1. Formation, Term and Renewal

1.1 When you make a purchase and accept these Subscription Terms at the Point of Purchase, an agreement is formed between you and Zhoey Pty Ltd ACN 671 973 210 of 1 Wardill Close, Holt ACT 2615 (we, us, our) consisting of these Subscription Terms and any end user terms issued under clause 1.2 or other terms we and/or our related bodies corporate may issue from time to time which you accept (agreement).

1.2 You acknowledge and agree that the Platform may have its own Platform-specific terms (including end user terms of use) that you and/or your Users may be required to accept in order to:

1. create an Account; and
2. access and use the Platform.

1.3 To the extent of any inconsistency between the documents listed above, the following order of precedence will be applied:

1. any applicable end user terms; and
2. these Subscription Terms.

1.4 Your Subscription, and this agreement, will commence on the Start Date and will continue for the Term, unless or until terminated earlier in accordance with these Subscription Terms.

1.5 Unless either party notifies the other party of its decision not to renew this agreement no later than 60 days before the expiration of the Initial Term, the agreement will automatically renew on a monthly basis (each month being a Renewal Term), subject to the Fee increase set out in clause 3.5.

1.6 You must advise us at least 30 days prior to the end of the relevant month of your then current Renewal Term (Cut-Off Date) if you want to terminate this agreement (Cancellation Request). If your Cancellation Request is received:

1. prior to the Cut-Off Date it will be effective at the end of your then current Renewal Term and the Platform will remain accessible by you until the end of your then current Renewal Term that you have already paid the Fees for; or
2. after the Cut-Off Date, your payment of the Fees for your next Payment Cycle will be processed and this agreement will be renewed for the next Renewal Term and your cancellation will take effect at the end of that Renewal Term and the Platform will remain accessible by you until the end of that Renewal Term that you have paid the Fees for.

2. Platform licence

2.1 We grant you a limited, non-exclusive and non-transferable licence to access and use the Platform solely to the extent permitted by this agreement and as is necessary to obtain the benefit of your Subscription to the Platform for the duration of the Term. Any rights not expressly granted under this agreement are reserved by Zhoey.

2.2 You are responsible for your use of, or reliance on, any advice or recommendations provided by us in connection with the Platform, including but not limited to, the security and access settings that may be configured for the Platform.

3. Fees and payment terms

3.1 You will pay the Fee each Payment Cycle in accordance with your Payment Method selected at the Point of Purchase and this clause 3.

3.2 Where your Payment Method is payment by invoice, we will invoice you for the applicable Fees monthly in arrears, and you must pay each invoice within 30 days of the date of the invoice.

3.3 Where your Payment Method is payment by debit or credit card, the following clauses will apply.

1. You can request a change to your selected Payment Method at any time, by contacting us at hello@zhoey.co. Any changes will take at least 10 Business Days to take effect.
2. We, or an authorised third party payment processor such as Stripe, will periodically and automatically charge the Fee for the Platform to your debit or credit card nominated by you in accordance with this clause 3. We accept Visa, MasterCard and American Express Cards, or such other cards we notify you that we accept.
3. It is your responsibility to ensure that:
   1. your debit or credit card details (as applicable) are always valid and up to date;
   2. sufficient funds are available each month; and
   3. the billing address and other necessary information you have provided are always valid and up to date.
4. All Fees will be billed by us (and therefore charged to your nominated debit card or credit card) monthly in arrears. Notwithstanding, we reserve the right to bill you at other intervals and will provide you with reasonable notice prior to processing such billing.
5. We are not liable for any charges you incur as a result of incorrect payment information. If we incur an expense due to incorrect payment information provided by you, we reserve the right to seek reimbursement from you for such expense.

3.4 For all payments under this agreement, if we do not receive, or we are unable to process, your payment:

1. where applicable:
   1. you authorise us to reattempt the payment method a maximum of four times over a four-week period;
   2. you must rectify such non-payment within 2 Business Days of notification from us;
2. if such reattempts are unsuccessful, we reserve the right to:
   1. seek payment from you via an alternative payment method and/or seek to recover the debt through alternative means (either directly, or through a third party) and you will be responsible for all costs and expenses incurred by us in connection with such collection activity, including collection fees, court costs and attorneys' fees;
   2. seek reimbursement for any costs we incur when reattempting payment; and
   3. suspend your (and your Users') use of your Account and access to the Platform until all overdue amounts are paid.

3.5 We reserve the right to increase the Fees each Renewal Term if you exceed your allocated usage of the relevant Services in accordance with your Plan. We will notify you of such increase and, subject to clause 12.3(b)(i), such increase will be automatically applied to the Fees and invoice for the applicable Renewal Term.

3.6 All amounts payable under this agreement are exclusive of GST. If GST is payable in relation to a Taxable Supply, the amount payable for that Taxable Supply is the amount for that Taxable Supply specified in this agreement plus GST.

4. Account(s) and Users

4.1 You must only use the Platform in accordance with these Subscription Terms and the applicable end user terms.

4.2 You are solely responsible for:

1. determining your Users and any use of the Platform by Users;
2. ensuring you and your Users:
   1. comply with this agreement and all applicable end user terms;
   2. have all necessary skills, licences, accreditations, and qualifications required in accordance with industry standards and applicable laws and regulations in respect of your/their professional obligations as they relate to the Platform (including access and use) (including any set out or required under any applicable Platform-specific terms);
3. all activity on the Account(s), including by you and/or or any Users and/or any unauthorised access by third parties;
4. maintaining the confidentiality and security of the Account(s), including any login and password information, and notifying us immediately of any unauthorised use; and
5. using all reasonable endeavours to prevent any unauthorised access to or use of the Platform; and
6. without limiting our security obligations under this agreement, protecting Customer Data, including backing-up, and ensuring the security of, the Customer Data, and taking appropriate measures to protect Customer Data from accidental, unlawful or unauthorised access, use or disclosure.

4.3 You will contact us immediately if you believe an unauthorised third party:

1. may be using or accessing the Account(s); or
2. if the Account(s) information, including any login or password information is lost or stolen.

5. Acceptable Use

5.1 Without limiting any other obligations set out throughout these Subscription Terms, or any applicable end user terms, you must always, and ensure that all of your Users always, access and use the Platform:

1. in accordance with this acceptable use clause;
2. in a manner that does not attempt to circumvent the agreed commercial arrangements, including Fees, set out under this agreement; and
3. acting in good faith, giving consideration to the commercial intent of the parties.

5.2 You and your Users' access to, and use of, the Platform must not violate any applicable laws, codes or regulations, including but not limited to intellectual property laws, data protection and Privacy Laws.

5.3 When using the Platform, you must only, and ensure your Users only upload, post, store, communicate or display content (including Customer Content) that:

1. you have all consents and rights required under law and under any applicable contracts to upload, post, host, store, communicate and display (for instance, rights of ownership or a sufficiently broad licence to do so);
2. does not infringe the rights, including privacy and Intellectual Property Rights of any other person;
3. is not unlawful, does not give rise to any civil or criminal liability for you or us, and does not encourage any activity that may violate any applicable law or contract;
4. is not fraudulent and does not constitute a fraudulent misrepresentation or promote fraudulent activity;
5. is not and does not contain offensive, abusive or sexually obscene content;
6. is not libellous, defamatory, discriminatory in respect of any individual or group, unsolicited, unwanted or harassing;
7. is not a mass email or other commercial message, promotion, offer, advertisement, or solicitation (also known as “spam”); and
8. does not contain viruses, malware, trojan horses, worms, or any other malicious or harmful program or code.

5.4 You agree that you will not, and your Users will not:

1. access, use, alter or interfere with any areas of the Platform that you are not authorised to access;
2. check or test the vulnerability of any of our systems or networks or breach or circumvent any security or authentication mechanism;
3. copy, caches, disassemble, decompile, reverse-engineer or modify any component of the Platform, or use any automated means to collect information from the Platform;
4. do anything that would prejudice our rights, title or interest in and to the Platform;
5. transfer, sell, lease, distribute, or sublicense any part of the Platform or the content contained within or hosted on the Platform;
6. attempt to destabilise, interrupt or overload our infrastructure by placing unreasonable burdens on our resources, including by sending requests to our systems more rapidly than could be achieved by a human user;
7. engage in any other conduct that inhibits any other person from using or enjoying the Platform;
8. use or access the Platform in any manner that:
1. creates a risk to the integrity of the Platform or the network, systems, equipment or facilities used in connection with the Platform; and
2. in an excessive manner including but not limited to excessive use or storage of data which is to be judged by us in our sole discretion;
9. misuse the Platform by tampering with their normal operation, or trying to access them using a method or interface other than those we provide;
10. transmit any viruses, malware, trojan horses, worms, or other types of malicious or harmful software or code, or links to such software or code, onto or through the Platform;
11. impersonate another person or organisation, misrepresent your identity or use another person's login details for the Platform without their permission; or
12. reproduce, communicate, adapt, record, transfer, publish, perform, display, broadcast, distribute, offer or make available any of the content contained within or hosted on the Platform in contravention of any applicable law or in breach of any person's rights, including Intellectual Property Rights.

5.5 If you or your Users fail to comply with the acceptable uses set out in this clause, we reserve the right to immediately suspend your Account(s) and/or your access to the Platform, without liability for us (to the extent permitted by law). We are also entitled to immediately remove any content you upload, post, host or transmit that we consider or suspect to be in breach of this clause or any of our other terms and conditions, without prior notice to you and without liability for us (to the extent permitted by law).

5.6 Our rights to suspend your Account(s) and to remove content do not limit any other rights or remedies that may be available to us under this agreement.

6. Intellectual Property and Data

6.1 You acknowledge and agree that we own all rights (including Intellectual Property Rights), title and interests in and to:

1. the Platform (including any software, source and object code, algorithms, that form part of or relate to the Platform);
2. any accompanying materials or documentation, including that are created by and/or for you and/or your Users in connection with the use of the Platform;
3. any variations, modifications, adaptations, developments and/or derivatives of any of the Platform, and/or any accompanying materials or documentation,but excluding Customer Content.

6.2 Without limiting any rights granted to us in this agreement you acknowledge and agree that you own all right, title and interest in Customer Content.

6.3 You acknowledge and warrant the following in respect of Customer Content:

1. you are solely responsible for Customer Content, the integrity, accuracy, currency, completeness and quality of Customer Content, and the means by which you acquire Customer Content;
2. you have a right to use and transmit Customer Content;
3. it does not breach any rights of a third party (including Intellectual Property Rights or Moral Rights); and
4. you will comply with all relevant laws or regulations in respect of Customer Content.

6.4 Zhoey will not be responsible for and does not check or review Customer Content in any way. We reserve the right to remove any Customer Content that is deemed unsuitable, insulting, inflammatory, degrading, illegal or objectionable in our sole discretion or that is provided in breach of the warranties given under the terms of this agreement.

6.5 We are not responsible for any errors, omissions, Losses or damages of any kind resulting directly or indirectly from any inaccuracies in Customer Content or any failure by you to ensure the integrity, completeness or accuracy of Customer Content before providing it to us or inputting it into the Platform.

6.6 You acknowledge and agree that we may host, transmit, maintain and store all or parts of Customer Content on servers located in Sydney, Australia, and other locations notified to you from time to time.

6.7 You grant us a non-exclusive, worldwide, royalty free, assignable, perpetual and irrevocable licence to copy, use and analyse non-Confidential Information and Customer Content for any purpose, for our business and for benchmarking and analytics to improve and understand the Platform usage and customer needs, provided that we will use our reasonable endeavours to ensure such output and analyses will not contain any Confidential Information, Personal Information or other information which identifies you as a customer.

7. Third party providers and linked sites

7.1 At your option, we may incorporate certain add-ons and extensions into the Platform (Third Party Products) that are owned or operated by third party suppliers, including external software and payment solution suppliers (Third Party Suppliers).

7.2 You acknowledge and agree that:

1. your use of, and access to, the Third Party Products may be subject to additional fees and separate terms issued by the Third Party Supplier, which will form a separate agreement between you and the relevant Third Party Supplier;
2. we make no representations or warranties in relation to, and does not accept liability for, any Third Party Products; and
3. we may suspend your use of, or access to, the Third Party Products at any time, including on request from the Third Party Supplier of such Third Party Products.

7.3 To the extent permitted by law, you agree not to pursue or make any claim against any of our Third Party Suppliers in connection with the Platform.

7.4 The Platform may contain links to third party websites, products, and services.

7.5 We do not make any representations or warranties in relation to, and we exclude all liability from, third party websites, products and services, including the Third Party Products.

8. Confidentiality

8.1 A party will not disclose the Confidential Information of the other party to any third party, except:

1. for the purposes of providing, or using, the Platform and fulfilling any obligations under this agreement, including in the case of Zhoey to allow your Users to access Customer Data as determined or instructed by you;
2. where a party is required to do so under any law, code or regulation and/or any listing rules of any stock exchange, including disclosure to any third parties in order for them to comply with the same;
3. to the party's employees, subcontractors, representatives, or advisors on a need-to-know basis; and/or
4. with the other party's consent.

8.2 Each party must have appropriate security measures in place that are designed to protect Confidential Information against unauthorised access, disclosure or use.

9. Privacy

9.1 Each party will comply with all applicable Privacy Laws when collecting, handling, storing, disclosing, or otherwise using any Personal Information in connection with this agreement.

9.2 It is your responsibility to ensure that you seek and obtain all necessary consents from and make all necessary disclosures to customers in respect of their Personal Information to enable disclosure of such information to Zhoey for the purpose of the provision of the Platform, to the extent such disclosure is permitted by any applicable laws.

9.3 You further acknowledge and agree that:

1. our collection and use of Personal Information under this agreement is governed by our Privacy Policy, which forms part of, and is incorporated into, this agreement and can be accessed at Zhoey Privacy Policy; and
2. you will ensure that the purposes for which personal information that you disclose to us may be processed are as described in this agreement and our Privacy Policy and, if this is not the case, that you must notify us before providing us with the relevant personal information and we must agree to any necessary amendments to our processing of that personal information before you may provide it to us.

10. Marketing

10.1 You acknowledge and agree that we may use and incorporate any ideas, suggestions, concepts, know-how or techniques contained in information received from you that directly relates to your products or business, including any suggested changes or modification to the Platform.

10.2 We may, with your prior written consent, use your company name and logo:

1. to describe the circumstances of your use of the Platform, on an ongoing and irrevocable basis, where we are required to do so under any law, code or regulation and/or any listing rules of any stock exchange (as applicable); and
2. as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers.

11. Scheduled maintenance

You acknowledge and agree that the Platform is provided on an 'as-is' basis, service continuity is not assured and that the Platform may be suspended, unavailable or have limited availability including:

1. for routine or emergency maintenance, in which case we will provide you with at least 7 days' notice;
2. to permit upgrades or other development activity to take place;
3. due to a Force Majeure Event; and/or
4. if it is necessary for reasons of security, interoperability, data protection and/or any other work that is necessary for operational or technical reasons.

12. Termination

12.1 Either party may terminate this agreement and/or a Subscription for convenience at any time without penalty by giving the other party at least 30 days' written notice.

12.2 Either party may terminate this agreement and/or a Subscription on written notice before the expiration of the Term where any of the following events occurs.

1. The other party materially breaches any of the terms of this agreement and the breach is not capable of remedy.
2. The other party materially breaches any of the terms of this agreement and does not remedy the breach within 30 days of receiving written notice of the breach.
3. If the other party ceases to operate, becomes insolvent, enters liquidation, file for bankruptcy, makes an assignment for the benefit of creditors, appoints a receiver, or is subject to any similar action.

12.3 In addition to the above, the following termination rights apply.

1. We may terminate this agreement immediately at any time on written notice to you if our relationship with a Third Party Supplier that provides software, hosting services or other technology, products or services relied on by us to provide the Platform expires or terminates or such provider requires us to change the way we provide the Platform.
2. Subject to clause 12.4, you may terminate this agreement on written notice as follows
   1. If we provide you notice of a Fee increase under clause 3.5 and you do not agree to the increased Fee. If we do not receive a notice from you in accordance with this clause, and you continue to use the Platform, then you agree that you're deemed to have consented to the increase in the applicable Fee.
   2. we give you a notice under clause 17.1 and you do not agree to such proposed change to these Subscription Terms. If we do not receive a notice from you in accordance with this clause, and you continue to use the Platform, then you agree that you're deemed to have consented to the proposed change and the amended Subscription Terms.

12.4 Where you terminate this agreement in accordance with clause 12.3(b), the termination will be effective at the end of your then current Term, however:

1. the relevant terms will not be changed, and the then current Term will remain applicable; and
2. any Fees will not increase, and your then current Fees will remain applicable.

13. Effect of expiry or termination

13.1 On expiry or termination of this agreement by either party, subject to any terms of this agreement that permits otherwise:

1. each party must, on request, return or securely destroy all Confidential Information in that party's control; and
2. you will no longer have any right to use or access (or to permit any other person to use or access) the Platform, or any other information or materials that we make available to you under this agreement, including our Confidential Information; and
3. you must immediately pay any and all outstanding Fees owing as at the date of termination.

13.2 Following the expiry or termination of this agreement, you will no longer have access to Customer Content and reserve the right to:

1. retain a copy of Customer Content for record keeping purposes; and/or
2. delete Customer Content within a period of 30 business days following such expiry or termination.

13.3 You acknowledge and agree that we, our related bodies corporate, affiliates, representatives, successors and assigns, including their applicable officers, directors, employees and agents are not liable to you for any Loss or Consequential Loss in connection with denial of access to or deletion of Customer Content in accordance with clause 13.2(b).

13.4 The exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this agreement, by law, or otherwise.

14. Warranties

14.1 Each party represents and warrants to the other that, to the best of its knowledge, each of the following statements is true, accurate and not misleading as at the date of this agreement and will be true and accurate on each day during the Term:

1. it has the power to enter into and perform its obligations under this agreement and to carry out the transactions contemplated by this agreement; and
2. there are no pre-existing rights or obligations which would prevent it from complying with its obligations under this agreement.

14.2 We further warrant and represent as follows, to the best of our knowledge.

1. That the Platform, as provided by us and used in accordance with this agreement, does not, or will not, infringe the Intellectual Property Rights of any third party. This warranty does not apply to any of Customer Content, including without limitation where it is uploaded to or hosted on the Platform.
2. We will provide the Platform:
1. with due care and skill; and
2. in accordance with all applicable laws, codes and regulations.

14.3 You further warrant and represent as follows.

1. Customer Content does not, or will not, infringe the Intellectual Property Rights of any third party.
2. In using the Platform, you and your Users will comply with this agreement, all applicable end user terms, and all applicable laws, codes and regulations (including in respect of your professional obligations) in connection with the Platform.
3. Where you collect, or handle, Personal Information, which is made available to us under this agreement, including where it is input into any of our Platform, that you have collected all necessary consents to do so and that you have done so in accordance with all applicable Privacy Laws.

14.4 Subject to any express warranties in this agreement but otherwise to the fullest extent permitted by law:

1. we exclude all warranties, conditions and representations in whatever form, relating to the Platform, including any warranties or representations relating to quality, accuracy, integration, merchantability, conformity with specifications, reliability, functionality, performance, fitness for use or the security and operation of the Platform, including that the Platform will produce any particular outcomes for you and/or that it will be bug or error free; and
2. that no advice or information, whether oral or written, obtained by you from us or through or from the Platform or under this agreement shall create any warranty not expressly stated in this agreement in any manner.

15. Indemnity

15.1 Subject to clause 16, we indemnify you, your directors, officers, employees, affiliates, agents, contractors, principals or licensors (your indemnified parties) from and against any Loss suffered or incurred by your indemnified parties as a direct result of:

1. breach of applicable warranties;
2. breach of clause 6 (Intellectual Property and Data);
3. breach of clause 8 (Confidentiality);
4. our negligent or fraudulent acts or omissions;
5. our wilful misconduct; and
6. our breach of applicable laws.

15.2 You indemnify us and our directors, officers, employees, affiliates, agents, contractors, principals, or licensors (our indemnified parties) from and against any Loss suffered or incurred by our indemnified parties as an indirect or direct result of:

1. your breach of:
   1. this agreement;
   2. any end user terms; and/or
   3. applicable laws;
2. our access to Customer Content as determined or instructed by you;
3. Customer Content, including but not limited to any third party claim alleging that Customer Content, or our handling or processing of Customer Content infringes rights, including privacy and/or Intellectual Property Rights of a third party;
4. your negligent or fraudulent acts or omissions or wilful misconduct;
5. any of your acts or omissions in reliance on false, misleading or incomplete information that you have provided to us; and/or
6. third party claims arising out of or in connection with any of the items set out in clauses 15.2(a) - 15.2(e) above.

16. Liability

16.1 Notwithstanding any other provision of this agreement and to the fullest extent permitted by law:

1. neither party is liable, whether such liability is based on breach of contract, tort (including negligence), statute or otherwise for any Consequential Loss, indirect, incidental, punitive or special Losses of any kind (including loss of profit, loss of opportunities or business interruption);
2. our sole liability for loss or corruption of data is limited to restoring such data to the last useable backup, where applicable;
3. we are not liable for any Loss arising from activity on your Account, including additional usage fees, loss of data or downtime caused by deliberate, inadvertent or unauthorised changes by any party, or files that you or your Users upload, transmit, install or otherwise uses in connection with the Platform;
4. we are not liable for any Loss incurred or suffered by you, your Users or any third party as a result of you and/or your Users use of the Platform; and
5. where our liability cannot be excluded in accordance with clause 16.1(a) our aggregate liability in connection with this agreement whether in contract, tort (including negligence), statute or otherwise will not exceed the fees paid by you in the 6 month period preceding any claim for any Loss.

16.2 If any supply by us pursuant to this agreement comprises a supply to a 'consumer' as defined in the Consumer Law, then nothing contained in this agreement restricts or modifies guarantee, right or remedy which pursuant to the Consumer Law applies to this agreement or is conferred on you, provided that to the extent that the Consumer Law permits us to limit its liability for breach of guarantee imposed by the Consumer Law, then to the extent permitted by the Consumer Law, our liability for such breach is limited to the following as determined by us:

1. the supplying of the services again; or
2. the payment of the cost of having the services supplied again.

16.3 To the extent permitted by law:

1. all express or implied guarantees, warranties, representations, or other terms and conditions relating to the agreement or its subject matter, not contained in the agreement, are excluded from the agreement; and
2. we do not warrant or guarantee any particular outcomes or results from the use of the Platform.

16.4 A party's liability under this agreement will be reduced proportionately to the extent that any such Loss arose as a result of the other party's act or omission.

16.5 We are not responsible for delays, disruptions or other faults in the Platform caused by factors beyond our reasonable control, including but not limited to problems with the public internet or your computer systems, the acts and omissions of third parties, and/or Force Majeure Events. We are not responsible for any damage to any of your equipment or software resulting from your use of the Platform.

17. Variations

17.1 You acknowledge and agree as follows.

1. We may vary these Subscription Terms by giving you notice via email as follows.
   1. Where the variation relates to or impacts your ability to access and use the Platform and/or either party's warranties or liabilities under this agreement, we will provide you with 14 days' notice prior to such change taking effect.
   2. All other changes will be effective from the date of notification.
2. Subject to clause 12.3(b), your continued use of the Platform after the relevant effective date of notification will constitute acceptance of the amended Subscription Terms.
3. The date set out at the start of Subscription Terms will reflect the date that they were last updated.
4. We reserve the right to amend any Platform-specific terms in accordance with the variation provisions in the applicable Platform-specific terms on written notice to you.

18. Dispute resolution

18.1 Any party who claims to have a dispute against another party must issue a notice to the other party claiming a dispute has arisen, setting out the nature of the dispute and all other information relevant to the dispute (Dispute Notice).

18.2 Within 7 days after receiving the Dispute Notice, the parties must meet (or otherwise communicate) to resolve the dispute. Each party will be represented by a person having authority to agree to such resolution or methods. All aspects of the meetings will be confidential and without prejudice to the parties' rights, obligations and liabilities.

18.3 If the parties do not resolve the dispute within 30 days (or such longer period the parties may agree in writing) after the Dispute Notice, then either party may initiate court proceedings in relation to the dispute.

18.4 Despite the existence of a dispute, each party must continue to perform its obligations under the agreement unless those obligations are the subject of the dispute.

19. Notices

19.1 Subject to clause 20, a notice, consent or other communication under this agreement is only effective if it is in writing, and it is received in full and legible form at the addressee's address or email address. Any notice sent via a non-email channel must also have a copy sent via email.

19.2 A notice is deemed to have been received:

1. if posted and emailed, on the third Business Day after posting;
2. if delivered personally and emailed, upon delivery; or
3. if sent only by email, the earlier of when the sender receives an automated message confirming delivery or within 24 hours after the message has been sent (as recorded on the device from which the sender sent the message).

20. Other communications

You acknowledge and agree that we may issue you communications regarding the Platform, your Account or otherwise via your Account from time to time.

21. General

21.1 Nothing in this agreement will be taken as giving rise to a relationship of employment, agency, partnership or joint venture. Except as otherwise provided in this agreement, the parties acknowledge and agree that neither party will have any authority to bind the other party or to enter into an agreement in the name of the other party.

21.2 We may sub-contract the performance of any part of our obligations and/or services to any third party.

21.3 This agreement may not be assigned, sublicensed or otherwise transferred by you, whether by operation of law or otherwise, without our prior written consent, such consent not to be unreasonably withheld or delayed.

21.4 We may assign, sublicence or otherwise transfer this agreement at any time without your consent.

21.5 This agreement contains the entire understanding between the parties concerning the subject matter of the agreement and supersedes all prior communications.

21.6 The failure of either party to enforce any provisions under this agreement will not waive the right of such party thereafter to enforce any such provisions.

21.7 If any term or provision of this agreement is held by a court to be illegal, invalid or unenforceable under the applicable law, that term or provision will be severed from this agreement and the remaining terms and conditions will be unaffected.

21.8 This agreement may be executed in any number of counterparts and all counterparts taken together will constitute one document.

21.9 Each party agrees that this agreement may be electronically signed, and that any electronic signatures appearing on this agreement are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.

21.10 Any warranty, indemnity, or obligation of confidentiality in this agreement will survive termination. Any other term which by its nature is intended to survive termination of this agreement survives termination of this agreement.

21.11 This agreement is governed by, and construed in accordance with, the laws of Australian Capital Territory, Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of Australian Capital Territory.

22. Definitions

22.1 In this agreement, unless the context otherwise requires:

Account(s) means any account(s) set up by you or us through which you and your Users access and use the Platform.

Business Day means a day (except Saturday and Sunday or a public holiday) on which banks are open for general banking business in New South Wales, Australia.

Confidential Information means confidential, proprietary and commercially sensitive information (irrespective of the form or the manner in which the information is disclosed, or the time of such disclosure) including information which:

1. is identified as confidential or ought to have been known to be confidential; and
2. relates to the business affairs and practices, including financial information, business opportunities, business plans, business processes and methodologies

but does not include information, which is in, or comes into, the public domain other than by a breach of this agreement, or which is independently known to the other party as evidenced by its written record.

Consequential Loss means any Loss that does not arise naturally in the ordinary course of things from the event or circumstance giving rise to the Loss.

Consumer Law means the provisions of Schedule 2 to the Competition and Consumer Act 2010 (Cth), as applied under Part XI or under a law of a State or Territory of Australia, or any similar laws which may apply to this agreement.

Customer Content means all content provided by you to Zhoey or input by you, your Users, agents, nominees, and contractors into a Platform in order for Zhoey to provide the Platform, including text, copy, images, documents, data, graphics, Personal Information or multimedia content.

Fees means the fees payable for the Platform, calculated in accordance with your selection at the Point of Purchase and Schedule 1.

Force Majeure Event means any act, event or cause including earthquakes, cyclones, floods, fires, lightening, storms or other acts of God, strikes or industrial disputes, riots, terrorist acts, civil disturbances, breakages of machinery, or industrial conditions, or arising out of any other unexpected and exceptional cause, delays in transportation and dispositions or orders of governmental authority (including public health orders), which:

1. directly or indirectly results in a party being prevented from or delayed in performing any of its obligations under this agreement; and
2. is beyond the reasonable control of that party.

GST has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999.

Initial Term means the initial term you purchase the Platform for, as set out at the Point of Purchase.

Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, designs, patents, circuit layouts, plant varieties, business and domain names, confidential information, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registered, registrable or patentable.

Losses means any judgment, debt, damage, loss, cost, expense or liability howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, or otherwise.

Moral Rights means the rights defined as “moral rights” under the Copyright Act 1968 (Cth) and any other similar right capable of protection under laws of any applicable jurisdiction.

Payment Cycle means the timing of payments for Fees as follows, as the context requires.

1. For the Initial Term, the payment cycle is as set out at the Point of Purchase (e.g. monthly in arrears based on your monthly usage of the Platform in accordance with Schedule 1).
2. For each Renewal Term, the payment cycle is monthly in arrears.

Payment Method means the payment method you select at the Point of Purchase.

Personal Information has the meaning given to in applicable Privacy Laws.

Privacy Law means the Privacy Act 1988 (Cth) and and/or any other equivalent or similar State or Territory legislation as applicable.

Privacy Policy means the Zhoey privacy policy available at /legal/privacy_policy.

Plan means the type of Subscription you have purchased, set out at Schedule 1 and updated by us from time to time on notice to you.

Platform means Zhoey's SaaS platform, as available from time to time that you select at your Point of Purchase and including any underlying software (including source and object code).

Renewal Term has the meaning given to that term in clause 1.5.

Subscription means your subscription to the Platform in accordance with the terms of the agreement.

Taxable Supply has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999.

Term means the Initial Term and each applicable Renewal Term.

Users means your employees, agents, contractors, service providers (including advisors and consultants), and any other persons, entities or other third parties who are authorised, enabled or instructed by you to access and use the Platform on your behalf, whether or not they have been supplied with a user email address and password by you, or us at your request.

22.2 In this document unless the context otherwise requires:

1. clause and subclause headings are for reference purposes only;
2. the singular includes the plural and vice versa;
3. where a word or phrase is defined its other grammatical forms have a corresponding meaning;
4. references to statutes include all statutes amending, consolidating or replacing such statutes;
5. $ means the lawful currency of Australia;
6. any reference to a party to this document includes its successors and permitted assigns; and
7. the use of the word "includes" or "including" is not to be taken as limiting the meaning of the words preceding it.

Schedule 1 Fee Schedule

1. Fees

Booking means any booking facilitated made by an end customer on the Platform in relation to your business, but excludes bookings which have been created and cancelled within one hour.

1.1 Fees will be calculated monthly based on the number of Bookings made in relation to your business via the Platform.

1.2 Depending on the Plan you select at the Point of Purchase, you will either be charged a fixed rate on a Bookings-per-month basis or a pre-determined rate via a monthly plan, as set out below.

1.3 For all Bookings made outside of the corresponding user limit, each will be charged at $1 per Booking.

2. Right to monitor Booking activity

Zhoey reserves the right to monitor your end customer's usage of the Platform for the purposes of calculating the Fees.