Terms of Service

Important information

Please read these Terms of Service carefully before using Everbite. By accessing or using our Services, you agree to be legally bound by these Terms. Your use of the Service is conditional upon this acceptance; if you do not agree to these Terms, you must not use the Services.

IMPORTANT: Please read Section 17 of the Terms (Governing Law and Dispute Resolution) carefully. Among other things, it generally requires informal negotiations before pursuing legal action, subject to limited exceptions.

IMPORTANT: Please read Section 9 of these Terms carefully (disclaimers on health, nutrition and safety). Everbite is not a medical device. Do not use Everbite as a substitute for professional medical advice. Always inspect your food manually, and do not rely on Everbite as a tool to identify allergens.

1 Introduction

These Terms of Service (the "Terms") constitute a binding legal agreement between You (the user) and Everwake Interactive Pty Ltd (ABN 66 688 718 881) (the "Company," "We," "Us," or "Our").

These Terms govern your access to and use of the Everbite mobile applications (the "App"), websites, web applications and related services (collectively, the "Service").

2 Acceptance of Terms and Amendments

2.1. User Acceptance

By accessing, downloading, installing, or otherwise using the Service, you confirm that you have read and agree to be bound by these Terms. Our Privacy Policy, which describes how we handle Personal Data, also applies to your use of the Service. If you do not agree to these Terms, you must not use the Service. Where consent is required, we obtain it through a separate affirmative choice. Where we request affirmative acceptance of these Terms, you must provide it before using the relevant account or features. Your use of the App is contingent upon your ongoing compliance with these Terms.

2.2. Amendments and Changes

We reserve the right, at our sole discretion, to modify or replace these Terms at any time.

For any material changes to these Terms that affect your rights or obligations, we will provide reasonable advance notice before the changes take effect. In such cases, you will be required to affirmatively acknowledge and accept the new Terms to continue using the Service. For minor or non-material updates that do not reduce your rights, such as clerical fixes or formatting changes, we will post the revised Terms with an updated revision date, and your continued use of the App after that date will constitute your acceptance of those minor changes. You are responsible for reviewing the most current version of the Terms periodically; however, if you do not agree to any revised Terms, you must discontinue your use of the App. Before closing your account, you may request a copy of your data by emailing [email protected] as outlined in our Privacy Policy.

3 Eligibility

3.1. Minimum Age Requirement

By using the Service, you represent and warrant that you are at least 18 years of age. The App is not intended for use by anyone under the age of 18.

4 Grant of Rights

4.1. License Grant

In consideration of your agreement to these Terms, Everwake Interactive Pty Ltd hereby grants you a personal, limited, revocable, non-exclusive, non-transferable, and non-sublicensable license to install and use the Service solely for your personal, non-commercial use on a compatible device that you own or control, and as permitted by the usage rules of the platform through which you obtained the App, such as the Apple App Store or Google Play Store.

4.2. Scope of Use

You may use the Service only for as long as you remain in full compliance with all provisions of these Terms. Any right not expressly granted to you in these Terms is fully reserved by the Company.

You must comply with applicable third-party agreements when using the App, including those of your app-store and network providers.

5 User Accounts, Security and Communications

5.1 Account Creation and Login Information

To access certain features of the Service, you may be required to register an account (the "Account").

When registering or updating your Account, you must provide accurate and complete account information, including your email address. The credentials used to access your Account are collectively referred to as the "Login Information."

If you sign in using Apple, Google or another third-party service, we may receive account and authentication information that the provider makes available based on your choices and its terms. We handle that information in accordance with our Privacy Policy.

5.2 Account Security and Your Responsibility

You are responsible for maintaining the confidentiality of your Login Information and restricting access to your device. You may not share your Account or Login Information with any other person.

Until you notify us of suspected unauthorized use, we are entitled to treat activity conducted using valid Login Information as authorized. You are responsible for transactions and activities that you authorize or that result from your failure to take reasonable steps to protect your Login Information or device.

You must notify us immediately at [email protected] if you suspect unauthorized use of your Account or any other security breach.

We use commercially reasonable security measures to protect your Login Information and Personal Data. However, no security system is completely secure, and we cannot guarantee that unauthorized access will never occur. To the maximum extent permitted by law, the Company is not liable for unauthorized access that occurs despite our use of commercially reasonable safeguards.

5.3. Communications

We may use the email address you provide during registration for account-related and service-related communications, as described in our Privacy Policy.

6 Subscriptions, Billing & Pricing

6.1. Obtaining and Renewing Subscriptions

The Everbite Service may require a paid subscription to access certain features.

Subscriptions renew automatically for the period disclosed at purchase, such as monthly or annually, unless you cancel through the subscription provider or using the cancellation method shown at purchase.

6.2. Payment Processing and Management

Subscriptions purchased through the Apple App Store or Google Play Store are billed by the applicable platform provider (the "Services Provider").

Your subscriptions, including the processes for purchase, payment, renewal, and termination, are subject to the applicable Services Provider's terms, conditions, and payment policies.

Everwake Interactive Pty Ltd does not process app-store payments directly. Contact the applicable Services Provider for app-store billing, charges or cancellation requests. App-store refund requests are ordinarily processed by the relevant store. You may also contact us at [email protected] about any remedy owed by us under applicable consumer law. Store policies do not limit those rights.

6.3 Fee Changes and Notice

The Company reserves the right to change its Subscription fees, features, or pricing structure at any time. Any Subscription fee change will take effect no earlier than the user's next billing cycle. We will provide any advance notice required by applicable law or the relevant subscription provider's rules.

7 Changes, enhancements and Support

7.1. Right to Modify, Remove Features, and Change Pricing

To the maximum extent permitted by applicable law, the Company may, in its discretion, modify, enhance, upgrade or permanently remove any feature, function or part of the Service for legitimate business, commercial, operational, technical, security, safety or legal purposes, including product development, changes in user demand, costs, technology or third-party services.

We may terminate, eliminate, or permanently remove any content, feature, functionality, or data available through the Service, subject to applicable law, these Terms and our Privacy Policy.

We may impose limits on certain features or restrict your access to part or all of the Service.

We will provide reasonable prior notice of material Service changes where reasonably practicable.

7.2. Discontinuation and Limitation of Liability

To the maximum extent permitted by applicable law, the Company may suspend, restrict, or entirely discontinue the Service, or any part thereof, at any time, without liability to you.

To the maximum extent permitted by applicable law, the Company shall not be liable to you or any third party for any modification, suspension, or discontinuation of the Service.

We will exercise these rights reasonably and for legitimate business, technical, security or legal purposes. Any refund, credit or other remedy is limited to what is required by applicable law or expressly provided under Section 6.

7.3. Updates and Hardware Specifications

We may provide Updates (including automatic updates) to the Service at any time. Where applicable, your continued access to and use of the Service is conditional upon you promptly accepting and installing all required Updates. You acknowledge and agree that certain functions may fail or become inaccessible otherwise. The Company is under no obligation to provide any future Updates or enhancements.

The Company reserves the right to change the minimum required hardware, operating system specifications, or network requirements necessary to access or use the Service at any time. We will endeavor to notify you of any change to hardware specifications that may prevent you from continuing to use the Service. We are not responsible for procuring, updating, or maintaining your device, operating system, or connectivity.

7.4 Support and Third-Party Dependencies

Except as required by applicable law or expressly provided in these Terms, you have no general right to support, maintenance, or technical assistance in respect of the Service. The Company may, in its sole discretion, make limited support available (e.g. technical support, bug fixes, training, tutorials, FAQs, and other help materials), but is under no obligation to do so.

To the maximum extent permitted by applicable law, we are not responsible or liable for any resulting impact to the Service, including the loss of features or inability to access the Service, due to the action or inaction of any third party upon whom the Service relies (e.g., an app-store operator or external AI provider).

8 Acceptable Use, Restrictions, and Prohibited Activities

8.1. General Compliance and Lawful Use

You agree to use the Service only for its intended personal, non-commercial purposes and in strict compliance with these Terms, all applicable laws, rules, and regulations of all jurisdictions, and any policies or guidelines provided by the Company or the applicable Services Provider.

8.2. Device and Access Restrictions

You may access and use the Service only through channels made available or approved by the Company. You may download the App only from an approved source, such as the Apple App Store or Google Play Store.

You may use the App only on devices that you own or are authorized to use. We reserve the right to immediately restrict or terminate your access if we reasonably believe that the App was obtained from an unauthorized source or is being used on a device that creates a material security or integrity risk.

You shall not sub-license, rent, lease, lend, sell, transfer, transmit, publish, distribute, or otherwise make the Service, or the rights granted under these Terms, available to any other party.

8.3. Prohibited Activities (Security and IP)

You expressly agree not to engage in the following prohibited activities:

A. Security and Unauthorized Access

Attempting to gain unauthorized access to any part or feature of the Service; breaching any security or authentication measure; circumventing any technical protection measure; interfering with the proper operation of the Service, including by overloading it or using viruses or malicious code; or testing, probing, or scanning the Service for vulnerabilities without the Company's prior written authorization.

B. Reverse Engineering and Competitive Research

Reverse engineering, decompiling, disassembling, mirroring, framing, or extracting source code from any aspect of the Service, or creating derivative works based on the Service or its related code. Furthermore, you shall not use the Service to conduct any form of competitive analysis or to monitor its availability, performance, or functionality for the purpose of creating a competing product or service.

C. Data Scraping and Automation

Using robots, spiders, scrapers, crawlers, or other automated means to access, extract, scrape, collect, copy, or index any part of the Service or any data or content made available through it, including for machine learning, artificial intelligence, model training, or data mining, without the Company's prior written authorization.

D. Reproduction and Misuse

Duplicating, copying, or reproducing the Service, any related code, or other materials, except as explicitly permitted by these Terms; using the Service or any part of it to create or market any product or service that competes with the Service; or altering or removing any proprietary notice or trademark used on or in relation to the Service.

8.4. Prohibited Content and Conduct

You shall not use the Service to upload, post, transmit, or otherwise make available any User Generated Content (UGC) or conduct any activity that is:

• Unlawful or Illegal: Any activity that violates applicable laws or regulations.
• Harmful/Offensive: Content that is violent, sexually explicit, hate speech, unlawful, harmful, misleading, or otherwise contrary to public order or morality.
• Violation of Rights: Content that violates the rights of others, including intellectual property rights.
• Private Information: Uploading images of identifiable individuals or personal information about others unless you have the rights, permissions, or other lawful authority required to do so.

9 Disclaimers for health, nutrition and safety

9.1 Informational Purposes Only

The Everbite Service is provided strictly as a tool for tracking and logging nutritional data and is provided for general informational and personal tracking purposes only.

9.2 Medical Disclaimer

Everwake Interactive Pty Ltd is not a healthcare provider, medical professional, or registered dietitian. The Service does not provide, and should never be used as a substitute for, medical advice, nutritional counseling, diagnosis, treatment, cure, or prevention for any disease or health condition.

YOU ARE STRONGLY ADVISED to consult licensed professionals (such as a medical doctor, registered dietitian, or appropriate healthcare provider) before starting any new diet or fitness regimen or for any dietary, medical, or other health-related guidance.

9.3 AI Limitations and Risks

Our Service may use artificial intelligence (AI) to identify food items. We aim to provide useful and accurate results, but AI systems have inherent limitations and we do not guarantee the accuracy or completeness of their outputs. Errors may include misidentified ingredients, incorrect quantities or nutritional estimates, and a failure to identify hidden ingredients or allergens.

You must not rely on AI to identify allergens or otherwise manage any allergies. Manual verification of all food items, including the physical inspection of ingredient labels and packaging, remains your sole responsibility and is a mandatory condition of using these AI-powered features.

9.4 Data and AI Accuracy

All food, ingredient, quantity, calorie and nutrition information provided through the Service is an approximation only. Estimates may use ingredients and quantities identified or estimated manually or through AI, nutrient databases, external or third-party data, algorithms and equations used to derive and combine nutrient values.

The Company does not control all data sources used by the Service or the fundamental workings of AI systems used to generate outputs. We cannot guarantee the accuracy, completeness or integrity of data, regardless of its source.

Food naturally varies between samples, brands, varieties, growing conditions, processing, preparation and serving sizes. Estimates may therefore differ from the actual food or portion consumed and must not be treated as exact.

To the maximum extent permitted by applicable law, the Company is not responsible or liable for inaccuracies in data presented through the Service that originate from any source.

9.5 User Responsibility

Your reliance upon any information obtained via the Service is solely at your own risk.

You are solely responsible for verifying the accuracy, completeness, and applicability of all data and insights generated by the Service before relying upon them.

The Service is not a substitute for inspecting your food, reading physical food labels, and avoiding allergens.

To the maximum extent permitted by law, the Company is not responsible or liable for any actions you take, or outcomes that result from, your interpretation or use of data and insights provided through the Service.

10 User Generated Content (UGC), Licensing, and Feedback

10.1 Responsibility and Ownership of UGC

The Service provides tools that enable you to create, upload, and share User Generated Content (UGC), including food photos, nutrition data, and health-related data. You retain ownership of your UGC. Your submission and use of UGC through the Service, and your use outside the Service of any screenshot, export, or other material that incorporates Company IP, are subject to these Terms.

• You acknowledge that you are solely responsible for all UGC that you create, submit, upload, post, or otherwise make available on or through the Service, and you, rather than the Company, maintain full responsibility for each submission's legality, reliability, and appropriateness, including the duty to ensure you possess all necessary trademark and copyright permissions to post it.
• All UGC must be provided in strict accordance with the standards for Prohibited Content and Conduct found in Section 8.4.
• When your UGC is displayed with elements of the Service's proprietary user interface, any screenshot, export, or other composite material may include Company IP and remains subject to Section 11.2.
• You represent and warrant that you own, or have obtained, all rights, licences, consents, and permissions necessary to submit your UGC and grant the licence described in Section 10.2.

10.2 License Granted to Everwake Interactive Pty Ltd

In exchange for your access to and use of the Service, and to the extent your UGC gives rise to any intellectual property rights, you agree to and hereby grant Everwake Interactive Pty Ltd an irrevocable, non-exclusive, perpetual, fully transferable, sub-licensable, worldwide, and royalty-free right and license to exploit your UGC in any way and for any purpose in connection with the Service.

This licence does not override our Privacy Policy, your consent choices or applicable privacy rights.

This right includes, without limitation, the right to: (a) Reproduce, copy, adapt, modify, perform, display, publish, broadcast, transmit, or otherwise communicate your UGC to the public by any means. (b) Distribute your UGC without notice or compensation to you of any kind. (c) Create derivative works from your UGC.

To the extent permitted by applicable law, you waive, and where waiver is not permitted, consent to the Company doing or omitting any act that would otherwise infringe, any moral rights you may have in your UGC, including editing, adapting, cropping, combining, publishing, displaying, or using it without attribution, solely for the purpose of exercising the licence granted in this Section.

The license granted above and your waiver of moral rights will survive any termination of these Terms or the removal of your UGC from the Service. We will handle deletion requests in accordance with our Privacy Policy and applicable law. We may retain and use information already lawfully de-identified before the request under this licence. Where applicable law permits anonymisation instead of deletion, we may also use that option. The Company reserves the right to retain and use such information indefinitely under the perpetual licence granted in this Section and as described in our Privacy Policy. We will not attempt to re-identify data retained on this basis.

10.3 Content Retention and Public Nature

You acknowledge and accept that when you make something publicly available on the Internet, it becomes practically impossible to remove all copies of it in the future. Following termination of your Account, or if you remove any UGC from the Service, we may retain your UGC as described in our Privacy Policy or as otherwise required or permitted by law. Subject to our Privacy Policy and applicable law, the Company and other users may retain and continue to use, store, display, reproduce, and share UGC that you made public or shared with them through the Service, and the license granted in Section 10.2 continues even if you stop using the Service.

10.4. Assignment of Feedback and Suggestions

For consumer reviews and evaluations, you grant us a perpetual, worldwide, non-exclusive, transferable, sublicensable, royalty-free licence to use, reproduce, adapt and publish that content, subject to our Privacy Policy and applicable law. You retain ownership of that content.

Any other ideas, suggestions or feedback you provide to the Company, whether requested or not, become the exclusive property of the Company. By providing that other Feedback, you irrevocably assign to the Company all worldwide intellectual property rights in it without compensation.

To the extent any right cannot be assigned, you grant the Company an irrevocable, perpetual, exclusive, transferable, sublicensable, worldwide and royalty-free licence to use and exploit that other Feedback for any purpose.

To the extent permitted by law, you waive your moral rights in that other Feedback. Where waiver is unavailable, you consent to the Company and its licensees, assignees and successors editing, adapting, cropping, combining, reformatting, publishing and using that other Feedback without attribution when exercising the rights granted in this section.

You agree to execute any documents reasonably required for us to secure or enforce those rights.

10.5. Community Engagement and Content Moderation

We encourage users to send suggestions, feedback and support requests to [email protected].

We reserve the right to moderate, refuse, or remove content submitted through the Service if it violates these Terms and, where appropriate, to suspend or terminate your Account under Section 13. Nothing in these Terms limits any rights or remedies the Company may have under applicable law in relation to unlawful content posted outside the Service.

11 Intellectual Property

11.1 Company Intellectual Property (IP)

All rights, title, and interest in the Service and Company brand, excluding your UGC, including software, algorithms, technology, graphics, documentation, proprietary data, trademarks, service marks, names, logos, and domain names (collectively, "Company IP"), are owned by or licensed to the Company. Company IP is protected by Australian and international intellectual property laws. All rights not expressly granted under these Terms are reserved by the Company and its licensors. Your access to and use of the Service does not transfer any ownership or usage rights in Company IP.

11.2 Restrictions on Use of Marks and Branding

The trademarks, logos, signs, symbols, images, and brands ("Marks") displayed on the Service are the property of the Company and/or our partners and third-party licensors. Your external use of the Marks is subject to the following restrictions. You must not:

• Imply Affiliation: Display our Marks in any manner that implies a relationship or affiliation with, sponsorship, or endorsement by the Company, or that can be reasonably interpreted to suggest editorial content has been authored by, or represents the views or opinions of, the Company.
• Negative Association: Display our Marks on any site or in any content that promotes illegal activities, gambling, adult content, or the sale of tobacco or alcohol to minors.
• Disparagement: Use our Marks to disparage the Company or the Services, or display our Marks in a manner that is misleading, defamatory, libelous, disparaging, obscene, or otherwise objectionable to the Company.
• Violation or Alteration: Display our Marks as the most prominent element on any external page; display our Marks on a site that violates any law or regulation; or remove, distort, or alter any element of any of our Marks (e.g., squeezing, stretching, inverting, discoloring, etc.).

These restrictions do not prevent lawful consumer reviews or criticism, including accompanying screenshots.

11.3 Restrictions on Service Content

All Company IP available on or through the Service (excluding your UGC, the use of which is governed by Section 10) is protected by intellectual property laws.

Except as expressly permitted by these Terms, by functionality made available through the Service, or by applicable law, you must not copy, reproduce, modify, adapt, translate, distribute, transmit, display, publish, sell, license, create derivative works from, or otherwise exploit any Company IP, in whole or in part.

12 Copyright Infringement

12.1. Respect for Intellectual Property

Our Company respects the intellectual property rights of others and expects our users to do the same. We respond to notices of alleged intellectual property infringement in accordance with applicable law, including the Digital Millennium Copyright Act of 1998 (DMCA), where applicable.

The full text of the DMCA is available from the United States Copyright Office website at: http://www.copyright.gov/

12.2 Notice of Infringement

If you believe that any content on the Service infringes upon your copyright, you may submit a written notification of claimed infringement with a detailed description of the alleged infringement. In order to be compliant with the requirements of the DMCA and other applicable laws, the written notice must include:

1. A physical or electronic signature of the copyright owner or authorized agent.
2. Identification of the copyrighted work claimed to have been infringed.
3. Identification of the infringing material and its location on the Service (e.g., a URL).
4. Your contact information (name, email, phone number, address).
5. A statement that you have a good faith belief that the use of the material is not authorized by the copyright owner, its agent, or the law.
6. A statement that the information in the notice is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner.

You can seek further guidance at https://www.copyright.gov/dmca-directory/.

The Company's designated copyright agent can be contacted through the Legal Department, Everwake Interactive Pty Ltd at [email protected] or by telephone at +61 3 9123 4282.

Alternatively, you may contact us via postal mail: Everwake Interactive Pty Ltd Legal Department, 47 Wadham Parade, Mount Waverley, VIC, 3149, Australia.

Upon receiving a substantially compliant DMCA notice, we will act expeditiously to remove or disable access to the claimed material and take reasonable steps to promptly notify the affected user.

12.3. Counter-Notices

If content is removed in response to a DMCA notice and you believe the removal resulted from mistake or misidentification, you may send our copyright agent a counter-notice containing:

1. Your physical or electronic signature.
2. Identification of the removed material and where it previously appeared.
3. A statement under penalty of perjury that you have a good-faith belief the material was removed or disabled because of mistake or misidentification.
4. Your name, address and telephone number.
5. A statement consenting to the jurisdiction of the United States Federal District Court for the judicial district in which your address is located or, if your address is outside the United States, any judicial district in which the Company may be found, and accepting service of process from the person who submitted the original notice or their agent.

We will forward a compliant counter-notice to the original claimant. Unless our copyright agent receives notice that the claimant has filed a court action, we will restore access to the material no fewer than 10 and no more than 14 business days after receiving the counter-notice. We may keep material removed for another reason permitted by these Terms.

12.4 Takedown Outcomes and Consequences

If we receive a valid notice or otherwise determine that content on the Service infringes intellectual property rights, we may take any of the following actions at our sole discretion:

• Removal: Permanent or temporary removal of some or all of the content;
• Geoblocking: Removal of content in specified jurisdictions;
• Investigation: Carrying out further investigations into the account or content;
• Legal Action: Referring the matter to law enforcement or legal counsel;
• Repeat Infringers: We maintain a policy providing for termination, in appropriate circumstances, of users who are repeat copyright infringers.

We are not required to provide reasons for our decision, though we may choose to do so. This Policy does not limit our rights under any other agreement we have with any relevant person, including you, or other parties.

If you submit a notice or counter-notice, you agree to comply with the parts of this Policy that apply to you.

13 Duration and Termination

13.1 Duration

These Terms commence on the date you first use or access the Service and remain in effect until terminated by you or the Company.

13.2 Termination by the Company

To the maximum extent permitted by applicable law, the Company may suspend or terminate your access to the Service, in whole or in part, if:

• You breach or fail to comply with these Terms (including failure to pay subscription fees or non-compliance with Sections 8, 10, 11 and 12);
• The Company terminates the Service, in whole or in part, as described in Section 7; or
• For any other reason where the Company acts reasonably to protect its legitimate interests.

Where reasonably practicable, we will give notice and a reasonable opportunity to remedy a remediable breach. No notice or remedy period is required where immediate action is reasonably necessary for security, legal compliance, prevention of harm or another legitimate interest.

13.3. Effect of Termination

Upon termination, all rights and licenses granted to you under these Terms immediately cease. To the maximum extent permitted by applicable law, the Company will not be liable to you or any third party solely because your access to the Service is terminated. Except where required by applicable law or expressly provided under Section 6, termination does not entitle you to a refund.

Any provisions of these Terms which, by their nature, should survive termination shall survive, including but not limited to sections 6, 10, 11, 12 and 17.

14. Warranties, Liability, and Indemnity

Nothing in these Terms excludes, restricts or modifies any right or remedy that cannot lawfully be excluded, restricted or modified.

THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY DISCLAIMS ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

THE COMPANY EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE.

THE COMPANY EXPRESSLY DISCLAIMS ANY WARRANTY REGARDING THE ACCURACY OR COMPLETENESS OF DATA PROVIDED BY THE SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY NUTRITION ESTIMATES OR AI-GENERATED DATA.

15 Limitation of Liability and Indemnity

15.1 Limitation of Liability

To the maximum extent permitted by applicable law, the Company's total cumulative liability to you for any and all claims arising out of or relating to the use of the Service or these Terms shall not exceed the greater of:

• The amount you paid to the Company for the Service in the preceding twelve (12) months; or
• One hundred Australian dollars (AUD $100.00).

15.2. Exclusion of Damages

To the maximum extent permitted by applicable law, the Company is not liable for any indirect, incidental, special, exemplary, or consequential damages, including but not limited to, loss of profits, loss of data, loss of goodwill, or damages arising from reliance on the Service, even if the Company was advised of the possibility of such damages.

15.3. Indemnification

To the maximum extent permitted by applicable law, you agree to indemnify, defend and hold harmless Everwake Interactive Pty Ltd and its officers, directors, employees, agents and licensors from and against any third-party claims and resulting liabilities, costs, damages and expenses, including reasonable legal fees, to the extent caused by:

• Your material breach of these Terms;
• Your unlawful User Generated Content (UGC); or
• Your negligent, unlawful or unauthorised use of the Service.

16 Privacy

Your use of the Service is subject to our Privacy Policy. We process your personal and nutritional data as described in that policy. We handle health-related information as described in our Privacy Policy and in accordance with applicable law. Where consent is required, we obtain it through a separate affirmative choice.

17 Governing Law and Dispute Resolution

17.1 Governing Law

Subject to applicable law, these Terms and your use of the Service shall be governed by and construed in accordance with the laws of the State of Victoria, Australia, without regard to its conflict of law principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms.

17.2. Informal Dispute Resolution

Subject to applicable law, the parties agree that before initiating any formal legal proceeding, they will first attempt to resolve any dispute, claim, or controversy arising out of or relating to these Terms or the Service through informal negotiations. You must send your dispute notice to [email protected]. We will send any dispute notice from us to the email address associated with your Account or another contact address you have provided. The notice must describe the dispute, the relevant facts, and the requested remedy. The parties agree to negotiate in good faith for a period of at least thirty (30) days after the other party receives the notice. This Section does not prevent either party from seeking urgent interim relief, taking action necessary to preserve a claim, or exercising a right where applicable law does not permit the delay.

17.3. Jurisdiction and Venue

Subject to applicable law, if the dispute cannot be resolved through informal negotiations, you agree that any legal action or proceeding arising under these Terms will be brought exclusively in the courts of the State of Victoria, Australia, and you consent to the jurisdiction and venue of those courts. Notwithstanding the foregoing, jurisdiction relating to DMCA counter-notices under Section 12.3 is governed by the applicable requirements of the DMCA.

17.4 Collective Proceedings

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY RESERVES THE RIGHT TO SEEK TO HAVE ANY LEGAL PROCEEDING CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION, AND OTHERWISE RESERVES ALL RIGHTS, OBJECTIONS, DEFENCES AND REMEDIES IN RELATION TO SUCH PROCEEDINGS.

18. Miscellaneous

18.1 Severability

If any provision of these Terms is deemed invalid or unenforceable by a court of competent jurisdiction, that provision will be modified to the minimum extent necessary to make it valid and enforceable, and the remaining provisions of these Terms will remain in full force and effect.

18.2 Waiver

The Company's failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. A waiver of any provision of these Terms will only be effective if it is in writing and signed by an authorized representative of the Company.

18.3. Assignment

You may not assign or transfer any of your rights or obligations under these Terms without the prior written consent of the Company. The Company may assign these Terms, in whole or in part, without your consent, provided the assignment itself does not materially disadvantage you.

18.4 Entire Agreement

These Terms constitute the entire agreement between you and Everwake Interactive Pty Ltd regarding your use of the Service.

18.5 Contact Information

Questions, complaints, claims or legal notices concerning these Terms or the App:

Email: [email protected]

Phone: +61 3 9123 4282

Developer: Everwake Interactive Pty Ltd

Postal address: 47 Wadham Parade, Mount Waverley, VIC 3149, Australia.