Terms & Conditions of Use of OCA Website
Last updated: 7 February 2020
Our Children Australia Pty Ltd ACN 159 535 903 (OCA) operates the OCA Website under licence from Nobelle Pty Ltd ACN 134 454 541 as Trustee for the Brook Family Trust and provides access to End Users on the terms and conditions contained in this End User Licence Agreement (EULA).
The End User would like to use the Program accessed on the Website to record information about a child or children and offer to be bound by the terms and conditions contained herein.
1. Definitions and interpretation
1.1 Defined terms
Content means text, data, speech, music or other sounds, visual images (animated or otherwise) in any form, or in any combination of forms as defined in Schedule 7 of the Broadcasting Services Act 1992 (Cth).
Child or Children means a person or persons under the age of eighteen (18) years old about who the Parties upload Content about to the OCA Website.
Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than the cost of repair), loss of opportunity or expectation loss, and any other form of consequential, special, indirect, punitive or exemplary loss or damages.
Documentation means any user manual, guides, explanatory notes or memoranda that may or may not be supplied with the Program provided by OCA as updated from time to time.
End User means a Party that purchases a Subscription to access and use the Program pursuant to the terms and conditions of this End User Licence Agreement.
EULA means End User License Agreement.
Family Consultant takes its meaning from 11B of the Family Law Act 1975 (Cth).
Family Counsellor takes its meaning from section 10C of the Family Law Act 1975 (Cth).
Family Dispute Resolution Practitioner takes its meaning from section 10G of the Family Law Act 1975 (Cth).
Force Majeure means an unforeseen event beyond the control of the affected party, including an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, hacking, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware, ransomware or other malicious code.
Insolvency Event means circumstances in which a Party takes any corporate action, or any steps are taken or legal proceedings are started for:
- its winding-up, dissolution, or liquidation;
- the appointment of a controller, receiver, administrator, official manager, trustee or similar officer of it; or
- seeking or being granted protection from its creditors, under any applicable legislation.
Intellectual Property (IP) means all industrial and intellectual property rights including, without limitation, patents, copyright, trade marks, right to extract information from databases, design rights, trade secrets, rights of confidence, 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).
Non-Excludable Condition means any guarantee, condition or warranty (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded
Subscription Fee means the amount of money paid by an End User in exchange for the right to use the Program for the specified Term.
Party means a person that has agreed to be bound by the terms and conditions contained in this End User Licence Agreement who is granted permission to access the Content, including but not limited to:
- Aunt or Uncle;
- or any other person who may be a party to a Family Court Order or who is able to apply for a Family Court Order concerning the child.
Parents means Guardians and vice versa.
Personal Information includes Submitted Material and information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
Program means all features available on the OCA Website used by End Users to upload Content about the Child or Children.
Term means the duration of the Subscription to which the End User has the right to access the Content on the Website.
Upgrades means any modifications, new or revised versions of the source code which the Program requires to operate more efficiently or effectively, as determined by OCA in its sole discretion.
Website means the Program operated under licence from Nobelle Pty Ltd ACN 134 454 541 as Trustee for the Brook Family Trust located at the URL www.ourchildren.com.au, which the End User obtains a right to use.
Works means the source code embedded in the software that contains all algorithms, source code, and system logic relating to the Program that is subject to this End User Licence and Hosting Agreement which OCA operates under licence from Nobelle Pty Ltd ACN 134 454 541 as Trustee for the Brook Family Trust.
- one (1) gender includes the others;
- the singular includes the plural and the plural includes the singular;
- a person includes a body corporate;
- a Party includes the Party's executors, administrators, successors and permitted assigns;
- to an amount of money, to $, $A or dollar is a reference to the currency of Australia;
- a statute, regulation or provision of a statute or regulation (a Statutory Provision) includes:
- that Statutory Provision as amended or re-enacted from time to time; and
- a statute, regulation or provision enacted in replacement of that Statutory Provision;
- including and similar expressions are not words of limitation;
- where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning;
- headings and the table of Contents are for convenience only and do not form part of this Agreement or affect its interpretation; and
- a provision of this Agreement must not be construed to the disadvantage of a Party merely because that Party was responsible for the preparation of this Agreement or the inclusion of the provision in it.
2. Licence and payment
2.1 Grant of Licence
OCA grants the End User a non-exclusive, limited Licence to use the Program for the Term in exchange for the payment of the Subscription Fee. End Users agree that:
- the Program is to be used to record and store Content about the Child which may be accessed and used by another Party, their legal representative, a Family Consultant, Family Counsellor or Family Dispute Resolution Practitioner.
- the End User that first creates an account on OCA's Website must grant access to the Content they have uploaded about the Child by inviting the other Party to obtain access to the account;
- each Party must maintain a current subscription to the Website to view the Content;
- the Content which is uploaded to the Program is confidential between the Parties to the extent that it must not be disclosed to any third party without consent, except where:
- the information is deemed necessary by an End User to assist with proceedings in a Court dealing with a Family Law Matter or a Domestic Violence Matter; or
- is necessary for the health and safety of a child; or
- is necessary in order to prove consent of a Party as part of a Childs education or health; or
- is to be used by a Party for the purposes of obtaining legal advice or for the production to a Family Consultant, Family Counsellor or Family Dispute Resolution Practitioner.
2.2 Uploading Content about Children
End Users represent and warrant, in relation to Content that they may provide to the Website, that:
- the Content added may be presented by the other Party in Court;
- the Content added is true and accurate in all material respects;
- they are authorised to provide the Content;
- they are the original author of the Content, or have the right to use the Content that is uploaded;
- in all Content they upload to the Website, they will be respectful and not denigrate the other Party or use offensive language; and
- that the uploading of the content provision of the Content to the Website is not breaking any law of Australia.
2.3 Copyright in the Content
End Users that upload Content about a Child to the Website grant OCA and the other authorised End User with an irrevocable, perpetual licence to use the Content provided pursuant to the terms and conditions contained herein.
2.4 Subscription Fee
End Users agree to pay the Subscription Fee to access the Content on the Website for the specified Term.
2.5 Refund Policy
There is no cooling off period associated with an End User's Subscription. If the End User cancels it's Subscription soon after commencing, OCA may, at its sole discretion, refund the Subscription Fee.
2.6 Specific prohibitions on use
End Users agree that they must not:
- use the Program for any purpose or in any manner other than as set out in clause 2.1 and 2.2;
- use the Program in any way that could damage the reputation of OCA or the goodwill or other rights enjoyed by OCA;
- permit any third Party to obtain access to the Program;
- allow third parties to upload Content on their behalf about the Child;
- de-compile, disassemble, decrypt, or otherwise reverse engineer the Program or permit any third Party to do so; or
- copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code associated with any third party licenced software which is incorporated into the Program
3. Use of Account and termination
3.1 Member Account and Password
End Users agree to keep any passwords provided by the Website confidential. Users are expressly prohibited from sharing their username and password with third parties and must take all reasonable steps to keep their passwords secure.
3.2 Termination of End User's Account
- OCA reserves the right to limit, cancel, suspend or terminate an End User's Account by providing seven (7) days' notice to the End User, and without providing a reason, if OCA believes the End User is breaching any of the material terms of this Agreement.
- End Users agree not to hold OCA liable for claims, demands or damages (including actual and consequential) of any kind, for the closing of an End User's account associated with its breach of this EULA.
3.3 Ownership of Intellectual Property
- The Licensor retains all right, title and interest in and to all Intellectual Property in the Works contained in the Program, other than any software incorporated into the Program under licence from a third party.
- End Users acknowledge that they do not acquire any Intellectual Property Rights, either express or implied, in the Program and the Documentation beyond the terms contained in this End User Licence Agreement.
3.4 No obligation to support
Provided that the Program functions and is fit for purpose, OCA has no obligation to provide support, maintenance, upgrades, modifications or new releases of the Program.
4. Warranty disclaimer
- To the fullest extent permissible by law, but subject always to any Non-Excludable Condition, the Program is provided to the End User without any representations or warranties. End Users agree to use them it at their sole risk.
- Subject to the Non-Excludable Conditions, and to the fullest extent permissible by law, the Licensor expressly disclaims all warranties of any kind with respect to the Program and the Documentation, whether express, implied, statutory, or arising out of the course of performance, course of dealing or usage of trade including any warranties or merchantability, fitness for a particular purpose, satisfactory quality, accuracy, title of non-infringement.
4.2 Limitation of liability
- Subject to OCA's compliance with the Non-Excludable Conditions and to the fullest extent permissible by law, OCA is not liable (whether in contract or tort, including negligence) for anything the End User does to a third party as a result of using the Program:
- for any inability to use any third party equipment or access to data;
- for loss or corruption of data regardless, of whether the loss is direct or indirectly caused by use of the Program; and
- for any indirect, incidental, punitive, special, or Consequential Loss or damage whatsoever, in each case, arising out of the use or inability to use the Program or Documentation, even if OCA has been advised of the possibility of such damages or if such damages are foreseeable. Subject to the obligations of OCA under the Non-excludable Conditions, and to the fullest extent permissible by law, in no event will OCA's liability for damages exceed the amounts actually paid by End Users to OCA for the use of the Program.
- To the fullest extent permitted by law, OCA's liability for a breach of a Non-Excludable Condition is limited to:
- the supplying of the services again; or
- payment of the cost of an equivalent Subscription.
- Notwithstanding this clause 4, or anything else contained in this Agreement, neither party's liability for death or personal injury resulting from its own negligence shall be limited.
4.3 Limitation of liability
Subject to any Non-Excludable Condition, any loss or damage which is or may be suffered by an End User in connection with the use of the Program is expressly disclaimed by OCA. OCA limits its liability for breach of a warranty under this Agreement, or for a breach of a condition or warranty it cannot lawfully exclude to the extent permitted by law, and is fair and reasonable for Licensor to do so, to:
- a resupplying the Program; or
- paying the Subscription Fee to the End User for an amount of money equivalent to the Subscription Fee previously paid that month.
End Users indemnify, defend and hold harmless OCA in respect of all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal fees on a full indemnity basis), in connection with:
- any breach of this Agreement;
- the End Users negligent acts or omissions;
- the removal of Personal Information from the Website at the request of a Party, which results in a claim from another Party; and
- use of the Program, including any third party claims made in connection with, or arising out of, the End Users use of the Program and the Content provided by other End Users.
- The End User acknowledges and agrees that Personal Information uploaded to the Website is intended to be kept until all of the End User's Children reach an age of eighteen (18) years old, and this information will be kept for the purposes of operating the Program.
5.2 Consent to the provision of information to third parties
The End User acknowledges that its Personal Information, may be provided to third parties where required in order to operate the Software.
6.1 Termination by OCA
OCA can terminate this Agreement without notice if:
- it no longer has the right to provide the Program to End Users;
- the Licence from Nobelle Pty Ltd ACN 134 454 541 as Trustee for the Brook Family Trust, is terminated for any reason;
- the End User commits a breach of any of the material terms and conditions of this Agreement;
- the End User's subscription expires and a request for payment is not met after fourteen (14) days of making such request.
6.2 Termination by End User
The End User is deemed to terminate this Agreement if they fail to maintain the currency of their subscription.
7. Miscellaneous provisions
OCA may assign this Agreement by notifying the End User of the Assignment. The End User cannot assign the terms and conditions contained in this Agreement without the express consent of OCA.
7.2 Entire Agreement
This Agreement contains the entire agreement between the Parties in connection with its subject matter and supersedes all previous agreements or understandings between the Parties.
7.3 Governing law and jurisdiction
This Agreement is governed by the law applicable in the State of Queensland, Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the Courts of Queensland, Australia.
7.4 Intellectual Property Rights
Nothing in this Agreement constitutes a transfer of any Intellectual Property Rights from the Licensor to the End User.
Part or all of a provision of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining parts of the provision or provisions of this Agreement continue in force.
The following clauses survive termination of this Agreement clause 2.6, 4, 7.3, 7.4 and 7.6 survive termination of this Agreement.