Terms and Conditions
- Our Terms
1.1 Important — this agreement (“Agreement”) is a legal agreement between you (either an individual or entity) (“you” or “your”) and Zenin Pty Ltd. (hereinafter “Zenin,” “we”, “us” or “our”) that sets forth the legal terms and conditions for your access to and use of a technology platform provided by Zenin (including www.zenin.com.au and any other website owned and operated by Zenin (the “Website(s)” or “Site(s)”) and any Zenin software, including any Zenin mobile applications (the “App(s)”) to enable you to: (a) if you are an individual, arrange and schedule massage therapy services with an independent third party provider of such services (each, a “Third Party Therapist”); or (b) if you are a Third Party Therapist, accept engagements for and provide massage therapy services to individual consumers ( “Individual Customer”) or corporate customers (“Corporate Customer”) (together, “Customers”) (“Referral Services”), or other services offered by Zenin, its subsidiaries and/or affiliates, from time to time a (collectively, the Website(s), App(s) and Referral Services are referred to as “Service(s)”).
For the avoidance of doubt, the Services do not include massage therapy services, which are provided by Third Party Therapists engaged by Customers using the Services. You acknowledge that Zenin does not provide massage therapy services. If you are a Customer, you further acknowledge that all massage therapy services are provided by independent third party contractors who are not employed by Zenin or any of its affiliates.
1.2 Why should you read these Terms? These terms create a legally binding agreement between you and us. By accessing or using the Site, you are accepting this Agreement and agreeing to use the Services in accordance with the terms and conditions in this Agreement. Some of our Services may have additional rules, policies, and procedures. Where such additional terms apply, we will make them available for you. A copy of these Terms and Conditions may be downloaded, saved and printed for your reference.
1.3 You confirm that you can enter the Agreement. As a condition of your use of the Services, you confirm and warrant to us that you meet the eligibility requirements set out in Section 4.3 and have the right, authority, and capacity to enter into these terms or, if you are under the age of 18, you have obtained the consent of your parent or legal guardian to this Agreement.
1.4 Which provisions of the terms should you pay particular attention to? The key terms that you should consider in particular detail are: 3. Changes to the Site and these Terms; 9. Our responsibility for loss or damage; and 11. Termination.
1.5 What to do if you don’t want to accept these terms? If you do not agree with all of the provisions of these terms, do not access and/or use the Services.
- Information about Zenin and contact details
2.1 Who we are. Zenin Pty Ltd. Is based in Sydney, NSW Australia.
2.2 Where we are based. Our registered office is at Unit 4, 2 Mona Road, Darling Point, NSW. 2027.
2.3 How to contact us. You can contact us by writing to us at Zenn Pty, Ltd. c/o Unit 4, 2 Mona Road, Darling Point, NSW. 2027.
2.4 How we may contact you. If we have to contact you we may do so by telephone or by email to the number and/or address you provided when you registered for an Account.
2.5 Email counts as “in writing”. When we use the words “writing” or “written” in these Terms, this includes emails. For contractual purposes, you consent to receiving communications from Zenin by email.
3. Changes to the Site and these Terms
3.1. Small changes. We reserve the right to change the terms and conditions of this Agreement or to modify or discontinue the Services offered by Zenin at any time, by notice to you. Those changes will go into effect on the effective date shown in the revised agreement. If we change this Agreement, we will give you notice by posting the revised agreement on the applicable website(s) or app(s) and sending an email notice to you using the contact information provided by you. Therefore, you agree to keep your contact information up-to-date and that notice sent to the last email address you provided shall be considered effective. We also encourage you to check this Agreement from time to time to see if it has been updated.
3.2. More significant changes. In addition, we may make more significant changes to the Site and/or these Terms, but if we do so an these changes materially or adversely impact your rights or use of the Site, we will notify you by email of such changes using the contact information provided by you. We may require you to provide consent to the updated agreement before further use of the Services is permitted. By continuing to use any Services after the new effective date, you agree to be bound by such changes. If the modified terms are not acceptable to you, please cease using the Services.
4. Service Description and Participation/Account Creation/Eligibility/Referrals and Promotions
4.2. Account Creation. In order to access certain features of the Website and Apps and to use certain Services, you may be required to register to create an account (“Account”). In connection with setting up your Account with Zenin, we may supply you with a user identification and/or password. In connection with any future use, you may be asked to input your user identification and/or password from time to time. You agree to be responsible for all activity that occurs under your Account and agree to be responsible for maintaining the security of your password and user identification. You agree to immediately notify Zenin of any unauthorized use of your user identification or password or any other breach of security. You can delete your Account at any time, for any reason, by calling Zenin at 0293621521.
4.3. Eligibility. Persons under 13 are prohibited from providing personal information on our Websites or via our Apps. If you are under the age of 18, you may use the Services only with the involvement of your parent or guardian. Make sure that you review these terms with your parent or guardian so that you both understand all your rights and responsibilities. If you are under the age of 18, you represent and warrant that you have obtained the consent of your parent or legal guardian to this Agreement.
4.4. Referral Credits. We offer credits for referring new users. To qualify for a referral credit, you must refer a new user who establishes a Zenin Account, reserves and completes a massage therapy service which is booked through the Services within ninety (90) days of signing up for an account [and nominates you as the referring user]. Please note that referral credits are given for the purpose of attracting brand new users to Zenin. You may earn only one referral bonus per new user referred, and the value of your referral bonuses may not exceed one thousand five hundred dollars (USD $1,500).
4.5. Promotional Codes. We may, in our sole discretion, create promotional codes that may be redeemed for credit in your Account, or other features or benefits related to the Services, subject to any additional terms that we establish on a per promotional code basis (“Promo Codes”). Promo Codes may only be used once per person. Each benefit may only be redeemed once per account. Promo Codes for duplicate benefits will be voided. Only Promo Codes sent to you through official Zenin communications channels are valid. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by us; (iii) may be disabled by us at any time for any reason without liability to us by notice to you (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use.
4.6. Reservation of Rights. We reserve the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event we determine or form a suspicion that the use or redemption of the Promo Code or the provision of any referral credit was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or the terms of this Agreement. Once you have redeemed a Promo Code or used any credit in your Account to purchase massage therapy services using the Services, no further promotional value adjustments or credits will be issued for any reason, including but not limited to, dissatisfaction with the Services or the massage therapy services provided by a Third Party Therapist.
4.7. Promotional Discounts. From time to time, Zenin may offer promotional discounts in the form of massage credits when you purchase a massage series. Such promotional discounts may only be available for purchase and use in certain jurisdictions, in which case the eligible jurisdiction will be stated at the time of purchase. You must purchase the promotional discount before the expiration of the promotional discount period, but your credits may be used at any time. A limited quantity of promotional discounts may be available during any promotional period. Promotional discounts are non transferable, non refundable, not for resale, and not redeemable for cash or gift cards. Promotional discounts are good only for massage credits. Additional terms and conditions may apply and will be made available to you during any promotional discount period.
5. Gift Cards The following terms under this “Gift Cards” heading relate to you as the purchaser or user of gift cards purchased through the Site (“Gift Cards”). IF YOU DO NOT AGREE TO THESE TERMS, YOU SHOULD NOT PURCHASE GIFT CARDS THROUGH THE SITE.
5.2. Use and Limitations. Gift Cards cannot be used to purchase other gift cards. To the fullest extent of the law, Gift Cards cannot be reloaded, resold, transferred for value, redeemed for cash, or applied to any other account. Unused Gift Card balances in an account may not be transferred. Unless otherwise required by law, Gift Cards are not returnable or refundable for cash. Gift Cards may not be sold or bartered to third parties. Gift Cards may be used as personal or business gifts, but may not be used in connection with any marketing, advertising, or other promotional activities (including without limitation via Sites, Internet advertisements, email, telemarketing, direct mail, newspaper and magazine advertisements, and radio and television broadcasts) unless you obtain Zenin’s prior written approval. Zenin will not be liable with respect to any Gift Card that is obtained from unauthorized sellers or resellers, including through Internet auction sites. Use of Zenin’s name, logo, trade dress (including any image/likeness of the Gift Cards) or trademarks (or those of any of its subsidiaries or affiliates) in connection with the purchase or use of Zenin Gift Cards is strictly prohibited. Furthermore, the use of Zenin Gift Cards in any manner that states or implies that any person, Site, business, product, or service is endorsed or sponsored by, or otherwise affiliated with, Zenin, or any of its subsidiaries or affiliates is prohibited.
5.3. Risk of Loss. If your Gift Card is lost or stolen, immediately contact customer service at email@example.com Your Gift Card will be cancelled and after an internal investigation, we will issue a new Gift Card with the remaining balance, if any. Lost or stolen Gift Cards cannot be replaced without the original confirmation email sent to the email account provided to Zenin. Zenin and its affiliates shall have no liability to you for: lost or stolen Gift Cards; or use of any Gift Cards by third parties through your account that is not attributable to the negligence or misconduct of Zenin. You are responsible for keeping the username and password for your Account safe and for any activity conducted under your account that is not attributable to the negligence or misconduct of Zenin. Notwithstanding the above, the risk of loss and title for Gift Cards passes to the purchaser upon our electronic transmission to the purchaser, recipient, or delivery to the carrier, whichever is first and/or applicable. The Gift Cards never expire, nor is there a dormancy fee, but we are not responsible if a Gift Card is lost, stolen, destroyed, or used without your permission for reasons not attributable to the negligence or intentional or reckless misconduct of Zenin.
6. Acceptable Use and Complaints
6.1. You are responsible for your use of the Services, and for any use of the Services made using your Account. Further, you are responsible for your use of any massage therapy services which may be ordered using the Services. Our goal is to create a positive experience in connection with our Services. To promote this goal, we prohibit certain kinds of conduct that may be harmful to other users or to Zenin.
6.2. If you are a Third Party Therapist or Customer, you agree not to attempt to contact each other directly about massage therapy services outside of the Services for a period of 6 months after the date of your last visit to the Services, except as may be permitted by these Terms or Zenin, or otherwise circumvent your relationship with Zenin.
6.3. When you use the Services or enter into any agreement with a Customer or Third Party Therapist for massage therapy services as a result of the Services, you agree that you will not:
(a) violate this Agreement or any Zenin rules regarding use of the Services;
(b) violate any law or regulation;
(c) breach any agreements you enter into with any third parties (including any Third Party Therapist or Customer);
(d) violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other legal rights;
(e) engage in any behavior that is abusive, harassing, indecent, profane, obscene, hateful or otherwise objectionable, including sexual misconduct;
(f) stalk, harass, assault or harm another individual (including a Customer or a Third Party Therapist);
(g) for the purpose of misleading others, create a false identity of the sender or the origin of a message, forge headers or otherwise manipulate identifiers in order to disguise the origin of any material transmitted through the Services or in connection with Zenin;
(h) impersonate any person or entity or perform any other similar fraudulent activity;
(i) harvest or otherwise collect or store any information (including personally identifiable information) about other users of the Services, including e-mail addresses, without the express consent of such users or alter transmission data;
(j) collect, distribute or gather personal or aggregate information, including Internet, e-mail or other electronic addresses, about Zenin’s customers or other users;
(k) upload, post, e-mail or otherwise transmit any material that constitutes unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation or commercial electronic message;
(l) use any means to scrape or crawl any Web pages or Content contained in the Websites or Apps (although Zenin may allow operators of public search engines to use spiders to index materials from the Websites for the sole purpose of creating publicly available searchable indices of the materials, and Zenin reserves the right to revoke these exceptions either generally or in specific cases);
(m) attempt to circumvent any technological measure implemented by Zenin or any of Zenin’s providers or any other third party (including another user) to protect the Websites or Apps; to the extent permitted by applicable law, attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Websites or Apps;
(n) steal, damage, harm, tamper with or otherwise interfere with any tangible property belonging to any third party (including a Customer or a Third Party Therapist); or
(o) advocate, encourage, or assist any third party in doing any of the foregoing.
If Zenin reasonably suspects that you are in breach of this clause, Zenin may suspend your account immediately on notice to you. You acknowledge that your account may remain suspended until such time as Zenin has completed its investigation to its satisfaction, and may be terminated if the breach is established. Zenin will notify you when your account becomes active again.
7. Mobile Application License
7.1. Subject at all times to this Agreement, if you elect to download the App, the following also applies: Zenin grants you a license to download, install and use a copy of the App on a single mobile device or computer that you own or control solely for your personal and professional use on the basis that the license is:
(a) revocable – we have the right to remove your ability to use the App in accordance with these Terms;
(b) non-exclusive – we can license other people to access and use the App;
(c) non-transferable – you can’t pass this right to someone else or sublicense the license; and
(d) limited – the license does not extend beyond what has just been described above.
7.2. Furthermore, with respect to any App accessed through or downloaded from an App Store such as Google Play or the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application: (1) on a product that runs the operating system for which it was intended and (2) as permitted by the “Usage Rules” set forth in the corresponding App Store. Use of the App from a third party App Store is also subject to the provisions of Section 11.
8. Purchases, Payments, Cancellation and Rescheduling
8.2. Product Descriptions. Descriptions, images, references, features, content, specifications, products, prices, and availability of any Products and services are subject to change without notice, and our current prices can be found on the Website. We make reasonable efforts to accurately display the attributes of our Products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. The inclusion of any Products or services on the Website at a particular time does not imply or warrant that these Products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the possession, use, and sale of any item purchased through the Website. By placing an order, you represent that the Products and services ordered will be used only in a lawful manner. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any Product; to honor or impose conditions on the honoring of, any coupon, coupon code, promotional code, or other similar promotions; to bar any user from making any or all purchases; and to refuse to provide any user with any product or service.
8.4. Taxes. Unless otherwise provided, amounts set out on the App or the Website do not include GST. If a supply under this Agreement is subject to GST and GST has not been accounted for in determining the consideration payable for the supply, the supplying party may recover from the receiving party an amount on account of GST. That amount is:
(a) equal to the value of the supply calculated in accordance with GST law multiplied by the prevailing GST rate; and
(b) payable at the same time as the recipient is required to pay for the related supply.
In this section, “GST” has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
8.5. Shipments. When you place an order for a Product or service, we will confirm your address by sending an email to the email address you provided when you placed your order. Your placement of an order through our Website is an offer to purchase the products and/or services ordered and we may accept your order by processing your payment and shipping the products or making available your purchased services. Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. For any reason, we may decline to accept your order or any part of your order. No order will be considered accepted by Zenin until the product(s) has been shipped or service(s) made available. If some of products in your order are temporarily out of stock, we will ship the available products only and notify you of any products that cannot be fulfilled. If we decline to accept your order, we will attempt to notify you at the email address you provided. We further reserve the right any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. We may require additional verifications or information before accepting any order.
8.6. Returns. In addition to your rights under the Australian Consumer Law, you may return purchased products that have not been opened or used within thirty (30) days for a refund of the purchase price for such returned product. You will be responsible for all shipping and handling charges in connection with any return.
8.7. What if I think I was charged incorrectly. You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: firstname.lastname@example.org
8.8. Payment for massage therapy services. Each Third Party Therapist hereby appoints Zenin as the Third Party Therapist’s limited payment collection agent solely for the purpose of accepting applicable payment from Customers via the Services. Each Third Party Therapist agrees that payment made by a Customer through Zenin shall be considered the same as a payment made directly to the Third Party Therapist, and the Third Party Therapist will provide its services to the Customer in the agreed-upon manner as if the Third Party Therapist has received the payment. Zenin reserves the right to charge the Third Party Therapist a commission on the fees paid by a Customer to the Third Party Therapist for the provision of Therapist’s services (“Zenin Commission”). Each Third Party Therapist understands that Zenin accepts payments from Customers as the Third Party Therapist’s limited payment collection agent and that Zenin’s obligation to pay the Third Party Therapist is subject to and conditional upon successful receipt of the associated payments from Customers. Zenin does not guarantee payments to Third Party Therapists for amounts that have not been successfully received by Zenin from Customers. In accepting appointment as the limited payment collection agent of the Third Party Therapist, Zenin assumes no liability for any acts or omissions of the Customers. Each Customer acknowledges and agrees that Zenin reserves the right, in its sole discretion, to charge Customer for and collect fees from the Customer on behalf of the Third Party Therapist as the Third Party Therapists’ limited payment collection agent. In the event a Customer elects to tip the Third Party Therapist for the provision of massage therapy services, the Customer will be charged for such tip amount designated by Customer. Tips will not be subject to any Zenin Commission. Zenin reserves the right at its discretion to cancel or reverse any payment, even if it has been previously confirmed by Zenin, as a result of any mistake or error, including any mistaken pricing or service description or other error. You will be charged for services as soon as a therapist accepts your appointment. There may be a temporary hold placed on your credit card for no more than the service amount prior to a therapist accepting your appointment
8.9. What if I need to reschedule or cancel my appointment. If you are a Third Party Therapist or Customer, you agree to Zenin’s cancellation and rescheduling policy and the associated charges and payments, the terms of which are located here https://www.zenin.com.au/cancellation and are incorporated herein by reference.
9. Ownership & Copyright
9.1. Ownership. The parties agree that all proprietary rights in the Services are and will remain the property of Zenin. This includes non-personally identifiable aggregate data collected by Zenin in connection with providing the Services, including usage statistics and traffic patterns, any and all rights, title and interest to which are hereby assigned to Zenin by you.
9.2. Copyright Restrictions.
(a) The Websites and Apps, including but not limited to software, content, text, photographs, images, graphics, video, audio and the compilation as a whole (“Content”), are protected under Australian copyright, trademark and other laws by Zenin or its licensors, unless otherwise noted. All trademarks, service marks, trade names, branding and get-up (trade dress) on this website belong to Zenin, its related entities or its licensors. You must abide by all additional copyright notices or restrictions contained in the Websites, Apps or elsewhere. You may not delete any legal or proprietary notices in the Websites, Apps or elsewhere.
(b) Except as noted in Section 7 above: (1) the Websites and Apps may not be used, displayed, copied, reproduced, distributed, republished, uploaded, downloaded, posted, transmitted, mirrored or modified; and (2) except to the extent permitted by applicable law, you may not redistribute, sell, translate, modify, reverse-engineer or reverse-compile or decompile, disassemble or make derivative works of the Websites, Apps or any Content or components that are available on the Websites or Apps.
(c) You agree not to interfere or take action that results in interference with or disruption of the Websites or Apps or servers or networks connected to the Websites or Apps. You agree not to attempt to gain unauthorized access to other computer systems or networks connected to the Websites or Apps. Zenin reserves all other rights. Except as expressly provided herein, nothing on the Websites or as part of the Services will be construed as conferring any license under Zenin’s and/or any third party’s intellectual property rights. Notwithstanding anything herein to the contrary, Zenin may revoke any of the foregoing rights and/or your access to the Services, including the App, or any part thereof, at any time without prior notice.
9.3. Copyright Permission. Permission is granted for viewing the Website pages and Content on the Internet and via the Apps for your own informational purposes, subject to the terms and conditions of this Agreement. In the event that information is downloaded from the Websites or Apps, the information, including any Content, data or files incorporated in or generated by the Websites or Apps are owned by Zenin and Zenin retains complete title to the information and all property rights therein. All other rights are reserved. Reproduction of multiple copies of the Content, in whole or in part, for resale or distribution, is strictly prohibited except with the prior written permission of Zenin. To obtain written consent for such reproduction, please contact us at email@example.com
9.4. Content License. As part of the Services, we may, in our sole discretion, permit you to post, upload, publish, submit or transmit certain content (“Your Materials”). We may also post a photograph or other visual likeness of you (“Your Image”). By making available any of Your Materials on or through the Services or if we make available Your Image on or through the Services, you (i) hereby grant to Zenin the right to use Your Materials and Your Image as necessary to provide the Services, promote the Services and improve the Services, and (ii) consent to any acts which would otherwise constitute a breach of any and all moral rights that you may have in and to Your Materials and Your Image. Zenin does not claim any ownership rights in any of Your Materials and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit any of Your Materials. If you do not want to grant us permission to use Your Material or Your Image in accordance with this Agreement, please do not post, upload, publish, submit or transmit Your Materials or Your Image.
9.5. Copyright Policy. You acknowledge and agree that you are solely responsible for all of Your Materials that you make available through the Services. You represent and warrant that: (1) you either are the sole and exclusive owner of all of Your Materials that you make available through the Services or you have all rights, licenses, consents and releases that are necessary to grant to Zenin (or, the Third Party Therapist or Customer as applicable) the rights in Your Materials, as contemplated under this Agreement; and (2) neither Your Materials nor your posting, uploading, publication, submission or transmittal of Your Materials or Zenin’s (or, the Third Party Therapist’s or Customer’s as applicable) use of Your Materials or Your Image (or any portion thereof) on, through or by means of the Services will infringe, misappropriate or violate any patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, result in the defamation of any person or contain content which is defamatory of any person, or result in the violation of any applicable law or regulation.
9.6. Trademarks/Use of Name or Brand. All Content, product names, trademarks, service marks and logos appearing as part of the Services, unless otherwise noted, are wholly owned or validly licensed by Zenin. Trademarks, service marks and logos owned by third parties remain the property of such third parties.
9.7. Feedback. If you submit any ideas, suggestions or testimonials “Feedback” to Zenin, you hereby transfer to us all rights in such Feedback without charge. You also agree that Zenin shall have the right to use and fully exploit such Feedback in any manner that we consider appropriate, including posting on the Internet. Please note that the Feedback you provide to us will not be treated as confidential information – accordingly, you agree not to submit to us any information or ideas that you consider to be confidential or proprietary. You may only submit ideas and material if you have obtained appropriate copyright and other permission to submit such materials and to permit Zenin to use such material without restriction. You agree that you will not violate or infringe the rights of third parties, including privacy, publicity and intellectual and proprietary rights, such as copyright or trademark rights. You further agree not to submit any material which may result in the defamation of any person or which contains any content which is defamatory of any person.
10. Our Responsibility for Loss or Damage
You understand and acknowledge that Zenin only provides a platform for communication between Third Party Therapists and Customers, and does not itself provide massage therapy services. As such, Zenin disclaims any and all liability relating to your interactions with any Third Party Therapist(s) or other Customer(s), including any transaction between a Customer and a Third Party Therapist for the provision of massage therapy services. By using the Services, you agree that Zenin has no responsibility or liability to you related to any massage therapy services provided by Third Party Therapists other than as expressly set out in these Terms.
10.1. DISCLAIMER. Subject to section 10.2, and to the maximum extent permitted by law, Zenin excludes all representations, conditions or warranties, express or implied, including without limitation, warranties of acceptability, satisfactory quality, fitness for a particular purpose, title, compatibility, security, accuracy, or usefulness with respect to the products or services. You agree that any claims or causes of action arising out of any action or inaction of any Third Party Therapists or Customers, shall be exclusively between you and the Third Party Therapist or Customer (as applicable) and not Zenin. To the maximum extent permitted by law, the Products and Services are provided “as is.” You agree to use the Products and Services solely at your own risk. You assume full responsibility and risk of loss resulting from your use of the Services. Although we intend to take reasonable steps to prevent any damages to you, we are not liable for any damages or harm attributable to the foregoing. Any representations made to you by any Third Party Therapist(s) are made solely at the discretion of the Third Party Therapist and Zenin has no way to monitor or validate, and shall not be responsible or liable in any way for, any representations or statements made to you by the Third Party Therapist(s). You understand and acknowledge that Zenin shall have no liability to you for any statements or representations made by the Third Party Therapist to you as a result of your use of the Service(s).
10.2. AUSTRALIAN CONSUMER LAW. Nothing in these terms operates to limit or exclude liability that cannot by law be limited or excluded. If you are a consumer for the purposes of applicable State or Federal law in Australia, with the consequence that certain guarantees and certain rights and remedies are conferred on you which cannot be excluded, restricted or modified, then to the maximum extent permitted by law, our liability to you is limited at our option to: (a) in the case of goods: (i) replacement of the goods or the supply of equivalent goods; (ii) repair of the goods; (iii) payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) payment of the cost of having the goods repaired; and (b) in the case of services: (i) resupply of the services; or (ii) payment of the cost of resupplying the services.
10.3. THE SITE IS NOT BESPOKE TO YOU. You acknowledge that the Site has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the site meet your requirements.
10.4. WE ARE RESPONSIBLE TO YOU ONLY FOR FORESEEABLE LOSS AND DAMAGE CAUSED BY US. If we fail to comply with these terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breaking these terms or our failure to use reasonable care and skill, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time these terms are entered into and both we and you knew it might happen.
10.5. WE ARE NOT LIABLE FOR BUSINESS LOSSES. If you are an Individual Customer, we only make the site available for your domestic and private use. If you are a Third Party Therapist and use the site for any commercial, business or resale purpose we will have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
10.6. NO LIABILITY FOR DAMAGE CAUSED BY UNAUTHORISED ACCESS. We will not be responsible for any loss or damage incurred as a result of unauthorised access to your Account which is not within our reasonable control.
10.7. THE SITE MAY NOT ALWAYS BE AVAILABLE. We do not warrant or guarantee that your use of the Services will be (a) uninterrupted or error free; or (b) will result in any requests for or provision of massage therapy services. You acknowledge that the Services may be unavailable at any time and for any reason (including scheduled maintenance).
10.8. LIMITED LIABILITY. Subject to clause 10.2 and to the maximum extent permitted by applicable laws, you agree that Zenin, its affiliates, agents and their respective officers, directors, shareholders, employees, contractors, representatives and agents will not be liable whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for: (a) any loss of profits; (b) any indirect or consequential loss; or (c) to the extent that you experience any loss or damages resulting from any massage therapy services booked through your use of the Services, including interactions, agreements or transactions with Third Party Therapist(s) or other Customers.
10.9. INDEMNIFICATION. You agree to indemnify and hold harmless Zenin, its affiliates, agents, contractors, and their respective officers, directors, shareholders, employees, contractors, representatives and agents, from any and all liabilities, claims, expenses and damages, including reasonable attorneys’ fees and costs, arising out of or in any way related to your breach of this agreement.
10.10. LIABILITY CAP. Subject to sections 10.2 and 10.12, and to the maximum extent permitted by law, the aggregate liability of Zenin, its affiliates, agents and their respective officers, directors, shareholders, employees, contractors, representatives and agents to you for all claims arising from or relating to this agreement or your use of the Services, any cause of action sounding in contract, tort, or strict liability, will not exceed the greater of: (a) the total amount received by Zenin from you during the six-month period prior to the act, omission or occurrence giving rise to such liability, or (b) $100.
10.11. This limitation of liability is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective or if a remedy fails of its essential purpose. You acknowledge and understand that the disclaimers, exclusions and limitations of liability set forth herein form an essential basis of the agreement between the parties hereto, that the parties have relied upon such disclaimers, exclusions and limitations of liability, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this agreement would be substantially different.
10.12. WHAT WE DO NOT EXCLUDE. Except where prohibited by applicable law, nothing in these terms shall limit or exclude our liability for:
(a) death or personal injury resulting solely from our negligence or the negligence of our employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; and
(c) any other liability that cannot be excluded by applicable law.
11. Third Party Links & App Store
11.1. Third-Party Links & Ads. The Site may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Where the Site contains links to Third-Party Links & Ads, these links are provided for your information and convenience only. We have no control over the contents of those sites or resources. Zenin does not review, approve, endorse or make any promises with respect to Third-Party Links & Ads. You use Third-Party Links & Ads at your own risk. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, not these Terms.
11.2. App Store. When you download our Apps, you may do so through a third party’s App Store. You acknowledge that the terms of this Agreement are between you and us and not with the owner or operator of the App Store (“App Store Owner”). As between the App Store Owner and us, we, and not the App Store Owner, are solely responsible for the Services, including the App, the content, maintenance, support services, and warranty, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store Owner in connection with the Services, including the App. The following applies to any App Store Sourced Application (as such term is defined in Section 7):
(a) Your use of the App Store Sourced Application must comply with the App Store’s “Terms of Service” or equivalent terms.
(b) You acknowledge that the App Store Owner has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify the App Store Owner, and the App Store Owner will refund the purchase price for the App Store Sourced Application to you (if any) and to the maximum extent permitted by applicable law, the App Store Owner will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Zenin and the App Store Owner, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Zenin.