WhatWhere Marketplace Agreement

Welcome to WhatWhere! We are excited to have you as a user on our WhatWhere Platform!

Below are some important points for you to be aware of before you become a customer.

1. Disclosures

1. Nothing in these Terms limits your rights under the Australian Consumer Law.
2. Our liability under these Terms is limited to 3 times the amount you paid or received, as the case may be, for a Booking.
3. We will not be liable for any loss or corruption of data, or any emergency or scheduled maintenance that causes the WhatWhere Platform to be unavailable.
4. If you are a Participant, you may terminate these Terms for any reason by deleting your account.
5. If you are a Provider, your Membership will roll over on an annual basis unless you indicate in your account that you do not want your Membership to automatically renew, in which event your Membership and these Terms will expire on expiry of the then current annual term.
6. You may not terminate these Terms before expiry of the then current annual term, other than for breach, or if we have changed the WhatWhere Services included in your Membership or these Terms and the change materially and adversely affects your enjoyment of the WhatWhere Services.
7. You indemnify and hold us harmless for and against any Loss that we may suffer or incur arising out of your breach of a warranty given by you under these Terms.
8. We are not a party to agreements between Providers and Participants, and we are not liable for any Loss that arises as a result of any interaction between Providers and Participants.

2. Who is who

These terms and conditions (Terms) are entered into between Pacific Europa Pty Ltd (ABN 33 648 323 568), an Australian company located at Level 15, 1 O’Connell Street, Sydney, 2000, (WhatWhere, we, us, or our) and you, together the Parties and each a Party.

We provide a platform (WhatWhere Platform) that offers:

1. an online booking and customer management system; and
2. a meta-search platform that enables users of the WhatWhere Platform (Members) to publish, offer, search for, and book services.

Members who publish and offer services are "Providers”. Members who search for, book, or use services are “Participants”. “You” means the person or entity registered with us as either a Provider or Participant, or the individual accessing or using the WhatWhere Platform, as applicable.

If you use the WhatWhere Platform on behalf of your employer or a business entity, you represent and warrant that:

1. you are duly authorised to act on behalf of the business or entity;
2. to bind the business or entity and its personnel to these Terms; and
3. you will comply with these Terms to the extent applicable.

3. Acceptance

You agree to these Terms by accepting them on the WhatWhere Platform. These Terms form a binding legal agreement between you and WhatWhere that governs your right to use our services, including the WhatWhere Platform, (including maintaining and hosting the WhatWhere Platform), facilitating the processing of payments between Providers and Participants, our websites, applications, Additional Services and other offerings from WhatWhere (collectively, the WhatWhere Services).

4. Member Accounts

You must register an account to access and use the WhatWhere Services. Registration is only permitted for legal entities, partnerships and natural persons who are 18 years or older. You represent and warrant that you are not a person or entity barred from using the WhatWhere Platform under the laws of Australia.

You must:

1. provide accurate, current, and complete information during registration and keep your account information up to date;
2. not transfer your account to someone else. You must maintain the confidentiality and security of your account credentials and must not disclose your credentials to any third party; and
3. immediately notify WhatWhere if you suspect that your credentials have been lost, stolen, or your account is otherwise compromised.

You are responsible and liable for activities conducted through your WhatWhere Account, unless such activities are not authorised by you and you are not otherwise negligent (such as failing to report the unauthorised use or loss of your credentials). We may at our discretion, and in accordance with applicable law, ask you to provide identification or other information to ensure the safety of other Members. This may include providing your Working with Children Check where you are an individual, and your Australian Business Number where you are a registered business. Any check or verification performed by us must not be relied upon by you.

5. WhatWhere Platform: Providers

5.1 Accounts

You may create posts which offer activities, experiences, and events such as classes, excursions, educational programs, and a variety of other services for families, collectively, “Provider Services,” and each Provider Service offering is a “Listing”.

It’s easy to create a Listing and you are in control of how you interact with Participants - set your price, availability, and rules for each Listing. You can also use the WhatWhere booking engine and customer management tools to take bookings and manage customers direct from your own website.

5.2 Contracting with Participants

When you receive a booking confirmation through the WhatWhere Platform, you are entering into a contract directly with the Participant and must deliver the relevant Provider Service under the terms and at the price specified in your Listing.

5.3 Independence of Providers

Your relationship with WhatWhere is that of an independent individual or entity and not an employee, agent, joint venturer or partner of WhatWhere. WhatWhere does not direct or control your Provider Service, and you understand that you have complete discretion whether and when to provide Provider Services and at what price and on what terms to offer the Provider Services.

5.4 Creating and Managing your Listing

The WhatWhere Platform provides tools that make it easy for you to set up and manage a Listing. Any terms or conditions that you include in any supplemental contract with Participants must:

1. be consistent with these Terms and the information provided in your Listing; and
2. be prominently disclosed in your Listing description.

Your Listing must include complete and accurate information about your Provider Service, your price (including any additional charges) (Listing Price), and any rules or requirements that apply to your Participants or Listing. You are responsible for your acts and omissions as well as for keeping your Listing information (including calendar availability) and content (like photos) up-to-date and accurate at all times.

5.5 Search Ranking

The ranking of Listings in search results on the WhatWhere Platform depends on a variety of factors, including these main parameters:

1. Participant search parameters (e.g. number of participants, time and duration of the activity, price range);
2. Listing characteristics (e.g. location, price, calendar availability, number and quality of images, other quality signals, type or category of Provider Service, Participant engagement and popularity); and
3. Participant preferences and history (e.g. previous bookings, viewed and saved Listings, location from where the Participant is searching).

Search results may be different on our mobile application than on our website and may also differ in the map view. WhatWhere may allow Providers to promote their Listings in search or elsewhere on the WhatWhere Platform by paying an additional fee as set out on the WhatWhere Platform. We accept no responsibility or liability for the ranking of your Listing.

6. WhatWhere Platform: Participants

6.1 Searches

A Participant can search for Provider Services by using criteria like the type of Provider Service, type of activity, activity location, activity dates, and activity pricing. Participants can also use filters to refine their search results. Search results are based on their relevance to a Participant’s search and other criteria, such as price, availability, location, age of participants and more.

6.2 Making bookings

To book a Provider Service, you must select the relevant Provider Service, supply all requested information and pay all relevant fees through the WhatWhere Platform, at which time the booking becomes a Booking, and you will receive confirmation of the Booking.

On making a Booking, a contract for Provider Services is formed directly between you and the Provider. By making a Booking you are agreeing to the terms of the contract between you and the Provider. The terms of the contract include these Terms, all terms of the Booking, including without limitation, the cancellation policy and any other rules, policies, or requirements identified in the Listing or during checkout that apply to the Booking. It is your responsibility to read and understand these terms.

To the extent there is any inconsistency between these Terms and the Provider’s terms, these Terms will prevail to the extent of the inconsistency.

You must ensure that your participants meet minimum age, proficiency, fitness or other requirements. You must inform the Provider of any medical or physical conditions, or other circumstances that may impact your participants’ ability to participate in, attend or use the Provider Service.

7. WhatWhere Fees

7.1 Participant fees

1. In consideration for providing the WhatWhere Platform, we will charge you a fee for booking a Provider Service as set out on the WhatWhere Platform (Booking Fee).
2. When you book a Provider Service, you must pay all fees and charges for your Booking including the Listing Price, applicable fees such as the Booking Fee, taxes and any other fees identified during checkout at the time of making a Booking.

7.2 Providers: Subscription Fees

1. You must purchase a paid annual membership (Membership) to use the WhatWhere Platform by making an upfront payment of the relevant annual fee set out on the WhatWhere Platform (Subscription Fee).
2. Your Membership will automatically renew for successive 1 year subscription periods, and you will be charged the applicable Subscription Fees on each annual anniversary of your initial payment of the Subscription Fee, unless you indicate in your account that you do not want your Membership to automatically renew, in which event your Membership and these Terms will expire on expiry of the then current annual term.
3. The Subscription Fees are only refundable and cancellable in accordance with these Terms and your rights under the Australian Consumer Law.

7.3 Providers: Changes to Membership

If you want to subscribe for additional WhatWhere Services (Additional Services) you must provide notice to us through the WhatWhere Platform. We may charge you an additional annual fee for these Additional Services as set out on the WhatWhere Platform. If the Additional Services are offered on an annual subscription basis and subject to automatic renewal, you may indicate in your account that you do not want the relevant Additional Services to automatically renew, in which event the relevant Additional Services will expire on expiry of their then current annual term.

We reserve the right to makes changes to our WhatWhere Services included in your Membership, including to add or remove features and functionalities or change the types of Listings we accept or allow on the WhatWhere Platform. If we make such changes to your Membership, we will provide you with at least 30 days’ notice of the change. The changes will apply when the notice period lapses. If the changes adversely and materially affect your enjoyment of the WhatWhere Services, you may cancel your Membership by providing notice to us through the WhatWhere Platform. The cancellation will take effect from the date we apply the changes to your Membership.

7.4 Payment of fees

1. You authorise us to charge your credit or debit card for all fees payable by you under these Terms.
2. You are liable for, and agree to pay:
   1. all amounts owing by you under these Terms when they are due; and
   2. all applicable third-party payment processor fees and taxes for each Booking, and all chargeback amounts (if any) charged by the third party payment processor. The third-party payment processor will deduct these amounts from any amounts owing to you under these Terms.
3. You acknowledge and agree that we have no control over third party payment processors, and your use of the third party payment processor may be subject to additional terms and conditions.
4. In the event of a failed attempt to charge your payment method (for example, your credit card has expired or is no longer valid), we will retry charging you for the relevant amount. We may suspend access to your account if any amount remains unpaid by you after it is due.
5. If you are a Provider, the Listing Fees will be deposited into your merchant account as linked in your WhatWhere Platform Account upon payment by the Participant.
6. You must not attempt to pay or pay any of the fees by unlawful or fraudulent means. If you make a payment by debit or credit card, you warrant that you are authorised to make payment using that card.
7. You agree that we may deduct or set-off from any amount payable by us to you under these Terms, any amounts which are payable by you to us under these Terms.
8. Your payments are processed by our third party payment processor in Australian Dollars on the date the transaction is processed.

7.5 Fee Adjustment

1. We reserve the right to change our fees and to institute new charges at any time (including, for clarity, for any renewal), upon notice to you via email notice, or through posting of such notice on our website, as determined by WhatWhere in our sole discretion.
2. If we make changes to the fees, we will provide you with at least 30 days’ notice of the change. Your use of the WhatWhere Platform following expiry of such notification constitutes your acceptance of any new or increased fees. If the updated fee is not acceptable to you and:
   1. you are a Provider, you may indicate in your account that you do not want your Membership or the Additional Services to which the increased fees apply, as the case may be, to automatically renew, in which event your Membership and these Terms, or the relevant Additional Services, as the case may be, will expire on expiry of the relevant then current annual term; or
   2. you are a Participant, you may terminate these Terms in accordance with clause 16.2(a).
3. Fee changes will:
   1. not affect Bookings made prior to the effective date of the fee change; and
   2. in respect of fees paid upfront on an annual basis, only be effective in the renewal term immediately following the term in which the fee change was notified to you under clause 7.5(b).

7.6 Company and Payment Information

You must keep your business information up to date, including your company name, address, and primary contact. You will also keep your payment method and billing information up to date for the payment of incurred and recurring fees.

7.7. Goods and services tax

1. If GST is payable in relation to the supply of anything by a Party under these Terms, the amount payable will be the consideration specified in these Terms plus an additional amount equal to that GST (if any).
2. The Party that makes the taxable supply must issue a tax invoice to the recipient of that supply.
3. For the purposes of these Terms, the terms used in this clause have the meaning given in section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

7.8 Advertising

You may choose to purchase advertising opportunities as set out on the WhatWhere Platform. These advertising opportunities are subject to the fees and terms and conditions displayed on the WhatWhere Platform or otherwise communicated by us to you. In the event of any inconsistency between these Terms and the advertising opportunity’s terms and conditions, the advertising opportunity’s terms and conditions will prevail to the extent of the inconsistency.

8. Cancellations, Refunds, No Shows and Rescheduling

8.1 Cancellations, no shows and refunds

Each Provider sets their own rescheduling, cancellation, refunds and no-show policy that form part of the terms that are set out in the relevant Listing. The cancellation or refund of any Provider Service is strictly a matter between the relevant Provider and Participant.

Should the Participant and the Provider agree to a refund of the Listing Fee, both the Participant and the Provider agree that the Listing Fee is only refundable in accordance with the Participant’s consumer rights under the Australian Consumer Law and these Terms. If a Participant cancels a Booking, the amount paid to the Provider is determined by the cancellation policy that applies to that Booking.

As a Provider, you should not cancel on a Participant without a valid reason or in accordance with applicable law. To the maximum extent permitted by law, the Booking Fee is not refundable.

8.2 Booking Rescheduling

Participants and Providers are responsible for rescheduling any Booking they agree to make via the WhatWhere Platform.

9. WhatWhere Platform Rules

If you download or access our mobile application from:

1. the Apple App Store, you agree to any terms and conditions contained in the App Store Terms of Service; or
2. the Google Play Store, you agree to the Android Google Inc terms and conditions, including the Google Apps terms of service.

We may use other API’s to provide the WhatWhere Services to you, and you agree that your use of these APIs is subject to the relevant API provider’s terms of use. When using the WhatWhere Platform, you must not, and must not cause any third party, to do anything or attempt to do anything that is unlawful or improper, including:

1. anything that would constitute a breach of a third party’s rights, including intellectual property and privacy rights;
2. failing to act with integrity and failing to treat others with respect;
3. using the WhatWhere Platform for unlawful purposes;
4. interfering with any user of the WhatWhere Platform;
5. using the WhatWhere Platform to send unsolicited electronic messages;
6. engaging in conduct which is deceptive or misleading;
7. attempting to evade enforcement of these Terms, for example by creating a duplicate account or listings;
8. scraping, hacking, reverse engineering, compromising, modifying or impairing in any manner the WhatWhere Platform, including by transmitting viruses and using trojan horses;
9. using automated means to access or collect data or other content from, or otherwise interact with, the WhatWhere Platform;
10. circumventing any security or technological measure used to protect the WhatWhere Platform;
11. taking any action that could damage or adversely affect the performance or proper functioning of the WhatWhere Platform; or
12. using, copying, displaying, mirroring or framing the WhatWhere Platform, any WhatWhere branding, or any page layout or design, without our consent.

10. Communication

We may communicate with you online via the WhatWhere Platform using account notifications, or offline through text message or email. Providers and Participants can communicate offline using the listed contact details before and after a Booking is made.

Providers and Participants must not use the contact details to organise the provision of the Provider Services off the WhatWhere Platform, or otherwise attempt to circumvent the payment of all relevant fees to us, including the Booking Fee and the Provider Fee.

11. Content

You retain ownership of the content you upload to the WhatWhere Platform, such as images, text, video, audio, information and other content (Content). By providing Content, in whatever form and through whatever means, you grant WhatWhere a non-exclusive, worldwide, royalty-free, sub-licensable and transferable license, for the term of these Terms, to access, use, store, copy, modify, prepare derivative works of, distribute, publish, transmit, stream, broadcast, and otherwise exploit in any manner such Content to provide and/or promote the WhatWhere Platform, in any media or platform, known or unknown to date and in particular on the Internet and social networks.

You are solely responsible for all Content that you make available through or on the WhatWhere Platform, and you warrant that:

1. you have all necessary rights, authorities and permissions to grants us the rights contemplated in these Terms in relation to the Content; and
2. neither the Content, nor the use of the Content as contemplated by these Terms, including the uploading, positing or displaying of the Content of the WhatWhere Platform will infringe any third party’s rights, including intellectual property rights, or breach any applicable law.

We do not endorse, and are not liable for, any Content. We may, at any time and at our discretion, remove any Content.

12. What We Own

12.1 WhatWhere IP

All intellectual property rights in intellectual property (including copyright) adapted, modified, developed or created by us or our personnel (including in connection with these Terms), including content made available through the WhatWhere Platform or in the performance of the WhatWhere Services, (WhatWhere IP), will at all times vest, or remain vested, in us.

You must not:

1. remove, alter or obscure any of our copyright, trademark or other proprietary rights notices;
2. use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit any WhatWhere IP except as expressly permitted in these Terms.

Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license for the term of these Terms to:

1. download and use the WhatWhere Platform on your personal device(s); and
2. access, use and view the WhatWhere IP made available on or through the WhatWhere Platform and accessible to you, solely for your personal use if you are a Participant, and for your business use if you are a Provider.

12.2 Content

All intellectual property rights in the Content will remain vested in you. You grant us a revocable, transferable, sub-licensable, non-exclusive licence to use your Content for the purposes of us performing our obligations and enforcing our rights under these Terms.

12.3 Feedback

We welcome your feedback, ideas or suggestions, and you hereby assign to us all right and title to your feedback on delivery of your feedback to us.

13. Privacy and Security

By using the WhatWhere Services, you confirm that you have read and understood our Privacy Policy available here and that you consent to the collection, use, processing, and disclosure of your personal information and aggregated data in accordance with its terms. You understand that your personal information will be collected, used, transferred to, and processed in Australia as part of your use of the WhatWhere Platform.

Our Privacy Policy is not a contract and does not form part of these Terms. We may update our Privacy Policy from time to time. We cannot guarantee that unauthorised third parties will not gain unauthorised access to the WhatWhere Platform. You acknowledge that you provide your information at your own risk.

14. Confidentiality

14.1 Confidential Information

We have disclosed or may disclose proprietary or non-public business, technical, financial, or other information (Confidential Information) to you. Our Confidential Information expressly includes non-public information regarding features, functionality, and performance of the WhatWhere Platform, including security and reliability related information.

14.2 Obligations

You must:

1. use our Confidential Information only for the purpose of evaluating whether or not to use (or continue to use) the WhatWhere Platform;
2. not disclose our Confidential Information to parties other than your employees, contractors, affiliates, agents, or professional advisors (Representatives) who need to know it and who have a legal obligation to keep it confidential; and
3. ensure that your Representatives are subject to no less restrictive confidentiality obligations than those in these Terms in relation to the Confidential Information.

Notwithstanding the foregoing, you may disclose the Discloser’s Confidential Information:

1. if directed by us; or
2. to the extent required by applicable legal process, provided that you use commercially reasonable efforts to:
   1. promptly notify us in advance, to the extent permitted by law; and
   2. comply with our reasonable requests regarding your efforts to oppose the disclosure.

The obligations in this clause 14.2 will survive for so long as these Terms are in effect and for five years thereafter.

15. Warranties

You acknowledge and agree that:

1. we only offer the WhatWhere Services, and that we are not a party to the contracts entered into between Providers and Participants;
2. we have no control over the conduct of Members, and we do not own, control, offer or manage any Listings or Provider Services;
3. WhatWhere is not acting as an agent in any capacity for any Member;
4. the WhatWhere Platform is provided on an “as is” and “as available” basis and we have the right but do not have any obligation to monitor the use of the WhatWhere Platform and verify information provided by our Members;
5. many Provider Services carry inherent risks, including the risk of illness, bodily injury, disability, or death, and in making a Booking for, or providing, Provider Services, you assume all risks in such services;
6. data loss is an unavoidable risk when using software. To the extent that you input any data into the WhatWhere Platform, you must maintain a backup copy of such data; and
7. you have determined the suitability of the Provider and the Provider Service prior to making a Booking.

You warrant that:

1. you will not use the WhatWhere Platform, including the WhatWhere IP, in any way that competes with our business;
2. you will only use the WhatWhere Platform in accordance with these Terms;
3. there are no legal restrictions preventing you from entering into these Terms;
4. you will comply with all applicable laws related to the use of the WhatWhere Services and your use or provision of Provider Services, including the Privacy Act 1988 (Cth);
5. all information and documentation that you make available to us in connection with these Terms is true, accurate and complete; and
6. where you are a Provider:
   1. you hold a current and valid Working with Children Check;
   2. you are appropriately qualified and have the necessary knowledge and skills to provide your Provider Services; and
   3. you are solely responsible for determining which projects to accept, and the timing, manner, processes and methods for providing your Provider Services and the price that a Participant is to pay for such Provider Services. You are not our employee, and we do not in any way control the Provider Services that you offer. You are solely responsible for paying any taxes on amount received by you under these Terms.

16. Term and Termination

16.1 Term

The agreement between you and WhatWhere under these Terms is effective when you access the WhatWhere Platform (for example to create an account) and remains in effect until either you or we terminate the agreement in accordance with these Terms.

16.2 Termination for convenience

If you are a Participant, you may terminate these Terms for any reason and at any time by deleting your account. We may terminate these Terms for any reason by providing you 30 days’ notice via email or using any other contact information you have provided for your account.

16.3 Termination for breach

Either Party (Non-defaulting Party) may terminate these Terms if, in the Non-defaulting Party’s reasonable opinion, the other Party has breached these Terms.

16.4 Effect of Termination or expiry

If you are a Provider and terminate these Terms, any confirmed Booking(s) will be automatically cancelled, and your Participants will receive a full refund of the Listing Fee, which you agree to pay on termination. If you are a Participant and you terminate these Terms, any confirmed Booking(s) will be automatically cancelled, and any refund will depend upon the terms of the relevant Service Provider’s cancellation policy as specified on the Listing at the time of making the Booking. To the maximum extent permitted by law, the Booking Fee is not refundable.

If you are a Provider and we terminate these Terms in accordance with clause 16.2(b) or you terminate these terms in accordance with clauses 7.3(b), 16.2(a), or 22.9 then we will issue you with a pro-rata refund of the upfront Subscription Fees paid by you having regard to the date of termination and the time remaining in the then current annual term.

On expiry or termination of these Terms:

1. we will delete your account, and we reserve the right to delete all of the data associated with your account. You are not entitled to a restoration of your account or any of your Content;
2. you will not be able to access the WhatWhere Services; and
3. where we terminated these Terms for breach, you must not register a new account or access or use the WhatWhere Platform through an account of another Member.

For the avoidance of doubt, expiry or termination of your Membership results in expiry or termination, as the case may be, of these Terms.

16.5 Suspension

If we reasonably suspect that you have breached these Terms, and that that breach may negatively affect us or another Member’s use of the WhatWhere Platform, we may immediately and without notice suspend your access to the WhatWhere Platform for a period of 14 days while we investigate the potential breach. You agree to cooperate fully in any such investigation. You acknowledge that this right is proportionate and necessary to protect our rights and the rights of other Members.

16.6 Survival

Termination of these Terms does not affect any accrued right or liability of either Party, nor will it affect the coming into force or the continuation in force of any provision of these Terms that is expressly or by implication intended to come into or continue in force on or after the expiry or termination.

17. Modification of these Terms

WhatWhere may modify these Terms at any time. When we make material changes to these Terms, we will post the revised Terms on the WhatWhere Platform. If you disagree with the revised Terms, you may terminate these Terms in accordance with clause 16.2. Your continued access to or use of the WhatWhere Platform will constitute acceptance of the revised Terms.

18. Australian Consumer Law

Nothing in these Terms modifies or excludes the warranties, conditions, undertakings and other legal rights that you have under Schedule 2 to the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law). To the maximum extent permitted by law, all warranties, conditions and undertakings not guaranteed by the Australian Consumer Law are expressly excluded, except to the extent that such conditions and warranties are expressly set out in these Terms. Our liability for any Loss which relates to a claim under the Australian Consumer Law, is limited to either:

1. resupply of the services to which Loss relates; or
2. refund of the fee paid in respect of the portion of the services to which the Loss relates.

19. Limitations on Liability

To the maximum extent permitted by law, our aggregate liability for all claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees (Loss) arising under these Terms is limited to:

1. for Participants, 3 times the amount you paid for the relevant Booking(s) giving rise to the liability; or
2. for Providers, 3 times the amount paid to you for the relevant Booking(s) giving rise to the liability.

To the maximum extent permitted by law, we will not be liable for any loss or corruption of data, or any emergency or scheduled maintenance that causes the WhatWhere Platform to be unavailable. Exampt in the case of a Member’s wilful breach of these Terms, to the maximum extent permitted by law, a Member’s liability for Loss under these Terms is limited to:

1. in the case of Participants, 3 times the amount you paid for the relevant Booking(s) giving rise to the liability; or
2. in the case of Providers, 3 times the amount paid to you for the relevant Booking(s) giving rise to the liability.

Neither Party will be liable for any incidental, special, exemplary or consequential damages, including, to the maximum extent lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services. A Party’s liability under these Terms will be reduced proportionately to the extent that the relevant Loss was caused or contributed to by the other Party.

20. Indemnification

To the maximum extent permitted by applicable law, you agree to release, defend, indemnify, and hold WhatWhere (including WhatWhere affiliates and their personnel) harmless from and against Loss arising out of:

1. your breach of any warranties given by you under these Terms; or
2. your interaction with any Member, provided that this indemnity will not apply to the extent that the Loss was directly caused by our wilful misconduct or gross negligence.

21. Dispute resolution

21.1 Notice of Dispute

If there is a dispute between the Parties in connection with these Terms, then within 30 business days of a Party notifying the other Party of a dispute the authorised representatives of each Party will meet with a view to resolving the dispute.

21.2 Mediation

Where the process in clause 21.1 fails to resolve the dispute to each of the Party’s reasonable satisfaction, the Parties will appoint a mutually agreed third party mediator to mediate the dispute, the costs of which will be shared equally between the Parties.

22. Miscellaneous

22.1 Assignment

A Party must not transfer any right or liability under these Terms without the prior consent of each other Party. These Terms are for the benefit of each Party and their respective successors and lawful assigns.

22.2 Applicable law and Jurisdiction

These Terms are governed by the laws of New South Wales, Australia, without regard to its conflicts of law provisions. Each Party submits to the non-exclusive jurisdiction of the courts of New South Wales and any courts competent to hear appeals from those courts.

22.3 Severability

If any clause or any part of any clause in these Terms is in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal. If this is not possible, the clause (or where possible, the offending part) is to be severed from these Terms without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses), which will continue in full force and effect.

22.4 No Waiver

If either Party delays in exercising any right, that delay does not constitute a waiver of that right, nor will any waiver (either wholly or in part) of any particular right operate as a waiver of the same or any other right.

22.5 Email and Notices

You will receive administrative communications from us using the email address or other contact information you provide for your WhatWhere account. You agree to receive promotional emails from us, and you may opt out of receiving such emails at any time.

22.6 Third-Party Services

The WhatWhere Platform may contain links to third-party websites, applications, services or resources, or display third party advertising (Third-Party Services) that are subject to different terms and privacy practices. WhatWhere is not responsible or liable for any aspect of such Third-Party Services and links to such Third-Party Services are not an endorsement. We may receive a benefit, including a referral fee or commission, if you use Third Party Services or for featuring certain Third Party Services on the WhatWhere Platform.

22.7 Force Majeure

As between WhatWhere and a Member, neither shall be liable to the other for any delay or failure to perform resulting from abnormal or unforeseeable circumstances outside their reasonable control, the consequences of which would have been unavoidable despite all efforts to the contrary, including, but not limited to, acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, pandemics, epidemics or disease, strikes or shortages of transportation facilities, fuel, energy, labour or materials.

22.8 Apple

To the extent that you are using or accessing the WhatWhere Platform on an iOS device, you acknowledge and agree that these Terms are entered into between you and us, and that Apple Inc (Apple) is not a party to these Terms. Apple is not responsible for the WhatWhere Platform and its content. You agree to comply with any third-party terms when using the WhatWhere Platform, including any Usage Rules set out in Apple Media Services Terms and Conditions. Apple has no obligation whatsoever to furnish any maintenance and support services to you in respect of the WhatWhere Platform. If the WhatWhere Platform fails to conform to any applicable warranty, you may notify Apple, who will refund you the purchase price for the WhatWhere Platform. To the maximum extent permitted by applicable law, Apple does not have any further warranty obligations with respect to the WhatWhere Platform and any other claims, losses, liabilities, damages, costs or expenses attributable to a failure to conform to any warranty will be our responsibility. You acknowledge that we, not Apple, are responsible for addressing any claims from you or any third party relating to the WhatWhere Platform or your possession and/or use of the WhatWhere Platform, including, but not limited to: product liability claims; any claim that the WhatWhere Platform fails to conform to any applicable legal or regulatory requirement; and claims arising under consumer protection, privacy or similar legislation. These Terms do not limit the rights that you may have under the Australian Consumer Law. You acknowledge that in the event of any third party claiming that the WhatWhere Platform or your possession and use of the WhatWhere Platform infringes their intellectual property rights, Apple will not be responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim. You represent and warrant that: you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and you are not listed on any U.S. Government list of prohibited or restricted parties. You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms.

22.9 Variation

We may amend these Terms at any time on notice to you. Your continued use of the WhatWhere Services constitutes acceptance of these Terms as amended. If the amendment materially and adversely affects your enjoyment of the WhatWhere Services, you may terminate these Terms by providing notice to us through the WhatWhere Platform. The cancellation will take effect from the date we amend these Terms.

Last updated: March 2026