Please read this Agreement carefully before accessing or using our Services. By accessing or using any part of our services, you agree to become bound by the terms and conditions of this agreement. If you do not agree to all the terms and conditions of this agreement, you must cease usage of the Services, immediately. If these terms and conditions are considered an offer by Sembian, acceptance is expressly limited to these terms.
Our Services are not directed to children younger than 18, and access and use of our Services is only offered to users 18 years of age or older. If you are under 18 years old, please do not register to use our Services. Any person who registers as a user or provides their personal information to our Services represents that they are 18 years of age or older.
Access to use the Services
In order to access all of the Services, you may be required to register for an account (the ‘Account’). As part of the registration process, or as part of your continued use of the Services, you may be required to provide personal information about yourself (such as identification or contact details), including: (a) an email address (b) preferred username (c) a mailing address (d) a telephone number and (e) a password. You warrant that any information you give to Sembian in the course of completing the registration process will always be accurate, correct and up to date. Once you have completed the registration process, you will be a registered member of the Services ('Member').
Your obligations as a Member
As a Member, you agree to comply with the following:
you will use the Services only for purposes that are permitted by: (a) the Agreement; and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;
you have the sole responsibility for protecting the confidentiality of your password and/or email address. Use of your password by any other person may result in the immediate cancellation of the Services;
any use of your registration information by any other person, or third parties, is strictly prohibited. You agree to immediately notify Sembian of any unauthorised use of your Account, or any other breaches of security. Sembian will not be liable for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions;
access and use of the Services are limited, non-transferable and allows for the sole use of the Services by you for the purposes of Sembian providing the Services;
you will not use the Services in connection with any commercial endeavours except those that are specifically endorsed or approved by the management of Sembian;
you will not use the Services for any illegal and/or unauthorised use which includes collecting email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Services; and
you acknowledge and agree that any automated use of the Services is prohibited.
As a Member, you agree not to:
Publish material or engage in activity that is illegal under applicable law.
Use Guesto App and/or Guesto Website to overburden Sembian’s systems, as determined by us in our sole discretion.
Disclose the sensitive personal information of others.
Send spam or bulk unsolicited messages.
Interfere with, disrupt, or attack any service or network.
Distribute material that is or enables malware, spyware, adware, or other malicious code.
Payments and renewal
Optional paid services such as extra monthly check-ins or check-in credits are available (any such services, an 'Upgrade'). By selecting an Upgrade, you agree to pay Sembian the monthly subscription or one-off fees indicated for that service. Payments will be charged on a pre-pay basis on the day you sign up for an Upgrade and will cover the use of that service for a month or for a limited period as indicated.
Unless you notify Sembian before the end of the applicable subscription period that you want to cancel an Upgrade, your Upgrade subscription will automatically renew and you authorize us to collect the then-applicable monthly subscription fee for such Upgrade (as well as any taxes) using any credit card or other payment mechanism we have on record for you. Upgrades can be canceled at any time in the “More” section of the Guesto App.
Sembian will only provide you with a refund of the Subscription Fee in the event they are unable to continue to provide the Services or if the manager of Sembian makes a decision, at its absolute discretion, that it is reasonable to do so under the circumstances. Where this occurs, the refund will be in the proportional amount of the Subscription Fee that remains unused by the Member (the 'Refund').
Copyright and Intellectual Property:
The Services and all of the related products of Sembian are subject to copyright. The material on the Guesto Website and Guesto App are protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the Services and compilation of the Guesto App and Guesto Website (including but not limited to text, graphics, logos, button icons, video images, audio clips, application, code, scripts, design elements and interactive features) or the Services are owned or controlled for these purposes, and are reserved by Sembian or its contributors.
All trademarks, service marks and trade names are owned, registered and/or licensed by Sembian, who grants to you a worldwide, non-exclusive, royalty-free, revocable license whilst you are a Member to use the Services pursuant to the Agreement. Sembian does not grant you any other rights whatsoever in relation to the Services. All other rights are expressly reserved by Sembian.
Sembian retains all rights, title and interest in and to the Services and all related Services. Nothing you do on or in relation to the Services will transfer any: (a) business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright, or (b) a right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or (c) a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process), to you.
You may not, without the prior written permission of Sembian and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Services or third party Services for any purpose, unless otherwise provided by this Agreement. This prohibition does not extend to materials on the Guesto App and Guesto Website which are freely available for re-use or are in the public domain.
As Sembian asks others to respect its intellectual property rights, it respects the intellectual property rights of others. If you believe that material located on or linked to by Guesto Website or Guesto App, violates your copyright, you are encouraged to notify Sembian in accordance with Digital Millennium Copyright Act ('DMCA') Policy. Sembian will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material. Sembian will terminate a visitor’s access to and use of the Services if, under appropriate circumstances, the visitor is determined to be a repeat infringer of the copyrights or other intellectual property rights of Sembian or others. In the case of such termination, Sembian will have no obligation to provide a refund of any amounts previously paid to Sembian.
Links to third party web sites
Our Service may contain links to third party web sites or services that are not owned or controlled by Sembian. Sembian has no control over, and assumes no responsibility for the content, privacy policies, or practices of any third party web sites or services. We do not warrant the offerings of any of these entities/individuals or their websites.
You acknowledge and agree that Sembian shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such third party web sites or services.
We strongly advise you to read the terms and conditions and privacy policies of any third party web sites or services that you visit.
Nothing in the Agreement limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
Subject to this clause, and to the extent permitted by law:
all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Agreement are excluded; and
Sembian will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or this Agreement (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
Use of the Services is at your own risk. Our Services are provided to you "as is" and "as available" without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors and licensors of Sembian make any express or implied representation or warranty about the Services or any products or Services (including the products or Services of Sembian. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following: (a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records; (b) the accuracy, suitability or currency of any information on the Services, or any of its Services related products (including third party material and advertisements); (c) costs incurred as a result of you using the Guesto App, the Services or any of the products of Sembian; and (d) the Services or operation in respect to links which are provided for your convenience.
If you are in the business of providing similar Services for the purpose of providing them to users for a commercial gain, whether business users or domestic users, then you are a competitor of Sembian. Competitors are not permitted to use or access any of our services. If you breach this provision, Sembian will hold you fully responsible for any loss that we may sustain and hold you accountable for all profits that you might make from such a breach.
Limitation of liability
Sembian's total liability arising out of or in connection with the Services or this Agreement, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the Services to you.
You expressly understand and agree that Sembian, its affiliates, employees, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
Termination of contract
The Agreement will continue to apply until terminated by either you or by Sembian as set out below. If you want to terminate the Agreement, you may do so by: (a) providing Sembian with 30 days' notice of your intention to terminate; and (b) you may simply discontinue using our Services. Your notice should be sent, in writing, to Sembian via the email link provided on our homepage.
Sembian may at any time, terminate the Terms with you if: (a) you have breached any provision of the Agreement or intend to breach any provision; (b) Sembian is required to do so by law; (c) the provision of the Services to you by Sembian is, in the opinion of Sembian, no longer commercially viable.
Subject to local applicable laws, Sembian reserves the right to discontinue or cancel your membership at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Services without notice if you breach any provision of the Agreement or any applicable law or if your conduct impacts Sembian's name or reputation or violates the rights of those of another party.
You agree to indemnify and hold harmless Sembian, its contractors, and its licensors, and their respective directors, officers, employees, and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of our Services, including but not limited to your violation of this Agreement.
Compulsory: If a dispute arises out of or relates to the Agreement, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sort).
Notice: A party to the Agreement claiming a dispute ('Dispute') has arisen under the Agreement, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
Resolution: On receipt of that notice ('Notice') by that other party, the parties to the Terms ('Parties') must:
Within 30 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
If for any reason whatsoever, 30 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Australian Mediation Association or his or her nominee;
The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
The mediation will be held in New South Wales, Australia.
Confidential: All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as "without prejudice" negotiations for the purpose of applicable laws of evidence.
Termination of Mediation: If 3 months have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
Venue and Jurisdiction
The Services offered by Sembian is intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Services, you agree that the exclusive venue for resolving any dispute shall be in the courts of New South Wales, Australia.
The Agreement is governed by the laws of New South Wales, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Agreement and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of New South Wales, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Agreement shall be binding to the benefit of the parties hereto and their successors and assigns.
Independent Legal Advice
Both parties confirm and declare that the provisions of the Agreement are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.
If any part of these Agreement is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Agreement shall remain in force.