(a) Welcome to the Incaberry Application (the 'App'). The App facilitates interactions between buyers (‘Buyers’) and sellers (‘Sellers’) making it easier for Buyers and Sellers to locate, communicate, arrange payment and collect/deliver home grown fruits and vegetables and other homemade food goods in a convenient and secure manner (the 'Services').
(b) The App is operated by Inca Pty Ltd (ACN 659 456 532) t/as Incaberry (‘Incaberry’). Access to and use of the App, or any of its associated products or services, is provided by Incaberry. Please read these terms and conditions (the 'Terms') carefully. By using, browsing and/or reading the App, 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 App, or any of its Services, immediately.
(c) Incaberry reserves the right to review and change any of the Terms by updating this page at its sole discretion. When Incaberry updates the Terms, it will use reasonable endeavours to provide you with notice of updates of the Terms. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for your records.
Terms & Conditions
1. About the Application
2. Acceptance of the Terms
You accept the Terms by using or browsing the App. You may also accept the Terms by clicking to accept or agree to the Terms where this option is made available to you by Incaberry in the user interface.
3. The Services
(a) In order to access the Services, both Buyers and Sellers are required to register for an account through the App (the 'Account').
(b) As part of the registration process, or as part of your continued use of the Services, you may be required to provide personal information about yourself (such as identification or contact details), including:
(d) Once you have completed the registration process, you will be a registered member of the App ('Member') and agree to be bound by the Terms.
(e) You may not use the Services and may not accept the Terms if:
(b) As part of the registration process, or as part of your continued use of the Services, you may be required to provide personal information about yourself (such as identification or contact details), including:
(i) Email address
(ii) Preferred username
(iii) Mailing and/or additional address/es
(iv) Telephone number
(v) Password
(vi) Payment and/or bank details
(c) You warrant that any information you give to Incaberry in the course of completing the registration process will always be accurate, correct and up to date.(ii) Preferred username
(iii) Mailing and/or additional address/es
(iv) Telephone number
(v) Password
(vi) Payment and/or bank details
(d) Once you have completed the registration process, you will be a registered member of the App ('Member') and agree to be bound by the Terms.
(e) You may not use the Services and may not accept the Terms if:
(i) you are not of legal age to form a binding contract with Incaberry; or
(ii) you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.
(ii) you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.
4. Your obligations as a Member
(a) As a Member, you agree to comply with the following:
(i) you will not share your profile with any other person;
(ii) you will use the Services only for purposes that are permitted by:
(iv) any use of your registration information by any other person, or third parties, is strictly prohibited. You agree to immediately notify Incaberry of any unauthorised use of your password or email address or any breach of security of which you have become aware;
(v) you must not expressly or impliedly impersonate another Member or use the profile or password of another Member at any time;
(vi) any content that you broadcast, publish, upload, transmit, post or distribute on the App ('Your Content') will always be accurate, correct and up to date and you will maintain reasonable records of Your Content.
(vii) You represent that you have all necessary rights to all parts of Your Content and that you’re not infringing or violating any third party’s rights by posting it.
(viii) you agree not to harass, impersonate, stalk, threaten another Member of the App (where interaction with other Members is made available to you);
(viii) access and use of the App is limited, non-transferable and allows for the sole use of the App by you for the purposes of providing the Services;
(ix) you will not use the Services or the App in connection with any commercial endeavours except those that are specifically endorsed or approved by the management of Incaberry;
(x) you will not use the Services or App for any illegal and/or unauthorised use which includes collecting email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the App;
(xi) you agree that commercial advertisements, affiliate links and other forms of solicitation may be removed from Member profiles without notice and may result in termination of the Services. Appropriate legal action will be taken by Incaberry for any illegal or unauthorised use of the App; and
(xii) you acknowledge and agree that any automated use of the App or its Services is prohibited.
(ii) you will use the Services only for purposes that are permitted by:
(A) the Terms; and
(B) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;
(iii) you have sole responsibility for protecting the confidentiality of your password and/or email address. Use of your password by any other person may result in the immediate cancellation of the Services;(B) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;
(iv) any use of your registration information by any other person, or third parties, is strictly prohibited. You agree to immediately notify Incaberry of any unauthorised use of your password or email address or any breach of security of which you have become aware;
(v) you must not expressly or impliedly impersonate another Member or use the profile or password of another Member at any time;
(vi) any content that you broadcast, publish, upload, transmit, post or distribute on the App ('Your Content') will always be accurate, correct and up to date and you will maintain reasonable records of Your Content.
(vii) You represent that you have all necessary rights to all parts of Your Content and that you’re not infringing or violating any third party’s rights by posting it.
(viii) you agree not to harass, impersonate, stalk, threaten another Member of the App (where interaction with other Members is made available to you);
(viii) access and use of the App is limited, non-transferable and allows for the sole use of the App by you for the purposes of providing the Services;
(ix) you will not use the Services or the App in connection with any commercial endeavours except those that are specifically endorsed or approved by the management of Incaberry;
(x) you will not use the Services or App for any illegal and/or unauthorised use which includes collecting email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the App;
(xi) you agree that commercial advertisements, affiliate links and other forms of solicitation may be removed from Member profiles without notice and may result in termination of the Services. Appropriate legal action will be taken by Incaberry for any illegal or unauthorised use of the App; and
(xii) you acknowledge and agree that any automated use of the App or its Services is prohibited.
5. Using the App as a Seller
(a) You agree that you will only offer for sale homegrown fruit, vegetables, homemade food goods and flowers and other products that may be advertised as available from time to time (the ‘Products’).
(b) You agree that you will not violate any laws in connection with your use of the Services. This includes any local, state, federal, and international laws that may apply to you.
(c) You will obtain any permits or licences that your shop requires, and to meet applicable legal requirements in applicable jurisdiction(s). This includes the sale and delivery of your Products.
(d) You acknowledge and agree that all transaction fees that you owe to Incaberry will be automatically calculated and paid at the time of each transaction via Stripe. You are also solely responsible for collecting and/or paying any applicable taxes for any purchases or sales you make through our Services.
(e) You are responsible for packaging and dispatching your sold Products to Buyers or arranging for collection of your sold items by Buyers. You may elect to share your address with Buyers at your sole discretion. You acknowledge and agree that if you do choose to disclose Your address at any time, that the liability and risk associated with doing so is solely Your responsibility.
(f) You agree not to manipulate the price of any Product or interfere with any other Seller's listings.
(g) You agree to disclose to Buyers details of all and any chemicals used on or near the products You are selling.
(b) You agree that you will not violate any laws in connection with your use of the Services. This includes any local, state, federal, and international laws that may apply to you.
(c) You will obtain any permits or licences that your shop requires, and to meet applicable legal requirements in applicable jurisdiction(s). This includes the sale and delivery of your Products.
(d) You acknowledge and agree that all transaction fees that you owe to Incaberry will be automatically calculated and paid at the time of each transaction via Stripe. You are also solely responsible for collecting and/or paying any applicable taxes for any purchases or sales you make through our Services.
(e) You are responsible for packaging and dispatching your sold Products to Buyers or arranging for collection of your sold items by Buyers. You may elect to share your address with Buyers at your sole discretion. You acknowledge and agree that if you do choose to disclose Your address at any time, that the liability and risk associated with doing so is solely Your responsibility.
(f) You agree not to manipulate the price of any Product or interfere with any other Seller's listings.
(g) You agree to disclose to Buyers details of all and any chemicals used on or near the products You are selling.
6. Using the App as a Buyer
(a) You agree that you will not violate any laws in connection with your use of the Services. This includes any local, state, federal, and international laws that may apply to you.
(b) You are responsible for paying all fees that you owe to the Seller.
(c) You agree not to manipulate the price of any Product or interfere with any listings.
(d) You agree to transact with Sellers in good faith.
7. Payment of Transaction Fees by Sellers
8. Payment By Buyers
9. Refund Policy
10. Photo Permissions & Data Usage
11. Copyright and Intellectual Property
12. Privacy
(b) You are responsible for paying all fees that you owe to the Seller.
(c) You agree not to manipulate the price of any Product or interfere with any listings.
(d) You agree to transact with Sellers in good faith.
7. Payment of Transaction Fees by Sellers
(a) By Incaberry offering the Services to you, you agree that:
(i) When you make a sale through Incaberry, including any delivery fees collected, you will be charged a transaction fee of 2.5% of the total transaction fee payable to Incaberry, or other percentage as advised from time to time, as well as additional charges applied by Stripe.
(ii) Incaberry may suspend your selling privileges at any time pending payment of your outstanding balance.
(b) All payments made in the course of your use of the Services are made using Stripe. In using the App, the Services or when making any payment in relation to your use of the Services, you warrant that you have read, understood and agree to be bound by the Stripe terms and conditions which are available on their application.(ii) Incaberry may suspend your selling privileges at any time pending payment of your outstanding balance.
8. Payment By Buyers
(a) By making a purchase from a Seller on Incaberry, you agree that you have:
(i) Read the Product description and shop policies before making a purchase;
(ii) Submitted appropriate payment for Product(s) purchased; and
(iii) Provided accurate delivery information to the Seller if applicable.
(b) All payments made in the course of your use of the Services are made using Stripe. In using the App, the Services or when making any payment in relation to your use of the Services, you warrant that you have read, understood and agree to be bound by the Stripe terms and conditions which are available on their application.(ii) Submitted appropriate payment for Product(s) purchased; and
(iii) Provided accurate delivery information to the Seller if applicable.
9. Refund Policy
(a) Since Incaberry is only a facilitator in introducing Buyers to Sellers and providing a system to make safe payment, Incaberry does not hold any liability to a Buyer directly and will not personally refund them any payments made in the use of the Services.
(b) Notwithstanding the above clause, if a Buyer is unsatisfied with the Products provided by the Seller or believes that they may be entitled to a refund, then Incaberry requires the Buyer to:
(b) Notwithstanding the above clause, if a Buyer is unsatisfied with the Products provided by the Seller or believes that they may be entitled to a refund, then Incaberry requires the Buyer to:
(i) contact the Seller directly to request a refund within 7 days from the date of purchase; and
(ii) if contacting the Seller is not successful after 14 days, contact Incaberry through the 'Contact Us' section of the App outlining why you believe you are entitled to a refund, including times, photos, and copies of communication sent to the Seller, so we are able to determine if the Seller should be removed from the Services.
(c) If a Seller is contacted by a Buyer who is requesting a refund pursuant to the above clause, the Seller agrees that it will immediately process the refund where applicable.(ii) if contacting the Seller is not successful after 14 days, contact Incaberry through the 'Contact Us' section of the App outlining why you believe you are entitled to a refund, including times, photos, and copies of communication sent to the Seller, so we are able to determine if the Seller should be removed from the Services.
10. Photo Permissions & Data Usage
(a) User-Generated Content: By uploading, sharing, or submitting any photos, images, or other content (“User Content”) to Incaberry, you grant Incaberry a worldwide, non-exclusive, royalty-free, transferable, and sublicensable licence to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform, and publicly display such User Content in connection with:
(c) Consent for Use of Images: By submitting photos or other content that may contain identifiable individuals, you confirm that you have obtained their consent for the use of such content as outlined above. Incaberry may request proof of such consent at any time.
(d) Data Usage: Incaberry may collect, store, and process information, including images and associated metadata, in accordance with our Privacy Policy. This includes using aggregated and anonymised data across Incaberry’s services for service improvement, research, analytics, and security purposes.
(e) Withdrawal of Consent: If you wish to withdraw permission for Incaberry to use your User Content, you may contact us at https://incaberry.app/pages/data. While we will take reasonable steps to remove future use, please note that we cannot guarantee the removal of materials already published, distributed, or integrated across Incaberry’s services prior to your request.
(i) the operation and promotion of Incaberry’s current and future websites, applications, products, and services (including any owned or operated by Incaberry under the same business or brand); and
(ii) Incaberry’s marketing and promotional activities (including digital, print, and social media).
(b) Ownership: You retain ownership of all intellectual property rights in your User Content. Nothing in these Terms transfers ownership of your content to Incaberry.(ii) Incaberry’s marketing and promotional activities (including digital, print, and social media).
(c) Consent for Use of Images: By submitting photos or other content that may contain identifiable individuals, you confirm that you have obtained their consent for the use of such content as outlined above. Incaberry may request proof of such consent at any time.
(d) Data Usage: Incaberry may collect, store, and process information, including images and associated metadata, in accordance with our Privacy Policy. This includes using aggregated and anonymised data across Incaberry’s services for service improvement, research, analytics, and security purposes.
(e) Withdrawal of Consent: If you wish to withdraw permission for Incaberry to use your User Content, you may contact us at https://incaberry.app/pages/data. While we will take reasonable steps to remove future use, please note that we cannot guarantee the removal of materials already published, distributed, or integrated across Incaberry’s services prior to your request.
11. Copyright and Intellectual Property
(a) The App, the Services and all of the related products of Incaberry are subject to copyright. The material on the App is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the Services and compilation of the App (including but not limited to text, graphics, logos, button icons, video images, audio clips, application, code, scripts, design elements and interactive features) or the Services are owned or controlled for these purposes and are reserved by Incaberry or its contributors.
(b) All trademarks, service marks and trade names are owned, registered and/or licensed by Incaberry, who grants to you a worldwide, non-exclusive, royaltyfree, revocable license whilst you are a Member to:
(e) Where you broadcast, publish, upload, transmit, post or distribute Your Content on the App, then you grant to Incaberry a non-exclusive, transferrable, perpetual, royalty-free, irrevocable, worldwide licence to broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change Your Content.
(b) All trademarks, service marks and trade names are owned, registered and/or licensed by Incaberry, who grants to you a worldwide, non-exclusive, royaltyfree, revocable license whilst you are a Member to:
(i) use the App pursuant to the Terms;
(ii) copy and store the App and the material contained in the App in your device's cache memory; and
(iii) print pages from the App for your own personal and non-commercial use. Incaberry does not grant you any other rights whatsoever in relation to the App or the Services. All other rights are expressly reserved by Incaberry.
(c) Incaberry retains all rights, title and interest in and to the App and all related Services. Nothing you do on or in relation to the App will transfer to you any:
(ii) copy and store the App and the material contained in the App in your device's cache memory; and
(iii) print pages from the App for your own personal and non-commercial use. Incaberry does not grant you any other rights whatsoever in relation to the App or the Services. All other rights are expressly reserved by Incaberry.
(i) business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright, or
(ii) a right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or
(iii) a 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).
(d) You may not, without the prior written permission of Incaberry 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 Services or third party Services for any purpose, unless otherwise provided by these Terms. This prohibition does not extend to materials on the App, which are freely available for re-use or are in the public domain.(ii) a right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or
(iii) a 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).
(e) Where you broadcast, publish, upload, transmit, post or distribute Your Content on the App, then you grant to Incaberry a non-exclusive, transferrable, perpetual, royalty-free, irrevocable, worldwide licence to broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change Your Content.
12. Privacy
Incaberry takes your privacy seriously and any information provided through your use of the App and/or Services are subject to Incaberry's Privacy Policy, which is available on the App and on the website www.incaberry.app.
13. General Disclaimer and Release
13. General Disclaimer and Release
(a) Products: You understand that Incaberry does not grow, make, store, or inspect any of the Products sold through the Services. Incaberry provides the platform; the Products are produced, listed, and sold directly by independent Sellers, so Incaberry cannot and does not make any warranties about their quality, safety, authenticity, or their legality. Any legal claim related to a Product you purchase must be brought directly against the Seller of the Product. You release Incaberry from any claims related to Products sold through the Services, including for defective Products, misrepresentations by Sellers, or Products that caused physical injury.
(b) Content: Incaberry makes no representations concerning any content posted by users through the Services. Incaberry is not responsible for the accuracy, copyright compliance, legality, or decency of content posted by users that you access through the Services. You release Incaberry from all liability relating to that content.
(c) People You Interact With: You can use the Services to interact with other individuals, either online or in person. However, you understand that Incaberry does not screen users of our Services and you release Incaberry from all liability relating to your interactions with other users. Please be careful and exercise caution and good judgment in all interactions with others, especially if you are meeting someone in person.
(d) 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.
(e) Subject to this clause, and to the extent permitted by law:
14. Indemnity
15. Limitation of Liability
(b) Content: Incaberry makes no representations concerning any content posted by users through the Services. Incaberry is not responsible for the accuracy, copyright compliance, legality, or decency of content posted by users that you access through the Services. You release Incaberry from all liability relating to that content.
(c) People You Interact With: You can use the Services to interact with other individuals, either online or in person. However, you understand that Incaberry does not screen users of our Services and you release Incaberry from all liability relating to your interactions with other users. Please be careful and exercise caution and good judgment in all interactions with others, especially if you are meeting someone in person.
(d) 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.
(e) Subject to this clause, and to the extent permitted by law:
(i) all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and
(ii) Incaberry we will not 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 Services or these Terms (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
(f) Use of the App and the Services is at your own risk. Everything on the App and the Services 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 Incaberry make any express or implied representation or warranty about the Services or any products or Services (including the products or Services of Incaberry) referred to on the App. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
(ii) Incaberry we will not 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 Services or these Terms (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
(i) 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;
(ii) the accuracy, suitability or currency of any information on the App, the Services, or any of its Services related products (including third party material and advertisements on the App);
(iii) costs incurred as a result of you using the App, the Services or any of the products of Incaberry; and
(iv) the Services or operation in respect to links which are provided for your convenience.
(g) You acknowledge that the App and the Services are only intended to facilitate the interactions between the Buyer and Seller and does not offer any services other than the Services and Incaberry holds no liability to you as a result of any conduct of the Members or the misuse of Your Content by any party (including other Members).
(ii) the accuracy, suitability or currency of any information on the App, the Services, or any of its Services related products (including third party material and advertisements on the App);
(iii) costs incurred as a result of you using the App, the Services or any of the products of Incaberry; and
(iv) the Services or operation in respect to links which are provided for your convenience.
14. Indemnity
You agree to indemnify Incaberry, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:
a. 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 or in connection with Your Content;
b. any direct or indirect consequences of you accessing, using or transacting on the App or attempts to do so; and/or
c. any breach of the Terms.
b. any direct or indirect consequences of you accessing, using or transacting on the App or attempts to do so; and/or
c. any breach of the Terms.
15. Limitation of Liability
(a) Incaberry's total liability arising out of or in connection with the Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the Services to you.
(b) You expressly understand and agree that Incaberry, its affiliates, employees, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
(c) You acknowledge and agree that Incaberry holds no liability for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you as a result of providing Your Content to the App.
16. Competitors
(b) You expressly understand and agree that Incaberry, its affiliates, employees, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
(c) You acknowledge and agree that Incaberry holds no liability for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you as a result of providing Your Content to the App.
16. Competitors
If you are in the business of providing similar Services for the purpose of providing them to users for a commercial gain, whether business users or domestic users, then you are a competitor of Incaberry. Competitors are not permitted to use or access any information or content on our App. If you breach this provision, Incaberry will hold you fully responsible for any loss that we may sustain and hold you accountable for all profits that you might make from such a breach.
17. Termination of Contract
18. Dispute Resolution
19. Venue and Jurisdiction
20. Governing Law
21. Independent Legal Advice
22. Severance
17. Termination of Contract
(a) If you want to terminate the Terms, you may do so by providing Incaberry with 14 days' notice of your intention to terminate by sending notice of your intention to terminate to Incaberry via the 'Contact Us' link on our homepage.
(b) Incaberry may at any time, terminate the Terms with you if:
(d) When the Terms come to an end, all of the legal rights, obligations and liabilities that you and Incaberry have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely.
(b) Incaberry may at any time, terminate the Terms with you if:
(i) you have breached any provision of the Terms or intend to breach any provision;
(ii) Incaberry is required to do so by law;
(iii) Incaberry is transitioning to no longer providing the Services to Members in the country in which you are resident or from which you use the service; or
(iv) the provision of the Services to you by Incaberry is, in the opinion of Incaberry, no longer commercially viable.
(c) Subject to local applicable laws, Incaberry reserves the right to discontinue or cancel your membership at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the App or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts Incaberry's name or reputation or violates the rights of those of another party.(ii) Incaberry is required to do so by law;
(iii) Incaberry is transitioning to no longer providing the Services to Members in the country in which you are resident or from which you use the service; or
(iv) the provision of the Services to you by Incaberry is, in the opinion of Incaberry, no longer commercially viable.
(d) When the Terms come to an end, all of the legal rights, obligations and liabilities that you and Incaberry have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely.
18. Dispute Resolution
18.1. Compulsory
If a dispute arises out of or relates to the Terms, either party may not 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).
18.2. Notice
A party to the Terms claiming a dispute ('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 Dispute.
18.3. Resolution
On receipt of that notice ('Notice') by that other party, the parties to the Terms ('Parties') must:
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.
18.5. Termination of Mediation
If 14 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.
If a dispute arises out of or relates to the Terms, either party may not 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).
18.2. Notice
A party to the Terms claiming a dispute ('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 Dispute.
18.3. Resolution
On receipt of that notice ('Notice') by that other party, the parties to the Terms ('Parties') must:
(a) Within 14 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
(b) If for any reason whatsoever, 14 days after the date of the Notice, the 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 Law Society of Western Australia or his or her nominee;
(c) 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;
(d) The mediation will be held in, Western Australia, Australia.
18.4. Confidential(b) If for any reason whatsoever, 14 days after the date of the Notice, the 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 Law Society of Western Australia or his or her nominee;
(c) 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;
(d) The mediation will be held in, Western Australia, Australia.
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.
18.5. Termination of Mediation
If 14 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.
19. Venue and Jurisdiction
In the event of any dispute arising out of or in relation to the App, you agree that the exclusive venue for resolving any dispute shall be in the courts of Western Australia, Australia.
20. Governing Law
The Terms are governed by the laws of Western Australia, 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 Western Australia, 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.
21. Independent Legal Advice
Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.
22. 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.