Thanks for choosing Zoo Business Media Pty Ltd (ZBM) T/A Moov Music ( “we”, “us”, “our”) as your music service provider. These are our General Terms and Conditions (“GTC”) which set out the terms and conditions pursuant to which we provide access to our Service (as defined below) to you (the “Customer”, “you”). If you are accessing or using the Service in connection with your employment, you hereby represent to us that you are authorised to and hereby do bind your company/employer to the terms and conditions of this GTC, and any references herein to “you” and “your” will refer to both you and your company/employer, as applicable.

Before you start using the Service, please take a moment and read through this GTC, as by using or accessing the Service, you agree to be bound by all of the terms and conditions contained and incorporated by reference herein. This GTC will remain in full force and effect while you use the Service, and does not cover other services, content or materials made available by any other company or third party, unless specifically stated. We may amend this GTC from time to time, so make sure to check the terms that apply at the time of your use. If you do not agree with any of the terms and conditions contained herein, you must not use or access our service/store front.

Customer and ZBM may be individually referred to herein as a “Party” and collectively as “Parties”. The contracting ZBM Party to your Agreement and applicable law and jurisdiction are set out below under the section called “Contracting Parties, Applicable law and Dispute Resolution”.

INTRODUCTION

By accessing or using the Service (including placing Orders), you expressly agree to comply with this GTC and our Supplementary Terms. By “Supplementary Terms” we mean ZBM Privacy Policy and Technical Guidelines, all as updated from time to time and set out in the legal section on our website (currently available HERE). All of the Supplementary Terms, as well as any additional terms and conditions that we provide to you in connection with your use of or access to the Service or our other products and services, together with this GTC, form a legally binding agreement between you and us (the “Agreement”). To the extent that there are any inconsistencies or conflicts arising between the provisions of the Agreement and any other agreements entered into between us, the provisions of the Agreement shall prevail.

When we use the term “Order”, we mean an online activation of a subscription or purchase of a Product. Such activation/purchase is a legally binding purchase of Products entered into between you and us under the terms set out online when placing an Order. Upon request, we may assist you in placing Orders.

Service, Content and Products

Service and its Content

Through your use of the Service, you may access digital content (audio, visual, text as well as other content, which we refer to collectively as “Content”) that may be owned by us or licensed or otherwise made available to us by third parties (“Rights Holder(s)” or “Content Provider(s)”). Additional terms may apply to the Content. When we use the term “Service”, we mean the online streaming service that delivers Content to our Customers at their premises and commercial locations, including any technology, platform, solution or application program interfaces (“APIs”) included in or a part of such service, whether owned by us, or licensed or otherwise made available to us by Rights Holders. The Service is provided through our proprietary media management system, including the SDK platform, developed by or on behalf of us, for use with our Products. As explained further below, the Service is not Customer specific and is updated from time to time at our discretion.

Registration and Access to the Service

To access or use the Service, you will be assigned an account and registered as a user. Upon your registration, you are granted a limited, non-exclusive, non-transferable, non-sublicensable and revocable right to use and access the Service for commercial non-private use, and this Agreement will apply to you, including this GTC, the ZBM Privacy Policy and Technical Guidelines, all as updated from time to time and set out in the legal section on our website (currently available HERE). You may not copy, rent, sell, reproduce, publish, republish, post, broadcast, frame or transmit the Service or Content (or any part of them), or authorise or assist anyone else in doing so other than as otherwise explicitly permitted under the terms of this Agreement.

Products and Placing Orders therefore

When we use the term “Products”, we mean our products and services that you or your Affiliates purchase through placement of an Order. Purchase of Products through an Order is done through our website. Unless otherwise provided in any Master Agreement, (a) Products and access to Content are provided on a subscription basis, and (b) Products may be added during the term of this Agreement.

By your placement of an Order, you are granted a limited, non-exclusive, non-transferable, non-sublicensable and revocable right to access the Products through the Service for a certain period of time (“Product Period”) or as a “one-off” or individual purchase (e.g., purchases of Hardware Products). Upon placement of your Order of Products, we will confirm your Order via email.

Product Period

The Product Period of each Product purchased on a subscription basis shall be as specified when placing the Order. The Product Period for a subscription commences from the date of your Order and will be automatically renewed for additional periods equal to the Product Period following the expiration of the Product Period (“Renewal Period”), unless terminated by you or us. During the Renewal Period, the same commercial terms will apply. ZBM may terminate the subscription at any time. Upon your termination the subscription will terminate at the end of the then current Product Period or Renewal Period, as applicable.

Third Party Management of the Service

You may give a third party access to administer your account (such as placement of Orders, choosing music, managing the Service, etc.), however, you will still be legally required to comply with the terms and conditions of this Agreement, including the payment of all applicable fees, whether or not such third party acted in accordance with your instructions. You are fully liable for all acts and omissions of any third party that uses or administers the Service for you or on your behalf.

Updates and Upgrades to the Service

We continuously upgrade the features and functionality of the Service and reserve the right to make upgrades, updates, modifications and changes as we see fit in our sole discretion. You understand that such upgrades or changes to the Service may result in interruption, modification, failure, delay or discontinuation of the Service or any function or feature thereof. As a result, you acknowledge and agree that we assume no liability, responsibility or obligation for any such interruption, modification, failure, delay or discontinuation associated with the Service and you are hereby expressly advised not to rely upon the timeliness or performance of the Service. We will make reasonable efforts to minimise interruptions, failure or delay of the Service and will make reasonable efforts to inform of material changes which affect your use of the Service.

Content Provided in the Service

The Service includes a vast range of sound recordings and other items of Content. This Content is updated from time to time, including, for example, by the addition and/or deletion of particular sound recordings. Therefore, the Content which is available in the Service at any point in time may vary. We make no representation or warranty that any Content will be available on the Service, and we will have no liability to you for any claim arising out of the unavailability of any Content. Also, you may encounter Content that you may regard as offensive, obscene, indecent or objectionable, irrespective of whether the Content is identified as such. We make no representation or warranty that Content will not be offensive, obscene, indecent, or objectionable, and we will have no liability to you for Content that may be offensive, obscene, indecent or objectionable.

Third Party Fulfilment

You acknowledge that we may contract with third parties to fulfil parts of your Order, e.g. installation services, and you agree that such third parties may invoice you directly for such services. Additional terms may apply for your use of any third party applications if such are offered through the Service. You understand and agree that we are not responsible or liable for the behaviour, features, or content of any such third party applications unless and to the extent expressly set forth in this Agreement.

Customer Support

We will operate and update the Service and receive and handle your inquiries relating to your use of or access to the Service, such as technical, billing and payment issues and other related issues (“Customer Support”).

Our Customer Support is available to you as a Customer and user of the Service. Our goal is to ensure that you enjoy an outstanding experience while using the Service. If you encounter any technical problems or have questions regarding the Service, you can contact our Customer Support by sending an e-mail to [email protected]. Customer Support does not include handling of issues relating to defects, interruptions and other failure caused in your hardware, Internet connectivity, communication or other equipment, for which you are solely liable.

Customer Obligations

In consideration of your use of or access to the Service and Content, you represent, warrant and covenant that:

• you will comply with the terms of this Agreement and follow ZBM’s requirements and guidelines in relation to use of the Service, including applicable terms of use and instructions in relation to endorsements and music compilation rights;
• any information that you have submitted is true, accurate, complete and is kept updated and you shall be responsible and liable for any access to or use of the Service by you or any person or entity using the Service on your behalf (whether or not such access or use thereof has been authorised by you);
• you are authorised to assume the obligations and grant all permissions and licenses provided in this Agreement and that you have the full right, power and authority to enter into this Agreement and to create a legal, valid and binding obligation on you and/or your employer or company, as applicable, and you entering into this Agreement does not and shall not violate any applicable law, rule or regulation, or require any conditional consent by any person or entity;
• you will comply with all laws, rules and regulations applicable to your use of and access to the Service; and you will not access or use the Service, or otherwise stream Content outside of Australia.
• you will only use the Service to provide foreground or background music media at your physical location;
• you will not amplify, transmit or retransmit the broadcast of Content so as to be audible or visible outside of your premises (beyond ordinary patio or other outdoor speaker usage), or transmit Content outside of your physical premises;
• you will not use Content in connection with any advertising, sponsorship, or commercial messaging, including but not limited to using the Content in any manner which suggests an endorsement, affiliation, cooperation or relationship between you and any artist, band, label or other entity;
• you will not use any Content obtained via the Service for any purpose in connection with artificial intelligence technologies without authorisation from the applicable Rights Holders/Content Providers;
• you will not use the Service to provide music for instructed fitness classes where the music is synchronised to the class;
• you will not transmit, retransmit, alter, record or reproduce (or permit the transmission, retransmission, alteration, recording or reproduction of) any Content other than as expressly permitted herein;
• your location will be properly licensed for public performances of Content from One Music, licensing information can be found at https://onemusic.com.au.

Accordingly, the authorisations specifically exclude any use of the Content as an accompaniment to musicians, singers, dancers, any other entertainers actually present and performing.

Customer Login Information

You are responsible for maintaining the strict confidentiality of your registration information and you shall be responsible and liable for any access to or use of the Service by you or any person or entity using your registration information, device or other credentials, whether or not such access or use has been authorized by you or on your behalf, and whether or not such person or entity is your employee. It is therefore critical that you do not share your registration information with anyone. You agree to immediately notify ZBM of any unauthorized use of your registration information, account or device, or any other breach of security. It is your sole responsibility to (a) control the dissemination and use of your registration information, (b) update, maintain and control access to your registration information, and (c) cancel your account on the Service.

YOUR HARDWARE, INTERNET CONNECTION AND EQUIPMENT

You are solely responsible for all hardware, communication networks and other equipment necessary for use of the Service, and the due installation thereof. For terms related to your placement of an Order for Hardware Products please see the Hardware section below.

Intellectual Property Rights/Services Misuses

We respect the intellectual property rights of others and require that you do the same, including all copyright, neighbouring rights and related rights, design rights, patents, trade and service marks, trade dress, database rights, semi-conductor topography rights, know-how, trade secrets and all other intellectual property rights throughout the world for the full term of the rights concerned, whether registered or unregistered (“Intellectual Property Rights”). You must also respect us and other users of the Service. We may (but will have no responsibility to) monitor your use of the Service. We reserve the right to investigate and take appropriate action against anyone who, in our sole discretion, violates, or is suspected of violating, this Agreement, including removing any Content or reclaiming your username at any time, and/or reporting you to law enforcement authorities.

Fees and Payment Terms

TERMS OF ORDER 

Except as otherwise specified herein or online when placing the Order, (i) fees are based on Products purchased per the Order, and not on your use of the Product or Service, (ii) payment obligations are non-cancellable and fees paid are non-refundable, and (iii) once Ordered, quantities or units or time of Products cannot be decreased during the relevant Product Period.

INVOICING

Where credit card is used as the payment method, you accept that we may debit your credit card automatically when issuing an invoice. Where another payment method is used, we will add a reasonable administrative fee as set out in the Order. All invoices will be sent as a pdf file to your designated email address.

If you have purchased multiple Products, we may invoice these collectively. Furthermore, we reserve the right to invoice all of your locations collectively. All prices are exclusive of GST. We reserve the right to verify your financial status and creditworthiness with a reputable credit rating agency of our choice.

BILLING PERIOD

When placing an Order of a subscription Product you can select your preferred Billing Period, which means the period for which you agree to prepay fees for your ordered subscription Product (“Billing Period”). If you are on a Billing Period of more than one month (e.g. yearly or quarterly) your first purchase will cover the entire Billing Period. Any additional purchase of Products during the Billing Period will only be charged for the remaining period of the current Billing Period.

If you have purchased multiple Products, we reserve the right to align the subscription dates of your Products at any time so that all of your Products are charged on the same billing date. Such alignment may require an extension of the subscription date of one or more of your Products, in which case you will be charged separately for the extended Product Period(s).

UPGRADE AND DOWNGRADE

Where credit card is used as payment method, you can change the current Product on your account at any time by upgrading or downgrading. Changing the Product on your account will affect all subscription Products on your account.

When you upgrade to a Product with a higher price, you will be charged with the applicable higher fees as set out online for the remainder of your Billing Period. Starting with your next Billing Period you will be charged with the applicable higher price for the full Billing Period.

A Product downgrade with a lower price takes effect on your next billing date. You can continue to use the features of your current Product until the end of your current Billing Period.

Change of Fees

We reserve the right to increase our fees at our sole discretion during the term of this Agreement. We agree to make reasonable efforts to notify you in advance of any increase that applies to your use of the Service or Products. If you do not agree to the price changes made, you may terminate your subscription of the applicable Product in accordance with the termination provisions in this Agreement.

Term, Termination and Suspension of Service

The Agreement commences when (i) you have executed or submitted an Order, or (ii) you have received login details to the Service, whichever occurs first. The Agreement will remain in full force and effect for as long as you have access to the Service, unless terminated prior to such date in accordance with the terms hereof. Termination of a specific ordered Product will not affect the term of this Agreement, nor the Product Periods of other Products not specifically terminated.

We may terminate your use of or access to the Service at any time, for any or no reason, with or without prior notice or explanation, and without liability or obligation to you or any third party.

Upon the termination of this Agreement for any reason:

• any sum owing or due to us shall be immediately payable; and
• your access rights to the Service and other rights hereunder shall terminate.

Suspension

In addition to any regulations regarding suspension and termination, we may suspend your access to and use of the Service at any time for any reason, including in the event of your actual or suspected unauthorised use of the Service, non-payment of fees which may include, without limitation, fees due to ZBM directly, or public performance fees due to One Music, or when you dispute our credit card charge and the payment is refunded to you, or non-compliance with this Agreement, Rights Holders’ terms, or other terms as set out herein.

We reserve the right, at any time, to remove or disable access to Content as well as playlist compilations/soundtracks created and/or used by you in the Service, as well as to remove and disable access to any of Your Material for any or no reason, including such that we determine in our sole discretion, violates this Agreement or any other agreement or rights of any third party. We may take these actions without prior notification to you.

If we suspend or terminate your access to or use of the Service, you agree that we shall have no liability or responsibility to you, that you will pay all fees, and we will not refund any amounts that you have already paid, to the fullest extent permitted under applicable law.

Miscellaneous

Any notice or other communication to be given or served under or in connection with this Agreement will be sent either by notices in the Service, published on our site/store front or sent by e-mail to your stated email address.

The provisions of this Agreement that can be reasonably interpreted as surviving the cancellation, expiration or termination of this Agreement shall survive.

We reserve the right to make changes to the Service, this GTC, the Supplementary Terms and all other documents that are part of this Agreement at our discretion. By continuing to use the Service after such changes are made, you accept the changes. If you do not agree to the changes made, you may terminate your use of the Service and/or Products in accordance with the applicable termination provisions. We will endeavour to inform you by email or in the Service at our discretion of major changes to these terms.

This Agreement contains the entire understanding and agreement between you and ZBM concerning the Service and supersedes any and all prior or inconsistent understandings relating to the Service and your use thereof. This Agreement cannot be changed or terminated orally.

If any provision of this Agreement is held to be illegal, invalid or unenforceable, this shall not affect any other provisions and this Agreement shall be deemed amended to the extent necessary to make it legal, valid and enforceable. Any provision which must survive in order to allow us to enforce its meaning shall survive the termination of this Agreement; however, no action arising out of this Agreement or your use of the Service, regardless of form or the basis of the claim, may be brought by you more than one year after the cause of action has arisen (or if multiple causes, from the date the first such cause of action arose).

The terms “include,” “includes,” and “including,” whether or not capitalised, mean “include, but are not limited to,” “includes, but is not limited to,” and “including, but not limited to,” respectively and are to be construed as inclusive, not exclusive.

The failure of us to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision.

This Agreement, and any rights, licenses and privileges granted herein, may not be transferred or assigned by you, but may be assigned or transferred by us without restriction, notice or other obligation to you, in whole or in part.

COMMISSION PAYMENTS ZBM may pay commission to whoever referred You to it (including its franchisees, contractors and agents, and any of its related entities). Payment of that commission is not an endorsement by it of that person and, except where required by law, ZBM does not in any circumstances accept responsibility for any statement, act or omission of that person.

INDEMNITY You indemnify ZBM, its officers, employees, agents and related companies against any and all liability, loss, claims, demands and/or expenses (including all legal costs on a solicitor/client basis) which any or all of them may incur as a result of any breach of this Agreement by You or by any of Your officers, employees or agents.

EXCLUSION OF LIABILITY To the maximum extent permitted by law and save for the express written terms in this Agreement, all other express or implied terms, conditions, warranties, statements, assurances and representations in relation to the Service (including installation) or arising from this Agreement are expressly excluded.

LIMITATION OF LIABILITY If any of the exclusions or limitations set out in this Agreement are declared illegal or void or if there has been a breach of a term, condition, warranty, statement or assurance which cannot be excluded by this agreement, then, to the extent permitted by law, ZBM’s entire liability and Your exclusive remedy is limited to, at ZBM’s discretion, the replacement of the Service or the supply of an equivalent Service. In no event will ZBM (including its agents, employees or contractors) be liable for any direct, indirect or consequential loss (even if it is aware of the possibility of such loss or if such loss was otherwise foreseeable), including, but not limited to, damage to property, loss of profits, production, data, opportunity or goodwill, or business interruption, however caused and on any theory of liability, including without limitation, contract or tort (including negligence or otherwise) arising during and/or as a result of its performance or non-performance of this Agreement. To the maximum extent permitted by law, ZBM’s maximum cumulative liability under this Agreement shall not exceed an amount greater than the Service Fee ZBM has received from You in the previous 3 months.

APPLICABLE LAW This Agreement is governed by the laws in force in the State of Queensland and the parties submit to the exclusive jurisdiction of the courts of that State. The parties submit to the non-exclusive jurisdiction of the courts of the State of Queensland in respect of any proceedings in connection with this Agreement.

PRIVACY POLICY ZBM and all its entities, in accordance with the Australian Privacy Act (1988) and the January 2014 amendments to the Act, confirm they have a Privacy Policy that incorporates, and is in accordance with, the relevant Australian Privacy Principal (APP) provisions for the protection and management of individual information from any disclosure. The ZBM Privacy Policy is located on our website HERE.

SOUNDTRACK You hereby accept and confirm that the (Consultant) may enter into and accept the GTC’s of Soundtrack Your Brand, as can be found through this link: General Terms & Conditions.

Hardware

The following terms apply in the event you place an Order for Hardware Products. By “Hardware Products” we mean tangible products or parts thereof that we agree to deliver to you pursuant to an Order, excluding any software that may be contained therein. An example of Hardware Products is a streaming player.

Terms of Delivery

We will deliver the Hardware Products, to your premises or your designated place of delivery. Risk of loss and title to Hardware Products pass to you when delivered at your premises or designated address (the “Delivery Date”).

Warranty

Immediately upon receipt of the Products, you shall inspect the Hardware Products and notify us of any deficiencies. ZBM warrants that, on the date of delivery through the duration of the Warranty Period (as defined below), the Products will (i) function properly under normal use; (ii) be free from defects in materials or workmanship (“Warranty”). The Warranty is subject to you exercising a reasonable standard of care with respect to protecting and maintaining each Product against damage, peril and theft, including protection against water, moisture and/or impact damage.

Warranty Exclusions

The Warranty will not cover any defects, deficiencies or non-conformities caused by (i) use of the Products with hardware or software that ZBM has not specified as suitable; (ii) your failure to operate the Products in accordance with any of our instructions or documentation, whether written or oral; (iii) failure to implement any updates, upgrades, and other new releases of software made available; (iv) acts or omissions of persons other than ZBM’s or its authorised representatives; (vi) installation or maintenance of Products by someone other than ZBM or third party contracted by ZBM; or (vii) abuse, use at an unsafe or not suitable site, unusual physical or electrical stress. We do not extend the Warranty. You are specifically not allowed to reverse-engineer, decompile, disassemble, modify or create derivative works based on the Hardware Product or its software or any part thereof. Furthermore, you are not allowed to circumvent any technology used to protect Content accessible through the Hardware Product.

Remedies

If a Hardware Product materially fails to conform to the limited Warranty set forth above as determined by ZBM, ZBM shall repair or replace the nonconforming Product with a comparable product, as determined by us in our discretion. You hereby transfer to us title and ownership of any parts that we replace at your request. THE REMEDIES EXPRESSLY PROVIDED IN THIS SECTION WILL BE YOUR SOLE AND EXCLUSIVE REMEDIES AND YOU HEREBY WAIVE ANY OTHER RIGHTS OR REMEDIES YOU MAY HAVE AGAINST ZBM WITH RESPECT TO ANY NON-CONFORMING HARDWARE PRODUCTS.

Warranty Period

Unless otherwise set forth in a Master Agreement with ZBM, or on the product page in the customer journey, the Warranty period shall be 12 months, beginning on the Delivery Date (the “Warranty Period”). Repaired or Replaced Products: For Hardware Products repaired or replaced under this warranty, the Warranty Period shall be the greater of:

• 90 days from the date you receive the repaired Hardware Product or parts; or
• The remaining original Warranty Period of the non-conforming Hardware Product.

Warranty Claim

You shall have no claim under the Warranty, unless and until we receive from you, during the Warranty Period, (i) a written notice describing the Warranty breach in reasonable detail (a “Warranty Claim”), and (ii) remote and physical access to the affected Products, as well as information in sufficient detail to enable us to reproduce and analyse the failure.

If we receive a valid Warranty Claim meeting the requirements herein within the Warranty Period, we will not charge for any repair, replacement, error identification, or correction of the nonconforming Hardware Product, or for return shipment of any repaired Hardware Product to you, except for any costs that are caused by your relocation of the Product from the destination to which it was originally delivered by us. You agree to prepay freight and insurance charges for the return shipment of the nonconforming Product to ZBM. We will reimburse you for such actual and reasonable cost, provided that the Warranty Claim meets the requirements of this Agreement. You agree to follow our then current return material authorisation process (available on request).

If your Warranty Claim fails to meet any of the requirements set forth above, we reserve the right to charge for our, or our authorised service providers’, out-of-pocket costs incurred, including those relating to error identification or correction efforts, repair, replacement and shipment costs.

Delivery Time

Unless explicitly stated in writing, any delivery time provided is an estimate. We have the right to a reasonable extension of time, if the delivery is delayed for reasons not caused by us or beyond our control. We will make reasonable efforts to inform you of any material delays in delivery time caused by us. If delay in delivery is caused by you, a subcontractor assigned by you or due to any conditions within your control, we are entitled to postpone the delivery of the Hardware Product to a reasonable date. In this situation, we are entitled to compensation for all direct costs caused by the delay and to receive interest in accordance with law from the agreed day of delivery until the new day of delivery. If a delay for which we are responsible lasts for more than three (3) months you will, as your sole exclusive remedy in case of such delay, be entitled to cancel the Product(s) ordered which are delayed.