SmartSensory –Terms & Conditions for Organisations

1. Introduction
(a) SmartSensory Pty Ltd ACN 657 775 329 (We, us) operate a beer sensory program known as “SmartSensory” (Program).
(b) We have agreed to provide you and the Participants you nominate with access to the Program.
(c) By accessing the Program and/or paying the Fees to us, you agree to comply with and be bound by this Agreement and our Privacy Policy.
(d) You acknowledge that you have read and understood these terms and have the authority to act on behalf of any person accessing the Program. This Agreement, as amended or replaced from time to time, shall apply to your use of the Program.
(e) We reserve the right to amend this Agreement at any time at our sole discretion. We will endeavour to highlight any significant or substantive changes to you by email and/or through our Website where possible. However, it is your responsibility to keep yourself informed of any changes to this Agreement.
(f) Please email us at info@smartsensory.beer if you have any questions about the Program or this Agreement.
2. Accounts
2.1 Accessing the Program
(a) You must create an Account with us before you and Participants access the Program.
(b) You acknowledge that we may offer various account types, and it is your responsibility to review and evaluate your individual situation to determine which account type is appropriate for you.
2.2 Provision of Information
(a) You agree to provide any information we reasonably request for the purpose of setting up your Account and operating the Program. This may include your Personal Information, Participants’ Personal Information, and information about your business.
(b) You warrant that:
(i) all of the information that you provide to us is accurate and complete in all respects;
(ii) you will inform us by updating your Account details whenever any such information changes; and
(iii) you will not provide false or misleading information.
2.3 Declining your Account
We reserve the right to reject an Account at our absolute discretion.
2.4 Right to suspend
We may limit or suspend your Account, or any of your Participants’ Accounts if:

 

(a) you breach the terms of this Agreement;
(b) your Participants breach the terms of the Participant Agreement; or
(c) we suspect a security breach associated with an Account.
2.5 Security responsibilities
(a) We will take reasonable steps to ensure that our Website and App is secure from unauthorised access consistent with generally accepted industry standards.
(b) You must take all reasonable steps to ensure that usernames and passwords associated with your Account and Participants’ Accounts are not disclosed to third parties.
(c) If you become aware that the security of your Account or any of Participants’ Accounts may be compromised, you must immediately notify us.
3. Program
3.1 The Program
Our Program includes:
(a) the Website;
(b) the App;
(c) online training, including training materials;
(d) certification;
(e) coaching; and
(f) Sensory Kits.
3.2 Licence to access the Program
We grant a limited, non-exclusive, non-transferrable and revocable licence to you and Participants to access the Program, subject to the terms of this Agreement.
3.3 Licence Conditions
The licence in clause 3.2 is subject to and conditional upon:
(a) you complying with the terms of this Agreement, our Privacy Policy and any other directions we give you;
(b) Participants agreeing to the terms of our Participant Agreement and our Privacy Policy before accessing the Program;
(c) you ensuring that you have policies and procedures in place to actively enforce the terms of this Agreement and prevent any breach;
(d) you informing us of any breach of this Agreement, particularly those related to security, privacy and data management.
3.4 Availability of App and Website
You acknowledge and agree that:
(a) the App and Website will only be accessible using the Internet and will not be available locally from your own servers;
(b) the App and Website are operated from servers owned and controlled by third parties. As such, certain functions are outside of our control, including cloud services for servers, data storage and backup;
(c) from time to time, without notice, access to all or part of the App and/or Website may be disrupted or limited. During such an interruption, we will use reasonable endeavours to restore access to the App and/or Website as soon as possible. However, we will not be liable for any Claim you may suffer during an interruption; and
(d) from time to time, we may make the App and/or Website inaccessible as is required for upgrades, maintenance and updates. We will use reasonable endeavours to provide you with advance notice of any inaccessible period, but you accept that this may not always be possible and we are not liable for any harm or damage you may suffer during an interruption.
3.5 Availability of Program generally
You acknowledge and agree:
(a) where there is an Unforeseen Event, we may cancel, suspend or alter any part of our Program immediately; and
(b) we give no guarantee or representation that any particular part of the Program will be available at any time.
3.6 Variations to the Program
(a) We may add, remove, suspend, or alter any part of the Program at any time, at our sole discretion.
(b) You are not entitled to a refund of Fees already paid due to changes in the Program.
3.7 Errors
(a) While we will use our best endeavours to avoid any errors, you acknowledge that there may be technical or administrative errors in the Program including but not limited to errors with respect to description or functionality. We reserve the right to at our absolute discretion, without notice correct any errors or update the Program.
(b) We accept no responsibility for errors in information provided by Participants or any third parties.
3.8 Third-party links
Material related to our Program may contain hyperlinks and other links to websites operated by third parties. We do not control these third-party websites and are therefore not responsible for the content of any third-party website or any hyperlink contained in a third-party website. The presence of third-party links in or related to our Program does not indicate, expressly or implicitly, any endorsement, sponsorship or approval by us of a third-party website or the products or services offered at a third-party website. Your use of any third-party products or services, or visit to a third-party website, are at your own risk.
4. Sensory Kits
4.1 Sensory Kits
(a) Subject to this clause 4, we will provide you and Participants with Sensory Kits as part of the Program, at the times and in the amounts we determine.
(b) We may require you to pay a delivery fee for the Sensory Kits.
(c) If you are located outside of Australia, we will only be able to deliver the Sensory Kits where we have acquired the relevant import permits.
4.2 Use of Sensory Kits and Flavour Standards
(d) You must only use, and ensure that Participants only use, the Sensory Kits strictly in accordance with the instructions we supply to you.
(e) Without limiting clause 4.2(a), you acknowledge and agree that:
(i) the Flavour Standards included in the Sensory Kits must be added to beer strictly in the concentrations we specify;
(ii) you must not allow anyone to use the Sensory Kits if they are not a Participant;
(iii) you and Participants should only consume beverages spiked with the Flavour Standards in the amounts we specify.
4.3 Delivery
(a) Any delivery times we make known to you are estimates only. We will notify you at our earliest practicable date if we believe that the delivery of Sensory Kits will be delayed.
(b) Sensory Kits will be deemed to be delivered when they arrive at the delivery address you have specified. You are not entitled to reject delivery of the Sensory Kits on the basis of any minor description or quantity.
(c) We reserve the right to deliver Sensory Kits in multiple instalments.
(d) Risk in the Sensory Kits passes to you upon delivery.
(e) If we are unable to deliver Sensory Kits to you because of your act or omission:
(i) risk in the Sensory Kids will pass to you;
(ii) the Sensory Kits will be deemed to have been delivered; and
(iii) we may store the Sensory Kits until actual delivery is possible. You will be liable for any additional costs we incur related to redelivery, storage and insurance.
(f) If you collect the Sensory Goods from an address we nominate, delivery of the Sensory Kits will be deemed to have taken place at the time of that collection.
5. Subscription and Fees
5.1 Subscription
(a) At the time of registration, you must choose the number of Participant licences required. Subscriptions give access to the Program for an initial period of three months (Subscription Period).
(b) Subscriptions will automatically renew on a monthly basis at the end of each month, starting from the end of the Subscription Period unless you notify us of your intent not to renew before the last day of the current Subscription Period. If you give us such a notice and are not in default, you will be entitled to a pro-rata refund based on the number of days remaining in your Subscription which you have been paid in advance (if any).
(c) However, we may elect at our sole discretion not to renew your subscription. Where we elect not to renew your Subscription, we will notify you before the last day of the Subscription Period.
5.2 Fees and Payment Methods
(a) You agree to pay the Fees in consideration for us providing you and Participants with access to the Program.
(b) Payment must be made through a method approved by us. You must nominate a payment method at the time of registration. You warrant to us that the payment details you provide are true and correct, and that you are authorised to use the payment instrument.
(c) You authorise us to charge you the Fee through your nominated payment method automatically at the beginning of each Subscription Period.
(d) If your payment details change, you must update them before the beginning of the next Subscription Period. Otherwise, your Subscription may be cancelled.
(e) Where payment is made by credit card, we may charge a credit card surcharge for bank fees and processing fees incurred by us.
5.3 Default
If you fail to pay the Fee by the due date for payment or your payment method is declined, we may immediately suspend or terminate the Accounts of you and your Participants, without any liability to you or any of your Participants.
5.4 Amendment of Fees
(a) We reserve the right to vary the Fees at any time (New Fees).
(b) If you have a current Subscription, we will provide you with notice of the New Fees through email, our Website or App, depending on the communication preferences you have nominated in your Account.
(c) The New Fees will apply from the beginning of the next month. You will be deemed to have accepted the New Fees unless you cancel your Subscription before the end of the current month.
5.5 GST
(a) In this clause 5.5, adjustment note, GST, tax invoice and taxable supply have the meaning given to them in the GST Law.
(b) For each taxable supply under or in connection with this Agreement:
(i) we will be entitled to charge you for any GST payable by us in respect of the taxable supply;
(ii) you must pay us the amount of the GST at the same time as the relevant charge applicable to the supply becomes payable under the Order; and
(iii) if required by law, we will provide a valid tax invoice or adjustment note to you in respect of the taxable supply.
(c) The price of all services is exclusive of GST unless expressly stated to be inclusive of GST.
5.6 Duties & Taxes
You are responsible for paying all government charges, duties, or taxes of any kind incurred in or in connection with this Agreement. Such charges include without limitation all stamp duties, financial institution duties, and any other charges or duties of a like kind.
6. Use of the Program
6.1 Prohibited Conduct
You must not, and ensure that Participants do not:
(a) use the Program or any part of it in a manner for which it was not designed;
(b) licence, sell, rent, lease, transfer, assign, distribute, display, disclose, commercially exploit or otherwise make the Program available to any third party;
(c) provide false or misleading information;
(d) in any way attempt to tamper with, hinder or modify the Website or App;
(e) intentionally disable any security features of the Website or App;
(f) grant access to your Account to any other person; or
(g) knowingly transmit any viruses, code, scripts or malware via the Website or App;
6.2 Submitted Material
(a) You must not submit, and ensure that Participants do not submit, any material to the Program which:
(i) you do not own or have the right to use;
(ii) is Confidential Information of any third party which you have not obtained the express consent of that third party;
(iii) is illegal, harmful, defamatory, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, hateful, or otherwise objectionable;
(iv) infringes the Intellectual Property Rights of a third party;
(v) would breach any privacy, security or anti-money laundering obligations;
(vi) is discriminatory based on race, gender, ethnicity, religious belief, sexual orientation, age, or disability;
(vii) causes or is likely to cause damage or injury to any person.
(b) We may, without incurring liability to you or any Participant, remove any material that we consider, in our sole discretion, breaches the provisions of this clause 6.2.
7. Privacy Policy
(a) You agree and consent to the handling of Personal Information in accordance with our Privacy Policy.
(b) We may amend our Privacy Policy in our sole discretion. If we amend our Privacy Policy, we will post the new Privacy Policy on our Website.
8. Intellectual Property
8.1 No Right to Intellectual Property
(a) Unless otherwise agreed, each party retains ownership of all Intellectual Property Rights in material owned or created by that party independently of this Agreement. None of that Intellectual Property is assigned or transferred by way of this Agreement.
(b) The parties agree that all Intellectual Property Rights in:
(i) the Program, the Website, the App, the Sensory Kits, and any other material, methods or content developed by us under this Agreement; and
(ii) any improvements, modifications or enhancements to the Program, the Website, the App, the Sensory Kits, and any other material, methods or content developed by us during the Term,
(collectively, the Program IP)
will vest in and are owned by us upon creation, even if based on your new feature request or feedback.
(c) In any circumstances where we do not automatically have such ownership of the Program IP, you will transfer it to us and will do all things necessary to ensure that full legal ownership of the Intellectual Property Rights in the Program IP passes to us.
8.2 License over data
Subject to the Privacy Law, you grant us a non-exclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sub-licensable, fully paid up and royalty-free right to copy, prepare derivative works of, improve, distribute, publish, remove, retain, add to, process, analyse and use and commercialise, in any way now known or in the future discovered, any material you submit to us connected with the Program.
8.3 Undertakings regarding intellectual property
You warrant that you will not do any of the following, or permit any person to:
(a) copy or reproduce, or create an adaptation or translation of, all or part of the Program IP in any way, except to the extent that reproduction occurs automatically through the ordinary use of the Program in accordance with this Agreement;
(b) incorporate all or part of the Program IP in any other webpage, site, application or other digital or non-digital format;
(c) (unless explicitly granted under this Agreement) sell, license, sublicense, lease, rent, distribute, disclose, permit access to, or transfer to any third party, whether for profit or without charge, any portion of the Program IP on any medium; or
(d) directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, or algorithms contained in the Program IP or any documentation associated with them.
8.4 Third-party material
We may use third-party materials as part of the Program. Use of third-party materials may be subject to creative commons or open-source licensing terms, or any third-party licensing terms as notified by us to you.
9. Limitation of Liability
9.1 Consumer Law
(a) You acknowledge and agree that you are acquiring the goods and services associated with the Program for commercial purposes and not for domestic, personal or household use.
(b) If you are a consumer within the meaning of the Consumer Law, there are certain rights (such as the consumer guarantees implied by the Consumer Law), which cannot by law be excluded (Non-Excludable Conditions). This Agreement is subject to those Non-Excludable Conditions.
9.2 Limitation of Liability
Subject to any Non-Excludable Condition, we exclude all liability for any Claims, including consequential or indirect loss, suffered or incurred directly or indirectly by you, Participants or any third party in connection with this Agreement, including in connection with:
(a) the availability of any part of the Program, or your ability to access it;
(c) any representation or statement contained in the Program;
(d) the Program being inaccessible for any reason;
(e) any liability under Privacy Law;
(f) any unauthorised activity in relation to the Program;
(g) the use or misuse of the Sensory Kits and Flavour Standards; or
(h) breach of this Agreement or Privacy Policy by you or Participants.
9.3 Non-Excludable Conditions
If our liability cannot be lawfully excluded, to the maximum extent permitted by law, our liability for breach of any Non-Excludable Condition is limited:
(a) in the case of goods, to (at our option) the replacement of the goods or the supply of equivalent goods; or payment of the cost of replacing the goods or of acquiring equivalent goods; and
(b) in the case of services, to (at our option) the supplying the services again; or the payment of the cost of having the services supplied again.
10. Warranties
10.1 Exclusion of express warranties
Subject to any Non-Excludable Condition, we make no warranties or guarantees:
(a) as to the standard, completeness, reliability, quality or accuracy of our Program. You are encouraged to evaluate your own individual needs and situation to determine whether the Program is appropriate for you;
(b) that the Program will be accessible at all times, uninterrupted or error free;
(c) that any documentation created by us is without error or inaccuracy;
(d) that our Website and App are without bugs or viruses;
(e) that our Website and App are immune to unauthorised access or security breach; and
(f) in respect of the retention of, or continued accessibility of, any data.
10.2 Your warranties
You represent and warrant you will:
(a) comply with the terms and conditions of this Agreement;
(b) only use the Program in accordance with the terms of this Agreement; and
(c) comply with our reasonable directions in relation to the use of the Program.
11. Indemnity
11.1 Indemnity
You release and indemnify, and will keep us and our Representatives indemnified against all liability arising from any Claims in any way connected with:
(a) any breach of this Agreement by you or Participants;
(b) the use or misuse of the Sensory Kits and Flavour Standards;
(c) damage to personal property;
(d) personal injury or death of any person;
(e) libel, slander, defamation, product disparagement or indecent, false, misleading or deceptive conduct;
(f) infringement of Intellectual Property Rights;
(g) piracy, counterfeiting, plagiarism, unfair competition or idea misappropriation; or
(h) invasion of the right of privacy or breach of Privacy Law.
11.2 General indemnity
You indemnify us against all costs suffered or incurred by us, however caused, arising wholly or partially, directly or indirectly, in connection with this Agreement or your and Participants’ engagement with the Program.
11.3 Conditions of Indemnity
(a) We may make a claim under indemnities in this Agreement in relation to a cost before having incurred the cost, or before making a payment in relation to the cost.
(b) The indemnities in this Agreement shall be in addition to any damages for breach of contract to which we may be entitled. Nothing in the indemnities in this Agreement will be construed as preventing us from claiming damages in relation to the breach of this Agreement by you.
(c) Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination of this Agreement for whatever reason.
12. Confidentiality
(a) Neither party may disclose the other party’s Confidential Information, unless the other party consents, they are legally compelled to disclose the Confidential Information, or the disclosure is to their Representatives or professional advisers who are bound by an obligation of confidentiality no less onerous than this clause 12.
(b) This clause 12 survives the termination of this Agreement.
13. Complaints and Disputes
(a) If you have a complaint about the Program, you must submit your complaint in writing to us. We may or may not, at our sole discretion, investigate your complaint, depending on the nature of the complaint.
(b) You agree not to bring any court or tribunal proceedings against us in respect of any complaint unless you comply with the requirements of this clause.
14. Default & Termination
14.1 Default
You will be in default if you:
(a) fail to pay any amount to us by its due date;
(b) provide us with information which you know or have reasonable grounds to suspect is false, incomplete or misleading;
(c) undergo an Insolvency Event; or
(d) breach any provision of this Agreement which is capable of remedy and fail to remedy that breach with 10 Business Days.
14.2 Termination due to default
We may terminate this Agreement immediately by written notice to you if you:
(a) are in material breach of this Agreement; or
(b) are in default for more than 10 Business Days.
14.3 Termination due to convenience
We may also terminate this Agreement for any reason by providing you with 10 Business Days’ notice. Provided that you are not in default, you will be entitled to a pro-rata refund based on the number of full months remaining in your Subscription which you have been paid in advance (if any).
14.4 Termination does not affect obligation to pay
Termination of this Agreement does not affect your obligation to pay any outstanding amounts or other amounts to us.
14.5 Effects of Termination
On termination of this Agreement, the licence to access the Program will terminate. You must immediately:
(a) cease all activities related to the Program;
(b) upon request, destroy or return all documents and other materials (including all copies) in your or your Participants’ possession relating to the Program; and
(c) do any further things as may be reasonably required by us to protect our right, title and interest in the Program.
15. Subcontractors
We may subcontract any of our obligations under this Agreement to a third party. To the extent permitted by law, you agree to indemnify and hold harmless us and our Representatives from any loss suffered or incurred caused by any subcontractor.
16. Definitions
16.1 Definitions
Unless explicitly state otherwise, expressions used in this Agreement have the following meanings:
Account means an account to access the Program.
App means the SmartSensory software application operated by us.
Agreement means this agreement.
Business Day means a day which is not a Saturday, Sunday or public holiday in Brisbane, Queensland.
Claim means a claim, demand, remedy, injury, damage, loss, cost, liability, action, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against a person, however arising and whether ascertained or unascertained immediate, future or contingent, or subject of a dispute, litigation or analogous proceeding.
Confidential Information means information that is by its nature confidential, including information related to a party’s internal business operations, clients, or Intellectual Property Rights. It does not include information already rightfully known to the receiving party at the time of disclosure by the other party, or in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this Agreement.
Consumer Law means the Australian Consumer Law set out in Schedule 2 of the Australian Competition and Consumer Act 2010 (Cth).
Fee means an amount payable by you to us in consideration for us providing you and Participants access to the Program, as specified on our Website from time to time.
Flavour Standards means the flavour standard chemicals included in the Sensory Kits.
GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Insolvency Event means an event that occurs when a party:
(a) is insolvent under the definition in the Corporations Act 2001 (Cth), or is in liquidation or provisional liquidation, under administration or external control, or becomes bankrupt or is affected by any analogous event;
(b) fails to comply with a statutory demand; or
(c) ceases, suspends or threatens to cease or suspend a material part of its business.
Intellectual Property Rights means all present and future rights conferred by statute, common law or equity (and all moral rights) in, or in relation to, business names, circuit layouts, computer software, confidential information, copyright, designs, domain names, formulas, inventions, knowhow, patents, plant varieties, recipes, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.
Participant means an employee, contractor or other person who you notify to us as someone who should be able to access the Program.
Participant Agreement means our terms and conditions for Participants, as amended from time to time.
Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth).
Program means the beer sensory program operated by us, including the App, Website, Sensory Kits and all goods and services associated with them.
Privacy Law means the Privacy Act 1988 (Cth) and any other legislation, regulation or code that governs the use of Personal Information.
Privacy Policy means our privacy policy as amended from time to time, located at https://smartsensory.beer/privacy
Representative includes an employee, agent, officer, director, auditor, advisor, researcher, partner, consultant, contractor, sub-contractor or related entity of a person or of a related body corporate of that person.
Sensory Kits means the beer flavour sensory kits provided to you and your Participants as part of the Program, which include Flavour Standards and instructions on use.
Subscription means a subscription for you and Participants to access the Program.
Unforeseen Event means pandemic or epidemic, an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware, a ransomware attack or other malicious code.
You means the organisation requesting access to the Program.
We or Us means SmartSensory Pty Ltd ACN 657 775 329.
Website means our website, located at https://smartsensory.beer
16.2 Interpretation
The following rules apply unless the context requires otherwise:
(a) a reference to a party includes that party’s permitted assigns, administrators, successors, executors, legal representatives and any novated party;
(b) any reference to a trustee includes any substituted or additional trustee;
(c) “including”, “includes” or any derivation of those words does not limit the matter in question to the things specifically mentioned in the applicable context;
(d) where a term is defined, other grammatical forms of that term will be taken to have the same meaning;
(a) a word which suggests one gender includes all other genders and no gender;
(e) headings are for convenience and will not affect interpretation;
(f) words in the singular will be taken to include the plural and also the opposite;
(g) “$” means the Australian dollar;
(h) a reference to a document will be to that document as updated, varied or amended;
(i) a document referenced by the Agreement will not take precedence over the referencing document;
(j) when any kind of legislative instrument is referenced, the reference will be taken to be that instrument as updated or substituted for by the legislative body in any way;
(k) any referenced digital resource may be replaced with another digital resource that is a copy of the original resource;
(l) a reference to a party’s conduct includes omissions as well as acts; and
(m) if a party is described as having discretion in a matter, the discretion in that matter will be interpreted as sole and absolute.
17. General
(a) Communications and notices must be in writing, and may be sent by mail, hand delivery or by email. Any notice sent by mail or hand delivered must also be sent by email.
(b) A notice will be taken to be received by the addressee:
(i) if delivered by hand before 5:00pm on a Business Day, then on the day of delivery;
(ii) if posted to an address, then on the third Business Day after the day of posting; or
(iii) if emailed and the sender has no reason to suspect the email was not delivered, at the time of sending.
(c) If this Agreement is inconsistent with any other document between the parties, this Agreement prevails to the extent of the inconsistency.
(d) Neither party has entered into any agreement in reliance on or as a result of any representation, promise, statement, conduct or inducement by the other otherwise than as set out in this Agreement.
(e) The relationship of the parties does not form a joint venture, partnership or agency, or create any form of employment relationship.
(f) You have no authority to act for or bind us except as specifically provided in this Agreement or with our express written consent.
(g) If any term of this Agreement is invalid or unenforceable then that term will be deemed deleted and the remainder of this Deed will remain in full force and effect.
(h) No part of this Agreement will be deemed waived, and no breach excused unless such waiver or consent is provided expressly and in writing.
(i) This Agreement may only be amended with our consent in writing.
(j) You cannot assign any of its rights or obligations under this Agreement without the prior written consent of us. We may assign any of its rights or obligations under this Agreement to a third party without notice to you or your prior consent. You must sign any documents to give effect to the assignment which we require.
(k) The parties’ obligations under this Agreement (other than an obligation to pay money) are suspended for the duration of and to the extent they are affected by an Unforeseen Event.
(l) The laws of the State of Queensland, Australia govern this Agreement. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction in Queensland.

SmartSensory – Terms & Conditions for Participants

1. Introduction
(a) SmartSensory Pty Ltd ACN 657 775 329 (We, us) operate a beer sensory program known as “SmartSensory” (Program).
(b) We have agreed to provide your Organisation and its nominated Participants, including you, with access to the Program.
(c) By accessing the Program, you agree to comply with and be bound by this Agreement and our Privacy Policy.
(d) Your use of the Program is also subject to the terms of the Organisation Agreement. In the event of any inconsistency between the terms of the Organisation Agreement and this Agreement, the Organisation Agreement will prevail.
(e) You acknowledge that you have read and understood these terms and have the authority to act on behalf of any person accessing the Program. These Terms, as amended or replaced from time to time, shall apply to your use of the Program.
(f) We reserve the right to amend this Agreement at any time at our sole discretion. We will endeavour to highlight any significant or substantive changes to you by email and/or through our Website where possible. However, it is your responsibility to keep yourself informed of any changes to this Agreement.
(g) Please email us at info@smartsensory.beer if you have any questions about the Program or this Agreement.
2. Accounts
2.1 Accessing the Program
(a) You must create an Account with us before you access the Program.
(b) You acknowledge that we may offer various account types, and it is your responsibility to review and evaluate your individual situation to determine which account type is appropriate for you.
2.2 Provision of Information
(a) You agree to provide any information we reasonably request for the purpose of setting up your Account and operating the Program. This may include Personal Information.
(b) You warrant that:
(i) all of the information that you provide to us is accurate and complete in all respects;
(ii) you will inform us by updating your Account details whenever any such information changes; and
(iii) you will not provide false or misleading information.
2.3 Declining your Account
We reserve the right to reject an Account at our absolute discretion.
2.4 Right to suspend
We may limit or suspend your Account if:
(a) you or other Participants breach the terms of this Agreement;
(b) your Organisation breaches the terms of the Organisation Agreement; or
(c) we suspect a security breach associated with your Account.
2.5 Security responsibilities
(a) We will take reasonable steps to ensure that our Website and App is secure from unauthorised access consistent with generally accepted industry standards.
(b) You must take all reasonable steps to ensure that usernames and passwords associated with your Account are not disclosed to third parties.
(c) If you become aware that the security of your Account may be compromised, you must immediately notify us.
3. Program
3.1 The Program
Our Program includes:
(a) the Website;
(b) the App;
(c) online training, including training materials;
(d) certification;
(e) coaching; and
(f) Sensory Kits.
3.2 Licence to access the Program
We grant a limited, non-exclusive, non-transferrable and revocable licence to you to access the Program, subject to the terms of this Agreement.
3.3 Licence Conditions
The licence in clause 3.2 is subject to and conditional upon:
(a) you complying with the terms of this Agreement, our Privacy Policy and any other directions we or your Organisation give you;
(b) your Organisation complying with the terms of the Organisation Agreement; and
(c) you informing us of any breach of this Agreement, particularly those related to security, privacy and data management.
3.4 Availability of App and Website
You acknowledge and agree that:
(a) the App and Website will only be accessible using the Internet and will not be available locally from your own servers;
(b) the App and Website are operated from servers owned and controlled by third parties. As such, certain functions are outside of our control, including cloud services for servers, data storage and backup;
(c) from time to time, without notice, access to all or part of the App and/or Website may be disrupted or limited. During such an interruption, we will use reasonable endeavours to restore access to the App and/or Website as soon as possible. However, we will not be liable for any Claim you may suffer during an interruption; and
(d) from time to time, we may make the App and/or Website inaccessible as is required for upgrades, maintenance and updates. We will use reasonable endeavours to provide your Organisation with advance notice of any inaccessible period, but you accept that this may not always be possible and we are not liable for any harm or damage you may suffer during an interruption.
3.5 Availability of Program generally
You acknowledge and agree:
(a) where there is an Unforeseen Event, we may cancel, suspend or alter any part of our Program immediately; and
(b) we give no guarantee or representation that any particular part of the Program will be available at any time.
3.6 Variations to the Program
We may add, remove, suspend, or alter any part of the Program at any time, at our sole discretion.
3.7 Errors
(a) While we will use our best endeavours to avoid any errors, you acknowledge that there may be technical or administrative errors in the Program including but not limited to errors with respect to description or functionality. We reserve the right to at our absolute discretion, without notice correct any errors or update the Program.
(b) We accept no responsibility for errors in information provided by other Participants or any third parties.
3.8 Third-party links
Material related to our Program may contain hyperlinks and other links to websites operated by third parties. We do not control these third-party websites and are therefore not responsible for the content of any third-party website or any hyperlink contained in a third-party website. The presence of third-party links in or related to our Program does not indicate, expressly or implicitly, any endorsement, sponsorship or approval by us of a third-party website or the products or services offered at a third-party website. Your use of any third-party products or services, or visit to a third-party website, are at your own risk.
4. Sensory Kits
4.1 Sensory Kits
We may provide your Organisation with Sensory Kits as part of the Program.
4.2 Use of Sensory Kits and Flavour Standards
(a) You must only use the Sensory Kits strictly in accordance with the instructions supplied by us and the directions given by your Organisation.
(b) Without limiting clause 4.2(a), you acknowledge and agree that:
(i) the Flavour Standards included in the Sensory Kits must be added to beer strictly in the concentrations we specify;
(ii) you must not allow anyone to use the Sensory Kits if they are not also a Participant; and
(iii) you should only consume beverages spiked with the Flavour Standards in the amounts we specify.
5. Use of the Program
5.1 Prohibited Conduct
You must not:
(a) use the Program or any part of it in a manner for which it was not designed;
(b) licence, sell, rent, lease, transfer, assign, distribute, display, disclose, commercially exploit or otherwise make the Program available to any third party;
(c) provide false or misleading information;
(d) in any way attempt to tamper with, hinder or modify the Website or App;
(e) intentionally disable any security features of the Website or App;
(f) grant access to your Account to any other person; or
(g) knowingly transmit any viruses, code, scripts or malware via the Website or App;
5.2 Submitted Material
(a) You must not submit any material to the Program which:
(i) you do not own or have the right to use;
(ii) is confidential information of any third party which you have not obtained the express consent of that third party;
(iii) is illegal, harmful, defamatory, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, hateful, or otherwise objectionable;
(iv) infringes the Intellectual Property Rights of a third party;
(v) would breach any privacy, security or anti-money laundering obligations;
(vi) is discriminatory based on race, gender, ethnicity, religious belief, sexual orientation, age, or disability;
(vii) causes or is likely to cause damage or injury to any person.
(b) We may, without incurring liability to you, remove any material that we consider, in our sole discretion, breaches the provisions of this clause 5.2.
6. Privacy Policy
(a) You agree and consent to the handling of your Personal Information in accordance with our Privacy Policy.
(b) We may amend our Privacy Policy in our sole discretion. If we amend our Privacy Policy, we will post the new Privacy Policy on our Website.
7. Intellectual Property
7.1 No Right to Intellectual Property
(a) Unless otherwise agreed, each party retains ownership of all Intellectual Property Rights in material owned or created by that party independently of this Agreement. None of that Intellectual Property is assigned or transferred by way of this Agreement.
(b) The parties agree that all Intellectual Property Rights in:
(i) the Program, the Website, the App, the Sensory Kits, and any other material, methods or content developed by us under this Agreement; and
(ii) any improvements, modifications or enhancements to the Program, the Website, the App, the Sensory Kits, and any other material, methods or content developed by us during the Term,
(collectively, the Program IP)
will vest in and are owned by us upon creation, even if based on your new feature request or feedback.
(c) In any circumstances where we do not automatically have such ownership of the Program IP, you will transfer it to us and will do all things necessary to ensure that full legal ownership of the Intellectual Property Rights in the Program IP passes to us.
7.2 License over data
Subject to the Privacy Law, you grant us a non-exclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sub-licensable, fully paid up and royalty-free right to copy, prepare derivative works of, improve, distribute, publish, remove, retain, add to, process, analyse and use and commercialise, in any way now known or in the future discovered, any material you submit to us connected with the Program.
7.3 Undertakings regarding intellectual property
You warrant that you will not do any of the following, or permit any person to:
(a) copy or reproduce, or create an adaptation or translation of, all or part of the Program IP in any way, except to the extent that reproduction occurs automatically through the ordinary use of the Program in accordance with this Agreement;
(b) incorporate all or part of the Program IP in any other webpage, site, application or other digital or non-digital format;
(c) (unless explicitly granted under this Agreement) sell, license, sublicense, lease, rent, distribute, disclose, permit access to, or transfer to any third party, whether for profit or without charge, any portion of the Program IP on any medium; or
(d) directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, or algorithms contained in the Program IP or any documentation associated with them.
7.4 Third-party material
We may use third-party materials as part of the Program. Use of third-party materials may be subject to creative commons or open-source licensing terms, or any third-party licensing terms as notified by us to you.
8. Limitation of Liability
8.1 Consumer Law
(a) You acknowledge and agree that your Organisation is granting you access to the Program for commercial purposes and not for your domestic, personal or household use.
(b) If you are a consumer within the meaning of the Consumer Law, there are certain rights (such as the consumer guarantees implied by the Consumer Law), which cannot by law be excluded (Non-Excludable Conditions). This Agreement is subject to those Non-Excludable Conditions.
8.2 Limitation of Liability
Subject to any Non-Excludable Condition, we exclude all liability for any Claims, including consequential or indirect loss, suffered or incurred directly or indirectly by you or any third party in connection with this Agreement, including in connection with:
(a) the availability of any part of the Program, or your ability to access it;
(c) any representation or statement contained in the Program;
(d) the Program being inaccessible for any reason;
(e) any liability under Privacy Law;
(f) any unauthorised activity in relation to the Program;
(g) the use or misuse of the Sensory Kits and Flavour Standards; or
(h) your breach of this Agreement or Privacy Policy.
8.3 Non-Excludable Conditions
If our liability cannot be lawfully excluded, to the maximum extent permitted by law, our liability for breach of any Non-Excludable Condition is limited:
(a) in the case of goods, to (at our option) the replacement of the goods or the supply of equivalent goods; or payment of the cost of replacing the goods or of acquiring equivalent goods; and
(b) in the case of services, to (at our option) the supplying the services again; or the payment of the cost of having the services supplied again.
9. Warranties
9.1 Exclusion of express warranties
Subject to any Non-Excludable Condition, we make no warranties or guarantees:
(a) as to the standard, completeness, reliability, quality or accuracy of our Program;
(b) that the Program will be accessible at all times, uninterrupted or error free;
(c) that any documentation created by us is without error or inaccuracy;
(d) that our Website and App are without bugs or viruses;
(e) that our Website and App are immune to unauthorised access or security breach; and
(f) in respect of the retention of, or continued accessibility of, any data.
9.2 Your warranties
You represent and warrant you will:
(a) comply with the terms and conditions of this Agreement;
(b) only use the Program in accordance with the terms of this Agreement; and
(c) comply with your Organisation’s directions in relation to the use of the Program.
10. Indemnity
10.1 Indemnity
You release and indemnify, and will keep us and our Representatives indemnified against all liability arising from any Claims in any way connected with:
(a) you breaching the terms of this Agreement;
(b) the use or misuse of the Sensory Kits and Flavour Standards;
(c) damage to personal property;
(d) personal injury or death of any person;
(e) libel, slander, defamation, product disparagement or indecent, false, misleading or deceptive conduct;
(f) infringement of Intellectual Property Rights;
(g) piracy, counterfeiting, plagiarism, unfair competition or idea misappropriation; or
(h) invasion of the right of privacy or breach of Privacy Law.
10.2 General indemnity
You indemnify us against all costs suffered or incurred by us, however caused, arising wholly or partially, directly or indirectly, in connection with this Agreement or your participation in the Program.
10.3 Conditions of Indemnity
(a) We may make a claim under indemnities in this Agreement in relation to a cost before having incurred the cost, or before making a payment in relation to the cost.
(b) The indemnities in this Agreement shall be in addition to any damages for breach of contract to which we may be entitled. Nothing in the indemnities in this Agreement will be construed as preventing us from claiming damages in relation to the breach of this Agreement by you.
(c) Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination of this Agreement for whatever reason.

11. Confidentiality
(a) Neither party may disclose the other party’s Confidential Information, unless the other party consents, they are legally compelled to disclose the Confidential Information, or the disclosure is to their Representatives or professional advisers who are bound by an obligation of confidentiality no less onerous than this clause 11.
(b) This clause 11 survives the termination of this Agreement.
12. Complaints and Disputes
You acknowledge and agree that you shall have no direct dispute mechanism with us under this Agreement. You warrant that any issue or dispute must be raised only with your Organisation. If they see fit, they will pursue the dispute on your behalf under the Organisation Agreement.
13. Default & Termination
13.1 Default
You will be in default if you:
(a) provide us with information which you know or have reasonable grounds to suspect is false, incomplete or misleading; or
(b) breach any provision of this Agreement which is capable of remedy and fail to remedy that breach with 10 Business Days.
13.2 Termination due to default
We may terminate this Agreement immediately by written notice to you if you:
(a) are in material breach of this Agreement; or
(b) are in default for more than 10 Business Days.
13.3 Termination if Organisation Agreement ends
This Agreement automatically terminates if the Organisation Agreement is terminated or expires.
13.4 Effects of Termination
On termination of this Agreement, the licence to access the Program will terminate. You must immediately:
(a) cease all activities related to the Program;
(b) upon request, destroy or return all documents and other materials (including all copies) in your possession relating to the Program; and
(c) do any further things as may be reasonably required by us to protect our right, title and interest in the Program.
14. Definitions
14.1 Definitions
Unless explicitly state otherwise, expressions used in this Agreement have the following meanings:
Account means your account to access the Program.
App means the SmartSensory software application operated by us.
Business Day means a day which is not a Saturday, Sunday or public holiday in Brisbane, Queensland.
Claim means a claim, demand, remedy, injury, damage, loss, cost, liability, action, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against a person, however arising and whether ascertained or unascertained immediate, future or contingent, or subject of a dispute, litigation or analogous proceeding.
Confidential Information means information that is by its nature confidential, including information related to a party’s internal business operations, clients, or Intellectual Property Rights. It does not include information already rightfully known to the receiving party at the time of disclosure by the other party, or in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this Agreement.
Consumer Law means the Australian Consumer Law set out in Schedule 2 of the Australian Competition and Consumer Act 2010 (Cth).
Flavour Standards means the flavour standard chemicals included in the Sensory Kits.
Intellectual Property Rights means all present and future rights conferred by statute, common law or equity (and all moral rights) in, or in relation to, business names, circuit layouts, computer software, confidential information, copyright, designs, domain names, formulas, inventions, knowhow, patents, plant varieties, recipes, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.
Organisation means the business or other organisation which has nominated you as a Participant.
Organisation Agreement means the agreement between us and your Organisation.
Participant means any employee, contractor, or other person your Organisation has notified to us as someone who should be able to access the Program.
Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth).
Privacy Law means the Privacy Act 1988 (Cth) and any other legislation, regulation or code that governs the use of Personal Information.
Privacy Policy means our privacy policy as amended from time to time, located at https://smartsensory.beer/privacy
Program means the beer sensory program operated by us, including the App, Website, Sensory Kits and all goods and services associated with them.
Representative includes an employee, agent, officer, director, auditor, advisor, researcher, partner, consultant, contractor, sub-contractor or related entity of a person or of a related body corporate of that person.
Sensory Kits means the beer sensory kits provided to your Organisation as part of the Program, which include Flavour Standards and instructions on use.
Unforeseen Event means pandemic or epidemic, an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware, a ransomware attack or other malicious code.
You means the organisation requesting access to the Program.
We or Us means SmartSensory Pty Ltd ACN 657 775 329.
Website means our website, located at https://smartsensory.beer
14.2 Interpretation
The following rules apply unless the context requires otherwise:
(a) a reference to a party includes that party’s permitted assigns, administrators, successors, executors, legal representatives and any novated party;
(b) any reference to a trustee includes any substituted or additional trustee;
(c) “including”, “includes” or any derivation of those words does not limit the matter in question to the things specifically mentioned in the applicable context;
(d) where a term is defined, other grammatical forms of that term will be taken to have the same meaning;
(a) a word which suggests one gender includes all other genders and no gender;
(e) headings are for convenience and will not affect interpretation;
(f) words in the singular will be taken to include the plural and also the opposite;
(g) a reference to a document will be to that document as updated, varied or amended;
(h) a document referenced by the Agreement will not take precedence over the referencing document;
(i) when any kind of legislative instrument is referenced, the reference will be taken to be that instrument as updated or substituted for by the legislative body in any way;
(j) any referenced digital resource may be replaced with another digital resource that is a copy of the original resource;
(k) a reference to a party’s conduct includes omissions as well as acts; and
(l) if a party is described as having discretion in a matter, the discretion in that matter will be interpreted as sole and absolute.
15. General
(a) Communications and notices must be in writing, and may be sent by mail, hand delivery or by email. Any notice sent by mail or hand delivered must also be sent by email.
(b) A notice will be taken to be received by the addressee:
(i) if delivered by hand before 5:00pm on a Business Day, then on the day of delivery;
(ii) if posted to an address, then on the third Business Day after the day of posting; or
(iii) if emailed and the sender has no reason to suspect the email was not delivered, at the time of sending.
(c) If this Agreement is inconsistent with any other document between the parties, this Agreement prevails to the extent of the inconsistency.
(d) Neither party has entered into any agreement in reliance on or as a result of any representation, promise, statement, conduct or inducement by the other otherwise than as set out in this Agreement.
(e) The relationship of the parties does not form a joint venture, partnership or agency, or create any form of employment relationship.
(f) You have no authority to act for or bind us except as specifically provided in this Agreement or with our express written consent.
(g) If any term of this Agreement is invalid or unenforceable then that term will be deemed deleted and the remainder of this Deed will remain in full force and effect.
(h) No part of this Agreement will be deemed waived, and no breach excused unless such waiver or consent is provided expressly and in writing.
(i) This Agreement may only be amended with our consent in writing.
(j) You cannot assign any of its rights or obligations under this Agreement without the prior written consent of us. We may assign any of its rights or obligations under this Agreement to a third party without notice to you or your prior consent. You must sign any documents to give effect to the assignment which we require.
(k) The parties’ obligations under this Agreement (other than an obligation to pay money) are suspended for the duration of and to the extent they are affected by an Unforeseen Event.
(l) The laws of the State of Queensland, Australia govern this Agreement. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction in Queensland.