1. ABOUT THIS AGREEMENT
This agreement is between Batyr Australia Limited, ABN 51 152 952 737 (“batyr”, “we”, “us” and “our”) and the person signing up to be a User of the OurHerd application (“you” and “your”).This agreement comprises these terms of use and any other document specified in these Terms of Use (“Agreement”). This Agreement governs the rights and obligations between batyr and you, governing our provision and your use of our Services, mobile applications or other software provided, and any material, communications, links or information contained on, or made available through, our Services. Together, the website and Services provided comprise the “Platform”.
By signing up to the Platform, you acknowledge that you have read and agree to comply with and be bound by this Agreement (including any variations batyr makes from time to time) and by batyr’s Privacy Policy (available at www.batyr.com.au/privacy-policy/). If you do not agree to this Agreement and the Privacy Policy, you must terminate your registration as a User.
2. CHANGES TO THIS AGREEMENT
We may amend this Agreement from time to time. We will keep you informed of any changes by posting the amended Agreement on the Platform. If you continue to access or use the Platform after we amend the Agreement, then you are taken to have agreed to such amendments. You are responsible for checking all amendments from time to time.
3. THE PLATFORM
The Platform is designed to give you a space to view and/or share personal stories of overcoming difficulties, through video or audio recordings, photographs or written pieces uploaded to the Platform (each upload a “Story”). The Platform also connects you with other young people
4. OUR COMMITMENT TO YOU
batyr will ensure that the Platform is provided to you with due care and skill, and by suitably qualified personnel. We do not warrant that the Platform will be error-free, virus-free, continuous, suitable for you, or that the Platform will be compatible with your equipment.batyr does not take responsibility for any actions or omissions by Users on or in relation to the Platform.
batyr may add to, change or remove any features and functionality of the Platform at any time (with or without notice to you). The features and functionality available on the Platform may also vary depending on the device or application that is used to access it (e.g. mobile vs desktop).
batyr does not represent or guarantee that the Platform will be free from loss, corruption, interference, attack or other intrusion (“Security Incident”), and you release us from any liability relating to any such Security Incident.
5. USERS
5.1 EligibilityYou may only become a User of the Platform if:
(a) you are at least 15 years old, or your parent or guardian has given consent for you to become a User on the Platform’s registration page;
(b) you are a natural person (for example, you are not a company, trust, partnership or other similar legal entity); and
(c) you satisfy all the other requirements (including restrictions) set out in this Agreement, and as otherwise notified by us.
You are responsible for keeping your details up to date, and you acknowledge that batyr will not be responsible for any incorrect or fraudulent details provided.
5.2 How to become a Platform User
You must register with the Platform to become a User of the Platform. As part of the registration process, you will need to provide us with your email address. When uploading Stories, you may give additional information, but this is optional. You decide what information about you is shared when you upload Stories to the Platform, and this can be changed at any time through your profile settings on the Platform.
If you do not satisfy these requirements, or any other eligibility criteria or restrictions set out in this Agreement, then we may reject your registration application to be a User or terminate your registration.
5.3 Restrictions
You must not:
(a) submit more than one registration application for yourself, whether directly or indirectly; and
(b) register any person other than yourself as a User.
5.4 Your commitments as a User
You agree:
(a) that you will only upload Stories if you are at least 15 years old;
(b) that you have legal authority, and will continue to have such legal authority at all times during your registration, to enter into this Agreement;
(c) to only publish or communicate information (including photographs and videos) that you have all necessary rights to;
(d) to compensate batyr fully for any loss or damage that batyr suffers as a result of any claims made or brought by a third party against batyr due to your breach of this Agreement;
(e) to obtain all moral rights and intellectual property waivers and consents necessary to allow batyr to freely use, modify and exploit the User Material (whether such use, modification or exploitation occurred before or after the waiver or consent is given) as permitted by this Agreement, and provide such waivers and consents to batyr promptly on batyr’s request;
(f) not to infringe any Intellectual Property Rights or Moral Rights of any person, and to obtain any required consents to use any soundtrack or other work subject to copyright featured on any Story;
(g) to only depict individuals in a Story with their consent;
(h) to obtain any applicable required consents if you film your Story at a location that limits videography rights;
(i) that you may only be a User for your own personal use and in your personal capacity, and not for any commercial or other capacity;
(j) not to bring any claim against batyr in relation to any act or omission occurring in relation to the Platform, except that the foregoing does not limit your ability to bring a claim against batyr for its negligence or other breach of this Agreement;
(k) to assume all liability for any risk arising from any Story that you upload or view, or from your use of any information on the Platform;
(l) that uploading a Story will not breach any agreements that you have entered into;
(m) to comply with the batyr community values (as notified by us from time to time);
(n) to comply with all applicable laws, including any applicable export control laws, in all relevant jurisdictions;
(o) to cooperate with batyr in good faith, and to assist with any reasonable requests for the purposes of an investigation undertaken by batyr or a legal authority regarding misuse of the Platform;
(p) not to provide any false, incomplete or misleading information, including information provided in your personal details;
(q) not to upload any content or use language that is inappropriate, profane, defamatory, infringing, obscene, indecent, unlawful, likely to offend, insult or humiliate others based on ethnicity, race, gender, sexuality, age or any disability or otherwise vilifies any person or incites violence or hatred;
(r) not to defame, abuse, stalk, harass, threaten or otherwise violate the legal rights of others, including rights relating to privacy and publicity;
(s) not to send or publish material containing sexual acts, nudity, pornography or that is of a violent nature;
(t) not to use the Platform to sell or advertise any goods or services;
(u) not to engage in any other activity that batyr decides, in its discretion, is not compatible with the batyr community values, or which might affect the security of the Platform or its Users; and
(v) not to transfer your registration to another person.You must have all necessary consents, permissions, licences and approvals to enter into this Agreement and perform your obligations under it.
If you believe that another User has provided fraudulent or incorrect information on the Platform, you must immediately inform batyr. batyr is not responsible for any loss arising out of or in connection with any such fraudulent or incorrect information.
5.5 SupportWe will use reasonable efforts to provide online support to Users. To request online support, you must contact us through the “Contact Us” page on the Platform or by emailing the nominated email contact on that page.
While batyr will endeavour to respond to all requests for online support, batyr does not guarantee to rectify any or all issues, nor does it promise to do so by a certain timeframe.
5.6 Security of your informationYou must keep your user login details (including password) secret and confidential and not disclose such details to any third party or allow another person to access or use the Platform using your details. You agree that you will be solely responsible for all access and use of the Platform by anyone using your login details, whether or not you authorised such access or use. You must immediately notify batyr if you are aware of, or have any reason to suspect or believe that, your login details have been subject to unauthorised use or have otherwise been compromised.
6. STORIES
6.1 General
batyr reserves the right to determine the placement of Stories, and does not promise that any Listing will appear in a certain position in the search results.
6.2 User Responsibility
You are solely responsible for deciding to upload a Story.
You are solely responsible for all risks associated with creating and uploading a Story, including any losses, damages, liabilities, claims and expenses (including legal costs) that you or any other person may incur in relation to that Story.
6.3 Being Herd Workshop
If you participate in the Being Herd Program, you may also be asked if you want give permission for your story or experiences to be posted be posted on the OurHerd platform and/or provided to our Data and Insights team. If you give permission for this, batyr may use your data to inform research, policy, service improvement and/or the training of healthcare professionals.
7. PRIVACY
We will handle any personal information you submit via the Platform in accordance with the Privacy Policy located on the Platform at www.batyr.com.au/privacy-policy/.You consent to our collection, use and disclosure of your personal information in accordance with the Privacy Policy.
You must have all necessary consents and approvals for any personal information that you provide to us.
8. INTELLECTUAL PROPERTY
Nothing in this Agreement operates to assign or otherwise transfer any right, interest or title in or to any Intellectual Property Rights (including Moral Rights) of a party, except as expressly stated.
As between you and batyr, any User Material published on the Platform is owned by you or whoever created it. You grant batyr, and will procure the relevant third party licensors to grant, a world-wide, royalty-free, perpetual, irrevocable, transferrable and non-exclusive licence to:
(a) use, reproduce, modify, adapt, communicate, display, perform, store and distribute your User Material for the purposes of performing our obligations under this Agreement and otherwise in connection with providing the Platform and our general business purposes (including for marketing related purposes);
(b) create reports, statistics, databases and compilations for use by batyr and third parties;
(c) permit any person to assist batyr to do any of the things referred to in this paragraph; and
(d) sub-licence any of the rights granted to batyr under this paragraph to any person.
Without limiting the foregoing, you unconditionally consent to such use of your User Material by batyr that would, but for your consent, constitute a breach of your Moral Rights.
You acknowledge that you are solely liable for any losses, damages, claims and expenses (including legal costs) resulting from any User Material that violates third party Intellectual Property Rights or Moral Rights.
All materials, text, images, software, code, sounds, applications and other content located on the Platform, or otherwise provided by batyr, is owned or licensed by batyr. Other than your User Material, you must not copy, modify or transmit any such content without written permission from batyr.
The Platform may contain trademarks, logos, service names and trade names of batyr and third parties which may be registered or otherwise protected by law. You are not permitted to use any trademarks, logos, service names or trade names appearing on the Platform without our prior written permission.
9. DISCLAIMER AND LIMITATION OF LIABILITY
9.1 Disclaimer
You acknowledge and agree that you access and use the Platform entirely at your own risk.
The limitations and disclaimer in this clause 9 do not purport to limit liability or alter any consumer rights that cannot be excluded under applicable law, including the Australian Consumer Law.
Subject to clause 9.3 and to the maximum extent permitted by law, batyr excludes all guarantees, terms, representations or warranties that would otherwise arise or be implied by law in relation to the Platform and any supply of Services under this Agreement, including any guarantees, terms, warranties or representations concerning:
(a) the availability of the Platform;
(b) the quality, completeness, accuracy or suitability of the Platform;
(c) the fitness for purpose in relation to the Platform;
(d) all links to or from the Platform;
(e) the products and Services advertised or accessible on the Platform; and
(f) the safety of the computer systems or internet network of users of the Platform.
9.2 Limitation of Liability
Subject to clause 9.3 and to the maximum extent permitted by law, we exclude all warranties and liabilities arising under or in respect of this Agreement, whether in contract, tort (including negligence), statute or any other cause of action.We are not liable for any indirect, special and consequential loss, loss of revenue, loss of profits, loss of business opportunity, loss of goodwill, any economic loss of any kind, and loss or corruption of data, in each case, arising from or in connection with this Agreement.
To the extent that any liability may not lawfully be excluded but may be limited, our sole liability is limited to, at our discretion:
(a) the supply of the relevant Services again; or(
b) the payment of the cost of having the relevant Services supplied again.For any liability that is not otherwise excluded or limited by this Agreement, our aggregate liability to you under or in respect of this Agreement whether in contract (including under an indemnity), tort (including negligence), statute or any other cause of action is limited to $10.
9.3 Australian Consumer Law
The Platform comes with guarantees that cannot be excluded under the Australian Consumer Law.
If you are acquiring the goods or services as a consumer, our liability for a failure to comply with a consumer guarantee is limited to:
(a) in the case of goods supplied to you as part of the services under this Agreement, the replacement of the relevant goods or the repair of the goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods; and
(b) in the case of services supplied to you as part of the services under this Agreement, the supply of the relevant services again, or the payment of the cost of resupplying the services.
10. TERMINATION
10.1 Termination of registration or this AgreementWe may terminate this Agreement and your registration as a User on 10 days’ written notice to you. You may terminate this Agreement and your registration as a User at any time by selecting “delete profile” in the Platform’s profile page.
10.2 Termination for causeWe may terminate your registration immediately, by giving you notice in writing, if:
(a) you commit a breach of this Agreement, and that breach is incapable of remedy;
(b) you commit a breach of this Agreement that is capable of remedy, and do not rectify that breach within seven days of batyr issuing a notice of that breach to you;
(c) you regularly or habitually commit breaches of the same provision of this Agreement, whether or not they are remedied, or commit a significant number of breaches which are not remedied;
(d) you are located in a jurisdiction that is designated as a terrorist-supporting country by a relevant government, including Australia and the United States of America, or if you are listed on a government list of prohibited or restricted parties, including the governments of Australia and the United States of America; or
(e) where batyr has an express right to do so under any provision of this Agreement.
10.3 Survival
Expiry or termination of the whole or any part of this Agreement does not prejudice any right or liability that accrued to a party before the date of such expiration or termination.
Clauses 1 (About this Agreement), 8 (Intellectual Property), 9 (Disclaimer and Limitation of Liability), 11 (Dispute Resolution), 12 (General) and 13 (Definitions) continue to apply after expiry or termination of this User Agreement, as does any other clause that, by its nature, is intended to survive such expiry or termination.
11. DISPUTE RESOLUTION
You may notify us of any issue or dispute with batyr (“Dispute Notice”).
We both agree to try and resolve the dispute in such Dispute Notice in good faith, before either party commences any formal proceedings (other than for urgent interlocutory or other relief).
12. GENERAL
12.1 ContentAny information provided by batyr on this Platform is of a general informational nature only, and is provided solely for information purposes. batyr does not guarantee the accuracy of any information provided, and such information does not constitute advice or recommendations, nor is intended to be the sole information resource guiding any health-related decision.
12.2 Performance batyr may perform all or any part of its obligations under this Agreement outside Australia.
12.3 Entire AgreementThis Agreement constitutes the entire agreement between the parties about its subject matter.
12.4 Governing LawThis Agreement is governed by and must be construed in accordance with the laws applicable in the State of New South Wales, Australia. You submit to the exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia in respect of all matters arising out of or relating to this Agreement, their performance and subject matter.
12.5 InterpretationIn this Agreement:
(a) a reference to a statute, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(b) a reference to a party includes a reference to the party’s executors, administrators, successors and assigns;
(c) the singular includes the plural, and vice versa;
(d) “includes”, “including”, “for example”, “such as” and similar terms are not words of limitation;
(e) a reference to a “person” includes a natural person, corporation, statutory corporation, partnership, the Crown, and any other organisation or legal entity, and their permitted novatees, permitted assignees, personal representatives and successors; and
(f) clause headings in this Agreement are inserted for convenience only, and do not affect the interpretation of this Agreement.
12.6 NoticeUnless expressly stated otherwise in this Agreement, all notices, certificates, consents, approvals, waivers and other communications in connection with this Agreement must be in writing.
batyr may provide a notice by:
(a) posting the notice on the Platform; or
(b) emailing the notice to the email address that you last provided to batyr.
12.7 Severability
To the extent that any part of this Agreement is illegal, invalid, void, voidable or unenforceable, then that part shall be severed from this Agreement and the remaining parts of this Agreement will continue in full force and effect.
12.8 Waiver Of Rights
A right created by this Agreement may only be waived in writing by the party giving the waiver. Any failure to exercise, or any delay in exercising, a right or remedy provided by this Agreement or by law does not waive the right or remedy.
A waiver of a breach of this Agreement does not waive any other breach.
12.9 WarrantiesYou warrant that entering into and performing your obligations under this Agreement does not breach any of your prior contractual obligations to any other person.You warrant that you have not relied on any representations or warranties by us in relation to this Agreement or the Services other than those in this Agreement.
12.10 Assignment
We may assign or novate this Agreement, in whole or part, to a third party without notice to you. Other than as set out in this clause 12.10, no party may assign or novate this Agreement without the other party’s prior written consent, such consent not to be unreasonably withheld or delayed.
12.11 Force Majeure
If an event beyond a party’s reasonable control (“Force Majeure Event”) causes that party to be unable to perform or be delayed in performing an obligation under this Agreement (other than, in your case, an obligation to pay the Fees), that obligation is suspended for so long as it is prevented or delayed by the Force Majeure Event.
12.12 No relationship
Nothing in this Agreement will be taken to constitute a party as an employee, agent, partner or joint venturer of the other party nor is a party authorised to represent itself as acting, or to incur any obligation, on behalf of the other party.
13. DEFINITIONS
Capitalised terms used in this Agreement have the following meaning:Agreement means these terms of use, as amended from time to time in the manner set forth herein.
Dispute Notice is defined at clause 11.
Force Majeure Event is defined in clause 12.
Intellectual Property Rights means all intellectual property rights, including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, trade secrets, know-how, confidential information, patents, invention and discoveries and all other intellectual property as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation 1967.
Moral Rights means the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship, as defined and as set out in Part IX of the Copyright Act 1968 (Cth), and any corresponding rights that exist or that may come to exist in the Commonwealth of Australia and anywhere else in the world.
Platform means the website, Services, mobile applications or other software provided by batyr.
Privacy Policy is the batyr Privacy Policy, available at www.batyr.com.au/privacy-policy/.
Security Incident is defined in clause 4.
Services means any service rendered by batyr to a User through the Platform, whether free or subscription-based.Story is defined in clause 3.
User means any person who registers on the Platform and, by doing so, accepts this Agreement.
User Material means any Story, information, content or data (including illustrations and photographs) that you upload or otherwise submit to the Platform.
14. CONTACT USIf you have any questions about this Agreement, you can contact us via the Platform or by email at hello@batyr.com.au.
