Zappy

ZAPPY PTY LTD ABN 51 636 067 528

TERMS OF SERVICE

INTRODUCTION

The Company provides the “Zappy” application and charging devices. Use of Zappy is subject to these Terms of Service.

definitions

The following terms are used regularly throughout these Terms of Service and have a particular meaning:

• ABN means Australia Business Number.
• Accountmeans a registered account within Zappy.
• Account Balancemeans any funds paid and loaded into an Account.
• Ad Hoc User means any User that does not hold an Account.
• Application means the “Zappy” app developed by the Company and accessible from the Site and/or a Mobile Application Marketplace from time-to-time.
• Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in New South Wales, Australia.
• Charger means a portable charging device owned and developed by the Company.
• Companymeans Zappy Pty Ltd ABN 51 636 067 528.
• Confidential Informationmeans any written or verbal information that:
  • Any information deemed as confidential under these Terms of Service;
  • A party informs the other party that it considers it confidential and/or proprietary;
  • A party would reasonably consider to be confidential in the circumstances; and
  • Is personal information within the meaning of the Privacy Act and GDPR.

but does not include information that a party can establish:

• Was in the public domain at the time it was given to that party;
• Became part of the public domain, without that party’s involvement in any way, after being given to the party;
• Was in party's possession when it was given to the party, without having been acquired (directly or indirectly) from the disclosing party; or
• Was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.

• Credit means any credits earned by the User and held within their Account, which may occur from (without limitation) finding lost Chargers and watching advertising content, as determined by the Company from time-to-time.
• Data Limit means any cap on data accrued by the User from their access to wireless internet on a Device via Zappy, as determined by the Company from time-to-time.
• Devicemeans any personal devices and accessories of the User.
• Feemeans any fees payable to the Company for access to or use of Zappy.
• Forfeit Eventmeans where a Charger is:
  • Lost;
  • Stolen;
  • Damaged; and/or
  • Not returned to a Station and/or the Company.
• GSThas the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
• Intellectual Propertymeans all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.
• Late Payment Fee means the Fee for late returns of a Charger as determined by the Company from time-to-time and must not exceed the Rental Fee Maximum.
• Member means a User that holds a Premium Account.
• Minimum Account Balance means the minimum funds that a User must hold in their Account Balance at any time, which in default shall be equal to the Rental Fee for a one hourperiod. 
• Mobile Application Marketplacemeans an online marketplace for access to the Application and other applications for mobile devices, such as the App Store and Google Play.
• Personal Informationhas the same meaning as in the Privacy Act.
• Premium Accountmeans the Account as described and set out in clause 3.
• Privacy Act means the Privacy Act 1988(Cth).
• Privacy Policymeans the Company’s privacy policy as updated and accessible from the Site from time-to-time.
• Promotion means any promotions made available by the Company from time-to-time.
• Rental Fee meansthe Fee for renting a Charger, in accordance with the pricing described within the App, on the Site or otherwise agreed between the Company and the User.
• Rental Fee Maximum means the amount described within the Application, on the Site or otherwise notified to the User, which in default shall be $#.
• Rental Historymeans the User’s rental history from their Account, including the date, times, locations and Rental Fees of completed Rental Periods.
• Rental Period means the period of time from when a Charger is unlocked from a Station until it is returned to a Stationor a third-party authorised by the Company to receive a Charger.
• Site means https://www.zappy.meor such other URL the Company may use from time-to-time.
• Station means a rental station to hold Chargers owned and developed by the Company.
• Stripemeans the cloud payments platform accessible at https://www.stripe.com/.
• Subscription Fee means the Fee charged to the Member, in accordance with the pricing described within the Application, on the Site or otherwise agreed between the Company and the Member.
• Tax Invoicehas the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
• Terms of Servicemeans the terms and conditions of using Zappy as updated from time-to-time.
• User means any user of Zappy.
• User Contentmeans images, information, documents or other data that is uploaded or input into Zappy by the User or that forms part of the User’s Intellectual Property, but does not include statistical, analytical or other non-personal derivative data generated by use of Zappy.
• Zappy means the Company’s suite of tools, applications and services, known together as “Zappy”, licensed to the User under these Terms of Service.

• AGREEMENT
  • The User must agree to these Terms of Service and the Privacy Policy to access and use Zappy.
  • The User agrees that use of Zappy is subject to these Terms of Service and must immediately cease to use Zappy if the User can no longer agree or adhere to these Terms of Service.
  • The Company may suspend the Account or otherwise restrict the access of any User that breaches these Terms of Service in its complete discretion.
  • The licence granted under these Terms of Service shall be ongoing until terminated in accordance with these Terms of Service
• USING Zappy
  • Access
    • To access and use Zappy via the Application, the User must:
      • Access the Application from the Site; or
      • Download the Application from a Mobile Application Marketplace; and
      • Set up an Account by verifying their mobile number.
    • Despite (a)above, the User may otherwise access and use Zappy without the Application or setting up an Account by using the interactive screen on the Station.
  • Premium Account
    • The User may register for a Premium Account to access additional benefits and incentives with respect to the use of Zappy, which may include no Rental Fees and no advertising content.
    • The features of a Premium Account may be changed or limited by the Company from time-to-time.
    • The User acknowledges that a Subscription Fee will apply for a Premium Account.
    • The User may cancel their subscription to a Premium Account at any time, which shall become effective at the end of the User’s current billing cycle.
  • Features
    • Subject to any features limited to Premium Accounts only, Zappy allows a User to (without limitation):
      • Rent a Charger;
      • Reserve a Charger;
      • Charge a Device;
      • Find nearby Stations;
      • Request a new location to host a Station;
      • Report a lost or stolen Charger;
      • Find lost Chargers;
      • View Rental History;
      • Connect a Device to the Internet subject to any Data Limits;
      • Apply to become a “Zapper” of the Company subject to agreeing to separate terms and conditions;
      • Create and edit an Account; and
      • Access and use such other features made available by the Company from time-to-time.
    • Chargers
      • The User acknowledges and accepts that ownership of the Charger shall vest in the Company at all times, including during the Rental Period where the Charger is in the possession of the User.
      • The User must take reasonable care when renting a Charger and must ensure that it is maintained in good condition and returned in a working condition.
      • The User acknowledges and accepts that it is their exclusive responsibility to keep the Charger safe during the Rental Period and return the Charger back to the Station within the agreed timeframe.
      • Where a Charger is returned late, the User acknowledges and accepts that the Late Payment Fee will be charged to the User unless the Company determines otherwise in its complete discretion.
      • Where the Charger is lost or stolen during the Rental Period, the User should immediately notify the Company via the Application or by other means in writing.
    • Rental Notification
      • At the end of each Rental Period, the Company will provide the User with a written notification to confirm the:
        • Rental Period is now at an end;
        • Total time of the Rental Period;
        • Total Rental Fee charged;
        • Where applicable, use of any Credits; and
        • Remaining Account Balance.
      • PAYING FOR ZAPPY
        • Rental Fee
          • The Rental Fee shall be charged on an hourly basis for the Rental Period subject to the Rental Fee Maximum and any Promotions and Credits.
          • The Rental Fee will be charged at the end of each Rental Period and deducted from the User’s Account Balance immediately.
          • Subject to Premium Accounts, the User must maintain their Account Balance at or above the Minimum Account Balancein order to rent a Charger.
        • Subscription Fee
          • Unless agreed otherwise in writing, the User agrees to provide a credit card through Zappy, which will be charged weekly in advance for the Subscription Fee on a recurring basis subject to termination of the Premium Account and/or these Terms of Service.
        • Changes
          • The Company may vary the Fees or introduce new Fees by giving the User written notice. Those Fees will apply the next the User rents a Charger or from the beginning of the next subscription period, as appropriate.
          • If a User does not accept a change to any Fees, then it can simply terminate its Account and cease using Zappy.
        • Online Payments
          • All Fees will be processed using the Company’s third party online payment provider, which in default shall be Stripe. The Company does not store the User’s credit card information.
        • Currency
          • All Fees are quoted in Australian dollars, however transactions may be processed in an equivalent foreign currency (such as US dollars or British pounds).
        • GST
          • For Users in Australia, GST is applicable to any Fees charged by the Company to the User. Unless expressed otherwise, all Fees shall be deemed inclusive of GST. The Company will provide the User with a Tax Invoice for any payments.
        • Refunds
          • No refunds of Fees are offered other than as required by law, unless otherwise agreed in these Terms of Service.
          • Where there are funds in the Account Balance of a User at the time of termination of these Terms of Service, such funds will be refunded to the User following termination.
        • Credits
          • The User acknowledges and accepts that:
            • Credits can only be used for the Account that was issued the Credits, and cannot be transferred to another Account;
            • Creditscan only be used to rent a Charger, and not otherwise redeemed or exchanged for any cash, goods or services; and
            • Credits will be forfeited uponcancellation of an Account and/or termination of this Agreement.
          • Late Payment
            • Where the User does not pay any Fees as required, the Company may suspend all User access to Zappy for that Account.
            • If Fees are not brought out of arrears within 7 days of becoming overdue, the Company may terminate the User’s Account without notice and end these Terms of Service.
            • The User agrees that the Company shall not be responsible or liable in any way for:
              • Interruptions to the availability of Zappy in the event of (a);
              • Loss of any content or data in the event of (b).
            • Forfeit Event
              • Where a Forfeit Event occurs, the User shall be liable to pay the Company the Rental FeeMaximum (Forfeit Event Fee), unless the Company agrees otherwise in its complete discretion.
              • The Forfeit Event Fee shall be paid within 15 Business Days from the date that the Company notifies the User in writing that a Forfeit Event has occurredand the Forfeit Event Fee is payable.
              • This User’s obligation under this clause 10shall survive termination of this Agreement.
            • USER CONTENT
              • The Company agrees to treat all User Content as Confidential Information under these Terms of Service.
              • The User agrees that the Company is not responsible for the maintaining the confidentiality of any User Content by the User.
              • The Company accepts no liability for the content of User Content. Each User is responsible for the accuracy, quality and legality of any content uploaded by the User.
              • The Company shall not access, use, modify or otherwise deal with User Content except where required by compulsion of law or upon the User’s authority (such as to provide support for Zappy).
              • The Company may suspend accessibility to User Content that the Company determines is illegal, offensive, indecent or objectionable in its sole discretion.
              • The Company may delete User Content from its systems on termination of these Terms of Service.
            • General conditions
              • Licence
                • By accepting the terms and conditions of these Terms of Service, the User is granted a limited, non-exclusive and revocable licence to access and use Zappy for the duration of these Terms of Service, in accordance with these Terms of Service.
                • The Company may issue the licence to the User on the further terms or limitations as it sees fit.
                • The Company may revoke or suspend the User’s licence(s) in its absolute discretion for any reason that it sees fit, including for breach of these Terms of Service by the User.
              • Modification of Terms
                • The terms of these Terms of Service may be updated by the Company from time-to-time.
                • Where the Company modifies the terms, it will provide the User with written notice, and the User will be required to accept the modified terms in order to continue using Zappy.
                • The modified terms shall come into effect the next time the User uses Zappy following notice of the updated terms.
              • Software-as-a-Service
                • The User agrees and accepts that the Application is:
                  • Hosted on servers managed by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the Company servers and is not available ‘locally’ from the User’s systems; and
                  • Managed and supported exclusively by the Company from the servers managed by the Company and that no ‘back-end’ access to the Application is available to the User unless expressly agreed in writing.
                • As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter the Application.
                • The Company shall not exercise its rights under clause (b)in a manner that would intentionally cause the User to lose access to User Data or fundamentally decrease the utility of the Application to the User, other than in accordance with the terms of these Terms of Service.
              • Use & Availability
                • The User agrees that it shall only use Zappy for legal purposes and shall not use it to engage in any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
                • The User is solely responsible for the security of its username and password for access to their Account. The User shall notify the Company as soon as it becomes aware of any unauthorised access of their Account.
                • The User agrees that the Company shall provide access to Zappy to the best of its abilities, however:
                  • Access to Zappy may be prevented by issues outside of its control; and
                  • It accepts no responsibility for ongoing access to Zappy.
                • Support
                  • The Company shall provide reasonable support services in the manner agreed with and/or notified in writing to the User from time-to-time.
                  • The Company reserves the right to require the payment of reasonable fees for non-standard support requests prior to the provision of such support.
                  • The User should notify the Company of any difficulties or problems they may experience with Zappy as soon as practicable.
                • Advertising
                  • Subject to any benefits that may be offered for a Premium Account, Zappy will contain information and advertising from third-party businesses, people and websites, and the User consents to receiving this information as part of their use of Zappy.
                • Location
                  • The Company may request access to location data from the User’s Device for the operation of Zappy, and in particular to find nearby Stations.
                  • The User acknowledges that some features and general performance of Zappy may be affected if the User does not provide the Company access to location data.
                • Privacy
                  • The Company maintains the Privacy Policy in compliance with the provisions of the Privacy Act for Personal Information that it collects about the User.
                  • The Privacy Policy does not apply to how the User handles Personal Information.  If necessary under the Privacy Act, it is the User’s responsibility to meet the obligations of the Privacy Act by implementing a privacy policy in accordance with law.
                  • Zappy may use cookies (a small electronic tracking code) to improve a User’s experience while browsing, while also sending browsing information back to the Company. The User may manage how it handles cookies in its own browser settings.
                • Security
                  • The Company takes the security of Zappy and the privacy of its Users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems and property.
                • Intellectual Property
                  • Trade marks.The Company has moral and registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
                  • Proprietary Information.The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally.  The User warrants that it shall not infringe on any third-party rights through the use of Zappy.
                  • The User agrees and accepts that the Application is the Intellectual Property of the Company and the User further warrants that by using the Application the User will not:
                    • Copy the Application or the services that it provides for the User’s own commercial purposes; and
                    • Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in the Application or any documentation associated with it.
                  • All content (excluding User Content) submitted to the Company, whether via Zappy or directly by other means, becomes and remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to Zappy.
                  • Nothing in these Terms of Service is intended to give the User any Intellectual Property rights in, or in respect of, any of the Company’s Intellectual Property. For the avoidance of doubt, ownership of Devices and Stations shall remain and vest at all times with the Company and/or its successors and assignees.
                • Third Party Dependencies

The User agrees and acknowledges that Zappy has third party dependencies which may affect its availability, including (without limitation) internet service providers and hosting services, and that the Company has no means of controlling the availability of such dependencies and shall not be liable for any interruptions to such.

• Confidentiality
  • The Company agrees to keep all User Content in the strictest confidence, and to the extent User Content is accessed and/or received by the Company it shall be deemed as Confidential Information for the purposes of these Terms of Service.
  • Each party acknowledges and agrees that:
    • The Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);
    • It owes an obligation of confidence to the Discloser concerning the Confidential Information;
    • It must not disclose the Confidential Information to a third party except as permitted in these Terms of Service;
    • All Intellectual Property rights remain vested in the Discloser, but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and
    • Any breach or threatened breach by the receiving party of an obligation under these Terms of Service may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy.  Consequently, the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.
  • A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:
    • Any actual, suspected, likely or threatened breach by it of any obligations it has in relation to the Confidential Information.
    • Any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or
    • Any actual, suspected, likely or threatened theft, loss, damage, or unauthorized access, use or disclosure of or to any Confidential Information.
  • The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:
    • Any actual, suspected, likely or threatened breach of a term of these Terms of Service; or
    • Any theft, loss, damage or unauthorized access, use or disclosure of or to any Confidential Information that is or was in its possession or control.
  • Liability & Indemnity
    • The User agrees that it uses Zappy at its own risk and the Company is not liable for any loss that may result from use of Zappy, in particular personal injury of the User and/or physical damage to a Device.
    • The User acknowledges that the Company is not responsible for the conduct or activities of any User and that the Company is not liable for such under any circumstances.
    • The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with Zappy, including any breach by the User of these Terms of Service.
    • In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, damage to property, injury, illness, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to or use of, or inability to use Zappy, including, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, injury, illness or business interruption of any type, whether in tort, contract or otherwise.
    • Certain rights and remedies may be available under the Competition and Consumer Act 2010(Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified.  Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law.  To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
      • The re-supply of services or payment of the cost of re-supply of services; or
      • The replacement or repair of goods or payment of the cost of replacement or repair.
    • Termination
      • Either party may terminate this these Terms of Service by giving the other party written notice and/or cancelling an Account.
      • With respect to Ad Hoc Users, these Terms of Service shall automatically terminate at the end of the Rental Period.
      • Termination of these Terms of Service is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of these Terms of Serviceup to the date of termination.
    • Dispute Resolution
      • If any dispute arises between the parties in connection with these Terms of Service (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
        • Includes or is accompanied by full and detailed particulars of the Dispute; and
        • Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
      • Within 10 Business Days after a Dispute Notice is given, a representative of each party with the authority to resolve the dispute, must meet (virtually or otherwise) and seek to resolve the Dispute.
      • Subject to clause (d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
      • Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
      • Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.
    • Electronic Communication, Amendment & Assignment
      • The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth)have the same meaning.
      • The User can direct notices, enquiries, complaints and so forth to the Company as set out in these Terms of Service.  The Company will notify the User of a change of details from time-to-time.
      • The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.
      • A consent, notice or communication under these Terms of Service is effective if it is sent as an electronic communication unless required to be physically delivered under law.
      • Notices must be sent to the parties’ most recent known contact details.
      • The User may not assign or otherwise create an interest in these Terms of Service.
      • The Company may assign or otherwise create an interest in its rights under these Terms of Service by giving written notice to the User.
    • General
      • Special Conditions. The parties may agree to any Special Conditions to these Terms of Service in writing.
      • To the extent these Terms of Service is in conflict with, or inconsistent with any Special Conditions made under these Terms of Service, the terms of those Special Conditions shall prevail.
      • Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in these Terms of Service.
      •  The relationship of the parties to these Terms of Service does not form a joint venture, agency or partnership.
      • No clause of these Terms of Service will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
      • Further Assurances.  Each party must do anything necessary (including executing agreements and documents) to give full effect to these Terms of Service and the transaction facilitated by it.
      • Governing Law.  These Terms of Service is governed by the laws of New South Wales, Australia.  Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
      • Any clause of these Terms of Service, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of these Terms of Service.
      • The following rules apply unless the context requires otherwise:
        • Headings are only for convenience and do not affect interpretation.  
        • The singular includes the plural and the opposite also applies.
        • If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
        • A reference to a clause refers to clauses in these Terms of Service.
        • A reference to legislation is to that legislation as amended, reenacted or replaced, and includes any subordinate legislation issued under it.
        • Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included. 
        • A reference to a partyto these Terms of Service or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
        • A reference to a person, corporation, trust, partnership, unincorporated bodyor other entity includes any of them.
        • A reference to informationis to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.

END TERMS OF SERVICE