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”).

The terms and conditions set out below (“Terms of Use”) apply to use of the Application (the “Platform”) by you (the “User”, “you” or “your”). The Platform is available for you to use conditional on your acceptance of these Terms of Use.

BY ACCESSING OR USING THE PLATFORM, YOU AGREE TO BE LEGALLY BOUND BY THESE TERMS OF USE.

IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU SHOULD STOP ACCESSING OR USING THE PLATFORM IMMEDIATELY.

HiJo reserves the right to amend these Terms of Use at any time. Notice of any amendments will be displayed on the Website and sent to all Users via push notification. Your continued use of the Platform following any change(s) to the Terms of Use shall mean that you accept such change(s) and that you will be bound by the Terms of Use as varied.

By accepting these Terms of Use, you also acknowledge that you have read our Privacy Statement available at privacy policy and to the extent permitted by law, you consent to how we collect, handle and use your Personal Information in accordance with our Privacy Statement. Where required, we will provide separate notice and request your consent as referenced in the Privacy Statement.

Any questions about these Terms of Use can be directed to [email protected]

1. Application

1.1 These Terms of Use apply to all Users, whether or not the User completes their profile. By visiting, viewing, browsing, accessing, or otherwise using the Platform, you accept and agree to comply with these Terms of Use.

1.2 These Terms of Use comprises of this document, our Privacy Statement and such other policies that we may introduce or amend from time to time, all of which are incorporated herein by reference. We will give you reasonable notice of a new policy or changes to the Terms of Use by posting on our Website or otherwise notifying you on the Platform. By continuing to access or use the Platform, or continuing to maintain a User Account, after we have given notice of an introduction of a policy or variation of these Terms of Use, you agree to continue to be bound by the Terms of Use as varied.

1.3 You must be 18 years old to use the Platform. By accessing the Platform, you warrant that you have legal capacity to agree and to be bound by these Terms of Use.

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.

2.5 If you are a Consumer, the Platform Services come with Consumer Guarantee under the ACL. If you are a Consumer, nothing in these Terms of Use (including, without limitation, the disclaimers of liability contained in clause 11 and limitations of liability contained in clause 12) is intended to limit or exclude your Consumer Guarantees.

3. License to use Platform

3.1 Subject to the terms of these Terms of Use, HiJo agrees to grant you a limited, personal, non-exclusive, non-transferable, conditional and revocable license to view, access and use the Platform.

3.2 We may terminate the license provided to you under clause 3.1 when you breach these Terms of Use or for any other reason (in our sole discretion).

4. User Account

4.1 There are no user accounts.

4.2 Without limiting any other rights which HiJo may have to communicate with you, you agree that HiJo may send push notifications to your device for notification purposes regarding the Platform (including in relation to any updates to these Terms of Use and Privacy Notice).

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. Privacy

6.1 When operating the Platform, HiJo will collect, handle and use your Personal Information in accordance with our Privacy Statement– see privacy policy.

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

7.1 Your access to, and use of, the Platform is subject to all conditions specified in these Terms of Use. If you breach any such conditions, we will be entitled to take any reasonable action, including terminating your User Account or taking legal action against you, in our sole discretion.

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:

• a. Use the Platform for any purpose that is illegal, unlawful or prohibited by these Terms of Use;
• 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

9.1 Where you acquire our Platform Services as a Consumer, we will provide our Platform Services to you in accordance with any Consumer Guarantees under the ACL. Nothing in these Terms of Use overrides, excludes, limits or otherwise restricts any Consumer Guarantees applicable to you under the ACL, to the extent that they do, this clause 11.1 will prevail.

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
• d. We otherwise exclude any term, condition or warranty that may otherwise be implied into these Terms of Use or otherwise relating to our Platform Services.

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. Liability

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.

10.2 Subject to clause 11.1 and any liability we may have to you under clause 12.1and to the extent permitted by law, HiJo and its Representatives exclude, and you hereby release HiJo and its Representatives from, all liability (whether arising under these Terms of Use, tort, negligence, statute or in any other way) for all Loss and Clams of any kind whatsoever directly or indirectly sustained by you in relation to any of the following matters (“Platform Matters”):

• 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;
• g. A failure by another User you interact or deal with via the Platform to comply with these Terms of Use;
• 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.

10.3 To the extent that any limitations of liability contained in these Terms of Use are ineffective or if any warranties are implied by law that cannot be excluded, then to the maximum extent permitted by law, our total aggregate liability to you is capped at the total monies you have paid (subject to deductions for refunds received) to any User or otherwise via the Platform in the 12 month period prior to the limitation being ineffective or warranty not being able to be excluded.

11. Indemnity

As a further condition of using the Platform, you must indemnify HiJo against all direct, quantifiable and reasonable Loss suffered by HiJo and/or its Representative (whether based in negligence or any other tort, contract, statutory liability or otherwise) as a result of you breaching these Terms of Use, or otherwise from your use of Platform or the Platform Services.

12. Termination

12.1 We may terminate or suspend your access to the Platform at any time, at our sole discretion and without notice to you effective immediately if we have reason to believe that you have failed to comply with these Terms of Use. For any other reason, we will give you 14 days’ prior written notice.

12.2 You may terminate these Terms of Use by ceasing to use the Platform and sending a request in writing to HiJo (sent to [email protected]) for the suspension of your User Account.

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:

• a. Any Personal Information or non-personal statistical information collected under these Terms of Use and the Privacy Statement may continue to be stored, used or disclosed within the scope of the purposes described in the Privacy Statement; and
• 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

13.1 These Terms of Use are governed by and construed in accordance with the laws of the State of Victoria, Australia without giving effect to any conflict of laws principles. Any claim, cause of action or dispute arising out of these Terms of Use will be resolved exclusively in the courts of Victoria, Australia, and where applicable, the Federal Court of Australia or Federal Circuit of Australia, and you agree to submit to the personal jurisdiction of such courts for the purpose of litigating such claims.

14. Complaints and Dispute Resolution

14.1 Users may report inappropriate or infringing User Content on the Platform or other breaches of these Terms of Use by other Users to HiJo. All Users agree to in good faith, assist HiJo, provide HiJo with the information that HiJo requires, and do such other things reasonably necessary to enable HiJo to investigate the complaint and to take appropriate action to enforce these Terms.

14.2 Any complaints about HiJo or disputes with HiJo in relation to these Terms of Use or the Platform Services (“Dispute”) by a User must first be dealt with in accordance with clauses 16.3 to 16.5, before commencing any court proceedings other than for urgent interlocutory relief.

14.3 The User must give HiJo written notice of the dispute adequately identifying and providing details of the Dispute (“Dispute Notice”). Notwithstanding the existence of a Dispute, both parties shall continue to perform their obligations under these Terms of Use.

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. Miscellaneous

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.

15.2 From time to time,HiJo may run promotions or offer discounts or benefits of any one or more Users subject to additional terms and conditions which shall prevail in the event of any inconsistency over these Terms of Use. We reserve the right to offer, withdraw, change, cancel or determine the eligibility for any such promotions, discounts or benefits.

15.3 If HiJo is involved in a sale, merger or other restructuring, it may need to assign its position under these Terms of Use to a third party, which it will have the right to do so at its sole discretion. HiJo will also have the right to assign its position under these Terms of Use in other circumstances with your written consent. You may assign your position under these Terms of Use to a third party with HiJo’s prior written consent.

15.4 The rights and obligations under these Terms of Use, which by their nature would reasonably continue beyond the expiration of termination of these Terms of Use, will survive the expiration of termination of these Terms of Use. Without limiting the generality of the foregoing, clauses 9, 10, 11, 12, 13 and 15 will survive the termination of these Terms of Use.

15.5 In the event that any one or more of the provisions contained in these Terms of Use would, for any reason, be held to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect any other provisions of these Terms of Use and these Terms of Use shall be construed as if such provisions had never been contained herein.

15.6 The fact that a party fails to do, or delays in doing, something the party is entitled or obligated to do under these Terms of Use, does not amount to a waiver of any obligation of, or breach of obligation by, any other party.

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.

15.8 The following definitions apply in these Terms of Use:

• “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.