MODRON Terms of Use

4 June 2020

This website (Site) and the associated online services are provided by Space Command Pty Ltd ACN 639 435 868 (‘MODRON’, ‘we’, ‘us’ or ‘our’).

These Terms of Use and our Policies (collectively, ‘Agreement’) govern your use of the Site and the Services. By requesting a username and password, you acknowledge that you have read the Agreement and that you agree to be bound by the Agreement. If you continue to use the Site or the Services after we post any new or varied terms on the Site, including any new policies, procedures or processes, the Agreement incorporates those new or varied terms.

Please be sure to check the Agreement regularly to keep up to date with any changes.

BY REQUESTING A USER NAME AND PASSWORD ON BEHALF OF AN ORGANISATION AND ENTERING ITS NAME IN THE CUSTOMER ACCOUNT DETAILS, YOU WARRANT TO MODRON THAT YOU ARE AUTHORIZED BY THE ORGANISATION TO BIND IT TO THE AGREEMENT. IN THAT CASE, THE ORGANISATION IS BOUND TO THE AGREEMENT AND ‘YOU’ AND ‘YOUR’ REFER TO THE ORGANISATION (AND ANY SUCCESSOR ENTITY OR ASSIGNEE OF THE ORGANISATION).

1 Definitions

Unless inconsistent with the context, the following terms have the following meanings:

Authorised User has the meaning given in clause 2(b).

Case means a case created on the Site where Users are Participants.

Confidential Information means information regarding the business, clients, licensing practices, marketing or technical operations of MODRON or any User (‘the discloser’), including information on the Site, that comes into the possession of another User (‘the recipient’) pursuant to or as a result of use of the Site but does not include information which: (a) is or becomes part of the public domain through no act or omission of the recipient; (b) was lawfully in the possession of the recipient, prior to acquisition, as shown by written records; or (c) is after the date of these Terms of Use lawfully disclosed to a party by a third party which did not acquire the information under an obligation of confidentiality to the discloser.

Consequential Loss means any loss or damage that does not arise directly and naturally, that is according to the usual course of things, from the breach or wrongful act or omission giving rise to the relevant loss, and: (a) loss of revenue or profit; (b) loss of opportunity; (c) loss of reputation or goodwill; (d) loss or corruption of Content or other data; and (e) special or exemplary damages.

Content includes material, information, data, underlying code, text, sounds, graphics and animated elements.

Disputant means a User registered with a User Account as a Party that seeks to engage a Mediator to resolve a dispute and includes the Party’s legal advisers authorized by the Party to use the Site from time to time on behalf of the Party.

Disputed Content means Content which is the subject of a dispute between Disputants and: (a) is alleged by a Disputant to have misled a Disputant, defamed a Disputant, or infringed the Intellectual Property Rights or other rights of a Disputant; or (b) a Disputant otherwise contends is actionable.

Includes means includes without limitation.

Insolvent means, in relation to a body corporate, a liquidation or winding up, the appointment of a controller, administrator, receiver, manager or similar insolvency administrator to a party or any substantial part of its assets or the entering into a scheme or arrangement with creditors or, in relation to an individual, becoming bankrupt or entering into a scheme or arrangement with creditors, or in relation to a body corporate or an individual, the occurrence of any event that has a substantially similar effect to any of the above events.

Intellectual Property Rights means all industrial and intellectual property rights of any kind including copyright, patents, trade marks, design, moral rights and other proprietary rights.

Mediation means the process engaged in by the Mediator and the Disputants, facilitated by the Site, with the objective of reaching a mutual agreement regarding a dispute.

Mediation Agreement means the agreement entered into between the Disputants and the Mediator which identifies the Mediation Fee and other terms by which each party agrees to be bound for the Mediation.

Mediation Fees means the amount(s) specified in the Mediation Agreement to be paid by the Disputants for the provision of the Mediator’s services, along with any Local Taxes payable, which may be invoiced through the Site.

Mediator means a Subscriber or User registered as a Mediator in their User Account.

MODRON means the entity first referred to above, or any successor in title, or any related body corporate or affiliate nominated for the purpose of provision of any of the Services in any country.

Local Taxes means any value-added tax, sales tax, goods and services tax or other tax or duty imposed on any transaction entered into under these Terms of Use that by local law must be added to any fees charged or in respect of any supply made under these Terms of Use that must be collected by MODRON or the Mediator.

Party means a User who is referred to on the Site in the role of “Party” to a Case.

Participant means a User in a Case and includes a Disputant.

Policies means our Privacy Policy, our Security and Data Protection Policy, and our Acceptable Use Policy, each as posted on the Site from time to time, or any of them as the context requires.

Security and Data Protection Policy means the policy we publish on the Site from time to time setting out the measures we take for the secure operation of the Site and the protection of your Content.

Services means the provision by MODRON of an online environment in which Disputants and Mediators have the opportunity to engage and enter into Mediation Agreements, as well as other services, as more fully described in policies and/or procedures from time to time. The level and nature of Services available to each User may depend on the level and/or type of subscription taken up and maintained by the User.

Site means www.modron.com and any sub-domains of www.modron.com or any other website that is operated by MODRON, and includes the whole or any part of the web pages located at www.modron.com (including but not limited to any elements of design and Content).

Subscriber means a User registered and making payment for a subscription for an account and does not include a Disputant

Subscription means the entitlements we grant to you as a User, including those usage rights set out in this Agreement and those privileges conferred by the Site depending upon the type of Subscription you choose upon creating a User Account (such as Professional Spaces, Business Spaces, Enterprise Spaces and any other type of subscription available from time to time).

Subscription Fee means the periodic fee payable to us for your Subscription, as set out on the Site at the time the Subscription is created.

Transaction Fee means MODRON’s fee for processing the payment of an invoice generated through the Site including for Mediation Fees.

User means any person or entity that is using this Site that has agreed to these Terms of Use by accessing the Site and/or creating a User Account, whether a Disputant, a Subscriber, a “Party”, or “Organisational Admin” or “Mediator” or otherwise.

User Account means an online account with MODRON which enables an eligible User to access secure regions of the Site.

2 Subscription and Site access

(a) You may access the Services only by registering for a User Account on the Site.

(b) When a User creates a User Account (or authorizes a User Account to be created in the User’s name by a person authorized to act on the User’s behalf (‘Authorised User’)), the User and/or the Authorised User will be provided with a username and will select a password.

(c) You agree, and will procure any Authorised User to agree, to keep your User Account password/s confidential and secure at all times and not to provide your username and password to any person or entity that is not acting on your behalf and for your benefit for the purposes of engaging with a Mediator or for the purposes of the Mediation. Except in the case of an Authorised User, you may not provide access to the Site to anyone else under your username and password/s.

(d) You agree:

(i) to notify us promptly if you become aware of, or have reasonable grounds to suspect, the loss, theft, disclosure to any third party of your user name and password or of any unauthorized use of your username, password, User Account or systems that interface with the Site; and

(ii) to use diligent efforts to remedy promptly any breach of security for which you or your personnel are responsible.

(e) By creating a User Account, you represent and warrant that:

(i) if you or any Authorised User are a natural person, you and any Authorised User are at least eighteen (18) years of age;

(ii) you and any Authorised User agree to, and will comply with, the Agreement;

(iii) the information provided by you or any Authorised User to create the User Account is current, true and correct in every detail and you will correct it if necessary and update it if any of the details provided change;

(iv) you and any Authorised User will only use your User Account and the Services for your own benefit; and

(v) neither you nor any Authorised User will attempt, in any manner whatsoever, to (i) gain access to the Site by any means other than through your own User Account, (ii) gain any access or interfere with or to impair the proper operation of the Site, or (iii) catalogue, download or otherwise reproduce, store or distribute Content on the Site except as expressly permitted by the Agreement.

(f) You will assume full responsibility for any and all use of the Site and Services by you, your Authorised Users or by any person accessing your User Account and the Site using your username and password, including any unauthorized use or misuse. Any breach by such users of any of these Terms of Use shall constitute a breach of such Terms of Use by you.

(g) We will provide access to the Site including the features of the Site that are available according to the level of Subscription that you have chosen.

(h) The features of the Site that are included in each Subscription level are specified on the Site at the time a User becomes a Subscriber which are subject to change at Our discretion.

(i) A Subscription includes a free trial for 14 days from the time of Subscription.

(j) After the 14-day free trial has expired, the Subscription Fee will be paid by the Subscriber monthly in advance by credit or debit card provided at the time the Subscription is created.

(k) A Subscriber may upgrade the Subscription to a higher-level Subscription at any time and the additional monthly pro rata cost of the higher Subscription will be deducted from the credit or debit card at the next monthly payment date.

(l) A Subscriber may downgrade the Subscription to a lower level Subscription at any time, and the difference in cost will be credited to the Subscriber’s account and applied at the time of the next monthly payment date until the credit has been used.

(m) A Subscriber may cancel the Subscription at any time before the next monthly payment date and access to the Site will continue until the next payment date and will then cease.

(n) A Subscriber will receive an invoice and receipt for each payment made by email to the email address of the Subscriber.

(o) A Subscription price is in Australian dollars unless otherwise stated at the time of Subscription.

3 Security

(a) Our Privacy Policy and our Security and Data Protection Policy set out the measures we take for the secure operation of the Site and the protection of your Content. In accordance with those Policies, but subject to clause 3(b), we will use commercially reasonable endeavours to:

(i) securely store all Content supplied by you and generated for Mediation purposes in accordance with those Policies; and

(ii) ensure such Content will not be released to anyone except as required by law or any agreement between the Disputants and the Mediator of the Mediation.

If you become aware of any problems with the security of the data or the Site, please contact us immediately by email at support@modron.com.

(b) Given the nature of the Internet, we do not warrant or guarantee that:

(i) any data transmission dependent on the Internet is totally secure;

(ii) your access to the Site will be uninterrupted or error free; or

(iii) the Site will be free from viruses, ‘malware’ or other harmful code which could damage, use or interfere with your computer systems, however, we will take commercially reasonable steps to minimise such issues, and to protect the Site against harmful code.

(c) You must take your own commercially reasonable precautions to ensure that your systems are not infected with any such code.

4 Use of the Site and the Services

(a) You must use the Site:

(i) in compliance with our Acceptable Use Policy;

(ii) in compliance with the other parts of the Agreement, and any Mediation Agreement and any Non-Disclosure Agreement to which you become a party;

(iii) in accordance with all applicable laws and regulations;

(iv) in such a way as not to bring us or any other user of the Site into disrepute.

(b) You are solely responsible for ensuring that your use of the Site and the Services will allow you to comply with any particular laws, regulations, codes or industry standards by which you are bound including the National Mediator Accreditation System (NMAS) Practice Standards in effect in Australia.

(c) You agree that it is your responsibility to provide, at your own expense, all equipment and software necessary to access the Services and to use the Site, including computers, terminal equipment, software including operating systems and applications and any updates thereof, internet access and communications services. You are solely responsible for any errors made by, or the failure of, such equipment and software that you use to access the Services and the Site.

(d) You acknowledge and agree:

(i) to provide such information as we may reasonably request from time to time in relation to, or for the purposes of, the proper use of the Site;

(ii) to ensure that all Content you upload to or transmit via the Site is, to the best of your knowledge and belief, true, accurate and not misleading, excluding Disputed Content; and

(iii) that we may make available to your Mediator or any Disputant with which you are or intend to be in Mediation certain information you submit when creating a User Account, including the identity of the Mediator or those Disputants, in order to facilitate provision of the Services and the entry into a Mediation Agreement;

(e) You must not, and you must ensure that your Authorised Users do not:

(i) use the Site, the Services or the User Account in a malicious, fraudulent or illegal manner;

(ii) disclose information that you do not have the right to disclose, including but not limited to Confidential Information and Disputed Content;

(iii) infringe the Intellectual Property Rights of others;

(iv) infringe our Intellectual Property Rights, including by using the names MODRON, MODRON Spaces, Mediation & Online Dispute Resolution Operations Network or our logos in any business name, email or URL except with our prior written consent;

(v) upload or transmit anything to the Site that contains software viruses, worms or any harmful code;

(vi) copy or use the Content on the Site including Disputed Content (other than Content you or your Authorised Users have generated);

(vii) monitor the Site’s availability, performance or functionality for any competitive purpose;

(viii) access the Site except through the interfaces expressly made available by us; or

(ix) override any security feature of the Site.

(f) In addition to the Agreement, you must comply with the terms of each Mediation Agreement or other agreement into which you enter through use of the Site or the Services.

(g) You understand and agree that MODRON will not itself have any obligations in respect of any Mediation and MODRON shall bear no liability whatsoever to any Mediator or any Disputant in relation to the conduct of any participant in a Mediation or the outcome of any Mediation.

5 Terms for Disputants

(a) It will be a condition of the use of the Services in a Mediation that you agree to the term and conditions of the Mediator’s Mediation Agreement.

(b) We may, but have no obligation to, monitor, edit or remove Content that we determine in our sole discretion is unlawful, offensive, threatening, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or the Agreement. This does not apply to Disputed Content which is uploaded to the Site in good faith for the purposes of a Mediation.

(c) You must ensure that all Content you upload to the Site, other than Disputed Content, will not:

(i) violate any right of any third party, including Intellectual Property Rights; or

(ii) contain defamatory or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Site or any related website.

(d) You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third parties as to the origin of any comments.

(e) The Mediator or a Disputant may download Content including Disputed Content that you upload to the Site, for the purposes of the mediation being conducted using the Site.

(f) You may only use Content including Disputed Content that you download from the Site for the purposes of the mediation being conducted using the Site and you agree that the terms of the Mediation Agreement apply to any documents you download from the Site.

(g) You acknowledge and agree that the Mediator of a Dispute does not make any representation, guarantee or warranty that the mediation process will be secure and confidential and that you have made your own enquiries as to the security and confidentiality of the Site for the purposes of the mediation being conducted on the Site.

(h) A Mediator may delete all Content generated in a User Account including electronic notes and records including messages, documents uploaded, data and Disputant User details including name, phone number, email address, and country details.

6 Terms for Subscribers

Invoice payment function

If you are a Subscriber, you agree that:

(a) if you send a Participant an invoice via the pay function on the Site, MODRON may deduct the Transaction Fee payable by you in respect of the invoice, plus any Local Taxes before remitting the balance to you into the bank account set up by you on the Site; and

(b) a payment by MODRON to you into your nominated bank account will identify MODRON as the payer and it is your responsibility to identify the Disputant or invoice to which the payment relates.

7 Fees and Charges

(a) If you are a Participant, a Subscriber may upload to the Site their invoices for a Fee and if you receive an invoice you will have the option to pay the invoices by credit card or debit card via the pay function on the Site. If you pay the invoice via the Site MODRON will deduct the Transaction Fee payable in respect of the invoices, plus any Local Taxes before remitting the balance due to the Subscriber.

(b) If you are a Subscriber, and a Subscription Fee is payable by you for a particular service subscription or renewal of that subscription, you will pay to us the Subscription Fee, plus any Local Taxes payable, by credit card or debit card,

(c) During the period of an active paid Subscription:

(i) The Subscriber may create an unlimited number of User Accounts for a Participant free of charge ; and

(ii) A Participant’s User Account is free of charge;

(iii) The Subscriber may create an unlimited number of additional User Accounts for a Mediator or Organisational Admin which will incur an additional charge per User Account that is specified on the Site at the time of creation of the additional User Account.

(d) You agree that:

(i) we may increase, decrease, modify, alter, introduce or remove any fee for the Services, either permanently or temporarily; and

(ii) we will provide 30 days notice to Subscribers of any prospective change of the Subscription Fee applicable to them or any other fees charged by MODRON for the Services, and these changes will only affect transactions that take place after the 30 day notice period has elapsed.

8 Termination and suspension

(a) We may immediately terminate the Agreement by written notice to you if:

(i) you breach a material term or condition of the Agreement;

(ii) you breach a non-material term of the Agreement and do not rectify the breach within 48 hours after we give you written notice of the breach;

(iii) you are Insolvent; or

(iv) we receive notice from another party to a Mediation Agreement that you have materially breached the Mediation Agreement (Breach Notice) and the Breach Notice is not withdrawn by that party within 5 Business Days.

(b) Without limiting clause 8(a), we may suspend your access to the Site and the Services:

(i) instead of terminating the Agreement under clause 8(a);

(ii) if we have reasonable grounds to believe that unauthorized users are accessing your User Account; or

(iii) if the Subscription Fee or any renewal subscription has not been paid for seven days.

(c) We may remove or delete any Content contained in a User Account or otherwise stored by or on behalf of MODRON within two (2) Business Days after the termination of your access to the Services.

(d) Within 30 days of a written request from a Subscriber, MODRON will delete all Content generated in a User Account including electronic notes and records including messages, documents uploaded, data and Partipants details including name, phone number, email address, and country details.

9 MODRON’s Confidential Information and Privacy

(a) You must treat as confidential all Confidential Information.

(b) You must not, without our prior written permission, use or disclose Confidential Information to a third party, or otherwise use or exploit the Confidential Information.

(c) These obligations not to disclose Confidential Information shall not apply to disclosure where required by law or a regulatory body.

(d) Unless we have received a written request from a Subscriber for deletion, we may retain and assess any data or information concerning your use of the Site, subject to MODRONʼs Privacy Policy.

(e) The Site requires the use of cookies to gather and maintain data in relation to your use of the Site, in accordance with MODRON's Privacy Policy, and you consent to MODRON doing so.

10 Intellectual Property

(a) You grant to MODRON a perpetual, irrevocable, royalty-free licence to use for the purpose of operating the Site and performing the Services any Content you upload to the Site.

(b) MODRON is the owner or licensee of all Intellectual Property Rights in the Site.

(c) Nothing in these Terms of Use or on the Site constitutes any form of assignment of any Intellectual Property Rights, unless something you do in using the Site amounts to an assignment.

11 Subcontractors

We may subcontract the whole, or any part, of our obligations under the Agreement without requiring your prior consent provided that we will:

(a) continue to be fully responsible for all our obligations under this Agreement; and

(b) use our reasonable endeavours to ensure our subcontractors are aware of the terms of this Agreement that are relevant to their responsibilities.

12 Indemnity

(a) You must defend, indemnify and keep us indemnified from and against all loss, cost, expense (including legal costs and expenses on a solicitor and own client basis) or liability incurred by us arising from any claim, demand, suit, action or proceeding by any person against us where such loss or liability arose out of:

(i) your breach of clauses 2, 3, 4, 11 or 12;

(ii) your wilful misuse or fraudulent use or misuse of the Site or the Services;

(iii) a dispute with another User; or

(iv) your violation of any law or the rights of a third party.

(b) You agree to cooperate as fully as reasonably required in the defence of any claim.

(c) We reserve the right to assume the exclusive defence and control of any matter subject to indemnification by you for which you will remain responsible for indemnifying us and holding us harmless.

13 Liability

(a) Where legislation implies in these Terms of Use any guarantee, condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such guarantee, condition or warranty, the guarantee, condition or warranty shall be deemed to be included in these Terms of Use. However, our liability for any breach of such guarantee, condition or warranty shall be limited, at our option, to one or more of the following:

(i) the supplying of any goods or the services again; or

(ii) the payment of the cost of having the goods or services supplied again.

(b) Subject to clause 13(a):

(i) any condition or warranty which would otherwise be implied in these Terms of Use is hereby excluded;

(ii) we exclude any liability for Consequential Loss; and

(iii) except as set out in clause 13(c), our maximum aggregate liability under or in connection with the Agreement will not exceed $10,000.

(c) Clause 13(b) does not limit our liability for fraud.

(d) The limitations and exclusions in this clause 13:

(i) apply to the full extent permitted by law;

(ii) apply regardless of the basis on which liability may arise, including contract, breach of statutory duty, tort (including negligence), in equity or under statute; and

(iii) will survive expiration or termination of the Agreement.

14 Disputes

(a) A party must not commence legal proceedings (save for an urgent interlocutory or interim injunction) unless it first complied with this clause 14.

(b) If a party has a dispute in relation to the Agreement, it must notify the other party in writing providing details of the dispute and the outcome sought.

(c) Following the receipt of such notice, both parties must negotiate in good faith and use their reasonable endeavours for a period of 30 days to agree upon a mutually acceptable resolution of the dispute.

15 Force Majeure

A party will not be liable for any delay in performing, or failure to perform, its obligations under the Agreement to the extent such delay or failure is caused by acts of God, acts of government, strikes, lockouts or other industrial disturbances, blockades, wars, insurrections or riots, epidemics, pandemics, landslides, fires, storms, floods, explosions or other similar causes beyond its control of a party.

16 Further Assurances

You will upon our request at any time and from time to time, execute, sign and deliver all documents and do all things necessary or appropriate to evidence or carry out the intent and purposes of these Terms of Use.

17 Entire Agreement

The Agreement constitutes the entire agreement between the parties and supersedes all prior representations, agreements, statements and understanding, whether verbal or in writing.

18 Other Websites

(a) The Site may contain links to other websites that are owned or operated by third parties. These links are provided for convenience only and may not remain current or available. We should not be understood to be endorsing, approving, recommending or giving preference to these third parties or their websites, or any information, products or services referred to on those third party websites unless expressly stated. If the User links to these websites, it/he/she does so at its/his/her own risk and should make its/his/her own enquiries as to the privacy policies of these third parties. We are not responsible for information on, or the privacy practices of, such websites.

(b) You must not create, cause or permit any linkages to this Site without our written permission first being obtained.

19 Governing Law and Jurisdiction

These Terms of Use are governed by and construed in accordance with the laws of Victoria, Australia, and you irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of that jurisdiction. If you access this Site in a jurisdiction other than such location, you are responsible for compliance with the laws of that jurisdiction, to the extent that they apply. We make no representations that the content of this Site complies or any of the Services comply with the laws of any country other than in its location.

20 General

(a) We may, from time to time, change, add or remove Content or services from this Site without notice.

(b) Where your access to this Site is terminated for any reason, all obligations of confidentiality, with respect to intellectual property rights, indemnities, disclaimers and limitations of liability set out in these Terms of Use will survive.

(c) If any provision of these Terms of Use is found to be invalid or unenforceable by a court of law, such invalidity or unenforceability will not affect the remainder of these Terms of Use, which will continue in full force and effect.

(d) A provision of or a right created under these Terms of Use may be waived or varied by us at our discretion. Failure to exercise or enforce, or a delay in exercising or enforcing, or the partial exercise or enforcement of, a right, power or remedy provided by law or under these Terms of Use by us does not preclude, or operate as a waiver of, the exercise or enforcement, or further exercise or enforcement, of that or any other right, power or remedy provided by law or under these Terms of Use. No waiver of a breach of a term of these Terms of Use operates as a waiver of another breach of that term or of a breach of any other term of these Terms of Use.

(e) You may not assign any of your rights under the Agreement to anyone else without our prior written approval. Our approval may be subject to such conditions as we may reasonably impose. Our approval will not relieve you of your obligations under these Terms of Use.