These terms and conditions (Terms) govern the services offered by MyGuestlist Pty Ltd ACN 145 671 709 of 51 Victoria Cres, Abbotsford, VIC, 3067 (we, us or our) through our website at www.myguestlist.com.au (Website).
By creating an Account, you (and the entity you represent) (You or Your) agree to be bound by these Terms.
Otherwise than as set out above, all capitalised terms used in these Terms are defined in the dictionary in clause 18.
OVERVIEW OF SERVICES
We offer various Services which You may subscribe for by creating Your Account, including:
- database and contact management;
- member SMS services;
- guestlist & RSVP management;
- social integration;
- email marketing;
- MyGuestlist for iOS & Android; and
- any other services that we offer from time to time as specified on our Website.You can find additional details about such Services on our Website.
SUBSCRIBING TO OUR SERVICES
- When You first sign-up to receive the nominated Service or Services, You will create a user account which You can use to subscribe to a Service, pay the Fees and otherwise manage Your subscription (Your Account).
- You should ensure that You are ready to subscribe for our Services before You create Your Account. Once Your Account is created, you agree to subscribe for the Services on a month by month basis and we will begin to charge You for our Services in accordance with these Terms.
- We will use our best endeavours to ensure the Services are available to You at all times.
- To enable You to use and access Your Account, we will provide You with personalised Security Details.
- You are responsible for the use, supervision, management and control of those Security Details at all times. You must keep Your Account and Security Details confidential, and are responsible for all activities that occur under Your Account. For the avoidance of doubt, You will be responsible for any (authorised or unauthorised) use of or access to Your Account by any person using your Security Details.
- You must immediately notify us in writing on our Notified Contact Details if You become aware of any actual or potential unauthorised access to Your Account or any accidental or deliberate disclosure or use of your Security Details to any person not specifically authorised by You to access Your Account.
- You must arrange for Your own internet access and any other equipment or services that You require to access Your Account.
- You must immediately notify us in writing if You are unable to access Your Account (i.e. if Your Security Details are not working).
- We may provide you with reasonable directions from time to time in connection with Your use of Your Account and our Services . You agree to comply with any reasonable directions that we provide to you.
- We may provide you with Telephone Numbers where necessary to obtain the benefit of certain Services.
- The Telephone Numbers are made available to You solely for the use of the Services (including enabling you to send and receive SMS messages via the Service), and cannot be used to make or receive calls.
- You will be charged for Your use of the Telephone Numbers in accordance with clause 6.
- If we change the Telephone Numbers, we will:
- provide You with notice via Your Account and inform You of the proposed dates from which the changes will apply, which notice will be provided no less than 14 days prior to the proposed change; and
- use our reasonable endeavours to ensure that replacement Telephone Numbers are made available to You provided that the total number of Telephone Numbers made available and the costs for Your use of such replacement Telephone Numbers accords with the total number of Telephone Numbers approved for Your use pursuant to Your Account.
We may send notices and other communications regarding Your Account, the Services or other matters to You via email. You should update Your Account so that your contact details are current at all times. You can update your communication preferences through Your Account.
- We will charge you a one off setup fee (Set Up Fee) when you subscribe for our Services by creating Your Account.
- We will also charge you our standard monthly Fee.
- All of our Fees, including the Set Up Fee, are outlined in our Price List. The Price List applicable to You when you first sign up for our Services will be provided or disclosed to you by one of our agents before you register Your Account. Those Fees will also be outlined to you during the Account set up process. Our Price List may be updated from time to time in accordance with clause 6.13.
- Certain services and features that we offer incur additional Fees which are outlined in our Price List. You will be prompted to confirm whether You wish to proceed with the relevant service or feature via Your Account before we charge You to access those services or features and provide you with access to them.
- All Fees are payable on a monthly basis.
- Our Fees are calculated from the first day of each calendar month to the last day of each calendar month. If You create Your Account part way through a month, you will receive a “part monthly discount” and will only be charged for that portion of the month that you have obtained our Services (i.e. our Fees will be reduced on a pro rata basis reflecting the date you created Your Account).
- All Fees stated are exclusive of taxes, levies or duties imposed by the tax authorities.
- We will issue a tax invoice to you on or about the last week of each month in respect of:
- the next months’ standard monthly Fee (payable in advance); and
- all other Fees payable in respect of the month of invoice (payable in arrears).
- Our invoices will be emailed to You at the email address specified in the details section of Your Account. All invoices will also be available through the “billing” section of Your Account.
- All Fees are to be paid by direct debit (using a valid debit or credit card) unless we agree (in our sole discretion) that You may pay by another method. Fees will be debited from Your card once a month following issue of an invoice to You in accordance with clause 6.7.
- You will be charged the set up fee (outlined in clause 6.1 above) as well as Your first months’ subscription when you first set up Your Account.
- If you fail to pay our Fees by the due date for payment, we may suspend Your Account until such time as all outstanding Fees have been paid.
- We may change the Fees at any time by notifying you of our updated Price List (which may be by email) at least 30 days’ before the change will apply.
- You may elect to cancel Your subscription in accordance with clause 11.1 of these Terms if you do not wish to continue to subscribe for our Services following a change to our Fees.
- If You elect to pay by debit or credit card, You must provide us with a valid debit or credit card number belonging to You with available credit, at all times, sufficient to pay the applicable Fees. You authorise us, from time to time, to make all charges described in these Terms to that debit or credit card. If You cancel Your debit or credit card or it is otherwise terminated or expires, You must immediately provide us with a new valid debit or credit card number. You authorise us, from time to time, to undertake steps to determine whether the debit or credit card number You have provided to us is a valid debit or credit card number, including conducting credit checks through third party credit agencies.
- You acknowledge and agree that we retain all right, title and interest in and to all MyGuestlist Intellectual Property and that You have no right, title or interest in or to such Intellectual Property Rights.
- We grant You a revocable, non-transferable, non-sub licensable licence to use the MyGuestlist Intellectual Property for the sole purpose of accessing Your Account and using our Services pursuant to these Terms.
- Despite anything else in these Terms, the MyGuestlist Intellectual Property remains our property in all respects regardless of any modification, variation, enhancement or update by us, You or any third party. In addition, we have all right, title and interest in and to any Intellectual Property Rights created in connection with our provision of the Services to You.
- You must immediately notify us in writing if You become aware of any actual or potential unauthorised use of the MyGuestlist Intellectual Property.
- You represent and warrant that:
- Your engagement of us to provide the Services;
- Your provision of Data; and
- the use of Data by us or our licensees in providing the Services,
will not infringe any Law or the rights of any person.
- Without limiting clause 8.1, You represent and warrant that:
- You will comply with all Laws (including Privacy Laws and Spam laws) when accessing Your Account and using our Services;
- You have the capacity to accept and be bound by these Terms;
- You will comply with all reasonable directions we provide to you in respect of Your Account and the Services;
- in respect of any Personal Information that You provide:
- You have obtained all consents from the relevant individuals necessary to enable you to collect such Personal Information and use such information for the purposes of obtaining our Services pursuant to these Terms;
- You have disclosed to those individuals all information required to be disclosed under the Privacy Laws which is consistent with the uses of the Personal Information in connection with our Services; and
- in respect of all Data:
- You own all right, title and interest in and to all Intellectual Property Rights in the Data, subject to clause 8.2(e)(ii);
- to the extent Data contains material owned by a third party, You have obtained all necessary licences for its use in the Data by us and our sub-licensees; and
- the use of the Data by us or our sub-licensees will not infringe any Intellectual Property Rights or any Laws;
- neither you nor your Personnel will:
- copy, reproduce, modify, alter, reverse assemble or reverse compile the MyGuestlist Intellectual Property, or otherwise use the MyGuestlist Intellectual Property other than to access Your Account and use the Services strictly in accordance with these Terms; or
- do anything which is of an offensive, illegal, fraudulent or defamatory nature which may bring disrepute or harm to us or our Personnel;
- You will not:
- transmit computer worms, viruses or any other malicious material or content;
- create or send any electronic messages to third parties fraudulently claiming to be or representing any business, person or entity; or
- create or send any electronic message which contains any obscene, sexually explicit, racist, abusive or defamatory material or any material which breach any Law;
- upload any information into Your Account or otherwise that you do not have a right to make available under any Law or under contractual or fiduciary relationships (such as Personal Information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- You will only provide true, accurate, current and complete information about Yourself as part of Your use of the Services and / or Your Account;
- You will promptly update the information contained in Your Account to keep it true, accurate, current and complete; and
- You will not use or create a false identity, impersonate any person or entity or falsely state or otherwise misrepresent Your affiliation with a person or entity.
- You represent and warrant that:
RELEASE AND INDEMNITY
- To the extent the law permits, You release us from all Claims (whether foreseeable or not) arising from:
- a breach by You of any warranty under these Terms;
- any breach of these Terms by You; or
- any negligence, default or lack of care on Your part.
- You must indemnify and hold us and our Personnel harmless against any Loss we suffer or incur in connection with a breach of these Terms by You or your Personnel except to the extent that the Loss is attributable to the negligence or wrongful act or omission of us. This indemnity is a continuing obligation and survives the termination or expiration of these Terms.
- To the extent the law permits, You release us from all Claims (whether foreseeable or not) arising from:
OUR LIABILITY TO YOU
- You acknowledge and understand that our ability to create and maintain Your Account, provide You with the Services (including any Telephone Numbers) and otherwise fulfil our obligations under these Terms may be reliant on services provided by third parties, which may not always be available, accessible or functioning for reasons beyond our reasonable control.
- Subject to clause 10.3:
- all conditions, warranties and implied terms, whether statutory or otherwise, are excluded in relation to the Services;
- if our Services are defective, our only liability to You will be to re-perform the Services or pay Your reasonable costs of having the Services re-performed (at our election); and
- we exclude any liability for legal costs and disbursements and, without limitation, any indirect or consequential expense, loss or damage, loss or damage to reputation, loss of goodwill, loss of profits, revenue, use, expectation or opportunity, wasted expenditure, lost production or similar losses that You suffer under or in connection with these Terms.
- The Australian Consumer Law provides Consumers with a number of protections and Consumer Guarantees that cannot be excluded or limited. These Terms, and in particular the limitations of liability set out in these Terms, are therefore subject to, and will not apply to the extent that they limit or exclude, such protections and Consumer Guarantees applicable to Consumers. However where the Australian Consumer Law permits us to limit the remedies available in respect of a breach of a Consumer Guarantee, we hereby limit those remedies, at our option, to supplying the Services again or paying the cost of having the Services supplied again.
CANCELLATION AND SUSPENSION
- You may request to cancel Your subscription to our Services through Your Account, in which case we will send You an email requesting that You confirm that cancellation request. Your Account will become inactive within 30 days of the date on which you provide such confirmation. If you cancel Your subscription, You will be charged for all Fees up to and including the date of cancellation.
- We may immediately cancel Your subscription to our Services (thereby cancelling Your Account) if we form a reasonable belief that:
- You are in breach of these Terms (including if you fail to pay any Fees when they fall due);
- You have threatened to breach any part of these Terms;
- Your Security Details have been compromised including where You notify us of any unauthorised use or access to Your Security Details by any person;
- You are subject to an Insolvency Event;
- it is necessary in order to preserve the integrity and security of the Services or the Data;
- a change in the Law will result in the provision of our Services in accordance with these Terms being unlawful; or
- You otherwise do anything which in our reasonable opinion may compromise the integrity, operation, security, or viability of our Services, the Website or Your Account.
- Upon cancellation of Your subscription to our Services (and Your Account) for any reason pursuant to these Terms:
- we will immediately cancel your Security Details and access to the Services and Telephone Numbers; and
- we will extract and provide you with the Extracted Data upon payment of all outstanding Fees that are due and payable as at the date of cancellation.
- In addition to our rights under clause 11.2, we may immediately suspend Your Account if we deem it necessary or prudent to do so due to circumstances beyond our reasonable control, including disruption to network connections or equipment, loss of third party services which we require in order to provide the Services, strikes, lock-outs, labour disputes, acts of God, acts of nature, acts of government or their agencies, fire, flood, storm, riots, power shortages or power failure, war, terrorist acts, sabotage, or inability to obtain sufficient labour, raw materials, fuel or utilities.
- If we suspend Your Account pursuant to clause 11.4, we will:
- provide you with written notice of the fact that Your Account has been suspended and, where possible, the reasons why;
- use our reasonable endeavours to make another comparable services available to you on similar terms (which you may choose to accept or reject at your discretion); and
- not charge you the Fee for the period during which the Services are suspended and no other comparable services are made available to you.
- Subject to any liability which we cannot lawfully exclude or limit, You acknowledge and agree that we will not be liable for any Loss that you may suffer or incur in connection with the suspension of Your Account in the circumstances described in clause 11.4.
VARIATION OF THESE TERMS
- From time to time, we may be required to vary these Terms, including the Services that we offer.
- If we vary these Terms:
- we will post an updated version of the Terms on the Website; and
- You will be notified of the updated Terms and asked to agree to them the next time you log in to Your Account.
- If you do not wish to continue Your subscription following a variation to these Terms, You may notify us in writing, in which case we will cancel Your Account immediately and You will only be charged for any Fees incurred up until the date of termination. We will provide You with Your Extracted Data as soon as possible upon receipt of all amounts due and payable.
- You will be deemed to have accepted the amended Terms if You continue to access and use Your Account and/or our Services following notification of a variation to the Terms pursuant to this clause. You may also be prompted to accept the amended Terms, in which case you will be unable to access Your Account until you do so.
- We acknowledge and agree that You own all Data.
- You agree to grant us an irrevocable, transferable, non-exclusive, perpetual, worldwide, sub-licensable and royalty free licence to use the Data for the purposes of these Terms, including without limitation:
- to create Your Account;
- to provide the Services to You; and
- for the purposes listed in clause 13.3;
- for any other purpose for which You have provided the Data or for which You consent from time to time.
- We may:
- use the Data for sending communications on Your behalf as part of the Services;
- use the Data to create a personalised experience for persons who are contacted through or who interact with the Services;
- aggregate the Data in order to improve performance and the nature of the Services;
- use the Data to produce generic depersonalised profiles (such as the preferences of customers) to enhance the provision of the Services;
- analyse the Data for various purposes such as benchmarking, market research and product analysis generic to industries in relation to both your and our other customers’ use of the Services.
- You must comply with the Privacy Laws and Spam Laws in connection with Your use of Your Account and/or the Services pursuant to these Terms, including without limitation by:
- ensuring that each Member whose Personal Information is included in the Data has been notified or made aware of all matters required under the Privacy Laws (including under Australian Privacy Principle 5);
- ensuring that each Member whose Personal Information is included in the Data has consented to receiving commercial electronic messages for the purposes of the Spam Laws; and
- notifying us immediately if a Member requests their Personal Information be amended, deleted or removed from a mailing list, or otherwise requests not to receive any further unsolicited commercial messages.
- Subject to Your compliance with clause 13.4, we will comply with the Spam Laws in sending electronic commercial messages to Your Members in connection with our Services.
DATA PPROTECTION IF YOU ARE LOCATED IN THE EU / EEA / EU AND/OR GDPR APPLIES
- We will not Process Your Personal Data other than on Your documented instructions, and for the purposes defined in writing by You, from time to time unless Processing is required by Applicable Laws to which we (or any of our Sub-processors) are subject in our provision of the Services.
- instruct us (and authorises us to instruct each Sub-processor) to:
- Process Your Personal Data; and
- in particular, transfer Your Personal Data to any country or territory, as necessary for the provision of the Services; and
- warrant and represent that you are and will at all relevant times remain duly and effectively authorised to give the instruction set out in Clause 14 2.1 on your
own behalf and that of any your affiliates.
This Clause 14 sets out certain information regarding our processing of Your Personal Data as required by Article 28(3) of the GDPR (and, possibly, equivalent requirements of other Data Protection Laws).
- instruct us (and authorises us to instruct each Sub-processor) to:
- Our Personnel
- We will take reasonable steps to ensure that any of our (or our Sub-Processor’s) employees, agents or contractors who have access to Your Personal Data are subject to confidentiality undertakings or professional or statutory obligations of confidentiality
Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for your consumers’ rights and freedoms, we will in relation to Your Personal Data implement appropriate technical and organizational measures against unauthorised or unlawful processing of Your Personal Data, unauthorised access to, or disclosure of, Your Personal Data and against accidental loss or destruction of, or damage to, Your Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected. In assessing the appropriate level of security, we will take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach. Our safeguards for the protection of Your Personal Data comprise: (i) limiting access of personal data to authorised employees/authorised persons who are obliged to keep the personal data confidential; (ii) securing business facilities, data centres, paper files, servers, back-up; (iii) implementing network, device application, database and platform security; (iv) securing information transmission, storage and disposal; (v) implementing authentication and access controls within applications, operating systems and equipment; (vi) not sharing, disclosing or subcontracting the processing of such personal data with any unapproved third parties, unless required to by an instrument of law, without your express written consent; and (vii) where appropriate, may also include the pseudonyimisation or encryption of personal data. “You may implement additional security measures (“Your Security Measures“) from time to time (at the Your absolute discretion) always provided that:
- Your Security Measures are compatible with the measures we have set out above, as determined by us solely, acting reasonably; and
- we will not, nor any of our Sub-Processors, be required to change any of the measures we have set out or to incur any costs implementing or supporting the implementation of Your Security Measures. If additional costs are incurred, we will arrange to pass those costs on to You.
You represent, undertake and warrant at all times, that all Personal Data Processed by us (and our’ Sub-processors) on your behalf has been and will be collected and processed by you, and disclosed to us and/or our Sub-processors, in accordance with all Applicable Laws. Without limiting the foregoing, you warrant and represent that:
- You have taken, and will take, all steps necessary, including obtaining relevant and appropriate consents, provided appropriate fair collection notices and opt-outs and otherwise ensuring all lawful bases and rights in respect of your and our processing of Your Personal Data;
- the processing of Your Personal Data by us (and our Sub-processors) in accordance with this Clause 14 and these Terms is, and will be, at all times compliant with, and in accordance with, all Applicable Laws.
- You authorise us to appoint (and permit each subsequent Sub-processor, to appoint) Sub-processors in accordance with this Clause 14.4.
- You acknowledge and agree that we may continue to use those Sub-processors already engaged by us, as their identities and locations are set out in Annex 1 below (Approved Sub-processors).
- We will provide you with prior written notice of any change in the Approved Sub-processors list and the appointment of any new Subprocessor, including known details of the processing to be undertaken by the Subprocessor. If, within 10 Business Days days of receipt of this notice, your notify us in writing of any objections (on reasonable grounds) to the proposed appointment:
- we will work with You in good faith to make available a commercially reasonable change in the provision of the Services which avoids the use of that proposed Subprocessor; and
- With respect to each new Subprocessor, we will:
- before the Subprocessor first processes Your Personal Data carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Your Personal Data as required by their Terms;
- ensure that the arrangement between us and the Subprocessor (and any subsequent chain of Sub-processors), is governed by a written contract including terms which offer at least a similar level of protection for Your Personal Data as those set out in these Terms; and
- if that arrangement involves a Restricted Transfer
- ensure that the Standard Contractual Clauses are at all relevant times incorporated into the agreement between us and the Subprocessor; or
- before the Subprocessor first Processes Your Personal Data procure that it enters into an agreement incorporating the Standard Contractual Clauses with you (or your relevant affiliate, as procured by the You).
- Data Subject Rights
- We will:
- Promptly notify You if we or any Sub- processor (promptly once we are so notified) receives a request from a Data Subject under Data Protection Laws in respect of Your Personal Data; and
- not (and use best endeavours to procure its Sub-Processor will not) respond to that request except on your documented instructions or as required by Applicable Laws, in which case we will to the extent permitted by Applicable Laws inform You of that legal requirement before responding to the request
- We will:
- Personal Data Breach
- We will without undue delay upon becoming aware of a Personal Data Breach affecting Your Personal Data, provide Your with information (taking into account the nature of processing and the information available to us and when it becomes available) to assist You in your endeavours to meet any obligations to report to regulators or inform Data Subjects of the Personal Data Breach under Data Protection Laws.
- Subject to the reimbursement of our reasonable costs, we will co-operate with You and take such reasonable commercial and practicable steps as are directed by You to assist in the investigation, prevention (as applicable), mitigation and remediation of each Personal Data Breach.
- Deletion or return of Your Personal Data
- Subject to Clauses 14.7.1 and. 7.2 we will promptly and in any event within 180days of the date of cessation of any Services involving the processing of Your Personal Data (the “Cessation Date”), delete and procure the deletion of all copies of those Your Personal Data.
- You may by written notice to us within forty-five (45) days of the Cessation Date require us to:
- return a complete copy of all Your Personal Data by secure file transfer in such format as is reasonably notified by You to us; and
- delete and procure the deletion of all other copies of Your Personal Data as processed by us.
- Audit Rights
- Subject to providing us with reasonable notice and reimbursement of our reasonably incurred costs, and to the extent feasible, we will make available to You, on request, all information necessary to demonstrate compliance with the obligations laid down in this Clause 14, and will allow for and contribute insofar as practicably feasible to audits, including inspections, by You or an auditor mandated by You in relation to the processing of Your Personal Data by us or our Sub-processors. You confirm and agree that you will (and will ensure that each of your mandated auditors) avoid causing or minimise any damage, injury or disruption to our, or our Sub-processors’, premises, equipment, personnel and business while your personnel are on those premises in the course of such an audit or inspection.
- Restricted Transfers
- Subject to Clause 14.9.3, you (as “data exporter”) and each of us and our Sub-Processor, as appropriate, (as “data importer”) hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfer from you to us and our Sub-Processor, as applicable
- The Standard Contractual Clauses will come into effect under Clause 14.9.1 on the later of:
- the data exporter becoming a party to them;
- the data importer becoming a party to them; and
- commencement of the relevant Restricted Transfer
- Clause 14.9.1 will not apply to a Restricted Transfer unless its effect, together with other reasonably practicable compliance steps (which, for the avoidance of doubt, do not include obtaining consents from Data Subjects), is to allow the relevant Restricted Transfer to take place without breach of applicable Data Protection Laws.
- any breach by you or any of your employees, agents or affiliates (as applicable) of this Clause 14; and
- any processing of Your Personal Data in accordance with the provisions of this Clause 14.
- General Terms
- Governing law and jurisdiction
The choice of jurisdiction stipulated in these Terms will apply without prejudice to relevant clause 7 (Mediation and Jurisdiction) and clause 9 (Governing Law) of the Standard Contractual Clauses.
- Order of precedence
In the event of any conflict or inconsistency between these Terms and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail
- Subject to Clause 14.11.2, with regard to the subject matter of this Clause 14, in the event of inconsistencies between the provisions of this Clause 14 and any other agreements between us, the provisions of this this Clause 14 will prevail.
- Changed to Data Protection Laws
These Terms and this Clause 14 may be varied and updated from time to time by us as a result of any change in Data Protection Laws, including any variation which is required to the Standard Contractual Clauses or similar adequacy requirement for cross-border transfers of personal data as may be stipulated under applicable Data Protection Laws.
Should any provision of this Clause 14 be invalid or unenforceable, then the remainder of this Clause 14 will remain valid and in force. The invalid or unenforceable provision will be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner, as if, the invalid or unenforceable part had never been contained in this Clause 14
- Governing law and jurisdiction
In this Clause 14, the following terms will have the following meaning:
“Applicable Laws” means: (a) European Union or Member State laws with respect to any of Your Personal Data in respect of which we are subject to EU Data Protection Laws; and (b) any other applicable law with respect to any Your Personal Data in respect of which we are subject to any other Data Protection Laws; together with all guidelines and other codes of practice issued by an applicable data protection regulator or supervisory authority;
“Your Personal Data” means any Personal Data Processed by us or any of our Sub-processors, on behalf of and under your instructions in connection with the provision of the Services;
“Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection and privacy laws, regulations and secondary legislation of any other country;
“EEA” means the European Economic Area;
“EU Data Protection Laws” means the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, and any successor legislation to the GDPR or relevant national implementing laws, regulations and secondary legislation.
“GDPR” means EU General Data Protection Regulation 2016/679;
“Restricted Transfer” means:
- a transfer outside the EEA of Your Personal Data; or
- an onward transfer of Your Personal Data from us to our Sub-Processor, or between our Sub-processor and any of their Sub-processors,
in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of the Standard Contractual Clauses to be established under these Terms.
For the avoidance of doubt, where a transfer of Personal Data is of a type authorised by Data Protection Laws in the exporting country; for example in the case of transfers from within the European Union to the US under a scheme (such as the current US Privacy Shield) which is approved by the EU Commission as ensuring an adequate level of protection, or any other transfer which falls within a permitted derogation under EU Data Protection Laws, such transfer will not be a Restricted Transfer;
“Standard Contractual Clauses” means the EU model /standard contractual clauses for the transfer of personal data to controller and /or processors established in third countries which do not ensure an adequate level of protection, as set out in Commission Decision C(2010) 593, and as approved and adopted by the Commission in accordance with the examination procedure referred to in Article 93, GDPR, the current version of each set of (controller to controller) and (controller to processor) terms as are set out at https://ec.europa.eu/info/law/law-topic/data-protection/data-transfers-outside-eu/model-contracts-transfer-personal-data-third-countries_en, and as each may be updated, amended or superseded, from time to time;
“Subprocessor” means any person (including any third party and any our affiliates) but excluding ay of our employees), appointed by us or on our behalf to process Personal Data on your behalf under these Terms; and
The terms, “Commission“, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” will have the same meaning as in the GDPR, and their cognate terms will be construed accordingly.
- Words or expressions used in this clause 14 which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this clause.
- Despite any other clause in these Terms, if a party makes a supply (Supplier) under or in connection with these Terms on which GST is payable (not being a supply the consideration for which is specifically described as ‘GST inclusive’):
- the consideration payable or to be provided for that supply but for the application of this Article (GST exclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to the Supplier, an amount equal to the GST exclusive consideration multiplied by the prevailing rate of GST (GST Amount); and
- subject to clause 14.3, the GST Amount must be paid to the Supplier by the Recipient without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.
- The Recipient need not pay the GST Amount in respect of a taxable supply made under or in connection with these Terms until the Supplier has given the Recipient a tax invoice in respect of that taxable supply.
- All notices given under these Terms must be in writing and may be delivered in person or by mail or email or sent by facsimile transmission to the relevant party’s Notified Contact Details. A party may change its Notified Contact Details by notice in writing to the other party.
- A notice sent by regular post will be deemed received on the sixth Business Day after posting.
- A notice sent by facsimile transmission will be deemed received at the time indicated by the sending party’s transmission equipment as the time that the facsimile was sent in its entirety, unless the receiving party informs the sending party that the notice is illegible or incomplete within four business hours of it being transmitted.
- A notice sent by email transmission will be deemed received when the email (including any attachment) is sent to the receiving party at that email address, unless the sending party receives a notification of delivery failure within 24 hours of the email being sent.
- These Terms will be construed in accordance with the laws in force in Victoria and the parties submit to the jurisdiction of the Courts of Victoria.
- If any provision in these Terms is invalid or unenforceable, these Terms will remain otherwise in full force apart from such provision, which will be deemed deleted.
- The failure of a party to these Terms to enforce a provision or the granting of any time or indulgence will not be construed as a waiver of the provision nor of a waiver of the right of the party at a later time to enforce the provision.
- Your Account is not transferrable.
In these Terms:
- words in the singular include the plural and vice versa;
- where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
- a reference to a person is to be construed as a reference to an individual, body corporate, unincorporated association, partnership, joint venture or government body;
- any reference to a party includes that party’s executors, trustees, administrators, successors in title and assigns;
- references to any document (including this document) include references to the document as amended, consolidated, supplemented, novated or replaced and includes all Schedules and annexures; and
- all references to currency are to Australian Dollars.
In these Terms, the following terms are defined as set out below:
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).Business Days means a day when the banks are open for business in Melbourne, Victoria excluding a Saturday, Sunday or public holiday.
Claim means a claim, demand, remedy, suit, injury, damage, loss, cost, expense, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent.
Consumer has the meaning given to it in the Australian Consumer Law.
Consumer Guarantee means any statutory guarantee provided to Consumers under Division 1 of Part 3-2 of the Australian Consumer Law.
Data means all that information You provide to us in connection with the Services, including any Personal Information about You or Your Members , and any text, images, animations, sound and/or video recordings, works and other content included or proposed for inclusion in any communications arising from the Services.
Extracted Data means Data from Your Account which we may extract from our database and returned to you on cancellation or termination of Your Account pursuant to these Terms.
Fee means the fees we charge you from time to time in connection with Your access to Your Account and use of our Services, as set out in our Price List.
GST has the same meaning as in the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999.
Insolvency Event means the happening of any of these events:
- a party suspends payment of its debts generally, is or becomes unable to pay its debts within the meaning of the Corporations Act 2001 (Cth);
- a party enters into, or resolves to enter into, any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them;
- a receiver, receiver and manager, liquidator, provisional liquidator, administrator, trustee or similar official is appointed over any of the assets or undertakings of a party, an application or order is made for the winding up or dissolution of a party, or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of a party, except for the purpose of an amalgamation or reconstruction which has the other party’s prior consent;
- a party goes bankrupt; or
- a party ceases, or threatens to cease, to carry on a business.
Intellectual Property Rights means any and all intellectual and industrial property rights anywhere in the world (including present and future intellectual property rights) including (but not limited to) rights in respect of or in connection with:
- any related confidential information, trade secrets, know-how or any right to have information kept confidential;
- copyright (including future copyright and rights in the nature of or analogous to copyright);
- trade marks, service marks and other related marks; and
- all associated goodwill,
whether or not existing at the date You agree to these terms and whether or not registered or registrable and includes any and all variations, modifications or enhancements to each of them together with any application or right to apply for registration of those rights and includes all renewals and extensions.Loss means all actions, claims, costs (including legal costs on an indemnity basis), damages, expenses, interest, liabilities and losses (including indirect and consequential losses).
Member means a person whose Personal Information is included in a database in connection with our Services, which may include Your customers, potential customers, employees and contractors.
MyGuestlist Intellectual Property means any Intellectual Property Rights owned or used by us under licence including without limitation all Intellectual Property Rights in the Website, any Updates and any Intellectual Property Rights in existence or created in connection with our provision of the Services to You.
Notified Contact Details means:
- in respect of You, Your address and contact details as set out in Your Account; and
- in respect of us:
51 Victoria Cres, Abbotsford, VIC 3067
Personal Information has the meaning given to that term under the Privacy Act 1988 (Cth).
Personnel in relation to a party means that party’s officers, office-holders, committee, members, employees, contractors and subcontractors.
Price List means our standard price list from time to time, which sets out our standard monthly subscription fee as well as the fees we charge for additional services and features that You may obtain through Your Account.
Privacy Laws means all applicable privacy laws including the Privacy Act 1988 (Cth) and the Australian Privacy Principles.
Services means any services that we provide to You from time to time in connection with Your Account.
Security Details means a log-in identification and password to enable you to access Your Account.
Spam Laws means all applicable laws relating to the sending of electronic communications, including the Spam Act 2003 (Cth)
Telephone Numbers means the telephone number(s) which we notify you of from time to time.