5.5 You may change your subscription level at any time by sending us an email at [email protected] and your credit card will automatically be charged the new rate on your next billing cycle. The consequences of changing your subscription level are:

(a) if you move from an Entry level to a Platinum level subscription service, the increase in annual Fees will be pro-rated from the date you request the change;

(b) if you move from a Platinum level to an Entry level subscription, you may lose some of your content, features or capacity of your account. We recommend that before downgrading your account you visit our website to check what services may no longer be available.

5.6 We reserve the right to vary the subscription fee from time to time but any variation will only take effect after we have given you at least one month’s notice of any such variation. If you do not agree to the variation, you may cancel your subscription in accordance with clause 11. If you do not cancel your subscription before the end of the subscription period, you will be deemed to have accepted the variation.

5.7 You must notify us of any change to your billing account. If any subscription fees or charges billed to your account are not processed for any reason, then we have the right to suspend or cancel your subscription until all fees and charges have been paid in full.

5.8 You agree to pay all costs, including legal fees on a full indemnity basis, which we incur in collecting any unpaid subscription fees or charges from you.

5.9 Fees will apply regardless of whether or not you use your subscription. Except as otherwise required by law, no refunds will be given for the Fees including for unused periods of your subscription in the event you decide to terminate your subscription.

5.10 Whilst we do our best to ensure the Kabooyaa Platform is available at all times, if access to the Kabooyaa Platform is delayed or unavailable, we reserve the right to still charge your account.

Prohibitions and restrictions

6.1 You must not:

(a) sell, resell, rent, lend, license, transfer, redistribute or sublicense the Kabooyaa Platform;

(b) copy, alter, modify, adapt, reproduce, republish, frame, translate, disassemble, reverse engineer, decompile, create a derivative work from or enhance the Kabooyaa Platform and/or any content in the Kabooyaa Platform (except as expressly permitted by this agreement or other applicable law);

(d) take any steps to circumvent any technological protection measure or security measures in the app;

(e) impersonate any other person when using the Kabooyaa Platform;

(f) allow any person to access the Kabooyaa Platform using another person’s user name and password; or

(g) authorise anyone else to do any of the above acts.

6.2 If you sell or otherwise dispose of, transfer or assign any Mobile Devices containing the Kabooyaa Platform, any copies of the Kabooyaa Platform must be removed before doing so.

6.3 We reserve the right to alter, suspend, update or remove the Kabooyaa Platform or any part of it at any time. We may conduct modifications to the Kabooyaa Platform for reasons including those relating to security, intellectual property, legal or otherwise.

Updates

7.1 This agreement will apply to any updates provided by us for the Kabooyaa Platform unless the update has its own agreement in which case the terms of that agreement will apply.

7.2 Based on your Mobile Device settings, an update may be automatically downloaded or installed when you are connected to the internet or you may receive notice of or be prompted to download and install an update.

7.3 We are under no obligation to provide updates and some updates we provide may be at a fee.

7.4 We may require you to install an update to the Kabooyaa Platform in order to be able to continue to use the Kabooyaa Platform.

7.5 When you access and use the Kabooya Platform via a Mobile Device, your ability to connect to the Kabooyaa Platform may rely on other third party mobile apps. While we will provide assistance if you are unable to access and use the Kabooyaa Platform because of a third party issue, we will not be liable if you are unable to access or use the Kabooya Platform or for any damages or loss you might suffer because of this.

Third party services and software

8.1 You need to be connected to the internet in order to update, access or use the Kabooyaa Platform. You may also need to access or use certain third party services or software such as a server provider's platform. You may be required to update such third party services and software from time to time.

8.2 We are not responsible for any third party services, software or updates or the fees that such third parties may charge for access to and use of their services and software.

8.3 If you cannot or do not access or install such third party services or software (including any updates), or do not agree to comply with the terms and conditions imposed by such third parties, you may be unable to install, update, access or use the Kabooyaa Platform.

8.4 The Kabooyaa Platform may contain links (including via advertisements) to third party websites or other third party content or services. Those links are provided for convenience only and may not remain current or be maintained. You acknowledge that such links should not be construed as an endorsement, approval or recommendation by us of the third parties, or of any content or services provided by them.

Intellectual Property Rights

9.1 We are the owner or licensee of all Intellectual Property Rights in the Kabooyaa Platform, the Kabooya Materials and the content you access when you use the Kabooyaa Platform or access our website (“Works”).

9.2 You must not copy, modify, reproduce in any format, license, publish, distribute, upload, broadcast, sell, transfer or otherwise deal with the Works except in accordance with the terms of this agreement.

9.3 You acknowledge that we own the Trade Marks and you must not alter, obliterate or in any way tamper with the Trade Marks as they appear in the Works.

User generated content

10.1 We are not responsible for any information or data uploaded to the Kabooyaa Platform by you or any other person. You give us an irrevocable, non-exclusive, royalty-free, worldwide, transferable, sublicensable licence to use any content that you provide to us via the Kabooyaa Platform, or anywhere we deem appropriate for our business purposes.

10.2 We are not responsible for the content of any communications you receive from another user of the Kabooyaa Platform which is the result, whether direct or indirect, of your use of the Kabooyaa Platform.

Termination

11.1 The agreement starts when you purchase a licence to access and use the Kabooyaa Platform and continues on a monthly basis with an automatic roll over each month until it is terminated or cancelled in accordance with this clause 11.

11.2 Your rights under this agreement and your ability to access and use the Kabooyaa Platform will terminate automatically and without notice if you cease to be a registered account holder with us or if your account is suspended or terminated in accordance with this agreement.

11.3 You can cancel your subscription by giving us 30 days’ written notice prior to your automatic renewal date. For your cancellation to be effective you must send us an email at [email protected]. If you choose to cancel your subscription, you will continue to have access to the Kabooyaa Platform until the end of your monthly billing period.

11.4 Either party may immediately terminate this agreement if:

(a) the other party is in breach of a material term of this agreement and fails to remedy it within 14 days of receiving written notice of the breach;

(b) the other party is in breach of a material term of this agreement which cannot be remedied; or

(c) the other party becomes bankrupt, is wound up or subject to administration or receivership or is otherwise unable to pay its debts in the ordinary course of business.

11.5 We may immediately terminate this agreement at any time if we discontinue providing the Kabooyaa Platform or any computer server or website required for the intended operation of the Kabooyaa Platform.

11.6 If this agreement is terminated for any reason, on termination you must immediately cease to use the Kabooyaa Platform unless otherwise agreed in writing with us.

11.7 On termination, we will delete all electronic records created while you used the Kabooyaa Platform. It is your responsibility to retain independent records.

Disclaimer

12.1 We use our best efforts to make sure that the Kabooyaa Platform is available for use at all times, however, given the nature of the Kabooyaa Platform, we cannot guarantee that the Kabooyaa Platform will be error free, uninterrupted or available at all times.

12.2 The Kabooyaa Platform is provided on an “as is” basis.

12.3 While we will do our best to rectify any availability issues, we cannot be held responsible for disruption caused by events outside of our control including issues with the Internet, external telecommunications, your Mobile Device subscription or service provider or Mobile Device tower operations, extreme weather events, government actions, natural disasters, the failure of your Mobile Device to work, the failure of your Mobile Device battery or the failure of any third party software or mobile apps that you might use to connect to the Kabooyaa Platform via your Mobile Device.

12.4 We are also not liable for any issues that are caused by the integration or use of the Kabooyaa Platform with incompatible hardware or software, the misuse or damage of the Kabooyaa Platform and periods of maintenance decided by third parties.

Limitation of liability

13.1 Except as expressly set out in this agreement, and subject to any representations, terms, guarantees, warranties or conditions that by law may not be excluded, all representations, conditions, guarantees, warranties, terms and obligations implied by law or otherwise relating to the services provided by us under this agreement are excluded.

13.2 To the extent permitted by law, we, our directors, employees and officers, will not be liable for any special, indirect or consequential loss or damage (including personal injury or death), loss of profit or opportunity, loss or disclosure of data howsoever lost or disclosed, or business interruption, or any other cause or situation, whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise arising, directly or indirectly, out of or in connection with:

(a) a failure to provide the Kabooyaa Platform or any part of it;

(b) the use of, or the inability to use, the Kabooyaa Platform;

(d) any incompleteness, inaccuracy, unavailability of information provided, or inability to be provided, via the Kabooyaa Platform;

(e) corruptions to or loss of data, errors or interruptions which occur in the course of accessing or using the Kabooyaa Platform;

(f) any interference with or damage to the Mobile Device via which you access or use the Kabooyaa Platform;

(g) any use of the Kabooyaa Platform by other users where such use is a breach of this agreement. 1

3.3 If you are a “consumer” for the purposes of the Australian Consumer Law, to the maximum extent permitted by law, our liability to you is limited at our option to the resupply of the services or payment of the cost of re-supplying the services.

13.4 Our total aggregate liability will not exceed the maximum dollar value that we can recover under our professional indemnity and/or public liability insurance coverage at the relevant time.

13.5 You agree to indemnify us against all liabilities, costs, losses and expenses which we suffer or incur in connection with or arising out of any third party claims or allegations that are caused by your breach of this agreement.

Force majeure

14.1 If the performance of this agreement or any obligation under this agreement is prevented, restricted, or interfered with by reason of Force Majeure Event, the affected party, upon giving prompt notice to the other party, is excused from such performance to the extent of such prevention, restriction, or interference. The affected party must use its best efforts to avoid or remove the Force Majeure or to limit the impact of the event on its performance and must continue performance with the utmost dispatch when the Force Majeure is removed.

14.2 You agree that we will not be liable to you where the provision of access to the Kabooyaa Platform is delayed, cancelled or otherwise materially affected due to the occurrence of a Force Majeure Event.

14.3 Neither party is excused from any obligation to pay money because of a Force Majeure Event, despite any other provision of this agreement.

General

15.1 A notice, approval, consent or other communication in connection with this agreement must be in writing sent to the address of the receiving party appearing in this agreement or such other address as may be communicated by the receiving party, marked for the attention of any person nominated for that purpose by the receiving party (and who in the absence of any such nomination is the signatory to this agreement on behalf of the party), and may be sent by prepaid post (air mail if international), courier or electronic mail. A notice, approval, consent or other communication is taken to have been received:

(a) two Business Days after sending if sent by post;

(b) if sent by courier, at the time indicated by the records of the courier; and

15.2 This agreement is governed by the laws of New South Wales, Australia and the parties submit to the exclusive jurisdiction of the courts of New South Wales, Australia.

15.3 If part or all of any of this agreement is illegal or unenforceable it will be severed from this agreement and will not affect the continued operation of the remaining provisions of this agreement.

15.4 Subject to clause 1.5, this agreement can only be amended, supplemented or waived in writing signed, by both parties. The failure of either party to enforce, or the delay by either party in enforcing, any of its rights shall not be deemed a continuing waiver or a modification of this agreement.

15.5 You may not transfer, assign or otherwise dispose of your interest in this agreement without our prior written consent which consent may be withheld in our absolute discretion.

15.6 This agreement does not constitute any party the partner, employee, agent or legal representative of the other party or imply that the parties intend constituting a partnership, joint venture or other form of association in which any party may be liable for the acts or omissions of another. No party has authority to pledge the credit of another.

15.7 This agreement contains the entire agreement of the parties with respect to its subject matter. Contact information You can contact us at: [email protected]

Last updated: 20 December 2024.

[SM1] privacy policy.

T 02 5500 9523