v2.2.1 03 April 2023
The Agile IQ® Service (“Service”) comprises your use of:
When you download and/or use the Service, you agree to the following Customer Terms and Conditions and its End User License Agreement (EULA).
If you register for a free trial of the Software, these Customer Terms and Conditions and EULA agreement will also govern that trial.
By clicking “accept” or installing and/or using the Service, you are confirming your acceptance of the Service and agreeing to become bound by the terms of this EULA agreement and the Customer Terms and Conditions, including any and all associated subscriptions and/or contract conditions.
The Service, with the exception of the Agile IQ® kiosk web application, uses an Agile IQ® ID as your Contract identifier.
Your Contract identifier and provides you access to the Service. When you first register to use the Service we will subscribe you to the “Coaching Gold” trial subscription and notify you.
You may change the subscription or give us notice of non-renewal at any time by contacting email@example.com.
These Customer Terms (or, if applicable, your written agreement with us) and any Order Form(s) (defined below) together form a binding “Contract” between Customer and us. If any terms in the Customer-Specific Supplement apply to Customer (e.g., if Customer is a government entity), those terms are also incorporated herein by reference and form part of the Contract. “We,” “our” and “us” currently refer to Zen Ex Machina (“ZXM”) Pty Ltd.
If you use the Service, download Agile IQ®, purchase subscription(s), create an account, create an Agile IQ® ID, run analysis, or view reports, you acknowledge your understanding of the then-current Contract and agree to the Contract on behalf of Customer.
Please make sure you have the necessary authority to enter into the Contract on behalf of Customer before proceeding.
The “Customer” is the organisation that you represent in agreeing to the Contract. If your teams are being set up by someone who is not formally affiliated with an organisation, the Customer is the individual creating those teams.
For example, if you signed up using a personal email address and invited a couple of friends to do an assessment, you are the Customer.
If you registered using your corporate email domain, your organisation is the Customer, and the Customer can modify and re-assign roles on your account and otherwise exercise its rights under the Contract. If the Customer elects to replace you as the representative with ultimate authority for the account and for teams assigned to that account, we will provide you with notice following such election and you agree to take any actions reasonably requested by us or the Customer to facilitate the transfer of authority to a new representative of the Customer.
Individuals authorised by the Customer to access the Services (an “Authorised User”) may submit content or information to the Services (“Customer Data”), including but not limited to identifiers of the Customer’s company, team names, program names, answers to Agile IQ® assessment questions, improvements and intervention actions the Customer is undertaking. We remain the custodian of Customer Data submitted to us in the use of the Service.
The Customer will:
(a) Inform Authorised Users of all Customer policies and practices that are relevant to their use of the Services.
(b) Inform Authorised Users of all Customer policies and practices that are relevant to submitting Customer Data.
(c) Obtain all rights, permissions, or consents, from Authorised Users and other Customer personnel that are necessary to grant the rights and licenses in the Contract and for the lawful use and transmission of Customer Data and the operation of the Services.
ZXM may share information about our future products and plans for transparency. Public statements about products and plans are an expression of intent. The Customer should not rely on them when making a purchase. If the Customer decides to use the Service, that decision should be based on the functionality or features we have made available today and not on the delivery of any future functionality or features.
A subscription allows an Authorised User to access the Services.
No matter the role, a subscription is required for each Authorised User.
Different subscriptions will provide the Customer with a different number of allowable Authorised Users.
A subscription may be procured through:
(a) The Services interface.
(b) Contacting firstname.lastname@example.org
(c) Obtaining an Agile IQ® ID
(d) Requesting a Statement of work (“SOW”) entered into between the Customer and us.
Each Authorised User must agree to the User Terms to activate their subscription. Subscriptions commence when we make an Agile IQ® ID available to Customer and continue for the term specified in the Services. Each subscription is for a single Authorised User for a specified term and is personal to that Authorised User.
ZXM sometimes enter into other kinds of ordering arrangements. These are spelled out and agreed using a Statement of Work (“SOW”).
Customer must comply with the Contract and ensure that its Authorised Users comply with the Contract and the User Terms. We may review conduct for compliance purposes, but we have no obligation to do so. We aren’t responsible for the content of any Customer Data or the way Customer or its Authorised Users choose to use the Services to store or process any Customer Data.
The Services are not intended for and should not be used by anyone under the age of 18. The Customer must ensure that all Authorised Users are over 18 years old. Customer is solely responsible for providing high speed internet service for itself and its Authorised Users to access and use the Services.
If we believe that there is a violation of the Contract, we will, in most cases, ask the Customer to take direct action rather than intervene. If the Customer does not take appropriate action, or if we believe there is a credible risk of harm to us, the Services, Authorised Users, or any third parties we may directly step in and take what we determine to be appropriate action,
For Customers that purchase our Services, our standard fees are specified on the Agile IQ® website.
Fees are paid in advance through PayPal.
Payment obligations are not able to be cancelled and, except as expressly stated in the Contract, fees paid are non-refundable.
For clarity, in the event the Customer downgrades any subscriptions, the Customer will remain responsible for any unpaid fees under the subscription plan, and Services under the subscription paid plan will be deemed fully performed and delivered upon expiration of the initial paid plan subscription term.
Read our Pricing page for more information about plans and cost.
If we agree to invoice Customer by email, full payment must be received within fourteen (14) days from the invoice date except where otherwise stated in a SOW. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”).
The Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income.
If any fees owed to us by Customer (excluding amounts disputed reasonably and in good faith) are fourteen (14) days or more overdue, we may, without limiting our other rights and remedies, cancel the Services until those amounts are paid in full, so long as we have given Customer seven (7) or more days’ prior notice that its account is overdue. Notwithstanding the second paragraph of the “Providing the Services” section below, Customer acknowledges and agrees that a downgrade will result in a decrease in certain features and functionality and potential loss of access to Customer Data, as illustrated by comparing the plans in the Pricing Guide.
Customer isn’t the only one with responsibilities, we have some, too. We will:
(a) Make the Services available to Customer and its Authorised Users as described in the Contract.
The protection of Customer Data is a top priority for us so we maintain administrative, physical, and technical safeguards. Those safeguards will include measures for preventing unauthorised access, use, modification, deletion and disclosure of Customer Data by our personnel. Importantly:
(a) We don’t share any of your individually attributed data with any third-party.
(b) We don’t store personal information in Agile IQ®. Personal information, including account and profile information are part of the registration process. This information is stored separately in our CRM, not in Agile IQ.
The Customer (not us) bears sole responsibility for adequate security, protection, and backup of Customer Data when in Customer’s or its representatives’ or agents’ possession or control or when Customer chooses to use unencrypted gateways (e.g., IRC/XMPP clients) to connect to the Services.
We are not responsible for what Customer’s Authorised Users do with Customer Data. That is Customer’s responsibility.
To find more about our security practices visit the Data and Security section of the Agile IQ® website.
Subject to the terms and conditions of the Contract, the Customer (for itself and all of its Authorised Users) grants us a worldwide, non-exclusive, unlimited term license to access, use, process, copy, distribute, perform, export and display Customer Data only as reasonably necessary:
(a) To deliver the features of the Service.
(b) To prevent or address service, security, support, or technical issues.
(c) As required by law.
(d) As expressly permitted in writing by Customer.
The Customer represents and warrants that it has secured all rights in and to Customer Data from its Authorised Users as may be necessary to grant this license.
We own and will continue to own our Services, including all related intellectual property rights. We may make software components available, via app stores or other channels, as part of the Services.
A paid subscription has a term that may expire or be terminated. The Contract remains effective until all subscriptions ordered under the Contract have expired or been terminated or the Contract itself terminates. Termination of the Contract will terminate all subscriptions and all Order Forms.
Unless a Statement of Work (“SOW”) states differently:
(a) All subscriptions automatically renew (without the need to go through the Services-interface “check-out”) for additional periods equal to one (1) year or the preceding term, whichever is shorter.
(b) The pricing plan during any automatic renewal term will remain the same as it was during the immediately prior term.
Either party can:
(a) Give the other notice of non-renewal at least seven (7) days before the end of a subscription term to stop the subscriptions from automatically renewing.
(b) Self-serve the non-renewal of the Service through PayPal.
The Customer can give notice of non-renewal of a subscription by email to: email@example.com.
We or the Customer may terminate the Contract on notice to the other party if the other party materially breaches the Contract and such breach is not cured within seven (7) days after the non-breaching party provides notice of the breach. Customer is responsible for its Authorised Users, including for any breaches of this Contract caused by its Authorised Users. We may terminate the Contract immediately on notice to Customer if we reasonably believe that the Services are being used by Customer or its Authorised Users in violation of applicable law.
We are custodians of the Customer Data.
During the term of a subscription(s), the Customer will be permitted to export or share certain Customer Data from the Services, provided, however, that because we have different products with varying features, the Customer acknowledges and agrees that the ability to export or share Customer Data may be limited or unavailable depending on the type of Services plan in effect and the data retention, sharing or invite settings enabled.
Following termination or expiration of an account’s subscriptions, we will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in our systems or otherwise in our possession or under our control.
Customer represents and warrants that it has validly entered into the Contract and has the legal power to do so. Customer further represents and warrants that it is responsible for the conduct of its Authorised Users and their compliance with the terms of this Contract and the User Terms.
EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
OTHER THAN IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER CUSTOMER’S OR THE ZEN EX MACHINA (“ZXM”) PTY LTD AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE CONTRACT OR THE USER TERMS (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE “PAYMENT TERMS” SECTION ABOVE.
IN NO EVENT WILL EITHER CUSTOMER OR ANY MEMBER OF THE ZEN EX MACHINA (“ZXM”) PTY LTD HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. The Customer is responsible for all login credentials, including usernames and passwords, for administrator accounts as well the accounts of your Authorised Users. We will not be responsible for any damages, losses or liability to Customer, Authorised Users, or anyone else, if such information is not kept confidential by Customer or its Authorised Users, or if such information is correctly provided by an unauthorised third party logging into and accessing the Services.
The limitations under this “Limitation of Liability” section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this “Limitation of Liability” section allocate the risks under this Contract between the parties, and the parties have relied on these limitations in determining whether to enter into this Contract and the pricing for the Services.Indemnifications
Our Indemnification of Customer
We will defend Customer from and against any and all third party claims, actions, suits, proceedings, and demands alleging that the use of the Services as permitted under the Contract infringes or misappropriates a third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Customer in connection with or as a result of, and for amounts paid by Customer under a settlement we approve of in connection with, a Claim Against Customer; provided, however, that we will have no liability if a Claim Against Customer arises from (a) Customer Data or (b) any modification, combination or development of the Services that is not performed by us, including in the use of any application programming interface (API). Customer must provide us with prompt written notice of any Claim Against Customer and allow us the right to assume the exclusive defence and control, and cooperate with any reasonable requests assisting our defence and settlement of such matter. This section states our sole liability with respect to, and Customer’s exclusive remedy against us for, any Claim Against Customer.
Customer’s Indemnification of ZXM
Customer will defend Zen Ex Machina (“ZXM”) Pty Ltd from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to Customer’s or any of its Authorised Users’ violation of the Contract or the User Terms (a “Claim Against Us”), and will indemnify the Zen Ex Machina (“ZXM”) Pty Ltd for all reasonable attorney’s fees incurred and damages and other costs finally awarded against the Zen Ex Machina (“ZXM”) Pty Ltd in connection with or as a result of, and for amounts paid by the Zen Ex Machina (“ZXM”) Pty Ltd under a settlement Customer approves of in connection with, a Claim Against Us. We must provide Customer with prompt written notice of any Claim Against Us and allow Customer the right to assume the exclusive defence and control, and cooperate with any reasonable requests assisting Customer’s defence and settlement of such matter. This section states your sole liability with respect to, and the Zen Ex Machina (“ZXM”) Pty Ltd exclusive remedy against Customer for, any Claim Against Us.
Limitations On Indemnifications
Notwithstanding anything contained in the two preceding sections (a) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel (b) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if (i) the third party asserting the claim is a government agency, (ii) the settlement arguably involves the making of admissions by the indemnified parties, (iii) the settlement does not include a full release of liability for the indemnified parties, or (iv) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.
Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with the Contract, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including the Statement of Work, as well as non-public business, product, technology and marketing information. Confidential Information of Customer includes Customer Data. If something is labelled “Confidential,” that’s a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
Protection and Use of Confidential Information
The Receiving Party will (a) take at least reasonable measures to prevent the unauthorised disclosure or use of Confidential Information, and limit access to those employees, affiliates and contractors who need to know such information in connection with the Contract ; and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Contract. Nothing above will prevent either party from sharing Confidential Information with financial and legal advisors; provided, however, that the advisors are bound to confidentiality obligations at least as restrictive as those in the Contract.
Compelled Access or Disclosure
The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the access or disclosure. Without limiting the foregoing, please review the Data Request for details on how requests may be made for the disclosure of Customer Data and how we will handle those requests. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided in connection with the Disclosing Party seeking a protective order or confidential treatment for the Confidential Information to be produced.
The Customer grants us the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers, subject to Customer’s standard trademark usage guidelines.
ZXM doesn’t wish to list customers who don’t want to be listed, so the Customer may send us an email to firstname.lastname@example.org stating that it does not wish to be used as a reference.
Neither us nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
Email and Messages
Except as otherwise set forth herein, all notices under the Contract will be by email, although we may instead choose to provide notice to the Customer through our blog or through social media channels. Notices to Zen Ex Machina (“ZXM”) Pty Ltd will be sent to email@example.com . Notices will be deemed to have been duly given (a) the day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Services.
As our business evolves, we may change these Customer Terms and the other components of the Contract (except any Order Forms). If we make a material change to the Contract, we will provide Customer with reasonable notice prior to the change taking effect, either by emailing the email address associated with Customer’s account or by messaging Customer through the Blog. Customer can review the most current version of the Customer Terms at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in the Contract. The materially revised Contract will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If Customer (or any Authorised User) accesses or uses the Services after the effective date, that use will constitute Customer’s acceptance of any revised terms and conditions.
No failure or delay by either party in exercising any right under the Contract will constitute a waiver of that right. No waiver under the Contract will be effective unless made in writing and signed by an authorised representative of the party being deemed to have granted the waiver.
The Contract will be enforced to the fullest extent permitted under applicable law. If any provision of the Contract is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Contract will remain in effect.
Neither party may assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the Contract in its entirety (including all Order Forms), without consent of the other party, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets. Customer will keep its billing and contact information current at all times by notifying Zen Ex Machina (“ZXM”) Pty Ltd of any changes. Any purported assignment in violation of this section is void. A party’s sole remedy for any purported assignment by the other party in breach of this section will be, at the non-assigning party’s election, termination of the Contract upon written notice to the assigning party. Subject to the foregoing, the Contract will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
The Contract, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of Australia, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
Venue; Waiver of Jury Trial; Fees
The state and federal courts located in Australia will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Contract or its formation, interpretation or enforcement. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Contract. In any action or proceeding to enforce rights under the Contract, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
The Contract, including these Customer Terms and all referenced pages and Order Forms, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, the Contract supersedes the terms of any online agreement electronically accepted by Customer or any Authorised Users. However, to the extent of any conflict or inconsistency between the provisions in these Customer Terms and any other documents or pages referenced in these Customer Terms, the following order of precedence will apply: (1) the terms of any Statement of Work (if any), (2) the Customer Terms and (3) finally any other documents or pages referenced in the Terms. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Statement of Work) will be incorporated into or form any part of the Contract, and all such terms or conditions will be null and void.
Contacting Zen Ex Machina (“ZXM”) Pty Ltd
Please also feel free to contact us if you have any questions about our Customer Terms of Service. You may contact us at firstname.lastname@example.org.
Zen Ex Machina shall at all times retain ownership of the Software as originally downloaded by you and all subsequent downloads of the Software by you. The Software (and the copyright, and other intellectual property rights of whatever nature in Agile IQ®, including any modifications made thereto) are and shall remain the property of Zen Ex Machina.
Zen Ex Machina shall retain ownership of the information you submit through the Software for the purposes of providing you the Service.
Zen Ex Machina reserves the right to grant licences to use the Software to third parties.
Zen Ex Machina makes content that is available to the general public available through its Service. Where possible, Zen Ex Machina cites and references the source of this content. Zen Ex Machina makes no claim of ownership of such content and does not challenge the owners intellectual property rights or trademarks.
This EULA agreement is effective from the date you first use the Software and shall continue until terminated. You may terminate it at any time upon written notice to Zen Ex Machina.
It will also terminate immediately if you fail to comply with any term of this EULA agreement. Upon such termination, the licenses granted by this EULA agreement will immediately terminate and you agree to stop all access and use of the Software. The provisions that by their nature continue and survive will survive any termination of this EULA agreement.
This EULA agreement, and any dispute arising out of or in connection with this EULA agreement, shall be governed by and construed in accordance with the laws of Australia.
Copyright © Zen Ex Machina® and ™ (2021). All rights reserved. ABN 93 153 194 220