Anytime Counselling End User Licence Agreement (EULA) dated: 1 August 2021

These website Terms and Conditions apply to use of, and access to, the Anytime Counselling Website (referred to as the Website in this EULA).

If you do not agree to these Terms and Conditions you must not use or access any page, application, or resource accessible through the Website, including any User Account.

By using or accessing any page, application, or resource through the Website, you accept the following Terms and Conditions and enter into an agreement with Anytime Counselling Pty Ltd t/a Anytime Counselling ABN 94 645 668 284 (“EULA”).

This document must be read in conjunction with our Privacy Policy, which is incorporated by reference and is available at https://app.anytimecounselling.com.au/privacy.

This document must be read in conduction with our other Policies, which are incorporated by reference and are available at https://app.anytimecounselling.com.au/policies.

Notice: Anytime Counselling is not a professional counselling practice, and does not provide counselling services. The Professional Services offered on the Website, are delivered by independent Professionals. Our Services solely relate to the introduction of Professionals and Subscribers, and enabling convenient access to, and delivery of, counselling services using the features of the Website.

Definitions and interpretation

Capitalised terms in this document have special meanings, which are defined in the Glossary at the end of this document, or in context in other places throughout the document.

Provision of Services

For the duration of, and subject to these Terms and Conditions:

we will provide the Website in accordance with this EULA as varied by us and agreed by you from time to time; and

we will provide you with a User Account, which you will be able to access and administer.

As a Subscriber, our Services include the following features and benefits that are available through the Website:

a categorised list of Professionals that provide Professional Services through the Website;

a filtered search to find a Professional with particular attributes or skills and experience;

a convenient and transparent process to book Professional Services;

a convenient, private, and secure method to communicate with one or more Professionals through the Website;

convenient monthly Subscription payments to access Professional Services each month;

our Quality Assurance Program;

a dispute resolution process if you are not satisfied with the Professional Services you have received.

As a Professional, our Services include the following features and benefits that are available through the Website:

A profile page that details your skills and experience, and allows you to categorise your Professional Services, so that your intended customers can find you through our filtered search service;

A booking service for the scheduling of Sessions with Subscribers;

Convenient monthly payments from Anytime Counselling based on Professional Services delivered to Subscribers in accordance with this EULA. and

Australia wide Subscriber base.

Service limitations

The Website is hosted by a third party service provider and we do not guarantee that your access to it will be continuous or error free. If you have difficulties accessing the Website, please check the status page here: https://status.aws.amazon.com (Asia Pacific, Sydney).

The Payment Processor is a third party and we do not guarantee that the payment processing service will be persistently available, continuous or error free. If you have difficulties making a payment, please check the status page here: https://status.stripe.com/

The video-conferencing capability is provided by a third party service provider and we do not guarantee that your use of this service will be continuous or error free.

We do not provide any specific support services under this EULA, however a range of general support information, tutorials, and FAQs are available through the Website. If you have any queries then please contact us at info@anytimecounselling.com.au and we will try to assist you as soon as we can.

We are not responsible for any defects, delays or interuptions to the Services caused by the delays, action or inaction of any third parties; and without limitation such as hardware suppliers or installers, internet service providers, telecomuunications companies or service providers or Force Majeure Events.

We do not verify any information or Content published by Users, except for the Auditable Registration Records. You are responsible for:

making all necessary enquiries about the qualifications, experience and suitability of any other User that you communicate with, or participate in any activities with;

ensuring that any User from whom you obtain any Professional Services

is providing services that are appropriate for your circumstances;

is delivering their services in a manner, that meets your reasonable expectations.

Term

This EULA begins upon your acceptance of these Terms and Conditions and continues until the expiry of the first Billing Period ("Initial Term"). Upon expiry of the Initial Term, or the then current Renewal Term, the EULA will automatically renew for the next Billing Period ("Renewal Term"). A User may terminate this EULA at any time after expiry of the Initial Term, and the EULA will terminate at the end of the then current Renewal Term (please refer to clause 29 for further details).

You accept these Terms and Conditions upon the earliest occurrence of any one of the following events:

you accessing any page, application or resource related to the Website;

you sign up for a User Account and you check the checkbox that indicates that you agree to Anytime Counselling's Terms and Conditions;

you check any other checkbox that indicates that you agree to these Terms and Conditions, when prompted by us when you are using, or imminently about to use, any feature of the Website;

you make payment in relation to a Subscription;

you request that we do anything to assist you to set up a User Account or Subscription for you, or if you are a Referrer you make such a request for any Subscriber;

you logging into the Website using your User Account credentials.

To the extent that we vary or add new Terms and Conditions in accordance with clause 5.1, then you accept such variation or additional Terms and Conditions upon the earliest occurrence of any of the events listed in clause 4.2(a) through 4.2(f), after we notify you of such variation or addition.

General conditions of use

We may vary these Terms and Conditions or impose new terms and conditions on your use of the Services or the Website at any time, by a notice published on your User Account or on the Website, or otherwise in accordance with your User Account preferences.

We may add features or update the Services from time to time. You may be required to agree to additional terms or other requirements in order to use such additional features or Services.

Nothing in this clause 5 or clauses 6, 8 and 9 is to be read as limiting our rights in administering the Website, or methods that we may use to control the features available to you, or our provision of Services to you, through the Website.

You must comply with all policies that we publish from time to time. However, a policy that we publish does not create a contractual right that you may enforce against us in any circumstances. All our rules and policies will be published by us from time to time and can be accessed at https://app.anytimecounselling.com.au/policies.

User obligations (all Users)

As a User, you have various obligations. Each of the following applies to each User including Subscribers and Professionals.

Positive obligations

You must meet the relevant conditions of registration at all times that you use the Website, and supply us with all required information relating to registration and ensure that it is true, accurate, and complete at all times.

You must notify us if you believe that your User Account has been accessed without your authority.

You must take reasonable measures to prevent any unauthorised person from accessing the Website, your User Account, or any other Services you obtain from us using your User Account credentials. You are responsible for any damage caused or fees incurred by any such person.

You must allow us to make changes to your User Account or Content that we deem necessary.

You are responsible for the Content, integrity and conduct of your User Account on the Website, and:

we are not a party to any agreement directly between you and any other User, including any agreement between a Subscriber and a Professional, and we are not responsible for, or bound to comply with, the terms of any agreement between you and any other User unless we otherwise agree in writing (for clarity this EULA does not constitute such agreement);

Professionals using the Website may upload their own terms and conditions for provision of their Professional Services through the Website, however, such terms and conditions do not affect, modify or supersede this EULA or any of your obligations to us, in any way, and any provision of such terms and conditions that conflict with the obligations of a Professional to a Subscriber as described in this EULA will be deemed void. For clarity, a Professional's terms may not seek to charge any fee to a Subscriber directly, and may not vary the fee due to the Professional under any circumstances.

Negative obligations

You must not use your User Account or the Website to upload, transmit, communicate, or record information about any other person on the Website, unless you have written authority to do so. We may ask you to provide evidence of such authority, and upon such request, you must deliver up that evidence within 2 Business Days.

You must not use information about another User gained through the Website for any purpose other than in accordance with this EULA, including any policies published by us from time to time. Further:

Information received by a Professional through their use of the Website about a Subscriber must be used in accordance with the Professional's code of conduct; and

Information received by a Subscriber through their use of the Website from a Professional is solely for that Subscriber, and must be used only for the Subscriber's personal purposes and must not be publicly disclosed unless the Professional has provided written authorisation in advance for release of that information (which may be subject to any conditions the Professional deems appropriate).

You must not upload or publish any Content that is misleading, unlawful, unsuitable for general viewing or consumption, obscene, defamatory, in breach of any advertising standards, or in breach of any person’s privacy or other human rights. Please note that this is not a restriction on disclosure or discussion of such things within a Session.

You must not use your User Account to mislead or deceive any other person. Without limiting the generality of the foregoing obligation whatsoever, you must not misrepresent your level of skill, experience, ability, physicality, gender, age, interests, location, or preferences, in any way.

You must not upload any Sensitive Information, or information that you may disclose in a Session to the Website, whether by use of a form, or through any other Electronic Communication direct to us. For clarity, this clause does not apply to information shared between a Subscriber and a Professional during a Session.

You must not:

reverse engineer, reverse assemble or reverse compile the Website or any part of it;

combine or incorporate the Website in any other program or system without our prior consent in writing;

copy the Website, or any Content contained on it belonging to a person other than you, in whole or in part; or

breach any obligation you have under clause 32 (restraints, non-solicitation, non-circumvent, and non-compete).

User obligations (Professionals' additional obligations)

If you are a Professional, in addition to any other obligation you have under these Terms and Conditions:

you must:

have an Australian Business Number;

be registered for Goods and Services Tax (GST) if required by law;

have all prudent insurance policies for the types of services that you provide, as advertised on the Website, or otherwise;

be entitled to offer the services you offer on the Website, and be legally entitled to charge any related fees;

deliver your Professional Services consistently with the way you promote them on the Website; and

you must not:

make any false or misleading statements or claims through your use of the Website;

misrepresent your skills, experience, qualifications or capacity to deliver Professional Services through use of your User Account or otherwise while using the Website; or

disparage, or ridicule, any other Professional, or User.

Conditions of registration for Subscribers

As a Subscriber your registration for a User Account and use of the Website, is conditional on you at all times:

being an individual of at least 18 years of age and not being the subject of any legal incapacity;

being capable of entering into binding contracts;

not contravening any laws by entering into an agreement with us, or with any Professional;

providing us with, and keeping up to date, all required registration information;

providing us with all reasonable assistance to deliver our Services to you; and

complying with these Terms and Conditions and all of your obligations under this EULA;

appointing us as your agent to remit payment to each Professional from whom you have received Professional Services each month, subject to you confirming, or being deemed to have confirmed that the relevant Professional Services were received by you – please see our Counselling Rules of Conduct Policy for details, which is available at https://app.anytimecounselling.com.au/policies;

paying the amounts owing to us for your Subscription in advance; and

authorising us to charge you our Fees for use of the Website.

Conditions of registration for Professionals

As a Professional your registration for a User Account and use of the Website, is conditional on your compliance with each of the following paragraphs at all times during the term of this EULA.

You acknowledge that all Professionals are paid a set amount for provision of specific Professional Services, which will be set out in the Counsellor Contract Particulars. You further acknowledge that the amounts payable may change over time (at our election).

You must at all times deliver your Professional Services in accordance with the Counselling Rules of Conduct Policy which is published from time to time at the following page: https://app.anytimecounselling.com.au/policies, and this forms part of our Quality Assurance Program.

You must hold a current professional indemnity insurance policy for provision of your Professional Services, and such policy must cover you for the minimum claim value described in the Counsellor Contract Particulars, and if not described then $1 Million.

We may from time to time offer to automate certain aspects of making payments to you, and without limitation this may include use of the Australian Tax Office's recipient created tax invoice procedures. If you use any such automated Services, you must comply with any relevant policies that we publish from time to time in relation to them.

You must supply us with the following information, and keep all such information up to date

Business related information including (each an "Auditable Registration Record"):

Your full name;

Business name, if any;

Australian Business Number (ABN);

Registration for GST status;

Address (mailing and or physical address);

Contact phone numbers (for our use);

Email address (for our use);

Professional registration details, including name of association, membership status, membership type, and date of first registration;

Name of professional indemnity insurer, start and end date of current policy, and policy number;

A brief summary of your skills and experience, and your interests or preferences relating to your services;

Any preferences you have for the age groups of Subscribers to whom you want to provide your services;

Your bank account details to which we are to remit payments;

All contact information required by us in the registration form, or as otherwise requested in writing by us; and

Any other information that we reasonably request from you from time to time.

You (a Professional) warrant that all information that you provide to us is true, accurate, and complete.

You (a Professional) hold us harmless for any damage or loss you suffer for breach of your warranties under clause 9.2.

You (a Professional) indemnify us against all losses, damages, or other claims made against us for your breach of your warranties under clause 9.2.

Subscriptions

Changes

You may make changes to your Subscription once during any Renewal Term, and such changes will take effect from the start of the next Renewal Term. Please refer to our policies and FAQ for details.

Payments

If you sign up for a Subscription with an associated Subscription Fee, you must pay the relevant amount monthly in advance. You agree that we may deduct the Subscription Fee from the Credit Card, Debit Card, bank account, or other method of payment that applies in the circumstances, each month in accordance with this clause 10 for the duration of your Subscription.

No refunds are payable in whole or in part for unused entitlements under a Subscription in any Billing Period, including without limitation due to change of mind, not scheduling Sessions, not attending Sessions as scheduled, or seeking to reschedule a Session on short notice in the last week of any Billing Period that cannot be rescheduled due to limited availability of the Subscriber or the Professional.

Billing

All Subscriptions are automatically billed by us in the last 7 days of each Billing Period, for access to the Website and the Professional Services in the following Billing Period.

Inclusions

Each Subscription includes a fixed number of Sessions as advertised. Subscriber is responsible for booking the number of Sessions he or she is entitled to, and if you do not use your entitlements for the relevant period, they will expire at the end of that period. This clause 10.5 is subject to clause 11.1.

Changes to scheduled Sessions

A rescheduled Session must occur in the same Billing Period as the original Session.

Despite clause 10.5 Subscriber or the relevant Professional may initiate a change to a scheduled Session, if the change is agreed by the other User. This clause 11.2 is subject to clause 11.1.

For avoidance of doubt, by accepting a schedule change, you (being either a Subscriber or a Professional) accept that clause 11.1 applies to that change.

If Subscriber seeks to reschedule a Session outside of the Billing Period of the original Session we may at our sole unfettered discretion accept or reject that change, but our acceptance may be subject to booking the Session with a different Professional, or agreeing to arrangements between the Subscriber, Professional and us to facilitate the rescheduled Session. If Subscriber does not agree to any reasonable arrangements proposed by us we may cancel the Session.

Professional Services

Professionals may only use the Website to deliver professional counselling services in accordance with this EULA, and the professional code of conduct that applies..

Each Professional must comply with the Counselling Rules of Conduct Policy.

Each Session must be conducted by a Professional for at least the Minimum Session Time noted in the Counsellor Contract Particulars. Session durations less than this will not qualify for payment unless we deem otherwise at our sole unfettered discretion.

If a Session continues for more than the Allocated Session Time, no additional fees accrue to the benefit of the Professional.

A disputed Session will not be paid unless the dispute is settled in the Professional's favour.

Transfer of Subscriber information upon request

A Subscriber may request that their information, as being held by a Professional, be transferred to another Professional. This request may be made during a Session, or through any feature of the Website from time to time that facilitates such a request.

A Professional who receives a request in accordance with clause 13.1 must fulfil that request as soon as possible, and in any event within 5 Business Days. However, if such request would be contrary to law, then Professional may refuse to fulfil the request.

If Professional refuses to fulfil a request under clause 13.1, then Professional must notify us immediately by email to info@anytimecounselling.com.au.

A Professional withholding a Subscriber's information in contravention of this clause 13 is grounds for termination of Professional's User Account.

Fees

We may deduct our Fee each month at or after the time we pay Professionals for services delivered to you. And for clarity, where a Reserved Amount, or any part of such amount is deemed by us as not payable to a Professional, it becomes part of our fee unless we determine otherwise at our sole discretion.

Payments to Professionals

We will pay you as a Professional in accordance with the following paragraphs:

We will process payments once in the first 7 days of each month, for the Professional Services delivered in the previous month;

In order to be paid for any particular Session:

you must meet the minimum delivery requirements for a Session as described in the Counselling Session Closeout Policy;

you must comply with all requirements of the Counselling Rules of Conduct Policy that apply to Professionals;

you must respond to any queries from us if a Subscriber raises a complaint or dispute in relation to the Session;

there must not be an unresolved complaint or dispute on foot in relation to the Session;

that Session must not be subject to a Negative Determination;

you must notify us of your current bank account details at least 7 days prior to the end of each Billing Period; and

your User Account must not be suspended at the relevant time.

We will deliver the following to you in relation to each payment made, or to be made as the case requires:

Remittance advice;

A copy of the relevant RCTI (if applicable), which will include a list of the Sessions included and being paid; and

A copy of the pro-forma invoice (if applicable), which will include a list of the Sessions included and being paid;

A summary of any Sessions that will not be, or were not, included in the payment and their status at the relevant time.

Reversed transactions

If the Payment Processor reverses a Subscription Fee transaction conducted on the Website, then you remain liable to pay the Subscription Fee. You must also reimburse us for any additional fees and charges incurred by us relating to the reversal of any such transaction.

Right to subcontract

We may appoint employees, sub-contractors, or agents to provide some or all of the Services; and such entities are bound by the same obligations as us. It is our responsibility to ensure such entities comply with this Agreement.

Payment processing

We do not receive or store any credit card information. All credit card information is processed securely by the Payment Processor.

Any payment made using the Payment Processor will be subject to their terms and conditions of service; and, you are responsible for complying with all such terms and conditions.

Payment adjustments

If we agree to process any payment adjustment, refund, other transaction that is not otherwise expressly provided for under this EULA, then we may require that you sign documents, which include acknowledgements, warranties, undertakings and other provisions in relation to that transaction, and if you refuse to sign such document we may refuse to process the relevant transaction.

Sale of goods and services

Users must not sell or purchase any goods or services to any other User on the Website except as otherwise contemplated by these Terms and Conditions.

Reporting abuse of the Website

If you believe that another User, including any Professional or any Subscriber, is abusing the Website, or is breaching their obligations under these Terms and Conditions, then you may report that User by email to info@anytimecounselling.com.au.

Intellectual property

Content and Third Party Intellectual Property

You (or where applicable, the third party owner) retain ownership of all Content you upload to your User Account and such rights are not assigned or transferred to us under this EULA.

You grant us a perpetual, irrevocable, royalty-free licence to use, copy, modify or adapt the Content as reasonably necessary to perform our rights and obligations under this EULA, including the right to grant sub-licences where reasonably necessary.

You warrant that you have full right, title and interest, or the legal right and authority, to grant the licence in clause 22.2, and that our use or modification of the Content in accordance with this EULA will not infringe upon any third party Intellectual Property Rights.

Website

We own, or are licensed to use, all components of the Website.

Subject to your continued compliance with these Terms and Conditions, for the duration of this EULA we grant you a licence to use, enjoy, and exploit the Website for your purposes, in accordance with this EULA.

Publicity Rights

If you are a Professional you must not advertise or promote any services that you provide, other than through the Website.

Privacy

We may use your contact details to send you promotional information about our new services and offers from us or our affiliates, or to notify you about important changes to the Website, subject to our Privacy Policy which is incorporated by reference.

Our Privacy Policy can be accessed at this link: https://app.anytimecounselling.com.au/privacy.

We may change the terms of the Privacy Policy from time to time in accordance with this EULA. If you do not agree with the changes that we make to the Privacy Policy you may end this EULA in accordance with clause 29 of this EULA. In which case, the provisions of the Privacy Policy in force at the time of your written notice will continue to apply until this EULA is terminated; and will continue to apply to any information that we hold about you.

Third party services

The Website has functionality that is provided by third parties, and you may need to agree to certain Terms and Conditions with relevant third parties to use their functionality.

If you do not wish to agree to a third party's terms, or do not wish to use their services as integrated into the Website, then your only option is to discontinue using the Website and our Services.

We do not control and have no ability to change the Terms and Conditions that third parties impose on their services, and we are not responsible for any third party's privacy or information practices, and you must satisfy yourself of the suitability of these third party's services for your particular circumstances.

Complaints

As a User you may submit a formal complaint about another User.

A complaint may be submitted by email sent to complaints@anytimecounselling.com.au.

We will consider the circumstances surrounding the complaint and will notify the complainant of the remedy we deem appropriate in the circumstances. Upon receipt of our notice, the complainant may accept the proposed remedy, or raise a dispute.

Dispute resolution

As a User if you are dissatisfied with our proposed remedy to your complaint about another User, or you are raising a dispute with us, then you may submit a "Dispute Resolution Request".

If the dispute is with us (rather than another User) then we may either seek to remedy the dispute by negotiation with you, or the dispute may be referred to a mediator by you or us – please refer to the mediation clause for details.

If the dispute is with another User then we will seek to resolve the dispute between the parties, by negotiation with each party. In the event that a party is unreasonably acting, or omitting to act in a manner that would enable us to resolve the dispute, then we may take any action we deem reasonable in the circumstances, including without limitation withholding payments, cancelling services or benefits, suspending one or more User Accounts, or terminating the EULA of one or both of the disputants.

Mediation

You may not initiate court proceedings against us unless you have complied with this clause 28.

If a dispute cannot be resolved by negotiation or conciliation directly between the disputants, then it must be referred to mediation.

If a dispute is referred to mediation, then each party will bear the costs of the mediation equally and must do all things reasonably necessary to attend and participate in the mediation. A party may not appoint a legal practitioner to represent them at a mediation but may have such a person in attendance solely to advise them.

The parties may agree on a mediator, but in absence of agreement, either party may request that the Law Society of New South Wales nominate a mediator for the purposes of this clause 28.

If the dispute is not resolved within 30 days of the appointment of the mediator, then the bar to proceedings in clause 28.1 above ceases to have effect for any party that has fulfilled their obligations under clauses 28.2 and 28.3.

Suspension and Termination

Suspension

We may conduct scheduled or mission critical maintenance of the Website during which time the Services may be interrupted. We will give you reasonable notice of such maintenance where possible and make all reasonable efforts to keep any disruption to a minimum.

We may suspend the Services and disable access to your User Account at any time and give you a written notice of default if:

you do not make any payment when due, or any payment is dishonoured or subject to chargeback; or

we have reason to suspect illegal or unethical activity in relation to your User Account, data, or Content; or

in our reasonable opinion your Content, conduct, data, network, software or equipment may cause, or may have caused, damage to any person or property; or

you do not comply with any of the Terms and Conditions contained within this EULA, including any of your obligations.

If we suspend our Services to you, we may notify any Payment Processor in this regard, and you authorise us to receive any information from the Payment Processor about the status of your account with them, if any, or use of their services in relation to the Website.

If we suspend our Services to you, we may notify any other User with whom you are scheduled to have, or have previously scheduled, a Session with.

Termination for default

We may terminate this EULA immediately by written notice if:

you publicly criticise, ridicule, or take any other action that may adversely affect the reputation of Anytime Counselling, the Website, or any other User;

you fail to remedy an Event of Default despite receiving 7 days written notice of default from us;

you are guilty of dishonesty, serious misconduct or serious neglect of duty in relation to another User;

you act unlawfully in relation to your User Account or the Website, or you cause, aid, or abet another person to do so;

you breach any provision of clause 32; or

you experience an Insolvency Event.

If we terminate this EULA under clause 29.5, we may notify any Payment Processor in this regard, and you authorise us to receive any information from the Payment Processor about the status of your account with them, if any, or use of their services in relation to the Website.

If we terminate this EULA under clause 29.5, we may notify any other User with whom you are scheduled to have, or have previously scheduled, a Session with.

Termination for convenience - Subscribers

You may terminate your subscription in accordance with clause 4, by emailing us at cancellations@anytimecounselling.com.au.

Termination for convenience - Professionals

You may terminate this EULA at any time by written notice, which includes using any feature on the Website that allows you to close or delete your User Account. Upon receiving your notice, or other cancellation request, we will disable the booking function for your User Account, and unless we otherwise agree in writing in advance, your User Account will be closed upon you completing any remaining Session bookings, and us remitting payment to you in accordance with this EULA.

Termination by Anytime Counselling

We may terminate this EULA at any time by written notice, and such termination will take effect immediately upon the latest of the following events:

the expiry of the current subscription period, for which you have already paid, if any; or

48 hours after sending the notice.

Consequences of termination

Upon termination of this EULA for any reason, in addition to any other rights or remedies we may have:

we may immediately disable your access to the Website and take your User Account offline;

your licence to use the Website immediately ends;

we may, but need not, keep all data and Content uploaded by you to the Website for our records;

we may destroy any data and Content uploaded by you to the Website;

we may continue to send you information about our Services, and other marketing information; and

a Party not in default may pursue any other rights or remedies available at law against a defaulting Party subject to clauses 28 and 31.

Indemnity & limitation of liability

Indemnity

You release and indemnify, and agree to keep Anytime Counselling Pty Ltd indemnified against any action proceeding, claim, demand, or prosecution relating to:

any breach of your obligations under this EULA;

any breach of your warranties under this EULA; and

any loss or damage to persons or property (including data), caused by you, and related to your use of the Website or our Services..

Limitation of liability

To the maximum extent permitted by law all Services are provided under this EULA on an ‘as is’ basis and all warranties that might otherwise be implied by law or statute are excluded. This clause 31.2 is subject to clause 31.6,

You agree to release and hold Anytime Counselling Pty Ltd harmless against any action, proceeding, claim, demand or prosecution relating to any downtime, interruption, loss of data, or consequential loss of any kind whatsoever, whether directly or indirectly arising in connection with the Services. This clause 31.3 is subject to clause 31.6.

Any liability of Anytime Counselling Pty Ltd for any loss or damage, however caused (including, without limitation, by the negligence of Anytime Counselling Pty Ltd), suffered by you in connection with this EULA is limited to the Fees received by Anytime Counselling from you in relation to the Services. For clarity our Fees do not include the amounts payable to Professionals. This clause 31.4 is subject to clause 31.6.

Except as contemplated by clause 31.6, nothing in this EULA is intended to limit any rights you have under the Competition and Consumer Act 2010 (Cth).

If the Competition and Consumer Act 2010 (Cth) or any other legislation provides that there is a guarantee in relation to any good or service supplied by Anytime Counselling Pty Ltd in connection with this EULA, and Anytime Counselling Pty Ltd’s liability for failing to comply with that guarantee cannot be excluded but may be limited, then despite any relevant provision of this EULA to the contrary Anytime Counselling Pty Ltd’s liability for such failure is limited to (at Anytime Counselling Pty Ltd’s election):

in the case of a supply of goods, Anytime Counselling Pty Ltd replacing the goods or supplying equivalent goods, repairing the goods, paying the cost of replacing the goods or of acquiring equivalent goods, or paying the cost of having the goods repaired; or

in the case of a supply of services, Anytime Counselling Pty Ltd supplying the services again or paying the cost of having the services supplied again.

In this clause 31 a reference to consequential losses means any indirect, special, economic, or consequential loss including loss of revenue, profits, goodwill, bargain or opportunities that you suffer in any way, even if we knew or should have known about the possibility of such loss.

Restraints

In the following provisions of this clause 32, a reference to Subscriber includes an equal and additional reference to a former Subscriber who ended their Subscription within the last 12 months.

Non-circumvent

As a Professional, you agree that you will not seek to engage any Subscriber directly without using the Website and our Services, and without limitation you will not:

Bill any Subscriber for Professional Services provided on the Website;

Bill any Subscriber for counselling services provided to them other than through the Website or through use of the Services;

Provide counselling services (or any other services) to a Subscriber, other than through the Website or through use of the Services.

Non-solicitation

As a User you agree that you must not solicit, engage, or employ any other User, or any employee, contractor, or consultant of Anytime Counselling (or any person who was in such position during the then preceding 12 month period).

Restraints on Professionals

In addition to any other obligation you have under this clause 32, you must not, and must not aid or abet any other person to, engage a Subscriber other than through the Website for the duration of this EULA, and for 12 months after its termination or expiry as the case requires.

Restraints on Subscribers

In addition to any other obligation you have under this clause 32, you must not seek to obtain the services of any Professional other than through the Website, without our prior written consent.

Non-compete

Within Australia and online, carry on, assist, or be employed, engaged or concerned in any business which directly or indirectly competes with Anytime Counselling's business. For clarity this does not include providing in-person services as a counsellor.

Referrers

Association with Subscriber

Referrers may request that we open a User Account for a nominated Subscriber. The following association between a Subscriber and a Referrer are permitted, where the Subscriber is the Referrer's:

employee;

principal in a partnership (where the Referrer is also a principal in that partnership);

child;

parent.

Payment obligation

A request from a Referrer must be accompanied by an authorisation to pay for the relevant Subscriber’s Subscription, upon our request.

By providing such authorisation, whether in writing, over the phone, or otherwise, you agree that you will fulfil the payment obligations for and on behalf of each of the Subscribers for whom you have requested Services and are bound to the terms of this EULA on that basis, including without limitation that a Subscriber may increase or decrease the Services that we provide, and accordingly you agree to fulfil their payment obligations as varied by them from time to time.

Limits on rights of Referrers

As a Referrer if you pay for a Subscriber’s Subscription, then your rights as a User are limited to the following:

You may query whether the Subscriber for whom you have paid their Subscription Fee has utilised our Services or any Professional Services, but not the extent of such use;

You may request a tax invoice from us for each Billing Period;

You may exercise the Subscriber's right to terminate their Subscription in accordance with this EULA.

Aa a Referrer you are not entitled to any information that we hold in relation to a Subscriber under any circumstances (except as expressly permitted by clause 33.4 above), and without limiting the generality of the foregoing, this includes each of the following:

Information entered onto the platform by us or the Subscriber;

Information entered onto the platform buy a Professional;

Information held by a Professional about a Subscriber;

Information otherwise held by us about the Subscriber.

We may enforce our rights against for your default against Subscriber

By making a request for us to open a User Account for a Subscriber, you irrevocably agree that:

We may disclose any information that you provide to us in relation to a Subscriber, to that Subscriber; and

If you do not pay for the Subscription or any payment is subject to cancellation, charge-back or other impost or restriction, then we may notify the Subscriber of that fact, and we may enforce our rights under this EULA for non-payment by that Subscriber; and

Your rights under this EULA will not be grounds to prevent us from enforcing our rights or otherwise taking any action in relation to a Subscriber, as if the Subscriber had paid for their own Subscription.

General

Records

Our records are prima facie evidence of any fact, matter, or circumstance and will be deemed conclusive unless you can produce conclusive evidence to the contrary.

Costs

You are responsible for all duties, charges and legal fees (on a solicitor and own client basis) incurred in enforcing this EULA.

Currency and Taxation

Unless otherwise stated, all monetary amounts are expressed in Australian dollars exclusive of GST.

Enduring Clauses

The Parties’ obligations under Clauses 3, 22, 24, 30, 31 and this clause 34.4 shall survive the termination of this EULA for whatever reason.

Entire agreement

This EULA contains the entire agreement between the Parties and supersedes all previous negotiations or agreements in relation to the Services.

Force majeure

Neither Party is liable for any delay or failure to perform its obligations under this EULA to the extent that such failure is caused by a Force Majeure Event.

Jurisdiction

The laws of the State of New South Wales, Australia apply to this EULA and the Parties submit to the courts of that jurisdiction.

Relationship between the Parties

Nothing in this EULA constitutes a partnership or contract of employment. It is the express intention of the Parties to deny any such relationship.

Representatives, Successors and Assigns

You must not assign or novate this EULA in whole or in part.

We may assign or novate this EULA in whole or part at our sole discretion.

Severability

If any provision of this EULA is ruled by a court to be illegal, invalid, unenforceable or in conflict with any law, it will not affect the validity and enforceability of the remaining provisions.

Waiver

Any delay or failure to enforce any rights in relation to a breach by the other Party will not be construed as a waiver of those rights.

Glossary

In this EULA, the items defined in the Counsellor Contract Particulars have the corresponding meaning, and the following defined terms in this clause 35 have the corresponding meaning, unless the context requires otherwise.

Anytime Counselling” means:

- Anytime Counselling Pty Ltd t/a Anytime Counselling ABN 94 645 668 284.

"Billing Period" means:

- Calendar monthly, beginning on the day of the month that you signed up for your Subscription.

"Business Days" means any weekday that is not a gazetted public holiday in Sydney, Australia.

"Business Hours" means:

- the hours between 8 am and 6pm on Business Days.

Content” means:

- any media, images, text, content, software, including user generated content and content uploaded by a User, as the case requires, or other files relating to a User on the Website, but excluding any part of the Website, or related templates, media, modules, or data.

"Counselling Rules of Conduct Policy" means:

- the policy of that name published at https://app.anytimecounselling.com.au/policies from time to time.

"Counselling Session Closeout Policy" means:

- the policy titled as such, published at https://app.anytimecounselling.com.au/policies from time to time;

"Counsellor Contract Particulars" means:

- the information titled as such in a Professional's , which forms the commercial terms that we have with you as a Professional under this EULA.

"Dispute Resolution Request" means:

- a request made by a User in accordance with clause 27.

"Electronic Communication" means:

- Any means of communicating electronically, which includes without limitation:

Email;

Facsimile;

Any web chat service;

Any social media messaging service;

File sharing or document transmittal service;

Any video conferencing service;

Any other form of communication which is conducted using any internet connection, or other means of transmitting data, or streaming media.

Electronic Transaction” means:

- an electronic transaction conducted through the Website, including without limitation a payment made through any of the following methods, as provided for by the Payment Processor:

Credit Card;

Debit Card; or

Prepaid payment card.

"Event of Default" means:

- any one or combination of the following:

You breach the terms of this EULA, and you do not remedy such breach within 7 days of us sending you a notice requiring you to remedy the breach;

You do not fulfil any of your obligations to us under this EULA;

You do not fulfil any of your obligations to another User under this EULA;

If you are a Professional, any of the following:

You do anything that would be considered an ethical breach of your professional duties by your professional association;

We receive 5 substantiated complaints against you in total;

We receive 3 or more substantiated complaints against you in any two month period;

Your membership with a professional association is cancelled by the relevant association and not immediately reinstated;

Your insurer refuses to continue to insure you for any reason, unless you have notified us in advance, provided sufficient background information, and we have agreed in writing that it will not be an Event of Default;

You cease to hold a current professional indemnity insurance policy for any other reason;

You do not strictly adhere to the Counselling Rules of Conduct Policy; or

You do anything, or assist any other person to do anything, with the aim or consequence of soliciting any other User of the website, to provide them with a similar or equivalent service to those provided through the Website.

Fee” means:

- any fee payable to us in relation to a User Account, and for Subscribers means the difference between the amount we charge you for a Subscription in a month, and the amounts that we pay to Professionals for and on your behalf in that month plus any Reserved Amount. For clarity, the minimum value of any Fee is zero.

Force Majeure Event” means:

- any natural disaster, fire, flood, war, riot, terrorism, vandalism, government sanction, industrial action, pandemic or event caused by, or relating to the threat of communicable disease or other significant event outside the reasonable control of a Party.

"Insolvency Event" in relation to a party means any of the following:

an application is made to a court for an order that the party be wound up and the order is not disposed of within 30 business days or an order is made that the party be wound up;

an application is made to a court for an order appointing a liquidator or provisional liquidator or a liquidator or provisional liquidator is appointed in respect of that party and that order or appointment is not disposed of within 30 business days;

the party enters into, or resolves to enter into, a scheme of arrangement, deed of company arrangement or composition with, or assignment for the benefit of, all or any classes of its creditors, or it proposes a reorganisation, moratorium or other administration;

the party resolves to wind itself up, or otherwise dissolve itself, or gives notice of the intention to do so, or is otherwise wound up or dissolved;

any step is taken to appoint an administrator, a receiver, and/or manager or other like person over the whole or any part of the party’s assets or business;

judgment is entered against the party for more than $20,000.00, which remains unsatisfied or unappealed for more than 21 days; or

the party is placed under official management, commits an act of bankruptcy or is charged with a criminal offence.

Intellectual Property Rights” means:

- all industrial and intellectual property rights including, without limitation, patents, trade marks, copyrights, circuit layout rights, right to extract information from databases, design rights, trade secrets, and all forms of protection of a similar nature or having similar effect to any of them which may subsist anywhere in the world (whether or not any of them are registered and including applications and the right to make applications for registration of any of them) other than moral rights.

"Minimum Session Time" means:

- the period of time labelled as such in the Professional's Counsellor Contract Particulars, and is the amount of time that makes a Session eligible for payment, unless otherwise determined by us.

"Negative Determination" means (with reference to the Counselling Rules of Conduct Policy requirements):

- that we determine that the Professional responsible for a Session has not met the minimum requirements, or has a legitimate complaint raised against them by a Subscriber which has not be resolved, or in our sole discretion cannot be resolved.

Party” means:

- a party to this EULA.

Parties” means:

- each Party to this EULA.:

Payment Processor” means:

- a third party payment processor that facilitates Electronic Transactions on the Website. At the date of this EULA this service is provided by Stripe Payments Australia Pty Ltd A.C.N 160 180 343.

Professional” means:

- a User who offers their services for a fee to other Users through the Website.

"Professional Services" means:

- any services provided, or offered, by a Professional on the Website.

"Quality Assurance Program" means:

- the processes we implement to provide consistency of service, dispute resolution and other benefits to Subscribers for using the Website.

"RCTI" means:

- a recipient created tax invoice.

"Referrer" means:

- a person who refers, introduces, or pays for a Subscriber's Subscription on their behalf, as the case may be.

"Reserved Amount" means:

- any amount that was due to be paid to a Professional in a particular month, but which is subject to delay, or determination, due to a complaint, dispute, postponement, or other circumstance, where the amount may be remitted to the relevant party at a later time.

"Sensitive Information" means:

- the information, or any of it, defined by section 6 of the Privacy Act 1988 (Cth) from time to time, which at the time of writing means:

Information or an opinion about an individual's

racial or ethnic origin; or

political opinions; or

membership of a political association; or

religious beliefs or affiliations; or

philosophical beliefs; or

membership of a professional or trade association; or

membership of a trade union; or;

sexual orientation or practices; or

criminal record;

that is also personal information; or

health information; or

genetic information about an individual that is not otherwise health information; or

biometric information that is to be used for the purpose of automated biometric verification or biometric identification; or

biometric templates.

Service” means:

- any Service provided by Anytime Counselling under this EULA.

"Session" means:

- a counselling session conducted between a Professional and a Subscriber as scheduled on the Website.

"Session Confirmation Form" means:

- the form that must be filled out by a Professional to close a Session at the relevant time.

"Subscriber" means:

- an individual who purchases and has a current subscription on the Website;

"Subscription" means:

- a monthly subscription on the Website where a periodic payment is made by a Subscriber to receive the associated Services in the relevant month.

"Subscription Fee" means:

- the amount payable by a Subscriber in relation to a Subscription each month.

"Terms and Conditions" means:

- the terms and conditions available at https://app.anytimecounselling.com.au/terms from time to time;

User” means:

- a person who has accepted these Terms and Conditions and includes such person who has been issued a User Account, and reference to User includes reference to a Subscriber, a Referrer, or a Professional as the case requires.

User Account” means:

- a user profile or account on the Website, which is protected by password and any other security measures in place from time to time.

"we", "us", "our" means :

- Anytime Counselling.

Website” means:

- the software platform accessible through https://anytimecounselling.com.au and any sub-domain, and any associated pages, applications, and resources, or any of them as the case requires.

you” or “your” means:

- the User using or accessing the Website, or any part of it (including these Terms and Conditions).