Terms and Conditions

1. Acceptance

1.1 Understanding Zoe Pty Ltd (ACN 679 740 044) (we, us or our), own the cloud-based software, including all instructions in hard copy or electronic form and any update, modification or release of any part of that software (Software) which is accessible at https://understandingzoe.com/, and may be available through other addresses and channels (Site).

1.2 These terms and conditions (Terms):

• (a) set out the terms and conditions upon which we agree to grant you a right to use the Services (including the SaaS Services); and
• (b) are binding on you from the date on which you accept these Terms (Effective Date) until the date on which your Account and these Terms are terminated in accordance with the terms (Term).

1.3 You accept these Terms by clicking a box indicating your acceptance.

2. Services

2.1 In consideration of your payment of the Fees (as set out in the Plan), we will provide the Services in accordance with these Terms, whether ourselves or through our Personnel.

2.2 Free or trial Account: We may offer you a free or trial Account with limited features designed to allow you to evaluate the Services and make sure it is right for you before signing up for a paid Plan. Any trial period can change at any time without notice. We have the right to terminate any trial Account if you are found to be misusing the Services. At the end of any free or trial Account you will be provided the option to choose and sign up for a Plan.

2.3 You agree that we may amend the Services (including any features) or the Fees at any time, by providing written notice to you. If you do not agree to any amendment made to the Services or the Fees, you may terminate these Terms in accordance with clause 19.1.

2.4 We warrant and agree that, we will use reasonable effort to ensure all of our obligations under these Terms will be carried out:

• (a) by suitably competent and trained Personnel; and
• (b) in an efficient and professional manner; and
• (c) in accordance with any Service Level as set out in the Plan.

3. Accounts

3.1 You may create an Account on our Site, in order for you and your Authorised Users to access and use the Services, including the SaaS Services.

3.2 You must ensure that any information you provide to us, or we request from you, for your Account, is complete and accurate and you are authorised to provide this information to us.

3.3You are the Account owner and regardless of any change in any contact details, you will remain responsible for your Account, as set out in these Terms. If you wish to change the Account owner, you must provide us with a written request to transfer the ownership of the Account to the incoming party, which must also include the incoming party’s written consent to take over full responsibility for the Account, in a form acceptable to us.

3.4 It is your responsibility to keep your Account details confidential. You are responsible for all activity on your Account, including activity by Authorised Users and for ensuring that any activities on your Account comply with these Terms.

3.5 We are not responsible for the management or administration of your Account or your Authorised Users.

4. Licence and Restrictions on Use

4.1Subject to the payment of any applicable Fees and your and your Authorised Users’ compliance with these Terms, we grant you a non-exclusive, non-transferable, non-sublicensable (except as otherwise permitted under these Terms), personal and revocable licence to access and use the Services for the Term, for your use and enjoyment of the Services, as contemplated by these Terms (Licence).

4.2You must not (and you must ensure your Authorised Users do not) access or use the Services except as permitted by the Licence and you must not (and must not permit any other person to) use the Services in any way which is in breach of any applicable Laws or which infringes any person’s rights, including Intellectual Property Rights, including to:

• (a) use the Services to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;
• (b) use the Services in any way that damages, interferes with or interrupts the supply of the Services;
• (c) introduce malicious programs into our hardware and software or Systems, including viruses, malware worms, trojan horses and e-mail bombs;
• (d) reveal or allow others access to your Account’s password or authentication details or allow others to use your Account or authentication details (other than Authorised Users);
• (e) carry out security breaches or disruptions of a network;
• (f) use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the Services;
• (g) send any form of harassment via email, or any other form of messaging; or
• (h) circumvent user authentication or security of any of our Services, networks, accounts or hosts or those of our other users.

5. Authorised Users

5.1 You agree that the Licence permits you to access and use the Services in accordance with the number of Authorised Users, as set out in your Plan (if applicable).

5.2 You may, at any time, request for an increase in the number of Authorised Users (Variation Request) by providing written notice (including by email) to us.

5.3 We will not be obliged to comply with a Variation Request unless we accept the Variation Request, and you accept any variation to the Fee to effect the Variation Request (Fee Variation).

5.4 You may accept the Fee Variation in writing (including by email) and after your acceptance we will apply the Fee Variation to any subsequent billing periods in the Term, which will be considered the new Fee for the purpose of these Terms.

6. Third Party Inputs

6.1 You agree that the provision of the Services may be contingent on, or impacted by, Third Party Inputs.

6.2 You agree that the Services may include Third Party Inputs that may interface, or interoperate with, the Services, including third party software or services (for example, Google Maps APIs).

6.3 To the extent that you choose to use such Third Party Inputs, you are responsible for:

• (a) the purchase of;
• (b) the requirements; and
• (c) the licensing obligations,

related to the applicable Third Party Input, including third party software and services.

6.4You agree that the benefit of the Third Party Input’s interface, or interoperation with, the Services, is subject to your compliance with clause 6.3.

7. Support Services

During the Term, we will provide you:

• (a) technical support services as set out in your Plan, via email and/or telephone, or as otherwise agreed between the Parties, provided that where required, you assist us in investigating and ascertaining the cause of the fault and provide us with access to all necessary information relevant to the fault; and
• (b) training as set out on your Plan, on the dates and at the times as agreed between the Parties.

8. Additional Services

8.1 You may request Additional Services, including bespoke customisation to the scope or functionality of the Services, by providing written notice (including by email) to us.

8.2 We may, at our discretion, provide you with written notice in the form of a scope of services, a proposal or a statement of work (as applicable) covering the Additional Services requested and any further fee required for us to undertake the Additional Services.

8.3 If you agree to the scope of services, proposal or statement of work (as applicable), for the Additional Services, then we will provide the Additional Services to you in consideration for payment of the additional fee, which will form part of the Fees.

9. Payment

9.1 You agree to pay us the Fees as set out in your Plan, and any other amounts payable to us under these Terms, without set-off or delay, via credit card or any other payment method set out on the Site.

9.2 The Fee is payable in advance of the next billing cycle for your Plan and any additional charges will be billed in arrears at the end of the relevant Plan billing cycle (unless otherwise agreed between the Parties).

9.3 You are responsible for reviewing the pricing schedule, features and limits associated with your Plan, which are available on the Site.

9.4 You must ensure your chosen payment method has sufficient funds to pay the Fees.

9.5 If any payment has not been made in accordance with these Terms, we may (at our absolute discretion):

• (a) immediately cease or suspend the provision of the Services, and recover as a debt due and immediately payable from you, our additional costs of doing so;
• (b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date; and
• (c) engage debt collection services and/or commence legal proceedings in relation to any such amounts.

9.6 If you rectify such non-payment within a reasonable time after the Services have been suspended, then we may, at our discretion, recommence the provision of the Services as soon as reasonably practicable.

10. Privacy and Communication

10.1 You are responsible for the collection, use, storage and otherwise dealing with Personal Information related to your business and all matters relating to the Customer Data.

10.2 You must, and must ensure that your Personnel and Authorised Users, comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any privacy or anti-spam Laws applicable to you in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with these Terms.

10.3 We agree to handle any Personal Information you provide to us, solely for the purpose of performing our obligations under these Terms and in accordance with any applicable Laws.

10.4 We may contact you via the platform for the Services, using in-Account notifications or via-off platform communication channels, such as text messages or email with functional notifications.

10.5 We may also send marketing and promotional material which may be of interest to you, using your contact details. You may opt out of receiving direct marketing messages at any time. Where you opt-out we will continue to send you functional communications relevant to your use of the Services.

11. Confidential Information

11.1 Each Receiving Party agrees:

• (a) not to disclose the Confidential Information of the Disclosing Party to any third party;
• (b) to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and
• (c) to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.

11.2 The obligations in clause 11.1 do not apply to Confidential Information that:

• (a) is required to be disclosed in order for the Parties to comply with their obligations under these Terms;
• (b) is authorised to be disclosed by the Disclosing Party;
• (c) is in the public domain and/or is no longer confidential, except as a result of a breach of these Terms; or
• (d) must be disclosed by Law or by a regulatory authority, including under subpoena.

11.3 Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 11. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 11.

11.4 This clause 11 will survive the termination of these Terms.

12. Intellectual Property Rights

12.1 You agree that all Intellectual Property Rights:

• (a) in the Services, including the Software and SaaS Services; and
• (b) in the Intellectual Property developed, adapted, modified or created by us, or our Personnel (including in connection with these Terms, the Software and the SaaS Services and any machine learning algorithms output from the Services),

will at all times vest, or remain vested, in us (or, if applicable, our third party service providers). To the extent that ownership of the Intellectual Property Rights do not automatically vest in us, you agree to do all acts necessary or desirable to assure our title to such rights.

12.2 You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use Your Materials, solely for the purposes for which they were developed and for the performance of our obligations under these Terms.

12.3 You must not whether directly or indirectly, without our prior written consent:

• (a) copy or use, in whole or in part, any of our Intellectual Property;
• (b) reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our Intellectual Property to any third party;
• (c) reverse assemble, reverse engineer, reverse compile or enhance the Services;
• (d) attempt to discover the source code or object code or underlying structures, ideas, know how or algorithms in relation to the Services;
• (e) breach any Intellectual Property Rights connected with the Services;
• (f) cause any of our Intellectual Property to be framed or embedded in another website;
• (g) resell, assign, lease, hire, sub-license, transfer, distribute or make available the Services to third parties;
• (h) “frame”, “mirror” or serve any of the Services on any web server or other computer server over the Internet; and
• (i) alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice.

12.4 This clause 12 will survive the termination or expiry of these Terms.

13. Analytics

13.1 Despite anything to the contrary, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Services, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it:

• (a) does not contain identifying information; and
• (b) is not compiled using a sample size small enough to make the underlying Customer Data identifiable.

13.2 We, and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all Intellectual Property Rights in the foregoing.

14. Customer Data

14.1 You grant us a limited licence to copy, transmit, store and back-up or otherwise access the Customer Data during the Term and for a reasonable period after the Term to:

• (a) supply the Services (including for back-ups) to you;
• (b) diagnose problems with the Services;
• (c) enhance and otherwise modify the Services, and
• (d) as reasonably required to perform our obligations under these Terms.

14.2 You must, at all times, ensure the integrity of the Customer Data and that your use of the Customer Data is compliant with all Laws.

14.3 You represent and warrant that:

• (a) you have obtained all necessary rights, releases and permissions to provide all your Customer Data to us;
• (b) the Customer Data is accurate and complete;
• (c) the Customer Data does not violate any Laws or rights of any third party; and
• (d) any use, collection and disclosure authorised in these Terms is not inconsistent with the terms of any applicable privacy policies.

14.4 We assume no responsibility or Liability for the Customer Data. You are solely responsible for the Customer Data and the consequences of using, disclosing, storing or transmitting it. It is your responsibility to back up the Customer Data.

14.5 You acknowledge and agree that the operation of the Services is reliant on the accuracy of the Customer Data, and the provision of inaccurate or incomplete Customer Data by you may affect the use, output and operation of the Services.

15. Warranties

15.1 You warrant and agree that:

• (a) there are no legal restrictions preventing you from entering into these Terms;
• (b) you are not and have not been the subject of an Insolvency Event;
• (c) you will cooperate with us and provide us with all assistance, resources, data, people, information, facilities, access and documentation that is reasonably necessary to enable us to provide the Services;
• (d) all information and documentation that you provide to us in connection with these Terms is true, correct and complete;
• (e) you have not relied on any representations or warranties made by us in relation to the Services, unless expressly stipulated in these Terms;
• (f) you will inform us if you have reasonable concerns relating to our provision of the Services;
• (g) you are responsible for obtaining any consents, licences, authorities and permissions from third parties necessary for the Services;
• (h) the Services are provided to you solely for your benefit;
• (i) you will be responsible for the use of any part of the Services;
• (j) you have reviewed these Terms including our Privacy Policy;
• (k) you have the authority to act on behalf of any person or entity for whom you are using the Services; and
• (l) you have all the hardware, software and services which are necessary to access and use the Services.

16. Australian Consumer Law

16.1 Certain legislation, including the ACL, and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of our services which cannot be excluded, restricted or modified (Statutory Rights).

16.2 If the ACL applies to you as a consumer, nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our Liability for the Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms.

16.3 Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including the Services) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or any other basis.

16.4 This clause 16 will survive termination or expiry of these Terms.

17. Limitations on Liability

17.1 Despite anything to the contrary, to the maximum extent permitted by law:

• (a) we will not be liable for any Consequential Loss;
• (b) our liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of you (or any of your Personnel); and
• (c) our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us resupplying the Services to you or, in our sole discretion, to us repaying you the amount of the Fees paid by you to us in respect of the supply of the relevant Services to which the Liability relates.

17.2 This clause 17 will survive termination or expiry of these Terms.

18. Exclusions to Liability

18.1 Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability, caused or contributed to by, arising from or connected with:

• (a) loss of, or damage to, any property or any injury to or loss to any person;
• (b) the Computing Environment;
• (c) your or your Personnel’s acts or omissions;
• (d) any use or application of the Services by a person or entity other than you;
• (e) any work, services, goods, materials or items which do not form part of the Services;
• (f) any Third Party Inputs;
• (g) the Services being unavailable, or any delay in us providing the Services to you; and/or
• (h) any event outside of our reasonable control.

18.2 You acknowledge and agree that:

• (a) you are responsible for all users using the Services;
• (b) you use the Services and any associated programs and files at your own risk;
• (c) the technical processing and transmission of the Services may be transferred unencrypted;
• (d) we may use third party service providers;
• (e) the Services may use third party products, facilities or services;
• (f) we do not guarantee that any file or program available is free from viruses;
• (g) we are not responsible for the integrity or existence of any data on the Computing Environment; and
• (h) we may pursue any available equitable or other remedy against you if you breach any provision of these Terms.

18.3 This clause 18 will survive termination or expiry of these Terms.

19. Termination

19.1Either Party may terminate these Terms at any time by giving 30 days’ notice in writing to the other Party.

19.2 These Terms will terminate immediately upon written notice by:

• (a) us, if:
  • (1) you (or any of your Personnel) breach any provision of these Terms and that breach has not been remedied within 10 Business Days of being notified by us;
  • (2) you fail to provide us with clear or timely instructions or information to enable us to provide the Services;
  • (3) for any other reason outside our control which has the effect of compromising our ability to provide the Services; or
  • (4) you are unable to pay your debts as they fall due; and
• (b) you, if we:
  • (1) are in breach of a material term of these Terms, and that breach has not been remedied within 10 Business Days of being notified by you; or
  • (2) are unable to pay our debts as they fall due.

19.3 Upon expiry or termination of these Terms:

• (a) we will immediately cease providing the Services;
• (b) we will be entitled to permanently delete all Customer Data within 1 month from expiry or termination;
• (c) we will provide any further disengagement services at our then current rates;
• (d) you agree that any payments made are not refundable;
• (e) you are to pay for all Services provided prior to termination;
• (f) you also agree to pay us additional costs arising from termination; and
• (g) immediately return or delete or destroy any of our property.

19.4 Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.

19.5 This clause 19 will survive the termination or expiry of these Terms.

20. GST

20.1 If GST is payable on any supply made under these Terms, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under these Terms and must be paid in addition to the consideration expressed elsewhere in these Terms, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.

20.2 If an adjustment event arises in respect of any supply made under these Terms, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued (if required), and any payments to give effect to the adjustment must be made.

20.3 If the recipient is required under these Terms to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.

20.4The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

21. General

21.1 Access: The Services may be downloaded, installed or accessed in Australia and overseas. We make no representation that the Services comply with the Laws of any country outside of Australia. If you access the Services from outside Australia, you do so at your own risk and are responsible for complying with the Laws in the place you access the Services.

21.2 Amendment: We may update these Terms at any time. Where we update these Terms we will notify you via an in-Account notification or via email. If you do not agree with any amendment you may terminate these Terms in accordance with clause 19.1.

21.3 Assignment: A Party must not assign or deal with the whole or any of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).

21.4 Dispute: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator.

21.5 Email: You agree that we are able to send electronic mail to you and receive electronic mail from you. You release us from any Liability you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission.

21.6 Entire agreement: These Terms contain the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements.

21.7 Exclusivity: The Services will be provided to you on a non-exclusive basis.

21.8 Further assurance: You agree to promptly do all things and execute all further instruments necessary to give full force and effect to these Terms.

21.9 Governing law: These Terms are governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales.

21.10 Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient. Any notice may be sent by standard post or email.

21.11 Publicity: You agree that we may advertise or publicise the broad nature of our provision of the Services to you, including on our website or in our promotional material.

21.12 Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

21.13 Severance: If a provision of these Terms are held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable.

22. Definitions

In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in these Terms, and:

• Account means an account accessible to you and/or your Authorised Users to use the Services, including, the SaaS Services;
• ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth);
• Additional Services means any Services not set out in the Services description in the Plan which we agree to provide to you;
• Authorised User means a user permitted to access and use the Services under your Account;
• Business Day means a day on which banks are open for general bank business in New South Wales, excluding Saturdays, Sundays and public holidays;
• Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems;
• Confidential Information includes information which is disclosed to the Receiving Party in connection with these Terms;
• Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data;
• Customer Data means the information, materials, logos, documents, qualifications and other Intellectual Property or data inputted by you into the Services;
• Disclosing Party means the party disclosing Confidential Information to the Receiving Party;
• Fee or Fees means those fees due and payable by you for the Services;
• Insolvency Event means any of the following events or any analogous event;
• Intellectual Property means any copyright, registered and unregistered trade marks, designs, domain names, know-how, inventions, processes, trade secrets or Confidential Information;
• Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights;
• Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences;
• Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment;
• Licence is defined in clause 4.1;
• Personal Information is defined in the Privacy Act 1988 (Cth);
• Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents;
• Plan means the plan you choose, including the Fees, billing cycle, features and number of Authorised Users;
• Privacy Policy means any privacy policy set out on our Site;
• Receiving Party means the party receiving Confidential Information from the Disclosing Party;
• SaaS Services means our Software as a service as described in your Plan and on the Site;
• Services means the Software, the SaaS Services, any technical support services and any Additional Services;
• Service Level means any service level relevant to your Plan;
• State means New South Wales;
• System means all hardware, software, networks and other IT systems used by a Party;
• Third Party Inputs means third parties or any goods and services provided by third parties;
• Your Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services owned, licensed or developed by or on behalf of you.

23. Interpretation

In these Terms, unless the context otherwise requires:

• (a) a reference to these Terms or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
• (b) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
• (c) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
• (d) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
• (e) a reference to a party to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
• (f) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
• (g) a reference to time is to local time in New South Wales; and
• (h) a reference to $ or dollars refers to the currency of Australia from time to time.