and
(h) Apple, and Apple’s subsidiaries, are third party beneficiaries of these terms, and that, upon your acceptance of these terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these terms against you as a third party beneficiary.
9. OPERATION OF THE APP DEPENDENT ON THIRD PARTIES
You acknowledge that the App are dependent on software and hardware developed by third party providers such as Apple and Google. If following an update by such third party providers, the App can no longer function as they did prior to the update, we will not (to the maximum extent permitted by law) be liable to you for any loss or damage you might suffer as a result.
10. SERVICE LIMITATIONS
The App are made available to you strictly on an ‘as is’ basis. We can’t guarantee, and make no warranties, to the extent permitted by law, that:
(a) the App will be free from errors or defects;
(b) the App will be accessible or available at all times;
(c) information (including any messages) sent through the App will be delivered promptly, or delivered at all;
(d) information you receive or supply through the App will be secure or confidential; or
(e) any information provided through the App is accurate or true.
We do not accept responsibility for any unauthorised use, destruction, loss, damage or alteration to your data or information (including Your Content), your computer systems, mobile phones or other electronic devices arising in connection with use of the App. You should take your own precautions to ensure that the process which you employ for accessing the App does not expose you to the risk of hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
(a) To the maximum extent permitted by applicable law, we limit all liability to any person for loss or damage of any kind, however arising whether in contract, tort (including negligence), statute, equity, indemnity or otherwise, arising from or relating in any way to the App to $100 (AUD) in aggregate. This includes the transmission of any computer virus.
(b) You agree to indemnify us and our employees, contractors and agents in respect of all liability for loss, damage or injury which may be suffered by any person arising from, or in connection with, you or your representatives use of the App and/or breach of these terms.
(c) All express or implied representations and warranties given by us are, to the maximum extent permitted by applicable law, excluded.
(d) Nothing in these terms are intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, you may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services we provide.
(e) To the maximum extent permitted by law, under no circumstances will we be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with the App, these terms or their subject matter (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)).
13.1 CANCELLATION BY YOU
You are responsible for cancelling your Account. You can cancel your Account at any time by using the functionality provided in the app or via contacting us via the App.
13.2 CANCELLATION BY US
We reserve the right to cancel your Account and stop you from using the App or any part of the App at any time without notice, for any reason.
13.3 EFFECT OF CANCELLATION
Upon cancellation of your Account, we may at our discretion, keep or delete Your Content. We won’t be responsible to you for, and expressly disclaim any liability for, any cost, loss, damages or expenses arising out the cancellation of your Account.
Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of these terms will survive and be enforceable after such termination or expiry.
15. LOCATION OF SERVICES
(i) We control the operation of the App from headquarters located in Australia. The App may be operated from, or hosted on mirrors or servers, at various locations outside of Australia.
(ii) We make no representation or warranty that all of the features of the App will be available to you outside of Australia or that they are permitted to be accessed outside Australia.
(iii) You’re solely responsible for your decision to use the App from other locations and you acknowledge that such use may be subject to, and you are responsible for, compliance with applicable local laws in relation to your use of the App.
16.1 GOVERNING LAW AND JURISDICTION
These terms are governed by the law applying in New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with these Terms. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
No party to these terms may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
Any term of these terms which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of these terms is not limited or otherwise affected.
16.4 JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
A party cannot assign, novate or otherwise transfer any of its rights or obligations under these terms without the prior written consent of the other party.
16.6 ENTIRE AGREEMENT
These terms embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of these terms.
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (currency) a reference to $; or “dollar” is to Australian currency;
(c) (gender) words indicating a gender includes the corresponding words of any other gender;
(d) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(e) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(f) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(g) (these terms) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of these terms, and a reference to these Termms includes all schedules, exhibits, attachments and annexures to it;
(h) (document) a reference to a document (including these terms) is to that document as varied, novated, ratified or replaced from time to time;
(i) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(j) (includes) the word “includes” and similar words in any form is not a word of limitation; and
(k) (adverse interpretation) no provision of these terms will be interpreted adversely to a party because that party was responsible for the preparation of these terms or that provision.