PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, A CLAUSE THAT GOVERNS THE JURISDICTION AND VENUE OF DISPUTES, AND OBLIGATIONS TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.
ALL USERS SHOULD UNDERSTAND HOW THE LAWS WORK IN THEIR RESPECTIVE CITIES. SOME CITIES HAVE LAWS THAT RESTRICT THE PERFORMANCE OF LIVE MUSIC OR THE SOUND PRODUCED BY LIVE MUSIC. THESE LAWS ARE OFTEN PART OF A CITY’S ZONING OR ADMINISTRATIVE CODES. IN SOME CITIES, DEPENDING ON THE PLACE OF PERFORMANCE HOSTS MUST REGISTER, GET A PERMIT, OR OBTAIN A LICENSE BEFORE ORGANISING A LIVE MUSIC PERFORMANCE. LOCAL GOVERNMENTS VARY GREATLY IN HOW THEY ENFORCE THESE LAWS. PENALTIES MAY INCLUDE FINES OR OTHER ENFORCEMENT. HOSTS SHOULD REVIEW LOCAL LAWS BEFORE LISTING CREATING AN EVENT ON SIX8.
LAST UPDATED | 30 MAY 2019
1.1. The Site is owned and operated by Six8 Pty Ltd (“Six8”). Six8 provides an online platform that connects musicians with hosts seeking to book their musical services and find publicly listed performances (collectively, the “Services“), which Services are accessible at www.six8.com.au and any other websites through which Six8 makes the Services available (collectively, the “Site“) and as applications for mobile, tablet and other smart devices and application program interfaces (collectively, the “Application“).
1.2. Please read these Terms & Conditions carefully. By accessing or using the Site you become a user of the Site (“User”). A User may be a general User of the Site, or a Host, an Artist (as defined below) or any combination of these.
1.4. In addition, certain areas of the Site and Application (and your access to or use of certain aspects of the Services or Collective Content) may have different terms and conditions, standards, guidelines, or policies posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Site, Application, Services, or Collective Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Site, Application, Services, or Collective Content.
1.5. If you do not agree to these Terms, you have no right to obtain information from or otherwise continue using the Site, Application or Services. Failure to use the Site, Application or Services in accordance with these Terms may subject you to civil and criminal penalties.
THE SITE, APPLICATION AND SERVICES COMPRISE AN ONLINE PLATFORM THROUGH WHICH:
A. ARTISTS AND HOSTS MAY CREATE PROFILES AND HOSTS MAY LEARN ABOUT AND BOOK PERFORMANCE SERVICES DIRECTLY WITH THE ARTISTS.
B. HOSTS AND ARTISTS MAY POST PUBLICLY LISTED EVENTS WHICH ARE MADE AVAILABLE TO USERS OF THE SITE. YOU UNDERSTAND AND AGREE THAT SIX8 IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN ARTISTS AND HOSTS, NOR IS SIX8 A MUSICIAN MANAGEMENT AGENCY, EVENT PROMOTER, OR INSURER. SIX8 HAS NO CONTROL OVER THE CONDUCT OF ARTISTS, HOSTS AND OTHER USERS OF THE SITE APPLICATION AND SERVICES, OR ANY ORGANISED EVENTS, AND DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW. IF YOU CHOOSE TO CREATE A PROFILE ON SIX8, YOU UNDERSTAND AND AGREE THAT YOUR RELATIONSHIP WITH SIX8 IS LIMITED TO BEING A MEMBER AND AN INDEPENDENT, THIRD-PARTY CONTRACTOR, AND NOT AN EMPLOYEE, AGENT, JOINT VENTURER OR PARTNER OF SIX8 FOR ANY REASON, AND YOU ACT EXCLUSIVELY ON YOUR OWN BEHALF AND FOR YOUR OWN BENEFIT, AND NOT ON BEHALF OF OR FOR THE BENEFIT OF SIX8. SIX8 DOES NOT CONTROL, AND HAS NO RIGHT TO CONTROL, YOUR OFFLINE ACTIVITIES ASSOCIATED WITH YOUR PROFILE, OR ANY OTHER MATTERS RELATED TO ANY INFORMATION, OR SERVICES THAT YOU PROVIDE. AS A MEMBER YOU AGREE NOT TO DO ANYTHING TO CREATE A FALSE IMPRESSION THAT YOU ARE ENDORSED BY, PARTNERING WITH, OR ACTING ON BEHALF OF OR FOR THE BENEFIT OF SIX8, INCLUDING BY INAPPROPRIATELY USING ANY SIX8 INTELLECTUAL PROPERTY. YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE, APPLICATION OR SERVICES OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE, VIA THE APPLICATION OR THROUGH THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS AND RECEIVE OUR SERVICES, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE AND APPLICATION. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, APPLICATION, SERVICES, OR COLLECTIVE CONTENT. IF YOU ACCEPT OR AGREE TO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY TO THESE TERMS AND, IN SUCH EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO THAT COMPANY OR OTHER LEGAL ENTITY.
1.6. Six8 reserves the right, at its sole discretion, to modify the Site, Application or Services or to modify these Terms, including the Booking Fee rate, and service fees at any time and without prior notice. If we modify these Terms, we will post the modification on the Site or via the Application and/or provide you notice of the modification by email. We will also update the “Last Updated” date at the top of these Terms. Changes to the Terms will be effective at the time of posting. Your continued access or use of the Site, Application or Services will constitute acceptance of the modified Terms. Additionally, if the modified Terms contain material changes applicable to existing Members (by decreasing your rights or increasing your responsibilities), we will provide you with notice prior to the changes taking effect. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site, Application and Services. If you do not close your Six8 Account you will be deemed to have accepted the changes.
1.7. For the purpose of these Terms and Conditions the following definitions apply:
- ‘Artist’ means a user who has created an artist profile on the Six8 Site or Application.
- ‘Artist Fee’ means the amount a host is charged for the Artist’s services when booking an event, which is included in the Payable Amount. This includes the hourly rate, any travel costs, and any extra cost agreed to in prior to the booking confirmation.
- ‘Booking Agreement’ means the Booking Terms and the booking confirmation on the Site or Application between the Artist & Host for the applicable Six8 Event.
- ‘Booking Fee’ means the amount a host is charged for Six8 services when booking an event, which is included in the Payable Amount.
- ‘Event’ means an activity with a specific time, date, and location which is organised and booked by a Host via the Six8 Site or Application.
- ‘Event Completion’ means the point at which an Event ends due to the nominated finishing (or ‘curtains down’) time being passed.
- ‘Collective Content’ means all user material and Six8 content.
- ‘Dispute Window’ means a 48 hour period of time following Event Completion when a Host or Artist can dispute the outcome of an Event.
- ‘Host’ means a User who has created a host profile on the Six8 Site or Application.
- ‘Payable Amount’ is the total cost of an Event to a Host and is comprised of the Artist Fee, Booking Fee, and Transaction Fee.
- ‘Payment Service Provider’ means the third-party organisation who holds the account information of Users and facilitates the transfer between parties on the Six8 Site and Application.
- ‘Transaction Fee’ means the amount charged by the Payment Service Provider to service the transfer of funds for the relevant Event.
- ‘Tax’ or ‘Taxes’ mean any sales taxes, value added taxes (VAT), or goods and services taxes (GST) that Artists may be required by law to collect and remit to governmental agencies, and other similar municipal, state, federal and national indirect or other withholding and personal or corporate income taxes.
- ‘Public Listing’ is a discrete set of gig data and content which publicly accessible via the Site and application.
2. Six8 Site, Application, and Services
2.1. The Site, Application and Services can be used to facilitate the listing of public gigs, the listing of user profiles, the booking of musical performance services. Information on services provided by artists is included in the Profiles on the Site, Application and Services. Information on public gigs is included in Public Listings. You may view Artist Profiles, and Public Listings, as an unregistered visitor to the Site, Application and Services; however, if you wish to create a booking for an event, create a Profile, or create a Public Listing you must first register to create a Six8 Account (defined below).
2.2. As stated above, Six8 makes available an online platform or marketplace with related technology for Artists and Hosts to meet online and arrange for Bookings of live musical performances directly with each other. Six8 does not employ or hold responsibility for the artists, nor does it manage or control the properties, spaces, or locations provided by hosts for any agreed event. Likewise, it does not promote or endorse the validity or accuracy of Public Listings, but rather facilitates the collation of gig information submitted by Users. Unless explicitly specified otherwise in the Six8 platform, Six8’s responsibilities are limited to facilitating the availability of the Site, Application and Services.
2.3. Six8 cannot and does not control the conditions or legality of any venue/property where an Event is held, or for which a Public Listing is submitted, and to the fullest extent permitted by law, Six8 is not responsible for and disclaims any and all liability related to any and all such venues/properties.
PLEASE NOTE THAT, AS STATED ABOVE, THE SITE, APPLICATION AND SERVICES ARE INTENDED TO BE USED TO FACILITATE ARTISTS AND HOSTS CONNECTING WITH EACH OTHER TO ADVERTISE ORGANISED MUSICAL PERFROMANCES OR BOOK MUSICAL PERFORMANCES DIRECTLY WITH EACH OTHER. SIX8 CANNOT AND DOES NOT CONTROL THE CONTENT CONTAINED IN ANY PROFILES OR PUBLIC LISTINGS AND THE QUALITY, LEGALITY OR SUITABILITY OF ANY MUSICAL PERFORMANCES, OR PERFORMANCE SPACE. SIX8 IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL PROFILES AND MUSICAL PERFORMANCES. ACCORDINGLY, ANY PUBLIC LISTING OR EVENT BOOKINGS WILL BE MADE OR ACCEPTED AT THE MEMBER’S OWN RISK.
3. Proprietary Rights in the Site
3.1. All materials on the Site (excluding User Materials, as described in Clause 5) including, but not limited to, underlying software, code, design, text, graphics, footage, photographs, sound recordings, musical works and other files are owned by, controlled by, or licensed to, Six8 (“Six8 Materials”). All rights are reserved. No Six8 Materials may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part other than in accordance with these Terms & Conditions, without the prior written consent of Six8.
3.2. All Trade Marks, logos, trade dress and service marks on the Site are either Trade Marks or registered Trade Marks of Six8 or third parties that have authorised such use and may not be copied, imitated, or used, in whole or in part other than in accordance with these Terms & Conditions, without the prior written consent of Six8.
3.3. Six8 retains all rights, title and interest in and to the Application and all related Services. Nothing you do on or in relation to the Site or Application will transfer:
- 3.3.1. any business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright;
- 3.3.2. a right to use or exploit a business name, trading name, domain name, trade mark or industrial design; or
- 3.3.3. 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);
4. User Accounts
4.1. In order to access certain features of the Site and Application, and to book a Musical Performance or create a Profile, you must register to create an account (“User Account“) and become a Member.
4.2. The User is solely responsible for maintaining the confidentiality of their User Account and password and for all activities that occur under their User Account.
4.3. The User must notify Six8 immediately if they believe their User Account has been compromised. Six8 shall not be liable for any loss or damage that the User incurs as a result of a security breach of their User Account. The User may be liable for any loss or damage that Six8 incurs as a result of such security breaches found to have resulted from any act or omission of the User.
4.4. Six8 in its sole discretion reserves the right to make modifications to the features included in the User Accounts at any time.
4.5. As part of the registration process, each User creates a User profile that may be publicly viewable by other Users (“Profile”). The Profile may include details such as the first and last name or screen name of the User, an image and may allow the User to integrate their social media accounts, and external media embeds into their Six8 Profile. Each User is solely responsible for any activity and information attached to their Profile.
5. User Materials
5.1. Users may upload or ‘post’ content directly onto the Site and/or exchange certain content via the Site or through the social media integration via the Site, including but not limited to text, images, links and embedded video and audio media (“User Materials”).
5.2. Six8 cannot and does not control any User Materials posted on the Site by Users and to the fullest extent permitted by law, Six8 is not responsible for and disclaims any and all liability related to any and all such information.
5.3. The User warrants that all User Materials that it uploads and/or ‘posts’ to the Site do not infringe on any third-party rights (including copyright or any other proprietary rights).
5.4. Six8 reserves the right to remove any User Materials in the event that it believes such materials infringe on the rights of others under copyright law, or other applicable law, and Six8 may suspend or otherwise terminate that User’s User Account in its sole discretion where it deems the User Materials to infringe third party rights, or considers the content inappropriate. Six8 may edit or otherwise moderate User Materials in its sole discretion.
5.5. The User acknowledges that Six8 does not monitor whether Users are complying with local and/or applicable laws or complying with third party rights insofar as the User Materials are concerned and Six8 is in no way responsible for protecting the copyright, licenses or any other rights of any User or third party.
5.6. The User grants Six8 a worldwide, royalty-free and compensation-free, non-exclusive perpetual license(s) to use and publicly display the User’s User Materials on the Site or in connection with the Site, or the operation of the Site and in connection with Six8’s business (“License”). Six8 does not claim any rights to User Materials other than as set out in this Clause 5.
5.7. The User agrees not to use the Site to upload, exchange, post, email, transmit or otherwise make available any content that:
- 5.7.1. is abusive, obscene, vulgar, slanderous, hateful, threatening, pornographic or any material that may violate any domestic or international laws;
- 5.7.2. infringes upon the rights of any third party (proprietary rights or otherwise), impersonates any person, User or entity, or otherwise misrepresent themselves or their affiliation with any person or entity;
- 5.7.3. is unsolicited or unauthorised advertising, promotional materials, junk mail, spam and the like
- 5.7.4. contains software viruses or any other malicious computer code, files or programs designed to interfere with, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- 5.7.5. has the potential to bring the reputation of Six8 into disrepute; or
- 5.7.6. is intended to intimidate or harass another User.
5.8. Six8 reserves the right without prior notice to remove User Materials from the Site where it deems to fall into any of categories as described in Clause 5.7 above, and Six8 may suspend or otherwise terminate that User’s User Account in its sole discretion.
5.9. Six8 does not endorse the User Materials, or any opinion, recommendation, or advice expressed therein, and Six8 expressly disclaims any and all liability in connection with all User Materials and User communication.
6. User’s Obligations on Making a Public Listing
6.1. By submitting to the Site and Application a Public Listing, the User agrees to take on full responsibility for the accuracy and validity of all information within that listing.
6.2. All information that the User supplies for an Public Listing must be correct and accurate to the best of its knowledge.
6.3. Six8 reserves the right, at any time and without prior notice, to remove or disable access to any Public Listing for any reason, including but not limited to any Public Listing that Six8, in its sole discretion, considers a breach of these Terms and Conditions.
7. Host’s Obligations on Making a Booking
7.1. By agreeing to Host an event which is organised and confirmed through the Six8 Site or Application (‘Event’), the Hosts agrees to take on full responsibility for the organisation of that Event, including entering into a Booking Agreement with the Artist and running the relevant Event.
7.2. The Host is solely responsible for approving or declining those people who attend their Event.
7.3. The Host is solely responsible for honouring any confirmed Event booking made through the Site.
7.4. All information that the Host supplies for an Event must be correct and accurate to the best of its knowledge.
7.5. Six8 reserves the right, at any time and without prior notice, to remove or disable access to any Event for any reason, including but not limited to any Events that Six8, in its sole discretion, considers a breach of these Terms and Conditions.
7.6. The Host understands and agrees that all Booking Agreements are between the Host and the Artist directly and that Six8 is not a party to such agreements.
7.7. The Host acknowledges and agrees that, it is solely responsible for its own acts and omissions and is also responsible for the acts and omissions of any guests or Artists who it invites into its home or venue.
7.8. The Host is solely responsible for obtaining and maintaining its own Home and Contents Insurance and any other insurance policies that the Host deems necessary to protect the Host’s house and belongings. Six8 shall in no way be responsible for any loss or damage suffered by any Host, Artist or guest. Six8 strongly recommends that all Hosts obtain appropriate insurance for their homes prior to hosting an Event. The Host fully indemnifies and holds Six8, its Directors, employees and contractors forever harmless with respect to any loss or damage suffered by the Host to their home or property.
7.9. It is the Host’s sole responsibility to monitor noise levels at any Event that it hosts and shall be solely liable for any noise complaints, fines or other penalties resulting from excessive noise, or breaches of laws and regulations.
8. Artist’s Obligations on Accepting a Booking
8.1. Where an Artist chooses to perform at an Event, the Artist agrees and acknowledges that they are solely responsible for complying with the Terms and Conditions set out in the Booking Terms.
8.2. The Artist agrees not to make the details of any Six8 Event public without the prior consultation with and approval from the relevant Host, and that the relevant Host has the final decision over who is invited to, and who may attend the Event.
8.3. The Artist agrees that Six8 is not a party to any Booking Agreement, and that, with the exception of its payment obligations set out within these Terms and Conditions, Six8 disclaims all liability arising from or related to any such Booking Agreements.
8.4. The Artist understands and agrees that it is solely responsible for compliance with any and all laws, rules, regulations, and tax obligations that may apply to its use of the Site and its performance at any Six8 Event. You as an Artist understand and agree that you are solely responsible for determining (i) your applicable Tax reporting requirements, and (ii) the Taxes that should be included, and for including Taxes to be collected or obligations relating to applicable Taxes in Booking Agreements. You are also solely responsible for remitting to the relevant authority any Taxes included or received by you. Six8 cannot and does not offer Tax-related advice to any Members.
8.5. In the event that the Artist does not hold current public liability insurance, the Artist hereby indemnifies the Host and Six8 from any loss or damage suffered by the Host arising from the Artist’s failure to hold such insurance. The Host and/or Six8 shall not be liable for any lost, stolen or damaged property belonging to the Artist.
9. Booking Terms
A. GENERAL BOOKING TERMS
9.1. The Artist agrees to perform at the Six8 Event in consideration for the payment of the Artist Fee in accordance with the Six8 General Terms and Conditions.
9.2. Artist undertakes to do the following in relation to the Six8 Event:
9.2.1. To co-operate fully with the Host and as reasonably directed by the Host;
9.2.2. To behave in a professional manner at all times during the Event; and
9.2.3. To perform the Event to the best of their ability.
9.3. The Artist is solely responsible for arranging and paying for all technical requirements related to its performance at the relevant Event, including but not limited to sound and lighting requirements.
9.4. The Artist agrees that Six8 and/or the Host may film, photograph or otherwise capture the Artist’s performance/s and that Six8 may use such footage and/or images for promotional purposes relating to Six8. Any commercial uses of such photographs and/or recordings shall be subject to a separate agreement between Six8 and the Artist.
9.5. The Artist agrees to adhere to the performance times agreed with the Host.
9.6. The Artist agrees to gain consent of the booking Host prior to publicly promoting or announcing the Six8 Event.
9.7. The Artist is responsible for its own transport and accommodation and neither the Host, or Six8 shall be liable for any costs incurred for the Artist’s transport and accommodation in connection with the Six8 Event, outside of the agreed Artist Fee.
9.8. If the Artist does not fulfil its obligations under these Terms and Conditions, it shall not be entitled to receive the Artist Fees and it acknowledges that it may be liable to the Host and/or Six8 for loss or damage suffered as a result of such breach.
9.9. The Artist indemnifies the Host and Six8 from and against any loss incurred by the Host arising from the Artist’s breach of any part of this Agreement and any loss incurred by the Host and/or Six8 arising from any act or omission of the Artist.
9.10. Each party warrants that they have the right and power to enter into and fully perform their obligations under this Agreement.
9.11. The Artist is an independent contractor and nothing herein shall be construed as constituting an employer/employee relationship, a partnership or a joint venture between the parties.
9.12. Artists and Hosts understand that all Nominated Account details for Users are held by the Payment Service Provider and that the Payable Amount for an Event will pre-authorised by the Payment Service Provider three (3) days prior to the Event or at the time a Booking Agreement is made, whichever is later.
9.13. Unless a dispute has been raised for the relevant Event, the Payment Service Provider will, at the conclusion of the Dispute Window, (i) execute the transfer of the Artist Fee from the Host’s nominated account into the Artist’s Nominated Account, (ii) execute the transfer of the Booking Fee from the Host’s Nominated Account to Six8’s nominated account, (iii) charge the Transaction Fee to the Host’s Nominated Account.
C. CANCELLED EVENTS
9.14. Users understand that Six8 Events may be cancelled by either a Host or an Artist, and Six8 shall not be liable whatsoever any loss suffered by the Artist, or Host by reason of the cancellation or in respect of this Agreement. This includes without limitation the expenses already incurred or to be paid by the Artist, loss of profits and anticipated earnings, liability, cost or expenses (including without limitation legal expenses on a full indemnity basis).
9.15. If, as a Host or Artist, you wish to cancel a confirmed Event made via the Site, Application and Services, either prior to or after the start time of the Event, the cancellation policy of the Event contained in the applicable Event listing will apply to such a cancellation. Hosts and Artists understand that Six8 may cancel or require the payment of Artists Fees, Bookings Fees and other amounts charged to you depending upon the cancellation policy listed in the Event. Details regarding refunds and cancellation policies are available via the Site and Application.
9.16. If an Artist cancels a confirmed Booking made via the Site, Services, and Application, Six8 may, but is not obligated to, send communication containing alternative Artist suggestions and other related information.
9.17. If, as a Host or Artist, you cancel a confirmed Booking, you agree that Six8 may, in its sole discretion, apply penalties or consequences to you or your Profile, including (i) publishing a review on your Profile indicating that an Event was cancelled, (ii) cancelling or approving the transfer of fees relevant to the cancelled Event, (iii) adjusting your reliability rating, (iv) removal from the Site, Application, and Service.
9.18. In certain circumstances, Six8 may decide, in its sole discretion, that it is necessary or desirable to cancel a confirmed Event made via the Site, Application and Services. Six8 may also determine, in its sole discretion, to refund to the Host part or all of the amounts charged to the Host in connection with a cancellation. You agree that Six8 and the relevant Artist or Host will not have any liability for such cancellations or refunds.
D. DISPUTED EVENTS
9.19. Hosts, or Artists, have the right to dispute an Event any time between the Event Completion time and the end of the Dispute Window. In the event of a disputed Event, the transfer of the Payable Amount, Artist Fee, Booking Fee, and Transaction Fee will be held until the dispute is resolved. Six8 is in no way liable for and is under no obligation to act as a mediator between the Host and the Artist in resolving any disputes that arise.
9.20. You agree that as a result of an Event dispute Six8 may, in its sole discretion, apply penalties or consequences to you or your Profile, including (i) publishing a review on your Profile outlining the outcome of the dispute, (ii) cancelling or approving the transfer of fees relevant to the cancelled Event, (iv) removal from the Site, Application, and Service.
10. No Warranties
10.1. The Site is provided on an “as is” basis and without representations or warranties of any kind to the User, whether express or implied, including without limitation as to the quality and/or fitness of the Site for a particular use, accessibility or warranties that access or use of the Site will be uninterrupted or error-free, and that the Site and/or the User Materials will be secure or free of viruses or other harmful material or elements, or that any of the User Materials will be correct, accurate, timely or complete.
10.2. The Six8 Materials may include technical inaccuracies or typographical or other types of errors. Six8 has the right to make changes, modifications and updates to any Six8 Materials contained on the Site in its sole discretion and without prior notice.
THE USER WARRANTS THE FOLLOWING:
10.2.1. THAT THEY ARE OVER THE AGE OF EIGHTEEN (18) YEARS OLD, OR IN THE EVENT THAT THEY ARE UNDER THE AGE OF EIGHTEEN (18) OLD THAT THEY HAVE THEIR PARENT/GUARDIAN’S CONSENT TO USE THE SITE;
10.2.2. THAT SIX8 SHALL NOT BE IN ANY WAY LIABLE TO THE USER OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR LOSS OF MONEY, GOODWILL, REPUTATION OR DATA ARISING FROM THE USER’S USE OF THE SITE OR ANY SIX8 EVENT; AND
10.2.3. THAT THE USER WILL NOT HOLD SIX8 RESPONSIBLE FOR OTHER USER’S ACTS OR OMISSIONS, INCLUDING ANYTHING IN CONNECTION WITH THE USER MATERIALS OR ANY SIX8 EVENTS. THE USER AGREES THAT SIX8 HAS NO CONTROL OVER, AND DOES NOT GUARANTEE, AND DISCLAIMS ANY AND ALL LIABILITY FOR THE QUALITY OF THE COMMUNICATIONS, USER MATERIALS, SIX8 EVENTS, AND THE ACCURACY OF INFORMATION CONTAINED ON THE SITE.
12. Links to External Sites
12.1. Through this Site the User is able to link to other third party Sites which are not under the control of Six8. Six8 has no control over the nature, content and availability of those external Sites. The inclusion of any links on the Site does not imply a recommendation or endorsement of the goods and services, or opinions contained within such third party Sites.
13.1. Six8 is in no way responsible for:
- 13.1.1. the conduct and behaviour of any User, whether on the Site or otherwise;
- 13.1.2. any incorrect or inaccurate content on the Site;
- 13.1.3. any User Material posted on the Site or in connection with the Site; or;
- 13.1.4. the consequences of any malfunction of any equipment or programming associated with the operation of the Site.
13.2. Each User is solely responsible for all communications with other Users via the Site.
13.3. There may be times when the Site or Application is temporarily unavailable to the User due to maintenance or any other reason beyond the control of Six8. In the event that the Site or Application is unavailable, Six8 is in no way responsible for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft, destruction, unauthorized access to, or alteration of User communications or contributions.
13.4. Under no circumstances will Six8 be responsible for any loss or damage, including, but not limited to, personal injury or death, resulting from the User’s use of the Site or Application, any User Material in connection with the Site or Application, or any interactions between Users of the Site, or in connection with any Event.
14.1. Each User indemnifies Six8, and holds its officers, directors, employees and licensors forever harmless from and against any and all claims, demands and damages (including but not limited to legal fees) made by a third party due to or arising from or related to the User’s violation of these Terms and Conditions, or the User’s violation of any laws, regulations or third party rights, the User’s conduct at any Six8 Event.
14.2. The User indemnifies Six8, and holds its officers, directors, employees and licensors harmless from any and all claims, demands and damages (including but not limited to legal fees) made by a third party in the event that any content or information contained on the Site or Application is incorrect or in any way misleading.
14.3. The User hereby indemnifies Six8, its officers, directors, employees and licensors against any loss or damage suffered in the event that any aspect of the Site or Application does not function as intended for any reason beyond the reasonable control of Six8 and particularly in connection with:
- 14.3.1. service interruptions caused by an internet service provider;
- 14.3.2. an internet connection;
- 14.3.3. any fault or deficiency in computer hardware or software; or
- 14.3.4. any fault or deficiency in audio/visual hardware.
14.4. Should Six8 in its sole discretion, determine that any party has breached these Terms and Conditions, then nothing herein shall prevent or in any way restrict its right to pursue any of its legal and/or other remedies, including, without limitation, court action.
15.1. The User acknowledges that this Agreement is personal to it and cannot be assigned, transferred, sold or otherwise disposed of without the prior consent in writing of Six8. Six8 reserves its right to assign the provisions of these this Agreement at any time.
16. Termination and Suspension
16.1. Without limiting the generality of any other clause contained in this Agreement, Six8 may terminate this Agreement or suspend access to any User Account immediately by notice in writing if:
- 16.1.1. the User is in breach of a material term of this Agreement;
- 16.1.2. the User dies; or
- 16.1.3. for any of the reasons stated in within this Agreement.
16.2. If a notice of termination is given to the User, Six8 may, in addition to terminating the Agreement:
- 16.2.1. disable the User Account in order to prevent the User accessing files stored therein; (b) retain any monies paid to Six8, and other User’s, by the User;
- 16.2.2. be regarded as discharged from any further obligations under this Agreement; and (d) pursue any additional or alternative remedies provided by law.
16.3. The User may terminate this Agreement at any time by deleting their User Account from the Site. Such termination shall not release the User of any obligations existing at the time their User Account is deleted.
17. Dispute Resolution
17.1. If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
17.2. A party to the Terms claiming a dispute (‘Dispute’) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
17.3. On receipt of that notice (‘Notice’) by that other party, the parties to the Terms (‘Parties’) must:
- 17.3.1. Within 2 days of the Notice endeavor in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
- 17.3.2. If for any reason whatsoever, 14 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the NSW Fair Trading or his or her nominee;
- 17.3.3. 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;
- 17.3.4. The mediation will be held in New South Wales, Australia.
17.4. 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.
17.5. If 1 month has 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.
18. Venue and Jurisdiction
18.1. The Services offered by Six8 is intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Application, you agree that the exclusive venue for resolving any dispute shall be in the courts of New South Wales, Australia.
19. Governing Law
19.1. The Terms are 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 Terms 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 Terms shall be binding to the benefit of the parties hereto and their successors and assigns.
19.2. Users are solely responsible for compliance with any applicable laws of the country, state, or region from which they access this Site or Application.
20. Independent Legal Advice
20.1. Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.
21.1. If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.