Terms & Conditions

Affiliate means any entity that controls the Customer, that the Customer controls, or that is under common control with the Customer, where "control" means the ownership, directly or indirectly, of equity securities or other ownership interests which represent more than 50% of the voting power of such affiliate.

Agreement means the agreement for the supply of specific Services under an executed Order Form, incorporating the General Terms and Conditions. 

Business Day means a day (other than a Saturday, Sunday, public holiday or bank holiday) in the Victoria, Australia.

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Cloud Solution Services means a service hosted in the cloud by Zap or provided by a third party.

Commencement Date means the commencement date specified in the Order Form.

Confidential Information means any information of whatever kind disclosed or revealed by the Disclosing Party to the Receiving Party under or in relation to the Agreement that:

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(a)   is by its nature confidential; 

(b)   is designated by the Disclosing Party as confidential; or 

(c)   the Receiving Party knows or reasonably ought to know is confidential, including:

(i)   where Zap is the Disclosing Party, any part of the Services and Zap Intellectual Property that are not otherwise publicly available; and

(ii)   where the Customer is the Disclosing Party, any Customer Data,
 

but does not include information that:

(d)   is published or has otherwise entered the public domain without a breach of the Agreement;

(e)   is obtained from a third party who has no obligation of confidentiality to the Disclosing Party; or 

(f)   is independently developed or obtained without breach of the Agreement.

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Customer means the party specified as such in the Order Form.

Customer Data means the data and other information that the Customer uploads to or processes through the Software.

Data Protection Laws means the Privacy Act 1988 (Commonwealth of Australia), the UK GDPR and the EU GDPR. 

Data Warehouse Size mean the total size (expressed in giga-bytes) of the database that the Software generates that holds the Customer Data. 

Device means any device that meets Zap’s system requirements that a Customer uses to access any part of the Software. 

Disclosing Party means the party who discloses Confidential Information to the Receiving Party under or in connection with the Agreement.

Documentation means the prevailing documentation and information made available to the Customer by Zap, and which may be updated by Zap from time to time, including specifications, technical and user guides (including guidance as to minimum system requirements) that are set out in the Software help files and any release-related notes, guides or manuals Zap publishes specific to the version of the Software which is made available, but excluding marketing materials and sales publications.

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Electronic Signature means a visual representation of a person's handwritten signature which is placed on the Order Form and/or the General Terms and Conditions using DocuSign, Adobe Sign or another electronic signing platform agreed by the parties.

Environment means the servers, operating systems, databases and other operating software required for use with the Software. 

EU GDPR means the General Data Protection Regulation (EU) 2016/679 of the European Parliament. 

EULA means the Zap end user licence agreement accessible here. 

Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure, including (without limitation):

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(a)   hacker attack, penetration or attack of computer virus, destruction, breakdown or impossibility of use of computer system; 

(b)   act of God, lightning, storm, flood, fire, earthquake or explosion, adverse weather conditions;

(c)   strike, lock out or other labour difficulty;

(d)   act of public enemy, war (declared or undeclared), sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic, or terrorism;

(e)   the effect of any applicable laws, orders, rules or regulations of any government or other component authority, coming into effect after the Commencement Date; and

(f)   embargo, or a power or water shortage.

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General Terms and Conditions means the general terms and conditions (including any schedules) which governs the provision of the Services by Zap accessible above, as updated from time to time.

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Improvements means any update, development, enhancement or modification of the Software by Zap including in relation to the specifications of the Software, its design or manufacturing process that may make the Software better, more efficient, more economical, more effective, more useful or suitable or would in any other way render the Software more valuable or preferable, including any such improvements arising from ideas, feedback or recommendations by the Customer.

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Initial Term means the initial term set out in the Order Form.

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Insolvency Event means where a party:

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(a)   has an order made or resolution passed for its winding up, liquidation or dissolution;

(b)   has a receiver, manager, controller, administrator, liquidator or similar officer appointed over any of its assets or business;

(c)   has the holder of an encumbrance take possession of any property of that party;

(d)   has a writ of execution levied against it or its property;

(e)   is unable or ceases to pay its debts as they fall due;

(f)   makes any composition, arrangements or general assignment with any creditor; 

(g)   is or is deemed bankrupt or insolvent;

(h)   enters into liquidation;

(i)   ceases or threatens to cease carrying on business; or

(j)   anything occurs under the law of the jurisdiction in which a party is incorporated which has a substantially similar effect to any of the events described in this paragraphs (a) to (i) above.

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Intellectual Property Rights means all intellectual property rights of any kind, in any jurisdiction, subsisting now or in the future, including, without limitation, business, company or trade names, domain names, patents, inventions, copyright, design rights, know-how, trade marks, the right to sue for passing off, and rights to use, and protect the confidentiality of, confidential information, whether registered or unregistered, and includes the rights to apply for or renew the registration of any such rights and any rights the subject of any lapsed application or registration.

 

Loss means all liabilities, losses, damages, costs and expenses (including all legal costs determined on a full indemnity basis) whether incurred by or awarded against a party.

 

On Premises Subscription means the provision by Zap of Software installed on the Customer's premises or hosted in a privately hosted platform provider.

 

Order Form means an order form agreed by the Customer and Zap for the procurement of Services.

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Personal Information has the meaning given to that term in the Privacy Act 1988 (Commonwealth of Australia) and any applicable Data Protection Laws.

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Personnel means any employee, agent, sub-contractor, contractor, partner, representative, director or officer of a party.

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Program means the Zap installer or application.

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Receiving Party means the party who receives Confidential Information from the Disclosing Party under or in connection with the Agreement.

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Renewal Term means the renewal term set out in the Order Form.

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Required Third Party Service means a required service, software, or other functionality made available by a provider other than Zap, that Zap makes available to the Customer as part of the SaaS Subscription and On Premises Subscription (as applicable).

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SaaS Subscription means the Customer's access to and use of the Software in a cloud or wireless environment together with any Required Third Party Services and/or Supplemental Services that Zap makes available to the Customer.

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Services means all services procured by the Customer from Zap under an executed Order Form from time to time, including the:

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(a)   SaaS Subscription;

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(b)   On Premises Subscription; and/or

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(c)   Support Services.

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Software means:

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(a)   any software supplied by Zap to the Customer from time to time, whether in object code, source code, reconfigurable binary or any other form, and includes any backup or other copies, Software Updates, modifications, enhancements and extensions; and

(b)   any solution, being a pre-built set of analytics and/or data model pipelines.

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Software Updates means:

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(a)   enhancements to existing versions of Software made generally available at no charge by Zap to the Customer; and

(b)   Software releases made generally available by Zap to resolve known issues with existing versions of Software.

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Solution Module means an area of a solution which includes a set of analytics and/or data model pipelines.

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Subscription Fees means any or all (as the context requires) fees and other charges payable by the Customer to Zap for the Services as specified in an Order Form and amended in accordance with the General Terms and Conditions.

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Subscription Limitations means the maximum number of users authorised to use the Software, the Data Warehouse Size, the solution(s), and the Solution Modules, that are included in the Customer's SaaS Subscription or On Premises Subscription (as applicable). 

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Subscription Term means the Initial Term and any Renewal Terms effected under clause 3(b) of the General Terms and Conditions.

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Support Services means the support services provided or otherwise made available by Zap to the Customer including on-line, by phone, by email, or other reasonable means.

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UK GDPR means the General Data Protection Regulation (EU) 2016/679 of the European Parliament as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal Act) 2018 (UK) and any regulations thereunder.

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Zap means Zap Technology Pty Ltd (ACN 093 757 745).

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Zap Intellectual Property means all of Zap's present and future Intellectual Property Rights in the Services, Documentation, Improvements and Zap Confidential Information (including know how and trade secrets).  

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Zap Privacy Policy means the Zap privacy policy accessible here, as may be updated or amended from time to time.