This Application Terms and Conditions (Terms) is between Behaviour Zen Pty Ltd (ACN 612 728 275) (referred to as Behaviour Zen) and the entity or individual agreeing to these Terms (referred to as you or your), collectively referred to as the Parties and each a Party. These Terms governs the access and use of the Behaviour Zen software application and services (App) and any related services made available to you (together with the App referred to as Services). You can access the Services by downloading the Behaviour Zen App on any mobile, tablet, console or such other devices which supports the App (Device). The App is available for download on the Behaviour Zen website at www.behaviourzen.com and related websites (Site)
The Site, App and Services contain materials intended for general information purposes only. They do not take into account your own personal circumstances, and Behaviour Zen does not warrant that such information is comprehensive, complete, accurate or up to date. They are not intended to be advice, they are not intended to be relied upon and they are not a substitute for professional advice based on your personal circumstances. Please refer to clause 15 for Behaviour Zen’scomplete disclaimers.
1.1 These Terms form a binding legal agreement betweenyou and Behaviour Zen. By using the Services, you agree to comply with and be legally bound by these Terms. Please read these Terms carefully. If there are any questions, you should contact Behaviour Zen using the contact details at the end of these Terms.
1.2 You acknowledge and agree to these Terms by: (i) ticking ‘I Agree’; (ii) downloading, accessing or using the App or Services; or (iii) making part or full payment for the Services. If you do not agree to these Terms, you should cease accessing or using the Website, App and Services immediately. If you are agreeing to these Terms on behalf of an entity including but not limited to a company, school or other organisations, you represent and warrant that you have the power and authority to enter into and bind such organisation and act on behalf of any person who are using the Services (you and each person using the App collectively referred to as Users). You must ensure any such User using or accessing the Services do so in accordance with these Terms.
1.3 Behaviour Zenreserves the right to make changes to these Terms at any time, effective upon the posting of modified Terms. Behaviour Zenwill endeavour to communicate these changes to Users via email. It is your obligation to ensure that you (and each User where applicable) has read, understood and agree to the most recent Termsavailable on theApp or Site.
1.1 Using the App may be prohibited or restricted in certain countries. If you use the Application outside of Australia, you are responsible for complying with the laws and regulations of the territory from which you access or use the App.
2. ADDITIONAL TERMS AND CONDITIONS
2.1 These Termssupplements and incorporate:
- the Apple Inc. Terms and Conditions, including without limitation, the Licensed Application Under User License Agreement provided therein (Apple Terms); and
- the Android, Google Inc. Terms and Conditions including without limitation the License Agreement and Terms of Application (Android Terms).
3. APPLICATIONAND SERVICES
3.1 The App is the sole and exclusive property of Behaviour Zen.
3.2 Users can download, access and use the App on any supported Devices set out on the relevant App Store and the Site.
3.3 To access the Services, you must subscribe to the Services for a period of time (Subscription) and pay a monthly fee for your Subscription (SubscriptionFee) as set out on the Site and App.You will not be given an Account to access and use the Services until payment is confirmed.
3.4 Behaviour Zen grants Users with a current Subscription a personal, non-exclusive, non-transferable, limited and revocable licence (Licence) to use the App for your own personal or non-commercial use on a Device owned or controlled by you or the applicable User, and not to use the App in any other way or for any other purpose unless otherwise permitted by local fair dealing legislation. All other uses are prohibited unless you or the User obtains Behaviour Zen’s prior written consent.
4. ONLINE SUBSCRIPTION AND ACCOUNT
4.2 Information that is created when you subscribe, such as log in details and passwords (User Information) is stored in servers in Australia. Behaviour Zen will take reasonable steps to ensure that User Information is kept secure and confidential.
Behaviour Zen has implemented and will maintain security systems for the transmission of User Information consisting of encryption and "firewall" technologies that are understood in the industry to provide adequate security for the transmission of such information over the Internet.These measures are intended to prevent unauthorised data infiltration or security breaches. Behaviour Zen does not guarantee the security of any data or User Information stored on a User’s or your Device.
6.1 The price of the App and payment method for the App is set out at the time and place of purchase, in the currency specified at the point of sale.
6.2 You agree to pay to Behaviour Zen the Subscription Fees upfront as required to enable you to access and use the App and Services. Subscription Fees are payable upfront on a monthly or yearly basis as selected by you.
6.3 You will be required to make payment via PayPal by way credit card. The initial payment will be processed upon receipt of the request for a Subscription. You must make further payments prior to the expiry of your Subscription on the relevant periodic basis.
6.4 You acknowledge and agree thatif Behaviour Zen is unable to take payment from your credit card, Behaviour Zen will attempt to contact you via email as soon as Behaviour Zen is aware of the payment failure. Until payment is confirmed, you will not be able to access or use the Services, or your access to the Services may be suspended until Behaviour Zen receives confirmation of payment.
6.5 If payment is not made within 14 days of the last payment date, Behaviour Zen may prevent each User’s access to the Services upon expiry of your period of Subscription without notice to you or the User and you will not be able to access the Services.If payment is not made within 90 days of the last payment date, any information or data stored on your Account will be deleted and will not be recoverable.
6.6 All amounts are stated in Australian dollars and unless otherwise stated, all amounts are exclusive of GST.
6.7 If you make a payment by credit card, you warrant that the information you provide to us is true and complete, that you are authorised to use the credit card to make the payment, that your payment will be honoured by your card issuer, and that you will maintain sufficient funds in your account to cover the purchase price.
6.8 Behaviour Zen’s pricing structure or payment methods may be amended from time to time at its sole discretion.
7. CANCELLATION OF REGISTRATION
7.1 If you would like to cancel your Subscription, you may do so by contacting Behaviour Zen using the contact details below. The User’s access to your Account and the Services will terminate at the end of the month that Behaviour Zen is notified of your intention to terminate.
7.2 It is the User’s responsibility to retrieve all necessary data from their Account prior to termination.
7.3 Behaviour Zenmay terminate the Terms immediately, in itssole discretion, if:
- you breach any of these Terms;
- Behaviour Zenreasonably suspect that you are attempting to reverse engineer the Appthat is provided to you;
- where there is an Insolvency Event; or
- for any other reason outside of Behaviour Zen’scontrol which has the effect of compromising itsability to provide you with the required App or Services within a required timeframe.
7.4 On termination or completion of the Services, Behaviour Zenmay retain your User Information, data and documents (including copies) as required by law or regularity requirements. Your express or implied agreement to the Terms constitutes your authority for Behaviour Zento retain or destroy documentsin accordance with any applicable statutory periods.
8. USER OBLIGATONS
8.1 You warrant that all information provided to Behaviour Zen is true, accurate and complete.
8.2 You acknowledge and agree that:
- each User uses the Services at their own risk;
- if there is any unauthorised use of your passwords or any other breach of security, you will immediately notify Behaviour Zen of such activity;
- the accessibility and reliability of the App and Services is dependent on the User’s choice of web-browser, internet connection and Device operating system;
- it is your responsibility to determine that the Services meet your needs and are suitable for the purposes for which the Services are used; and
- you are responsible for obtaining any consents, licences, permits and permissions from other parties as required for the Services to be provided, at your cost, and for providing Behaviour Zen with the necessary consents, licences and permissions.
8.3 You acknowledge and agree that each User:
- is authorised to use the Servicesand to access any User Information or other data that theyinput (Data) into the App or provide to Behaviour Zen as required for the Services;
- will use the Services for its own lawful internal business purposes, in accordance with these Terms; and
- will keep all usernames and passwords required to access the Services and their Account secure and confidential.
8.4 Behaviour Zen has no responsibility to any person or entity other than you and nothing in these Terms confers, or purports to confer, a benefit on any person or entity other than you. If you use the Serviceson behalf of or for the benefit of any third party, you agree that:
- you are responsible for ensuring that you have the right to do so;
- Behaviour Zen does not warrant the fitness for purpose or suitability of the App and Servicesfor such third party’s purposes and third parties may not rely on Behaviour Zen for any purpose;
- you are responsible for authorising any person who is given access to your User Information and any of your Data, and you agree that Behaviour Zen has no obligation to provide any person or entity with access to such Data without authorisation from you and may refer any requests for access to the Data to you to address; and
- you will indemnify Behaviour Zen, on first demand, against any and all claims, expenses, liabilities or lossesarising out of in connection with Behaviour Zen’s refusal to provide any persons with access to your Data in accordance with these Terms and Behaviour Zen making Data available to any person with authorisation from you.
8.5 You remain solely responsible for complying with all applicable laws. It is your responsibility to ensure that the storage of and access to your Data via the Site and the App comply with laws which are applicable to you, including any laws requiring you to retain records of your Data.
8.6 Each User must have their own safeguards and back up processes in place to recover from any failures or loss of Data which might occur whilst using the Servicesand protecting the confidentiality of your Data with suitable management procedures, as you may see fit.
9. PROHIBITED USE
9.1 You acknowledge and agree that you will not:
- attempt to circumvent or disable the Appor any technology features or measures in the Appby any means or in any manner;
- attempt to modify, copy, adapt or reproduce the Appexcept as necessary to use it for normal operation;
- attempt to decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the App;
- distribute, encumber, sell, rent, lease, sub-license, or otherwise transfer, publish or disclose the Servicesto any third party (except as permitted under these Terms);
- remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Appor used in connection with the App or Services;
- use the App or Servicesin any manner to aid in the violation of any third party Intellectual Property, including but not limited to another’s copyrights, trade secrets, and patents;
- take any action that interferes, in any manner, with Behaviour Zen’s rights with respect to the App and Services;
- attempt to undermine the security or integrity of Behaviour Zen’s computing systems or where the Appis hosted by a third party, that third party’s computing systems and networks;
- use, or misuse, the Appin any way which may impair the functionality of the Site, App, or other systems used to deliver the Appor impair the ability of any other user to use the Site or App; and
- transmit, or input into the Site or App, any files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of any law (including any content protected by copyright or trade secrets which you do not have the right to use).
9.2 Title, ownership rights and Intellectual Property rights in and to any content displayed on the Site, the App or accessed through the Site, the App or the Services, are the property of the applicable content owner and may be protected by applicable copyright or other law. These Terms gives you no rights to such content.
9.3 You acknowledge that any breaches of this clause may lead to termination of these Terms.
11. INTELLECTUAL PROPERTY
11.1 Title to, and all Intellectual Property rights in the Site, and the App, and any documentation relating to the Services, remain the property of Behaviour Zen and its successors and permitted assigns. Your right to use such Intellectual Property is subject to these Terms.
11.2 You grant Behaviour Zen a non-exclusive, worldwide licence to use any Intellectual Property which subsists in the Data you provide in connection with the use of your Account and the provision of the Services, including copyright in any third party logos or other materials.
11.3 Title to and all Intellectual Property rights in any Data you input into the Appremain your property. However, your access to the Data and continued use of the App and Servicesis contingent on payment of your Subscription Fee.
11.4 You grant Behaviour Zen a licence to use, copy, transmit, store, and back-up your information and data for the purposes of enabling you to access and use the Appand for any other purpose related to provision of Services to you and the performance of Behaviour Zen’sobligations under these Terms.
11.5 It is the responsibility of the User to maintain copies of anydata which is inputted into the App. Behaviour Zen will endeavour to prevent data loss, however, as data submitted via the App is hosted by third parties, Behaviour Zendoes not make any guarantees that there will be no loss of data and does not represent or warrant that access to the App, Services the Data or an Account will be available without interruption.
11.6 If the User enables third-party applications for use in conjunction with the App, the User acknowledges that Behaviour Zen may allow the providers of those third-party applications to access any inputted data as required for the interoperation of such thir0d-party applications with the App. Behaviour Zen is not responsible for any disclosure, modification or deletion of data resulting from any such access by third-party application providers.
12.1 Behaviour Zen may, from time to time, issue updated versions of the Appand the Appmay automatically connect to Behaviour Zen’s or third-party servers via the internet to check for available updates to the App, and may either (i) automatically electronically update the version of the Appthat you are using on your Deviceor (ii) give you the option of downloading it. By installing the Appyou hereby agree to automatically request and receive updates from Behaviour Zen or third-party servers. You acknowledge and agree that these Terms will apply to all such updates unless separate terms are provided with the update and by downloading the update those supplementary terms will apply.
12.2 The Appmay contain automatic communications features which relay certain non-personally identifiable information to Behaviour Zen in connection with the operation of the App. This information may include your Appsettings and what version of the Appyou are using. Behaviour Zen may use this information for research purposes including statistical analysis of aggregate customer behaviour.
12.3 Behaviour Zen may provide support to the User. If you require technical support, please contact Behaviour Zen using the details at the bottom of these Terms.
13. AVAILABILITY OF SITE AND APP
13.1 Whilst Behaviour Zen intends that access to the App and Services should be available on a full-time basis, it is possible that the Site, App or Services is unavailable to due to maintenance or other development activity.
13.2 Where possible, Behaviour Zen will provide notice to its Users of any maintenance or development activity in advance by providing Users notice via email.
14. FEEDBACK AND DISPUTE RESOLUTION
14.1 Your feedback is important to Behaviour Zen. Behaviour Zenseeks to resolve your concerns quickly and effectively. If you have any feedback or questions about the App orServices, please contact Behaviour Zen using the contact details at the bottom of these Terms.
14.2 If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:
- The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting). If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of [State] to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.
14.3 Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.
15. LIMITATION OF LIABILITY AND DISCLAIMERS
15.1 The Parties agree that to the fullest extent applicable, Behaviour Zen’s liability for the Services provided via the Site andthe App is governed by the Australian Consumer Law to the extent applicable.
15.2 Behaviour Zen’s liability is covered by the relevant insurance policy. Behaviour Zen will take steps to maintain such policies after the completion of the Services and termination of these Terms, for period as Behaviour Zen may be required under law.
15.3 You acknowledge that whilst Behaviour Zen will take reasonable steps to ensure that the Serviceswill be fit for the purposes as advertised, Behaviour Zen gives no guarantees that:
- the Appwill meet your requirements as the functionality of the Appis dependent upon configuration on your Device and other components;
- the Appwill work in each of your desired use case scenarios; and
- the Appcan be executed on every operating system, as it is impossible to test each variant.
15.4 The Servicesuses third party hosting services which are provided without any sort of warranties, and Behaviour Zen cannot ensure that these third party hosting services are provided free of defect or without interruption.
15.5 Behaviour Zen does not warrant that use of the Serviceswill be uninterrupted or error free. The operation of the Appis dependent on public telephone services, computer networks, the Internet, which can be unpredictable and may from time to time interfere with the use of the Services. Behaviour Zen accepts no responsibility for any such interference or prevention of your use of the Services.
15.6 Behaviour Zen does not provide any medical, psychological, health or related advice. You agree and will procure the Users (as applicable) to agree that any information, insights or guidance contained on the Site, App or otherwise provided as part of the Services are not an attempt to practise medicine, psychology or health science or provide any medical, psychological or health advice. The Services must not be used or relied on for any diagnostic or treatment purpose and should not be used as a substitute for professional diagnosis and treatment. Any information that is contained in any of our materials, whether provided by Behaviour Zen via the Site, App or through the provision of Services or by contract from any third parties, is simply for your convenience. The Information contained in our Site, App and Services is general information only and not intended to be relied upon and is not a substitute for professional medical, psychological or health advice based on personal circumstances.
15.7 You are solely responsible for determining the suitability of any Services and you rely on any information provided to you through the Site, App and Services at your own risk.
15.8 All risk arising out of the use or performance of the Servicesremains with you. You understand and agree that the use of the Services, material or data downloaded or otherwise obtained through the use of the Services, is at your own discretion and risk and that you will be solely responsible for any infections, contaminations or damage to your computer, system or network. Behaviour Zen is not responsible or liable for delays, inaccuracies, errors or omissions arising out of your use of the Services, any third party software or operating system.
15.9 To the maximum extent permitted by applicable law, Behaviour Zen and its licensors disclaim all warranties, express or implied, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose and non-infringement of third party intellectual property rights or lack of viruses, for the App and Services. In no event will Behaviour Zen or its licensors be liable for any consequential, incidental, indirect, special, punitive, or other damages whatsoever arising out of these Terms, the use of or inability to use the Services, even if Behaviour Zen has been advised of the possibility of such damages.
15.10 The User acknowledges that Behaviour Zen may pursue any available equitable or other remedy against you as a result of a breach by the User of any provision of these Terms.
15.11 Behaviour Zen or its licensors’ liability for breach of any of its obligations under these Terms for the Services, or breach of any warranty implied by law, will be limited, to the extent permitted by law, to the total price paid for the Subscription to execute the App and use the Services. Behaviour Zen’s total liability to you for all damages in connection with the Serviceswill not exceed the price paid by you under these Terms for the Services. The foregoing limitations, exclusions and disclaimers will apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
15.12 The User acknowledges and agrees that Behaviour Zen will not be liable for any non-compensatory damages including punitive, aggravated, multiple, exemplary, liquated or any other non-compensatory damages or the consequences of non-payment.
16. AUSTRALIAN CONSUMER LAW
16.1 Certain legislation including the Australian Consumer Law (ACL) in the Consumer and Competition Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by us to you which cannot be excluded, restricted or modified (Statutory Rights).
16.2 Nothing in these Terms removes your Statutory Rights as a consumer under the ACL. You agree that Behaviour Zen’sliability for Services provided to consumers is governed solely by the ACL and these Terms. Behaviour Zenexclude all conditions and warranties implied by custom, law or statute except for your Statutory Rights.
16.3 Except for your Statutory Rights, all material and work is provided to you without warranties of any kind, either express or implied; and Behaviour Zenexpressly disclaim all warranties of any kind including but not limited to implied warranties of merchantability and fitness for a particular purpose.
16.4 If you are a consumer as defined in the ACL, the following applies to you: We guarantee that the services we supply to you are rendered with due care and skill; fit for the purpose that we advertise, or that you have told us you are acquiring the services for or for a result which you have told us you wish the services achieve, unless we consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time. To the extent we are unable to exclude liability; our total liability for loss or damage you suffer or incur from our services is limited to us re-supplying the services to you, or, at our option, us refunding to you the amount you have paid us for the services to which your claim relates.
17.1 You will be liable for and agree to indemnify, defend and hold us harmless for and against any and all claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:(i) any information that is not accurate, up to date or complete or is misleading or a misrepresentation; (ii) any breach of these Terms; (iii) and any misuse of the Servicesand/or Licence; from or by you, your employees, contractors or agents.
17.2 You agree to co-operate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of theServicesand Licence including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us.
17.3 The obligations under this clause will survive termination of these Terms.
18.1 Any notice required or permitted to be given to the User under these Terms will be addressed to the User at the email address provided by the User when requesting a Licence.19. RELATIONSHIP OF PARTIES
19.1 Neither Party is authorised to bind the other Party in any way without prior written consent of the other Party.
19.2 The Parties acknowledge and agree that they will not seek to bind the other Party other than with the prior written consent of the other Party.
20. RIGHTS OF THIRD PARTIES
20.1 Any person or entity who is not a party to these Terms has no right to benefit under or to enforce any of these Terms.
21.1 These Terms are personal to you. You must not assign or deal with the whole or any part of its rights and/or obligations under these Terms without the prior written consent of Behaviour Zen.
21.2 Any purported dealing in breach of this clause is of no effect.
22. POWERS, RIGHTS AND REMEDIES
22.1 Except as expressly stated to the contrary in these Terms, the powers, rights and/or remedies of a Party under these Terms are cumulative and are in addition to any other powers, rights and remedies of that Party. Nothing in these Terms merges, extinguishes, postpones, lessens or otherwise prejudicially affects any power, right, or remedy that a Party may have at any time against the other Party to these Terms or any other person.
23. Force Majeure
23.1 If performance of the Services or any obligation under these Terms is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (Force Majeure), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders of acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
24. FURTHER ASSURANCE
24.1 Each Party must from time to time and in a timely manner do all things reasonably required of it by another Party to give effect to these Terms.
25.1 If any provision of these Terms is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provisions in question will not be affected.
26. ENTIRE AGREEMENT AND UNDERSTANDING
26.1 In respect of the subject matter of the Terms, the Terms contain the entire understanding between the Parties. Any previous oral and written communications, representations, warranties or commitments are superseded by the Terms and do not affect the interpretation or meaning of the Terms and each of the Parties has relied entirely on its own enquiries before entering into the Terms.
27. GOVERNING LAW AND JURISDICTION
27.1 These Terms are governed by the laws of Western Australia and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Western Australia.
Insolvency Event means the occurrence of any of the following events in which a Party:
- is unable to pay its debt as they fall due;
- makes or commences negotiation with a view to making, a general rescheduling of its indebtedness, a general assignment, scheme or arrangement or composition with its creditors;
- Takes any corporate action or any steps are taken or legal proceedings are started for: i. Its winding-up, dissolution, liquidation or re-organisation, other than to reconstruct or amalgamate while solvent on terms approved by the other Party (which approval will not be unreasonably withheld); or ii. The appointment of a controller, receiver, administrator, office manager, trustee or similar officer of it or of any of its revenues and assets; or
- seeks protection or is granted protection from its creditors, under any applicable legislation.
Intellectual Propertyincludes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, company names or internet domain names.