The www.protectachild.com.au (the "Site") is owned and operated by ProtectaChild, ("ProtectaChild" or "Us" or "We") in connection with the provision of the ProtectaChild service (the "Membership"). The Site may be visited and used by consumers and registered members of the Membership ("Members"). Unless otherwise noted, visitors and Members shall be collectively referred to in this agreement as "You". By using the Site, You agree to be bound by all of the terms in these Terms & Conditions (the "Agreement") and, where applicable, all the terms when You became a Member.
ProtectaChild reserves the right, in its sole discretion, to update or modify this Agreement at any time. Your continued use of the Site following the posting of any changes to this Agreement constitutes acceptance of those changes. Please read this Agreement carefully and if You have any questions, or if this Agreement does not conform to your understanding of the Membership, please call our customer support on 1800 828 540. In connection with your use of your Membership and Site, ProtectaChild hereby grants a non-exclusive, non-transferable, limited right to access, use and display the Site for your personal, noncommercial use, provided that you comply fully with the provisions of the Agreement. The terms upon which you engage with us are as follows:
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| 1. |
Membership Benefits |
| 1.1. |
As a Member of ProtectaChild, You will have access to the Membership as explained in the Membership materials that were sent to You upon enrolment and as further explained on the Site. We reserve the right to modify, enhance, cancel, terminate, establish limits for or otherwise change particular Membership benefits and benefit providers from time to time in our sole discretion without notice. |
| 2. |
Membership Term and Renewal |
| 2.1. |
Unless You cancel, your Membership continues automatically on a monthly, bi-monthly, quarterly or annual basis (whichever may be applicable to your particular Membership) with the applicable periodic Member fees automatically billed to the account identified and authorised by You at the time of your enrolment in the Membership. |
| 3. |
Cancellation |
| 3.1. |
You may cancel your Membership at any time to avoid future billing by calling us on 1800 828 540, Monday - Friday, 8:30am - 5:00pm. Or send email to [email protected] with your unsubscribe request. |
| 4. |
Use of Membership |
| 4.1. |
You must be an active and paid Member to access Membership benefits. Membership is only to be used by You and your authorised household members for the purpose of monitoring the online social networking activities of individuals (including your own children) whom you are permitted by law to monitor. Your Membership is non-transferable and may not be resold or licensed to any other person or entity. You are entirely responsible for updating your registration information to keep it current, accurate and complete, and for maintaining the confidentiality of your Membership password and account information. You will promptly notify us if You become aware of any unauthorised use of your Membership. In the event that an unauthorised person gains access to a password-protected area of this Site as a result of your acts or omissions, You agree that You shall be liable for any unauthorised use. You hereby represent and warrant that You have full legal right and authority to monitor the activities of the individuals You register through the Membership (including the right to use the names and passwords of such individuals) and agree to hold harmless and indemnify ProtectaChild, its parent, affiliates and subsidiaries and each of their employees, officers and directors and all Membership providers from and against all claims relating to your use, or the unauthorised use, of the Membership. You further represent and warrant that You will not use the Membership for any illegal purpose or purpose not specifically permitted under this Agreement including, but not limited to, searching for or monitoring the activities of other individuals, including children and adults. Doing so is a violation of this Agreement and possibly federal and state law, and will result in your immediate termination at ProtectaChild's sole discretion. |
| 5. |
User Conduct |
| 5.1. |
You are solely responsible for the content and context of any materials you post or submit through this Site. You warrant and agree that while using this Site, you will not post, e-mail, or otherwise make available content that: |
| 5.1.1. |
is unlawful, harmful, threatening, abusive, harassing, defamatory, libelous, invasive of another's privacy, or is harmful to minors in any way; |
| 5.1.2. |
is pornographic or depicts a human being engaged in sexual conduct; |
| 5.1.3. |
harasses, degrades, intimidates or is hateful toward an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability; |
| 5.1.4. |
impersonates any person or entity, including, but not limited to, a ProtectaChild employee, or falsely states or otherwise misrepresents your affiliation with a person or entity (this provision does not apply to messages that are lawful non-deceptive parodies of public figures); |
| 5.1.5. |
is false, deceptive, misleading, deceitful, misinformed, or constitutes "bait and switch"; |
| 5.1.6. |
infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, or content that You do not have a right to make available under any law or under contractual or fiduciary relationships; |
| 5.1.7. |
contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; |
| 5.1.8. |
disrupts the normal flow of dialogue with an excessive number of messages (flooding attack) to the Site, or that otherwise negatively affects others' ability to use the Site; or |
| 5.1.9. |
employs misleading e-mail addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of content transmitted through the Membership. |
| 6. |
Further Warranty |
| 6.1. |
You further warrant and agree not to: (a) "talk" or otherwise harass anyone; (b) collect personal data about other visitors or Members or any other person for unlawful purposes; or (c) attempt to gain unauthorised access to ProtectaChild's computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Site. |
| 7. |
No Warranty/Limitation of Liability |
| 7.1. |
This site and membership are provided on an "as is" and "as available" basis with no warranties whatsoever. Protectachild, its subsidiaries and affiliates, and each of their officers, directors, employees, successors and assigns ("Protectachild Parties") make no warranties, express or implied, including the warranty of merchantability or fitness for a particular purpose, with respect to use of this site or the membership or related information provided to you by Protectachild. Protectachild Parties do not warrant or make any representations regarding the use or the results of the use of the site, the membership and materials from this site in terms of their correctness, accuracy, reliability, or otherwise. Further, please note that no advice or information, obtained by you from this site shall create any warranty not expressly provided for in this agreement |
| 7.2. |
You further agree that Protectachild has no responsibility or liability for the deletion of or failure to store any content maintained by or transmitted through the site or membership. |
| 7.3. |
Under no circumstances shall our liability exceed your current monthly membership fee, and under no circumstances, including negligence, shall we be liable to you or a third party for any damages, including, without limitation, direct, indirect, incidental, special, exemplary, punitive, third party or consequential, even if Protectachild was advised of the possibility of such damages. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the foregoing limitation or exclusion may not apply to you. The Protectachild Parties disclaim any warranties regarding the security, reliability, timeliness, and performance of the site and membership. The Protectachild Parties do not warrant that the site will meet your requirements or that the operation of the site will be uninterrupted and error free. You understand and agree that you use the site and membership at your own discretion and risk and that you will be solely responsible for any damages to your computer system or loss of data that results from the use of the site. |
| 8. |
Indemnification |
| 8.1. |
You agree to indemnify, hold harmless and, at our option, defend ProtectaChild Parties from any and all third party claims, liability, damages and/or costs (including, but not limited to, reasonable attorneys fees and expenses) arising from your improper use of this Site or Membership, your violation of this Agreement, the unauthorised access to any password-protected area of the Site using your password, or your infringement, or the infringement or use of any Intellectual Property Rights (as defined herein). |
| 9. |
Links |
| 9.1. |
The Site may contain links to other Web sites. ProtectaChild does not control such other Web sites and is not responsible or liable for the availability thereof or the products, services or other materials and all the content contained on such Web sites. ProtectaChild shall not be responsible or liable, directly or indirectly, for any damage or loss incurred or suffered by You in connection therewith. Your access and use of linked Web sites, including the products, services and materials therein, is solely at your own risk. |
| 10. |
Intellectual Property |
| 10.1. |
You hereby agree and acknowledge that as between You and ProtectaChild, ProtectaChild owns all right, title and interest in and to this Site, including, without limitation, all Intellectual Property Rights. "Intellectual Property Rights" means any and all rights under patent law, copyright law, trade secret law, trademark law, and any and all other proprietary rights. You acknowledge that all marks that appear throughout the Site belong to ProtectaChild, or the respective owners of such marks, and are protected by applicable trademark and copyright laws. Any use of any of the marks appearing throughout the Site without the express written consent of ProtectaChild or the owner of the mark, as appropriate, is prohibited. |
| 10.2. |
You further agree and acknowledge that all profile information, text, files, images, photos, video and other materials created by others ("Content") and posted on, transmitted through or linked from this Site are solely owned by and the sole responsibility of the person from whom such Content originated. ProtectaChild does not control and is not responsible for Content made available through this Site. You understand that You may be exposed to Content that is offensive, indecent, inaccurate or otherwise objectionable. By posting Content on or through this Site, You hereby grant to us a nonexclusive, fully paid and royalty-free, sub-licensable and worldwide license to use, modify, publicly perform, publicly display, reproduce and distribute such Content for any purpose without compensation to you. You represent and warrant that You own or control all applicable rights or You have obtained any consent or approval under any applicable copyright, trademark, intellectual property or other laws that may be necessary to publish, store or use the Content; You have the right to grant the license set forth in this section, and the posting of your Content on or through this Site or its use by us and Site visitors does not and will not violate the privacy rights, publicity rights, contract rights, copyrights or any other rights of any person or entity. You agree to pay for all royalties, fees or other amounts owed to any person or entity for any Content posted by You on or through this Site or our use of the Content in accordance with this license. |
| 11. |
Privacy Policy |
| 11.1. |
Information collected through the Site and Membership will be used in accordance with our Privacy Policy. By accepting the terms of this Agreement, You hereby acknowledge that You have read and understand the Privacy Policy and agree to its terms. |
| 12. |
Severability/Waiver |
| 12.1. |
In the event any provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction or appointed arbitrator, such determination shall in no way affect the validity or enforceability of any other provision herein. The failure by us to exercise rights granted to us hereunder upon the occurrence of any violations set forth in this agreement shall not constitute a waiver of such rights upon the recurrence of such violation. |
| 13. |
Modifications/Termination |
| 13.1. |
ProtectaChild reserves the right at any time to modify, suspend or permanently discontinue the Site, the Membership or any portion thereof, with or without notice. You hereby agree that ProtectaChild shall not be liable to You or to any third party for any modification, suspension or discontinuance of the Site or Membership. If You become dissatisfied with this Site or Membership in any way, your only recourse is to immediately discontinue such use and cease membership. |
| 14. |
Mediation |
| 14.1. |
If a dispute arises between the parties hereto that the matter will be referred to mediation prior to any legal proceedings being issued by either party. |
| 14.2. |
The mediation procedure is:- |
| 14.2.1. |
A party may start mediation by serving a mediation notice on the other party. |
| 14.2.2. |
The notice must state that a dispute has arisen and identify what the dispute is. |
| 14.2.3. |
The parties must jointly request appointment of a mediator. If the parties fail to agree on the appointment within 7 days of service of the mediation notice, either party may apply to the President of the Law Institute of Victoria or the nominee of the President to appoint a mediator. |
| 14.2.4. |
Once the mediator has accepted the appointment the parties must comply with the mediator's instructions. |
| 14.2.5. |
If the dispute is not resolved within 30 days of the appointment of the mediator, or any other period agreed by the parties in writing, the mediation ceases. |
| 14.3. |
The mediator may fix the charges for the mediation which must be paid equally by the parties. |
| 14.4. |
If the dispute is settled, all parties must sign the terms of such document and these terms are binding on the parties. |
| 14.5. |
The mediation is confidential and:- |
| 14.5.1. |
Statements made by the mediator or the parties; and |
| 14.5.2. |
Discussions between the participants to the mediation, before after or during the mediation; cannot be used in any legal proceedings. |
| 14.6. |
It must be a term of the engagement of the mediator that the parties release the mediator from any court proceedings relating to the mediation. |
| 14.7. |
The mediator is not bound by the rules of natural justice and may discuss the dispute with a party in the absence of any other party. |
| 14.8. |
The parties agree that each may be represented by a legal practitioner or legal practitioners of its choice. |
| 15. |
Third Party Disputes |
| 15.1. |
If there is a dispute between You and any third party, You understand and agree that ProtectaChild is under no obligation to become involved. In the event that You have a dispute with one or more other third parties, You hereby release ProtectaChild Parties from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or the Site. If You are a California resident, You waive California Civil Code Section 1542, which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor." |
| 16. |
Assignment |
| 16.1. |
We may assign our rights and obligations under this Agreement. This Agreement will inure to the benefit of our successors, assigns and licensees. |
| 17. |
Entire Agreement |
| 17.1. |
This Agreement, together with our prior agreement when You enrolled as a Member in ProtectaChild, constitutes the entire agreement between You and Us relating to the subject matter herein. |
| 18. |
Communications |
| 18.1. |
ProtectaChild uses personally identifiable information for essential communications, such as Emails, accounts information, and critical service details. We may also use this information for other purposes, including some promotional Emails. If at any time a customer wishes not to receive such correspondence, they can request to be removed from any mailing lists by emailing us at [email protected]. You will be notified when your personal information is collected by any third party that is not our agent/service provider, so you can make an informed choice as to whether or not to share your information with that party. |
| 19. |
Third Parties |
| 19.1. |
ProtectaChild may at its discretion use other third parties to provide essential services on our site or for our business processes. We may share your details as necessary for the third party to provide that service. These third parties are prohibited from using your personally identifiable information for any other purpose. ProtectaChild does not share any information with third parties for any unknown or unrelated uses. Protectachild shall not be liable for any loss or damage caused by the conduct of such third parties. |
| 20. |
Legal |
| 20.1. |
We reserve the right to disclose your personally identifiable information as required by law and when we believe that disclosure is necessary to protect our rights and/or comply with a judicial proceeding, court order, or legal process served on our Website. |
| 21. |
Applicable Law |
| 21.1. |
The laws of the State of Victoria, Australia, shall govern this Agreement and all disputes shall be heard in the State of Victoria, Australia. The parties submit to the non-exclusive jurisdiction of the Courts of Victoria in Australia. |
| 22. |
Cost of Service |
| 22.1. |
The cost of the ProtectaChild service is $14.95 per month including GST, and this price covers up to five children within a household within the same account. Additional accounts are $14.95 per month including GST. All prices are in Australian Dollars (AUD). |
| 23. |
Free Trial conditions |
| 23.1. |
ProtectaChild on occasion may offer free 30 day trials as part of its marketing protocols, on these occasions the customer is required to provide their Credit card details for the initial sign-up and to activate their account; however the credit card will not be debited until the end of the trial period. The credit card will not be debited only if the customer disables their account on or before the trial period has concluded. Please refer to our refund policy should the service not be disabled post trial period. |
| 24. |
Refund Policy |
| 24.1. |
If you cancel your subscription to ProtectaChild at any time before the end of the month of your subscription, you agree that we are not required to refund the monthly fees and any other amount that you have prepaid on account for ProtectaChild for that or previous months. |
| 25. |
Changes to Terms & Conditions |
| 25.1. |
If we decide to change our Terms & Conditions, we will post those changes here, the homepage, and other places we deem appropriate so that you are aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. We reserve the right to modify the Terms & Conditions at any time, so please review it frequently. If we make material changes to the Terms & Conditions, we will notify you here, or by Email, or by means of a notice on our homepage. |
| 26. |
ProtectaChild Security Policy |
| 26.1. |
ProtectaChild uses the eWAY Payment Gateway for its online credit card transactions. eWAY processes online credit card transactions for thousands of Australian merchants, providing a safe and secure means of collecting payments via the Internet. All online credit card transactions performed on this site using the eWAY gateway are secured payments. |
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- Payments are fully automated with an immediate response.
- Your complete credit card number cannot be viewed by ProtectaChild or any outside party.
- All transactions are performed under a 128 Bit SSL Certificate.
- All transaction data is encrypted for storage within eWAY's bank-grade data centre, further protecting your credit card data.
- eWAY is an authorised third party processor for all the major Australian banks.
- eWAY at no time touches your funds; all monies are directly transferred from your credit card to the merchant account held by ProtectaChild.
- For more information about eWAY and online credit card payments, please visit www.eWAY.com.au
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| 27. |
Digital Delivery |
| 27.1. |
After ordering online, you will receive an email confirmation from eWAY containing your order details (if you have provided your email address). We will normally confirm receipt of your order within a few minutes of ordering. We will attempt to send your software/license/access code via email within 7 working days. If you wish to query a delivery please contact us at [email protected]. |
| 28. |
Feedback |
| 28.1. |
If you have comments on the Site or ideas on how to improve it, please e-mail [email protected]. Please note that by doing so, You also grant ProtectaChild permission to use and incorporate your ideas or comments into the Site without advising You and compensation. |
| 29. |
Customer Service |
| 29.1. |
If You have any questions or concerns about your Membership and the Site, contact us at [email protected]. |
| 30. |
Force Majeure |
| 30.1. |
If a party by reason of force majeure is unable to perform or carry out any obligation under this agreement, then that obligation is suspended for so long and to the extent that it is affected by the force majeure. This clause does not apply to any obligation to make a payment. In that case, the affected party must give notice to the other party with reasonable particulars including, so far as it is known, the probable extent to which the party will be unable to perform or carry out or will be delayed in performing or carrying out its obligations. A party is not liable for any failure or delay in the performance of any of its obligations under this agreement to the extent that the failure or delay is attributable to force majeure, regardless of the length of time for which the force majeure continues. For the avoidance of doubt, it is noted that a party to this agreement may still suffer damage which that party may seek to recover from a third party, due to a failure or delay in the performance of an obligation under this agreement by a party to this agreement, attributable to circumstances amounting to force majeure which involve the third party. |
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Effective Date: 1 July 2012 |
