Terms and Conditions

for Mynders

 
 
 
 

As at 18 March 2018

Highlights

Below are some highlights from the legal Terms & Conditions but please make sure you read the full document.

HM stands for Hoek Mynder Pty Ltd ATF Mynder Unit Trustwhich is trading as Mynder.  Mynders are the babysitters who attend your bookings.

Mynder’s Warranties & Screening (Clause 6)

·       HM will ask you for information to prove your suitability to be a Mynder.  You warrant that all information provided is true and accurately describes your skills, abilities and prior experience.

Mynder Prices (Clause 7)

·       Mynder Prices are payable directly to the Mynder, not to HM.

·       You should agree with the Family at the start of the booking the costs you are likely to incur during the booking, but should also claim any other reasonable costs not foreseen at the start of the booking.

·       Mynder is not liable for any costs you cannot recover from the Family, but will help where possible to resolve disputes.

Light Housework (Clause 8)

·       You should agree with the Family what work is to be completed at the start of the booking.

·       At the end of the booking you and the Family should discuss work actually completed and they should pay you the applicable hourly rate for this.

·       Remember that taking care of the children is the number one priority and not all housework may be completed if the children require attention.

Employment Status (Clause 7)

·       Mynders are not employed by HM.  Families are responsible for giving Mynders direction regarding the duties required to be performed during the booking.  You are responsible for your own taxation and superannuation obligations.

Bookings (Clause 8)

·       The minimum booking period is 3 hours and this is the minimum period payable even if the Family comes home early.

·       On confirmation that a booking has been allocated to you, you will contact the Family immediately to confirm the details.  You will re-confirm the booking 24 hours before the start time.

·       On the day of the booking you will:

·       Turn up on time;

·       If unavoidably delayed, contact the Family and HM asap;

·       Never be under the influence of drugs or alcohol;

·       Not smoke during the booking;

·       Never take anyone else with you to the booking;

·       Treat all members of the Family with respect and be courteous and enthusiastic;

·       Never leave the children alone;

·       Treat the Family’s home/other location with respect and leave it in at least as good a state as when you arrived;

·       Not use the Family’s private telephone unless there is an emergency;

·       Not use the Family’s internet access without permission;

·       Not allow anyone else into the booking location;

·       Never hand over children to anyone other than to the people you met at the start of the booking, unless there is a pre-agreed arrangement and the Safe Word is provided.

·       All bookings with you should be made through the Mynder App, not directly with you, either by the Family or people they refer you to.  You will be removed from the Mynder App if you accept bookings directly from a Family you met through the Mynder App or from their referrals.

Cancellations (Clause 9)

·       If you are unable to attend a booking you must contact HM asap.  You should not organise your own replacement.

·       If a Family cancel’s with less than 24 hours' notice, they will be charged for the minimum booking period.

·       If they provide 24-48 hours' notice they will be charged 50% of the minimum booking period.

·       Cancellation fees (net of GST, unless you are GST registered) will be remitted to you to compensate for loss of income (provided they have been paid by the Family).

·       A processing fee of 10% + GST will be deducted from cancellation fees paid to you.

Safety & Medical Matters (Clause 8)

·       Safety of you and the children is of primary importance.

·       You will ensure that the booking location is safe at the start of the booking and discuss any concerns with the Family.

·       You agree to treat our Families with respect, and on request, provide photo ID to them.

·       If a child requires medical treatment by you, e.g. administering of medicine, this should be notified by the Family as a Special Requirement in the booking request, and all instructions written down on the Mynder Information Form and discussed with you at the start of the booking.  Do not accept medical instructions unless they are written down.

Insurance (Clause 8)

·       You are covered by HM’s Public Liability insurance.  You are responsible for any other insurances required to cover you in the Family’s home or other location.

Intellectual Property, Confirdential Information and Feedback (Clause 10)

·       You agree that your profile information may be used by HM to promote the service e.g. via the Mynder website and Facebook.

·       Feedback provided may be shared with the relevant Family and published on our website and/or App.

Termination (Clause 12)

·       You can terminate at any time by advising HM in writing that you no longer wish to provide services.  You are required to honour any existing bookings during the 7 day notice period.

·       We can terminate your services at any time by advising you in writing.

Full Terms of Service

1.             RECITALS

1.1         The Mynder App and Services are made available by Hoek Mynder Pty Ltd ATF Mynder Unit Trust trading as Mynder (HM). By downloading the Mynder App, the Mynder has requested and HM has agreed to provide the Services to the Mynder, subject to the terms and conditions set forth in this Terms of Service (these Terms).

1.2         By completing the download of the Mynder App and agreeing to have a profile published in the Mynder App the Mynder acknowledges and agrees that they have read and understood the terms and conditions set forth in these Terms and the Mynder agrees to be bound by them.

1.3         If the Mynder does not agree with these Terms, the Mynder must stop providing the Services in accordance with Clause 12 and delete the Mynder App.

2.             DEFINITIONS AND INTERPRETATION

2.1         Definitions

In these Terms, unless the context otherwise requires:

Booking means the request lodged through the Mynder App or via telephone (call or SMS) or email for a Mynder to attend the Family’s premises or other nominated location to provide the Mynder Services;

Booking Fee means the amount payable to HM for administering the Booking request;

Cancellation Fee means the fee payable to HM calculated pursuant to clause 9.1;

Confidential Information means all of the following: (a) the trade secrets of any Party; (b) the names of all past, present, and prospective Consumers, including all records regarding Products sold or supplied to them; (c) the names of all past, present, and prospective employees of such Party; (d) the Party’s past, present, and prospective systems, methods and procedures used in the operation of such Party’s business; (e) any other oral, written, electronic or recorded information of any Party’s business, products, financial condition, operations, assets or liabilities; (f) any documentary information that is marked “Confidential”, “Private”, “Secret”, “In Confidence” or “Not to be disclosed”; (g) all notes, analyses, summaries, compilations, studies projections, forecasts budgets, price list or records of any Party that is marked confidential or which by its nature is confidential.

Confidential Information excludes information (a) generally available in the industry other than as a result of a wrongful disclosure, (b) independently acquired or developed by a party without breach of these Terms, or (c) available to a Party on a non-confidential basis from a third person not bound by any confidentiality agreement or fiduciary obligation owed to the other Party.

Costs means the reasonable costs incurred by the Mynder whilst providing the Mynder Services, as agreed in advance with the Family, or reasonable costs incurred by the Mynder whilst providing the Mynder Services due to unforeseen circumstances;

Family means the parent or legal guardian, or a short-term guardian authorised by the parent or legal guardian, of the children for which the Mynder Services are required;

GST means Goods and Services Tax as defined under the GST Act;

GST Act means A New Tax System (Goods and Services Tax) Act1999 (Cth);

HM means Hoek Mynder Pty Ltd ATF Mynder Unit Trut ABN 36 862 764 505 trading as Mynder;

Intellectual Property includes but is not limited to copyright, trademarks, designs, patents, processes and all other intellectual property that is capable of legal protection, regardless of whether such legal protection has been formally obtained;

Invoice means an invoice that complies with the taxation and other applicable laws of the country in which the invoice is issued;

Law means all applicable legislation, Acts, rules, regulations and by-laws current in the Territory together with all amendments and replacing laws;

Light Housework Prices means the amount payable by the Family to the Mynder in the event that additional light housework is requested by the Family to be undertaken by the Mynder during the Booking;

Minimum Booking Period means three (3) hours;

Mynder means the babysitter provided by HM in accordance with the Family’s instructions to provide the Mynder Services.

Mynder App means the smartphone application made available by HM for use as an online booking, management, and communication platform for use in the child care and babysitting industry;

Mynder’s Content means any and all data, tax, images, audio or video material posted by a Family, incorporated in the Mynder profile, in any medium produced and provided via the Mynder App by a Mynder;

Mynder Prices means the hourly rates payable to the Mynder for providing the Mynder Services;

Mynder Services means the child care and babysitting services to be provided by the Mynder to the Family; and

Notice means a notice in writing including those sent by facsimile, letter, email and telex and conveyed in accordance with these Terms

Party or Parties means the Parties to these Terms as specified in Item 1 of the Application Form, and includes their lawful successors and assigns. Any reference to a party will include, where applicable, any subsidiary controlled by a Party or by the same persons who control that Party;

Services means the screening, placement and administrative services for the child care and babysitting industry provided by HM to the Family through the Mynder App;

Term means the term of these Terms starting on the date the Mynder accepts the terms and conditions of these Terms and ending on the date the Mynder ceases to use the Mynder App and Services, unless these Terms are terminated by either Party in accordance with clause 12 of these Terms.

2.2          Interpretation

In these Terms:

(a)        Words importing any genders include all genders;

(b)        Words importing the singular include the plural and vice versa;

(c)        A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them;

(d)        A reference to a person includes anybody that is recognised by Law in the Territory as such, whether as a natural person or a body corporate;

(e)        A reference to a party to these Terms or another Terms of Service or document includes the party’s successors and permitted substitutes or assigns (and, where applicable, the party’s legal representatives);

(f)         A reference to currency shall mean Australian Dollars (AUD) inclusive of any taxes; and

(g)        A reference to legislation or regulations shall include all amendments and re-enactments.

3.              REFERRAL

3.1          HM, in pursuance of the Services, will refer the Mynder to appropriate Families for the provision of the Mynder Services.

3.2          The engagement shall continue for the Term, unless terminated earlier in accordance with clause 12 of these Terms.

4.              HM’S PAYMENT

The Mynder acknowledges and agrees that the only remuneration payable to HM is the Booking Fee to be paid by the Family to HM. Any Mynder Prices will be paid to the Mynder directly by the Family.

5.              REGISTRATION INFORMATION AND PASSWORDS

5.1          The Mynder must register to the Mynder App in order to obtain full functionality. By registering within the Mynder App and providing any such data or other personal information:

(a)            the Mynder agrees that all information provided during the registration process is true and accurate and the Mynder will update this information in order to keep it current, complete and accurate; and

(b)            the Mynder agrees to the terms of our Privacy Policy.

5.2          During the registration process, the Mynder will be asked to select a password for the Mynder’s User account. The Mynder agrees to keep the Mynder’s password confidential at all times and must not disclose it to any third parties. The Mynder agrees to be fully responsible for activities that relate to the Mynder’s User account or the Mynder’s password. If the Mynder has reason to believe that the Mynder’s password has been obtained by someone else without the Mynder’s consent, the Mynder must inform us immediately to disable the Mynder’s User account.

6.              MYNDER’S WARRANTIES AND SCREENING

6.1          The Mynder agrees to provide all information requested by BSS for the purpose of ascertaining the Mynder’s skills, abilities, and prior experience for, or any issues that may impact on, the provision of the Mynder Services. The Mynder warrants that all information provided to BSS for the purpose of these Terms is up to date and accurately describes the Mynder’s skills, abilities and prior experience.

6.2          The Mynder warrants that it is an Australian permanent resident or citizen, or, in the event that the Mynder is a not an Australian permanent resident or citizen, the Mynder warrants that it holds the necessary visa in order to undertake work in Australia and that it will, during the course of these Terms, comply with the conditions of its visa.

6.3          The Mynder warrants that it holds all necessary permits and licenses in order to provide the Mynder Services, including but not exclusive to any working with children permits, police checks and first aid qualifications as required by Mynder.

6.4          The Mynder agrees that the Mynder Prices is an accurate and fair calculation of the remuneration that is applicable to the Mynder for the provision of the Services. The Mynder may only charge the Family the Mynder Prices as they appear on the Mynder App and the Mynder may not vary such Mynder Prices.

6.5          The Mynder acknowledges and agrees that the following screening services will be undertaken:

(a)            Checking of a minimum of two (2) references;

(b)            Verification of any qualifications listed on the Mynder profile, Police Check and Working with Children Check; and

(c)            A face to face interview (in person or via video conference).

The Mynder acknowledges and agrees that HM is not required to make any further enquiries outside the above and HM will not be held responsible for any non-disclosure by the Mynder for any matters or issues not disclosed through the screening practices specified under this clause 6.4.

6.6          The Mynder App and Services are provided to the Mynder for individual use and personal use. The Mynder must undertake its own due diligence in using the Mynder App and Services to ensure that the Mynder App and Services are suitable for its requirements and fit for its purpose.

7.              CONTRACT WITH FAMILY

7.1          The Mynder acknowledges that it is not an employee or agent of HM. For the avoidance of doubt: the Mynder itself provides the Mynder Services. It is up to the Mynder to offer the Mynder Services, which may be requested by Families through the Mynder App. HM only acts as an intermediary between the Mynder and the Family. The provision of the Mynder Services by the Mynder to the Family is therefore subject to an agreement to be entered into between the Family and the Mynder. HM shall never be a party to such an agreement.

7.2          The Mynder acknowledges and agrees that any and all Mynder Prices, including any Costs and Light Housework Prices is to be paid by the Family to the Mynder directly. HM may provide assistance to the Mynder for the resolution of any disputes regarding payment but will not be liable for any amounts outstanding.

7.3          The Mynder acknowledges that the Mynder is not an employee of HM, there is no partnership, joint venture or a franchise agreement. Neither Party may claim or hold itself out as having any other relationship, authority, right or entitlement to represent or act as agent of the other or to have any interest or shareholding in the other. HM does not supervise the Mynder and the Family will supervise all activities undertaken during the Booking in conjunction with the Mynder.

7.4          The Mynder acknowledges that they are responsible for their own taxation and superannuation obligations.

8.              BOOKINGS

8.1          Once a booking has been confirmed to the Mynder, the Mynder must immediately contact the Family in order to finalise the Booking arrangements, such as the premises or nominated location, times, Costs, light housework services, any medical treatments required to be administered, and any other relevant requirements.

8.2          The Mynder must also contact the Family at least 24 hours prior to the Booking start time for final confirmation.

8.3          For each Booking, the Mynder agrees to:

(a)            arrive at the Family’s premises or nominated location on the agreed time or, if a delay occurs, contact the Family and HM as soon as possible;

(b)            verify the Family by requesting photographic identification;

(c)            provide photographic identification to the Family, if requested;

(d)            ensure the Booking environment is a safe one and discuss any concerns with the Family before they leave the location;

(e)            not perform the Mynder Services while under the influence of drugs and/or alcohol;

(f)             not smoke during the booking in the presence of the children;

(g)            not bring any invitees or any other third parties whatsoever to the Family’s premises or nominated location;

(h)            treat the Family with respect and dignity;

(i)              ensure that the children are supervised at all times;

(j)              treat the Family’s premises or nominated location with respect and ensure that the area is left in the same condition as it was at the start of the Booking time;

(k)            provide medical treatment for existing conditions to the children as specified in written instructions provided by the Family;

(l)              provide emergency first aid if required;

(m)          contact the Family and authorities in the event of any emergency;

(n)            not use the Family’s private telephone unless in the event of an emergency;

(o)            not use the Family’s Internet access without prior permission; and

(p)            not hand over the children to any other person other than the Family met at the start of the Booking, unless there is a prior written agreement or a safe word is provided by the Family.

8.4          The Sitter acknowledges and agrees that HM will not be responsible for any liabilities that may arise from the Mynder’s failure to comply with the requirements stipulated in clause 8.3.

8.5          The Family agrees to provide a safe working environment for the Mynder whilst undertaking the Mynder Services. HM is not liable for any loss or damage arising from any injuries or issues sustained at the Family’s premises or nominated location. While Mynders are covered under the HM public liability insurance, the Mynder must keep current and sufficient insurance to cover themselves when travelling to and from a booking and when working for a Family.

8.6          The Family will discuss Light Housework requirements with the Mynder and agree work to be completed.  Light Housework will only be completed when the children do not require the Mynder’s attention.

8.7          The Mynder may not liaise directly with the Family, or with anyone referred by the Family, without any reference to HM for any further Bookings. All Bookings must be made through the Mynder App and the appropriate fees paid by the Family. If the Mynder makes a Booking with a Family or anyone they refer outside of this arrangement, all applicable fees will become payable by the Family to HM as if such a Booking is made through the Mynder App, and the Mynder will be removed from the Mynder App and will no longer eligible to receive bookings.

8.8          The Mynder acknowledges and agrees that HM will transmit the Mynder’s personal information to Families. In all other circumstances, HM warrants that the Mynder’s personal details will not be disclosed to any third parties without the Mynder’s express written consent.

8.9           If a Mynder fails to arrive on time for a booking without notifying the Family or Mynder of the delay, and another Mynder is sent to complete the booking, the initial Mynder forfeits any right to that booking and any related compensation.

9.              CANCELLATIONS

9.1          In the event of cancellations:

(a)            if a Booking is cancelled with less than twenty four (24) hours’ notice, the Family will be charged the Mynder Prices + GST for the Minimum Booking Period to compensate the Mynder; and

(b)            if a Booking is cancelled with twenty four (24) to forty eight (48) hours' notice, the Family will be charged 50% of the Mynder Prices + GST for the Minimum Booking Period to compensate the Mynder.

9.2          HM will invoice the cancellation fees, as calculated per clause 9.1, to the Family, collect payment, and remit any cancellation fees (excluding GST, unless the Mynder is registered for GST) to the Mynder. The Mynder acknowledges and agrees that HM will only be able to remit the cancellation fees if HM is able to collect payment from the Family.

9.3          HM will charge a processing fee of 10% + GST and deduct this from the cancellation fee to be remitted to the Mynder.

9.4          The Mynder acknowledges and agrees that BSS will only remit the cancellation fee if BSS is able to collect payment from the family.

9.5          In the event that the Mynder is unable to attend a Booking, the Mynder must contact BSS as soon as possible to ensure that a replacement Mynder is made available to the Family. The Mynder is not authorised to arrange their own replacement Mynder.

10.          INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION & FEEDBACK

10.1       HM is the exclusive owner of all of HM’s Intellectual Property. The Mynder must not do anything or omit to do anything which could detrimentally affect the ownership of HM’s Intellectual Property.

10.2       Each Party undertakes not to use or disclose to any other Person or entity any of the other Party’s Confidential Information unless written consent has been granted and will only use such Confidential Information in good faith and for the proper purposes of these Terms and subject to any restrictions imposed by the Party that is the provider of the Confidential Information.

10.3       HM welcomes and encourages Mynders to provide feedback, comments, and suggestions for improvements of the HM App and Services. The Mynder may submit feedback by emailing HM at feedback@mynder.com.au. Any opinions, advice, statements, offers, or other information or content or made available by the Mynder to HM are those of the respective authors or distributors and not of HM. The Mynder acknowledges and agrees that not all feedback provided to HM will be published through the Mynder App. The Mynder grants HM a non-exclusive, royalty-free, perpetual license to use, copy, create, modify, and display such feedback through the Mynder App, website and other material.

10.4       The Mynder must not add Mynder’s Content to the Mynder App:

(a)            unless the Mynder holds all necessary rights, licences and consents to do so;

(b)            that would cause the Mynder or HM to breach any law, regulation, rule, code or other legal obligation;

(c)            that is or could reasonably be considered to be obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, blasphemous, in breach of confidence or in breach of privacy;

(d)            that is unsolicited, undisclosed or unauthorised advertising;

(e)            that are software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;

(f)             that would bring us, or the Mynder App, into disrepute; or

(g)            that infringe the Intellectual Property or other rights of any person.

10.5       The Mynder agrees to keep all records necessary to establish that Mynder’s Content does not violate any of the requirements under clause 10.4 and make such records available upon BSS’s reasonable request. The Mynder retains ownership of the Intellectual Property and proprietary rights in any Mynder’s Content.

10.6       The Mynder also grants to BSS, its successors and affiliates, a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide licence to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such Mynder’s Content and the Mynder’s name, voice, or likeness hereafter developed, for use in connection with the Mynder App and Services, including without limitation for promoting and redistributing part or all of the Mynder App (and derivative works thereof) in any media formats through any media channels.

10.7       The Mynder also grants each user a non-exclusive licence to access Mynder’s Content through the Mynder App, and to use, reproduce, distribute, display, and perform such Mynder’s Content, only to the extent permitted through the normal functionality of the Mynder App and subject to all confidentiality and other provisions of these Terms.

10.8       The above licences under clause 10.4 and 10.5 granted by Users will terminate within a commercially reasonable time after the user removes or deletes the Mynder’s Content from the Mynder App, except that the User grants HM, its successors and affiliates, the irrevocable and perpetual licence to retain and use, but not publicly display, distribute, or perform, server, or archival copies of all Mynder’s Content that the Mynder have removed or deleted to the extent permitted by applicable law.

10.9       The Mynder hereby grants HM a royalty-free, perpetual license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, play and exercise all Intellectual Property rights without limitation with respect to Mynder’s Content worldwide or to incorporate Mynder’s Content in other works in any media now known or later developed for the full term of rights that may exist in Mynder’s Content.

11.          INDEMNITY

11.1       The Mynder shall indemnify HM against any loss, costs, expenses, demands or liability, (on a full indemnity basis) whether direct or indirect, and any expenses whatsoever which HM may suffer or incur or be called upon to suffer or incur by virtue of any breach or default by the Mynder of any of its obligations or duties under these Terms.

11.2       The Mynder shall indemnify HM against any loss, costs, expenses, demands or liability, (on a full indemnity basis) whether direct or indirect, and any expenses whatsoever which the Mynder may suffer or incur or be called upon to suffer or incur by virtue of any breach or default by the Mynder of any of its obligations or duties in any agreement with the Family.

12.          TERMINATION

12.1       HM is entitled to terminate these Terms at any time by giving written notice to that effect to the Mynder if any of the following events occur:

(a)        Receipt of any unsatisfactory feedback from a Family;

(b)        Cancellation of bookings by the Mynder;

(c)        Failure to attend confirmed bookings;

(d)        The Mynder accepts bookings outside the App from families the Mynder met the family via the App;

(e)        The Mynder accepts bookings outside the App from families the Mynder was referred to by families met via the App;

(f)         The Mynder commits any breach of these Terms;

(g)         The Mynder becomes insolvent;

(h)         The Mynder is charged with an offence under Australian Law;

(i)        The Mynder ceases to carry on business; or

(j)        For any other reason, as defined by HM from time to time, in its sole discretion.

12.2       The Mynder is entitled to terminate these Terms by giving HM at least seven (7) days’ written notice to HM. Any Bookings scheduled during the notice period must be completed by the Mynder.

12.3       Notwithstanding termination of these Terms, these Terms will continue to be binding on the Parties and fully enforceable in respect to the rights and obligations of each Party relating to:

(a)        Bookings confirmed during the notice period;

(b)        Confidential Information;

(c)        Return of property and transfer of Intellectual Property; and

(d)        Obligations in this clause and otherwise in these Terms that are expressly intended to apply after termination.

13.          RELATIONSHIP

13.1       The Parties acknowledge that they are not in partnership, there is no joint venture between them or franchise arrangement, and that the only relationship between them is that of customer (in the case of the Mynder) and as service provider (in the case of HM) in respect of the Services on the terms in this Referral Agreement. Neither Party may claim or hold itself out as having any other relationship, authority, right or entitlement to represent or act as agent of the other or to have any interest or shareholding in the other.

13.2       It is expressly agreed that nothing in these Terms will give rise to any fiduciary relationship between the Mynder and HM and neither Party owes any fiduciary duty to the other in respect of its conduct.

14.          DISPUTE RESOLUTION

14.1       The Parties will comply with the following dispute resolution procedure:

(a)            Where a dispute arises between the Parties, the complainant Party will set out in writing and in English what it regards the dispute to be, informing the respondent Party:

(i)         The nature of the dispute; and

(ii)        What outcome the complainant wants; and

(iii)       What action the complainant Party requires in order to settle the dispute.

(b)            Both Parties will make every effort to resolve the dispute through negotiation and will in so doing act in good faith.

14.2       For mediation under these Terms:

(a)            if the Parties cannot agree under clause 16.1(b) within 21 days, either Party may refer the matter to a mediator; and

(b)            if the Parties cannot agree about who should be the mediator, either party may ask the Chief Executive Officer (at that time) of the Australian Commercial Disputes Centre to appoint a retired Judge or court officer or practicing barrister of at least 10 years admission to the Bar to act as the mediator and that mediator will act as mediator of the dispute;

(c)            the mediator may decide the time and place for mediation;

(d)            the Parties or their legal representative(s) must attend the mediation and try in good faith to resolve the dispute through meditation;

(e)            the Parties are equally liable for the costs of mediation and the costs of the mediator under this part unless they agree otherwise. The Parties must pay their own costs for attending at or being represented at the mediation;

(f)             nothing in this clause affects the right of a Party to take legal proceedings under these Terms, if mediation fails to resolve the dispute;

14.3       Nothing contained in the dispute resolution procedures above will deny or delay and Party seeking immediate injunctive relief from an appropriate Court where in the reasonable opinion of the Party the failure to obtain such relief would cause irreparable damage to the Party concerned.

14.4       These dispute resolution procedures will not apply to events giving rise to a right of termination of these Terms where there is no legitimate dispute as to the occurrence of that event.

15.          GENERAL

15.1       Variations

HM reserves the right, in its sole discretion, to change, modify, add or remove any part of the Mynder App, Services, or these Terms, in whole or in part, at any time. Notification of the changes will be provided to Mynders and will be effective immediately, unless expressed otherwise. It is the Mynder’s sole responsibility to periodically check the Mynder App, Services, and these Terms for any changes. If the Mynder does not agree with any of the changes, it is the Mynder’s sole responsibility to deregister from the Services and delete the Mynder App. The Mynder’s continued use of the Mynder App and Services will be deemed as the Mynder’s acceptance of the changes.

15.2       Waiver

(a)        The waiver by any Party of any right or entitlement or to claim in respect of any breach of these Terms must be in writing signed by the Party so waiving. No purported waiver that is not in writing and signed by the waiving Party will have any effect whatsoever.

(b)        A waiver will not preclude that waiving Party from relying upon any such right or entitlement arising in the future or to claim in respect of any subsequent breach of these Terms even if that future right, entitlement or subsequent is the same as that previously waived.

15.3       Notices

(a)        All Notices or requests given by either Party to the other are deemed to have been properly given if posted by mail or emailed to the email addresses when registering for the Services.

(b)        Any Notice or request sent by email will be deemed served on the day after being emailed. An email record will be conclusive evidence of the date of emailing. Any Notice or request sent by mail will be deemed served 14 days after the date of posting, not including the date of posting.

(c)        Any Notice or request sent by a Party to the other must be signed by a director or officer of the sending Party or appear on its face (where an email) to be so signed.

(d)        All Notices must be given in English.

(e)        The Mynder may change its details for service of a Notice through the Mynder App. BSS will notify the Mynder of any changes to this address for service details via email.

15.4       Force Majeure

Except for obligations to make payment, delay or non-performance by any Party will be excused if such delay or non-performance is due to an event or events outside the Party’s reasonable control, including but not limited to:

(a)        acts of god;

(b)        natural disasters;

(c)        sabotage;

(d)        accident;

(e)        riot;

(f)         shortage of supplies, equipment, and materials;

(g)        strikes and lockouts;

(h)        civil unrest; or

(i)         malicious damage.

15.5       Severability

If any clause of these Terms is invalid under any applicable such Law, the clause will be limited, narrowed, construed or altered as necessary to render it valid, but only to the extent necessary to achieve such validity. If necessary the invalid clause will be deleted from the Agreement and the remaining clauses will remain in full force and effect.

15.6       Counterparts

These Terms may be executed in counterparts, each of which will be deemed to be an original and all of which together will constitute one instrument and Agreement.

15.7       Entire Agreement

(a)        These Terms represents the entire agreement between the Parties relating to the subject matter of the Agreement and supersedes all prior agreements, understandings, representations and warranties relating to the subject matter of these Terms.

(b)        Neither Party has relied on or been induced by any representations or promises made to it prior to entering into these Terms in reaching its decision to enter into these Terms on these terms.

15.8       Governing Law and Jurisdiction

It is agreed by the Parties that these Terms is to be construed in accordance with the Laws of Australia and each Party covenants that it submits to the jurisdiction of the Courts of the State or Territory in which the Territory is located for the resolution of any dispute under the Agreement. If the Territory is the whole of Australia then the Parties submit to the jurisdiction of all State and Territory Courts and Federal Courts.