Acceptance
1.1 Atone Australia Pty Ltd ACN 639 115 281 (we, us or our) own the Software, which is accessible at the Site.
1.2 These Terms:
(a) set out the terms and conditions upon which we agree to grant you a right to use the Services; and
(b) are binding on you for the Term.
1.3 You accept these Terms by clicking a box indicating your acceptance.
1.4 If you are under 18 years old, you represent and warrant that you have permission from your parent or legal guardian to access and use the Services, and they have accepted these Terms on your behalf. If you are a parent or legal guardian allowing a minor to access and/or use the Services, you agree to: (1) supervise the minor’s use of the Services, (2) assume all risks associated with, and liabilities resulting from, the minor’s use of the Services, (3) ensure the content on the Platform is suitable for the minor, (4) ensure all information submitted to us by the minor is accurate and (5) provide the consents, representations and warranties contained in these Terms on the minor’s behalf.
Accounts
If you are an Invited User, we will create an Account for you to access and use the Services. Your Account and Licence are subject to the Enterprise Organisation paying the applicable fees for their account, the Enterprise Organisation authorising your use of the Services, and the Enterprise Organisation complying with the terms of their Client Agreement.
If you are an Individual User, you may register for an Account using your Social Media Account. If you sign into your Account using your Social Media Account, you authorise us to access certain information on your Social Media Account including but not limited to your current profile photo and contact details.
You must ensure that any information you provide to us, or we request from you, for your Account, is complete and accurate and you are authorised to provide this information to us.
It is your responsibility to keep your Account details confidential. You are responsible for all activity on your Account, and for ensuring that any activities on your Account comply with these Terms.
Membership
We will provide the Services in accordance with these Terms.
Free or Trial Account: If you are an Individual User, we may offer you a free or trial Account with limited features designed to allow you to evaluate the Services and make sure they are right for you before signing up for a paid Membership. Any trial period can change at any time without notice. We have the right to terminate any trial Account if you are found to be misusing the Services.
If you are an Individual User, you may choose between different Membership packages which contain different features and Add-Ons as set out on the Site. If you are an Invited User, your Enterprise Organisation will choose your Membership.
If your Membership includes Add-Ons, your Membership, and the billing cycle for your Membership, will begin on the date the Add-Ons are delivered to you in accordance with clause 4.4.
You may cancel your Membership, by providing at least 48 hours’ notice to us before the end of your current Membership term. We will notify you prior to the end of the then current Membership term. If you do not cancel your Membership in accordance with this clause, your Membership will automatically renew for the same term as your initial Membership term and this renewal process will continue until you cancel your Membership in accordance with this clause.
Add-Ons and Delivery
Add-Ons may be included in your chosen Membership, or they may be purchased in addition to your Membership.
You may order Add-Ons from us as set out on the Site. Any order placed through the Site is an offer by you to purchase a particular Add-On for the price notified (including the delivery and other applicable charges and taxes) at the time you place your order. Each order that we accept results in a separate binding agreement between you and us for the supply of Add-Ons in accordance with the Terms.
You must pay the Price for Add-Ons in accordance with clause 5. All amounts are stated in Australian dollars and are inclusive of Australian GST (where applicable).
Delivery: If possible we will deliver the Add-Ons to the delivery address you provide when making your order. We currently deliver to areas as set out on the Site. Any dispatch timeframes and delivery periods displayed on the Site are estimates only, based on the information provided by our suppliers and the delivery company respectively. We may deliver the Add-Ons using a range of delivery methods such as Australia Post. You may need to sign for some deliveries. Title to the Add-Ons will remain with us until you have paid us the Price in full in accordance with the Terms. Risk in the Add-Ons will pass to you as soon as they are delivered to your delivery address. Once risk in the Add-Ons passes, you will be solely responsible for them.
Returns: We do not accept returns for change of mind or other circumstances.
Payment
This clause 5 applies to Individual Users.
We provide a number of payment methods on the Site, including our third party payment processor, and “buy now, pay later” providers. The payment method you choose may be subject to additional terms and conditions imposed by the applicable payment provider. By making payment through a third party payment provider, you accept the applicable terms and conditions.
You agree to pay us the Fees as set out in your Membership, the Price for Add-Ons and any delivery fees, and any other amounts payable to us under these Terms, without set-off or delay, via credit card or any other payment method set out on the Site.
The Fee is payable in advance of the next billing cycle for your Membership. Annual Memberships are billed monthly in advance, and your billing cycle will not commence until any Add-Ons have been delivered in accordance with clause 3.4.
We do not offer holds, freezes or suspensions of Memberships.
You are responsible for reviewing the pricing schedule, features and limits associated with your Membership, which are available on the Site.
You must ensure your chosen payment method has sufficient funds to pay the Fees.
If any payment has not been made in accordance with these Terms, we may (at our absolute discretion):
immediately cease or suspend the provision of the Services, and recover as a debt due and immediately payable from you, our additional costs of doing so;
charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with these Terms; and
engage debt collection services in relation to any such amounts.
If you rectify such non-payment within a reasonable time after the Services have been suspended, then we may, at our discretion, recommence the provision of the Services as soon as reasonably practicable.
To the maximum extent permitted by law, the Fees, the Price, and any delivery fees are non-refundable and there will be no refunds or credits for any unused Licence (or part thereof).
Licence and restrictions on use
Subject to the payment of any applicable Fees (by you if you are an Individual User, or by the Enterprise Organisation if you are Invited User), and your compliance with these Terms, we grant you a non-exclusive, non-transferable, non-sublicensable (except as otherwise permitted under these Terms), personal and revocable licence to access and use the Services for the Term, for your use and enjoyment of the Services, as contemplated by these Terms (Licence).
You must not access or use the Services except as permitted by the Licence and you must not (and must not permit any other person to) use the Services in any way which is in breach of any applicable Laws or which infringes any person’s rights, including Intellectual Property Rights, including to;
use the Services to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;
use the Services in any way that damages, interferes with or interrupts the supply of the Services;
introduce malicious programs into our hardware and Software or Systems, including viruses, ransomware, malware, trojan horses and e-mail bombs;
reveal or allow others access to your Account’s password or authentication details or allow others to use your Account or authentication details;
carry out security breaches or disruptions of a network, including accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);
use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the Services;
if applicable, send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages, or use the Services in breach of any person’s privacy (such as by way of identity theft or “phishing”); or
circumvent user authentication or security of any of our Services, networks, accounts or hosts or those of our other users.
Support Services
During the Term, if you experience any faults in relation to the Services or any Add-Ons, you may email us at the address at the end of these Terms and we will provide technical support services, or support to rectify any faults with the Add-Ons, provided that where required, you assist us in investigating and ascertaining the cause of the fault and provide us with access to all necessary information relevant to the fault (including what you have done in relation to the fault).
Australian Consumer Law
Certain legislation, including the ACL, and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of our goods and services which cannot be excluded, restricted or modified (Statutory Rights).
Nothing in these Terms excludes your Statutory Rights as a consumer under the ACL.
Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including the Services) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or any other basis.
This clause 8 will survive termination or expiry of these Terms.
Privacy and Communication
We agree to handle any Personal Information you provide to us, solely for the purpose of performing our obligations under these Terms.
We may contact you via the platform for the Services, using in-Account notifications or via-off platform communication channels, such as email with functional notifications.
We may also send marketing and promotional material, using your contact details. You may opt out of receiving direct marketing messages at any time. Where you opt-out we will continue to send you functional communications relevant to your use of the Services.
Confidential Information
Each Receiving Party agrees:
not to disclose the Confidential Information of the Disclosing Party to any third party;
to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and
to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.
The obligations in clause 10.1 do not apply to Confidential Information that:
is required to be disclosed in order for the Parties to comply with their obligations under these Terms;
is authorised to be disclosed by the Disclosing Party;
is in the public domain and/or is no longer confidential, except as a result of a breach of these Terms; or
must be disclosed by Law or by a regulatory authority, including under subpoena.
Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 10. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 10.
This clause 10 will survive the termination or expiry of these Terms.
Intellectual Property Rights
You agree that all Intellectual Property Rights:
in the Services;
in the Intellectual Property developed, adapted, modified or created by us, or our Personnel (including in connection with these Terms or the Services);
will at all times vest, or remain vested, in us. To the extent that ownership of the Intellectual Property Rights does not automatically vest in us, you agree to do all acts necessary or desirable to assure our title to such rights.
You must not whether directly or indirectly, without our prior written consent:
copy or use, in whole or in part, any of our Intellectual Property;
reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our Intellectual Property to any third party;
reverse assemble, reverse engineer, reverse compile or enhance the Services;
attempt to discover the source code or object code or underlying structures, ideas, know how or algorithms in relation to the Services, the data or documentation;
breach any Intellectual Property Rights connected with the Services, including altering or modifying any of our Intellectual Property;
cause any of our Intellectual Property to be framed or embedded in another website; or create derivative works from any of our Intellectual Property;
resell, assign, lease, hire, sub-license, transfer, distribute or make available the Services to third parties;
“frame”, “mirror” or serve any of the Services on any web server or other computer server over the Internet or any other network; and
alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers or any other means of identification used on or in relation to the Services.
This clause 11 will survive the termination or expiry of these Terms.
Analytics
Despite anything to the contrary, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Services, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it:
does not contain identifying information; and
is not compiled using a sample size small enough to make the underlying data identifiable.
We, and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all Intellectual Property Rights in the foregoing.
Warranties
You warrant and agree that:
there are no legal restrictions preventing you from entering into these Terms;
all information that you provide to us is true, correct and complete;
you have not relied on any representations or warranties made by us in relation to the Services (including as to whether the Services are or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms;
the Services are provided to you solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, our Services to third parties, or users who do not have an Account, without our prior written consent;
you will not use the Services for any illegal purpose;
you have reviewed these Terms, including our Privacy Policy, and you understand them and will use the Services in accordance with them; and
you have all the Add-Ons, hardware, software and services which are necessary to access and use the Services, including any required operating systems as set out on the Site.
Indemnities
Except to the extent that the Liability arose from our negligent acts or omissions or any of our Personnel, you indemnify us and our Personnel against all Liability that we or any of our Personnel may sustain or incur as a result, whether directly or indirectly, of:
your breach of these Terms; and
your negligent, unlawful or wilful acts or omissions in connection with these Terms.
Limitations on Liability
Despite anything to the contrary and to the maximum extent permitted by law:
we will not be liable for any Consequential Loss;
our liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by your acts or omissions; and
our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us resupplying the Services to you or, in our sole discretion, to us repaying you the amount of the Fees paid by you to us in respect of the supply of the relevant Services to which the Liability relates, or, if no Fees are paid, $100.
This clause 15 will survive termination or expiry of these Terms.
Exclusions to Liability
Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability, caused or contributed to by, arising from or connected with:
loss of, or damage to, any property or any injury to or loss to any person;
the Computing Environment;
your acts or omissions;
any use or application of the Services by a person or entity other than you, or other than as reasonably contemplated by these Terms;
any work, services, goods, materials or items which do not form part of the Services (as expressed in these Terms), or which have not been provided by us;
any Third Party Inputs;
the Services being unavailable, or any delay in us providing the Services to you, for whatever reason; and/or
any event outside of our reasonable control.
You acknowledge and agree that:
you are responsible for your use of the Services;
you use the Services and any associated programs, files and Add-Ons at your own risk;
the technical processing and transmission of the Services, including your data, may be transferred unencrypted and involves:
transmissions over various networks; and
changes to conform and adapt to technical requirements of connecting networks or devices;
we may use third party service providers to integrate with or host the Services. If the providers of third party applications or services cease to make their services or programs available on reasonable terms, we may cease providing any affected features without Liability or entitling you to any refund, credit, or other compensation;
the Services may use third party products, facilities or services. We do not make any warranty or representation in respect of the third party products, facilities or services;
we do not guarantee that any file or program available for download and/or execution from or via the Services is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used;
we are not responsible for the integrity or existence of any data on the Computing Environment, network or any device or hardware controlled by you; and
we may pursue any available equitable or other remedy against you if you breach any provision of these Terms.
This clause 16 will survive termination or expiry of these Terms.
Termination
These Terms will terminate immediately upon written notice by:
us:
if you breach any provision of these Terms and that breach has not been remedied within 10 Business Days of being notified by us;
if you are an Invited User and your Enterprise Organisation’s Client Agreement with us expires or is terminated;
for any other reason outside our control which has the effect of compromising our ability to provide the Services; or
if you are unable to pay your debts as they fall due; and
you, if we:
are in breach of a material term of these Terms, and that breach has not been remedied within 10 Business Days of being notified by you; or
are unable to pay our debts as they fall due.
Upon expiry or termination of these Terms:
we will immediately cease providing the Services;
you agree that, to the maximum extent permitted by law, any payments made are not refundable;
you agree to pay us the remainder of the Fees for your current Membership term; and
pursuant to clauses 17.1(a)(1) or (4), you also agree to pay us additional costs arising from, or in connection with, such termination.
Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.
This clause 17 will survive the termination or expiry of these Terms.
Notice regarding Apple
To the extent that you are using or accessing our Services on an iOS device, you further acknowledge and agree to the terms of this clause. You acknowledge that these Terms are between you and us only, not with Apple Inc. (Apple), and Apple is not responsible for the Platform and any content available on the Platform.
Apple has no obligation to furnish you with any maintenance and support services with respect to our Site or Services.
If our mobile application fails to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price of the mobile application to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the mobile application and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our responsibility.
Apple is not responsible for addressing any claims by you or any third party relating to our mobile application or your use of our mobile application, including but not limited to (1) product liability claims; (2) any claim that our mobile application fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.
Apple is not responsible for the investigation, defence, settlement and discharge of any third-party claim that our mobile application infringes that third party’s intellectual property rights.
You agree to comply with any applicable third-party terms when using our mobile application, including any Usage Rules set forth in the Apple App Store Agreement of Service.
Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms.
You hereby represent and warrant that (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.
General
Access: The Services may be accessed in Australia and overseas. We make no representation that the Services comply with the Laws (including Intellectual Property Laws) of any country outside of Australia. If you access the Services from outside Australia, you do so at your own risk and you are responsible for complying with the Laws in the place you access the Services.
Amendment: We may update these Terms, or amend the Services or the Fees at any time. Where we update or amend these Terms, the Services, or the Fees, we will notify you via an in-Account notification or via email. If you do not agree with any update or amendment, or if you believe any amendment materially detriments you, you may, within 30 days of the update or amendment, terminate these Terms, in which case, clause 17.2 will apply.
Assignment: A Party must not assign or deal with the whole or any of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
Dispute: If a dispute arises, the Parties will agree to meet in good faith to seek to resolve the dispute, before proceeding to any dispute resolution process. This will not prevent a Party from seeking urgent equitable relief.
Entire agreement: These Terms contain the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
Force Majeure: We will not be liable for any delay or failure to perform our obligations under this Agreement, including delivery of Add-Ons, if such delay is due to any circumstance beyond our reasonable control, including due to any disease, epidemic, pandemic, government-sanctioned shutdown or global economic downturn.
Governing law: These Terms are governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions.
Definitions
In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in these Terms, and:
Account means an account accessible to you to use the Services;
ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time;
Add-Ons means add-ons which supplement and enhance the Services, such as virtual reality hardware and essential oils;
Business Day means a day on which banks are open for general bank business in New South Wales, excluding Saturdays, Sundays and public holidays;
Client Agreement means a client agreement between us and an Enterprise Organisation;
Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems;
Confidential Information includes information which:
is disclosed to the Receiving Party in connection with these Terms at any time;
is prepared or produced under or in connection with these Terms at any time;
relates to the Disclosing Party’s business, assets or affairs; or
relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms,
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information;
Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise;
Disclosing Party means the party disclosing Confidential Information to the Receiving Party;
Enterprise Organisation means an enterprise organisation which has entered into a Client Agreement with us;
Effective Date means the date on which you accept these Terms;
Fee or Fees means those fees due and payable by Individual Users for the Services, as set out in your Membership;
Intellectual Property means any copyright, registered and unregistered trade marks, designs (whether or not registered or registrable), domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing;
Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property;
Individual User means a user who creates an Account on our Site independently of any Enterprise Organisation;
Invited User means a user invited by an Enterprise Organisation to use the Services;
Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with these Terms or the provision of the Services, and includes the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth);
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise;
Membership means either: (1) if you are an Individual User, the membership package you choose, including the Fees, billing cycle, features and Add-Ons and as otherwise set out in your Account; or (2) if you are an Invited User, the membership package chosen by your Enterprise Organisation, including the features and Add-Ons and as otherwise set out in your Account;
Personal Information is defined in the Privacy Act 1988 (Cth) and also includes any similar term as defined in any other privacy law applicable to you;
Personnel means our employees, consultants, suppliers, subcontractors or agents;
Price means the purchase price of each Add-On you order plus any applicable delivery costs set out on the Site;
Privacy Policy means any privacy policy set out on our Site;
Receiving Party means the party receiving Confidential Information from the Disclosing Party;
Services means the Software, the services and any Add-Ons as further particularised in your Membership;
Site means the site available at www.atoneapp.com, available via our mobile phone application, and which may be available through other addresses and channels;
Social Media Account means a Facebook or other social media network account which you may use to create an Account;
Software means the cloud-based software, including all instructions in hard copy or electronic form and any update, modification or release of any part of that software;
System means all hardware, software, networks and other IT systems used by a Party from time to time, including a network;
Term means the term starting on the Effective Date and continuing until the date on which your Account and these Terms are terminated in accordance with the terms;
Terms means the terms and conditions of this End User Agreement; and
Third Party Inputs means third parties or any goods and services provided by third parties, and includes the Add-Ons manufactured by third parties and sold by us to supplement the Services (such as Oculus virtual reality hardware), which the provision of the Services may be contingent on, or impacted by.
For any questions and notices, please contact us at:
Atone Australia Pty Ltd (ACN 639 115 281)
Email: enquiry@atoneapp.com
Last update: 4 August 2021