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Last Updated: 25 August 2026
(a) These Subscription Terms & Conditions (Terms) govern your access to, and use of the services offered by Zenu Realestate Pty Ltd ABN 37 169 473 456 (Zenu, we, us, or our).
(b) Without limiting the way in which you may become bound by this Agreement, you will be deemed to have accepted and will be bound by the terms and conditions of this Agreement by signing a document agreeing to be bound by this Agreement, by checking the “I agree to the Terms and Conditions” checkbox and/or clicking the “Sign Up” button on your computer screen to electronically indicate your acceptance of this Agreement, or by proceeding with any use of the Services. These Terms constitute a binding legal agreement between you and Zenu.
(c) You warrant that you are at least 18 years of age and have the legal capacity to enter into these Terms.
(d) If you are entering into these Terms on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these Terms. If you do not have such authority, you must not accept these Terms or access or use the Services.
By accepting these terms, you acknowledge and agree that:
1. should you terminate your Subscription and this Agreement before the expiry of the Subscription Term, you may be liable to pay an early termination fee calculated under clause 17.5; and
2. you have read and understood our terms on the automatic renewal of your Subscription Term set out in clause 17.2.
In these Terms, the following definitions apply:
Account means the user account created by the Subscriber to access and use the Services, including any sub-accounts created for Authorised Users.
Agreement means these Terms, together with the Proposal, any Subscription Licence and any other terms incorporated by reference.
Authorised User means an individual who is authorised by the Subscriber to access and use the Services under the Subscriber’s Account, and who has been granted access credentials by the Subscriber.
Content means all information, data, text, messages, software, sound, music, videos, photographs, graphics, images, and tags that are created, uploaded, posted, sent, received, stored or otherwise made available through the Services, including Subscriber Content but excluding Third Party Materials.
CRM Services means the customer relationship management services provided to you by Zenu through the Platform.
Data means any data inputted by you or with your authority into the Services, including Personal Information as defined under the Privacy Act 1988 (Cth).
Early Termination Fee means the fee payable by the Subscriber upon early termination of this Agreement as calculated in accordance with clause 17.5 representing a genuine pre-estimate of Zenu’s loss resulting from early termination.
Evaluation Subscription means a time-limited subscription to access and use the Services for evaluation purposes only, which may be offered by Zenu at its discretion.
Fair Use Policy means Zenu’s policy on the fair use of its Platform and Services set out in clause 23 of this Agreement.
Feedback means any ideas, suggestions, documents, or proposals provided by you to Zenu relating to the Services.
Intellectual Property Rights means all intellectual property rights, including all copyright, patents, trademarks, design rights, trade secrets, domain names, know-how, circuit layout rights, moral rights and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application, existing in Australia or elsewhere, now or in the future.
Integration Services means the services provided by Zenu to enable the integration of the Services with third-party platforms.
Mapping Services means third-party mapping and geolocation services including but not limited to Google Maps Platform and Mapbox services that may be integrated with the Platform to provide mapping functionality.
Messages means any communication sent using the CRM Services.
Messaging Services means the messaging and related services provided to you by Zenu through our CRM Services.
Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth).
Platform means Zenu’s proprietary software platform through which the Services are delivered.
Product-Specific Terms means any additional terms and conditions that Zenu makes available for a particular Service, product or feature as incorporated into this Agreement under clause 3(i).
Proposal means the document titled Proposal or similar, provided to you during the onboarding process via PandaDoc or similar platform, which specifies your specific Subscription details including but not limited to Subscription Term, Billing Frequency, included Services, and applicable Fees. The Proposal forms part of this Agreement.
Sensitive Information has the meaning given to that term in the Privacy Act 1988 (Cth).
Services means the services we provide to you from time-to-time which are better described on the Site, your Subscription Licence (when you sign up) and include access to, and use of our Content and includes, where applicable, the CRM Services and Website Customisation Services.
Site means the website located at the URL www.zenu.com.au, and associated sub-pages, scripts, APIs, and source code that make up the website.
Subscriber means you, a subscriber to the Services being the party whose details are specified when creating the Account and therefore the party to this Agreement with Zenu and includes Authorised Users.
Subscriber Dashboard means a general user interface accessible to Subscribers for the use of the Services.
Subscriber Content means:
(a) Messages; and
(b) any content that you contribute to us for the purposes the delivery of the Services to you by us or your use of the Services.
Subscription means the fee-based subscription to access our Services as specified on our Site and as agreed to you in the process of setting up an Account governed by the terms of this Agreement.
Subscription Fees means the fees payable to Zenu for the licence to use the Services and access the Content accepted by you when you accept the Proposal and otherwise in accordance with this Agreement. SMS usage charges are additional to Subscription Fees but charged at the same time as the Subscription Fees. Subscription Fees are not adjusted pro-rata for any Subscription which commences at anytime after the first day of the month.
Subscription Licence means your specific licence terms which detail the inclusions, exclusions, usage rights, limits of your licence and other rights that form part of your Subscription.
Subscription Term means the period of time you will have access and use of the Services and Content specified in your Proposal and/or Subscription Licence, which details are incorporated and form part of this Agreement. Unless otherwise specified in your Proposal, the Subscription Term is 36 months from the date of your acceptance of the Proposal.
Taxes means taxes, levies, duties or similar governmental assessments of any nature, including, for example, any sales, use, GST, value-added, withholding, or similar taxes, whether domestic or foreign, or assessed by any jurisdiction.
Temporary API Access means the limited-time use of Zenu’s Third-Party API Keys provided to Subscribers for a maximum period of 30 days to facilitate service setup and testing.
Third Party API Key means authentication credentials (including API keys, access tokens, or similar credentials) required to access and use third-party services including Mapping Services.
Third Party Materials means textual, graphical, audio or like materials, together with any software, which is incorporated into the Services.
Third Party Rights means Intellectual Property Rights owned by or licensed to third parties including:
(a) computer programs owned by third parties and licensed by us and any of our subcontractors to provide the Services or develop a Deliverable; and
(b) any literary, dramatic, artistic and musical works owned by third parties and licensed to us for inclusion in the Services.
Third Party Software means any computer program or modification or enhancement of a computer program, which is not owned by us, and which is used by us in connection with performing the Services, or which is at any time supplied to you by us or our subcontractors or incorporated into the Services.
Website means the one website template and theme you choose which may be customised by you using our Website Customisation Tools or customised by us (at your request) using our Website Customisation Services.
Website Customisation Services means the fee-for-service customisation of your Website at any time during the Subscription Term, including but not limited to design changes, functionality additions, and content updates.
Website Customisation Tools are the self-service customisation tools that allow you to customise your chosen Website.
(a) Subject to the terms and conditions of this Agreement, the provision of the Services constitute Zenu’s only obligation to you. The specific Services included in your Subscription are those set out in your Proposal. Zenu will provide the Services in accordance with its obligations under laws and government regulations applicable to Zenu’s provision of the services to its subscribers generally, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data, without regard to your particular use of the Services and subject to your use of the Services in accordance with this Agreement.
(b) Zenu may modify the Services or discontinue the Services (or part thereof) as follows:
(i) for minor modifications that do not materially affect functionality, Zenu will provide at least 14 days’ prior written notice;
(ii) for material modifications that substantially reduce functionality, Zenu will:
i. provide at least 60 days’ prior written notice;
ii. explain the nature and impact of the modifications;
iii. offer you the option to terminate this Agreement without penalty if you do not accept the modifications; and
iv. if you have pre-paid for any Services, provide a pro-rata refund of the unused portion of your pre-paid Subscription Fees if you choose to terminate.
(c) For discontinuation of Services, Zenu will:
(i) provide at least 90 days’ prior written notice;
(ii) assist with reasonable transition support to alternative services; and
(iii) provide a pro-rata refund of any pre-paid Subscription Fees for the discontinued Services.
(d) Zenu will not modify or discontinue the core functionality of the following essential services during your Subscription Term without your written consent:
(i) CRM contact management and pipeline tracking;
(ii) sales trust accounting module;
(iii) property listing management and portal integrations; and
(iv) Website hosting and basic customisation tools.
(e) Any modification or discontinuation will be implemented in a manner that minimises disruption to your business operations.
(f) You acknowledge and agree that Zenu does not guarantee that the Services will always be accurate, reliable, or error-free, subject to any guarantees that cannot be excluded under the Australian Consumer Law.
(g) You acknowledge and agree that all Intellectual Property Rights which subsist in the Services and Content, including any data, material, or information created by or on behalf of Zenu and displayed or made available to you, together with any adaptations, enhancements or new versions of the same (Zenu Intellectual Property Rights) are the exclusive property of Zenu.
(h) Zenu may introduce new features or services from time to time. Such features or services will be subject to the terms of this Agreement unless otherwise specified.
(i) Product-Specific Terms:
(i) Some Services, products or features are subject to additional Product-Specific Terms. Where you access, order or use any such Service, product or feature, (whether as part of the Proposal or at some other time) the applicable Product-Specific Terms form part of, and are incorporated by reference into, this Agreement.
(ii) Zenu will make the current version of each set of Product-Specific Terms available on the Site or at the point of order (including at checkout), and may require you to accept them before you place an order. Zenu may update Product-Specific Terms from time to time in accordance with clause 31.
(iii) To the extent of any inconsistency, the following order of precedence applies:
i. your Proposal and any Subscription Licence;
ii. the applicable Product-Specific Terms, in relation to the Service, product or feature to which they apply; and
iii. the balance of this Agreement.
(a) You are required to create an Account in order to use some or all of the Services.
(b) When you create an Account with Zenu you agree:
(iii) that the Account will be created using Zenu’s online sign up process, or any other method specified by Zenu from time to time;
(iv) to keep confidential and secure any password used to access the Account;
(v) and you warrant that all information provided by you to Zenu in the setup of the Account is true and correct in every detail; and
(vi) that you will only use the Account for the purposes of using the Services, and for no other purpose.
(c) During the registration process, you may be asked to select a password for your account. You agree to keep your password confidential at all times and must not disclose it to any third parties. You agree to be fully responsible for activities that relate to your account or your password.
(d) Zenu reserves the right to introduce mandatory security features such as two-factor authentication (2FA) to ensure the security of your Account. Zenu will provide at least 30 days’ notice before implementing mandatory security features. A failure to implement security features mandated by Zenu after such notice period constitutes a breach of these Terms. If you suffer loss or damage as a direct result of not implementing Zenu’s security features after being notified, Zenu may suspend access to your Account and, to the extent permitted by law, Zenu will not be liable for any loss or damage you suffer as a result of unauthorised access to your Account or such suspension.
(e) If you have reason to believe that your password has been obtained by someone else without your consent, you must inform us immediately to disable your account. If a third party accesses your account because your credentials are compromised, we are not liable to you for that access, except to the extent it was caused by Zenu’s breach of this Agreement or negligence, and except for any liability that cannot be excluded under the Australian Consumer Law. If you become aware of your credentials being compromised, you must advise us immediately.
(f) We reserve the right to suspend or terminate your Account with us in the event of your credentials being compromised.
(g) You acknowledge that we may receive commissions, incentives, fees, rebates, payments or any other benefits from third parties as part of the delivery of the Services to you, including without limitation, benefits from any utility, finance institution, insurance company, conveyancer, solicitor or other associated service. Zenu will disclose the existence of such arrangements in accordance with applicable law, including any disclosure requirements under the Corporations Act 2001 (Cth) and the Australian Consumer Law.
(a) In consideration for the payment of Subscription Fees, Zenu grants to you a non-exclusive, non-transferable, revocable licence (Licence) to: (a) access and use the Services; and (b) to allow your employees and personnel to access and use the Services (as Authorised Users) subject to the terms of this Agreement.
(b) Notwithstanding clause 5(a), Zenu may refuse to grant a Licence to any person based on reasonable commercial considerations, including but not limited to credit risk, history of non-compliance with these Terms, or where Zenu reasonably believes the Services may be used for purposes that violate applicable laws or these Terms.
(c) You may only sublicense or authorise your Authorised Users to access and use the Services on the condition that they also agree to be personally bound by this Agreement (and will be deemed Users). A User may not otherwise sublicense, deliver, transfer or assign the Licence to any other person except with the written permission of Zenu. Each User may be required to set up a separate Account with their own separate username and password.
(d) You are primarily responsible and liable for the acts and omissions of all Authorised Users in relation to access and use of the Services and you are primarily responsible for the compliance of Authorised Users with the terms of this Agreement. You indemnify and hold harmless Zenu against all losses and damages Zenu incurs as a result of an act or omission of an Authorised User in breach of this Agreement.
(e) The Licence granted herein does not permit reverse engineering, decompiling, or disassembling of the Services or any part thereof.
(a) We may, at our sole discretion, offer you free trials for selected features of the Services. Once your free trial period ends, your ability to access and use the Services will terminate. Zenu reserves the right to determine if you are eligible for a free trial and to discontinue any free trial without notice at our sole discretion. On termination access to (including access to any of our Content) and use of the Services will immediately cease.
(b) A Subscriber may access and use the Service during the Evaluation Subscription, but only for its own benefit on an evaluation basis to determine whether to purchase an ongoing subscription to the Service and in accordance with the terms and conditions of this Agreement.
(c) Upon expiration of the Evaluation Subscription, you will be prompted to purchase a paid Subscription. If you do not purchase a Subscription within 14 days after the expiration of the Evaluation Subscription, your access to the Services will be terminated, and any data you have entered may be deleted after a further 30 days. Zenu will provide notice before deleting your data, and you may request a copy of your data during this period in accordance with clause 18.
(a) If your Subscription Licence includes, as part of the Services, Website Customisation Services, or you request Website Customisation Services as a separate service from us, then this clause 7 and 8 apply to the provision of the Website Customisation Services.
(b) You undertake to ensure that any materials you provide us including any Subscriber Content you provide to us for incorporation into the Website:
(i) does not infringe the Intellectual Property Rights of any person;
(ii) does not comprise and cannot be used for any purpose or activity of an illegal, fraudulent or defamatory nature;
(iii) complies with all applicable laws;
(iv) does not contain any misleading or deceptive statements regarding property or services; and
(v) where it contains Personal Information of third parties, has been collected with appropriate consent or other lawful basis.
(c) You will indemnify us in respect of any losses or liability incurred as a result of a breach of your obligations pursuant to clause 7(b).
(d) You shall ensure that you provide those things specified in this clause promptly after a request from us. We shall not be liable for the late delivery of the Web Customisation Services where you have not complied with this clause.
(e) This Agreement may contemplate the creation of a Website viewable by website browsers most commonly used at the time you created your Account. Compatibility is defined as all critical elements of the Website being viewable in each of the browsers commonly used at the time you create an Account.
(f) You are aware that some advanced techniques on the internet, however, may require a more recent browser version, screen resolution and brand or plug-in. You are also aware that as new browser versions are developed, they may not be backward compatible.
(g) If additional Website Customisation Services are necessary to accommodate specific browsers, plug-in technology, screen resolutions, or platforms, additional fees may arise (Additional Fees). We will provide you with a quote for the Additional Fees, and if you accept and pay the Additional Fees we will undertake the additional Website Customisation Services.
(h) You agree that you shall not remove, deface or alter any attribution to Zenu that appears on your Website.
(a) As part of the Services, Zenu provides Website Customisation Services that allow you to create, customise and manage your Website.
(b) You acknowledge that:
(i) while Zenu provides templates and tools via its Website Customisation Tools, you are responsible for the Subscriber Content and compliance of your Website with these terms and all applicable laws, including but not limited to real estate industry regulations, privacy laws, and consumer protection laws;
(ii) Website hosting availability is subject to reasonable downtime for maintenance, upgrades and patches and events outside the control of Zenu. Zenu will use reasonable efforts to: (a) provide advance notice of scheduled maintenance; (b) conduct maintenance during off-peak hours where practicable; and (c) restore services promptly in the event of unscheduled downtime;
(iii) Zenu retains all intellectual property rights in the templates and Website Customisation Tools that make up the Website Customisation Services.
(a) The CRM Services allow you to manage your real estate contacts and automate certain business processes.
(b) You warrant that:
(i) you have the right to input and process any contact data, including having obtained all necessary consents or having another lawful basis for collection, use, and disclosure of Personal Information;
(ii) you will comply with all applicable privacy laws in relation to contact data, including the Privacy Act 1988 (Cth) and the Australian Privacy Principles;
(iii) you will not use the CRM Services for any unlawful purpose;
(iv) you will maintain accurate records of consent for direct marketing communications as required by the Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth);
(v) you will promptly honor opt-out requests and maintain appropriate suppression lists; and
(vi) you will ensure that all direct marketing communications comply with the Spam Act 2003 (Cth), including identification and unsubscribe requirements.
(c) If your Proposal includes the Sales Trust module, one (1) Sales Trust user licence is included with your CRM subscription.
(d) Additional Sales Trust user licences may be purchased at the rate specified in your Proposal or as otherwise communicated to you.
(e) Each Sales Trust user licence requires installation on a Windows machine operating system server or similar set up.
(a) Zenu may provide Integration Services with third-party platforms.
(b) You acknowledge that:
(i) third-party integrations are subject to the third-party’s terms;
(ii) Zenu is not responsible for third-party service availability or functionality;
(iii) data sharing between platforms is subject to both Zenu’s and the third-party’s privacy policies.
(c) You are responsible for:
(i) reviewing and complying with third-party terms before enabling integrations;
(ii) ensuring you have appropriate authority to share data with third-party platforms;
(iii) configuring integration settings to comply with privacy laws and your privacy obligations.
(d) Zenu will:
(i) use reasonable efforts to maintain the functionality of integration points within its control;
(ii) provide reasonable notice of any material changes to integration capabilities;
(iii) implement reasonable security measures for data transfers within its control.
(a) Where we consider it necessary to use Third-Party Materials, Third-Party Software or Third Party Rights (collectively, Third Party IP) to provide the Services, we will use reasonable endeavours to obtain the required approvals, consents and licenses to utilise the Third Party IP.
(b) You acknowledge and agree that you do not obtain any rights in any Third Party IP other than the licence to use the Third Party IP as incorporated into the Services by us.
(c) Where the provision of Third Party IP incurs a fee at a time after the creation of an account, we will:
(i) provide you with at least 30 days’ prior written notice of the additional fee;
(ii) explain the reason for and amount of the additional fee; and
(iii) give you the option to discontinue use of the specific Third Party IP if you do not wish to pay the additional fee. If you continue to use the Third Party IP after notice of the fee, the Fees payable under this Agreement are deemed to be varied to include such fee.
(d) You are responsible for ensuring that your use of any Third Party IP incorporated into your Website complies with the relevant third party’s terms of service or license agreements.
(e) Where Mapping Services require Third-Party API Keys that you must obtain directly from service providers, the provisions of clauses 11.2 to 11.7 apply.
(f) Any fees imposed by mapping service providers are separate from and additional to the Subscription Fees payable under this Agreement.
(g) Zenu may provide Temporary API Access as specified in clause 11.3, but this does not create any ongoing obligation to provide such access beyond the specified period.
(a) To access Mapping Services through the Platform, you must obtain and maintain your own Third-Party API Keys directly from the relevant mapping service providers.
(b) You acknowledge that you will have a direct contractual relationship with mapping service providers and must comply with their respective terms of service, usage policies, and billing arrangements.
(a) Zenu may, at its sole discretion, provide Temporary API Access using Zenu’s Third-Party API Keys for up to 30 days to facilitate your initial setup and testing of Mapping Services.
(b) Temporary API Access is provided on an “as available” basis without warranty and may be suspended or terminated by Zenu at any time without notice.
(c) You must obtain your own Third-Party API Keys before the expiry of the Temporary API Access period. Failure to do so will result in the suspension of Mapping Services functionality.
(a) You are solely responsible for:
(i) obtaining, maintaining, and securing your Third-Party API Keys;
(ii) all costs, usage limits, billing, and compliance with the mapping service provider’s terms;
(iii) ensuring your API keys have appropriate usage limits and billing configured;
(iv) monitoring and managing API usage and associated costs;
(v) maintaining required attribution and following mapping service provider policies;
(vi) obtaining necessary consents from end users regarding data sharing with mapping service providers; and
(vii) staying current with any changes to mapping service provider terms.
(a) Zenu’s integration with Mapping Services does not constitute an endorsement of these services.
(b) Zenu is not responsible for:
(i) the availability, accuracy, or performance of Mapping Services;
(ii) your API costs, usage violations, or billing disputes with mapping service providers;
(iii) service interruptions, outages, or data issues from mapping service providers;
(iv) your compliance with mapping service provider terms of service; or
(v) any claims, damages, or costs arising from your use of Mapping Services.
(a) You agree to indemnify and hold Zenu harmless from any claims, damages, costs, or liabilities arising from:
(i) your use of Mapping Services or Third-Party API Keys;
(ii) your violation of mapping service provider terms of service;
(iii) any disputes with mapping service providers; or
(iv) any data privacy or security issues related to your use of Mapping Services.
(a) Zenu reserves the right to disable Mapping Services integrations in your Account if:
(i) Zenu becomes aware of violations of mapping service provider terms;
(ii) your Third-Party API Keys become invalid or suspended;
(iii) you fail to obtain your own Third-Party API Keys within the Temporary API Access period; or
(iv) continued provision of Mapping Services would expose Zenu to liability.
(a) You grant us a non-exclusive, royalty-free license to use your name and logo, together with a summary of the Services provided to you, for our marketing purposes including but not limited to case studies, marketing materials, and demonstration materials.
(b) We will:
(i) use your name, logo, and information in a professional manner;
(ii) not misrepresent the nature of our relationship;
(iii) comply with any reasonable brand guidelines you provide to us; and
(iv) upon your written request, cease using specific materials featuring your name and logo in future marketing.
(c) This license survives termination of this Agreement but may be revoked by you upon 30 days’ written notice to us.
(a) We will take all reasonable steps to maintain appropriate security over and protect your Data in our possession against misuse, interference, loss, unauthorised access, modification or disclosure, including:
(i) implementing industry-standard technical and organisational security measures;
(ii) restricting access to your Data to authorised personnel;
(iii) conducting regular security assessments; and
(iv) promptly notifying you of any data breach affecting your Data in accordance with our obligations under the Privacy Act 1988 (Cth).
(b) For Data related to the Sales Trust module, the Subscriber is responsible for and will maintain enhanced security measures and backup procedures to ensure compliance with applicable real estate trust accounting regulations.
(c) In the event of any loss or damage to Data, your sole and exclusive remedy shall be for us to use reasonable commercial endeavours to restore the lost or damaged Data from the latest back-up of such Data maintained by us or our third party suppliers of data storage services or in the case of loss or damage to Sales Trust Subscriber Data, we will assist you to restore the lost or damaged Subscriber Data from your latest back-up of such Sales Trust Subscriber Data. Nothing in this clause limits any right or remedy you have under the Australian Consumer Law, or any other law, to the extent it cannot lawfully be excluded.
(d) To the extent permitted by law, we shall not be responsible for any loss, destruction, alteration or disclosure of Data caused by:
(i) any third party outside our reasonable control;
(ii) your failure to implement security measures recommended or required by us, such as two-factor authentication (2FA); or
(iii) your failure to comply with, or a breach of, your obligations under this Agreement.
(e) If we process any personal data on your behalf when performing our obligations under this Agreement, the parties record their intention that you shall be the data controller and we shall be a data processor and in any such case:
(i) you acknowledge and agree that the personal data may be transferred or stored outside Australia in order to provide the Services and our other obligations under this Agreement, provided that: (a) we will only transfer personal data to countries that have adequate privacy protections or through mechanisms that provide appropriate safeguards in accordance with the Privacy Act 1988 (Cth) and the Australian Privacy Principles; (b) we will notify you of the countries where personal data may be stored or processed; and (c) we will take reasonable steps to ensure that overseas recipients handle the personal data in accordance with the Australian Privacy Principles;
(ii) you shall ensure that you are entitled to transfer the relevant personal data to us so that we may lawfully use, process and transfer the personal data in accordance with this Agreement on your behalf;
(iii) you shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
(iv) we shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by you from time to time; and
(v) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
(f) Zenu will retain your Data for as long as you maintain an active Subscription, and for a period of 30 days following termination or expiration of your Subscription.
(g) Upon your written request, or 30 days after the termination or expiration of your Subscription, Zenu will securely delete or destroy all copies of your Data in its possession, except as required by law.
(h) You must comply with the Privacy Act 1988 (Cth) and Australian Privacy Principles in relation to any personal information collected or processed using the Services.
(i) You must obtain necessary consents from individuals before inputting their personal information into the Platform.
(a) You acknowledge that we engage and use the services of third-party storage and security of the Data. We make no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party product, or any transactions completed, and any contract entered into by us, with any such third party.
(b) We recommend that you refer to the third party’s website terms and conditions and privacy policy prior to entering into this Agreement. We do not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
(a) Subscription Fees are detailed in your Proposal. All fees are non-refundable except:
(i) as expressly provided in this Agreement; or
(ii) as required under the Australian Consumer Law.
(b) In relation to your Subscription, you will pay the Subscription Fees to us in the time and manner we specify from time-to-time commencing in the manner we specify when you create an Account.
(c) The Subscription Fees, and any other recurring Fees payable under this Agreement, will increase by five percent (5%) or CPI (Victoria) on each anniversary of the commencement of the Subscription Term and on the commencement of each renewal period under clause 17.2, calculated on the Fees applying immediately before the increase. You agree to this increase when you enter into this Agreement and no further notice is required for it to take effect, except that Zenu will state the increased Fees in the next invoice issued after the increase and in any Renewal Notice issued under clause 17.2. This clause does not apply to SMS usage charges, mapping or other third-party charges, or Taxes, which are dealt with separately under this Agreement.
(d) Separately from the fixed annual increase under clause 15(c), Zenu may increase the Fees by giving you at least 30 days’ written notice. If you do not agree to an increase under this clause, you may terminate this Agreement, without liability for the Early Termination Fee, by giving Zenu written notice before the increase takes effect.
(e) All amounts payable to us under the Terms are provided by such merchant facility via a direct debit facility as we use from time to time (such as Ezidebit) (Payment Processor) and are subject to the Payment Processor terms of service. By agreeing to these Terms, you agree to be bound by their terms of service, as the same may be modified by the Payment Processor from time to time including the Payment Processor direct debit terms.
(f) As a condition of us enabling payment processing services through the Payment Processor, you agree to provide us with accurate and complete information about you, and you authorise us to share such info with the Payment Processor together with transaction information related to your use of the payment processing services provided by the Payment Processor.
(g) Unless expressly stated otherwise, all Fees and other amounts payable under this Agreement are exclusive of GST. If GST is payable on any supply made under this Agreement, you must pay to Zenu, in addition to and at the same time as the consideration for the supply, an amount equal to that consideration multiplied by the prevailing GST rate, on receipt of a valid tax invoice. Terms used in this clause have the meanings given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(h) Other than as expressly provided for in this Agreement, Subscription Fees are non-refundable. You are prohibited from setting off or deducting any money against the payment of the Fees.
(i) Fees do not include Taxes. You are responsible for paying all Taxes.
(j) If you fail to pay any monies due to Zenu within seven days of the due date for payment:
(i) Zenu will provide notice of the overdue payment;
(ii) if payment remains outstanding 7 days after such notice, Zenu may: (a) suspend performance of or access to the Services; (b) charge interest at the lesser of 1.5% per month or the maximum rate permitted by applicable law; and (c) recover reasonable costs incurred in collecting overdue amounts including solicitors costs on an indemnity basis.
(k) If your Account is suspended for non-payment and subsequently reactivated following payment of all outstanding amounts, Zenu may charge a reactivation fee of $50.00, which represents a genuine pre-estimate of the administrative costs associated with account suspension and reactivation.
(l) Unless otherwise specified in your Proposal:
(i) setup costs will be immediately debited upon acceptance of the Proposal;
(ii) Website Licence Fees will commence from the date of signing the Proposal; and
(iii) CRM Licence Fees will commence on the date of Go-Live or 30 days from the date of signing the Proposal, whichever occurs first.
(m) “Go-Live” means the date when the CRM Services are made available for your operational use following the completion of initial setup and configuration.
(a) You must comply with all applicable laws including:
(i) real estate industry laws and regulations applicable to you;
(ii) Australian Consumer Law;
(iii) Privacy Act 1988 (Cth) and the Australian Privacy Principles;
(iv) Spam Act 2003 (Cth);
(v) Do Not Call Register Act 2006 (Cth);
(vi) any applicable state or territory real estate legislation; and
(vii) any other laws applicable to your business operations.
(b) You are responsible for ensuring your use of the Services complies with relevant real estate licensing requirements in your jurisdiction.
(c) You shall ensure that:
(i) you are entitled to transfer any personal data to Zenu;
(ii) you have provided all necessary notices and obtained all necessary consents from individuals before providing their personal data to Zenu;
(iii) your collection, use, and disclosure of personal data complies with the Privacy Act 1988 (Cth);
(iv) your direct marketing activities comply with the Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth); and
(v) any property listings or advertisements created using the Services comply with applicable real estate industry regulations and the Australian Consumer Law.
(d) Zenu will provide reasonable assistance to help you comply with your legal obligations in using the Services, but ultimate responsibility for compliance remains with you.
This Agreement commences at the earlier of:
(i) your acceptance of the terms of this Agreement;
(ii) the commencement date specified in the Subscription Term; or
(iii) your first use of the Services, and will continue for the initial Subscription Term and any renewal periods, until terminated in accordance with this Agreement.
(a) Prior to the expiration of your current Subscription Term, Zenu will provide you with written notice at least 60 days in advance, reminding you of the upcoming renewal.
(b) The notice will state:
(i) the date on which the current Subscription Term will end;
(ii) that the Subscription Term will be automatically renewed for 12 months unless you choose to cancel;
(iii) the applicable Subscription Fees for the renewal period, including any changes from the current fees; and
(iv) the steps and instructions you need to take to cancel the Subscription if you do not wish to renew (the Renewal Notice).
(c) If you wish to continue the subscription, no action is required on your part. The Subscription Term will be automatically extended for 12 months on the terms of the Renewal Notice.
(d) If you do not wish to renew, you may cancel the subscription at any time up to 14 days before the expiration of the current Subscription Term by notifying Zenu through our designated cancellation process.
Zenu may terminate this Agreement:
(i) for convenience, by providing at least 60 days’ written notice to you;
(ii) immediately upon written notice if you breach any material term of this Agreement and fail to remedy such breach within 14 days of receiving notice requiring you to do so; or
(iii) immediately if required by law or government authority.
(a) Zenu may suspend your use of the Services, or any part thereof:
(i) if you fail to pay any amounts due under this Agreement;
(ii) if Zenu reasonably believes you have breached this Agreement;
(iii) if necessary to prevent security breaches or system damage; or
(iv) if required by law or government authority. Zenu will provide you with written notice if it suspends your access and use of the Services and will advise you of the conditions for lifting such suspension.
(b) If Zenu suspends or terminates this Agreement under clauses 17.3 or 17.4 and if you have paid Subscription Fees as at the date of termination or suspension, then we will refund you the balance of the Subscription Fees not expended on accessing and use of our Services.
(c) Apart from where required by law, and without limiting Zenu’s rights, Zenu may refuse to provide a refund under clause 17.4(b) where the reason for the termination or suspension is due to:
(i) a breach of this Agreement or any law by you;
(ii) an act described in clause 20;
(iii) Zenu being required by a government agency to enact the suspension or termination; or
(iv) Zenu reasonably considers such termination or suspension is required to avoid Zenu breaching any law.
(d) You may terminate this Agreement at any time, and for any reason, upon the provision of 45 days written notice to Zenu at which time access to, and use of the Services will immediately cease for you and your Authorised Users.
(a) If the Subscriber terminates this Agreement for convenience under clause 17.4(d), or if Zenu terminates this Agreement for cause under clause 17.3(ii), the Subscriber shall:
(i) pay all Subscription Fees that have accrued and are payable as at the effective termination date; and
(ii) be liable for and pay Zenu the Early Termination Fee.
(b) The Early Termination Fee shall be calculated as follows:
(i) For Subscribers who have completed less than six (6) months of the current Subscription Term: 75% of the remaining Subscription Fees for the unexpired portion of the current Subscription Term.
(ii) For Subscribers who have completed at least six (6) months but less than twelve (12) months of the current Subscription Term: 50% of the remaining Subscription Fees for the unexpired portion of the current Subscription Term.
(iii) For Subscribers who have completed at least twelve (12) months of the current Subscription Term: 25% of the remaining Subscription Fees for the unexpired portion of the current Subscription Term.
(c) The remaining Subscription Fees shall be calculated by multiplying the number of full calendar months remaining in the Subscription Term from the effective date of termination by the monthly Subscription Fee applicable at that date.
(d) The Early Termination Fee represents a genuine pre-estimate of the loss that Zenu will suffer as a result of early termination, taking into account:
(i) Zenu’s upfront costs in establishing the Subscriber’s account and customisations;
(ii) the diminishing costs of servicing the Subscriber over time;
(iii) Zenu’s reasonable opportunity to mitigate losses through reallocation of resources; and
(iv) the average cost of acquiring a replacement customer.
(e) No Early Termination Fee shall apply if: (a) The Subscriber terminates due to Zenu’s material breach of this Agreement; (b) The Subscriber terminates due to Zenu’s insolvency; or (c) Termination is required by law. No Early Termination Fee is payable where the Subscriber terminates this Agreement in response to a fee increase under clause 15(d) or an amendment that has a significant detrimental impact on the Subscriber under clause 31.
(f) Either party may terminate this Agreement immediately (or with effect from any later date that it may nominate) by written notice to the other party if:
(i) one or more Insolvency Events occurs in relation to that other party. For the purposes of this clause, “Insolvency Event” means, in respect of a party (other than for the purpose of solvent reconstruction or amalgamation): (a) a receiver, administrator, manager or liquidator is appointed over the party’s undertaking or assets, or the party enters into any assignment, composition or arrangement with its creditors; or (b) the party is unable to pay its debts when due or is deemed unable to pay its debts under any law or suspends payment to its creditors.
(ii) the other party commits a material breach of any of its obligations under this Agreement and fails to remedy that breach 7 days of prior written notice of such breach.
(g) Upon the termination of this Agreement by you or by Zenu:
(i) you and each Authorised User’s Account will be deactivated, and you and your Authorised Users will be unable to access and use the Services; and
(ii) you and each Authorised User must cease all use of the Services.
(a) Upon termination or expiration of this Agreement, you will have thirty (30) calendar days from the effective termination or expiration date to access and retrieve your Subscriber Content (Retrieval Right Period).
(b) To exercise this right, you must provide written notice to Zenu at any time before or during the Retrieval Right Period.
(c) During the Retrieval Right Period, Zenu will:
(i) maintain your access to the Services solely for the purpose of retrieving your Subscriber Content;
(ii) provide reasonable technical assistance to facilitate the retrieval process; and
(iii) ensure that all your Subscriber Content is available in CSV.
(d) Prior to the expiration of the Retrieval Right Period, you may request an extension of your Retrieval Right Period.
(e) Zenu will grant such extension requests, provided that:
(i) You have demonstrated good faith efforts to retrieve your Subscriber Content during the initial Retrieval Right Period; and
(ii) You pay the equivalent of one month’s Subscription Fee for each month you require Zenu to provide you with access to your Subscriber Data after the initial Retrieval Right Period.
(f) After the expiration of the Retrieval Right Period (including any extensions):
(i) Zenu will retain your Subscriber Content for an additional sixty (60) days before permanent deletion;
(ii) during this retention period, you may request a copy of your Subscriber Content for a reasonable fee based on the cost of administering your request, retrieval steps and the provisioning of your Subscriber Data (Retrieval Cost); and
(iii) Zenu will provide a written quote for the Retrieval Cost before proceeding with retrieval and will only process your request once the Retrieval Cost has been paid in advance.
(g) Zenu will make reasonable efforts to ensure that any retrieved Subscriber Content is complete and accurate, but cannot guarantee completeness or accuracy for retrievals requested after the Retrieval Right Period.
(h) Zenu will provide your Subscriber Content in a CSV format only.
(i) The Subscriber acknowledges and agrees that Zenu does not retain or back up or have access to any data related to the Sales Trust module and the Subscriber must take all steps it believes necessary to ensure the integrity of and retention of Sales Trust module Subscriber Data.
(a) All content and information and in the delivery of the Services (other than Subscriber Content), including, but not limited to, Content, Feedback, messages, information, text, music, sound, photos, graphics, video, maps, icons, software, code or other material, as well as the infrastructure used to provide such content and information, is owned by Zenu or its third party licensors and forms part of Zenu Content.
(b) Zenu either owns all right, title and interest (including all Intellectual Property Rights) in and to Zenu Content or has a right to, by way of licence or other agreement, to Zenu Content.
You agree not to modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell or re-sell any information, software, code, products, or our Content other than in accordance with the express limited licence granted to you under this Agreement. Additionally, you agree not to:
(a) use the Services or our Content for any commercial purpose, other than in accordance with your Subscription Licence and the terms of this Agreement;
(b) use another person’s name, account, identity or password without permission, or use the Services while impersonating another person;
(c) access, monitor or copy any content or information of the Services using any robot, spider, scraper or other automated means or any manual process for any purpose other than in accordance with the terms of this Agreement or your Subscription Licence;
(d) violate the restrictions in any robot exclusion headers on the Services or bypass or circumvent other measures employed to prevent or limit access to the Services;
(e) use the Services in connection with any products, services or materials that constitute, promote or are used for the purpose of dealing in defamatory, obscene, pornographic, abusive or otherwise illegal or offensive content; spyware, adware, or other malicious code; counterfeit goods; items that are otherwise illegal; unsolicited mass distribution of email or multi-level marketing proposals; hate materials; hacking/surveillance/interception/descrambling equipment; or stolen products or items used for theft;
(f) deep-link to any portion of the Services for any purpose apart from where expressly permitted by this Agreement or your Subscription Licence; or
(g) attempt to modify, translate, adapt, edit, decompile, disassemble, or reverse engineer any software programs used by Zenu in connection with the Services or the Content (except to the extent specifically permitted by law).
(a) You own all Intellectual Property Rights in your Subscriber Content you upload, submit or publish with our Content using our Services.
(b) In consideration of Zenu granting you (and your Authorised Users) access to and use of the Services, you expressly grant a non-exclusive, royalty-free, sub-licensable, assignable license to Zenu and its affiliates to use, reproduce, modify, adapt, publish, translate and create derivative works from your Subscriber Content:
(i) for the primary purpose of delivering the Services to you including:
i. storing and displaying your Subscriber Content within the Services;
ii. processing your Subscriber Content as necessary to provide the functionality of the Services;
iii. creating backups of your Subscriber Content for data recovery purposes; and
iv. transmitting your Subscriber Content to authorised third-party integrations at your direction;
(ii) for the secondary purpose of improving and developing the Services;
(iii) as may be required by law including:
i. responding to valid legal process;
ii. protecting Zenu’s rights and property; and
iii. addressing safety or technical issues; and
(iv) in anonymised and aggregated form for analytics and research purposes. This license shall continue for the duration of the Subscription Term and for a reasonable period thereafter as necessary to transition or wind down the Services.
(c) Upon termination of this Agreement and expiration of your Retrieval Right period under clause 18, Zenu will cease active use of your Subscriber Content except as required by law or as retained in anonymised, aggregated form.
(d) You represent and warrant on an on-going basis that your Subscriber Content does not infringe the rights of any other person or body and complies with all applicable laws, regulations, codes and standards, including without limitation your obligations under the Privacy Act and any other laws or regulations governing personal information.
(e) You are solely responsible for the accuracy, content and legality of all Subscriber Content.
(f) To the extent that you have any moral rights (as that term is defined in the Copyright Act 1968 (Cth)) in your Subscriber Content, then you waive all such moral rights.
(g) You agree that you will not use the Services, nor permit the Services to be used to post, upload to, transmit, distribute, store, create or otherwise publish, and you will ensure that your Subscriber Content and any other information or materials do not contain, any of the following (Infringing Content):
(i) to transmit any communication or Messages that may harm a minor in any way;
(ii) content that infringes, or may infringe, the Intellectual Property Rights or other rights of any person;
(iii) content that impersonates any person or entity or otherwise misrepresents your relationship with Zenu or any other person;
(iv) content that is false, unlawful, misleading, libellous, defamatory, slanderous, obscene, pornographic, indecent, lewd, abusive, harassing, threatening, invasive of privacy, abusive, inflammatory, fraudulent or otherwise objectionable;
(v) content that can reasonably be considered to be offensive, such as content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual, or which incites such behaviour or action from others;
(vi) content that would constitute, encourage or promote, or provide instructions for the conduct of an illegal act or omission, any criminal activity, or violate the rights of any person or party in any country of the world;
(vii) content that has been solicited by an incentive or payment originating from a real estate agent or a representative of their agency;
(viii) unsolicited promotions or SPAM;
(ix) content which contains the private information of any person;
(x) content which publishes an image or likeness of a person who has not consented to their likeness or image being published; and/or
(xi) content which contains viruses, malware or any other malicious software or data.
(h) To the maximum extent permitted by law, Zenu will have no responsibility or liability for your Subscriber Content or Infringing Content used in our Content, or for any loss or damage suffered by you or any other person as a result of our Content making available your Subscription Data or Infringing Content.
(i) Zenu is under no obligation to review your Subscription Data to determine its accuracy, truthfulness, right to use by you or third party rights.
(j) You:
(i) are solely responsible for all Messages (whether submitted or transmitted on your customer’s behalf or your own behalf or on behalf of a third party);
(ii) must inform Zenu as soon as possible if you suspect or become aware of any unauthorised use of your Account;
(iii) acknowledges and agrees that we have no editorial control over the Messages and we under no obligation to review, moderate, amend or modify the Messages as part of the Services.
(k) You acknowledge and agree that, notwithstanding subclause (i), we may, in our absolute discretion, monitor the Messages transmitted using our CRM Services.
(l) You must bear all costs arising out of any complaints made in connection with the Messages (including complaints made by any governmental agency or authority).
(a) You agree that Zenu or its licensors retain all right, title and interest (including all Intellectual Property Rights) in and to the Content and Services, all documentation and software and any and all related and underlying technology and documentation and any derivative works, modifications, or improvements of any of the foregoing, including any Feedback that may be incorporated into Zenu Content. Zenu owns or is the licensee the Intellectual Property Rights in the means, methods, processes, and know-how that Zenu employs to create the Services or to otherwise perform Zenu’s obligations under this Agreement, and in any of Zenu’s pre-existing library code used to create or incorporated into the Services. Zenu grants the Subscriber a non-exclusive licence to use the Intellectual Property referred to in this clause to the extent required for the Subscriber to make use of the Services.
(b) You are granted a limited, non-exclusive, non-transferable licence to access and use the Services in accordance with this Agreement.
(c) Except for the express limited rights set forth in this Agreement, no right, title or interest in any Zenu Content is granted to you.
(d) Notwithstanding anything to the contrary in this Agreement, Zenu may freely use and incorporate your Feedback into Zenu’s products and services.
(e) Zenu may use and display Subscriber’s name, logo, trademarks, and service marks on Zenu’s website and in Zenu’s marketing materials in connection with identifying Subscribers as a customer of Zenu. Upon your written request, Zenu will promptly remove any such marks from Zenu’s website and, to the extent commercially feasible, Zenu’s marketing materials.
(a) Your use of the Messaging Services and data upload capabilities is subject to Zenu’s Fair Use Policy, which forms part of this Agreement.
(b) The Fair Use Policy establishes:
(i) reasonable usage limitations for Messaging Services and data uploads;
(ii) prohibited content and activities;
(iii) compliance requirements with applicable laws and regulations; and
(iv) monitoring and enforcement procedures.
(c) The current version of the Fair Use Policy is available at www.zenu.com.au/fairuse and may be updated from time to time in accordance with clause 31 of this Agreement.
(d) You acknowledge that:
(i) you have read and understood the Fair Use Policy;
(ii) you will ensure all Authorised Users comply with the Fair Use Policy; and
(iii) any violation of the Fair Use Policy constitutes a breach of this Agreement.
(e) Zenu may monitor your use of the Messaging Services and data upload activities to ensure compliance with the Fair Use Policy.
(f) If Zenu determines that you have violated the Fair Use Policy, Zenu may take enforcement actions as specified in the Fair Use Policy, including but not limited to issuing warnings, temporarily suspending services, imposing additional charges, or terminating your account in cases of serious or repeated violations.
(g) Zenu will keep confidential all information provided by you or on your behalf which you designate in writing as confidential and will only use or disclose such confidential information:
(iv) for the purpose of providing or procuring Services under this Agreement;
(v) with your consent; in anonymised and aggregated form; or
(vi) as may otherwise be required or permitted by law.
(h) You must keep all of Zenu’s confidential information, including content and processes that form the Services, confidential and not disclose such information except: (a) to your Authorised Users who need to know for the purpose of using the Services; (b) with Zenu’s consent; or (c) as may otherwise be required by law.
(i) Each party will implement reasonable security measures to protect the other party’s confidential information.
(j) Both you and Zenu agree to comply with all applicable privacy laws in dealing with any Personal Information, including the Privacy Act 1988 (Cth) and the Australian Privacy Principles.
(k) Zenu will: (a) only collect, use, disclose, and store Personal Information for the purposes specified in this Agreement and Zenu’s privacy policy; (b) implement reasonable security measures to protect Personal Information from misuse, interference, loss, unauthorised access, modification, or disclosure; (c) promptly notify you of any data breach affecting Personal Information provided by you; (d) provide reasonable assistance to help you comply with your obligations under privacy laws in relation to Personal Information processed through the Services.
(l) You will: (a) ensure you have a lawful basis for collecting and providing Personal Information to Zenu; (b) provide all necessary privacy notices to individuals whose Personal Information is processed through the Services; (c) promptly notify Zenu of any privacy complaint or data breach affecting Personal Information processed through the Services.
(m) By using the Services, you agree to the terms of the Zenu privacy policy, which may be updated from time to time in accordance with clause 31. A copy of our current privacy policy may be viewed on our website at www.zenu.com.au/privacy.
(a) These data processing terms apply when Zenu processes Personal Information on behalf of the Subscriber in providing the Services.
(b) Zenu will:
(i) only process Personal Information in accordance with the Subscriber’s documented instructions, including with regard to transfers of Personal Information outside Australia, unless required to do so by law;
(ii) ensure that persons authorised to process Personal Information have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
(iii) implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk of processing;
(iv) assist the Subscriber in ensuring compliance with its obligations under the Privacy Act 1988 (Cth), taking into account the nature of processing and the information available to Zenu;
(v) at the Subscriber’s choice, delete or return all Personal Information to the Subscriber after the end of the provision of Services, and delete existing copies unless storage is required by law;
(vi) make available to the Subscriber all information necessary to demonstrate compliance with these data processing terms and allow for and contribute to audits, including inspections, conducted by the Subscriber or another auditor mandated by the Subscriber, subject to reasonable notice and confidentiality obligations.
(c) Zenu may engage other processors (subprocessors) to process Personal Information on behalf of the Subscriber, provided that:
(i) Zenu maintains an up-to-date list of subprocessors available to the Subscriber upon request;
(ii) Zenu imposes data protection terms on any subprocessor it appoints that protect the Personal Information to the same standard provided for in this Agreement; and
(iii) Zenu remains fully liable to the Subscriber for the performance of that subprocessor’s obligations.
(d) In the event of a data breach affecting Personal Information processed on behalf of the Subscriber, Zenu will:
(i) notify the Subscriber without undue delay after becoming aware of the breach;
(ii) provide sufficient information to allow the Subscriber to meet any obligations to report the breach under the Privacy Act 1988 (Cth);
(iii) take reasonable steps to mitigate the effects and minimise any damage resulting from the breach.
(e) Zenu will provide reasonable assistance to the Subscriber with any data protection impact assessments and prior consultations with regulatory authorities that the Subscriber is required to carry out under the Privacy Act 1988 (Cth), taking into account the nature of processing and the information available to Zenu.
You agree to defend, indemnify, and hold harmless Zenu, its affiliates, and their respective directors, officers, employees, and agents from and against all third-party claims, actions, suits, and proceedings, and all related liabilities, damages, settlements, penalties, fines, costs, and expenses (including reasonable legal costs) arising out of or relating to:
(i) any misuse of the Services by you or your Authorised Users in breach of this Agreement;
(ii) your breach of this Agreement or violation of any law;
(iii) infringement of Zenu Intellectual Property Rights by you or your Authorised Users;
(iv) infringement of third-party Intellectual Property Rights or other rights by your Subscriber Content; or
(v) your use of any Infringing Content.
For the avoidance of doubt, the Subscriber’s liability under this indemnity does not extend to any loss or claim caused or contributed to by Zenu’s own negligence, breach of this Agreement, or unlawful act.
Zenu agrees to defend, indemnify, and hold harmless you, your affiliates, and your respective directors, officers, employees, and agents from and against all third-party claims, actions, suits, and proceedings, and all related liabilities, damages, settlements, penalties, fines, costs, and expenses (including reasonable legal costs) arising out of or relating to:
(i) infringement of third-party Intellectual Property Rights by the Services (excluding Subscriber Content and Third Party Materials); or
(ii) Zenu’s violation of applicable laws in providing the Services.
The indemnification obligations in this clause are subject to the following:
(i) Any amount payable under an indemnity will be reduced to the extent that the indemnified party caused or contributed to the relevant act or event giving rise to the indemnity.
(ii) The indemnified party must: (a) promptly notify the indemnifying party in writing of any claim; (b) give the indemnifying party sole control over the defense and settlement of the claim (provided that the indemnifying party may not settle any claim unless it unconditionally releases the indemnified party of all liability); and (c) provide reasonable assistance in the defense of the claim at the indemnifying party’s expense.
(iii) In no circumstances will either party be liable to the other party for consequential loss or damage including economic loss, loss of profits and loss of opportunity, except in cases of: (a) willful misconduct or gross negligence; (b) breach of confidentiality obligations; or (c) infringement of Intellectual Property Rights.
Each party represents and warrants that:
(i) it has the legal power and authority to enter into this Agreement; and
(ii) it will comply with all applicable laws in performing its obligations under this Agreement.
Zenu warrants that:
(i) it will provide the Services with reasonable care and skill;
(ii) the Services will perform substantially in accordance with any documentation or specifications provided by Zenu; and
(iii) it will use commercially reasonable efforts to ensure the Services are free from viruses, malware, and other harmful code.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT:
(i) THE SERVICES ARE PROVIDED “AS IS” AND ZENU MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT;
(ii) ZENU DOES NOT WARRANT THAT THE USE OF ANY SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; AND
(iii) ZENU DOES NOT WARRANT THAT IT WILL REVIEW YOUR SUBSCRIBER DATA FOR ACCURACY.
Nothing in this Agreement excludes, restricts or modifies:
(i) any consumer guarantee, right or remedy conferred on you by the Australian Consumer Law (being Schedule 2 to the Competition and Consumer Act 2010 (Cth)) or any other applicable law that cannot be excluded, restricted or modified by agreement; or
(ii) any implied warranty or condition, provision, right or remedy to the extent that to do so would contravene that law or cause any part of this Agreement to be void.
To the extent that the Services are subject to non-excludable consumer guarantees under the Australian Consumer Law, and the Services fail to meet a consumer guarantee, you are entitled to:
(i) cancel this Agreement and obtain a refund for any unused portion of the Subscription Fees; or
(ii) have the Services remedied, and if the failure is substantial, you may choose either a refund or replacement.
Neither party will be liable for any failure or delay in performance of its obligations under this Agreement (except payment obligations) where such failure or delay arises from circumstances beyond that party’s reasonable control, including:
(i) cyber incident not caused by that party;
(ii) acts of God, natural disasters, fire, flood, storm, earthquake;
(iii) war, terrorism, riots, civil unrest;
(iv) actions or orders of government authorities;
(v) denial of service attacks, telecommunications failures, internet service provider failures;
(vi) power failures or shortages; or
(vii) other similar events beyond the reasonable control of the affected party. The affected party will use reasonable efforts to mitigate the effect of the force majeure event and resume performance as soon as reasonably possible.
To the extent permitted by law, neither party will be liable to the other for any:
(i) loss of revenue, profit, savings, or business opportunity;
(ii) loss of data (except where Zenu has failed to comply with its data backup obligations);
(iii) damage to reputation or goodwill; or
(iv) any indirect, special, incidental, or consequential damages, arising out of or in connection with this Agreement, whether in contract, tort (including negligence), statute, or otherwise, even if the party has been advised of the possibility of such damages.
To the extent permitted by law, each party’s total aggregate liability arising out of or in connection with this Agreement, whether in contract, tort (including negligence), statute, or otherwise, is limited to:
(i) for Zenu, the greater of: (a) AUD 10,000.00; and (b) the total Subscription Fees paid by you in the 12 months immediately preceding the event giving rise to the liability;
(ii) for the Subscriber, the greater of: (a) AUD 10,000.00; and (b) the total Subscription Fees paid by the Subscriber in the 12 months immediately preceding the event giving rise to the liability.
Nothing in this clause limits either party’s liability for:
(i) personal injury or death caused by negligence;
(ii) fraud or fraudulent misrepresentation;
(iii) breach of confidentiality obligations;
(iv) infringement of Intellectual Property Rights; or
(v) any other liability that cannot be limited or excluded by law.
If you are a ‘consumer’ within the meaning of the Australian Consumer Law, our liability for breach of a consumer guarantee is limited to:
(i) in the case of goods, replacement or repair of the goods or payment of the cost of replacing or repairing the goods; and
(ii) in the case of services, resupplying the services or payment of the cost of having the services resupplied.
No representations, statements, or communications—whether oral, written, or electronic—made by any employee, agent, or representative of Zenu shall have any contractual effect or alter the Subscriber’s rights or obligations under this Agreement unless such representation is expressly incorporated herein in writing and signed by an authorised representative of Zenu. In particular, any statement suggesting a fee liability beyond those expressly set forth in these Subscription Terms shall be deemed null and void.
If any term of this Agreement would be void or unenforceable under the unfair contract terms provisions of the Australian Consumer Law, that term will be read down to the extent necessary to avoid that result.
(a) Zenu reserves the right to revise and amend this Agreement in its discretion, as follows:
(i) if Zenu considers that the change is likely to benefit you or have a neutral or minor detrimental impact on you, it may make any changes immediately without notifying you except by publishing the amended Agreement (as applicable) on the Site; and
(ii) if Zenu considers that the change is likely to have a significant detrimental impact on you, it will:
i. notify you of the change at least 30 days before it takes effect (solely by using the email address you have provided) and display a notice on the Site describing the change; and
ii. give you the right to terminate this Agreement without incurring an Early Termination Fee by providing written notice to Zenu before the change takes effect.
(b) If you do not exercise your right to terminate under clause 31(a)(ii)ii before the change takes effect, your continued use of the Services after the change takes effect will constitute acceptance of the amendment.
(c) Your continued use of the Services after an amendment that has a neutral, minor or beneficial impact on you will mean that you agree to that amendment. For an amendment that has a significant detrimental impact on you, your rights are as set out in clause 31(a)(ii). You must stop accessing and cease using the Services if you do not agree to an amendment and do not have, or do not exercise, a right to terminate in respect of it.
If a dispute arises out of or relates to this Agreement, a party may not commence court proceedings (except proceedings seeking interlocutory relief) unless it has complied with this clause. A party claiming that a dispute has arisen must notify the other party in writing. Within 7 days of receiving notice, the parties must attempt to resolve the dispute through direct negotiation between representatives who have authority to settle the dispute.
If the parties cannot resolve the dispute through negotiation within 7 days (or longer period agreed between the parties), they must refer the dispute to mediation. The mediator will be:
(i) a person agreed between the parties; or
(ii) if the parties cannot agree, a person appointed by the Australian Disputes Centre (ADC). The mediation will be conducted in accordance with the ADC Guidelines for Commercial Mediation operating at the time the dispute is referred to ADC. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved.
If the dispute is not resolved within 20 days after referral to mediation (or longer period agreed between the parties), either party may initiate court proceedings.
Despite the existence of a dispute, both parties must continue to perform their obligations under this Agreement, unless those obligations are the subject of the dispute.
Nothing in this clause prevents either party from seeking urgent interlocutory relief.
(a) In the interpretation of this Agreement unless the context otherwise requires:
(i) headings and words in bold type are included for convenience only and do not affect interpretation;
(ii) the words “includes” or “including” mean “includes without limitation” or “including without limitation”;
(iii) a reference to a word includes the singular and the plural of the word and vice versa;
(iv) a reference to a gender includes any gender;
(v) if a word or phrase is defined, then other parts of speech and grammatical forms of that word or phrase have a corresponding meaning;
(vi) a term which refers to a person includes a person in any capacity, a body corporate, an unincorporated body (for example a society or association), a trust, a partnership, a sovereign state, a government or a government department or agency;
(vii) a reference to a document includes a reference to that document as amended, novated, supplemented, varied or replaced;
(viii) a reference to a recital, clause, paragraph, schedule, annexure or other part is a reference to an item of that type in this Agreement;
(ix) a reference to a party is a reference to a party to this Agreement and includes a reference to that party’s successors, personal legal representatives and permitted assigns;
(x) a reference to a statute or regulation or a provision of a statute or regulation includes a reference to that statute, regulation or provision as amended or replaced, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws made or issued under that statute; and
(xi) if an individual party to this Agreement consists of two or more persons, then those persons are bound both jointly and severally.
(b) Any notice given under this Agreement must be in writing and must be signed by the party giving the notice, or alternatively must be given via functionality contained in the Site. Unless a later time is specified in a notice, the notice takes effect from the time it is received. A notice is taken to be received:
(i) in the case of a notice delivered by hand, when so delivered;
(ii) in the case of a notice sent by pre-paid express post, on the third clear Business Day after the date of posting;
(iii) in the case of a notice sent by email, at the time that the email is sent, unless the sender receives a notification that the email was delayed or not received; or
(iv) in the case of a notice sent via functionality contained in the Site, at the time that the notice is sent.
(c) This Agreement is governed by the laws of Victoria, Australia. Each party submits to the non-exclusive jurisdiction of the courts of Victoria.
(d) A waiver of any right under this Agreement must be in writing and signed by the party granting the waiver. A waiver is only effective in relation to the particular obligation or breach in respect of which it is given. Any failure or delay in exercising any right, power or remedy by a party does not operate as a waiver. A single or partial exercise of any right does not preclude any other or further exercise of that or any other right.
(e) If any provision of this Agreement is invalid, illegal or unenforceable, that provision must, to the extent possible, be read down to the extent necessary to ensure that it is not invalid, illegal or unenforceable. If a provision cannot be read down, it is deemed to be severed from this Agreement and the remaining provisions continue in full force and effect.
(f) This Agreement constitutes the entire agreement between the parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter.
(g) This Agreement may be executed in any number of counterparts. All counterparts together make one instrument.
(h) You must not assign, novate or otherwise transfer any of your rights or obligations under this Agreement without the prior written consent of Zenu. Zenu may assign, novate or otherwise transfer any of its rights or obligations under this Agreement without your consent.
(i) Nothing in this Agreement creates a relationship of employment, agency, partnership or joint venture between the parties.
(j) Each party must do all things reasonably necessary to give effect to this Agreement and the transactions contemplated by it.
(k) The rights, powers and remedies provided in this Agreement are cumulative with and not exclusive of the rights, powers or remedies provided by law independently of this Agreement.
(l) The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or any part of it.
