The core value of Tootl’oo is trust. It needs to be. Without it, the service we provide simply doesn’t reflect you, the human being using it.

With that in mind, these T&Cs can be thought of as a list of promises. Tootl’oo loves promises. We wish we could rename this document ‘Trust and Promises’, but we can’t.

You may not be as excited as us about these T&Cs, but we encourage you to read through carefully, so that we can all be on the same page.

Tootl’oo and you (together, the Parties) agree in consideration of, among other things, the mutual promises contained in these T&Cs, as follows:

1. Term
   • Initial Term

These T&Cs start on the Start Date and, unless renewed under clause 1.2 or brought to an end earlier in accordance with its terms, expires on the Expiry Date (Initial Term).

• Automatic renewal

The term of these T&Cs will automatically renew for a period of 30 calendar days from the end of each Term, unless you bring these T&Cs to an end in accordance with its terms prior to the end of the then-current term.

2. Services
   • Supply of Services

Tootl’oo will provide the Services to you during the Term in accordance with these T&Cs.

• Assumptions and Dependencies

You understand and agree that:

• the Services supplied to you by Tootl’oo under these T&Cs may be contingent upon certain assumptions being true and certain dependencies being fulfilled by you;
• Tootl’oo reserves its right to bring to an end (in whole or in part) these T&Cs if any of the assumptions are not true or any of the dependencies are not met to Tootl’oo’s reasonable satisfaction; and
• the Fees are non-refundable and will need to be paid in full by you unless these T&Cs are brought to an end under clause 2.

3. Fees
   • As consideration for the Services, you will pay the Fees in accordance with and as specified in Schedule 1.
   • If you don’t pay an amount due under these T&Cs on or before the date it is due, Tootl’oo can suspend or revoke your access to the Platform.
4. Direct Debit
   • Direct Debit

You:

• authorise direct debit of the payment method provided on installation of the Platform in line with any Third-Party Service Provider’s separate direct debit (DD) authorisation form and any DD agreement as applicable;
• authorise Tootl’oo to charge your bank account or credit card on or after any applicable due dates for Fees, subject to the terms of any separately signed DD authorisation form or DD agreement;
• must ensure that there are sufficient funds available in your account to allow the payment provider to debit the amount payable; and
• acknowledge and agree that there may be additional payments requirement from the payment provider if you miss of fail to make any payment. The terms of any DD agreement are separate and in addition to these T&Cs.

• GST inclusive

Any consideration or amount payable under these T&Cs is inclusive of GST.

5. Platform
   • Use of Platform
     • Subject to the terms of these T&Cs, Tootl’oo will provide you with access to, and use of, the Platform during the Term.
     • Except as provided for in these T&Cs, you must not use the Platform for any reason other than the Accepted Use.
   • Disclaimers
     • Tootl’oo does not and cannot control the flow of data to or from the Platform and other portions of the Internet.
     • Such flow depends in large part on the performance of Internet services provided or controlled by third parties.
     • At times, actions or inactions of such third parties can impair or disrupt the connection of the Platform to the Internet (or portions thereof).
     • Although Tootl’oo will try our best to take appropriate actions to remedy and avoid issues caused by these events, Tootl’oo cannot guarantee that such events will not occur.
     • To the extent permitted by law, Tootl’oo disclaims liability resulting from or related to the events described in clauses 2(a) to 5.2(f) or arising from Third-Party Service Provider actions.
     • Tootl’oo will try our best to correct any error in the Platform which impairs or prevents the Platform from fully operating in the most optimal manner. We will do this as soon as reasonably practicable following receipt of a written notice of the Error from you. You can let us know of any Errors by using the support function of the Platform, or by sending an email to support@tootloo.com.

6. Licensing
   • Exclusivity

Toot’loo and you both acknowledge that:

• the Platform is existing proprietary product of Tootl’oo or authorised licenced use of third party products;
• any Modifications connected to the Platform are future proprietary products of Tootl’oo (excluding Your Data);
• the licence arrangement contemplated by these T&Cs is non-exclusive; and
• Tootl’oo is in no way constrained or restricted in its continued use, development, sale, licensing or commercial supply of the Platform (including any Modifications connected to these).

• Licence to use the Platform

For the duration of the Term, Tootl’oo grants you a non-transferable, non-exclusive, non-sub-licensable, royalty-free, worldwide licence to access and use the Platform for the sole purpose of accessing the Services in the ordinary course of utilising the Services provided by Tootl’oo and in accordance with the Accepted Use.

• Licence to use Third-Party Integrations

For the duration of the Term, Tootl’oo grants you a non-transferable, non-exclusive, non-sub-licensable, royalty-free, worldwide licence to use, display, copy, modify, adapt and publish the outputs sent to you or your designated recipients by a Third-Party Service Provider via their Third-Party Integrations in the ordinary course of utilising the Services provided by Tootl’oo and in accordance with the Accepted Use.

• Licence to use Your Data

• You grant Tootl’oo a transferable, non-exclusive, sub-licensable, royalty-free, worldwide, licence to use, display, copy, modify, adapt and publish Your Data in the ordinary course of providing the Services to you during the Term. After the Term, the licence to Your Data will continue until terminated in accordance with your release schedule.

• To the extent reasonably possible, Tootl’oo will encrypt Your Data.
• Other than the Message Metrics and Your Account Information, Your Data will be visible only to you and your designated recipients.
• We understand that the messages and media shared via the Platform are very personal and acknowledge that a lot of trust is placed in Tootl’oo. This is why the Message Metrics do not include anything that would allow Tootl’oo to see the content of any messages or media. These are between you and your designated recipients.
• Tootl’oo may use the Message Metrics only to improve, update, modify or upgrade the Platform or services provided by Tootl’oo.
• Tootl’oo will not use Your Data in any other way than as described in this clause 6.4.

7. Support Services
   • Support Services

Tootl’oo must provide you with all reasonable assistance relating to the Support Services.

• General obligation

In providing the Support Services, Tootl’oo will:

• act at all times with due care, skill, competence, diligence and judgment;
• act at all times in a professional and ethical manner; and
• possess all relevant authorisations, permits and licences to perform the Support Services.

8. Representations and warranties
   • Mutual warranties

Toot’loo and you both represent and warrant to each other that:

• it has full power and authority to enter, perform and observe its obligations under these T&Cs;
• these T&Cs do not contravene its constitution or other constituent documents or any law, regulation, ruling, consent, judgement, order or official directive or any of its obligations or undertakings by which it or any of its assets are bound or cause a limitation on its powers or those of its directors to be exceeded;
• its obligations under these T&Cs are valid, binding, and enforceable;
• it has not granted to any other person rights inconsistent with the rights granted under these T&Cs; and
• no litigation, arbitration, mediation, conciliation, or administrative proceedings are taking place, pending or threatened which, if adversely decided, could have a material adverse effect on its ability to perform its obligations under these T&Cs.

• All other warranties are excluded
  • Except as otherwise expressly provided in these T&Cs and to the maximum extent permitted by law, the Services are provided to you on an ‘as is, as available’ basis without any representations or warranties of any kind, either express or implied, including, but not limited to, any implied warranties of merchantability, title, non-infringement, security, availability, accuracy or otherwise.
  • To the maximum extent permitted by law Tootl’oo expressly disclaims all warranties, including:
    • that the Services will meet your requirements;
    • that the Services will be error-free correct, accurate, complete, reliable, current, up-to-date, or otherwise; and
    • the Platform will be error free or function in an uninterrupted manner, be available 24 hours a day, 7 days a week, or be fully secure or otherwise compatible with the your computer equipment, systems, environment, hardware, or software.
  • Australian Consumer Law Guarantees
    • Notwithstanding anything set out to the contrary in these T&Cs, Tootl’oo’s Services come with guarantees that cannot be excluded under Australian Consumer Law.
    • For major failures of the Services, you are entitled to terminate these T&Cs and receive a refund for the unused portion of the Term, or to compensation for its reduced value. You are also entitled to be compensated for any other reasonably foreseeable loss or damage.
    • Under Australian Consumer Law, if the failure does not amount to a major failure, you are entitled to have problems with our Services rectified in a reasonable time and, if we fail to rectify our Services, you are entitled to terminate these T&Cs and obtain a refund for the unused portion of the Term.

9. Intellectual Property Rights
   • Ownership of Intellectual Property by Tootl’oo

The Platform is very valuable to our community and us. We have worked hard to create a safe and inclusive space for you and your designated recipients to enjoy in their own personal ways. We are sure you understand that it must follow then, that we both agree that Tootl’oo exclusively owns all Intellectual Property Rights in:

• the Platform;
• the systems and background technology used to provide the Platform; and
• any Modifications relating to the Intellectual Property Rights referred to in clauses 1(a) to 9.1(b) inclusive.

• Ownership of Intellectual Property by you

You retain ownership of all Your Data. 

• Your warranties and obligations
  • You warrant and represent that, in the course of accessing or using the Services, the Platform, or otherwise, you will not:
    • infringe any third-party Intellectual Property Rights;
    • use the Platform for any illegal or criminal purpose or activity or for any purpose other than the Accepted Use;
    • other than as permitted by Tootl’oo, modify, translate, make derivative works from, disassemble, reverse compile or reverse engineer any part of the Platform, including to build a product that is similar or substantially the same as the Platform or provides substantially the same functionality or Services; or
    • remove, deface or destroy any copyright or other rights notices used on, or in connection with the Platform and you acknowledge that any attempt to do so is a violation of the rights of Tootl’oo.
  • You warrant and represent that:
    • you have full power, capacity and authority to enter into these T&Cs and perform all of its obligations under these T&Cs, and upload the information of your Next of Kin to the Platform;
    • your use of the Platform or the Services has not been previously suspended by Tootl’oo;
    • you are not a direct competitor of Tootl’oo or any of Tootl’oo’s products or services; and
    • you will not, in any way or at any time, challenge or dispute Tootl’oo’s rights, title or interest in the Platform or any Third-Party Integrations, or any Intellectual Property Rights connected to, or in, those assets.
  • Any publication or use of Your Data, and any Third-Party Integrations, is at your sole risk and you agree that:
    • your use of Your Data and Third-Party Integrations on third-party sites (Third-Party Site) is at your sole risk and is your responsibility;
    • any information that you publish or post on any Third-Party Site will be handled in accordance with that Third-Party Site’s policies, including their Privacy Policy;
    • Tootl’oo does not endorse or warrant the accuracy of any such Third-Party Sites and is not liable or responsible for any Third-Party Site, including advertising, products or materials on or available from them; and
    • Tootl’oo disclaims all liability for any loss or damages you incur or allege to have incurred, either directly or indirectly, as a result of your use and/or reliance upon any such Third-Party Site, or your processing or use of Your Data, Third-Party Integrations or Personal Information whether provided to a Third-Party Site or otherwise.
  • It is your responsibility to monitor the usage of Your Data and Third-Party Integrations, including the unauthorised or offensive use of Your Data or Third-Party Integrations by any Third-Party Site or Third-Party User.
  • Tootl’oo assumes no responsibility for identifying or requiring the removal of Your Data or Third-Party Integrations from any Third-Party Sites (such as social networking sites) where Your Data or Third-Party Integrations has been published or used.
• Notification of potential infringement Claims

Toot’loo and you both agree to promptly notify each other if we, or you, become aware of any potential infringement of any Intellectual Property Rights or obligations of confidence relating to the Platform or any Third-Party Integrations.

10. Confidentiality
    • Confidentiality obligations

 Toot’loo and you must both:

• take all action reasonably necessary to maintain the confidentiality of the other party’s Confidential Information;
• not disclose the other party’s Confidential Information to any person except as permitted under this clause;
• only use or reproduce the other party’s Confidential Information for the purposes of performing its obligations or exercising its rights under these T&Cs;
• not make, assist or permit any person to make any unauthorised use, disclosure or reproduction of the Confidential Information of the other party;
• take all steps reasonably necessary to secure each other’s Confidential Information against theft, loss or unauthorised disclosure;
• take reasonable steps to ensure that any person who has access to Confidential Information of the other party through it or on its behalf does not use, reproduce or disclose that Confidential Information other than in accordance with these T&Cs; and
• take reasonable steps to enforce the confidentiality obligations imposed or required to be imposed by these T&Cs including diligently prosecuting at its cost any breach or threatened breach of such confidentiality obligations by a person to whom it has disclosed Confidential Information of the other party.

• Permitted disclosures

Either of us may disclose the other party’s Confidential Information:

• to its Representatives on a need-to-know basis for the purposes of these T&Cs provided that those Representatives are fully aware of the confidential nature of the Confidential Information before the disclosure is made;
• as required or authorised by law or the listing rules of any relevant stock exchange; or
• with the other party’s consent.

• Return of Confidential Information

Toot’loo and you must both return the other party’s Confidential Information on request or otherwise when such Materials are no longer required for the purpose of these T&Cs. Return of the documents and other Materials referred to in this clause does not release any party from its confidentiality obligations.

• Injunctive relief

Toot’loo and you both acknowledge that a breach of this clause 10 may cause irreparable damage for which monetary damages would not be an adequate remedy. Accordingly, in addition to other remedies that may be available, a party may seek injunctive relief against such a breach or threatened breach.

11. Tootl’oo Data
    • Materials provided to you

Any Materials that Tootl’oo provides to you (including Tootl’oo Data) is and will remain the property of Tootl’oo.

• Restrictions on Your use of Tootl’oo Data
  • You must:
    • only possess Tootl’oo Data as part of the Services and in accordance with Tootl’oo’s instructions from time to time;
    • not access, modify or delete Tootl’oo Data at any time for any reason, or otherwise use, publish or copy Tootl’oo Data for any purpose, other than as:
      • expressly permitted by these T&Cs or by Tootl’oo in writing; or
      • required by law, by a court or any regulatory authority, provided that (unless otherwise prohibited) prior to doing so you promptly notify Tootl’oo in writing to allow Tootl’oo to take all reasonable steps to resist such requirement;
    • not purport to sell, let for hire, assert a lien over, assign rights in or otherwise dispose of any Tootl’oo Data; and
    • not commercially exploit any Tootl’oo Data.
  • Notwithstanding anything else in these T&Cs, upon Tootl’oo’s request, including following the expiry or termination of these T&Cs for any reason or where there is a dispute, you must:
    • immediately provide us or our nominee with access to, and copies of, the Tootl’oo Data, and you must not assert, seek to enforce or enforce any right of you not to comply with this clause 2(b)(i), and irrevocably and unconditionally waive any right you may otherwise have to do so;
    • promptly return all of the Tootl’oo Data in a form reasonably requested by Tootl’oo; and/or
    • if requested by Tootl’oo:
      • securely destroy the Tootl’oo Data; and
      • promptly certify to Tootl’oo that you have done so.

12. Privacy
    • Australian Privacy obligations
      • If either of us collects, uses, discloses, transfers or otherwise handles any Personal Information, it must comply with the Privacy Laws.
      • Without limiting clause 1(a), each of us must:
        • notify the other party immediately if it becomes aware of any actual or potential misuse, interference, loss or unauthorised access, modification or disclosure of Personal Information, or if it becomes aware of a breach of this clause 12; and
        • notify the other party as soon as reasonably practicable after it becomes aware that a disclosure of any Personal Information may be required by law and, if reasonably requested by the other party, prior to any such disclosure.
      • Survival of obligations of confidentiality and privacy

The obligations of confidentiality and privacy imposed by these T&Cs survive the expiration or termination of these T&Cs.

13. Indemnity and liability
    • Scope of indemnity

Subject to clauses 13.2 and 13.3, to the extent permitted by law, you release and indemnify Tootl’oo against all Losses suffered or incurred by the you in connection with:

• any Infringement Claim caused or contributed to by you;
• any breach by you of these T&Cs; and
• any negligent or wrongful act or omission by you.

• Process for Infringement Claims

In the event of an Infringement Claim, you will:

• give Tootl’oo prompt written notice of the Infringement Claim;
• allow Tootl’oo control of the defence and related settlement negotiations (provided that Tootl’oo must not settle any Infringement Claim in a manner that will adversely affect you); and
• provide to Tootl’oo all reasonable assistance, at your expense.

• Mitigation

You must take all reasonable steps to avoid or mitigate any Loss or liability you might suffer or incur in relation to these T&Cs (including under an indemnity).

• Limitation of Liability

To the fullest extent permitted by law, the maximum cumulative liability of Tootl’oo for Loss arising out of or in connection with these T&Cs (whether under statute, in contract or otherwise) is limited to the Fees paid by you under these T&Cs, except to the extent that such Loss arises directly from fraud.

• Consequential loss

Subject to clause 13.4, Tootl’oo will not be liable to you under these T&Cs for any special, indirect, or consequential loss or damage including, without limitation, loss of revenue or profits, loss of reputation, loss of goodwill, loss of business opportunity, loss of contract and loss of data.

• Survival of indemnities

The indemnities contained in these T&Cs continue after the expiry or termination of these T&Cs.

14. Termination
    • Termination for convenience
      • Subject to you paying your Fees under these T&Cs, you may bring these T&Cs to an end for convenience prior to the expiry of the Term.
    • Termination for cause

Either party may bring these T&Cs to an end by written notice to the other party if the other party commits a material breach of these T&Cs which is:

• incapable of being remedied; or
• capable of being remedied, but the other party fails to remedy the breach within 20 Business Days after receiving notice from the other party to do so.

• Other termination rights

Tootl’oo may bring these T&Cs to an end immediately if;

• you use the Services for a purpose other than the Accepted Use;
• an Insolvency Event occurs in relation to the you; or
• you take any step toward, or suffer or experience any step in relation to, an Insolvency Event.

• Consequences of termination

If these T&Cs are brought to an end or expire, without limiting any right or remedy Tootl’oo may have under these T&Cs or at law:

• each licence granted by Tootl’oo under these T&Cs will be brought to an end immediately without the need for anything else to be done and all Intellectual Property Rights granted under such licences revert from you back to Tootl’oo; and
• Your Data will continue to be licenced in accordance with your release schedule;
• you must promptly:
  • stop using the Platform; and
  • at your own cost destroy or deliver to Tootl’oo (at Tootl’oo’s election) all copies of the Material, and once delivered to Tootl’oo, uninstall and destroy any copies of the Platform electronically stored by you.
• Claims

The expiry or termination of these T&Cs does not affect:

• any claim that a party may have against the other party;
• either party’s rights in respect of any breach of these T&Cs occurring before expiry or termination; or
• the obligations of the parties to make a payment or perform any other act under these T&Cs which was due before expiry or termination.

15. Disputes
    • Dispute Notice

If a dispute arises between you and Tootl’oo in relation to these T&Cs, either of us may by notice to the other party specifying reasonable details of the dispute (Dispute Notice), refer the dispute for resolution in accordance with this clause 15.

• Good faith discussions
  • If a Dispute Notice is given, Toot’loo and you will meet and engage in good faith discussions with the bona fide objective of resolving the dispute by agreement.
  • If Toot’loo and you are unable to resolve the dispute after a period of 10 Business Days (or such other period as may be agreed), either party may escalate the dispute by notice to the other party (Escalation Notice).
  • If an Escalation Notice is given, a Representative of each party must meet and engage in good faith discussions with the bona fide objective of resolving the dispute by agreement.
  • If the parties are unable to resolve the dispute after 10 Business Days, the parties may by agreement refer the dispute to mediation in accordance with clause 3. If the parties do not agree to refer the dispute to mediation, either party may commence legal proceedings.
• Mediation
  • The mediation must be conducted in private in accordance with the ADC Guidelines and the provisions of this clause 3. In the event of any inconsistency between them, clause 15.3 will prevail.
  • Each party must notify the other no later than 48 hours prior to mediation of the names of their representatives who will attend the mediation. No party may refuse the other’s chosen representatives or limit the other’s representatives attending during the mediation.
  • The terms of any mediation settlement agreement and any information relating to the existence, conduct, status or outcomes of the mediation is Confidential Information of each party and may be published or announced only with the consent of all relevant parties and in terms agreed by those parties.
  • Each party will bear its own costs of the mediation including the costs of any representatives, and each will bear half the costs of the mediator.
• No legal proceedings

Neither Tootl’oo nor you may commence legal proceedings (other than for urgent interlocutory relief) in relation to any dispute unless the dispute resolution procedures set out in this clause 15 have been followed.

• Continuation of T&Cs

Notwithstanding the existence of a dispute, the parties must continue to perform their obligations under these T&Cs.

16. General
    • Notices

Any notice, demand, consent or other communication (a Notice) given or made under these T&Cs:

• must be in writing and signed by a person duly authorised by the sender;
• must be delivered to the intended recipient by prepaid post (if posted to an address in another country, by registered airmail) or by hand, or by email to the address below or the address last notified by the intended recipient to the sender;
• must be sent to the addresses or e-mail for notices provided by the parties on agreeing to these T&Cs, or as otherwise agreed in writing; and
• will be taken to be duly given or made:
  • in the case of delivery in person, when delivered; and
  • in the case of delivery by post, seven business days after the date of posting (if posted to an address in the same country) or seven business days after the date of posting (if posted to an address in another country),

but if the result is that a Notice would be taken to be given or made on a day that is not a business day in the place to which the Notice is sent or is later than 4.00pm (local time) it will be taken to have been duly given or made at the commencement of business on the next business day in that place.

• Governing Law and Jurisdiction

These T&Cs are governed by the laws of Victoria, Australia and each party submits to the exclusive jurisdiction of courts exercising jurisdiction there in connection with matters concerning these T&Cs and waives any right to object to such venues on any ground.

• Operation of indemnities
  • Each indemnity in these T&Cs survives the expiry or termination of these T&Cs.
  • A party may recover a payment under an indemnity in these T&Cs before it makes the payment in respect of which the indemnity is given.
  • If a provision of these T&Cs is expressed to:
    • indemnify;
    • exclude or limit any liability of; or
    • otherwise benefit,

a person who is not a party to these T&Cs, you agree that Tootl’oo holds the benefit of that indemnity, exclusion, limitation or other benefit on trust for that person and may enforce these T&Cs on their behalf and for their benefit.

• Invalidity
  • A word or provision must be read down if:
    • these T&Cs are void, voidable, or unenforceable if it is not read down;
    • these T&Cs will not be void, voidable or unenforceable if it is read down; and
    • the provision is capable of being read down.
  • A word or provision must be severed if:
    • despite the operation of clause 17.4(a), the provision is void, voidable or unenforceable if it is not severed; and
    • these T&Cs will be void, voidable or unenforceable if it is not severed.
  • The remainder of these T&Cs has full effect even if clause 4(a) or 16.4(b) applies.
• Cumulative Rights

The rights and remedies in these T&Cs are in addition to other rights and remedies given by Relevant Laws independently of these T&Cs.

• Entire Agreement

These T&Cs contains the entire agreement between the parties as at the date of these T&Cs with respect to its subject matter and supersedes all prior agreements and understandings between the parties in connection with it.

• GST on claims
  • If a party provides a payment for or any satisfaction of a claim or a right to claim under or in connection with this document (for example, for misleading or deceptive conduct or for misrepresentation or for a breach of any warranty or for indemnity or for reimbursement of any expense) that gives rise to a liability for GST, that party must pay, and indemnify the claimant against the amount of that GST.
  • If a party has a claim under or in connection with this document for a cost on which that party must pay an amount for GST, the claim is for the cost plus the amount for GST (except any amount for GST for which that party is entitled to an Input Tax Credit).
  • If a party has a claim under or in connection with this document whose amount depends on actual or estimated revenue or which is for a loss of revenue, revenue must be calculated without including any amount received or receivable as reimbursement for GST (whether that amount is separate or included as part of a larger amount).
• Clauses which survive expiry or termination

Clauses 5.1, 8, 9, 10, 11, 12, 13, 14, 15, and 16 survive the expiry or termination of these T&Cs, together with any other clause which by its nature is intended to do so.

• No Waiver

No failure to exercise nor any delay in exercising any right, power or remedy by a party operates as a waiver. A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.

• Counterparts

These T&Cs may be executed in any number of counterparts, and electronically. All counterparts together will be taken to constitute one instrument.

• Relationship between parties
  • Nothing in these T&Cs:
    • constitutes a partnership between the parties; or
    • except as expressly provided, makes a party an agent of another party for any purpose.
  • A party cannot in any way or for any purpose:
    • bind another party; or
    • contract in the name of another party.
  • If a party must fulfil an obligation and that party is dependent on another party, then that other party must do each thing reasonably within its power to assist the other in the performance of that obligation.
• Assignment
  • Tootl’oo may assign, transfer or otherwise deal with its rights under these T&Cs and agrees to provide notice to you of any assignment or transfer.
  • You may not assign, transfer or in any other manner deal with its rights under these T&Cs.
• Variation

An amendment or variation of these T&Cs may be made by Tootl’oo from time to time, with notice to you.

• Further assurances

Each party must promptly execute all documents and do all other things reasonably necessary or desirable to give effect to the arrangements recorded in these T&Cs.

17. Definitions and Interpretation
    • Definitions

In these T&Cs (as defined below):

Accepted Use means the use of the Platform by you to:

• create messages and upload media for the purpose of sending that data to your designated recipients; and
• view messages and uploaded media.

ADC means the Australian Disputes Centre.

ADC Guidelines means the ADC Mediation Guidelines in force from time to time which are incorporated into these T&Cs by reference.

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended.

Business Day means:

• for determining when a notice, consent or other communication is given, a day that is not a Saturday, Sunday or public holiday in the place to which the notice, consent or other communication is sent; and
• for any other purpose, a day that is not a Saturday, Sunday or public holiday in Victoria, Australia.

Confidential Information of a party means:

information of a confidential nature relating to or developed in connection with the business affairs of that party which is disclosed to, learnt by, or which otherwise comes to the knowledge of or into the possession of the other party;

• information designated by that party as confidential; or
• information regarding processes, policies, clients, customers, employees, contractors of or other persons doing business with that party,

but does not include information that:

• is or becomes generally available in the public domain, other than through any breach of confidence;
• is rightfully received by the other party from a third-party other than as a result of breach of confidence; or
• has been independently developed by the other party without using any other Confidential Information of the first party.

Tootl’oo’s Confidential Information includes the terms of these T&Cs and the Third-Party Integrations. For the avoidance of doubt, information developed by Tootl’oo for you under these T&Cs is Tootl’oo’s Confidential Information and not yours.

Corporations Act means the Corporations Act 2001 (Cth), as amended from time to time.

Expiry Date means, in the absence of renewal in accordance with clause 1.2, at the end of the then-current calendar month.

Fees means the fees that you will pay to Tootl’oo for the Services, as set out in Schedule 1, unless otherwise agreed in writing.

Initial Term means the initial term of these T&Cs as described in clause 1.1

Infringement Claim means any dispute, claim, suit or action or proceeding (actual, threatened or potential) made by a third-party against you alleging that the whole or a party of any the Platform, the Services, the Support Services or their respective supply, licence or use as authorised by these T&Cs, infringes (or would infringe) another person’s Intellectual Property Rights or trade secrets, except to the extent that the infringement has been caused by you;

Insolvency Event means, for a person, being in liquidation or provision liquidation or under administration, having a controller (as defined in the Corporations Act) or analogous person appointed to it or any of its property, being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand, being unable to pay its debts or otherwise insolvent, dying, ceasing to be of full legal capacity or otherwise becoming incapable of managing its own affairs for any reason, taking any step that could result in the person becoming an insolvent under administration (as defined in section 9 of the Corporations Act), entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors, or any analogous event.

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

• all rights in all applications to register these rights; and
• all renewals and extensions of these rights.

Losses means all losses, damages, liabilities, claims and expenses whatsoever (including reasonable legal costs and defence or settlement costs) and Loss has a corresponding meaning.

Material means material in any form, including documents, reports, products, equipment, information, data, software, software tools and software development methodologies and includes all releases, updates and amendments to the original Material made under these T&Cs.

Message Metrics means the size of the message and delivery timeframe of messages sent or scheduled by you to your designated recipient(s).

Modification includes an alteration, enhancement, update, fix or development whether created or developed under these T&Cs or otherwise and Modify and Modified have corresponding meanings.

Next of Kin means the next of kin information provided by you during your use of the Platform or Services.

Notice has the meaning given to it in clause 16.1.

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

Platform means the proprietary software owned by Tootl’oo that provides, among other things, private message media storage and delivery to designated recipients to you through a cloud-based application and includes any Modifications made to the Platform.

Privacy Laws means:

• the Privacy Act 1988 (Cth); and
• any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued thereunder, as amended from time to time.

Privacy Policy means the privacy policy of Tootl’oo, as updated or modified from time to time, and is available at tootloo.com/privacy.

Relevant Laws means all Commonwealth, Australian State or Territory and local legislation and any mandatory requirements, notices, orders or directions of an Authority which are relevant to:

• the Services;
• the Support Services;
• Tootl’oo’s performance of its obligations under these T&Cs; and/or
• your use and enjoyment of the Services and/or the Support Services.

Representative means, in respect of a party, any person acting for or on behalf of that party and includes any director, officer, employee, contractor, subcontractor or professional adviser of that party.

Services means the supply of access to the Platform to you under these T&Cs.

Start Date means the date on which you commence your subscription for the Services as per the process for onboarding set out by Tootl’oo from time to time.

Support Services means support services in relation to the Platform.

Term means the Initial Term and any further term.

Third-Party Integrations means any application or process connecting two or more applications, including via application programming interfaces, or other means of integration, provided by a Third-Party Service Provider.

Third-Party Service Provider means a service provider that may be engaged by Tootl’oo or you to provide services to you via a Third-Party Integration or otherwise.

Tootl’oo, we, us means Tootloo Pty Ltd (ACN 666 302 567).

Tootl’oo Data means any content or data owned by or vesting in Tootl’oo.

T&Cs means this agreement which consists of the terms and conditions of these T&Cs (being, clause 1 to 17); and any Schedules to these T&Cs.

You means a person or entity who subscribes to the Services as per the process for onboarding set out by Tootl’oo from time to time.

Your Account Information means the email address and first and last name provided by the you to Toot’loo during your use of the Platform or Services.

Your Data means any information derived from your use of the Platform or Services, other than the Message Metrics.

• Interpretation

In these T&Cs the following rules of interpretation apply unless the contrary intention appears:

• headings are for convenience only and do not affect the interpretation of these T&Cs;
• the singular includes the plural and vice versa;
• words that are gender neutral or gender specific include each gender;
• where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
• the words ‘such as’, ‘including’, ‘particularly’ and similar expressions are not used as, nor are intended to be, interpreted as words of limitation;
• a reference to:
  • a person includes a natural person, partnership, joint venture, government agency, association, corporation or other body corporate;
  • a thing (including, but not limited to, a chose in action or other right) includes a part of that thing;
  • a party includes its successors and permitted assigns;
  • a document includes all amendments or supplements to that document;
  • a clause, term, party, schedule or attachment is a reference to a clause or term of, or party, schedule or attachment to these T&Cs;
  • these T&Cs includes all schedules and attachments to it;
  • a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment, rule of common law or equity and is a reference to that law as amended, consolidated or replaced;
  • an agreement other than these T&Cs includes an undertaking, or legally enforceable arrangement or understanding, whether or not in writing; and
  • a monetary amount is in Australian dollars;
• an agreement on the part of two or more persons binds them jointly and severally;
• in determining the time of day, where relevant to these T&Cs, the relevant time of day is:
  • for the purposes of giving or receiving notices, the time of day where a party receiving a notice is located; or
  • for any other purpose under these T&Cs, the time of day in the place where the party required to perform an obligation is located;
• no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of these T&Cs or any part of it; and
• a term or expression starting with a capital letter which is defined in the Corporations Act, but is not otherwise defined in these T&Cs, has the meaning given to it in the Corporations Act.

• Inconsistency and documents comprising these T&Cs

If there is an inconsistency between any one or more of the documents comprising these T&Cs, the document listed higher in the following list will prevail to the extent of the inconsistency:

• the terms and conditions of these T&Cs;
• the schedule to these T&Cs;
• any annexures or attachments to the schedules of these T&Cs; and
• any other document incorporated by reference to any of the above.

Schedule 1 – Fees

For the provision of Services under these T&Cs, you agree to be bound by the following fee schedule:

The Subscription Fee is paid to Tootl’oo via the PayPal payment platform.  You agree to pay any fees charged directly by PayPal to process the payment of the Subscription Fee.

Upon termination of these T&Cs by either party, any fees paid by you to Tootl’oo are non-refundable and you will continue to have access to the Services and the Platform up and until the Expiry Date. Your Data will continue to be used in accordance with your release schedule.

This Schedule remains subject to change by Tootl’oo, and any price changes will not apply retrospectively.  You will be provided with at least 30 days’ notice prior to any price changes becoming effective.