Terms of Service

TERMS OF SERVICE

This Terms of Service Agreement (Agreement) governs the provision of the Services and is between

RIGHT HERE SOLUTIONS PTY LTD trading as InviEat (ACN 702788083) (Service Provider),

and

any person who registers for, subscribes to, or otherwise accesses or uses the Services in the capacity of a Host, but excludes any Attendee, except where that Attendee creates their own event and unique URL, in which case they are a Customer in respect of that event only (Customer).

No Signature Required

This Agreement is not required to be signed by the Customer. By creating an account, registering for, subscribing to, or otherwise accessing or using the Services, the Customer agrees to be bound by the terms of this Agreement, which takes effect from the date the Customer first does so (Effective Date).

BACKGROUND

This Agreement is for the Service Provider to provide the Customer with access to an online platform that enables event hosts, organisers, HRs, project coordinators, caterers, restaurants and private party organisers (Host) to create a unique URL for an event and collect food preferences, allergies, dietary restrictions and special food needs, and (where enabled) RSVP responses, from event attendees (Attendees) (Services), which includes access to the software the Service Provider provides as part of the Services (Software).

Attendee means an individual who accesses a unique event URL created by the Customer to submit their details, food preferences, allergies, dietary restrictions, special food needs and RSVP response.

Attendee Data means the name, email, mobile number, food preferences, allergies, dietary restrictions, special food needs and RSVP information submitted by an Attendee via the Services.

OPERATIVE PROVISIONS

Definitions and Interpretation
1. Definitions
  
  In this agreement unless the context otherwise requires:
  
  Intellectual Property means copyrights, patents, trade marks, service marks, trade names, designs, and similar industrial, commercial and intellectual property (whether registered or not and whether protected by statute or not and including formulae, recipes and know-how).
  
  Term means the period commencing on the Effective Date and continuing until this Agreement is terminated in accordance with clause 7.
2. Interpretations
  
  In this agreement unless the context otherwise requires:
  1. a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision;
  2. the singular includes the plural and vice versa;
  3. a reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;
  4. a reference to any gender refers to all genders;
  5. a reference to a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure or exhibit of or to this agreement;
  6. a recital, schedule, annexure or description of the parties forms part of this agreement;
  7. a reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions), as amended, novated, supplemented or replaced from time to time;
  8. a reference to any party to this agreement, or any other document or arrangement, includes that party's executors, administrators, substitutes, successors and permitted assigns;
  9. where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
  10. where an expression is defined anywhere in this agreement it has the same meaning throughout;
  11. a reference to time is to local time in New South Wales; and
  12. a reference to "dollars" or "$" is to an amount in Australian currency.
SaaS Services and Support
1. Subject to the terms of this Agreement, the Service Provider will use commercially reasonable efforts to provide the Customer with access to its cloud-based platform, enabling the Customer to create a unique URL for an event by providing the event name, venue, date and time, a message, and the Customer's email, and to share that URL with Attendees. The Services enable Attendees to submit their name, email, mobile number (optional), food preferences, allergies, dietary restrictions and any special food needs, and, where enabled by the Customer, an RSVP response together with their food preferences. Attendees may subsequently verify their identity via a one-time password (OTP) sent to their email to edit their submitted food preferences or RSVP response, or to create their own event and unique URL, in which case that individual becomes a Customer under this Agreement in respect of that event. The Customer will receive Attendee Data by email and via the Customer's online account and is able to download it in formats like an excel spreadsheeet and a PDF document.
2. The Services are designed as a self-service and low-touch platform. The Service Provider is under no obligation to provide dedicated technical support to the Customer, and does not warrant any specific response or resolution time in respect of any technical query or issue raised by the Customer.
3. The Customer acknowledges and agrees that the Service Provider will send transactional and functional emails to the Customer and Attendees that are necessary for the operation of the Services, including Attendee Data/Response notifications, one-time passwords (OTP) for identity verification and updates or cancellations. The Service Provider will not send any promotional or marketing emails to the Customer or Attendees, and such transactional emails do not constitute unsolicited commercial electronic messages for the purposes of the Spam Act 2003 (Cth).
Restrictions and Responsibilities
1. Except as otherwise permitted by the Copyright Act 1968 (Cth) or agreed to in writing by the Service Provider, the Customer must not:
  1. modify the Software or merge any aspect of the Software with another programme, record, reverse engineer, copy, duplicate, reproduce, create derivate works from, frame, download, display, transmit or distribute any of the Software, the source code of the Software or any documents, manuals or setup instructions provided with the Software or in relation to the Services;
  2. licence, sell, rent, lease, transfer, assign or otherwise commercially exploit the Software or the Services;
  3. engage in unauthorised access to or use of data, services, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures;
  4. access, store, distribute or transmit:
    1. viruses, worm, trojan or other malicious code that corrupts, degrades or disrupts the operation of the Software;
    2. material that is unlawful, unethical, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or a contravention of the rights of any third party;
    3. material that facilitates illegal activity; or
    4. material that abuses or causes damage or injury to any person or property;
  5. provide Software login details or passwords, or otherwise provide access to the Software, to any unauthorised third party and you will take all reasonable steps to prevent unauthorised access to, or use of, the Software;
  6. share any features of the Software that are not publicly available with any unauthorised third party;
  7. engage in any conduct on the Software that is in breach of this Agreement (or any agreements mentioned therein); and
  8. encumber or allow the creation of any mortgage, charge, lien or other security interest in respect of the Software.
  Any breach of this clause constitutes a breach of this Agreement and we may, at our absolute discretion, terminate or suspend your access to, and/or use of, the Software or the Services, and/or take further actions against you for breach of this Agreement.
2. The Customer represents, covenants, and warrants that the Customer will use the Services only in compliance with the Service Provider’s standard published policies then in effect (Policy) and all applicable laws and regulations.
3. The Customer hereby agrees to indemnify and hold harmless the Service Provider against any damages, losses, liabilities, settlements and expenses (including without limitation costs and legal fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from the Customer’s use of Services. Although the Service Provider has no obligation to monitor the Customer’s use of the Services, the Service Provider may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
4. The Customer shall be responsible for obtaining and maintaining any internet-enabled device, browser and internet connection needed to connect to, access or otherwise use the Services. The Customer shall also be responsible for maintaining the security of the Customer's account, password and OTP-based login, and for all uses of the Customer's account, whether or not with the Customer's knowledge or consent.
5. The Customer must only use the Services, and the unique event URL generated through the Services, for the purpose of collecting genuine food preferences, allergies, dietary restrictions, special food needs and (where enabled) RSVP responses from intended Attendees in connection with a specific, genuine event. The Customer must not share the event URL with, or use the Services to collect Attendee Data from, any person who is not a genuinely intended Attendee of that event, and must not use the Services or any Attendee Data collected for unrelated marketing, data harvesting, or any other purpose not directly related to the event for which the URL was created.
6. The Customer must be aged 18 years or over to register for, subscribe to, or hold an account to access or use the Services. Where a minor is an Attendee, any name, contact details, allergy, dietary restriction, special food need, RSVP information or other personal information relating to that minor must be submitted by a parent or guardian on the minor's behalf, and not by the minor directly.
Confidentiality and Proprietary Rights
1. Each party (Receiving Party) understands that the other party (Disclosing Party) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (referred to as Proprietary Information of the Disclosing Party).
2. Proprietary Information of the Service Provider includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of the Customer includes non-public data provided by the Customer to the Service Provider to enable the provision of the Services (Customer Data), and any Attendee Data submitted in connection with the Customer's event. As between the Service Provider and the Customer, the Customer controls, and is responsible for, all Attendee Data submitted in connection with its event, and the Service Provider holds Attendee Data solely for the purpose of collecting and making it available to the Customer in accordance with this Agreement.
3. The Receiving Party agrees:
  1. to take reasonable precautions to protect such Proprietary Information, and
  2. not to use (except in performance of the Services or as otherwise permitted in this Agreement) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
4. As between the Customer and the Service Provider, the Customer controls, and is responsible for, the Customer Data it submits to the Services, and Attendee Data submitted in connection with its own events, in accordance with clause 4(b), but the Service Provider retains the right to access, use, retain and delete Customer Data and Attendee Data as reasonably necessary to provide the Services, to comply with its legal obligations, or to respond to a request made directly by an Attendee. As between the Customer and the Service Provider, the Service Provider controls, and is responsible for, (a) the Services, all improvements, enhancements or modifications thereto, (b) any statistics, analytics, insights or other data derived from Customer Data or Attendee Data that has been aggregated and de-identified such that it no longer identifies, and cannot reasonably be used to identify, the Customer or any Attendee (Derived Data), (c) any software, applications, inventions or other technology developed in connection with the Services, and (d) all Intellectual Property related to any of the foregoing.
5. Notwithstanding anything to the contrary, the Service Provider shall have the right to collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and the Service Provider will be free (during and after the term) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Service Provider offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
6. Both parties agree to promptly destroy any Proprietary Information of the other party that is within their possession when this Agreement is terminated, except that Customer Data and Attendee Data will be retained, made available and deleted in accordance with clause 7(b).
7. No rights or licenses are granted except as expressly set out in this Agreement.
8. Each party must comply with its respective obligations under the Privacy Act 1988 (Cth), including the Australian Privacy Principles, in relation to any personal information collected, held, used or disclosed in connection with this Agreement and the Services.
9. The Customer acknowledges that Attendee Data may include sensitive information (including health information, such as allergies and dietary restrictions) within the meaning of section 6 of the Privacy Act 1988 (Cth). The Service Provider is responsible for providing Attendees with an appropriate privacy collection notice, and obtaining their consent, at the point an Attendee submits Attendee Data directly via the Services. The Customer is independently responsible for its own compliance with the Privacy Act 1988 (Cth) (to the extent it applies to the Customer) and all other applicable laws in respect of the Attendee Data it receives, and for all use, storage and disclosure of that Attendee Data from the time it is made available to the Customer, in accordance with clause 4(k).
10. The Service Provider will implement and maintain reasonable technical and organisational security measures to protect Attendee Data and Customer Data against unauthorised access, loss, misuse or disclosure. Each party must comply with its obligations under the Notifiable Data Breaches scheme in Part IIIC of the Privacy Act 1988 (Cth), including notifying the other party without undue delay if it becomes aware of an eligible data breach affecting Attendee Data or Customer Data.
11. The Customer acknowledges that food preferences, food allergies, dietary restrictions and special food needs submitted via the Services may indirectly reveal an Attendee's cultural, religious, social or other characteristics. Once Attendee Data is received by the Customer (via email or the Customer's account dashboard), the Customer is solely responsible for controlling access to, and the use, storage and disclosure of, that Attendee Data, including ensuring it is shared only with persons who have a legitimate need to know (such as a host, organiser, facilitator, caterer, restaurant or other food provider), and must not disclose Attendee Data to any unintended or unauthorised third party.
12. Where the Customer knows, or ought reasonably to know, that an event will involve minors as Attendees (including children's birthday parties or similar events), the Customer must notify the Service Provider that the event involves minors. The Service Provider is responsible for obtaining confirmation that any Attendee Data relating to a minor is submitted by a parent or guardian on the minor's behalf, consistent with guidance published by the Office of the Australian Information Commissioner (oaic.gov.au) regarding the collection of personal information from minors.
13. The Customer acknowledges that the Software and Services may use cookies and similar tracking technologies to operate, maintain and improve the Services.
14. The Customer acknowledges that Attendee Data and Customer Data are primarily stored on cloud servers located in the United States, where privacy laws may differ from those in Australia. The Service Provider will take reasonable steps to ensure that any overseas recipient of such data handles it consistently with the Australian Privacy Principles, in accordance with Australian Privacy Principle 8 of the Privacy Act 1988 (Cth).
Intellectual Property
1. Subject to clause 5(b), the Service Provider grants the Customer a personal, non-exclusive, non-transferable and revocable licence to access and use the Software and the Services (including the Intellectual Property contained therein) throughout the world during the Term, solely for the purpose of creating and managing the Customer's own genuine events and collecting Attendee Data in accordance with clause 3(e). The Customer may permit its employees, contractors or other personnel (Authorised Users) to access and use the Services on the Customer's behalf using the Customer's account, provided the Customer remains responsible for ensuring such Authorised Users comply with this Agreement. This licence, and the Customer's access to the Services, may be suspended or revoked immediately by the Service Provider if the Customer breaches any provision of this Agreement, including the Restrictions in clause 3.
2. All rights, title or interest in and to the Software and any information or technology that may be provided to, or accessed by, you in connection with your use of the Software or Services is owned, and will remain owned, by the Service Provider or its licensors (Provider IP). Using the Software or the Services does not transfer any ownership or rights, title or interest in and to the Provider IP.
3. Any Intellectual Property discovered, developed or otherwise coming into existence as an improvement, enhancement or modification to the Provider IP or the underlying Software or platform will automatically vest in, and are assigned to, the Service Provider (collectively, Developed IP). For the avoidance of doubt, Developed IP does not include, and this clause does not apply to, any Customer Data or Attendee Data.
4. The Customer must not represent to anyone or in any manner whatsoever that they are the proprietor of the Software and/or the Provider IP.
5. Where the Customer is using the Services for the purposes of a trade, business or profession, the Customer agrees that the Service Provider may refer to the Customer, their business name, publish their logo and/or trade mark and make reference to the Customer as a customer of the Service Provider in any communications or publications for the purposes of marketing or promoting the Service Provider's business, unless and until the Customer requests in writing that the Service Provider cease doing so.
Fees

The Services are provided to the Customer free of charge. The Service Provider reserves the right to introduce fees for the Services, or any part thereof, at any time, by giving the Customer at least thirty (30) days' prior written notice by email. The Customer may stop using the Services and close their account at any time before the fees take effect to avoid being charged.
Term and Termination
1. This Agreement commences on the Effective Date and continues indefinitely, unless and until terminated in accordance with this clause 7.
2. The Customer may close their account and stop using the Services at any time, for any reason, by notifying the Service Provider or using the account closure function (if available) within the Services. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days' notice (or without notice in the case of non-payment, if fees are then payable under clause 6), if the other party materially breaches any of the terms or conditions of this Agreement. Upon any termination, the Service Provider will make Customer Data available to the Customer, in the same form in which it is ordinarily made available during the Term (namely, via the Customer's account dashboard and/or email), for a period of thirty (30) days, but thereafter the Service Provider may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
3. Notwithstanding any other provision of this Agreement, the Service Provider reserves the right to suspend or terminate the Customer's access to the Services immediately and without notice if the Service Provider reasonably believes that the Customer has violated any provision of this Agreement or poses a threat to the security or integrity of the Services or other users. In such event, the Customer shall not be entitled to any refund of prepaid fees (if any), and the Service Provider shall not be liable for any damages resulting from such suspension or termination.
4. Where the Customer has not logged in to, or otherwise used, the Services for a continuous period of six (6) months, the Service Provider may delete the Customer's account together with any associated Customer Data and Attendee Data, provided the Service Provider first gives the Customer at least fourteen (14) days' prior written notice by email, allowing the Customer an opportunity to log in and download their data before deletion. The Service Provider may also delete or archive event data relating to past or older events at any time, without liability to the Customer.
Warranty and Disclaimer
1. The Service Provider shall use reasonable efforts consistent with the Service Provider's capacity and expertise to maintain the Services in a manner which minimises errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Service Provider or by third-party providers, or because of other causes beyond the Service Provider's reasonable control, but the Service Provider may use website notice for any scheduled service disruption. However, the Service Provider does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services.
2. The Service Provider does not warrant that the operation of the Services will be uninterrupted or error free or that any third party components of the Services, will be accurate or error free or that the Services will be compatible with any application, program or software not specifically identified as compatible by the Service Provider.
3. To the maximum extent permitted by law, no further warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance or fitness for purpose of the Software provided hereunder is given or assumed by the Service Provider other than as required at law.
4. The Service Provider makes no representations, warranties or guarantees:
  1. that content available on, or produced by or via, the Software is accurate, complete, reliable, current, error-free or suitable for any particular purpose; or
  2. that the Software and/or the Services are or will be free from viruses, worm, trojan or other malicious code. The Customer is responsible for taking precautions in this respect.
5. If the Services do not work as intended, the Customer's only remedy, and the Service Provider's only obligation, is for the Service Provider to choose one of the following options, at its own discretion:
  - try to fix the problem (for example, by a patch, workaround or correction) within a reasonable time, at the Service Provider's own expense; or
  - if the Service Provider reasonably believes the problem cannot be fixed within a reasonable time or at a reasonable cost, end this Agreement and the Customer's access to the Services, without any further liability to the Customer.
6. The Customer acknowledges and accepts that it is the Customer’s sole responsibility to ensure that:
  1. the facilities and functions of the Services meet the Customer’s requirements;
  2. the Services are appropriate for the specific circumstance of the Customer and are within the laws and regulations of the Customer’s jurisdiction.
7. The Service Provider does not purport to provide any legal, taxation or accountancy advice by providing the Service under this Agreement.
8. The Service Provider will not be liable for any failure of the Services to provide any function not described in the documentation (provided online as part of the Services) or any failure attributable to:
  1. any modification to the Services other than by the Service Provider;
  2. accident, abuse or misapplication of Services by the Customer;
  3. use of the Services with other software or equipment without the Service Provider’s written consent;
  4. use of other than the latest, unaltered current release of the Services; or
  5. use other than in accordance with this Agreement.
9. Where the Customer is using the Services for the purposes of a trade, business or profession, and if, upon investigation, a problem with the Services is determined not to be the Service Provider's responsibility, the Service Provider may invoice the Customer for all reasonable costs and expenses incurred by the Service Provider in the course of or in consequence of such investigation.
10. Without limiting clause 10(a), and to the maximum extent permitted by law, the Services are limited to the collection, storage and communication of Attendee Data between Attendees and the Customer (including any host, caterer, restaurant or other food provider). The Service Provider does not prepare, supply, handle or verify any food, and makes no representation or warranty that any food provided at an event will accord with an Attendee's stated food preferences, allergies, dietary restrictions or special food needs. Where an Attendee has indicated a severe or life-threatening allergy or dietary restriction, that Attendee must directly and separately confirm with the Customer, caterer, restaurant or other food provider that their food needs will be met before consuming any food. The Customer must also make its own separate and direct effort to ask each Attendee about any severe or life-threatening allergy or dietary restriction, outside of, and in addition to, any information collected through the Software, and must not rely solely on the Attendee Data submitted through the Services for that purpose. Except as provided in clause 10(a), the Service Provider accepts no responsibility or liability for any illness, injury, allergic reaction or death arising from or in connection with the preparation, provision or consumption of food at any event.
11. Without limiting clause 8(j) and clause 10(a), and to the maximum extent permitted by law, the Service Provider is not liable for any illness, injury, allergic reaction or death arising from or in connection with any inaccurate, incomplete, delayed or failed transmission, receipt, interpretation or communication of Attendee Data (including allergy, dietary restriction or special food need information), whether caused by a technical fault, error or interruption in the Software, or by any act, omission, miscommunication or error of the Customer, host, Attendee, caterer, restaurant, kitchen staff or other food provider in receiving, interpreting, relaying or acting upon that Attendee Data.
Indemnity

The Customer will at all times indemnify and hold harmless the Service Provider and its officers, employees and agents in respect of any third party claim for any injury, loss, damage or expense occasioned by or arising directly or indirectly from:
1. a breach by the Customer of its obligations under this Agreement;
2. any wilful, unlawful or negligent act or omission of the Customer;
3. any claim by an Attendee, or any other third party, caused by the Customer's (including any host, organiser, facilitator, caterer, restaurant or other food provider's) own breach of this Agreement, including the Customer's failure to notify the Service Provider that an event involves minors as required under clause 4(l), or the Customer's own mishandling, misuse or unauthorised disclosure of Attendee Data after receipt.
Limitation on liability
1. Except in the case of death or personal injury caused by the Service Provider's negligence, where the Customer is using the Services for the purposes of a trade, business or profession, the liability of the Service Provider under or in connection with this Agreement, whether arising in contract, tort, negligence, breach of statutory duty or otherwise, must not exceed the greater of (i) AUD $100, or (ii) the fees paid by the Customer to the Service Provider for the Services under this Agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not the Service Provider has been advised of the possibility of such damages. Where the Customer is not using the Services for the purposes of a trade, business or profession, this clause 10(a) limits the Service Provider's liability only to the maximum extent permitted by law, and nothing in this clause excludes, restricts or modifies any guarantee, right or remedy conferred on the Customer under the Australian Consumer Law, or any other applicable law, that cannot lawfully be excluded, restricted or modified.
2. Neither party is liable to the other party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill.
3. Without limiting clause 10(a), and to the maximum extent permitted by law, the Service Provider is not liable for any loss, damage, liability, miscommunication, breach of privacy, physical harm or death arising from or in connection with: (i) unauthorised access to, or disclosure or loss of, Attendee Data or Customer Data resulting from hacking, cyber-attack or other unauthorised third-party conduct occurring despite the Service Provider maintaining the security measures described in clause 4(j); (ii) any error, defect or vulnerability in the Software not caused by the Service Provider's negligence; or (iii) the Customer's, host's, organiser's, facilitator's, caterer's or other food provider's own storage, use, sharing or disclosure of Attendee Data after receipt, including disclosure to unintended or unnecessary recipients.
Dispute Resolution and Mediation
1. If a dispute arises out of or relates to the terms of this Agreement, neither Party may commence any legal proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
2. A Party to this Agreement claiming a dispute (Dispute) has arisen under the terms of this Agreement, must give written notice to the other Party detailing the nature of the Dispute, the desired outcome, and the action required to settle the Dispute (Dispute Notice).
3. On receipt of the Dispute Notice by the other Party, the Parties to this Agreement must within seven days of the Dispute Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.
4. If, for any reason whatsoever, 21 days after the date of the Dispute Notice the Dispute has not been resolved, the Parties must agree upon the selection of a mediator or, failing agreement, request that The Resolution Institute (resolution.institute), or its nominee, appoint a mediator, and the Parties must attend a mediation.
5. It is agreed that mediation will be held in Sydney, New South Wales, Australia.
6. The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing, undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation.
7. All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the fullest extent possible, must be treated as "without prejudice" communications.
8. If thirty (30) days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
9. In the event that the Dispute is not resolved at the conclusion of the mediation, either Party may institute legal proceedings concerning the subject matter of the Dispute thereafter.
General
1. The Service Provider may vary or update this Agreement from time to time. Where a variation is material, the Service Provider will give the Customer reasonable prior notice by email to the Customer's registered email address in accordance with clause 12(f), in addition to posting the updated Agreement on its website. The updated Agreement takes effect from the date specified in that notice, and the Customer's continued registration for, subscription to, or use of the Services after that date constitutes the Customer's acceptance of the updated Agreement. If the Customer does not agree to the updated Agreement, the Customer may stop using the Services and close their account before the updated Agreement takes effect.
2. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
3. This Agreement is not assignable, transferable or sublicensable by the Customer except with the Service Provider’s prior written consent. The Service Provider may transfer and assign any of its rights and obligations under this Agreement without consent.
4. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. The Service Provider may modify or update this Agreement in accordance with clause 12(a). If the Service Provider does not enforce a breach of this Agreement on one occasion, this does not, by itself, mean the Service Provider gives up the right to enforce that same term in future.
5. No agency, partnership, joint venture, or employment is created as a result of this Agreement and the Customer does not have any authority of any kind to bind the Service Provider in any respect whatsoever.
6. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered, or when receipt is electronically confirmed, if sent by email.
7. This Agreement takes effect, is governed by, and will be construed in accordance with the laws from time to time in force in New South Wales, Australia. The Parties submit to the exclusive jurisdiction of the courts of Sydney, New South Wales, Australia.
8. Nothing in this Agreement excludes, restricts or modifies any guarantee, right or remedy conferred on the Customer under the Australian Consumer Law, or any other applicable law, that cannot lawfully be excluded, restricted or modified. To the extent any such non-excludable guarantee, right or remedy applies, the other provisions of this Agreement (including clauses 8(c), 8(e), 8(j), 8(k) and 10) apply only to the extent permitted by law.
Force Majeure

Neither party is liable for any delay or failure to perform its obligations under this Agreement (other than payment obligations) where such delay or failure results from circumstances beyond that party's reasonable control, including natural disaster, internet or telecommunications failure, cyber-attack, denial of service attack, or act of government.
Acceptance of Agreement

No execution by signature is required for this Agreement to be binding. The Customer accepts and agrees to be bound by the terms of this Agreement by registering an account, subscribing to, and/or accessing or using the Services, in accordance with the clause above.