Terms & Conditions

1. Who we are and how to contact us

  • Emajin Golf (the Business) is a business traded by Emajin Pty Ltd ACN 638 176 413 (the Company, we, us and our). The Business operates a membership-based, golf networking club for like-minded golfers and business professionals.
  • To contact us, please email [], telephone our customer service line on 1800 362 546 or write to us at Suite 1201, 52 Alfred Street, Milsons Point NSW 2061. For more information about us, you may visit our website at emajin.golf (our website).

 

2. Acceptance of Terms and our contract with you

  • These terms and conditions (Terms) apply to the subscription by you and supply of Services by us to you (Contract). To the extent permitted by law, no other terms are implied by trade, custom, practice or course of dealing.
  • By submitting a member application form, participating in our events, clinics or tours, signing up to our newsletter, or by clicking on “Join”, “Buy”, “Enter”, or by ticking the ‘I agree to Terms and Conditions” (or similar) button while accessing our Services, you indicate and confirm your agreement to be bound by these Terms.
  • Please take time to read our Terms and familiarise yourself with them, as they apply to the use of our website and our services. By accessing and using our website, social media channels and any other materials, products and services provided by us and by joining us as a member, you are taken to have accepted our Terms.
  • The Contract is the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.

3. Member subscription

  • We operate on a membership basis. Please contact us if you wish to become a member. We offer various membership options for individuals and corporations.   Each subscription of membership is an offer by you to use our member services (Services) subject to these Terms.
  • To subscribe for individual membership, you must be over 18 years of age and have legal capacity to enter into legally binding contract with us. To subscribe for corporate membership, you must have full authority to enter into this contract and you must maintain throughout the term of the Contract, all necessary powers, authority and consents to enter into and fully perform your obligations under the Contract.  We may request you to provide to us proof of authorities for your entering into the Contract.  If you are unable to produce such proof of authorities, we may not be able to accept you as a member.
  • Our membership options contain various features. These features may be amended and updated from time to time.  Please check the membership options and features carefully before confirming your subscription. You are solely responsible for ensuring that your subscription is correct and suitable for your use.
  • To subscribe for membership, you must complete an online or paper application form and make payment in cleared funds for the membership subscription (Subscription Fee).
  • As part of your subscription, you are required to provide personal information and register for an account through our website before you can access our Services (Account). We may ask for your personal information such as your name, contact details or golf link number.
  • After you submitted your member application form and registered for an Account, we will contact you directly about your application and whether your application is accepted by us. Please note that your application for membership does not mean that your subscription has been accepted by us. Our acceptance of your subscription will take place only when we confirm you in writing of our acceptance.
  • Our acceptance of your subscription takes place when we send an email to you to accept it (Subscription Confirmation), at which point and on which date (Commencement Date) the Contract between you and us will come into existence. The Contract will relate only to those Services confirmed in the Subscription Confirmation.
  • If we are unable to accept you as a member or supply you with the Services for any reason, we will inform you of our rejection by email and we will not process your subscription. We are not obliged to provide you with the reason of rejection under any circumstances.  We have sole and absolute discretion in accepting or rejecting you as a member of us.
  • Your membership subscription period will commence from the Commencement Date until the subscription expires (Subscription Period). Each Subscription Period is a minimum of 12 months. [You must, at the time of your membership subscription, choose to either opt in or opt out of our auto-renewal plan of your membership subscription.  If you choose to auto-renew your subscription, you can still opt out from the auto-renewal plan at a later stage by giving notice to us in writing at least [3] months prior to the expiry of a valid Subscription Period.]
  • If you wish to upgrade or change your member subscription, you should contact our customer service line on 1800 362 546. An upgrade or change of your member subscription may require a top up of a Subscription Fee and provision of additional information by you.  We have the sole and absolute discretion in accepting or rejecting any application for an upgrade or change of member subscription.

4. Our services

  • Our Services include but not limited to:
    • operation of a networking member club;
    • provision of networking opportunities to members;
    • provision of official Golf Australia handicaps;
    • organisation of golf competitions, events, clinics, tours and activities;
    • provision of sponsorship;
    • sales of member-exclusive merchandises; and
    • operation of an online club house.
  • Any descriptions or illustrations on our website are published for the sole purpose of giving an approximate idea of the services described in them.
  • We will supply the Services to you in accordance with the description of the Services confirmed in the Subscription Confirmation or any description of the Services confirmed by us in writing to you.
  • We will use all reasonable endeavours to meet any performance dates of the Services, but any such dates are estimates only and failure to perform the Services by such dates will not give you the right to terminate the Contract.
  • We operate an online club house (Clubhouse). This Clubhouse was set up for education, media, news, feedback and publication purposes.  You must only use the Clubhouse for their proper purposes, and you must comply with all rules governing the use of the Clubhouse.

5. Member Policies

  • We may issue member policies from time to time (Member Policies). You are required to read and comply with the Member Policies, as may be varied by us from time to time.
  • You agree to abide by any of the Member Policies that we may implement, as varied from time to time by us in our absolute discretion.
  • To the extent that the contents of any of the Member Policies refer to obligations of us, you agree that they are guidelines only and are not contractual terms, conditions or representations on which you rely.
  • A breach by you of any of the Member Policies may result in suspension, cancellation or termination of your membership.

6. Specific Membership Terms

  • You acknowledge that some membership Accounts may be governed by separate membership terms and user terms in relation to software licence owned by or granted to us (Specific Membership Terms). We will notify you if your Account is one of these accounts.  You agree to be bound by the Specific Membership Terms if applicable to your Account.  

7. Payments and Charges

  • Payment for the Services is to be made in advance. You agree that Subscription Fee must be paid together with your membership application. We are unable to process your application if you do not pay the required Subscription Fee.
  • In consideration of us providing the Services, you must pay our charges (Charges). The Charges include any additional charges (such as Additional Hole Sponsorship fee) and any event charges in addition to Subscription Fee.
  • We will provide you with an invoice. You can pay the Subscription Fee or pay for the Services, by cash payment or by using direct debit, or a debit card or credit card acceptable by us.
  • If you apply to participating in any of the events, clinics, tours or other activities organised by us, you must pay the relevant participation fees, including invitee participation fees if you are inviting or bringing any invitee to the events, clinics, tours or activities.
  • If you use a third party payment application or service, you are solely responsible for any losses or damages arising out of or in connection with the use or operation of such application or service. We are not responsible for the security of such third party payment application or service.    You acknowledge and warrant that you have read, understood and agree to be bound by the terms and conditions of the applicable third party payment application and service that you choose to use as a payment method for making a payment to us.
  • You acknowledge and agree that where a request for a payment to us is returned or denied, for whatever reason, by your financial institution or your elected third party payment application or service, then you are liable for any costs, including banking fees and charges, associated with such returned or denied payment request.
  • If you fail to make a payment under the Contract by the due date, you will have to pay interest on the amount unpaid at an interest rate that equals to a rate which is 4% above the most recent cash rate announced and published by the Reserve Bank of Australia. Interest accrues on a day-to-day basis from the due date up to and including the date of actual payment.
  • You agree and acknowledge that we may vary and update the Subscription Fee at any time and that the varied or updated Subscription Fee will come into effect immediately following the conclusion of a current Subscription Period.
  • The Subscription Fee and Charges are exclusive of goods and services tax (GST). Where GST is payable in respect of some or all of the Services, you must pay us such additional amounts in respect of GST, at the applicable rate, at the same time as you pay the Subscription Fee or Charges.

8. Refund Policy

  • We do not provide refunds in general.
  • If your member subscription application is rejected by us and you have paid the Subscription Fee, we will refund to you the Subscription Fee paid by you in relation to the application.
  • We may, at our sole and absolute discretion, provide you with a refund of the Subscription Fee (on a pro-rata basis) if we consider it reasonable to do so under the circumstances. Where this occurs, the refund will be in the proportional amount of the Subscription Fee that remains unused by you minus any necessary administration fees incurred by us.
  • There is no refund for any fee paid in advance for your (and/or your invitee’s) participation in any event, clinic, tour or activity organised by us. The only exception will be for any refund provided to you (or your invitee) by a host club of an event, clinic, tour or activity organised by us.  If the host club provides a refund to you (or your invitee) in relation to an event, clinic, tour or activity organised by us, we will transfer such refund to you after deduction of any necessary administration fees incurred by us.  
  • If you cancel your registration for an event, clinic, tour or activity in less than 7 days prior to the date of such event, clinic, tour or activity, you will not receive any refund of the registration fee or cost paid for such event, clinic, tour or activity.
  • Unless otherwise agreed, we will use the same payment channel that you used to make the relevant payment to us to process a refund to you (if any). You are solely responsible to ensure that the same payment channel is the correct channel that we should process a refund to you (if any).

9. Legal use and conduct

  • You agree to use our membership and our Services for proper and legal purposes only.
  • You agree to interact with our staff and members (and their invitees) with courtesy and respect. We do not tolerate any unlawful behaviour or behaviour that may cause or potentially cause an abuse to our staff or members (or their invitees). 
  • We may terminate your membership and stop providing Services to you immediately without notice if we reasonably consider you are engaging in or associated with any conduct or behaviour described in clauses 9.1 and 9.2 above.

10. Participation in events or other activities

  • You must register with us to participate in an event, clinic, tour or other activity organised by us and pay the relevant registration fee or cost, at least [7 days] prior to the date of such event, clinic, tour or other activity. In some circumstances, we may, at our sole and absolute discretion, accept registration at a shorter notice.  If you wish to make urgent registration for an event, clinic, tour or other activity, you must contact us.  We do not guarantee any short notice registration will be available or accepted by us.
  • If you participate in our events, clinics, tours or other activities, you agree:
    • to adhere to all the rules, dress code, and other requirements at our host clubs or other venues;
    • not to bring us, the host club, the events and the organisers into disrepute in any way;
    • to adhere to all the rules of golf while playing our competitions or other club competitions using the Golf Australia handicap that we issued to you;
    • to familiarise yourself with and follow all the rules of golf, etiquette of golf, and local rules and regulations of the club that you are attending; and
    • to ensure that any social scorecards presented to us for handicapping have been completed accurately and duly signed by a “Marker”, with an official Golf Australia handicap.
  • If you intend to invite or bring an invitee to any of our events, clinics, tours or other activities, you must provide all personal information of the invitee required by us, pay the invitee participation fee (if applicable) and obtain our written consent and approval at least [7 days] prior to the date of such events, clinics, tours or other activities. We reserve the right to reject any invitee to our events, clinics, tours or other activities not consented or approved by us in accordance with this clause (even if there is no invitee participation fee payable). 
  • If you bring any invitee with you to our events, clinics, tours or other activities, you are responsible for the conducts of such invitee and you are responsible to ensure that the invitee comply with the requirements set out in clause 10.2 above. An invitee under the age of 18 years old must be supervised by an adult member at all times during an event, clinic, tour or other activity.
  • The information we provide in relation to an event, clinic, tour or other activity may be information provided by a third party provider. We are not obliged to verify the correctness, accuracy or completeness of such information, and you shall not hold us liable for any error, inaccuracy or incompleteness in such information. 
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11. Your obligations

  • It is your responsibility to ensure that:
    • the terms of your subscription are complete and accurate;
    • you cooperate with us in all matters relating to the Services and your membership with us;
    • you provide us with such information and materials we may reasonably require in order to supply the Services, and ensure that such information is complete, accurate and up-to-date;
    • you obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
    • you comply with all applicable laws, including health and safety laws;
    • you maintain all of our materials, equipment, documents and other property (Our Materials) in good condition, and not dispose of or use Our Materials other than in accordance with our written instructions or authorisation;
    • you follow all of our reasonable directions and instructions in using our Services; and
    • your conduct, whilst interacting with us or remaining as a member of us, do not adversely impact or jeopardize our name, reputation or goodwill in any way.
  • You are responsible for complying with and ensuring that each of your guests and invitees comply with, these Terms.
  • If our ability to perform the Services is prevented or delayed by any failure by you to fulfil any obligation listed in clauses 11.1 and 11.2 (Your Default):
    • we will be entitled to suspend performance of the Services until you remedy Your Default, and to rely on Your Default to relieve us from the performance of the Services, in each case to the extent Your Default prevents or delays performance of the Services. In certain circumstances Your Default may entitle us to terminate the Contract;
    • we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to perform the Services; and
    • it will be your responsibility to reimburse us on written demand for any costs or losses we sustain or incur arising directly or indirectly from Your Default.
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12. Indemnity

  • You agree to fully indemnify us, our affiliates, employees, agents, contributors, third party content providers and licensors (Indemnified Persons) and hold the Indemnified Persons harmless from and against all actions, suits, claims, demands, losses (including any direct, indirect, special or consequential losses), liabilities, damage, charges, expenses, interests, penalties and costs (including legal costs calculated on a full indemnity basis) incurred, suffered or arising out of or in connection with:
    • any breach of your obligations contained in these Terms;
    • your breach or negligent performance or non-performance of these Terms;
    • the enforcement of the Contract;
    • any claim made against us for actual or alleged infringement of a third party’s intellectual property rights in relation to your interaction with us or use of our Services;
    • any claim made against us by a third party arising out of or in connection with the provision of the Services to you;
    • any claim made against us by a third party for death, personal injury or damage to property arising out of or in connection with your use of our Services.
  • The indemnities in clause 12.1(a) apply whether or not you have been negligent or at fault.
  • The indemnities in clause 12.1(a) are continuing obligations of you, independent from your other obligations under these Terms and survive termination or expiry of the Contract, and they are absolute and unconditional and unaffected by anything which otherwise might have the effect of prejudicing, releasing, discharging or affecting your liability.

13. Intellectual property rights

  • All intellectual property rights in or arising out of or in connection with the Services will be owned by us.
  • We agree to grant you a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy the deliverables specified in your subscription (excluding materials provided by you, if any) for the purpose of receiving and using the Services and such deliverables in your business or for your personal use only. You must not sublicense, assign or otherwise transfer the rights granted in this clause 13.2.
  • You agree to grant us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by you to us for the term of the Contract for the purpose of providing the Services to you.

14. Privacy Policy

  • We will use any personal information you provide to us to:
    • provide the Services;
    • process your payment for the Services; and
    • inform you about similar services that we provide, but you may stop receiving this information at any time by contacting us in writing.
  • Further details of how we will process personal information are set out in our privacy policy (Privacy Policy). A copy of our Privacy Policy is available for download from our website.

15. Limitation of liability

  • We provide networking opportunities, but the opportunities require your participation or action. If you do not participate in networking with other members or participants, you will not receive the benefit of the networking opportunity.
  • We do not guarantee your participation in any networking opportunity provided by us will meet your desired purpose or will be fit for your purpose.
  • The networking opportunities that we provide are opportunities for networking only. They are not sales or business opportunities, and they may not be associated with any sales or business.
  • We do not guarantee that any participant in any networking opportunity that we provide will be a person from any specific group, class or background, or a person of interest to you for your business or other purposes.
  • Nothing in this Contract limits or excludes our liability:
    • for death or personal injury caused by our negligence or wilful misconduct or that of our employees, as applicable;
    • for fraud or fraudulent misrepresentation by us or our employees, as applicable; or
    • where liability cannot be limited or excluded by applicable law.
  • Subject to clause 5 we will not be liable to you, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this Contract, including any:
    • loss of profits;
    • loss of sales or business;
    • loss of production;
    • loss of agreements or contracts;
    • loss of business opportunity;
    • loss of anticipated savings;
    • loss of or damage to goodwill;
    • loss of reputation; or
    • loss of use or corruption of software, data or information.
  • Subject to clause 15.6, our maximum aggregate liability to you for any loss or damage or injury arising out of or in connection with the performance or non-performance of services under this Contract, including any breach by us of this Contract however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to [the amount of Subscription Fee and Charges that you paid to us in the preceding [6 months] of the occurrence of such loss or damage or injury].
  • Nothing in this Contract is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL), or the exercise of a right conferred by such a provision, or any liability of ours in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of services.
  • If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, our total liability to you for that failure is limited to, at our option, the resupply of the services or the payment of the cost of resupply.
  • This clause 15 will survive termination of the Contract.

16. Confidentiality

  • You undertake that you will not at any time, and for a period of [five] years after termination of the Contract, disclose to any person any confidential information concerning our business, affairs, customers, clients or suppliers, except as permitted by clause 2.
  • You may disclose our confidential information:
    • where the information is in the public domain as at the date of this Contract (or subsequently becomes in the public domain other than by breach of any obligation of confidentiality binding on you);
    • if you are required to disclose the information by applicable law or the rules of any recognised stock exchange, provided that you have consulted with us as to the form and content of the disclosure;
    • where the disclosure is expressly permitted under this Contract;
    • if disclosure is made to your professional advisers to the extent necessary to enable you to properly perform your obligations under this Contract, in which case you must ensure that such persons keep the information secret and confidential and do not disclose the information to any other person;
    • where the disclosure is required for use in legal proceedings regarding this Contract; or
    • if we have consented in writing before the disclosure.

 

17. Termination

  • Subscription to our membership has a minimum Subscription Period of 12 months. You may terminate your membership subscription within a valid Subscription Period by giving us at least 30 days’ notice in writing, but you may not be able to receive a refund of the unused portion of the Subscription Fee.
  • If you do not elect to auto-renew your membership subscription, the Contract will end at the expiry of your Subscription Period, unless you renew your subscription with us prior to such expiry date.
  • Without affecting any of our other rights, we may suspend the performance of Services, or terminate this Contract with immediate effect by giving written notice to you if:
    • you fail to pay any undisputed amount due under this Contract on the due date for payment and you remain in default not less than [14] days after being notified in writing to make such payment;
    • you commit a material breach of any other term of this Contract and that breach is irremediable or (if that breach is remediable) you fail to remedy that breach within a period of [14] days after being notified in writing to do so;
    • in our reasonable opinion that, your conduct has caused or is likely to cause adverse impact, or your conduct has jeopardized or is likely to jeopardize, our name, reputation or goodwill in any way;
    • an insolvency event occurs in relation to you; or
    • there is a change of control of the your company.
  • If the provision of the Services to you is, in the reasonable opinion of us, no longer commercially viable for us, we may terminate the Contract with you by giving you at least [30 days’] written notice. [If such termination takes place, we will provide you with a refund of the unused portion of the Subscription Fee paid in advance, on a pro-rata basis, minus any administration fees incurred by us.]
  • On termination of the Contract, you must return all of Our Materials and any deliverables which have not been fully paid for. If you fail to do so, then we may enter your premises and take possession of them. Until they have been returned, you will be solely responsible for their safe keeping and must not use them for any purpose unconnected with the Contract.
  • On termination of the Contract, you must close all Accounts which you use to receive our Services.
  • Termination of this Contract does not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages for any breach of the Contract that existed at or before the date of termination.
  • Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.

 

 

 

 

18. Force majeure

  • We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by any act or event beyond our reasonable control (Event Outside Our Control).
  • If an Event Outside Our Control takes place that affects the performance of our obligations under the Contract:
    • we will contact you as soon as reasonably possible to notify you; and
    • our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. We will arrange a new date for performance of the Services with you after the Event Outside Our Control is over.
  • You may cancel the Contract affected by an Event Outside Our Control which has continued for more than [three months]. To cancel please contact us in writing. [If you elect to cancel the Contract, we will refund the Subscription Fee you have paid on a pro-rata basis, less the charges reasonably and actually incurred by us in performing the Services up to the date of the occurrence of the Event Outside Our Control.]

 

19. Non-solicitation

  • During the Term of this Contract and for a period of 12 months following the termination or expiration of this Contract, you will not make any solicitation to employ our personnel without our prior written consent.

20. Restraint

  • You must not, while being a member of us and during the Restraint Period:
    • within the Restraint Area, create, develop, form, establish, carry on or be concerned, engaged or interested directly or indirectly in any capacity whatsoever in any trade or business competing with our business or any of our related entities, which is a Similar Business;
    • either on your own behalf or in any other capacity whatsoever directly or indirectly do or say anything with the intention of and which may lead to any person ceasing to do business with us or any of our related entities on substantially the same terms as previously or at all; and
    • either on your own behalf or in any other capacity whatsoever directly or indirectly endeavour to entice away from us or any of our related entities or solicit any person, firm or company who was a member or employee of us or any of our related entities during the 12-month period prior to termination of your membership with us.
  • For the avoidance of doubt, subclauses 20.1(a) does not restrict you from being a member of another Similar Business.
  • For the purposes of this clause 20:

Restraint Area means:

  • Australia, unless that area is held invalid for any reason by a court of competent jurisdiction;
  • in which case, New South Wales, Victoria and Queensland, unless that area is held invalid for any reason by a court of competent jurisdiction;
  • in which case, Sydney, Melbourne and Brisbane, unless that area is held invalid for any reason by a court of competent jurisdiction;
  • in which case, Sydney.

Restraint Period means:

  • 36 months from termination of your membership with us, unless that period is held invalid for any reason by a court of competent jurisdiction;
  • in which case, 24 months from termination of your membership with us, unless that period is held invalid for any reason by a court of competent jurisdiction;
  • in which case, 12 months from termination of your membership with us, unless that period is held invalid for any reason by a court of competent jurisdiction;
  • in which case, 6 months from termination of your membership with us, unless that period is held invalid for any reason by a court of competent jurisdiction.

Similar Business means a business that:

  • has a business model that is the same or substantially similar to our current or future business model; or
  • is engaged in the sale or provision of products or services that are in the same or substantially similar product or service categories as those sold or provided by us or any of our related entities.

21. Notices

  • When we refer to “in writing” in these Terms, this includes email.
  • Any notice or other communication given under or regarding these Terms must be in writing and be delivered personally, sent by pre-paid post or email.
  • A notice or other communication is deemed to have been received:
    • if delivered by hand to the nominated address, when delivered to the nominated address;
    • if sent by pre-paid post, at 9.00 am (addressee’s time) on the second Business Day after the date of posting; or
    • if sent by email, at the time the email is sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered.
  • In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.

The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.

22. Variation

  • We reserve the right to change or modify these Terms at any time, consistent with applicable laws and principles and without notice to you. These changes will be effective as of the date we post the revised version on our website.  It is your responsibility to review these Terms prior to use and periodically throughout your use of our website and services. 
  • Your continued use of our website and our services, including any interaction between you and us relating to events, membership, social media, newsletters and other products or services provided by us is deemed as acceptance of any modifications and amendment to these Terms.

23. No waiver

  • Neither of us may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with these Terms unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
  • Words or conduct referred to in clause 1 include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.

24. Assignment and novation

  • We may assign or transfer our rights and obligations under the Contract to another entity.
  • You may only assign or transfer your rights or your obligations under the Contract to another person if we agree in writing.
  • A breach of clause 2 by you entitles us to terminate this Contract.

25. Severability

  • If the whole or any part of a provision of these Terms is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
  • Clause 1 does not apply if the severance of a provision of these Terms in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under these Terms.

26. Relationship of the parties

  • The Contract is between you and us. No other person has any rights to enforce any of its terms.

27. Announcements

  • No party will make, or permit any person to:
    • make any public announcement statement, press release or other publicity or marketing materials concerning the existence, subject matter or terms of this Contract, the wider transactions contemplated by it, or the relationship between the parties; or
    • use the other party’s trade marks, service marks, trade names, logos, symbols or brand names, in each case;
  • without the prior written consent of the other party, except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

28. Dispute Resolution

  • A party to this Contract claiming that a dispute has arisen from or in connection with this Contract (Dispute) must not commence court or arbitration proceedings arising from or relating to the Dispute, other than a claim for urgent interlocutory relief, unless that party has attempted to resolve the Dispute in accordance with this clause
  • Compliance with this clause is a condition precedent to the right of any party to commence litigation or arbitration arising from, or in connection with, the Dispute.
  • A party to this Contract claiming that the Dispute has arisen must give a written notice to the other party to this Contract, specifying the nature of the Dispute (Dispute Notice) together with relevant supporting documents.
  • Following service of the Dispute Notice, the parties must meet promptly and within 30 days from the date of service of the Dispute Notice and attempt in good faith to resolve the Dispute.
  • If the parties have for any reason been unable to resolve the Dispute within 30 days of service of the Dispute Notice, [the parties must attempt to settle it in good faith by mediation administered by the Australian Disputes Centre (ADC), in accordance with the ADC Guidelines for Commercial Mediation applicable at the time the matter is referred to the ADC and which are deemed to be incorporated into these Terms]. The mediation will be held in Sydney, Australia.
  • If [60] days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either party may request the mediator to terminate the mediation and the mediator must do so.

This clause 28 survives termination or expiry of this Contract.

 

 

29. Governing law and jurisdiction

  • These Terms, their subject matter and their formation, are governed by the laws of New South Wales, Australia without reference to conflict of law principles.
  • Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with these Terms.
  • Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described in clause 29.2 on the basis that:
    • any proceeding arising out of or in connection with these Terms has been brought in an inconvenient forum; or
    • the courts described in clause 29.2 do not have jurisdiction.