HIJO PTY LTD
MOODFLX PLATFORM – TERMS & CONDITIONS
Last revised: 04/2021
The moodflx platform accessible through our downloadable software application (“Application”) is owned, controlled and operated by HiJo Pty Ltd (ACN 80 635 012 574) (“we”, “us”, “our”, or “HiJo”).
2. Description of Platform and Platform Services
2.1 Subject to any limitations in clause 2.2, Hi Jo operates the Platform. The Platform allows Staff to share information with their company anonymously or as themselves (“Platform Services”) as follows:
- a. Staff can input their mood;
- b. Staff can respond to Team Pulses with how they feel;
- c. Staff can sync their data with the app to get personal insights to contextual effects on their mood.
2.2 Not all Platform Services may be accessible at all times. Platform Services may only be available if the company you are connected to has a paying subscription with moodflx.
2.3 HiJo provides the Platform only. Team Pulses contained on the Platform is provided by the connected Company. HiJo accepts no liability for Team Pulses created on the Platform.
2.4 HiJo reserves the right to introduce additional functions and services on the Platform and to alter existing Platform Services at any time.
3. License to use Platform
4. User Account
4.1 There are no user accounts.
4.3 HiJo maintains the right at all times in its sole unfettered discretion and without prior notice to terminate or suspend any User, and to remove access to, or suspend the use of, any specific functions associated with any User (such as responding to Team Pulses).
4.4 You agree to not impersonate other Staff by inputting a false Business Area.
4.5 By connecting with a company, you warrant that the information you have provided to HiJo is true and correct, and you must comply with HiJo’s verification procedures (where applicable) and you consent for HiJo to verify the information (including personal information) that you have provided (where applicable).
5. Company Account
5.1 Companies will be issued logins to their Dashboard privately and securely.
5.2 You will only be able to access and use the Platform Services once your account has been authorized.
5.3 Staff data will be kept as anonymous as possible, unless otherwise chosen by Staff when inputting a mood or answering a Team Pulse as themselves.
5.4 Content uploaded to the Platform from a Staff User Accounts can only be viewed by the company account with access to the same division.
6.2 By using the platform, you acknowledge that you have read our Privacy Statement and consent to our collection, use and disclosure of your personal information in accordance with our Privacy Statement.
7. User Conduct
7.2 You must comply, and are solely responsible for complying, with Applicable Laws. Subject to any law to the contrary, we do not otherwise guarantee or warrant that your proposed or actual use of the Platform complies with Applicable Laws that may apply to your activities on the Platform.
7.3 You agree that you will not:
- b. Interfere or attempt to interfere with, or obtain or attempt to obtain unauthorized access to, the proper working of the Platform or any Content,including (without limitation) through:
- 1. hacking or use of automated devices, scripts or bots;
- 2. destructive transmission of viruses, malware or any code or other conduct of a disruptive or destructive nature;
- 3. reverse engineering, circumventing, damaging, disassembling, attempting to discover the source code; or
- 4. other illegitimate means;
- c. Contact Users of the Services for the purpose of sending unsolicited offers, advertisements, spam, junk e-mails;
- d. Contact Users for the purpose defaming, abusing, threatening or defrauding Users;
- e. Impersonate any entity or falsely claim an affiliation with any person or entity;
- f. Scrape or otherwise obtain any data from the Platform for any purpose or use any Content to spam third parties; or
- g. Contribute or distribute any User Content via the Platform that infringes Applicable Laws or any other legislation or regulations of any applicable jurisdiction (including without limitation the jurisdiction in which you are using the Platform). You agree that any legal consequences arising from a claim or action for infringement of any such legislation or regulation based on contributing or distributing User Content via the Platform are your sole responsibility and you are wholly liable for such claims or actions.
7.4 You warrant that your User Content does not contain any:
- a. Offensive, defamatory, obscene, blasphemous, hateful, violent, bullying, discriminatory or threatening language, or content that creates a risk of personal injury or property damage or makes any threat to people or public safety;
- b. Illegal, false, fraudulent, misleading or deceptive conduct, including but not limited to blackmail, extortion, financial or personal scams and attempts to impersonate others;
- c. Content that infringes the personal or proprietary rights of others, including but not limited to Intellectual Property rights and rights to privacy; or
- d. Spam, publicity or promotion of commercial activities or commercial content not specifically authorized by us with our prior written consent.
8. Intellectual Property
8.1 The Intellectual Property subsisting in any aspect of the Platform including without limitation text, graphics, artwork, logos, software, trade marks, designs, copyright, compilations, algorithms, source code, video recordings and audio recordings, as well as the structure, layout, user interface and “look and feel” of the Platform, but excluding User Content (“Platform IP”), is exclusively owned and controlled by HiJo and/or its third party affiliates, licensors and/or licensees, and is protected by Australian and international law governing intellectual property rights. The Platform IP remains HiJo’s exclusive property throughout the world in perpetuity.
8.2 You are not permitted to save, download, reproduce, display, copy, alter, conceal, adapt, perform, transmit, broadcast, sell, license or otherwise exploit any Platform IP unless you have express prior written authorization from HiJo. Any unauthorized use of Platform IP by Users is strictly prohibited.
8.3 Subject to the rights granted to HiJo under clause 10.4, you will retain exclusive ownership and/or control of any Intellectual Property subsisting in any User Content which you share via, or submit or upload to, the Platform.
8.4 Notwithstanding clause 9.3, you hereby grant to HiJo a perpetual, non-exclusive, fully paid, royalty-free, transferable, sub-licensee, non-revocable, unlimited, worldwide license to reproduce, exploit, use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute any User Content which you share via, or submit or upload to, the Platform, in any and all media, at HiJo’s sole discretion.
9. Consumer Guarantees and Disclaimers
9.2 Where you do not acquire our Platform Services as a Consumer, or clause 11.1 does not apply, then to the extent permitted by law:
- a. We do not guarantee or warrant that the Platform Services will be suitable or fit for any particular purpose, including the purpose for which the Services are ordinarily provided;
- b. We do not guarantee or warrant that access to and use of the Platform will be uninterrupted and fault-free at all times;
- c. We do not provide any guarantee or warranty that you may view, access or use the User Content via the Platform without infringing the Intellectual Property rights of a third party or for any incomplete, inaccurate, incorrect or out-of-date information in User Content on the Platform; and
9.3 In addition to clause 10.2, and subject at all times to clause 10.1, you acknowledge and agree that:
- a. All Content visible to Users on the Platform is not created, monitored or verified by HiJo and is provided by Events or Users. HiJo does not guarantee the accuracy, relevancy or appropriateness of any Content appearing on the Platform and you must exercise your own due diligence before relying on the accuracy, relevancy or appropriateness of any Content appearing on the Platform;
- b. Staff are not employed or sub-contracted by HiJo or any associate or employee or director or agent of HiJo;
- c. All incidents reported and logged via the Platform are done so by Staff, and checked off as completed by Staff, and not HiJo; and
- d. HiJo is not responsible for any conduct of any User which occurs outside the Platform.
9.4 The Platform may integrate with or host hyperlinks to third party web services, or host third party information or content within the Platform. All third party content hosted on the Platform is the responsibility of its author, and HiJo does not endorse or represent the views or opinions contained therein. HiJo is not responsible for any material contained on third party web services that is hosted on the Platform in any way,and any dealings between you and third parties is your sole responsibility.
10.1 If you are a Consumer, our liability to you for any Loss or Claim suffered as a result of us failing to comply with any Consumer Guarantees in relation to the Platform Services during the relevant period (“Affected Period”) is limited at our election to the resupply of the Platform Services for a period equivalent to the period of the breach, or payment of the cost of resupply of the Platform Services equivalent to Affected Period.
- a. Your use of, or inability to use, the Platform;
- b. Any failure by HiJo or other third parties to provide any information, service, feature or functionality via the Platform;
- c. Any unauthorized submission of information to the Platform;
- d. Statements or conduct of any third party using the Platform (including an Event);
- e. Use of third-party services in conjunction with the Platform by you;
- f. Any communication or interaction between Users via the Platform (including communication or interaction between Users and Events), whether online or offline;
- h. Any User Content that is uploaded, submitted, or otherwise appears, via the Platform;
- i. Where you fail to comply with any Applicable Laws when using the Platform;
- j. Where you fail to comply with any Applicable Laws or the Privacy Act when dealing with Personal Information in connection with the Platform; and
- k. Anything outside the reasonable control of HiJo including without limitation natural disasters, acts of God, equipment or infrastructure failure, civil riots, war (include cyber attacks), strikes, data breaches, viruses or malicious code.
12.3 Upon termination, you will no longer have access to the functionality of the Platform that requires a User Account. We will be under no obligation to store the User Content contributed through your User Account or provide you with further access to such User Content.
12.4 Notwithstanding clauses 13.1 to 13.3:
- b. We may store any User Content on our servers at our discretion, whereby our rights under clause 14.4 will continue in perpetuity.
13. Jurisdiction & Choice of Law
14. Complaints and Dispute Resolution
14.4 If a Dispute is not resolved by agreement within 20 business days of HiJo receiving a Dispute Notice, either party may refer the Dispute to confidential mediation to be conducted by an independent mediator appointed by agreement between the parties, or failing agreement within 30 business days of HiJo receiving the Dispute Notice, by a person appointed by the Chair of Resolution Institute, (ACN 008 651 232, Level 2, 13-15 Bridge Street, Sydney NSW 2000; telephone: 02 9251 3366, email: [email protected]) or the Chair’s designated representative. The Resolution Institute Mediation Rules shall apply to the mediation unless otherwise agreed. The costs of the mediator shall be borne equally between the disputing parties.
15.1 HiJo reserves the right to perform maintenance of the Platform (whereby the functionality of the Platform may not be accessible for a certain period of time) without notice to you.
15.7 In these Terms and Conditions, except where the context otherwise requires:
- a. The singular includes the plural and vice versa;
- b. Words such as including or for example do not limit the meaning of the words preceding them;
- c. A reference to a document includes the document as assigned, novated, altered, supplemented or replaced from time to time;
- d. Parties must perform their obligations to HiJo, and we will perform our obligations, on the dates and times fixed by reference to Melbourne, Victoria;
- e. A reference to any party to these Terms and Conditions, includes that party’s executors, administrators, successors and permitted assigns and substitutes;
- f. A reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
- g. A reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re enactments or replacements of any of them;
- h. A rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it; and
- i. An obligation or liability assumed by, or a right conferred on, two or more parties binds or benefits them all jointly and severally.
- “ACL” means the Australian Consumer Law, being Schedule 2 of the Competition and Consumer Act 2010 (Cth)
- “Applicable Laws” means any and all applicable laws, statutes, regulations, instruments and by-laws and all other subordinate legislation or orders made by any authority with jurisdiction over the use of the Platform by Users.
- “Claim” mean any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature, whether present or future, fixed or unascertained, actual or contingent, at law, in equity, under statute or otherwise.
- “Consumer” means a User who views, accesses and uses the Platform in Australia, and:
- a. the amount payable for the Platform Services does not exceed $40,000;
- b. the Platform Services provided are of a kind ordinarily acquired for personal, domestic or household use or consumption; or
- c. is a “Consumer” as defined under the ACL.
- “Content” means all content on the Platform including without limitation mood inputs, user data, logos, names, designs, information, Personal Information.
- “GST” is as defined in GST Act; “GST Act” means A New Tax System (Goods and Services) Act 1999 (Cth); and “GST Laws” means the GST Act and all related subsidiary regulations.
- “Guests” means people who visit, view, browse, access or otherwise have limited use the Platform but who are not connected with a company.
- “Intellectual Property” means all intellectual property and quasi-intellectual property rights (past, present and future) conferred by law including without limitation business names, trade marks, patents, designs, copyright, trade secrets, computer programs, databases, inventions, moral rights and all proprietary rights and all other intellectual property defined in Article 2 of the Convention Establishing the World Intellectual Property Organization (July 1967).
- “Loss” means loss, damage, liability, charge, expense, payment or cost of any nature or kind, including all legal and other professional costs (calculated on an indemnity basis).
- “Personal Information” means any information or opinion which can reasonably identify an individual.
- “Platform Services” means the services listed in clause 2.1 and any subsidiary services provided by HiJo or Events via or in relation to the Platform from time to time.
- “Privacy Act” means the Privacy Act1988 (Cth) as amended from time to time.
- “Privacy Statement” means the Privacy Statement for the Platform as amended or updated from time to time, a copy of which can be found on the following webpage: oota.com.au/terms
- “User” means a person who uses the app.
- “Representatives” means HiJo’s directors, officers, contractors, employees, consultants, or other affiliates.
- “Staff” means a User that uses the Platform and is successfully connected to a company.
- “Users” includes Guests.
- “User Content” means any Content shared via, or submitted or uploaded to, the Platform by a User, and includes customized Team Pulses and mood inputs.