ABOUT THE PLATFORM Welcome to immediation.com, both the website immediation.com and the platform or platforms that it accesses being referred to as the Platform. The Platform contains products and services provided to users and guests by Immediation Platform Pty Ltd (ACN 628 122 609) (Immediation) under licence from Immediation Pty Ltd (ACN 617 528 088). Access to and use of the Platform, or any of its associated services (the Services) which for certain Services includes services provided by third party neutrals (Panel Members), is provided by Immediation and therefore your contract regarding access to the Platform and any Services provided thereon is with Immediation unless otherwise specified. Please read these terms and conditions (the Terms) carefully. By using, browsing and/or reading the Platform, this signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of the Platform immediately.Immediation reserves the right to review and change any of the Terms by updating this page at its sole discretion. When Immediation updates the Terms, it will use reasonable endeavours to provide notice of updates to the Terms. Any changes to the Terms take immediate effect from the date of their publication, and you accept the changed Terms by subsequent use of the Platform. Before you continue, we recommend you keep a copy of the Terms for your records.
ACCEPTANCE OF THE TERMS
You accept the Terms by remaining on the Platform. You may also accept the Terms by clicking to accept or agree to the Terms where this option is made available to you by Immediation in the user interface. You accept responsibility for use by any user who accesses the Platform through your account, however if you use or access the Platform through another person’s account these terms are also binding on you. Access to the Platform and provision of the Services are subject to further terms and conditions referred to as the Platform Terms and Conditions that you must accept before submitting or responding to a claim or counterclaim on the Platform or subscribing or accepting an invitation to use any of our subscription services (including but not limited to Immediation Lite). Some of the Services may be subject to additional rules specific to that service as set out on the Platform (Service Rules). By accepting the Service Rules, you agree with Immediation to abide by those Service Rules in relation to the provision of that Service. Prior to the commencement of a Service, you will also be required to sign an agreement (Service Agreement) with respect to the provision of a Service with the party with whom you are having a dispute and with the Panel Member (of which Immediation will not be a party) or with Immediation if you are a subscriber using any of our subscription services. The Service Agreement incorporates the relevant Service Rules.
YOUR DATA AND YOUR USE OF THE PLATFORM AND THE SERVICES
Immediation implements security procedures to help protect your data from security attacks. All content supplied by you and generated for the Services will be securely stored and will not be released to anyone except as required by law or within any agreement generated or submitted to or by you. However, given the nature of the internet and the cloud:
• Immediation cannot guarantee that any data transmission is totally secure. Whilst Immediation takes precautions to protect information, Immediation does not warrant and cannot ensure the security of any information you transmit to us or the Platform. You, therefore, transmit to the Platform at your own risk. However, once Immediation receives data, Immediation will take reasonable steps to preserve its security. If you become aware of any problems with the security of the data or the Platform, please contact us immediately via the Contact Us at email@example.com • Immediation cannot guarantee that the Platform is free from viruses, malware, fault, human error or other conditions which could damage, use or interfere with your data or computer systems. You must take your own precautions to ensure that your systems are not infected with any such code and assume the risk of any damage or loss as a result of using the Platform. You must ensure that your use of the Platform and the Services and any business, negotiation, transaction or settlement conducted on the Platform and all your data is at all times compliant with all applicable local, state, federal and international laws and regulations (Laws). You represent and warrant that:
• you have obtained all necessary rights, releases, privacy consents and permissions to provide all your data to Immediation and to grant the rights granted to Immediation in these Terms; and
• your data and its transfer to and use by Immediation as authorised by you under these Terms do not and will not violate any Laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorised herein is not inconsistent with the terms of any applicable privacy policies. Immediation assumes no responsibility or liability for your data, and you shall be solely responsible for your data and the consequences of using, disclosing, storing, or transmitting it. You will not upload any data or material to the Platform that is protected by litigation privilege, legal professional privilege or any other form of privilege however if you do so, it is at your risk. The provision of any privileged material by you constitutes an express and irrevocable waiver of any such rights and neither Immediation Pty Ltd nor Immediation has no obligation to you to in the instance that you intentionally or unintentionally upload privileged data or material.
Immediation may remove or delete your data from the Platform without notice within a reasonable period of time after the termination of the Services and you acknowledge and accept that Immediation has no obligation to retain, or to return to you or any other person, any of your data or your materials after the conclusion or termination of the Services.
COPYRIGHT AND INTELLECTUAL PROPERTY
The Platform, the content and all of the materials made available by Immediation on the Platform or in the course of providing the Services (the content) are subject to copyright protection under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the content and compilation of the Platform (including but not limited to text, graphics, logos, button icons, video images, audio clips, website, platform, code, scripts, design elements and interactive features) are owned or controlled for these purposes, and are reserved by Immediation, and/or Immediation Pty Ltd or their contributors.
All trademarks, service marks and trade names are owned, registered and/or licensed by Immediation Pty Ltd and/or Immediation.
Immediation grants to you a worldwide, non-exclusive, royalty-free, revocable license whilst you are using the Platform to:
• use the Platform pursuant to the Terms; • copy and store the Platform and the material contained in the Platform in your device’s cache memory; and • print pages from the Platform for your own personal and non-commercial use.
Neither Immediation Pty Ltd nor Immediation grants you any other rights whatsoever in relation to the Platform or the content. All other rights are expressly reserved by Immediation. Immediation Pty Ltd and/or Immediation retains all rights, title and interest in and to the Platform and all related content. Nothing you do on or in relation to the Platform will transfer to you or any user any:
• business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright, or • right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or • thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process).You may not, without the prior written permission of Immediation and the permission of any other relevant rights owners, broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the content or third-party content for any purpose, unless otherwise provided by these Terms. For the avoidance of doubt, this includes without limitation Immediation’s pricing, fee calculator, and proforma service rules, documents and agreements which can only be accessed by creating an account on the Platform. This prohibition does not extend to materials on the Platform which are freely available for re-use or are in the public domain. The Platform will make clear which materials, if any, are freely available for re-use.
CONFIDENTIAL INFORMATION In using the Platform or the Services, you may upload or provide confidential information belonging to yourself, persons on whose behalf you are acting, and other third parties. On the Immediation Platform, or in the course of providing the Services, Immediation provides notice of how information may be used and disclosed, and by using the Platform or the Services you accept those terms. Those notices prevail over this clause to the extent of inconsistency.
Where no notification is provided:
• Immediation will only use and disclose confidential information for the purposes of providing the Platform or performing the Services under this Agreement, or to the extent necessary in the course of managing the Immediation business; • Immediation will use reasonable endeavours to store and manage the confidential information securely, and to require other parties using the Platform or the Services to maintain confidentiality, but it cannot guarantee security and confidentiality in all cases; • Immediation will not modify, reverse engineer or make copies, notes or records of the confidential information other than in connection with the provision of the Platform or the performance of the Services under this Agreement, or to the extent necessary in the course of managing the Immediation business; and • any person whose confidential information is provided to Immediation and third parties in the course of using the Platform or the Services accepts that by their nature, dispute resolution and electronic information management raise some risk of information being misused. You release and indemnify Immediation in respect of any claim for loss or damage arising from such misuse, other than where Immediation has wilfully breached its commitments under this clause.
Subject to this clause 7, and to the extent permitted by law:
• all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and • neither Immediation Pty Ltd nor Immediation will be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the use of the Platform or the Services, the content or these Terms (including as a result of not being able to use the Platform or the Services or content or any delay or interruption to their supply), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
Use of the Platform, Services and content is at your own risk. Everything on the Platform and the content is provided to you “as is” and “as available” without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors and licensors of Immediation Pty Ltd or Immediation make any express or implied representation or warranty about the content or any products or content (including the products or content of Immediation) referred to on the Platform.
Immediation excludes loss or damage you might suffer including as a result of any of the following: • failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third-party conduct, or theft, destruction, alteration or unauthorised access to records; • the accuracy, suitability or currency of any information on the Platform, the content, or any of its content related products (including third party material and advertisements on the Platform) or the Services; • your use of the Platform or provision of data to the Platform, the content, the Services or any of the products of Immediation; and • the content or operation in respect to links which are provided for your convenience. These Terms may be produced and relied upon as a complete defence to any claim made against Immediation, its related bodies corporate or their affiliates, employees, agents, contributors and licensors.
Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
LIMITATION OF LIABILITY
Immediation Pty Ltd and Immediation’s total liability arising out of or in connection with the use of the Platform, the Services, the content or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, is limited to the resupply of the Services to you or payment of the cost of having the Services supplied again, at Immediation's discretion.
TERMINATION OF CONTRACT
If you want to terminate the Terms, you may do so by providing Immediation with 30 days’ notice of your intention to terminate by sending notice of your intention to terminate to Immediation via the ‘Contact Us’ link on our homepage.
If you are using any of Immediation’s subscription services (including, but not limited to, Immediation Lite) and wish to terminate the terms, you may do so by cancelling your subscription at any time on the Immediation platform.
Immediation may at any time, suspend or terminate your access to the Platform if in Immediation’s opinion (which it may exercise in its sole discretion): • you have (or any person you invite to join on the Platform with you has) breached any provision of the Terms or intend to breach any provision; • Immediation is required to do so by law; • Immediation is transitioning to no longer providing the services in the country in which you are resident or from which you use the service; • your conduct (or the conduct of any person you invite to join on the Platform with you) is or may be unlawful, or impacts or may impact Immediation’s name or reputation or violates or may violate the rights of another party; or • the provision of the services to you by Immediation, is in the opinion of Immediation, no longer commercially viable.
If you are a subscriber using any of our subscription services, termination of your subscription services agreement is subject to your Service Agreement. You acknowledge and agree that: • in accessing the Platform and using any of the Services, you have relied on your own skill and judgment in determining its and their sufficiency for the use and results which you intend to obtain; • Immediation has made no promise, representation or warranty in respect of the profitability, benefits, dispute resolution outcome or any other consequence in your use of the Platform or any of the Services, or in respect of the suitability of the Platform or Services to your operations, business or needs. The rights and obligations of each of the parties under these Terms will survive expiration or termination of these Terms.
Neither Immediation Pty Ltd nor Immediation has any liability or responsibility for the actions or inactions of the third parties who act as Panel Members as part of the Services or any subscriber who uses our subscription services and invites you to participate. You agree that you will enter into a separate legal agreement with a Panel Member each time you use the Services that include the involvement of a Panel Member, to which Immediation will not be a party and will have no obligations, rights or responsibilities thereunder.
You agree to indemnify Immediation Pty Ltd, Immediation, and their affiliates, employees, agents, contributors, third party content providers and licensors from and against: • all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of your breach of these Terms or otherwise in connection with the content you provide to the Platform; • any direct or indirect consequences of you accessing, using or transacting on the Platform or attempts to do so; • all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) in relation to your use of the Platform or those of any person you invite to use the Platform with you; and • all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of any action or notice by a third party, including a regulator, regarding your use of the Platform or the Services.
DISPUTE RESOLUTION • Compulsory: If a dispute arises out of or relates to the Terms, neither party may commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought). • Notice: A party to the Terms claiming a dispute (Terms Dispute) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Terms Dispute. • Resolution: On receipt of that notice (Notice) by that other party, the parties to the Terms (Parties) must: - Within 14 days of the Notice endeavour in good faith to resolve the Terms Dispute expeditiously by negotiation or such other means upon which they may mutually agree; - If for any reason whatsoever, 14 days after the date of the Notice, the Terms Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Australian Mediation Association or his or her nominee; - 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; - The mediation will be held in Victoria, Australia.• Confidential: All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence. • Termination of mediation: If 20 days have elapsed after the start of a mediation of the Terms Dispute and the Terms Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
VENUE AND JURISDICTION
The exclusive venue for litigation shall be in the courts of Victoria, Australia.
The Terms are governed by the laws of Victoria, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of Victoria, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.
INDEPENDENT LEGAL ADVICE
By using the Platform, you accept that the provisions of the Terms are fair and reasonable and you have had the opportunity to obtain independent legal advice prior to commencing use. You agree that the Terms are not unfair, unconscionable, or against public policy on the grounds of inequality of bargaining power.
A provision of the Terms will not be interpreted against a party by virtue of that party having proposed the provision.
SEVERANCE If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed, and the rest of the Terms shall remain in force.
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